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75,729 | 8 | The applicants complained of the allocation or transfer to a remote penal facility irrespective of family life considerations. Some applicants also raised other complaints under the provisions of the Convention. | [
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10,438 | 6 | He is a winegrower. On 19 May 1993 plans for improving a major road on the edge of the Saintes urban area were declared to be in the public interest. Completion of this operation required the expropriation of various plots of land, including twenty-one hectares belonging to the applicant. The expropriation liability order was issued on 5 September 1994. On 12 September 1994 the expropriations judge for the département of Charente-Maritime issued an expropriation order giving rise to a transfer of ownership. On 28 September 1994, in the absence of an agreement between the applicant and the State as the expropriating authority (represented by Mr H., an inspector from the Charente-Maritime Revenue Department) on the amount of compensation to be paid, the latter applied to the expropriations judge. In an order of the same day the expropriations judge for the département of Charente-Maritime set 4 November 1994 as the date for the site inspection and stated that the public hearing would be held immediately afterwards. On 3 November 1994 Mr P., Deputy Director of the Charente-Maritime Revenue Department, filed submissions in his capacity as Government Commissioner. The applicant’s lawyer then requested an adjournment because of the lateness of these submissions. The hearing was accordingly fixed for 18 November 1994. In a judgment of 9 December 1994, having heard the applicant, Mr H., the State’s representative in the proceedings, and Mr P., the Government Commissioner, the expropriations judge assessed the compensation payable by the State at 1,441,517 French francs (FRF). On 5 January 1995 the applicant appealed against this decison and filed a memorial with the Expropriations Division of the Poitiers Court of Appeal, in which he assessed the amount of compensation due at FRF 3,763,698. On 13 April 1995 the Charente-Maritime Revenue Department filed a memorial in reply, signed by Mr H., in which it asked that the decision be upheld; a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment, was appended. On 24 April 1995 the applicant’s representative wrote to the signee of the memorial, requesting that he send a full copy of the contracts and decisions cited. In a letter of 18 July 1995 the Deputy Director of the Charente-Maritime Revenue Department, Mr P., refused to produce the documents on the ground that tax officials were bound by a duty of professional confidentiality. On 17 August 1995 the applicant’s counsel replied to the Deputy Director of the Revenue Department as follows: “... it is regrettable that almost three months were required to send a brief reply to a standard request for production of documents, dated 24 April 1995, even though the case is due to be heard on 22 September. This aside, you are mistaken in failing to distinguish between your roles as Director of the Revenue Department and as representative of the expropriating authority in legal proceedings brought in application of the Decree of 11 December 1973 – Article R. 179 of the Code of State Property. In this latter capacity, you are obliged to respect the fundamental principle of adversarial proceedings and the provisions of the new Code of Civil Procedure which impose a basic obligation on the parties to produce the evidence to which they refer. This principle also applies when you are acting in your capacity as Government Commissioner, which for the moment poses no further difficulties. I might add that had your memorial contained, as a minimum, sufficient indications to enable me to order the contracts from the land registry, I would have refrained from asking you to produce these documents. I am therefore obliged to ask the court ... to order discovery of the documents which you refer to, unless the court prefers purely and simply to discount this evidence, which would mean that it would rule only on the basis of my own terms of comparison ...” On 4 September 1995 Mr P., standing in for the Director of the Vienne Revenue Department in his capacity as Government Commissioner, lodged submissions in support of a cross-appeal with a view to the hearing before the Expropriations Division of the Court of Appeal (initially set for 22 September 1995, the hearing was subsequently postponed at the applicant’s request until 24 May 1996); he assessed the compensation in issue at FRF 1,396,267. The applicant filed a memorial in reply, referring in particular to an infringement of his right to a fair trial in the following terms: “... In the present case, the Director of the Revenue Department representing the expropriating authority and the Director of the Revenue Department acting as Government Commissioner are one and the same person, even if, for form’s sake, the Director of the Revenue Department is represented by two separate individuals, which is a fiction, since, as we have seen, the same person replied to the expropriated party’s counsel on behalf of the expropriating authority and also signed the Government’s Commissioner’s submissions. It follows that the Director of the Revenue Department may take part in the present proceedings only in his capacity as the State’s representative or in his capacity as Government Commissioner, and may not combine the two roles. Otherwise, the parties do not enjoy a fair trial within the meaning of Article 6 of the European Convention on Human Rights ...” According to the Government, the registry of the Expropriations Division informed the applicant and the Director of the Revenue Department within the Property Department, in letters dated 9 May 1996, of further grounds of appeal lodged on the same day by the Government Commissioner. In a judgment of 21 June 1996 the Expropriations Division of the Poitiers Court of Appeal established the compensation amount at FRF 1,542,867. It held that the applicant’s request that the court dismiss the intervention by the Director of the Revenue Department in his capacity as Government Commissioner was ill-founded. The judgment stated: “... The [applicant’s] criticisms of the Director of the Revenue Department’s activities and of the dual nature of his functions are unfounded because: (i) The Director of the Revenue Department’s twofold status as Government Commissioner and ... representative of the expropriating authority does not amount to a defect; despite the strangeness of this situation, there is nothing to prevent the Director of the Revenue Department representing the expropriating authority and simultaneously assuming the functions of Government Commissioner. (ii) The Director of the Revenue Department’s joint role as Government Commissioner and representative of the expropriating authority does not deny the expropriated party a fair trial provided that the Government Commissioner does not participate in the decision-making process within the expropriations court. (iii) In any event, in the specific case of this appeal, two Directors of Revenue Departments intervened, namely the Director of the Charente-Maritime Revenue Department, representing the State, and the Director of the Vienne Revenue Department as the Government Commissioner (see the appointments of substitutes dated 25 August 1995 and 2 May 1996 in the case file). Consequently, the [applicant’s] claims on the basis of Article 6 of the Convention ... must be rejected. ... As regards the [applicant’s] request that the State provide him with a copy of the contracts and judgments referred to as terms of comparison, and in the light of the adversarial principle, it seems initially that this request is admissible since it is not ‘a new ground which was not raised at first instance’ but new claims intended to secure dismissal of the other party’s claims (Article 654 of the New Code of Civil Procedure); However, this request [by the applicant] ... must be rejected since the information provided is sufficient to allow identification of the property sold and the price agreed upon together with free discussion of their value as evidence; ...” The applicant appealed on points of law, alleging in particular that there had been a violation of his right to a fair trial. He submitted that it was not necessary for a party to participate in the decision-making process for its intervention to be considered a violation of Article 6 of the Convention, and complained that the Government Commissioner had been the last to speak, after the expropriated party, and that the latter had had no opportunity to reply. The applicant also complained that the Court of Appeal had dismissed his request for production of copies of the terms of comparison cited by the Government Commissioner. On 8 April 1998 the Court of Cassation dismissed this appeal on the following grounds: “... Firstly, the judgment correctly accepts that, since Article 6 of the Convention ... is not applicable, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process, it is not necessary to find his intervention inadmissible. Secondly, there is no text prohibiting the parties from replying to the submissions made by the Government Commissioner at the hearing. ... The Court of Appeal justified its decision in law ... by accepting in the exercise of its unfettered discretion that the information provided had been sufficient to enable identification of the property sold and the price agreed upon together with free discussion of their value as evidence. ...” | [
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75,627 | 10 | The applicants were born in 1985, 1977 and 1986 respectively. They were represented, respectively, by Mr Agranovskiy, Mr Varivoda and Mr Sirozhidinov , lawyers practising in Moscow. The Government were represented initially by Mr G. Matyushkin, Representative of the <COUNTRY> to the European Court of Human Rights, and, most recently, by Mr A. Fedorov, Head of the Office of the Representative of the <COUNTRY> to the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. background information Events in issue In 2004, at the time of the events leading to their conviction, the applicants were members of the association, National Bolshevik Party (“the NBP”). On 2 August 2004 a group of about thirty members of the NBP gathered in front of the Ministry of Health and Social Development (“the Ministry”) to protest against the introduction of a law, prepared by the Ministry transforming social benefits in kind (including free use of public transport, significant discounts on residential utilities, free local telephone service, free medication, free annual treatment at sanatoriums and health resorts, free prosthetic devices and wheelchairs for people with disabilities, guaranteed employment for people with disabilities, and a variety of other services) received by pensioners, war veterans, people with disabilities, victims of Soviet-era political repression, survivors of the Second World War siege of Leningrad, and Chernobyl clean-up workers (representing in total approximately 27% of the population at the relevant time) into monetary compensation ranging from 300 to 1,550 Russian roubles (RUB) a month (approximately 8 to 45 euros at the 2004 exchange rate). The draft law had been prepared by the Ministry and was at that time being debated in the Russian Parliament. The NBP members were dressed in emergency-services uniforms. They pushed the security guard out of the way and forced entry into the building of the Ministry, ran up to the second and third floors and occupied four offices, telling the employees who were working in them to leave because “emergency services training exercises” were taking place. They then nailed the doors shut from the inside using nail guns and blocked them with office furniture. They subsequently waved NBP flags out of the office windows, threw out leaflets and chanted slogans calling for the resignation of the Minister for Health at that time. They also set off firecrackers and threw a portrait of the President of Russia out of the window. The intruders stayed in the office for about an hour until the police broke through the doors and arrested them. Criminal proceedings against the applicants 8 . On 5 August 2004 the applicants were charged with a gross breach of public order committed by an organised group and involving the use of weapons, an offence under Article 213 § 2 of the Criminal Code. On the same date the Zamoskvoretskiy District Court of Moscow ordered their detention on the grounds that they were suspected of an especially serious offence and might abscond, obstruct the investigation of the criminal case or reoffend. On 10 and 11 August 2004 the applicants were additionally charged with intentional destruction and degradation of others’ property in public places (Article 167 § 2 of the Criminal Code). During the trial, the applicants stated that they had taken part in a peaceful protest against the abolition of social benefits. They stated that they had not intended to cause disorder; rather, they had pursued political and social goals and had only resorted to extravagant measures to draw attention to their cause. They denied destroying any furniture or using or threatening violence against Ministry employees. 11 . The court read out the testimony of a security guard at the Ministry which stated that he had been scared as he had thought that an armed siege of the building was taking place. The applicants had pushed him when he had tried to stop them; they had run past the reception area and up to the higher floors. The superintendent of the Ministry building testified that she had called the police after learning that a group of young people in respirators were trespassing in the building. Six Ministry employees and a visitor to the Ministry that day, Mr , testified about the manner in which the applicants had occupied the building. Two of the employees and Mr stated that they had been frightened because they had thought that terrorists were taking over the building. Four other employees testified that they had left their offices when the applicants told them that emergency services training exercises were taking place. None of the witnesses reported having been injured. 12 . On 20 December 2004 the Tverskoy District Court of Moscow (“the District Court”) found the applicants guilty of disorderly acts (gross breach of public order) and intentional destruction and degradation of others’ property in public places. It held as follows: “... In the end of July - early August 2004 the unidentified “leaders” of unofficial NBP movement decided to hold an unauthorised protest action in front of the Ministry of Health in connection with introduction of a law transforming social benefits in kind and under pretence of expressing protests against social reforms and abolition of benefits. ... According to their plan, in order to force their way unlawfully into the government building and hold the above protest action [the applicants] had purchased and prepared camouflage and other work uniforms with the insignia of the Ministry of Emergency Situations of the <COUNTRY>, respirators, two nail guns with at least twenty pellets and dowels, iron brackets, sticks, flagpoles, firecrackers, flags and anti-government leaflets ... The accused Yezhov testified that.... they had been throwing leaflets out of the windows, chanted slogans showing their negative attitude to the leaders of the State and also against the Minister of Health, “Zurabov – the enemy of people”, “Lay off Zurabov”. ... He further testified that the protest was spontaneous, he had not received any instruction from anyone as to what had to be done inside of the Ministry’s building. ... Through their actions the defendants ... seriously breached public order and significantly harmed the public interest by destabilising the work of a public institution for an extended period of time and by chanting anti-government slogans. They showed a manifest lack of respect for society and State authority by forcing employees of the Ministry of Health and Social Development out of their offices and by throwing a portrait of the President of the <COUNTRY> out of the window of a public institution ... They used nail guns, which might have caused bodily injuries [to Ministry employees] and threw firecrackers out of the windows, creating a risk of physical harm to the citizens and cars in the street. Therefore, the court concludes that the defendants committed disorderly acts. The defendants committed criminal acts as an organised criminal group which was highly structured, consisting of a large number of members and supporters of an unofficial National Bolshevik movement, who gathered together to commit the crimes in question ... ... the defendants’ arguments that they had no intention of causing disorder and that their unlawful actions were motivated by their resentment towards the draft law under discussion and by their political views are unsubstantiated. The defendants, who are members of an organised criminal group, armed themselves with nail guns, nails, firecrackers and other objects, forcibly entered the building of the Ministry and ... deliberately damaged and destroyed property. This shows that they had the intention of causing disorder. The court is not convinced by the defendants’ argument that the doors of offices nos. 270 and 318 were damaged by [the police] and that the defendants were not responsible for that damage. It has been established that the doors had already been damaged before the arrival of the police ... as the defendants had nailed them shut ... Moreover, [the police] had to break open the doors to stop the unlawful actions of the members of the organised criminal group ...” The District Court sentenced each applicant to five years’ imprisonment. It also ordered the applicants to pay RUB 147,317 (approximately 4,000 euros at that time) to the Ministry in compensation for the damage sustained. The applicants appealed. In particular, they complained that they had been convicted for taking part in a peaceful protest against the abolition of social benefits in Russia. They had not shown a lack of respect for society. Nor had they used or threatened violence. The third applicant also argued that nail guns could not be regarded as weapons. They had been used to nail the doors shut rather than to injure or threaten people. The second applicant referred to Article 29 (freedom of expression) and Article 30 (freedom of peaceful assembly) of the Constitution. 15 . On 29 March 2005 the Moscow City Court (“the appeal court”) upheld the judgment on appeal. The relevant part of the judgment reads as follows: “[The defendants’ arguments] that they did not intend to cause disorder and that they participated in a peaceful political protest action are unfounded and cannot exempt them from responsibility for [their] disorderly acts. By choosing to use such methods to express themselves, the participants in the protest action understood that their actions were breaching the established rules of conduct in society, disturbing citizens’ peace and the work of a public institution ... Therefore, the appeal court agrees with the findings of [the District Court] that the defendants seriously breached public order and showed a manifest lack of respect for society.” The appeal court also upheld the District Court’s conclusions that nail guns and firecrackers could be regarded as weapons, that the defendants rather than the police had been responsible for the damage to property and that their actions, in addition to destabilising the work of the Ministry, had resulted in significant pecuniary losses for it. The appeal court found, however, that the sentence handed down was too severe. The District Court had not taken into account that the first applicant (Mr Yezhov) was of frail health and studied at a university, that the third applicant (Mr Tishin) was a minor, that none of the defendants had a criminal record, or that all of them had good references. It reduced the first and third applicants’ sentences to two years and six months’ imprisonment, and the second applicant’s sentence to three years’ imprisonment, which also included four months of the applicants’ detention on remand (between 2 August and 20 December 2004). RELEVANT LEGAL FRAMEWORK Code of Criminal Procedure of the <COUNTRY> 18 . Article 91 (Grounds for apprehension arrest of a suspect) of the Code of Criminal Procedure, as in force at the material time, provided as follows: “An officer involved in a pre-investigation inquiry or an investigator is empowered to arrest a person under suspicion of a criminal offence punishable by a prison term in the following circumstances: (1) where the person has been apprehended during or immediately after committing the offence ...” Criminal Code of the <COUNTRY> 19 . Article 213 of the Criminal Code, as in force at the material time, provided as follows: “Hooliganism, that is, a gross breach of public order manifested in clear contempt of society and committed with the use of weapons or articles used as weapons ... The same offence committed by a group of persons by previous agreement, or by an organised group, or in connection with resistance to a representative of authority or to any other person who fulfils the duty of protecting public order or suppressing a breach of public order shall be punishable by deprivation of liberty for a term of up to seven years.” 20 . Article 167 as in force at the material time provided as follows: “Deliberate destruction of property or infliction of damage on property, if these actions caused significant damage ... The same acts committed in the course of breaching public order, by way of arson, explosion or in any other dangerous manner ..., shall be punishable by compulsory labour for a term of up to five years or by deprivation of liberty for the same term.” | Russian Federation | [
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78,621 | 8 | The applicant was born in 1971 and lives in Moscow. He was represented by Mr Sharapov, a lawyer practising in Moscow. The Government were initially represented by Mr Galperin, former Representative of the <COUNTRY> to the European Court of Human Rights, and later by his successor in this office, Mr Vinogradov. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case The applicant is HIV-positive and suffers from hepatitis. He is registered with the Moscow Centre for the Prevention and Control of Aids. In February 2011 an acquaintance of the applicant informed him that he had purchased, at Savelovskiy Market in Moscow, a database from which he had learnt of the applicant’s conditions. In order to verify this information, the applicant purchased a compact disc containing a database from the same market. On the first page of the database there was written in Russian “ЗИЦ Mосква 2007”. According to the applicant, the abbreviation “ЗИЦ” stood for Зональный информационный центр Главного управления внутренних дел г. Москвы – the Information Centre of the Moscow Department of the Interior (“the Information Centre”), and the database was dated 2007. The “Properties” dialog box indicated that copyright belonged to the company 8 . The database consisted of a table divided into sections according to the type of personal data, such as first name, surname, place and date of birth, gender, ethnicity and address. It also contained specific types of information, such as nicknames, membership of organised criminal groups, criminal records and preventive measures applied, as well as a section entitled “date of entry”. The database contained data in respect of 213,355 people registered as living in Moscow; 203,604 people registered as living elsewhere but living in Moscow; and foreigners living in Moscow. It also contained information on 281 people with HIV, 30 people suffering from Aids and 750 people suffering from hepatitis. 10 . The applicant was registered in the database under the number 308812. It contained the following information about him: (1) his name, patronymic and surname; (2) his date and place of birth; (3) his nationality; (4) his place of residence and address; and (5) his conviction for hooliganism, theft and unlawful possession of drugs. In the section entitled “Notes”, it was stated that the applicant was “a hooligan, thief and drug addict, was suffering from Aids and hepatitis”. In the section entitled “date of entry”, the date 26 April 1999 was indicated. In March 2011 the applicant’s representative went to Savelovskiy Market to verify the information received from the applicant. Various databases allegedly belonging to different State agencies were available for sale, including a database similar to the one bought by the applicant. The applicant’s representative purchased a copy of that database from a certain E., who provided him with his mobile telephone number in case he had problems opening the database on his computer. COMPLAINT to the information centre OF THE MOSCOW DEPARTMENT OF THE INTERIOR On 3 March 2011 the applicant complained to the Information Centre, asking it to clarify why its database contained information about his state of health; to remove the information about his having Aids, since it was untrue; and to remove the information about his hepatitis, since he had never consented to disclosure of that information. The applicant enclosed a printout of an extract from the database purchased at the market. On 14 March 2011 the Information Centre replied that its database did not contain any information on the applicant’s health and that the enclosed printout had nothing to do with its database. COMPLAINTS TO THE INVESTIGATIVE COMMITTEE OF THE RUSSIAN FEDERATION 14 . On 18 April 2011 the applicant complained to the Investigative Committee of the <COUNTRY> (“the Investigative Committee”). He alleged that a database entitled “Database of the Information Centre of the Moscow Department of the Interior” was being sold at Savelovskiy Market in Moscow. It contained personal data of people living in Moscow and the Moscow region, including data about his health and his HIV status. The applicant enclosed a printout of the database, the original CD version and a video-recording showing him purchasing it. The applicant submitted that the uninhibited sale of such a database at the market was unlawful under Article 137 § 2 (breach of privacy) and Article 285 § 1 of the Criminal Code (abuse of office), and had become possible as a result of the transfer or sale of the database by officials of the Ministry of the Interior (“the Ministry”) to third parties. On 21 April 2011 the Investigative Committee replied that since the issues complained of were not within its competence, his complaint had been forwarded to the Prosecutor General. On 12 May 2011 the Prosecutor General forwarded it to the prosecutor of Moscow. On 25 May 2011 the prosecutor of Moscow forwarded it to the prosecutor of the Tverskoy District of Moscow. On 1 June 2011 the prosecutor of the Tverskoy District replied that there was no evidence that any of the officials of the Moscow Department of the Interior had committed an offence. There was therefore no need to carry out a pre-investigation inquiry in accordance with Articles 144 and 145 of the Code of Criminal Procedure. In so far as his complaint concerned the fact that the database of the Information Centre was available at Savelovskiy Market, that market was not within the territorial jurisdiction of the prosecutor of the Tverskoy District. On 23 January 2012 the applicant asked the Investigative Committee to clarify on what legal basis it had refused to conduct a pre-investigation inquiry in connection with his report of a crime. It replied that the complaint did not contain enough information that would disclose elements of a crime. 19 . By a final decision of 8 August 2011, the Moscow City Court dismissed a judicial complaint by the applicant against the Investigative Committee’s failure to carry out a pre-investigation inquiry in respect of his report of a crime. The court established that on 18 April 2011 the applicant had lodged a criminal complaint with the Investigative Committee, which had examined it and concluded that it did not contain enough information indicating that a crime had been committed by officials of the Ministry. FURTHER DEVELOPMENTS Shortly after submitting his complaints to the law-enforcement authorities, the applicant’s representative was allegedly contacted by the Security Service of the Moscow Department of the Interior and invited to make a statement concerning the sale of the database at the markets of Moscow. The applicant’s representative learnt from the Security Service that an inquiry was being conducted on the order of the Moscow Department of the Interior since information about the sale of the database of the Information Centre had appeared in the media. In July 2013 the applicant allegedly purchased at Savelovskiy Market a database dating from 2010 similar to the one he had purchased in 2011. It contained the same information about his state of health, in addition to information about other people. 22 . After notice of the application was given to the Government, the applicant learnt that on 15 March 1999, when he had been a suspect in criminal proceedings, the investigator in charge of the case had requested the Hospital for Infectious Diseases to provide information on his conditions. The applicant provided the Court with a copy of this request. The hospital allegedly replied that the applicant had been registered as having HIV and hepatitis. PRESS ARTICLES The applicant provided the Court with three news articles published on the websites vedomosti.ru (dated 14 June 2011), gazeta.ru (dated 28 June 2011) and interfax.ru (dated 4 October 2011). The Government did not contest the authenticity of those articles. The article on vedomosti.ru shared information provided by the Russian telecoms regulator (Roskomnadzor) and the Ministry. According to those sources, in March 2011 Roskomnadzor and the Ministry had carried out a raid at Savelovskiy Market in Moscow, following which administrative ‑ offence proceedings were initiated in respect of owners of market stalls. On 8 June 2011 Roskomnadzor and the Ministry had carried out a raid on a shopping centre in Moscow and confiscated more than forty CDs containing databases allegedly belonging to the Ministry. The article on gazeta.ru contained information provided by the Ministry’s headquarters in Moscow. According to that information, the Ministry and the Federal Security Service had carried out a raid on three shopping centres in Moscow, including Savelovskiy Shopping Centre. They had confiscated more than fifteen thousand databases containing the personal data of Russian citizens. The article on interfax.ru contained information provided by the Ministry’s headquarters in Moscow. According to that information, the Moscow police had carried out an operation under the code name “Kontrafact”, which had revealed the unlawful sale of databases of various State agencies, such as the Information Centre in Moscow. The databases all contained the personal data of citizens of the <COUNTRY>. C HECKS CARRIED OUT ON 10 OCTOBER 2017 According to the Government, on 10 October 2017 checks were carried out regarding the applicant’s data stored in the Ministry’s database. It was established that the only information stored therein was information concerning the applicant’s criminal record. RELEVANT LEGAL FRAMEWORK | Russian Federation | [
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9,522 | 8 | The applicants were born in 1975, 1976 and 1995 respectively. When they introduced the application, they were all living in <COUNTRY>. The first applicant went to <COUNTRY> in 1989 to live with his parents and siblings. As from 1994 he cohabited with the second applicant, who was born in <COUNTRY> and has lived there all her life. They married under muslim law in April 1994 and under Austrian civil law in March 1997. Their daughter, the third applicant, was born on 14 August 1995. On 5 January 1993 the first applicant was sentenced to three days’ imprisonment on probation for shoplifting by a Swiss Court. On 19 May 1993 the Dornbirn District Court ( Bezirksgericht ) convicted him of theft without pronouncing a sentence. The court established that in 1992 the first applicant had stolen moped-accessories, cutlery and other commodities, two gold rings and a gold bracelet, worth altogether less than 25,000 Austrian schillings (ATS), equivalent to 1,817 euros (EUR). A probation period of three years was fixed. In 1992 and 1993 the first applicant was convicted of three minor breaches of traffic rules and sentenced to pay fines of ATS 300, 500 and 1,000 respectively. Between February and April 1994 he was convicted three times of driving a car without a driving licence and sentenced to pay fines of ATS 3,000, 4,000 and 5,000, respectively (equivalent to EUR 218, 290 and 363). On 28 February 1994, still without a driving licence, he overran a red traffic light and exceeded the speed limit of 60 km/h, driving at 170 km/h. On 6 April 1994 the Dornbirn District Authority ( Bezirkshaupt-mannschaft ) convicted him of these offences and sentenced him to a fine of ATS 14,500. On 21 September 1994 the Dornbirn District Authority imposed a five year residence ban on the first applicant. On 24 January 1995 the Vorarlberg Public Security Authority ( Sicherheitsdirektion ) dismissed the first applicant’s appeal. The authority referred to section 18 §§ 1 and 2 of the 1992 Aliens Act, which paragraphs provide that a residence ban has to be issued against an alien, inter alia , if he has been convicted more than once for similar offences by a domestic or foreign court, or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority. The Authority found that both conditions had been met in this case. Further, the Vorarlberg Public Security Authority, referring to the first applicant’s stay in <COUNTRY> since 1989, the fact that his close family was living in <COUNTRY>, his co-habitation with a Turkish national who was born in <COUNTRY>, and his employment, found that the residence ban constituted an interference with the applicant’s right to respect for his private and family life. However, it was necessary for the aims set out in Article 8 § 2 of the Convention, namely for the prevention of crime and the protection of the rights of others. Given the first applicant’s continuous disregard of Austrian law, the authority assumed that it was probable that he would commit similar offences in the future. Thus, despite the first applicant’s high degree of integration in <COUNTRY>, the public interest in issuing a residence ban outweighed the first applicant’s interest in staying. This decision was served on the first applicant on 8 February 1995. On 11 May 1995 the applicant was taken into detention with a view to his expulsion. On 13 June 1995 the Constitutional Court refused to deal with the first applicant’s complaint as it lacked sufficient prospects of success. Subsequently, the first applicant lodged a complaint with the Administrative Court. He requested that the decisions relating to the residence ban against him be quashed for errors of law. He submitted that the contested decisions violated his right to respect for his private and family life. In particular, he complained that the competent authorities had failed duly to weigh his interests in staying in <COUNTRY> against the public interest of issuing a residence ban against him. Although he had been convicted of theft, no punishment had been imposed on him. The other convictions only concerned administrative offences. Neither his fiancée, the second applicant, who was born in <COUNTRY> and worked there, nor their daughter, the third applicant, could be expected to follow him to Turkey. Furthermore, the first applicant submitted that <COUNTRY> had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement, and the decisions on its implementation, Turkish workers who had been legally employed in a member State for a certain period had a right of free access to the employment market and also to a residence permit. In this context the first applicant requested the Administrative Court to refer the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 § 3 of the EEC Treaty. Moreover, measures of public security against such workers were only possible if the public interest was massively and actually endangered. Therefore, it would contradict EU-law to issue a residence ban against the child of a migrant worker’s family who has never committed anything else than petty crimes. On 10 August 1995 the Administrative Court granted the first applicant’s complaint suspensive effect. Thereupon, on 11 August 1995, the applicant was released from detention with a view to his expulsion. On 4 December 1996 the Administrative Court dismissed the first applicant’s complaint. It found that the contested residence ban served aims set out in Article 8 § 2 of the Convention, namely the prevention of crime and the protection of the rights of others. Furthermore, the Public Security Authority had duly weighed the interests involved. Given the fact that the first applicant had committed several criminal and administrative offences during a protracted period, the public interest weighed more heavily than the private interest, even in cases where an alien was integrated as the first applicant. As to the Association Agreement between the European Union and Turkey, and in particular decree no. 1/80 of the Association Council, the Administrative Court noted that the rights contained therein only applied after a certain number of years of lawful employment. The first applicant had failed to submit the relevant facts to the administrative authorities, in particular whether he had been working in <COUNTRY> for the requisite period. Thus, the Vorarlberg Public Security Authority could not be reproached for not having taken into account that Agreement and the above decree. The decision was served on the first applicant on 20 January 1997. On 16 June 1997 an order to leave Austrian territory was served on the first applicant, with which he complied on 1 July 1997. The first applicant is currently living in Turkey. The validity of his residence ban expired in September 1999. However, according to his submissions, which were not contested by the Government, the possibilities of legally returning to <COUNTRY> are very limited and involve long waiting periods. It appears that the second and third applicants visited the first applicant on a number of occasions in Turkey and spent a longer period of time there at the end of the year 2000 and in the beginning of 2001. In March 2001 the first and second applicants divorced. According to the divorce decree issued by a Turkish court, the second applicant has sole custody over the third applicant while the first applicant has a right of access. In September 2001 the second applicant returned to <COUNTRY>. She has a settlement permit and a work permit. She has left the third applicant temporarily in Turkey where the latter is being cared for by relatives but intends to bring her back to <COUNTRY>. | Austria | [
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19,066 | 6 | They were serving their prison sentences at Bergama prison at the time of the application. The applicants were arrested and taken into police custody by police officers at the Anti-terror branch of the İzmir Security Directorate on 7 and 9 September 1996 respectively. On 19 September 1996 the İzmir State Security Court ordered the applicants’ remand in custody. On 22 October 1996 the public prosecutor at the İzmir State Security Court filed a bill of indictment with that court and accused the applicants and fifteen other suspects of membership in an illegal organisation, namely the TIKB (Turkish Revolutionary Communist Union - <COUNTRY> İhtilalci Komünistler Birliği). He requested that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. On 24 December 1997 the İzmir State Security Court convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. On 24 November 1998 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. THE | Türkiye | [
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71,973 | 8 | The applicant was born in 1980 and lives in Moscow. She was represented by Mr Golichenko, a lawyer practising in Balashikha. The Government were represented by Mr G. Matyushkin, Representative of the Russian Government before the European Court of Human Rights, and then by Mr Galperin, his successor in that office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the biological mother of , born in 1999, A., born in 2011, and Al., born in 2012. At the material time, she was living with her three children and her mother, Ms P., in a two-room flat. She appears to have been taking opiate drugs from 2004 onwards, and suffered from an opiate addiction. The applicant’s arrest and CONVICTION AND the removal of her children 5 . At 45 a.on 8 October 2013 the police arrested the applicant and Mr K., her partner and the biological father of A. and Al., at her home address, on suspicion of being involved in drug trafficking. The applicant’s three children were at home at the time. The police took the applicant to a police station, where she remained for at least four hours. She was then released, having given an undertaking not to leave a specified location. During that period the applicant’s children had been at home on their own, as the applicant’s mother had been visiting her relatives in another region. 6 . On 8 October 2013 a police officer interviewed the applicant. She stated, in particular, that she had started taking drugs in 2004. Initially, she had taken two types of psychotropic medicine, which she had mixed together for injections. She had stopped taking drugs in 2010 before giving birth to her two youngest children. She had then relapsed and, for about the past month, had been taking heroin. She also stated that she had regularly let her acquaintances take drugs in her kitchen. 7 . At 10 a.on the same date, when the applicant was at home, a police officer for juvenile affairs ( инспектор по делам несовершеннолетних ) arrived. He drew up a report stating that the applicant had committed an administrative offence as she had failed duly to fulfil her parental obligations in respect of her three minor children and had been taking drugs. He also drew up three more reports stating that the children had been left unattended. Later that day, was taken to a children’s home, and A. and Al. were taken to a children’s hospital. 8 . On the same date the applicant underwent a medical examination, which confirmed that she was in a state of intoxication caused by morphine and codeine. 9 . On the same date the police for juvenile affairs sent the above ‑ mentioned reports to the Khovrino district authority ( Администрация муниципального округа Ховрино ) with a request that proceedings to deprive the applicant of her parental authority in respect of , A. and Al. be initiated. On 18 October 2013 was taken to stay with Mr Is., his father. 11 . By decisions of 23 October 2013 the Khovrino district authority ordered that A. and Al. be placed in public care, as children left without parental care. On 25 October 2013 A. and Al. were placed in a children’s home. On 17 January 2014, as upheld on appeal on 14 April 2014, the domestic courts deprived the applicant of her parental authority in respect of her three children (see paragraphs 34-48 below). On 28 April 2014 the Golovinskiy District Court of Moscow found the applicant guilty of drug trafficking and sentenced her to six years’ imprisonment. She was arrested in the court room after the judgment had been pronounced. According to the Government, on 10 June 2014 A. and Al. were transferred to a foster family, where they have remained since that date. The applicant’s contact with her children following their removal In the applicant’s submission, prior to her conviction, she had regularly visited A. and Al. in the children’s home at least once a week. 16 . According to the reports drawn up by staff at the children’s hospital and children’s home, A. and Al. missed their mother. In particular, Al. would wake up during the night, weeping and calling for her “mum”. A. would often ask where his mother was and when she would take him home. It is unclear whether the applicant ever saw her eldest son following his removal. Inspection of the applicant’s living conditions On 11 October and 18 November 2013 the Khovrino district authorities inspected the living conditions at the applicant’s home address. 19 . The report of 11 October 2013 stated that the flat had the necessary furniture and domestic appliances. It had two rooms: one measuring 4 sq. m, which was occupied by Ms P., the applicant’s mother, who had been visiting relatives in another region of Russia at that point in time, and another measuring 7 sq. m, which was shared by the applicant and her three children. Each of the children had a separate sleeping place. The room was stuffy, as it was not properly ventilated. It was equipped with chests of drawers, a dining table with a desktop computer on it, an office chair and a linen chest. There were empty plastic bottles, ashtrays with cigarette butts and a washing up bowl on the floor. Sufficient food supplies were found in the kitchen and in the refrigerator. The report mentioned that the applicant had been present during the inspection. She had remained lying on a sofa, crying and smoking, and blamed herself for the recent events, including the removal of her children. According to the report, the applicant stated that she had taken drugs between 2003 and 2011, and then from September until 8 October 2013; in the latter period she had taken heroin, which she had received from Mr K. (see paragraph 5 above). The applicant also stated that she had intended to contact the Khovrino district authorities to find out where her children had been taken, but had been unable to do so, as she had had to stay in bed because of withdrawal symptoms. She realised that she had a drug addiction and was ready to undergo medical treatment. 20 . The report of 18 November 2013 stated that the flat had the necessary furniture and domestic appliances, and was tidy, cosy and well ventilated. Repair work had been carried out in the kitchen in the past month, and the furniture in the applicant’s room had been rearranged. The inspection was carried out in the presence of Ms P., who stated that the applicant had been admitted to hospital on 31 October 2013 and was currently undergoing inpatient medical treatment in connection with her addiction. Ms P. said that the applicant loved her children and cared about them. She also mentioned that she herself was currently taking the necessary administrative steps to gain custody of her grandchildren. The applicant’s medical treatment On 29 October 2013 the applicant sought assistance in connection with her drug addiction in a drug rehabilitation outpatient clinic ( наркологический диспансер ). An extract from the applicant’s medical history file reveals that on 30 October 2013 she was admitted to a specialist clinic, where she was diagnosed with stage-two opiate addiction and withdrawal symptoms. She received treatment for her addiction until 21 November 2013, when she was discharged from the clinic. The file also states that she applied to the clinic for treatment on her own initiative, and that she had a positive attitude towards the treatment and intended to abstain from taking drugs and to lead a healthy life. 23 . According to a certificate dated 5 December 2013, from December 2013 onwards, following a diagnosis of stage-two opiate addiction, the applicant was registered as an outpatient with a drug rehabilitation clinic for monitoring. In the context of that monitoring, the applicant visited the drug rehabilitation clinic on 28 November 2013 and 9 January, 13 and 14 March and 10 April 2014. 25 . According to the Government, the applicant received in-patient treatment for her addiction in a specialist clinic between 17 and 31 January 2014; she was discharged on the latter date as she had refused treatment. She was then readmitted to the clinic from 7 to 21 February 2014. In the applicant’s submission, she had left the specialist clinic on 31 January 2014 as she had had health issues which could not be addressed there. As soon as she had received treatment for those issues, she had returned to the drug rehabilitation clinic. Proceedings FOR WITHDRAWAL OF the applicant’S parental authority 26 . On 1 November 2013 the Khovrino district authority brought an action against the applicant, seeking the withdrawal of her parental authority in respect of her three children. In particular, they pointed out that since October 2013 the applicant had been monitored by the district commission for children’s affairs and the protection of minors’ rights as a mother who had been neglecting her parental duties by not providing her children with adequate care and financial support, and who had been taking drugs for a prolonged period of time. The authority also pointed out that the applicant was unemployed and that criminal proceedings against her were currently ongoing in relation to her suspected involvement in drug trafficking. The authority therefore insisted that leaving her children with her would put their lives and health at risk. First-instance court Proceedings before the first-instance court 27 . A transcript of two court hearings that took place on 5 and 24 December 2013 respectively reveals that the applicant and her representative attended those hearings and made oral submissions. The applicant stated, in particular, that she loved her children and was willing to take care of them. She also stated that she had never taken drugs in front of her children; she would go to the bathroom or toilet for that purpose. She also said that she was willing to undergo rehabilitation treatment for her addiction. 28 . The applicant’s mother, Ms P., who participated in the proceedings as a third party, objected to the withdrawal of her daughter’s parental authority. She stated that the applicant loved her children and had taken care of them to the extent that the state of her health had allowed. She also stated that she knew that, previously, her daughter had taken psychotropic drugs, but had stopped taking them during her pregnancy. Ms P. further stated that, although she shared the flat with her daughter, she had not noticed that the latter had relapsed; nor did she know that she had started taking heroin. 29 . A representative of the children’s home in which A. and Al. had been placed stated, in particular, that the children’s grandmother had started visiting them as soon as they had been placed in that institution, whereas their mother had come for the first time on 6 December 2013, as prior to that date she had been following inpatient treatment for her addiction. Both the children’s mother and grandmother had regularly visited the children and had brought them presents; the children were particularly attached to their grandmother. 30 . A police officer for juvenile affairs, Ms P., stated that the children’s mother had been taking drugs since 2004. According to Ms P., in 2010 she had stopped taking drugs because of her pregnancy, but had relapsed after the birth and had started taking heroin on a regular basis. The officer further stated that the children’s mother had tried to stop taking drugs, but had been unable to stop for longer than a fortnight. In the context of the criminal proceedings relating to drug trafficking, a search of her flat had been carried out and packets of heroin had been found. She would allow her acquaintances to take drugs in her kitchen, in her children’s presence. According to Ms P., the elder son, , had been monitored by the police; two criminal cases against him had been discontinued owing to his young age. 31 . The court also heard , the applicant’s elder son, who stated, in particular, that until the events of 8 October 2013, he had been living with his mother, her partner, his brother and sister and his grandmother. Their life had been “normal”, there had been no “inadequacy” in his mother’s behaviour; she had been taking care of the children. also stated that he liked living with his father and that he had good relations with his father’s new family. In fact, would like to live with both of his parents, he could not make a choice. He stressed that he did not want his mother to be deprived of her parental authority. ’s father, Mr Is., and his wife stated that they would like to live with their family. A transcript of the court hearing of 17 January 2014 reveals that the applicant’s representative informed the court that as the applicant had been admitted to a specialist clinic for treatment for her drug addiction, she was unable to attend the hearing. She had applied to the first-instance court for an adjournment of the hearing, but her application had been rejected. Judgment of 17 January 2014 34 . By a default judgment of 17 January 2014 the Golovinskiy District Court of Moscow (“the District Court”) examined and allowed the action against the applicant. It referred to Article 69 of the Russian Family Code (see paragraph 52 below). The District Court examined the report on the applicant’s arrest on 8 October 2013 (see paragraphs 5-6 above), an administrative offence report of the same date (see paragraph 7 above), and a report on her medical examination on that date (see paragraph 8 above). The court also cited the report of 11 October 2013 on the inspection of the applicant’s living conditions (see paragraph 19 above), the certificate of 5 December 2013 (see paragraph 23 above), and the administrative decisions of 23 October 2013 to place A. and Al. in public care (see paragraph 11 above). 36 . The court also relied on a letter from a teacher at ’s school. The letter stated that had been going to that school since 1 September 2008, and that during the period when he had been going to that school he had demonstrated a lack of ability and motivation, and had missed classes for no valid reason. The letter also stated that although ’s mother took care of and enquired about his behaviour and progress, she had not had any influence on him. The court admitted Ms P.’s statements (see paragraph 30 above) as evidence, stating that they were consistent, coherent and corroborated by the written material in the case. The court examined a report on the inspection of the living conditions in Mr Is.’s flat, which confirmed that they were good, and another letter from a teacher at ’s school, which stated that since 18 October 2013 (the date on which had started living with his father) his behaviour had improved, he had stopped missing classes, and he had made progress in his studies. 39 . With reference to the above-mentioned pieces of evidence and witness statements, the court noted that the applicant had been taking drugs for a prolonged period of time, was unemployed, and had failed to provide her children with adequate care or financial support. It concluded that leaving the children in her care would put their health and lives at risk, and that she should therefore be deprived of her parental authority in respect of , A. and Al. 40 . The court considered that the arguments put forward by the applicant’s representative and her mother that the applicant was currently undergoing medical treatment for her addiction and had positive references from her neighbours were irrelevant in the circumstances of the case, and should thus not be taken into account. The court thus deprived the applicant of her parental authority in respect of her three children, and ordered that be placed in the care of Mr Is., his father, that A. and Al. be placed in public care, and that the applicant pay maintenance on a monthly basis to support her children financially. Appellate proceedings The applicant disagreed with the first-instance judgment and lodged an appeal before the Moscow City Court. She complained that the District Court had taken an overly formalistic approach and had not assessed the particular circumstances of her case, but had merely applied Article 69 of the Russian Family Code (see paragraph 52 below). It had thus withdrawn her parental authority on the sole grounds that she was a drug addict. In the applicant’s view, that fact alone did not prove that she posed any danger to her children, and therefore was insufficient for the purposes of depriving her of her parental authority. The first-instance court had ignored the fact that she was undergoing rehabilitation, even though that fact was directly relevant to her case. Lastly, she complained that she had not been given an opportunity to participate in the proceedings before the District Court, as it had rejected her application to adjourn the hearing. 43 . A transcript of 14 April 2014 reveals that the applicant and her representative attended the hearing before the appellate court and submitted their arguments. They requested that the appellate court include in the case file a number of pieces of evidence proving that the applicant had changed her attitude, had found a job and had a sufficient income, and had followed rehabilitation treatment. They also requested the appellate court to call and examine the doctor who had treated the applicant at the specialist clinic where she had undergone inpatient treatment for her addiction. The appellate court dismissed that request, stating that the evidence in question had been received after the first-instance court had rendered its judgment, and that the applicant could have sought, but had not, the examination of the witness in question before the first-instance court. By a decision of 14 April 2014 the Moscow City Court upheld the judgment of 17 January 2014 on appeal. It considered that the first-instance judgment was well reasoned and based on an adequate assessment of all the relevant circumstances. 45 . The appellate court disagreed with the applicant’s argument that her addiction to drugs had been the sole ground for depriving her of her parental authority. Her children had been taken away because she had neglected her parental duties in respect of A. and Al. and, for a prolonged period of time, had remained unemployed and had taken drugs. The appellate court referred to the applicant’s words in the report of 11 October 2013 to the effect that, because of her withdrawal symptoms, she had been unable to discover her children’s whereabouts (see paragraph 19 above), and to her interview of 8 October 2013 (see paragraph 6 above) which revealed that she had regularly let other people take drugs in her flat. It also referred to “other pieces of evidence which showed that [she] had taken and had dealt in drugs at her flat”, without indicating what those pieces of evidence were. In the appellate court’s view, the foregoing considerations had been sufficient to enable the first-instance court to reach a well-founded conclusion that leaving the children in the applicant’s care would put their lives and health at risk. The Moscow City Court further held that the fact that the applicant had undergone rehabilitation treatment could not, on its own, be the basis for rejecting the authorities’ action, as the first-instance court’s judgment had been based on an assessment of the available evidence and circumstances at the time the case was decided. Moreover, the applicant would have the opportunity to seek reinstatement of her parental authority once the reasons underlying the decision to deprive her of it were no longer valid. 48 . Lastly, in so far as the applicant complained about the first-instance court’s refusal to adjourn the hearing to ensure her personal participation in the proceedings, the Moscow City Court noted that that did not constitute grounds for quashing the judgment, as the applicant had been represented before the first-instance court, and her representative had set out her position. Cassation proceedings 49 . The applicant then lodged a cassation appeal before the Presidium of the Moscow City Court. The latter received the appeal on 10 October 2014. She argued that the lower courts had applied Article 69 of the Russian Family Code in a formalistic manner, and had based their decisions solely on the fact that she had been a drug addict, whilst failing to take into consideration the fact that she had been undergoing rehabilitation treatment. Moreover, the first-instance and appellate courts had disregarded her children’s right to live and be raised in their family, as guaranteed by Article 54 of the Russian Family Code (see paragraph 51 below). In particular, they had failed to demonstrate convincingly that the children’s forced separation from their mother and their placement in the care of the State had been in their best interests. The applicant further argued that the courts had failed to set out any facts showing that she had neglected her parental duties at any point, and that the courts’ conclusion to that end had been groundless. According to the applicant, the case material showed that, although she suffered from an opiate addiction, she was making efforts to overcome it; moreover, she had never lost interest in her children’s lives, their development and upbringing. She also argued that the impugned decisions had breached her right to respect for her private and family life, as guaranteed by Article 8 of the Convention. By a decision of 29 October 2014 the Presidium of the Moscow City Court upheld the judgment of 17 January 2014 and the decision of 14 April 2014, endorsing the reasoning of the lower courts. RELEVANT LEGAL FRAMEWORK AND PRACTICE Russian Family Code 51 . Article 54 of the Russian Family Code (“the Code”) provides that every child, that is a person under the age of eighteen, has the right to live and be brought up in a family, in so far as this is possible. He or she has the right to know his or her parents, to be cared for, and to live with his or her parents, except where this is contrary to his or her interests. A child also has the right to be brought up by his or her parents, to the protection of his or her interests, to full development, and to respect for his or her human dignity. 52 . Article 69 of the Code establishes that a parent may be deprived of parental authority if he or she avoids parental duties, such as the obligation to pay child maintenance; refuses to collect his or her child from a maternity hospital, or any other medical, educational, social or similar institution; abuses his or her parental authority; mistreats his or her child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse. 53 . By virtue of Article 71 of the Code, parents who have been deprived of their parental authority lose all rights based on their kinship with the child in respect of whom their parental authority has been withdrawn, as well as the right to receive child welfare benefits and allowances paid by the State. 54 . Article 73 provides that a court may decide, in the interests of the child, to remove him or her from his or her parents (or one of them) without depriving them of their parental authority (restriction of parental authority). Parental authority is restricted when leaving the child with his or her parents (or one of them) is deemed dangerous for the child due to circumstances beyond the control of the parents (or one of them), such as mental illness or other chronic disease, or a combination of difficult circumstances. It is also possible to restrict parental authority in cases where leaving a child with his or her parents (or one of them) would be dangerous for the child on account of their behaviour, but sufficient grounds for depriving the parents (or one of them) of their parental authority have not been established. If the parents (or one of them) do not change their behaviour, the custody and guardianship authority is under an obligation to apply for the parents to be deprived of their parental authority within six months of the court decision restricting parental authority. Acting in the interests of the child, the authority may lodge the application before that deadline. Supreme Court of Russia In its ruling no. 10 on courts’ application of legislation when resolving disputes concerning the upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular: “... Only in the event of their guilty conduct may parents be deprived of their parental authority by a court on the grounds established in Article 69 of the [Russian Family Code]. Avoidance by parents of their parental duties in relation to their children’s upbringing may manifest itself in [such parents’] failure to take care of [the children’s] moral and physical development, education, [and] preparation for socially useful activities. ... Chronic alcohol or drug abuse should be confirmed by a relevant medical report ... ... Persons who do not fulfil their parental obligations as a result of a combination of adverse circumstances or on other grounds beyond their control (for instance, [where the person has] a psychiatric or other chronic disease ...) cannot be deprived of their parental authority. ... Courts should keep in mind that deprivation of parental authority is a measure of last resort. Exceptionally, where a parent’s guilty conduct has been proved, a court, with due regard to [that parent’s] conduct, personality and other specific circumstances, may reject an action for [him or her] to be deprived of his or her parental authority and urge [him or her] to alter [his or her] attitude towards bringing up [his or her] children, entrusting [a competent] custody and guardianship agency with monitoring whether [that parent] duly performs [his or her] parental duties.” | [
