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11. At the beginning of events relevant to application, K. had a daughter, P., and son, M., born in 1986 1988 respectively. P.’s father is X M.’s V. From March May 1989 was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. August November December 1990, she again periods months on account this illness. In 1991 less than week, an atypical undefinable psychosis. It appears that social welfare health authorities have contact with family since 1989. 12. The applicants initially cohabited summer July 1993. both P. M. were living them. 1993 involved custody access dispute concerning 1992 residence order made transferring X. 13. 22 April 7 1992, 13 10 June 11 17 January 1993, psychoses. She compulsory care between 15 1992. According medical report dated paranoid psychotic. 14. On 19 according authorities’ records, discussion took place worker K.’s mother. mother said her daughter’s condition really bad destroyed childhood picture hers, wedding photo mother, broken glass “pierced eyes” all appearing photos. tired situation, did not get any support mental authorities. added worried afraid “again something must happen before admitted care”. 24 placed under observation view determining whether should be psychiatric care, conditions considered met but remained voluntary until 5 15. Allegedly, allow K., meet. when pregnant, further limited by District Court R. Basing itself doctor’s opinion, court held child’s development would endangered if meetings continued without supervision ordered 16. records authorities, showed signs behavioural problems. 30 psychologist reported how played two dolls saying – very vulgar terms they performing sexual acts. February mirror presence who kept repeating: “mummy broke ...” Notes among others state games which pictures he drew destructive nature. notes taken March, lately, while children singing together at day-care nursery, shown immense hatred, threatening “to kill everybody”. occasions fetched him described “unpleasant scenes”, shouting hitting his react. noted, however, no longer doll connotations. 17. T. number mental-health officials 31 during it mentioned might intervene upbringing, child-protection point view, more drastic way case so far. appeared connection recent hospitalisation “forcibly” restaurant, furious, consequence thrown things around; example, microwave oven ended up floor. unable control herself. 18. following day child group, consisting various agreed aim children’s home assistance measure open section 14 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 “the Act”), period psychological examinations carried out. 19. 3 official decided behalf Social Board (perusturvalautakunta, grundtrygghetsnämnden) S. months. This regarded short-term pursuant Act. consulted, sister, 8 find open-care practicable. meeting, such practical proposed participants. then heard 21 objected placing home. 20. opinion 12 requested Board, doctors M.L. K.R. time able necessarily permanently prevent caring him. Doctors worked hospital H., where cared indicated above. 21. that, come staying, boy undergone total change behaviour, characterised anger, swearing, etc. situation need hospitalisation. When visit centre suggested her, become angry. statement home, While playing other tell staff asked 3-year-old girl what name was. As reply, raised voice shaken girl, letting go older given name. frightened behaviour. 22. informed University Hospital local writing baby carrying. hospitals soon arrived and, particularly, baby’s delivery. also expressed wish health-care professionals pay special attention relationship new-born beginning. 23. 18 district hospital, gave birth J. same day. stayed calm After delivery written decision emergency served hospital. ward. mother’s behaviour ward later found somewhat restless completely disorderly. indicate understood wanted leave Medication secretion milk prescribed. seems left is, morning, post-natal examination. went started pushing empty pram around place. 24. immediately their child, workers H. Director, noted unstable last stages pregnancy. He out plans public care. Lastly, father, T., could guarantee its safety. addition Director referred family’s long-standing difficulties, namely, serious illness occasionally uncontrolled emotional reactions traumatic children, T.’s inability reluctance accept guidance, impossibility putting whole responsibility J.’s providing measures necessary extent. prior decision. notified take into notification faxed 25. citing principally reasons 26. appeal against orders. 27. note orders prohibited unsupervised one hand, other. supervised visits, restricted. continue preparations taking 28. A meeting arrival absence applicants. there plan prohibit visits month ground predicted had, initial allowed restriction, accompanied personal nurse. However, implemented. entry register June: “The may nurse wants. Other visitors being.” 29. office 11.30 a.m. (M.’s biological father) 30. psychosis, obtained referral doctor centre. treated 31. 23 visited 32. applicants’ told break off “if keep” nevertheless relationship. 33. decisions “normal” giving similar those (see paragraph above), prolonged restriction September see only company essentially unstable; subject aggressive moods; proceedings severe ordeal patient. regards J., therefore believed security jeopardised supervision. feared “could staff, interest”. Before objection envisaged. 34. indicates “a difficult situation”. 35. moved unit 36. 20 day, however. 26 committed file, relatives earlier contacted They disappeared behaved unsettled manner. Her lasted 27 October 37. During respective homes. arranged regard health. centre’s register, twice period. 38. 4 good first stay every organise christening. intention move on. 39. paternity established granted joint 40. travel expenses paid can deduced succeeded creating learned her. leaves spent house new 41. County Administrative (lääninoikeus, länsrätten) confirmation, opposed referrals, submitted 25 alone, psychotic four years. times week. staying flat attached municipal weeks subsequently days week begun investigating possible entrust help Board. 42. 9 confirmed considering mentally ill; conflicts “as result away 1993”; because problems provide adequate care; provided sufficiently improved expected satisfy needs. No hearing held. 43. repeating put forward 44. Supreme (korkein hallinto-oikeus, högsta förvaltningsdomstolen) confirmation represented Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) dismissed 1994. 45. date extended respect 46. 1994 appealed 1995 cost-free 1 1994, appointed Ms Suomela representative upheld Court’s 47. By foster town some 120 km joined parents own. placement “for years”. implemented homes relatives. 48. meantime, christened 49. consultation treatment five hopes could, together, future. Thursday Saturday, 28 days, arrangement 50. 51. appear Board: “14 1993: … 2. ... addition, importance future has now questioned, [public care] preparation. will give “13 52. discharged 53. 2 implementation alternative allegedly ignored. For instance, meet maternal grandmother 54. adoption relaxation restriction. permitted once month. 55. requested, inter alia, draw aiming reunification family. 56. organised revise attend meeting. 57. restricted monthly hours. grounds still existed. although dissatisfied set plan, affording unlimited right create obstacle successful placement. appealed. 58. oral imposed evidence psychiatrists, interviewed One them, Dr T.I.-E., know personally commented diagnosis indicating tendency react manner conflict situations. K.P. stated children. Consequently, reason 59. expert Court, E.V., psychiatrist, should, being, discontinued protect parents. applicants, E.V. them or nor consulted psychiatrists making proposal. 60. issued neither witnesses orally willing development. reasoned, follows: “... [By allowing] [by allowing through correspondence] ensured retain knowledge If cease exist, thus possible. 61. request exemption costs, legislation cover disputes restrictions. court’s hearing, assisted Suomela. 62. discontinue 63. Government, expressly asked, 64. Board’s request, K.P., possibility revoking concluded efforts restrictions relaxed possessed resources. closest upbringing guardian ad litem, ready not, psychiatrist adults, stand interests K.P.’s based K.Po., psychologist, conclusion ability 65. advised requesting revocation 66. 29 1995, apparently 67. rejected revoked, stating “At moment better changed respects comparison made. ‘a lot instability’ life well fragility, brought years’ experiences needs long therapeutic treatment. regular medication needed well-being make manage precise bring even though explicitly opinion. 68. costs afforded free legal representation. hearing. 69. R., Having birth, evening wrapped blanket, walking barefoot cold weather realised happened intervened. 70. being psychiatrist’s “must schizophrenia time”. 71. 1995. hold parties opportunity supplement observations. 72. appeals holding certificates, unstable. psychotherapy medication. These factors caused additional strain militating 73. revised proposing neutral premises Family Advice Centre living. proposal, entailed Instead, month, residence. separate it. 74. letter Meetings authorised hours chosen supervised. 75. 76. considered, drawn already renewed decisions, properly heard, request. matter back consideration. 77. light Acting formally 1996. six important settle themselves environment grow up. Closer contacts mean insecurity creation crisis process settling jeopardised. progress remain stable secure. Director’s 78. 79. 1996 school present proposal made, far concerned. was, officials. 80. 1997, residence, access. J.P., recommended J.P.’s included observations: persons close primarily examined growth requires examination quality, permanence durability human relationships, interaction relationships. my relationships are view. conclusion, I eight times, thirteen Thus, lived forty-five years nine longest has, ‘stepfather’, helped look after most ten looked interruption. practice, kind above, early have, owing circumstances, non-continuous, changing. continuous Therefore, these ones born. first, short time, reception small seven old. So far, little over due significant primary especially, naturally parents, principles enshrined United Nations Convention Rights European Human applied families. especially when, together. arrangements helping supporting best will, place, ensure important, safe family, form maintain internalised whom separated circumstances. done complying present, unrestricted extent capable Such clearly endanger question evaluated attained age 12.” 81. preclude daughter 82. 1997 revision 1997. Their sent representative. but, occasions, recorded plan. 83. restrict 80 above). refused 84. Although reply R.’s behalf, part person directed, upon whose right, duty interest direct effect, appeal. decision, concerned siblings’ parents’ access, 85. applicants’, consequently youngest R.’s, end 1998. 86. 87. 1998 K.M. (formerly K.P.), There (who care). reduce down normal constant 88. 1998, 2000. sight de facto home; correspondence enough awareness parents; closer development, which, 1999, decisions. reasoning, quoted J.P. 89. reports supervisor attended adults got quite meetings. often smaller, herself, seemed girls, applicant supervisor’s description, reports, concentrated 90. weekend 2000 91. Court). An administrative 92. reviewed 2000, others. T 2001 2001, alternately Saturday Sunday p.m., Sundays, p.m. freely spend night each Christmas, holidays. 93. died 2001.
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9. The applicant is the monarch of Liechtenstein, born in 1945 and living Vaduz (Liechtenstein). 10. applicant’s late father, former had been owner painting Szene an einem römischen Kalkofen (alias Der große Kalkofen) Pieter van Laer, which formed part his family’s art collection since at least 1767. Until end Second World War one castles on territory now Czech Republic. 11. In 1946 Czechoslovakia confiscated property father was situated its territory, including question, under Decree no. 12 “confiscation accelerated allocation agricultural German Hungarian persons those having committed treason acted as enemies Slovak people” (dekretu prezidenta republiky č. 12/1945 Sb. o konfiskaci a urychleném rozdělení majetku Němců, Mad’arů, zrádců nepřátel), issued by President 21 June (“the Beneš Decrees” – “Benešovy dekrety”). 12. On November 1951 Bratislava Administrative Court (správní soud) dismissed appeal lodged father. reasoning merits case, stated that defendant office come to conclusion appellant person nationality within meaning provision Article 1 § (a) decree, basis finding this generally known. It noted defence complaint directed against restricted representation not supported files that, due shortcoming, it necessary deal with greater detail. considered approach mistaken as, relevant administrative regulations, no evidence required for facts were known and, therefore, be contained files; however, counter-evidence official certain fact would have admitted. concluded failed raise objection issue general knowledge contend he position bring counter-evidence, remained uncontested. 13. 1991 municipality Cologne obtained temporary loan from Brno Historical Monuments Office 14. 11 Regional (Landgericht) granted request interim injunction ordering hand over bailiff exhibition. sequestrated 17 December 1991. 15. At beginning 1992 instituted proceedings before Cologne, requesting consent delivery him bailiff. He argued father’s heir, painting. submitted subject expropriation measures any event such invalid or irrelevant account violation ordre public Federal Republic Germany. 16. intervened these support defendant. lost ownership result confiscation lawfulness confirmed decision 1951. 17. 10 October 1995 Court, following hearing, declared action inadmissible. court’s view, Chapter 6, 3, Convention Settlement Matters Arising out Occupation (Vertrag zur Regelung aus Krieg und Besatzung entstandener Fragen “the Convention”) 23 1954 between United States America, Kingdom Great Britain Northern Ireland, French Germany excluded jurisdiction case. reasoning, terms Article’s paragraph 3 taken conjunction 1, claims actions acquired transferred title carried regard external assets other property, seized purpose reparation restitution, state war, specific agreements, admissible. These particular provisions upon unification. According applied, mutatis mutandis, defendant, because review aforementioned should excluded. found people”, 1945, constituted measure 3. rejected, particular, argument did apply only concerned never citizen. respect, court, referring case-law Justice (Bundesgerichtshof), view confiscating State decisive. aim provision, namely sanction, without further examination, implemented abroad could achieved excluding judicial Moreover, question pursued purposes mentioned Having regarding “Beneš Decrees”, especially 108 enemy national reform fund”, 12, while also pursuing economic aims, intended expropriate nationals, is, “enemy property”. expropriated competent Czechoslovakian authorities interpreted applying “person nationality”. unsuccessfully appealed courts issue. Finally, issue, inventory included measure. suspend order await outcome Equalisation Burdens Act (Lastenausgleichsgesetz) concerning compensation damage losses to, inter alia, expulsion destruction during post-war period then Soviet-occupied zone Berlin. underlying litigation clarified proceedings. Irrespective whether plaintiff origin, equalisation said legislation, applied who resided West Berlin 31 1952. event, there right loss works (Kunstgegenstände). 18. 9 July 1996 Appeal (Oberlandesgericht) appeal. inadmissible respect claim Convention. notion competence, derived sovereignty vested courts, administer justice. delimited international customary law recognised rules law. Settlements persons, who, consequence measures, directly indirectly abroad. continued force Treaty September 1990 Final 7 Treaty, provided termination operation quadripartite rights responsibilities whole, amended Agreement 27 28 according suspended later terminated exception specified Agreement, §§ That valid constitutional procedural legal relations resulting liquidation foreign powers “final unchallengeable” (Endgültigkeit Unanfechtbarkeit) private concerned. Appeal, rights, access court legally (gesetzlicher Richter), infringed. Basic protected individuals acts domestic exercise authority legislator therefore prevented limiting protection violations basic if attain more important goals. When Convention, expropriating concrete into account, aimed based legislation property. As regards objections lawfulness, law, virtue jurisdiction. Likewise, allow recourse when examining admissibility action. their application head neutral violated peace accordingly rejected. referred indisputably nationality. However, Justice, “German assets” light State. dispute compliance State: well Presidential decree properties “all nationality” irrespective citizenship. notions nationality”, origin” (“deutsche Volkszugehörigkeit”), likewise used time, comprised elements person’s citizenship nationality, latter depending mother tongue. regarded origin broader sense. There doubts effectiveness expropriation, sufficient expropriations previous owners deprived factual power disposition. Furthermore, Agreement. limitation belonging itself justified conclusion. assets. both intervener belonged group whenever challenge 1. 19. 25 1997 refused entertain points case fundamental importance prospect success. 20. January 1998 Third Section Division (3. Kammer des zweiten Senats) Constitutional (Bundesverfassungsgericht) (Verfassungsbeschwerde), offered civil decisions, questions existence non-existence determination they Czechoslovakia. decided obliged do so. extent expressly refrained qualifying Their interpretation “measures comprising which, intention State, assets, objected bar constitute agreement detriment treaty obligation. recalled exclusion amount clauses whole served settle matters dating back time entry Law (Grundgesetz) May 1949. indication arbitrariness rights. set aside Germany: full sovereignty, obligations treaties Three Powers affected. This opinion Powers, otherwise settled suspension parts separate agreement. 2 February 1998. 21. discharged thereupon handed municipality, returned
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9. In June 1949 plots of agricultural land owned by the applicant’s father were expropriated former Doksy District National Council (okresní národní výbor) under Czechoslovak New Land Reform Act No. 46/1948 (“the 1948 Act”). The had never obtained any compensation. 1957 some these transferred to ownership natural persons in an assignment procedure Act. 1977 died and rights over his estate confirmed. 10. After fall communist regime Czechoslovakia, 229/1991 on Adjustment Ownership Rights respect Other Agricultural Property (“zákon o půdě”, “Land Act”) entered into force 24 1991. provided that was no longer applicable certain conditions property confiscated pursuant without compensation could be returned its owners or their heirs if it still possession State a legal person. However, such been persons, – subject exceptions only claim other equivalent financial 11. On basis Act, applicant restitution agreements with two (the Hradec Králové Forest Enterprise Líny Krásná Ves Cooperative) 10 December 1993 4 May 1994 respectively. By decisions 12 October Mladá Boleslav Office (pozemkový úřad, “the Office”) refused approve agreements. Referring section 32(3) found assigned different owners, being proved showing deeds assignment. based following documents: decision Notary (státní notářství) 26 father’s inheritance, 7 expropriation property, record Local (místní November proceedings appeal against expropriation, Liberec Regional (krajský 29 which modified, extract (výpis) from register (pozemková kniha) relating Districts. also at disposal copies made out Register (katastrální úřad) 23 September 1994. 12. It appears text invitation issued 28 latter scheduled hearing for lawyer invited, together representatives Enterprise, cooperative Fund (Pozemkový fond). According hearing, attended hearing. make comments issue administrative did not sign record. both left before end. 13. 11 lodged appeals Prague Municipal Court (městský soud, Court”) decisions. He claimed entire contesting acquisition part thereof proven concerned requesting access respective 14. 31 1995 joined upheld held correctly as whole they covered whose thus original owner. This established all relevant documents including assignment, included files. have consulted them time during he wished do so 23(1) Code Administrative Procedure. considered necessary case, facts authority points law it. this respect, referred 250(f) Civil 15. case back 9(3) (see paragraph 25 below) gave new July 1995. accordance opinion Court, bound virtue 250(r) Procedure, confirmed those At same time, informed seek 16 him. 16. 14 15 constitutional (ústavní stížnost) claiming inter alia violated, able put forward further evidence him about join cases. invoked Articles 36 38 Charter Fundamental Freedoms (Listina základních práv svobod). 17. Constitutional (Ústavní soud) rejected manifestly ill-founded. proper court violated manner dealt appeal. Having regard special nature judicial review decisions, court’s function limited reassessment authority. disregarded and, merely articulating discontent latter’s decision, raised valid objection Furthermore, according infringed deciding lawful Procedure when involved assessment law. 18. 1 1998 died. Nevertheless, introduced request 11(2) Government, is pending Office. 19. regarding inheritance terminated finding 2 estate. Apparently, aware Office’s 20. 22 February 2000 nephew, Mr Bouček, requested district re-open proceedings. produced uncle’s last will March designated universal heir estate, while adult children disinherited. re-opening concerning eventually granted 21 August 2000. 2001 approved agreement concluded between Bouček division equal basis.
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8. In 1991 Mr Dušan Slobodník, a research worker in the field of literature, published an autobiography entitled Paragraph: Polar Circle. He described it, inter alia, his conviction by Soviet military tribunal 1945 on ground that he had been ordered to spy army after having enrolled, 1944 when was 17 years old, training course organised Germans. book, Slobodník also wrote about detention gulags and rehabilitation Supreme Court Union Socialist Republics 1960. June 1992 became Minister for Culture Education Slovak Republic. 9. On 20 July newspaper Telegraf poem applicant. It dated (the day sovereignty Republic solemnly proclaimed) “Good night, my beloved” (“Dobrú noc, má milá”). One its verses read as follows: “In Prague prisoner Havel is giving up presidential office. Bratislava prosecutor rules again. And rule one party above law. A member SS ŠTB [The (Štátna bezpečnosť) secret police during communist regime Czechoslovakia] embraced each other.” 10. The later another newspaper. separate articles, two journalists alleged expression “member SS” stood Slobodník. 11. 30 several newspapers statement which applicant distributed Public Information Service (Verejná informačná služba) before. “For better picture Slovakia – without minister with fascist past” (“Za lepší obraz Slovenska bez ministra s fašistickou minulosťou”). “There has problem how keep democratic character [the Slovakian] national emancipation process, we have tried resolve many times. Until now, lost most matters related Slovakian nation were hands wrong people who led us away from evolution. cost high: example, combatants’ lives National Uprising [in 1945] . Now, are scared this mistake could be made To say our way Europe working together cooperating evolution not enough. This direct condition arising international law fulfilment no will take notice us. I expressed concern polemics last year; life finished writing polemics, views proved correct. year Republic’s next thing past came out public. managed situation allowed writer Ladislav Mňačko prove liar. But still given ministerial post, although any other country would do so long time ago. Does think some special exception it only right revise philosophy Nuremberg trials, binding post-war development all European countries? Or message correct? ... Mečiar government help him persuade talk intentions serious? Is good fact lead political, economic cultural isolation Slovakia? likes use every chance improving image around world. fully agree this. personal opportunity something order improve Slovakia: resign.” 12. 5 August publicly declared sue statement. 13. interview Czech daily Lidové noviny 12 stated, alia: “... speak [of Slobodník], characterise him, attended terrorist falls within term ‘fascist past’. consider such person nothing State ...” 14. context nomination post government, issues relating taken both before publication applicant’s Articles concerning subject New York Times, 22 1992, Tribune de Genève, 18 September Izvestia 31 well Austrian Press Agency. Genève reaction their respective articles. 15. 9 sued defamation under Article 11 et seq. Civil Code City (Mestský súd). extended action other” referred him. above-mentioned wrongly past. plaintiff claimed should bear costs apology five pay 250,000 korunas (SKK) compensation. 16. October 1993 dismissed action. established Hlinka Youth (Hlinkova mládež) February March participated Sekule. observed corps People’s Party slovenská ľudová strana) then force exercise power through intermediary party. court pointed that, Presidential Decree no. 5/1945 19 May 1945, legal persons deliberately promoted war waged Germany Hungary or served Nazi aims considered unworthy State’s trust. 17. further sentenced fifteen years’ imprisonment Sekule ordered, cross front line troops. tribunal’s judgment stated crossed but gone home April arrested. noted sentence camps until release 1953. 1960 USSR quashed discontinued proceedings lack factual elements offence. 18. Before Court, short joined organisation because prerequisite participation table-tennis tournament. explained summoned complied summons fear himself family. excluded being unreliable negative opinion it. headquarters Bratislava, where return Banská Bystrica report army. However, did find these facts established. particular, relevant evidence description events contained plaintiff’s book Circle, earlier. view, 19. period Slobodník’s covered press abroad prior statement, occasions commented interviews those issues, abroad. concluded basis information already press. concerned public figure inevitably exposed close scrutiny sometimes criticism members society. By making exercised freedom unjustifiably interfered personality rights. 20. appealed (Najvyšší súd), alleging “fascist past”, meaning term. argued left at first learned real purpose. martial material unlawfully executed detained. Members incorporated armed forces fallen judicial disciplinary rules. maintained done against homeland anti-fascist allies defamatory. 21. contended, courts abandon practice according defendant truthfulness statements proceedings. burden proof shifted onto shared between parties. value based undisputed irrelevant what extent involved activities What mattered voluntarily exclusion Sekule, undertaken, shown provide movements troops Youth. therefore proposed appeal dismissed. 22. 23 1994 reversed first-instance judgment, ruling applicant] accept distribute, if thinks fit, Agency choice, abroad, following declaration applicant’s] expense: ‘(1) addressed Service] reads: “...This (2) occasional part represent gross slander disparagement civil honour life, unjustified interference Slobodník.’ (4) liable SKK 200,000 respect non-pecuniary damage. ...’ ” 23. party’s expenses. 24. Circle dispute arisen, 25. appellate court’s equivalent restrictive interpretation connection plaintiff, namely trials. derived multilateral agreement 8 included statute International Military Tribunal, become Czechoslovakian 2 1947. held bound principle individual responsibility set agreement. 26. studied available documents used trials Slovakia. found reference organisations. propagation implementation theories inherent statutory regulations governing If abused Christian principles built, contravened force. Such and, case might be, let themselves criminal purposes, individually responsible. plaintiff. accepted latter’s argument started attending 27. reference, decree property, placed administration property whom unreliable. 28. recalled time, moral liability governed Order 33 punishment criminals, occupants, traitors collaborators establishment people’s judiciary adopted Council 15 16/1945 assistants extra-ordinary courts. These partly collective liability, they mention 29. As regards applicant, is, proclaimed balcony Council, present. Shortly afterwards, written interpreted scene proclamation. They meant designate infringed rights 29 1992. 30. request least parties domestic practice. past, holding latter wanted participate sports motivated sympathies. completed whether own initiative. point view. 31. filed points alleging, violation 10 Convention. provisions accordance Council’s Orders nos. 1/1944 4/1944, activity unlawful organisation. complained sufficient certainty actually undertaken carry not. 32. 25 1995 different Chamber sitting cassation upheld arrange text remainder, second-instance judgments sent back Court. 33. share view required allegations untrue. she propagated practised fascism active manner. Mere membership followed practical actions characterised 34. failed meaning, justification admitted recalled, however, rules, including relied applied natural justified specific actions. Applying organisations considering actual deeds entail recognition guilt. children over age 6 35. expressly referred, particular based. “Indicating analysis facts, allegation (statement) concurrent circumstances conclusion can inferred judgment. accompanied [plaintiff’s] course, namely, considers constitute Only circumstantial require proof. guarantee balance protection [a person’s] reputation Convention.” 36. restriction compatible requirements § Convention necessary Code. 37. poem, poem. compensation damage since award depended assessment interferences 38. 1996 reached new decision remainder case. stayed far withdrawn 39. claim considerably diminished dignity position society 13 show considerable publicity arisen result not, consequence articles 40. Having successful proceedings, 56,780 reimbursement costs. respectively 875 2,625 paid advance court. 41. November 1998 discontinue dismiss neither reimbursed. half State, 1,750. pending.
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9. The applicant is an Italian citizen, born in 1947 and living Oristano (Italy). 10. another person transferred land, property a sum of money to limited liability company, A., which the had just formed he owned – directly indirectly almost entire share capital was representative. whose object organising farm holidays for tourists (agriturismo), applied tax authorities reduction applicable rate certain taxes payable on above-mentioned transfer property, accordance with statute it deemed applicable, paid considered due. 11. present case concerns three sets proceedings. first concerned particular payment capital-gains (INVIM, imposta sull’incremento di valore immobiliare) two others stamp duty, mortgage-registry capital-transfer (imposta registro, ipotecaria e voltura), application rate. 12. In set proceedings, served supplementary assessment 31 August 1987 ground that company been incorrectly valued. They requested aggregate 43,624,700 lire comprising due penalties. On 14 January 1988 District Tax Commission be aside. letter 7 February 1998 informed hearing listed 21 March 1998. meantime, 23 1998, commission they accepted applicant’s comments struck out list. decision text deposited 4 April 13. other assessments A. 16 November ineligible reduced referred. authorities’ note stated would liable administrative penalty 20% amounts if not made within sixty days. 15 applicant, acting his own right, although matter lodged applications letters 20 capacity as representative 9 May cases. orders date adjourned cases sine die gave thirty days appoint lawyer. Subsequently, 24 1999. decisions 22 1999, at registry July dismissed A.’s included, among things, swimming pool tennis court, could regarded normal assets agricultural company. 27 October 2000 appeal Regional Commission.
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12. In 1987 the applicant association published a book entitled Euskadi at war. There were four versions – Basque, English, Spanish and French was distributed in numerous countries, including France Spain. According to association, this collective work containing contributions from number of academics with specialist knowledge Basque Country giving an account historical, cultural, linguistic socio-political aspects cause. It ended political article “Euskadi war, promise peace” by national liberation movement. 13. The second quarter 1987. On 29 April 1988 ministerial order issued Ministry Interior under section 14 Law July 1881, as amended decree 6 May 1939, banning circulation, distribution sale any its on ground that “the circulation book, which promotes separatism vindicates recourse violence, is likely constitute threat public order”. 1988, pursuant aforementioned order, département director airport border police refused allow over two thousand copies be brought into France. 14. 1 June lodged administrative appeal against ban. When implicitly rejected, it appealed Pau Administrative Court November 1988. 15. held did not have jurisdiction so referred case Conseil d’Etat. By decision 9 January 1991 President Judicial Division d’Etat remitted Court. 16. judgment delivered 1993 after hearing presence both parties, rejected association’s following grounds: “It has been established issue war printed Spain, five chapters written authors nationality documentation used for preparation publication mainly origin. Therefore, notwithstanding fact based Bayonne, offending must regarded foreign origin within meaning provisions. Accordingly, Minister legally prohibit book’s sale. taking view could pose since argued, particularly Chapter 4, violence State justified ETA terrorist organisation’s ‘proportionate counter-offensive’, make obvious error assessing evidence. Under Article 10 European Convention Human Rights, ‘[e]veryone right freedom ...’; task courts assess whether restriction expression guaranteed above-mentioned proportionate legitimate aim being pursued ban keeping aim. instant evidence does show general prohibition disproportionate public-order objectives ...” 17. 20 August 1993. further observations, asked find amended, incompatible Articles taken together. 18. 1997 ruled “Under ‘the or newspapers texts language, periodicals not, may prohibited Interior. Newspapers abroad also prohibited’. absence statutory provision establishing conditions circumscribing legality decisions basis provision, restrictions Minister’s power derive need reconcile interests he responsible respect due freedoms, press. such court, duty-bound banned poses these warrants infringement freedoms. Contrary assertions, thus exercised Interior, supervision courts, combined provisions Protection Rights Fundamental Freedoms …” 19. other hand, quashed “By impugned viewed text 1881. Having regard protecting, particular safety finds content provide sufficient legal justification serious press embodied decision. follows above considerations Association Ekin good grounds maintaining wrong reject, means judgment, application set aside distribution, 20. registered letter recorded delivery received 2 December 1997, presented claim compensation pecuniary non-pecuniary damage caused unlawful more than nine years. implementation amounted tortious conduct part authority. estimated overall losses had sustained 831,000 francs (FRF), FRF 481,000 resulting financial loss deriving directly sales throughout To date reply rules proceedings, silence counts refusal claim.
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7. The applicants are former members of the Turkish National Assembly and Democracy Party (DEP), which was dissolved by Constitutional Court on 16 June 1994. 8. public prosecutor at Ankara Security accused them having infringed Article 125 Criminal Code made repeated applications – 27 November 1991, December 1992, 25 May 1993 2 July for their parliamentary immunity to be lifted. On March 1994 Assembly, deliberated basis application decided lift applicants’ under 83 Constitution. 9. Mr Dicle Doğan were taken into police custody orders Court. 4 Mrs Zana suffered same fate. A few days later ordered detention those three in extended until 10. While custody, no statements police. 11. they brought before a judge placed pending trial. 12. DEP party’s MPs vacate seats. 13. Sadak 1 trial 12 14. In meantime, 21 had filed bill indictment he treason against integrity State capital offence Code. accusation based firstly activities that alleged have engaged behalf Workers’ Kurdistan (PKK) (harbouring militants providing one with medical care, negotiating local leaders or proffering threats make help PKK establish itself regions) secondly content oral written expressing support activities. evening offences announced news bulletin publicly owned TRT television channel. 15. 8 1994, date final hearing Court, learned prosecution proposing alter charge belonging an armed gang within meaning 168 invited submit observations this new characterisation offences. lawyers not present because protest Court’s refusal adopt procedural measure requested it. 16. judgment sentenced four fifteen years’ imprisonment 168, paragraph 2, It rejected Code, provided death penalty event State. 17. found it established intensive “separatist” activity instructions from PKK, separatist seeking Kurdish south-eastern eastern Turkey. context noted following points: run-up 1991 election given speeches banner meetings where slogans been shouted such as “Long Live PKK” “Strike guerrillas strike, Kurdistan”; provoked unrest among population created atmosphere undermined authority State; worn colours when sworn 1991; congresses political parties, HADEP DEP, flag hoisted instead Republic described occupier enemy; conversations recorded between heads clans (aşiret reisi) Anatolia revealed used try persuade latter join PKK; harboured militant his official residence, helped him obtain treatment fraudulently induced pay hospital bills; another home preparing who already involved field operations region; all foreign countries spread lies about intended uphold PKK’s views. also co-defendant witness owing danger might suffer reprisals hands PKK. 18. When classifying facts instant case rather than referred case-law according defined crime terms ends pursued means deployed. Treason could only out if acts committed likely pose real threat State’s survival. Acts violence terrorism fall scope serious enough threat. other hand, merely belong organisation considered acting purpose contrary 125. material element lay fact persons question belonged aforementioned type complete system disciplinary rules hierarchical structure. context, necessary defendants themselves posing However, did require specific mental element, namely offenders aware illegal organisation. 19. appealed points law 20. argued indeed punishable 21. submitted part criminal proceedings purpose, suppress opinions Parliament defending cause. They contended convicted special court independent impartial tribunal. asserted denied fair because, things, equality arms respected. complained particular assistance lawyer during custody; representatives access documents file preliminary investigation; pressure bear government defence subject reports secret services courtroom sometimes impeded; never allowed Court; permitted examine witnesses interviewed investigation experts appointed prosecution; examination sound video recordings valid reason; evidence conviction read hearing; further heard second sought dismissed difficulties encountered certain delegations attempting enter requirement hearing. Lastly, criticised laying pro-Kurdish organisations, whether legal illegal, door taking account findings nature probative value regard accusations levelled them. 22. 26 October 1995 Cassation upheld decision first instance guilt sentences imposed 23. hand held some reasons its stand. telephone head statutory provisions safeguard freedom communication infringed; diaries contained names addresses prove accusations; (including two applicants) press conference regarded offence. 24. assessing each guilt, took various communiqués issued. oath racist ground omitted any reference identity, waging war population, uprisings suppressed using methods genocide national rights people 25. Regarding Leyla Zana, following: she undergone training camp Bekaa (Syria); clan Turkey, advising prevent attacking targets encouraging addressing “Mr Secretary General”; twice visited encourage Kurdistan; handed over opponents abducted militants; Apo [Apo is diminutive refer Abdullah Öcalan, PKK]” Kurdistan”, demonstration Cizre, “slogans people”; declared German felt like foreigner Turkey parliament, member, constantly decisions whose aim wipe people; Brussels addressed participants rostrum draped flag. 26. Orhan Doğan, knowingly organic links costs reimbursed Assembly; return organisation’s camps; embassies effect villagers leaving Şirnak August 1992 actually fleeing forces; stated demonstrations repressing ways, while describing army. 27. Hatip Dicle, put aims said destroy asked attending meeting Diyarbakır observe minute’s silence honour dead, asserting army come region repress interview Belgian daily newspaper Kurds’ ideal would fighting since Treaty Lausanne (1923); movement popular roots; Kurds should expelled territory even cost lives; resistance ensure survival fight amounted attempt crush claims nationhood; attempted justify terrorist attack cadets military college infantry conscripts, killed twenty injured, saying everyone uniform potential target virtue international conventions laws war; party solve problem banning 28. regarding Selim Sadak, established: accept inhabitants village Şenoba (in south-east Turkey) relinquish positions guards, explaining liberation soon launched fascist officers escorting suspicion active torturers, stating repression Turks demand form retribution; Neuchâtel (Switzerland), guerrilla independence communiqué sent forces.
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7. The circumstances in which the applicant’s brother disappeared are disputed. In accordance with former Article 28 § 1 (a) of Convention, Commission conducted an investigation assistance parties and obtained documentary evidence oral depositions. Delegates from heard witnesses on 17 September 1999 Strasbourg 20 to 22 Ankara. They also visited offices anti-terrorist branch at Ankara Security Directorate 1999. Evidence was taken following witnesses: applicant, eleven people who had been custody material time alleged that they met Kenan Bilgin there witnessed ill-treatment he subjected, two public prosecutors investigated case, a deputy director police officer Directorate. 8. At 10 a.m. 12 1994 brother, Bilgin, arrested taxi rank Dikmen (Ankara) by plainclothes officers. His family not informed. 9. applicant received three anonymous telephone calls someone confirmed his being held Gölbaşı other prisoners. He told brother’s condition serious administered serum. During last conversation, took place 15 November 1994, caller said moved elsewhere. 10. On 3 October Bilgin’s lawyer, Ms Hatipoğlu, contacted Human Rights Turkish National Assembly. She lawyers made written statement press. 11. By undated letter requested information Principal Public Prosecutor Court about health, indicating 11 1994. 4 similar request put date arrest 13 12. letters reply dated no one name interviewed warrant issued for arrest. 13. same day, representatives Association case. association appeal provincial governor be brought before prosecutor, while managed obtain statements signed ten prisoners between 27 those dates subjected ill-treatment. 14. Hatipoğlu wrote enquire what become Bilgin. explained although several affirmed seen him custody, denied detained. 15. 9 lodged complaint prosecutor against officers duty namely Inter alia, gave names testified building as them. 16. Furthermore, hearing 21 criminal proceedings Court, defendants, whose Mr Yılmaz, having Another defendant, Çoban, court threatened him, telling unless confession would meet fate 17. When making bail application February 1995, Demir, were together spoken twenty-two days intended arrange disappearance. asked Demir inform family. 18. Government’s position it true member Revolutionary Communist Party Turkey (TDKP), wanted security forces. As stated 23 December Ministry Justice, records showed or 19. Murat informed entered record. Ercan Aktaş August systematically during period through aperture cell-door window. Talat Abay 8 fellow inmates constantly 18 19 whom already knew, toilets. Bülent Kat make out window group dragging prisoner along ground bathroom. Approximately hours later person carrying doctor’s bag leave subsequently learnt prisoner’s Cavit Nacitarhan 6 occasions led away, unclothed, Müjdat Yılmaz 26 cries Through dragged distress officers’ questions such as: “What is your name? If you do tell us name, we will kill you.” Later, toilet call out: “My Bilgin! I am registered Tunceli Records Office. want me. Make sure opinion this!” Salman Mazı One man poor health. introduced himself since record feared executed. Emine she 25 recalled into September, but my record.” Ayşe Nur İkiz Akdemir me disappear.” According her, difficulty walking body bore marks torture. Özer all cell no. 6. severe every day. away naked torture sessions back afterwards. saw four interrogation interrogated so have recognising cried toilets where taken: disappear! My later. (b) Complaints petition governor’s office 20. eyewitnesses custody. fate. lawyer alleging its (c) Documents relating 21. referring complaints representatives, Selahattin Kemaloğlu, instructed prosecutor’s Pendik (Istanbul) question matters raised. start allegations. 22. 24 Interior Foreign Affairs advised police. 23. Directorate, Ülkü Met, sent office, relevant parts read: “... Between carried 249 arrests. Of arrested, 115 principal remaining 134 released. addition 16 Committee Prevention Torture ad hoc visits did report any case unlawful detention ... interests effective investigation, persons remanded whether members different organisations, never see each confrontation becomes necessary. Even purposes answering nature, remand individually accompanied warder. organisation cells far apart sole aim appear claim known mislead judicial authorities, discredit obstruct operations illegal organisations proud their 149-year history. Certain seek destroy democratic secular Republic; commit crimes, arguing acts legitimate, allegations present State.” 24. Nazmi Şarvan, Justice that, started affairs TDKP, list members. 25. January 1995 Prosecutor, Özden Tönük, charge investigation. “The (CPT) Prison transferred spoke them, windows when toilets, room photographed. reveals section premises contains individual door enable communicate pass them food can only opened outside warders. aired ventilator attached ceiling impossible happening outside. Prisoners floor above interview complies European standards. numbered small sheet paper bearing door. Persons photographed fingerprinted technical services 31 771 Directorate; these, 160 released police, 574 judge 37 branches Thus, exception disappearances inquiry CPT unannounced visit reports premises. Considering purported know either state record, safely deduced regarding disappearance aimed misleading harming attempted mount organisations.” 26. March Kemaloğlu witness Nacitarhan, Akdemir, Mazı, accused extreme left-wing organisation, TDKP. depositions taken. Nacitarhan: “I remained twenty-four days. However, after second day cry ‘My has records; if anyone released, please press, human rights [associations] case.’ why over twenty-one dressed underpants. strength stand unaided supported people. After release, photograph newspaper articles how recognised him.” Akdemir: times disappear. records.’ cell. That witnessed. [I] certify signature mine.” Mazı: occasions. stage, noticed arm often severely tortured. eighth weak voice: Dikmen. still records. probably going get here, contact press.’ warder then appeared reprimanded me, taking away. Later newspapers.” (d) Demir: him. We stopped and, ‘the lawyer’, really lawyer. continued: ‘I here worked printer’s. judge, here.’ too sounds groans. mine confirm content. newspapers seemed more exhausted tired [in custody].” (e) Yılmaz: content 2. torturers disappear.’ like times. able recognise these men [the officers] because undressed wife eyes. smaller than approximately 1.80 m tall receding hairline called ‘boss’ others. without hesitation. came prison.” 27. Referring witnesses, enquired tortured 28. instructions Üsküdar 5 April cousin brothers gone Association, consulted certain claimed order pending trial. 29. given Kısıklı station. repeated news brother. 30. referred statement, Pertek (Tunceli) locality register births conduct doing regard possibility may part PKK (Workers’ Kurdistan) activities. added considered hands attempt damage police’s reputation. 31. 1996 district gendarmerie enquiries close establish joined ranks PKK. 32. gendarmes lived village born. left forty years earlier 33. July 1997 carry search reads follows. “An İrfan Dikimevi (Ankara), signs life since. Other belongs attempts reputation, authorities born resides. possible reach conclusion this wish department eventuality, hiding secret fact used view damaging reputation should grateful result findings.” findings delegates 34. delegation It alterations layout end There now thirteen (three converted single cell) running side long, narrow corridor. found empty corridor, corridor leading off adjoining prisoners’ numbers cards inserted slots doors reverse facing outwards. said: “Prisoners seeing speaking movements official regulations. Dishes passed directly required back. numbers, change custody.” experiments (i) Two shut cells. loud. (ii) A delegate could hear, speak delegate’s voice noise ventilation system prevented said. first floor. 35. does show 29 including Öğün Sahir Ayse September. 36. Ankara, 37. twenty operation forces localities revolutionary movement. 38. previously 1977 spent prison. movement 1976 list. 1993 Gaziantep (a town south-east Turkey) possession false identity papers. twenty-five threats releasing warning him: “This time, safe, escaped life, next catch you, alive.” 39. Coşkun, very shape drip. 40. applications Interior, Secretary State despite prisoners, ever 41. office. unaware started. attend Istanbul once twice 42. currently lives Germany, granted political asylum. detained changed 43. description held. ran length torture, bathroom warders’ larger better furnished equipped windows, 30 cm across, observed. Both pressing head firmly window, thus 44. doubled up chamber. university lecturer. groans coming lecturer’s. evening, session cell, prisoner, groaning You relative mine, Hüseyin Özaslan, Prison. Could detained?” this, tried reassure man, saying eyewitness longer regarded disappeared. few later, returning another lasted night, again. 45. always practice form custody: “We 46. personally. visiting prison station her conversation. 47. For eighteen nineteen daily p.m. remainder medical attention remove injuries body. 48. described events follows: firstly Gölbaşı, cooperated them; 49. period. organised meeting some 50. related how, general, groups five. apply prisoner. allowed go shut. Prisoners’ names, own discovered fastened doors. photographs immediately realised person. closed, looking Although angle restricted, nearly eyes blindfolded. many across 51. saying: Please case.” repeatedly: Tell name. Do shout.” 52. operation. among again shape. evening panic closed throughout evening. Police directions. Since opinion, executed October. 53. short discussion certifying 54. witness, recorded until admission hospital. merely accepted account. 55. fifteen detained, held; week number risen fifty. 56. nephew Parliament occupied his. began Cavit, swollen covered bruises walking. clear chamber, diagonally opposite 57. interrogated, turn suffer treatment. most was: name?” turned grunts session, identical others: groans, question, insults, cries. went on: “Suddenly, total silence. chamber black inside. looked doctor, out, behind them.” 58. warders give bread water. kept 59. identified 60. practice, depended proceeded. 61. least 62. testimony benefit prosecutor. 63. Rizgari, occupied. While 64. stayed witness’s home almost 1985 1986. 65. night toilet. eye spoken. 66. confirming addition, trial (f) 67. student 68. sessions. near nights name?”, once, five six seconds, front distinctly, walk feet. learnt, prison, 69. groaned agony 70. accompany washed faces wash basins, opportunity (g) Çoban 71. 72. teacher. taught aiding abetting organisation. 73. reported concerning Commission. altered. ventilated open ceiling. entrance. closer additional seven third detention, door, own, metres Association. agreed effect. 74. intimidated, presence wife, school taught. “You eat State’s plate. allow dirty Bilgin.” threats, deposed (h) 75. 76. closest relatives premises, endeavoured keep watch wall. remain upright. insulted pulled backwards hair. occasion, circumstances, occasion incapable standing up. Tunceli. hold hair hitting concerned 77. raising one’s converse niece. 78. deposition identify 79. TDKP 80. interrogation. 81. treated differently Nacitarhan. separately toilet, arms washing washroom, there. whispered: think Inform intervened lying bed 82. giving surname, province came. (j) 83. husband 84. asking water bad her: September.” (k) 85. Çanakkale. 86. Bilgin”, caught glimpse, dark bald moustache, 87. describe (l) 88. 89. detention. intensive he. officers, supporting arms. say: “He milk. drinking milk.” seen, 90. principle other. whispers basins themselves 91. drafted questioned . (m) Tönük 92. responsible contained actual conditions quarters holding 93. inspected Without details, inconsistent. declined comment conclusion, “Accordingly, concluded true.” 94. time. (n) 95. Elmadağ (Ankara). 96. assigned 97. summarised enquiring replied stage supplied statements, shape, convinced 98. “At cases disturbed this. reflect truth. replies departments. documents joined. file returned institute under laws offence refuse cooperate prosecuting failed produce offences committed. respond, unable eyewitnesses. enjoyed sort immunity detained.” 99. relatively sensitive year, thousand custody; we, prosecutors, inspect prisons stations. noises from. sound crying pain subduing With investigate best ability. strong suspicions manage far. Kurdish origin line monitored. thirty ago.” (o) Mehmet Karataş 100. compiling 101. noted them: surname accused; accused’s mother father; birth; omitted fairly strict regard. departmental Court. 102. indicated labels handles affixed 103. disappearance, subject say connection invented hostile government totally unfounded. 104. rise charged served sentence. activities containing details membership (p) Met 105. 106. complaint, begun requests information, 107. routine undertaken basis received. large files convicted belonging organisations. operation; claims concocted militants. 108. responsibility searches collecting personal effects getting sign setting out. enter 109. dismissed director, Inhuman Degrading Treatment Punishment was, however, CPT, found: “Torture forms important characteristics 110. rejected assertion investigations
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11. On 29 April 1962 the applicant married Mr A. Gigliozzi in a religious ceremony which was also valid eyes of law (matrimonio concordatario). 12. 23 February 1987 petitioned Rome District Court for judicial separation. 13. In judgment dated 2 October 1990 granted her petition and ordered to pay maintenance (mantenimento) 300,000 Italian lira per month. 14. meantime, on 20 November 1987, summoned appear before Lazio Regional Ecclesiastical Vicariate 1 December “to answer questions Gigliozzi-Pellegrini matrimonial case”. 15. went alone without knowing why she had been appear. She informed that 6 husband sought have marriage annulled ground consanguinity (the applicant’s mother Gigliozzi’s father being cousins). questioned by judge stated known consanguineous relationship with but did not know whether, at time marriage, priest requested special dispensation (dispensatio). 16. delivered 10 deposited registry same day, consanguinity. The court followed summary procedure (praetermissis solemnitatibus processus ordinarii) under Article 1688 Code Canon Law. That is where, once parties defensor vinculis (defender institution marriage) has intervened, it clear from an agreed document there annulling marriage. 17. 12 notified 18. 21 lodged appeal Roman Rota (Romana Rota) against Court’s judgment. submitted first never received copy question complained heard submissions until after its 1987. alleged breach defence rights adversarial principle account fact advance either application or reasons application. therefore prepared any and, furthermore, assisted lawyer. 19. 26 January 1988 clerical error notification sent 20. 3 observations effect “had acted correctly appealing judgment” (la convenuta aveva agito giustamente facendo appello contro la sentenza) Court. Accordingly, summons 9 March reporting 21. would examine 13 twenty days submit observations. applicant, who still unassisted lawyer, observations, complained, inter alia, adequate facilities preparation defence. gave details financial arrangements between herself ex-husband stressed annulment substantial repercussions ex-husband’s obligation maintenance, only source income. 22. 1988, May upheld decision operative provisions judgment, request full having refused. 23. become enforceable superior ecclesiastical review body, referred Florence Appeal declaration could be enforced (delibazione). 24. 25 September 1989 Appeal. 25. appeared set aside Rota’s infringing rights. unable documents filed proceedings, including vinculis. refuse declare enforceable, submitting that, event, proceedings reopened order allow reply canon law. requested, alternative, event should monthly rest life. 26. 8 1991, 1992, declared enforceable. found opportunity given sufficient ensure complied moreover, freely chosen bring able exercise those “irrespective features law”. hold jurisdiction award “for life”; as far possible interim (assegno provvisorio) concerned, provisional arrangement, pointed out proved needed money. 27. appealed points law, repeating submission infringed courts. submitted, among other things, omitted take following courts: cannot represented lawyer; respondent relied petitioner he questioned; vinculis, acts respondent’s guardian, obliged lodge appeal; must personally party their particularly autonomous. repeated detail possibility Furthermore, instance too quick. criticised case file relating courts, might yielded evidence favour. Besides shown need entitled maintenance. 28. During give produce them Cassation, clerk refused grant receive “which rights”. 29. 1995, June Cassation dismissed appeal. It held, all, courts; case-law authority support view while assistance lawyer requirement forbidden: taken advantage possibility. held very short prepare amount infringement because indicated more time. With regard decided otherwise, mistakenly life” failed show it. rule examined 30. From 1992 ceased paying began enforcement payment serving notice (precetto) him 1994 objection Viterbo Court, which, 14 July 1999, his ruled no longer 19 2000 reached agreement (under terms withdrew another instituted claiming joint title property).
