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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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