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81,593 | P1-1 | The applicants’ details, as well as the names of their legal representatives before the Court, are indicated in the appendix. The Government were represented by their Agents, Ms Stancheva ‑ Chinova and Ms A. Panova of the Ministry of Justice. The facts of the case may be summarised as follows. Application n o . 265/17 – Yordanov v . <COUNTRY> 5 . In 2008 the applicant – by himself or through a company wholly controlled by him – bought plots of land in <COUNTRY> considered to be worth about 496,000 levs (BGN), the equivalent of about 254,000 euros (EUR). Since the Bulgarian tax authorities had no information about income received by him in the preceding years they inquired about his financial situation. In response the applicant presented the tax authorities with customs declarations showing that between 2005 and 2008 he had brought EUR 345,000 into <COUNTRY>. In response to a further enquiry as to the origin of the money, the applicant explained that he had received income in <COUNTRY>, where he predominantly resided, and presented numerous documents to support that assertion. Several of those documents, namely contracts whereby other people had agreed to pay him for different services, turned out to have been forged. It was also established at that stage that the applicant had never declared income in <COUNTRY> and had never paid income tax there. 6 . The applicant was subsequently charged with evading the payment of income tax amounting to about BGN 90,000 (EUR 46,000) on the sum he had brought into <COUNTRY>, and with the use of forged documents. He was convicted as charged by a judgment of the Targovishte Regional Court of 20 November 2012. As he had in the meantime paid the tax due, he was relieved of criminal liability and ordered to pay a fine of BGN 4,000 (EUR 2,046). 7 . In 2013 the Commission for the Forfeiture of Unlawfully Acquired Assets (hereinafter “the Commission”) opened proceedings under the Forfeiture of Unlawfully Acquired Assets Act 2012 (hereinafter “the 2012 Act”, see paragraphs 28 et seq . below) against the applicant, his wife and the company owned by him, which had acquired some of the plots of land. The Commission investigated their income and expenses between 2003 and 2013, and in March 2014 introduced a forfeiture application in the courts. It sought the forfeiture of a flat, several vehicles, sums of money in the defendants’ bank accounts, the value of shares in companies owned by the defendants, as well as the plots of land owned by them and the monetary equivalent of other plots of land which had been resold in the meantime to third parties. 8 . The forfeiture application was allowed by the national courts – specifically by a judgment of the Targovishte Regional Court of 26 June 2015, a judgment of the Varna Court of Appeal of 10 February 2016, and a final decision of the Supreme Court of Cassation (hereinafter “the Supreme Court”) of 23 June 2016 refusing leave to appeal on points of law. The courts ordered in particular the forfeiture of assets owned by the applicant worth BGN 37,212 (EUR 19,034), and of assets jointly owned by the applicant and his wife valued at BGN 53,013 (EUR 27,116); the remaining forfeited assets belonged to the applicant’s company, which is not itself an applicant in the present proceedings. 9 . The courts referred to information sent by the Belgian authorities under a mutual legal assistance procedure. According to that information, the applicant was being investigated in <COUNTRY> for offences allegedly committed in February 2011, namely human trafficking with the aim of labour exploitation, black market trade and breaches of employment law. He was additionally suspected of money laundering and breaches of the tax legislation, committed on unspecified dates. In particular, the applicant had brought Bulgarian workers to <COUNTRY>, who had then worked there for companies owned by him without employment contracts. In that way the applicant had allegedly gained more than EUR 1,150,000, which he had never declared as income in <COUNTRY>. The applicant had admitted in 2011 that he had used revenue from his companies in <COUNTRY> to cover his daily expenses, to finance a political party, and to acquire vehicles and immoveable property in <COUNTRY>. 10 . However, the Bulgarian courts pointed out that there was no indication that the applicant had been formally charged or convicted in <COUNTRY>, and it was thus not proven that he had engaged in the unlawful activities described above. 11 . The applicant claimed in the forfeiture proceedings that between 1999 and 2007 his brother had gifted him sums of money totalling BGN 900,000 (EUR 460,000), but the only evidence presented in that regard was a statement by his brother, which proved neither the gifts themselves, nor the lawful provenance of the money. While the applicant mentioned that witnesses could testify to the actual handover of the money, he did not challenge the Targovishte Regional Court’s failure to order the examination of those witnesses, and did not raise the matter in his subsequent appeals. 12 . The applicant and his wife claimed in addition to have received remuneration as managers of the companies owned by them in <COUNTRY>, as well as dividends. Once again, those claims were based on their statements and on statements of their companies and employees, and were not substantiated by further evidence, such as entries in the companies’ accounting books; nor had it been shown that the companies’ financial situation had permitted the payment of such sums. The applicant and his wife had submitted income tax declarations in <COUNTRY> and <COUNTRY> declaring substantial income for the period 2006-2013, but that had only been done in 2014, after the initiation of the forfeiture proceedings, and did not prove anything about the actual source of their income or its lawful origin. The applicant claimed also to have received rent for several vehicles owned by him, but had not proved that to be the case. In addition, while it was established that in 2008 the applicant and his wife had brought into <COUNTRY> EUR 345,000, allegedly obtained from economic activities in <COUNTRY>, documents establishing what could have been the lawful provenance of that sum had already been found to have been forged in the criminal proceedings against the applicant (see paragraph 5 above); the lawful origin of that money had therefore not been proven. Lastly, the information provided by the Belgian authorities (see paragraph 9 above) had disproved the applicant’s claims that he had received lawful income through his companies in <COUNTRY>. 13 . Accordingly, the courts concluded that during the period under examination the applicant and his wife had only had a small income from lawful sources, namely BGN 5,800 (the equivalent of EUR 2,966) received from the sale of a vehicle in 2005. 14 . At the same time, during the period under examination they had spent more than BGN 1,600,000 (EUR 818,000), a sum which included, among other things, their daily expenses (calculated on the basis of statistical data on average household expenses in <COUNTRY>) and the price of the assets acquired by them and the applicant’s company. 15 . Given their very low lawful income, the conclusion was drawn that all the assets subject to the forfeiture application had been unlawfully acquired, namely with income for which no lawful source had been shown. 16 . To the applicant’s objection that no link had been established between the offence he had been convicted of and the assets in respect of which forfeiture was being sought, the Varna Court of Appeal and the Supreme Court responded that no such link was required: under the 2012 Act, any finding of criminal activity was only the starting point enabling the Commission to initiate an investigation, while the preconditions for the actual forfeiture were “detached” from the criminal proceedings and their outcome. Application n o . 26473/18 – Bozadzhieva and Others v . <COUNTRY> 17 . By a judgment of the Razgrad Regional Court of 26 March 2014, which became final on an unspecified date, the first applicant, Ms Nevin Bozadzhieva, was convicted of two offences. First, despite having received between 2008 and 2013 through the Western Union and MoneyGram systems numerous payments from persons living abroad, totalling about EUR 163,000, she had failed to declare the income to the tax authorities, evading the payment of income tax for a total of BGN 52,317 (EUR 26,760). Second, between 2008 and 2011 the first applicant had fraudulently received BGN 2,300 (EUR 1,176) in child allowances when, given the income described above, she had not been entitled to receive it (the allowances had subsequently been restituted to the competent State body). During the trial the first applicant accepted the facts as alleged in the indictment and agreed to be convicted in summary proceedings. 18 . Since the offences fell within the scope of the 2012 Act, in 2014 the Commission opened proceedings against the first applicant, her husband (Mr Gyulver Hasan, “the second applicant”) and a company owned by him (Ruzh-Dil EOOD, “the third applicant”), in order to investigate their financial situation between 2004 and 2014. In 2015 it introduced a forfeiture application against them, seeking the forfeiture of the following assets: a flat in Razgrad and several plots of land, some of which with buildings constructed on them; sums of money received from the sale of other plots of land and a car; the value of the second applicant’s shares in the third applicant (a company) and monetary contributions to the company on his part; sums of money placed by the first and second applicants in numerous bank accounts; and a sum of money equalling the remainder of the EUR 163,000 received by the first applicant, that is to say minus the investments in the assets described above. According to the Commission, at the time of submission of the forfeiture application the total value of the assets in respect of which forfeiture was being sought was BGN 535,624 (about EUR 274,000). 19 . The applicants contested the forfeiture application, claiming that their assets had been lawfully acquired, that the authorities had to prove any unlawfulness, and that the Commission was applying wrongly the de facto presumption contained in section 1(2) of the 2012 Act (see paragraph 38 below). 20 . By a judgment of 19 October 2016 the Razgrad Regional Court dismissed the forfeiture application, finding that while the origins of the income of EUR 163,000 (received by the first applicant between 2008 and 2013) had not been established, that did not mean that it had been unlawful. 21 . However, on 24 February 2017 the Varna Court of Appeal reversed that decision and allowed the forfeiture application in its entirety. It noted that the salient issue before it was whether the money received by the first applicant from abroad – EUR 163,000 in total – could be considered to be of lawful origin, namely whether the applicants could establish a lawful ground for receiving it. The applicants claimed that the money had been from gifts on the occasion of marriages and other family celebrations, and from loans. However, the Varna Court of Appeal considered that those unsubstantiated claims were insufficient to prove the money’s lawful provenance; nor could the tax authorities’ finding that the money was taxable income prove such provenance. During the period under examination the first and second applicants had thus received revenue of about BGN 62,500 (EUR 32,000) of lawful provenance, namely from salaries, from the sale of different assets and in bank loans. During the same period, the applicants’ daily and extraordinary expenses had amounted to BGN 118,010 (EUR 60,360), while the value of the assets acquired by them was assessed at BGN 555,955 (EUR 284,000). All of the above meant that the discrepancy between their lawful income and their expenses amounted to BGN 681,117 (EUR 348,400). 24 . The above considerations meant that the preconditions for forfeiture had been met. 25 . In a final decision of 6 December 2017 the Supreme Court refused to accept for examination the applicants’ appeal on points of law. It reiterated that the 2012 Act did not require a link between the predicate offence and the assets to be forfeited because it was concerned with all unlawfully acquired assets and not necessarily with proceeds of crime. 26 . After the end of the forfeiture proceedings, three of the forfeited plots of land, with buildings on them, were put up for public sale and sold to third parties. The remaining assets have not been subject to enforcement measures. No part of the sums of money due has been collected from the applicants. RELEVANT LEGAL FRAMEWORK the 2012 Act Adoption of the 2012 Act 27 . The Forfeiture of Proceeds of Crime Act ( Закон за отнемане в полза на държавата на имущество, придобито от престъпна дейност , hereinafter “the 2005 Act”) was enacted in 2005. It provided for the forfeiture of proceeds of crime and thus required a conviction, as well as, in accordance with the practice of the national courts, a causal link between the offence committed and the assets to be forfeited. The relevant provisions of the 2005 Act have been described in more detail in Todorov and Others <COUNTRY> (nos. 50705/11 and 6 others, §§ 90-110, 13 July 2021). 28 . The 2005 Act was repealed in 2012 when the Forfeiture of Unlawfully Acquired Assets Act ( Закон за отнемане в полза на държавата на незаконно придобито имущество , hereinafter “the 2012 Act”) was enacted. The 2012 Act’s main novelty was that it provided for the forfeiture of “unlawful” assets and not necessarily proceeds of crime. The explanatory memorandum accompanying the Bill in Parliament explained the need for the 2012 Act as follows: “[The changes in <COUNTRY> in the 1990s] facilitated [the development of] organised criminal structures which opposed society’s democratic functioning and negatively influenced the social order, while imposing corrupt practices. The perception that these people were untouchable and unpunishable seriously eroded the sense of social justice and rule of law. Their assets are there for all in society to see as ‘unexplained wealth’ ... For the citizens, corruption is categorically the most important problem the country faces ... There is no doubt that we need an institutional approach against schemes and practices of corruption ... This Bill represents a decisive step towards the elimination of this deficit in anti ‑ corruption measures, [and is] aimed at the elimination of possibilities for organised crime to generate corruption of any kind. ... Forfeiture of assets of unestablished origin is considered in Europe and in the world to be an effective means to combat organised crime and corruption. ... In this way, and through guarantees for the rights of law-abiding citizens, we will be able to advance in our fight against criminality, depriving it of financial gain, which is one of the main reasons for its existence. Civil-law forfeiture is a different action for the protection of the common interest, distinguishable from criminal prosecution. What is decisive for civil-law forfeiture is not the commission of a criminal offence and the perpetrator’s guilt. The confiscation of assets is not a punishment for a guilty person, but a measure in the public interest. It has a preventive effect and makes the rule that ‘an offence should not enrich’ a reality.” 29 . The main deficiency of the 2005 Act was identified as the need to await the conclusion of the criminal proceedings against the defendant in order to proceed with the forfeiture application (see Todorov and Others , cited above, § 102). The fact of a criminal conviction being a prerequisite for a civil forfeiture claim was considered to frequently render the State interference “ineffective”. 30 . The Bulgarian Government have subsequently claimed, for example before the Committee of Ministers of the Council of Europe in the context of its supervision of the execution of the Court’s judgment in the case of Dimitrovi <COUNTRY> (no. 12655/09, 3 March 2015), that the 2012 Act’s aim was “to fight corruption and organised crime through enabling the State to recover assets derived from criminal activity or administrative violations” (see Action Report DH-DD(2017)740). 31 . In a judgment of 13 October 2012, the Bulgarian Constitutional Court found that the 2012 Act’s general approach was in accordance with the provisions of the Constitution guaranteeing the right to property ( Решение № 13 от 2012 г. на КС по к. д. № 6/2012 г. ). It held in particular the following: “What is subject to forfeiture are not assets acquired through lawful sources, but assets of unlawful origin ... The Act aims at countering the consequences of unjustified enrichment at the expense of other individuals or the society as a whole, that is to say enrichment resulting from activities which are forbidden.” The Constitutional Court gave examples of such forbidden activities – tax evasion, smuggling, corruption, trafficking in human beings or drugs, large ‑ scale thefts – pointing out however that forfeiture proceedings under the 2012 Act did not aim to establish the details of such activities. 32 . It considered furthermore that the 2012 Act was sufficiently clear and its consequences foreseeable: “[It is not true that] the addressees of the [2012 Act] would not understand what behaviour is necessary to avoid the application of the Act to them – they must not enrich themselves with assets acquired through activities which are outside the law... If the sources of lawful enrichment are evident from the Constitution and the legislation, the failure to establish such sources, which in fact indicates their absence, leads to the logical conclusion that the enrichment of the defendants concerned has an unlawful provenance.” 33 . The Constitutional Court pointed out nevertheless that it was assessing the 2012 Act in the abstract, and that this did not relieve the competent State bodies from their obligation to make assessments and decisions in the light of the specific circumstances of each case. 34 . Lastly, the Constitutional Court considered the previous approach under the 2005 Act to be ineffective in some cases: “for instance, where the evidence shows explicitly that certain assets are of unlawful origin, but is at the same time insufficient for a conviction for an offence proven beyond reasonable doubt, as well as where a criminal prosecution is temporarily or permanently barred by an obstacle such as the death of the perpetrator, amnesty, the expiry of a limitation period for criminal prosecution, immunity, an objective impossibility of finding the perpetrator to ensure his participation in the criminal proceedings, mental disorder excluding criminal liability etc.” 35 . The body in charge of initiating and pursuing proceedings under the 2012 Act was the Commission for the Forfeiture of Unlawfully Acquired Assets (“the Commission”). 36 . The 2012 Act remained in force until 2018 when it was repealed with the adoption of the Counteraction Against Corruption and Forfeiture of Unlawfully Acquired Assets Act ( Закон за противодействие на корупцията и отнемане на незаконно придобито имущество , hereinafter “the 2018 Act”). The 2018 Act provides essentially for the same mechanism for the forfeiture of “unlawfully acquired assets”, namely assets “for which no lawful origin is established” (section 5(1)), and does not require a criminal conviction. 37 . The 2018 Act, together with other legislation, is currently deemed to transpose into Bulgarian law Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime (see paragraphs 59 ‑ 63 below). Substantive provisions 38 . The 2012 Act defined unlawfully acquired assets as “assets for which no lawful origin [was] established” (section 1(2)). The burden to prove the “lawfulness” of their assets was on the defendants ( Решение № 1 от 2017 г. на ВтАС по гр. д. № 254/2016 г. ; Решение № 85 от 2017 г. на ВнАС по в. гр. д. № 167/2017 г. ; Решение № 147 от 2019 г. на ВКС по гр. д. № 1998/2018 г. ; Определение № 103 от 2022 г. на ВКС по гр. д. № 3979/2021 г. ). That de facto presumption of unlawfulness of assets was considered by the Constitutional Court in its judgment of 13 October 2012 (see paragraph 31 above) to be justified, because it facilitated the establishment of the truth and represented “proportionate means to achieve the aim of the Act, which is in accordance with the Constitution”. 39 . The aim of the 2012 Act, as explained in section 3(1), was to “protect the common interest, by removing and restricting the possibilities for the unlawful acquisition and disposal of assets”. Under section 3(2) the Act had to be applied while respecting the rights of the persons affected and avoiding “any risk of unfairness”. 40 . Forfeiture could be sought after criminal charges had been brought against the defendant if they concerned the offences enumerated in section 22(1) of the 2012 Act. The list was largely the same as in section 3(1) of the 2005 Act (see, for more detail, Todorov and Others , cited above, § 95), with the addition of some corruption offences, offences against the tax and fiscal systems, and human trafficking. By section 22(2), forfeiture proceedings could also be opened where, owing to an amnesty, the expiry of a limitation period, the death of the defendant or his or her incapacitation, the defendant had not been formally charged, no criminal proceedings had been opened or the pending proceedings had been discontinued; a national court has applied that provision noting that there were “available data” that an offence might have still been committed ( Решение № 7 от 2020 г. на ОС-Пловдив по гр. д. № 1121/2017 г. ). 41 . Forfeiture proceedings could also be triggered where a final decision of the relevant authorities found that an administrative offence had been committed which had resulted in substantial profit – at least BGN 150,000 (EUR 76,700), lowered to BGN 100,000 (EUR 51,150) in 2016 – and where such profit could not be recovered by the State by other means. 42 . The Commission had to establish a “significant discrepancy” between the defendant’s revenue and the value of the assets acquired, namely in the amount of at least BGN 250,000, the equivalent of EUR 128,000 (reduced to BGN 150,000, or EUR 76,700, in 2016) for the whole period under examination. Any asset was to be assessed for that purpose taking into account its actual market value at the moment of its acquisition or disposal. The Constitutional Court noted in its judgment of 13 October 2012 (see paragraph 31 above) that what had to be established was the defendant’s assets at the beginning and at the end of the period under examination, any increase of these assets from lawful sources, as well as the defendant’s expenses. 43 . Under the 2012 Act “unlawfully acquired assets” were subject to forfeiture (section 62). Specifically, the national courts had to compare the defendant’s “net income” – the overall income reduced by the daily expenses and extraordinary expenses such as the payment of taxes – and the value of the assets acquired during the period under examination. 44 . Section 1 of the supplementary provisions of the 2012 Act contained a non-exhaustive list of lawful sources of income – such as remuneration under a labour contract; net profit from economic activity, dividends and interest; rent from properties acquired with lawful income; lottery and gambling winnings; sums received from the sale of properties acquired with lawful income; and court awards. 45 . “Unlawfully acquired assets” for the purposes of the Act could include assets acquired by the defendant’s spouse or minor children, as well as assets acquired unlawfully by a legal entity under the defendant’s control (sections 63 and 66). 46 . The State’s right to confiscate or seek the forfeiture of an asset expired ten years after the asset had been acquired (section 73 of the 2012 Act). Interpretative Decision no. 4 of 7 December 2018 47 . As forfeiture proceedings under the 2012 Act could be opened after charges had been brought against the defendant, and did not need to await a conviction by the criminal courts (see paragraph 40 above), the practice of the national courts initially varied as to whether the forfeiture could still be pursued in cases where the criminal proceedings had been discontinued after the initiation of forfeiture proceedings on a ground not among those enumerated in section 22(2) of the Act (see paragraph 40 above), including where the criminal proceedings had resulted in an acquittal. 48 . The matter was settled in a binding interpretative decision of the Supreme Court – Interpretative Decision no. 4 of 7 December 2018 ( Тълкувателно решение № 4 от 2018 г. по тълк. д. № 4/2016 г, ОСГК ). The Supreme Court held that the discontinuance of the criminal proceedings on a ground outside of those enumerated in section 22(2) represented an absolute procedural bar to forfeiture. That was so because, in order to remain a proportionate interference with the right to property, forfeiture could only be sought under the 2012 Act against people meeting the requirements which had allowed for such proceedings to be initiated. Holding otherwise would mean that “the law [did] not provide for a link between the commission of crimes and the possibility to seek forfeiture”. The Supreme Court considered significant the fact that the Government had claimed, for instance before the Committee of Ministers of the Council of Europe, that the 2012 Act aimed to aid the fight against corruption and organised crime (see paragraph 30 above). 49 . The Supreme Court noted furthermore that Directive 2014/42/EU of the European Union on the freezing and confiscation of instrumentalities and proceeds of crime (see paragraphs 59-63 below) provided for minimum standards guaranteeing the rights of the individuals affected, such as that there should be a criminal conviction. Accepting that the national courts could order forfeiture under the 2012 Act even where there was no conviction would mean the abandonment of those guarantees. 50 . On 10 December 2018, three days after the adoption of the above Interpretative Decision, a Member of Parliament introduced a Bill to amend the 2018 Act (see paragraph 36 above). The Bill, which was passed on 20 December 2018, provided that: (1) the discontinuance of the criminal proceedings against defendants in forfeiture proceedings, including as a result of acquittal, would not preclude the State’s right to seek forfeiture (section 153(6) of the 2018 Act), and (2) the above rule would also apply to pending forfeiture proceedings under the 2012 Act (section 5(2) of the concluding and transitional provisions of the 2018 Act). 51 . The amendments above were justified by the contention that this had been “the actual intent of the legislator” when adopting the 2012 Act. Procedure 52 . Once it was notified by other competent bodies that there were grounds on which to open forfeiture proceedings, the Commission would open an investigation in one of its regional offices in order to establish the assets, income and expenses of the person under investigation. At that stage it could seek the imposition of injunctions and other interim measures. After the imposition of such measures, the Commission was obliged to disclose to the individuals under investigation the evidence it had collected, and to give them an opportunity to comment or to present further evidence. On the basis of the findings of its investigation the Commission would take a decision at that point to discontinue the proceedings or to bring a forfeiture application. 53 . A forfeiture application was examined by the courts in a public hearing under the rules of civil procedure and before courts at up to three levels of jurisdiction. 54 . The forfeited assets could be used by the State to compensate victims of the offence perpetrated by the defendant if his or her remaining assets were insufficient to do so (section 90a of the 2012 Act). 55 . The State was liable for any damage caused through unlawful decisions or actions of its bodies under the 2012 Act (section 91). The Code of civil procedure 56 . Article 303 § 1 (7) of the Code provides that an interested party may request the reopening of civil proceedings in a case where a “judgment of the European Court of Human Rights has found a violation of the [Convention]” and “a new examination of the case is required in order to repair the consequences of the violation”. 57 . Under Article 309 § 2, read in conjunction with Article 245 § 3 of the Code, if an application to reopen a case has been granted and the claim initially allowed is ultimately dismissed, the court hearing the reopened case is to order the reimbursement of any expenses paid by the initial losing party. Relevant international and European union law Relevant international materials have been summarised in G.E.S.R.and Others <COUNTRY> ([GC], nos. 1828/06 and 2 others, §§ 139 ‑ 53, 28 June 2018) and Todorov and Others (cited above, §§ 116-20). 59 . As to European law, Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union establishes “minimum rules on the freezing of property with a view to possible subsequent confiscation and on the confiscation of property in criminal matters” (Article 1 § 1 of the Directive). 60 . Article 4 of the Directive, entitled “Confiscation”, provides in paragraph 1: “Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence ...” 61 . Article 5 § 1 of the Directive provides in addition for so-called “extended confiscation” in the following manner: “Member States shall adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.” 62 . Article 8 of the Directive provides, among other things: “In proceedings referred to in Article 5, the affected person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct.” 63 . Recitals 15, 20 and 21 contain further clarifications: “(15) Subject to a final conviction for a criminal offence, it should be possible to confiscate instrumentalities and proceeds of crime, or property the value of which corresponds to such instrumentalities or proceeds. ... (20) When determining whether a criminal offence is liable to give rise to economic benefit, Member States may take into account the modus operandi, for example if a condition of the offence is that it was committed in the context of organised crime or with the intention of generating regular profits from criminal offences. However, this should not, in general, prejudice the possibility to resort to extended confiscation. (21) Extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct. This does not mean that it must be established that the property in question is derived from criminal conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to his lawful income could be among those facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which the property could be deemed to have originated from criminal conduct.” 64 . On 28 October 2021 the Court of Justice of the European Union (“the CJEU”) gave a judgment concerning the 2018 Act (which replaced the 2012 Act, providing essentially for the same forfeiture mechanism – see paragraph 36 above), following a request for a preliminary ruling (see Komisia za protivodeystvie na koruptsiyata i za otnemane na nezakonno pridobitoto imushtestvo , C ‑ 319/19, EU:C:2021:883). The questions raised concerned the compatibility of the 2018 Act with the requirements of Directive 2014/At the domestic level, Z.had been charged with abuse of office. The criminal proceedings against her remained pending. In the meantime, the Commission had introduced a forfeiture application against her, her husband and a company, considering that there had been a significant discrepancy between their assets and income. The matter had been referred to the CJEU by the first-instance Sofia City Court, which had been concerned that the 2018 Act might not provide for the minimum procedural safeguards required by the Directive. 66 . The CJEU held in particular the following (citations omitted): “[G]iven the objectives and the wording of the provisions of Directive 2014/42 and the context in which it was adopted, it must be held that that directive ... is an act aimed at obliging Member States to establish common minimum rules for confiscation of crime-related instrumentalities and proceeds, in order to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings. Directive 2014/42 does not therefore govern the confiscation of instrumentalities and proceeds resulting from illegal activities that is ordered by a court in a Member State in the context of or following proceedings that do not concern the finding of one or more criminal offences. Such confiscation falls outside the scope, in fact, of the minimum rules laid down by that directive, in accordance with Article 1(1) thereof, and the rules governing it fall within the scope of the power of the Member States, referred to in recital 22 of that directive, to provide more extensive powers in their national law. In the present case, it appears that the confiscation proceedings pending before the referring court are civil in nature and that those proceedings coexist, in national law, with the regime for confiscation under criminal law. It is true that, pursuant to Article 22(1) of the [2018 Act], such proceedings are initiated by the [Commission] where the latter is informed of the fact that a person is accused of having committed certain criminal offences. However, it is clear from the evidence in the file before the Court that, in accordance with the provisions of that law, once commenced, those proceedings, which only concern assets alleged to have been illegally obtained, are conducted independently of any criminal proceedings brought against the person accused of committing the offences at issue, and of the outcome of such proceedings, and, in particular, of the possible conviction of that person. In those circumstances, it must be held that the decision which the referring court is called upon to adopt in the main proceedings does not fall within the context of, or follow on from, proceedings relating to one or more criminal offences. Furthermore, the confiscation that that court might order following the examination of the request before it does not depend on a criminal conviction of the person concerned. Any such measure does not therefore fall within the scope of application of Directive 2014/... Having regard to the foregoing considerations, ... Directive 2014/42 must be interpreted as not applying to legislation of a Member State which provides that confiscation of illegally obtained assets is to be ordered by a national court in the context of or following proceedings which do not relate to a finding of one or more criminal offences.” | Bulgaria, Italy, Belgium | [
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75,462 | 8 | The applicants, a mother and daughter, were born in 1976 and 2006 respectively and live in Nakhodka, Primorye Region, Russia. The applicants, who had been granted legal aid, were represented by Mr A.N. Laptev, a lawyer practising in Moscow. The Government were represented by Mr Galperin, Representative of the <COUNTRY> to the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUMSTANCES OF THE CASE Background information On 28 April 2001 the first applicant married a Ukrainian national, A.S. The couple settled in Donetsk, <COUNTRY>. On 5 December 2006 their daughter, the second applicant, was born. After the birth of the second applicant, relations between the first applicant and A.S. deteriorated, and in 2011 the first applicant left him and the second applicant. She moved to Nakhodka, Primorye Region, in the far east of Russia. The second applicant remained in Donetsk with her father. The applicants maintained contact with each other by telephone and Skype. On 5 March 2012 the first applicant applied to the Primorye regional department of the Federal Migration Service of Russia (“the FMS”) for a temporary residence permit in Russia. On 23 April 2012 the FMS granted her request. On 13 September 2013 the first applicant applied to the FMS for a permanent residence permit in Russia. On 12 March 2014 the FMS granted her request and issued her with a residence permit valid until 12 March 2019. In April 2014 armed groups started to take control of State facilities in Donetsk Region and announced the creation of a self-proclaimed entity known as the “Donetsk People’s Republic” (the “DPR”). The situation escalated to an armed conflict between the Ukrainian authorities and the “DPR”. According to the first applicant, following the outbreak of hostilities in Donetsk Region and the proclamation of the “DPR”, with its centre in Donetsk, she attempted to move the second applicant to a safe place in Russia, but A.S. blocked her attempts. On 1 December 2015 the FMS issued a certificate attesting to the first applicant’s participation in the State Programme to Assist Voluntary Resettlement of Compatriots Living Abroad to the <COUNTRY>. The second applicant’s name featured in the “family members” column. In January 2016 the first applicant arrived in Donetsk and, without obtaining A.S.’s consent or informing him of her intentions, took the second applicant to Nakhodka, where she applied for Russian nationality for herself and the second applicant. In compliance with the requirements of Russian law, her application was accompanied by a document confirming that she had lodged a request with the competent Ukrainian authorities for renunciation of her and her daughter’s Ukrainian nationality. On 23 June 2016 the Primorye regional department of the Ministry of Internal Affairs granted the first applicant’s application. The applicants continue to live in Nakhodka. Meanwhile, on 20 March 2016 A.S. began renting a flat in Kramatorsk, a city some 100 kilometres south of Donetsk, situated outside the conflict zone. Proceedings in <COUNTRY> On 27 June 2012 the Budyonovskiy District Court of Donetsk dissolved the marriage between the first applicant and A.S. Both parents retained parental authority over the second applicant. On 20 May 2013 the Budyonovskiy District Court held that the second applicant should continue to live with her father and ordered the first applicant to pay him child maintenance. The judgment was not appealed against and became final on 7 July 2013. The first applicant lodged an application with the Budyonovskiy District Court, seeking an order that the second applicant live with her in Russia. On 2 June 2014 the Budyonovskiy District Court ordered that the second applicant continue to live with her father. According to the first applicant, at that time the Budyonovskiy District Court was under the control of the “DPR”. According to the Government, however, it was not until October 2014 that the Ukrainian judicial bodies stopped functioning in certain areas of Donetsk Region. The judgment was not appealed against and became final on 27 June 2014. According to the first applicant, she did not appeal against the judgment of 2 June 2014, because the Constitution of the “DPR” abolished Ukrainian judicial bodies on the territory of the “DPR”, including the Donetsk Regional Court of Appeal, which was replaced by the Supreme Court of the “DPR”. Proceedings in Russia 24 . On 23 March 2016 A.S. submitted an application for the second applicant’s return to <COUNTRY> under the Hague Convention (see paragraph 38 below), to which both Russia and <COUNTRY> are parties. The application was submitted to the Ukrainian Central Authority – the Ministry of Justice of <COUNTRY>, which transmitted it to its Russian counterpart. In the application, he gave his address as being in Kramatorsk. On 6 July 2016 A.S. lodged an application with the Tsentralniy District Court of Khabarovsk (“the District Court”), seeking the second applicant’s return to <COUNTRY> under the Hague Convention. He gave his address as being in Kramatorsk. 26 . In her objections, the first applicant argued that A.S. had not been effectively exercising his custody rights at the time of the second applicant’s removal, as the child had been living with her maternal grandparents and only occasionally with him. She further claimed that A.S. had neglected the child and mistreated her (by locking her up at home alone, preventing her from going for walks, applying physical force to her, feeding her a bad diet, humiliating her, buying her oversized clothes, and letting her drink beer and use the Internet so that she would not be in his way). The first applicant further argued that the child’s return to <COUNTRY> would put her physical and emotional well-being at risk in view of the ongoing military conflict in Donetsk. Furthermore, the child had already adapted to her new life in Russia and was not willing to go back to <COUNTRY>. The first applicant asked the District Court to examine the case in her absence. 27 . A.S. argued that the alleged reason for the first applicant’s removal of the child – Donetsk being part of the ongoing military conflict – was far ‑ fetched. It was two years after the outburst of hostilities in Donetsk Region that the first applicant had taken the child away. A.S. further alleged that no military actions had been ongoing in the part of Donetsk where he and the second applicant lived, which he confirmed by photographs and videos. At the time of her removal, the child had been in good health, which was confirmed by her medical records; she had been eating well and had never been subjected to physical force. At the hearing of 3 August 2016 A.S. was asked to specify whether he lived in Donetsk or Kramatorsk as indicated in his application. He explained that he lived in Donetsk, and that the address in Kramatorsk was his work address. In the course of the same hearing the prosecutor requested that the hearing be adjourned in order to set up a video link with the first applicant in Nakhodka and, if possible, to hear the child. The prosecutor’s request was granted and the new hearing was scheduled for 16 August 2016. The first applicant was asked to appear and to ensure, if possible, the second applicant’s appearance. On 16 August 2016 the District Court resumed the examination of the case. The first applicant participated in the hearing by video link from the Nakhodka Town Court. However, she did not ensure the appearance of the second applicant arguing that she feared for her child’s mental health. 31 . By a judgment of the same day, the District Court established the following facts. A.S., a Ukrainian national, and the first applicant, a Russian and Ukrainian national, were married from 28 April 2001 to 27 June 2012 and had their daughter, the second applicant, on 5 December 2006 in Donetsk, <COUNTRY>. Their daughter had dual nationality. She was born and lived in Donetsk, where she had her registered place of residence and where she attended school and medical facilities. All issues related to the child’s education and medical assistance were dealt with entirely by A.S. Before her removal to Russia, she was living with her father in Donetsk and had no other place of residence. On 20 May 2013 the Budyonovskiy District Court of Donetsk held that the second applicant should live with her father, and the first applicant was ordered to pay him child maintenance. On 2 June 2014 the same court again held that the second applicant should live with A.S., and the first applicant’s request for the court to determine the second applicant’s place of residence as being with her in Russia was dismissed. Contrary to the provisions of Ukrainian law (Articles 141 and 161 of the Family Code of <COUNTRY>) and the Hague Convention, the first applicant took the decision to change the second applicant’s habitual place of residence without A.S.’s consent, wrongfully taking the child from <COUNTRY> to Russia and retaining her there. No circumstances capable of constituting an exception under Articles 13 and 20 of the Hague Convention to the general obligation to secure the child’s return were detected by the District Court. The first applicant’s arguments that A.S. had not actually been exercising his custody rights at the time of the second applicant’s removal and had been mistreating and neglecting her were found to be unsupported and disproved by the evidence submitted by A.S. (certificates, receipts, photographs and videos). The first applicant’s arguments that there was a “grave risk” that the second applicant’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation owing to the military conflict ongoing in <COUNTRY> were also found to be unsupported by any objective and reliable evidence. The District Court considered that occasional military actions in various settlements in <COUNTRY> did not as such constitute an exception relating to a very serious risk of harm to the child. That risk was not individual to the child, but rather a general consequence of living in a conflict zone. Besides, although the military conflict had been ongoing in Donetsk since April 2014, it was not until 2016 that the first applicant took the second applicant to Russia. She did not provide the District Court with any evidence that the alleged risk could not be addressed by the competent Ukrainian authorities. Nor did she provide proof that the second applicant’s removal from her habitual place of residence was the only possible way of protecting her from the alleged risk. The District Court further refused to accept the first applicant’s argument about the child’s unwillingness to return to <COUNTRY>. It took into account a report on an inspection of the first applicant’s living conditions in Nakhodka prepared on 21 July 2016 by the chief inspector of the local childcare authority, which stated, amongst other things, that the second applicant was afraid to return to Donetsk because she feared gunfire and exploding bombs, and that she preferred to stay with the first applicant in Russia. The District Court considered, however, that the report in question was more relevant to the determination of the issue of the child’s residence, which was to be decided by the courts of her habitual place of residence. In view of the above, the District Court granted A.S.’s application and ordered the second applicant’s return to the place of her habitual residence in <COUNTRY> – Donetsk. The first applicant appealed, claiming that she had not been stripped of her parental authority or banned by any judicial decision from taking her daughter to Russia. She further indicated that the psychological climate at A.S.’s place of residence had not been favourable for the child and that military actions were being carried out in Donetsk, which would put the second applicant’s life and health at risk in the event of her return there. She further indicated that both herself and the child were Russian nationals and no longer had Ukrainian nationality, and that the child had been unwilling to return to her father. 33 . During the examination of the case on appeal A.S. submitted that he could ensure the second applicant’s safety upon her return to Donetsk, and could also move his home address as his work permitted him to do so. He further submitted that no military actions had been underway in Donetsk and that his flat in Donetsk was situated 25 km from the airport of Donetsk, which had been the scene of heavy fighting between separatist forces affiliated with the “DPR” and Ukrainian military in the period between September 2014 and January 2015. 34 . On 12 October 2016 the Khabarovsk Regional Court (“the Regional Court”) endorsed the reasoning of the judgment of 16 August 2016 and upheld it on appeal, following which it became enforceable. The Regional Court held, in particular, that the first applicant’s argument to the effect that the child’s return to her father in Donetsk would put her life and health at risk due to the military actions there had not been supported by admissible and relevant evidence. The first applicant’s request to participate in the appeal hearing by video link was rejected owing to a lack of technical equipment. On 5 May 2017 a judge of the Regional Court refused to refer the case for consideration by the Presidium of that court. On 29 September 2017 a judge of the Supreme Court of Russia refused to refer the case for consideration by its Civil Division. Meanwhile, on 7 March 2017 the applicants lodged their application before the Court. On 8 March 2017 the Court decided to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicants’ request to suspend the enforcement of the second applicant’s return to Donetsk was granted. RELEVANT INTERNATIONAL LAW AND PRACTICE The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 38 . The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and <COUNTRY> on 1 June 2012. It provides, in so far as relevant, as follows: Article 1 “The objects of the present Convention are – a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ...” Article 3 “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 8 “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. ...” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 14 “In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” Explanatory Report to the Hague Convention, Part II of the Guide to Good Practice under the Hague Convention For a summary of the relevant parts of the Explanatory Report to the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, and Part II of the Guide to Good Practice under the Hague Convention published by HCCH in 2003, see X <COUNTRY> ([GC] no. 27853/09, §§ 35-36, ECHR 2013). Part VI of the Guide to Good Practice under the Hague Convention – Article 13 (1) (b) of the Hague Convention 40 . Part VI of the Guide to Good Practice under the Hague Convention published by the HCCH in 2020, provides as follows: “The grave risk exception is based on “the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation. ... The term "grave" qualifies the risk and not the harm to the child. It indicates that the risk must be real and reach such a level of seriousness to be characterised as "grave". As for the level of harm, it must amount to an “intolerable situation”, that is, a situation that an individual child should not be expected to tolerate. The relative level of risk necessary to constitute a grave risk may vary, however, depending on the nature and seriousness of the potential harm to the child. The wording of Article 13(1)(b) also indicates that the exception is “forward ‑ looking” in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk. ... As a first step, the court should consider whether the assertions are of such a nature, and of sufficient detail and substance, that they could constitute a grave risk. Broad or general assertions are very unlikely to be sufficient. If it proceeds to the second step, the court determines whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return / information gathered, and by taking into account the evidence / information pertaining to protective measures available in the State of habitual residence. This means that even where the court determines that there is sufficient evidence or information demonstrating elements of potential harm or of an intolerable situation, it must nevertheless duly consider the circumstances as a whole, including whether adequate measures of protection are available or might need to be put in place to protect the child from the grave risk of such harm or intolerable situation, when evaluating whether the grave risk exception has been established. Once this evaluation is made: – where the court is not satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it orders the return of the child; – where the court is satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it is not bound to order the return of the child, which means that it is within the court’s discretion to order return of the child nonetheless. ... The grave risk analysis associated with the circumstances in the State of habitual residence must focus on the gravity of the political, economic or security situation and its impact on the individual child, and on whether the level of such impact is sufficient to engage the grave risk exception, rather than on the political, economic or security situation in the State generally. Assertions of a serious security, political or economic situation in the State of habitual residence are therefore generally not sufficient to trigger the grave risk exception. Similarly, (isolated) violent incidents in an unsettled political environment will typically not amount to grave risk. Even where the facts asserted are of such a nature that they could constitute a grave risk, the court must still determine whether protective measures could address the risk and, if so, the court would then be bound to order the return of the child. ... In line with the relevant laws and procedures and where it is deemed appropriate in evaluating assertions of grave risk, courts can seek additional information through Central Authorities in order to better understand the legal framework or child protection system in place in the State of habitual residence, or to clarify certain assertions of facts. Courts may be able also to ask specifically for available information regarding the social background of the child through the Central Authorities. ... As part of their responsibilities, Central Authorities also have a duty to cooperate with each other and to promote cooperation among internal authorities to secure the prompt return of the child (Art. 7(1)). In cases where the Article 13(1)(b) exception is raised, such cooperation may notably allow the Central Authorities to respond quickly to requests from the court to provide information on the availability of protective measures to protect the child from the grave risk, subject to the relevant laws. ...” Application and Implementation by <COUNTRY> of the Obligations under the Hague Convention on the Territory of “the DPR” 41 . On 16 October 2015 <COUNTRY> stated that its application and implementation of the obligations under the Hague Convention on the territory of the “DPR” was limited and not guaranteed as from 20 February 2014 onwards (accessible at: https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=974&disp=resdn ). | Latvia, Russian Federation, Ukraine | [
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63,829 | 3 | The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | [
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60,768 | 6, P1-1, 13 | They were municipal unitary enterprise employees working for “Troitsko-Pechorskoye ZhKKh” (« МУП «Троицко-Печерское ЖКХ», “the company”) in the Komi Republic. A. Available information on the company and management of its assets The company was set up in 2003 in accordance with a decision of Head of the Troitsko-Pechorskiy District (“the district administration”) as a commercial organisation performing the following activities, among others: renovation and maintenance of the municipal housing stock; heating and water supply to the district population and enterprises; maintenance of the sewage systems; maintenance services in respect of municipal housing and adjacent territories; and providing real estate registration services in the Troitsko-Pechorskiy District. In order to carry out its statutory activities, the company had “the right of economic control” ( право хозяйственного ведения ) over the assets allocated to it by the town administration (see Liseytseva and Maslov Russia , nos. 39483/05 and 40527/10, §§ 55-75, 9 October 2014 for further details on the company’s status). In 2004-2006 the district administration withdrew the company’s several assets, including “housing and objects of the engineering infrastructure” and transferred them to the municipal district treasury. B. Domestic judgments in the applicants’ favour On the dates tabulated in the Appendix below the Justice of the Peace of the Troitsko ‑ Pechorskiy Court Circuit of the Komi Republic by separate judgments and court writs ordered the company to pay the applicants salary arrears. On the dates listed in the Appendix the awards became enforceable. It appears from the parties’ observations of 2011 that Ms Lyubas (application no. 10742/09) obtained at least two other judgments in her favour which had been issued on 22 June and 2 November 2007 against the debtor enterprise. Between April 2007 and September 2008 some applicants received the amounts specified in the “enforcement status” column of the Appendix. The Government submitted, without further details, that Ms Lyubas was paid 56,021 Russian roubles pursuant to unspecified domestic judicial decisions in her favour. Ms Lyubas, interviewed in the domestic proceedings, maintained that the award of 21 December 2006 had not been paid to her. The company’s insolvency and accessory proceedings Insolvency proceedings and the prosecutor’s inquiries On 11 December 2006 the supervision procedure was put in place in respect of the company. On 14 May 2007 the Commercial Court of the Komi Republic declared the company insolvent and the liquidation proceedings commenc ed. At some point before 9 November 2007 the prosecutor’s office conducted an inquiry and, having analysed the manner of the assets’ withdrawal and transfer by the owner, concluded that the owner’s actions contained elements of deliberate bankruptcy. It appears that at some point the prosecutor’s office refused to open criminal proceedings on account of the alleged deliberate bankruptcy of the company. In November 2007 the prosecutor’s office also held an inquiry into the liquidator’s actions, found that she had acted in compliance with the domestic law and refused to bring administrative proceedings against her. Subsidiary liability and other proceedings brought by the liquidator During the insolvency proceedings the liquidator lodged numerous actions on the company’s behalf claiming, inter alia, unpaid communal charges from local population. The amount recovered proved insufficient to settle all creditors’ claims. At some point the liquidator lodged an action on the company’s behalf against the district administration under Article 56 § 3 (subsidiary liability) of the Civil Code of the <COUNTRY>. He argued that the insolvency of the company had been caused by the administration. He submitted that, as a result of a series of the asset transfers in 2004-2006, the company had become unable to meet the creditors’ claims and to continue to carry out its statutory goals. On 3 March 2010 the Federal Commercial Court of the Volgo ‑ Vyatskiy Circuit rejected the claim in the cassation instance, and on 12 July 2010 the Supreme Commercial Court refused to accept for examination a request for supervisory review of that judgment. The domestic courts at all instances accepted that the assets had indeed been transferred from the company’s economic control to the district treasury. However, they found no evidence that the insolvency had been caused by the owner’s actions. In particular, after the withdrawal of assets the company still had been able to meet the creditors’ claims. The housing and objects of the engineering infrastructure on 30 January 2006 had been withdrawn “in order to apply the housing policy” and to “reduce the company’s expenses for the maintenance of the infrastructure objects”. In particular, the Ministry of Architecture and Communal Services of the Komi Republic had recommended the municipalities to withdraw objects of housing and engineering infrastructure from unitary enterprises in order to optimise taxes of housing and communal services providers. Finally, even though at the insolvency stage the company proved unable to meet the creditors’ claims, the claimant had failed to demonstrate that the owner “knew or ought to have known that [the transfer of the assets] would have led to the company’s insolvency”. Decision to liquidate the company On 28 December 2011 the Commercial Court of the Komi Republic ordered the respondent company’s liquidation. Creditors’ claims which had not been satisfied during the liquidation procedure due to the debtor’s shortage of funds, including the applicant’s claims, were considered as settled. On the same date the liquidation was recorded in the Register of Legal Entities, and the company ceased to exist. The judgments in the applicants’ favour have remained unenforced either in full or in part, as indicated in a relevant part of the Appendix below. | Russian Federation | [
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65,731 | 6, P1-1 | The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | [
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78,207 | 8 | The applicants complained of the secret surveillance in the context of criminal proceedings. In application no. 18082/14, the applicant also raised other complaints under the provisions of the Convention. | [
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77,794 | 13, 8 | The applicant’s details and information relevant to the application are set out in the appended table. The applicant complained of having been subjected to permanent video surveillance in pre-trial detention facility and about unavailability of an effective domestic remedy in this respect. He also raised other complaints under the Convention. | [
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73,395 | 3, 11 | The first applicant (Mr Zakharov) was born in 1966. The second applicant (Ms Varzhabetyan) was born in 1945. They both live in Moscow. The applicants were represented by Mr S.A. Minenkov and Mr A.N. Laptev respectively, lawyers practising in Moscow. The Government were represented initially by Mr G. Matyushkin, the Representative of the <COUNTRY> to the European Court of Human Rights, and then by his successor in that office, Mr Galperin. The public assembly on 6 May 2012 and the applicants’ alleged ill-treatment The background facts relating to the planning, conduct and dispersal of the assembly at Bolotnaya Square are set out in more detail in the judgment of Frumkin Russia (no. 74568/12, §§ 7-65, 5 January 2016). The parties’ submissions directly relevant to the present case may be summarised as follows. Both applicants participated in the political rally on 6 May 2012. The first applicant was one of the organisers of the event. According to them, they neither violated public order nor resisted the police who were present at the assembly. However, during the dispersal of the meeting the police allegedly hit each of the applicants on the head with a rubber truncheon. 6 . The first applicant submitted photographs. One of the photographs shows some police officers aiming blows at the crowd with their rubber truncheons. The first applicant can be seen in that crowd. Another photograph shows the first applicant being pulled by two police officers. These photographs do not show the actual moment when the first applicant was allegedly attacked with a rubber truncheon. However, two other photographs show the applicant at the site of the events, with his face bleeding. According to the first applicant, having received a blow to the head, he lost consciousness. Other participants in the rally helped him obtain first aid treatment. Later on, the first applicant was taken to a hospital, and he was discharged from that hospital on the same day. He submitted a medical certificate of 6 May 2012 stating that he had been diagnosed with a contused wound of the frontal lobe. 7 . The second applicant provided links to YouTube videos showing the clashes between the police and the protesters. The videos indicate that the second applicant was surrounded by police officers when she fell and started screaming. The videos also show other participants in the assembly carrying the second applicant and shouting at the police officers, accusing them of hitting an elderly woman, referring to the second applicant. 8 . The second applicant also submitted a medical certificate stating that on 6 May 2012 an ambulance had been called for her to Bolotnaya Square. The certificate attested that she had sustained a head injury, and had had soft tissue bruises on the right side of her head and in the perineal region. Medical certificates of 7 May and 8 June 2012 stated that the applicant had had health problems as a result of the trauma she had experienced on 6 May 2012. Neither of the applicants was arrested or charged with any offence in connection with the events of 6 May 2012. Investigation into the alleged ill-treatment of the first applicant Request for a criminal investigation and refusal of that request 10 . On 23 June 2012 the first applicant asked the Investigation Committee to institute criminal proceedings on account of his alleged ill ‑ treatment during the dispersal of the public assembly. He enclosed the photographs and the medical certificate (see paragraph 6 above) with his application. The applicant’s request was joined to other requests concerning the alleged abuse of powers by the police officers on 6 May 2012. 11 . On 20 March 2013 the Zamoskvoretskiy branch of the Investigation Committee dismissed several individual complaints and two official enquiries concerning the allegedly unlawful acts of the police in dispersing the rally on 6 May 2012, including the excessive use of force and arbitrary arrests. In his decision, the investigator referred to, inter alia , the first applicant’s description of the incident and statements by other persons, including some of the police officers. He further noted that according to an internal inquiry which had been conducted in the aftermath of the events at Bolotnaya Square, a police officer had called the first applicant, inviting him to come to the police station to give further information and identify the police officer responsible for the attack. The report on the above-mentioned inquiry was dated 8 June 2012 and stated that the applicant had refused to attend the meeting, stating that he could not identify the police officer concerned. 12 . In the same decision, the investigator found that on 6 May 2012, in response to the breaking of a police cordon by some protesters, the police had started arresting persons who had been most actively involved in those acts. The investigator further concluded that the work of the officers who had been in charge of apprehending offenders had involved the use of force and special means of restraint, in so far as necessary, against persons who had been putting up resistance (see Frumkin , cited above, § 52). It was found that there were no elements of a crime in the acts of the police officers. The investigator did not examine the incident in respect of the first applicant, and his decision did not indicate that the first applicant had acted aggressively towards the police or shown any disobedience. The investigator’s decision confirmed that the applicant was not listed among the persons who had been apprehended that day. Complaints about the refusal to institute a criminal investigation The first applicant complained about the decision of 20 March 2013 to the prosecutor’s office and challenged it before the courts. He argued, in particular, that the investigator had not addressed his allegations and had made no attempt to identify the police officer concerned. The applicant claimed that by joining his application to those of others, the investigator had avoided assessing the particular incident of which he had complained. He also disputed what had allegedly been said during the telephone call in June 2012 (see paragraph 11 above). On 17 May 2013 the applicant was sent a reply from the prosecutor’s office which briefly stated that there were no grounds for setting aside the decision not to open a criminal case. On 16 August 2013 the Zamoskvoretskiy District Court of Moscow (“the District Court”) dismissed the applicant’s complaint in respect of the decision of 20 March 2013 not to open a criminal case. The court considered that the investigator had made a thorough evaluation of the acts of the police that had safeguarded public order during the mass event. The judge further noted that the fact that the applicant had been admitted to hospital on 6 May 2012 had been reported on the same day and had triggered an internal inquiry. The allegations regarding unlawful acts by the police in respect of the applicant had not been confirmed during that inquiry. On 20 August 2013 the District Court dismissed a judicial complaint by the applicant concerning the prosecutor’s reply of 17 May 2013. The court considered that the applicant’s constitutional rights had not been violated, as he had had the opportunity to lodge a judicial complaint in respect of the decision of 20 March 2013. The applicant appealed against the decision of 16 August 2013, arguing, in particular, that the investigator had not provided a thorough assessment of his arguments, and that the investigator’s conclusions were not based on the material of the pre-investigation inquiry. On 1 November 2013 the Moscow City Court upheld the decision of 16 August 2013. In reply to the arguments raised by the applicant, the court stated that, at the pre-trial stage, a court had no jurisdiction to rule on the credibility of information which an investigator had to check in accordance with Article 144 of the Code of Criminal Procedure. On 11 November 2013 the Moscow City Court upheld the decision of 20 August 2013. Investigation into the alleged ill-treatment of the second applicant Request for a criminal investigation and refusals in respect of that request 21 . On 29 October 2012 the second applicant asked for criminal proceedings to be instigated on account of her alleged ill-treatment by the police officers. As in the first applicant’s case, her request was joined to other requests concerning the alleged abuse of powers by the police officers on 6 May 2012. 22 . On 7 December 2012, 25 October 2013, 22 May 2014 and 21 January 2016 the investigator refused to open a criminal investigation, on the grounds that the acts of the police did not constitute a criminal offence. In his decisions, the investigator set out the second applicant’s arguments concerning the incident and, without analysing the particular circumstances of her case, came to literally the same conclusions as those made in the first applicant’s case (see paragraph 12 above). 23 . The decisions mentioned in the paragraph above were overruled by the prosecutor as premature and ill-founded on 23 October 2013, 25 April 2014, 27 November 2015 and 2 November 2016 respectively. Each time, the material in the case file was subjected to a further inquiry. On the last occasion the prosecutor noted in particular that during the next additional inquiry the investigator had to examine the DVD that the applicant had previously submitted. According to the second applicant, she was informed about the decisions not to open a criminal investigation following substantial delays; as regards the prosecutor’s decisions, on at least two occasions she learnt about those decisions during court proceedings, after she had challenged the decisions (see paragraph 24 below). Judicial complaints about the refusals to institute criminal proceedings 24 . On an unspecified date in 2013, and on 23 September 2015 and 23 September 2016 the second applicant challenged the decisions not to open a criminal investigation before the courts. On 25 October 2013 the District Court dismissed the applicant’s claim, finding that the decision not to institute a criminal investigation dated 7 December 2012 was lawful. On 30 November 2015 and 10 November 2016 the District Court dismissed the applicant’s claims, as the investigator’s decisions of 22 May 2014 and 21 January 2016 had been overruled by the prosecutor before the court hearings had taken place (see paragraph 23 above). It does not follow from the materials available before the Court that the second applicant appealed against these decisions of the District Court. Claim in respect of non-pecuniary damage on account of allegedly ineffective investigation 25 . On 21 June 2016 the second applicant claimed compensation for non-pecuniary damage allegedly caused by the investigating bodies that had dealt with her application and refused to institute a criminal investigation. She argued that considering her request jointly with those of others had been unlawful, and that the numerous remittals of the case for further inquiries revealed the deficiency of the work of the investigators. She further claimed that the failure to take the necessary measures to establish the circumstances of the incident had violated her rights and caused her psychological and physical suffering. On 28 November 2016 the Basmannyy District Court of Moscow rejected the applicant’s claim. The court found that the alleged defects in the work of the investigators had been remedied by the overruling of their decisions. The court further found that the applicant had provided no evidence indicating that the defendants’ acts had caused her any suffering and that they were at fault for the alleged negative consequences. On 30 March 2017 the Moscow City Court upheld the decision on appeal. 28 . On 10 October 2017 a judge of the Moscow City Court dismissed a cassation appeal by the applicant. RELEVANT LEGAL FRAMEWORK For a summary of the relevant domestic law provisions governing pre-investigation inquiries and judicial review of the decisions of investigating authorities not to open a criminal case, see Lyapin Russia (no. 46956/09, §§ 99-100, 24 July 2014). Section 20 of the Police Act (no. 3 of 7 February 2011, as in force at the material time) provided that police officers might use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who had committed such offences, and to overcome resistance to lawful orders if non-violent methods did not ensure compliance with responsibilities entrusted to the police. Section 21 of the Police Act laid down an exhaustive list of circumstances in which special means, including rubber truncheons, might be used. In particular, rubber truncheons might be used to repel an attack on civilians or police officers, to overcome resistance shown to a police officer, and to repress mass disorder and put an end to collective actions disrupting the operation of transport, means of communication and legal entities. The law prohibited, inter alia , hitting a person on the head with a rubber truncheon. Section 22 of the Police Act further stated that the use of special means to suppress an unlawful, but peaceful manifestation that did not disrupt the operation of transport, means of communication and legal entities was prohibited. For relevant international material on freedom of peaceful assembly, including guidelines on policing public assemblies see Frumkin (cited above, § 80). | Russian Federation | [
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63,487 | 5 | On 22 April 2008 the applicant was arrested on suspicion of drug dealing and was placed in pre-trial detention on the ground that he was suspected of committing a serious offence, was a foreign national, had no permanent place of residence in Perm, no job, no income, he could abscond and commit crimes. On 18 June 2008 the Permskiy District Court of the Perm Region extended his pre-trial detention on the same grounds. On 5 August 2008 the Permskiy District Court issued the first conviction which was quashed by the Perm Regional Court on 14 October 2008. The court held that the applicant should remain in detention without indicating any reasons. By decisions of 1 November 2008 and 18 March 2009, as upheld on appeal, the Permskiy District Court extended the applicant’s pre-trial detention reiterating its earlier reasoning and stating that he could interfere with the investigation and put pressure on witnesses. On 20 May 2010 the District Court issued a new conviction. On 14 December 2010 the Perm Regional Court quashed this conviction. The applicant remained in detention. On 26 May 2011 the Perm Regional Court convicted the applicant of drug dealing and smuggling and sentenced him to 10 years’ imprisonment. On 25 October 2011 the Supreme Court of Russia commuted the sentence to 8 years’ imprisonment. | [
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71,711 | 6 | The applicant was born in 1953 and lives in Izhevsk. Domestic judgments in the applicant’s favour 5 . On 15 September 2006 and 7 May 2007 by two separate judgments the Industrialnyy District Court of Izhevsk (“the Distict Court”) ordered the municipal institution MU “Gorodskoye zhilishchnoye upravleniye” ( МУ “Городское жилищное управление – Управляющая компания в жилищно-коммунальном хозяйстве г. Ижевска” , “the company”) to perform certain works within the adjacent territory and in respect of the house where the applicant lived. Each judgment contained a list of the specific works. The District Court did not address the question of responsibility of another defendant in these civil cases, e. the administration of town of Izhevsk. The judgments came into force on 9 October 2006 and 21 June 2007 respectively. On 22 October 2007 the District Court issued another judgment in the applicant’s favour ordering the company to conduct certain major repairs in the house where the applicant lived. By its additional judgment of 27 December 2007 the District Court extended the list of those repairs. 7 . The operative part of both judgments concerning the major repairs read that if the company lacked the necessary funding, the works had to be performed at the expense of the town of Izhevsk. The decisions came into force on 19 March 2008. Enforcement of the judgments in the applicant’s favour On various dates enforcement proceedings were initiated in respect of the judgments. 9 . On 7 November 2013 the District Court established non-enforcement of judgments of 15 September 2006 and of 7 May 2007, and granted the applicant’s claim to impose vicarious liability for all of the obligations under those judgments on the town administration. 10 . On 24 December 2014 the Supreme Court of the Udmurtiya Republic changed the mode of enforcement of the judgment of 22 October 2007 in the part concerning installation of a heat meter. Having acknowledged a lack of enforcement of the initial judgment, the court allowed the applicant to install the meter herself and later recover the cost of such installation from the town. On 9 February 2017 the town administration sent a letter to the bailiffs’ service department responsible for the enforcement of the judgment concerning major repairs asking it to terminate the proceedings as the judgment had been fully executed. A number of documents confirming the performance of works were enclosed with the letter. On 28 April 2017 having examined the above-mentioned documents, the bailiff in charge terminated the enforcement proceedings in respect of the judgment of 22 October 2007. On 19 July 2017 the senior bailiff overturned the decision to terminate the enforcement proceedings. She found, in particular, that the documents available in the case file did not confirm full enforcement of the judgment. 14 . On an unspecified date the applicant complained to the senior bailiff about ineffective work by the bailiff responsible for enforcement of the judgments of 7 November 2013 and of 22 October 2007. 15 . On 24 July 2017 the senior bailiff rejected the applicant’s complaint. It follows from the text of the relevant ruling that all the judgments remained unenforced and the enforcement proceedings were still pending. However, the bailiffs’ work was satisfactory. Available information on the company and its liquidation The company was instituted by the administration of the town of Izhevsk (“the town administration”) with the aim to manage maintenance and use of housing in Izhevsk. On 19 August 2011 the town administration decided to reorganise the company into an autonomous municipal institution. On 10 August 2012 the town administration initiated liquidation of the company. | [