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7. The applicant is a Lithuanian national, born in 1974. 8. From 5 October 1993 the served sentence of nine years’ imprisonment for theft, possession and sale firearms. On an unspecified date early April 1998 he was transferred from Lukiškės Prison to Pravieniškės (Pravieniškių 2-oji sustiprintojo režimo pataisos darbų kolonija). 9. moment when arrived placed separate segregation unit prison (Sunkiai auklėjamųjų būrys – “the SAB”), located Wing (V lokalinis sektorius). 30 June released SAB detained under normal conditions Section 13 later 21 (13 ir brigados), 1 (I 20 January 1999 solitary confinement (Baudos izoliatorius). He again on 1999. stayed until his release 14 2000 following presidential pardon. 10. present case concerns applicant’s detention treatment there 2000. 11. evidence taken by Court delegates Vilnius 25 May then 26 statements may be summarised as follows. (a) General (i) 12. consisted dormitory where twenty-two inmates were held, small kitchen, relaxation room shower cubicle. In view, only six eight persons could held SAB, it accordingly seriously overcrowded. Only had windows. There no windows or ventilation kitchen room. A window installed during renovations 13. corridor leading courtyard outside. yard closed off above with wire netting, which covered snow wintertime. As result lack light winter. 14. toilets Asian-type “squat” holes, lacked partitions. Inmates used one order respect each other’s privacy. windows, system after late smelled terribly. 15. access laundry washing private clothes; therefore done hand bowls shower. Drying such items complicated. addition, bedding allowed. Every inmate received administration bed linen towels, regularly washed laundry. 16. administrative officers visited distribution meals check-ups. governor visit time time. Doctors went very rarely. way communicating outside world telephone. 11 felt that fever. His condition so serious missed regular check-ups at lay bed. asked guards send doctor. also special telephone line connecting medical service. However, answered, lunchtime. did not service again. Instead, orally doctor several times day. staff 16 confirmed caught cold. told stay 17. No work, recreation other meaningful activities organised unit. reasonable activity permitted playing chess. conceded restrictions watching television, reading listening radio. (ii) regime (Wing 1) 18. Sections prison. Each five wings intended hold 300 prisoners. approximately 400 detainees 1, 12 sections namely dormitories adjacent toilet areas prisoners held. total 32 sleeping placement there. accommodated 24 inmates. maximum people 21. air, especially night, due overcrowding. Two-tier bunk beds almost completely hidden these beds, thus obstructing flow fresh air During day, allowed circulate freely within wing its stroll yard. 19. Sanitary deplorable. Toilets, sinks facilities infested germs. various leaks water pipes old, rusty mould. holes partitions between them. Toilet paper provided sporadically. stated difficult keep himself clean once week designated days. Showering day penalised. Shower worked days week, always summer, hot available weekends. Private clothes sink. 20. Food three 2.17 litai (LTL) per prisoner allocated authorities catering Prison. food cold, heat it. Vegetables added course week. Lunch impossible eat awful taste least Overall, prepared sanitary manner. At found wood shavings, little stones pieces metal food. Supplementary canteen diet been recommended big enough all prisoners, shifts. number shift greater than places canteen. who would left without shop obtain additional acknowledged couple hundred account shop. limited list given prisoners’ relatives personal visits. receive relatives. Qualified doctors occasionally. It have permanent, professional assistance infirmary. infirmary medication, painkillers. All illnesses treated aspirin paracetamol. heart disease. admitted, however, undergone appropriate cardiology test alleged knee problem huge overweight. performed operation facilities. acknowledged, matter primary urgency. Once out prison, sought high cost. further gastritis, but refused prescribe better him 22. Following Minister Interior, August November 1998, subjected “standing regime”. lie wake-up call 6.30 a.m. lock-in 10.30 p.m., sixteen hours Exceptions upon recommendation complained many detainees, particular weight problems, unable endure this regime. found, fit comply order. Upon complaints Ombudsman revoked. alleges nevertheless maintained. 23. work limited. Weather permitting, possible engage open-air sports exercise yard; possibilities existed few concerts cinema shows. retraining educational programmes 24. initially about interference right visits interview afforded sufficient opportunities visits, particularly intervention complaint part. (iii) cell 25. 6 sq. m another person. toilet, sink washing, table middle (b) Specific acts body search 7 26. some Afterwards stopped zone usual security check establish whether any illegal items. chief guard, P., conducted search, while two looked on. P. take clothes. When underwear, female officer, J., came into strip naked. officer threatened reprimand non-compliance. submitted order, taking presence Ms J. She rest smoking. body, including testicles, examined male officers. wore gloves, touching sexual organs relatives, their hands. ordered do sit-ups concealed anything anus. unauthorised item him. purpose ridicule front woman. Alleged victimisation absence review 27. According applicant, lower-ranking poorly qualified, inferiority complex, showed authority degrading tolerated constant consumption alcohol working hours. Many allegedly employed secret informers administration, return promises parole conditional release. actions concerning provocative. daily abuse because firm opposition criticism general policies penitentiary Lithuania, well specific gave examples victimisation. 28. arbitrary, disciplinary record before date. even detention. established association mutual support called Aim. elected President association. imposed penalty, depriving conditions. official ground basis information informer, fact beaten prisoner. denied beating, stating incident intervening. Department unlawfulness penalty rejected unsubstantiated. 29. 10 buy suspended month, warning threatening force. against penalties. application member, Officer Kmieliauskas, initiated penalties, examined. 30. 15 penalised leaving territory 1. wash execution controlled Kmieliauskas. said member meant manifest complain staff. being observed. Kmieliauskas accept done. 31. absent, confinement. instantly conveyed handcuffs. Within hour, returned After hearing certain officers, decided breach duty immediately 32. written submissions Court, 23 warned still asleep 6.40 a.m., ten minutes regulation call. meeting insisted 28 queuing beyond privacy waiting 33. December “confidential sources” informed staff, B., involved criminal relating falsification documents. lodged B. behalf transmitted Ombudsman. 29 high-ranking requested complaint, promising dismissed, onward transmission complaint. forced leave Ombudsman’s investigation. filed abusing authority. claimed, particular, deliberately provoked conflicts This dismissed 34. met governor, granted permission greet them Christmas oral, posted writing board. valid 27 1998. tried go 3. check-point wings, enter 35. sanction “trespassing” December, up area around Interim Rules require cleaning unseen. supervise job 36. result, punished fifteen days’ announced hunger strike considered arbitrary. wrote State media. 8 sister lied her strike. 9 biggest daily, Lietuvos Rytas, article page 2, sixth strike, 1999, prosecutor advised seek compromise administration. discontinued newspaper, Akistata, printed title “Stirring trouble reason”. “doing nothing [to conform regime] lodging complaints”. thereby expressed biased attitude towards 37. sanctions unlawful suspended. SAB. 38. whole, revealed ineffectiveness internal efforts allegations ill-treatment. penalties sole reference regard actual circumstances. independent impartial 39. effective (Pataisos įstaigų laikinosios taisyklės) published. defined legal administration’s actions. publicity important document act arbitrarily. lacking both prisons. every section should copy Rules. (iii)The control correspondence Convention 40. first letter addressed European Commission Human Rights, dated 18 shown already opened. write down contents, give back Subsequent letters opened arrival 41. stating, inter alia: “On 2 [the applicant] Court]. Having acquainted myself contents ... I like set considerations facts [therein] true pursuant Interior prohibited convicted save specified schedule, if ..., [but] prevented lying Valašinas says elderly, handicapped [prisoners] [that] opportunity [The accommodate more Rule § requiring ‘no wing’. [However,] practical possibility implement view rapid increase (the limit 1,830 [detainees], 3 2,109). regards education Kaunas County point adults founded support, ‘Aim’ We think establishment welcomed practice, up, President, Valašinas, defended interests ‘authorities’ underworld ...” 42. pursuing sent 43. Registry November, They included transcript question discussed. acting “explained has apply Republic is: Prisons Department, Ministry Justice, Ombudsman, Office Prosecutor institutions. familiar procedure categorically required Court] me [his] explained (7) [stating that] ‘the (except those prosecutor) are subject censorship’. Given categorical request applicant], shall addressee”. 44. March February him, through enclosed therewith original Registry’s censored: stamp receipt, handwritten remark same ordering letter, confirmation 45. delegates, handed reached Court. 46. witness 47. admitted squat year carried out, hole separated cement ceramic tiles. 48. 2.7 13, 3.2 Code kodeksas) minimum space areas, Health norm m. overcrowded detention, meaning domestic requirements situation improved Amnesty Act 2000; occupancy 2,303 1,782 2000, lowest level years. 49. Prisoners linen, dried free charge weeks. Sinks 200 g soap able 50. products, hygiene, month. Prices excessive, reviewed regional price levels. While cash shop, resources family, salary financial benefit orphan, transferred. These accounts debited purchase 51. canteen, normally 500 once, times. denied, meal Five shifts enable never deprived heard quality checked norms met. 52. health necessary supplied incompatible norms. Nor needed supplementary charge. 53. Previously, toilets; they renovations. Currently equipped government decree 1995 paper. budgetary difficulties complying decree. distributed recent months. money postal essential connection according witness, noted LTL 0.50 0.60 roll. worst, kinds used, newspapers, drew parallel toothpaste toothbrushes. charge, 54. wood-processing factory, proportion commercial orders. contract permit production create employment detainees. 115 department 55. visit, visitor must accordance Such include stripping provide person sex conduct strip-search. 56. event. applicant. supervised Her functions accompanying visitors’ handing over conducting search. she delegation’s visit. 57. interviewed woman present. investigation made. 58. know took part If stripped naked woman, violation J.’s functions, theoretically practically attended 59. described offences system, Disciplinary consisting deputies heads sections. commission examining violations discipline. occurred senior head report opinion disclosed detainee provisions detainee, submit observations. presented example, anonymous witnesses incident. exceptional cases, accusations having witnesses’ names. detainee’s observations Commission, impose penalty. absolute requirement appeared prior reaching decision. Witnesses hearing, form. commission, together perpetrator. 60. appeal commission’s Where higher rank deputy quash himself, director Department. Although revoke recommend so. most cases recommendations followed. general, complaining aspect hierarchical principal remedy 61. members similar offences. aware member. however that, competent 62. Rules, pertaining library. unlimited new prisoner, inform rules, signature. 63. hardly knew personally period that. participated foundation Aim purposes statute, defend rights welcomed. functioning becoming leader Aim, forgot obligations. ignored lawful orders occasions breached 64. punishments August, 10, 15, October, nature punishments, minor. deprivation temporary removal entitlement socio-economic benefits, make purchases parcels warnings essentially remarks file. chores (budėjimas eilės) insignificant jobs. minor, breaches discipline serious. confinement, serious, witness. non-compliance legitimate failure event, none humiliated amounted enforcement 65. asserted good reasons punishments. management carefully assessed properly weighed validity conclusions mentioned example events clear chore Regardless alleging task doubt, case, overwhelming suggested indeed perform task. 66. “was doing complaints” published 19 newspaper matters crime, law consider statement. prejudice activism amongst presidency organs, reason. measures restricting discipline, applied equally all. 67. reflected expunged Thereafter common cooperated organising cultural Furthermore, behaviour, intervened pardon, eventually granted. Their cooperation continued release, regarding organisation 68. exhaustion remedies made explain relevant procedural requirements, hinder pursue application. sent, 69. section. 70. belonged so-called élite jobs why obligation whilst advance unsupervised, want observed degrading. clearly attempt get others Therefore permission. subsequent refusal duty. 71. people, substantial reduction 72. twenty detained, whereas frames springs, standing four legs cm high. side 92.2 televisions, video-player, radios, effects adequate bedding. dormitory. seem space, air. 73. sanitation leisure use p.m. tiled partial since waist high, half walls, doors just holes. sight. somewhat muddy unduly smelly. learnt paid cleaning, punishment. 74. brought main courtyard, size dormitory, grass, plants, outdoor tables benches weight-lifting equipment. limitation wear uniform. Most tracksuits T-shirts. Detainees own area, saw clotheslines courtyard. come liked whole billiard rooms. soft armchairs, chessboard audio-system Big heating radiators seen accommodation areas. 75. People directly line. basis, sick 76. same, except freshly painted furnished, toilets, created. 77. moved apartment block 775.2 living large strolling twelve wing. 372 78. 86.5 holding beds; double beds. Several daytime entitled throughout building stools sit 79. 55.3 side. ventilation. open delegates’ remained shut winter someone ill. 80. dormitories. partitioned bad dirty condition. smell toilets. walls installed. 81. thirty time; renovated area. installations mould generally adequately. next showers deep basins 82. rooms seating arrangements people. ovens saucepans quantities soup (sometimes meat), vegetables porridge cooked. quantity service, hygiene. seemed spotless apart dampness floor. dished hatches 83. consultation rooms, dentist’s chair equipment old-fashioned functional. Since twenty-four fever help 84. building, narrow detained. locked wall couchette train. low cupboard. washbasin. painted, cupboard, daytime. 85. September unsubstantiated solely contested arguing management, statement explanations, beating duly 86. plausible cast doubt conclusion 87. unfounded trespassed wings. decision known prohibiting trespass. justifiably 88. regulatory call, 89. imposing chores. By detainees’ comments, whom inmates, trespassing claimed oral 3, men, justified. 90. duties material collected spot representative office owing them, avoiding executing himself. supervision amount unjustified honour. 10.50 Some nonetheless alone. duties, testified concluded 91. on-the-spot language, citizenship, grounds examine far concerned meanwhile wrongdoing intent provoke P.; nature, Office, specify single rights.
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7. On 11 February 1980, the applicant pleaded guilty to manslaughter on ground of diminished responsibility in respect death his 62‑year-old landlady whom he had battered with an axe. He was sentenced life imprisonment. The court acted medical evidence that a gross personality disorder such degree amoral. consultant psychiatrist said report at trial that: “... although [the applicant’s] instability might get less over years as matured, should be sent prison, eventual release approached great caution.” 8. initially Category A prison due concerns about dangerousness and risk escape. involved work address offending other problems. successfully completed Anger Management Skills Courts Hull Special Unit or 1989 conduct noted significantly improving from point. In 1993, transferred B prison. 9. applicant’s tariff period 15 expired 25 June 1994 (this minimum fixed by Secretary State concerning requirements retribution deterrence). Parole Board month agreed transfer C deferred decision until after Discretionary Lifer Panel (DLP) conducted hearing matter under new provisions Criminal Justice Act 1991 (“the Act”). 10. 13 December 1994, held pursuant section 34 Act, DLP decided it would not safe but recommended D (open prison), review 12 months instead usual two year period. March 1995, months. 11. November failed obtain leave apply for judicial State. April 1996, Court Appeal refused review. 12. Following positive drugs test, follow July 1996 awareness course. 13. 9 October case came before another DLP. Reports made considerable progress preceding six need phased re-introduction into society. psychiatric dated 24 stated much greater control behaviour, personal maturational developments taken place same person when entered It concluded applicant, who shown reclusiveness narrowness interests, needed however test increase social interaction order able cope living outside issued time personality, described psychopathic, some capacity change that, considered serious public, any licence have carefully planned, problems were likely arise following long institutionalisation lack family support. did recommend paragraph 5 letter said: “The panel satisfied what advanced ‘exceptional circumstances’, namely good plan, fact is] four beyond tariff, has] pre-release course C, had] previously been status prospect employment, amount exceptional circumstances without through open conditions posed unacceptable risk.” 14. 20 rejected recommendation directed early case, 18 1996. persuaded behavioural satisfactorily addressed while closed conditions, nor benefits sufficiently worthwhile stage balanced against scale outstanding offence, related potential public. 15. applied both decisions, alleging inter alia wrongly “exceptional circumstances” test. Leave 1997. 16. 21 1997, re-applied Mr Potts DLP’s recommendation. found correctly statutory granted stated: prisoner has spent custody tested being released community: satisfactory completion testing is indication stresses therefore cogent factor take account all available material deciding whether can safely released. Such approach undoubtedly sensible … I think arguable State’s recategorise this irrational one no reasonable Home could reasonably reached.” 17. light grant leave, end hearing, indicated reconsider 18. 1998, informed reconsidered conclusion conditions. 19. again case. continued note progress, including expression genuine remorse offending. officer 31 1997 advantage treatment programmes completed. “settled fulfilling plan” which him continuing legal studies commenced receiving support circle friends built up contacts Conversely, benefit further developing methods dealing interpersonal difficulties increasing relationship skills. 20. By 16 declined (open) “3. reaching you are yet suitable release, took nature index your violent disruptive career (while recognising also absence violence since 1989), still seen having psychopathic remaining areas concern identified [Mrs B, higher psychologist]… These egocentricity, disregard points view people limited ability solve frustrations sexual ambivalence referred [Dr G] merited investigation, particularly emerged sexually abused youth. accepted B’s] assessment necessary identify manner offence-related carried out; reasons underlying offence require investigation. these circumstances, presented too public justify release. 4. Moreover, 19 plan developed, complete. At present accommodation. Based factors impression formed unable community, directly via employment scheme. 5. coming conclusion, length custody, opinion majority writers witnesses managed above done B] say within out, danger counter-productive stagnation frustration part spend protracted category ‘C’ 6. To allow gradual reintegration next begin 2 time.” 21. 7 psychologist’s attitude original intolerance others, inability deal adequately actions. full required personality. agree matters attend courses anger management, skills communications, arranged regard intervening incident occurred 1998 escorted female officer. After she smoke vehicle, slammed van door her, causing her fall hurt arm. sworn threatening kill adding already killed woman. Prison Rules assault using threatening, abusive insulting words. disclosed impulsive behaviour towards woman trivial incident, clear similarities offence. remained advised co-operated staff addressing concern, saw justification allowing 2000. 22. 2000, renewed application judicially dormant listed Appeal. request amend grounds add complaints independence refused.
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9. On 13 August 1992, following proceedings on appeal, the Arnhem Court of Appeal (Gerechtshof) convicted applicant attempted homicide and sentenced him to eight months’ imprisonment with deduction time spent in pre-trial detention. In addition, imposed a TBS order (terbeschikkingstelling) confinement secure institution (met bevel tot verpleging van overheidswege). The took effect 4 September 1992 expired two years later, 1994. 10. By decision 9 1994, Regional (Arrondissementsrechtbank) prolonged by one year. It was consequently due expire 1995. 11. 18 July 1995 public prosecutor filed request for further prolongation Court, where it registered 19 This based an advice 6 being treated. this advice, recommended because still considered capable seriously aggressive towards other people. 12. examined course hearing held 22 submitted that prosecutor’s should be declared inadmissible since no longer competent prolong his as had failed comply Article 509t Code Criminal Procedure (Wetboek Strafvordering; hereinafter referred “CCP”) which provides has taken within months after submission prolongation. 13. its October 1995, rejected applicant’s arguments more year, taking into account issued treated testimony expert witness, recommending extended others. admitted examination not place time-limit contained CCP reason therefor fact during holiday been able hold sufficient hearings judges having specialised knowledge needed. However, failure observe did imply inadmissible. noted date instant case fixed 20 i.e. period request. that, summons 28 invited appear at copy sent representative. if latter objected fixing date, could have rescheduled earlier recess. concluded all these circumstances general security persons required order. 14. appeal 11 15 January 1996, heard psychologist working under treatment. 15. 29 seventeen days expiry provided CCP. scheduled before time-limit. Moreover, made responsible or lawyer see observed. entailed neither inadmissibility prosecution’s request, nor incompetence examine yet basis respect unsatisfactory reasons stated decided quash and, determine itself 16. After receiving treatment opinion concerning medical condition, extend 17. post-sentence confinement, finally terminated December 2000.
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8. On 13 January 1993 the applicant was detained on charges of armed robbery, burglary and assault occasioning bodily injuries. 9. April a bill indictment lodged with Warsaw Regional Court (Sąd Wojewódzki). The indicted committed together six other persons. 10. court listed hearings for 4, 5 6 May 1994 but subsequently cancelled all them because one applicant’s co-defendants had failed to appear. last those dates, hearing postponed Z.K. (one co-defendants) ill considered it necessary obtain medical report determining whether or not he would be able take part in trial. relevant received at court’s registry June. 11. Two days later set trial 7 September but, September, adjourned since interpreter appear (D.B., co-defendants, Lithuanian nationality therefore follow without assistance an interpreter). 12. first merits held 8 November 1994. heard evidence from four defendants. continued 9 14 In course two hearings, 13. next took place 16 1995. During that unsuccessfully asked remit case Prosecutor order further investigation view indicting his wife. 17 1995, hearing, made similar application stated if granted, attend hearings. Later, apologised behaviour. A 18 started delay emerged certificate by prison doctor ill. day however decided proceed absence because, basis another, obtained certificate, came conclusion misinformed authorities as state health. 19 20 17, 23 March Further were did appeared before court. meantime, applicant, relying previous record psychiatric treatment, examined psychiatrist. 14. 1995 ordered psychiatrists establish tempore criminis acted diminished responsibility. It 26 27 July 15. 22 requested Department Forensic Psychiatry Warsaw-Mokotów Prison under observation. underwent observation 3 October 15 1996. 16. 29 December January, February, 4 1996, release him. He submitted detention remand meanwhile exceeded years putting severe strain family, especially child wife mother needed help. 17. applications dismissed them, holding should continue reasonable suspicion offences which been charged need secure proper conduct proceedings. also length could itself decisive factor militating favour release. Finally, added there no grounds releasing him family situation, particular Article 218 Code Criminal Procedure. respect, relied declaration (who she wish any help him). 18. appealed, stressing three only just commenced. 1996 Appeal Apelacyjny) appeal serious nature 19. Meanwhile, February unknown date observations respect completed. psychiatrists’ reports 21 12 respectively. 20. scheduled August subsequent decision Supreme Najwyższy) 1997 (see paragraph below) “disorganised trial”. particular, inflicted injuries himself. 21. 28 challenged impartiality challenge June 22. 11 They appealed and, stating suffered gastric ulcers. Following inquiries into personal circumstances family’s situation courts, contested decisions eventually upheld appeal. courts reiterated previously given detention. 23. hearing. However, composition panel changed judges withdrawn case. consequence, newly-composed rehear obtained. 12-13, 18‑19 court, considering behaved disorderly manner (he apparently interrupted process obtaining experts) temporarily removed room. second time 24. another dealt Procedure 25. 31 222 § Court, asking prolong co-defendants’ until 30 1997, i.e. beyond statutory time-limit such cases. prolonged fact co-defendant gone hunger strike himself fully justified opinion defendants deliberately obstructed termination proceedings within consequently, gave sufficient extending their Referring had, conduct, specify how prevented completion 26. 1997. 27. – reasons date. 28. again 29. 1, judgment. convicted sentenced eleven years’ imprisonment fine 3,000 Polish zlotys. 30. against first-instance conviction 2
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7. On 19 October 1992 the applicant lent to MJB, a company in Zagreb, 10,000 German marks (DEM) for period of three months at rate interest 27%. 23 November she ZIP, DEM 20,390 one month 20%. 8. As said companies failed repay loans, instituted proceedings against ZIP and MJB Zagreb Municipal Court (Općinski sud u Zagrebu). 9. The its alleged owner Ž.M. commenced on 29 March 1995 when applicant, together with thirty-nine other plaintiffs, filed an action repayment their loans. 10. 17 May court asked applicant’s counsel provide address second defendant. submitted concerned. 11. A hearing was scheduled 4 but it adjourned since defendants appear. It turned out that had not received notice date as indicated incorrect. submit defendants’ correct within thirty days. 12. next 24 January 1996. However, appears meantime ceased exist and, Ž.M.’s remained unknown, ordered request Social Welfare Centre (Centar za socijalnu skrb) appoint legal representative 13. 20 June 1996 informed had, by decision 11 1996, appointed 14. 13 September days certificate from registry Commercial (Trgovački Zagrebu) concerning status ZIP. 15. hearing, 2 December 1999, also due absence defendants. again invited inform whether fact exist. 16. According Government, during 7 2000, decided upon parties’ application return quo ante (zahtjev povrat prijašnje stanje). Due 2000. are still pending before Court. 17. B.J. 30 loans 18. 25 August B.J.’s address. 19. no longer previous detention remand. been released requested notices be sent same addresses before. 20. 27 absence. changed her 21. addresses. 22. 14 February reasons before, is look into criminal case file no. KO-1574/93 court, where B.J., order obtain proper Through found 23. By furnish regarding MJB. 24. document. 25. 1997, documents indicate they date. 26. 26 1998, reason. sixty 27. 6 1998 police He proposed 28. 29. April 30. July issued default judgment (presuda zbog izostanka) available show 31. 22 letter asking wrongly contained information about another firm, instead 32. 2000 existed. day information.
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9. On 4 October 1993 the applicant was arrested on charges of forgery documents and fraud in connection with a criminal investigation that had been opened 10 September 1993. It alleged applicant, assistance customs officer two other accomplices, made false declarations certifying fictitious exports consignments cigarettes which reality sold domestic market. basis obtained reimbursement some excise tax attempted to obtain further reimbursements. The total amount involved, for eventually found guilty (see paragraph 33 below), 15,230,400 old Bulgarian levs (“BGL”) (about 3,000,000 French francs (“FRF”) at time). preferred against were based section 212 § Penal Code, provided sentence ten twenty years’ imprisonment. 10. During preliminary case file transmitted twice from Plovdiv investigator’s office Regional Court so appeals detention could be examined. thus unavailable investigator supervising prosecutor twelve days (between 28 9 November 1993) four February 2 March 1994). 11. concluded 5 April 1994 when indictment drawn up by submitted Court. 12. sat as chamber three judges: president who professional judge lay judges. held its first hearing 12 13 May accused several witnesses heard. defence lawyers requested permission submit evidence. court adjourned hearing. 13. Several times during proceedings wait returned Supreme Sofia, where it sent examination his co-accused Court’s refusals release them bail. In practice, whenever such an appeal submitted, together prosecutor’s opinion. 14. one co-accused’s examined 30 June 1994. did not deal until 1994, presiding ordered production piece 15. next 6 heard insisted appeared. Some pay fines their failure appear. decided seek police establish addresses found. 16. resumed 29 experts Both prosecution sought adduce additional adjourned. 17. Between 20 January 21 1995 Sofia detention. 18. listed 19 ill. hearing, scheduled 1995, judges taken 19. July sitting private expert report. owing illness lawyer co-accused. 20. 3 Court, examining 21. 1996, both 22. After learning prevented ill health participation proceedings, 1996 recommenced new 23. 26 27 summoned due omission part court’s clerk because parties fixed date 7 8 1996. 24. expert. evidence obtained. 25. 26. 16 17 broken leg unable attend. 27. case, including time hunger strike, appeared before adjournment view applicant’s absence lawyer. medical appointed previous day briefly. stated needed undergo full hospital. temporary admission hospital disagreed over reasons this adjournment. submits decisive, whereas Government maintain only reason state health, considered he well enough participate 28. December cover letter drew attention fact called return date. 29. One witness As appeared, accepted requests 30. With exceptions, not, adjourning hearings, announce open result, certain present but again informed about summons If reach person concerned completed particular, Mrs M. H. Mr S. Z. duly G.P. That latter allow 31. throughout bring court. suspected seeking evade service summonses. 32. last took place 28‑31 1997. submissions apparently unsuccessfully order question absent whose attendance previously parties. 33. 31 1997 convicted sentenced him thirteen His accomplices also terms imprisonment between eleven years. reserved reasoning judgment. prepared unspecified least months following delivery 34. appealed conviction Cassation, under relevant law acting appellate cases applicant’s. Cassation act declared used know persons wished withdraw. 35. 23 1998. 18 1998 upheld sentence. 36. Up point represented and, times, or simultaneously. 37. 24 same trial instituted review (cassation) proceedings. five-member Chamber without legal representation. He expressed wish join still possible statutory time-limit expired. enable petition arrange lodged 22 38. By judgment 1999 dismissed (cassation). 39. 1993, arrest, brought investigator, detain remand. This decision approved 14 stage, private, file, comments, communicated applicant. appeal. 40. H., released bail re-arrested 15 While induce G., witness, give evidence, later charged offence. 41. Following conclusion after committal trial, seven applications Appeals decisions 42. those Another request, date, refusal confirmed 1995. 43. Article 152 §§ 1 Code Criminal Procedure remand mandatory everyone crime punishable more imprisonment, exception being clear beyond doubt there no danger accused’s absconding re-offending. would where, example, seriously ill, elderly any condition excluded her Since than special circumstances excluding re-offending established, grounds ordering referred practice matter. refused consider contention weak. jurisdiction do application. Its task examine whether conditions met. 44. applied 11 application appeal, upon receipt observations if existed unequivocal establishing all absconding, obstructing investigation. However, available case. annul revise concerning Addressing argument material indicated committed crime, analyse lawfulness gauged accusation element exceptional demonstrating even hypothetical However already existed. 45. A request bail, change circumstances. At oral release. day. down 46. Three later, person. through accordance established practice. were, inter alia, therefore perverting course justice. Furthermore, abroad started voluntarily. never offence, family permanent residence. length violated Convention. 47. delivered transmitting alia arguments settled serve him. 48. joined earlier appeals. 49. Chief Public Prosecutor’s Office written inviting dismiss them. justified come within Code. accusations well-founded irrelevant. 50. strike commenced protest continuing noted hear renewed 51. except worsening health. necessary constantly monitored 52. 25 comments 53. stated, justice presumed gravity charged. problems, dealt detention, ‑ despite inevitable negative consequences affect finding. complaints Convention unfounded. wrong provisions contrary 54. term above).
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8. The applicant, who was born in 1942, is a judge. After the summer of 1990 he applied for membership Grande Oriente d’Italia di Palazzo Giustiniani. On 5 March 1991 became member Adriano Lemmi Lodge Milan. During 1992 applicant read national press that certain State prosecutors, particular state prosecutor Palmi (Reggio Calabria), had begun inquiries, which, according to rumours, also concerned lodges associated with In October asked distance himself from organisation and on November made “dormant member”. 9. public prosecutor’s office sent National Council Judiciary (Consiglio Superiore della Magistratura) list judges were Freemasons. then it Minister Justice Principal Counsel at Court Cassation, instituted disciplinary proceedings against judges. – least part by press. 10. July 1993, after an inquiry been commenced, questioned inspector General Inspectorate Ministry Justice. Subsequently, February 1994, Cassation. 11. June 1994 summoned appear before section Judiciary. He accused having undermined prestige judiciary committing serious breach his duties, thus being unworthy trust must be address, counsel referred decision same section, given some ten years earlier, which drew distinction between secret associations forbidden members discreet associations. noted guidelines Judiciary, stated judicial incompatible Freemasons, adopted during one year left own accord. At end found breached Article 18 Royal Legislative Decree no. 511 31 May 1946 (“the decree”) gave him warning. 12. appealed points law examined case plenary session 13 1996. It dismissed appeal judgment 10 December 13. 17 2000 Fourth Committee indicated again (having already similar recommendation unknown date) not favour applicant’s promotion requisite conditions fulfilled since 1997 view sanction imposed him.
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7. The applicants are Italian nationals who were born in 1959 and 1951 respectively live Rome. 8. On 10 19 July 1997 two armed robberies committed the Rome area. It emerges from a report prepared by police on 23 that there was evidence stolen goods had been hidden warehouse belonging to company owned applicants. latter also said have telephone contact with persons suspected of offences. 9. 18 December public prosecutor applied for be placed pre-trial detention. In an order 22 1997, investigating judge allowed application. 10. arrested taken Prison. 24 they appealed against division District Court responsible reconsidering security measures (tribunale del riesame). 11. hearing before held 7 January 1998. delivered same day, filed registry 1998, court replaced applicants’ detention measure house arrest (arresti domiciliari). considered, particular, it reasonable suspect offences issue feared might commit others type. Taking view, however, no “tangible risk gathering evidence” having regard defendants’ clean record, concluded less restrictive measure, such as arrest, preferable. That required stay their home leave only authorities’ prior authorisation. 12. served They should therefore immediately escorted Prison, where being held, home. However, officers available escort them so transfer delayed until 13
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8. Since 1967 the applicant company has owned approximately 65,000 square metres of land in municipality Pomezia, entered Land Register as folio 11, parcel 66. In 1963 Pomezia District Council had given its approval for a building project to be carried out on land. 9. On 29 December resolved adopt general development plan (piano regolatore generale – “GDP”). 10. 20 November 1974 Lazio Regional approved GDP which set aside company’s creation public park (parco pubblico) and, consequently, imposed an absolute prohibition with view expropriation. 11. Pursuant section 2 Law no. 1187/1968, by lapsed 1979, no detailed having been adopted intervening five years. 12. Despite fact that lapsed, did not revert original use. 13. Pending decision future use, was subject regulations 4 10/1977, provision courts held apply situations kind (see paragraphs 38-40 below), from 1990, 86 Region. 14. The consequently affected restrictions deriving application these laws. 15. 12 March 1987 asked determine use put. No action taken this request. 16. Council’s failure reply, amounted refusal, appealed Administrative Court (“the RAC”). It argued, firstly, under obligation intended and inaction unlawful. also sought have designated authorities. 17. 16 October 1989 RAC allowed appeal so far it acknowledged 18. court ceased effective after years, pursuant because plan. then, 10/1977. considered, however, could take place actual administrative authorities land; were revise land-use (ricostituzione della disciplina urbanistica), their However, remained entirely at liberty issue should put; empowered direct particular designation. 19. conclusion, ordered give fresh 20. against decision. 21. 28 February 1992 Consiglio di Stato dismissed upheld impugned 22. 10 September 1992, comply Stato’s judgment, requested proposed solution whereby if 15,000 land, would assign rest free charge. proposal. 23. 25 1995 again 24. regional committee supervision measures municipal (CORECO), seeking overturned. argued indications too vague conditions renewing building, such interest, satisfied. outcome is known. 25. appears expert opinion produced imposing 22 1999.
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6. The applicant is an Algerian citizen born in 1967. 7. entered Switzerland with a tourist visa December 1992. On 19 March 1993 he married M.B., Swiss citizen. 8. 27 April 1994 the was convicted by Zürich District Office (Statthalteramt) of unlawful possession weapons. 9. According to charges subsequently raised against applicant, committed, on 28 Zürich, offences robbery and damage property attacking man, together another person, at 1 a.m., throwing him ground, kicking face taking 1,201 francs from him. 10. Court (Bezirksgericht) these 17 May 1995, though judgment quashed upon appeal as had not been represented lawyer. Proceedings were resumed before Court, which July 1996 sentenced eighteen months’ imprisonment, suspended probation. 11. Both public prosecutor’s office filed appeal, whereupon 31 January 1997 Appeal (Obergericht) Canton two years’ unconditional imprisonment for property. In its court considered that particularly ruthless brutal, his culpability (Verschulden) severe. 12. applicant’s further plea nullity dismissed November Cassation (Kassationsgericht) Zürich. 13. 11 1998 began two-year prison sentence. 14. Directorate Social Matters Security (Direktion für Soziales und Sicherheit) refused renew residence permit (Aufenthaltsbewilligung). 15. this decision government (Regierungsrat) 21 October 1998. 16. written statement 18 1998, wife complained being expected follow her husband Algeria. While admitting she spoke French, claimed would have no work Algeria money. She found it most shocking couple separated. 17. Administrative (Verwaltungsgericht) 16 June 1999. decision, relied non-renewal particular sections 7 Federal Aliens’ Domicile Residence Act (Bundesgesetz über Aufenthalt Niederlassung der Ausländer) Article § 3 ordinance implementing (Vollziehungsverordnung). called interests order security. It might well separate wife, they could live country, or visit each other. 18. 2 August 1999 given early release prison. 19. administrative-law (Verwaltungsgerichts- beschwerde) (Bundesgericht) recalled according section 10(1) criminal conviction foreigner served ground expulsion. There breach 8 Convention authorities view serious offence committed. measure imposed fact behaved irrelevant did concern conduct outside. 20. Court’s noted large number relations lived Algeria, demonstrated close links Switzerland. be easy completely impossible. Indeed, French able some contact telephone mother-in-law. also Italy, where spent time coming 21. By (Bundesamt Ausländerfragen) issued prohibiting entering 15 2000 unspecified period (auf unbestimmte Dauer). ordered leave 2000. 22. date left currently living Italy. 23. passed training course become waiter. From 20 until worked painter organisation refugees 24. serving sentence Ringwil colony Hinwil, services interim report 12 conduct, gardener stable-hand satisfactory. stated good manners very agreeable personality; room always tidy; rule returned punctually leave; various urine tests detecting drugs all shown negative results. 25. C. company, dated February 2000, working satisfactorily company since assistant electrician. A V. 1999, weeks between 26. letter Italian Ministry Interior embassy Rome, 2001, lawfully resided Italy 1989 1992 renewed (permesso di soggiorno).
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8. On 29 November 1980 police officers from the Ankara Security Directorate arrested applicant on suspicion of membership an illegal organisation, Dev-Yol (Revolutionary Way). 9. 26 January 1981 Martial-Law Court (sıkıyönetim mahkemesi) remanded in custody. 10. February 1982 military public prosecutor filed a bill indictment with against and 722 other defendants. The accused armed namely Dev-Yol, whose object was to undermine constitutional order replace it Marxist-Leninist regime. He further charged having been involved number crimes such as acting look-out for killers several individuals, bomb attack coffee house opening fire house. prosecution sought death penalty under Article 146 § 1 Turkish Criminal Code. 11. In judgment 19 July 1989 Court, composed two civilian judges, judges army officer, found guilty charged, sentenced him life imprisonment (in effect eighteen years assuming good conduct) offences Code permanently debarred employment civil service. It took until 1993 reasons be set down writing. 12. lodged appeal Military Cassation (askeri yargıtay). 13. 23 1991 ordered applicant’s release pending trial. 14. Following promulgation Law 27 December 1993, which abolished jurisdiction martial-law courts, (yargıtay) acquired over case file transmitted it. 15. 1995 upheld conviction.