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62,034 | 8 | A. Background of the case In September 2006 the applicant began living with A.A. On 24 June 2007 she gave birth to a son, A.-In September 2007 relations between the couple deteriorated and they separated. The child continued to live with the applicant. In August 2011 the applicant’s brother-in-law, A., asked the applicant’s permission to take the child for a couple of days to see his father, A.A., who was visiting from Moscow. The applicant agreed. The child was never returned to the applicant. A.A. took the boy to Moscow, and the applicant has not seen him since. She twice went to Moscow to find A.A., but in vain. B. Residence dispute On 30 September 2011 the applicant applied to the Oktyabrskiy District Court of Grozny (“the District Court”), seeking to determine the child’s place of residence as being with her. She also asked the court to order A.A. to pay child maintenance. On 24 October 2011 the District Court took a decision to leave the applicant’s claim without consideration owing to a failure by the parties to appear. The applicant went to the police, asking for their help to locate A.A. On 10 June 2012 the proceedings were resumed at the request of the applicant. A.A. lodged a counterclaim with the District Court, seeking to have the child’s place of residence to be determined as being with him. On 27 December 2012 the District Court decided that the child should live with his mother, the applicant, and that A.A. should pay the applicant child maintenance. A.A.’s application for a residence order was dismissed. A.A. appealed. On 7 May 2013 the Supreme Court of the Chechen Republic (“the Supreme Court”) upheld the judgment of 27 December 2012 on appeal. On 24 July 2013 the District Court clarified its judgment of 27 December 2012 and held that the operative part of the judgment should read as follows: “to remove the minor [child’s name], born on 24 June 2007, from [A.A.], residing at the address ..., and to hand him over to his mother P.A. Yusupova”. However, A.A. refused to comply with the judgment. On 12 August 2013 the District Court issued a writ of execution. Enforcement proceedings On 21 August 2013 bailiffs from the Inter-district Bailiffs Service of the Chechen Republic opened enforcement proceedings. It was established from A.A.’s mother that A.A. lived in Moscow. Consequently, the enforcement file was referred to the Golovinskiy District Bailiffs Service in Moscow. On 22 August 2013 a bailiff from the Golovinskiy District Bailiffs Service visited A.A.’s presumed place of residence in Moscow and established that A.A. and the child did not live there and were not registered there. The relevant report was drafted. On 5 September 2013 the bailiff received a statement from the owner of the above-mentioned flat, who stated that A.A. and the boy had left the flat in August 2013. The bailiff obtained further information that in 2013 the child had not attended his kindergarten in Moscow, kindergarten no. 615, and that there was no data about A.A. in the individual personalised tracking system of the Russian Pension Fund for Moscow and Moscow Region. On 9 December 2013 the enforcement file was returned to the bailiffs service in the Chechen Republic. On 25 March 2014 a bailiff from the Oktyabrskiy District Bailiffs Service of Grozny found that his counterparts in the Golovinskiy District Bailiffs Service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment of 27 December 2012. Namely, they had failed to inspect the premises and draw up the relevant act of inspection, to involve the local police in carrying out the enforcement measures, to question A.A.’s partner O.S., named as the child’s mother in his medical record, and to institute a search for A.A. and the child. On the same day the enforcement file was again referred to the Golovinskiy District Bailiffs Service in Moscow. In June 2014 the applicant enquired with the Golovinskiy District Bailiffs Service about the progress of the enforcement proceedings. She was informed about the referral of the enforcement file to the Oktyabrskiy Bailiffs Service in Grozny in December 2013. The applicant then contacted the Oktyabrskiy District Bailiffs Service of Grozny, which on 16 October 2014 informed her that they did not know the whereabouts of the enforcement file. At the request of the Oktyabrskiy Bailiffs Service, on 10 November 2014 the District Court issued it with a duplicate of the writ of execution of the judgment of 27 December 2012. On 10 February 2015 the applicant filed a court complaint about the inaction of the Oktyabrskiy District Bailiffs Service of Grozny. On 11 March 2015 the District Court held that between 21 August 2013 and 10 February 2015 no enforcement actions had been carried out by the Oktyabrskiy District Bailiffs Service of Grozny to enforce the judgment of 27 December 2012. The District Court further held that the inaction of the bailiffs service had led to an unjustifiably long delay in the enforcement of the judgment, which violated the applicant’s right to judicial protection, including her right to have the judgment enforced. It therefore found the bailiffs service’s inaction unlawful and ordered it to remedy the above violations. On an unspecified date after the above judgment the enforcement file was referred back to Moscow, where a search for A.A. and the child was instituted. On 26 August 2015 A.A.’s right to leave the country was temporarily restricted. On the same day the Bailiffs’ Service for Moscow Region was entrusted with carrying out enforcement actions in Moscow Region aimed at establishing A.A.’s and the child’s place of residence with A.A.’s partner O.S. Enquiries were sent to the Health and Education Departments of Moscow to trace the child. Two of A.A.’s presumed places of residence in Moscow, including the one visited in August 2013 (see paragraph 23 above), were visited. Nobody opened the door at the flats in question or at the neighbouring flats. 35 . On 5 October 2015 the enforcement file was referred to the inter ‑ district special enforcement unit of the Moscow Bailiffs’ Service (межрайонный отдел по особым исполнительным производствам неимущественного характера Управления Федеральной службы судебных приставов по Москве). It was established that the child was not attending a school in Moscow and that he was not attached to any public health-care structure in that city. However, on several occasions he had consulted doctors and received treatment in medical establishments there, most recently in June 2015. It was further established that between January and October 2015 A.A. had not made any payments using his bank cards and that he had not married. On 15 October and 21 December 2015 another two of A.A.’s presumed places of residence in Moscow were visited. It was established that A.A. had never lived at the first address. He had lived at the other address, but by that time the flat had been rented to someone else. On 18 December and 24 December 2015 a bailiff asked the Moscow Veshnyaki District Department of the Interior (ОМВД по району Вешняки ГУ МВД России г. Москвы) and the State Inspectorate for Road Safety in Moscow (УГИБДД ГУ МВД России по г. Москве) respectively for assistance in searching for the child and locating A.A.’s vehicle. On 30 December 2015 the bailiff ordered that A.A. be brought in by force. On 31 December 2015 the bailiff attempted to bring in A.A. by force by paying a visit to another of his presumed places of residence in Moscow. However, the door was opened by a Ms who explained that A.A. did not live at that address on a regular basis, that he rarely visited and that she did not know his whereabouts. On 14 January 2016 the bailiff sought the help of the joint stock company the Federal Passenger Company in order to obtain information about any railway travel by A.A. On 3 February 2016 it reported that A.A. had bought a train ticket from Nazran to Moscow for 30 April 2015. No tickets had been bought for the child. On 27 January 2016 Sberbank of Russia provided the bailiff with information on the movement of money in A.A.’s bank accounts, with information about the cash dispensers where withdrawals had been made. The search dossier was subsequently sent to the Department of the Federal Bailiffs Service for the Chechen Republic to establish the whereabouts of A.A. and the child and to obtain information from people residing at an address that had been indicated in Grozny. To the present date the domestic authorities do not know the whereabouts of A.A. and the child and the judgment of 27 December 2012 remains unenforced. The applicant’s attempt to have criminal proceedings instituted The applicant sought to have criminal proceedings instituted against her brother-in-law for the alleged abduction of the child, but without success. After several rounds of pre-investigation inquiries, the Investigations Department of the Leninskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings for lack of evidence of a crime. The most recent refusal, dated 26 July 2012, was set aside on 10 August 2015 and an additional pre-investigation inquiry was ordered. According to the applicant, she saw her son and A.A on 31 May 2012 while she was on her way to the Investigations Department. The applicant bent down to hug the boy. At that moment A.A. punched the applicant close to her left ear. She fell down, hitting her head on the pavement and lost consciousness. The applicant recovered in hospital and was subsequently diagnosed by a forensic medical expert as having a traumatic rupture of the left eardrum, intracranial hypertension syndrome, astheno-neurotic syndrome and bruising of the soft tissues of the left cheekbone. After several rounds of pre-investigation inquiries about the above incident, the Investigations Department of the Staropromyslovskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings against A.A. for lack of evidence of a crime. The most recent refusal, dated 23 October 2014, was set aside on 10 August 2015 and an additional pre ‑ investigation inquiry was ordered. No further information was made available to the Court regarding the outcome of the additional pre-investigation inquiries. | [
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73,806 | 3 | He was represented by Ms Trenina, Mr K. Zharinov and Ms E. Davidyan, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr Galperin, Representative of the <COUNTRY> to the European Court of Human Rights. In 2013 the applicant came to Russia from <COUNTRY>. In 2014 he was convicted of drug-related offences and sentenced to four years and six months’ imprisonment in a correctional colony in Lipetsk Region. 5 . On 13 July 2016 the Uzbek authorities accused the applicant, under Article 244 § 1 of the Criminal Code of <COUNTRY>, of participation in a banned extremist religious organisation and instituted criminal proceedings against him. In particular, the Uzbek authorities alleged: “... While serving his sentence in the correctional colony in Russia [the applicant] met [Mr R., who was also a detainee]...who encouraged [the applicant] to do khijrat [to relocate] to Syria and join Muslim groups that preached the way of jihad... [the applicant] was watching ... videos entitled “In search of paradise” that contained advice on establishing the Islamic State, messages by [Y.], a former “Amir” of this organisation and also Abduvali kori’s [imam’s] calls to khijrat ...” On 3 August 2016 a search warrant was issued in his name and on 7 August 2016 his detention was ordered in absentia. On 14 December 2017 the Uzbek authorities requested the applicant’s extradition from Russia. Decisions to declare the applicant’s stay in Russia undesirable by the Ministry of Justice, the Ministry of the Interior and the Federal Security Service On 30 March 2018 and 4 April 2018, respectively, the Ministry of Justice of Russia and the Ministry of the Interior of Russia ( Министерство внутренних дел ( МВД ) – hereinafter “the MVD”) declared the applicant’s presence in Russia undesirable. The applicant was notified of the first decision on 23 May 2018 and on 18 June 2018 a copy of that decision was sent to his lawyer, Mr Zharinov. On 6 July 2018 the applicant was notified of the second decision. Mr Zharinov was notified of the second decision at the end of July 2018 during the court proceedings. 8 . On 28 June 2018 the applicant himself challenged the decision of 30 March 2018 issued by the Ministry of Justice, in the Zamoskvoretskiy District Court of Moscow and also applied to the court for provisional measures and to stay his removal to <COUNTRY>. In his application he stated that pursuant to the provisions of domestic law, after a decision declaring an alien’s stay in Russia undesirable had been issued, it was sent to the migration authorities with a view to issuing a deportation order. He however, had not yet been served with a copy of the deportation order, which was likely to be issued shortly and would be enforceable immediately. Thus, he would not have an opportunity to appeal against it. At the end of July 2018, the applicant’s lawyer, in response to his request of 22 June 2018, received a letter from the Federal Security Service of Russia («ФСБ» – hereinafter “the FSB”) dated 5 July 2018, stating that the applicant’s stay in Russia had been declared undesirable and that he had been banned from entering Russia until 2037. A copy of that decision was not provided to the applicant’s lawyer as reportedly “it contained classified information”. On 28 January 2019 the Lipetsk Regional Court confirmed on appeal the judgment of the Sovetskiy District Court of Lipetsk issued on 30 October 2018, in which the court had dismissed the applicant’s complaint against the MVD and the FSB concerning the decisions issued by those agencies. On 20 February 2019 the Moscow City Court upheld the judgment of the Zamoskovretskiy District Court issued on 6 September 2018 refusing the applicant’s complaint against the Ministry of Justice concerning its decision in respect of the applicant. Proceedings for refugee status 12 . On 27 June 2018 the applicant requested refugee status in Russia. In his request he submitted, inter alia : “... In [<COUNTRY>] I have been charged with crimes against the State on the basis of religious extremism ... According to the bill of indictment, I was accused of watching banned [extremist] videos in a correctional colony [in Russia]. This is absurd because mobile telephones and the Internet are not allowed in detention... The only source of this information could be the testimony of other convicts who were serving their sentence in the [same correctional colony] and who are now at the hands of the Uzbek authorities. This means that the Uzbek authorities will also need my testimony because no other incriminating evidence can be obtained, given the nature of charges against me. ... In case of my return to [<COUNTRY>] I am facing arbitrary criminal prosecution in connection with crimes of religious extremism and I am at risk of cruel [and] degrading treatment during investigation and my trial will be unfair. They will torture me to obtain confession in crimes which I have not committed ...” The applicant also made extensive references to the reports of international human rights organisations and to the Court’s case-law in respect of forced returns of Uzbeks charged with religious extremism crimes. On 3 July 2018 the applicant was interviewed by a migration official in respect of his request. 15 . On 5 July 2018 the migration authorities refused to examine the merits of his application. In their decision they stated, in particular: “... in the questionnaire the applicant noted that the main reason[s] for his leaving [<COUNTRY>] were to search of employment and religious persecution... According to the applicant, in case of his return, he “will be tortured, the charges against him are fabricated, he has no links to religious extremism and terrorism ... ... [the applicant] came to Russia to for the purpose of work, he did not seek asylum at the border, and it appears that he did not need asylum at the time of crossing the border. The examination of [the applicant’s] case showed that he had not been involved in violent incidents, had not been a member of political, religious, military and public organisations, had not before sought refugee status in Russia. [The applicant] did not describe any facts of his persecution or threats by the Uzbek authorities on the basis of any of the above grounds. He replied in affirmative to the question of whether he had been searched for by the police or law enforcement authorities in any state. He could not provide any concrete examples of directs threats against him personally. [The applicant’s] case-file does not contain any proof of threats to his life in [<COUNTRY>]; [the applicant] does not provide any facts of violence committed against him against him. His claim that he would be subject to criminal prosecution cannot serve as a ground for granting him a refugee status.” 16 . On 30 July 2018 the Pravoberezhniy District Court of Lipetsk dismissed the applicant’s lawyers’ complaint against the refusal of the migration authorities to examine his request for refugee status on the merits. On 15 October 2018 the Lipetsk Regional Court upheld that judgment. Deportation of the applicant 18 . Between 20 June and 4 July 2018 the applicant’s lawyer in Lipetsk Region, Ms R., unsuccessfully requested to have a power of attorney issued in her name certified by the prison administration. Her requests were refused because the “presence of [the applicant] [was] required in the warden’s office” and “administration officials [were] not currently present”. She was able to have power of attorney certified only on 4 July 2018. 19 . On 5 July 2018 Ms R., requested a copy of the deportation order from the migration authorities in Lipetsk. They informed her orally that the decision to deport the applicant had been taken and that it would be served on him the following day – 6 July 2018. 20 . On 6 July 2018 Ms R. once again unsuccessfully tried to obtain a copy of a deportation order (see paragraph 31 below). 21 . On 6 July 2018 the Ministry of the Interior office in Lipetsk Region (hereinafter “the MVD of Lipetsk Region”) issued a deportation order in respect of the applicant. It referred to the decision of the Ministry of Justice on the undesirability of his stay in Russia. A copy of the deportation order was served on the applicant at the airport, shortly before his deportation. The applicant was deported the same day. 22 . According to the applicant’s lawyers, they could not contact the applicant on the day of his deportation and they were not aware of his whereabouts until 17 July 2018. 23 . On 10 July 2018 the applicant’s lawyer received a copy of a deportation order from the migration authorities. On 11 July 2018 the migration authorities in Lipetsk Region informed the applicant’s lawyer that the applicant had been deported late in the evening on 6 July 2018 from Domodedovo International Airport in Moscow. On 30 July 2018 the Pravoberezhniy District Court of Lipetsk rejected an application by the applicant’s lawyers to declare the deportation order unlawful and to order the MVD to annul it. On 15 October 2018 the Lipetsk Regional Court upheld that judgment. Requests by the applicant’s lawyer for the application of interim measures by the Court 26 . Between 28 June and 6 July 2018 the applicant’s lawyers submitted five requests for the application of the interim measures by the Court (on 28 and 29 June, 5 July and two requests on 6 July 2018). The first four requests were not accompanied by a copy of a deportation order in respect of the applicant, which would substantiate the applicant’s allegations and on the basis of which the Court would be able to indicate an application of the interim measure to Government. Only on 6 July 2018 the applicant’s lawyers explained that the migration authorities had refused to provide them with a copy of deportation order in respect of the applicant. The Court granted their request in the light of those submissions. Together with the requests under Rule 39 of the Rules of the Court, the applicant’s lawyers also submitted, in particular: (i) a copy of the applicant’s request of 27 June 2018 for refugee status; (ii) the appeal of 27 June 2018 against the decision declaring the applicant’s stay in Russia undesirable; (iii) the request of 27 June 2018 for application of provisional measures to the domestic court; (iv) Ms R.’s notification of 5 July 2018 to the migration authorities of the applicant’s pending request for refugee status and his appeal against the decision, pursuant to which his stay in Russia had been declared undesirable; (v) Ms R.’s report of 6 July 2018 on her conversations over the telephone and meetings in person with the migration officials on 5 and 6 July 2018. Events of 6 July 2018, the day of the applicant’s deportation The applicant’s version of events 28 . On 23 July 2018 the applicant’s lawyer in <COUNTRY>, Ms Rak., questioned him in the pre-trial detention facility. According to the statement obtained from the applicant, on 6 July 2018, upon his release from the correctional colony three men dressed in plain clothes met him. They made him acknowledge and sign an official refusal of his request for refugee status, while also cursing at him. They then handcuffed him and brought him to a car and he asked them to stop cursing as he was of the Muslim faith. They then pushed him into the car and started beating him, having put a black face mask with eye holes on the back on him. They started driving to the airport, in about an hour they stopped for a bathroom break and they took the mask off after he had told them he would stay calm. For the remaining two and a half hours, he was being driven without a mask but handcuffed. At about 10 a.they stopped near the forest, he was handcuffed to a tree, with one of the men guarding him while two others were resting in the car. For about six to eight hours he was standing like that, being bitten by mosquitos, and no food or drink was provided to him. After that, they started driving to different pharmacies in search of some medicines that the men needed to buy. After that for about two hours he sat in the automobile near the forest. When they came to the airport, the applicant was checked in for the flight, and taken to the plane where two other plain-clothed men speaking Uzbek met him. They did not introduce themselves. They handcuffed him, put a baggy face mask on him and took his belongings away. He could not see anything once on board but he heard there were other passengers and he was taken past them in handcuffs. When the plane started taxiing for takeoff, he asked to have the handcuffs taken off. Instead, he was taken to the back of the plane, where he was punched several times. He was told not to talk to anyone and not to look anywhere. In about thirty to fifty minutes, his mask was taken off, the meal was served and he ate for the first time that day. Then [the officers] searched his belongings and questioned him. The applicants’ lawyers also submitted a handwritten note from the applicant to Ms Trenina in which he asked her to inform the Court that he wished to maintain his application in respect of the complaints under Articles 3 and The note contained a brief account of his alleged treatment before deportation set out in paragraph 28 above. Application of interim measures by the Court On 6 July 2018, at about 8 p.Moscow time, the Court allowed the applicant’s lawyers’ request for application of interim measures and indicated to the Russian Government not to remove the applicant to <COUNTRY> before 17 July 2018. The Court also requested additional information from the Government to be submitted by midday Strasbourg time on 11 July 2018. Attempts of the applicant’s lawyers’ to prevent the applicant’s deportation 31 . The applicant’s lawyers submitted: “... On 6 July 2018, at about 10 a.the officers at the correctional colony informed [the applicant’s lawyer] that the applicant had been collected at around 5 a.by ‘law ‑ enforcement officers’ and ‘taken in an unknown direction’. In an unofficial conversation with [the applicant’s lawyer], they mentioned that these were FSB officers who had taken the applicant away. The migration officials informed [Ms R., the applicant’s lawyer,] that they were not under an obligation to immediately provide a copy of a deportation order in respect of the applicant and that they could just hand it to [the applicant] himself. They also explained that they were acting on the orders of their superiors who had instructed them not to make a copy of the deportation order available to [the applicant’s lawyer]. They said that [the applicant’s lawyer] would receive a written reply to her request within thirty days. On the evening of 6 July 2018 the Pravoberezhniy District Court of Lipetsk applied a provisional measure and suspended the applicant’s deportation order, having held that its ‘decision [was] enforceable immediately’. The examination of the case on the merits was scheduled on 23 July 2018 and then postponed to 30 July 2018 ... ... ... Starting [at] 40 p.the applicant’s lawyers informed ... the airport police units, the FSB of Russia and in Lipetsk Region, the migration authorities of Lipetsk Region and the office of [the MVD of Lipetsk Region] of [the provisional measure applied by the Pravoberezhniy District Court of Lipetsk]. At 03 p.the applicant’s lawyer was informed about [the] application of interim measures by the Court under Rule 39 of the Rules of the Court. The applicant’s lawyer immediately translated the letter of the Court and informed the airport police units, the FSB of Russia and Lipetsk region, the migration authorities of Lipetsk Region and the office of [the MVD of Lipetsk Region]. The applicant was deported on a 45 p.flight from Domodedovo Airport. ... ... [The lawyers] were not able to meet or have any contact with [the applicant] on 6 July 2018. The lawyers were not sure of his whereabouts or fate until 17 July 2018 when the migration authority responded with details and the time of the applicant’s deportation on [6 July 2018] ... The only response the applicant’s lawyers received in respect of the information [that provisional and interim measures had been applied by the national court and the Court, respectively], was a letter from the office of the FSB in Lipetsk Region of 25 July 2018, stating that they took notice of the information ...” 32 . On 6 July 2018 the Pravoberezhniy District Court of Lipetsk allowed the request of Ms R. and ordered the MVD of Lipetsk Region to suspend the deportation of the applicant, pending the examination of his appeal against the deportation order. The court ordered that a copy of its decision be sent to the MVD of Lipetsk Region and it ruled that the decision was “enforceable immediately”. In reply to the request of the Pravoberezhniy District Court of Lipetsk of 28 November 2018, the MVD of Lipetsk Region responded that the notification had been received on 6 July 2018 after the working hours and examined in substance on 9 July 2018. Government’s reply to the Court’s indication of interim measures On 11 July 2018 the Government, referring to the Court’s letter of 9 July 2018 informed the Court that the applicant had been removed to <COUNTRY> on 6 July 2018, that the time allocated by the Court for submission of additional information and documents was insufficient and that they would be provided on receipt from the competent State bodies. On 13 July 2018 in the light of the information received from the Government, the Court decided to discontinue the application of the interim measure in respect of the applicant and to lift anonymity granted to him. Other proceedings in connection with the applicant’s deportation On 25 July 2018 the office of the FSB in Lipetsk Region acknowledged receipt of the applicant’s lawyer’s request to suspend his deportation in view of the interim measure applied by the Court. 35 . On 25 July 2018 the applicant’s lawyers lodged a complaint (report of a crime) with the Russian Investigative Committee alleging the unlawful deportation of the applicant on 6 July 2018 and his ill-treatment during the transportation. They alleged, in particular, that the applicant had been driven in a face mask with eye holes on the back, punched and handcuffed to a tree for a prolonged period of time. In the letter of 12 October 2018 the MVD of Lipetsk Region replied that no physical force was used in respect of the applicant during his deportation. In the letter of 11 February 2019 the Lipetsk Region prosecutor’s office stated that the applicant’s deportation was carried out in accordance with the law, that the competent bodies had not been notified of any measures that would have prevented his deportation and that no facts were established that would have “indisputably demonstrated [a] violation of [the applicant’s] rights”. 36 . On 21 February 2019 the Lipetsk Office of the Russian Investigative Committee opened a pre-investigation inquiry in connection with the complaint concerning the alleged ill-treatment of the applicant. 37 . On 24 February 2019 the pre-investigation inquiry was extended until 23 March 2019, owing to the need to collect additional documents and carry out additional investigative steps. In particular, the investigator stated in his ruling to extend the pre-investigation inquiry that “explanations” in respect of circumstances described in the complaint of 25 July 2018 should be obtained from officers Mr P. and Ms of the MDV of Lipetsk Region and employees of the correctional colony IK-2 in Lipetsk Region; that the decisions of the courts concerning the applicant’s deportation and refugee status proceedings should be included in the material of the inquiry together with the replies to the investigative inquiries of the FSB border control service in Domodedovo airport and of the relevant State bodies in <COUNTRY>. 38 . No further updates concerning these proceedings have been provided to the Court as of the date of the examination of this case. | Russian Federation, Uzbekistan | [
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77,619 | 8 | The applicants were born in 1983 and 2011 respectively and live in St Petersburg. They were represented by Ms Kogan and Mr E. Wesselink from the Stichting Russian Justice Initiative , an NGO based in Moscow. The Government were initially represented by Mr Galperin, Representative of the <COUNTRY> to the European Court of Human Rights, and subsequently by Mr Vinogradov, his successor in that office . The facts of the case, as submitted by the parties, may be summarised as follows. Background of the case In 2005 the first applicant married A.Y. They established their residence in St Petersburg. On 16 March 2011 the first applicant gave birth to their son, the second applicant. In 2014 the marriage between the first applicant and A.Y. was dissolved. The second applicant remained in the first applicant’s care. Proceedings TO DETERMINE the second applicant’s place of residence In 2015 the first applicant lodged an application with the Kuybyshevskiy District Court of St Petersburg (“the District Court”) for a residence order in respect of the second applicant and a determination of the contact arrangements between him and A.Y. On 22 October 2015 A.Y. collected the second applicant from his kindergarten and refused to return him to the first applicant. He applied for a residence order in his favour. Interim residence order and ensuing enforcement proceedings 10 . On 14 January 2016 the District Court decided that, pending the outcome of the residence proceedings, the child should reside with his mother, the first applicant, and maintain contact with his father, A.Y. On 19 January 2016 the St Petersburg Inter-District Bailiffs Service opened enforcement proceedings in respect of the above-mentioned interim decision. On 2 February 2016 a search for the second applicant was launched within the enforcement proceedings. On 26 February and 26 April 2016 administrative fines in the amount of 2,000 Russian roubles (RUB) each were imposed on A.Y. for depriving the second applicant of contact with his mother. On 31 May 2016 A.Y. was warned that he had to hand the second applicant over to the first applicant. In the course of the search activities, the second applicant’s whereabouts were established. He was found to be living with A.Y. in the town of Shali in the Chechen Republic. On 29 March 2017 the enforcement proceedings were transferred to the Shali Inter-District Bailiffs Service. Having resumed the enforcement proceedings on 18 April 2017, a bailiff from the Shali Inter-District Bailiffs Service sent enquiries to various registration authorities and credit organisations and banned A.Y. from travelling outside the <COUNTRY>. On 15 August 2017 the enforcement proceedings were discontinued (see paragraph 20 below). Final residence order and ensuing enforcement proceedings 19 . On 22 September 2016 the District Court allowed the first applicant’s application and decided that the second applicant should reside with her. The court further determined the contact arrangements between A.Y. and the second applicant. A.Y.’s application for a residence order in respect of the second applicant was dismissed. 20 . On 13 February 2017 the St Petersburg City Court upheld the above judgment on appeal. On 4 April 2017 the District Court set aside the interim decision of 14 January 2016. On 11 July 2017 a bailiff from the St Petersburg Inter-District Bailiffs Service instituted enforcement proceedings in respect of the judgment of 22 September 2016. On 21 July 2017 the bailiff assigned a bailiff from the Shali Inter ‑ District Bailiffs Service to take the measures necessary for enforcement of the judgment of 22 September 2016. 24 . On 26 July 2017 bailiffs from the Shali Inter-District Bailiffs Service attempted to enforce the judgment of 22 September 2016, however, enforcement could not take place because the first applicant was absent. She had informed the bailiffs of her inability to attend by telegram (owing to insufficient notice of the enforcement measure). On 27 October 2017 the bailiff from the St Petersburg Inter-District Bailiffs Service transferred the enforcement proceedings to the Shali Inter ‑ District Bailiffs Service. 26 . On 28 December 2017 the bailiffs attempted to enforce the judgment, however, the first applicant was again absent (as she was being interviewed by the Investigative Committee of the Chechen Republic in the framework of the criminal proceedings instituted against A.Y. for failure to hand the child over to her). 27 . On 23 January 2018 another attempt was made by the bailiffs to hand the second applicant over to the first applicant, without success. The record of the enforcement attempt indicated that “the child refused to have close communication with the mother and remain alone with her”. The record also contained a handwritten note by the first applicant’s lawyer to the effect that the bailiff had asked the second applicant, in the presence of his father, whether he wished to live with the first applicant. It further contained a handwritten note by the first applicant to the effect that the enforcement attempt had been carried out without the participation of the childcare authority and that the second applicant had informed her that he was not residing at the address where enforcement had been attempted. Having discovered that A.Y. and the second applicant had been residing in Moscow Region, on 27 March 2018 the first applicant retrieved the writ of enforcement and, on the same date, the enforcement proceedings were discontinued. On 7 May 2018, following a request by the first applicant, enforcement proceedings were instituted by the Moscow Regional Bailiffs Service. 30 . On 14 May, 25 June and 29 June 2018 bailiffs from the Moscow Regional Bailiffs Service attempted to enforce the judgment, in the presence of the childcare authority and a psychologist. However, enforcement could not take place because the second applicant was in an emotional state and refused to communicate with the first applicant. According to an opinion drawn up by the psychologist on 15 May 2018, the second applicant was emotionally attached to A.Y., his second wife and his younger half-brother. His attitude to the first applicant was ambivalent. Psychological counselling was recommended to the first applicant with a view to restoring her and the second applicant’s parent ‑ child relationship and making a new attempt at enforcement in a month’s time. 32 . During a subsequent attempt at enforcement on 8 August 2018, the first applicant took the second applicant with her against his will. On 10 August 2018 the enforcement proceedings were discontinued. Further proceedings TO DETERMINE the second applicant’s place of residence Following an application by A.Y., on 7 February 2019 the Vidnoye Town Court of Moscow Region decided that the second applicant should reside with him and ordered the first applicant to hand the second applicant over to him. On 26 August 2019 the Moscow Regional Court (“the Regional Court”) upheld the judgment of 7 February 2019 on appeal. On 18 March 2020 the First Cassation Court of General Jurisdiction quashed the appeal decision of 26 August 2019 and remitted the case to the Regional Court for a fresh appeal. The Cassation Court noted that the Regional Court had disregarded the fact that the second applicant had only not been residing with the first applicant because A.Y. had persistently failed to comply with the District Court’s judgment of 22 September 2016. It further considered that there had been no new circumstances in the best interests of the second applicant allowing it to be decided that he should reside with A.Y. 37 . On 10 June 2020 the Regional Court quashed the judgment of 7 February 2019 and dismissed A.Y.’s application for a residence order in respect of the second applicant. The court noted that the second applicant had resided with A.Y. from autumn 2015 until August 2018 as A.Y. had been acting unlawfully by preventing all contact between the second applicant and his mother. It ruled that there had been no new circumstances warranting the applicants’ separation. Proceedings for compensation Meanwhile, on 13 June 2017 the first applicant brought proceedings against the Federal Bailiffs Service for compensation in respect of the non ‑ pecuniary damage caused to her by the bailiffs’ failure to secure enforcement of the interim residence order of 14 January 2016. 39 . On 6 September 2017 the Meshchanskiy District Court of Moscow allowed the first applicant’s claim, found the bailiffs’ inaction in the period between January 2016 to July 2017 unlawful and awarded her RUB 50,000 [1] in compensation for non-pecuniary damage. On 4 May 2018 the Moscow City Court upheld the above judgment on appeal. RELEVANT LEGAL FRAMEWORK For the relevant provisions of domestic law, see Pakhomova Russia (no. 22935/11, §§ 91-112, 24 October 2013). | Russian Federation | [
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59,295 | 8 | In April 2003 the applicant gave birth prematurely to twins at a maternity hospital in St Petersburg (“the maternity hospital”). The first twin died nine hours after her birth. The second twin, who was transferred to a resuscitation and intensive therapy unit at one of the St Petersburg children’s hospitals (“the children’s hospital”) twenty hours after his birth, survived. The applicant was of the opinion that her daughter would also have survived had she been promptly transferred to a resuscitation and intensive therapy unit at a children’s hospital. On 25 May 2003 the applicant’s mother, Mrs , sent the following telegram to the President of the <COUNTRY>: “... newborns are dying because of delays in emergency medical treatment. Resuscitation units lack capacity. [Hospitals] have waiting lists – a brutal practice. Thus in ... April at ... a.in Maternity Hospital no. ... [my] grandchildren, twins, ... were born. They were tenth on the waiting list. [My] granddaughter ... never got to the top of the list and died ten hours later. [My] grandson ... was hospitalised twenty hours after his birth and placed in the resuscitation unit of Children’s Hospital no. ... in a very serious condition ... The death [of my granddaughter] has shocked our family. We could not imagine that it was possible not to provide emergency medical treatment to the newborn child ... Does the waiting list constitute negligence or irresponsibility on a criminal scale? I ask [you] to take action. Children’s Hospital no. ... needs urgent help ...” On 15 June and 1 August 2003 sent two more telegrams to the President of the <COUNTRY>, stating: “I am informing you for the second time that emergency neonatal resuscitation for premature babies in St Petersburg is being provided on the basis of a waiting list. Who is responsible for the deaths of these children? I request that this problem be examined at the meetings of the Government and the State Duma ...” “I am wiring you for the third time about the deaths of premature newborns in St Petersburg ... [I] consider the existence of a waiting list for resuscitation treatment a crime ... Waiting for [your] response about the action taken ...” The Administration of the President of the <COUNTRY> forwarded the telegrams to the Ministry of Healthcare of the <COUNTRY> (“the Ministry”) for examination. The Ministry asked the Committee for Healthcare at the St Petersburg City Administration (“the Committee”) to examine the allegations and take the necessary action. The Committee ordered an examination, which was carried out by a panel consisting of the chief neonatologist of the Committee and the head of the paediatrics department at the advanced medical studies faculty of the St Petersburg State Paediatrics Medical Academy. The examination was carried out on the basis of the applicant’s and the twins’ medical records, which were obtained from the maternity hospital and the children’s hospital. The results of the examination were set out in a report ( рецензия ), which mainly concerned the development and treatment of the twin who had died. In particular, the report stated that the infant had been born prematurely in the thirty-first week of gestation of an eighth pregnancy and by a first delivery. Her blood test had indicated the possibility of a prenatal viral infection, and she had been clinically diagnosed as premature (at thirty ‑ one weeks), with respiratory distress syndrome and atelectasis. A post ‑ mortem examination had revealed moderate interstitial emphysema of the lungs, which had explained the immediate cause of death. It was concluded that she had been born with severe respiratory distress syndrome complicated by an air leak syndrome, and that she had been provided with treatment which had been entirely appropriate, given the seriousness of the condition and the nature of the disease. Such cases carried a risk of death of not less than 80%, in addition to the risk of serious disabilities, and an early transfer to a children’s hospital did not guarantee survival or a favourable outcome. The report also noted that the second twin had suffered from respiratory distress syndrome as well, but to a much lesser extent. The experts did not make any significant observations about the treatment he had received at the maternity hospital or the children’s hospital. On 5 September 2003 the acting head of the Committee sent the report to the Ministry with an accompanying letter. On 12 September 2003, in reply to her telegrams, the Committee informed of the results of the experts’ examination of the twins’ medical records by briefly restating the conclusions in the report. The Committee noted that the results of the examination of her allegations had been communicated to the Ministry. On the same day, the Committee forwarded to the Ministry a copy of its reply to and informed the Ministry that, according to the conclusion of a commission formed by the maternity hospital where the twins had been born, the reasons for the applicant’s premature delivery had been her compromised obstetric ‑ gynaecological history – in particular, seven artificial abortions – and her urogenital mycoplasmosis infection. The letter of 12 September 2003 was the subject of proceedings brought by the applicant against the Committee, about which no further information is available. On 3 December 2003 the applicant received a letter from the Committee with similar contents to the letter of 12 September 2003 that it had sent to , stating, in particular, that her children’s medical records had been examined by the panel of experts. It appears that a request by the applicant for a copy of the report was refused, and that that refusal was the subject of separate proceedings brought by the applicant against the Committee. In the course of those proceedings, on 30 November 2004, the applicant received a copy of the report and the Committee’s letter to the Ministry of 5 September 2003. On 25 February 2005 she brought new proceedings against the Committee, seeking a declaration that its actions had been unlawful in that it had collected and examined her medical records and those of her children, and had communicated the report containing her personal information to the Ministry without obtaining her consent. She requested that the report and the letter of 5 September 2003 be declared invalid. She stated that she had not asked the Committee to examine the quality of the medical treatment she and her children had received or to establish the cause of her daughter’s death. She claimed that the Committee had interfered with her private life by disclosing – without her consent – confidential information to a considerable number of individuals, including staff at the Committee and the Ministry who dealt with correspondence and other employees. She relied on Article 61 of the Basic Principles of Public Health Law, which prohibited the disclosure of confidential medical information without a patient’s consent. She argued that the provisions of Article 61 contained an exhaustive list of exceptions to that general rule, and that the Committee’s impugned acts had not fallen under any of them. On 14 December 2005 the Kuybyshevskiy District Court of St Petersburg dismissed her application. The chief neonatologist, who was examined as a witness, stated that: he had acted within his powers; he had not been able to verify ’s allegations without obtaining the medical records in question; he had involved medical specialists in the examination of those records; and no disclosure of the information contained in those medical records had taken place. A representative of the Committee denied the applicant’s allegations. The District Court found that the Ministry had asked the Committee to examine the allegations set out in ’s telegrams. The Ministry had had the power to request material from the Committee, which in turn had had a corresponding duty to submit detailed information. The applicant’s medical records had been examined by doctors bound by confidentiality. It was the report prepared as a result of that examination, and not the applicant’s medical records per se , which had been transferred to the Ministry. On the basis of the above considerations, the District Court held that the applicant’s rights, as guaranteed by Article 61 of the Basic Principles of Public Health Law, had not been violated. The District Court also noted that the applicant had lodged her application on 25 February 2005, although she had learned that her children’s medical records had been obtained without her consent on 3 December 2003 from the Committee’s letter of that date. The District Court saw no reasonable excuse for her failure to lodge her application within the statutory time ‑ limit. Lastly, it rejected her request for a separate ruling to denounce the Committee’s allegedly common practice of obtaining medical records without patients’ consent. An application by the applicant for clarification of the judgment – in particular, for details as to whether her application had been dismissed on the merits or because it had been time-barred – was dismissed on 20 January 2006 by the District Court, which considered that the judgment had been clearly formulated and did not allow for different interpretations. The applicant did not appeal against that decision. The applicant appealed against the judgment, relying on Article 61 and, in particular, the exhaustive list of exceptions to the general rule of non-disclosure of confidential medical information without a patient’s consent provided therein. She stated that her own medical records and those of her children had been collected and examined without her consent by Committee officials acting ultra vires , and not by her own doctors, who were bound by confidentiality. The report contained confidential medical information and its communication to the Ministry without her consent had been unlawful. The fact that her own personal medical records had been examined in addition to those of her children had become known to her at a later date than 3 December 2003. The three ‑ month time ‑ limit for lodging her application had started running on 30 November 2004, when she had received a copy of the report. She had therefore complied with that time-limit. On 14 March 2006 the St Petersburg City Court dismissed the applicant’s appeal against the judgment and fully endorsed the District Court’s findings. | Russian Federation | [
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62,881 | 3, 5 | The details of each application are set out below. A. Application no. 61411/15 by Mr Z.A., introduced on 12 December 2015 The applicant is an Iraqi national who was born in 1987. The applicant moved from <COUNTRY> to Turkey in 2013 seeking employment. He later moved to <COUNTRY> to look for a job. On 24 July 2015 the applicant travelled by air from <COUNTRY> to Turkey. The journey consisted of two legs: Shanghai to Moscow and Moscow to Ankara. The Turkish authorities denied him entry for reasons that the applicant did not specify in his application. The applicant was sent to Moscow on 27 July 2015. On arrival at Sheremetyevo Airport, he was not allowed to pass through passport control. 9 . From 27 July 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. On 29 July 2015 the applicant applied for refugee status in Russia, arguing that in <COUNTRY> he would run the risk of persecution by militants belonging to the Islamic State of <COUNTRY> and al-Sham (ISIS – also known as Islamic State of <COUNTRY> and the Levant) because he had refused to join them, as well as by Iraqi government forces for the reason that he practiced the Sunni form of Islam. On 19 September 2015 the applicant received a visit from the Moscow regional department of the Federal Migration Service (“the Moscow Region FMS”) and was interviewed in the transit zone. The Moscow Region FMS did not issue the applicant with a certificate to confirm that his refugee status application deserved to be examined on the merits (“examination certificate”). On 10 November 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. The applicant appealed to the higher migration authority (the Federal Migration Service of Russia – “the Russian FMS”), asking it to overrule the decision of 10 November 2015, to issue him with an examination certificate, and to allocate him to a centre for the temporary detention of aliens. On 29 December 2015 the Russian FMS dismissed the applicant’s appeal on the grounds that he had not received any direct threats targeted against him personally and that “the applicant [had not submitted] convincing evidence that he might become a victim of persecution by ISIS militants or Iraqi authorities on the grounds contained in the definition of the term ‘refugee’, including his religion”. The issue of the applicant’s stay in Sheremetyevo Airport was not addressed in the decision. The applicant’s lawyer was served with the decision of 29 December 2015 on 23 January 2016. On 1 February 2016 the applicant lodged an appeal against the decisions of 10 November and 29 December 2015 with the Basmannyy District Court of Moscow. He specifically argued that the migration authorities had not complied with the procedural rules by failing to interview him speedily or to issue him with an examination certificate, and that he had spent more than six months in the transit zone of Sheremetyevo Airport in conditions contrary to the guarantees of Article 3 of the Convention, without access to shower and other amenities. 16 . On 17 March 2016, having been resettled by UNHCR, the applicant left for <COUNTRY>. On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. On the same date the applicant’s lawyer lodged a brief statement of appeal («краткая апелляционная жалоба»), pending receipt of a reasoned judgment in written form. By 5 July 2016 (the date on which the applicants submitted their written observations to the Court), no such reasoned judgment had been issued. B. Application no. 61420/15 by Mr B., introduced on 12 December 2015 The applicant was born in 1988. He holds a passport issued by the Palestinian Authority. Between April 2013 and August 2015 the applicant was in Irkutsk, Russia. It appears that initially he had held a valid entry visa but that he did not take steps to obtain permission to reside in Russia after its expiry. In August 2015 the applicant travelled from Russia to the Palestinian territories via <COUNTRY>. For unknown reasons he took a flight from Cairo back to Moscow on 23 August 2015. Because the applicant did not have a valid visa for Russia, he was denied entry to the country by the border guard service. 21 . From 23 August 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. The applicant sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. Three weeks after his arrival at Sheremetyevo Airport, the applicant lodged an application for refugee status. In the course of the ensuing proceedings he mentioned that he had left Palestine because of the ongoing hostilities in the Gaza Strip and the West Bank, as well as a lack of employment and the poor economic situation. On 1 December 2015 the Moscow Region FMS dismissed the applicant’s refugee status application as ill-founded. The applicant’s lawyer appealed to the Russian FMS, arguing that the applicant did not have any possibility to return to his home in the Gaza Strip, that the Moscow Region FMS had failed to assess his personal situation and the risk he would face if returned to Palestine, and that the Moscow Region FMS, in breach of the Refugees Act (FZ-4528-1 of 19 February 1993), had not issued him with an examination certificate. On 31 December 2015 the Russian FMS dismissed the appeal for the reason that the applicant had “failed to provide evidence confirming that he runs a higher risk of becoming a victim of the Palestine-<COUNTRY> conflict than the rest of the population of the Palestinian National Autonomy”. The applicant’s lawyer was informed of that decision on 15 January 2016. On 1 February 2016 the applicant lodged an appeal against the migration authorities’ decision with the Basmannyy District Court of Moscow. 26 . On 13 February 2016 the Egyptian authorities opened the Rafah crossing point to Gaza. The applicant agreed to take a flight to <COUNTRY> and left the transit zone of Sheremetyevo Airport. On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. The applicant’s lawyer lodged a brief statement of appeal on the same date, pending receipt of a reasoned judgment in written form. By 5 July 2016, no such reasoned judgment had been issued. Application no. 61427/15 by Mr A., introduced on 12 December 2015 The applicant is a Somalian national who was born in 1981. In 2005 the applicant moved from <COUNTRY> to <COUNTRY>, where he was granted refugee status. In 2015 he decided to leave <COUNTRY>. The applicant travelled by air to Havana, <COUNTRY>, a journey that consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow, and Moscow to Havana. On 13 March 2015 the applicant landed in Moscow for the first time; he then continued his journey to Havana. On 9 April 2015 the applicant was deported from <COUNTRY> to Russia. The Russian border guard service did not allow him to pass through passport control. 32 . From 9 April 2015 onwards, the applicant has been staying in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area. On 10 April 2015 the applicant lodged an application for refugee status, arguing that he had fled <COUNTRY> in 2005 because he had received threats from members of a terrorist group. On 1 July 2015 the Moscow Region FMS interviewed the applicant. However, they did not issue him with an examination certificate. On 1 October 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. On 17 October 2015 the applicant’s brother was killed in Mogadishu, <COUNTRY>. On 7 December 2015 the Russian FMS dismissed an appeal by the applicant against the decision of 1 October 2015. On 22 December 2015 the Moscow Region FMS refused to grant the applicant temporary asylum. On 10 February 2016 the Russian FMS upheld that decision. On 19 May 2016 the Basmannyy District Court of Moscow dismissed an appeal lodged by the applicant against the decisions by the Moscow Region FMS and the Russian FMS to dismiss his application for temporary asylum. It reasoned, in particular, that the applicant had not proved that the terrorists who had threatened him in 2005 represented any danger more than ten years later and that, should such threats persist, he “has not been deprived of an opportunity to avail himself of the protection of his State of nationality [– that is to say] to apply to the law-enforcement agencies of the Republic of <COUNTRY> [for protection].” On the same date the applicant’s lawyer appealed. On 20 September 2016 the Moscow City Court dismissed the appeal. On 6 February 2017 it dismissed in the final instance the applicant’s complaint about the refusals to grant him refugee status. 40 . Having received the final rejections of his applications from the Russian authorities, the applicant decided that he did not have any chance of obtaining asylum in Russia. On 9 March 2017 he left for Mogadishu, <COUNTRY>. Application no. 3028/16 by Mr Yasien, introduced on 14 January 2016 The applicant, Hasan Yasien is a Syrian national who was born in 1975 in Aleppo. On 4 July 2014 the applicant arrived in Moscow from Beirut, <COUNTRY>, holding a business visa valid until 25 August 2014. On 10 September 2014 he applied for temporary asylum to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”), claiming to have fled Syria because of the ongoing civil war there. That application was refused on 8 December 2014. It appears that the applicant remained in Russia despite that refusal. On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The Russian border guard service seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry to the country and sent him back to Moscow on 20 August 2015. Upon the applicant’s arrival, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow. On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry to the country and sent him back to Moscow. The Russian border guard service did not allow him to pass through passport control. 47 . From 9 September 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. He described the conditions of his stay in the transit zone as follows. The applicant slept on a mattress on the floor in the waiting area of the airport, which was constantly lit, crowded and noisy. He received basic food, clothing and sanitary wipes once a week from the Russian office of UNHCR. Given the absence of any refrigerator or kitchen, his rations were extremely limited. Throughout the whole period of his stay in the transit zone the applicant did not have access to a shower. The applicant applied to the Moscow Region FMS for temporary asylum. On 21 December 2015 the Moscow Region FMS dismissed the request. On 4 February 2016 the Russian FMS dismissed an appeal by the applicant against its refusal of 21 December 2015 to grant him temporary asylum. It noted, in particular, that there were regular flights from Moscow to Damascus, from where Syrian nationals could travel to other parts of the country, and that “many Syrians wish to leave the country not only because of a fear for their lives but, in large part, because of the worsening economic and humanitarian situation”. On 7 April 2016 the applicant once again tried to lodge an application for refugee status through the border guard service. He received no response. On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow about the refusal of the Moscow Region FMS and Russian FMS to grant him temporary asylum and about his allegedly unlawful detention in appalling conditions in the transit zone of Sheremetyevo Airport. 52 . On 11 May 2016 the applicant was resettled by UNHCR and left for <COUNTRY>. On 21 July 2016 the applicant’s lawyer submitted additional documents to the Zamoskvoretskiy District Court of Moscow in support of the applicant’s claims regarding the risks that he would face if returned to Syria. The outcome of the proceedings is unknown. | Yemen, Lebanon, China, Sweden, Denmark, Israel, Iraq, Somalia, Egypt, Cuba | [
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61,132 | P4-2 | The applicants were born in 1942 and 1943, respectively, and lived in Tambov. On 25 April 2007, the applicants’ son, P.Z., was charged with large ‑ scale fraud; his name was placed on the list of fugitives from justice. On 7 May 2007 the Basmannyy District Court in Moscow authorised a search of the applicant’s flat in Tambov with a view to locating P.Z. and removing accounting, legal and financial documents relating to the alleged fraud. The search was carried out three days later and a number of documents, communication devices and the applicants’ travel passports were removed. The applicants complained to a court about the investigator’s actions. They submitted, in particular, that there had been no legal basis for removing their identity documents. On 9 July 2007 the Basmannyy District Court rejected their complaints. It held that it was not competent to review the way in which the evidence in the criminal proceedings had been obtained, and that the applicants’ constitutional rights had not suffered any impairment. On 10 October 2007 the Moscow City Court upheld the District Court’s decision in a summary fashion, without addressing the applicants’ arguments. | [
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57,428 | 6, 6 | They are currently serving prison terms in the Dubnica nad Váhom and Hrnčiarovce nad Parnou Prisons, respectively. A. Commencement of the proceedings On 4 August 2009 a criminal investigation was opened into suspected trafficking in drugs within the meaning of Article 172 § 1 (c) of the Criminal Code (Law no. 300/2005 Coll., as amended – “the CC”), an offence with which the applicants would later be charged. The offence was considered an ordinary criminal offence ( zločin ), which carried a penalty of four to ten years’ imprisonment and did not require mandatory legal assistance. On 4 November 2009 a warrant was issued for the search of non ‑ residential premises situated in a factory complex, which the applicants were renting and using as a music studio. At 10 p.on 7 November 2009 the warrant was served on the second applicant on the premises. The search was then carried out by the police between 30 p.and 40 p.According to the search report, the police seized a pair of digital scales, various items used for the consumption and packaging of drugs, and what would later be established to be 724 grams of cannabis. No lawyer representing the applicants or any other of the parties concerned was present. The police also found the first applicant and four other individuals on the premises. At 40 p.the applicants were taken to the police station ( predvedení ) where it was decided that they would be detained and subsequently questioned by the police as suspects ( podozriví ). The first applicant was thus detained at 15 p.the same day, while the second applicant was detained at 10 a.the following day. No lawyer was involved on behalf of the applicants. The questioning of the first applicant took place between 30 p.and 45 p.the same day and that of the second applicant between 10 a.and 00 a.the following day. The applicants’ police statements were transcribed on pre-printed forms, the relevant part of which was filled in to indicate, inter alia , that the applicants were suspected of trafficking in drugs within the meaning of Article 171 §§ 1 and 2 of the On the first page of the forms there was a pre-printed message stating, inter alia , that the person being questioned had the right to remain silent and the right to choose a lawyer. That page, as well as the subsequent pages, was signed by the applicants. The applicants made their statements without a lawyer and the transcript contains no mention of the issue of legal representation. In his statement, the first applicant described his arrangement with the second applicant concerning the sale to third parties of cannabis sourced by the second applicant and their profit sharing. He identified five individuals as his customers and described how he was selling the drug to them and what he was doing with the profit. The second applicant’s statement was along the same lines, except that he identified three individuals as his customers and added that cannabis had been smoked on the premises by all those present before the arrival of the police. Around the same time, the police also questioned as witnesses the other four individuals found on the premises. No lawyer for the applicants or those four individuals was present at the questioning. Two of those individuals, A. and B., gave statements incriminating the applicants. B. Charge, remand and pre-trial proceedings On 8 November 2009 the applicants were charged with conspiracy to possess and traffic in drugs within the meaning of Article 20 § 1 and Article 172 § 1 (c) and (d) of the The parameters of the offence were in line with those of the offence into which a criminal investigation had previously been opened (see paragraph 7 above). The document containing the charge relied on the results of what was termed a “preliminary expert analysis” of the material seized (see paragraph 9 above) and the police statements of the applicants and the four other individuals questioned. It was observed that the applicants had been engaging in the illicit conduct “from the beginning of summer 2009 until the present” and that the number of their customers had not yet been established. Following the bringing of charges against the applicants, they were again questioned by the police, this time as accused ( obvinení ). Neither applicant was assisted by counsel. Their statements were transcribed on a pre-printed form, which contained a pre-printed message stating, inter alia , that the person being questioned had the right to remain silent and the right to choose a lawyer. That page, as well as all the other pages of the document, was signed by the applicants. According to the transcript, the first applicant stated that he waived his right to study the investigation file and his right to appeal against the charges. He made a confession in general terms and conceded that the evidence on which the charge against him was based was accurate. He also declared that he had no wish to appoint a lawyer; that he had been selling the drug because he was unemployed; that he regretted his actions; and that, if released, he would stop selling the drug and limit himself to its consumption. As for the second applicant, according to the transcript he stated that he waived his right to appeal against the charges and maintained his previous statements in full (see paragraph 15 above). He made a confession in general terms, conceded that the elements on which the charge against him was based were true, and expressed his remorse. He also declared that he did not wish to appoint a lawyer; he had been selling the drug because he had lost his job; he was willing to cooperate with the authorities; he would not flee; and he would be prepared to enter into a plea bargain. On 9 November 2009 the applicants were brought before a judge of the Martin District Court ( Okresný súd ) to be heard in connection with the request by the public prosecution service (“the PPS”) that they be remanded in custody. According to the minutes of those hearings, both applicants stated that they had neither appointed a lawyer nor had any wish to appoint one. In addition, the second applicant submitted that he had commenced the trafficking in the summer of that year, that the drugs found on the premises had belonged to him and the first applicant. He said that he was sorry for his wrongdoing and was ready to cooperate with the authorities. The first applicant, for his part, admitted possessing the quantities of cannabis as established by the police. He had been trafficking in it since April 2009, taking on average ten bags every three days from the second applicant, selling it and keeping the profit of some 15-20 euros every three days. At the conclusion of their respective hearings on 9 November 2009, the applicants were remanded in custody pending trial on the ground that, if left at liberty, they might continue their criminal activities within the meaning of Article 71 § 1 (c) of the Code of Criminal Procedure (Law no. 401/2005 Coll., as amended – “the CCP”). Following an appeal lodged by the second applicant, the decision to remand him in custody was upheld by the Žilina Regional Court ( Krajský súd ) on 24 November 2009. By virtue of the applicants being remanded in custody, it became mandatory for them to be assisted by a lawyer under Article 37 § 1 (a) of the CCP. On 11 November 2009 the applicants’ respective mothers appointed a lawyer to represent them in the proceedings. The applicants endorsed that appointment on 13 November 2009. On 2 December 2009 the applicants’ lawyer inspected the investigation file. On 9 December 2009 the police questioned the applicants again. Assisted by their lawyer, they submitted that they wished to avail themselves of their right to remain silent. Nevertheless, the first applicant added that when he had been questioned on 8 and 9 November 2009 and had confessed and expressed remorse, he had already stated everything he considered relevant. In a similar fashion, the second applicant referred to his confession of 8 November 2009 and stated that he had made it without any pressure and that he had not been under the influence of psychotropic substances. On 22 December 2009 the police heard A., B., and eight other witnesses in the presence of the applicants’ lawyer. The depositions of A. and B. as well as of and may be understood as incriminating the applicants. On 27 January 2010 the first applicant’s mother appointed a new lawyer to represent him in the proceedings. The first applicant then dismissed his first lawyer. The second applicant’s father appointed the same lawyer for his son on 12 February 2010. Meanwhile, by letters of 29 January and 16 February 2010, the investigator had informed the applicants that, on the basis of information obtained during the investigation, the charge against them would be reclassified as an aggravated form of the same offence within the meaning of Article 172 § 2 (c) of the That provision applied to instances where the offence had been committed “in a more serious manner”. Such an aggravated form of the offence carried a penalty of imprisonment for ten to fifteen years and, as such, it amounted to a particularly serious criminal offence ( obzvlášť závažný zločin ). Such a charge required mandatory legal assistance under Article 37 § 1 (c) of the CCP. On 16 and 23 February and 5 March 2010 the police heard five more witnesses in the presence of the applicants’ lawyer. Of their depositions, those of a certain E. may be understood as incriminating the first applicant. On 8 March 2010 the investigator informed the applicants’ lawyer that she rejected his proposals for further evidence to be taken consisting of face-to-face interviews ( konfrontácia ) between the first applicant and witnesses A. to E. She considered that, on the relevant points, there had been no discrepancies between the accounts of the applicants and those of the witnesses named. She referred to Article 138 (b) and (j) of the CC, which provided that an offence was deemed to have been committed in “a more serious manner” if it had been committed “over a longer period of time” or perpetrated against “several persons”. The term “several persons” was in turn defined in Article 127 § 12 of the CC as at least three persons. The investigator observed that the submissions of both the applicants and the witnesses in question had indicated that the offence had been committed over a period of at least five months and perpetrated against several persons. On 22 March 2010 the applicants’ lawyer inspected the investigation file together with the first applicant. On 29 March 2010, acting in their name, the applicants’ lawyer requested that a plea bargain procedure be initiated. In his request, he referred to the original charge, the decision to reclassify it to the aggravated form of that charge, and the applicants’ confessions in their interviews by the police. It was added that the applicants were aware of the wrongfulness of their behaviour and were sorry for it. On 27 April 2010 the applicants met with the PPS for the purposes of negotiating the plea bargain. However, they stated at the outset of the meeting that, having consulted with their counsel, they no longer wished to pursue the matter. Trial On 4 May 2010 the applicants were indicted to stand trial on the aggravated charge before the District Court. The indictment was based on the statements the applicants had made on 7, 8 and 9 November 2009, the results of the search of 7 November 2009, an expert analysis of the material seized during the search, and – without any indication of the dates when they had been made – statements from five witnesses, A. to E. It was also noted that the applicants each had a previous conviction: the first applicant for robbery, for which he had been sentenced to five months’ imprisonment suspended for a year; and the second applicant for fraud, for which he had been sentenced to two years’ imprisonment suspended for two years. The District Court heard the case on 17 August, 31 August, 19 October and 23 November 2010. On 7 December 2010 the court found the applicants guilty and sentenced them to six years and eight months imprisonment. It observed that the applicants had pleaded not guilty before the court, arguing that they had merely consumed the drug but had not been selling it. As to the discrepancy between that version and the version submitted by them in their pre-trial statements of 7, 8 and 9 November 2009, the applicants had submitted before the court that the pre-trial questioning had been conducted in a manipulative fashion and the police had coerced them by promising that they would not be remanded in custody. In addition, the second applicant had submitted that, in the initial questionings, he had still been under the influence of the cannabis he had consumed earlier. The District Court observed further that the five prosecution witnesses had also changed their testimony before it as compared with their statements made in the pre-trial phase, in that, before the court, they had given no evidence incriminating the applicants. In so far as the applicants and those witnesses had sought to explain the discrepancies in their versions by alleging that they had been put under pressure by the police at the pre-trial stage, the District Court heard the officers in question and dismissed the allegation as unfounded. Appeal and appeal on points of law The applicants lodged an appeal ( odvolanie ), as did the PPS, against the District Court’s decision. The applicants subsequently also appealed on points of law ( dovolanie). Their line of argument may be summarised as follows. In addition to the arguments already presented, they objected that the record of the search of 7 November 2011 was vague, in particular as to the quantity and content of the dried material that had been seized. Furthermore, they claimed that, during the questioning sessions of 7 and 8 November 2009, they had not been properly informed of their procedural rights, including the rights to remain silent and to choose a lawyer. Their signatures on the relevant pages of the pre ‑ printed forms on which the statements had been transcribed were of no relevance – in particular given that there was no mention of their having been informed of those rights in the transcript. Those statements had thus been made contrary to the applicable procedural rules. As they were the basis for the decisions to charge and detain them, their trial had taken an unlawful course from the very outset. In addition, there had been no relevant grounds – for example a substantial change in the evidence – to justify the reclassification of the charge against them from an ordinary criminal offence to a particularly serious criminal offence. Therefore, in the applicants’ submission, from the beginning the charge against them had actually been that of a particularly serious criminal offence, in which case legal assistance should have been mandatory. The fact that they had not been informed accordingly at the critical initial stages of the proceedings had had a fatal and irreversible impact on the choice of their defence strategy and had in practice negated their defence rights. This had been manifested, inter alia, in that they had been remanded in custody without having appointed a lawyer. Moreover, a number of further pieces of evidence originating from the pre-trial stage of the proceedings, in particular the witness statements, had also been manipulated. The court should therefore have examined only the evidence taken during the trial and refrained from taking into account the pre-trial statements of the witnesses. The PPS challenged the sentence handed down by the first-instance court on the grounds that they saw no reason for imposing a sentence below the lower end of the penalty scale. In a judgment of 9 March 2011 the Regional Court quashed the judgment of 7 December 2010; adjusted the District Court’s findings of fact as to the applicants’ conduct which formed the basis of the offence; found them guilty of the offence in its aggravated form; and sentenced them each to ten years’ imprisonment. Subsequently, on 10 November 2011, the Supreme Court ( Najvyšší súd ) declared the applicants’ appeal on points of law inadmissible. The relevant part of the reasoning of both courts may be summarised as follows. It was acknowledged that it had been an error for the District Court to take into account the applicants’ pre-trial statements of 7 and 8 November 2009, respectively, when they had been questioned as suspects prior to being charged. Those statements therefore did not constitute lawful evidence and had to be excluded. However, the applicants’ statements of 8 November 2009 when, having already been charged, they had made a confession in general terms, and their further statements taken on 9 November 2009, which contained a more specific confession, could be taken into account, as could the evidence from the five prosecution witnesses. E. Final domestic decision On 9 January 2012 the applicants lodged a complaint under Article 127 of the Constitution (Constitutional law no. 460/1993 Coll., as amended) with the Constitutional Court ( Ústavný súd ), advancing essentially the same arguments as mentioned above, and alleging that their rights to liberty and a fair trial had been violated. On 15 February 2012 the Constitutional Court declared the complaint inadmissible. In so far as it was directed against the Regional Court and the Supreme Court, the Constitutional Court rejected the complaint as manifestly ill-founded, quoting extensively from the contested decisions and endorsing them. The Constitutional Court found that the remainder of the complaint was outside its jurisdiction. The Constitutional Court’s decision was served on the applicants on 9 March 2012. | [
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61,532 | 3, 13 | All the applicants were convicted by Russian courts and given custodial sentences. They served their sentences in penitentiary facilities which were overcrowded and suffered from a shortage of sanitary installations. | [
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74,815 | 8, P1-1 | The applicants are Russian nationals. They were represented by Mr Vakhitov , a lawyer practising in the Moscow Region. The details pertaining to each of the applicants appear in Appendix I below. The Government were represented by Mr Galperin, Representative of the <COUNTRY> to the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. Transactions in respect of the flats later purchased by the applicants The Ministry of Defence was the original owner of several flats located at Bulvar Nesterova, Mkr. Aviatorov in Balashikha, Moscow Region. On an unspecified date S., Kul. and several other persons forged a set of documents, according to which the flats, later purchased by Mr Zadorzhnyy and Ms T. Bystrova, were assigned to the and K. as social housing and later registered as their property. The details pertaining to the transactions in respect of the flats are provided in Appendix II below. Termination of the applicants’ title to the flat On 16 February 2016 the Balashikha Town Court found S., Kul. and several other persons guilty of the fraudulent misappropriation of the flats. On an unspecified date the Ministry of Defence successfully brought civil claims against the applicants and previous owners of the flats seeking the restitution of the title to the flats and the applicants’ eviction. The Town Court found the applicants’ argument that they had bought the flats in good faith of no relevance given that the Ministry of Defence had not had an intent of disposing of the real property in question and had had a right to reclaim the property even from a bona fide purchaser. It further noted that the frequency with which the flats had changed hands and the below the market price they had paid for the flats should have been a red flag for the applicants. The details pertaining to each set of the proceedings are provided in Appendix II below. It appears that the eviction proceedings in respect of the applicants have been suspended to date. The applicants continue to reside in their respective flats. | Russian Federation | [
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65,157 | 6, 6 | According to the indictment, on 15 October 2010 Ms K., who had not been previously known to the applicant, invited him and Mr A. to the apartment of Mr In the apartment they found Mr lying on the floor in a state of heavy alcoholic intoxication. For reasons which the investigation failed to ascertain, the applicant demanded ’s passport, but the latter did not react to the demand in any way. Enraged by ’s inaction, the applicant and Mr A. started violently kicking him in the shoulder, chest, stomach and legs until he stopped breathing. The applicant told Ms K., who witnessed the attack, to “forget everything” and gave her 100 Russian roubles (RUB) (5 euros (EUR)). On 18 October 2010 Ms K., aged twenty-four at the time, was voluntarily hospitalised for treatment of alcohol-induced psychosis and seizures after she had an epileptic seizure on the street. 8 . On 21 October 2010, while undergoing treatment, Ms K. was taken to an investigator for questioning. Prior to the interview, the investigator had received permission to interview Ms K. from the head doctor of the medical facility and satisfied herself as to the witness’s ability to testify, relying on the opinion of the doctor treating her. According to a medical certificate, Ms K. was “conscious, accessible for contact, answer[ed] questions following their direction” and had “no acute psychiatric disorders”. According to the interview records, Ms K. alleged that on 11 October 2014 her encounter with Mr had resulted in a drinking spree, which had lasted several days until 14 or 15 October 2010, when Mr had refused to consume any more alcohol because he could no longer stand up. On the day of the attack, she had witnessed the applicant entering the apartment with Mr A. and immediately starting to violently kick Mr , who had been lying on the floor. After an unsuccessful search for ’s passport, they had resumed the attack and had kicked the victim about forty times until he died. 10 . On 22 October 2010 the applicant and Mr A. were arrested and detained on suspicion of manslaughter. On the same day Mr A. confessed to manslaughter committed together with the applicant. On 29 October 2010 during questioning, he stated that the applicant’s insistence on obtaining ’s passport had been induced by the desire to coerce the latter to sell his apartment and to share the proceeds. In the course of questioning on 13 and 17 December 2010 the applicant admitted his presence in ’s apartment during the attack, but denied any involvement in it. In his opinion Mr A. had committed perjury for an unknown reason. The criminal case against the applicant and Mr A. was examined by the Tsentralniy District Court of Tver ( Центральный районный суд г. Твери ) (hereinafter “the District Court”). 13 . On 17 January 2011 during a pre-trial hearing the District Court granted applications lodged by the applicant’s defence lawyer to have the medical records of Ms K. produced in court at trial. 14 . On 24 January 2011 the District Court received extracts of Ms K.’s medical history provided by a regional psychiatric hospital. According to the medical records, she suffered from long-term alcohol abuse and had a tendency of having compulsive heavy drinking episodes. In October 2010, during the sixth hospitalisation since 2008, she had been hallucinating, anxious, aggressive, rude and unaware of the current date. When discharged from hospital in November 2010, the symptoms of withdrawal syndrome had receded and there were no signs of acute psychiatric disorders. 15 . On 27 January 2011 the District Court received a certificate from a regional psychoneurology clinic. According to the certificate, in 2008 Ms K. had been diagnosed with an organic mental disorder of complex origin (perinatal and alcohol induced), hallucino-paranoid syndrome with mild personality changes, and alcohol-withdrawal symptoms. 16 . On 2 and 8 February 2011 the District Court heard several prosecution witnesses, mostly relatives, neighbours and acquaintances of the persons involved. The witnesses either attested to the reputation or character of the victim and the accused, or provided hearsay and circumstantial evidence on the events prior and subsequent to the alleged crime. Ms K. was duly summoned to both hearings, but did not appear and provided no reasons for her absence. On 10 February 2011 at the request of the defence the District Court issued a subpoena ordering the bailiffs to ensure Ms K.’s presence at the next hearing. 18 . On 17 February 2011 the bailiffs submitted to the trial court a report that the witness could not be found at her place of residence and according to her mother “might be undergoing treatment” in a psychoneurology clinic. 19 . On the same day the District Court examined a prosecution witness, Ms , an investigator during the pre-trial stages of the proceedings. She testified to the circumstances of Ms K.’s interview on 21 October 2010 and her identification of the applicant, as well as to her psychological state and ability to give answers at the time. Ms stated that the witness had been “rational”, had given coherent testimony, had correctly recounted the events and, according to the doctor treating her at the time, had been capable of answering questions. 20 . During the hearing the trial court was notified over the phone that the applicant had been undergoing in-patient treatment for alcohol dependency since 22 January 2011. The prosecutor’s request that Ms K.’s pre-trial statements be read out in court was denied and the hearing was adjourned until further information on the witness’s health had been received from the doctors. On 18 February 2011 the psychoneurology clinic sent a letter to the District Court confirming the information previously submitted and stating that Ms K. was due to be discharged in early March 2011. 22 . On the same day during the hearing, the prosecutor, referring to the above-mentioned letter, repeatedly requested that Ms K.’s pre-trial statements be read out in court on account of her in-patient treatment, the fact that her presence at trial could not be ensured, and because the date of her discharge from the clinic was unclear. The applicant’s defence lawyers objected, referring to Article 281 of the Code of Criminal Procedure, which proscribed the reading out of witness statements except in cases of “grave illness”. The District Court, without providing further reasons, allowed the reading out of the testimony with reference to Article 281 of the Code. 23 . Between 24 February and 6 April 2011 the District Court held at least six further hearings. During those hearings the applicant and his co ‑ accused were examined and essentially confirmed their conflicting pre-trial statements. The District Court also heard two character witnesses called by the defence, who attested to Mr A.’s bad reputation and speculated about his involvement in illegal activities. The trial court also considered the following documentary evidence presented by the prosecution: (a) crime scene inspection records; (b) the confession of Mr A. and verification records; (c) records of identification procedures; and (d) reports of the medical examiner and forensic experts on the victim’s injuries and the cause of death. On 8 April 2011 during the closing argument the applicant’s defence lawyer, Mr , argued that the statements of Ms K., which were “the only evidence”, could not qualify as eyewitness statements due to her state of mental health. He submitted that in the absence of a forensic psychiatric examination, it was impossible to rely on the testimony of a person suffering from an organic mental disorder and alcohol dependency. Her hospitalisation in a psychiatric facility in a delusional state and her interrogation less than one week after the alleged crime had made any testimony unreliable. He further stated that in any event, the reading out of her testimony had been unlawful under Article 281 of the Code of Criminal Procedure as interpreted by the Supreme Court of the <COUNTRY>, and in violation of the applicant’s right to examine witnesses under Article 6 § 3 (d) of the Convention. Accordingly, her testimony could not be used as evidence in the case against the applicant. 25 . On 12 April 2011 the District Court convicted the applicant and Mr A. of manslaughter and sentenced them to ten and eight years’ imprisonment respectively in a high-security correctional facility. The District Court, confronted with the conflicting positions of the two co ‑ accused, referred several times to Ms K.’s testimony as a significant, if not decisive, factor. In respect of the reliability of the testimony and its reading out, it stated: “... The statements of Ms K. made during the pre-trial investigation were read out under Article 281 of the Code of Criminal Procedure ... The court does not accept Mr Zadumov’s argument that [according to the medical records] the mental state of Ms K. casts doubt on her ability to correctly perceive and recount the events and that [her questioning during treatment in a psychoneurology facility] also casts doubt on the veracity and reliability of her testimony ... The medical records referred to by the defence do not suggest that Ms K. has any psychiatric disorder. [Moreover, the available certificates state that she was accessible for contact, answered questions following their direction and had no acute psychiatric disorders. This fact is further confirmed by the testimony of Ms , the investigator, given at trial.] The court also considers that Ms K.’s statements are consistent with the confession of Mr A.” The applicant’s defence lawyers lodged an appeal, restating among others their arguments concerning the reading out of Ms K.’s pre-trial statements. 27 . On 3 June 2011 the Tver Regional Court ( Тверской областной суд ) upheld the judgment on appeal. In respect of Ms K.’s statements the Regional Court stated: “... The involvement of Mr Zadumov [the applicant] in the committed crime is steadfastly confirmed by the testimony of Ms K. [The appeal court] like the trial court finds no grounds to doubt the testimony of this witness, because it is coherent, detailed, logical and authentic. [From] the information provided by Ms K. on the victim’s state before and after the infliction of bodily injuries by Mr A. and Mr Zadumov, the sequence of events is consistent with [expert evidence and the testimony of other witnesses and the co-accused]. Accordingly there are no reasons to consider that the witness could not correctly perceive or recount the events. Moreover [her] mental state received consideration during the hearing. [According to the investigator’s statements she was rational, gave coherent testimony, correctly recounted the events, and according to her doctor was capable of answering questions.] ... [Therefore] the trial court reached a correct conclusion that this evidence was admissible. [The appeal court] cannot consider justified the arguments of the defence that criminal procedure legislation had been breached by the reading out of Ms K.’s pre ‑ trial statements, [since her presence at hearings was impossible as she was undergoing treatment in a clinic].” | Russian Federation | [
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17,591 | The applicant was born in 1951 and lives in Velenje. On 7 August 1994 the applicant was injured in a traffic accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. On 16 November 1995 the applicant instituted civil proceedings against ZT in the Celje District Court ( Okrožno sodišče v Celju ) seeking damages in the amount of 2,610,359 Slovenian tolars (approximately 10,880 euros) for the injuries sustained. Between 21 October 1996 and 22 May 1998 the applicant lodged four preliminary written submissions and/or adduced evidence. She also modified her claim on three occasions. On 26 April 1996 she made a request that a date be set for a hearing. Before the first hearing, the judge was promoted and the case was reassigned to another judge. Of the two hearings held on 17 April 1997 and 26 May 1998 none was adjourned at the request of the applicant. During the proceedings the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 2 September 1998. On 15 September 1998 the applicant appealed to the Celje Higher Court ( Višje sodišče v Celju ). ZT cross-appealed. On 16 June 1999 the court dismissed both appeals concerning non-pecuniary damage, but allowed ZT’s appeal concerning pecuniary damage and remitted the case in this part to the first-instance court for re-examination. The judgment was served on the applicant on 8 September 1999. On 28 September 1999 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). ZT cross-appealed. On 6 July 2000 the court dismissed both appeals. The judgment was served on the applicant on 19 September 2000. In the meantime, in the re-examination proceedings, the applicant on 9 September 1999 and then on 13 November 2000 lodged preliminary written submissions. She also partly withdrew her claim. At the hearing held on 28 November 2000, the Celje District Court decided to deliver a written judgment. The judgment, upholding the applicant’s claim, was served on the applicant on 20 December 2000. | [
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75,463 | 3 | The applicants are Russian nationals living in various regions of Russia. Their details are set out in the appendix. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the <COUNTRY> to the European Court of Human Rights, and then by his successor in that office, Mr Galperin. The facts of the case, as submitted by the parties, may be summarised as follows. The circumstances of the case Zagaynov and Others Russia, application no. 5666/07 The applicants are Mr Zagaynov, Mr Golovin, Mr Kondratyev, Mr Kuznetsov, Mr Maltsev, Mr Vecherov and Mr Yakovlev. At the relevant time, they were all serving sentences in correctional colony no. 6 in Yoshkar-Ola, Mari El Republic. Alleged ill-treatment on 20 December 2005 At about 8 a.on 20 December 2005 prison officers, including deputy governor B. and a group of special-purpose unit officers ( отряд специального назначения ), entered the applicants’ cells. According to the applicants, they were forcibly moved from their cells outside to the open air and were not allowed to dress in winter clothes. They were beaten with rubber truncheons and kicked multiple times. The officers made them stand against the wall with their legs spread apart and forced them to remain in this position for two hours. According to the national authorities, the officers entered the cells and ordered the detainees to vacate them for a cell inspection. The applicants refused. The officers repeated their order and warned the applicants that they would use force if they continued to ignore it. Since the detainees continued to refuse, the officers used physical force to vacate the cells. The applicants resisted and tried to hit the officers. The officers used their truncheons to stop them. Reports on the use of force and medical documents (a) Reports on the use of force and rubber truncheons On 20 December 2005 the officers drew up a report on the use of force against Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev, and Mr Maltsev. It said that special means and physical force had been used against the men after repeated warnings of their use for disobedience. 11 . According to another report drawn up on 20 December 2005, the same applicants outright refused to vacate their cells. They were repeatedly warned about the use of rubber truncheons and physical force for disobedience. 12 . With respect to Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev, the colony officers drew up separate reports in respect of each of them about the use of rubber truncheons for resistance and disobedience. 13 . According to the reports drawn up in respect of Mr Zagaynov and Mr Yakovlev, a rubber truncheon was used on their legs and back. With respect to Mr Kuznetsov, Mr Kondratyev and Mr Maltsev, a rubber truncheon was used on their legs. It appears from the case file that no reports were drawn up in respect of Mr Golovin and Mr Vecherov. (b) Medical examination of the applicants On the same day Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev were examined by a duty doctor. According to their medical notes, they had the following injuries. 16 . Mr Zagaynov had an abrasion in the area of his left shoulder blade measuring 5 cm and an abrasion on his left buttock measuring 4 by 2 Mr Kuznetsov had two abrasions on the back of both thighs measuring 10 by 12 cm and 12 by 2 Mr Yakovlev had abrasions in the area of his right shoulder blade and on the back of his right thigh. Mr Kondratyev had an abrasion on his right thigh measuring 15 by 2 cm and a contusion on his upper lip. 20 . Mr Maltsev had an abrasion on his left thigh. 21 . The medical notes concerning Mr Golovin and Mr Vecherov contain no information about injuries or requests for medical assistance on 20 December 2005. Inquiry into the alleged ill-treatment On 20 December 2005 the applicants complained to a non ‑ governmental organisation that they had been subjected to ill-treatment. The organisation forwarded their complaint to a prosecutor’s office. 23 . On 16 March 2006 the prosecutor refused to open a criminal case, referring to “explanations” given by the applicants and officers, and the reports on the latter’s use of force. According to the decision, physical force was used against the applicants because they had refused to obey the lawful orders of the prison officers. The prosecutor noted the applicants’ injuries and considered that the use of physical force had been lawful and justified in the circumstances. The decision did not contain a conclusion concerning the officers’ alleged refusal to allow the applicants to dress in winter clothes. 24 . It appears from the decision that on unspecified dates Mr Zagaynov, Mr Kuznetsov, Mr Yakovlev, Mr Kondratyev and Mr Maltsev underwent forensic medical examinations. Their injuries were confirmed. Mr Vecherov also underwent a forensic medical examination, but no injuries were recorded. According to the decision, Mr Golovin did not undergo a forensic medical examination. 25 . On 16 June 2006 the Yoshkar-Ola Town Court dismissed an appeal by the applicants against the refusal as unfounded. The court found, among other things, that the applicants had been allowed to put on their winter clothes during the cell inspection. On 9 August 2006 the Supreme Court of the Mari El Republic upheld that decision. Gayasov Russia, application no. 12892/08 Alleged ill-treatment (a) Events of 3 December 2007 On 3 December 2007 the applicant, who had been convicted of a crime, was transferred to correctional colony no. 9 (IK-9) in the Volgograd Region to serve his sentence. According to him, upon his arrival colony officers insulted him and other detainees and beat them with truncheons. He was placed in a punishment cell. According to the authorities, the applicant disobeyed the officers’ orders upon his arrival and for this reason he was placed in a punishment cell. That evening seven colony officers took the applicant out of his cell and handcuffed him. They searched him and then kicked him to the floor and beat him with rubber truncheons. They mainly struck his heels and buttocks. He fainted several times. The officers then dragged him to the basement of the building. They hung him by his legs from the ceiling and continued striking his heels and buttocks with truncheons. He fainted three times and each time the officers poured cold water into his mouth to revive him. According to him, the ill-treatment lasted for at least an hour. After the beatings the officers took the applicant back to the punishment cell. He could not eat or drink and was mostly unconscious. He could not walk or sit because of the injuries to his heels and buttocks. 31 . At 30 p.a nurse gave him painkillers. According to her report, he had extensive bruising to his buttocks. 32 . On 4 December 2007 the applicant was examined by a doctor. According to his report, he had extensive bruising to his buttocks, and bruises on his wrists caused by handcuffs. (b) Events of 7 December 2007 33 . On 7 December 2007 the applicant, according to the authorities, again refused to obey the officers’ orders. They took him out of his cell and struck him with a truncheon on an open wound on his buttocks. He fell to his knees. He could not walk, and the officers forced him to crawl back to his cell. In his cell he cut his left wrist. 34 . The officers called a doctor, who bandaged his wrist and then left. Medical assistance provided to the applicant On 18 December 2007 the applicant’s injuries to his buttocks started to bleed. A surgeon was called. 36 . On 19 December 2007 he was urgently taken to prison hospital no. 15 in Volgograd. According to an extract from his medical records (no. 1909), he was found to have extensive purulent (pus-filled) wounds on both buttocks ( обширные гнойные раны обеих ягодиц ) complicated by blood loss, and multiple bruises on his back, shoulders, arms and legs. On 14 January 2008 he received a set of stitches for the wounds on his right buttock. The wounds on his left buttock remained purulent. 38 . The applicant remained in hospital until 22 April 2008. Following the medical treatment, the wounds on his right buttock were clean and healed. The wounds on his left buttock were still healing. Inquiry into the alleged ill-treatment On 28 December 2007 the applicant’s mother complained to a prosecutor that her son had been ill-treated by colony officers. 40 . On 4 February 2008 an investigator refused to open a criminal case into the alleged ill-treatment, referring to “explanations” by the colony officers that because the applicant had refused to comply with their orders physical force had been used against him. The investigator also referred to explanations by the applicant’s fellow inmates, who had confirmed the explanations of the colony officers. The investigator concluded that the applicant had sustained his injuries as a result of the officers’ use of physical force, handcuffs and a rubber truncheon, and also as a result of an attempt by him to commit suicide by cutting his wrists. On 22 May 2008 a senior investigator overruled the refusal as incomplete and ordered a forensic medical examination of the applicant. 42 . On 30 June 2008 the applicant underwent the examination. It appears from the report (no. 1564) that the injuries recorded by the hospital were confirmed and classified as moderate harm to health. The injuries to his buttocks could have been caused from falling over. On 3 July and 13 September 2008 the investigator refused to open a criminal case on the same grounds as before. On 18 February 2009 the applicant underwent another forensic medical examination. According to the report (no. 450), his injuries were not typical of injuries caused from falling over. Given their location and number, they had resulted from the impact of being struck at least eight times. 45 . On 19 February 2009 the investigator refused to open a criminal case on the same grounds as before. 46 . On 24 April 2009 the Traktorozavodskiy District Court dismissed a complaint lodged by the applicant against the investigator’s refusal. 47 . On 21 July 2009 the Volgogradskiy Regional Court dismissed an appeal by him against that decision. It endorsed the reasoning provided in the refusal and found that the physical force used against him had been justified. Pulyalin Russia, application no. 5264/10 Alleged ill-treatment in 2010 (a) Events of 10 to 15 January and 3 February 2010 On 10 January 2010 the applicant, who had been convicted of a crime, was transferred to correctional colony no. 56 in the Sverdlovsk Region to serve his sentence. According to him, colony officers beat him and other new detainees immediately after their arrival. He was punched, kicked and beaten with a wooden stick. The ill-treatment continued repeatedly until 15 January 2010. 49 . According to the applicant’s medical records of 1 February 2010, he made no complaints and had no injuries. According to the applicant, he was also beaten on 3 February 2010. 51 . On 5 February 2010 he underwent a forensic medical examination. According to the report (no. 68), he had no injuries. 52 . On 9 February 2010 he was examined by a doctor in the colony. No injuries were recorded. 53 . On 16 April 2010 the applicant was examined by a forensic medical expert. According to the report dated 15 June 2010 (no. 423), he had bruising to his buttock area, which had been caused four to six days before the examination. (b) Inquiry into the alleged ill-treatment On 3 February 2010 the applicant complained to an investigator that he had been subjected to ill-treatment. On 11 November 2010 the investigator refused to open a criminal case. He found no evidence of the applicant being subjected to ill-treatment in January and February 2010. The forensic medical examination in April 2010 had revealed injuries that had been caused a few days before the examination, but these could not have been the injuries allegedly inflicted months earlier. 56 . The applicant appealed to the Ivdelskiy Town Court, arguing that on 5 February 2010 the expert had not recorded all his injuries. On 20 October 2010 the court dismissed his appeal as unfounded. Alleged ill-treatment in 2013 In 2011 the applicant was transferred to remand prison no. 1 in Syktyvkar in the Republic of Komi for investigative activities. (a) Events of 28 May 2013 According to the applicant, on the evening of 27 May 2013 he had an argument with one of the prison guards. At about 6 a.on 28 May 2013 four guards took him out of his cell. They kicked him, handcuffed him and forced him to do the splits. Officer B. punched him in his right eye. He fell and the guards twisted his arms behind his back. 61 . On the same day the applicant was examined by a duty doctor. According to his records, he had a contusion on his right eye. (b) Inquiry into the alleged ill-treatment On 30 May 2013 the applicant complained to his lawyer that he had been subjected to ill-treatment. 63 . On 1 July 2013 the investigator refused to open a criminal case, referring solely to “explanations” by the prison officers that the applicant had given himself the contusion on his eye. On 17 July 2013 the applicant appealed to a court. 65 . On 19 July 2013 he underwent a forensic medical examination. According to the report (no. 2/2898-13), he had no injuries. On 23 July 2013 a senior investigator overruled the investigator’s refusal of 1 July 2013 as premature. He ordered an examination of the video recording of 28 May 2013. On 5 August 2013 the Syktyvkar Town Court discontinued the proceedings into the applicant’s complaint against the refusal since it had been overruled. 68 . On 1 August 2013 the investigator again refused to open a criminal case. The decision referred to video recordings made on a camera carried by one of the guards. According to the recordings, at 26 a.on 28 May 2013 the applicant was taken out of his cell and returned at 33 a.There were no ill-treatment or injuries recorded on the video. The investigator made the same conclusions as in the refusal of 1 July 2013. Aleksandrov Russia, application no. 21396/11 Alleged ill-treatment in February and March 2010 (a) Events between 16 February and 8 March 2010 The applicant, who had been convicted of a crime, was serving his sentence in a prison in Minusinsk in the Krasnoyarsk Region. According to him, at about 6 p.on 16 February 2010 prison guards caused him injuries to his head and liver, forced him to do the splits, and twisted his joints. The beatings were repeated daily until 8 March 2010. (b) Inquiry into the alleged ill-treatment On 16 March 2010 the applicant’s lawyer complained to an investigator that he was not allowed to meet the applicant, who had informed him that he had been ill-treated. 71 . On 18 March 2010, following the lawyer’s complaint, the investigator visited the applicant. According to his examination record ( протокол освидетельствования ), the applicant’s skin was torn on both sides of the groin. He had a bruise on his chest, a scar on his left eyebrow, and a broken nose. 72 . On 30 March 2010 the applicant underwent a forensic medical examination. According to the report (no. 344), he had a deviated nasal septum and deformed right little finger. He also had a scar on his left eyebrow. The injuries were classified as light harm to health. The report did not contain a description of his injuries in the groin area. 73 . On 15 April 2010 the investigator refused to open a criminal case. He referred to “explanations” by the prison guards, who had denied any use of force against the applicant, and to the expert’s conclusions that no serious injuries had been inflicted on him. On 29 April 2010 the refusal was overruled as incomplete. 75 . On 11 May 2010 the investigator again refused to open a criminal case. In addition to the explanations contained in the previous refusal, the investigator also referred to conclusions by the forensic medical expert that the applicant’s skin could not have been torn by stretching. The investigator also referred to the applicant’s fellow inmate’s explanations that the applicant did exercises in their cell, in particular the splits. He concluded that his skin could have been torn by doing this. On 30 December 2010 the Minusinskiy Town Court dismissed an appeal by the applicant against the investigator’s refusal. On 22 February 2011 the Krasnoyarsk Regional Court upheld that decision. Alleged ill-treatment in July 2010 (a) Events of 16 July 2010 78 . According to the applicant, on 16 July 2010 O., one of the inmates, beat him and broke his nose upon the instructions of the prison administration because of his earlier complaints of ill-treatment. (b) Inquiry into the alleged ill-treatment On 19 July 2010 the applicant’s lawyer complained to an investigator of unlawful actions by the prison guards. According to the applicant’s prison medical notes of 19 July 2010, he had an abrasion on his nose and a haematoma. The applicant explained that they had resulted from a fight with an inmate. On 21 July 2010 he was found to have an open and non-displaced nasal fracture. According to a forensic report of 20 August 2010 (no. 885), the soft tissue of his nose was swollen. He had an abrasion and a bruise on his face. 82 . On 26 October 2010 the investigator refused to open a criminal case against the prison guards. O. refused to give explanations, invoking his right not to incriminate himself. B. explained that he had been about to leave the cell when O. had been brought there. He submitted that the applicant had made some insulting remarks about O.’s parents so O. had hit him. The investigator referred to two reports of 16 July 2010 drawn up by the duty guards, according to which O. had been transferred to the applicant’s cell. O. had hit the applicant in the face because he had insulted him. The duty guards had immediately separated them. The prison guards gave similar explanations. The investigator concluded that the applicant’s injuries had resulted from his fight with O. and that the prison officers had not committed any unlawful actions. On 28 December 2010 the Minusinskiy Town Court dismissed a complaint by the applicant against the refusal of 26 October 2010 as unfounded. On 22 February 2011 the Krasnoyarsk Regional Court upheld that decision. Seliverstov Russia, no. 51153/14 Alleged ill-treatment on 24 December 2012 The applicant, who had been convicted of a crime, was serving his sentence in correctional colony no. 4 in Orenburg. According to him, at about 9 a.on 24 December 2012, during a cell inspection, a colony officer asked him to hand over a pack of cigarettes. The applicant refused and the officers twisted his arms, handcuffed him and punched him in his chest. The applicant fell over. The officers punched him at least fifteen times, insulted him and broke his glasses. 86 . On the same day the applicant was examined by a doctor. He was found to have a closed fracture of his left eighth rib, and a pneumothorax (collapsed lung). The applicant’s medical documents On 26 December 2012 the applicant complained to an investigator that he had been subjected to ill-treatment. 88 . On 8 February 2013 he underwent a forensic medical examination. According to the report (no. 885), the fractured rib and pneumothorax could have been inflicted by a hard blunt object. The injuries were classified as serious harm to health. He also had two abrasions on his head that could have been inflicted up to ten days before his examination on 24 December 2012. Between 29 March 2013 and 9 January 2014 five more forensic medical examinations were carried out. The conclusions were similar to those contained in the first report. 90 . On 3 June 2014 the applicant’s lawyer requested the Main State Centre for Forensic and Criminalistics Examinations to carry out an examination of the applicant’s medical documents and to assess, among other things, whether his injuries could have resulted from him falling down the stairs. According to the report (no. 134/14) of 18 June 2014, it was impossible to establish an accurate cause for the fracture and pneumothorax, but the injuries were not considered typical of those resulting from falling down the stairs. Investigation into the alleged ill-treatment On 8 February 2013 the investigator refused to open a criminal case, referring to “explanations” by the officers that the applicant had refused to hand over a pack of cigarettes, pushed the officer and run to the stairwell. He had stumbled and fallen down the stairs. On 20 February 2013 a senior investigator overruled the refusal as incomplete. (a) First round of the investigation On 21 February 2013 the investigator opened a criminal case into abuse of power. On 31 January 2014 the investigator terminated the investigation for lack of a criminal event ( отсутствие события преступления ). The investigator referred to statements by the applicant’s fellow inmates that on the night of 24 December 2014 they had been drinking alcohol and that the injuries had resulted from his own negligent actions. Meanwhile, on 6 February 2014 the investigator opened a criminal case against the applicant for making false accusations against the colony officers. On 4 April 2014 the Dzerzhinskiy District Court dismissed an appeal by the applicant against the decision of 31 January 2014 to terminate the criminal case as unfounded. On 23 May 2014 the Orenburg Regional Court quashed that decision as incomplete. On 16 June 2014 the Dzerzhinskiy District Court declared the decision of 31 January 2014 unlawful. (b) Second round of the investigation 99 . On 10 November 2014 the investigator terminated the investigation. He referred to the initial statements of the officers that the applicant, who had been drunk, had refused to hand over his cigarettes. They had not used any force against him. They had tried to grip his hands, but he had pushed them and then fallen down the stairs when he had attempted to run away. 100 . The investigator cited the conclusions of the forensic medical report of 29 March 2013 and referred to statements by the colony doctors that the applicant had been drunk on 24 December 2012. Lastly, the investigator also referred to conclusions of an internal inquiry that the applicant’s injuries had resulted from his own actions due to the consumption of alcohol and that the use of force and handcuffs had been lawful. 101. Meanwhile, on 13 March 2015 the applicant was convicted of making false accusations against the officers. The case file does not contain a copy of the judgment. 102. On 17 June 2015 the Leninskiy District Court dismissed a complaint by the applicant against the investigator’s decision as unfounded, referring to the conviction of 13 March 2015. 103. On 26 August 2015 the Orenburg Regional Court upheld that decision. Other relevant information 104 . On 16 March 2016 the applicant died. By a letter of 27 June 2016 the applicant’s mother, Ms Yakimova, informed the Court that she wished to maintain the application. 105 . On 8 May 2019 Ms Yakimova died. By a letter of 25 June 2019 Ms Yakimova’s daughter, Ms Komarova, informed the Court that she wished to maintain the application and pursue it. RELEVANT LEGAL FRAMEWORK AND PRACTICE 106. For the relevant provisions of domestic law on the procedure concerning the use of force in correctional facilities, see Dedovskiy and Others Russia (no. 7178/03, §§ 62-67, ECHR 2008). | Russian Federation | [
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56,201 | P1-1, 8 | She was adopted on 25 February 1972, at the age of seventeen. The applicant’s adoptive mother also had another adopted daughter, H.The applicant’s mother died in 1986. In 2003, the two sisters were jointly granted title to ten hectares of forest, based on their entitlement through adoption to inherit land which had been expropriated from their grandmother. Subsequently, the applicant brought an action for division of the land between the sisters. While the proceedings were ongoing, H.brought an action for annulment of the applicant’s adoption. She claimed that the main aim pursued by her adoptive mother when she had sought to adopt the applicant had been to ensure emotional and financial support for her in old age and help with everyday activities. H.averred that the only aim pursued by the applicant in agreeing to the adoption had been to obtain inheritance rights. The applicant submitted that the main reason why her sister had lodged the action for the annulment of her adoption had been to preclude her from inheriting half of the ten hectares of land and to keep all the property inherited from their adoptive mother for herself. In this respect she claimed that the lawfulness of the adoption order had never been questioned before, although it had been issued thirty-two years previously. She concluded that the misunderstandings which had arisen between her and her sister after the death of their adoptive mother could not justify the annulment of an adoption concluded in accordance with the law. In his final oral submissions before the first-instance court the applicant’s lawyer raised the objection of lack of locus standi of the plaintiff. He contended that H.had not proved a legitimate and current interest in seeking the annulment of her sister’s adoption. On 7 December 2004 the Suceava County Court dismissed the applicant’s objection and declared the applicant’s adoption void, finding that it had not had a purpose envisioned by the Family Code. It held that the only aim of the applicant’s adoption had been the fulfilment of the patrimonial interests of the adoptive mother and the adopted child, and that it had not been intended to ensure a better life for the applicant. The applicant lodged an appeal on points of law, maintaining that she had lived with her adoptive mother since she was nine years old, although the adoption order had only been issued in 1972 when she was seventeen. She submitted that the family relationship established between her and her adoptive mother since she was nine had been proved by witness statements which were in the case file, and that it was also attested to in the report drafted by the authorities when they carried out a social investigation in connection with her adoption. The judgment of the court of first instance was upheld by a decision of the Suceava Court of Appeal rendered on 15 April 2005. A dissenting opinion to that decision stated that the adoption had not been improper, as its main aim had been the welfare of the applicant, who had been born into a family with eight children and a difficult financial situation. | [
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69,846 | 6 | The proceedings began on 30 March 1992 when the applicant brought a lawsuit against third persons concerning the execution of a contract. On 19 June 1997 the first-instance court accepted the applicant’s claim. On 30 October 1997 the appeal court quashed the decision on legal costs, remitted that issue to the first-instance court for a retrial and upheld the remainder of the first-instance judgment. The first-instance court subsequently rendered three decisions on the costs of the proceedings on 23 July 1998, 19 February 1999 and 3 March 2000. All of these decisions were quashed on appeal. On 5 February 2013 the first-instance court rendered a fourth decision on the issue of legal costs awarding the applicant approximately 2,000 euros (EUR). According to the information on the file, the proceedings are currently pending before the second-instance court. On 13 March 2013 the Constitutional Court found a violation of the applicant’s right to a hearing within a reasonable time and awarded him EUR 300 for the non-pecuniary damage suffered in this regard. Furthermore, the Constitutional Court ordered the applicant’s proceedings to be expedited. | [
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71,451 | A. Background information The applicant was born in February 1980 in Leningrad, in the former USSR (since 1992 the city has been called St Petersburg or St Peterburg) to a mother who was a Soviet citizen and a father who was Polish. In May 1980 the applicant’s parents officially chose Polish nationality for the applicant. After his birth, the applicant lived in the former Soviet Union with his mother and then in 1985 moved with her to <COUNTRY>. In 1988 they returned to the USSR. In 1988 the applicant’s parents divorced. In August 1991 the applicant obtained a Polish passport, but continued to reside in Russia with his mother. Between December 1994 and June 1995 he spent six months with her in <COUNTRY> vising his father, and after his return to Russia he continued to reside in St Petersburg. According to the applicant, after that he lost contact with his father. The applicant resided in Russia as a foreign national based on a regularly extended five-year residence permit. According to the Government, on 16 September 1999 the St Petersburg Military Garrison Court found the applicant guilty of aggravated theft and gave him a suspended sentence of four years’ imprisonment with two years’ probation. From the documents submitted it transpires that this criminal record was subsequently expunged. In the spring of 2003, the applicant applied for yet another five-year residence permit, which was granted to him and remained valid until May 2008. In June or July 2004 the applicant graduated from university in St Petersburg and in October 2004 started working as a physical education teacher in a college. According to the applicant’s submission, he does not speak Polish, has no family or social ties with <COUNTRY> and has not visited the country for a number of years. Referring to records of border crossings, the Government partially contested that submission, stating that the applicant had visited <COUNTRY> in the years preceding his conviction. They pointed out, in particular, that the applicant had crossed the “Brest” border checkpoint between Belorussia and <COUNTRY> on 14 July 2004. B. The criminal proceedings leading to the applicant’s exclusion from Russia and relevant events On 22 December 2004 the St Petersburg Military Garrison Court found the applicant guilty under Article 111 § 3 of the Russian Criminal Code of causing grievous bodily harm to a military officer in the course of a group attack. The applicant and his two friends, who had all been drunk, had entered a shop, where the shop owner had asked them to leave owing to their behaviour. Then the applicant and his two friends had waited for the owner to come out from the shop and had then attacked him, causing him serious bodily harm – including fracturing the base of his skull, causing second-degree brain concussion, and breaking his upper jaw. The court convicted the three men of the assault and sentenced each of them to a term of imprisonment in a strict-regime correctional colony. The applicant was sentenced to six years’ imprisonment. In the text of the sentence, it was stated that the applicant had no criminal record at the time of the sentencing. On 4 May 2010 the Tosnenskiy Town Court in the Leningrad Region decided that the applicant should be released on parole as he had served more than two-thirds of his sentence. On 12 May 2010 the applicant was released; about seven and half months before the completion of his prison sentence. He was ordered to find employment and to visit the parole officer at regular intervals for the remainder of his sentence until 21 December 2010. On 16 March 2011 the applicant obtained a renewed Polish passport from the Polish consulate in St Petersburg which was valid until 16 March 2021. On 11 April 2011 the applicant lodged a request with the Dzerzhinsky District Court in St Petersburg seeking recognition of his right to Russian nationality by birth and asking to be provided with a Russian passport. On 12 October 2011 the court rejected his claim, finding that he did not have that right as he had never been a Soviet citizen. The applicant’s exclusion from Russia and his appeals against it On 9 March 2009 the head of correctional colony no. 3 of the Main Department for the Execution of Punishments in St Petersburg and the Leningrad Region concluded that a decision should be taken concerning the undesirability of the applicant’s remaining in Russia. On 25 March 2009 the Federal Service for the Execution of Punishments asked the Russian Ministry of Justice to issue a decision on the undesirability of the applicant’s residence in Russia. On 11 August 2010 the Russian Ministry of Justice issued decision no. 6204-p on the undesirability of the applicant’s presence (residence) in Russia and his exclusion from the country until 21 December 2018 following his criminal conviction (hereinafter “the exclusion order”). The decision stated that, given the applicant’s conviction for a particularly serious crime, his presence or residence in Russia represented a threat to public order. The applicant was informed of the decision on 30 November 2010. On 17 February 2011 the applicant lodged an appeal against the exclusion order with the Kirov District Court in St Petersburg. In it he argued that his exclusion from Russia would violate his right to respect for private and family life. He stated, in particular, that he had lived all his life in Russia, and that he had no relationship with his Polish father and had never resided in <COUNTRY>. He also stated in general terms that the exclusion would have an adverse effect on his family life with his mother, with whom he had lived all his life and who was his only relative. As for the issue concerning the seriousness of the crime he had committed, the applicant stated as follows; “I am obliged to comply with the conditions of the release on parole that is to remain in the <COUNTRY> due to the decision of the Tosnenskiy Town Court of 4 May 2010. Taking this decision [on my exclusion] represents a repeated additional punishment for me, which is not envisaged by the law. There are no grounds [to believe] that I represent threat to the public order, rights and lawful interests of Russian citizens.” On 9 March 2011 the applicant was informed in writing that he must leave Russia within three days, or face deportation. On 12 April 2011 the Kirov District Court dismissed the applicant’s appeal against the exclusion order. In its decision, the court stated, inter alia , that the applicant, being a Polish national, had failed to provide any evidence of Russian nationality, despite the fact that as a person who had been born in the USSR he could have applied for it. It further stated that the applicant had lived in Russia since 1980 and on 1 May 2003 he had been provided with a Russian residence permit valid until 1 May 2008. Despite his submission to the contrary, the applicant had indeed visited <COUNTRY>, as he had crossed the state border with <COUNTRY> on 14 July 2004. On 22 December 2004 the applicant had been convicted and sentenced to six years’ imprisonment in a strict-regime correctional colony and then on 4 May 2010 he had been released on parole, 7 months and 17 days prior to completion of the full sentence. On 11 August 2010 the Ministry of Justice had issued decision no. 6204-p excluding him from Russia until 21 December 2018. The court stated further that the decision had been taken due to the applicant’s conviction for commission of a premeditated serious offence and the danger he posed for public order, which was demonstrated by the crime he had committed – causing grievous bodily injuries to the victim. The applicant’s reference to his release on parole for good behaviour and the fact of his mother’s residence in Russia were not sufficient to outweigh the threat he represented to public order. The court also stated that even though the applicant had been released on 4 May 2010, he had not tried to apply for Russian nationality until almost a year later, on 11 April 2011. Since his release from prison in May 2010, the applicant had failed to find employment, despite that being one of the conditions of his parole, and although his positive character references had been of significance for his release on parole, they did not amount to convincing evidence that he would pose no threat to public order were he to continue to reside in Russia. The applicant’s need to comply with the requirements of his parole was not a valid reason for remaining in Russia, given that the relevant period had passed. As for the seriousness of the offence committed by the applicant, the court stated as follows: “... by sentence of the St Petersburg Military Garrison Court of 22 December 2004 Y. Zakharchuk was convicted for crime punishable under Article 111 § 3 of the Russian Criminal Code [causing grievous bodily harm] and sentenced to 6 years of imprisonment in a strict regime correctional colony. On the basis of decision of the Tosnenskiy Town Court in the Leningrad Region of 4 May 2010 Y. Zakharchuk was absolved from serving the rest of the punishment imposed by the sentence of St Petersburg Military Garrison Court of 22 December 2004 of 7 months and 7 days and granted parole ... On 11 August 2010 the Ministry of Justice issued decision no. 6204-p on the undesirability of Y. Zakharchuk’s presence (residence) in Russia ... The decision was taken ... as Y. Zakharchuk had been sentenced by St Petersburg Military Garrison Court to deprivation of liberty for the commission of a premeditated particularly serious crime ... of causing grievous bodily harm. Therefore, presence of Y. Zakharchuk in the <COUNTRY> creates a real threat to public order, rights and lawful interests of Russian citizens ... At present, Y. Zakharchuk’s criminal record for the commission of this particularly serious crime is not expunged. The positive character reference of Y. Zakharchuk from the place of serving the sentence and the circumstances due to which he had been released on parole represent the basis for the assessment of the convicted person’s behaviour and taking decision concerning the necessity of serving the sentence fully and does not serve as the evidence of the lack of a real threat to public order, rights and lawful interests of Russian citizens while Y. Zakharchuk is in the <COUNTRY>. Decision of the Tosnenskiy Town Court in the Leningrad Region of 4 May 2010 according to which Y. Zakharchuk was released on parole does not provide him with the right to be present in the <COUNTRY> ...” The applicant appealed against the above decision to the St Petersburg City Court, stressing that the exclusion order was not sufficiently clear, as it did not specify the nature of the threat he posed to public order, that it was not supported by evidence, and that the fact that he had been released on parole for good behaviour had been completely disregarded by the District Court. The applicant further stated that he had lived all his life in Russia with his mother, that he had no other relatives, that he had not ever lived in <COUNTRY>, had no ties with this country and had no relationship with his Polish father. Finally, the applicant stressed that the first-instance court had failed to examine his arguments concerning his right to Russian citizenship by birth. On 20 June 2011 the St Petersburg City Court endorsed the findings of the District Court. Its decision stated the following: “... the first-instance court established that Yan Zakharchuk was a Polish national ... On 11 August 2010 the Russian Ministry of Justice issued decision no. 6204-P concerning the undesirability of his presence (residence) ... and obliging him to leave the <COUNTRY> ... ... [when] examining the applicant’s submission concerning the absence of grounds for the decision prohibiting his entry into the <COUNTRY>, the [first-instance] court established that the decision had been taken to ensure safety for the State. The first-instance court correctly concluded that the decision on the undesirability of the applicant’s presence in the <COUNTRY> had been taken lawfully and had been confirmed by specific facts. At the same time, Mr Zakharchuk had fully exercised his right to have legal counsel. The decision by the Ministry of Justice was taken within its sphere of competence. As for the applicant’s argument concerning his Russian citizenship, the court finds it unsubstantiated [as] ... given that Mr Zakharchuk’s parents had chosen citizenship of the Polish People’s Republic for him, his USSR citizenship has been lost ... The applicant has not renounced his Polish citizenship and he has been provided with a Polish passport. Moreover, while residing in the <COUNTRY>, Mr Zakharchuk had acted as a foreign citizen, which was demonstrated by the fact that he repeatedly applied for residence permits and not for Russian nationality ... The court finds that the decision of the first-instance court is lawful and substantiated ...” On 26 July 2011 the applicant married a Russian national, Ms T.Sh., in St Petersburg. On 29 July 2011 the applicant was deported to <COUNTRY>. The term of his expulsion from Russia expired on 21 December 2018. | Russian Federation, Poland | [
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63,936 | 11 | The applicant was the leader of a trade union in a private company. His co-workers expressed a wish to hold a public assembly on Constitution Day on 12 December 2009 and the applicant, in his capacity as trade union leader, decided to help them. According to him, such help was “an indirect expression of his own opinion”. The applicant distributed banners and explained that it would be more practicable to stage solo demonstrations. To avoid prosecution for holding a public assembly without notifying the authorities in advance, the applicant suggested that his co-workers position themselves at some distance from each other, for instance on different streets. At the time, there was no federal or regional statutory requirement concerning the minimum distance between simultaneous solo demonstrations (see “Relevant domestic law”). The applicant was then arrested and taken to the police station, where he was held for three hours. On 18 December 2009 a justice of the peace found him guilty under Article 2 § 1 of the Code of Administrative Offences (“the CAO”) and fined him 1,500 Russian roubles (RUB) (35 euros at the time). The court considered that the applicant and his co-workers had met in one place; the applicant had given instructions to the others and had distributed banners; he had taken them to the place of the demonstration. In the court’s view, the above circumstances disclosed the presence of a group event in the form of a static demonstration (a “picket”), and confirmed the applicant’s role as its organiser. Thus, it was incumbent on the applicant to lodge a prior notification about this event to the competent authority as required by section 7 of the Public Events Act (“the PEA”). The applicant appealed noting that the PEA defined a “picket” as a form of public expression of opinion where one or more citizens with placards, banners and other means of visual expression stationed themselves near the target object of the “picket”. However, there had been a separate “target object” for each solo demonstrator; the demonstrators had been positioned at a considerable distance from each other (for instance, thirty metres for two of them); thus, he could not be lawfully considered as an organiser of a group event. On 22 January 2010 the Surgut Town Court upheld the judgment. | [