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8. On 28 February 1995 Detective Inspector Mann (D.I. Mann), received information that an armed robbery of a Securicor Ltd cash-collection van was going to be committed on or around 2 March by the first applicant and B. at one several possible locations. The police knew where lived began visual surveillance those same premises day. D.I. learnt suspected being drug dealer operations mounted against in past had proved unsuccessful because they been compromised. It therefore concluded “surveillance-conscious”. responsible for shooting officer with shotgun course robbery. This something all officers, particularly Chief Constable, were aware when operation planned. 9. No took place 1995. By 3 1995, however, further take “somewhere” 9 Further as location target proposed could not obtained In order obtain details about robbery, prepared report Constable support application authorisation install covert listening device B.’s flat. Some contents this subject successful non-disclosure Crown ground serious damage would caused public interest made public. 10. use devices governed “Guidelines Use Equipment Police Surveillance Operations” issued Home Office 1984 (“the Guidelines”). decided such justified under Guidelines but authorise its until he satisfied installation feasible. Reconnaissance during night 3/4 established it 11. 4 gave oral proceed use. However, did provide written confirmation required annual leave, so authority telephone from home. stated reviewed daily basis. He said asked Deputy look after formalities ensure, inter alia, there message receive 8 March. “retrospective” device. 12. installed sofa flat before confirmed writing. Conversations between others living room monitored recorded 15 13. 14 request BT (British Telecommunications PLC) itemised billing relation number his period 1 January date request. data-protection form countersigned superintendent line BT’s requirements, stating necessary assist identification members team robbers. While originally effort identify unknown third person conspiracy (now known have second applicant), data also used later court corroborate times dates officers respect 14. who him home discovered abandoned premises. place. continuing their premises, taking photographs video footage whilst audio progress. applicants identified various out observed some occasions carrying hold-alls. keeping watch cache rural collecting item evening An earlier inspected hidden item, which tell through plastic bag revolver. appeared vehicle transport stolen subsequently arrested. 15. 16 arrested Vauxhall car. boot found two hold-alls containing, black balaclavas, five cable ties, pairs leather gloves army kitbags. Following legal advice, declined comment interview refused speech samples police. search warrant searched it. Fingerprints found, well items pair overalls balaclava. Three vehicles recovered examined. retained included hold-alls, broken petrol cap. 16. As wished compare tapes, applied cells attach present charged antecedents Written given accordance Guidelines. Samples applicants’ without knowledge permission. case applicant, conversations included, occasion, advice solicitor. Government state that, realised what conversation about, listened to. That recording adduced evidence trial. 17. voice sent expert compared them voices taped recordings held “likely” applicant’s featured “very likely” them. 18. rob monies. pleaded guilty view House Lords decision R. v. Khan ([1996] All England Law Reports 289). relevant admissible notwithstanding unlawful means (for example, trespass). applicants, challenged admissibility derived grounds. (a) should authorised other forms investigation tried failed paragraph (b) Guidelines, result unfair admit ought never obtained. Constable’s no specific permission evidence. Before jury sworn trial, Judge Brodrick heard voir dire (submissions point law absence jury) matters relating prosecution conceded means, namely trespass. During procedure claimed likely damaged if certain disclosures given, words claiming immunity. argued test relevance. defence judge discretion exclude section 78 Criminal Evidence Act (PACE), do abide 19. documents, including Mann’s report, led flat, withheld lawyers. kept review proceedings disclosure made, although entirety. answer questions put cross-examination counsel might reveal sensitive material. whether wanted unanswered oath, chambers, agreed. proceeded private concerning ability “control” asserted indicated normal methods possible. arrangements into effect period. answers divulged, indicating open benefit slight, any all, while great. Accordingly, entitled immunity grounds refuse questions. 20. rejected challenge B’s reaching decision, stated: “61. follows I must apply set basis properly up moment discovered. At most possibly breaches procedure, neither, my judgment, described either significant substantial. is amounted civil addition invasion privacy circumstances concerned expected private. 62. invited account, do, may amount general right Article [of Convention]. me determine has, fact, breach 8, weighing bear mind least arguable interference more § 2. cannot see reason concluding substantial significant. 63. consider admission difficulties faced Defence seeking validity breached 6 Convention ... am beyond reasonable doubt extent has fact deprived these Defendants fair trial.” 21. attached charging dealing antecedents. “75. does seem great weight way control tapes evidence, sense are reliable sample speech, can clearly attributed each Defendants, weighs heavily judgment. balance adverse fairness them.” 22. submitted statements conducted searches vehicles. There cache. One tree seen 23. August 1996 convicted commit sentenced fifteen years’ imprisonment. They Court Appeal leave appeal judge’s rulings decisions Their applications 12 November 1996, single finding exercise give rise appeal. Notification refusal 10 20 December respectively. appear complaints Complaints Authority devices.
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8. On 11 June 1981 police officers from the Bursa Security Directorate arrested applicant on suspicion of membership an illegal organisation, Dev-Yol (Revolutionary Way). 9. 27 July was brought to Sivas Public Prosecutor’s office where he conceded accusations against him and explained his role in Dev-Yol. 10. 3 September 1981, following transfer Ankara, questioned by at Ankara Directorate. He confirmed statements concerning involvement activities 11. 16 taken Military had made were read him. some amendments that they true. detail 12. 18 Martial Law Court (sıkıyönetim mahkemesi) remanded custody. 13. 26 February 1982 Prosecutor filed a bill indictment with 722 other defendants. The accused armed namely Dev-Yol, whose object undermine constitutional order replace it Marxist-Leninist regime. alleged been involved numerous such as collection money for expenditures supplying weapons organisation giving orders militants under command robberies, murder bombings. maintained also clashes opponent groups organised meetings Bursa. prosecution sought death penalty Article 146 § 1 Turkish Criminal Code. 14. In meantime, decided criminal proceedings Gölcük 30 October Erzincan 23 December should be joined instituted office. 15. March 1987 ordered applicant’s release pending trial. 16. judgment 19 1989 Court, composed two civilian judges, military judges army officer, convicted having leading organisation. It sentenced 13 years 4 months’ imprisonment, debarred employment civil service placed judicial guardianship offences Articles 59 168 Code 17 no. 1402. court acquitted charges. 17. lodged appeal Cassation (askeri yargıtay). 18. Following promulgation 1993, which abolished jurisdiction martial law courts, (yargıtay) acquired over case file transmitted it. 19. 1995 quashed sentence. held wrongly applied 1402 case. considered however this error did not require re-trial applicant. revised 10 years’ imprisonment.
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8. On 14 February 1992 the pension fund of applicant’s employer granted applicant a full temporary disability as from 1 March until 30 June 1992. Thereafter period was prolonged several times. 9. 13 1997 reviewed its previous decision and changed into partial one for an indefinite beginning on 1997. The reasoned by observing that, according to documents submitted fund, capability work could no longer be considered reduced such extent entitling him pension. It also noted that expected at least part-time. 10. appealed Pension Board, which 4 1998 rejected appeal. follows: “An employee is entitled provided his or her ability has continuously been three fifths minimum year this reduction caused illness, defect injury. employee’s remaining earn income carrying out would available he she reasonably perform must taken account when assessing in work. Furthermore, education, activities, age, living conditions other comparable factors consideration. According statements [the applicant’s] state health, applicant] suffers depression become more difficult during autumn However, symptoms mild. Therefore, Board finds still partly capable working 1997.” 11. Insurance Court. He referred, inter alia, medical time being incapable because mental illness. 27 October 1998, Court appeal reasoning “[The refers to] reasons given Board’s decision. new material filed while case pending [before Court] does not change evaluation disability.” 12. decided later, January 1999, reject renewed application instead one. 25 May 1999. further which, 22 2000, found had 60 percent illness December ordered grant
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10. In the course of a judicial investigation concerning applicant, his wife, former brother-in-law and one nephews, applicant was remanded in custody on 16 June 1993 charged with rape child under 15 (his niece), sexual assaults children nephews) number further counts assault. On September investigating judge at Lorient tribunal de grande instance ordered medico-psychological examinations applicant’s niece all persons investigation. He appointed two doctors, named Gautier Daumer, for that purpose. 11. The doctors were informed criminal record. addition to prison sentences, this included an opened 1989 into charges against interference daughter brother-in-law’s sister. 12. 29 October experts filed their report applicant. They stated, among other things, although by own admission, did have fantasist even mythomaniac tendencies, these not obviously pathological nature, as had been shown years previously statements regarding relations between P.H. K.S, victims. 13. concluded follows: “1. Our examination G.B. has revealed psychopathic traits signs perversion which objective evidence is provided C.H. 2. offence he stands accused respect linked state perversion. It difficult assess extent or nature so far presents facts isolated incidents. denies raping K.S. it possible address issue from clinical viewpoint. 5. Rehabilitation will pose problem, but cure depend clearer identification subject’s underlying problem. 6. subject insane within meaning (former) Article 64 Criminal Code when committing offences accused. 14. November experts’ conclusions served detention pending trial extended several times during case. 15. 19 1995 co-defendants (J.C.H., S.C., wife) committed Morbihan Assize Court judgment delivered Indictment Division Rennes Appeal. pointed out, particular, initially denied any abuse nephews then admitted conduct only retract admission. related what said hand other, latter having also niece. mentioned previous convictions record, namely driving influence alcohol, insulting member police force performance duties, hit-and-run conviction alcohol. 16. appealed points law decision commit him trial, drawing attention vagueness terms used operative provisions decision. 26 February 1996 Cassation rejected appeal. 17. began 13 March 1997. registrar read out trial. At point advocate-general stated wished file certain documents personality defendants, including relating primarily reported 1979 1980. 18. question records taken witnesses, procedural superintendent, psychiatric age 17 educational assistance. comprised mainly description minor information about family background. firstly charge indecent assault girl brought proceedings done same thing “at least dozen both little girls boys aged 7 9” and, secondly, without violence three offences, 1979, those above discontinued. 19. lawyer objected filing requested adjournment prepare pleading effect. hearing adjourned thirty-five minutes. lodged application be ground they limitation occurred prior various amnesty laws could apply them. According defence, old contravened principle defendant’s antecedents inadmissible him. 20. interlocutory day following grounds: “... prosecution, like every party entitled produce appear helpful establishing truth relate defendants stand shed light personality. Provided are communicated parties can thus examined adversarially, production such cannot adverse effect rights defence. ...” 21. Copies prosecution distributed each civil parties’ lawyers defence case adjourned. 22. When backgrounds, deliberately put back until end afternoon. Exercising discretionary powers, President called teacher special needs witness heard purposes only. Following hearing, respective C.H., who stood along declared bringing civil-party clients’ behalf made written application. 23. beginning afternoon representing wife turn applied reopened take account her prosecution. Those 1996, court’s S.C. wife’s Mr Mrs B. added file. Failing that, would subsequent session. support requests, relied requirement fair 24. deferred its completion evidence. continued 6 p.m. short fifteen 6.20 resumed thereafter heard. 25. Lastly, evening first 1997, opinion pre-trial oral presentation submitted (see paragraph above). 26. minutes expert studied new produced 27. As soon resumed, allegedly changed opinion, stating, “paedophile” “psychotherapy [was] necessary, ineffective time being”. 28. lasted hours, authorised withdraw permanently, consulted none them raised objection. 29. day, 14 disputed expert’s submissions second “After ... statement before Court, discontinued sets G.B., now 34, old. depositions expert. Immediately after being facts, unaware preparing radically altered submissions, stating that: – view unquestionably paedophile; psychotherapeutic treatment but, given G.B.’s current mind, totally because no feelings guilt; length sentence individual type potential cured depends solely feeling guilt, lacks; absence there major risk reoffend long sentence, imprisonment serve means protecting society. formally disputes submissions. A indispensable. If considered should over ago. drawn up contained therein undoubtedly prepared experts. therefore differed Respect requires context reopened. Everyone right trial.” 30. release client suffer consequences prosecution’s nine months 31. investigative measures “necessary ensure defendant remain[ed] disposal authorities”. 32. examine obtained statements. After took mother, person sentenced serious crime eight witnesses. 33. reiterated while withdrew Court. 34. 1997 formal note withdrawal S.C.’s lawyer. defect vitiating meantime cured, nevertheless refused it. complaint infringement defence: “Firstly, duly contested, particularly whether directly through intermediary counsel. Secondly, once notice completed report, counsel position request explanations required. Thus legitimately argued consideration capable infringing events, outcome does seem essential establishment seek opinion. Consequently, cause 35. release. 36. eighteen years’ niece, 15, sexually assaulting nephews. sentences imposed less severe (ten imprisonment, fully suspended five-year probation, year probation). 37. law. appeal Court’s consenting amounted violation equality arms, since half study whereas some time. Relying Convention, another plea refusal order change initial required effective satisfy legal must suited defendant. 38. 11 1998 entirety. Regarding grounds based “When, defendant, filed. justification rejection request, proceedings, afford assistance opportunity adversarial argument them, ruling effect, basis laying itself open objection because, respected, statutory treaty provision prevented covered way. sought application, held, taking evidence, measure indispensable truth. obliged respond mere arguments determined matter alone jurisdiction, deciding reason allow application.”
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9. The United Macedonian Organisation Ilinden (“the applicant association” or “Ilinden”) is an association based in south-western Bulgaria (in area known as the Pirin region geographic of Macedonia). Mr Boris Stankov a Bulgarian citizen, born 1926 and living Petrich. At relevant time he was chairman branch association. 10. founded on 14 April 1990. Its aims, according to its statute programme, were “unite all Macedonians regional cultural basis” achieve “the recognition minority Bulgaria”. Sections 8 9 stated that organisation would not infringe territorial integrity it “would use violent, brutal, inhuman unlawful means”. According applicants’ submissions before Court, main activity celebrations commemorate historical events importance for Bulgaria. Over unspecified period published newspaper. 11. In 1990 applied for, but refused, registration. proceedings registration Blagoevgrad Regional Court Supreme examined association, programme other written evidence. 12. their decisions July November March 1991 courts found association’s aims directed against unity nation, advocated national ethnic hatred, dangerous Therefore, be contrary Articles 3, 52 § 3 Constitution 1971, force at time. particular, included, inter alia, “political development Macedonia” establishment “united, independent State”. Moreover, appeal had people accept Bulgarian, Greek Serbian rule”. formal declaration Bulgaria, appeared inconsistent with remaining material. 13. judgment 11 stated, alia: “[T]he lower correctly established [applicant association] under nation ... [The material case] demonstrates seeks disseminate ideas Macedonianism among population, especially particular geographical area. [Those ideas] presuppose ‘denationalisation’ population conversion into It follows therefore prohibited Article 35 [1971] ...” 14. parties do dispute, seems, during underwent changes leadership there internal conflict. local branches separate factions differed views activities. 15. held meeting first 22 Rozhen Monastery, grave Yane Sandanski. 16. On 20 organised commemoration Monastery. participants adopted addressed President Parliament, which “1. Our rights minority, we have been deprived, should guaranteed us accordance international agreements minorities. [We demand:] 2. introduction [study of] language, history culture educational institutions Macedonia. 8. That political territory Macedonia dissolved renamed Macedonian; they defend people. complete cultural, economic autonomy withdrawal occupation armies from Should government respond positively our demands, shall Nations Organisation, [Conference on] Security Cooperation Europe, European Great Powers, interest peace Balkans Europe view avoiding military conflicts due emerging nationalism Serbia, Greece Albania, following demands: annulment separatist union February 1912 between Serbia Greece, invaders occupied territories, unification auspices protection Powers 17. police report, drawn up 1998 by director submitted Government, “fierce anti-Bulgarian declarations” made meetings 1991. requesting read out. report did mention any incident meeting. As explained about 300 350 supporters gathered official death Sandanski, attended 4,000 participants. Members Ilinden, standing platform, allegedly hissed booed police, labelled Bulgarians “barbarians”, “conquerors” “enslavers” called them leave “free” presence. further “shocking” occurred: B., prominent politician, splashed beer his face. prevented clashes. concluded: “... are provocative. There real risk incidents. For reason, since 1992 municipalities normally refuse allow such proceed. With protecting law, assistance prosecuting authorities sought.” 18. applicants copies photographs, testimonies statements persons who claimed several occasions 1994 actions acts private individuals obstructing activities They also newspaper articles accusing misappropriating symbols, describing leaders uneducated, mentally ill traitors, denying existence alleged those reflected public opinion manipulated authorities. 19. Stankov, Petrich requested mayor authorise Samuilova krepost, 31 event. 13 permission refused mayor, no reasons given. appealed District dismissed 16 1994. banned, well-founded fears demonstration endanger order freedoms others. 28 Ivanov, representative another person issued warnings stay away traditional fair krepost. applicable law. 20. Despite refusal authorities, some members (120-150 assessment) attempted approach site krepost heavily armed, blocked way. Government’s submission, allegation sealed off “manifestly ill-founded”. 21. 10 1995 Sandanski occasion eightieth anniversary death. This duly registered courts. 15 stating, deprived right own life violation never appeal. 22. municipality ceremony mark Sandanski’s event took place commenced a.m. group travelled Monastery ordered cars nearby town Melnik transported monastery buses. allowed visit grave, lay wreath light candles. However, bring placards, banners musical instruments carrying, make speeches grave. taken ribbon attached wreath. then celebrated event, without music, near 23. 1995, previous years, again authorisation hold commemorative 30 vicinity request giving reason. Upon upheld 18 1995. “holding order”. 24. 1997 informed organising letter considered hero, fact “Macedonian fighter independence Turkish rule oppressors”. grant permission. He same 4 high school. jointly school “every [person], individually, could come”. 25. mayor’s them, “as community”, organise tomb hero. 17 refusing examine merits behalf unregistered organisation. 26. date notified unclear. initially denied having received response appeal, later Commission 5 May become aware 1997. 27. defects remedied within statutory seven-day time-limit, discontinuance proceedings. August 28. approaching two ill-treated. only thirteen students teachers arrived laid presence left minutes later. 29. Petrich, 2 outskirts request, stating “a legitimate organisation”. 30. legal provision prohibiting organisations “legitimate” planned peaceful order. By decision 1 merits. “in laws country” shown acted actually represented it. result, unclear responsible terms sections Meetings Marches Act. concluded lack clarity regards organisers endangered 31. reach 32. presented documents concerning appears relied upon Government concern adhering faction Those groups apparently 33. (see paragraph above), above) meetings, letters media, associated declarations effect wanted “no unless Bulgarians, Greeks others recognise democracy Balkan country recognition”. 34. issues Vestnik za Makedonzite v Balgaria i Po Sveta Makedonska poshta, pamphlets one linked press These contain information, “secret” September declared “politically, economically culturally autonomous” independent. so because day, eighty-five years after Bucharest Treaty 1913, States Parties obligation withdraw “enslaved” territories. poshta invited march Sofia 1998. invitation stressed carry arms. 35. A handwritten poster, followers boycott parliamentary election “to prevent region” document united State “an invasion” Council “according model Grenada, Kuwait Haiti”. 36. An abstain voting protest minority. 37. Former Yugoslav Republic Macedonia, criticised language various exert pressure this respect. 38. copy “memorandum” Nations, signed activists it, dated contains short overview events, complaints attitude collective rights, access archives, return confiscated material, revision way seen, treaties dissolution police”, nationalistic violent organisations, radio broadcasts Macedonian, investigation violations committed assistance. stated: being conscious contemporary realities Balkans, world, acting through confrontation, tension violence. enjoyment where roots lie, means negotiations lawful advantage deny democratic ways detriment: can afford political, psychological pressure, arms.” 39. Before Constitutional 29 2000 case constitutionality party, Ilinden-PIRIN: Party Economic Development Integration Population (“UMOIPIRIN”), competent 1999. party’s unconstitutional. 40. noted UMOIPIRIN regarded successor continuation basis extensively assessment question whether constitutional. note demands above). observed maps region, depicting parts repeated calls even secession. representatives offensive remarks nation. 41. thus temporarily control soon Their 44 Constitution. prohibition conformity Convention, doubt security. nine votes three. dissenting judges gave opinions published. 42. support documents. 43. article Kontinent daily newspaper, 1/2 D.P.K. arrested threatened officers blowing homes, impeded business. During arrest discovered explosives D.P.K.’s home. went recall leader activist”. 44. second photocopy flyer announcing founding inviting interested join. bears signature. dates typed typewriter. newly created Nova wish replace Ilinden. certain new form armed aim “helping survive”. 45. provided comment additional information contents them. 46. hearing put her, Agent criminal present ever brought 47. knowledge context current situation essential understanding case. explanation may summarised follows. “Historically, consolidated regions, 1878, when partially liberated dominance, Berlin Peace borders Turkey. Between 1878 1913 five unsuccessful uprisings seeking liberation followed massive refugee migrations motherland. Hundreds thousands settled 1934 so-called ‘Macedonian nation’ proclaimed resolution Communist International. reliable source mentioned Slavic than population. After Second World War power Yugoslavia concept alphabet imposed decree 1944. assimilation campaign accompanied brutalities launched Yugoslavia. – inspired idea creating Bulgarian-Yugoslav federation initiated forcible imposition ‘Macedonian’ identity 1946 1956 censuses forced declare themselves ‘Macedonians’. abandoned 1963, partly change identity. bi-polar cold-war world relations socialist block dominated USSR tense exacerbated population’s feeling doom exasperation fear proper possible. Tito regime played decisive role. if process formation has place, limited census, 3,019 citizens identified indicated mother tongue. Another 7,784 sense, while indicating conscience Individuals considering far discriminated organisation, Svetlina. books newspapers language’.”
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7. On 1 October 1993 the Poznań-Nowe Miasto District Prosecutor (Prokurator Rejonowy), on basis of evidence obtained by Warsaw Police Headquarters (Komenda Stołeczna Policji) from Interpol Office in London, opened an investigation against persons unknown into circumstances attempt to obtain a loan 25,000,000 US dollars (USD) false pretences. 5 November prosecutor laid charges two having attempted forge bank guarantees and fraudulently seize public property. 8. A day later, 6 1993, charged applicant with forgery attempting USD pretences, committed together four other persons, detained him remand reasonable suspicion that he had offences which been charged. 9. Subsequently, 8 Poznań Regional Wojewódzki) took over Prosecutor. 10. 10 15 respectively, both his defence counsel appealed detention order 1993. The suspects lodged similar appeals at about same time. 13 December Court (Sąd upheld all orders. 11. 14 January 1994 investigating ordered be expert graphology, financial banking matters, as well psychiatrist psychologist. 12 issued letter request German authorities, asking them hear certain witnesses residing Germany. 12. 1994, applicant’s request, presented, writing, detailed reasons for him. maintained, particular, those were based abundant evidence, particular form documents testimonies co-suspects. In consequence light material collected this stage, prosecution considered there was co-suspects forged thirty provisional fifty final 25,000,000. 13. 20 criminal proceedings instituted Inowrocław joined and, accordingly, referred latter case prosecutor. 14. 31 application Prosecutor, prolonged co-suspects’ until 4 May 1994. March ruling appeal, Appeal Apelacyjny) first-instance decision. 15. meantime, asked release or vary measure imposed replacing bail police supervision. That rejected 30 16. April bail. He asserted putting severe strain family. minor daughter recently examined psychiatrists it found separation her father seriously affected mental state. also submitted suffering dyslexia state rapidly worsening during last months. relevant facts confirmed report made psychologist Furthermore, stressed no risk absconding proper conduct could secured 22 dismissed. 17. 25 July decision 3 respectively. dismissed their date. 18. further It 24 appeal June 19. applied have released view fact wife ill admitted hospital. medical certificate. 16 define nature wife’s illness confirm whether health required treatment 20. Later, 21 19 again maintained account long-lasting family serious neurosis depression. 21. Meanwhile, 27 date June, 11 August Appeal, question nature. 22. 7 completed investigation. bill indictment Court. applications court case-file. 23. September stating neurasthenia resulting situation. Court, after considering report, three above-mentioned applications, holding should continue. its offences. situation did not militate continuing grounds applicant, defined Article 218 Code Criminal Procedure. 24. submitting, among things, mere longer suffice justify excessively long such reasoning showed breached principle presumption innocence. co-defendants already released. 25. lower court’s findings concerned guilt but likelihood question. argument factor militating favour releasing continue because acted organised group. 26. yet another bail, submitting critical, especially markedly worsened. application, finding even though indeed family, justified detention. 27. commit suicide swallowing tablets sedative “Relanium”[diazepam]. prison depression resulted being held 28. unspecified date, scheduled trial However, hearings cancelled presiding judge ill. 29. release, still relying difficult need experts Łódź Medical Centre determine child’s condition. 2 February 1995. appealed. 30. 1995 hearing decided examine merits remitted carried out. 1995, parties’ appeals, quashed deal case. 31. During unsuccessfully applications. They first instance 32. progressing requisite expedience. ground acting attached considerable importance very substantial acknowledged, however, detention, time exceeded eighteen months, lasted Yet opinion, itself change given custody. 33. 34. hearing. adjourned one release. co-defendant condition they submit supervision surrender passport. observed length nearly years desirable hold custody, several collusion would sufficient secure trial. Prosecutor’s it. 35. listed 1996. Those cancelled; lawyers failed appear, second lawyer give extra study documentary adduced prosecution. 36. 9 1996 merits. continued. heard called 37. next subsequently since lay appear. 23 witness. fined witnesses, supplied any satisfactory explanation absence. 1997; witness hearing, March. 38. 1997 meantime died. For reason, sine die. At lifted said course obstructed current stage danger tamper process obtaining evidence. 39. maintaining 1997, complained Ombudsman (Rzecznik Praw Obywatelskich) intervene behalf. 40. restart postponed 29 1998 1998. once absent. 41. then die, international transactions needed obtained. did, encounter difficulties suitable expert. Eventually, 1998, appointed A.J., who assured prepare end effect registry appear before 26 42. 1999 R.B., co-defendants, appeared court. informed R.B. apparently left Poland 43. proceed 44. 1999. produced year graphology. granted 1999, instructing month. 45. After serving copies parties, Okręgowy) set submissions 28 gave judgment. sentenced years’ imprisonment. All parties except 46. 17 2000. judgment retrial 2000 cancelled. are pending 2001, six-month intervals so far witnesses.
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7. In 1947 Roman Potocki, acting on behalf of his brother Józef, lodged an application under Article 7 the Decree 26 October 1945 real property in Warsaw for temporary ownership two plots land located Krakowskie Przedmieście Street, Warsaw, to be awarded Józef former owner. This remained unanswered. 8. On 3 December 1990 District Court declared that estate Potocki had been inherited, pursuant relevant provisions Polish Civil Code, by wife Pelagia-Maria Potocka four sixteenths, and each children, Piotr Potocki-Radziwiłł, Anna Potocka, Dorota Potocka-Radziwiłł Izabela d’Ornano, three sixteenths. 9. 20 second applicant a request with Governor restitution plots, indicating they were listed Land Register nos. 415 9048. 10. By decision 5 August 1991 Director Office discontinued administrative proceedings relating applicants’ 1990. 11. 8 September Regional quashed discontinue proceedings. It stated it established during concerned situated Warsaw. virtue 1945, all expropriated. However, decree, owners right lodge their plots. The authorities competent deal these applications could award if was not designated public use would incompatible such use. case, 1947, but first-instance authority, when dealing 1990, overlooked fact. When reconsidering authority required, particular, examine whether granting applicants perpetual plot Administration Expropriation Act 1985, which replaced procedural rights afforded real-property conflict concerned, as determined local land-development plans. 12. 27 refused return grant them He predecessor title submitted then entries unanswered, duly examined course current palace built destroyed at 70 75% Second World War, pointed out letter Conservator Historical Monuments 28 November 1991. subsequently rebuilt Ministry Culture. Thus State Treasury borne costs rebuilding palace. Accordingly, have unjustified, found no grounds should granted. 13. appeal against decision. They argued conformity applicable laws, particular failed establish beyond reasonable doubt indeed War. also complained sound arguments advanced show its 14. February 1992 Governor’s rejected appeal, finding one day after expiration fourteen-day time-limit provided Code Administrative Procedure. 15. filed Supreme Court. posted January 1992, is last time-limit, shown post-office receipt. fact postmark envelope dated 21 due exclusively incomprehensible negligence postal services held applicants. 16. 24 July appealed against, considering outside Procedure, because receipt court, showing clearly 1992. 17. 9 1993 having upheld predecessor-in-title plans adopted 1983 Culture Arts. That designation changed any subsequent decision, certified 19 from Department Office. further late 1940s As costs, acquired concerned. Moreover, time ownership, buildings existed, destroyed. concluded that, light above considerations, unjustified. 18. 12 judgment, complaining impugned substantive law. first breach decree sufficient clarity intentions future compatible plan. emphasised disregarded argument did plan alter nature only wanted reserve small part exclusive use, whereas remainder used cultural leisure purposes accessible general public. Therefore, issue arose, fact, regarding remain unchanged. indicate why continued 19. stressed War State, therefore considered State’s property. findings made this respect superficial based insufficient evidence. reasonably regarded credible, conservator operated supervision thus expected act ministry’s interests. view flaw, requested report expert construction technology order verify information conservator’s letter. conclusion, set aside case re-examined. 20. Articles 7, 8, 10, 12, 35 §§ 1 3, 75 § 1, 77 78 107 Procedure breached those shortcomings bearing outcome case. 21. unspecified date hearing before lawyer seen both reiterated new awarded. 22. judgment 22 June 1995 so far 1947. doing so, court recalled 14 31 1980, amended, appeals decisions given cases instituted 1980. review lawfulness contested second-instance 23. palace, issuing required point facts relied, refer evidence served basis factual findings, other credible. despite had, event, lawful. noted crux assess could, claim conferred way compensation expropriation carried decree. observed section 82(2) Act, where back owners. entitlement limited certain categories property, namely one-family houses or apartment blocks. present belong categories. 1985 laid down submission claims, limit expired 1988. restored time-limit. ordered. dismissed appeal.
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9. The applicant is an Iranian national and was born in 1971. His present address unknown. 10. He entered Germany October 1997 after fleeing Iran applied for political-refugee status. 11. At a hearing on 16 at the Federal Office Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), gave evidence that one of his sisters had been executed 1982 or 1983, while another imprisoned from 10 January 1983 to 13 September 1984 missing since 1987 1988. raised funds taken notes during radio programmes which he subsequently added circulated. decided leave learning third parties family home searched 6 1997. verbatim record by indicates produced list martyrs People’s Mujahidin Organisation (an opposition movement Iran), included first sister, certificate Sari Islamic Revolutionary Court 31 December indicating second sister arrested 11 account her activities Monafeghin. 12. In decision August 1998 dismissed application ground there no bar expulsion under section 51 53 Aliens Act (Ausländergesetz – see “Relevant Domestic Law” below), not succeeded establishing risked persecution if returned Iran. found vague parts it self-contradictory; also considered strange until several years become involved against regime. 13. On 5 November group political refugees sent letter stating supporter member “martyrs” threat incumbent regime, having arrested, tortured 1980s. 14. Regensburg Administrative (Verwaltungsgericht) asked Mr Yaghoubinia, brother-in-law, who has status Switzerland, be called as witness. court, however, turned request down. 15. upheld Refugees. 15 Bavarian Appeal (Bayerischer Verwaltungs-gerichshof) further appeal applicant. 16. 2 March 1999 made fresh asylum (Asylfolgeantrag), inter alia, interviewed Offener Kanal Dortmund television channel demonstration outside embassy Bonn 9 signed resolution regime published newspaper February 1999. 17. 28 April application, finding new insufficient establish would face 18. 25 May 23 June appealed stay execution order, part 20 G8 summit Cologne filmed Simaye Moghavemat, people’s station based London. 19. Mrs Hajar Yaghoubinia-Kalantari, applicant’s Switzerland represented proceedings Court, German consulate Geneva she husband prisoners Iran, law passed parliament making offence engage any activity abroad. She copy various international organisations such United Nations High Commissioner (UNHCR), Commission Human Rights, Amnesty International’s Berne office European Rights. 20. same day requested information Ministry Foreign Affairs about risk signatory event 21. 8 July OMCT (World Against Torture) contacted Permanent Mission order apprise risks expelled 22. judgment 21 ordered holding should have open criticism into possible decide case received. 23. delivered reversed when sworn statement adduced person him identified himself editor out false, director said concerned never worked channel. As result, concluded grounds relied following flight (Nachfluchtgründe) were total fabrication. 24. However, 27 admitting mistake that, channel, reported regular basis. 25. Notwithstanding these developments fact yet receive Affairs, judgments July, 1999, country. particular, declared did suffice persecution, 1,500 Iranians living exile. Nor mere name mentioned programme broadcast private 12 suffice. true participation attended majority asylum-seekers Germany. 26. being informed imminent, Special Rapporteur Torture Rights launched urgent prevent deportation 27. order. enclosed Swiss authorities’ 1989 granting article 29 edition Modjahed reporting other Ms Masoumeh Kalantari. 28. Constitutional (Bundesverfassungsgericht), sitting bench three members, declined accept constitutional adjudication. 29. substantive are still pending but suspensive effect. 30. Initially, attempted flee France then where stopped border back France, probably hiding. 31. Lyons refused permission enter territory. Asylum Appeals Board, before pending, issued provisional opinion opposing grant asylum. 32. 24 intervene matter urgency saying faced imprisonment torture there. 33. President Fourth Section apply Rule 39 Rules Court. 34. evidence. 35. This consisted two letters: authorities 22 UNHCR Liaison Liechtenstein authorities. Both letters They executed, managing escape obtain Switzerland. 36. its according possession, “had forced country origin, life danger already left Republic some earlier, tortured; regime”. 37. expressed “the may appears government can received Further, petition names signatories newspaper. These details could thus lead identify opponent, especially view active role played past”. 38. Government pursuant 40 39. 2000 Chamber composed judges expel 2000. It invited provide members reasons together with copies decisions relating 40. they position furnish requested. 41. provided, Court: “My Mina (Massoumeh) Kalantari and, subjected over months, (she died torture) ... my I common all opponents prison spent long time isolated cell heard cries tortured, even night briefest summaries our ordeal this reason we fled ...” 42. described Zara (Khadijeh) Kalantari, brother Mohammad Raza mother Effat 43. documents: (i) decision, Persian French, dated accusing “organisation hypocrites” (the organisation Mujahidin) engaging organisation, result sentenced term 1984; (ii) responsible supervising court’s certifying served 22-month sentence account; (iii) extract martyrdom Massoumeh Kalantari; (iv) documents attesting husband’s (such attending demonstrations regime); (v) informing (without giving reasons); (vi) Head 2000, their PMOI (People’s Yaghoubinia brother-in-law sister) “severely beaten respectively five years’ year’s imprisonment. released health (heart problems), shortly wife’s release 1984”. travelled Turkey vast operation interrogation former questioned security forces. said, conclusion: “After examining refugee status, eligibility officer accorded them HCR mandate Article paragraph A(ii) Statute 14 1950. geographical reservation ratified Convention Status 1951, find will able resettle. By 17 1988, Confederation quota policy.” 44. 1 assistant Nation’s report Torture, public beginning 2000: “On behalf Ali Reza reportedly facing imminent forcible repatriation Flughafen Frankfurt Lufthansa, torture. applications rejected sign document Consulate Munich agreeing return police Köln protesting Government.” 45. 18 2001 2001, set aside (see above) existed, within meaning 53(4) 48 below) expulsion. Consequently, (“Herr darf nicht den abgeschoben werden”).
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8. The applicant is a German national, born in 1938 and living Mettmann. 9. In letter of 30 December 1985 addressed to the Rheinprovinz Pension Office (Landesversicherungsanstalt), her husband, 1927, declared that for purposes entitlement widow’s or widower’s pension statutory rules still force should continue apply future (see below, “Relevant domestic law”). 10. On 4 March 1986, following husband’s death, applied with Insurance payment survivor’s pension. 11. 10 June 1986 issued decision granting as from 1 1986. Office, referring relevant provision Workers’ (Reform) Act, further stated case person concerned had other earned income lieu income, was not suspended during first year after spouse’s death. During second year, reduced by specific percentage relation dynamic exonerated amount. 12. 20 lodged an administrative complaint (Widerspruch) Pensions which dismissed on 24 1987. 13. By submissions dated 27 April 1987, applicant, represented counsel, instituted proceedings Düsseldorf Social Court, challenging above decisions Office. She maintained particular underlying legislation, especially age-limit opting out new system, unconstitutional, i.e. breach right property. this respect, noted that, according information provided Federal Ministry Labour Matters, constitutional concerning issue pending before Constitutional Court. suggested Court be await outcome said proceedings. With action, also objected calculation question. 14. 1987 pursuant Section 251 Code Civil Procedure (Zivilprozessordnung - see Relevant law). 15. 14 August reassessed applicant’s Taking into account, monthly DEM 967.10. 16. September filed action against again similar case. set was, thereupon, suspended. 17. 26 February 1993 requested resume meantime taken any legal at 17 informed been resumed. 18. 22 July inquired about state certain aspects reform governing 5 two terminated it envisaged rendering three cases 1994. 19. held oral hearing. Following discussion, parties agreed suspension 20. 1996 submitted having regard length considering age, she could no longer expected wait. 18 1998 it. 21. complaints. It found introduced Survivor’s Educational Periods so far they were compatible Basic Law (Grundgesetz). 22. 7 May forwarded Court’s counsel him comments. After reminder, asked extension time limit. 13 October he representing applicant. 23. 1999 applicants’ actions. 50 years Law. impact its decision, did concern issues raised action.
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8. The applicant was arrested in the early morning of 21 October 1990 under section 14 Prevention Terrorism (Temporary Provisions) Act 1989 Strabane by police officers Royal Ulster Constabulary (“the RUC”) investigating murder a former member Defence Regiment. transported to special holding centre for terrorist investigations at Castlereagh, Belfast. 9. interviewed thirty-five hours on consecutive days RUC officers, beginning 11.01 a.m. until 25 October. 10. At time when (1.50 October), there an initial decision made defer applicant’s access solicitor Superintendent M., officer charge investigation. He communicated this Castlereagh station telephone and confirmed writing he arrived Castlereagh. had requested solicitor. review 9.15 p.m. 1990, informed that his right see been delayed twenty-four hours. deferral therefore effective 22 His solicitor, Mr Fahy, but did not attend 12.10 23 There period from being denied relevant admissions afternoon. 11. next day, namely first interview with lasted forty minutes 12.50 no complaint ill-treatment during visit. saw again 3.15 interview, which 4.00 During policeman present. consultation took place within sight hearing who close proximity inspector told presence names were be discussed or information conveyed could assist other suspects should purely legal advice. 12. seen doctors total eight occasions stay examination following arrival 1990. any examined him. found evidence indicate mental handicap. 13. alleged admitted involvement afternoon They further stated later signed statement effect thereafter freely voluntarily additional activity statements. 14. volunteered statements but, instead, all verbal written extracted ill-treatment, threats family oppressive conduct. allegations RUC. 15. All obtained after administration them cautions pursuant Article 3 Criminal Evidence (Northern Ireland) Order 1988, terms: “You do have say anything unless you wish so I must warn if fail mention fact rely your defence court, failure take opportunity it may treated court as supporting against you. If anything, what given evidence.” 16. never permitted present interviews, nor independent person; interviews recorded video audiotape. 17. On 7.30 p.m., transferred Strandtown station, where charged. 18. 1993 tried single judge, McCollum J, sitting without jury, eighteen serious offences including, inter alia, murder, attempted possession firearms ammunition intent, explosives false imprisonment, hijacking motor vehicle, membership proscribed organisation, Provisional Irish Republican Army (the “IRA”). guilty counts. 19. disputed constituted only connecting charges brought. admissibility challenged basis they torture inhuman degrading treatment or, alternatively, excluded exercise judge’s discretion. A voir dire (submission point law absence jury) commenced gave over ten consisted highly detailed account experienced police. ill-treating applicant. 20. events filmed television camera pictures relayed monitor screen room station. times, rank duty purpose viewing screens. number impropriety kind occurring Indeed, none ever witnessed example bad behaviour interviewing officer. 21. doctors, times cooperative composed, signs recent injuries complain ill-treatment. Treatment respect history duodenal ulceration. 22. interrogation rejected trial said: “Having heard concerned impressed me honest conscientious am absolutely convinced [the applicant’s] stage are completely unfounded ... In my view truth applicant] distress would obvious None medical credence witness box is consistent absolute propriety satisfied subjected described treatment, violence oppression order induce confession threatened way.” 23. trial, unchallenged that: 24. psychologist “[the psychologically vulnerable man required appropriate support context interviews. [The psychological vulnerabilities taken together lack either Solicitor adult prolonged intensive nature opinion relevance reliability admissions”. 25. convicting applicant, judge evidence, finding needed form entitled treat him ordinary society. noted earliest follow particularly questioning those persisted story air conviction. also one thought capacity investigated prior commencement trial. stated: “... suffering such degree handicap consideration memory, understanding intellect quite adequate enable resist making was, therefore, unfair easier subject than others more manageable consider matter throws doubt confessions him”. 26. led about 27. relation question observed However, arrive suggestion unintentionally misled length found, having concerned, accurately might well convenient delay visit day because prisoners deferred then. event, prevented seeing sometime Incriminating longer concluded nothing improper deny hours, regard fears messages passed through alerting implicated offences. 28. stated, alia: considered extent strength character accused, intellectual shortcomings person whom regime itself said done upon justify discretion exclude freely, accept triggered accused able demonstrate available discredited alibi particular circumstances case provided ample grounds belief persons alerted 24 admission deferred. proper resulted part October.” 29. complaints whether getting full benefit solicitor’s observe primarily prevent prisoner suspected offence yet arrested. Under cross-examination, codes used hard identify code used. officer, least inhibited and, according prepared raise crucial evidential issues objective state affairs existed justifying both supervision namely, two still large wished interview. 30. beyond reasonable voluntarily. ground exercising oral accordingly knew playing plot murder. 31. appealed conviction sentence Court Appeal Northern Ireland. authorised postponement before request technical breach statutory provision. express sanction ran arrest whenever authorisation given. substantial reasons postpone 45(8)(b) (e) Ireland (Emergency 1991. judgment September 1996, dismissed appeal stating, “We learned aware need bear very much mind forming conclusions direction finally deciding Crown established guilt We entirely refuse application [regarding inadmissibility] rule various admissible Equally our perusal does suggest should, statements, them, This lengthy detailed. carefully counsel’s] closely reasoned submission. stood back detail looked ‘in round’ counsel] invited us do. fully convictions neither unsafe unsatisfactory.” 32. 28 July 1997 petition seeking leave House Lords dismissed.