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77,620 | 14, 11 | The applicants were born in 1966, 1963 and 1966 respectively and live in Ostrov, Pskov Region. The Government were initially represented by Mr G. Matyushkin, the Representative of the <COUNTRY> to the European Court of Human Rights, and most recently by Mr Vinogradov, his successor in that office. The facts of the case, as submitted by the parties, may be summarised as follows. Background information and discriminatory practices The applicants worked at a municipal educational institution, the Youth Creativity Centre ( Дом детского творчества им. К. И. Назаровой – “the Centre”), in Ostrov, Pskov Region. In June 2006 the second applicant was elected chair of the primary trade union active at the above-mentioned institution ( первичная профсоюзная организация работников образования и науки Дома детского творчества им. К. И. Назаровой ). The first and third applicants were elected members of the union’s executive committee. The primary trade union formed part of the Ostrovskiy District Education and Science Employees’ Trade Union ( Островская районная организация профсоюза работников образования и науки России – “the district trade union”), which, in its turn, was a structural element of the Pskov Regional Education and Science Employees’ Trade Union ( Псковская областная организация профсоюза работников образования и науки России – “the regional trade union”). From January 2008 the applicants were allegedly subjected to harassment and discriminatory practices by their employer on account of their trade union activity. According to the applicants, as a result of a conflict between the district and regional trade unions on account of the former’s active position in protecting the social and labour rights of its members, by a mutual arrangement between the Ostrovskiy District Department of Education and the regional trade union, on 29 January 2008 it was decided that the district trade union would be liquidated. The primary trade union was allegedly pushed to join (directly) the regional trade union. On 1 March 2008 the applicants, acting on behalf of the primary trade union, chose to join an alternative regional trade union – the Pskov Regional Organisation of the Russian Trade Union of Culture Employees ( Псковская областная организация Российского профсоюза работников культуры ). However, on 13 March 2008 the latter union cancelled its decision to accept the primary trade union as its member, on the grounds that the employees concerned were from the sphere of education but not culture, and their former district trade union had not been consulted. On 21 March 2008, in response to the above-mentioned changes, an independent trade union was created at the Centre ( Независимая профсоюзная организация Дома детского творчества им. К. И. Назаровой – “the independent trade union”). The second applicant was elected chair of the independent trade union; the first and third applicants were elected deputy chairs. 12 . With reference to underfunding, by orders of 19 March 2008 (later revoked) and 17 April 2008, the Centre changed its staff schedule, as a result of which the applicants’ working hours, and, consequently, their salaries, were to be reduced. On 30 April 2008 the independent trade union joined the All-Russia Trade Unions’ Association ( Общероссийский объединенный профсоюз работников здравоохранения, образования, культуры, городского транспорта, энергетики, государственных и муниципальных организаций, сферы обслуживания Объединения профсоюзов России СОЦПРОФ ) . The first and second applicants submitted that on 26 May 2008 they had met the head of the Ostrovskiy District Department of Education, who had suggested that they either resign from their jobs or secede from the All ‑ Russia Trade Unions’ Association and join the regional trade union . On 28 May 2008 the independent trade union complained to the local prosecutor’s office, alleging that the liquidation of the former district trade union had been unlawful; that the members of the independent trade union had suffered discrimination and violations of their labour rights, including as a result of the Centre’s order of 17 April 2008; and that financial offences had been committed by the director of the Centre. As the first and second applicants had refused to work on the conditions set out by the order of 17 April 2008 (see paragraph 12 above), on 25 June 2008 they were dismissed from their jobs. There is no evidence that the Centre dismissed any other employee. Following an objection by the prosecutor’s office which had found “a breach of the applicable legislation concerning the [applicants’] dismissal procedure”, the Centre’s orders of 17 April 2008 and, consequently, of 25 June 2008, were set aside. On 1 September 2008 the Centre again reduced the applicants’ working hours and, accordingly, their salaries. On the same day the Centre informed the applicants that their positions would be abolished on 6 November 2008. On 18 September 2008 the independent trade union requested that the Centre set aside the order of 1 September 2008. 18 . On 5 November 2008 the applicants were dismissed with reference to the need to make staff redundant. The dismissal took place during the collective agreement negotiations between the Centre and its employees’ trade unions, in which the applicants participated on behalf of the independent trade union. There is no evidence that the Centre dismissed any other employee. Court proceedings On 2 December 2008 the applicants instituted civil proceedings against the Centre, challenging their dismissal of 5 November 2008 and seeking to be reinstated and awarded compensation for lost earnings and non ‑ pecuniary damage. They further asked the court to acknowledge that the employer’s actions had discriminated against them on the grounds of their involvement in trade union activities. 20 . On 26 March 2009 the Ostrov Town Court of the Pskov Region (“the Town Court”) granted the applicants’ claims against the Centre. The applicants’ dismissal was found unlawful because in breach of the applicable procedure the applicants’ independent trade union had not been consulted on account of their dismissal. Regarding the issue of discrimination against the applicants by their employer, the court held as follows: “The plaintiffs submitted documents to the court [confirming] their dismissal from their jobs on three occasions in the course of 2008 on the initiative of the employer, two of which [decisions] were quashed by a prosecutor and one by a court, thus enabling [this] court to acknowledge that the actions [by the employer] against [the applicants] had been discriminatory, including on the grounds of their membership of a public association. As the Plenum of the Supreme Court of the <COUNTRY> has explained, when a court examines a reinstatement claim by an employee who has been dismissed at the initiative of the employer, the obligation to prove the existence of lawful [grounds] for the dismissal and compliance with the prescribed procedure for dismissal lies with the employer (Ruling no. 2 of the Plenum of the Supreme Court of the <COUNTRY> of 17 March 2004, § 23). The respondent and its representative have not submitted convincing evidence to [this] court that the termination of the [employment] contract on the initiative of the [employer] to reduce staff was based on law.” The Town Court awarded the applicants their unpaid salaries for the period between their dismissal and reinstatement – 26,626 Russian roubles (RUB), RUB 26,864 and RUB 39,421, respectively (about 600 euros (EUR), EUR 600 and EUR 900, respectively, at the time). The court also awarded each of the applicants RUB 10,000 (about EUR 220 at the time) in respect of non-pecuniary damage caused by their unlawful dismissal. 21 . On 7 July 2009 the Pskov Regional Court (“the Regional Court”) partly upheld the above-mentioned judgment. In particular, it agreed that the applicants’ dismissal had been unlawful because, in breach of the applicable procedure, the applicants’ trade union had not been consulted prior to their dismissal. The Regional Court also upheld the first-instance court’s awards in respect of pecuniary and non-pecuniary damage (fully enforced by that time). It, however, set aside the Town Court’s reasoning regarding discriminatory actions against the applicants, holding as follows: “[The Regional Court] cannot agree with the finding of [the Town Court] that the actions of the director of [the Centre] discriminated against [the applicants], because the material in the case file does not contain evidence to the effect that [the applicants’] membership of the trade union was the reason for their dismissals.” After the applicants’ reinstatement on 26 March 2009, they continued working for the Centre. Since 23 August 2010 the first applicant has become the director of the Centre, with the third applicant working as her deputy. The second applicant is the president of the independent trade union (which includes about thirty Centre employees among its members), while the first and third applicants are her deputies. RELEVANT LEGAL FRAMEWORK and practice Relevant domestic law and practice 23 . The Constitution of the <COUNTRY> (Articles 19 and 30), the Labour Code of the <COUNTRY> (Law no. 197-FZ of 30 December 2001, Article 3) and the Trade Union Act (Law no. 10-FZ of 12 January 1996, section 9) guarantee equality of rights, prohibition of discrimination (including on the grounds of (non-)membership of trade unions), freedom of public association and the judicial protection of rights. 24 . Article 56 § 1 of the Code of Civil Procedure of the <COUNTRY> provides that, unless a federal law states otherwise, each party is to prove the circumstances on which it relies to justify its claims and objections. In its Ruling no. 2 of 17 March 2004, the Plenum of the Supreme Court of the <COUNTRY> (§ 23) held as follows: “In the examination of a reinstatement claim by a person whose employment contract has been terminated at the initiative of the employer, an obligation to prove the existence of legitimate grounds for the dismissal and compliance with the prescribed procedure for dismissal is imposed on the employer.” Relevant international materials 26 . In its Digest of decisions and principles (fifth (revised) edition, 2006) the Committee of Freedom of Association of the International Labour Organisation stated as follows: “Anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions (para. 769). ... No person should be dismissed ... by reason of trade union membership or legitimate trade union activities (para. 771), even if that trade union is not recognized by the employer as representing the majority of workers concerned (para. 776). ... [A]dditional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts (para. 773). ... [O]ne way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct (para. 804). Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity (para. 795).” The State has to “lay down explicitly remedies and penalties against acts of anti-union discrimination” (para. 813) and “ensure that complaints of anti-union discrimination are examined in the framework of national procedures” (para. 817). “It may often be difficult, if not impossible, for workers to furnish proof of an act of anti-union discrimination of which they have been the victim (para. 819). ... [O]ne of the measures that should be taken to ensure the effective protection of workers’ representatives, the adoption of provision for laying upon the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers’ representative, the burden of proving that such action was in fact justified (para. 830).” 27 . The European Committee of Social Rights of the Council of Europe, which is the supervisory body of the European Social Charter, has held that domestic law should provide for an alleviation of the burden of proof in favour of the plaintiff in discrimination cases (see Conclusions 2002, <COUNTRY>, p. 24). It later reiterated that, in the case of discrimination, the burden of proof must not rest entirely on the requesting party and must be the subject of an appropriate adjustment (see Digest of the case law of the European Committee of Social Rights, December 2018, p. 232). | Russian Federation, France | [
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79,255 | 5 | The applicants complained of the excessive length of their pre-trial detention. They also raised other complaints under the provisions of the Convention. | [
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79,254 | 3 | The applicants complained about their confinement in a metal cage in the courtroom during the criminal proceedings against them. Some applicants also raised other complaints under the provisions of the Convention. | [
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78,208 | 8 | The applicant’s details and information relevant to the application are set out in the appended table. The applicant complained of the secret surveillance in the context of criminal proceedings. He also raised an additional complaint under Article 8 of the Convention stemming from the same issue. | [
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61,285 | 5 | On 5 July 2007 the applicant, a police officer at the material time, was arrested on suspicion of abuse of official powers causing serious damage. On 10 July 2007 he was formally charged with the imputed crime. Subsequently he was additionally charged with embezzlement on a large scale as part of an organised criminal group. On 6 July 2007 the Zamoskvoretskiy District Court of Moscow remanded the applicant in custody on the ground of the gravity of charges. The court also reasoned that he might put pressure on witnesses, destroy evidence or interfere with investigation. On 3 September 2007, 11 December 2007, 10 April 2008 and 1 July 2008 the District Court extended the applicant’s pre-trial detention stating that the investigation was still pending, the case comprised 118 volumes and concerned fifteen suspects, the applicant had been suspected of a serious crime, could interact with his accomplices, abscond, destroy evidence and threaten witnesses. The court also took into account the applicant’s state of health, character and family status however it did not provide any detailed arguments in this respect. On 30 December 2008 and 20 April 2009 the District Court issued collective detention orders in respect of the applicant and other co-accused pending their study of the case-file. The court referred to the gravity of the charges, the defendants’ possibility to abscond, commit crimes and interfere with the investigation. The applicant’s appeals against the detention orders were rejected. On 9 June 2010 the Moscow City Court acquitted the applicant of all charges. | [
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62,448 | 6 | Absence from appeal hearings The applicants were convicted in Russia of various crimes. The applicants and their lawyers, except for Mr Yakupov, whose lawyer was present, were refused leave to attend the appeal hearings on the ground that their presence was unnecessary or without addressing this issue at all. Following communication of the cases, the supervisory-review courts quashed the appeal judgments at the prosecutor’s request and remitted the cases for fresh examinations before the appellate courts. In most of the cases the applicants and their lawyers were present at the new appeal hearings. Mr Trifonov and Mr Sidelnikov did not ask for leave to appear and did not attend the new hearings, but they were represented by lawyers. Detailed information about the applicants’ attendance and dates of the hearings is set out in Appendix B. Length of proceedings (application no. 31466/09) On 12 November 2002 criminal proceedings were initiated against Mr Zakhodyakin. Since then the criminal proceedings were suspended and reopened several times. On 26 June 2007 the Vuktyl Town Court of the Komi Republic found the applicant guilty of abuse of office and sentenced him to one year’s imprisonment. On 24 August 2007 the Supreme Court of the Komi Republic upheld that judgment on appeal. On 8 October 2008 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 24 August 2007 and remitted the case for a fresh examination. On 7 November 2008 the Supreme Court of the Komi Republic upheld the judgment of 26 June 2007. On 3 October 2012 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 7 November 2008 and remitted the case for a fresh examination. On 18 December 2012 the Supreme Court of the Komi Republic upheld the judgment of 26 June 2007. | [
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18,186 | 13, 6 | The applicant was born in 1975 and lives in Trbovlje. On 22 August 1997 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. On 5 January 1999 the applicant instituted proceedings against ZT in the Ljubljana District Court ( Okrožno sodišče v Ljubljani) seeking damages in the amount of 3,938,470 Slovenian tolars (approximately 16,410 euros) for the injuries sustained. Between 11 November 1999 and 19 February 2002 the applicant lodged three preliminary written submissions and/or adduced evidence. On 18 February 2000 and 2 April 2001 he made requests that a date be set for a hearing. Of the two hearings held on 18 June 2001 and 6 May 2002, none was adjourned at the request of the applicant. During the proceedings, the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 1 July 2002. On 12 July 2002 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani ). On 16 April 2003, the court upheld his appeal as far as the statutory default interests were concerned and rejected the remainder. The judgment was served on the applicant on 6 May 2003. On 20 May 2003 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). He also requested a withdrawal of a Supreme Court’s judge. On 14 July 2004 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 30 August 2004. | [
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65,988 | 13, 6, P1-1 | The applicant complained of the non-enforcement of domestic decisions given against the unitary enterprise, the foodservice centre of the commerce department of the Leningrad military district («Комбинат общественного питания Управления торговли ЛенВО») and of the lack of any effective remedy in domestic law. 5 . In accordance with the Government’s Decree of 6 July 1999, the Orders of the Ministry of State Assets of 12 October 1999 and of 9 December 1999, the assets of the unitary enterprise were transferred to a federal treasury enterprise without the transfer of the debts of the company. | [
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53,468 | 3 | At the time of the events the applicant was a lawyer registered with the Bucharest Bar Association. A. The applicant’s detention and handcuffing On 23 April 2010, the National Anticorruption Department (“the NAD”) asked the Bucharest Court of Appeal to place the applicant in pre ‑ trial detention for twenty-nine days on charges of organising a criminal group ( constituirea unui grup infracţional ) and trading in influence ( complicitate la cumpărare de influență ). At the hearing the applicant asked the court to note, inter alia , that he had been taken before the court handcuffed by a single pair of handcuffs to a co-accused. By an interlocutory judgment delivered on the same date, which was upheld by the Court of Cassation on 26 April 2010, the Bucharest Court of Appeal granted the NAD’s request. At a hearing of 23 August 2010 before the Bucharest Court of Appeal, the applicant argued, inter alia , that he had been brought to the hearings and presented to the public and press handcuffed to a co-accused. He also claimed that the conditions of his pre-trial detention were degrading. By an interlocutory judgment delivered on the same date, the Bucharest Court of Appeal found that the applicant could lodge a complaint about the conditions of his pre-trial detention under Law no. 275/2006 on the execution of sentences with the post-sentencing judge, who was competent ratione materiae to examine his submissions. On 26 October 2010 the applicant brought proceedings against the Codlea Prison authorities before the post-sentencing judge, complaining, inter alia , that he had been unlawfully restrained in public and when being taken before the domestic courts. By an interlocutory judgment of 1 November 2010 the post ‑ sentencing judge dismissed the applicant’s complaint. He held that according to the relevant legal provision detainees had to be restrained during their transfer from the transport vehicle to the court-house cells and from the court-house cells to the courtrooms when passing through public areas. Consequently, when the applicant had attended hearings before the Braşov Court of Appeal and the Court of Cassation he had been restrained only during his transfer from the transport vehicle to the court-house cells and from the court-house cells to the courtroom when he had been passing through public areas. The applicant appealed against the judgment. By a final judgment of 18 January 2011, the Braşov District Court dismissed the applicant’s appeal. It held that the applicant had been lawfully handcuffed. The measure had been necessary because of the route taken, which was a public route, had been applied only for that segment of the transfer, and had been proportionate to the potential danger the transfer represented for the safety of the public, the applicant and the escort. The same treatment was applied to any detainee in a similar situation. The applicant’s public exposure in handcuffs had been a consequence of his detention and not the result of an abuse of power by the prison authorities. Therefore, the applicant had not been subjected to inhuman or degrading treatment. In a letter of 30 November 2011 the applicant informed the Court that when he had learned about the criminal investigation opened against him, and his potential pre-trial detention, he had informed the press about it and had asked to speak to the prosecutor investigating his case. B. Conditions of detention The cells of the Bucharest Police Department From 23 April to 27 July 2010 the applicant was detained in cells of the Bucharest Police Department ( Arestul Direcției Generale a Poliției Municipiului București ). (a) The applicant The applicant stated before the Court that he had been detained in a 14 sq. m cell together with five other inmates. The cell was fitted with a squat toilet which the applicant could not use properly because of recent Achilles tendon reconstructive surgery that prevented him from squatting without pain shooting through his leg. The cell also had no sink, and he was able to wash himself and the cutlery only by using water from the pipe designed to flush the toilet. He also stated that on 31 May 2010 his cell had been disinfected with chemical substances sprayed by several individuals wearing protective suits and breathing masks in the presence of himself and the other inmates. Although he had asked to leave the cell for a walk, permission had been refused. His food, bed sheets, clothes, cutlery and dishes had not been removed from the cell prior to the disinfection. All six prisoners occupying the cell had begun to feel unwell afterwards. (b) The Government The Government submitted that the applicant had been detained in a cell of 57 sq. m equipped with six beds with bedrolls and a table with chairs. The cell was also equipped with a sink and a shower which were separated from the rest of the cell by a curtain. The inmates had access to cold and hot water. The cell was also equipped with a squat toilet and ventilated by a double window. The bedroll and the sanitary facilities were in proper condition. The cell was cleaned by the inmates. Hygiene products were purchased by them or supplied by the administration of the detention centre. The detainees were also allowed to receive personal hygiene items from their families. The applicant had been incarcerated together with five other persons and each one of them had been afforded a bed. On 31 May 2010 the cell had been disinfected according to the rules in force. The detainees had been evacuated prior to the disinfection and had only been allowed to re-enter the cell three hours after the disinfection had finished. There was no record of any incidents with regard to the environment or the health and security of any persons during the disinfection. Moreover, the applicant had not lodged any complaint in respect of the disinfection procedure and the applicant’s medical file did not indicate any health problems connected with it. The court-house cells (a) The applicant In his initial application, the applicant stated before the Court that every other day during the proceedings before the first instance court ( derulare a procedurii judiciare ȋn cursul judecații ȋn fond a cauzei ) he was taken to court hearings and kept locked up in the court-house cells while in the court building. The court-house cells lacked windows, running water and functioning sanitary facilities. (b) The Government The Government, relying on information and documents provided by the Presidents of the Bucharest and Braşov Courts of Appeal, stated that the court-house cells of the Bucharest Court of Appeal had been substantially renovated and re-opened in September 2006. The cells were fitted with modern equipment and facilities. Each cell had sanitary facilities, a lavatory, permanent running water, a ventilation system, windows, a lighting system, a heating system and benches. The cells were located in the basement, together with the registry, the court’s archives and the clerks’ offices. Any damage to the facilities that occurred was caused by the defendants themselves was remedied promptly. There were no detention rooms at the Braşov Court of Appeal. The detainees who were summoned before the court waited in a separate room to attend the hearing. The room had sanitary facilities, running water, heating, electric light and a double window. If running water was ever temporarily unavailable, the problem was immediately remedied. Transport conditions to and from the courts The applicant The applicant stated before the Court that when he was taken to court hearings he had to travel in unheated and unventilated cars, and that this situation persisted for a period of more than two hundred days, throughout the criminal proceedings against him. The Government The Government stated that the applicant had been transported to the court mostly by Rahova Prison and only four times by Codlea Prison. The Rahova Prison authorities used cars which seated a number of passengers equal to the number of detainees who were being transported. The vehicles were equipped with metal nets or grids and locks in order to protect the police escort officers. The detainees were transported in separate compartments according to their assigned category. The vehicles were in an adequate condition and complied with the road safety regulations. They were fitted with overhead windows for light and ventilation, as well as with electrical and heating equipment. The vehicles were subjected to periodical technical inspections. Additional facilities had been installed in the vehicles, such as ventilation sun roofs in the central compartment, benches in the rear compartment, air conditioning, and heating systems. The Codlea Prison authorities transferred detainees to the courts by two vehicles, one with nine seats and one with forty seats. Both vehicles complied with the safety regulations and were equipped with ventilation and heating and lighting systems and had separate compartments for different categories of detainees. The number of inmates transported was proportionate to the number of seats available in the vehicles. | [
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44,082 | 5, 5 | A. The applicant’s initial arrest, flight to the <COUNTRY> and extradition On 23 November 1993 the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner; the murder actually took place several days before his arrest. According to the prosecution, the applicant had paid two accomplices to strangle the victim in his car. Then, together with two other accomplices, he had driven the car with the victim’s body to another district, faked a road accident and set the car ablaze. Interrogated as a suspect, the applicant pleaded not guilty. Three days after the applicant’s arrest, on 26 November 1993, another set of criminal proceedings was initiated against the applicant on the fact of a large-scale contraband of sugar in the Riga Free Port. On the same date, the preventive measure taken with regard to the applicant in the first criminal proceedings (concerning murder) was altered; he was released upon a written undertaking not to change his place of residence. However, three days later, on 29 November 1993, the competent prosecutor ordered the applicant’s detention on remand in the contraband case. On 6 December 1993 the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant. On the same date the applicant was charged with committing an aggravated contraband. On 10 February 1994 the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence. In March 1994 the applicant was officially indicted on a charge of aggravated contraband and forgery. In January 1994 one of two persons having allegedly strangled the applicant’s business partner was found dead. On 1 June 1994, the other, Ķ., was arrested and detained on remand. Later, in September of the same year, he was released upon a written undertaking not to change his place of residence. On 17 July 1994, in spite of his undertaking not to leave his residence, the applicant left <COUNTRY> for the <COUNTRY> of America. On 5 September 1994 the Supreme Court committed the applicant to trial in the contraband case. On 21 September 1994, the prosecutor charged him with aggravated murder and ordered his detention on remand. On 3 October 1994 the Supreme Court, examining the contraband case as a court of first instance according to the law then in force, opened the hearing on the merits of this case. As the applicant failed to appear, the preventive measure against him was changed into a detention on remand, he was placed on the wanted list, and the proceedings against him were suspended. In January 1995 the prosecutor sanctioned a search operation in order to locate the applicant’s whereabouts. In January and February 1995 some investigative measures were taken in the murder case; namely, Ķ. was interrogated. The prosecutor also terminated criminal proceedings against one of the applicant’s accomplices who had allegedly helped him to dispose of the victim’s body; he was subsequently charged with concealment of a crime and intentional destruction of property. On 11 February 1995 the pre-trial investigation of the whole case was suspended. Two days later the Prosecutor’s Office ordered the applicant’s search via the Interpol information channels. On 28 February 1995 the competent prosecutor ordered the applicant to be detained on remand. On 28 June 1995 the Criminal Police informed the prosecutor that the applicant’s whereabouts were unknown. Consequently, on 3 July 1995 the case against him was disjoined from the rest of the murder case into a separate case file. Shortly thereafter, Ķ. and the other presumed accomplice disappeared and were placed on the wanted list. On 1 September 1997 the prosecutor charged the applicant with a complicity in murder. On 2 September, the prosecutor applied to the Latgale District Court of Riga for a detention order in respect of the applicant, given the fact that under the relevant amendments to the Code of Criminal Procedure a detention on remand could not anymore be applied by a prosecutor. On 3 September 1997 the order was granted, without specifying its temporal limit. On 12 December 1997 the Prosecutor General’s Office ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition. On 16 February 1998 the prosecutor resumed the investigation in respect of the applicant’s three presumed accomplices, who had been located in the meantime. On the same day, the proceedings against them were partly discontinued as time-barred. On an unspecified date, the Latvian authorities learned of the applicant’s stay in the <COUNTRY>. Accordingly, on 24 February 1998 the Prosecutor General’s Office asked the U.S. Department of Justice for assistance in legal matters, namely, to locate and to extradite the applicant in accordance with the Latvian-American Extradition Treaty of 1923. On 26 September 1998 the <COUNTRY> authorities took the applicant into custody pending extradition proceedings. On 22 October 1999 the competent U.S. Magistrate Judge granted an order allowing the applicant’s extradition to <COUNTRY> on the charge of aggravated murder. The applicant appealed requesting a stay of the extradition order. On 16 December 1999 the Interpol Office of the Latvian Ministry of Interior informed the Prosecutor General’s Office that the applicant was currently held in custody in California, and that the U.S. authorities had consented to his extradition to <COUNTRY> on the charge of aggravated murder. On 17 December 1999 the acting Secretary of State of the <COUNTRY> signed a written document approving the applicant’s deportation order. On 20 December 1999 the U.S. Marshals Service convoyed the applicant to the Frankfurt Airport (<COUNTRY>), where he was handed over to the Latvian authorities. On the same date he was brought to Riga and placed in the Central Prison. On the next day, on 21 December, the Prosecutor General’s Office was notified of this fact. On the very day of the applicant’s extradition, on 20 December 1999 the Central District Court of California stayed the extradition order of 22 October 1999. B. Pre-trial investigation On 22 December 1999 the competent prosecutor decided to resume the pre-trial investigation regarding the applicant. On the same date, the detention order of the Latgale District Court of 3 September 1997 was notified to the applicant, who attested it with his signature. On 27 December 1999 the applicant’s lawyer appealed against this detention order, stating that the latter had been taken in the applicant’s absence, that the judge who had taken it had no time to acquaint himself with the criminal case file, and that the detention was authorised for an indefinite period of time. By a final decision of 18 January 2000 the Riga Regional Court rejected the appeal, declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice, and that in this case, precisely, the applicant was hiding. On 10 February 2000 the Latgale District Court, acting upon the prosecutor’s request, extended the applicant’s detention on remand until 30 April 2000, with the following reasoning: “Taking into account the gravity of the crime committed, as well as the fact that K. Zandbergs could abscond from investigation and trial, and hinder the establishment of truth in the case...” The applicant appealed, stating that the time he had spent in custody in the <COUNTRY> had to be counted as a part of the overall time of his pre-trial detention and that, consequently, this detention had exceeded the maximum time-limit set by the Code of Criminal Procedure. On 6 March 2000 the Riga Regional Court rejected the appeal, refusing to subscribe to the applicant’s interpretation. According to the court, the time of his detention on remand should be counted from the 20 December 1999 when he was surrendered to the jurisdiction of the Republic of <COUNTRY>. On 14 February 2000 the charges against the applicant were amended. As the U.S. authorities had extradited the applicant on the condition that he would stand trial for murder, the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped. By an order of the Latgale District Court of 25 April 2000, reasoned in terms identical to the one of 10 February 2000, the applicant’s detention on remand was extended until 31 July 2000. The applicant’s appeal was dismissed on 19 May 2000, repeating in substance the reasoning of the previous appeal decision. On 4 May 2000 the Ziemeļu District Court of Riga dismissed the charges against the applicant in the contraband case, as there was no consent from the authorities of the extraditing State (e., the <COUNTRY>) to try him for the respective offences. On 27 June 2000 the applicant’s detention on remand was extended until 31 September 2000, with an almost identical motivation as before; however, the Latgale District Court added that the applicant had no registered domicile in <COUNTRY>. On 11 July 2000, the applicant’s appeal was dismissed. On 16 August 2000 the criminal cases against the applicant, Ķ. and the two other presumed accomplices were joined again in a single case-file. However, shortly thereafter the case against these two latter persons was disjoined from the common case file. On 18 September and 21 December 2000, the applicant’s detention on remand was extended, respectively, until 31 December 2000 and 28 February 2001. On 17 October 2000 and 9 January 2001 respectively, the Riga Regional Court rejected the applicant’s appeals. The reasoning of all these orders and decisions was the same as before. On 18 December 2000 the applicant was officially charged with organising an aggravated murder. On 21 December 2000 the prosecutor notified all the accused persons that the pre-trial investigation was completed and that they would now be able to acquaint themselves with the case file. On the same date, the applicant and Ķ. received the file, which consisted of 20 volumes. On 19 January 2001 they both finished reading it; the applicant then requested the prosecutor to terminate the proceedings against him. On 5 February 2001, this request was rejected. On 23 February 2001 the final bill of indictment was notified to the applicant. On 27 February 2001, the case file was sent to the Riga Criminal Court. Trial and conviction On 28 February 2001 the competent judge of the Riga Regional Court, without hearing the parties, took a decision to commit the applicant and the co-accused for trial and fixed a hearing for the period of time running between 30 April and 6 May 2002. The judge also decided that the applicant’s detention on remand “sh[ould] remai n unchanged”. No term for that detention was specified. The applicant did not appeal against this decision. On 5 and 7 March 2001 the applicant submitted two requests to the Riga Regional Court to decide on the lawfulness of his detention on remand, alleging that the consent from the <COUNTRY> to prosecute him had not been properly obtained. He also asked the court to order an additional pre-trial investigation and to alter the preventive measure applied to him. On 14 March 2001 the court rejected all these requests. On 19 March 2001 the applicant requested a separate hearing on the question whether the time he had spent in custody in the <COUNTRY> had to be counted as a part of his pre-trial detention for the purpose of the current proceedings against him and therefore, whether the maximum time-limit of a detention set by the Code of Criminal Procedure had been exceeded. On 26 March 2001 the court rejected this request. On 3 April 2001 the applicant asked the Regional Court to alter the preventive measure and to liberate him. On 30 April 2001, the court held a special hearing whereby both the applicant’s defence counsel and the prosecutor were heard. The court finally decided to reject the applicant’s request and to keep him in detention for basically the same reasons as before, e., the gravity of the crime for which he was accused, the risk of absconding and the lack of a fixed domicile. The court added that there was a risk that the applicant could commit new crimes, without developing this point. The applicant appealed. On 21 May 2001 the Criminal Chamber of the Supreme Court found the appeal admissible and scheduled the hearing on this procedural issue to take place on 28 May 2001. On the latter date, it held a hearing and dismissed the applicant’s appeal, upholding the Regional Court’s decision. The Chamber noted, inter alia , that in 1994 the applicant had already breached the preventive measure applied to him and had fled to America. On 31 August and 17 September 2001 respectively, the applicant applied to the Governor of the Matīsa Prison, requesting permission to make copies of two prosecutors’ replies to his complaints in order to submit them to the Court. His requests were refused by the Deputy Governor of that prison. It appears that the applicant did not appeal against the refusals. On 30 April 2002 the Riga Regional Court commenced the hearings on the merits of the case. However, as the applicant’s co-accused Ķ. failed to appear, the hearing was postponed until 2 May 2002. The court also ordered the police to ensure Ķ.’s appearance. However, on 2 May 2002, the police informed the court that the latter had fled to Russia. The court then decided to put him on the wanted list and to adjourn the proceedings sine die . On 3 and 20 May 2002 the applicant asked the court to alter the preventive measure applied to him. On 14 and 23 May respectively, this request was dismissed. On 29 May 2002 the applicant asked the case against Ķ. to be disjoined from his into a separate file, in order to be able to proceed more speedily. On 26 June 2002 the court rejected this request and affirmed that the applicant would stay in pre-trial detention. On 1 November 2002 a new wording of Article 77 (7) of the Code of Criminal Procedure entered into force. According to this new provision, a detention in remand should not exceed one year and six months upon committal to trial, and an extension thereto could only be granted by the Senate of the Supreme Court on an exceptional basis. Consequently, on 10 October 2002 the competent judge of the Riga Regional Court requested the Senate to grant such an extension because the applicant “[had] committed the serious offence”. On 1 November 2002 the Senate, without summoning the applicant and his defence counsel, decided to extend the applicant’s detention until 30 April 2003. The only reason mentioned by the Senate was that the applicant was accused of committing a serious and violent crime. On 25 November 2002 the applicant applied to the Riga Regional Court requesting either to obtain an appropriate permission from the <COUNTRY> to try and sentence him for a criminal offence or discontinue the criminal proceedings. On 6 December 2002 the Riga Regional Court informed the applicant that his requests will be examined at the hearing on the merits of the case. On 23 December 2002 the applicant repeatedly requested the Riga Regional Court to take an express decision on this issue, but to no avail. On 7 January 2003 the court informed the applicant that all his requests should have been decided at the preparatory hearing, according to the relevant Article of the Code of Criminal Procedure. However, as they had been submitted after the preparatory hearing, they were not subject to any other review at this stage of proceedings. On 3 March 2003 the Riga Regional Court commenced the hearing on the merits of the case. The applicant immediately tried to discharge the prosecutor, accusing him of committing a criminal offence and of forging evidence. The court rejected the applicant’s requests. On 11 March 2003, it resumed the hearing. The applicant tried to have the whole panel of three judges discharged because of their alleged impartiality in addressing the issue of the prosecutor. The court, again, dismissed the applicant’s requests. It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear. On the next day, the witnesses failed to appear again. The court, again, ordered the police to bring them under constraint. At the hearings of 14 and 17 March 2003 the applicant attempted again to have both the prosecutor and the judges dismissed, but in vain. The court also ordered the police to ensure the appearance of one remaining witness who had failed to appear. At the same hearings, referring to Article 487 of the Code of Criminal Procedure, the applicant also requested the court either to obtain an appropriate permission from the <COUNTRY> to try him or to terminate the proceedings. His request was dismissed. On 4 April 2003 the Riga Regional Court found the applicant guilty of organising the murder and sentenced him to nine years of imprisonment. The time he had spent in pre-trial detention or custody both in <COUNTRY> and in the <COUNTRY> was counted as a part of the sentence. As to Ķ., he was acquitted of murder, but found guilty of wilful destruction of property and sentenced to five years of imprisonment. The applicant appealed the judgment. He stated, inter alia , that he had been convicted in breach of Article 487 of the Code of Criminal Procedure as the consent from the extraditing state to try and sentence him had not been obtained. On the other hand, he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal. On 26 June 2003 the Criminal Chamber of the Supreme Court found the applicant’s appeal admissible. On 15 October 2003 it held its first hearing, whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence. His requests were granted, and the hearing was adjourned. On 3 November and 23 December 2003 and on 21 January, 3 March and 25 May 2004 the applicant filed additional observations to supplement his appeal. Moreover, on 15 December 2003 the American lawyer who had represented the applicant in the extradition proceedings in the <COUNTRY> sent a letter to “the Latvian High Court Criminal Division” ( sic ), stating that the applicant had been deported from the <COUNTRY> while the extradition proceedings had been pending. On 16 January 2004 the applicant filed a complaint with the Prosecutor General’s Office complaining about undue delays in the appeal proceedings. The complaint was transmitted to the Criminal Chamber of the Supreme Court. On 12 February 2004 the President of the Criminal Chamber found that the proceedings were postponed lawfully. The applicant sent an essentially identical complaint to the Ministry of Justice, which also forwarded it to the Criminal Chamber. In reply, the latter informed the applicant that a hearing in his case was fixed for 2 June 2004. By a judgment of 3 June 2004 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal. It upheld the evaluation of the evidence by the first instance court in full. It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained; in this respect the Chamber referred to a document signed by the US acting Secretary of State on 17 December 1999 approving the applicant’s deportation order. The applicant filed a cassation appeal, reiterating his argument based on Article 487 of the Code of Criminal Procedure. On 3 September 2004 the Senate of the Supreme Court declared the cassation appeal inadmissible for lack of arguable points of law. It considered inter alia that the document signed by the acting Secretary of State of the <COUNTRY> on 17 December 1999 had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained. In 2007, having served his sentence, the applicant was released from prison. | Latvia, Germany, United States | [
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82,301 | 3 | The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | [
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61,384 | 5 | THE CIRCUMSTANCES OF THE CASE The applicant Mr Zaushkin was held in custody without a judicial order from 5 November 2012 when the detention order of 17 May had expired, and until 19 November when a new detention order was issued. In case of the applicant Mr Kornev, the 25 April 2013 the court had ordered his transfer from the remand prison under house arrest but he was not transferred until 16 May. The applicant Mr Butenko remained in custody after the court had ordered his release on 25 April 2013 until a higher court overturned the release order on 11 July. | [
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73,130 | 5, 6, 5, 11, 6, 6 | The applicants’ details are set out in the appended table. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the <COUNTRY> to the European Court of Human Rights, and then by his successor in that office, Mr Galperin. The facts of the case, as submitted by the parties, may be summarised as follows. Rally of 2 March 2014 On 1 March 2014, after the “Maidan” protest and the subsequent political events in <COUNTRY>, the Council of the Federation of the Federal Assembly (the upper house of the Russian Parliament) approved the President’s request to use armed forces on the territory of <COUNTRY>. As a response to this decision, on 2 March 2014 a rally was held on Manezhnaya Square in Moscow. The city authorities had not been duly notified about the rally. According to the report of the Ombudsman’s representative, by 30 p.around 300 people gathered on the square. At first the protesters stood silently holding homemade posters “No to war” and “No to intervention in Crimea” as well as white paper doves. At around 3 p.the police arrived. Half an hour later the protesters started to chant “No to war”. The police officers arrested those chanting first, then some of the protesters who were standing by. By 4 p.the rally participants had been pushed back to the Hotel Moscow, where the arrests continued. According to the Ombudsman’s representative, around 100 people were apprehended by the police. The applicants’ arrest, detention and conviction for administrative offences The applicants were apprehended during the rally of 2 March 2014. They were transferred to various police stations of Moscow where the relevant administrative records were drawn up. The administrative-offence records were based on the reports and explanations of the police officers who had arrested the applicants. On the same day, once the administrative records were finalised the applicants were released. On various dates the domestic courts convicted the applicants under Article 2 § 5 of the Code of Administrative Offences and sentenced them to fines. Ms Shtyrkova (application no. 7542/15) was ordered to pay 5,000 Russian roubles (RUB). Mr Kuznetsov (application no. 11474/15) was ordered to pay RUB 15,000. Other applicants had to pay a fine of RUB 10,000. Relying on the administrative records, the reports and explanations of the police officers the domestic courts found the applicants liable for violating the established procedure for the conduct of a public assembly on account of their participation in the unauthorised rally. In particular, the courts considered unlawful that some of the applicants shouted slogans and/or failed to verify whether the gathering was legitimate. As submitted by the applicants, Ms Vyatkina, Mr Filyushkin, Mr Kulikov, Mr Torgashev, Mr Kuznetsov, Ms Mitrokhina (applications nos. 3541/15, 7110/15, 7386/15, 7430/15, 11474/15, 51114/15, respectively) did not pay the fines. RELEVANT LEGAL FRAMEWORk For a summary of the relevant domestic law see Navalnyy Russia [GC] (nos. 29580/12 and 4 others, §§ 46-47, 15 November 2018). The domestic legal provisions governing administrative transfer (escorting) and detention are also set out in the case of Butkevich Russia (see no. 5865/07, §§ 33-36, 13 February 2018). 13 . According to Article 9 of the Code of Administrative Offences, if a decision imposing an administrative punishment is not enforced during two years from its entry into force, it can no longer be executed. The time when enforcement of such a decision is suspended or stayed is excluded from the aforementioned period. | Russian Federation, Ukraine | [
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66,690 | 8 | The applicant’s residence in Russia In 2005 the applicant, an information technology specialist, moved from <COUNTRY> to the Krasnodar Region in Russia to live with his parents and brother, O.Z., who were Russian citizens. He resided there on the basis of visas and temporary residence permits. In January 2007, the applicant married Ms K., a Russian national, with whom he had a son in June 2009. On 23 December 2008 the Kazakh authorities provided the applicant, upon his request, with an official statement certifying that he had no criminal record in <COUNTRY>. The applicant had requested the document with view to applying for Russian nationality through the simplified procedure for spouses of Russian nationals. In January 2009 the applicant submitted his application for Russian nationality to the Federal Migration Service in the Krasnodar Region ( Управление Федеральной миграционной службы по Краснодарскому краю ( ФМС )) (hereinafter “the Krasnodar FMS”). In May 2009 the Krasnodar FMS rejected the application, referring to information provided by the Federal Security Service ( Федеральная Служба Безопасности ( ФСБ )) (hereinafter “the FSB”) that the applicant posed a threat to Russia’s national security. On 13 August 2009 the FSB informed the applicant about a decision it had made on the undesirability of his presence (residence) in Russia and on prohibiting him from re-entering the country until July 2014 (hereinafter “the exclusion order”). The applicant was to leave Russia within fifteen days of receipt of the letter. He was not provided with the reasons for the decision, its date or number. B. The applicant’s appeals against the exclusion order On 13 November 2009 the applicant appealed against the exclusion order to the Oktyabrskiy District Court in Krasnodar, which forwarded it for examination to the Krasnodar Regional Court (hereinafter “the Regional Court”), which had jurisdiction under domestic legislation to look at cases involving State secrets. In his complaint, the applicant alleged, inter alia , that the exclusion order was arbitrary, that it had been taken on the basis of undisclosed information and that his removal from Russia would disrupt his family life. In particular, the applicant stated that he was ethnically Russian, had no connection with <COUNTRY> and that his wife and child, as well as his brother and parents, were Russian nationals residing in Russia. He was the family breadwinner and his exclusion would entail distress and financial hardship for his wife and son. On 24 March 2010 the Regional Court examined the applicant’s appeal in camera. The applicant testified before the court and stated that in 1999 his brother O.Z. had been prosecuted by the <COUNTRY>’ authorities for a computer crime perpetrated in that country; after serving his sentence in the <COUNTRY>, in 2004, his brother had returned to Russia, of which he was a national, and had been offered a job by the FSB. Meanwhile, the applicant and his parents had been pressured by the Kazakh security services to convince his brother to return to <COUNTRY> and collaborate with them. Shortly thereafter, in 2005, the Kazakh authorities had opened a criminal case against the applicant on suspicion of computer fraud. Later that year, due to the Kazakh authorities’ pressure and his Russian ethnic origin, the applicant had decided to move to Russia. In 2006, the Kazakh authorities had pardoned the applicant and his criminal record had been expunged. The applicant stressed that throughout his time living in Russia he had been a law-abiding person, had been in full compliance with immigration regulations and had a wife and child who were Russian nationals. He pointed out that he was an ethnic Russian, that he did not speak Kazakh, had no family in that country, and that he had neither a place to live in <COUNTRY> nor the financial means to move there with his wife and infant son. Also at the hearing on 24 March 2010, the applicant’s counsel requested that the court examine the factual grounds for the exclusion and allow him to access the documents which had served as its basis. He stressed that the FSB had failed to produce a single item of evidence to substantiate their allegations about the threat the applicant posed for national security. Referring to the case of Liu Russia (no. 42086/05, 6 December 2007), he pointed out that the authorities had to provide evidence proving the applicant was a threat to national security, given that the sanction against him, the five-year exclusion, would lead to the disruption of his family life. The court examined and dismissed the request, stating that as the matter was within the FSB’s exclusive competence it fell outside the scope of judicial review. From the documents submitted to the Court, it is unclear whether the FSB presented the Regional Court with any evidence concerning the applicant’s case, other than its letter to the applicant of 13 August 2009 (see paragraph 10 above) and copies of the relevant legal provisions governing the activities of the FSB and the applicable immigration regulations. On the same date, 24 March 2010, the Regional Court rejected the applicant’s appeal and upheld the exclusion order. Its decision stated, amongst other things, the following: “ ... in July 2009 the Federal Security Service took a decision on the undesirability of Mr Zezev’s presence (residence) in the <COUNTRY> and on prohibiting his re-entry into the country until July 2014 ... In his complaint, Mr Zezev seeks to have the decision of the Federal Security Service declared unlawful and for it to be overruled, referring to the following: He has resided in the <COUNTRY> for five years. He has never committed any crime, either in Russia or <COUNTRY>. He does not have a criminal record. His character has been described in positive terms. He does not represent a threat to the security of the <COUNTRY>. He does not have a place to live in <COUNTRY>. He is ethnically Russian and wants to work and live in Russia. The FSB’s decision is unlawful and unsubstantiated ... ... [According to the applicant] the court should examine [his] case in the light of the right to respect for his private and family life and respect for a citizen’s choice of the place for his family life. There is no evidence of any alleged criminal activities ... ... the FSB decided on the undesirability of Mr Zezev’s presence (residence) in Russia and on prohibiting his re-entry into the country until July 2014. The application of such preventive measures is within the Federal Security Service’s scope of discretion. The decision [in respect of the applicant] was taken by FSB officials within the scope of their authority and the procedure defined by federal legislation and was approved by the competent official. Given the circumstances, Mr Zezev’s request to have the FSB’s decision on the undesirability of his presence (residence) in Russia and on the prohibition on his re-entry until July 2014 declared unlawful should be rejected ...” On 5 April 2010 the applicant appealed against the above decision to the Supreme Court of the <COUNTRY> (hereinafter “the Supreme Court”). He referred, in particular, to the Court’s case-law on Article 8 of the Convention concerning the right to respect for family life. He stated that the Regional Court had failed to examine whether the FSB decision had been substantiated by proof. He pointed out that the FSB had not furnished any evidence to the court of alleged activities by him that posed a threat to national security. The applicant further stated that even though he was a Kazakh national he was an ethnic Russian, did not speak Kazakh, and had nowhere to live in <COUNTRY> as his parents had also moved to Russia in 2005. He further stressed that he had married a Russian national in 2007 with whom he had had a son in 2009 and that all his family members were Russian nationals. Lastly, the applicant pointed out that he was the sole breadwinner for his wife and infant child. On 2 June 2010 the Supreme Court upheld the Regional Court’s judgment stating, amongst other things, the following: “...On 22 July 2009 the Federal Security Service issued a decision on the undesirability of the presence (residence) of the Kazakh national Mr Zezev in the <COUNTRY> and on the prohibition of his re-entry ... In the cassation appeal Mr Zezev seeks to have the judgment of the Krasnodar Regional Court overruled as unlawful. The court sees no basis for granting that request ... When deciding to reject Mr Zezev’s request, the Regional Court had in its possession information which served as the basis for the [FSB] order. Mr Zezev’s arguments concerning the unlawfulness of the FSB order were examined by the Regional Court. In those circumstances, the Chamber finds that the applicant’s right to a proper defence was fully complied with and that the reasons for the decision concerning the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry, which was taken owing to the real threat he posed to national security, have been confirmed by concrete facts. As for the applicant’s arguments concerning a violation of his private interests as a result of the decision on the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry, the Chamber does not agree with him as it finds that in the circumstances of the case public interests should outweigh private interests. In those circumstances, the decision of the Krasnodar Regional Court should remain unchanged ...” Subsequent developments On 17 August 2010 the FMS issued an order for the applicant’s deportation. It appears from the case file that the sanction was not enforced as, according to the applicant, he informed the local authorities that he had an application pending before the Court. He continued to reside in Russia. In May 2011 the applicant and his wife had another child. On 19 November 2013 the police arrived at the applicant’s home and fined him for a breach of immigration regulations under Article 8 of the Code of Administrative Offences (“the COA”). Then the police detained him on the spot and took him to the court. The applicant was then taken to the Sovetskiy District Court in Krasnodar, which on 21 November 2013 ordered his deportation and placed him in a special centre for the detention of foreigners. On 26 December 2013 the applicant was deported from Russia. On an unspecified date in February 2014 the applicant attempted to re-enter Russia but was informed at the border that he was banned from entering until 31 July 2014. The applicant has submitted that on 30 July 2014 police officers arrived at his wife’s home in Russia and informed her that he was wanted on suspicion of a crime. The applicant’s wife explained that he had been deported from Russia in December 2013. It is unclear whether the applicant returned to Russia after the expiry of his re-entry ban on 31 July 2014. According to the Government, the applicant neither applied for a temporary residence permit nor sought Russian nationality between 2014 and 2016. In their submission to the Court, the Government stated that on 12 December 2008 and 25 November 2012 the applicant was fined for being intoxicated in public and then on 19 November 2013 for a violation of immigration regulations (see paragraph 19 above). The Government further stated that on 31 July 2014 the police in Krasnodar had opened a criminal case against the applicant on suspicion of involvement in computer fraud. As of October 2016 the criminal proceedings against the applicant were still pending. In reply to a request by the Court for a copy of the documents which served as the basis for the decision to exclude the applicant, the Government only furnished a thirteen-page copy of the transcript of the hearing of the applicant’s appeal by the Krasnodar Regional Court on 24 March 2010 (see paragraphs 12-14 above). | Kazakhstan, Russian Federation, United States | [
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15,042 | 8 | The applicant and O. had a relationship and were living together for an unspecified period. In 1994 O. gave birth to the applicant's son, P. In August 1996 during the applicant's stay abroad, P.'s mother, O., moved out from their house and took P. with her, apparently as a result of growing tensions and disagreements in the couple. Afterwards she refused to allow the applicant to have contact with P. Subsequently, on an unspecified date, the applicant took P back to his place, without O.'s agreement. On an unspecified later date O. filed with the Białystok District Court ( sąd rejonowy ) a request for limitation of the applicant's parental responsibility for P. On 12 September 1996 the court issued an interim order to place P. with his mother. It relied on P.'s age, on the fact that O. breast-fed P. and, also, on the fact that he was suffering from allergy. On the following day a court-appointed guardian assisted by a police officer arrived at the applicant's place and after a two-hour skirmish took P. away. On 8 November 1996 the applicant and O. concluded a friendly settlement as to the access arrangements. They agreed that P.'s place of residence would be with his mother. The applicant had a right to take P. to his place at specified dates and times in 1996. Starting from 1 January 1997 he was supposed to spend every second weekend with his son at his home. As to the exact dates of meetings in 1997 the parties agreed to determine them at a later date. At the beginning of 1997 O. refused to hand over her son to the applicant, maintaining that P. was ill at that time. In February 1997 the applicant requested that a court guardian assist him in meetings with P., submitting that O. failed to comply with the settlement they had concluded in November 1996. On an unspecified date the applicant petitioned the Białystok District Court to fine O. for obstructing his contacts with P. as established in the settlement of 8 November 1996. He also requested the prosecution authorities to institute criminal proceedings against O. On an unspecified date at the requests of the applicant and O. proceedings concerning parental responsibility were instituted. On 4 April 1997 the Białystok District Court stayed the proceedings concerning the applicant's petition, considering that only after the completion of the parental-responsibility proceedings would it be possible to examine them. The court observed that the parties to the court settlement of November 1996 had not specified the dates of the applicant's meetings with P. and that therefore the settlement was impossible to enforce. It was therefore impossible to examine the applicant's petition to have a fine imposed on O. On 19 May 1997 the applicant went to O. and, after an altercation, took his son away. Subsequently, O. informed prosecution authorities that the applicant had kidnapped P. and threatened her. On 22 May 1997 the applicant sent letters to the Białystok District Court and the prosecution authorities informing them that he had taken over the custody of P. and would continue to exercise his parental rights until the completion of the parental-responsibility proceedings pending before the District Court. He declared that O. would be able to meet her son at the applicant's home. On 17 July 1997 the District Court, at O.'s request, ordered the applicant to hand over P. to O. within seven days. Initially, he declared his willingness to do so, but, subsequently, went into hiding together with his son. On 5 August 1997 the Białystok District Prosecutor ( prokurator rejonowy ) discontinued the proceedings initiated at the applicant's request, considering that O. had not committed the criminal offence of obstructing his contacts with P. It was established that O. had ceased to comply with the terms of the November 1996 settlement at the beginning of 1997, relying on the fact that P. had been sick at that time. She also objected to the applicant taking P. to his home as he lived far away from O.'s residence. The applicant's appeal against that decision was dismissed by the Regional Prosecutor ( prokurator wojewódzki ). On 25 August 1997 the prosecutor discontinued the investigations instituted at O.'s request. He considered that the applicant had not committed a criminal offence. It had been established that since 22 March 1997 O. had not allowed the applicant to take his son to his home, despite the fact that P. had got better. The applicant had only been allowed brief visits at her home to see P. The applicant had informed the police and requested to be given assistance, but his efforts failed to affect the mother's conduct. It was further pointed out that after taking away P. from his mother the applicant had informed the prosecution authorities in Białystok and Otwock about the incident. In the light of the fact that the applicant had full parental rights in respect of P. the prosecutor did not consider his acts a criminal offence. O.'s allegations about having been threatened by the applicant proved unsubstantiated. On 21 August 1997 and 16 September 1997 the Otwock District Court ordered the applicant to reveal P.'s place of residence and warned him that in case of failure to comply with its order he would be fined, with imprisonment in default. He did not comply with these orders. On 5 February 1998 the Otwock District Court issued an enforcement order in respect of the Białystok District Court's decision of 17 July 1997. It ordered a bailiff to take P. from the applicant by force and hand him over to O. On 24 February 1998 in the course of the parental-responsibility proceedings the Białystok District Court limited the applicant's parental rights to a right to information about his child's health. It amended the settlement of 8 November 1996 in that it decided that further contacts between the applicant and his son should take place on the third Saturday of each month at the mother's home from 10 a.to 4 p.without the possibility to take P. anywhere. The court referred to the November 1996 settlement between the parties, to the subsequent difficulties in the applicant's access to P. and to the fact that on 19 May 1997 he had taken P. to his place. The court considered that although there was nothing in the case-file to suggest that the applicant's parenting skills were insufficient and it was difficult to establish to which of the parents P. was more attached, the applicant's conduct in the course of the proceedings proved his disrespect to the organs of justice and disregard of the interest of the child. The court dismissed O.'s request to divest the applicant of parental rights, considering that at that stage it was too early to adopt such a serious measure. The applicant and O. appealed against that decision. On 27 April 1998 the Warsaw Regional Court ( sąd wojewódzki ) dismissed the applicant's appeal against the enforcement order of 5 February 1998. On 19 June 1998 the Białystok Regional Court amended the District Court's decision of 24 February 1998 in that it deprived the applicant of all parental rights in respect of P. It considered that he had abused his rights by making it impossible for the son to contact his mother, whereas the mother's care at that stage of the child's development was indispensable. The court further found that the applicant's continuing hiding was to the child's detriment, especially because he was apparently working and his son was taken care of by other people. It emphasised that the child had the right to decent life conditions, home and stability, of which the applicant had deprived him. The court further pointed out that the difficulties in enforcing court orders in the past could not justify the applicant's conduct and he should have availed himself of legal remedies. On 8 August 1998 the police took P. away from the applicant. On 17 August 1998 the applicant requested the District Court to prevent the issue of a passport for P., submitting that O. intended to abduct P. abroad. In reply, he was informed that until the date when the judgment of 19 June 1998 obtained legal force the passport would not be issued without the applicant's approval. On 28 August and 23 September 1998 the applicant informed the Białystok District Court about instances of obstructing his contact with P. by O. and requested assistance in the enforcement of his access rights. On 9 September 1998 the Białystok Regional Court dismissed the applicant's request for the appointment of a legal-aid lawyer for the purpose of lodging a cassation appeal and exemption from courts costs. The court found that he ran a business and in July 1997 his income had reached 700 Polish zlotys (PLN), whereas he would have to pay only a PLN 30 fee for his cassation appeal and the legal fees in a case like his would not exceed PLN 300. The court further noted that the applicant was single and owned a plot of land with a building under construction, as well as a car. On 6 October 1998 the Regional Court rejected the applicant's cassation appeal against that decision, as it was not provided for by law. On 16 December 1998 the Supreme Court rejected his appeal against the latter decision. On 24 November 1998, in reply to the applicant's complaint, the Office of the Prime Minister requested the Białystok District Court to submit information and documents concerning the applicant's case, as it had certain doubts as to the decision to restrict his parental responsibility for P. On 16 December 1998 the Head of the Family Department at the Białystok District Court informed the applicant that none of the court guardians had agreed to assist in the arrangements for his contact with P. On 24 February 1999 the Ombudsman's office requested the Warsaw Regional Prosecutor to indicate the policemen who on 8 August 1998 had taken P. away from his father, as well as the person who had ordered it, in breach of the provisions of the Code of Civil Procedure. The applicant submits that no further measures were taken by the Ombudsman. On 16 March 1999 the Białystok District Court dismissed the applicant's and O.'s petitions concerning his contact with his son. The court relied on the opinion prepared by two experts, according to which the relations between the child and parents were disturbed, and because of the child's age it was recommended that the meetings with the father would take place at the mother's home. The experts noted that P. would not want to leave his father. They pointed out that the need to maintain P.'s contacts with his father existed, but that the parents did not show understanding for the needs of the child and were driven by the wish to harm each other. On 18 June 1999 the applicant filed with the Białystok Regional Court a petition in which he requested that O. be deprived of her parental rights and he be granted parental responsibility. Subsequently, he asked the court to issue an interim order to the effect that P.'s place of residence would be with the father. In 2000 the applicant filed an unsuccessful request for the reopening of the proceedings terminated on 19 June 1998. On 8 February 2001 the Białystok District Court refused the applicant's request for the enforcement of the part of the judgment given on 24 February 1998 concerning his contacts with his son. The court considered that the place of residence of O. and the son was unknown and therefore enforcement was impossible. On 20 February 2001 the District Court dismissed the applicant's petition to deprive O. of parental responsibility for P. It noted that the applicant's submissions as to the allegedly improper manner in which the mother looked after P. were unsubstantiated. On the contrary, the experts were of the opinion that there were strong emotional bonds between her and P. The applicant appealed. In her letter of 26 February 2001, written in reply to the applicant's complaint, the President of the Białystok Court of Appeal agreed with his contention that the proceedings were lengthy. On 27 March 2001 the police authorities informed the applicant that O. with his son had left for London on 30 May 2000. On 17 May 2001 the Białystok Regional Court quashed the District Court's decision of 8 February 2001. On 10 August 2001 the District Court, following the Regional Court's instructions, stayed the enforcement of the orders concerning contact between the applicant and his son because the applicant was unable to indicate O.'s place of residence. On 27 September 2001 the Regional Court dismissed the applicant's appeal against the decision of the District Court. The proceedings are stayed. | Poland | [