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8. The applicant was, and still is, a prominent member of Sinn Fein. He has been arrested by the police on number occasions issued proceedings relating to his allegations, inter alia, arbitrary arrest, assault ill-treatment arising out six incidents. In lodged for incidents in 1988 19 March 1993, he received an award damages (amount unspecified). or about January 1994 was awarded 2,500 pounds sterling (GBP) incident Guildhall Square 16 1993 when judge found that had wrongfully officers who purported arrest obstruction failing give name fact they were fully aware identity. This case concerns 1985 relation murder Mr Kurt Konig. 9. Konig German citizen working caterers canteens stations Londonderry. murdered 21 November 1985. Provisional IRA claimed responsibility death. 10. Government submitted Special Branch intelligence three other persons involved murder. derived from four informants proved reliable past provided information leading seizures explosives firearms prosecutions. None criminal record. given these consistent, all gave same names as being involved, independent, none existence others each at separate meetings with officers. 11. Detective Superintendent R. Royal Ulster Constabulary (“the RUC”) briefed concerning this implicated 12. Inspector B. turn Constable S. 13. On 28 December 1985, 6 6.15 a.m., visited applicant’s house conducted search. At conclusion search, 8.05 applicant. told arresting him under section 12(1)(b) Prevention Terrorism (Temporary Provisions) Act 1984 Act”) which empowered constable without warrant, person whom reasonable grounds suspecting concerned commission, preparation instigation acts terrorism. 14. taken Castlereagh Detention Centre where questioned possible membership IRA, suspected involvement Konig’s also two soldiers 1 April 1982. interviewed thirty-four occasions. did not respond any questions. According Government, first interview occurred 11.50 start enquiring into related matters. Police notes record during next interview, 2.05 4 p.m., interrogating making enquiries 15. 29 Secretary State Northern Ireland extended period detention beyond initial 48-hour period, five days. released charge 3 1986 9 after days thirteen hours custody. 16. By writ 20 August against Chief RUC, instituted civil action before High Court respect of, assault, seizure documents, false imprisonment unlawful arrest. 17. Before Court, submissions counsel concentrated, trial found, issues confiscation documents. however raise argument, context lawfulness have sufficient suspicion committed offence justify evidence court effect attended briefing 5.30 a.m. carry search find persons, including applicant, superior officer, B., stated state own suspicion, nor asked matter either party. It common ground terrorist offence. officer called witness proceedings. 18. 14 1990 Judge McCollum there taking O’Hara GBP 100 damages. rejected claims ill-treatment, finding satisfied balance probabilities version events right wrong. As regards allegations wrongful noted: “... while [the counsel] [applicant] required, order render lawful, addition holding grounding [applicant], [to] based knowledge facts giving rise suspicion. accepted both Justice Carswell Lord previously submission similar cases. While reserved position issue made no new produced arguments me would cause depart reasoning their decisions, circumstances I am [S.] result Cross-examination detective probe details disclosed course supplied information. reasonably morning. Either party could elicited briefing, truth matters disclosed, but relevant reasonableness held officer. Proof lies defendant. wish lay down proposition be opinion another expressed supporting fact. But it does seem officially therein. such scanty means only just legality fortified my view lack detailed challenge cross-examination nature him. main between parties is whether assaulted mistreated ...” 19. 24 October 1990, notice appeal Appeal claim imprisonment. 20. May dismissed appeal, upholding decision lawful. “Notwithstanding concern more detail given, learned able conclude: ‘(1) ... implicit genuinely him; (2) official [his officer] suspicion.’ These factual findings clearly contained our essential proofs respondent required adduce constitute lawful Act. [Applicant’s case. source must court, namely [B.], unjust, contended, if 12 [B.] protection liability himself part flies face authorities we said. second part, so far concerned, seems hypothetical regularity bona fides ‘official briefing’ questioned. No foundation We consider correct. admissible although, words, ‘scanty’ mind Act.” 21. An House Lords 1996. judgment, judges agreed, Hope Craighead necessary possess led equipped suspect exercising power acted upon need observations, entitled form what told; may anonymously, turns later indeed scanty, weigh up light surrounding and, having regard information, draw inferences man, independent observer, make it. 22. Steyn stated, general principles: “Certain propositions powers constables 12(1) can now summarised. (1) amounting prima facie Ex hypothesis one considering preliminary stage investigation informer tip-off public enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. Hearsay therefore afford Such come (3) causes suspicious individual time makes (4) executive ‘discretion’ vests constable, engaged not, Given accountability provision follow mere instructed capable within meaning 12(1). accepted, rightly request further equal ranking junior incapable How badge difference? practice follows some basis someone 12(1), e.g. report informer.”
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8. By summons of 5 June 1995 the applicant was ordered to appear on 14 before First-Instance Court (Gerecht in Eerste Aanleg) Netherlands Antilles charges possession about one kilogram cocaine. 9. judgment 28 1995, following adversarial proceedings course which assisted by a lawyer, acquitted applicant. The prosecution filed an appeal with Joint Justice (Gemeenschappelijk Hof van Justitie) and Aruba. 10. As had failed at its first hearing 2 January 1996, he declared default appearance (verstek). adjourned until 9 1996. also On that date, resumed examined appeal. applicant’s lawyer attended this conducted defence. 11. 23 absentia, quashed convicted having violated section 3(1) 1960 Opium Act (Opiumlandsverordening 1960) sentenced him two years’ imprisonment. 12. Relying Cassation Regulations for Aruba (Cassatieregeling voor de Nederlandse Antillen en Aruba), cassation Supreme (Hoge Raad), is limited points law procedural conformity. 13. In 27 May 1997, noted that, pursuant Article 10 § Aruba, no lay against judgments pronounced absentia. 14. It rejected argument advanced defence, should nevertheless be admissible ground provision contrary Convention 26 International Covenant Civil Political Rights it constituted unjustified difference treatment between persons tried 15. according 239 Code Criminal Procedure (Wetboek Strafvordering Antillen), person absentia could file objection (verzet) conviction. If accused then appeared trial court, case would, 240 Antilles, fully retried same court would lie resulting judgment. 16. concluded circumstances, However, basis contents statement made 29 1996 behalf applicant, interpreted as being his conviction transmission determination objection.
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9. On 25 October 1980 police officers from the Fatsa Security Directorate arrested applicant on suspicion of membership an illegal armed organisation, Dev-Yol (Revolutionary Way). 10. 3 January 1981 Perşembe Criminal ordered applicant’s detention remand. 11. 10 May 1982 Military Public Prosecutor filed a bill indictment with Erzincan Martial Law Court against and 722 other defendants. The accused applicant, inter alia, Dev-Yol, whose object was to undermine constitutional order replace it Marxist-Leninist regime. prosecution sought death penalty under Article 146 § 1 Turkish Code. 12. 5 February 1985 released pending trial. 13. In judgment 24 August 1988 convicted account his involvement in Dev-Yol. It sentenced fifteen years’ imprisonment Code, permanently debarred him employment civil service. 14. appealed Cassation. 15. Following promulgation 27 December 1993, which abolished jurisdiction Courts, Cassation (yargıtay) acquired over case 26 1994 file transmitted it. 16. 4 July 1995 quashed conviction ground that he should have been offence referred Ankara Assize (ağır ceza mahkemesi). 17. June 1997 decided, 102 criminal proceedings be discontinued since time‑barred.
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9. On 17 November 1980 police officers from the Ankara Security Directorate arrested applicant on suspicion of membership an illegal armed organisation, Dev-Yol (Revolutionary Way). 10. 20 February 1981 Martial Law Court (sıkıyönetim mahkemesi) ordered applicant’s detention remand. 11. 26 1982 Military Public Prosecutor filed a bill indictment with against and 722 other defendants. The accused applicant, inter alia, Dev-Yol, whose object was to undermine constitutional order replace it Marxist-Leninist regime. prosecution sought death penalty under Article 146 § 1 Turkish Criminal Code. 12. 14 December 1988 release pending trial. 13. In judgment 19 July 1989 convicted Dev-Yol. It sentenced 16 years’ imprisonment 168 Code, permanently debarred him employment in civil service placed judicial guardianship. 14. As sentence exceeded 15 imprisonment, his case automatically referred Cassation (askeri yargıtay). 15. Following promulgation 27 1993, which abolished jurisdiction Courts, (yargıtay) acquired over 1994 file transmitted it. 16. 1995 quashed conviction ground that he should have been offence Assize (ağır ceza mahkemesi). criminal proceedings are still before latter court.
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8. On 2 February 1994 the applicants’ two-year-old daughter, Erika, underwent heart surgery at Marie-Lannelongue Hospital in Le Plessis-Robinson (France). 9. 17 June 1996 Erika was admitted to same hospital for a postoperative check-up. 10. 18 she became feverish and vomited blood. The doctors diagnosed rhinopharyngitis prescribed antibiotics. 20 decided allow child leave hospital. 11. In evening of day applicants telephoned because again. 12. 22 took doctor, who pneumonia, requested that be immediately. arriving initially taken cardiology unit. When fell into coma transferred intensive care said had serious infection left lung, which weakened her heart. 13. 24 died. 14. 28 lodged complaint with Nanterre public prosecutor. 1 July an inquiry causes death opened. 15. 3 investigating judge, Miss M., instructed Sceaux Gendarmerie Investigation Squad seize Erika’s medical file question members staff looked after Erika. 14 August reported back judge its incomplete findings. 16. 5 ordered autopsy, carried out on 9 July. Several tissue samples were case further examination needed. autopsy report, dated 25 1996, concluded time been suffering from acute respiratory infection. 17. 16 September commissioned anatomopathological report Professor L., expert forensic medicine, Dr D., specialist, giving them until 15 December submit their report. 18. 13 January 1997 asked send by “absolute deadline 1997”. 19. From date onwards sent numerous letters Italian consulate-general Paris, Ministry Foreign Affairs Rome Parliament aim securing return body. 20. Italy number MPs put parliamentary questions government held press conferences case. newspaper articles published subject. 21. consul-general made repeated representations including 26 September, November 12 forwarded information he obtained applicants. 22. formal prosecutor, demanded explanation L. letter 1997, replied as follows: “The immediately notified results telephone. She told all necessary internal organs body could returned family 1996. studied subsequently viewpoint this done 4 but I also examine seek opinion another expert, 1997. seals removed it discovered intensive-care missing, so we contacted our colleagues, us copy are currently examining. is complex essential have certain amount study it, there no reason keep Institute Forensic Medicine. administrative authorities Medicine repeatedly expressed concern length has kept storage. June, they Court, charge awaiting outcome examination, latter part longer task investigation analysis not yet completed. M. therefore completely free release hence sign burial certificate, leaving carry work.” 23. receiving above letter, prosecutor order family. 24. B., standing issued certificate. 25. 19 buried Terracina Cemetery. 26. March wrote expressing surprise more than six months filed asking him inform any difficulties or obstacles might explain failure do so. 27. “a problem discrepancy between anatomical observations file”, meant experts organise interviews child, scheduled 8 April 28. experts’ 29 They “there possibility life-saving surgery” signs “any mistaken treatment”. 29. deputy informed dropped none reports revealed negligence, error diagnosis treatment possibly criminal offence.
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8. The applicant, who had lived for a while in the United States of America, was suspected drug trafficking and warrant his arrest issued by police January 1996. 9. Following request authorities, on 15 August 1997 public prosecutor asked Skopje Municipal Court to institute preliminary investigation against applicant charges that between 1992 May 1995 he smuggled around 10.5 kg drugs from Bulgaria Former Yugoslav Republic Macedonia purpose set up drug-trafficking network involving also son, lives States. prosecution’s out names persons involved whom criminal proceedings were pending or completed their questioning. 10. On 30 September investigating judge opened decided hear witnesses proposed prosecution detained remand. 11. 1 October Ministry Justice contact government assistance hearing some country. 10 addressed embassy. 12. 7 November embassy informed applicant. notice contained be examined list fifteen questions put them. 13. 28 applicant’s lawyer would go one week later summoned hearing. 14. December denied visa ground not produced all relevant documents required. him it review application provided submitted certificate working position, income, seniority evidence owned real estate family ties Macedonia. never reapplied visa. 2 withdrew power attorney. 15. 3 appointed another lawyer, who, same day, attend States, scheduled 8 1997. summons, placed signature space bailiff’s bailiff lawyer’s signature. 16. 4 questioned. He stated been heard contacted second left decision whether further expenses trip problem as sufficient funds cover 17. day first questioning declared there no need insufficient meet travel expenses. 18. 9 1997, five presence court interpreter. Their testimonies recorded. organised they serving prison sentences trafficking. 19. According witnesses, under oath separately, entire smuggling into re-sale approximately drugs. contacts Bulgaria, where smuggle then arrange them Some plaster-cast which wrap legs, though broken. arrival hand over son return payment. an agreement with dealing supplied son’s house. 20. Two travelled separate occasions gave taken Mr Robert M.’s flat M. wrapped plasters witnesses’ legs. None made any statement regarding Angel B. 21. 22 indicted setting international purpose. statements included indictment. 29 released. 22. 1998 submission case answer convincing him. In particular, indictment predominantly based cross-examined defence. argued deal authorities have reduced exchange cooperation. hand, since already convicted aware risk anything if false evidence, could prosecuted law other modified testimonies, ran losing benefits agreed upon authorities. 23. 12 held basis reasonable suspicion might committed offence charged refused terminate 24. 13 before Court. held. claimed innocent because knew dangerous Photographs showing plaster-cast, belonging person found, photographs reports search witness’s found connection pre-trial detention were, inter alia, examined. 25. complained unable cross-examine witnesses. objected being read open court. “to secure attendance is extremely difficult are important reasons”. challenged without pointing concretely why should considered trustworthy, specifying liked 26. At requested two additional defence record states follows: “... gather information about M., particular place residence, co-organisers [of trafficking] accused, [and so] obtain file, call witness. called witness, B., village Kompliven, give accused ever (amphetamines), etc. ...” motion “the [had] reach its verdict”. 27. 26 municipal guilty within meaning Article 255 § Criminal Code sentenced ten years’ imprisonment. dismissed objection breach right impossible summon It reliable, opportunity make giving observed recognised photo that, although each separately prosecutor, consistent precise. regard testimony. 28. February appeal Appeal (Апелационен суд) requesting increase sentence view nature committed, degree danger public, fact concerned crime at level habitual offender. 29. 6 March filed Appeal, complaining, lower infringed Procedure Convention, reached verdict only cross-examined. court’s refusal behalf. 30. 20 acted accordance 325 Procedure, absence valid reason making do otherwise (see “Relevant domestic practice” below). given reasoned explanation those They but legal representatives duly examination and, therefore, logical corroborated such searches carried contributed much establishment truth. granted prosecutor’s increased thirteen 31. 11 June points (Барање за вонредно преиспитување на правосилна одлука) Supreme (Врховен суд). 32. July grounds competence when interrogate lawyers Furthermore, hearing, abroad. Consequently, rules reasons justify 33. 1999 notary father nothing Another engaged trade spare parts motor vehicles. 5 applied reopened declarations. His 27 1999. upheld Appeal.
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8. On 12 November 1994 four armed robbers wearing masks entered the premises of a transport company which employed number inmates from Poissy Prison who were in semi-detention or on external work assignments. After locking entire staff lavatories, they forced manager, whom had taken hostage, to open safe, stole 120,000 French francs (FRF) cash before making off. The investigators concentrated their inquiries some prison inmates. One them, G.D., witnessed offences and been threatened by robbers. 9. 13 January 1995 managing director cheque stolen. home one company’s employees, E.M., was searched forged identity card bearing applicant’s photo discovered, together with sawn-off shotgun. employee admitted that he provided applicant information help him commit robbery return for sum FRF 10,000. He also stated recognised while offence being committed despite mask robber carrying 10. 19 investigating judge at Versailles tribunal de grande instance decided have detained pending trial issued warrant commitment robbery, false imprisonment, wounding intent wilful violence resulting total unfitness less than eight days. 11. 18 1996 made an order extending detention months 1996. 12. twice extended further months, 14 May onwards September onwards. 13. 30 substituted charge imprisonment voluntary release (an intermediate (délit)) more serious (crime) partial discharge order. In accordance Article 181 Code Criminal Procedure, ordered file be transferred public prosecutor’s office Court Appeal view Indictment Division indicting committing Assize Court. That served 3 October 14. judgment 27 investigations appointed purpose previously investigation. 15. 20 1997 requested bailiff called record officially his become unlawful as last it, dated effective midnight period expired 1997. 16. formal demand (sommation interpellative) addressed governor Fresnes asked sent virtue still held prison. reply told under transfer Appeal’s 17. lodged complaint Créteil prosecutor alleging arbitrary but received no reply. 18. 9 April application immediate ground arbitrarily judge’s initial ceased any effect 19. 25 dismissed following reason: “It is not disputed delivered within time laid down paragraph 214 Procedure. Consequently, since did rule facts investigated, continued effect. …” 20. same should kept custody avoid all risk pressure brought bear witnesses collusion because could provide sufficient sureties would appear trial. 21. appealed points law, relying grounds appeal based, firstly, infringement 725 Procedure and, secondly, breach Articles 201 5 Convention. 22. August Cassation grounds: appears impugned documents respect [the applicant], investigation including robbery. expiry its validity year later, three times final extension taking 1996, investigations. [The applicant] release, valid unlawfully date; refused now against. so ruling, court lay itself objections raised. Since judges allowed 214, third paragraph, remained effective, 181, second Code, after remains until decision indictment 23. 10 1997, completion investigations, directed Yvelines charged other connected lesser offences. contained remanded custody. An law against December 24. June 1998 tried Court, sentenced ten years’ imprisonment. day civil claims pay party 50,000 damages. 25. March 1999 appeals Court’s judgments.
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7. The applicant is a Lithuanian national, born in 1948 and living Vilnius. From 1993 to 1996 he was the Prime Minister of Lithuania. 8. In January two members Seimas (Parliament) wrote letters Prosecutor General, requesting him institute criminal proceedings against connection with allegations financial impropriety amounting abuse office. On 24 were instituted. 9. an unspecified date 1996, applicant’s bank accounts seized context proceedings. 8 February resigned as order pursue business activities. 10. 10 October prosecutor Office General charged counts 17 preliminary investigation concluded, given access case-file until 28 November 1996. 16 December re-formulated charges applicant. 18 19 again had case-file. 21 bill indictment confirmed, case transmitted Vilnius Regional Court. 11. 13 March 1997 Court, after directions hearing on 1997, found that pre-trial been conducted improperly vague speculative, his defence rights breached. Court returned prosecution for further investigation. 12. 26 appealed. appeal dismissed 14 May 1997. 29 applicant, this time four office, forgery cheating. 1 charges. 3 23 1998 requested discontinue absence any offence. This rejected 6 1998. new confirmed 13. June, July 9 30 September 1998, heard case. court collection material evidence required. adjourned applied Constitutional it rule compatibility Constitution number provisions Code Criminal Procedure pertaining investigative nature judicial functions. 5 1999 adopted decision request, returning 1999. 14. fifth time, five One co-defendant together 15. because co-defendant. June latter unclear. investigations be carried out. 16. scheduled did not take place co‑defendant. Appeal appeal. 17. Deputy lodged cassation above decisions, complaining inter alia courts several times by reference allegedly unclear charges, instead evaluating merits those leading conviction or acquittal. pleaded thereby unjustifiably protracted delayed adoption final 18. 11 2000 Supreme It held main reason ambiguity which interfered “prevented lawful judgment” merits. 19. regional April informed discontinued offence regard (Article § 2 Procedure), lack guilt respect remaining three 233 Procedure). seizure property lifted same date. 20. another 2000. appealed claiming definitively discontinued. 31 August appeal, holding accordance relevant domestic requirements. also could apply challenge
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9. On 15 December 1993 the Koszalin District Court appointed applicant to function of a judicial liquidator limited liability company H. located in Koszalin. 10. 19 March 1994 insolvency judge M. requested commercial division dismiss from his function. She submitted that had been involved civil proceedings relating failure pay salaries employees he owned and court found against him. Therefore did not comply with legal requirements satisfy since could be considered trustworthy. Furthermore, until end January failed give notice all company. Consequently, performing obligations satisfactory manner as required by law. 11. 21 Court, at session held camera, dismissed new liquidator. The sat on bench composed three professional judges gave this decision. No party attended was, likewise, present, having informed or summoned attend it, law provide for it. 12. 28 appealed He that, while it was true no appeal filed decision appoint liquidator, clear whether an available dismissal good reputation lawyer employer damaged both contents M.’s motion subsequent dismissal. argued certain statements were incorrect facts. lodge order challenge them. contested allegations untrustworthy carrying out duties properly. further judge, considering her own dismissal, acted claimant member court, which called into question court’s impartiality. 13. By 30 rejected applicant’s appeal. Insolvency Act Judge entitled sit deciding about because excluded participation only cases given proceedings. 14. Regional submitting wrong hold there reiterated denied possibility have him reviewed impartial court. 15. 8 July appeal, under Act, possible one appointed. 16. 29 April 1996 Słupsk convicted misappropriation company’s assets, sentenced year’s imprisonment stayed enforcement sentence two years. 17. 26 September Appeal quashed judgment ordered case reconsidered. 18. 10 1997 assets company, year probationary period year. 19. 16 October Gdańsk upheld judgment.
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8. The applicant, Krzysztof Iwańczuk, is a Polish national, who was born in 1962. He lives Brzeg, Poland. 9. On 12 September 1991 the Wrocław-Krzyki District Prosecutor charged applicant with forgery of various documents and use counterfeit documents. 14 May 1992 issued warrant arrest against on suspicion theft. 22 Wrocław Regional Court dismissed applicant’s appeal arrest. 10. 24 July decided to prolong detention until 15 November 1992. 21 August Appeal this decision. 11. fraud. 6 prolonged 31 December 18 changed charges laid into misappropriation. 23 28 February 1993. 12. 1993 April March 13. 8 bill indictment submitted Court. 30 that court for another three months. appealed decision, 25 completed his by request be present at court’s hearing concerning further prolongation detention. 14. 1 requested fix date first hearing. same day 15. 19 9.30 p.m prison authorities allow him vote parliamentary elections, as there were voting facilities detainees prison. guard took guards’ room. then told group four guards order allowed he must get undressed undergo body search. off clothes except underwear, whereupon allegedly ridiculed him, exchanged humiliating remarks about abused verbally. ordered strip naked. refused do so repeatedly permission without As refused, taken back cell being vote. 16. A other prisoners go room approximately 9 p.m. day, also 17. 20 merits held before 18. brought an action Supreme Court, complaining right had been breached prevented from voting. requirement search unjustified not any indications behaviour during entire period might threaten safety or guards. complained humiliation vulgar comments verbal abuse course events of. ten It untenable claim could danger anyone when thereto, particular it ascertained have arms him. 19. 27 October action. referred note conversation between principal duty material president election committee prison, relating events. This prepared upon following relevant enquiry assistance establishing facts case. noted that, according note, stated razor hidden members therewith. considered acting conformity Rules Detention Remand 1989, which provided "if such need arose, detainee should search" 1974 unpublished Ordinance Prison Security, concerning, inter alia, detainees. certain, court, whether time regulation still remained force, but they acted thereto. Thus established part intent commit offence, their position. concluded did violate rights. 20. release bail 2,000,000,000 (old) zlotys. Upon appeal, upheld decision 5 January 1994, considering no impediment deposited bonds mortgage. 21. 1994 reduced 1,500,000,000 accepted form mortgage property, enclosed estimate property made expert extract land register effect owner concerned. 22. 17 failed take steps toward implementing its 1994. after unlawful, given replaced bail. pointed out property. 23. cash State obligations. 7 quashed sum lowered 100,000,000 zlotys 750,000,000 released. 24. Hearings fixed July, September, 1995 adjourned unknown reasons. 16 accused heard court. 25. Subsequently, hearings April, May, 29 June, adjourned, Next questioning accused. hearing, 1995, adjourned. 1996 certain witnesses questioned. Hearing 2 At 13 questioned witnesses. scheduled 26 March, 11 heard. 26. gave evidence. November, 1996, 1997 evidence 3 27. In dates: 4 September. 28. 1998 10 October, December. 29. next 1999. 30. During eleven 31. 1999, 71st proceedings, composition changed, and, consequently, case recommenced. 1999 2000 read indictment. 2000. proceedings are pending.
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8. The facts of the case, as submitted by parties, may be summarised follows. 9. On 14 December 1993 applicant was arrested police. 16 Starogard Gdański District Prosecutor (Prokurator Rejonowy) charged with commission robbery together three accomplices and remanded him in custody. charges related to a brutal assault businessman who had been attacked baseball bat tear gas robbed 122,864 zlotys. 10. 22 February 1994 Gdańsk Regional Court (Sąd Wojewódzki) decided extend applicant’s detention. 1 March appealed against that decision Appeal Apelacyjny). appellate court dismissed appeal. It rejected contention Court’s referred only general terms reasons justifying his In addition, considered evidence taken from one witnesses gave rise reasonable suspicion committed robbery. 11. 24 May detention until September 1994. showed probably criminal offence which he charged. pointed out several pieces remained taken, including psychiatric examination applicant. also fact investigation case not concluded at stage could attributed inactivity prosecuting authorities. 27 decision. 15 June appeal dismissed. 12. 29 August filed bill indictment. However, returned it instructing elaborate its reasoning. 13. 10 November an application for release made noted, inter alia, offence, constituted significant danger society (znaczny stopień społecznego niebezpieczeństwa). observed son cared cohabitee, assisted her parents mother. 14. 21 applied 15. 28 re-submitted indictment Court. 16. 5 again but on 6 17. 18. fresh 17 January 1995 noted caused society. should released because already spent long period time waiting hearing fixed 23 1995. 19. 25 collected opinion guilt. recalled that, view length sentence, imposed excessively long. 20. same date first held. adjourned April 21. rejecting referred, carried penalty exceeding five years’ imprisonment. further any showing situation family called release. proceedings before excessive. connection, months elapsed between trial hearing. two day reserved calendar second which, court’s opinion, would result adjournment impossible take all four suspects single day. finally recommended expedited. 22. held court. 23. 19 Vice-President replied letter 8 complained, about delay proceedings. advised position interfere independent competent decide whether remand justified. Furthermore, absence counsel. during defendants eight witnesses. inability hold hearings shorter intervals resulted heavy workload judges lack courtrooms. although disclosed certain delay, significant. He President informed necessity expedite cases. 24. next took place July Government latter cohabitee recanted testimony explained she persuaded testify when committed. 25. unsubstantiated challenge considering case. 26. 27. expedited they end 28. 7 place. 29. 4 1996 course laid were sufficiently alleged act drastic involved theft sum money. recently scheduled “for objective reasons”. Moreover, 1996. 30. 2 31. lodged co-defendants. agreed submission time. nature applicant, heard 32. March, 9 26 33. lasted thirty months, failed try since beginning responsible failure conclude worsening financial did constitute ground wife helped social services. 34. Between 30 12 six 35. unspecified dates counsel separately appeals 36. “a load harmfulness” (wysoki ładunek społecznej szkodliwości), especially manner severe penalty, such justified stated judicial substantially delayed, shortly. 37. grounds reached final stage, there date. 38. 39. 40. November, 11 41. transmitted case-file Supreme Najwyższy), request extended. 42. 1997 1997. firstly existed legal detaining remand. question guilt court, towards so far more than years, thirteen twenty over no influence. acting eleven adjournments. based Article 222 § Code Criminal Procedure provided prolongation “other circumstances, overcome organs conducting proceedings”. near future after just few additional hearings. Finally, defence lawyers appointed order avoid adjournments ill-health 43. 44. 3 convicted sentenced imprisonment, fine disenfranchisement years. judgment Appeal. 45. 46. asserted occasion most important testified mother put pressure submit false evidence. 47. new 48. 1998 received expert opinion. 13 aid asked exempt defending 49. quashed remitted prosecution service carry investigation. 50. victim part crime scene reconstruction threats life therefore afraid perpetrators crime. 51. 1999 52. adjourned. attend 53. withdrew power attorney 54. September, October occasions some accused. 55. January, 2000. third those appear averred attended except occasions, prevented appearing ill-health. 56. are still pending.
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10. On 8 November 1993 the applicant commenced employment as an administrative assistant at United States Embassy in London, Foreign Broadcasting Information Service, which is a subsidiary of Central Intelligence Agency. She was dismissed from her February 1995. Following dismissal issued proceedings against Government North London Industrial Tribunal, claiming that had been result sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) Sex Discrimination Act 1975 (see paragraph 15 below). In particular she alleged victim persistent sexual harassment supervisor working relationships broken down consequence. The defended claim did not, any stage these proceedings, State immunity. 13 May 1996 Tribunal upheld applicant’s complaint. A compensation figure GBP 12,000 agreed between parties. 11. June 1995, whilst first still pending, applied for obtained fixed term 12 month contract within Building Operations section Embassy. due expire 1996. August (after finding favour by Tribunal), least two following posts States: secretary with Office Litigation Department Justice, temporary above office International Marketing Centre, operated Commercial Service. each occasion application unsuccessful. 12. September second before Tribunal. claimed refusal re-employ consequence previous successful claim, accordingly constituted victimisation meaning 4 6 1975. 13. By letter 10 January 1997, solicitors acting notified Regional Secretary intended immunity jurisdiction under 1 16(1)(a) Immunity 1978 (“the Act”: see 16 enclosed affidavit sworn First Embassy, deposing fact were part technical staff fell ambit imposed Act. 14. 1997 received advice counsel, effect entitled Act, once properly asserted there no means court or tribunal Kingdom could accept entertain application. Accordingly, advised remedy domestic law. 15. Act”) creates statutory cause action arises when employer treats employee potential less favourably reason (“sex discrimination”), has taken intends take person (“victimisation”). Section 1(1) defines “sex discrimination” follows: “A discriminates woman circumstances relevant purposes provision this if: (a)on ground he than would treat man ...” 4(1) “victimisation” (‘the discriminator’) another victimised’) if victimised those other persons, does so has: (a)brought discriminator ... (d)alleged committed act amount contravention give rise Equal Pay 1970 it unlawful discriminate employees applicants, on grounds victimisation, “(1) It person, relation him establishment Great Britain, woman: (a)in arrangements makes purpose determining who should be offered employment, (c)by refusing deliberately omitting offer employment.” (2)It case employed (b)by dismissing her, subjecting detriment.” 16. Kingdom’s provides, inter alia, “1(1)A immune courts except provided provisions Part …4(1)A not respects relating individual where made work wholly partly performed there. 4(2)Subject sub-sections (3) (4) below, apply if- (a) time are brought national concerned; (b)at neither nor habitually resident there; (c)the parties have otherwise writing.4(3)Where office, agency maintained commercial purposes, sub-section (2)(a) (b) do exclude unless was, made, State. …16(1)This affect privilege conferred Diplomatic Privileges 1964 Consular Relations 1968; and:- (a)Section concerning member mission Convention scheduled said consular post 1968. 17. Article Vienna provides definitions: “(b)the ‘members mission’ head members mission; diplomatic staff, service mission. ...(f)the staff’ mission.” 18. 1972 European Basle Convention”), entered into force 11 1976 after its ratification three States. now ratified eight (Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland Kingdom) signed one (Portugal). respect October 1979, alia: 5 “1.A Contracting cannot Court relate territory forum. 2.Paragraph shall where:(a)the employing brought; forum State; writing, unless, accordance law forum, Courts exclusive subject-matter. 3.Where done referred 7, paragraphs 2(a) present article only if, into, his habitual residence employs him.” 32 “Nothing privileges immunities exercise functions missions persons connected them.” 19. Law Commission’s Draft Articles Jurisdictional Immunities Their Property, submitted General Assembly Nations ((1991), II(2) YBILC 13), 11, 1, that: “a invoke proceeding relates [the host] State.” However, specifically disapplied “the subject recruitment, renewal reinstatement individual” recruited perform closely related governmental authority”. Although explicit reference provisions, commentary indicates latter exception such context all precluded bringing suit basis 20. Committee Association adopted 1982 Immunity, IIIC dealt contracts similar terms Convention. An amendment added ILA’s 1994 conference, providing granted appointed public (administrative) foreign state as, mission, diplomatic, military staff”. explanatory stated wished “to make clear relationship state”.
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7. The applicant is a police officer (garda). At 11 p.m. on 4 March 1991, when off-duty, the and two passengers, in private car (described subsequent reports as “jeep”) towing van trailer, crossed from Northern Ireland into at United Kingdom permanent vehicle checkpoint County Derry. Precisely what occurred that night disputed between parties. It not, however accidentally drove his barrier. check-point was manned by armed British soldiers, one of whom, corporal Royal Military Police, approached after accident. Government contend he asked to stop ignored. alleges did soldier then waved him on. In any event, it would appear moved towards hit being towed. He thrown forward tow-bar dragged for short distance until managed pull himself up standing position tow-bar. maintains unaware soldier’s continued driving Ireland. According report completed Irish Police April 1991 following their investigation incident (see paragraph 9 below), fired six shots, which entered car’s exhaust pipe, another went through back windscreen exited roof. claim some, least, these shots were heard and, fearing terrorist attack, reached station, where considered be safe. stopped about miles border, village Muff, Donegal, report, this stage soldier, described witnesses state “blind panic”, ordered passengers get out stand against wall with hands air. turned face intending explain there no cause alarm. Again, according applicant, aimed gun pulled trigger twice, although not fire because jammed. 8. had been notified border soon arrived Muff. arrested suspicion having consumed excess alcohol. refused comply requests provide blood urine samples. 9. As mentioned above, carried an inquiry course 71 interviewed. investigating concluded shown “a regrettable degree recklessness” leaving scene accident check-point. continued: “This most serious could have resulted injury or death more persons. First all great risk, fallen off draw-bar. three occupants jeep may well shot [the soldier] colleagues safety bystanders Muff also put jeopardy resulting presence terrified soldier. This matter has vigorously thoroughly investigated only conceivable reason I can find prompt Garda McElhinney deliberately leave intoxicated ...”. subsequently prosecuted convicted refusal No disciplinary proceedings taken him, but transferred area. 10. feared life suffered severe post-traumatic shock result above incident. On 29 June 1993 lodged action High Court individual Secretary State claimed damages, including exemplary punitive respect allegation wrongfully assaulted pointing loaded pulling trigger. 11. 5 November Government’s solicitors wrote applicant’s follows: “... bears responsibility actions first defendant who Armed Forces under authority Defence accordingly proper proceedings. Even if defendant, both they are exempt jurisdiction courts basis doctrine sovereign immunity. If your client considers does valid nothing prevent pursuing body. ...” replied letter dated 3 December 1993: We sought advice issue foreign immunity raised you advised that, circumstances, such apply. That so, our prefers seek redress question occurred. 12. 13 January 1994 applied permission substitute second Defence. 21 Ireland, claiming immunity, summons set aside. 13. 15 judge granted State’s request, ground entitled bring member government. 14. appealed, arguing, first, apply claims damages personal caused torts taking place within forum jurisdiction. Secondly, submitted principle reciprocity should court granting circumstances courts, applying Immunity Act 1978, grant Thirdly, argument even applied, yield case since alleged infringement constitutionally protected right bodily integrity. 15. Supreme gave judgment 1995, rejecting appeal. relied Court’s Canada v. Employment Appeals Tribunal (1992) 2 IR 484, held proposition commercial trading activities facts relate activity, established public international law, longer injuries tortious act servant agent acting sphere activity (“de jure imperii”). judgment, Chief Justice Hamilton, whom Justices O’Flaherty Blayney agreed, observed: “There doubt carrying duties said governmental acts complained must regarded ‘jure imperii’ though committed behalf plaintiff near-universally recognised law allegedly inflicted government constitute exception principle. support submission, counsel referred particular 1978; Canadian 1982; Australian Foreign Sovereign Immunities 1985 European Convention 1972. ... relies statutes indicative law. Distinction drawn provisions legislation number states principles forth cannot establishing used evidence is: domestic generally. Article provides that:- ‘A Contracting Party contracting party person damage tangible property, occasioned territory forum, author present time those occurred.’ do decide, case, whether terms part were, plaintiff’s herein fail virtue 31 Convention, ‘Nothing shall affect immunities privileges enjoyed anything done omitted by, relation its forces State.’ recognise forces, State, exist. ...Despite Herculean efforts legal advisers making available copies relevant decisions, articles draft Conventions, cogent arguments counsel, am satisfied restricted them liable acts, agent, causing affected omission, omission imperii dismiss appeal point 16. pursue him. II.RELEVANT materials 17. (cited above), Hederman “The generally which, 29, s.3 Constitution, accepted rule conduct relations other .... [T]he Oireachtas National Parliament] never qualify modify 18. 1972 (“the Basle Convention”), force 1976 ratification States. now ratified eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland Kingdom) signed (Portugal), 11: “A ” same provides: “Nothing State.” 19. International Law Commission’s Draft Articles Jurisdictional Their Property, General Assembly Nations ((1991), II(2) YBILC 13), 12 that: invoke before otherwise competent proceeding relates pecuniary compensation person, loss attributable whole omission.” commentary passage, ILC noted “physical appears confined insurable risks. areas envisaged mainly concerned accidental physical persons involved traffic accidents Essentially, non-immunity will preclude possibility insurance company hiding behind cloak evading liability injured individuals.”
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9. The applicant made the following allegations concerning events underlying dispute he submitted to English courts. Government stated that they were not in a position comment on accuracy of these claims. 10. applicant, who is trained pilot, went Kuwait 1991 assist its defence against Iraq. During Gulf War served as member Kuwaiti Air Force and, after Iraqi invasion, remained behind resistance movement. period came into possession sex videotapes involving Sheikh Jaber Al-Sabah Al-Saud (“the Sheikh”), related Emir and said have an influential Kuwait. By some means tapes entered general circulation, for which was held responsible by Sheikh. 11. After armed forces expelled from Kuwait, or about 2 May 1991, two others gained entry applicant’s house, beat him took at gunpoint government jeep State Security Prison. falsely imprisoned there several days during repeatedly beaten security guards. He released 5 having been forced sign false confession. 12. On 7 car palace Kuwait’s brother. At first head underwater swimming-pool containing corpses, then dragged small room where set fire mattresses soaked petrol, result seriously burnt. 13. Initially treated hospital, 17 returned England spent six weeks hospital being burns covering 25% his total body surface area. also suffered psychological damage has diagnosed suffering severe form post-traumatic stress disorder, aggravated fact that, once England, received threats warning take action give publicity plight. 14. 29 August 1992 instituted civil proceedings compensation respect injury physical mental health caused torture life well-being return United Kingdom 1991. 15 December obtained default judgment 15. re-issued amendment include named individuals defendants. 8 July 1993 deputy High Court judge ex parte gave leave serve individual This decision confirmed chambers 1993. not, however, granted writ 16. renewed application Appeal, heard 21 January 1994. Judgment delivered same day. court held, basis allegations, three elements pointing towards responsibility Kuwait: firstly, had taken prison; secondly, transport used 1991; thirdly, prison mistreated public officials. It found established good arguable case, based principles international law, should be afforded immunity under section 1(1) Immunity Act 1978 Act”: see paragraph below) acts torture. In addition, medical evidence indicating (post-traumatic stress) while Kingdom. followed conditions Order 11 rule 1(f) Rules Supreme satisfied (see 20 17. government, receiving writ, sought order striking out proceedings. examined inter partes March 1995. day it show balance probabilities entitled Act. prepared provisionally accept vicariously conduct would qualify law. However, law could only interpreting lacunae ambiguities statute, when terms statute clear, prevail over clear language bestowed upon sovereign States committed outside jurisdiction making express provision exceptions, excluded matter construction implied exceptions. As result, no exception Moreover, provided apply. struck out. 18. appealed Appeal case 12 1996. important question was, therefore, whether applied alleged Lord Justice Stuart-Smith finding observed: “Jurisdiction foreign governed 1978. Section provides: ‘A immune courts except provisions this Part ...’ ... relevant 5, respects (a) death personal act omission Kingdom.’ plain do fall within words 1 provide First Defendant. Despite this, what [counsel] Plaintiff acknowledges bold submission, contends must read subject implication if acting Law Nations. So reads: Nations argument so fundamental jus cogens, compelling overrides all other including well-established immunity. No authority cited proposition. common sued will country. Act, exceptions therein out, marks substantial inroads principle. inconceivable, seems me, draughtsman, well aware various agreements torture, intended overriding qualification. highest level completely contrary [counsel applicant’s] submission. [Lord referred judgments courts, Argentine Republic v. Amerada Hess Shipping Corporation Siderman de Blake Argentina, 23 below, both rejected acted Nations.] [Counsel] submits we follow highly persuasive American I cannot agree. A moment’s reflection enough practical consequences Plaintiff’s submission dire. are open seek their help, British citizens not. vast number people come country each year seeking refuge asylum, many allege tortured whence came. Some claims doubt justified, more doubtful. Those presently charged with deciding applicants genuine refugees difficult task, but least know much background surrounding circumstances claim made. such position. unlikely submit court, absence testing just determination. ...” members Ward Mr Buckley, claim. commented “there may forum (other than locus delicti whom victim understandably reluctant turn) terrible, established, wrong can receive redress”. 19. 27 November 1996 refused appeal House Lords. His attempts obtain authorities via diplomatic channels proved unsuccessful. 20. There requiring plaintiff resident national before assert wrongs abroad. Under rules force time issued proceedings, territorial fell one categories 11, Rule Court. For present purposes relevant: “... service permissible if, begun (f) founded tort sustained, resulted committed, 21. parts provide: “1. (1) 5. regards of- injury; 22. above (section Act) enacted implement 1972 European Convention Basle Convention”), Council Europe instrument, June 1976 ratification States. now ratified eight (Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands, Switzerland Kingdom) signed (Portugal). Article “A Contracting another relate redress person tangible property, facts occasioned occurred territory forum, author those occurred.” provides shall 23. Report Jurisdictional Immunities Property (1999), working group International Commission (ILC) preceding decade brought municipal particularly Kingdom, governments, arising defendant ILC cases shown sympathy plead violation human rights norms character although most plea succeeded. connection: (United Al-Adsani 100 Reports 465 471; (New Zealand) Controller Auditor General Sir Ronald Davidson [1996] New Zealand 278, 290 (per Cooke P.); Dissenting Opinion Wald States) Princz Federal Germany 26 F 3d 1166 (DC Cir. 1994) 1176-1185; Argentina 965 2d 699 (9th 1992); 488 US 428 (1989); Saudi Arabia Nelson 544. 24. did, note recent developments considered support gross violations. One Lords’ Pinochet (No. 3) 34 below). Foreign Sovereign (FSIA) new exception, introduced 221 Anti-Terrorism Effective Death Penalty 1996, applies damages extra-judicial killing, aircraft sabotage hostage-taking, designated Secretary sponsor terrorism, claimant occurred. Flatow Islamic Iran Others (76 F. Supp. 16, 18 (D.D.C. 1999)), District Columbia property attachment execution, unless statutory example commercial activity. 25. Constitution 31 “No put torture”. 26. Universal Declaration Human Rights 1948 states: subjected cruel, inhuman degrading treatment punishment.” 27. Covenant Civil Political 1966 states 28. 1975 Protection All Persons Being Subjected Torture Cruel, Inhuman Degrading Treatment Punishment 3 that: permit tolerate cruel 29. Other Punishment, adopted 10 1984 UN defined as: “For Convention, term ‘torture’ any pain suffering, mental, intentionally inflicted obtaining third information confession, punishing suspected coercing person, reason discrimination kind, instigation consent acquiescence official capacity. does from, inherent incidental lawful sanctions.” requires Party effective legislative, administrative, judicial measures prevent jurisdiction, 4 offences State’s criminal 30. Prosecutor Furundzija (10 1998, no. IT-95-17/I-T, (1999) 38 Legal Materials 317), Criminal Tribunal Former Yugoslavia observed follows: “144. noted prohibition laid down treaties enshrines absolute right, never derogated even emergency linked fact, discussed peremptory norm cogens. extensive barred expelling, returning extraditing grounds believing danger 145. These treaty impose obligation prohibit punish refrain engaging through deals rather responsibility, prohibited offence punished law; parties granted, obliged exercise, investigate, prosecute offenders. 146. existence corpus proscribing shows community, importance outlawing heinous phenomenon, decided suppress manifestation operating interstate individuals. legal loopholes left. 147. exists today universal revulsion . revulsion, attach eradication led cluster customary acquiring high status international, normative system. 151. imposes obligations erga omnes, is, owed community. 153. major feature principle relates hierarchy order. Because values protects, evolved enjoys higher rank ‘ordinary’ rules. conspicuous consequence issue local special endowed force. 154. Clearly cogens nature articulates notion become standards 31. Similar statements Delacic (16 IT-96-21-T, § 454) Kunarac (22 February 2001, nos. IT-96-23-T IT-96-23/1, 466). 32. effect 1988. 33. 134 1988, September wherever triable 34. Regina Bow Street Metropolitan Stipendiary Magistrate Others, Ugarte 3), 24 1999 [2000] Cases 147, Lords former President Chile, Senator Pinochet, extradited Spain charges concerned allegedly committed. majority extraterritorial did crime until 1988 effect. II enjoyed done capacity, (peremptory law). coming above) created officials, Parties ex-heads survive Convention. (and, particular, Millett, p. 278) findings ratione materiae affect personae
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7. In 1925 the Greek State occupied an olive grove of a total area 3,877,000 sq. m in Chalkidiki (northern Greece) and assigned it to Refugees’ Relief Committee (Επιτροπή Περιθάλψεως Προσφύγων) with view settling refugees from Asia Minor there following mandatory exchange populations Turkey under 1923 Treaty Lausanne. The land was without any compensation being paid owners grove, whom applicants are heirs. basis for occupation government ordinance 14 February authorising expropriation before its owners. subsequently ratified by constitutional resolution 15 September 1924; content also incorporated into Article 119 1927 Constitution. 8. On 21 August 1933, decision no. 81/1933 Expropriations Απαλλοτριώσεων Χαλκιδικής), expropriated question. 9. 8 December 1933 lodged application appropriate courts owed them State, which had meantime taken over Committee. Following that judgments, among others, were delivered: (i) interlocutory (προδικαστική) 28/1934 Court First Instance ordering number expert assessments; (ii) final 28/1936 assessing unit amount at 2,008 drachmas (GRD) per square metre; parties appealed against decision; (iii) judgment 54/1938 Salonika Appeal setting aside produce supplementary evidence; (iv) 4/1939 President recognising entitled assessed; (v) 155/1939 quashing case be remitted Instance; (vi) 89/1940 GRD 2,720 decision, but hearing not held until 23 January 1961; meantime, on 29 April 1959, further assessment amount; (vii) 96/1961 fresh assessment, begun 1971 completed 1977; 13 1979 claimed 110,000 metre raised objection ground their right lapsed; (viii) 654/1979 dismissing justify value land; (ix) 1718/1981 lapsed 50,000 180,000 appeal points law judgment, raising same again; (x) 1305/1983 Third Division Cassation, Appeal’s procedural grounds remitting Fourth Division; subsequently, 12 1983, court (xi) 1684/1984 Cassation determine merits applications 1959 1983. 10. June 1988 resumed proceedings Instance. They assessed. sought 400 metre. observations reply 20 March 1989, pleaded again applicants’ lapsed. 11. A 22 1989. May 1989 ordered land. November 1991 requested judge rapporteur set date witnesses. An carried out. 12. 28 1992 asked date. 7 October 1992. 13. 4 decided adjourn examination investigative measure (αυτοψία) been out (decision 239/1992). 14. 16 1994 fix 1 1994. 15. 24 dismissed as unfounded determined 395 233/1994). 16. 1995 decision. It objection. 17. 17 July 233/1994 lower incorrectly claim statute-barred. Indeed, considered since least 1971. Giving merits, statute-barred, they no longer locus standi (judgment 3156/1995). 18. 6 law. statement submitted misinterpreted facts legislative provisions relating limitation actions, wrongly assessed evidence. added that, event, already judgments nos. Appeal. stressed, lastly, never received now contravened principle good faith infringed particular peaceful enjoyment possessions. 19. 1997 after examining all applicants, ill-founded 1302/1997).