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69,707 | 8 | In 1972 the applicant’s grandmother was provided with a flat under a social tenancy agreement. Her son, the applicant’s uncle, lived in the flat until his death in November 1998. In 1995 the applicant’s uncle admitted that he was the father of a newborn baby boy A., whose mother was G., and at his request the boy was registered as living in the flat as the grandson of In November 1998 the applicant’s uncle died. In December 1998 the applicant moved into the flat with her grandmother and, with the written consent of her grandmother, the authorities registered her as living in the flat as ’s granddaughter. In October 2004 the applicant and her grandmother brought court proceedings against G., as she was the legal representative of A., who was a minor. Their statement of claim, as far as relevant, read as follows: “My son, Moshkin Yuriy ..., had close relations with the defendant [G.]. In May 1995 she [G.] gave birth to a baby boy, A. Moshkin Yu. acknowledged his paternity in respect of his son A., and registered him as living in our dwelling. A., a minor, never moved into our flat, since his mother, the defendant in the present case, lives in a neighbouring apartment building in a three-room flat, together with her parents. ... Moshkin Yuriy, the father of A., a minor, died in November 1998. The charges for the flat increase every year. We, the claimants, have an income which is below the minimum wage. I have been classed as having a second-degree disability, whereas Ansimova Dinara [the applicant] is a student... The defendant does not pay communal charges for her son, who is registered as living in the flat... Taking into account that A., a minor born in 1995, was registered as living in our dwelling but never moved in, he has not acquired any right to those living premises, since registration is an administrative act. In accordance with Article 20 of the Civil Code, the place of residence of minors under the age of 14 is the place of residence of their legal representatives – their parents. A., born in 1995, has acquired a right to the living premises where his mother [G.] lives...” 11 . The applicant and her grandmother asked the court to declare that G.’s son had not acquired any right to use the flat. Later, they submitted additional claims, seeking to recover from G. the amounts they had paid for communal charges. In particular, they submitted that G. had started paying charges in April 2005, after they had brought court proceedings against her. They also submitted that they had already accumulated debts for communal charges. G. brought a counterclaim against the applicant and her grandmother, seeking the applicant’s eviction from the flat. She submitted in particular that after the death of her son’s father, the applicant, who had been living in the flat, and her grandmother had changed the locks and had not let her and her son into the flat. She submitted that in 2003 she had got married and that she and her son were now living in her husband’s flat. 13 . In October 2005 the applicant’s grandmother died. Following her death, the applicant amended her claims. She asked the court to acknowledge that she was the tenant of the flat and to oblige the district administration to conclude a social tenancy agreement with her. The applicant submitted the following arguments in support of her claims. (a) She had been living in the flat with her grandmother since 1984 and since 1998 had been registered there as ’s granddaughter. They had lived as a family in a shared household, and she had taken care of her grandmother. On several occasions the authorities had acknowledged that she and her grandmother were a low-income family, and had awarded them a housing allowance. (b) She had renovated the flat at her own expense. (c) G.’s son had been registered as living in the flat, but had never lived there. He had always lived with G. in the three-room flat which she owned. (d) G. had not been paying her son’s share of the charges for the flat. G. also submitted additional claims, seeking to have her son’s entitlement to the flat acknowledged and asking for the applicant to be deregistered from the flat. This time, G. submitted that the applicant had never moved into the flat and had never lived there. On 25 April 2007 the Nevskiy District Court of St Petersburg (“the District Court”) ordered the applicant’s eviction from the flat. The District Court further held that G.’s son had a right of occupation and that the district administration had to conclude a social tenancy agreement with him. On 19 July 2007 the St Petersburg City Court (“the City Court”) quashed the judgment of 25 April 2007 as regards the part concerning the applicant’s eviction and the obligation on the district administration to conclude a social tenancy agreement with G.’s son. The matter was remitted to the District Court for fresh examination. The City Court held in particular that, in coming to the conclusion that the applicant had not proved that she had moved into the flat as a family member of her grandmother and in taking a decision to evict the applicant, the District Court had not made any assessment of the fact that the applicant’s grandmother had initially brought the court proceedings together with the applicant and had never challenged the applicant’s right to occupy the flat. The City Court also pointed out that the District Court had not assessed other evidence submitted by the applicant confirming that she had carried out repair and decoration works in the flat, photographs of the applicant with her grandmother which had been taken in the disputed flat, or other evidence submitted by the applicant. 17 . On 5 March 2008 the District Court ordered the applicant’s eviction, following a fresh examination. The District Court found, with reference to Articles 53 and 54 of the Housing Code of the Russian Soviet Federative Socialist Republic (see “Relevant domestic law” below) that both the applicant and G.’s son were registered as living in the flat as the grandchildren of , the previous tenant. The court considered that G. had proved that her son had moved into the flat and had lived there for some time, but had not been able to move back because the applicant had not let him in. The court considered that the applicant had not proved that she had moved into the flat as her grandmother’s family member and had shared the same household and taken care of her. The court concluded that the applicant had to be evicted from the flat without being provided with alternative accommodation. 18 . The applicant appealed against that judgment. She submitted in particular that the District Court had not made any assessment of the fact that she and her grandmother had initially brought court proceedings together as members of the same family, and that her grandmother had never challenged her right to occupy the flat. Nor had the District Court taken into account her submissions that she had been living in the flat in question since childhood, that her grandmother had asked the authorities to register her as living in the flat, and that in 2000 and 2001 the welfare authorities had declared that they were a poor family. A., a minor, had always lived with his mother G. in a three-room flat which G. owned. On 19 June 2008 the City Court upheld that judgment. The City Court held in particular that in taking its decision in the case, the court of first instance had assessed all the evidence in the case, including the witness testimony, and had reasonably indicated that A. had acquired the right to use the disputed living premises because he had been moved into the flat as a tenant’s family member in accordance with the procedure provided for by law. Therefore, the court of first instance had come to the right conclusion that the claims brought by G., the mother of A., had to be granted. The City Court agreed with the conclusion of the court of first instance that the applicant’s claims had to be dismissed because the applicant had not proved that she had moved into the disputed flat and had shared the same household as the tenant, , her grandmother. Her registration as living in that flat had been of an administrative nature and had not provided her with any right to live there. In such circumstances, the judgment of the court of first instance had been lawful and duly reasoned. The City Court further held that the grounds of the applicant’s appeal had aimed to reassess the evidence in the case, and that, given the fresh conclusion that the court of first instance had duly assessed the evidence before it, those grounds could not serve as a basis for quashing the judgment. On an unspecified date the applicant was evicted from the flat. In January 2009 the administration of the Nevskiy District of St Petersburg concluded a social tenancy agreement with A. in respect of the flat in question. On 17 February 2009 the applicant was registered as living in a communal flat in which her husband owned a room. On 30 December 2009 the flat from which the applicant had been evicted was transferred to A. by way of privatisation. On 31 December 2009 the applicant, her husband and her daughter were placed on the municipal housing list as persons in need of housing. | [
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64,468 | 6, P1-1 | The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | [
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79,256 | 3 | The applicants complained about their confinement in a metal cage in the courtroom during the criminal proceedings against them. Some applicants also raised other complaints under the provisions of the Convention. | [
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80,432 | 6 | The applicants complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. Some applicants also raised other complaints under the provisions of the Convention and its Protocols. | [
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81,159 | 6 | The case originated in two applications against <COUNTRY> lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. The Albanian Government (“the Government”) were given notice of the complaints regarding excessive length of civil proceedings under Article 6 of the Convention. An additional complaint about the lack of remedies to address the length of the proceedings was communicated in case no. 53157/15 under Article 13 of the Convention. | Albania | [
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64,469 | 3, 13, 5 | The applicants complained of the excessive length of their pre-trial detention and about the conditions of their detention. Two applicants in applications nos. 35673/14 and 48873/14 also argued that they had not had an effective domestic remedy to complain about inadequate conditions of their detention. | [
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47,322 | 6 | They were born in 1954 and 1956 and live in Neratovice (the Czech Republic) and Prešov (<COUNTRY>) respectively. A. Property The applicants’ father owned a piece of real estate located in the centre of the city of Prešov, which comprised a plot of land and buildings standing on it. On their father’s death in 1964, the applicants each inherited half of that estate. The estate was subsequently seized by a State-owned enterprise and some of the buildings were torn down and new ones built. The new buildings included a garage. In the early 1990s the State-owned enterprise was privatised and transformed into a joint stock company. In 1992 the applicants brought an action for removal of the garage and vacant possession of their land. This action and its outcome is the main subject matter of the present application. The details are given below. In 2004 title to a portion of the real estate, which included the garage, was transferred from the joint-stock company to three individuals. Consequently, the action of 1992 was redirected against them. In 2005 the applicants brought another action seeking a judicial ruling declaring them to be the owners of the plot on which the garage was situated and of an adjacent plot. The action was directed against the three beneficiaries of the transfer of 2004 (see previous paragraph). On 27 September 2006, following a hearing held on the same day, at which the defendants acknowledged the applicants’ title, the Prešov District Court ( Okresný súd ) allowed the action of 2005. On 15 November 2006, on the basis of the ruling of 27 September 2006, the applicants and the defendants settled their differences by exchanging title to the garage for title to the adjacent plot, under the judgment mentioned above, and by setting off their mutual financial claims, including those under the judgments mentioned below. B. Action of 1992 First level of jurisdiction and appeal On 27 February 1992 the applicants lodged an action with the District Court seeking a judicial order for removal of the garage and vacant possession of their land. The District Court ruled on the action on 13 December 1995 and 18 November 1997. These judgments were quashed on appeal ( odvolanie ) and the action was remitted by the Košice Regional Court ( Krajský súd ) on 16 April 1997 and the Prešov Regional Court on 22 November 1998 respectively. On 30 September 2005 the District Court ruled on the action anew. It relied on the above-mentioned decision of the Prešov Regional Court of 22 November 1998 in acknowledging that the applicants were the owners of the land on which the garage stood and that the garage had been constructed on that land without the consent of its owners. The garage was therefore considered an “unlawful construction”. It was not practicable ( účelné ) to remove the garage or to have the applicants take over title to it. The situation had to be resolved under Article 135c § 3 of the Civil Code by establishing an easement for the benefit of the owners of the garage and by ordering that they pay the applicants compensation in an amount equivalent to some 3,050 euros (EUR). The amount of compensation was determined on the basis of an expert assessment with reference to existing prices as opposed to future prices. On 11 April 2006 the Prešov Regional Court upheld the judgment of 30 September 2005 following appeals by both the applicants and the defendants. The Regional Court fully endorsed the reasoning provided by the District Court, referred to previous judicial practice and held that in matters such as that at hand the courts were not bound to follow the parties’ specific requests, but rather had to resolve the matter within the parameters set by statute. Appeal on points of law On 6 June 2006 the applicants challenged the judgment of 11 April 2006 by way of an appeal on points of law ( dovolanie ). They relied on Article 237 (e) of the Code of Civil Procedure (“CCP”) and argued that the courts had wrongfully ruled on their action ultra petitum . In particular, the applicants argued that in litigious matters such as theirs the courts were bound by the plaintiffs’ formulation of the claims. The applicants had been seeking a ruling for removal of the garage or alternatively to have them established as the owners of the garage. However, the courts had made a ruling establishing an easement, which had not been sought. In addition, the applicants argued that the lower courts had failed to hear and examine all the evidence they had adduced. On 25 January 2007 the Supreme Court ( Najvyšší súd ) declared the appeal on points of law inadmissible. It upheld the Regional Court’s view that when dealing with “unlawful constructions” the courts were not bound by the specific requests made by the parties to the proceedings. A specific request for the situation to be resolved by way of establishing an easement had therefore not been required. The applicants did not have a right as such to have all evidence they adduced examined and taken into account. The appeal was thus not admissible on the ground identified by the applicants and neither was it admissible on any other ground envisaged by law. Constitutional Court First complaint On 17 March 2005, following a complaint by the applicants under Article 127 of the Constitution, the Constitutional Court ( Ústavný súd ) found that the District Court had violated their right to a hearing within a reasonable time and ordered that the District Court proceed with the case without delay. It awarded each applicant the equivalent of some EUR 515 in just satisfaction in respect of non-pecuniary damage. Second complaint On 6 June 2006 the applicants lodged a new constitutional complaint. They contested delays in the proceedings subsequent to the Constitutional Court’s judgment of 17 March 2005 and challenged the judgments of the District Court of 30 September 2005 and the Prešov Regional Court of 11 April 2006 as having treated them unequally. On 4 January 2007 the Constitutional Court declared the complaint inadmissible. It discerned no unjustified delays in the proceedings and rejected the relevant part of the application as manifestly ill-founded. The Constitutional Court held that an appeal on points of law was a remedy that was available to the applicants, and observed that they had in fact used it (see paragraph 19 above). As it was still pending, that part of their constitutional complaint was premature. Third complaint On 19 April 2007 the applicants lodged a fresh constitutional complaint. They relied, inter alia , on Articles 6 § 1, 13 and 14 of the Convention and 1 of Protocol No. 1 and challenged the rulings of the Supreme Court of 25 January 2007 (see paragraph 20 above), the Prešov Regional Court of 11 April 2006 (see paragraph 18 above) and the District Court of 30 September 2005 (see paragraph 17 above) arguing that these rulings were incompatible with their property rights, of which they had failed to obtain protection. On 24 May 2007 the Constitutional Court declared the complaint inadmissible. It found that the complaint had been lodged outside the statutory two-month time-limit in so far as it concerned the rulings of the Prešov Regional Court of 11 April 2006 and the District Court of 30 September 2005. The complaint in respect of the decision of the Supreme Court of 25 January 2007 was manifestly ill-founded because that decision was not vitiated by any constitutionally relevant unlawfulness, arbitrariness or irregularity. The written version of the Constitutional Court’s decision was served on the applicants’ lawyer on 25 January 2008. | Slovakia | [
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64,272 | 3 | The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under the Article 13 of the Convention. | [
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65,785 | 6, 6 | Following appeals, their cases were examined by the appeal courts in the absence of the applicants’ legal counsel. Their convictions were upheld. Personal details and information relevant to the criminal proceedings against the applicants appear in the appendix. | [
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70,874 | 8 | The applicant was married to B., a police officer, who died on duty in June 2006. They had five daughters: E., born in 1997; , born in 1999; T., born in 2000; El., born in 2002, and Ir., born in 2003. They also had a son, R., who was born in 2006, three months after B.’s death. A. Background events 8 . After B.’s death the applicant continued living with their children in his privately owned house in the village of Betty-Mokh in the Chechen Republic, in close proximity to her late husband’s relatives. According to the applicant, those relatives put pressure on her in an attempt to take possession of B.’s house and the regular payments from the State to which she was entitled as a result of losing the breadwinner in her family. In particular, according to the applicant, B.’s father forced her to give him a power of attorney to enable him to receive those payments on her behalf, with the result that the applicant had to ask him for money to support her children. 9 . On 15 February 2010 the applicant had an altercation with E.B., B.’s brother, who hit her on the head several times, inflicting a craniocerebral injury. On the same day, E.B. took the applicant to her mother’s place of residence in the village of Ishcherskaya and left her there. The applicant was thus separated from her children. According to her, her late husband’s relatives took away her identity documents, including her passport, and her mobile telephone and personal belongings. They stated that she would get her passport back only if she renounced her parental authority in respect of her children, who remained living with B.’s relatives – each of B.’s brothers kept one of the applicant’s children. In the applicant’s submission, such a situation came about because she had no male relatives of her own. The applicant has had no access to her children since 15 February 2010. 12 . On 20 March 2010 the applicant complained in writing to a district prosecutor’s office about the above-mentioned events. She also sought protection from law-enforcement agencies, stating that B.’s relatives had threatened her with physical violence. On 16 June 2010 she sent a similar complaint to the Representative for Human Rights in the Chechen Republic. It does not appear that any action was taken in respect of those complaints. On 20 April 2010 the applicant was issued with a medical certificate confirming that she had had a craniocerebral injury in 2010. B. First set of proceedings for deprivation of parental authority and determination of the children’s place of residence 14 . By an administrative decision of 14 April 2010, E.B. was appointed legal guardian of the applicant’s children. According to the applicant, she never consented to that decision and was unaware of it. On 27 April 2010 E.B. filed a court claim for the applicant to be deprived of her parental authority in respect of the children, stating that she had grossly neglected her parental duties towards them. In particular, he claimed that she had failed to bring them up properly and provide food and adequate living conditions for them, and that she had ill-treated them. He also stated that the applicant had abandoned the children in February 2010, as she had moved to the village of Ishcherskaya, where she had been living ever since. 16 . The applicant filed a counterclaim, complaining that her late husband’s relatives had prevented contact between her and her children. She challenged the administrative decision of 14 April 2010 (see paragraph 14 above) and sought to have it established that her children should reside with her at her current address in the village of Ishcherskaya. 17 . On 10 August 2010 the Naurskiy District Court examined the case. 18 . At the hearing on 10 August 2010 the applicant maintained her claim, arguing that her late husband’s relatives wished for her to be deprived of her parental authority only because they wanted to appropriate the payments to which she and her children were entitled as a result of the loss of B., the only breadwinner in their family. She contended that they had started those proceedings after she had annulled the power of attorney enabling them to obtain money on her behalf. The applicant described the incident of 15 February 2010 (see paragraph 9 above), and pointed out that on that date B.’s relatives had separated her from her children and had not allowed any contact between them since. She also said that they were trying to turn the children against her, stating that she was a bad mother and that she was immoral, as she had liaisons with unknown men. The applicant mentioned that she had had to swear on the Koran before her late husband’s relatives that she was not having any such liaisons. She further insisted that she loved her children, that she wanted them to live with her, and that she would not cease in her attempts to get them back. Representatives from two district custody and guardianship agencies stated that they had no evidence that the applicant had neglected her parental duties or had been unable to bring her children up for any reason, and therefore there were no grounds to deprive her of her parental authority, and such a measure would not be in the children’s interests. 20 . The Naurskiy District Court also ordered and examined a psychological examination and report on the applicant’s children, which stated that their continued separation from their mother was a deeply traumatising event for them, causing them anxiety and stress. The report went on to note that, instinctively, the children maintained positive emotions with regard to their mother, and needed her love and care. The examination also revealed the children’s lack of emotional attachment to their late father’s relatives; they did not perceive those people as their family members. At the hearing, the expert confirmed the findings of the report. 21 . The Naurskiy District Court then rejected E.B.’s arguments that the applicant had failed to fulfil her parental obligations, noting the absence of any evidence proving those allegations. It also found that there were no grounds to deprive the applicant of her parental authority in respect of her six children, and dismissed E.B.’s claim. The court further granted the applicant’s counterclaim, annulled the administrative decision of 14 April 2010 by which E.B. had been appointed the children’s legal guardian, and ordered that the children should reside with the applicant at her address in Ishcherskaya. 22 . On 14 September 2010 the Supreme Court of the Chechen Republic upheld the judgment of 10 August 2010 on appeal. Enforcement proceedings 23 . Two writs of execution were issued on 10 August 2010; it appears that the first one ordered that the applicant’s children should reside at her home address, and the second one ordered that E.B.’s legal guardianship in respect of the applicant’s children should be annulled. The applicant’s attempt to get access to her children proved futile, as B.’s relatives refused to comply with the above-mentioned court decisions. 25 . On 10 March 2011 the applicant wrote to the Bailiffs Service of the Chechen Republic, complaining about her inability to get access to her children, and seeking enforcement of the judgment of 10 August 2010, as upheld on appeal on 14 September 2010. 26 . By a decision of 22 March 2011 the Bailiffs Service of the Nozhay ‑ Yurt District of the Chechen Republic (“the Nozhay-Yurt Bailiffs Service”) refused to institute enforcement proceedings and returned the first writ of execution to the applicant. It stated that the writ of execution submitted by the applicant did not meet the relevant requirements of the domestic legislation on the enforcement of court decisions, and, more specifically, the operative part of the judgment of 10 August 2010 “[did not] contain any requirements as regards there being an obligation on the defendant to transfer to the claimant property or monetary sums, or to perform certain actions or abstain from performing them”. 27 . On 26 May 2011 the Nozhay-Yurt Bailiffs Service took a similar decision with regard to the second writ of execution, citing the same reasons. 28 . On 15 June 2011 the applicant sent a written application to the Naurskiy District Court. She pointed to the bailiffs’ arbitrary refusals to enforce the judgment of 10 August 2010 in so far as it concerned the order that her children were to reside at her address and the annulment of E.B.’s legal guardianship in respect of the children, and asked the court to clarify its judgment of 10 August 2010 accordingly. 29 . On 13 July 2011 the applicant sent a similar application to the Naurskiy District Court, complaining that she had received no response to her previous application and that the judgment of 10 August 2010 remained unenforced. It does not appear that the applicant received any reply in respect of her applications. 30 . According to the Government, the bailiff in charge had no formal grounds to refuse to enforce the judgment, and therefore he should be held liable in disciplinary proceedings; however, the time-limit for disciplining him had expired by the time the Government submitted their observations, therefore on 4 February 2016 he was dismissed from the bailiffs service. On 11 February 2016 the prosecutor’s office of the Nozhay-Yurt District of the Chechen Republic sent the material used in the check on the bailiff to a relevant investigative department, for further investigation and, if necessary, the institution of criminal proceedings against him for the unlawful refusal to enforce the judgment in the applicant’s favour. Reopening of the case owing to newly discovered circumstances 31 . On 17 June 2011, at E.B.’s request, the Naurskiy District Court quashed its judgment of 10 August 2010, with reference to “newly discovered circumstances”, stating as follows: “When the court gave its judgment [of 10 August 2010], it was unaware of the fact that [the applicant] cohabited with an unemployed man with no specific place of residence, and that she spent on him all the money given to her by the State to support her children because of the loss of the breadwinner in their family. [E.B.] was also unaware of that fact at the moment when the judgment [of 10 August 2010] was given. In order to support his application, [E.B.] has adduced statements of persons who can confirm that [the applicant] leads an incorrect (immoral) life. In such circumstances, the court considers that [E. B.’s] application is well founded and should be granted”. 32 . The court thus ordered that the proceedings be reopened. On 30 June 2011 the applicant appealed against the decision of 17 June 2011 before a higher court. She stated that the information that she cohabited with a man was false, and that, in any event, such information could not be regarded as “newly discovered circumstances” within the meaning of the relevant provisions of domestic law on civil procedure. 34 . By a decision of 26 August 2011 the Supreme Court of the Chechen Republic upheld the decision of 17 June 2011 on appeal, endorsing the reasoning of the Naurskiy District Court. E. Second set of proceedings for deprivation of parental authority and determination of the children’s place of residence Psychological examination In the context of the new set of proceedings, the Naurskiy District Court ordered a psychological examination of the applicant’s three elder daughters. 36 . In a report of 24 January 2012 the relevant experts stated that at that time the children had a clearly negative attitude towards their mother. It went on to say that the girls felt comfortable and safe living with their uncle, E. B., and that taking them out of their habitual environment might traumatise them, as adapting to new living conditions and a different environment might be quite painful. At the same time the report stated that the examination had established that there was a lack of emotional bonds between the children and the relatives they were currently living with; the children did not identify them as family members. 37 . The report further stated that attempts to forcibly rupture the natural links between the children and their mother might result in detrimental effects that would negatively influence the children’s future life, and that the applicant, as their mother, should have unimpeded access to them. Proceedings before the court At a hearing, E.B. stated that the applicant had not taken care of her children and had led an immoral life, and that she had been seen in cars with one man and with another man at a late hour. According to him, in February 2010 he had seen her in a car with a man, had had an altercation with her, and had taken her to her mother, in the village of Ishcherskaya. In E.B.’s submission, the applicant would spend the payments which she received for the loss of the breadwinner in her family on herself, whereas it was he who had supported her children financially. He also stated that since the judgment of 10 August 2010, as upheld on 14 September 2010, the applicant had not taken any steps to reunite with the children; she had come to the village where they lived several times, but had not made any attempts to see them, which, in E.B.’s view, revealed that she had neglected her parental obligations. 39 . The applicant lodged a counterclaim, asking the court to determine that her children should reside with her and to annul E.B.’s guardianship in respect of them. At the hearing, she reiterated her statements made in the proceedings of 2010 (see paragraph 18 above). She also added that she had been unable to see her children after the judgment of 10 August 2010, as upheld on 14 September 2010, as all her attempts to have it enforced had proved futile – the bailiffs service had refused to take any steps with a view to enforcing it. She submitted that she had gone to the village where her late husband’s relatives and her children lived, but had been afraid of visiting her children because of her late husband’s relatives’ threats; she had already been beaten by E.B., who had prohibited her from coming to their village. As she had no male relatives of her own, she had gone there with people who had given her a lift. The court also heard a number of witnesses for the applicant and those who made statements against her, as well as representatives from district custody and guardianship agencies and a public prosecutor. It also heard the applicant’s three elder daughters, who explained that they had a highly negative attitude towards their mother because she had not taken proper care of them, had led an “incorrect” life, and had abandoned them two years earlier. They also expressed their wish to stay with their uncle, E.B. Judgment of 31 January 2012 41 . On 31 January 2012 the Naurskiy District Court examined the case. 42 . It found the allegation concerning the applicant’s immoral life unconvincing, stating that the fact that certain witnesses had seen her in a car with strangers who had given her a lift on several occasions could not be considered evidence of her immorality. The court further noted that, in any event, Article 69 of the Russian Family Code (see paragraph 73 below) contained an exhaustive list of grounds for depriving a parent of his or her parental authority, and immorality was not on that list. 43 . The Naurskiy District Court also found that, in the absence of any reliable evidence to that effect, it had not been proved that the applicant had ever avoided her parental duties in respect of her children. It critically assessed the statements of the applicant’s three elder daughters, noting that for the last two years they had been living with E.B. and had had no contact with their mother. The court therefore rejected E.B.’s claim to have the applicant deprived of her parental authority in respect of her children. 44 . With reference to the report of 24 January 2012 (see paragraphs 36 ‑ 37 above), the court further observed that, given the fact that by that point the children had been living with E.B. for two years and felt comfortable living with his family, it would be in their best interests to continue living with their uncle. The applicant shared that view, stating that because of her children’s extremely hostile attitude towards her, she might have difficulties in communicating with them, and therefore she would not object if they stayed with E.B. At the same time, she asked the court to determine her contact rights with her children, so that she could take them to her home address twice a month, as well as on public and school holidays. 45 . The court therefore ordered that the applicant’s children should continue living at E.B.’s place of residence and that his legal guardianship in respect of them should be maintained. It further ordered that the applicant should have a right to take her children to her place of residence on the first and last weekend of the month, from 10 a.on Saturday until 4 p.on Sunday, and during public holidays, from 10 a.on that day until 10 a.on the next day. The court also ordered E.B. not to obstruct the applicant’s contact with her children. 46 . The judgment of 31 January 2012 was not appealed against and became final and enforceable on 1 March 2012. F. Enforcement proceedings 47 . Between 2 April and 30 July 2012 the applicant unsuccessfully attempted to obtain a writ of execution from the Naurskiy District Court. 48 . On 6 June 2012 the applicant complained in writing to the Supreme Court of the Chechen Republic about the Naurskiy District Court’s failure to issue her with a writ of execution. She mentioned her numerous attempts to obtain the writ of execution, and stated that, in the absence of that document, she was unable to have the judgment of 31 January 2012 executed, as E.B. refused to comply with it. On 20 June 2012 the Naurskiy District Court issued the writ, but it was not given to the applicant until 30 July 2012. She immediately submitted it to the competent bailiffs service for enforcement. 50 . The enforcement proceedings commenced on 6 August 2012. 51 . According to the Government, on 27 August 2012 a bailiff from the Nozhay-Yurt Bailiffs Service obtained a written declaration from E.B. confirming that he would not prevent the applicant’s contact with her children; E.B. was informed that he could receive an administrative punishment if he failed to comply with the judgment of 31 January 2012. A copy of the relevant document was not submitted to the Court. 52 . On 13 September 2012 the applicant sent a complaint concerning the bailiffs’ inactivity and failure to enforce the judgment of 31 January 2012 to the Bailiffs Service of the Chechen Republic. She complained in particular that on numerous occasions, over the telephone and in person, she had asked the bailiff in charge to ensure that the judgment was executed and to accompany her to the village where the children lived and assist her in establishing contact with them. However, the bailiff had not accompanied her even once; he had merely referred to the fact that he had imposed an obligation on E.B. not to obstruct her contact with her children, and had invited her to seek the assistance of local custody and guardianship agencies in resolving the matter, stating that there was nothing else he could do. 53 . On 8 May 2013 the applicant sent a similar complaint to the Bailiffs Service of Russia. She again described the bailiffs’ inactivity and her numerous requests to have the judgment enforced. 54 . By a decision of 18 June 2013 the chief bailiff of the Nozhay-Yurt Bailiffs Service rejected as unfounded a complaint made by the applicant on the same day regarding the bailiffs’ inactivity. In his decision, the chief bailiff stated in particular that the applicant’s request that the bailiff provide her with assistance in securing her contact with the children on weekends and public holidays, as determined by the relevant judgment, was in conflict with the relevant legislation, which provided that at weekends and on public holidays, enforcement action could only be taken in exceptional circumstances. On 9 December 2013 the Nozhay-Yurt Bailiffs Service terminated the enforcement proceedings in respect of the judgment of 31 January 2012 on the grounds that that judgment had been annulled. 56 . According to the Government, on 12 February 2016 the prosecutor’s office of the Nozhay-Yurt District of the Chechen Republic (“the prosecutor’s office”) lodged an objection ( протест ) against the decision of 9 December 2013 with the acting chief bailiff of the Nozhay-Yurt Bailiffs Service. The prosecutor’s office pointed out in particular that although the bailiff in charge had terminated the relevant enforcement proceedings with reference to the annulment of the judgment of 31 January 2012, there was no court decision on the annulment of that judgment in the case file, nor was there any other relevant court decision, therefore terminating the enforcement proceedings had been unlawful. Following that objection, on 18 February 2016 the Nozhay-Yurt Bailiffs Service resumed the enforcement proceedings in respect of the judgment of 31 January 2012. On the same date the Nozhay-Yurt Bailiffs Service sent an application to the Nozhay-Yurt District Court, asking it to terminate the enforcement proceedings in respect of the judgment of 31 January 2012, in view of the conflict between that judgment and the judgment of 3 October 2013 (see paragraphs 62-65 below). The outcome of that application is unknown. G. Deprivation of parental authority On an unspecified date in July 2013 E.B. filed a new claim with the Naurskiy District Court, asking for the applicant to be deprived of her parental authority in respect of her children. He stated that she had not contacted her children in over three years, nor had she participated in their upbringing or supported them financially. Proceedings before the first-instance court At the relevant hearing, E.B., two representatives from the custody and guardianship agencies concerned and a public prosecutor insisted that the applicant should be deprived of her parental authority. They argued that since the judgment of 31 January 2012 the applicant had not made any attempts to contact her children, including her two elder daughters who no longer lived with E.B., as they had moved to Grozny for their studies. The applicant had not attempted to meet the other children at school or seek the assistance of the relevant custody and guardianship agencies in order to get access to her children. E.B. also stated that the children did not want to see their mother, as “she [had] dishonoured them” with her immoral life. 59 . The applicant contended that since her late husband’s relatives had forced her to leave in 2010 she had not seen her children and had had no influence on them. After the judgment of 31 January 2012 had become enforceable she had repeatedly sought the bailiffs’ assistance, asking for help in organising a meeting with the children, but the bailiff in charge had refused to accompany her to the village where her children lived, and she herself had been afraid to go there on her own because of her husband’s relatives’ threats of physical violence. She further stated that since B.’s relatives had set her children against her, her attempts to contact her two elder daughters at a medical college in Grozny, where they were studying, had proved unsuccessful, as the girls had simply refused to talk to her. The applicant firmly insisted that she had never avoided her parental obligations, nor had she ever refused to bring her children up; she reaffirmed her intention to maintain a relationship with them. P., the bailiff in charge, stated that he had duly instituted enforcement proceedings in respect of the judgment of 31 January 2012, and that he had met the applicant once and had explained to her the manner in which that judgment should be executed. He had also obtained a written declaration from E.B. in which the latter had promised not to obstruct the applicant’s contact with her children. The bailiff added that the applicant should have come to Nozhay-Yurt so that he could enforce the judgment, but she had only come there once and had stayed for five minutes, thus denying him sufficient opportunity to enforce the judgment. 61 . The court called and examined the applicant’s two elder daughters, who reiterated their statements made in the proceedings of 2012. They submitted in particular that they did not wish to see the applicant, as she “[had] brought shame on them by having relations with unknown men”. Judgment of 3 October 2013 62 . On 3 October 2013 the Naurskiy District Court examined the case. 63 . The court was not convinced by the applicant’s argument that the bailiff had failed to facilitate the contact with the children which had been determined by the judgment of 31 January 2012. It stated: that the applicant could have attempted to meet them at school or, as far as her two elder daughters were concerned, at medical college; that she could have sought the assistance of local custody and guardianship agencies; and that she could have supported the children financially, as she received payments from the State for that purpose. The court went on to note that since the judgment of 31 January 2012 the applicant had failed to do any of those things, which, in the court’s view, indicated that she had avoided bringing up her children. The Naurskiy District Court also referred to the opinion of the applicant’s two elder daughters (see paragraph 61 above). It noted that although it had given the applicant time to improve the situation, a year and a half later her children’s hostile attitude towards her had not evolved. 65 . The court thus found that E.B.’s claim should be granted, as the applicant had “avoided bringing up her children”, and therefore she should be deprived of her parental authority, in accordance with Article 69 of the Russian Family Code (see paragraph 73 below). It also ordered that she should pay child maintenance to support her children, and that it should be paid to E.B., the children’s legal guardian. Appeal proceedings 66 . On 25 February 2014 the Supreme Court of the Chechen Republic upheld the first-instance judgment on appeal, endorsing the reasoning of the first-instance court. | [
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18,187 | 13, 6 | The applicant was born in 1954 and lives in Rečica ob Savinji. On 6 March 1998 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. On 2 November 1998 the applicant instituted civil proceedings against ZT in the Celje District Court ( Okrožno sodišče v Celju ) seeking damages in the amount of 3,107,000 tolars (approximately 13,000 euros) for the injuries sustained. Between 3 September 1999 and 11 June 2003 the applicant made eight requests that a date be set for a hearing. Between 13 June 2000 and 11 June 2003 he lodged ten preliminary written submissions and/or adduced evidence. Of the three hearings held between 27 July 2000 and 11 September 2003 none was adjourned at the request of the applicant. During the proceedings the court appointed two medical experts. The court also sought an additional opinion from one of the appointed experts. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 2 October 2003. On 3 October 2003 the applicant appealed to the Celje Higher Court ( Višje sodišče v Celju ). ZT cross-appealed. On 30 March 2005 the court allowed in part the applicant’s appeal and increased the awarded damages. The judgment was served on the applicant on 5 May 2005. On 9 May 2005 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). The proceedings are still pending. | [
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18,452 | 13, 6 | The applicant was born in 1959 and lives in Velenje.¸ On 26 June 1995 the applicant was injured in an accident at work. On 11 December 1997 the applicant instituted civil proceedings against his employer ZT in the Celje District Court ( Okrožno sodišče v Celju ) seeking damages in the amount of 3,833,150 tolars (approximately 15,980 euros) for the injuries sustained. Between 27 December 1999 and 29 January 2002 the applicant lodged four preliminary written submissions. Between 30 September 1998 and 11 January 2001 he made six requests that a date be set for a hearing. Of the four hearings held between 3 April 2001 and 12 March 2002 none was adjourned at the request of the applicant. However, a hearing scheduled for 22 June 2000 was called off on the applicant’s request since he had received the employer’s reply to his claim only one day before this date. During the proceedings, the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 29 April 2002. On 13 May 2002 the applicant appealed to the Celje Higher Court ( Višje sodišče v Celju ). ZT cross-appealed. On 21 April 2005 the court allowed the applicant’s appeal in part and increased the damages awarded. The judgment was served on the applicant on 24 May 2005. On 16 June 2005 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). The proceedings are still pending. | [
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81,185 | The applicant was born in 1965 and lives in Sofia. He was represented before the Court by Mr Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Government were represented by their Agent, Ms S. Sobadzhieva of the Ministry of Justice. THE APPLICANT’S ELECTION AS DEPUTY SPEAKER 4 . In March 2017 the applicant was elected as a member of <COUNTRY>’s Parliament – the National Assembly – on the ticket of the Bulgarian Socialist Party (until April 1990, the Bulgarian Communist Party). [1] 5 . At its first plenary sitting in April 2017, the newly elected Assembly adopted special rules of procedure for the election of its Speaker and Deputy Speakers. According to those rules, there were to be five Deputy Speakers – one for each of the parties or coalitions whose candidates had been elected as members of the Assembly (see paragraph 46 below) – and they were to be voted on en bloc rather than one by one. The parliamentary group of the Bulgarian Socialist Party, which held eighty out of the 240 seats, nominated the applicant. He, as well as the other four Deputy Speakers (one for each of the other four parliamentary groups), was elected by 235 votes, with no votes against and no abstentions. THE APPLICANT’S STATEMENTS IN ISSUE About the treaty with the former Yugoslav Republic of Macedonia 6 . At its plenary sitting on 18 January 2018, the National Assembly debated a proposal by the government to ratify a “Treaty of friendship, good-neighbourliness and cooperation” concluded in August 2017 between <COUNTRY> and (as it then was) the former Yugoslav Republic of Macedonia. After reports on the treaty were presented by members of the two parliamentary committees tasked with analysing it, nine members of the Assembly, including the applicant, were given the floor to speak about it. 7 . The applicant noted at the outset that he would speak in his personal capacity as member of the Assembly. He went on to criticise the manner in which the treaty had been concluded, as well as some of its clauses and language – which in his view revived the doctrine of “Macedonism”, in particular because the treaty recognised Bulgarians and Macedonians as two separate peoples speaking different languages. The applicant also expressed concern about the effect of a clause whereby the two States undertook to “take effective measures to counter hostile propaganda” against each other. 8 . The applicant continued: “[S]uch treaties, voted upon in such a light-hearted manner, without grasping their content, without taking into consideration our nation’s historical value, our self-consciousness and the perspective for <COUNTRY>’s development, the perspective for us to be a factor in Europe and the Balkans. Precisely such treaties! Because they tear apart our national consciousness, because the nation is a spirit – not cheap labour at Europe’s construction sites. The nation is a spirit, the nation is self-consciousness, the nation is an understanding of our own worth, as a people within this whole union – and we are frivolously selling all of that! We are selling it to the South-East, we are selling it to the West, and on top of that we are explaining that this is wise policy. This is cheap wheeling and dealing, dear colleagues – political, geopolitical, and I do not wish to use other qualifications – wheeling and dealing of the lowest order! This is not State policy. ... Dear colleagues, the treaty is a stillborn, the treaty is a fabrication! The treaty is an apotheosis of the Atlantic ambitions of the Balkans, [advanced] to the detriment of the peoples, just like the series of treaties signed a hundred years ago, when <COUNTRY> lost territories and walked into several national catastrophes. ...” 9 . Immediately after the debate the Assembly ratified the treaty. About the commemoration of the victims of the communist regime 10 . At the outset of the National Assembly’s plenary sitting on 1 February 2018, a member from GERB ( Граждани за европейско развитие на България ), the political party which held the highest number of parliamentary seats and which was the main member of the ruling coalition, proposed a minute of silence to commemorate the victims of the communist regime. [2] In his speech, that member – a former mayor of Plovdiv – mentioned in particular the thousands of people sentenced to death, life imprisonment and long terms of imprisonment by “the People’s Court” . [3] 11 . A member from the political party Movement for Rights and Freedoms ( Движение за права и свободи ) then proposed that the minute of silence be dedicated also to the Turks and Muslims in <COUNTRY> who had suffered repressions under the communist regime. 12 . The applicant spoke immediately after those two members, on behalf of the parliamentary group of the Bulgarian Socialist Party. He got down from his Deputy Speaker’s seat and went to the parliamentary tribune, and made the following statement: “I will express regret for the way in which Bulgarian parliamentarism is developing after thirty years of almost democratic political experience. I consider that the Bulgarian Socialist Party cannot be put in the dock, for one simple reason: because it was the party which led the armed fight against fascism and monarcho-fascism in <COUNTRY>. I wish to focus on concrete historical facts rather than the literary fiction that we have heard to some degree. On 1 November 1943 the foreign ministers of the Soviet Union, the <COUNTRY> of America and the <COUNTRY> signed the Secret Protocol of the Moscow Conference, point 18 of which explicitly set out a declaration about the responsibility of the Hitlerites for their atrocities and the political responsibility of fascism. This declaration was published, and expressly specified that it was without prejudice to the case of the major war criminals whose offences had no particular geographical localisation and who were to be punished by the joint decision of the governments of the Allies – point 18, 1 November 1943. During the Crimean Conference, held between 4 and 11 February 1945, the leaders of the three Allied States – the Soviet Union, the <COUNTRY> of America and the <COUNTRY> – reaffirmed the decision of the Moscow Conference, and after that the Prime Minister of the <COUNTRY>, Winston Churchill, made the following statement: ‘It would be best to shoot all war criminals and fascists, together with the main criminals, whenever they are caught.’ During the same conference, the statement of Joseph Stalin was as follows: ‘Please, before the shooting I insist that they nonetheless be tried.’ The decision for the Nuremberg trial, as well as for the trials held in Europe, outside the territory of <COUNTRY>, was taken by the international organs and conferences of the Allies. The home-made interpretations of former municipal and town mayors about the fight against fascism would hardly be understood outside the borders of the localities which they ruled. Thank you for your attention.” 13 . After his speech, the applicant went back up to his Deputy Speaker’s seat, and the Speaker invited all members to observe a minute of silence to “commemorate the victims of communism and the victims of the Revival Process ”. [4] As the Speaker and all the members of parliament were rising from their seats for the minute of silence, the applicant, who again went down to the parliamentary tribune, took the floor and interjected that he proposed to also “commemorate the victims of fascism – the tens, the hundreds of shot partisans, soldiers in the Patriotic War [5] ...”. The Speaker admonished the applicant that the minute of silence was already under way, and that “[it was] 1 February”. The applicant carried on “... hanged and killed in the prisons of the State Safety. [6] To commemorate Geo Milev [7] , Joseph Herbst [8] ...”, which prompted the Speaker to cut off the applicant’s microphone. The Speaker reiterated “One minute of silence for the victims of the communist regime and the victims of the Revival Process! It is 1 February, colleagues!” The applicant, who had already moved down to the parliamentary floor, shouted at her “... and for the victims of fascism!”, and she continued “Please, bow your heads, one minute of silence to commemorate the victims”. After that all the members of the Assembly, including the applicant, stood silent for one minute. About “the People’s Court” 14 . In a declaration issued on 13 February 2018 in protest against the holding of a torch march commemorating a lieutenant-general assassinated in Sofia by communist partisans on 13 February 1943, the Bulgarian Socialist Party proclaimed, inter alia , that “the People’s Court” [9] had been required by the Allied Powers in the Second World War, and had been “necessary and inevitable wartime justice”. Shortly after publication of the declaration, the party’s press officer clarified that the party’s bureau had not approved its text but had simply asked for it to be prepared. According to some media, the declaration had been drawn up by the applicant, who at that time was a member of that bureau. In a television interview given two days later, on 15 February 2018, the chairman of the party’s parliamentary group said that the statement about “the People’s Court” did not represent the party’s official position, and that the publication of the declaration with the “out-of-place” sentence about that court had been a “misunderstanding”, but declined to answer whether it had been the applicant who had caused that sentence to be put in. 15 . In his submissions to the Court, the applicant denied being the author of that sentence but stated that he was nonetheless against “one-sided assessments” of “the People’s Court”. REMOVAL OF THE APPLICANT FROM THE POST OF DEPUTY SPEAKER 16 . On 15 February 2018 GERB’s parliamentary group called on the applicant to resign from the post of Deputy Speaker, citing his conduct on 1 February 2018 and the statement about “the People’s Court” (see paragraphs 10-14 above). They stated that members of the Bulgarian Socialist Party’s parliamentary group had acknowledged that the statement – which they qualified as “offensive to the whole Bulgarian people” – had been written by the applicant, and warned that if he did not accept political responsibility for his actions and resign, they would seek to remove him. 17 . The same day, in response to a question by a journalist to explain why he had characterised “the People’s Court” as “necessary and inevitable wartime justice”, the applicant said that it was a number of international documents rather than him that had characterised it like that, and urged all of the journalists present to “read and check” that, adding that those documents “even characterised it as mandatory”. Proposal for the applicant’s removal from his post 18 . On 20 February 2018 eighty-one Assembly members, mainly from GERB (see paragraph 10 above), proposed that the applicant be removed from the post of Deputy Speaker. Citing the three incidents described in paragraphs 6 to 14 above, they asserted that he had systematically abused his powers within the meaning of Rule 5 § 1 (2) of the Assembly’s Rules (see paragraph 48 (b) below). In their view, his statement on 18 January 2018 that the treaty with (as it then was) the former Yugoslav Republic of Macedonia was “wheeling and dealing of the lowest order”, “a stillborn” and “a fabrication” had “disparaged all efforts of the two States throughout a period of twenty years to achieve good neighbourly relations and mutual understanding”. The applicant’s actions on 1 February 2018 had infringed Rule 155 § 1 of the Assembly’s Rules (see paragraph 53 below) and parliamentary decorum, and had impeded the commemoration of the victims of the communist regime and of “the Revival Process”. [10] The “linking” of the applicant’s name with the declaration about “the People’s Court” [11] had “discredited the National Assembly as an institution and [had] directly impinged on its authority”, whereas in his capacity as Deputy Speaker the applicant had a duty to uphold the Assembly’s institutional and political authority. He deserved to bear political responsibility for that declaration and be stripped of his “representative functions” as Deputy Speaker. Debate and vote on the proposal 19 . The following day, 21 February 2018, the National Assembly debated the proposal. The debate began with a presentation of the proposal by a member of parliament from GERB. 20 . When he was given the floor for a personal statement, the applicant pointed out, inter alia , that he had merely exercised his constitutional right to express his views, not only in his personal capacity but also in his capacity as representative of the people who had voted for his political party, and that he occupied the post of Deputy Speaker in his capacity as a member of that party. Most of the remainder of his speech was devoted to his views on the question whether fascism had existed in <COUNTRY> before 9 September 1944 and on the role of “the People’s Court” in the country’s history. He said, in particular: “The question about the historical truth will not be resolved and we harbour no illusions on the point. No illusions should be entertained. The positions are clear, the truth – likewise. The victims are a fact. The monuments, half-destroyed in the oblivion of time, unite again on 2 June [12] the combatants against fascism in <COUNTRY>. This is known by our whole party. Not because of something else, but because those monuments stand on the bones of people killed unlawfully – beheaded, burned, cut to pieces by the fascist executioners of <COUNTRY>. And this conviction and sentence was given precisely against those executioners, and it chimes with the dozens, hundreds and thousands of convictions and sentences handed down in Europe, by the courts in <COUNTRY> – more than ten thousand convictions, by the courts organised in the <COUNTRY>, even in <COUNTRY>, in Trieste, against the high command of the German army, against the war criminals, against the political head-choppers, against those who tried to behead freedom and democracy in Europe, who you now pretend to protect.” 21 . Another member from GERB who spoke after the applicant noted that his statements justifying “the People’s Court” were contrary to section 2(1)(3) of the Act Declaring the Communist Regime in <COUNTRY> Criminal (see paragraph 71 below). 22 . The leader of the applicant’s political party, the Bulgarian Socialist Party, stated, inter alia , that the applicant’s removal from his post would be in breach of the Assembly’s Rules and his constitutional right to freedom of expression. She also said that her party had no intention of proposing another Deputy Speaker, and would wait for the applicant to be reinstated by the Constitutional Court or by “the European Court”. 23 . Another member from GERB pointed out, inter alia , that in 1998 “the People’s Court” had been “quashed as unlawful” (see footnote 3 above) and that in 2000 the communist regime had been officially declared criminal (see paragraphs 69-72 below). For his part, the chair of GERB’s parliamentary group stated, inter alia , that the Bulgarian Socialist Party was entitled to nominate another Deputy Speaker, and noted that it had waived that right. 24 . The proposal to remove the applicant from the post of Deputy Speaker was adopted by 110 votes to seventy-one. There were no abstentions, but the members for the Movement for Rights and Freedoms had left the sitting before the vote, saying that they disagreed with the proposal. CHALLENGE AGAINST THE REMOVAL BEFORE THE CONSTITUTIONAL COURT The course of the proceedings 25 . Nine days later, on 2 March 2018, sixty members of the National Assembly asked the Constitutional Court to declare the applicant’s removal from the post of Deputy Speaker contrary to the provisions of the 1991 Constitution guaranteeing the rule of law (Article 4 §§ 1 and 2), political pluralism (Article 11 § 1), freedom of thought (Article 37 § 1), freedom of belief (Article 38), freedom of expression (Article 39), and the freedom of members of the Assembly to be guided solely by the Constitution, the laws, and their personal convictions (Article 67 §§ 1 and 2 – see paragraphs 40-41 below). They also argued that the removal had been in breach of the constitutional provision authorising the Assembly to adopt its own rules (Article 73 – see paragraph 42 below). They argued that none of the three acts for which the applicant had been reproached had engaged Rule 5 § 1 (2) of the Assembly’s Rules (see paragraph 48 (b) below). Each of those acts had been carried out in his capacity as a regular member of the Assembly rather than as its Deputy Speaker, and had moreover been a legitimate exercise of, inter alia , his constitutional right to freedom of expression as such a member. He could not be sanctioned for having duly availed himself of that right. 26 . On 22 May 2018 the Constitutional Court accepted the request for examination and invited the applicant and the Assembly to intervene in the proceedings and make written submissions. Neither the Assembly nor the applicant did so. Judgment of the Constitutional Court 27 . Having examined the case on the papers, on 6 November 2018 the Constitutional Court dismissed the request by seven votes to five (see реш. № 16 от 2018 г. по к. д. № 4/2018 г., обн. ДВ, бр. 95/2018 г. ). Majority judgment 28 . The majority held that it was implicit in Article 76 § 3 of the 1991 Constitution (see paragraph 39 below) that the terms of office of the National Assembly’s Speaker and Deputy Speakers could be terminated prematurely; the grounds on which that could be done had not been set out in the Constitution itself, but in the Assembly’s Rules. Since the Speaker and the Deputy Speakers were internal organs of the Assembly rather than fully-fledged State authorities, they had no “mandate” – a term used in the 1991 Constitution solely with respect to State authorities. It was not a coincidence that the Rules spoke not of premature termination of their mandate but of premature removal from their post. The resolution for the applicant’s removal had set out its legal basis, as well as the facts which in the view of the members who had voted for it had justified the application of Rule 5 (see paragraph 48 below). 29 . By Article 67 § 2 of the 1991 Constitution (see paragraph 41 below), members of the Assembly had to comply with the Constitution and the laws. That applied even more for the Speaker and the Deputy Speakers. According to the resolution for his removal, the applicant had infringed Rule 5 § 1 (2) of the Assembly’s Rules by systematically ( системно ) abusing his powers (see paragraph 48 (b) below). In the specific case, the systematic character ( системността ) of his conduct did not have a simply quantitative dimension. A law gave expression to the values synthesised by the members of Parliament on behalf of the people, which meant that each act running against that law could in a sense bear the hallmarks of an attack on the system of social values enshrined in it. It had to be pointed out in that connection that in 2000 the Assembly had passed an Act Declaring the Communist Regime in <COUNTRY> Criminal (see paragraphs 69-72 below). Though purely declaratory, that Act reflected Bulgarian society’s assessment of that period in the country’s history. The basis for characterising the applicant’s conduct as “a systematic abuse of his powers” in the resolution for his removal had been that this conduct had run against the value choice expressed in section 2(1)(3) of that Act by the members of Parliament on behalf of the people. The statement which the majority in the Assembly had understood as having been written by the applicant – that “the People’s Court” had been “necessary and inevitable wartime justice” – had run counter to that section, which had condemned “the unprecedented reprisals against ... all innocent [people] convicted by the so-called ‘People’s Court’” (see paragraphs 14 and 18 above, and paragraph 71 below). The statement had thus also infringed Article 67 § 2 of the Constitution (see paragraph 41 below). 30 . The Assembly’s resolution and the reasons in the proposal for it showed, moreover, that on 1 February 2018 the applicant had violated parliamentary decorum, in breach of Rule 155 § 1 of the Assembly’s Rules (see paragraph 53 below), which had the force of law. Regular members were amenable to disciplinary sanctions for such breaches; a Deputy Speaker, who had a heightened duty to uphold the Assembly’s authority, had to bear additional liability for them. It was irrelevant that when engaging in that conduct the applicant had not acted in his capacity as Deputy Speaker, since he had a general duty to behave in a collected and reasonably balanced way conducive to upholding the Assembly’s authority. Dissenting opinions (a) First dissenting opinion 31 . In a dissenting opinion, one judge said that since Deputy Speakers remained members of the Assembly, their freedom to express themselves could not be curbed more than that of any other member, so long as their statements did not run counter to the Constitution and the laws. That was demanded by the constitutional principle of pluralism. It followed that a Deputy Speaker would systematically abuse his powers or fail to carry out his or her duties within the meaning of Rule 5 § 1 (2) of the Assembly’s Rules only if he or she failed to comply with the duties laid down in Article 77 of the 1991 Constitution (see paragraphs 36, 38 and 48 (b) below). The removal of a Deputy Speaker which did not properly fall under that Rule was contrary to the constitutional principle of the rule of law. 32 . It was true that on 1 February 2018 the applicant had deliberately violated parliamentary decorum and had impeded the carrying out of the Speaker’s duties, in breach of his constitutional duty to assist the Speaker. That conduct had fallen squarely within the ambit of Rule 5 § 1 (2). But the other two acts for which he had been reproached had not. They had amounted to an exercise of the right of any Assembly member freely to express his or her views, regardless of whether they were true or acceptable to others. The applicant’s statements about the treaty and “the People’s Court” had had nothing to do with his constitutional functions as Deputy Speaker. Since those two acts could not have fallen foul of Rule 5 § 1 (2), the applicant’s failure to carry out his duties had not been “systematic”. His removal from his post had therefore been unconstitutional. (b) Second dissenting opinion 33 . In a common dissenting opinion, four other judges emphasised that the applicant could be removed prematurely from his post only under the conditions laid down in Rule 5 § 1 (2) of the Assembly’s Rules (see paragraph 48 (b) below) rather than on the basis of political expediency. If the removal did not meet those conditions, it was contrary to the rule of law. An abuse by the applicant of his powers or a failure by him to carry out his duties as Deputy Speaker could only relate to the exercise of his specific powers and duties under Article 77 of the 1991 Constitution and Rule 8 of the Assembly’s Rules (see paragraphs 36, 38 and 43-45 below). None of the three incidents of which he had been charged with a view to his removal had concerned those specific powers and duties, since during each of them he had acted in his capacity as a regular Assembly member rather than purporting to speak on behalf of the Assembly’s management, and had simply exercised, on each of those occasions, inter alia , his constitutional right to freedom of expression. It was moreover doubtful whether he had been the author of the statement about “the People’s Court” in his political party’s declaration. His actions had not therefore engaged Rule 5 § 1 (2), which in addition required the Deputy Speaker’s misconduct to be “systematic” – a notion which could not be construed in the way the majority had done (see paragraph 29 above). That meant that the removal had no proper factual basis, and was hence contrary to the rule of law and unconstitutional. It had in effect been a political sanction imposed by the parliamentary majority in response to the applicant’s views. The removal was thus in breach of the applicant’s constitutional right to freedom of expression, which was particularly extensive for members of the Assembly. Neither the majority’s judgment nor the resolution for the applicant’s removal had elucidated why it had been justified to interfere with that right. REMAINDER OF THE APPLICANT’S TERM IN THE NATIONAL ASSEMBLY 34 . The applicant remained a member of the National Assembly until the end of its term in March 2021. In September 2020 he left the parliamentary group of the Bulgarian Socialist Party and served the remainder of his term as an independent member of the Assembly. ELECTION OF A NEW DEPUTY SPEAKER IN THE APPLICANT’S STEAD 35 . On 10 July 2019 the parliamentary group of the Bulgarian Socialist Party nominated another member of parliament from that group, Mr K., as Deputy Speaker. He was elected without debate, by 106 votes to four, with four abstentions. He remained in that post until the end of the National Assembly’s term in March 2021. On 30 June 2019 the applicant had been removed from the executive bureau of the Bulgarian Socialist Party. RELEVANT LEGAL FRAMEWORK 1991 CONSTITUTION Provisions relating to the National Assembly’s Deputy Speakers 36 . By Article 77 § 1 and Article 78 of the 1991 Constitution, the National Assembly’s Speaker: (a) represents the Assembly; (b) calls it; (c) proposes agendas for its sittings; (d) presides over those sittings and ensures their orderly conduct; (e) certifies the Assembly’s acts; (f) publishes those acts; and (g) organises the Assembly’s international relations. He or she may also give permission to arrest or criminally charge a member when the Assembly is not in session (Article 70 § 1). If the Vice-President of the Republic is unable to replace the President (in case of death, incapacity or resignation), the Speaker may act as President ad interim (Article 97 § 4). 