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8. The applicant was an accountant by profession. He retired in 1998. On 2 April 1986 the Chamber of Accountants instituted disciplinary proceedings against applicant. Subsequently, were adjourned having regard to criminal pending 9. 14 convicted aggravated fraud Vienna Regional Criminal Court (Landesgericht für Strafsachen), which conviction confirmed Supreme (Oberster Gerichtshof) on 3 October 1988. By end 1990 file relating reached Disciplinary and 8 November 1991 hearing date set down for May 1992. 10. 1992 Accountants, applicant’s conviction, found that he had infringed profession’s reputation ordered suspension right practise one year. 11. 19 appealed this decision. 7 1993 Appeals Board dismissed appeal stating should last This decision served 30 January 1995. 12. 15 March 1995 Constitutional (Verfassungsgerichtshof) refused deal with complaint transferred case Administrative (Verwaltungsgerichtshof). 13. declared be effective from 31 1996. 14. 17 granted suspensive effect. 28 February 1997 it complaint. 22 1997.
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9. The first applicant, the Metropolitan Church of Bessarabia, is an autonomous Orthodox having canonical jurisdiction in territory Republic Moldova. other applicants are Moldovan nationals who members eparchic council applicant. They are: Mr Petru Păduraru, Archbishop Chişinău, Bessarabia and living Chişinău; Buburuz, prosyncellus, Ioan Eşanu, protosyncellus, Călăraşi; Victor Rusu, protopresbyter, Lipnic, Ocniţa; Anatol Goncear, a priest Zubreşti, Străşeni; Valeriu Cernei, Sloveanca, Sângerei; Gheorghe Ioniţă, Crasnoarmeisc, Hânceşti; Matciac, Vlad Cubreacov, member parliament Parliamentary Assembly Council Europe, Telembici, Alexandru Magola, Chancellor Chişinău. 10. On 14 September 1992 applicant natural persons joined together to form – local, Church. According its articles association, it took place, from canon-law point view, which had existed until 1944. In December was attached patriarchate Bucharest. 11. adopted association determined, among matters, composition administration organs, training, recruitment disciplinary supervision clergy, ecclesiastical hierarchy rules concerning assets. preamble principles governing organisation operation defined as follows: “The traditional denomination ‘Metropolitan Bessarabia’ historically conventional nature has no link with current or previous political situations. activities will have none future. It shall carry on work status exarchate country. canon law, communities diaspora may also become members. No charge be made for accession individual abroad. context activity Moldova, respect laws State international human rights law. Communities abroad adhered purposes law establish relations authorities States concerned, complying their legislation relevant provisions cooperate sphere culture, education social assistance. does not make any claim economic kind against Churches religious organisations. maintains ecumenical movements considers that fraternal dialogue only proper relationship between Churches. Priests working citizens. When foreign invited come Moldova citizens sent same purpose, force must complied with. Members voluntary basis practise religion common, accordance own convictions, precepts Gospel, Apostolic Canons, Holy Tradition. Religious services held all include special prayers institutions State, couched following terms: ‘We pray, always, our country, leaders army. May God protect them grant peaceful honest lives, spent obedience canons Church.’ ” 12. To date, established 117 territory, three Ukraine, one Lithuania, Latvia, two Russian Federation Estonia. Latvia Lithuania been recognised by legal personality. Nearly million affiliated Church, more than 160 clergy. patriarchates exception Moscow. 13. Pursuant Denominations Act (Law no. 979-XII 24 March 1992), requires denominations active means government decision, applied recognition 8 October 1992. received reply. 14. further applications 25 January February 1995. date specified Affairs Department refused these applications. 15. August 1995 relying Article 235 Code Civil Procedure (which governs judicial review administrative acts contrary rights), brought civil proceedings Court First Instance Buiucani district He asked decisions refusing recognise set aside. court ruled his favour and, 12 1995, ordered Bessarabia. 16. 15 public prosecutor appealed Instance’s decision 17. 18 Supreme Justice aside ground courts did consider Church’s application recognition. 18. 13 1996 filed fresh government. 1996, reply, Chişinău Instance, seeking 19 July gave judgment applicants. 19. 20 again recognition, went unanswered. 20. Municipal (Tribunal municipiului) 1996. 21 1997, appeal lay, quashed impugned allowed applicants’ claim. 21. However, reform system, file Appeal trial de novo. 22. 4 1997 June they referred matter Appeal, freedom conscience purpose practising religion. resulting action case already pending before Appeal. 23. alleged concerned conflict within (the Moldova), could resolved Romanian Churches, would provoke conflicts community. 24. 1997. pointed out, firstly, 31 §§ 1 2 Constitution guaranteed should exercised spirit tolerance others. addition, various were free organise themselves according subject compliance Republic. Secondly, noted acting pursuant sections Act, number but reply forthcoming. By letter Prime Minister informed without interfering while ignored, 7 1993, eparchy dependent dismissed government’s argument possible satisfy wishes believers. out term reserved catholicism orthodoxy, embrace faiths manifestations feelings adherents, prayers, ritual, divine worship. view part therefore Moscow, whereas refusal religion, Universal Declaration Human Rights, 5 International Covenant Economic, Social Cultural Rights Political party. Noting representative taken domestic legislation, ratify association. 25. above try such case. 26. 9 grounds time manifestly ill-founded. that, 238 Procedure, month infringe right. began run either announcing or, if after lodging application. submitted lodged 1997; accordingly time. say event, infringed treaties, particular European Convention because Christians manifest beliefs 1993. considered simply dispute single settled since interference might aggravate situation. State’s intervene this compatible § Rights. Lastly, freely, access adduced evidence obstacle whatsoever practice 27. 1999 28. dated sense schismatic group allow solution found, negotiations progress Russia Romania. 29. 10 2000 outcome 30. Since adoption denominations, some listed below. 1993 ratified 28 Eparchy Old Christian Liturgy Liturgy, whose head office 22 “Seventh-Day Adventist Church”. 1994 decided Reform Movement”. “Federation Jewish (Religious) Communities” those “Union Messianic Jews”. 31. up, regularly explain reasons creation seek support obtaining official 32. several ministries opinion about whether 16 Ministry Culture favourable November Financial see objection Labour Protection declared Education emphasised need rapid order avoid discrimination pointing improved upon. Secretariat Privatisation stated proposing certain amendments 33. 11 Bishop Bălţi, writing behalf parliament’s Committee delay registering aggravating situation even though actions legislation. committee 34. A memorandum Department, 1994, summarised “For nearly years known under name operating illegally territory. positive result obtained spite sustained efforts put stop (discussions so-called priests, G.E., I.E. ..., representatives believers localities adherents active, G.G., N.A., Deputy Speaker; organs local national bodies illegal group, etc.). although priests forbidden take service, failure comply nevertheless continued churches officiate occasion organised, example, Ministries Defence Health. management Bank National Customs Service acted request liquidation group’s bank accounts strict during numerous crossings border. limited attracting new propagating ideas necessary appoints including trains builds many, many things. mentioned (more religious) forces both country (by mayors villages, opposition representatives, MPs) outside 612 granted 399,400,000 lei finance ... causing socio-political tension unforeseeable repercussions notes: (a) Within there territorial unit justify setting up named Bessarabia’. constitute wrongful anti-State act negation sovereign independent constitutes. (b) place former founded 1925 Decree 1942 promulgated King Legal validity imply present-day effects (c) All parishes registered constituent parts 719 17 conclusion: 1. If nothing done destabilisation just whole society. 2. Recognition (Old Style) ratification automatically entail disappearance Moldova.” 35. question Parliament MP, wrote Speaker explaining said distinct resolve Constitution. party Cubreacov belonged publicly expressed disapproval Justice’s himself criticised “this phantom metropolitan Church” he exerting pressure way could, through statements media approaches ended assertion “feverish debates” purely political. 36. 29 1998 1940 “Bessarabia” “schismatic element”. represent affairs “unhealthy” latter placed. merely “reproduce[d] another country”. 37. 38. letters 6 39. supported 40. government, information, copy report Federation, showed at least four different Russia, offices hope above-mentioned assist similar problems, particularly problem Bessarabia’s 41. Attorney-General Articles 6, Convention. 42. 26 2001 approved amended version Moldova’s worded successor While Apostles, Fathers Ecumenical Synods, operates force.” 43. President concern possibility recognised. issue negotiation patriarchates, breach conflict. Moreover, consequences 44. Opinion 188 (1995) Ministers membership Europe willingness fulfil commitments entered into when April These commitments, reaffirmed opinion, included undertaking “confirm complete worship discrimination” “ensure Bessarabian 45. annual Helsinki Metropoltitan transferred ownership drew attention allegations clergy subjected physical violence receiving slightest protection authorities. 46. section thereof, denied religions decision. discriminatory instrument enabled difficult bring reclaiming church buildings them. vandalism subjected. 47. reported incidents allegedly intimidated prevented manifesting beliefs. 48. Government place. 49. assembly village Gârbova (Ocniţa) join appointed T.B. parish priest. 50. celebrate Christmas mass, mayor Gârbova, T.G., forbade him enter. villagers came protest, locked door explanation, leave twenty-four hours. 51. summoned 1994. stripped post introduced rejected mayor’s proposal. 52. called third priest, likewise assembly, preference 53. circumstances, S.M., chairman council, manager collective farm, urged persuade accept T.B.’s removal office. refused. 54. S.M. arrested church. pinned down five policemen, then thrown police van town hall, where savagely beaten. custody Ocniţa station, upbraided showing arrest. released being detained days. 55. Following left parish. 56. vice-president provincial province (raion) Făleşti rebuked Saint Nicholas celebrated Easter service cemetery, illegal. For reason conduct future inside open air. vice-chairman warned G.E. implement plan invite Romania attend given authorisation, required Act. 57. fined 90 (MDL) officiating unrecognised upheld penalty, reduced amount fine MDL 54 hold concerned. 58. 27 beginning church, persons, led violently assaulted drawing blood, attacked priest’s wife, tearing her clothes. 59. managed escape taking pursued assailants, fight congregation. policeman scene aggressors 60. meeting published declaration expressing parishioners’ indignation intimidation subjected, requested cease condone demanded 61. anonymous telegrams warning go Făleşti. lodge complaint this. 62. Alexander, president Călăraşi discussion That attended Călăraşi, secretary clerk. fellow-traveller union week produce certificate attesting failing 63. V.B., national, Cania, intense Cantemir, belonging 64. V.B. station served cancelling residence permits ordering seventy-two hours hand over 65. Vasile Petrache, Nicholas, windows broken nights 3 66. attack occurred night Petrache each occasion, asking prevent attacks 67. grenade unknown house damage. 68. autumn 1999, death Buburuz Nicholas. appointment occupied entering. possession documents seal. 69. issued summons organising front Nicholas’s authorisation meetings. 70. Judge S. discontinued organised mass capacity hundred present. square, locked. 71. P.G., P.G. threatened six him. immediately criminal complaint. 72. Interior regret slow investigations P.G.’s complaints account penalties imposed officers responsible inquiry. 73. clerk complained M., trying, help oust P.B., closed. subject. 74. 23 applicants, Police Captain R., claiming orders superior officer, Lieutenant-Colonel B.D., placed seals Cucioaia (Ghiliceni) V.R., officiated there, enter continue service. After people village, ask explanation. incident newspaper Flux. asserted inquiry Archdeacon D.S., door. 75. 1998, midnight, woken trying presbytery give idea creating Cahul. 76. I.G., day police. 77. leaving Mărinici family threats occasions street beaten strangers, told meddle “those things” anymore. 78. consulted forensic physician, detailing injuries inflicted subsequently Cecani 79. newspapers described worshippers 80. V.J., accompanying broke it. V.S., arrived Sunday stand-off scene. 81. 2001, Leova, Leova suffered parishioners target G.C., Such repeated offered municipal 82. Floreni formed community chapel built celebrated. 83. 1203, granting right use land situated. confirmed decree council. 84. fact it, Land Registry replied “the [were] able adopt [had] personality Moldova”. 85. Humanitarian Aid authorise entry goods value 9,000 United dollars (USD) States, classify humanitarian aid. 2000. 86. inform refusal. gift (of second-hand clothes), Jesus Christ Latter-Day Saints, transit visa Ukrainian authorities, accepted gift. customs 2000, so addressee obliged pay USD 150 per storage. 87. authorised 88. retirement pension minister denomination.
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8. The applicant was a shareholder in limited liability company, but assigned his shares to another 1985. Subsequently, the company went bankrupt. 9. On 8 April 1986 bank which had extended credit filed an action against with Innsbruck Regional Court (Landesgericht) requesting repayment because of joint and several for credit. 10. 29 first hearing held on 14 July second. 1 August file transmitted Lienz District (Bezirksgericht) hear two witnesses applicant. 18 November returned Court. 25 Salzburg witnesses. 12 May 1987 10 September set down as date next hearing. It postponed upon applicant’s request eventually 6 October 1987. court appointed banking expert. 11 February 1988 again further witness. 3 March sent expert 22 1988. delivered opinion 23 extension time‑limit comment granted at 19 January 1989 held. 11. 20 bank’s claim having regard submissions parties, expert, documentary evidence case files bankruptcy proceedings. 12. appealed this decision. Appeal (Oberlandesgericht) quashed decision referred back 13. A scheduled by 1990 be claimant failed submit necessary documents witness could not summoned. 1990. requested legal aid 24 four weeks time-limit submitting declaration means. December 1990, after been aid, ordered supplement opinion. complied order 1991. After 7 1992, 1993 informed that both parties required. dismissed motion bias concerning 1994 9 30 1995 submitted supplemented 15 14. 1996 claim. 15. appeal. 16. 1997 Supreme (Oberster Gerichtshof) served 1997.
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8. The applicant was born in 1951 and lives Ryn, Poland. 9. On 27 November 1990 the lodged with Giżycko District Court (Sąd Rejonowy) an action which he sought from a certain company T compensation amount of 5,000,000 old zlotys (PLZ). claimed represented value TV set had bought defendant broke down. 10. 5 December case transmitted to Pruszków Court. 3 January 1991 increased PLZ 10,000,000. 11. 13 February, 12 July 7 hearings were held before 12. allowed applicant’s request for interim measures issued seizure warrant respect part property belonging company. 13. 17 1992 replied court’s 15 confirmed that In letter advised no legal capacity be sued. court further pointed out company’s sole owner lived Stuttgart, Germany it did not have plenipotentiary authorised act on its behalf. also informed application appointment receiver being considered by Economic Section 14. 29 asked confirm whether still wished pursue his against insisted Mr Z.S., who director company, should as second case. February view fact branch situated Nadarzyn been liquidated, directed located Płońsk. He Z.S. claim 15,000,000. 15. 21 why hearing fixed since 1991. 2 March President delivery judgment scheduled but adjourned requested claim. observed after stated Płońsk, him sued therefore submit statement explaining whom if persisted claiming instead owner, would rejected procedural grounds. 16. 11 identified Z.C., 17. 23 instructed inform Z.C. spoke Polish, copies pleading confirming 18. May Stuttgart (Amtsgericht) serve summons 19. 1 June 9 decisions concerning fees charged bailiff enforced reduced. 20. September unable 21. next took place October 1992. occasion withdrew served 22. 1993 submitted financial standing 10 1993. held. 23. Government 1994 proceedings stayed because “the dispute concerns object is estate bankruptcy”. 24. attend 24 proceed examination absence. 25. 1994. failed appear despite received summons. 26. During 19 1995, proceedings. aver decision stay resulted absence at based Article 177 § (5) Code Civil Procedure, when plaintiff ask 27. 22 1995 resume decide spite hearings. 1996 1995. taken over new judge rapporteur. 28. 1997 addressed wife receipt directing her husband 4 1997. She able United States. 29. place. decided 30. 26 1998 sent telegram informing 28 cancelled due illness 31. August 32. bankruptcy pending. 33. 1999 discontinue during period three years following 34. April complaint 1999. Moreover, recalled 1998. 35. quashed 36. 2000 struck off register. 37. “Roman Parciński v. Z (...) C running foreign (...)”. “(1) proceedings, (2) basis 174 (4) Procedure”. This provision initiated one parties subject bankruptcy. 38. Płońsk”. 39. 2001. it. 40. 2001 dismissed action. 25 reasoned decision. 41. are
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9. On 16 September 1994 the Wałbrzych District Prosecutor (Prokurator Rejonowy) charged applicant with receiving a bribe and detained him on remand in view of reasonable suspicion that he had committed offence question. same day prosecutor confronted his co-suspect who offered bribe, ordered search applicant’s home. 28 1994, an appeal filed by applicant, Regional Court (Sąd Wojewódzki) quashed detention order released under police supervision. 10. 10 February 1995 lodged bill indictment Court. The comprised twelve counts charging seven co-defendants. Two co-defendants were indicted charges attempt to traffic women. 11. Subsequently, unknown date, appointed defence counsel for applicant. 12. trial ended 15 April 1996. was convicted as sentenced one year’s imprisonment suspended two years fine. exempted from paying costs proceedings court fees at first instance. It State Treasury (Skarb Państwa) cover legal involved officially-appointed lawyer. 13. 24 June 1996 lawyer Wrocław Appeal Apelacyjny). about time. memorandum produced documents support arguments 27 14. Later, new assist appellate proceedings. 15. October heard appeals. Both present. asked read out all records evidence during instance declined do so, pointing hearing limited questions fact law which been put forward parties their appeals oral pleadings. found it unnecessary voluminous taken 16. upheld first-instance judgment. levied fee 65.00 Polish zlotys [approx. 130 FRF] examining pay 50.96 100 be borne Treasury. 17. 12 notice cassation serve written reasons its He also appoint preparation appeal. relevant part application read: “The fictitious nature ... [which shown] time foreseen dealing [my] [That] foresaw only minutes start 9.00 a.m. next case 9.15 In addition, I learnt 11 this year, replaced my previous someone else – probably did not know case. Article 464 § 2 Code Criminal Procedure stipulates must signed advocate. Since deprived me [previous] lawyer, should another me. therefore ask such file behalf, particular grounds mentioned pleading 14 other breaches will later specify own separate ...” 18. 9 December judgment served date time-limit thirty days lodging began run (see paragraph 32 below). 19. 23 dismissed request free assistance considered failed prove could afford assistance. decision “In application, received Appeal’s registry 1996, filing against circumstances relies cannot basis finding family financial situation, income, make impossible appointing choice have filed. That [view] is based post previously held income employment. Instruction: refusing appealed against.” 31 expired January 1997. 20. meantime, 3 1997, despite court’s instruction contrary, Supreme Najwyższy) refusal grant through Appeal. 21. By made President refused proceed because inadmissible law. Court, which, contested order.
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9. On 12 September 1984 policemen from the Ankara Security Directorate arrested applicant on suspicion of membership an illegal organisation, Dev-Yol (Revolutionary Way). 10. 26 October Martial Law Court ordered applicant’s detention remand. 11. December and 10 May 1985 Military Public Prosecutor filed two bills indictment with against applicant. He accused Dev-Yol, whose aim was to undermine constitutional order replace it a Marxist-Leninist regime, contrary Article 146 § 3 Criminal Code. The further alleged, inter alia, that had been involved in number crimes such as bomb attack coffee house, opening fire house several robberies. 12. 1986 released pending trial. 13. 19 July 1989 convicted sentenced him 5 years’ imprisonment account his armed organisation (Article 168 2). lodged appeal Cassation this judgment. 14. 1994 jurisdiction martial law courts abolished acquired over case. 15. 27 1995 held criminal proceedings should be discontinued ground prosecution time‑barred.
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9. The applicant is the mother of two children: T., born on 8 April 1993, and A., 17 December 1994. 10. On 31 March 1995 Youth Welfare Office (Jugendwohlfahrtsträger) at Linz-Land District Administrative Authority (Bezirkshauptmannschaft), pursuant to section 215 Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch), took T. A. provisionally into their care. It noted that morning day, applicant, who delivers newspapers, had come back late from work her children been home without supervision for approximately 45 minutes. applicant’s neighbour, seen alone in garden around 8.30 a.m., contacted Authority. placed with a socio-pedagogical facility Salzburg an evaluation development. 11. 4 requested formal transfer custody it before Enns Court (Bezirksgericht). Office, relying Code, claimed living conditions were chaotic. did not submit statement reasons, but promised do so later. 12. 24 assisted by counsel, order return her. 13. 10 May rejected Office’s request ordered be promptly returned mother’s custody. found removal was unlawful, as failed reasons giving arguments support children’s court observed that, such statement, could take evidence necessary verify whether well-founded. Consequently, position decide merits. 14. 11 appealed refused give mother. 16 supplemented its appeal arguing incapable bringing up submitted early alone. wandering about 0°C, wearing only pyjamas. In arguments, filed, inter alia, fax rural police (Gendarmerieposten) 1995, certificates 5 concerning condition health issued medical officer (Amtsarzt), transcripts statements neighbour 15. 6 June Steyr Regional (Landesgericht) quashed Court’s decision remitted case Court, instructing latter new after having proceedings (Verfahrensergänzung). taking ex officio character (Pflegschaftsverfahren) account, investigate facts sufficiently reach decision. particular should have given opportunity correct procedural mistake submitting reasons. 16. 27 centre (Sozialpädagogisches Zentrum) report Court. 17. 28 heard regard events 1995. She she suffered migraine attack therefore unable time. Normally seventeen-year old son, H., also lived her, left work. That day unsuccessfully tried contact friend hers look children. 18. 30 father live them. He opposed he considered care satisfactorily. himself 19. July again dismissed undergo family therapy together father. instructed ensure complied this condition. refusing custody, relied, public officer’s according which good physical psychological state, well although retardation latter’s linguistic skills striking deficiencies his social behaviour. approach positive general. According there existed no danger incident recur, because persons, Mr K. Ms L., accepted 20. under sections 176 178 right may withdrawn if child’s well-being endangered substantiated compelling arguments. place below average. Nevertheless danger. led away unique one cared children, both well-being. Moreover still breast-fed concluded justified. 21. appealed. argued, K., former life-companion unsuitable L. informed never nor prepared so. 22. course proceedings, further evidence, namely dated August several annexes. Furthermore, obtained files all applicant: file relating son R., criminal against P.F. ill treatment eviction applicant. This communicated 23. granted transferred Code. first instance incomplete. Since courts obligation safeguard merely basis account subsequent developments and, necessary, re-assess or supplement investigations. 24. meanwhile obtained, would safeguarded they stay desolate chaotic; apparently willing co-operate make any efforts therapy, Moreover, longer stayed “ex-companion”, due evicted apartment As 1 rented house Lambach. information owner, extremely hardly fit habitation. visit Lambach staff member permitted official enter grounds decrepit state building. disclose identity whom Linz. 25. elder sons, R. September 1989 1991 taken adequate After returning subject systematic repeated abuse P.F., then companion, almost daily beaten treated him degrading manner. 1993 committed hospital injuries inflicted Thereupon minors instituted. November 1994 convicted offence sentenced six months’ imprisonment. acquitted. At same time, Office. view these events, even though acquitted charges, showed effectively caring Having suffering implausible noticed anything. 26. T.’s development behaviour, guarantee either brother develop normally remain 27. 9 Supreme (Oberster Gerichtshof) extraordinary points law (außerordentlicher Revisionsrekurs) ground involve questions fundamental importance.
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9. On 4 February 1989 the Austrian police were informed via Interpol that on 30 January in Poquoson (Virginia, USA) E.P., a German citizen, and H.S., an had been killed applicant, who at time lived Virginia, was suspected of having robbed them. A warrant arrest issued against applicant United States. 10. 5 meantime returned to Austria, arrested 7 remanded custody. The remained remand until 17 June 1992. This period interrupted from May 6 1998 whilst served prison sentences imposed respect previous convictions. 11. Meanwhile trial took place before Assizes Innsbruck Regional Court sitting with jury. 16 October 1991 jury acquitted but bench Assize set aside jury’s verdict as erroneous. new one co-accused held another Court. 12. 1992 again applicant. answered question murder aggravated robbery six votes “no” two “yes”. According record deliberations, majority its members found not guilty there discrepancies between statements witnesses (“Widersprüche den Zeugenaussagen”). 13. 1 1993 single judge heard private his claim for compensation detention remand. assisted by counsel, argued proceedings under Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz) infringed presumption innocence guaranteed Article § 2 Convention. He referred Sekanina v. Austria judgment European Human Rights (25 August 1993, Series no.266-A). also presented fresh evidence which, opinion, could entirely dissipate suspicion still subsisting him. 14. 24 1996 chamber Court, composed three judges, dismissed applicant’s claim. right case would require him dissipated. records grounds witnesses. because proven, he given benefit doubt. Thus, As regards request taking evidence, it prevented examining further evidence. It this Constitutional Court’s case-law following judgement, according which examination guilt final acquittal be breach 15. 12 appealed decision. submitted, inter alia, re-examined acquittal. However, no longer acceptable rely suspicions once become final. 16. 27 Appeal, camera, appeal. committed criminal offence is only dissipated if either claimant’s has or all arguments supporting have refuted. demands established. requirement met case. Referring decision, Appeal deliberations clearly expressed opinion In their mind various circumstances spoke possible convict 17. concluded that, Rights, Convention, refusal itself. guilt, rather reasons voted “not guilty”,
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9. On 9 November 1994 the Braunau District Administrative Authority (Bezirkshauptmannschaft) convicted applicant twice under Motor Vehicles Act (Kraftfahrgesetz) for failure to comply with instructions of inform them who had used his car on specific days (Lenkerauskunft), and sentenced him, each offence, a fine 4,000 ATS or six days’ imprisonment in default. The noted that given information but found it be incorrect. 10. 29 filed an appeal against this decision Upper Austrian Independent Panel (Unabhängiger Verwaltungssenat). He complained incorrectly applied law failed sufficiently assess evidence before clarify why he was untrue. did not request hearing, nor expressly waive right. No oral hearing held. 11. 2 January 1995 dismissed merits reduced sentence. 12. 28 February complaint Constitutional Court (Verfassungsgerichtshof). Article 6 § 1 Convention hold hearing. Such would have been necessary because limited points law. also criticised Authority’s assessment evidence. Therefore necessary. In such could properly assessed evidence, which already obtained at first instance, as well fresh 13. 13 July declined deal applicant’s ground sufficient prospects success. Upon by 10 August 1995, transferred case (Verwaltungsgerichtshof). 14. 23 1996 Court, relying Section 33a (Verwaltungsgerichtshofgesetz), case, finding raise important legal issues. May served lawyer.
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8. In the late evening of 29 April 1993, father S., born in 1985, laid a criminal information against applicant, alleging that her private music teacher, had sexually abused S. during an individual lesson afternoon. and mother were questioned at local police office on afternoon 30 1993. was heard by officer confirmed father’s statements. S.’s stated been very disturbed after she later confided mother. 9. On 10 January 1994 Künzelsau District Court, sitting with single judge, convicted applicant having committed offence sexual abuse child concurrence charge. He sentenced to seven months’ imprisonment probation. establishing relevant facts, court relied statements made concerning daughter’s account events, behaviour 1993 character general, also evidence given who shortly The dismissed applicant’s request for psychological expert opinion regarding credibility ground court’s own professional experience, acquired as judge family matters, evaluating children. Moreover, observed it not reasonable hear herself, as, according mother, meanwhile repressed recollection event question would seriously suffer if reminded thereof. If be examined, this contribute further clarification but impair personal development. 10. appealed Heilbronn Regional requesting his acquittal. appeal proceedings, he assisted counsel. 11. 17 March 1995 Court conviction child, set aside sentence probation upheld. noted denied It found guilt could established basis before it, i.e. well credibility, ordered context proceedings. report November 1994, expert, October credible. considered absence testimony constituted serious shortcoming taking evidence. respect, parents refused bring their daughter risk state health deteriorate suffered from neurodermatitis. According parents’ refusal understandable. regard medical certificate confirming findings most likely again anew question. Taking into reported prepared, considering rather trivial nature charge stake, reached conclusion regarded witness out reach. 12. 2 August Stuttgart Appeal points law. 13. 18 1996 Federal Constitutional entertain constitutional complaint, leaving open whether complaint lodged time.
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10. The applicants are German citizens. They live respectively in Oberhausen and Mülheim/Ruhr. application concerns proceedings initiated by Mrs Gretel Janssen, who died on 27 July 1986. After her death, son Heinz–Jürgen Janssen daughter Margit Jakobs, born continued the proceedings. 19 November 1992. His widow Roswitha his Melanie act stead pursuing case. 11. husband of original plaintiff worked between October 1950 December 1959 as an asbestos fabric cutter area where mattresses were manufactured. During this period, workers exposed to dust while working had clean their clothes themselves. This was done for husband. contracted dust–related lung disease (asbestosis), which recognised occupational Düsseldorf Health Insurance Association (Maschinenbau- und Metall-Berufsgenossenschaft). paid a pension until death 21 February 1973 subsequently widow’s orphan’s surviving family members. 12. Having mesothelioma, asbestosis related disease, applied 23 1985 compensation payments, claiming that illness consequence daily cleaning husband’s work clothes. On 28 1986 dismissed request holding activity not covered industrial health insurance, since she acted strictly private basis employee. 13. 20 March filed objection (Widerspruch) against decision rejected April Appeals Board Association. 14. 26 May commenced before Duisburg Social Court (Sozialgericht). 15. invited defendant comment claim submit file. 9 Janssen’s lawyer telephoned court requested date be fixed hearing soon possible. He expressed fear would attend or August 18 sent written observations administrative file Court. Written behalf submitted 13 1987 received power attorney heirs without any further explanation. parties summoned appear at 1987. cancelled 16. 24 plaintiff’s counsel informed about death. 17 1988 indicate successors title. It reminder 8 1988. information 25 17. resumed 22 anticipate hour hearing. 5 14 1989 set case down 2 1989. 18. action ground that, pursuant Section 539 §§ 1 Security Act (Reichsversicherungsordnung), insured accidents work. found been employee herself, nor like She cleaned deceased living together, but with view acting employer. 19. 10 legal appealed judgment Appeal (Landessozialgericht) North Rhine-Westphalia. appeal 12 20. At held 30 employer take part him kind carried out former protection requirements complied with. supplied 7 pleadings 1990 instructed doctors treated reports. obtained medical reports from general practitioner, Dr P., September hospital doctor, H., 1990. additional 4 21. also expert, Prof. W., report awareness time risks exposure existence protective measures. W. reply detailed questions. W.’s dated 29 6 22. 1991 Rhineland Communal Accident (Rheinischer Gemeindeunfallversicherungs- verband) third party. expert opinion causes mesothelioma disease. asked certain information. 23. Meteorological Service witness 24. sought supplementary advice he 1991. January 1992 reminded report. June 25. By modified pronounced considered granted leave points law raised issues interest (grundsätzliche Bedeutung). 26. lodged (Revision). 27. 1992, died. successors. 28. 1993 Federal (Bundessozialgericht) appellate court’s aside plaintiffs’ appeal. particular mainly served interests couple’s household employer’s interests. 29. constitutional complaint alleging interpretation social security courts first last instance violated principle equality right fair Invoking Article Convention, relating professional diseases allegedly caused lasted too long. 30. 1994 panel three judges Constitutional (Bundesverfassungsgericht) declined accept adjudication inadmissible lack substantiation. pointed could based alleged violation European Convention Human Rights. notified applicants’ 1994.
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8. On 5 July 1990 the applicant's mother filed an action with Zagreb Municipal Court (Općinski sud u Zagrebu) against Municipality of Črnomerec, (Općina Črnomerec) concerning her property rights to a part apartment building situated within area above municipality. 9. At preliminary hearing on 17 January 1991 defendant disputed plaintiff’s allegations. 15 February submitted its reply claim. The next took place 2 1993. 10. By decision 9 November 1994 decided that it had no jurisdiction in case. 6 December plaintiff appealed decision. 25 September 1996 case file was transmitted County (Županijski Gradu as appellate court. 11. 1997 died and applicant proclaimed only heir. He continued proceedings instituted by his mother. 12. 12 May 1998 quashed first instance remitted Court. received at court 10 June assigned judge 1 1999. 13. before 21 parties repeated their claims. According 27 October 1999 20 2000 he requested speed up proceedings. 14. As law regulating ownership been changed, invited adjust claim changes law. 15. 19 counsel adjusted Housing Council (Gradsko stambeno komunalno gospodarstvo Zagreb) submit list flats building, names owners occupiers well legal position flats. 16. scheduled for adjourned. request Council. 17. observations Council’s submissions. 2001. are pending
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7. The applicant was born in 1921 and lives Michałowice, Poland. 8. In 1976 the applicant’s former wife lodged with Pruszków District Court (Sąd Rejonowy) an action against which she sought distribution of common property their marriage. 9. Up to 30 April 1993, held eighty-four hearings case. 10. Between 9 July 1993 7 1995 six took place. During that period parties filed pleadings trial court on eighteen occasions. 11. hearing 17 May made threats plaintiff’s counsel. 12. 11 June September four received seven memorials from parties. One submitted by included a list forty-one questions plaintiff. 13. On 14 request Ombudsman case be transferred another court. He also threatened he would blow himself up grenade courtroom if his were not decided 1996. 14. 12 March 1996 President that, view counsel, police officers should present during scheduled for next day. However, 13 postponed because counsel plaintiff failed attend. 15. According Government, fixed 24 cancelled 27 had challenged presiding judge. challenge subsequently dismissed. been adjourned absent. 16. 2 all judges Court, but withdrew challenge. 17. 8 January 1997 asked Vice-President Warsaw Regional Wojewódzki) transfer case-file immediately. pointed out procedural 25 November lying since then archives Court. As result, no judicial activity taken place period. 22 visited registry repeated complaint 1997. 18. 6 February informed well-founded apologised him delay returning advised 5 transmitted copy Court’s decision sent him. 19. 28 three requests concerning expert witness disputed property. 20. Hearings May, August first these hearings, replied 1995. 21. written 22. ordered allow access water supply contested appealed. 23. 31 October requested transmit so it could decide appeal renewed letter addressed commit suicide set fire building proceedings concluded speedily. 24. 16 1998 26 1999 issued one decision. time, 25. 3 2000 setting terms settlement 26. 27. are apparently still pending.
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7. On 3 June 1994 an action in defamation (üble Nachrede) was brought against the applicant. He suspected of having abused another person course altercation. Trial hearings were held on 8 November 1994, May 1995 and October before Herzogenburg District Court (Bezirksgericht). latter date applicant convicted sentenced to a fine. 8. 4 March 1996, following applicant’s appeal, St. Pölten Regional quashed sentence because errors procedure law, referred case back Court. It found, inter alia, that had relied evidence been precluded. 9. 17 February 1997, after 10 January again, qualifying incriminated behaviour this time as insult (Beleidigung). 10. 1998, again The Appeal found failed take concerning intentions. 11. 18 1998 insult. 25 1999 dismissed appeal. decision served 27 April 1999.
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9. Immediately following its birth in a private clinic, “La Madonnina”, Cosenza the applicant's new-born baby was admitted to intensive care unit of Hospital suffering from serious respiratory and neurological post-asphyxia syndrome induced by position which it had become lodged during delivery. The died on 9 February 1987, two days after birth. 10. On 10 1987 applicants complaint. public prosecutor's office started an investigation that same day. 11. 12 Ms Ciglio questioned as witness. A team three expert witnesses named. 12. As nothing further happened proceedings, made several requests, notably 16 October April 30 June 1988, for be expedited. November 1988 itself requested lodge their report. 13. 19 1989 were informed at request office, investigating judge notified E.C. – doctor responsible delivering joint owner clinic charges would brought against him. 14. Subsequently, scheduled questioning certain 18 July did not take place, dealing with case holiday. 15. Meanwhile, 7 1989, joined proceedings civil parties. 16. January 1990 prosecution applied complaint filed away without action. That application dismissed 24 May 1990. 17. 3 instructed make inquiries. Consequently, 29 deputy prosecutor ordered forensic tests. results available 5 1991. 18. 1991 committed trial before Criminal Court charge involuntary manslaughter renewed 19. first hearing set down 2 1992 but adjourned because lawyers' strike. next 15 also due delay service summons accused appear. 20. new date fixed 1993. order accused's absentia. begin, however, until March 1993, meanwhile changed lawyers. 1993 composition bench been allocated. thereafter continued hearings 27 May, 17 (the latter being one appointed court replaced). September again owing fact There 14 26 absentia revoked, failed attend cause (they pay fine December). final took place December accused, who attended present hearing. 21. At found guilty manslaughter. Its judgment registry 1994. sentenced year's imprisonment him parties' costs together compensation assessed later date. 22. It firstly knew regarded high risk since mother level-A diabetic past history confinements equally difficult size foetus. risks inherent deliveries such circumstances, described readily foreseeable, meant precautionary measures should have taken present. found, E.C., whom applicant consulted pregnancy, no arrangements measures, external examination mother, assess whether foetus too large natural Above all, he absented himself When complications occurred, nursing staff six or seven minutes locate busy seeing patients another part clinic. intervening able perform manipulation necessary extract significantly reduced new-born's chances survival. 23. nevertheless suspended sentence conviction appear E.C.'s criminal record. In addition, provisional award compensation. 24. 1994 appealed Catanzaro Appeal. 25. August 1994, delivered Appeal declared appeal inadmissible. Noting tried instance, held give his lawyer authority act required under rules applicable cases. reimburse incurred parties proceedings. 26. Cassation. 22 23 1995, Cassation overturned decision Appeal, remitted retrial. erred treating absent, start accordingly having left liable 27. ruled offence time-barred. 28. so doing, noted limitation period expired other words, even judgment. 29. Following instance (see paragraphs 21-22 above), served requiring town. 30. However, 1995 entered into agreement insurers 95,000,000 Italian lire (ITL) any damage sustained applicants. Of sum, ITL 15,000,000 designated reparation special loss Ciglio. time, pending Cassation's paragraph above). 31. struck out court's list. stage, only just ended, Appeal's ruling time-barred 1995.
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9. On 8 May 1996 the applicant was arrested in New York (USA) and placed detention on basis of a extradition request from authorities Netherlands Antilles where he had been charged with embezzlement forgery. He extradited to 30 detained Pointe Blanche Penitentiary island St. Maarten. 10. In document dated 18 June bearing applicant’s signature, it is stated that appointed Mr D. Gebhardt as the: “true lawful Attorney my name, place stead for use benefit: To exercise any or all following powers criminal case Antilles, interest therein thereon. appoint terminate lawyers, receive take possession documents, ask demand, sue for, recover, collect necessary documents case, appeal decision, file complaints whatsoever. Giving granting said full authority ... until this power revoked.” 11. 11 December 1996, adversarial proceedings during which assisted by R. – local legal aid lawyer whom assigned –, First Instance Court (Gerecht Eerste Aanleg) convicted fraud sentenced him three years nine months’ imprisonment. Both public prosecutor filed an Joint Justice (Gemeenschappelijk Hof van Justitie) Aruba. 12. 7 October 1997, represented J. quashed judgment forgery years’ Although 13 1997 cassation Supreme (Hoge Raad), subsequently withdrew appeal. Consequently, Justice’s became final. 27 February 1998, after having served his sentence, released prison. 13. 21 September sent letter complaint about conditions Point Penitentiary, held, one judges Maarten, latter’s capacity member Prisons Remand Centres Supervisory Board (Commissie Toezicht Gevangeniswezen en Huizen Bewaring). 14. letter, referred conversation judge 20 explained, among other things, inmates were locked their cells hours day nothing do, ten days’ inmate permitted Saturday maximum four sheets paper envelopes, there no telephone facilities apart previously announced incoming calls not exceeding fifteen minutes, provide own clothing bed linen, they wash showers primitive sinks recreation, toilets did flush shower taps pipes leaking. suggested practical solutions these matters explained why such would be beneficial concerned. 15. January informed European Commission Human Rights (“the Commission”) transferred Koraal Specht Prison Curaçao medical reasons admitted infirmary there. The that, bathroom, lights sunset remained 23 day. 16. 5 31 adjacent old building, cell metres long 3 wide. shared persons. Two slept temporary beds, two others floor. provided foam mattress. No blankets allowed retrieve personal belongings. used towel cover. 17. By April Gebhardt, who initially before Court, complained Director letters prisoners there, including applicant, opened withheld prison although marked “from client”. drew Director’s attention Court’s 25 1992 Campbell v. United Kingdom (Series A no. 233). requested ensure earlier letters, past, delivered addressees clients official correspondence him. 18. 9 enclosing copy against Governor (Gouverneur) Antilles. Apart general problems concerning activities, restricted possibilities acquaint himself contents case-file, defence given restrictions, retrieved lawyer-client privilege guaranteed. principle confidentiality between lawyers respected issuing instructions Penitentiary. 19. 22 July Cabinet received report Minister latter answer Gebhardt’s letter. reminded 20. 1 yet response further represent Commission, context needed sign attorney Commission’s Secretariat. With reference contrary Article Convention, blocking access applicant. therefore return standard authority. 21. forwarded, signed Gebhardt. 22. As meantime also Secretariat difficulties obtaining directly, requesting complete, representation Commission. 23. 28 completed directly. stamped Maarten bore illegible mark written hand red ink ballpoint pen, appeared officer’s visa. accompanying 1997. 24. 14 November details opening control exercised 25. 12 reply, stating authorities. When him, told mistake read, stamped. submitted original carried same stamp form mark. 26. blank prior writing it. addressed President sealed envelope himself, only exempted and, consequently, could themselves. personally seal mail lawyer. 27. Office Public Prosecutor at respect various detainees included list cited. Referring treated confidential 28. 1998 opened. 29. 10 Queen Netherlands. 24 Netherlands-Antillean Aruban Affairs forwarded Ministry. Since still sub iudice, that: “the Antillean judicial have your statement, refer treatment client. I confidence authorities.” bring matter Justice. 30. 26 August petition release, arguing being unlawfully inhuman conditions. 31. gave account state health while lack intervene order obtain parole 32. neither nor replied.
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10. On 25 October 1991 the Investigating Judge at Graz Regional Court (Landesgericht) issued a warrant of arrest against applicant on suspicion having committed fraud and falsification documents. The related to applicant’s business activities, in particular two real estate investment projects. search ordering house premises SDBV company, private company (Gesellschaft mit beschränkter Haftung) for which acted as general manager. seizure documents relating projects was also ordered. That same day warrant, were executed, latter presence Judge. Later questioned ordered his detention remand he found that there existed danger absconding collusion. As regards risk collusion, would attempt influence employees remove had not been search. 11. 27 requested release from remand. 12. 6 November Review Chamber (Ratskammer) Court, after an oral hearing applicant, defence counsel Public Prosecutor, dismissed request. no existed. However, collusion continued exist might try witnesses yet heard any traces offence. There committing further offences. 20 appealed. At unspecified date Prosecutor appealed, arguing should be based absconding. 13. Meanwhile, 11 1991, contacts with take place under surveillance court because existence this measure necessary co-suspects still large, several could them. stated validity order expire latest when two-month statutory time-limit end. appealed decision. He submitted did oppose principle, however, constituted unnecessary limitation rights failed within 14 days prescribed by law. 14. 21 appeal Judge’s counsel. complaint about counsel, decision correct. This involve criticism or reproach conduct contrary law disciplinary rules members bar, but merely purpose preventing contact whatsoever third persons endanger success criminal investigation. present case concerned complicated relations other companies managed flow money between Further only identified all seized examined prevented influencing Furthermore, taken time limit S. 193 § 3 Code Criminal Procedure. have sufficient access case-file unfounded. granted file official receiver being given possibility make copies file. visited him repeatedly if so wished. Moreover, Judge, informed contents statements already heard. 15. 28 Senior commented 1991. These comments served applicant. 16. 12 December Appeal (Oberlandesgericht) lodged Prosecutor’s appeal. It serious referred details abscond. 17. 15 January 1992 Chamber, held hearing, request release. 13 February March 18. After conviction June 1992, filed requests Such refused 1993 April 1993. Appeals 18 29 respectively. 19. bill indictment charging aggravated fraud. 20. trial started before Court. lasted until 1992. In course 52 witnesses, some them Furthermore 5 experts book-keeping, building construction matters, assessment, medicine psychiatry frequently adjourned lengthy periods and, towards end trial, repeated remitted convicted sentenced four half years’ imprisonment. acquitted additional charge raised trial. 21. 9 September judgment 150 pages transcript 1400 parties. 22. 1 plea nullity part sentence concerning acquittal. 23. 22 Prosecutor. Since claimed expiration filing insufficient possibilities inspect file, Supreme 24 decided new time- 24. 19 again sentence. writ substance arguments earlier. 25. 30 withdrew nullity. 26. Procurator General (Generalprokurator) following nullity: "In view accused Bernhard Lanz can dealt Section 285d transmission is requested. Office has withdrawn attached declaration 1993." 27. sitting camera, rejected inadmissible 28. date, written 29. August Appeal, participated, increased it five weighing mitigating aggravating circumstances, higher called for.
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6. On 24 July 1996 police officers from the Istanbul Security Directorate arrested applicant in his house and placed him custody course of an investigation conducted against members PKK. 7. In a letter dated 25 informed office public prosecutor at State Court that on account applicant’s confessions had search found several explosives. same requested to authorise extension detention period. date authorised extend period until 5 August 1996. 8. was questioned by Court. During questioning partly confirmed veracity statement he gave involvement 9. investigating judge The rejected PKK accusations mentioned custody. ordered remand. 10. At hearing 18 October before allegations stated been forced sign without having read it. statements judge. 11. two hearings 9 December requests for release pending trial. 12. 23 May 1997 convicted aiding abetting pursuant Article 169 Turkish Criminal Code Law No. 3713. It sentenced five years’ imprisonment debarred employment service. 13. 20 June lodged appeal with Cassation decision 14. 12 March 1998 upheld
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7. Mr Ján Čonka, Mrs Mária Čonková, Miss Nad'a Čonková and Nikola are Slovakian nationals of Roma origin who were born in 1960, 1961, 1985 1991 respectively. The first two applicants the parents third fourth applicants. 8. say that on several occasions between March November 1998 they violently assaulted by skinheads Slovak Republic. Indeed, Čonka had been so seriously injured an assault he to be hospitalised. police called but refused intervene. Several days later subjected renewed insults threats skinheads, again As a result those constant threats, decided flee Slovakia travel Belgium, where arrived at beginning 1998: minor children 6 later. 9. On 12 requested political asylum Belgium. 10. 3 1999 their applications for declared inadmissible Minister Interior through Directorate-General Aliens Office ground not produced sufficient evidence show lives risk purposes Geneva Convention relating Status Refugees. decisions refusing permission remain Belgium accompanied decision enter territory itself, endorsed with order leave within five days. 11. 5 lodged appeal under urgent-applications procedure Commissioner-General Refugees Stateless Persons (“the Commissioner-General”) against them 12. 14 April was invited attend Commissioner-General's set out his grounds seeking asylum. He failed keep appointment. 13. 23 assisted interpreter, heard representatives Ghent Prison, she custody pending trial. 17 May sentenced eight months' imprisonment theft Criminal Court. 14. 18 June upheld remain. Its Čonka's case based failure appointment without showing due cause. regards some pages reasons pointed major discrepancies her deposition expressed serious doubts about credibility. For example, among other things 4 husband, taken hospital. come out. That incident direct cause Slovakia. However, considered statement refuted fact tickets issued before above November: Čonková's plane ticket 2 October husband's children's bus journey 1998. Furthermore, account did match stepdaughter's, particular important issue whether attended scene. stipulated could deported country from which fled (Slovakia), calculating five-day period leaving territory, suspended application urgent procedure, time began run date service 15. 24 released new served days, is midnight 29 June. 16. August Conseil d'Etat judicial review stay execution ordinary procedure. They also applied legal aid. 17. September dismissed aid means certificate required Article 676-3 Judicial Code, photocopy, rather than original, having enclosed application. Consequently, orders pay court fees fifteen after service. respond invitation, struck list 28 1999. 18. At end sent notice number families, including applicants, requiring station 1 drafted Dutch stated attendance enable files concerning completed. 19. station, Slovak-speaking interpreter present, fresh dated 1999, removal detention purpose. documents served, all identical terms, informed recipients apply deportation – provided sixty committals division (chambre du conseil) criminal detention. According Government, aliens concerned nevertheless allowed own free will humanitarian or administrative reasons. 20. A few hours closed transit centre, known as “Transit Centre 127 bis”, Steenokkerzeel near Brussels Airport. It appears only remained centre briefly. have recalled applicants' request. told no further remedy order. 21. While families received visits delegation Belgian members Parliament, Consul, delegates various non-governmental organisations doctors. 10.30 p.m. Friday counsel, van Overloop, President Rights League clients custody. Taking view still instructed them, Overloop fax informing it Transit bis awaiting repatriation action deport take care member family made 22. Melsbroek Military Airport, seat numbers allocated aircraft marked hands ballpoint pen. left 5.45 23. Shortly afterwards reply parliamentary question put December 1999: “Owing large concentration asylum-seekers nationality Ghent, arrangements collective ... Reports I mayor Director-General indicate operation properly prepared, even if unfortunate wording letter Slovaks may misleading. Both Police Department surprised responded them. factual circumstance resulted being detained ...”
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8. The applicant is a child born out of wedlock on 25 November 1996. On 30 January 1997 the and her mother filed civil suit against H.P. before Zagreb Municipal Court (Općinski sud u Zagrebu) in order to establish paternity. 9. At hearing 17 June pronounced judgment by default defendant. adoption such judgment, however, expressly prohibited Marriage Family Act (Zakon o braku i porodičnim odnosima – 1977, 1980, 1982, 1984, 1987, 1989, 1990, 1992 1999) “civil-status matters” (statusni sporovi). 1 July defendant appealed that judgment. 10. 6 October annulled its own next was scheduled for 9 December 1997. 11. Meanwhile, motion accusing presiding judge bias, which allowed 27 1998 President Court. Consequently, 23 February case transferred another judge. 12. 18 adjourned owing absence H.P.'s counsel. 13. 14 as counsel had died. 14. new argued applicant's relations with persons other than at relevant time (exceptio plurium concubentium) invited court summon several witnesses. 15. 21 1999 only two witnesses were heard, failed appear. 16. March ordered DNA blood test. appointment clinic May 1999, but 17. informed he would be absent from until 15 September 1999. 18. 19 test, again 19. 13 fourth appointment, 22 day. 20. 28 fifth once 21. 2000 did not 22. 29 heard testimonies parties sixth tests April 2000, 23. hearing, 5 adjourned, 24. 12 concluded trial. 25. 3 received Court's establishing defendant's paternity granting maintenance. first-instance found fact been avoiding supported claim. 26. 2001 County (Županijski quashed remitted retrial. appellate all evidence could have established primarily his avoidance tests. It hear who, alleged H.P., intimate relationships during critical period. 27. requested Supreme speed up proceedings. 28. hearings 26 August because 29. accused bias. 30. first instance trial gave corroborated mother's testimony father. 31. 7 an appeal objecting amount maintenance pay her. also 32. appears proceedings are currently pending court.
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10. In a statement taken and recorded by police on 30 September 1987, one Mr A. said that he had been kidnapped beaten up two unknown men. He suspected they acted the orders of another man, G., his kidnap constituted an act revenge for burglary he, A., was rumoured to have carried out. On 11 April 1988 preliminary judicial investigations were initiated into allegations applicant accomplice, D., intentionally deprived liberty 1987. 11. 28 officers drew official record (proces-verbaal) containing findings investigation kidnapping assault It stated, inter alia, number witnesses seen G. other persons in bars town Weesp night 29 1987 these overheard three men making inquiries whereabouts victim, know well be very afraid him. Police conducted various shown such reputation this fear shared many people. According reporting officers, who suspects prior during commission offences question so scared make written statements. 12. The then describes how four confronted with co-accused D. through two-way mirror. observed became fearful upon seeing wanted leave room as soon possible. None identified applicant, although them looked similar perpetrators. interviewed separately after identification procedure; indicated s/he did not wish remain his/her own coming face whom recognised further reported fifth witness from twelve photographs him/her made enquiries victim. 13. One also noted repeatedly telephoned him their statements, saying wished withdraw statements because feared reprisals co-accused. officer considered unfounded given that, since event, put pressure 14. Criminal proceedings brought against Regional Court (Arrondissementsrechtbank) Utrecht. charges included having accomplice offence unlawfully depriving keeping thereof. 15. 1 June 1989 acquitted charge, convicted charge sentenced partly suspended term ten weeks’ imprisonment, less time spent pre-trial detention. By judgment same date, applicant’s co-accused, 16. Both Prosecutions Department (Openbaar Ministerie) lodged appeal Court’s decision Appeal (Gerechtshof) Amsterdam. No concerning 17. 18 1991 quashed judgment, year’s used evidence, following section (see §§ 11-13 above): “It has emerged several saw known them, September. These photographs, including pictures <the applicant> stated 100% sure recognising named being victim Weesp. subsequently leaving victim’s brother, while stayed behind bar Weesp, where shortly afterwards approached applicant>, returned meantime, outside.” 18. points law Supreme (Hoge Raad). 19. 14 1992 Appeal. held way which facts established comply legal requirements. recalled anonymous could only evidence if it down judge knew identity witness, expressed opinion regards reasons witness’s desire reliability, provided defence ample opportunity witness. added finding guilt based significant extent sources. decided original Utrecht should again and, end, referred case Hague. 20. At subsequent public hearing 1993 Hague instructed investigating (rechter-commissaris) hear previously described 1988. If need be, heard application appropriate measures safeguard anonymity, anonymous. 21. 13 under oath judge, aware concealed phrased follows interview: “In short conversation actual interview, discussed latter’s [the applicant’s] fellow can aggressive, which, according is common knowledge. said, about itself concerns revenge. view above, contents drawn cannot reproduced here, necessity anonymously sufficiently substantiated.” 22. Counsel attended interview different room. addition questions, questions at request counsel, submitted writing beforehand. twice gave counsel read asked fact avail himself opportunity. 23. reply when police, 1988, handed bundle fifteen photographs. out recognised. why latter reply, explained beginning interview. some not, however, doing anonymity guaranteed. 24. appeared consistent corresponded police. concluded reliable 25. before 15 1993, taking neither nor appear trial court remained problematic. queried whether real or contrived. argued scent-association test sniffer dog relied resulted scent associated revolver. 26. 1989, liberty, its evidence: (a) officer, effect forcibly house up, butt chrome-coloured revolver, him; (b) found driving home, car assaulted; (c) traces blood arrested near car; (d) report (contained 20 October 1987) member scientific department stating inside outside car, revolver jacket sent forensic laboratory (Gerechtelijk Laboratorium) together sample victim; (e) dated December indicating come A.; (f) March telephone seized; (g) 25 dog, times object applicant; (h) confirmed previous co-defendants, him/her, bar, people co-defendants involved battery (i) defendants well, period around would regularly drive present registered name. 27. Unlike Amsterdam, thus use but judge. items essentially those Amsterdam 1991. 28. Appeal’s contained no assessment reliability validity 29. Court. complained, insufficient and/or circumstances adduced justifying almost six years alleged offence. series selected photograph Neither therefore position assess nature presented certainty recognition. 30. dismissed 7 1994. After violent stood accused concerned revenge, conclusion there constitute incorrect interpretation incomprehensible. respect complaints relating originally
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7. The facts of the case, particularly concerning events on 23 July 1993, were disputed by parties. Having regard however to length time which had elapsed since those and nature documentary material submitted parties, Court decided that a fact finding investigation, involving hearing witnesses, would not effectively assist in resolving issues. It has proceeded examine applicant’s complaints basis written submissions documents provided 8. Government’s are set out below (Sections A B). relating also summarised (Section C). 9. In applicant was 60 years’ old father 10 children, living Basoğ hamlet about two kilometres from village Ormanici (also known as Ormandışı or Cicika), Silvan district, Şirnak province South-East Turkey. This been subject previous attacks security forces conjunction with guards during 1993-1994 (see application no. 21689/93, Ahmet Ozcan Others v. Turkey). 10. On 24 an armed attack supported helicopter gunship under direction Gendarme Headquarters gendarmes Bayrambası. started at 17.00 hours. his home Başog wife Nezihe, sons Burhan Hamit daughter Neşihat. They heard sounds gunshots coming saw flames smoke starting rise different parts village. Women children fleeing ran towards hamlet. called son take tractor flee, he did. number whom knew – Esref Simpil, Ihsan Nuri Simpil Guri (this family name appears some Sumbul). 11. Neşiat pleaded holding Koran. nonetheless burned house crops. firing Burhan. got off put hands over head. descended within few metres, took look him friends then flew away. carried Batikan village, 5–6 Looking back Batikan, could see fields burning. When it dark, went Altinkum. He returned later when left. 12. His damaged follows. walls riddled bullets all windows broken. 3-ton diesel tank attached pierced poured out. caught fire because bullets. Two barrels full diesel, trailer wheels tractor, irrigation pump 110 pipes destroyed hundred sacks front burned. Four tons harvested wheat, barley lorryloads straw burned, whole year’s labour. 13. During itself, 70-year-old villager Seve Nibak 7-year-old boy Cihan Matyar shot killed. other houses, including Mehmet Safi Aranacak, crops crop stores. 14. district gendarme captain, Captain Hakan Temel Aksel, told villagers they say terrorists raided cost them dear. captain drew up report stating there clash between sign it. 15. continued live for year. summoned year after incident Bayrambası station detained commander who angry staying Gom. be released unless down house. released. taken photographs wanted good condition. come son’s 16. 29 September 1994, Gendarmerie where allegedly counter-signed sergeant Ömer private Ibrahim Bilgin. sent chief public prosecutor Aksel. 30 forced statement prosecutor. 17. opened investigation into applicant. 3 October decision due lack evidence pursued. 18. An place deaths 1993. substantiated claim Boyunlu, fired villagers’ property crops, local units no members PKK refers inter alia petition Bişar dated 27 statements Bisar Husna 2 August Sabri Mehdi 31 Sevket Aslan 1 1993 Hasan Manar 19. issued non-jurisdiction respect referred case Diyarbakır State Security Court. November court prosecution four guards, Zaman Gurkan Simpil. 1997, acquitted murder insufficient evidence. 20. Sadık relatives going pick wood cut Rişta stream (elsewhere Hişta Pişta). across resting stream, broke Medeni wounded. Other Boyunlu watching hill noticed help. fled Ormandışı. gendarmerie informed wireless. As passed through their guns random, killing Nıbak. chased gendarmes. became gave pursuit. Next morning, area searched but nothing found save run away Altınkum. 21. location sketch map. gendarmerie. Zeki Matyar, murdered child, stated hit head Nibak, husband woman blamed son. July, six corroborated stories contradictory any important point. These described how random. 26 wounded hospital. guards. 22. June lodged complaint alleging attacked Ormandısı, killed houses. sister-in-law, several accused attack. 13 Azize made seriously contradictory, e.g. Zeki, contrary earlier statement, said shot, while outside 23. file 24. tried Aggravated Felony Court, 1996 did rely complainants contradictory. 25. make events. being Strasbourg, questioned view initiating investigation. mentioned none possessions this. therefore pursue further. 1. Statements Statement 28 Human Rights Association (HRA) 26. hamlet, km At hours, shots Smoke appeared. Village women direction. first thought soldiers raiding discovered protectors. escape. fled. recognised brought Koran burn Despite that, tractor. hide village; leave evening, thinking gone, No-one there. happened objects bullet holes petrol leaking fire. barrel its up. rendered unusable gunfire. empty fields, 4 lorry loads completely 27. television came shamelessly No guerrillas have done such thing. Aranacak HRA 28. evening 80 90, raid working field time. 4-5 About half hour later, Ormandışı, shouting shoot claiming guerrillas. men able more easily, getting tractors fleeing. Some hid clumps trees near rake learned Nivak inside Badik. fled, ground military helicopters air. goods destroyed. 29. command said: “You’ll your homes terrorists, If you accuse will much dearer”. saying broken people died cross terrorists. signed against will. forcing either go tot mountains fear lives danger them. 1998 lawyer Ayla Akat 30. shown photograph Government. his. explained 31. burning houses Ormanici, Basoğ, away, agricultural equipment homes. watched 500 metres still habitable. lived another station. detention. Then son, Burhan, threatened father’s house, So Gom release months asking Bayrambaşı Silvan. soldier police pictures time, idea why doing so. 32. regarded various occasions connection this threats State. prosecutor’s afraid detention again threatened. 12 April 2000 33. lawyer, Aydın, pressure application. gendarmes’ After there, perpetrators incident, force withdraw complaints. frightened do bad things. 2001 34. villages. Towards large entered began only one alight raked trailer. pump, three-ton tank, straw. He, Neziha, (now Germany) Afterwards, moved Five Ormandişi true. 35. years muhtar Ebedin Sezgir, if change testimony him. office down. illiterate read arrested 14 days. tortured ill-treated. tortured. muhtar, keen testifying scared, imam. Government Sait 36. father, applicant, coming, scared drove three others too. crossed heads. above heads, looked day night returned. ruin, part unusable. Harvested motor water Nezihe (the wife) 37. 16.00-17.00 hours She Bullets Soldiers arrived alight, haphazardly directions. Everything burst flames. wheat her outside. fridge, TV, radio-cassette player, butter maker, curtains, quilts, mattresses, rugs kitchen implements. meanwhile insulted kill all. farm equipment. Neşihat 38. Her reproduced almost identical terms mother above. Halime Eruncak (Aranacak) 39. she Şafi. this, child colander everything ruined. applied European Rights. five captured militant forces. refusing capturing PKK. soldiers. Mersin. now stay spoken contacted lawyers. followed contact responsibility husband. 40. petitioners complained aggressors hated grudge latter’s lodging legal proceedings illegal entry onto lands. 41. attending herd. upper end neighbour’s. next villager, Haci Bisar, up, dead body must witness asked man stick. find body. There around. hospital autopsy. guess filed complaint. Guzec 42. guard received request help cutting poplar clashed persons injured. randomly dispersing. entering firing. apparently arrived. operation result achieved. return Hüseyin Cesur 43. clash. arrival Hista injured persons. so northern part. died. stage, dark then. trail 7-8 found. Reşat Değerli 44. afternoon, poplars belonged Three keeping watch hills. downstream reported arrived, 7 8, Sumbul, kept turning randomly. wild teams search Altinkum instructions. besieged. However abandoned nightfall. morning without result. Ramazan Moğuç 45. witness, guard, recalled call poplars. left tend Entering heavily. entered. terrorists’ dark. waited until send party. Hamdusena Güleç 46. providing stream. Gunshots 6 hot intensively neared lost terrorist shooting. Due darkness, covered possible escape routes party early morning. following trail, gone home. 47. trees, Terrorists brother yelled radio. north, With help, went. exchange Military used bed escaped north. gards indiscriminate positioned nightfall till Incident 48. Lt NCO senior Ali Buber well deceased victim, victim. following: 49. around 16.00 radio second team incident. Information re-established commando division deployed One internal Babakaya deployment, hills continued. Babakaya. woman, (born 1926) 1985) night. uncovered 5 rounds 7.62mm G3 bullets, 18 7.62 calibre Kalashnikov rifle 25 Biksi automatic belonging citizen transferred turn Hospital treatment. 50. Upon instructions prosecutor, bodies centre projectiles, hand grenades 40 mm kalashnikov commandos 60mm mortar projectiles 1950 infantry searches, cartridges rocky tree-covered terrain. Following searches clash, established life lost. Sketch map drawn 51. showed, alia, path south north Kulp, position villagers. Body examination autopsy 52. doctors. identified hole scapula exit level armpit. Death widespread thoracic haemorrhage occurring injury vital organs. eight-year-old 2-3 cm xiphoid bone 10th vertebra. loss blood. cause death certain, classical required. Medical emergency clinic 53. recorded 1-2 bruising ecchymotic areas side costar vertebral region. signs suspected ribs. patient diagnosis 54. noted probable foot, right arm third (location illegible). life. Hospital’s Orthopaedics unit. 55. 5-10 rear kneecap knee cap. possibility fracture. Sadik 56. chopping Muhyettin guarding 300 high (so worked). leg. back. summoning pursued 57. Pista fountain. immediately. protecting treatment Petition 58. 17.30 petitioner’s daughter-in-law escaped. Sumbul Gurgin indiscriminately wife. land dispute above-mentioned individuals, 1981-1982 judiciary. 59. witness’s 20.00 lying (Ihsan Sumbul) her. 1984-85 named above; guessed reason While manoeuvring. requested punished reimbursed. 60. father-in-law shots. mother-in-law. witnesses 61. wood. themselves arrive shortly. running hill. shortly before officer brigade surrounding Darkness fell. First Lieutenant Boyunlu. anyone. complaint, grandson many slandering 62. shepherd grazing sheep guard. evening. involved way. support 63. immediately Pişta area. participated south. exchanged follow tracer threshing piles. outskirts. darkness reached Kulp side, stayed Nobody claimed close relative his, like aunt undermine system. Eşref 64. informing station, Sadık, guard’s brother, continued, way not, taking Gendarmes nearby over, Kulp. followed. Before 20.30 22.00 withness Report 65. joint 8 Ergani Commando Battalion, unit signatories’ murders apprehended nor identities established. M. 66. Matyar. grain piles left, low places. nightfall, 19.00 Ali, what happened. open though. 67. guns. entered, using language. persons, harvest 19.30 own short before, appeared, targets. believe apprehend 68. 16 Guards searching weapons, tied terrorist. managed burning, height. talking commanding officer, saying: “They Kulp”. most on. Bezvan, probably feel complain. anything 69. shut fear. gunshots. Apparently occurred. door tell enter these incidents place, flying 70. weapons. Later burnt 71. gunshots, Veysi’s bolted gunfire shot. livestock. Faysal 21 72. fields. 13.00 Returning met 100 should far ones recognised. Eşref, Gorgu rifles. mother, sister, hostage announced appealed demanded know were. days before. payment TRL 50 million. deal butts. allow drink advantage opportunity 73. altitude. provincial regional commander. 70-80 certain queried whether villagers, refused civilians. 74. talked Ihsan, laughed, lieutenant enough. Expert ballistics 75. listed recovered currently incidents. further issue case. Decision jurisdiction 76. victims, suspects understood assault withdrew, indiscriminately. offences Court’s 77. Esref, duty. institution proceedings. 1994 78. PKK, January 1994. Kaforme group seven eight occurred unidentified soon made, Onbaşılar, BTR-80 Though bloodstains wounded, discovered. Protocol 79. protocol gardens skirmish season. garden 80. clashes not. alleged. authority matter. Letter 81. Arancak Commission Rights, 82. According investigations, appeared fighting hill, allegations false. prosecute 83. Although alleged Arancak’s letter gendarmerie, failed produce true charged committed. opened. Judgment 84. judgment Gokhan 85. defendant victims lived. defendants sheep. defence confirmed Yasar, Makbule, Kamil Salih (name two-way conflict place. might Husnu fired. Cihan, seen Gurkan. himself. Arslan eyes. Metin Empty proving defendant’s participation absent. Aksel Biber, officers binoculars. concluded However, indicated held responsible. Consequently, gathered, convincing obtained prove victims. certainty. claims based eye accounts. contradicted given account. witnesses’ content furnish sufficient, definitive offence. Therefore acquitted. 86. already request, maintained denied effect. course authority. Sezgir 87. presumably Those clashes. Arancak, winter households orchard garden. Baykuşak 88. located frequent Many harassment safer protected doors sell. abandoned, fell though concrete sound. influenced Germany member 89. former valley intensive activity. others, same. harassed occasion valley, escaping battle remove wooden parts. stood stone collapsed removed beams. question tearing All 90. 15 1998, photographs, accompanied procès-verbal 11 1996. 91. showed man, purported standing Orrmandisi. one-storey roofed intact. Photographs 92. 22 2000, colour derelict building, roof, bricks stones remaining height
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8. The applicant is a Lithuanian national, born in 1950 and living Kaunas. 9. applicant, police commissioner, was suspected of involvement conspiracy to smuggle non-ferrous metals view his alleged failure investigate properly the activities certain smugglers 1994. He arrested on 18 August 1995 context criminal proceedings instituted 1992. There were eight co-accused case, including applicant. 10. On 22 he charged with obtaining property by deception (sukčiavimas) under Article 274 Criminal Code, abuse office (piktnaudžiavimas tarnyba) 285 official forgery (tarnybinis suklastojimas) 289 Code. 29 November prosecution dropped last charge. 11. From 1 December January 1996 had access case-file. 14 February prosecutor confirmed bill indictment whereby indicted for offences Articles 20 case transferred Vilnius Regional Court. 12. 17 May judge Court ordered additional investigations requested that supplement charges 26 June Appeal quashed decision, finding able consider question committal trial without further investigation measures. also applicant’s release bail. released open court. 9 July remitted 13. September committed 14. During hearing 24 April 1998 stated: “... charge cheating may be supplemented ... [and] [of Code] amended adding ‘selfish interest’ .” 11 said: breaches [the specific provisions] Police Act informed parties she would pronounce judgment 1998. 15. acquitted count In connection court held: “the cannot sustained... . However, applicant], being State official, improperly performed functions because negligence” failed ensure proper control smuggling case. Since this amounted breach provisions Act, found guilty negligence (tarnybos pareigų neatlikimas dėl nerūpestingumo) 288 sentenced one year’s imprisonment deprived right occupy an position system law enforcement. reduced custodial sentence third pursuant amnesty law, completed account time spent detention remand. 16. appealed against 1998, stating convicted him offence not covered initial respect which been defend himself. noted particular during no way indicated could replaced negligence. 17. held appeal questions fact presence defence lawyer. heard addresses prosecutor. dismissed ground inter alia that: allegation reclassification permitted unfounded. Both [285 punish office. [first instance court] only established applicant] as officer negligence, but did deliberately take advantage contrary interests [original] refer [by Act. accordance 279 § 2 280 Code Procedure, warned An adjournment offered preparation defence, request such himself therefore dismissed.” 18. filed cassation Supreme Court, complaining breached March 1999 appeal, upholding decisions lower courts. first reclassified Procedure lesser one, merely drawing legal conclusions consistent facts laid before it.
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9. The applicants are Swiss citizens born in 1950 and 1957, respectively. first applicant lives Siebnen, the second Lachen Switzerland. 10. In 1994 announced their intention to construct a subterranean garage Lachen. neighbours complained, arguing that certain prescribed boundary distances between real properties had not been observed. Their objection was dismissed by March District Court (Bezirksgericht) on 19 July 1994. court awarded applicants, as defendants, 8,000 francs (CHF) for procedural expenses (Prozessentschädigung), plaintiffs, neighbours, could themselves have verified question respected. costs of CHF 1,149.20 were imposed plaintiffs. 11. filed an appeal (Berufung) which Cantonal (Kantonsgericht) Canton Schwyz 4 1995. operative part its decision, took formal note applicants' commitment no changes would be made within fifty centimetres from border separating properties. also ordered pay plaintiffs 4,000 first-instance proceedings proceedings, well amounting 3,450.50. found plans incomplete even incorrect terms employed vague, thus prompting uphold objection. uncertainty brought about conduct contrary good faith actually provoked procedures before two instances. 12. On 9 October 1995 public law (staatsrechtliche Beschwerde) with Federal (Bundesgericht), complaining, first, imposition costs, view disproportionate plaintiffs' claims. There obligation submit plans, neither nor instance considered it necessary ask further plans. It unclear what extent used imprecise, indeed, objections raised priori completely unfounded. whole appeared that, matter value 10,000, now asked 12,000 unnecessary proceedings. Second, complained judgment incorrectly taken fact requested parties 13. transmitted observations both 14. sent reply, running seven pages, together case-file, 16 November 1995, requesting latter dismiss appeal. submissions explained why vague precise early information necessary. continued “quite typical (applicants') mentality” (geradezu typisch für die Mentalität) they submitted sketches only after filed, since knew there tensions object. Other remarks misplaced (deplaziert). furthermore competent formulate conditions judgment, particular area 15. five pages December Therein, commented Court, 16. various lawyer who, 11 replied: “In above-mentioned case I thank you serving observations. should like let me case-file consultation (which cantonal fully undertaken, presented incomplete). written 'reply' (of 7 pages), lower adds decision numerous new grounds amendments reasoning. They hardly objective aim at twisting facts manner expected court. Pursuant S. § 1 Constitution Article 6 Convention, request opportunity comment 'reply'.” 17. By letter 13 “You objecting against inadmissible statements transmittal case-file. At present stage can longer exercise any rights. Therefore, we need our cannot comply your consultation. Inadmissible will disregarded ex officio.” 18. February 1996 appeal, being served April 1996. noted outset opposing party dismissal then declared insufficiently substantiated complaint make 50 line respect complaints expressing wish garage, unintentionally obliged institute defend property rights, compliance sufficiently transpired entitled combine neighbours' clause whole, person wishing became responsible provoking litigation if he did beginning establish clearly other persons' rights affected.
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9. The applicant, a Swiss citizen born in 1912, is pensioner living Worben (Switzerland). 10. Until 1994 the who draws an old-age pension, lived with her husband house belonging to He.M., one of two sons, Lyss Canton Berne. As she was suffering from leg sores, received help Association for Home Visits Sick and Housebound 1987. In 1989 He.M. moved in. 11. 1994, at their request, applicant were placed under guardianship (Beistandschaft) other son, A.M. However, objected this. At end applicant's into S. Nursing It agreed that would also move within week, but did not do so. 12. On 29 March 1995 new guardian, Mrs B.F., appointed. request view He.M.'s resistance order discontinued respect on 28 June 1995, remained effective. 13. Early 1996 died. 14. 9 February wrote Guardianship Office (Vormundschafts-behörde), stating, inter alia: “For following reasons [the applicant's] treatment care causing increasing difficulty; days now it has become impossible. Our programme being disrupted: virtually every day we must stand outside closed door wait until He.M, perhaps deigns open it, scantily dressed. Frequently, try again another time ... A collection newspapers, cardboard boxes full plastic bags makes difficult us gain access equipment need our work If applicant] bedridden, which January 5 because lack heating rooms, are unable undertake even minimum [her] account chaos room [im räumlichen Debakel] We will be able continue provide 1996. [she] or family wishes services, this possible after 1 1996, only conditions: 3. require space made available bedroom, spare bed, as well lying around, taken out, they hinder work; bed free; 5. should have warm midday meal (to provided by home services old people's home).” 15. appears respond proposal. stopped visiting them. Subsequently, eye operation, eyesight deteriorated. From association's doctor ceased visit continued live 16. 13 December Commission (Vormundschaftskommission) requested Aarberg District Government (Regierungsstatthalteramt) place nursing home. 17. 16 Governor visited applicant. explained that, rule, son cooking given enough eat. She could go toilet unassisted, washed herself kitchen. Her sores treated woman helped her. stated wish Home. 18. 17 ordered placement unlimited period serious neglect (schwere Verwahrlosung). relied Articles 397a et seq. Civil Code (Zivilgesetzbuch) section Deprivation Liberty Grounds Welfare Assistance Act (Gesetz über die fürsorgerische Freiheitsentziehung) municipal police, together health inspectors, implement 20 December. noted required permanent cataract, no longer association, certain had order, referring intolerable conditions hygiene unheated flat, situation, already lasted many years, change foreseeable future. 19. Worben. 20. each filed appeal (Rekurs) Cantonal Appeals (Rekurskommission) consisted three judges, its president lawyer. persons specialised whom, rapporteur, doctor. 21. 1997 conducted hearing lawyer, member representative present. According record hearing, reason unhappy home, walk, better stay there, see how matters get said “wanted out S.”. 22. dismissed appeals same day. facts found: “The situation home] apparently catastrophic, third parties found necessary file reports make statements. lately staying very poor, walk properly. own submissions, hold support wherever goes. needs wheelchair, does flat heated, there refuse everywhere, catering meals. nurse responsible previous occasion healed conditions. states last weeks noticed loss body weight, attributed fact son] taking sufficient ensure his mother eating Mr Hi., brought hospital, been horrified state heated. fruit vendor reported horrific. When head social asked responded answered present when arrived. properly dressed (she wearing nylon tights torn woollen jacket) smelled badly. B.F. shocked declared never seen person such state, although long experience matters.” 23. decision considered grounds Article justified withdrawing liberty welfare assistance. Firstly, neglected, tend most basic dietary needs. dress herself. Without confined bed. Since visiting, problem unresolved, particularly refused voluntarily. second ground, “during come conclusion mental disability (senile dementia)” (Geistesschwäche (altersbedingte Demenz)). disability, “would if degree sufficiently serious”. continued: “In context, appellants' argument accepted during hearing. true deprivation assistance went reside free will. transpires case frequently willing enter voluntarily, finally happened.” 24. Commission's view, released, return her, he himself invalid poor eyesight. Yet, Home, care, ideal area knew. Indeed, hardly aware liberty, minimal, mainly affected want leave mother. further complied § (e) Convention, since provision permitted cases vagrancy, term understood wide sense. 25. lodged public-law (staatsrechtliche Beschwerde) Federal Court (Bundesgericht) 15 May 1997. served 26. so far complained examined whether less stringent measures possible, court concludes first appellant capable looking caring herself, feeding dressing herself; without bed; invalid, see, look nobody else position her; attempts resolve failed; end, means preventing neglect. therefore duly proportionality Whether exists, apart neglect, some justify itself – point challenged appellants procedural rules allegedly breached connection ground detention, examined, unsuccessful against [applicant's] detention neglect.” 27. 14 1998 lifted
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10. The applicants are German nationals who were born in 1966 and 1968 respectively live at Badbergen (Germany). They married have two daughters: Corinna, was on 11 September 1991, Nicola, 27 February 1993. 11. their daughters had lived since the girls' birth with Mr Kutzner's parents his unmarried brother an old farm. Kutzner works a poultry Mrs used to work factory, but losing her job has stayed home look after children do housework. attended special school for people learning difficulties (Sonderschule fûr Lernbehinderte). 12. Owing late physical and, above all, mental development, girls underwent series of medical examinations. On advice one doctors applicants' request, they received educational assistance support from very early age. Thus, 1994 elder daughter, (Frühförderung), while 1995 1996 respectively, both day-nursery needs (Heilpädagogischer Kindergarten). 13. Between October May 1996, Ms Klose, social worker (sozialpädagogische Familienhilfe) visited family home, officially ten hours week. say that she actually spent only three there, as time travelling be taken into account. Relations between rapidly deteriorated, which resulted preparing negative report them. 14. Klose's Osnabrück District Youth Office (Kreisjugendamt) did indeed emphasise points: intellectual shortcomings, conflictual relations members contempt that, initially least, been shown by family. 15. Following made application 13 Bersenbrück Guardianship Court (Vormundschaftsgericht) order withdrawing parental responsibility children. 16. 18 appointed Waschke-Peter, psychologist, give expert evidence. He delivered 20 November 1996. 17. 12 1997, hearing evidence grandparents, interlocutory (einstweilige Anordnung) rights decide where should (Aufenthaltsbestimmungsrecht) or take decisions regarding children's health (Recht zur Bestimmung über ärztliche Maßnahmen), notably ground “[the did] not capacity required bring up properly” (“die Kindeseltern sind intellektuell nicht der Lage, ihre Kinder ordnungsgemäss zu erziehen”). 18. From July 1997 placed care assessment team (Clearingstelle) private association Meppen (Verein für familienorientierte Sozialpädagogik), part Society Family Education (Gesellschaft Sozialpädagogik). 19. In dated 24 April chairwoman executive board society, Backhaus, also requested withdrawn IQ expected decrease, new would afford them chance enjoy relationship stimulate development skills intelligence (eine Verflachung des IQ's ist vorprogrammiert, eine Chance haben die durch neue Beelterung, Beziehung Impulse Sozial- und Intelligenzentwicklung gesetzt werden). 20. further withdrew (Sorgerecht) over It relied finding psychologist's fit children, through any fault own (unverschuldet erziehungsunfähig), because possess requisite capacity. found lacked necessary awareness answer needs. Moreover, opposed receiving services far being genuine, consent now given measures merely reaction pressure felt result proceedings. added so retarded it could corrected grandparents services. Only foster – Corinna's case this professional (professionelle Pflegefamilie) help less radical inadequate. 21. 15 separate, unidentified (IncognitoPflege) (Pflegefamilien) register held Education, produced requesting withdrawn. 22. letters January, 23 June 2 said considered returned care. 23. appealed Regional (Landgericht) against Court's decision 1997. 24. 25 course qualify childminder (Qualifizierungskurs Tagesmütter); completed certificate. 25. 29 August psychology Association Protection Children (Deutscher Kinderschutzbund), organisation sought help, expressed view receive extra 26. After these views expressed, Trennheuser second witness 9 December heard applicants, relevant authority witness. 27. By January 1998 dismissed appeal provisions Civil Code (Articles 1666 1666a see “Relevant domestic law” below) governing protection interests satisfied. referred reports experts psychology. According first report, lodged incapable bringing deficiencies out depth. Bringing persons outside circle assist exacerbate existing tensions sense insecurity. dominated unable project image offering (the applicants), no more capable remedying presented grandchildren. approximately year behind general factor discernible particular speech, consisted stammering. Had benefited years services, probably ended mentally disabled develop normally lead normal adult life. helping personalities, ill-equipped understand treat appropriate manner. Scientific studies type prevented emotional ties particular, knowledge acquired danger stifled environment. done than tend basic There risk future become increasingly aggressive towards Regard all those considerations, separating way eliminating welfare (Gefährdung Kindeswohls). noted witnesses reached same conclusion following thorough analysis. due regard fact contacted childminding course. However, factors sufficient enable rule harmed. 28. March Oldenburg Appeal (Oberlandesgericht) appeal, holding there breach law. courts concerned representations parties, account already implemented, psychological behalf opinion doctors. 29. 26 three-member committee Federal Constitutional (Bundesverfassungsgericht) applicants. 5. Expert furnished request Rights Child 30. Riedl, professor sciences Director Educational Sciences Institute University Schwäbisch-Gmünd, he concluded entirely emotionally intellectually. provided successful example cohabitation generations desired, planned well-organised satisfactory material conditions circumstances permitted individual fulfilment Familie bietet somit ein geglücktes Beispiel das gewollte, geplante wohlorganisierte Zusammenleben dreier Generationen geordneten wirtschaftlichen Verhältnissen unter positiven individuellen Bedingungen”). additional largely compensate make school. 31. 17 1999, association, Giese, law Tübingen Assessment Physical Mental Damage (Institut Medizinschaden), procedure followed instant contravened Articles 6 8 Convention. 32. As homes, six months. 33. then Court, 4 granted visiting hour month despite opposition Office. 34. Contrary what ordered visits conducted presence eight representatives various departments associations. Subsequently, number decreased, insisted accompanied (begleitetes Besuchsrecht). 35. 1999 attempts obtain permission Christmas start eldest daughter's year, refused. applied daughter beginning year. 36. fresh seeking right visit Christmas. 37. 21 application. another Sperschneider, establish extent whom granted. 38. Additional information supplied parties its admissibility (see paragraph above) indicates 2000 Sperschneider recommended increased once every 39. indicate whether accepted proposal. 40. letter accordance arrangements proposed psychologist. 41. 14 2001 asked issue merits. 42. 16 took formal note agreement concerning unnecessary determine merits case. 43. Seifert, representative acted guardian, meet discuss issues such rights, christening ceremony arranged village. 44. Seifert declined meeting 22 2001, saying observe progress themselves during visits. 45. wrote terminate Office's appointment guardian name independent place. 46. rejected criticism directed him 47. reply systematically separate good, whereas majority separation temporary needed origin. if contact under strict supervision sufficient, little value. Lastly, interest really thought. 48. court clerk (Rechtspfleger) replied informing
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9. The applicant is a Portuguese national, born in 1940. He was lawyer and currently detained the Santa Cruz do Bispo secure psychiatric unit Matosinhos (Portugal). 10. applicant, who suspected of fraud, arrested on 1 March 1996 placed pre-trial detention. 11. During proceedings against him examined by psychiatrist. In his report 22 July psychiatrist concluded that suffering from residual schizophrenia should be given long-term treatment. 12. judgment 11 November Oporto Criminal Court held that, account mentally disturbed state, not criminally responsible (inimputável) dangerous. It accordingly ordered he for maximum period eight years. 13. On 4 December transferred to unit. 14. an order 24 January 1997 judge decided accordance with relevant legislation, mandatory periodic review applicant's detention take place 1998. 15. file transmitted Sentence-Supervision (Tribunal de Execução das Penas). 19 February court assigned represent had chosen one himself. also asked staff Santo prepare initial condition. 16. letter Dr M.S.C. informed “clinically balanced”. added behavoiur “[was] adequate [could] released probation [liberdade para prova] if agree[d] accept support outside [took] medication”. 17. 7 April await expiry time-limits provided Article 504 Code Procedure. 18. 2 personally lodged application release, relying M.S.C.'s favourable opinion. marked as “seen” (visto). 19. 1998 Institute Social Rehabilitation, submit its opinion social situation Forensic Medicine (“the IFM”) carry out medical examination. 20. Rehabilitation submitted 18 May 1998, concluding circumstances were such could probation. A examination carried 28 IFM filed remained danger society. 21. June further on, inter alia, 5 § Convention. 22. judge. As officially present, appointed officer defence counsel. stated, among other things, considered himself have recovered medicines which still taking unnecessary. 23. 9 release. 14 pleadings criticising IFM's report. 24. Prison Service copy latest decision relating 10 indicated no yet been taken. 25. absconded during prison leave between 3 1999. captured 1999 when police authorities found at family home. 26. 20 2000 keep based first, before stressing it clear leave, position prove worthy trust system him. Lastly, applications release did examined. 27. appealed Appeal da Relação). However, examine appeal, noting admitted represented counsel, President Division Supreme delivered habeas corpus effect request would state. 28. unknown date Appeal. made stating appeal referring reasons stated 2000. 29. 8 lodged, through Mr Pires Lima, challenging dealing case. 2001, granted application, new being appointed. 30. 29 2001 public prosecutor requested since presented danger. 30 dismissed next (scheduled 2002). 31. appeal.