37 . The Constitutional Court has clarified that the Speaker’s powers with respect to the Assembly’s core functions (enacting legislation and controlling the executive) did not exceed those of any other member. Although the Speaker enjoyed special political prestige, he or she had no right to a veto or to a casting vote, or special prerogatives to propose legislation in addition to those of any other member. The Speaker was thus not an independent State authority in the traditional sense, even though he or she certified the Assembly’s acts and could exceptionally act as President of the Republic ad interim (see реш. № 16 от 1992 г. по к. д. № 25/1992 г., КС, обн. ДВ, бр. 94/1992 г. ). 38 . The Deputy Speakers assist the Speaker and carry out the functions which he or she has entrusted to them (Article 77 § 2). 39 . The Speaker and the Deputy Speakers must be elected at the first sitting of each new National Assembly (Article 76 § 3). The Constitution does not fix their term of office. Provisions governing the mandate of National Assembly members 40 . Article 67 § 1 provides that members of the National Assembly represent not only their constituents but the whole nation, and that they cannot be bound by an imperative mandate. 41 . By Article 67 § 2, members of the Assembly must act solely on the basis of the Constitution and the laws, as well as their personal convictions. RULES OF THE NATIONAL ASSEMBLY 42 . By Article 73 of the 1991 Constitution, the organisation and business of the National Assembly are governed by the Constitution itself and by rules adopted by the Assembly. The forty-fourth National Assembly, whose term began in April 2017 and ended in March 2021, adopted its rules on 27 April 2017, and they came into force on 2 May 2017. Provisions relating to the Assembly’s Deputy Speakers 43 . Rule 8 § 1 of the 2017 Rules enumerates the Speaker’s functions. 44 . Rule 8 § 2 provides that the Deputy Speakers assist the Speaker and carry out the functions which he or she has delegated to them. The Deputy Speakers preside the Assembly alongside the Speaker; he or she fixes which ones among them do so each week (Rule 8 § 3). One of the Deputy Speakers presides whenever the Speaker steps down to take part in the parliamentary debates (Rule 8 § 6). 45 . If the Speaker decides permanently to delegate one of his or her functions to a Deputy Speaker, he or she must do so in writing (Rule 8 § 4). If the Speaker is absent, he or she must authorise one of the Deputy Speakers to replace him or her; if he or she fails to do so, the replacement is ensured by the Deputy Speaker nominated by the largest parliamentary party or coalition (Rule 8 § 5). 46 . Ever since 1991, the tradition has been for each parliamentary group to have one Deputy Speaker – a position enshrined in special rules adopted by each successive Assembly in 1991, 1995, 1997, 2001, 2005, 2009, 2013, 2014, 2017 and 2021. 47 . The Deputy Speakers’ remuneration is 45% higher than that of regular members (Rule 6 § 1 of the Assembly’s 2017 Financial Rules). Provisions relating to the removal of Deputy Speakers 48 . By Rule 5 §§ 1 and 2 of the 2017 Rules, Deputy Speakers may be removed from their post before the end of their term of office if: (a) they resign (Rule 5 § 1 (1)); (b) one-third of the Assembly’s members propose their removal owing to (i) an objective impossibility for them to carry out their duties, (ii) a “systematic ( системно ) abuse of their powers”, or (iii) a “systematic ( системно ) failure to carry out the duties [falling] within the ambit of their competence” (Rule 5 § 1 (2)); (c) the parliamentary group which has nominated them proposes their removal (Rule 5 § 1 (3)); or (d) they leave that parliamentary group or are excluded from it, or that group ceases to exist (Rule 5 § 2). 49 . In situations under (a) and (d) above, the removal is simply announced rather than debated and voted on, whereas in situations under (b) and (c) it is put to a vote, which must be preceded by a hearing of the person concerned. The proposal for the removal is accepted if supported by more than half of all members present (Rule 5 §§ 3 and 4). 50 . All earlier Rules of the National Assembly adopted under the 1991 Constitution (in 1991, 1995, 1997, 2001, 2005, 2009, 2013 and 2014) contained similar provisions. 51 . In 1992 a group of members of the Assembly challenged the provisions then in force before the Constitutional Court with the argument that the premature removal of the Speaker could not be regulated in the Assembly’s Rules. The court dismissed the challenge, holding that Article 73 of the 1991 Constitution (see paragraph 42 above) authorised the Assembly to regulate itself by means of those Rules; this included the premature removal of its Speaker. That solution was fully in line with the Speaker’s constitutional role (see paragraph 36 above) and was similar to the way the matter was regulated in the constitutions of many other European States (see реш. № 16 от 1992 г. по к. д. № 25/1992 г., КС, обн. ДВ, бр. 94/1992 г. ). 52 . A 1998 amendment to Rule 5 introduced the possibility to remove a Deputy Speaker without a vote if the parliamentary group which nominated him or her ceases to exist (see paragraph 48 (d) in fine above). A group of members of the Assembly challenged the amendment before the Constitutional Court with the argument that it was contrary to the constitutional principle of the rule of law. The court dismissed the challenge, reiterating that under the 1991 Constitution the Assembly could regulate its internal organisation autonomously; this included the grounds on which it could remove its Speaker or Deputy Speakers and the procedure to be followed in such cases (see реш. № 13 от 1998 г. по к. д. № 11/1998 г., КС, обн. ДВ, бр. 67/1998 г. ). Provisions relating to parliamentary behaviour 53 . By Rule 155 § 1 of the 2017 Rules, the behaviour of Assembly members must be based on esteem for the Assembly’s authority and respect towards other members and outsiders; it must not impede normal parliamentary business or order in the Assembly building. LEGAL PROVISIONS AND CASE-LAW RELATING TO “THE PEOPLE’S COURT” Legal basis for “the People’s Court” 54 . “The People’s Court” was established by a decree ( наредба-закон ) – entitled “Trial by a People’s Court of those guilty of dragging <COUNTRY> into the [Second] World War against the allied peoples and the misdeeds connected therewith” – which was adopted by the Government on 30 September 1944, and was published and came into force on 6 October 1944. By Article 1 of the decree, its task was to try (a) government ministers who had been in office between the beginning of 1941 and 9 September 1944; (b) members of parliament from the twenty-fifth National Assembly (the term of which had lasted from February 1940 to 23 August 1944); and (c) “other civilian or military persons” for the offences set out in Article 2 of the decree. 55 . Article 2, as initially worded and amended in late November 1944, provided that the following categories of persons were punishable by an unspecified term of imprisonment, a life sentence or death, as well by a fine: (a) persons who had after 1 January 1941 “exposed the security of the State or placed the people’s interest in jeopardy, either by making international treaties with belligerent States or by deciding to declare or conduct a war” (point 1); (b) persons in positions of authority who had after 22 June 1941 “ordered acts infringing <COUNTRY>’s neutrality towards the Soviet Union and ha[d] thereby aggravated <COUNTRY>’s international position” (point 2); (c) persons in positions of authority who had, “in connection with the declaration and conduct of the war with England and the <COUNTRY> of America, failed to carry out their duties by taking due and timely measures to protect the people and the State from moral and material impairment” (point 3); (d) persons who had after 1 January 1941 “within the old borders of the country, in Macedonia, Thrace or elsewhere used their links with the authorities or the belligerent States, or their office, to procure for themselves or someone else an illicit pecuniary gain” (point 4); (e) persons who had “been in the service of <COUNTRY> or its allies and, while carrying out that service, had actively and substantially contributed to the carrying out of that State’s policies to the detriment of the Bulgarian people” (point 5); (f) persons who “had during the same period sent [Bulgarian] troops to Yugoslavia and <COUNTRY>, so as to persecute the people-liberation troops of those countries, as well as those commanding military persons who had, through their actions or omissions, become a cause for the endangerment of [the Bulgarian] troops” (point 6); (g) persons who had “in the country or outside it, ordered, encouraged or committed murders, serious bodily injuries, arsons, burglaries, robberies and torture in connection with the domestic or foreign policies put in place by the governments after 1 January 1941” (point 7); (h) persons who had “voluntarily served the police, the gendarmerie or the army and had given them information concerning the safety or important interests of partisans or other people-liberation fighters” (point 8); (i) “investigators, prosecutors and judges who in the course of preliminary investigations or trials or through their decisions ha[d] demonstrated manifest bias and gross overzealousness with a view to supporting the terror, lawlessness and violence carried out against the people” (point 9); (j) persons who had “in the country or out of it, from 1 January 1941 to 9 September 1944, by their actions, writings, words or otherwise, actively and substantially contributed to the commission or carrying out of the above acts, or to the persecution of the Jews” (point 10). 56 . By Article 4 § 2 of the decree, all or part of the convicted person’s assets were to be forfeited. 57 . “The People’s Court” was also competent to try, convict and sentence people who had died, even if the death had occurred before he or she had been charged (Article 4 § 3). 58 . “The People’s Court” consisted of two types of judges: “people’s judges”, elected by the regional committees of the Fatherland Front [13] , and judges appointed by the Minister of Justice (at that time, a representative of the Bulgarian Workers’ Party (communists), subsequently the Bulgarian Communist Party – see footnote 1) from among the judges and lawyers in the country (Article 6 § 1). Its panels were likewise constituted by the Minister of Justice: (a) central panels consisting of thirteen judges (four appointed and the rest elected), to try “the regents, government ministers, members of parliament, palace advisors, and high-ranking spiritual and military persons”, and (b) regional panels consisting of one appointed judge and four elected judges (Article 7). The court had a chief people’s prosecutor and other prosecutors, all appointed by the government on the proposal of the Minister of Justice (Article 5 § 1). 59 . “The People’s Court” had to set down all of its cases for trial “within the shortest time-limit”, and finish all of its trials before 31 March 1945 (Article 9 §§ 1 and 4). Its judgments were not amenable to appeal and were to be carried out immediately (Article 10). Operation of “the People’s Court” 60 . “The People’s Court” had thirteen central and sixty-eight regional panels. According to data published by <COUNTRY>’s State Archives Agency (see https://narodensud.archives.bg/ ), the first central panel was tasked with trying the three former regents (in office between September 1943 and 9 September 1944), nine former royal councillors, and all the ministers from the five governments in power between February 1940 and 9 September 1944; altogether, fifty-one people. The second central panel was tasked with trying former members of parliament; altogether, 134 people. The third central panel was tasked with trying the six Bulgarian members of the 1943 Katyn and Vinnytsia investigation commissions. [14] The fourth central panel was chiefly tasked with trying former military officers; altogether, 341 people. The fifth panel was chiefly tasked with trying various former police, gendarmerie and intelligence officers; altogether, 115 people. The sixth central panel was tasked with trying various journalists, writers, caricaturists, radio hosts, newspaper editors and directors, and leaders and activists of nationalist organisations alleged to have carried out propaganda in favour of Fascist <COUNTRY> and Nazi <COUNTRY>; altogether, about a hundred people. The seventh central panel was tasked with trying officials alleged to have engaged in anti-Jewish persecution in <COUNTRY> or in the territories occupied by it during the Second World War; altogether, about seventy people. The eighth central panel was tasked with trying military, police and gendarmerie officers and various other officials alleged to have taken part in punitive actions against partisans and their supporters; altogether, 104 people. The ninth central panel was tasked with trying former military judges and prosecutors, and police officials and collaborators; altogether, about 230 people. The tenth central panel was tasked with trying officials and businesspersons allegedly responsible for tying <COUNTRY>’s economy to that of <COUNTRY>; altogether, eighty-four people. The eleventh central panel was tasked with trying officials alleged to have carried out offences in the territories occupied by <COUNTRY> during the Second World War; altogether, about 180 people. The twelfth central panel was tasked with trying Gestapo and German intelligence agents, leaders of various non-governmental organisations, and various former police officers and secret collaborators; altogether, about 170 people. The thirteenth central panel was tasked with trying former police officers and collaborators, and military officers and servicemen alleged to have persecuted or killed partisans or their supporters in several regions. 61 . Among the people convicted by the seventh panel was Mr Aleksandar Belev, the former head in 1942-43 of the Commissariat for Jewish Affairs. On 2 April 1945 he was convicted for “having contributed actively and substantially, through his actions and writings, to the persecution of the Jews”. In the reasons for its judgment, the panel noted that he had taken part in the preparation of various anti-Semitic regulations, had agreed with a German representative to deport the Jews from <COUNTRY>, had carried out the deportation of the Jews from the Yugoslav and Greek territories occupied by <COUNTRY> during the Second World War in a most cruel way, had organised the creation of concentration camps, and had actively driven the passing of regulations for the forced resettlement of Jews living in Sofia to the countryside. Mr Belev had been killed extrajudicially before his trial. The seventh panel also convicted other employees of the Commissariat for Jewish Affairs. Other people in positions of responsibility who had taken part in the adoption and implementation of the racist Defence of the Nation Act 1941 – which provided, in its sections 21 to 32, for wide-ranging repressive measures against Jews in <COUNTRY>, including stripping them of civil rights and property – were also among those convicted by various panels. 62 . From December 1944 to April 1945, the central and regional panels of “the People’s Court” held in total more than 130 trials against about 11,000 accused, more than 9,000 of whom were convicted and sentenced – nearly 2,700 to death. Some of the people sentenced to death had already been executed extrajudicially before or during the proceedings. The first convictions and sentences – those of the former regents, royal councillors, government ministers and members of parliament – were handed down on 1 February 1945 and the people sentenced to death were executed the same night. 1964 amnesty for some people convicted by “the People’s Court” 63 . A 1964 amnesty law amnestied all people convicted of offences under the decree establishing “the People’s Court” committed before 9 September 1944, except those convicted of offences under Article 2, points 1, 2 and 6 of the decree (see paragraph 55 (a), (b) and (f) above) and those sentenced to death or life imprisonment (section 5(1) of the Amnesty Act 1964). 1994 request to the Constitutional Court to declare the decree establishing “the People’s Court” unconstitutional 64 . In 1994, a few years after the fall of the communist regime in <COUNTRY>, the Chief Prosecutor asked the (then) Supreme Court to set aside, in supervisory-review proceedings – a procedural possibility which ceased to exist in June 2000 – some of the judgments of “the People’s Court”. The Supreme Court stayed the proceedings and in March 1994 its Plenary Meeting invited the Constitutional Court to decide whether the decree establishing “the People’s Court” was compatible with the 1991 Constitution, the treaties to which <COUNTRY> was party, and the generally recognised rules of international law. It pointed out that the decree had (a) retrospectively criminalised past acts, in breach of the prohibition against doing so in the Constitution and in Article 7 § 1 of the Convention; (b) established an extraordinary tribunal, in breach of the constitutional prohibition of doing so; (c) provided for criminal prosecutions against dead people, contrary to the constitutional rule that only people who were still alive could be criminally prosecuted; (d) excessively restricted the rights of the defence; (e) barred appeals, contrary to Article 2 § 1 of Protocol No. 7 to the Convention; (f) not laid down any rules of evidence, leading to arbitrariness; and (g) had been adopted in breach of the proper constitutional procedure. 65 . In July 1994 the Constitutional Court refused to deal with the Supreme Court’s request on the basis that the decree establishing “the People’s Court” had only had a one-off legal effect which had come to an end in March 1945. It was no longer part of the law in effect in <COUNTRY>, and the Constitutional Court thus had no jurisdiction to assess whether it was compatible with the 1991 Constitution. All international treaties cited in the Supreme Court’s request had been concluded after the decree had already ceased operating, and it could hence not be reviewed for compatibility with them either (see опр. № 3 от 1994 г. по к. д. № 7/1994 г., КС ). Setting aside of two of the judgments of “the People’s Court” in 1996 66 . In a 1995 interpretative decision, the (then) Supreme Court held that the heirs of people convicted by “the People’s Court” had no standing to seek supervisory review of its judgments; that possibility was reserved for the Chief Prosecutor (see тълк. реш. № 1 от 1995 г. по н. д. № 3/1994 г., ВС, ОСНК ). 67 . In 1995 the Chief Prosecutor asked the (then) Supreme Court to set aside the judgments given by the first and second panels of “the People’s Court” (see paragraph 60 above). In April and August 1996, the Supreme Court acceded to those requests (see реш. № 243 от 1996 г. по н. д. № 707/1995 г., ВС, II н. о. , and реш. № 172 от 1996 г., по н. д. № 120/1995 г., ВС, I н. о. ). In the first of those two judgments, in which it reviewed the convictions of 126 members of parliament, the Supreme Court noted, inter alia , that the judgment of “the People’s Court” had been based on a politicised and one-sided account, giving the impression that the accused had been convicted on the basis of a preconceived idea of their collective guilt as members of a government deposed by force. It went on to say that all but one of the counts in the indictment had not set out acts capable of constituting the charged offences, that the convicted members of parliament had not acted with mens rea with respect to those offences, and that they had in effect been punished for their political views and actions. The remaining count, relating to the offence of ordering, encouraging or committing various violent acts (see paragraph 55 (g) above) required a case-by-case assessment. For most of the convicted, the judgment of “the People’s Court” did not concretely refer to any such acts. For twenty-six of them, that judgment had mentioned circumstances linking them with such acts of violence, but it was necessary to analyse each case carefully to see whether those findings had been substantiated. In all but two cases, that was not so. It was hence necessary to set aside the convictions of 124 out of the 126 convicted members of parliament and acquit them. 1998 ruling of the Constitutional Court on “the People’s Court” 68 . In a 1998 judgment dealing, inter alia , with the question whether a statute providing for the restitution of assets forfeited by judgments of “the People’s Court” (see paragraph 56 above) had, by reversing the effects of judicial decisions, impermissibly impinged on the separation of powers and on judicial independence, the Constitutional Court stated that “‘the People’s Court’ [had not been] a court existing and operating as part of the regular judiciary”, but “an extraordinary tribunal ... whose members [had] even [been] people without legal qualifications” and which had acted under “charges brought against even people who had already died”. For the Constitutional Court, that tribunal’s judgments “could not be characterised as judicial decisions”, since they “[had not met] the requirements of due process laid down in the Constitution” (see реш. № 4 от 1998 г. по к. д. № 16/1997 г., КС, обн., ДВ, бр. 30/1998 г. ). 2000 ACT DECLARING THE COMMUNIST REGIME IN BULGARIA CRIMINAL 69 . In 2000 the Bulgarian National Assembly passed an Act Declaring the Communist Regime in <COUNTRY> Criminal. 70 . Section 1(1) of that Act stated that the Bulgarian Communist Party had come to power on 9 September 1944 with the help of a “warring hostile power” [15] and in breach of the (then in force) 1879 Constitution, and section 1(2) declared that that party had been responsible for governing the country between 9 September 1944 and 10 November 1989. 71 . Section 2(1)(3) stated that the management and chief activists of that party had been responsible for “the unprecedented reprisals against ... all innocent [people] convicted by the so-called ‘People’s Court’”. 72 . Section 3(1) proclaimed the communist regime, deemed to have been in power between the two above dates, to be “criminal”, and section 3(2) branded the Bulgarian Communist Party a “criminal organisation ... aimed at supressing human rights and the democratic system”. POLITICAL AND CIVIL REHABILITATION OF PERSECUTED PERSONS ACT 1991 73 . Section 1(1) of the Political and Civil Rehabilitation of Persecuted Persons Act 1991, as amended in 2010, rehabilitates all persons convicted by the third panel of “the People’s Court” (see paragraph 60 above). The explanatory notes to the bill (no. 054-01-25 ) which led to the 2010 amendment specified that they were the four Bulgarian members of the 1943 Katyn and Vinnytsia investigation commissions [16] who had adhered to the position that the Soviet authorities had been responsible for those massacres, and stated that it was impermissible that people who had spoken out about the crimes of the Soviet regime should remain without rehabilitation, which could no longer be effected judicially for procedural and practical reasons (see paragraphs 64 and 66 above). RELEVANT COUNCIL OF EUROPE MATERIALS 74 . Parliamentary Assembly of the Council of Europe (PACE) Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes ( link ) reads as follows: “The Parliamentary Assembly refers to its Resolution 1096 (1996) on measures to dismantle the heritage of the former communist totalitarian systems. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the ‘elimination’ of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims. The Assembly recognises that, in spite of the crimes of totalitarian communist regimes, some European communist parties have made contributions to achieving democracy. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism). Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings. Totalitarian communist regimes are still active in some countries of the world and crimes continue to be committed. National interest perceptions should not prevent countries from adequate criticism of current totalitarian communist regimes. The Assembly strongly condemns all those violations of human rights. The debates and condemnations which have taken place so far at national level in some Council of Europe member states cannot give dispensation to the international community from taking a clear position on the crimes committed by the totalitarian communist regimes. It has a moral obligation to do so without any further delay. The Council of Europe is well placed for such a debate at international level. All former European communist countries, with the exception of <COUNTRY>, are now members, and the protection of human rights and the rule of law are basic values for which it stands. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.” | Greece, France, Belarus, United States, Bulgaria, Germany, Italy, United Kingdom | [
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66,734 | 3 | The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | [
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78,586 | 5 | The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | [
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58,571 | On 17 September 2010, the applicants, who are cousins, contracted a religious marriage in Iran, where they were residing illegally. At the time, the first applicant was 14 years old and the second applicant 18 years old. Their religious marriage was not registered in Iran. On 18 September 2011 the applicants applied for asylum in <COUNTRY>, which they had entered from <COUNTRY> on an unspecified date. Both applicants had been already registered as asylum seekers in <COUNTRY>. On 8 December 2011 and 26 March 2012 the Federal Office of Migration (the “FOM”) rejected the applicants’ asylum request, considering that <COUNTRY> was the responsible State by virtue of Regulation no. 343/2003/EC (the “Dublin Regulation”). On 19 December 2011, the first applicant had a legal guardian appointed by the Guardianship Court ( Tribunal tutélaire , now Tribunal de protection de l’adulte et de l’enfant ). On 20 March 2012 the Federal Administrative Court (the “FAC”) rejected the second applicant’s appeal against the FOM’s decision. The FAC noted that the applicants had failed to submit a certificate of marriage and that in any event their alleged religious marriage could not be validly recognised in <COUNTRY>, pursuant to Article 45 of the Federal Act on Civil International Law, because it was illegal under the relevant provision of the Afghan Civil Code, which contained an absolute prohibition on marriage for women under 15 years of age, while the first applicant was 14 years old. In any case, independently of the applicable Afghan law, the applicant’s marriage was manifestly incompatible with Swiss ordre public , since having sexual intercourse with a child under the age of 16 was a crime under Article 187-1 of the Swiss Criminal Code. The first applicant could therefore not be qualified as a member of the second applicant’s family under the Dublin Regulation and the applicants could not claim any right to family life under Article 8 of the Convention. The decision against the first applicant entered into force on 5 April 2012, as the second applicant had not appealed against it. On 3 May 2012 the FOM decided to reexamine the first applicant’s asylum request in <COUNTRY>. Following this decision, the second applicant requested that his own asylum request be also reexamined in order to preserve the family unity. The second applicant’s request was rejected by the FOM on procedural grounds: as the applicant’s claim was deemed without prospects of success, he had been asked an advance judicial fee of 600 Swiss Francs (“CHF”), which he had failed to pay. The second applicant was expelled to <COUNTRY> on 4 September 2012. However, on 7 September 2012 he returned illegally to <COUNTRY>, where he could see the first applicant “intermittently”, in the applicants’ own words. On 18 September 2012 the applicants lodged the present application before this Court. On 21 December 2012 the second applicant again requested the reexamination of his asylum request, which was rejected by the FOM on 10 January 2013 because the second applicant had again failed to pay the CHF 600 advance judicial fee. On 18 March 2013, the applicants requested the recognition of their religious marriage in <COUNTRY>. The first applicant was then 16 years and 11 months old. On 28 November 2013, the FAC examined the second applicant’s appeal against the FOM’s decision of 10 January 2013 and ruled in favour of the second applicant. The FAC considered that the FOM had wrongly imposed on the second applicant the payment of an advance judicial fee because by then the first applicant was 17 years old and the applicants could therefore claim to be a family within the meaning of Article 8 of the Convention as interpreted by this Court and by the Swiss Federal Tribunal. On 20 February 2014, the Government requested that the application be struck out of the list of cases pursuant to Article 37 § 1 (c) of the Convention. On 1 April 2014, in reply to the Government’s request, the applicants submitted that their application included a complaint about a past violation, not only a prospective one, namely that on 4 September 2012 the second applicant had been expelled to <COUNTRY> and thus separated from the first applicant. Such forcible separation constituted a violation of the applicants’ right to respect for their family life. On 2 June 2014, the Court of First Instance of the Canton of Geneva recognised the validity of the applicants’ religious marriage contracted in Iran. On 9 January 2015 the applicants informed the Court that they had been granted asylum in <COUNTRY> by a decision of 17 October 2014. On 23 June 2015, referring to their submissions of 1 st April 2014, the applicants informed the Court that they wished to maintain their application, considering that as the alleged past violation of their right to respect for family life had neither been acknowledged nor remedied they had not lost victim status even if they had now obtained asylum in <COUNTRY>. | Italy, Switzerland | [
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63,323 | 3 | The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | [
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79,753 | 3 | The applicants complained about their confinement in a metal cage in the courtroom during the criminal proceedings against them. They also raised other complaints under the provisions of the Convention. | [
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61,385 | 5, 5 | In the early hours of 5 June 2005, at about 3 a., the police arrested the applicant. In the morning he was interviewed and later taken to the hospital because he broke the window and injured himself. At 6 p.the arrest record was drawn up; it gave 6 p.as the time of the applicant’s arrest. On 7 June 2005 the Lukoyanovskiy District Court in the Nizhny Novgorod Region remanded the applicant in custody for an initial two ‑ month period. On 8 August 2005 the District Court held a hearing to decide, among other matters, on an extension of the applicant’s detention. The applicant asked for release; counsel for the applicant pointed out that, since the authorised detention period had ended on 5 August 2005, his detention in the following three days had been unlawful. The District Court extended the applicant’s detention, finding that the “preventive measure [should] remain unchanged”. In the statement of appeal against the District Court’s extension order, the applicant complained that the custodial measure which had already expired could not “remain unchanged”. The appeal was forwarded to the Regional Court only on 8 September 2005. On 23 September 2005 the Regional Court rejected the appeal in a summary fashion, without addressing the applicant’s arguments. On 25 January 2006 the District Court extended the applicant’s detention until 25 April 2006, without informing the applicant or his representative about the hearing or giving any reasons for its decision. The applicant filed an appeal on 30 January 2006 which was dismissed by the Regional Court on 31 May 2006. By judgment of 25 August 2006, as upheld on appeal on 17 October 2006, the applicant was found guilty and given a custodial sentence. | [
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52,204 | P1-1 | The applicant is a member of the International Banknote Society, the American Numismatic Association and the Collectors’ Club of Vilnius. 8 . On 12 December 2000 the applicant signed a contract with the Educational Coin Company (“the company”), registered in the <COUNTRY> of America (“the USA”), according to which he would deliver to the company 8,500 kg of banknotes (in five and ten rouble notes) issued by the self-proclaimed Bank of the “Moldavian Republic of Transdniestria (MRT)” (see further details about the events leading to the creation of the self-proclaimed “MRT” in Ilaşcu and Others Moldova and Russia [GC], no. 48787/99, ECHR 2004 ‑ VII). In exchange, under the contract, he had the right to select items from the company’s wholesale catalogue to a value of 7,000 <COUNTRY> dollars (USD). On 26 January 2001 the applicant bought from the “MRT” bank 13,590,000 “MRT” roubles (in five and ten rouble banknotes) issued in 1994. The banknotes issued in 1994 were no longer in circulation in the “MRT”, having been replaced by new banknotes in 2000. Such banknotes have never been in official circulation in Moldova and had been accepted as payment only in the “MRT” and only prior to 2000. On 1 February 2001 the applicant submitted to Moldovan customs 353 sealed bags of banknotes issued by the “MRT” bank in 1994. He asked for permission to ship the items to the USA, in accordance with the contract with the company. He declared that the paper in the bags had a numismatic value of USD 7,000. The customs authority decided to store the bags in its warehouse until a decision could be taken about what to do with them. Subsequently, the bags were moved to the premises of the State Tax Inspectorate (“the STI”), where they have remained since. By a decision of 23 July 2003 and further to a report of 25 August 2003, the Customs Department decided not to return the banknotes to the applicant and to transfer them instead to the STI for free as the items were banned from general circulation in Moldova. The applicant asked on a number of occasions for the return of the items confiscated from him. On an unknown date in 2005 he initiated court proceedings to have the decisions taken in July and August 2003 set aside and the items returned to him. On 19 April 2005 the Chişinău Court of Appeal dismissed his court action as lodged out of time. On 3 August 2005 the Supreme Court of Justice quashed that decision and ordered a rehearing of the case by the lower court. 15 . On 7 November 2005 the Chişinău Court of Appeal allowed the applicant’s claims in part. The court found that the banknotes under examination had never been introduced into general circulation in Moldova and had never been exchanged for the official currency of the country. There was no evidence in the file that the banknotes had been manufactured for circulation in Moldova. The applicant had officially declared the 353 bags of banknotes, which he considered to be waste paper with numismatic value, in order to transport them abroad. Moreover, it had to be presumed that he had obtained the items in a lawful manner, unless proof to the contrary had been adduced. However, nobody had claimed a property right in respect of the relevant items. The court concluded that the Customs Department and the STI had acted unlawfully. 16 . On 17 May 2006 the Supreme Court of Justice quashed the lower court’s judgment and delivered a new one, rejecting all his claims. The court found that, in accordance with Articles 1 and 2 of the Money Act (see paragraph 19 below), only the National Bank of Moldova had the right to issue banknotes, and that the “MRT” bank had not been given such a right. As a result, the banknotes issued by the “MRT” bank could not be introduced into legal circulation and could not, under Article 206 of the Civil Code (see paragraph 18 below), be the lawful object of the contract of 26 January 2001. That judgment was final. | United States | [
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21,298 | 13, 6 | The applicant was born in 1952 and lives in Velenje. On 18 February 1998 and on 27 November 1995 the applicant was allegedly injured in an accident at work. The applicant's employer had taken out insurance with the insurance company ZT. On 9 July 1998 the applicant instituted civil proceedings against ZT and his employer in the Celje District Court ( Okrožno sodišče v Celju ) seeking damages in the amount of 4,700,795 Slovenian tolars (approximately 19,600 euros) for the injuries sustained. On 15 November 2001 the judge to whom the case had been assigned was promoted and the case was subsequently assigned to a new judge. Between 29 June 2000 and 20 April 2005 the applicant lodged five preliminary written submissions. Between 16 June 1999 and 26 April 2002 he made five requests that a date be set for a hearing. Of at least five hearings held between 14 May 2001 and 21 September 2005 none was adjourned at the request of the applicant. During the proceedings the court appointed two medical experts. At the last hearing the court decided to deliver a written judgment. The judgment of 21 September 2005, rejecting the applicant's claim, was served on the applicant on an unspecified date. On 10 January 2006 the applicant lodged an appeal against the judgment. The proceedings are pending on the appeal. | [
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79,908 | 6 | The applicant’s details and information relevant to the application are set out in the appended table. The applicant complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. He also raised other complaints under the provisions of the Convention and Protocol No. | [
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63,294 | P1-1 | They were owners of flats in Moscow. The State authorities reclaimed the flats, and the applicants’ title to the real property in question was annulled. A. Application no. 59291/13 Transactions with the flat later purchased by the applicant The flat at 21-110 Belovezhskaya Ulitsa, Moscow, was owned by K. On 5 January 2005 K. died intestate with no surviving kin. On 18 May 2005 bought the flat from a person acting on K.’s behalf by virtue of a power of attorney. On 28 October 2005 sold the flat to O. On 7 April 2006 O. sold the flat to On 19 April 2006 sold the flat to the applicant and his minor daughter. Annulment of the first applicant’s title to the flat and eviction proceedings On an unspecified date the police opened an investigation into the fraudulent sale of the flat after K.’s death. On 30 January 2008 the police informed the Moscow Department of Housing Policy and Housing Fund (the Housing Department) about the investigation. On an unspecified date the Housing Department brought an action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. On 18 December 2012 the Kuntsevskiy District Court of Moscow granted the Housing Department’s claims in full. The court established that K. had died intestate with no surviving kin and that the flat should have been considered bona vacantia . It considered all the transactions with the flat to be void and ordered the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. On 14 March 2013 the City Court upheld the judgment of 18 December 2012 on appeal. On 16 May 2013 the City Court refused to allow the applicants’ cassation appeal. On 14 August 2013 the Supreme Court of the <COUNTRY> refused to allow the applicants’ second cassation appeal. Further developments in the case On 24 December 2013 the City of Moscow had its title to the flat registered. According to the Government, on 2 December 2014 the Housing Department entered into a social housing agreement with the applicant and his daughter who continued to reside in the flat. B. Application no. 14639/14 Transactions with the flat later purchased by the applicant The flat at 10-1-339, Orekhoviy Bulvar, Moscow, was owned by S. On 29 July 2009 S. died intestate with no surviving kin. On 16 April 2010 an unidentified person sold the flat to B. On 10 June 2010 B. sold the flat to K., the applicant’s father. On 15 April 2011 the Nagatinskiy District Court of Moscow approved a friendly settlement agreement between the applicant and her father recognising the applicant’s title to the flat. Annulment of the applicant’s title to the flat On 21 October 2011 the police opened an investigation into the fraudulent sale of the flat after S.’s death. On 29 February 2012 the police informed the Housing Department about the investigation. On an unspecified date the Housing Department brought a civil action against the applicant seeking the transfer of the title to the flat to the City of Moscow and the applicant’s eviction. On 19 June 2013 the District Court granted the Housing Department’s claims in full. The court established that S. had died intestate with no surviving kin and that the flat should have been considered bona vacantia . The court ruled that the case fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the previous owner who had been deprived of the property against his or her will. The applicant’s title to the flat was annulled and the title was transferred to the City of Moscow. On 14 November 2013 the City Court upheld the judgment of 19 June 2013 on appeal. On 25 March 2014 the City Court refused to allow the applicant’s cassation appeal. Further developments in the case According to the applicant, the judgment in the City’s favour has not been enforced and the applicant continues to reside in the flat. Application no. 14582/15 Transactions with the flat later purchased by the first applicant The flat at 33-31, Stremyanniy Pereulok, Moscow, had been owned by N., who died intestate with no surviving kin on 14 April 2006. On an unspecified date P. and other unidentified persons forged N.’s will, naming P. as N.’s heir. On 19 October 2006 P. applied to a notary seeking to be recognised as N.’s heir. On 30 November 2006 the notary issued a certificate confirming that P. had inherited N.’s flat. On 6 December 2006 the Moscow City Registration Board (the “Registration Board”) registered the certificate confirming P.’s title to the flat and issued the relevant deed. On 30 January 2007 P. sold the flat to the first applicant. On 6 February 2007 the Registration Board registered the flat purchase and issued the respective deed to the first applicant. The applicants moved into the flat and resided there. Criminal proceedings against P. On an unspecified date the authorities opened a criminal investigation concerning the forgery of the will issued on behalf of N. On 26 April 2012 the Perovskiy District Court of Moscow found P. guilty of several counts of fraud and sentenced him to five and a half years’ imprisonment. In particular, the court established that P., acting in concert with other persons whose identity was not known, had fraudulently acquired N.’s flat and sold it to the first applicant on the basis of a forged will. The court also found that the flat was bona vacantia which therefore vested in the State and, by having fraudulently acquired title to it and then sold it to the first applicant, P. had caused damage to the State. On 25 June 2012 the Moscow City Court upheld the judgment of 26 April 2012 on appeal. Revocation of the first applicant’s title to the flat and eviction proceedings On 25 March 2013 the Housing Department brought a civil action against the applicants seeking, inter alia , (1) revocation of the first applicant’s title to the flat; (2) the applicants’ eviction; and (3) restitution of the flat to the City of Moscow. On 26 May 2014 the Zamoskvoretskiy District Court of Moscow granted the Housing Department’s claims. It established that the flat was bona vacantia and ordered its restitution to the City of Moscow. It also revoked the first applicant’s title to the flat and ordered the applicants’ eviction. On 26 December 2014 the City Court upheld the judgment of 26 May 2014 on appeal. On 17 March 2015 the Moscow City Court refused to allow the applicants’ cassation appeal. On 17 April 2015 the Supreme Court of the <COUNTRY> refused to allow the applicants’ cassation appeal. Further developments in the case It appears that the judgment in the City’s favour has not been enforced to date. The applicants continue to reside in the flat. | Russian Federation | [
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71,712 | 2 | On 1 June 2008 the applicant was the victim of an accident at a construction site near his school in Tolyatti. He fell through a hole from the third to the second floor of an unfinished building onto a heap of broken bricks, thereby sustaining, among other damage, a serious craniocerebral injury resulting in a disability that will continue to require treatment. On 11 June 2008 an investigator of the police department of the Avtozavodskoy district of Tolyatti declined to institute criminal proceedings into the accident, relying on a request lodged by the applicant’s mother on 9 June 2008 for an inquiry into the accident to be discontinued. She stated that the accident had happened because of her son’s own negligence, that she did not wish to have her son examined by forensic medical experts, and that she did not wish to lodge any claim. The investigator held that no crime had been committed against the applicant who had received injuries because of his own carelessness. According to the applicant, it was only after he had undergone head and brain surgery and rehabilitation treatment and his mother’s recovery from an illness that she herself had been suffering that his mother was able to appeal, with the help of a lawyer, against the decision of 11 June 2008. On 7 October 2008 a deputy prosecutor of the Avtozavodskoy district of Tolyatti annulled the decision of 11 June 2008. In the course of a pre-investigation inquiry an investigator of the Avtozavodskoy district police department established that the construction site had not been entirely closed off and had been freely accessible from the side of the local school. The construction work – which had been commissioned by the Tolyatti town mayor’s office – had been on hold for lack of funding. The investigating authority found that there had been no elements of a crime in the actions of any officials from the mayor’s office and other organisations, and that the accident had happened as a result of the victim’s own negligence. It therefore declined, on 20 October 2008, to institute criminal proceedings in respect of the accident for absence of the occurrence of a crime. The applicant’s mother lodged complaints about the refusal to institute criminal proceedings with various authorities, including the Samara regional prosecutor’s office, the Prosecutor General’s office of the <COUNTRY> and the Avtozavodskoy District Court of Tolyatti. She argued that the building had not been guarded and closed off, and that the mayor’s office had breached regulations for the “conservation” of unfinished buildings. At a hearing before the District Court prosecutor K. submitted that her complaint should be upheld. On 13 April 2009 the District Court upheld her complaint and declared the refusal of 20 October 2008 unlawful because it had not been established which organisation and specific officials had been responsible for the “conservation” of the unfinished building and why the elements of a crime had been missing in their actions. On 11 May 2009 the Avtozavodskoy district prosecutor’s office annulled the refusal of 20 October 2008 to institute criminal proceedings and ordered an additional pre ‑ investigation inquiry. On 6 July 2009 an investigator from the investigative committee of Tolyatti attached to the Samara regional prosecutor’s office issued a similar refusal to institute criminal proceedings, stating that there was no cause ‑ and-effect connection between (i) the actions (or failure to act) on the part of officials from the mayor’s office and other organisations and (ii) damage to the applicant’s health arising from his own negligence and imprudence. Therefore an obligatory element of the crime under Article 293 of the Criminal Code of the <COUNTRY> (official negligence) was missing. The applicant’s mother lodged a further complaint about the refusal to institute criminal proceedings, but to no avail. Initially lodged with the Civic Chamber of the <COUNTRY>, it was forwarded to the Children’s Rights Ombudsman at the President of the <COUNTRY>, who forwarded it to the Children’s Rights Ombudsman in the Samara region, who in turn forwarded it to the Samara regional prosecutor’s office, which informed her that the complaint would be examined by the Tolyatti prosecutor’s office (according to official letters to the applicant’s mother of 1 June, 8 June, 25 June and 7 July 2010, respectively). An article concerning the accident and the authorities’ refusal to institute criminal proceedings in respect of it was published in the local newspaper, Ploshchad Svobody . The applicant, represented by his mother, brought a civil action for damages, seeking 1,000,000 roubles (RUB) by way of compensation for the non ‑ pecuniary damage sustained by him. He argued that the unfinished building, which was situated near the school, in a residential area, had not been guarded and had been freely accessible. On 14 October 2010 the Tsentralniy District Court of Tolyatti granted his action in part. It established that the accident had happened in an unfinished school building that had been the municipal property of the Tolyatti mayor’s office since 1997. The right of economic control ( право хозяйственного ведения ) of that building had been transferred to a municipal enterprise, Invest-Proyekt, in 2007 for the purposes of the completion of the construction work. No construction work had been carried out since the transfer of the unfinished building – the state of completion of which was assessed at 54% – to Invest-Proyekt. Nor had any construction work been undertaken earlier, from the time of the transfer of the unfinished building to the municipal property in 1997. The Tolyatti mayor’s office had denied any responsibility for the building and had argued at a hearing before the District Court that in the absence of ongoing construction work there had been no need for any protective measures. The District Court rejected those arguments, concluding that – under the Town Planning Code of the <COUNTRY> – during the period that the construction work had been on hold it had been the mayor’s office, as owner of the unfinished building, that had been responsible for taking all measures necessary to exclude threats to people’s life and health. However, as had been established by the wording of the decision of 6 July 2009 not to institute criminal proceedings, the construction site had not been entirely closed off and had been freely accessible from one side of the school. The building had had no windows or doors. The Tolyatti mayor’s office had failed to undertake, in line with the relevant regulations, any protection measures in respect of the unfinished building. The Tsentralniy District Court of Tolyatti noted that the investigating authority’s finding regarding the lack of a cause ‑ and ‑ effect connection between (i) the actions or (failure to act) on the part of officials from the mayor’s office and other organisations and (ii) the damage to the applicant’s health was relevant to its conclusion about the absence of the occurrence of a crime, but did not exclude civil-law responsibility. The District Court held that there had been a cause-and-effect connection between the failure of the mayor’s office’s to act – notably its failure to undertake measures to restrict access to the unfinished building – and the damage to the applicant’s health. While Invest-Proyekt had also been responsible for the accident in so far as it had failed to obtain the necessary permits for construction work, it had been the responsibility of the mayor’s office to exercise control over it, which it had not done. In so far as the mayor’s office blamed the previous owner (from which it had received the unfinished building in the state in which it had been at the time of the accident), the mayor’s office had been free to demand that the previous owner undertake protection measures for the “conservation” of the unfinished building, or to refuse to receive it without such measures being first put in place. The court heard witnesses and established that after the accident the applicant had spent seventy days in a coma, with doctors estimating his chances of survival at 50%. He had been declared disabled and had been repeatedly hospitalised afterwards, and ongoing treatment and rehabilitation had been recommended. The court also took into account (i) the applicant’s own negligence – that is to say his entering a dangerous place and not exercising caution despite a warning from a friend about the hole in the floor, and (ii) the applicant’s mother’s failure to exercise parental responsibility – given that she should have exercised more control over her minor son’s activities, his visits to the construction site (of which she had been aware before the accident) and given her failure to prevent his visit to the construction site on the day of the accident (which had occurred at the weekend). The applicant argued that immediately before his fall he had been listening to music on headphones and had therefore not heard his friend’s warning about the hole in the floor. The court also heard prosecutor F. who considered that the applicant’s claim should be granted in part. The court granted the applicant’s claim partially and ordered the Tolyatti mayor’s office, which it ruled bore the primary responsibility for the accident, to pay the applicant RUB 25,000 and Invest-Proyekt to pay him RUB 15,000 in respect of non ‑ pecuniary damage. The applicant’s mother appealed against that judgment, arguing that the amount of the compensation was inadequate. The mayor’s office also appealed against the judgment, which it considered unlawful. Prosecutor N. stated at a hearing before the Samara Regional Court that the judgment should be upheld. On 9 December 2010 the Samara Regional Court upheld the judgment on appeal. It agreed with the first-instance court that those responsible for providing compensation in respect of non ‑ pecuniary damage were the mayor’s office, as the owner of an unfinished building that was a source of increased danger ( источник повышенной опасности ), and Invest-Proyekt, which had the right of economic control over the building. Their failure to act had led to the applicant suffering serious bodily harm and disability. The first-instance court had rightly ordered the mayor’s office, which had been responsible for exercising control over its property, to pay the larger part of the compensation. From the time of the transfer of the unfinished building to the municipal property in 1997 no construction work had been undertaken. Nevertheless, protection measures for the “conservation” of the unfinished building, such as fencing and guarding the unfinished building, had not been undertaken. Despite its close proximity to a school, the unfinished building had been freely accessible from the side of the school. The judgment was enforced in the part concerning the payment by the mayor’s office. The remaining part has not been enforced owing to the fact that the municipal enterprise had gone into liquidation after the delivery of the judgment. The applicant lodged an application for supervisory review of the judgments in the case. On 28 April 2011 a judge of the Supreme Court of the <COUNTRY> rejected his application, finding no grounds for supervisory review of the case by the Supreme Court. | Russian Federation | [
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68,443 | 11, 5 | A. Demonstration of 6 May 2012 The background facts relating to the planning, conduct and dispersal of the demonstration at Bolotnaya Square are set out in more detail in Frumkin Russia (no. 74568/12, §§ 7-65, 5 January 2016) and Yaroslav Belousov Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below. 7 . On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against the allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square which was supposed to end at 30 p.The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it transpired that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd, a police cordon forced the protesters to remain within the barriers. There were numerous clashes between the police and protesters. At 30 p.the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protesters from the square. The applicant took part in the demonstration on 6 May 2012 at Bolotnaya Square. She was arrested at the venue of the event and taken to a police station, where she was charged with an administrative offence. After a night in detention the applicant was released; on 8 May 2012 she was convicted as charged but exempted from administrative liability. B. The applicant’s arrest, detention and conviction for an administrative offence According to the applicant, on 6 May 2012 she participated in the demonstration at Bolotnaya Square. She conducted herself peacefully and did not take part in any acts of violence prior to her arrest. At 6 p.she was arrested by the police and at around 9 p.was taken to Taganskiy district police station of Moscow. 10 . According to the Government, the applicant was arrested at 6 p.at Bolotnaya Square because she had been participating in breaking the police cordon. At 20 p.she was taken to Taganskiy district police station, which was also indicated in the record of her transfer to the police station for the purpose of compiling an administrative file. She was released on 7 May 2012. 11 . The record of administrative arrest indicated that the applicant had been arrested at 45 p.at the police station. It contained no mention of the date or time of her release. It indicated that the applicant had not asked to notify anyone of her arrest. She signed an undertaking that she would attend court if ordered by the judge to do so. After that an on-duty officer drew up an administrative-offence record on the basis of the reports and explanatory notes of G.S. and S., the police officers who had arrested the applicant. These reports and notes were drawn up using an identical template and contained no individualised information except the police officers’ personal information and the applicant’s name. The latter was accused of disobeying lawful orders of the police, an offence under Article 3 § 1 of the Code of Administrative Offences. The administrative-offence record reiterated the reports and notes of the police officers, stating as follows: “... [the applicant], acting as part of a group of 1,500 citizens, took part in an authorised meeting ... during the event [the applicant] committed a breach of the rules on holding public events, [that is to say] she broke the police cordon ... thereby preventing police officers from carrying out their service duties, in breach of Article 3 § 1 of the Code of Administrative Offences.” According to the applicant, at the police station she was not allowed to make a phone call, despite making insistent requests. She told the police that she was the mother of a fifteen-month-old child left at home with a babysitter and requested that her family be notified of her arrest, but this was also refused. Her passport contained no information about her baby. At the police station she was detained in a small overcrowded cell with no sanitary facilities, sleeping place or bedding. She had no access to drinking water and was given no food. 14 . The administrative case file also contained an explanatory note by the applicant. She stated that during the demonstration she had happened to be in the middle of the crowd, which had pulled her towards the police officers. At some point she had been arrested and taken to the police station, even though she had not chanted any slogans. At around 6 p.on 7 May 2012 the applicant appeared before a justice of the peace. However, her case could not be examined that day and she was taken back to the police station. According to the applicant, she was released at about 10 p.that day. She signed an undertaking that she would attend the court hearing of the administrative case. On 8 May 2012 the Justice of the Peace of circuit no. 100 of the Yakimanka District examined the charges against the applicant. On the basis of the police officers’ reports and explanations and the records of administrative transfer and arrest, the court established that the applicant had committed an administrative offence under Article 3 § 1 of the Code of Administrative Offences, as described in the administrative-offence record. The applicant repeated the statements she had given in the explanatory note, but they were dismissed. The court decided, however, to absolve her from administrative liability on the grounds that her offence had not entailed serious consequences and that she had a baby born in 2011. The Justice of the Peace issued her a warning. She did not appeal against the judgment. On 26 July 2012 the applicant lodged a complaint under Chapter 25 of the Code of Civil Procedure with the Dorogomilovskiy District Court of Moscow about her allegedly arbitrary arrest on 6 May 2012 and detention until 7 May 2012, the termination of the rally at Bolotnaya Square and the conditions of her detention at the police station. 18 . On 3 September 2012 the court refused to examine the complaint on the grounds that the contested acts of the police had been the matter of the administrative proceedings and could not be challenged separately. It did not examine the complaint about the conditions of detention. On 20 May 2013 the Moscow City Court quashed the part of the decision of 3 September 2012 concerning the refusal to examine the complaint about the conditions of detention, and upheld the remaining part. On 23 October 2013 the Dorogomilovskiy District Court dismissed the applicant’s complaint about the conditions of her detention at the police station as unsubstantiated. On 28 February 2014 the Moscow City Court upheld that judgment. | [
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70,685 | 6 | The applicants complained of the excessive length of civil proceedings. | [
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62,947 | 6, P1-1 | The civil, enforcement and insolvency proceedings The applicant was born in 1941 and lives in Belgrade. On 27 June 2001 the Obrenovac Municipal Court ordered a socially-owned company, Holding - Prva Iskra AD Barič (hereinafter “the debtor”), to pay the applicant specified amounts on account of compensation for expropriated real estate plus the costs of the civil proceedings. On 18 March 2003, upon the applicant’s request to that effect, the Obrenovac Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. On 23 April 2003 the Privatisation Agency ordered the restructuring of the applicant’s debtor. As a consequence, the ongoing enforcement proceedings against the debtor would appear to have been stayed. On 29 February 2016 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor. The applicant duly reported her claims based on the above-mentioned judgment to the insolvency administration. The insolvency proceedings are still ongoing and the said court judgment remains unenforced to the present day. According to publically available information the debtor is still, predominantly comprised of socially-owned capital (see http://pretraga2.apr.gov.rs/ObjedinjenePretrage/Search/Search , accessed on 7 February 2017). B. The proceedings before the Constitutional Court On 7 October 2011 the applicant lodged an appeal with the Constitutional Court. In terms of redress, relying on the Constitutional Court Act 2007, the applicant sought, inter alia , compensation for the pecuniary and non-pecuniary damage suffered due to the impugned non-enforcement. On 15 May 2012 the applicant noted the adoption of the amendments to the Constitutional Court Act, and specified her compensation claims accordingly. Specifically, on account of the pecuniary damage, the applicant requested the respective amounts awarded to her by the final judgment in question, whilst as regards the non ‑ pecuniary damage sustained she claimed 1,000,000 Serbian dinars (approximately 9,500 euros (EUR)). On 21 May 2014 the Constitutional Court found, in the operative part of its ruling ( u izreci ), that the applicant had indeed suffered a violation of her right to a fair trial within a reasonable time, as well as a violation of her property rights and awarded her EUR 1,000 in respect of the non-pecuniary damage in question. However, it rejected the compensation claim regarding the pecuniary damages sought by the applicant. The Constitutional Court, lastly, ordered the speeding up of the impugned enforcement proceedings. In its reasoning, the Constitutional Court stated in respect of the compensation issue that the applicant’s pecuniary damage claim had been lodged out of time. In so doing, it merely referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, requiring that such claims be brought simultaneously with the lodging of a constitutional appeal. | [
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17,592 | 13, 6 | The applicant was born in 1931 and lives in Škofja vas. On 6 August 1990 the applicant fell in the Celje community health care centre (the “health centre”) and injured herself. The health centre had taken out insurance with the insurance company ZT. On 16 December 1993 the applicant instituted civil proceedings against the health centre and Celje Hospital in the Celje Basic Court ( Temeljno sodišče v Celju ) seeking damages in the amount of 2,111,460 tolars (approximately 8,800 euros) for the injuries sustained, which she unsuccessfully claimed from ZT in the preceding dispute before the same court. On 5 April 1994 the applicant lodged a preliminary written submission reducing her claim to the amount of 1,561,460 tolars (approximately 8,800 euros). Between 6 September 1994 and 26 April 1996 she made eight requests that a date be set for a hearing. On 1 January 1995 the Celje District Court ( Okrožno sodišče v Celju ) gained jurisdiction in the present case due to the reform of the Slovenian judicial system. On 28 February 1997 the court declared the case out of its jurisdiction and decided to transfer the case, once the decision became final, to the Celje Local Court ( Okranjo sodišče v Celju ). The decision was served on the applicant on 10 March 1997. On 5 June 1997 the applicant added a subsidiary claim in the amount of 2,370,296 (approximately 9,900 euros) to her initial claim. Consequently, on 10 June 1997 the court declared the case out of its jurisdiction and decided to transfer the case, once the decision became final, to the Celje District Court ( Okrožno sodišče v Celju ). The decision was served on the applicant on 16 June 1997. On 17 June 1997 the applicant appealed to the Celje Higher Court ( Višje sodišče v Celju ). On 18 December 1997 the court dismissed the appeal. The decision was served on the applicant on 22 January 1998. Between 8 April and 4 June 1998 the applicant made three requests that a date be set for a hearing. On 31 May and 12 October 1999 she filed preliminary written observations. Of the three hearings held between 19 November 1998 and 9 November 1999 none was adjourned at the request of the applicant. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 2 February 2000. On 4 February 2000 the applicant appealed to the Celje Higher Court. The health centre and Celje Hospital cross-appealed. On 1 February 2001 the court rejected the applicant’s appeal, allowed the appeals of the opposite parties in part and rejected the applicant’s claim. The judgment was served on the applicant on 19 April 2001. On 14 May 2001 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). On 10 April 2002 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 13 May 2002. On 20 June 2002 the applicant lodged a constitutional appeal. On 11 May 2004 the Constitutional Court ( Ustavno sodišče ) dismissed the applicant’s appeal. The decision was served on the applicant on 12 May 2004. | [
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75,077 | 8, 13 | The applicants complained of having been subjected to permanent video surveillance in pre-trial or post-conviction detention facilities and about unavailability of an effective domestic remedy in this respect. | [
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17,823 | 13, 6 | The applicant was born in 1947 and lives in Grobelno. On 6 August 1989 the applicant was run over at the border crossing between <COUNTRY> (at the time forming part of Federal Republic of Yugoslavia) and <COUNTRY> by a caravan driven by a Dutch citizen who had taken out insurance with the insurance company CBS. On 8 November 1989 the applicant instituted civil proceedings against the insurance companies ZT and CBS in the Celje Basic Court, Šentjur Unit ( Temeljno sodišče v Celju, Enota Šentjur ) seeking damages for the injuries sustained. Following the first hearing, which was held on 22 December 1989, the court appointed medical and financial experts. On 1 January 1995 the case was transferred to the Celje District Court ( Okrožno sodišče v Celju ) following the reorganization of the Slovenian courts. On 23 February 1995 the Ministry of Justice of the Republic of <COUNTRY> requested the Hertogenbosch Municipal Court (the <COUNTRY>) to hear a witness. Between 23 August 1994 and 21 June 1999 the applicant made fourteen requests that a date be set for a hearing. Between 17 December 1997 and 16 April 2003 he lodged twenty-four preliminary written submissions and/or adduced evidence. Of the seven hearings held between 4 December 1997 and 13 May 2003 one was adjourned at the request of the applicant. During the proceedings the court appointed three medical experts, a road traffic expert and an expert on financial accounting. The judgment upholding in part the applicant’s claims was served on the applicant on 12 June 2003. On 16 June 2003 the applicant appealed to the Celje Higher Court ( Višje sodišče v Celju ). ZT and CBS cross-appealed. On 14 April 2004 the court allowed the applicant’s appeal in part and amended the first-instance court judgment. The court dismissed the ZT’s and CBS’s appeal. The judgment was served on the applicant on 17 June 2004. On 30 June 2004 the applicant lodged an appeal on points of law with the Supreme Court ( Vrhovno sodišče ). The proceedings are still pending. | Slovenia, Austria, Netherlands | [