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8. By a judgment of 6 October 1995, the Paris tribunal de grande instance made divorce order terminating marriage Mr and Mrs Del Sol, ordered liquidation partition matrimonial property, set level maintenance to be paid applicant at 1,300 French francs (FRF) monthly dismissed claim for damages by applicant. 9. On 8 December 1995 appealed against that judgment, stating, inter alia, her husband, petitioner in proceedings, had failed satisfy conditions out Civil Code, as he no rights assets offered leave her. She argued alternative would cause exceptional hardship husband's petition should accordance with Article 240 which empowered court dismiss if respondent showed “the ... or children material psychological ...”. The also sought form payments FRF 3,000. 10. 25 February 1997 Court Appeal upheld all provisions impugned exception decision relating maintenance, was reduced 1,000 monthly. It held, applicant's husband satisfied on admissibility depended, assign his property couple jointly owned Italy. further held show hardship, either psychologically materially. 11. 20 May applied Legal Aid Office Cassation legal aid enable appeal Appeal's decision. Her application refused 2 April 1998 ground arguable could judgment. noted, however, means test aid. 12. 22 an 11 June President it, holding “found after assessing facts case its unfettered discretion”.
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9. In September 1991, at the age of 16, applicant became a member British Army, joining Life Guards regiment Household Cavalry. November 1992 was posted to Cavalry Mounted Regiment (“the HCMR”) where he taught ride horse. The alleges that during riding lessons target bullying by other soldiers, including lance-corporal. According applicant, towards end lance-corporal hit him on side head with his fist, causing fall and strike ground. On 30 1992, several days after attack, reported sick told medical officer injury face had been caused falling off 26 February 1993 who have feared further physical went absent without leave. 17 March wrote commanding (“CO”) (a lieutenant-colonel), stating, inter alia, “[his] inability express sufficient enthusiasm training sometimes resulted in abuse certain NCOs [non-commissioned officers]”, asking terminate service. He received no reply this letter. 10. arrested civilian police 16 October 1996 taken HCMR's barracks Hyde Park, London. following day charged being leave contrary section 38(a) Army Act 1955. 18 remanded close arrest Major Kelly, acting as subordinate CO. “Eight Day Delay Report” dated 24 1996, reason for detention is stated: “Likely himself ... – has already offered bribe JNCO guard release him.” 31 appeared before CO an abstract evidence. subsequently released into open 11 1996. trial district court martial 13 1997. 11. statement 4 Ministry Defence Police, stated attack occurred week prior going leave, while 29 January 1997 sometime 1993. found left army took statements from soldiers same course applicant. They there evidence support complaint. signed saying, alia: “I come conclusion I just want get out my life Even though assault happened, do not Police take any action concerning incident.” 12. Following applicant's remand trial, appointed Captain A. “defending officer”. legal training, serving troop commander HCMR. applied Criminal Legal Aid Authority Authority”) aid enable be represented solicitor. application form weekly income deduction tax, rent national insurance 158.13 pounds sterling (GBP), savings or property value. countersigned By letter 1997, replied charge absence did normally warrant representation but either should write setting reasons if considered that, exceptionally, granted. solicitor April pointing faced custodial sentence needed represented. subject down-payment GBP 240 21 Government maintain could paid ten instalments each, disputed reconsider condition, 2 May replied, refused offer not, therefore, martial. 13. Also document, addressed “to whom it may concern”, which made statement: “This certify I, 25009734 Tpr Morris D longer wish pending District Court Martial than Defending Officer, [A.]. decision own free will. understand all previous correspondence regard will now ignored.” 14. place Chelsea Barracks 28 composed follows: president, Lieutenant-Colonel A.D. Hall Corps Royal Electrical Mechanical Engineers, permanent president courts (appointed post due remain until retirement 2001); R. Reid Medical Corps, Aldershot; W.D. Perks Second Battalion, Gloucestershire, Berkshire Wiltshire (Volunteers), Reading; legally qualified judge advocate (see paragraph below). All three military officers were outside command area serving. worked home when attending court-martial hearings. 15. pleaded guilty between 25 handed court, mention allegedly suffered him. sentenced dismissal nine months' detention. 16. After hearing, erroneously advised appealed against risked commencement date put back appeal. instructed represent 19 June lodged petition Council its role “reviewing authority” below), relying facts allegations presented way defence duress (which applies person criminal offence can show relevant time, reasonably believed would killed seriously injured commit offence) mitigation sentence. asserted unlikely defending understood might basis indicated “ordered” allude indicating so ordered It also mentioned instructions given about what ought event should, volition, ask made. “if appealed, well increased”. introduced, comments reminding rules client privilege disclose details dealings third party. Despite this, provided Council, said, “As [the applicant's] Troop Leader asked Martial, first attended capacity. Although experience civil cases both Magistrates' Crown Courts. [The applicant] me gone more one reason. As expressed showing reservations enthusiasm, commitment devotion duty. [T]he states assumed petitioner choice plead guilty, Absent Without Leave. unaware entered plea duress. discuss great detail. This because these withdrawn under interview MOD Police. wanted drop references violence NCO training. order set significantly earlier substantially shorter. led advise charged, felt gave best opportunity discharged earliest was, all, overall aim. discussed Adjutant Officer. We talked procedural steps conduct leading up trial. confirmed produce guilty. prolong complicate introduced part 1993, agreed forward mitigation. answer questions allegations, dropped. therefore refer such state avenue down proceed. ...” 17. reviewing authority 14 July terms: “The Reviewing submitted your above-named client, denied reasons. payment carefully calculated, line amount pay system. certificate shows clearly decided proceed representation. cannot accept forced decision. appears content [A.] officer. complaints bullied investigated SIB substantiated. Indeed came light investigation [another soldier] planned go merely tired long hours worked. view report, must allegation subjected Non-Commissioned Officer substantiated, regarded mitigating factor. considering complaint solicitor, able duress, we rely advice Judge Advocate General. words another cause fear injured, does offence. Clearly, never injured. notes dropped time Court. intended inform allegations. fact aware them (sic) Commanding read them. mistaken referring booklet 'Appeals Petitions conviction Martial', 1 addition wrong used petitioner. However petition, spite advice, believe harm done. 18. appeal Courts-Martial Appeal Leave single 22 grounds properly manifestly excessive.
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9. The applicant company is the publisher of a newspaper (Kronenzeitung) with its registered office in Vienna. 10. On 3, 4, 7, 8 and 15 March, as well on 3 16 May 29 June 1995, published, Carinthian regional edition (Lokalausgabe), articles financial situation certain Mr Posch who, at that time, was employed teacher and, same member Austrian National Assembly (Nationalrat) European Parliament. commented these professional tasks harsh terms, alleged he received three salaries unlawfully as, according to law, not entitled teacher’s salary during his membership He was, inter alia, referred someone unjustly enriching himself. These were accompanied by photographs Posch. 11. 18 August 1995 applied for an injunction under Section 78 Copyright Act (Urheberrechtsgesetz) Klagenfurt Regional Court against company. requested be ordered refrain from publishing picture connection statements describing him somebody who benefited unlawful privileges. Furthermore, order publication judgment company’s newspaper, indicating grant damages (einstweilige Verfügung). 12. 21 September filed statement defence (Klagebeantwortung) which it argued, impugned had been justified Article 10 Convention. 13. October granted interim injunction. It found measure because plaintiff’s interest prohibiting photograph outweighed illustrated articles, particular pictures per se no special information value (Nachrichtenwert). 14. 4 January 1996 permanent above mentioned or similar articles. dismissed remainder action. court prohibited person’s if violated legitimate interests. When considering such interests, account taken whether person concerned known public, unknown persons made possible identify them later. Posch’s face generally known, despite Assembly. Therefore, interests infringed creating possibility identifying him. course report activities situation, but there had, se, value. irrelevant this specific question content true false. 15. February appealed. argued erred when public Carinthia, elected Posch, interested sources revenue. Therefore should have also evidence – offered prove truth plaintiff participated several events election campaign there. Thus incorrect unknown. 16. 9 July Graz Appeal appeal. together unnecessary. In any case, could outweigh confirmed legal opinion that, purposes Act, contained information. 17. Supreme declared inadmissible extraordinary appeal points law (außerordentlicher Revisionsrekurs). findings Appeal, observed additional value, therefore concluded November decision served upon counsel
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9. The first applicant, an Austrian citizen born in 1921 and residing Vienna, is the chief editor publisher of newspaper “Neue Kronen‑Zeitung”. second a limited partnership (Kommanditgesellschaft) owner this newspaper. third applicant company, general partner (Komplementär) applicant. applicants have their places business Vienna. 10. belong to large media group which at relevant time was strong competition with another represented by Mr Michael Graff, lawyer practising Besides his profession as lawyer, Graff from 1982 1987 secretary People’s Party (Österreichische Volkspartei) and, 1983 1995, Member Parliament for that party. Between 1995 he Chairman Parliament’s Legislative Committee (Justizausschuß). From 1989 July applicants’ competitor several proceedings concerning unfair against companies belonging group. 11. In laws were amended Extended Pecuniary Limits Amendment Act (Erweiterte Wertgrenzen-Novelle). Government Bill (Regierungsvorlage) had also provided amendment Section 359 § 1 Enforcement (Exekutionsordnung), section particular relevance enforcement injunctions. envisaged raising fines could be imposed non-compliance injunctions ATS 50,000 per order 80,000 order. 12. Under chairmanship dealing proposed different version, namely maximum fine AS each request (Exekutionsantrag) instead issued Court. its report June 1989, pointed out multiplied number requests enforcement, if only one decision combining taken. This proposal adopted on 29 published Article XI Act, Federal Law Gazette 1989/343 Wertgrenzen-Novelle BGBl. 1989/343). 13. Four years later, 1993, following article written under pseudonym “Cato” Kronen-Zeitung”: “Moral 93 Before Roland Dumas became French Minister Foreign Affairs, Europe’s most famous successful lawyers. He administered gigantic estate Picasso; Kreisky Affairs when latter found himself bad situation. took it granted give up law firm member government. every democracy world course action followed. Only who obviously thick-skinned, does not intend comply these moral concepts. It so happened presiding Committee, brought about big advantages publishers whom lawyer. ensure such cases no suspicion, even has objective justification, can arise, there exists wise rule incompatibility; allowed take part adoption lead clients. Also thought way they decided appeal Graff’s conscience. vain! very telling present situation cannot convince Graff. other parties will too pleased, becomes flagrantly evident how powerless vis-a-vis officials own disreputable attitude our monopoly-television. would sign fear ‘Kronen Zeitung’ resign Committee. ‘Krone’ but voters, continue turning away party shows itself incapable establishing within ranks; then possibly trust succeed doing State ... Cato.” <German> war, bevor er Frankreich’s Außenminister wurde, einer der bekanntesten und erfolgreichsten Rechtsanwälte Europas. Er verwaltete zum Beispiel das gigantische Erbe Picassos, vertrat einen österreichischen Außenminister, als dieser eine arge Affäre geraten war. Für war es ganz selbstverständlich, daß sein Rechtsanwaltsbüro aufgeben mußte, die Regierung eintrat. Überall Welt wird dies Demokratien gehalten. Nur offenbar mit Büffelhaut ausgestattete Rechtsanwalt Dr. denkt nicht daran, sich nach solchen Moralbegriffen zu richten. So kam es, während im Justizausschuß des Parlaments den Vorsitz hatte, zur Veränderung eines Gesetzes, wodurch Zeitungsverlag, rechtsanwaltlich vertritt, große Vorteile hatte. Damit Fällen ein bestimmter Verdacht entstehen kann, keineswegs begründet muß, gibt eben weise Regel Unvereinbarkeit; Anwalt darf Entstehung von Gesetzen beteiligt sein, seinen Mandanten bringen. Das dachte man auch ÖVP, entschloß sich, ins Gewissen reden. Vergeblich! Es sagt einiges über Zustand ÖVP aus, sie gegen durchsetzen konnte. Den anderen Parteien kann nur recht wenn brutaler Offenheit zeigt, wie ohnmächtig Volkspartei gegenüber einem Funktionär ist, seine eigene Moral hat. Sogar unserem Monopol-Fernsehen durfte anrüchige Haltung vertreten. meinte, würde Angst vor signalisieren, berufe ihn ab. Nicht braucht haben, sondern ihren Wählern, weiter ihr abwenden werden, unfähig erweist, eigenen Partei Ordnung machen; sollte da Vertrauen könne Staat gelingen 14. On 7 1993 injunction 1330 Civil Code (Allgemeines Bürgerliches Gesetzbuch) three before Vienna Commercial Court (Handelsgericht). requested prohibited stating or repeating “does concepts existing democracies all over world, one’s government, (M.G. never been government), and/or taken clients, opinion television”. statement retracted retraction Kronen-Zeitung”. 15. 9 preliminary (einstweilige Verfügung) prohibiting them reiterating impugned statements. avail. 16. September 1994 permanent injunction. ordered repeat statements retract edition amounted insult therefore fell considered 2 Code, paragraph 1330. case onus proof shifted prove truth court contained fact failed prove. 17. insult, meaning because accused ignoring neglecting moral, democratic standards acted immorally. implicit allegation become However, untrue 18. further expressed suspicion abused position Parliament. evidence should allegation, insufficient contended served exclusive interest client. basis, concerned both competing groups distorting effect competition. 19. respect according disreputable, again immorally exercised two incompatible activities. concluded successfully rely 10 Convention, interference rights provision justified protect good reputation, prejudiced untruthful 20. 20 October appealed. They submitted sufficiently into account E.S., employee submitted. According statement, impose execution, thus exploiting weak points. owners monthly magazines. Unlike daily newspapers, magazines usually market longer. If magazines, instance, violated Unfair Competition (Bundesgesetz unlauteren Wettbewerb), legal representative competitors, immediately obtained filed almost enforcement. counted could, long run, afford pay fines, cost withdrawing issue magazine distribution. previous situation, combined decision, them. form, however, consequently, increased dramatically. 21. Furthermore, complained sufficient S.R., refused hear person witness. given telephone conversation 12 between reaped expected fines. continued require changes pecuniary limits system constituted criticism behaviour politician protected freedom expression guaranteed Convention. 22. 15 December Appeal (Oberlandesgericht) dismissed appeal. correctly necessary assessed facts. argued government interests Instead merely function involved making created proved manipulated enactment advantage applicants, allegations. Moreover, contested value judgments, (political) based alleged Such acceptable underlying facts true. Since facts, 23. March Supreme rejected inadmissible extraordinary points (außerordentliche Revision). Referring case-law, disparagement means statements, made political debate, went beyond weighing invoking right expression. April 1995.
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9. The applicant is a registered association (Verein) in Vienna and the publisher of periodical called TATblatt. In 9 December 1992 issue TATblatt, following leaflet was published: “Querformat, (new) wall-newspaper against trend towards right wing ...” “Racism has name address FPÖ [Austrian Freedom Party] its party officials are certainly interested your opinion! So, let's call them tell what we think their policy. Or send small gifts response to racist agitation. We have gathered selection officials, offices course Jörg Haider order facilitate little unbureaucratic exchange opinions. They will surely enjoy phone calls, letters parcels: above text followed by list addresses telephone numbers members Austrian Party (FPÖ). 10. Between 25 January 1 February 1993 an opinion poll (Volksbegehren) under heading “Austria first” (“Österreich zuerst”) took place which had been initiated several months before. poll, on immigration, consisted twelve proposals, partly amend legislation change administrative practices. It proposed, inter alia, following: – Federal Constitution provision stating that Austria not country immigration; stop immigration until satisfactory solution illegal found; oblige all foreign workers carry identity card at work, showing they valid work permit; increase police force create separate border police; limit percentage pupils whose mother tongue German 30 % and, if were higher, classes for foreigners; deny foreigners vote; require immediate expulsion residence prohibition offenders. 11. On 11 Mr Haider, leader time member Parliament, brought civil proceedings injunction Article 1330 Civil Code (Allgemeines bürgerliches Gesetzbuch) before Commercial Court (Handelsgericht). He requested be prohibited from repeating statement according he incited people “racist agitation” (“rassistische Hetze”) any similar statements. further inviting “send agitation”, together with publication names, plaintiff's political party. 12. submitted it never identified itself merely published out journalistic interest inform public. Moreover, words fact but value judgment, meant as critical comment plaintiff directed “immigration without control”. 13. 14 April 1994 granted injunction. found impugned about fact. Such contained reproach criminal offence, namely “incitement hatred” (Verhetzung) 283 Criminal (Strafgesetzbuch), only damaged reputation (Rufschädigung) also amounted insult (Ehrenbeleidigung). avoid injunction, therefore needed prove truth statement. However, failed do so. Even accepting was, more or less, right-wing politician, there no evidence attempted incite hatred (verhetzen) aliens attacked human dignity. 14. As regards invitation gifts”, court observed part applicant's readership reasons, prepared use violence anarchistic methods. this respect noted TATblatt letter editor read follows: “... organised night 29 November our first action Haider's referendum smashed windows headquarters Salzburg. This beginning. 15. According another 20 office “visited”, “racism stinks” sprayed walls, butter acid thrown into office. then quoted kind appeared various issues background gifts” constituted attack personality rights (Persönlichkeitsrechte) respected. Accordingly, also. 16. August appealed 17. 26 1995 Appeal (Oberlandesgericht) dismissed appeal. confirmed Court's view prove. “But since already outlined dealing complaint concerning facts meaning term 'racist agitation' could established basis general experience, defendant submit concrete allegations effect shown conduct corresponding generally known 'racism' 'agitation', instance being mistake law rightly concluded unable allegations. 18. argument covered freedom expression, interests balanced each other. justified referring because went beyond limits acceptable criticism reproaching offence. untrue protected 10 Convention. decision both 19. 13 March introduced extraordinary appeal points (außerordentliche Revision) Appeal's so far concerned repeat agitation”. 20. 6 Supreme (Oberster Gerichtshof) declared inadmissible qualification accordance previous case-law.
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9. In October 1991 the applicant made an application for prior authorisation to adopt a child. A social inquiry was opened by Paris Social Services, Child Welfare and Health Department. On 18 December had first interview with psychologist from Department, during which he revealed that homosexual. He submits strongly urged not continue adoption process. 10. decision of 3 May 1993 Services Department rejected applicant's adopt. The reasons given were “no stable maternal role model” offer “difficulties in envisaging practical consequences upheaval occasioned arrival child”. taken on basis various inquiries leading, among other things, services report 2 March 1993, included following statements: “... Mr Fretté seems us be sensitive, thoughtful man who shows consideration others. discusses his emotional life homosexuality great deal honesty simplicity. spoke number relationships have major impact life, particularly one male friend has now died. It should added is auxiliary guardian this friend's ... His humanistic, altruistic cast mind prompts him take interest problems Third World. sponsors two Tibetan children, whom baby. able talk sensibly intelligently about boy over guardianship. personally responsible boy, care grandmother, but plays highly active part upbringing. ideas bringing up children are well thought out imbued spirit tolerance. been thinking adopting since 1985. aware may obstacle being granted because prevailing views society. opinion, choice sexual lifestyle no bearing desire bring personal undertaking militant gesture. Since 1985 met many homosexual men children. even once considered having child female plan came nothing lack maturity both sides. This nonetheless still very interested Fretté's promised act as model motivated provide affection proper view essential thing love child, adoption, him, more than legal procedure. support friends around him. seems, however, family either do know plans or misgivings them. genuine difficulties For example, it only when we visited home realised how unsuitable flat live in. As result began considering possibility moving. When questioned regarded society single father said did answer. considers himself capable managing day-to-day thinks will due course find answers questions absence adoptive mother occur she grows up. perfectly importance telling parentage. understanding towards women impelled abandon their refuses any fixed characteristics would like Nonetheless, prefer young baby possible begin searching Korea Vietnam. undoubted qualities aptitude probably happy question whether particular circumstances allow entrusted child.” 11. 21 asked authorities reconsider dismissed 15 indicating, “choice lifestyle” appear such sufficient guarantees suitable family, child-rearing psychological perspective. 12. same day lodged judicial review administrative court, seeking decisions dismissing quashed. 13. judgment 25 January 1995 Administrative Court set aside refusing authorisation, citing grounds, inter alia: “In main 'no model' found difficult 'to envisage child'. reason circumlocution, could meant refer unmarried status, lawfully relied impugned but, under provisions Article 9, paragraph 2, decree 23 August 1985, constitute sole decision. Neither there evidence case file substantiate second given, fact erroneous information provided reports drawn services. Director appeal confirmed initial examined above, 'choice lifestyle'. Through euphemistically worded alluding homosexuality. themselves acknowledge defence pleadings, aspect personality constituted refuse if combined conduct prejudicial child's prepared Mrs S. D. credits 'undoubted children', finds 'a him' raises compatibility 'particular circumstances' man'. conducted French Vice-Consul's deputy London noted educational skills, much private professional activities. psychiatrist, Dr D., detected impediment' although psychologist, O., recommended refused, gave her opinion drew attention elsewhere 'Mr affective deep adoption-related issues'. Whereas produced information, regard which, they valid authorities' decision, infringed right respect none documents establish suggest reflected moral rigour stability, risk abuse process, indicating presented might Thus, those took contested instant wrongly interpreted cited above. aforementioned well-founded.” 14. appealed against Conseil d'Etat. 15. Government Commissioner, C. Maugüe, submissions at hearing 16 September 1996. She submitted Services' well-founded, addressing court follows: “The question: spite F.'s intellectual qualities, good consider lifestyle? light file, elevated matter principle. does turn its own facts leave me doubt respects F. prompted therefore psychological, point view. However, suggests way leads dissolute neither reference specific circumstance pose threat interests. Accepting lawfulness refusal implicitly necessarily doom failure all applications homosexuals certain factors tend indicate error assessing evidence. undoubtedly strongest argument reform laws introduced Act 11 July 1966, persons, women, entitled Deciding interpretation perspective introduces discrimination between candidates grounds expressly intended Parliament. favour Court's ruling person's lead sex not, course, contested. key components guaranteed, alia, 8 European Convention Human Rights 9 Civil Code. There longer domestic level Thirdly, examination case-law ordinary courts granting custody divorced couples exercise parental authority broadly pragmatic approach area attempt avoid pitfalls overly categorical approach. hesitate, where so require, accord visiting rights parents grant them authority. established upheavals mother's household, physical danger father's lived relationship another thriving home, (Pau Appeal, April 1991, no. 91-40734). Conversely, 'immoral relations incompatible authority' (Rennes 27 1989, 89-48660). Similarly, that, practices, dangerous well-being spend holidays held serious justify (First Division Cassation (Cass. civ. I), 13 1988, 86-17784). More recently donor born artificial insemination herself involved I, 1994, Mme L. c. M. L.; D 1995.197 note E. Monteiro; summary 131, observations Bourgault-Coudeyville). presume someone homosexual, disqualified exercising rights. discussion focuses mainly interests dangers mental health. Lastly, merely 2.2. I consider, reasons, commit necessary guarantees. led conclusion. Firstly, everyone confused hypothetical Secondly, pertinence comparison clearly limited. examples above relate previously tie corresponds actual line descent. preserve filial separating wish confirm links establishment adult psychologically disturbed cannot distinct mother, words difference, divides psychiatrists psycho-analysts. Adopted need fulfilling environment deprived original already suffered past. makes important encounter further within adopted family. agreement answer question. If consensus lies instead growing awareness limits always reconciled current developments. so, believe dealing sensitive question, whose implications ethical sociological legal, Parliament stance what amounts courts, part, anticipating shifts public responding brings my fourth argument, can determined. Fifthly, underestimating Admittedly, stage process crucial go ahead without it. added, concluding remark regarding am propose drawback appears encourage conceal truth feel absolute impediment authorisation. why think problem overcome. arise often because, mentioned scarcity eligible compared demand usually reject requests candidates. aim precisely ensure candidate inevitably means experts investigate life. Although inquisitorial nature these sometimes condemned (see example J. Rubellin-Devichi, Revue française de droit administratif, 1992, pp. 904 et seq.), merit ensuring then full knowledge facts. My final you remaining scruples legality decide capacity judges matters your partly allayed position taking entirely prevent authorising cases compatible new law recently, 353-1 Code, provides refused statutory time, approve applicants providing follows foregoing justified maintaining wrong rule aside.” 16. 1996 d'Etat and, merits, decided, upheld response reconsideration, chairman Council ground respected, type likely substantial risks development. From gathered considered, emerges Fretté, despite requisite safeguards – child-rearing, thus wrong, setting decisions, rely sought ground, applied incorrectly. procedure effect transferring issues d'Etat, latter examine before Court. satisfy requirements law. ...”
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8. On 26 December 1991 the applicants' house in village of Martinec (Croatia) was destroyed by an explosion. 9. 29 November 1994 applicants brought action for damages against Republic Croatia Zagreb Municipal Court (Općinski sud u Zagrebu). A hearing held on 2 May 1995. 10. 12 1995 asked court to request Bjelovar Police Department (Policijska uprava Bjelovarska) submit their report concerning events that had led destruction property. 19 requested report. 11. 17 January 1996 Croatian parliament introduced amendment Civil Obligations Act which provided all proceedings actions respect damage resulting from terrorist acts were be stayed pending enactment new legislation subject and before such could not sought. So far, authorities have enacted any regulating matter. 12. It appears several constitutional claims lodged, though present case, challenging above legislation. The Constitutional has yet reached decision. 13. 24 April 1998 accordance with No appeal lodged 14. 13 garage adjacent storage room a meat-curing shed destroyed, also as result 15. 14 Court. 16. 8 17. July 2000 proceedings.
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6. On 9 September 1993 the Bielsko-Biała Regional Court dismissed applicant's request for registration of title a periodical, The Social and Political Monthly – A European Moral Tribunal (Miesięcznik społeczno-polityczny, europejski sąd moralny) to be published in Kęty. court considered that accordance with Press Act Ordinance Minister Justice on periodicals, name periodical should relevant its contents. as proposed by applicant would suggest institution had been established Kęty, which was untrue misleading prospective buyers. Moreover, disproportionate periodical's actual importance readership it hardly conceivable dimension could went state: “... stubbornly applies periodicals titles existence Kęty an international character (such or World Morality), when requested change he declares will not do so.” 7. 17 December Katowice Appeal appeal against this decision. stated, inter alia, proceedings before first-instance deleting term “European Tribunal”, but refused so. 8. Subsequently, made number further applications periodicals. He succeeded obtaining four registrations. 9. 6 May 1994 grant leave extraordinary decision 1993, finding law. 10. February new Germany thousand-year-old enemy Poland. noted at hearing applicant, so remove negative character, harmful Polish-German reconciliation detrimental good cross-border relations. 11. appealed decision, submitting incomprehensible amounted censorship. 12. 12 April upheld contested observed title, suggested concentrate unduly aspects such conflict reality give unbalanced picture facts. lower justified refusing ground relations between Poland Germany.
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8. The facts of this case were subject to investigation before a private, non-statutory inquiry, which issued report on 15 June 1998, setting out extensive findings fact. As these not contested by the parties, Court has relied in its own assessment below. 9. Prior his death, Christopher Edwards had shown signs developing serious mental illness. In 1991 psychiatric expressed tentative diagnosis schizophrenia. July 1994 he stopped living at home with applicants, parents. At time taking medication. 10. On 27 November Edwards, then 30 years old, was arrested Colchester police and taken station. He been approaching young women street making inappropriate suggestions. His behaviour arrest, station where attempted assault policewoman, led officers suspect that might be mentally ill. assessed an approved social worker, who discussed matter telephone consultant psychiatrist. They agreed that, while there some evidence possible schizophrenia, did need urgent medical attention fit detained Any could take place as part pre-sentencing exercise. held cell own. officer responsible fill CID2 form identifying exceptional risk ground illness due opinion worker. did, however, note confidential information (MG6A) her belief if treated or seen health team seriously harm female. She aware suspicion state sufficient warrant categorising risk. 11. 28 brought Magistrates' Court. Immediately handcuffs removed, pushed through other prisoners confronted female prison officer. restrained, but struggled tried approach again. placed During morning, continually banged door shouted: “I want woman.” shouted obscenities about women. applicants met duty solicitor 9.45 a.m. explained their son unwell they wanted him receive care remanded custody. When talk cell, received no assistance from client continued make obscene suggestions problem Clerk Justices. 12. way court courtroom, repeated earlier comments prosecutor possession MG6A requested obtain remand custody would reoffend real question mark state. informed perceived women, although it is unclear how much detail given. fact psychiatrist yet carried support application. Consideration given Bench, together prosecutor, Justice's whether hospital. It concluded power do so under section Courts Act 1980. No consideration given, inter alia, application civil provisions (sections 2, 3 4 Mental Health 1983) 35 1983 Act, provided for hospital assessment. 13. magistrates decided three days, shorter period than usual, bringing forward date 1 December instructions legal aid forms completed. Further obtaining report. After hearing, first applicant telephoned probation service concern son's health. advised contact Chelmsford Prison. rang history. Her indicated she told prescribed stelazine, though refusing accept visited centre spoke senior officer, Dr F. Although later dispute passed doctor, recalled being considered However, having regard worker's detention ordered any reports, stated interfere usual admissions procedure meant screened arrival location depend result process. Neither nor reception staff. 14. A returning Prison charge staff assaulted prisoner arrive day. area suspected abnormal threat warn him, concerned contacted verify normal warrant. also governor allocation decided, screening, should located wing D-1 worked. 15. late afternoon, potential danger holding arrivals processed. noted “strange” “odd” when aggressive punch two hours Mr N., member staff, saw reason admit centre. N. knew nothing previous discussions concerns Edwards's only alleged have constable. followed standard questionnaire. To 5 (Have you ever psychiatrist?), answer “three ago”. disclose stelazine. There active disturbance bizarre during interview, unlikely lasted more ten minutes. time, present prison. admitted main D1-6. 16. period. 17. Meanwhile, Richard Linford Maldon 26 assaulting friend neighbour. station, surgeon certified detained. registrar consulted psychiatrist, transferred found While conduct after arrest bizarre, attributed doctors effects alcohol abuse, amphetamine withdrawal deliberate attempt manipulate criminal justice system. registrar, previously Linford, diagnosed various times suffering schizophrenia personality disorder, someone became ill abusing drugs. Over weekend, showed further violent towards officers. reassessed doctor. filled in, remained presented “sane dangerous” description him. arrived shortly same behave fashion screening. knowledge Linford's convictions, alerted admittance 1988. 18. Initially, D1-11 moved into D1-6 Edwards. This shortage space, all cells landing doubly occupied. 19. Each green emergency light situated wall outside next came call button depressed inside cell. Additionally, once pressed, buzzer sounded red lit up control panel office concerned, indicating sound even ceased press button. 9 p.m., either pressed wished one lights, operated exterior, switched off. so. men appeared “getting right”. noticed gone sounding continuously done apparent defect. 20. Shortly 29 1994, heard sound. D-landing go check landings. Some later, continuous banging landing. going investigate Looking spy hole, bloodstained plastic fork blood floor feet. delay five minutes donned protective clothing. entered find stamped kicked death. continual reference possessed evil spirits devils. patrolled 12.43 a.m., seventeen elapsed since pressing cell's 21. attack, acutely Rampton Special Hospital. 22. 21 April 1995 pleaded guilty Crown manslaughter diminished responsibility. trial therefore brief. judge imposed order 37 (“the Act”), restriction 41. currently still Hospital, paranoid 23. coroner's inquest opened adjourned pending proceedings against Linford. conviction, coroner closed inquest, obligation continue those circumstances. 24. 16 October Assistant Chief Constable insufficient establish offence gross negligence anyone involved probably reviewed conclusion inquiry commenced statutory agencies case. 25. commissioned State responsibilities – Service, Essex County Council North Authority. Its terms were: “To death Prison, including factors are relevant particular: extent reception, detention, management corresponded obligations, Service Standing Orders Care Standards local operational policies. 1. examine adequacy, both procedures, collaboration communication between (HM Police, courts, MidEssex Community NHS Trust predecessor, Social Services Department) care, provision services them. 2. circumstances surrounding effectively efficiently service, ...; 3. treatment services, guidance Department ... 4. prepare recommendations Authority, HM such identified appropriate ...” 26. February 1996 solicitors claim funeral costs compensation pain injury account economic bring claim. 27. 1996, Criminal Injuries Compensation Board awarded 4,550 pounds sterling (GBP) expenses dependency bereavement award. 28. May 1996. chaired Kieran Coonan QC, Recorder Court, members consisting Professor Bluglass (Emeritus Forensic Psychiatry University Birmingham), Gordon Halliday (former Director Services, Devon Commission), Michael Jenkins Governor Oxford Long Lartin Deputy Inspector Prisons 1987-92) Owen Kelly (Commissioner City London Police 1985-93). assisted firm appointed commissioning provide secretarial administrative arrange attendance witnesses. Two advocates inquiry. 29. fifty-six days over months. sat private. powers compulsion witnesses production documents. refused give evidence. potentially significant refusal said “all regrettable death”. conducted visits stations, building concerned. Bluglass, panel, interviewed About 150 attended evidence, considerable number others submitted written 30. 1997 summons Council. not, serve advice solicitors. 31. Draft extracts inquiry's preliminary circulated subjected criticism allow them opportunity comment. 1998. 32. published ideally practice sharing “a systemic collapse mechanisms ought protect vulnerable prisoner”. series shortcomings, poor record-keeping, inadequate limited inter-agency cooperation, missed opportunities prevent 33. included following: (a) Ideally, suitable beds available, 2 1983. (b) omission, breach Code C Practice Evidence 1984 (“PACE”), doctor asked see (c) failure completed describing reasonably grounds disturbance, described enough, itself, ensure (d) hearing (e) made notify authorities, particular (f) Information background recorded person carrying (g) duty, Standards. (h) inadequately trained recognition disorder guidance. screening rushed superficial adequate conditions privacy. (i) condition court. If concern, prompted residual doubts cause err side caution night. (j) system defective; alarm raised warning sounded, briefly. functioned, prompt response saved life. disabled simply wedging matchstick behind re-set ruled tampered “quiet night”. easily rendered unsafe. according good practice, defective, occupants another effective visual monitoring provided, occupation without method working condition. (k) history outbursts assaults, cell-mate 1988, subsequently Despite psychotic episodes assessments, September acute conference 24 general practitioners view capable violence murder. formal out. public safety last induce depot medication detaining Act. 7 reported (l) November, locate notes assessed. unaware outline plan detain (m) despite attacks officers, know existed. (n) police, prosecution dangerous authorities. (o) except “difficult” station; conclusive, convictions (and hospital) closer appraisal absence really symptoms. 34. Following publication report, sought remedies available counsel remedies. relation injured determined action respect experienced died. 35. By letter 25 Prosecution maintained decision proceed charges. applicants' 10 1998 notwithstanding numerous material individual agency. 36. dated 2000, Complaints Authority (PCA) complaints dealing subsequent upheld fifteen procedure. found, PACE failed summon believe regarded risks insufficiently existence purposes form. investigators test properly effectiveness, loss list night incident interview persons prison, example, concerning allegation applicants.
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8. Since 20 March 1991 the applicant has been serving in Sniego Prison Vilnius a sentence of 13 years’ imprisonment for aggravated murder. By Presidential decree pardon 27 June 1998 applicant’s was reduced by two years. 9. On 21 July applied to prison administration, requesting his transfer another prison. The administration refused request. unsuccessfully complained that he unable change prisons various Lithuanian and international authorities NGOs, including Council Europe, Baltic Sea States (“the CBSS”) Amnesty International. 10. October received letter dated 16 from CBSS Commissioner on Democratic Institutions Human Rights based Copenhagen. had opened when it. 11. 2 November Secretariat European Commission Rights. also subjected initial screening before access 12. 3 December reprimanded disciplinary proceedings. He lodged with Ombudsman complaint concerning reprimand alleged breaches freedom correspondence. 13. 22 found censored wife which accused staff theft. that, as consequence, 30 disciplined slander. held letters pertained field private life, allegations theft did not constitute any formal suggestions, applications or complaints purpose Rule 7 § (4) Rules (see ‘Relevant domestic law’ part below). concluded penalty unlawful, suggested it should be lifted. opened. right respect correspondence under Article 8 Convention “almost inviolable”, but State allowed censor prisoners’ certain cases. no violation 14. basis Ombudsman’s conclusions, 29 Director Penitentiary Department lifted penalty.
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8. On 18 August 1992, the applicant began work in Culloden Hotel, Belfast, as a silver service waiter. This hotel is owned by Moyola Cellars Limited, which subsidiary of Hastings Hotels Group Limited. Initially had been doing very well and was optimistic about promotion. 31 October restaurant manager informed that he being dismissed forthwith. The given no reason whatsoever for his peremptory dismissal. Various attempts to get an explanation dismissal were unsuccessful. Ultimately general told on 1 November 1992 because did not meet grade there other reason. Of all full-time permanent staff believes only Catholic. 9. made complaint Fair Employment Tribunal unlawfully discriminated against grounds religious belief or political opinion. thirteen fifteen siblings are involved any politically related activity. 10. By letter 22 December applicant’s solicitors wrote Chief Constable Royal Ulster Constabulary (“RUC”) stating they from employment at Hotel approach members RUC who stated suspect. requested provide information what suspected basis allegedly described replied this letter, unable comment such matters, it force policy do so. 11. 29 March 1993 acting behalf employers Tribunal. “We return herewith Notice Appearance relation application presented Mr Liam Devenney. our instructions, acts made, done purpose protecting public safety, circumstances virtue Section 42 Act 1976, (Northern Ireland) Acts apply so tribunal does have jurisdiction entertain complaint.” 12. then its own motion fixed preliminary hearing determination following issue: “Whether has consider view provisions 1976.” 13. 3 Commission, applicant, requesting know, inter alia, whether Secretary State Agency approached with obtaining (2) certificate. reply 6 employers’ stated: today received your dated above. You will be pleased hear during writer’s holiday last week certificate Crown Solicitor’s office (a certified copy enclosed herewith) now seems unnecessary take further action, you may close file matter.” 14. know upon issued. He never shown, entitled demand, sight information, if any, placed before led correct incorrect, complete incomplete, reliable not. Nor provided could reasonably support expressed 15. matter first came June 1994. occasion declared affect applicability since referred act Group. 16. At resumed 5 January 1995 new signed Northern Ireland certifying decision Limited terminate contract safety order. In light certificate, found termination contract, nor summarily accordingly that: “there nothing [of termination].” complaints manner
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7. In 1992-93 the applicant appeared as defence counsel in Kokkola City Court (raastuvanoikeus, rådstuvurätt) two sets of criminal proceedings against her client I.S. and others. The acted under 1973 Cost-Free Proceedings Act (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973) with Court's consent. 8. 1992 trial public prosecutor, T., requested that I.S., his brother S.S. L.O. be temporarily barred from conducting business (liiketoimintakielto, näringsförbud). request had been triggered by winding up various companies which defendants owned or they held positions trust. At a hearing on 4 March T. argued, inter alia, regardless whether actually participated administration companies, he should business, given formal membership their boards directors. Evidence was heard companies' bookkeeper, M.H., who one witnesses. Those ended decision 9 February 1993 rendered Supreme (korkein oikeus, högsta domstolen). 9. meantime, S.S., M.H. questioned suspects relation to complaint lodged M.S. (the wife S.S.) alleging had, among other things, abused trust within companies. On 7 December decided not bring charges having found no evidence any meeting board at funds invested complainant allocated for purposes she agreed, otherwise consented such allocation. 10. 2 charged aiding abetting fraud abusing position accused, aggravated fraud, whereas summoned testify but objected this behalf clients. Before read out handed memorial entitled “Role manipulation unlawful presentation evidence” (in Finnish, “Roolimanipulointi ja kiellonvastainen todistelu”) which, arguments, made following points: “... indictment seeks hide fact ... chairman company question. blatant abuse respect must lead court reject evidence. prosecutor's arrangement shows seeks, means procedural tactics, make witness co-accused so support indictment. order prevent accused submitting those points prosecutor has, same case, brought trumped-up person would qualify witness. Such deliberate discretion part authority is highly unusual State governed rule law. As regards, particular, tactics has adopted present namely many instances role I submit milder form condemned Norwegian Court. That precedent disclosed behaviour similar case committed manipulation, thereby breaching official duties jeopardising legal security ...” 11. denied above allegations maintained request, rejected objection allowed testify. 23 were convicted. suspended prison sentences fines, sentenced fines. They all ordered pay damages costs. All appealed, arguing, have 12. its judgment 20 Vaasa Appeal (hovioikeus, hovrätt) upheld hear acquitted regarding nonetheless complainant. 13. leave appeal Having invited comment T.'s Leave granted only. 1995 set aside requiring damages. 14. reported applicant's statements Prosecuting Counsel (kanneviskaali, hovrättsfiskalen) consideration possible defamation charges. 27 Acting formed view guilty indict her, since offence minor character. gave reasons, others: “The now question cannot expected result more severe punishment than fine. [The applicant] aforementioned submission examination [S.S.] By acting manner [the attempted defend client's interests trial. [she] attempted, perhaps due inexperience, place before context formulations. worded quite sharply effect offending ..., although able show requisite factual grounds concerning [T.] obstacles examining reasons noted elements transpired pre-trial record material basis could seen deliberately selected certain persons case. did reverse [that] circumstances [applicant's offence] caused particularly significant harm 15. Using independent right private prosecution, nevertheless Appeal. argued that, counsel, afforded far-reaching freedom expression. Prosecutors obliged tolerate criticism much wider extent individuals. addressed exclusively limited criticising procedure dismissed witness, defamatory meaning Chapter 27, Article 2, Penal Code (rikoslaki, strafflag). 16. capable subjecting him contempt hampering performance professional career. He referred lengthy service municipal chairmanship local branch political party. 17. 22 August 1994 convicted “without better knowledge” (julkinen ei vastoin parempaa tietoa tehty herjaus, offentlig smädelse dock inte emot bättre vetande), i.e. negligent defamation, distinguished “despite knowledge”, say, intentionally imputing an whilst knowing it (rather voicing mere suspicion had). fine 4,260 markkas (FIM) (716 euros (EUR)). She further FIM 3,000 (EUR 505) suffered 8,000 1,345) costs (both sums 16% interest). Lastly, 300 50) State. obligation advocate safeguard confines law good advocacy ethics. requirements relating advocate's activities appear rather general provisions rules. According generally recognised principles, provided necessary guarantees defence. Similarly, may every aspect correctly properly dealt court. [Counsel] duty point errors deficiencies notices. To end free criticise anything relevance appropriate based facts. carefully considered. proceeds also limited, alia Code. [present] established alleged, written submission, assessing breached duties. 18. Both appealed 15 1996 (Korkein oikeus 1996:17) Court, sitting Chamber five judges Justice Tulenheimo-Takki holding casting vote, Appeal's sentence, considering nature. Accordingly, imposed lifted upheld. Justices Krook Vuori voted favour upholding whole, Lehtimaja Portin relieved voting laid down 23, 4, Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), imposing penalty considered majority, lenient views majority prevailed. Lehtimaja, whose opinion joined Portin, reasoned follows: “This concerns, hand, speech lawyer and, threshold actions offence. It nature fair must, if best require, without being threatened punishment. This essential principle human rights Western countries where prevails. [becomes devoid meaning] counsel's expression excessively restricted situation. Legal restrict therefore interpreted narrowly. Correspondingly, can expect even sharp hearing. specific post prosecutor. act imputed [to reasoning, consider intention offend contrary knowledge. require [prosecution witness] disqualified testifying brother. stated [T.], press charges, manipulation. stress, action was, opinion, incompatible Finnish breach express opinions criticism. party proceedings, opportunity respond applicant's] dismiss opposing party's suspicions regarded them groundless. there need applicant], capacity state possibly office alleged inappropriate. Constitutive But commit defamation? Is enough fulfilment Code, allege someone 'guilty offence' mentioned provision - required said 'to harming life career'? linguistically open interpretations. applied interpretation favourable finding [her] conduct constitute [only] agree interpretation. Considering broad definition offence, reasonable allegation suffice cause injurious consequences provision. satisfied produce consequence. Assessment character common knowledge person's includes almost rule, especially when are denied. known language used subjective. usually adopt prudent attitude towards parties subject each other. Neither likely taken literally presented legally trained. regards [T.'s] such, done something done. Instead, appropriateness [his] decisions actual purpose corresponded actions. purposely harmful client. Despite unconditional tone formulation understood less own doubts why way did. Conclusion light above-mentioned considerations, do [him] career § 1, Therefore proved quash compensation claims applicant]. Costs far concerned, consider, despite outcome inappropriate remarks, initiate her. facts, find both bear costs.”
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8. The applicant was the owner and director of several holding companies which defaulted on their financial obligations. On 8 January 1993 criminal proceedings were instituted against him suspicion that he had concealed his income. 30 July charged with cheating. 2 August case transferred to Vilnius First City District Court. same date granted bail. 25 1994 failed attend a court hearing, ordered detention remand. 9. October another concerning irregular operations currency securities. date, prosecutor authorised applicant’s remand in context case. 10. Meanwhile, suspected hiding Russia. Prosecutor General requested Russian authorities extradite having engaged 29 arrested Moscow. 1 November extradited Lithuania remanded custody. 11. 9 10 prosecutor’s decision authorise revoked ground there already been order regarding 1994. 12. 27 December judge Court decided should remain No term specified. 13. 20 March 1995 noted previously breached bail, reasons for dangers absconding obstructing establishment truth 14. 21 Regional 15. an unspecified cases joined. From 18 May until 1996 extended every two months by General, fear absconding. 16. 14 indicted nine counts, including cheating, misappropriating property another, There four other co-accused persons pre-trial investigation September 1996. 17. examined prosecution’s application extend given risks prosecutors’ granted. defence counsel present at hearing. 18. concluded. all accused access case-file. 19. Deputy confirmed bill indictment whereby cheating (Article 274 Criminal Code), embezzlement 275), securities 329). 20. transmitted Kaunas submitted Court, complaining expired. He release. did not examine this application. 21. 3 1997 without hearing parties, took commit trial. no fundamental procedural irregularities also “shall unchanged”. or grounds 22. request vary remand, alleging seriously ill. dismissed request. dismissal committed serious offences, tried avoid trial, could therefore abscond obstruct 23. 23 further investigations returned case-file investigators. In months. 24. prosecution appealed, need trial proceed. mentioned appeal. 25. 26 rejected appeal, measures required. amended insofar as return It General. 1997. 26. lodged cassation appeal decisions 1997, stating resume. 27. Appeal, ended it thereafter. renewed complaint 1998. These applications examined. 28. 1998 Appeal prosecuting authorities’ quashed deciding be resumed. new examination. concluded that, “although is quashed, [of 1997], question respect has properly decided, remains effective”. 29. applied Ombudsman, unlawful. prison administration stated reply pursuant Article 106 § 5 Code Procedure time, lawfully detained more than six years. 30. Having observations administration, February Ombudsman held Lithuanian Constitution, Articles 96 Detention Remand Act provided person only custody appropriate order, specifying detention. observed detainee ought released from if court. basis above observations, certain periods unlawful under domestic procedure. administration’s arguments valid during overall period continued years, maximum sentence most offence years’ imprisonment. emphasised legal provision incompatible right brought within reasonable time guaranteed Convention. drew attention fact length excessive. Finally addressed Parliamentary Committee Legal Affairs, provisions “regulating terms are clear logical [because] calculating depends various circumstances, dates when particular becomes As such circumstances foreseeable interpreted different ways, suggested amendments Procedure. 31. At before 4 1998, unlawfully detained. claimed additional material would establish whether delivering judgment merits might abscond. allowed have hearings. repeated about lawfulness conditions medical experts yet conclusions state health. refused guarantee 32. repeatedly included case-file, know prolonged 33. 12 June they concerned one applicant. 34. 13 complained discontinue detention, referred 109-1 Procedure, come into force 24 quash because health, excessive, breach hear examining announced hunger strike connection 35. 28 informed challenge subject then 372 36. released. 37. 15 found guilty charges him, being present. established appropriated assets total worth million litai. sentenced seven imprisonment confiscated. allegations unlawfulness 38. appealed conviction, irregularities, breaches rights representation, witnesses, unconditional inter alia latest extension made 1996, excessively long. supplemented submitting 3, 5, 6 7 Convention breached, unable judges prosecutors who allegedly fabricated him. 39. 22 1999 conviction regards count reclassified charge 329 former 87 applicable crime committed. appellate considered occurred noting throughout proceedings, full consulted witnesses questioned. change sentence. pleading 40. Supreme numerous procedure, violations rights. ruled prosecuted Code, reference eight counts stand unless permission Russia obtained. competence investigation. decide but release bail co-accused. examination carried out. remained prison. 41. wrote letters Minister Interior, Justice President alia, 42. By letter Prisons Department constituted 43. 11 pleaded unclear, shown necessity aforementioned 1999. 44. months, gravity offences convicted 45. danger warranting possible offences. although Russia’s press these granted, enough apply Federation authorisation. 46. stated, obtained prosecute charges, courts’ those 47. 399 become effective months’ time-limit started 48. Both 1999, respectively 2000. 49. 2000 designated expired after securities, risked five However, completed years 17 any offence, deprived liberty basis. warranted. courtroom. 50. since. appears still pending first instance.
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6. The applicant, a widow of an appeal-court judge, applied for readjustment her pension. On 4 December 1995 the State General Accounting Department turned application down. In its decision stated that any benefit paid to judges in service manner whatsoever, does not constitute increase their basic salary and cannot be taken into consideration calculation retirement pension or adjustment this applicant appealed Court Audit. 7. 9 September 1997 Audit upheld appeal considering she was entitled additional 103,800 drachmas (GRD) per month period between 1 1991 31 (judgment No. 1636/97). court ordered pay immediately money owed 30 June 1993. Moreover, on April 1998 July 1993 1994, 1999 May 1994 March 2000 1995. 8. served Minister Finance October 1997. Because did within one year, became final 19 as provided by domestic law. 9. meantime, 27 Law 2512/1997 enacted. Section 3 statute interpreted 2320/1995 scales established various ministerial decisions could judge’s pensions. Furthermore, claim based statute-barred, pending judicial proceedings set aside sum out, other than pursuant judgment, had refunded. 10. judgment 17 Audit, sitting full court, held above-mentioned unconstitutional contrary Article 6 Convention. 11. However, authorities refused specified above decision. 12. By 71320 all judgments whereby pensions been adjusted should enforced. provides payment way seven six-monthly instalments without interest form bonds. sums are interested parties upon submission declaration certifying they have already received respect will raise similar period.
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7. The applicant was the Minister of Defence and a Member Seimas (Parliament) from 1996 to 2000. 8. On 12 August 1997 apprehended in hotel lobby by security intelligence prosecuting authorities while accepting an envelope containing 15,000 United States dollars (USD) KK. latter, senior executive troubled oil company (hereinafter referred as “the company”), had previously informed that requested 300,000 USD for his assistance obtaining discontinuance criminal proceedings concerning company’s vast debts. For slightly more than hour questioned lobby. His explanations were recorded he allowed leave hotel. 9. 14 Prosecutor General permit institution against applicant. 19 agreed. 20 instituted. October charged with attempting cheat (obtaining property deception). 10. applied permission detain on remand. 28 given. same day prosecutor Vilnius City Second District Court order applicant’s detention Also brought before judge who issued warrant arrest grounds might obstruct establishment truth case, inter alia, exploiting media influencing witnesses. duly detained. 11. 30 extended term remand until November presence parties reasons before. 3, 5 7 appealed He hearing. 11 Regional dismissed appeal without hearing parties. 12. From 27 December counsel access case-file. discontinue proceedings. number occasions also vary These requests rejected. 13. 8 31 1997. 9 appealed. him no lay decision. 14. 29 confirmed bill indictment, which transmitted Court. 15. 1 January 1998 submitted numerous applications courts, prison administration, Ombudsman Seimas, alleging been unlawful. concluded held unlawfully. 16. committed trial. court decided “shall remain unchanged”. No specified. 17. 23 March adjourned case ordered submit new evidence. In decision or this present at 24 May further 1998. 18. 21 Appeal so far it concerned require prosecution detention. appellate 19. July trial resumed. 13 17 strength evidence case-file likelihood witnesses, warranting custody. hearings. appeals decisions respectively. 20. February, July, 3 1998, rejected lift defence 21. 18 found guilty obtain deception. incited commit offence result conspiracy between KK authorities. himself contact him, demanded money return using authority over certain prosecutors view discontinuing involving KK’s indebted company. thereby intended cheat. sentenced five years six months’ imprisonment fined 50,000 Lithuanian litai (LTL). Half confiscated. first instance court. 22. February 1999 appeal, finding procedural irregularities regarding investigation 23. lodged cassation appeal. Supreme it, lower courts properly case. mentioned alia competence examine allegations about unlawfulness 24. unspecified date, impeachment procedure initiated Seimas. 15 June refused impeach annul mandate Parliament (“MP”). 25. 2000 Third release licence. released 26. article entitled “MP’s whitewash looks hogwash, says prosecutor” published biggest national daily “Lietuvos Rytas”: “The [he had] enough sound guilt A. Butkevičius.” 27. Chairman does not doubt Butkevičius’s guilt” “When asked whether doubts Butkevičius accepted bribe, said: ‘on basis material my possession I entertain doubt.’” 28. quoted “A. prepares battle prison” 16 “Respublika”: “I qualify attempt ... .” 29. will be prosecuted” “One two facts are convincing. [The applicant] took promising services.” 30. lawyers tag bribery political” 6 Rytas”, saying Centre New Union [parties] co-ordinate bribetaker” these try protract artificially “victimise”
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12. The applicant lived in the Çelebi hamlet of Arıklı village Lice district province Diyarbakır. In April 1994, security forces burned down applicant's house, along with other houses and forced evacuation on entire hamlet. then settled his son Vahdettin Haran Lice. 13. On 12 May 1994 went to order help prune grapes vineyard. gendarmes soldiers arrived at convened all villagers schoolyard. They started burn houses. At about 11 a.m., as were still being burned, heard sound gunfire coming from 14. evening who came direction vineyard said that had taken someone away them gone towards feared this might have been son. morning following day, 13 sent children vineyard, where body was found dead. 15. Later reported killing Public Prosecutor. Prosecutor told he would not be able come it too dangerous for him, but an autopsy carried out if could brought took conducted by given any information or document pertaining autopsy. 16. applicant, authorisation Prosecutor, son's buried him village. 17. official Haran. report indicated death caused shattering internal organs bullets. 18. 6 June initiated a preliminary investigation into circumstances surrounding death. Court informed outcome investigation.
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10. The first applicant, Kęstutis Birutis, is a Lithuanian national born in 1974. second Vidmantas Byla, 1968. third Laimonas Janutėnas, 1976. At present the and applicants are detained Lukiškės Prison Vilnius. applicant currently Pravieniškės Kaunas region. 11. applicants, while completing their sentences Prison, were suspected of participating riot that took place prison on 15 January 1997. 21 detainees, including accused causing or taking part riot. 12. was released from after his original sentence 14 February He arrested 25 June 1997 context proceedings for still throughout these proceedings. 13. During pre-trial investigation two witnesses examined behalf applicant. trial one witness called by Regional Court applicant’s behalf. no witnesses. 14. On 3 November convicted all defendants case, applicants. court found had organised they also committed affray. They sentenced to ten years’ imprisonment. guilty having actively taken six 15. In establishing guilt, referred statements 17 anonymous who mostly other detainees. These been recorded prosecution during investigation. secret testified further at three co-accused, J, S T, confirming guilt. noted T subsequently changed testimony, alleging inter alia prosecutors forced them inculpate However, considered initial valid, only evidence upon intimidation defendants. account given complainant, detainee belonging “a lower caste among prisoners”. latter assaulted him five members staff, day under influence alcohol. concluding affray, mentioned indirect evidence: on-site inspection records, material expert examinations. 16. finding guilty, 19 an organiser As case with rejected later testimonies constituted sufficient grounds delivered complainants detainees alleged beaten attacked staff barricaded prison. Evidence along same lines summoned trial. guilt committing affray indirectly proved 17. solely 18. concluded apparent organisers 1997, drunk, “induced castes get involved offence”. ruled “the level participation crime [the applicant] lower”. 19. appealed, stating not offences alleged, invalid, scrutinised either court, ignored certain opinion, almost 300 inmates events stated victimised administration encouraged promising favourable treatment. Furthermore, “secret witnesses” themselves allegedly collaborated authorities order avoid prosecution. appealed against instance judgment, requesting more severe sentences. 20. 29 April 1998 Appeal dismissed appeals, properly established applicants’ imposed correct It held domestic criminal procedure permitted take stage investigation, without summoning those 21. lodged cassation appeal Supreme Court, complaining courts clarified controversy over testimonies. 22. 20 October decided case. basis testimonies, but reference staff. basically view consistent supplementary No procedural irregularities connection courts’ refusal examine
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10. The applicant was arrested and detained on remand 30 November 1991 suspicion of aggravated fraud about one billion zlotys. Wrocław Śródmieście District Prosecutor considered that the detention necessary in view dangerousness offence concerned order to ensure proper conduct proceedings. 11. On 31 August 1992 bill indictment transmitted Regional Court. 13 President Court found complete decided case could be heard by court. 12. From 3 10 December treated at a specialist hospital. 13. first hearing held 22 23 accused questioned. next hearing, set for 26 January 1993, adjourned as requested granted access case-file, after court refused, having regard fact had already such from 7 17 September 1992, he stated felt unwell. 27 1993 again unsuccessfully file not participate health grounds. ordered applicant’s examination forensic medicine. 14. At 2 February complained bad health. then cancelled 11 March 1993. its medical been carried out. 15. 4 April submitted request release. 16. 8 9 lay judge were present. Apparently new fixed 14 but until 21 May 17. expert opinion which condition did prevent him participating proceedings incompatible with his detention. 18. release, invoking Article 6 § 1 Convention. He disclose reasonable committed question. also length 19. refused allow requests release evidence gathered so far supported offences concerned, would jeopardise proceedings, particular they their initial phase. 20. informed "for objective organisational reasons". 21. withdrew lawyer’s power attorney, complaining latter failed comply contact him. 22. appealed Appeal against decision refusing this issued within three-day time-limit provided law, lawyer entitled attend request, whereas prosecutor was. consider argument based pointed out court’s statement judicial an phase confirmed complaint progressing. same day further 23. it established intercepted letter only therefore July time assigned officially appointed withdrawn attorney counsel. Apparently, Appeal, 5 there no progress since i.e. date hearing. 24. June upheld applicant. accepted breached 214 Code Criminal Procedure month, instead three days. With complaints under Convention, sufficient Court’s well-founded accordance 217 Procedure. 25. unjustified too long. 24 dismissed request. 26. Court, apparently reply letters, exceeding time. "the is due various circumstances, including state your efforts (...) guarantee defence rights". 27. In 28. breach submit any arguments justify 29. co-accused appear. 30. A.Z. inappropriate. "as two remand, dates hearings being manner foreseen cases kind existing facilities court". 31. judges appear adjourned. another ill. 32. 19 appeal indicate circumstances justifying 33. discontinued 12.20 p.m. leave urgently. 34. Polish Helsinki Committee, whom complained, complex. frequently case-file sent thus impossible before Moreover, wished have prevented holding 35. September, October 36. 16 underwent prison out-patient ward subsequently referred 37. 28 wrote Minister Justice, 38. 12 panel necessitated minor surgical intervention hospital 39. 15 received promotion day. attend. 40. longer stage ample gathered. Thus, risk hiding or suppressing diminished. become devoid purpose. absconding get married. 41. Hearings 1994 co-accused, W.D., 42. Medical Academy Institute Forensic Medicine W.D. summons examination. Subsequent summonses served postal authorities moved. 43. 1994. This started a.m. separate transpired left country, continue objected thereto, counsel enough study case-file. grant nevertheless 11.40 bomb alert 44. accused, applicant, relevant certificate. 45. 1995 tried establish client, avail. certificate confirm sick 1995. 46. personal reasons concerning judge. treatment. 47. examine verify whether allowed 18 summoned explain failure undergo undertook order. However, report summonses. 48. 25 re-arrested connection criminal pending 1996 examined Medicine. According opinion, attending hearings. counsel’s appoint paid legal aid scheme. 1996. 49. re-open trial composition changed. attorney. lack prepare defence. 50. challenged all By challenge unfounded. 51. co-defendants J.S. remanded custody. 52. A inform thereof. motion, 53. 1997 L.B., represent properly. struck list lawyers discharge her obligation defend arguing statements alleged co-operation untrue. change 54. hours, authorities. physicians. 55. 1997. questioned His questioning adjourn 56. scheduled 20 defendants. 10, previous step down problems. allegedly inadequate 57. 1998 competence ready motions 1998. replaced. subsequent 58. pronounced judgment, sentenced years’ imprisonment. written grounds judgment. first-instance 1999 appellate placed psychiatric cancelled. 59. information expected duration stay. likely discharged half 1999. 60. instance
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8. The applicant was a member of (and spokeswoman for) group aliens without residence permits who in 1996 decided to take collective action draw attention the difficulties they were having obtaining review their immigration status France. 9. Their campaign, which received widespread coverage press, culminated with occupation St Bernard's Church Paris on 28 June by some two hundred illegal immigrants, most whom African origin. Ten men within go hunger strike. applicant's daughter joined her mother as one occupiers church. movement, known “St Bernard sans papiers[1]” supported several human-rights organisations, whose activists sleep premises show solidarity predicament. 10. On 22 August Commissioner Police signed an order for total evacuation premises. It made grounds that unrelated religious worship, there had been marked deterioration already unsatisfactory sanitary conditions, padlocks placed church exits and serious sanitary, health, peace, security public-order risks. 11. More specifically, read follows: “The director Mobile Emergency Medical Service (SAMU) given responsibility 17 July ensuring day care strikers parish priest has reminded health hazards occupants exposed precarious living conditions also need allow unrestricted access emergency services. World Doctors (Médecins du Monde) organisation, offers continuous medical assistance church, public alarming information very consequences this strike those concerned at expiration medically critical period forty days. basis provisions Article 223-6 Code Criminal Procedure, ten evacuated 12 1996, solely be appropriate check-ups hospitals Paris. returned aforementioned own accord immediately declared intention pursue action. Since available equipment being totally inadequate long-term use shelter. number people present grown considerably during last few days, led incidents immediate vicinity notably highway. Such create risk behaviour may result disturbances. various movements have erected barriers highway, across rue Saint-Bruno junctions Saint-Luc Jérôme l'Ermite. obstruct hindering passage ordinary traffic vehicles. doors are kept closed, cases padlocked, enable filter system operated only remaining entrance is permanently accessible, barricade formed chained together even between enclosure railings north chancel. These installations constitute major hazard should persons inside building become necessary. activities exclusive put under law 9 December 1995. follows from matters noted above current situation represents public-security risk...” 12. following morning police carried out evacuation. officers arrived scene 6.30 a.m. set up checkpoint exit verify, 78-2, subparagraphs 1 3, Procedure 8, 2 Ordinance November 1945, whether documentation authorising them stay circulate territory. entered 7.56 13. All stopped questioned. Whites released while assembled all dark-skinned occupants, apart strike, sent coach aliens' detention centre Vincennes. Orders deportation almost concerned. than subsequently courts account certain irregularities part police, extended making false reports regarding stopping questioning procedure. 14. At 8.20 officer asked she leaving documentary evidence leave France, but unable produce any. attended Commissioner's Office 5 refused remain France ground did not satisfy any laid down 1945 issue permit no personal or family reasons justifying granted humanitarian grounds. She invited French territory month after receipt notification Police's decision. 15. 9.55 taken into custody informed rights pursuant Articles 63-2 63-4 Procedure. measure deemed effect a.m., when stopped. speak throughout custody. 8.15 p.m. 23 Senior Deputy Public Prosecutor Eighth Division Prosecutor's instructed bring before him, case file it stood. 16. 1.30 24 appeared Court “immediate summary trial” accused “entered stayed possession documents visas required rules” sentenced two-months' imprisonment, suspended. held: place worship ... over weeks, contest movement favour, itself constitutes administrative authority's decision expel them. presence weeks claiming, through statements individuals spokespersons representing them, as, words, papers, constituted suspecting committed offences rules such verification identity 78-2 justified. However, since large same time disclose identities, able carry check. fact check first stopped, what, practical contingencies inherent operation size, reasonable thereafter, does render proceedings defective. Regard circumstances conducted, defendant notified time...” 17. January 1997 Appeal, appeal applicant, upheld sentence added excluding three years. In addition, held its judgment: approximately favour status, justified authority expulsion prior application courts. continued days deteriorate. scale demonstrations used highway hinder vehicles, security, sanitation, urgent measures end disturbances.” 18. 4 1998 Cassation dismissed points grounds: “In below, Madjiguène Ndourit, Senegalese national, illegally entering staying duly challenged lawfulness issued commissioner court order, occupied other persons, followed checks revealed demonstrators immigrants. these circumstances, below relied – unnecessarily dismissing objection cannot serve complaint appellant, since, if proved act referred unlawful, would bearing outcome criminal proceedings.”
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9. At the material time first applicant, Feridun Yazar, was chairman of People's Labour Party (Halkın Emeği Partisi – “the HEP”), second Ahmet Karataş, its vice-chairman and third İbrahim Aksoy, general secretary. 10. On 7 June 1990 HEP founded constitution filed with Ministry Interior. 11. 3 July 1992 Principal State Counsel at Court Cassation applied to Turkish Constitutional have dissolved. In his application he accused party having undermined integrity State. He submitted that certain statements made meetings press by party's leaders senior officials both central local level had infringed Constitution Law on regulation political parties. also assisting protecting those members who committed illegal acts. 12. 8 President sent Counsel's HEP, inviting him submit preliminary observations in reply. 13. September HEP's lawyer written requested a hearing. submitted, particular, parties contained provisions were contrary fundamental rights guaranteed Constitution. maintained dissolution party, as called for Counsel, would contravene international instruments such European Convention Human Rights, United Nations International Covenant Civil Political Helsinki Final Act Charter Paris New Europe. addition, argued there insufficient evidence links between PKK (Workers' Kurdistan). further contended referred individuals, which could not be held liable, pursuant section 101(b) 14. 22 January 1993 merits. again sought leave, should request refused, predecessors give Court. 15. The acceded latter request. Accordingly, former oral submissions court 1 March 1993. 16. 14 decided dissolve HEP. Its judgment served Speaker National Assembly Prime Minister's Office. 17. Court's published Official Gazette 18 August 18. began reiterating main constitutional principles relevance case, effect all persons living within territory, whatever their ethnic origin, formed whole united common culture. sum up Republic Turkey “Turkish nation”. different groups making “nation” therefore divided into majority or minorities. pointed out that, under Constitution, no legal distinction based racial origin citizens. All nationals avail themselves civil, economic without discrimination. 19. With particular reference citizens Kurdish every region these enjoyed same other That did mean, it added, acknowledge existence identity, since forbidden express identity. language used private premises, places work, works art literature. 20. reiterated principle people bound observe even if they agree them. preclude celebration difference but forbade propaganda aimed destroying order. Treaty Lausanne, separate itself sufficient group qualify minority. 21. regard activities, examined, public various levels. It considered content calendars sale slogans shouted premises. 22. particularly critical “seeking divide nation two, Turks one side Kurds other, aim establishing States” destroy national territorial integrity”. connection asserting through activities own culture language, free practise. demanded right self-determination Kurds, advocated setting “Kurdish provinces” described terrorist acts war. regarded terrorists freedom fighters claimed instead combating them, security forces fact seeking bring about mass extermination people. sole emphasis equality calling establishment built racist foundations, thereby jeopardising concept nation”, been founded. view, aims resembled terrorists” use accusatory aggressive falsehoods, constantly repeated form provocation, likely promote tolerance justify encourage perpetrators”. 23. concluded subject, inter alia, restrictions paragraph 2 Article 11 17 Convention. Europe condemned racism, hatred terrorism, adherence inviolability frontiers integrity. 24. accordingly ordered ground undermine unity nation. 25. However, dismissed argument implicitly explicitly tolerated actions members. connection, took account criminal proceedings instituted against still pending none yet found guilty. II. VIEWS SUPPORTED BY THE LEADERS, AS SET OUT TURKISH CONSTITUTIONAL COURT IN ITS JUDGMENT OF JULY 26. ideas put forward leaders' speeches, explanations statements, outlined judgment, may summarised follows. (a) There is has oppressed. (b) are allowed read write improve knowledge unable develop (c) fighting democracy. A parallel drawn legend Kawa, revolted oppressive King Dehhak 2,600 years ago; asserted more emulating Kawa. (d) self-determination. (e) cannot any arising from agreements. (f) problems eastern an nature. (g) statutory measures taken organised terrorism constitute war, armed organisation (the PKK) belligerents. (h) militants belonging fighters. natural laws war government practice. (i) army pursue physically masses rather than (j) Since break-up USSR, course history caused take interest phenomenon, consequently situation Palestinian (k) peoples. establish social system two groups, taking others account. (l) stationed south-eastern deployed appropriated rights. (m) oppressed workers, exploited Arabs, Circassians, Laz Albanians. (n) hold conference question soon possible. (o) problem biggest obstacle Until solved, democracy developed Turkey.
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8. The applicant, a Latvian national born in 1964 and living Daugavpils (Latvia), is member of the Russian-speaking minority Latvia. 9. By decision 30 July 1998 Central Electoral Commission (Centrālā vēlēšanu komisija) registered list candidates National Harmony Party (Tautas saskaņas partija) elections to parliament (Saeima) 3 October 1998. applicant's name appeared on as candidate for constituency Latgale. At time registration its supplied with all documents required by Parliamentary Elections Act, including copy certificate attesting fact that applicant knew State's official language – issued 23 January 1997 Standing Committee Certification Linguistic Competence town Daugavpils, body responsible State Language Centre (Valsts valodas centrs), an administrative institution which was itself answerable Ministry Justice. 10. On 6 August examiner employed Inspectorate inspekcija), part Centre, went place work examined her orally assess knowledge Latvian. As had not been notified visit, approached while she conducting negotiations business associates. Having informed intention verify level competence Latvian, struck up conversation language. During conversation, lasted over half hour, asked among other questions, why supported rather than some party. returned next day accompanied three persons whom did know, who were act invigilators. write essay agreed do so began write. However, being extremely nervous, because expected such examination constant presence invigilators, stopped writing tore work. 11. then drew report effect have adequate command at “third level”, highest categories defined regulations. 12. 10 sent chairman letter certifying attained number lists parliamentary elections. Although referred drawn from Inspectorate, appended it. According certificate, nine actually only level”. Twelve candidates, take examination, their requisite level. 13. 21 out candidates. 14. 27 Party, acting behalf, Riga Regional Court set aside above decision. In pleading party alleged when election Commission. It submitted should taken into account, instead relying solely two contradicted each other. 15. final judgment 31 refused application ground acted within limits laid down Act. noted section 11 Act made possession level” completed primary or secondary education prerequisite Consequently, complied requirements deciding register appeared. hand, 13 empowered rectify already striking names whose proved be insufficient; case inadequacy linguistic confirmed Centre's certificate. accordingly held there no breach law. 16. 14 September lodged third-party appeals against President Civil Division Supreme Attorney-General, asking proceedings reopened account serious manifest substantive legal rules, resulting faulty interpretation letters dated 29 1 respectively, Attorney-General's office dismissed appeals, ruling given reasons accordance
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9. In October 1984 the applicant’s father (“the plaintiff”) brought an action against upholstery workshop. He claimed some outstanding royalty fees on account of workshop’s manufacture and sale a series foldable beds based his invention. 10. September 1986 Buda Central District Court informed plaintiff that workshop as such had no capacity to conduct legal proceedings its members were personally required enter defendants. 11. On 28 April 1987 Court, for reasons competence, discontinued transferred case Budapest Regional Court. 4 February 1988 held it competence in either, requested Supreme designate competent court. 12. 5 May designated hear case. 10 November 1988, 16 February, 26 April, 21 June 20 1989, March 29 1990, hearings. Meanwhile, 13 1989 15 1990 extended claims. 13. judgment 6 July awarded 714,070 Hungarian forints (HUF), plus accrued interest. 14. appeal, 22 1991 hearing, quashed first-instance instructed own bench re-hear It pointed out that, due plaintiff’s repeated extensions claims, was longer within Court’s competence. 15. December 1991, 17 June, 1992 latter date ordered elaborate claims thirty days. 16. 7 again and, 27 January 1993, he filed memorandum with submitting precise figures 17. 1993 The hearings scheduled 1 9 1994 adjourned. 18. decided obtain technical expert opinion. put concrete questions institution, which renounced request. another appointed who presented opinion 19 1994. 19. 1995 hearing. this occasion modified A hearing further 20. 1995, 3 1996 granted 15-day time-limit quantification His subject returned supplementation August 1996. revised reached 21. accountant. 24 1997 advance payment expert. 22. declared interrupted death one 12 resumed held. 23. 1998 discontinued, partial waiver, respect 24. 25 gave HUF 858,200 18 appealed 25. died. 1999 applicant late father’s widow entered domestic successors. 26. 27. 2000 second instance judgment, partly amending decision 1998.
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8. The applicant had inherited half a mine producing fluoride, which on 28 January 1985 was assessed by an inspector. According to the Mining Code, minerals are owned State and may be assigned any person, in accordance with provisions of law. main obligation owner is exploitation (Articles 102 s.). When competent public service establishes that no or mining research carried out law, it forwards pertinent particulars Mines Board which, after hearing concerned parties, decides forfeiture right ownership (Article 121). 9. On 30 April 1986 asked Ministry Industry not declare he forfeited his rights over mine. He claimed mine’s production dropped because its provisionally become unprofitable. 10. 17 July declared other two owners their they remained idle during three years, between 1981 1983. During period there crisis market as opposed complete lack demand for mineral question, claimed. given compensation. 11. 25 August lodged appeal (προσφυγή) against decision before first-instance administrative court (Διοικητικό Πρωτοδικείο) Athens. They alleged Ministry’s did contain adequate reasons. pointed this connection 1983 idle. Its simply fallen fluoride market. also inspector’s report 1985, based, examined claims. Finally, unlawful should have been extra year exploit 12. October 1987 rejected grounds indeed idle, up appellants prove fact irrelevant consideration under relevant rules. This judgment served 8 November 1998. 13. 5 December 1988 appealed. A set down 3 1990. date, applicant’s request, postponed 22 14. 14 1990 Administrative Court Appeal Εφετείο) Athens ordered number documents including 1985. 29 1991 considering, inter alia, could justify idleness mine, wrongly accepted. justified only if question whatsoever, prove. law authorities grant year. 21 1992. 15. 1992 persons appealed cassation. At first, 24 March 1993 but continuously postponed. 1996. appeared announced one died. finally held 4 16. 13 1998 Council lower courts assess
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8. The applicants teach as temporary staff at the polytechnic school in Piraeus (Τεχνολογικό Εκπαιδευτικό Ίδρυμα Πειραιά) on basis of private-law contracts. On 22 October 1992 they sued their employer for a supplement to salary, research allowance (ερευνητική χορηγία - hereinafter “the benefit”), that had been granted by ministerial decision no. 2023080/2538/0022/SHET.2057/1989 “those teaching polytechnics”. They served action (επίδοση αγωγής) 27 1992. 9. relied number decisions Court Appeal granting benefit question academic with applicants’ status. Their was one several actions pending before courts time. 10. 30 September 1993 single-member first instance civil court (Μονομελές Πρωτοδικείο) considered were entitled benefit. It awarded GRD 600,000 applicant 1, 570,000 each nos. 2-5, 380,000 6 and 7, 300,000 8-12, 450,000 13-20, 330,000 21-23 210,000 24. also held should be legal interest above‑mentioned sums from date when school, namely 11. 11 February 1994 appealed. 12. 31 August Parliament enacted Law 2233/1994. Article 2 § law provided following: 1989, according its true meaning, concerned only permanent staff; any claims not recognised final statute-barred; all cases discontinued. 13. 19 July 1995 upheld school’s appeal (decision 1001/1995). 2233/1994 “is truly interpretative has retroactive effect (Article 77 1 Constitution)”, “it clearly results these provisions schools are [of 1989]”. continued: “Moreover... Articles 4 Constitution ... provide equal pay work value rendered However, principle non-discrimination is relented differentiation imposed reasons general public social interest. Such reason, which justifies fixing legislator different among employees who render same work, exists ones contracts others private contracts, i.e. group belongs category, ruled status entailing rights obligations. Therefore judgment under [the applicants] working receive wrong did interpret correctly law, fact interpreted ensuing (truly) 2233/1994, thus doubt created due ambiguity removed. In view virtue given like applicants], constitutional violated, this deviation interest, because full equation categories people would overrule basic free negotiation employment conditions sector ...” 14. 20 June 1996 appealed cassation relying, inter alia, Convention Protocol No. 1. 15. 25 1997 Cassation simply 1989 decision, have purpose resolving litigation interfere Convention. rejected 1328/1997).
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8. The applicant was born in 1904 and lived Warsaw. He the co-owner of a plot land house 9. On 23 September 1980 G.G., one co-owners (“the petitioner”) filed with Warsaw-Praga District Court (Sąd Rejonowy) an application for division property. 10. 2 August 1984 gave decision divided 21 January 1985, on applicant’s appeal, Warsaw Regional Wojewódzki) quashed remitted case to Court. 11. 24 1986, at request petitioner, issued interim order enjoining third parties from entering attic house. 27 May 1988 court another his wife carrying out any work November 1989 rejected petitioner order. 12. Having obtained number expert reports, preliminary (postanowienie wstępne) 22 December 1989. It determined that question consisted two apartments, basements attic. 9 July 1990, this decision. 13. 1990 permission carry works gas supply apartment. 8 March 1991 decided join merits proceedings concerning 7 June appeal against as inadmissible law. 14. 4 1992 authorising be carried 10 upheld 15. appears unspecified date 1993 inspection In April paid advance fee towards costs inspection, ordered by court. By letter 1994 lawyer informed although had been fixed occasions (for 14 October 1994), it not taken place since representatives turned up site. 29 inspect dismissed being 16. evidence Institute Construction Technology (Instytut Techniki Budowlanej). As February 1995 file Court, following (procedural order) 20 returned 17. requested Director appoint take charge preparation report sent have prepared within two-month period. 16 expedite report. received served copies parties. 18. submitted observations 1996 B.G., co-owners, her 15 pleadings 19. again 20. held hearing. G.G. B.G. (the co-owners) their 21. inform about position 22. 3 1997 adjourn account B.G.’s poor state health. They also they objected applicant. 23. stayed because could establish address D.B., proceedings. were resumed 6 1997. 24. died 25. 1999 information sole heir resumed. 17 request. 2000 26. guardian act behalf estate late 30 appointed estate. 27. age ninety-six. unknown 2001 ruled sons, T.G. E.G., heirs Consequently, E.G. took Later, resume T.G’s President Civil Division 28. are still and, therefore, remain pending before
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9. Under the General Tax Code as worded until 31 December 1978 applicant company was liable to value-added tax (VAT) on its commercial activity. It paid a total of 291,816 French francs (FRF) in VAT transactions. 10. Article 13-B-a Sixth Directive Council European Communities dated 17 May 1977 granted an exemption from for “insurance and reinsurance transactions, including related services performed by insurance brokers agents”. That provision come into force 1 January 1978. 11. On 30 June Ninth 26 notified State. France extension time – 1979 which implement provisions 1977. Since such directives have no retroactive effect, ought nonetheless been applied 12. Relying Directive, sought reimbursement it had period 1978, considered not due effect. also brought action damages against State failing bring law line with within prescribed period, thereby causing sustain damage equal amount paid. claimed or, that, attributable date force. 13. The Paris Administrative Court dismissed claims judgment 8 July 1982. held, inter alia, that clear Treaty while placed obligation States achieve particular result, choice appropriate means implementing directive domestic lay sole discretion national authorities, individuals private bodies could rely directly defeat law. 14. 10 1982 claim another firm brokers, S.A. Revert et Badelon, transactions same reasons. 15. In further development, authorities directed administrative circular issued 2 1986: “... shall be taken collect sums remaining at publication this who failed charge their between received supplementary assessments result.” 16. 19 March 1986 Conseil d'Etat appeal company. held were entitled yet transposed declared inadmissible, omitted apply first instance authorities. main points follows. 17. As regards head claim: “Article 189 Establishing Community 25 1957 makes are binding upon each member 'as result achieved' order results required adapt legislation comply addressed them, is solely those decide how give effect Thus, regardless any instructions they may contain States, cannot pleaded aid appeals nationals States. common ground measures aforementioned relevant reference taxation purposes. these circumstances, said which, contrary what submitted appellant company, does constitute regulation meaning Treaty, has event bearing application preceding statutory provisions, particular, 256 ...” 18. second “The did rule made alternative during course proceedings compensation sum FRF 291,816. part impugned therefore defective procedurally must quashed. present immediate examination determination court below called for. By virtue R.89 Courts decree 11 1965, only courts way decision. Jacques Dangeville produced decision shows authority refused pay 291,816; even request amount. Accordingly, absence prior decision, inadmissible 19. procedural grounds owing company's failure reparation, after following procedure. To end, sent Minister Budget reparation comprising two limbs 16 1987. first, alleged fault transpose continuing longer complied second, argued strictly maintain distribution public burdens issue 1986. 20. rejected Minister. An 23 1989. 21. 1992 Appeal, sitting full court, quashed Court. ordered loss 129,845, being overpaid, together compound interest. 22. Appeal follows: principle liability: establishing Economic Community, 5 thereof, take all ensure fulfilment obligations under Treaty. These include nullify illegal consequences violation either default, providing effective resulting damage. follows fact taxpayer alleges taxed basis incompatible objectives referred accept incompatibility serve cause action, itself render arising sustained onwards exempt agents. Although construed Justice having requiring payment broking activities type carried set Directive. Court's situation thus arisen should make good about above-mentioned well-founded. Damage: view remunerated percentage calculated insurers premiums latter's customers, passed customers or invoiced. comes 129,845.86.” 23. appealed d'Etat. 24. pleading lodged 1995 out defence: instant case taxpayers bear burden equally contravened introduction treating people position differently, since purported would continued owe account published. This particularly breach liabilities borne equally. unjust, resulted discrimination persons VAT, adversely affected refrained doing so deriving benefit.” 25. October 1996 d'Etat, claims. seek through remedy gave rise estoppel record, namely February 26. essence d'Etat's documents file show acting judicial capacity, seeking liability examined 'compensation' paid, 'damage' caused sustain, State's delay transposing Budget, erred holding '[had] court' tax. Budget's overturned accordingly founded extent upheld submissions 27. day delivered August Badelon follow case, but instead Badelon's admissible, release contested there conflicted erroneously 28. Government Commissioner cases. He pointed factual legal issues identical, saying: [the Badelon] raises decided concerned applicable instruments identical. runs firm, activity indistinguishable 29. added: I invite you quash compensation. misfortune too early. am conscious outcome appear unjust. am, however, mindful upholding favour mean your making exception principles decision-making process based unreasonably undermine stability situations created One isolated based, moreover, transitional difficulties, justify 30. finding 1996, “Firstly, later than systems before unable afford defence enact complying time. Further, far dealings when remuneration them form commission brokerage statute regulations, Articles 261-4-1o Code, enacted Law 6 1966 remained amended 29 compatible sub-paragraph (a) 13-B exempts necessary inapplicable submission carries demand business April However, time-limit extended Subsequently, rightly charged applicable. foregoing valid dismissing periods
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8. Following complaints from the National Union of Finishing Contractors (Syndicat national des entreprises de second œuvre) that large construction firms were engaging in certain illegal practices, France's central government authorities instructed Investigations Office to carry out a large-scale administrative investigation into conduct public-works contractors. 9. In memorandum dated 9 October 1985 head – body attached Competition and Consumer Affairs Department, which on 5 November became Department for Competition, Fraud Prevention (“the DGCCRF”) provided officials responsible at inter-département level with details planned roadworks contractors local tendering procedures. Appended was list companies be inspected, either their office or branch offices, seventeen départements. The included three applicant companies. 10. On 19 inspectors DGCCRF carried simultaneous raids fifty-six without authorisation companies' management seized several thousand documents. At later date, 15 1986, they conducted further inquiries view obtaining statements. 11. each occasion entered premises under provisions Ordinance no. 45-1484 30 June 1945, did not require any judicial authorisation. While carrying raids, various documents containing evidence unlawful agreements relating contracts appear concerned by investigation. 12. 14 basis those documents, Minister Economic Affairs, Finance Privatisation asked Commission (which Council after entry force 86-1243 1 December 1986) investigate acts which, his opinion, amounted collusion between separate firms, artificial competition belonging one same group procedures contracts, restricting operation mixing plants. 13. July 1987 additionally similar nature. That request fifty-five companies, including 14. decision 25 1989, published Official Bulletin (Bulletin officiel la concurrence, consommation et répression fraudes “the BOCCRF”), Council, finding practices outlawed ordinance 1945 fined first company 12,000,000 French francs (FRF), FRF 4,000,000 third 6,000,000. 15. judgment 4 1990 BOCCRF, Paris Court Appeal upheld all penalties. appealed points law. 16. 6 1992, likewise Commercial Division Cassation quashed Appeal, ground its calculation turnover assessment amount fines had no It remitted case sitting different judges. 17. retrial contested lawfulness searches seizures inspectors, authorisation, ordinance. They relied Article 8 Convention. 18. April 1994 Planning Section submitted additional observations behalf stating, inter alia: “... I will consider two concerning procedure ... : (a) inspections should have been judicially authorised advance, accordance European Convention Human Rights (b) Secondly, went beyond actual purpose inspections, expressly referred application taken offices. section is worded very explicit terms, as it states course investigations, may production of, seize, kind are likely facilitate accomplishment tasks, irrespective whose hands in. distinctive feature this that, contrast now force, introduced 48 constant supervision. absence matter, hard see what supervisory followed. appears ordinances vested powers search seizure exercised when general task evidence. aforementioned must interpreted light 16 ordinance, granted unrestricted access ...” 19. differently constituted held, By virtue provision, task, right inspect reinforced power seizure. Since took place investigation, grounds arguing there has interference private life home breach 20. 5,000,000, 3,000,000 again 21. 1996 dismissed appeal. particular, complaint Convention, holding [had] give[n] rise coercive measures”.
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8. The applicant was born in 1937 and lives Athens. 9. Between 13 July 1953 15 October 1957 the paid contributions to Fund of Typographers Graphic-Arts Employees (Ταμείο Τυπογράφων και Μισθωτών Γραφικών Τεχνών) for 1136 working days. 1 February 1979 31 December 1980 Social Security Foundation (Ίδρυμα Κοινωνικών Ασφαλίσεων) 86 January 1981 30 Technical Staff Athens Press Ασφάλισης Τεχνικών Τύπου Αθηνών) seven months. August May 1988 he same fund five years, ten months 18 10. Then requested be put on retirement under sections § 2 10 Law No. 1186/81. On 16 Director decided that entitled pension provided those who had worked years (section (a)). 11. appealed against this decision considering that, relevant legislation, should also have taken into consideration days respect which Foundation. His appeal rejected by Board sometime 1989. 12. 19 April 1989 challenged before First Instance Administrative Court 28 1990 court considered 1186/81 were provisions an exceptional nature. As a result, there no room applying legislation concerning taking been other funds. 13. 20 decision. Appeal 1992. 14. 1993 cassation. He argued if funds not account, his property rights would violated, breach Constitution. 15. At first, hearing set down 11 1994 but it adjourned because lawyers Bar Association strike. A new 21 November continuously postponed. finally held 25 1998. 16. 9 June 1998 Council State applicant’s referring number previous decisions effect did apply cases create pension.
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