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20,529 | 13, 6 | The applicant was born in 1954 and lives in Ljubljana. At an undetermined time, he invented a type of fish bait and secured a patent for production of this bait. On 17 September 1992 the applicant and J.Z. made a contract to engage in production of fish baits. On 24 March 1993 the applicant removed some of the production material and tools from J.Z.'s premises where the production had been taking place. On 7 April 1993 J.Z. requested the applicant to sell him the patent for the bait, if he wished to keep their business relationship active. On 16 April 1993 the applicant made an offer to J.Z. to sell him the patent, which the latter refused. On 26 April 1993 the applicant informed J.Z. that he wished to end their business relationship by cancelling the contract of co-operation, but the latter refused. Proceedings concerning the nuisance claim and the interim measure On 23 April 1993 J.Z. lodged a nuisance claim in the Ljubljana Basic Court, Ljubljana Unit ( Temeljno sodišče v Ljubljani , Enota v Ljubljani ) against the applicant and also sought an interim measure prohibiting the applicant to use or alienate any means for production of fish baits. On 7 June 1993 the court upheld J.Z.'s request for an interim measure in part. On 14 June 1993 the applicant replied to the claim and also appealed against the order issuing the interim measure. J.Z. cross-appealed. Until 14 June 1994 the court held six hearings. On that day, the court partially stayed the proceedings because J.Z. had withdrawn the request for an interim measure in part. The court also allowed the applicant's appeal and annulled its decision of 7 June 1993. J.Z. appealed against this decision to the Ljubljana Higher Court ( Višje sodišče v Ljubljani ). On 28 June 1994 the Convention took effect with respect to <COUNTRY>. On 21 July 1994 the Ljubljana Higher Court dismissed the appeal concerning the interim measure. On 1 January 1995, following the reform of the Slovenian judicial system, the Ljubljana District Court ( Okrožno sodišče v Ljubljani ) gained jurisdiction in the case which was still pending in the first-instance court in the part referring to the nuisance claim. On 20 June 1995 the court upheld J.Z.'s nuisance claim. The judgment was served on the applicant on 15 November 1995. On 22 November 1995 the applicant appealed to the Ljubljana Higher Court. On 9 July 1996 the court allowed the appeal and remitted the case to the first-instance court for re-examination. On 10 December 1996 the Ljubljana District Court held a hearing which was adjourned sine die . On 10 February 1997, after the applicant had instituted proceedings against the Republic of <COUNTRY> due to excessive length of proceedings (see below §§ 11-14), the applicant requested that the case be transferred to a new court in order to secure the impartiality of the adjudicator. After his request was dismissed by the Supreme Court ( Vrhovno sodišče ) on 29 October 1997, he sought a recusal of the first-instance court's judge presiding over the case. Also this request was dismissed, ultimately, by the deputy of the President of the Ljubljana District Court on 1 September 1999. On 8 March 2000 the court held a hearing. On 5 April 2000 the applicant filed preliminary written observations and adduced evidence. On 5 April 2000 the court held a hearing and rejected J.Z.'s claim. On 14 June 2000 J.Z. appealed to the Ljubljana Higher Court. On 7 July 2000 the applicant lodged a reply to the appeal. On 8 January 2002 the court dismissed both appeals. Proceedings referring to the claim for damages On 27 January 1997 the applicant instituted civil proceedings in the Ljubljana District Court against the Republic of <COUNTRY> seeking damages in the amount of 34,740,000 Slovenian tolars (approximately 145,000 euros) for damages sustained due to excessive length of proceedings concerning the nuisance claim and interim measure. On 21 April 1998 the applicant filed preliminary written observations, raised his claim and requested that a date be set for a hearing. On 8 January 1998 the court held a hearing. On 14 December 1998 the court rejected the applicant's claim holding that the judge in charge of the case in the first-instance, conducted the proceedings in accordance with the legislation in force. The decision was served on the applicant on 15 March 1999. On 29 March 1999 the applicant appealed to the Ljubljana Higher Court. On 16 June 1999 the court dismissed the appeal. The judgment was served on the applicant on 9 July 1999. On 28 July 1999 the applicant lodged an appeal on points of law with the Supreme Court. On 20 April 2000 the court dismissed the appeal. On 30 June 2000 the applicant lodged a constitutional appeal. On 11 June 2001 the Constitutional Court ( Ustavno sodišče ) declared the case inadmissible as it was manifestly ill-founded. The decision was served on the applicant on 10 July 2001. | Slovenia | [
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71,452 | 6 | On 2 September 2014 the justice of the peace of judicial circuit no. 1 of the Levokumskiy District of the Stavropol Region found the applicant guilty of refusing to take a breathalyser test, ordered him to pay a fine in the amount of 30,000 Russian roubles and suspended his driving licence for one and a half years. The applicant appealed. On 7 October 2014 the Levokumskiy District Court of the Stavropol Region quashed the judgment of 2 September 2014 and discontinued the proceedings. On an unspecified date the judgment became final. On 5 December 2012 the head of the traffic police asked the President of the Stavropol Regional Court to review the applicant’s case, claiming that the District Court had failed to establish correctly the circumstances of the case. On 18 February 2015 the Deputy President of the Regional Court accepted the complaint lodged by the head of the traffic police for consideration. On 10 March 2015 the Deputy President of the Regional Court quashed the judgment of 5 December 2012 and remitted the matter for fresh consideration to the District Court. On 20 March 2015 (postmark) the Regional Court sent a letter to the applicant informing him of the decision of 18 February 2015 and advising him of his right to submit observations in response to the complaint by 27 February 2015. The applicant received the relevant letter on 24 March 2015. On 27 May 2015 the District Court upheld the judgment of 2 September 2014 on appeal. The applicant and his lawyer were not present at the hearing. | [
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64,735 | 3, 8, 5 | Application no. 29431/05 Zubkov Russia On 12 April 2002 the local police sent to the local investigations committee audio recordings of telephone conversations between the applicant and several persons, and video recordings of their meetings in a flat in Novgorod. The accompanying letter, which the Government presented to the Court, stated that the audio and video recordings had been obtained in the course of covert “operational-search” measures (“ оперативно-розыскные мероприятия ”) authorised by the President of the Novgorod Regional Court on 19 July and 31 August 2000 and 17 and 27 February 2001. On 16 April 2002 the applicant was arrested and charged with several counts of drug trafficking committed by an organised criminal group. Four more persons were arrested on the same charge. On 18 April 2002 the Novgorod Regional Prosecutor’s Office ordered the applicant’s placement in custody pending trial. He remained in custody throughout the criminal proceedings. The applicant learned about the audio and video recordings on an unspecified date while studying the criminal case file. On 26 June 2002 the investigation was completed and the case was sent for trial to the Novgorod Town Court. On 18 July 2002 counsel of one of the defendants asked that the trial be adjourned until September 2002 because he would be on annual leave until 6 September. On 20 August 2002 the Novgorod Town Court scheduled the first hearing for 16 September 2002. The hearing of 16 September 2002 was adjourned until 23 September 2002 because the applicant’s counsel was in hospital and because the prosecution witnesses did not appear. The trial eventually started on 20 November 2002. At the trial the applicant pleaded not guilty. He claimed, in particular, that the audio and video recordings were inadmissible as evidence as they had been obtained without prior judicial authorisation. His co-defendants pleaded guilty. They testified that the applicant was the leader of an organised group dealing in drugs. The applicant and another defendant, Mr K., had rented a flat where the members of the group had met to receive instructions from the applicant and to distribute the profits. They had also packaged and stored drugs in the flat. The owner of the flat testified that he had rented his flat to Mr K. and that on several occasions the rent had been paid by the applicant. On 24 November 2004 the Novgorod Town Court found the applicant and his co-defendants guilty of drug trafficking. It found it established that the applicant was the leader of an organised criminal group dealing in drugs. It relied on witness testimony, expert reports, audio recordings of telephone conversations between the defendants and video recordings of their meetings in the rented flat. It found that the recordings were admissible as evidence because they “had been obtained in the course of authorised covert operational-search measures aiming at uncovering criminal acts committed by Zubkov and the criminal group organised by him”. The applicant was sentenced to nine years and six months’ imprisonment. In his appeal submissions the applicant complained, in particular, that the audio and video recordings had been obtained without prior judicial authorisation. On 8 February 2005 the Novgorod Regional Court upheld the judgment on appeal. It repeated verbatim the Town Court’s finding that the audio and video recordings were admissible as evidence because they “had been obtained in the course of authorised covert operational-search measures aiming at uncovering criminal acts committed by Zubkov and the criminal group organised by him”. B. Application no. 7070/06 Ippolitov Russia The applicant worked as an investigator at the Prosecutor General’s Office. On 6 April 2004 he was arrested and charged with aiding and abetting bribery. On 29 October 2004, while studying the criminal case file, the applicant discovered that it contained audio recordings of his telephone conversations during the period from November 2003 to March 2004. The criminal case file also contained a letter of 21 October 2004 from the Federal Security Service to the local prosecutor stating that the audio recordings had been obtained in the course of covert operational ‑ search measures authorised by the Tver Regional Court in its decisions nos. 55-21, 55-30, 55-76, 55-93 and 55-103. Given that they were classified documents, the decisions could not be shown to the prosecutor and would be shown to the trial court only at its request. During the trial the applicant pleaded not guilty. He argued, in particular, that the audio and video recordings were inadmissible as evidence because the case file did not contain a copy of the judicial authorisation. The prosecutor stated in reply that the interception of his telephone communications had been authorised by the Tver Regional Court. A copy of the authorisation had not been included in the case file because it was confidential. On 14 May 2005 the Regional Court convicted the applicant of aiding and abetting bribery and sentenced him to three years’ imprisonment. The court relied, among other things, on the audio recordings of his telephone conversations. The court rejected the applicant’s argument that the audio recordings were inadmissible as evidence, finding that “the examination of the material in the case file [had] permitted [the court] to establish that the evidence [had been] obtained in accordance with the Code of Criminal Procedure and the Operational-Search Activities Act”. The applicant appealed. He submitted that the Regional Court had not given reasons for its finding that the audio recordings were admissible as evidence. In particular, it had not examined whether the interception of his telephone conversations had been duly authorised by a court and carried out in accordance with the procedure prescribed by law. On 7 December 2005 the Supreme Court of Russia upheld the judgment on appeal. The court did not specifically address the applicant’s argument that the audio recordings were inadmissible as evidence. It held that the finding of guilt had been based on evidence which had been properly analysed and assessed by the Regional Court. The applicant received the decision on 7 March 2006. Application no. 5402/07 Gorbunov Russia The applicant’s detention On 5 July 2006 the Frunzenskiy District Court of Vladimir ordered the applicant’s detention on charges of fraud. The applicant was absent from the hearing but his counsel attended. On 14 July 2006 the Vladimir Regional Court upheld the detention order on appeal. The applicant was absent also from the appeal hearing, which was again attended by his counsel. 26 . On 3 November 2006 the Frunzenskiy District Court extended the applicant’s detention until 5 January 2007. On 7 November 2006 the applicant appealed. On 5 December 2006 the Vladimir Regional Court found that there were no reasons to vary the preventive measure and upheld the decision of 3 November 2006. The applicant’s detention was further extended on several more occasions. Conditions of detention in remand prisons In the period from 14 September 2006 to 12 January 2007 the applicant was detained in four remand prisons. According to the applicant, all four remand prisons were overcrowded. From 14 to 22 September 2006 the applicant was held in remand prison IZ-67/1 in Smolensk. Cell 196 measuring 15 sq. m was equipped with eight sleeping places and accommodated up to sixteen inmates. From 25 to 28 September 2006 the applicant was held in remand prison 76/1 in Yaroslavl. Cell 133 measuring 9 sq. m was equipped with seven sleeping places and accommodated up to eight inmates. From 29 September to 1 October 2006 the applicant was held in remand prison 43/1 in Kirov. His cell measuring 50 sq. m was equipped with forty sleeping places and accommodated up to twenty inmates. The cell was equipped with wooden boards instead of individual beds. From 2 October 2006 to 12 January 2007 the applicant was held in remand prison 33/1 in Vladimir. Cell 63 measuring 14 sq. m was equipped with four sleeping places and accommodated up to five inmates. Conditions of transport On 28 and 29 September 2006 the applicant was transported by rail between remand prison IZ-76/1 and remand prison IZ-43/1 from Yaroslavl to Kirov. The train compartment was equipped with seven sleeping places and accommodated up to ten inmates. On 1 and 2 October 2006 the applicant was transported by rail between remand prison IZ-43/1 and remand prison IZ-33/1 from Kirov to Vladimir. The train compartment was equipped with seven sleeping places and accommodated up to twelve inmates. Interception of the applicant’s telephone communications On 25 December 2006 the applicant started to study the criminal case file and discovered that it contained audio recordings of his telephone conversations between 22 and 25 July 2004. On 2 February 2007 the applicant asked the investigator for a copy of the judicial decision authorising the interception. On the same day the investigator refused his request. Relying on the Interior Ministry’s Order no. 336 of 13 May 1998 (see paragraph 54 below), he replied that the police were not required to send the interception authorisation to the investigator; it was to be kept in the operational search file. The Vladimir Regional Court’s decisions of 28 May and 2 June 2004 authorising interception of the applicant’s telephone communications were stored by the local police. They were classified documents and neither the applicant nor his counsel, who had no security clearance, could be granted access to them. On 6 February 2007 the applicant complained to the Frunzenskiy District Court of Vladimir that the interception of his telephone communications had been unlawful, in particular because the case file did not contain a judicial authorisation. He submitted that the refusal to give him a copy of the interception authorisation had frustrated him in the exercise of his defence rights and deprived him of an effective remedy against an interference with his rights guaranteed by Articles 23 and 24 of the Constitution and Article 8 of the Convention. In particular, he had been unable to ascertain whether the interception authorisation had been issued by a competent court in accordance with the procedure prescribed by law, whether it had been based on relevant and sufficient reasons or whether the requirements for judicial authorisation, such as the authorised duration of interception, had been complied with at the implementation stage. On 19 February 2007 the Frunzenskiy District Court examined the complaint under Article 125 of the Code of Criminal Procedure (see paragraph 63 below) and rejected it. Relying on section 12 of the Operational-Search Activities Act (see paragraph 49 below), the court held that the judicial decision authorising operational-search measures and the material that served as a basis for that decision were to be held in the exclusive possession of the State agency performing such measures. It had therefore not been included in the criminal case file and the defendant was not entitled to have access to it. The court further referred to the Constitutional Court’s ruling of 14 July 1998, holding that the person whose communications were to be intercepted was not entitled to participate in the authorisation proceedings or to be informed about the decision taken (see paragraph 50 below). The refusal to give the applicant a copy of the judicial authorisation had therefore been lawful. The court also rejected the applicant’s complaint about the unlawfulness of the interception, without giving any reasons. On 3 April 2007 the Vladimir Regional Court upheld the decision of 19 February 2007 on appeal, finding it lawful, well reasoned and justified. | [
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7,854 | 6 | Arrest and detention of the applicant On 3 April 1979 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the THKP-C (Turkish People’s Liberation Party/Front). On 24 April 1979 the Ankara Martial Law Court ( sıkıyönetim mahkemesi ) ordered the applicant’s detention on remand. B. Trial in the İstanbul Martial Law Court On 4 March 1981 the Military Public Prosecutor filed a bill of indictment with the İstanbul Martial Law Court against the applicant and 127 other defendants. The Public Prosecutor accused the applicant, inter alia , of membership of an illegal armed organisation, namely the THKP/C, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as breaking into a prison, assisting and abating several prisoners to escape from that prison, killing and injuring of several of the guardians and bearing unauthorised arms. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code. The criminal proceedings instituted against the applicant before the Ankara Martial Law Court were joined to the proceedings before the İstanbul Martial Law Court. In a judgment of 8 November 1984 the İstanbul Martial Law Court convicted the applicant of membership of the THKP/C and his involvement in the alleged crimes. It sentenced the applicant to lifetime imprisonment under Article 146 § 1 of the Criminal Code. Proceedings on appeal As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically referred to the Military Court of Cassation (A skeri Yargıtay ). On 12 April 1988 the Military Court of Cassation quashed the judgment of the first instance court on the ground that it failed to establish the applicant’s involvement in some of the alleged crimes. It referred the case to the İstanbul Martial Law Court. On 4 June 1990 the İstanbul Martial Law Court ordered the applicant’s release pending trial. On 17 August 1990 the İstanbul Martial Law Court convicted the applicant, under Article 146 § 3 of the Criminal Code, and sentenced him to twelve years and six months’ imprisonment, permanently debarred him from employment in the civil service and placed him under judicial guardianship. The applicant appealed. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation ( Yargıtay ) acquired jurisdiction over the case and on 4 January 1994 the case file was transmitted to it. On 18 April 1995 the Court of Cassation quashed the decision of the first instance court conviction on the ground that the applicant should have been convicted of the offence under Article 146 § 1 of the Criminal Court. It referred the case to the Üsküdar Assize Court (ağır ceza mahkemesi) . The criminal proceedings are still pending before the latter court. | [
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80,688 | 11 | The applicants complained of the disproportionate measures taken against them as organisers and/or participants of public assemblies. Some applicants also raised other complaints under the provisions of the Convention and its Protocols. | [
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78,462 | 13, 8 | The applicants complained of the permanent video surveillance of detainees in post-conviction detention facilities and the lack of an effective remedy in that respect. The applicants also raised other complaints under the provisions of the Convention. | [
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26,249 | 5 | The applicant's arrest and detention on remand On 18 November 2000 the applicant was arrested and taken into custody on suspicion of rape of a minor female, aged fourteen, and unauthorised acquisition, storage and conveyance of narcotic substances. On 21 November 2000, on the application of a police officer in charge of the investigation of the applicant's case, a judge of the Zemgale District Court of the City of Rīga, taking into consideration the oral submissions of the police officer and the applicant's lawyer, decided to detain the applicant on remand. The judge filled in a standard form by writing in the date, her name, the applicant's name and other details of the case. In substantiating the decision, the judge had to select and underline the pre-typed text of the standard form which she considered to be relevant to the case. She took into account the severity of the crime of which the applicant was suspected, his personality, the danger of his absconding and the possibility that he could impede the investigation. It was not indicated in the decision until which date the applicant should remain in detention. According to the copy of the decision, the applicant was not present. He did not appeal against the decision. On 15 December 2000 the applicant's case was transferred to the Rīga Court Regional Prosecutor's Office. On 10 January 2001, on the application of a prosecutor of the Rīga Court Regional Prosecutor's Office, a judge of the Zemgale District Court of the City of Rīga, taking into consideration the oral submissions of the prosecutor, extended the applicant's detention on remand until 15 March 2001. Neither the applicant nor his lawyer appeared before the judge. In substantiating the decision, the judge took into account the severity of the crime with which the applicant was charged, his four previous convictions, the danger of his absconding and re-offending and the possibility that he could impede the investigation. The applicant did not appeal against this decision. On 5 March 2001, on the application of a prosecutor of the Rīga Court Regional Prosecutor's Office, a judge of the Zemgale District Court of the City of Rīga, considering the oral submissions of the prosecutor, the gravity of the crime with which the applicant was charged, the fact that he had a criminal record, the danger of his absconding and continuing criminal offences, prolonged the applicant's detention on remand until 15 May 2001. Neither the applicant nor his lawyer appeared before the judge. The applicant appealed against this decision, asserting that the case-file contained no proper evidence of his guilt. On 24 April 2001, according to the materials in the case file, the Riga Regional Court dismissed the applicant's appeal, finding that his detention was lawful inter alia under Article 77 of the Law on Criminal Procedure. The court considered that the gravity of the crime with which the applicant was charged and the fact that he had four previous convictions confirmed the existence of a risk of his absconding, re-offending and perverting the course of justice. The applicant was present at the hearing. The decision was not subject to a further appeal. On 31 May 2001 the final bill of indictment was presented to the applicant. He was charged with rape of a female minor, aged fourteen, and unauthorised acquisition, storage and conveyance of narcotic substances in large amounts. On the same day the case was transferred to the Rīga Regional Court for adjudication. On 4 June 2001 a judge of the Rīga Regional Court committed the applicant for trial and, considering that the preventive measure had been chosen appropriately, decided that his “remand shall remain unchanged”. The decision was not subject to appeal. On 1 November 2002 paragraph 7 of Article 77 of the Criminal Procedure Code entered into force and a judge of the Rīga Regional Court sent the applicant's criminal case to the Senate of the Supreme Court, requesting the extension of the applicant's detention on remand for a further six months. On 1 November 2002 the Senate of the Supreme Court decided to extend the applicant's detention on remand until 1 May 2003. In substantiating its decision, the court took into account the gravity of the crime with which the applicant was charged and the danger of his absconding and re-offending. The decision was not subject to appeal. Neither the applicant nor his lawyer was present. Pre-trial investigation of the applicant's case On 18 November 2000, upon the applicant's arrest, the victim identified him in the presence of two police officers as the perpetrator of the rape. On his arrest, the applicant was searched and five polyethylene pouches with a white powdery substance were seized and sent to a forensic expert. On the same day the victim was questioned and her statement accusing the applicant of raping her was written down. Her underwear was seized as evidence and sent for forensic tests. The applicant was interrogated as a suspect; however, he refused to give any statement in the absence of a lawyer. On 19 November 2000 the victim underwent a gynaecological forensic examination, by which it was established that she could have had sexual intercourse on the previous day in the alleged circumstances. The expert noted that she had a bruise on her left thigh and vaginal bruising. On 19 November 2000 the applicant was subjected to a forensic and physical examination. It was established that he had several bruises which could be the result of the victim's resistance and could have been inflicted in the circumstances described by the victim (paragraph 32, below). It was also established that the applicant could have had sexual intercourse on 18 November 2000. On 21 November 2000 the applicant was questioned in the presence of a lawyer. He refused to give any statement until the completion of the pre-trial investigation. From 21 to 28 November 2000 the victim, diagnosed as being in a post-traumatic reactive condition, underwent medical treatment in the Child Clinical University Hospital. On 27 November 2000 the State Forensic Expertise Centre delivered the results inter alia of the forensic examination of the victim's underwear. Semen was found on them, containing the so-called A antigen , which was characteristic to the applicant. The results of the tests did not exclude that it was the applicant's semen on the victim's underwear. On 30 November 2000 the victim was questioned again. She fully confirmed her previous statements, giving further details. On 15 December 2000 the Centre of Forensic Expertise of the Ministry of the Interior delivered the results of the forensic tests on the powdery substance seized from the applicant. It was identified as heroin. On 20 December 2000 the applicant was questioned; however, he refused to give a statement. On 28 December 2000 the applicant was questioned again but he refused to give any statement in the absence of a lawyer. On 23 February 2001, on the request of the prosecutor in charge of the investigation of the case, a psychiatric expert from the Psychiatry Centre examined the victim. It was established inter alia that she was able to assess and understand the relevant facts of the case correctly, that she did not have a tendency to imagine or fabricate the events and that the rape had affected her psyche, causing sleep disturbance, disturbing memories and neurotic tensions. The expert confirmed that the victim's appearance before the court would involve a danger to her health, as she had suffered from a psychological trauma and her health would most likely again deteriorate if she were to be confronted with the applicant. On 16 March 2001 the applicant was acquainted with the results of the tests relating to the case. He refused to sign the respective records but he did not submit any petitions or complaints regarding the expert opinions. On 27 April 2001 the applicant was charged with having committed rape of a minor female and unauthorised storage of narcotic substances. He did not plead guilty to having committed the rape and submitted that he had not been duly acquainted with the relevant materials of the case. He alleged that he had just touched the victim in order to locate his allegedly stolen wallet. On 9 May 2001 the victim was questioned in respect of the applicant's submissions regarding his allegedly stolen wallet. She stated that the applicant had not asked any of the persons present in the car on 18 November 2000 about the wallet. Between 10 and 30 May 2001 the applicant was given the opportunity to take cognisance of the case materials. He was assisted by a lawyer. He refused, without stating any reasons, to examine the case documents on 25, 29 and 30 May 2001. On 31 May 2001 the final bill of indictment was presented to the applicant. It contained the statements given by the victim, according to which her two girlfriends, A.K. and H.K., two men, R.P. and S.G., the applicant and she herself were drinking alcohol in a parked car on 18 November 2000. At some point the applicant told the others, except the victim, to leave the car. After they left, the applicant hit the victim in the face at least three times and raped her. Trying to defend herself, she hit the applicant several times on his head with an empty bottle and on his back with a wooden bar. After the rape, the victim left the car and went to a public phone to call the police. On her way she met R.P. When the police officers arrived, they went with the victim to an apartment where she identified the applicant as the person who had raped her. The following witness statements and the results of the tests were included in the bill of indictment: (a) According to the witness statement of R.P., he confirmed the consumption of alcohol on 18 November 2000, the persons present and the fact that the victim had told him that she had been raped by the applicant and that he had suggested to her that she should call the police; (b) H.K. confirmed the consumption of alcohol in the car and the persons present, and stated that the applicant had harassed the victim before he ordered the others to leave the car, after which he had stayed there alone with the victim; (c) A.K. confirmed the events of 18 November 2000 as stated by the victim; she also stated that the victim had told her that the applicant had hit her several times and that she had told her later that the applicant had raped her; (d) stated that on 18 November 2000 he had met the victim near the public phone and she had told him that she had been raped; (e) one of the policemen confirmed that the victim had, in his and his colleague's presence, identified the applicant upon his arrest as the person who had raped her; (f) the victim's father testified that he had been told by his daughter that the applicant had raped her and that she had bruises on her face and suffered from post-traumatic stress; (g) there were statements of a general nature from five other witnesses (including B. – the owner of the house next to which the alleged events of 18 November 2000 took place – who stated that she knew the applicant and the victim and had seen them both on 18 November 2000 and that she had been present during the applicant's arrest) relating inter alia to the circumstances of the applicant's arrest, the fact that he had consumed narcotic substances, his characteristics and an opinion of the drug expert describing heroin; (h) the results of the relevant tests (paragraphs 18, 19, 22, 24 and 27, above) were also included. According to the bill of indictment, it was decided not to summon the victim for participation in the court hearing, pursuant to the expert opinion (paragraph 27, above). The list of the persons who had to be summoned included all the persons whose testimonies were included in the bill of indictment, e. the victim's father, R.P., H.K., A.K., , the other five witnesses, the policeman and the drug expert who produced the expert opinion. Other experts were not included in the list. S.G. was not included in the list; according to the report of a police officer acting on the prosecutor's order, he had tried to locate S.G. unsuccessfully several times. On 31 May 2001 the case was transferred to the Rīga Regional Court for adjudication. Court proceedings against the applicant On 4 June 2001 a judge of the Rīga Regional Court committed the applicant for trial, without scheduling the trial date. The first hearing was set for 2 July 2002. On 1 July 2002 one of the witnesses in the applicant's case – the drug expert – informed the court that she could not attend the hearing. On 2 July 2002 the Rīga Regional Court opened the hearing of the applicant's case. It examined the applicant's allegations that he was not duly acquainted with the materials of the case and found them manifestly ill-founded, as the applicant had taken cognisance of the case between 10 and 30 May 2000. The hearing was adjourned due to the absence of witnesses; only one of all the summoned witnesses, , had arrived. The court, on the applicant and his lawyer's request, decided to summon the gynaecologist and psychiatrist who had examined the victim and delivered their expert opinions and an additional witness S., who had not given a witness statement during the pre-trial investigation and whose whereabouts and surname the applicant did not know. The applicant did not indicate what facts their testimonies could prove or how they could corroborate the position of the defence. On 7 July 2002 the applicant addressed the Rīga Regional Court, reiterating his motion to summon the witness S. and one of the witnesses questioned during the pre-trial investigation, B., as well as the psychiatric expert who had examined the victim, without indicating what facts their testimonies could prove or how they could corroborate the position of the defence. On 9 September 2002 the Rīga Regional Court informed the applicant that the witnesses and the expert requested by him would be summoned for the next hearing. On 17 March 2003 the Rīga Regional Court sent summonses to the witnesses in the applicant's case. On 24 March 2003 the hearing of the applicant's case was resumed. The parties were asked whether in the absence of most witnesses the hearing could take place. The parties left the decision to the court. Two witnesses were heard before the adjournment of the hearing with a view to ensuring the attendance of other witnesses. The Rīga Regional Court ordered the police to ensure the appearance of the remaining witnesses on 25 March 2003. The hearing continued on the next day. According to the case materials, the police established that H.K., the applicant's father and one of the witnesses who had testified during the pre-trial investigation on the drug charges against the applicant had changed their places of residence and their whereabouts were unknown. It remains unclear whether the police tried to locate and to establish the whereabouts of the remaining witnesses. On 26 March 2003 R.P. informed the court that he had left Rīga and moved to another city and therefore could not attend the hearing. On 27 March 2003 the applicant was found guilty of the rape of a female minor, aged fourteen, and unauthorised acquisition, storage and conveyance of narcotic substances in large amounts. He was sentenced to eight years' imprisonment. According to the judgment, the applicant (as established by the court, a person who had previously committed rape), the victim, her two girlfriends and two men were drinking alcohol in a parked car on 18 November 2000. At some point the applicant told the others, except the victim, to leave the car. After they left, the applicant hit the victim in the face at least three times and raped her. The victim had tried to protect herself by hitting the applicant several times on his head and his back. The court also established that the applicant had unlawfully acquired, stored and conveyed 5623 grams of heroin. The applicant was represented by defence counsel throughout the proceedings. In finding the applicant guilty of the rape charge, the Rīga Regional Court relied on the incriminating statements of the victim and her father and on the witness statements of R.P., and A.K. recorded during the pre-trial investigation. The court heard a policeman who was on duty at the material time. He stated that the victim had reported to the police that the applicant had raped her and had identified him upon his arrest. In establishing the facts, the court further had regard to the expert opinions on the results of the tests carried out during the pre-trial investigation, on-site inspection reports (for instance, according to the police report, the victim's glasses, one of her socks and a wooden bar had been found in the car) and documentary evidence. In finding the applicant guilty of unauthorised acquisition, storage and conveyance of narcotic substances, the court relied on the statements given during the trial by one witness, the applicant's daughter, who testified that she had been aware that the applicant had been using narcotic drugs, and on the written opinion of the drug expert that the powder seized during the applicant's arrest was heroin. The court further referred to the statements of one witness during the pre-trial investigation. According to him, upon the applicant's arrest a powdery substance had been found on him. According to the minutes of the hearing, the court decided that it was not necessary to summon the gynaecologist and psychiatrist who had delivered their expert opinions. It considered that their opinions were detailed enough and the applicant had not stated any additional question he would like to put to the experts. The court also considered it unnecessary to summon the witnesses requested by the applicant on 7 July 2002, as they could not submit any new unknown facts. The court also rejected the proposal of the applicant's lawyer to summon the victim for examination, as she had been recommended not to attend the hearing in the case. On 10 April 2003 the applicant submitted an appeal on points of law, without complaining about the first instance court's refusal to summon the witnesses requested by him and without requesting that any additional witnesses be summoned for examination. On 12 May 2003 the applicant applied to the Senate of the Supreme Court, requesting that the witness B. who had testified during the pre-trial investigation be summoned. On 13 May 2003 the applicant applied to the Senate of the Supreme Court, requesting that the victim be subjected to new psychological and psychiatric tests. According to him, the state of the victim's mental health before 18 November 2000 should be established; however, he did not state how it could corroborate the position of the defence. On 13 May 2003 the Senate of the Supreme Court reviewed the case through the procedure of cassation only to the extent that it concerned the alleged violations of the law on criminal procedure and dismissed this part of the appeal. The Senate subsequently referred the case to the Criminal Chamber of the Supreme Court for adjudication of complaints subject to review by way of the appeal procedure. On 2 June 2003 the applicant applied to the Criminal Chamber of the Supreme Court, requesting that unspecified witnesses who could give “concrete” statements concerning his case be summoned and examined. On 11 December 2003, during the hearing, the Criminal Chamber of the Supreme Court heard the applicant and reassessed the evidence obtained during the pre-trial investigation. The appeal court confirmed the judgment of the first instance court, holding it to be lawful, well-founded and sufficiently reasoned. The court established that the first instance court had thoroughly analysed the evidence available and expressly indicated in its judgment which facts it considered to have been established as well as the reasons for its conclusions, which did not need reassessment. The applicant was represented by defence counsel throughout the proceedings. On 3 March 2004 the applicant submitted an appeal on points of law. He alleged various breaches of substantive and procedural law. He complained inter alia that his requests to have witnesses and experts summoned had been rejected. On 22 March 2004 the Senate of the Supreme Court dismissed the applicant's appeal on points of law as manifestly ill-founded at a sitting held in camera . It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings. The Senate concluded that the applicant's guilt had been sufficiently established on the basis of the extensive testimony given by the victim during the pre-trial investigation, which had been corroborated by other evidence confirming his guilt. As to the applicant's complaint about the refusal of the first and second instance courts to summon witnesses, the court noted that he had failed to specify which particular facts would have been clarified by hearing the witnesses. The court considered that the evidence against the applicant was to a large extent based on the incriminating statements of the victim, who rightly had not been summoned due to the psychologist's recommendations. However, these statements were examined and objectively assessed by the courts. In addition, there was sufficient evidence proving the applicant's guilt. The Senate considered that the applicant had asked that circumstances which were not relevant to the case be established. The Senate did not establish any violations of procedural and substantive law which would have hindered the thorough, complete and objective investigation of the case. | [
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39,895 | Background of the case The first applicant, S.Z., is a Slovenian national who was born in 1955 and lives in Celje. The first applicant is the father of the second applicant, N.Z. The first applicant lived in an unmarried partnership ( zunajzakonska skupnost ) with O.Č. for several years. On 18 July 1997 their daughter, the second applicant, was born. Following the separation of the first applicant and O.Č. in 2001, the second applicant lived with O.Č., her mother. In 2001 and 2002 O.Č. was suffering from a mental disorder and was consequently treated in a psychiatric hospital in Vojnik. While she was hospitalised the first applicant took care of the second applicant. B. Proceedings before the Civil Court concerning custody and contact arrangements On 22 June 2004 O.Č. brought an action in the Celje District Court ( Okrožno sodišče v Celju ) seeking sole custody of the second applicant. On 18 August 2004 the court requested the Celje Social Work Centre ( Center za socialno delo Celje ) to deliver an opinion establishing with which parent the child's interests would be better protected. The court received the report on 21 September 2004. The Celje Social Work Centre informed the court that the first applicant and O.Č. had not come to an agreement concerning the custody issue before 22 June 2004, the date the action was brought to the court by O.Č. It also observed that O.Č. had been taking care of the second applicant properly and that the first applicant had not expressed any objection to the second applicant's staying with her mother, on condition that he was granted contact rights. The Celje Social Work Centre also found that O. Č. was not preventing contact between the applicants. On 7 March 2005 the court received an additional report from the Celje Social Work Centre. The latter informed the court that the first applicant wished to have joint custody of the second applicant. However, he would agree for O. Č. to be granted sole custody only if O. Č. informed him daily about how the second applicant was. On this occasion the Celje Social Work Centre also informed the court that a report had been requested from the second applicant's school as well as from O. Č.'s psychiatrist. In this connection, on 14 March 2005, the court received a report from O. Č.'s psychiatrist, stating that O. Č. was refusing treatment. The psychiatrist further considered that the question of capacity to take care of the second applicant was very complex and that therefore only an expert in psychiatry could compile a credible report. Also on 14 March 2005 the court held a hearing and decided to appoint an expert in psychiatry. On 17 March 2005 the first applicant requested to be exempted from paying the court fees. On 28 March 2005 the court upheld the first applicant's request. On 4 April 2005 the court appointed an expert in psychology, T., in order to determine which parent should be granted custody. Subsequently, on 8 April 2005, O.Č. requested that the expert T. be relieved of his duties since he had previously treated her medically. On 11 April 2005 the court appointed a new expert in clinical psychology, G.On 9 May 2005 the court received a letter from O.Č.'s psychiatrist, stating that O.Č., who had been suffering from a productive psychosis, had been refusing treatment. Relying on that letter, the first applicant, on 8 June 2005, requested that an interim contact order be issued pending the outcome of the main civil proceedings. On 20 June 2005 the expert G.submitted her report. Assisted by a psychiatrist who was invited to participate in the examination process, the expert observed that both parents suffered from a mental disorder. She concluded that custody could nevertheless be granted to O.Č. on condition that she received appropriate medical treatment, while regular contact should be granted to the first applicant. Also on 20 June 2005 the court requested the Celje Social Work Centre to inform it about the progress on the contact agreement between the first applicant and O.Č. On 30 June 2005 the Celje Social Work Centre submitted a report in which it informed the court that the first applicant had, on 6 April 2005, requested a formal contact arrangement, claiming that O.Č. had, since 31 March 2005, prevented him from having contact with the second applicant. Subsequently, the Celje Social Work Centre had prepared a draft agreement but O.Č. had refused to sign it, claiming that the court would in any event arrange contact rights in contentious civil proceedings. In addition, the Celje Social Work Centre informed the court that O.Č. and the second applicant had recently moved out of their flat and had been living in special sheltered accommodation for homeless mothers ( materinski dom ). On 5 July 2005, further to the above-mentioned report by the Celje Social Work Centre and relying on the fact that the second applicant had been living in sheltered accommodation, the first applicant again requested that an interim measure be ordered granting him regular contact with the second applicant. Meanwhile, on 1 July 2005, the court gave a decision concerning the expert's fees. On 12 July 2005 the first applicant brought a counterclaim, seeking sole custody of the second applicant and child maintenance. He also proposed that contact should be granted between O.Č. and the second applicant. On 23 August 2005 the first applicant cancelled the power of attorney in respect of his lawyer. On 27 September 2005 the first applicant, represented by a new lawyer, lodged preliminary written submissions which modified and extended his claim seeking sole custody of the second applicant and child maintenance, granting, on the other hand, regular contact in respect of O.Č. As an alternative, he sought regular contact with the second applicant and also requested that other relatives have contact with the second applicant. He moreover asked that an interim measure be taken in respect of all his requests. On 28 September 2005 the court held a hearing. Subsequently, the court gave a decision, finding that the first applicant's request concerning contact between the second applicant and other relatives as well as his request for an interim measure to that effect should have been considered in non-contentious proceedings. That part of the claim was thus declared to be outside the court's jurisdiction. Meanwhile, on an undetermined date O.Č. lodged a criminal complaint against the first applicant alleging sexual abuse of the second applicant. It seems that, also on an undetermined date, the first applicant lodged a criminal complaint against O.Č. for neglecting the child. On 4 October 2005 the court requested O.Č.'s psychiatrist to inform it whether O.Č. was receiving treatment. It further requested the Celje Social Work Centre to inform it as regards O.Č.'s state of health and also the fact that she was living in sheltered accommodation for homeless mothers. The court also requested the District Public Prosecutor's Office to update it on the progress of the criminal proceedings instituted against the first applicant. Subsequently, on 19 October 2005, the District Public Prosecutor's Office informed the court that an expert would be appointed in order to determine whether the second applicant had been sexually abused. On 24 October 2005 the court received a report from O.Č.'s psychiatrist stating that O.Č. had been refusing treatment. The psychiatrist also observed that she had been calmer since she and the second applicant had been living in sheltered accommodation. On 25 October 2005 the first applicant lodged preliminary written submissions urging the court to order the interim measure sought on 27 September 2005. On 28 November 2005 the court rejected the first applicant's request for an interim measure in respect of custody and child maintenance as well as his alternative claim to have contact granted with the second applicant (see paragraph 26 above). Nevertheless, the court, of its own motion and in different terms, granted contact between the two applicants (each Wednesday for one hour). On 13 December 2005 the first applicant appealed against this decision. On 14 December 2005 the court received a report from the Celje Social Work Centre in which the latter observed, inter alia, that contact between the applicants was in the child's best interest. It further observed that contact was taking place in accordance with the court decision of 28 November 2005. On 5 January 2006 the Celje Higher Court ( Višje sodišče v Celju ) quashed the first-instance court's decision concerning the interim order and remitted the case for re-examination. On 19 and 26 January and 3 February 2006 the first applicant urged the court to re-examine the case and order the requested interim measure. Meanwhile, on 24 January 2006, O.Č. lodged a preliminary written submission in which she informed the court that her state of health had improved. As a result, she requested the court to again appoint an expert or to order an additional report to be drawn up. In addition, she submitted that, since criminal proceedings had been initiated against the first applicant, who was suspected of sexual abuse of a minor, he should not be trusted with long-term custody of the second applicant. On 2 February 2006 the court scheduled a hearing. On the same day it requested the Celje Social Work Centre to inform it, inter alia , about the conditions in which the first applicant was living, O.Č.'s state of health, the second applicant's performance at school, and also to interview the second applicant. The court requested a swift response. In addition, the court requested O. Č.'s psychiatrist to provide information on her treatment and inquired at the District Public Prosecutor's Office about the criminal proceedings instituted against the first applicant. The District Public Prosecutor's Office responded on 6 February 2006. In its report it submitted that investigating measures against the first applicant for sexual assault were still in progress. They also informed the court about criminal proceedings instituted against O.Č. for fraud and forgery of documents. The Celje Social Work Centre responded on 7 February 2006, observing that the second applicant had expressed the wish to live with her mother. O.Č.'s psychiatrist responded on 10 February 2006 stating that O.Č. was continuing with her treatment and that her health had not worsened. The psychiatrist also expressed the view that O.Č. was a good mother and was emotionally attached to the second applicant. In the meantime, on 9 February 2006 the court held a hearing and requested the Psychiatric clinic ( Psihiatrična klinika) to appoint an expert in psychiatry. Furthermore, the court issued a decision whereby it rejected the first applicant's request for an interim measure concerning custody and child maintenance but upheld his subsidiary request to have contact with the second applicant. The decision was in the relevant part worded as follows. “The child may see her father every Monday, Wednesday and Friday after school. Her father is to collect her from her mother's place at 4 p.and be with her until 6 p.The child may also see her father every other Saturday; her father is to collect her from her mother's place at 9 a.and be with her until 6 p.The child shall spend the winter holidays with her mother, the spring holidays ( prvomajske počitnice ) with her father, the autumn holidays ( krompirjeve počitnice ) with her mother, the Christmas holidays, from 24 December to 29 December, with her father and from 29 December to 2 January with her mother. During the school summer holidays the child shall spend four weeks with her father (two weeks in July and two weeks in August)” On 22 February 2006 O.Č. lodged a preliminary written submission in which she submitted to the court a lease contract for the new apartment in which she was now living with the second applicant. On 25 April 2006, further to the court's request, the Celje Police Station informed the court that they had dealt with several matters concerning the second applicant. For example, O.Č. had alleged that the second applicant had been kidnapped when she was taken out of kindergarten by the first applicant. On another occasion she expressed the fear that the first applicant, who wanted to take the second applicant for a walk, would take her to an unknown destination. As to the first applicant, he has twice alleged that O.Č. took the first applicant away without telling him where. On 11 and 24 May 2006 the first applicant lodged preliminary written submissions, in which he requested to be informed of the name of the expert appointed by the Psychiatric clinic (see paragraph 40 above). On 15 May 2006 the court received a report from the Celje Social Work Centre in which the latter observed that O.Č.'s apartment was adequately furnished and clean. On 7 June 2006 the first applicant requested the court to fine O.Č., since she had not complied with the court's decision of 9 February 2006 in that she had prevented contact between 27 April and 5 June 2006. On 20 June 2006 O.Č. lodged a preliminary written submission concerning the first applicant's allegations in this regard. She claimed that the first applicant himself did not want to have contact with the second applicant. Further to the first applicant's request to fine O.Č., the court requested the Celje Social Work Centre to draw up a report concerning the execution of the first applicant's contact rights. The report was submitted on 29 June 2006. The Celje Social Work Centre informed the court that it did not keep any official records in this regard. However, the first applicant had appeared on their premises, claiming that on 28 April 2006 the contact had not taken place. Furthermore, the Celje Social Work Centre informed the court that O.Č. had been counselled by a social worker and that she had been trying hard to ensure the healthy development of the second applicant. It appears from the report that during counselling O.Č. had told the social worker that the second applicant had not spent the whole period of the spring holidays ( prvomajske počitnice ) with the first applicant. On another occasion, on 12 May 2006, O.Č. alleged abusive behaviour by the first applicant towards the second applicant. It seems that the first applicant took the second applicant to the hairdresser, where they cut her hair. On 22 May 2006 O.Č. informed the Celje Social Work Centre that the contact had taken place as agreed, but that the second applicant did not wish to spend a night at the first applicant's place. The Celje Social Work Centre also pointed out that fining O.Č. would be an unnecessary burden on O.Č.'s financial situation. On 21 August 2006 the first applicant lodged preliminary written submissions in which he stated that O.Č. was suffering from a mental illness and therefore had a distorted sense of reality. He again sought sole custody of the second applicant and requested the court to urge the appointed expert to submit a report. On 25 September 2006 the first applicant for the second time requested the court to fine O.Č. as she had again prevented contact, on twenty-three occasions between 9 June and 22 September 2006. On 5 October 2006 the appointed expert in clinical psychology, (B.Z.), submitted his report. He found that the second applicant wished to have unrestricted contact with the first applicant and that any change in existing circumstances would complicate the situation. On 25 October 2006 the court again requested the Celje Social Work Centre and the District Public Prosecutor's Office to provide similar information to that which had been requested on 4 October 2005 and 2 February 2006 (see paragraphs 29 and 39 above). In addition, the court asked the Celje Social Work Centre to interview the second applicant with a view to ascertaining where would she want to live and whether she would want to have contact with the first applicant. On 8 November 2006 the District Public Prosecutor's Office informed the court that the request for a criminal investigation in connection with the alleged sexual abuse of the second applicant had been dismissed, but the District Public Prosecutor's Office had lodged an appeal. All the charges against O.Č. concerning neglect of the child were dropped. On 4 December 2006 the Celje Social Work Centre submitted its report concerning two interviews with the second applicant. During the first interview, the second applicant expressed the wish to live with her mother and to have regular contact with the first applicant, as she loved both her parents. The second interview was not successful, since the second applicant left the room in tears. The Celje Social Work Centre concluded that the second applicant was vulnerable and anxious; a psychological assessment would therefore be helpful to her. Further, the Celje Social Work Centre informed the court that the second applicant had been absent from school on several occasions. As regards O.Č.'s state of health, it observed that according to the O.Č.'s psychiatrist, her state of health had not worsened in the last year since she had been following the treatment. On 5 December 2006 the first applicant lodged preliminary written submissions. He requested the court to explain why an expert in psychology had been appointed although the court had decided to appoint a psychiatrist. On 6 December 2006 the court held a hearing. It decided to transfer the file again to the Psychiatric clinic, which submitted a report of an expert in psychology, in contradiction to the court's decision. On 12 December 2006 the court gave a decision ordering the Psychiatric clinic to appoint a psychiatrist. However, on 31 January 2007, the Psychiatric clinic informed the court that an expert in clinical psychology would be appointed. Further to the court's additional request, the Psychiatric clinic, on 22 February 2007, finally appointed a psychiatrist, Ž.T. On 28 February 2007 the court again requested the Celje Social Work Centre to enquire about the second applicant, in particular whether she was absent from school. In its response of 13 March 2007 the Celje Social Work Centre observed that the second applicant was no longer absent from school and that O.Č. was taking good care of her. In addition, it submitted that O.Č. had bought a new apartment and that, according to O.Č., the first applicant had not paid child maintenance for several years. In the meantime, on 2 March 2007 the first applicant lodged a supervisory appeal under the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) in order to accelerate the proceedings. On 6 March 2007 the expert Ž.T. submitted her report. She made a synthesis of O.Č.'s state of health: the latter had been suffering from a paranoid psychosis and who for that reason had been hospitalised five times between 1998 and 2007. The expert also observed that O.Č. had been refusing treatment for a long time and was not aware of her medical condition. In O.Č.'s interview the latter stated that she had not allowed the second applicant to have contact with the first applicant from 31 January 2007 on, as the second applicant was afraid of her father. The expert further examined the second applicant, who told her that she liked spending time with the first applicant. The first applicant did not attend the interview with the psychiatrist. After the examination, the expert concluded that O.Č. had been taking good care of the second applicant, who could be in danger only if she was exposed to the active phase of O.Č.'s illness. However, if O.Č. followed her treatment the prognosis would be good for her. As far as the contact between the applicants is concerned she established that they should continue to have contact as they have up to now, or even spend more time together if the second applicant so wished. However, in the expert's view, the first applicant should be more creative and should share more activities with the second applicant. On 26 March 2007 the court again requested the Celje Social Work Centre and O.Č.'s psychiatrist to provide similar information to that which had been requested on 2 February 2006 (see paragraph 39 above). In addition, the court asked the Celje Social Work Centre to make a recommendation as to which of the parents should be awarded custody and to establish whether the contact the non-custodial parent, whichever that may be, would have with the second applicant would be in the child's best interests. The Celje Social Work Centre's report of 23 May 2007 did not contain an answer as to which of the parents should be awarded custody. It stated that the opinion in this connection should have relied on the report concerning O.Č.'s state of health. On 30 March 2007 the court was informed that criminal proceedings had been brought against the first applicant for endangering public safety and against O.Č. for fraud. On 13 April 2007 the president of the court, relying on section 5, subsection 1, and section 6, subsection 4, of the 2006 Act, responded to the supervisory appeal (see paragraph 56 above), stating that a hearing would be held within four months of receipt of the supervisory appeal, namely on 7 May 2007. In the meantime, on 13 April 2007, the court called off that hearing since O.Č.'s attorney was not able to keep his appointment. Also on 13 April 2007 the first applicant lodged preliminary written submissions. He requested an interim measure granting him custody to be issued immediately, while the contact between O.Č. and the second applicant be ceased or carried out under supervision. On 16 April 2007 the court received a report from O.Č.'s psychiatrist, which revealed that O.Č. had been seeing her regularly and that the medical treatment she had been following had no impact on her cognitive or mental capacities and had therefore not impeded her relations with the second applicant. On 18 April 2007 the court was informed that the first applicant had been told by the Celje Social Work Centre that it could not ensure that contact would take place in the way the court had determined it should. Subsequently, O.Č. lodged a written preliminary submission, emphasising, inter alia, that she had not been preventing contact; but that it was rather the second applicant who had refused to have contact with the first applicant. On 26 April 2007 the O.Č.'s psychiatrist informed the court that O.Č.'s mental illness seemed to be developing further and that she had been again refusing treatment. In the meantime, the court scheduled an informal interview with the second applicant for 7 May 2007. However, the interview was adjourned sine die at the first applicant's request as the second applicant was in a state of shock owing to her mother's placement in a mental institution two days before the interview was due to take place. Subsequently, the court requested the mental institution where O.Č. had been placed to inform it as to how long the treatment would take and about her state of health when she was admitted to the hospital. The hospital was also requested to give an opinion as to whether O.Č. was capable of caring for the second applicant, given her state of health before she was admitted to hospital. The hearing scheduled for 25 May 2007 was adjourned because the first applicant fell However, later on the same day and outside the hearing, the court interviewed the second applicant. The latter told the court that she did not like to spend time with the first applicant because there were no toys at his place, and that she did not want to stay with him while O.Č. was hospitalised. She preferred staying with her grandmother or her older brother. She also said that after the first applicant took her to the hairdresser to have her hair cut, she had refused to see him on two occasions. She was however willing to see him in future in order to ensure contact. Further to the interview, the court requested the Celje Social Work Centre to find a third person willing to step in as a foster parent as well as to prepare the second applicant psychologically for this possibility. In the meantime, on 21 May 2007, O.Č. was released from the hospital. On 12 June 2007 the court requested the expert, Ž.T., to draw up an additional report. The expert was asked to interview the first applicant and to determine whether it would be in the child's best interest to award him custody. The court also requested the expert to invite in the examination process an expert in psychology who should examine and interview the second applicant. In its request the court emphasised that the matter was very urgent. On 16 August 2007 the expert Ž.T. submitted an additional report by which she informed the court that the first applicant had refused to appear at the interview. She also observed that the second applicant was emotionally attached to O.Č. Taking into consideration O.Č.'s state of health and the second applicant's attachment to her mother, the expert did not advocate placing the second applicant in foster care. She recommended that the second applicant stay with O.Č. and be cared for by the first applicant during acute episodes of O.Č.'s illness. The hearing scheduled for 29 August 2007 was called off due to the fact that the expert in psychology had not yet been able to examine the second applicant. On 28 August 2007 the Celje Social Work Centre submitted a supplementary report to the one submitted on 23 May 2007 (see paragraph 58 above) and informed the court that O.Č. had in the meantime been examined by her psychiatrist, who had observed a deterioration in O.Č.'s state of mental health but however had the impression that O.Č. was willing to follow the treatment. The Celje Social Work Centre also informed the court that the first applicant had failed to appear at the interview scheduled to determine whether he could take care of the second applicant or whether the second applicant should rather be put in foster care, to which O.Č. was not opposed. Having regard to the fact that the first applicant refused to appear at the interview, that he had been preventing the second applicant from being included in the psychological assessment, and that O.Č.'s health was not stable, the Celje Social Work Centre concluded that the second applicant should preferably be put in foster care. In September 2007, an expert in psychology, T.P., who had been invited to join the examination process (see paragraph 69 above), experienced difficulties in interviewing the second applicant, as O.Č. had twice failed to keep appointments. On 19 September 2007 the first applicant lodged preliminary written submissions contesting the expert reports from 6 March 2007 and 16 August 2007 (see paragraphs 57 and 70 above) and requested that an interim measure be ordered granting him custody of the second applicant. The hearing scheduled for 21 September 2007 was called off because the first applicant fell The court scheduled a new hearing for 22 November 2007. On 11 October 2007 O.Č. appeared at the court, stating that she had wanted to take the second applicant to the assessment but the first applicant had prevented her from doing so and had taken the second applicant to school. On 7 November 2007 the Celje Social Work Centre informed the court that the person who had been summoned to the hearing scheduled for 22 November 2007 could not attend it due to an accident. The court immediately requested the Celje Social Work Centre to inform it who was replacing her in the case. On 12 November 2007 the court again requested O.Č.'s psychiatrist to inform it whether she had been following the treatment and about her current state of health. The court also requested information concerning the criminal complaint lodged against the first applicant by O.Č. for having the second applicant's hair cut. On 16 November 2007 the District Public Prosecutor's Office informed the court that the charges against the applicant had been dropped, as the request for prosecution made by O.Č. had been lodged out of time. O.Č.'s psychiatrist responded on 20 November 2007. In her letter she observed that O.Č.'s state of health had worsened since she had moved to a new apartment, where she constantly felt threatened. The second applicant was again invited to attend an interview with the expert T.P., scheduled for 12 November 2007. However, the second applicant again failed to appear. Subsequently, the expert suggested interviewing the first applicant to establish whether he understood the role of a parent and the needs of a growing child, as well as to make a personal assessment. The expert also informed the court that he would not be able to attend the hearing scheduled for 22 November 2007. On 22 November 2007 the court held a hearing at which the parties concluded a temporary settlement of the case. The first applicant was granted provisional custody of the second applicant pending the outcome of the proceedings, while O.Č. was granted regular weekly contact. On 14 December 2007 the expert Ž.T., who had interviewed the first applicant in the meantime, submitted an additional psychiatric report, observing that it would be in the second applicant's best interest to have contact with both parents, as O.Č. did not seem to be reliable enough due to her illness, while the first applicant's personal characteristics made him unsuitable to raise a ten-year-old traumatised child. Further to the interview with the second applicant on 21 December 2007, the expert T.P. submitted a report. He observed that the second applicant's best interests would be ensured by placing her in foster care, while retaining for both parents the opportunity to have contact with her. On 6 February 2008 the court appointed a special representative to the second applicant (for the appointment of a special representative, see “Relevant domestic law” below, Civil Procedure Act, section 409) – hereinafter “the special representative”. On 21 February 2008 the court requested information on the second applicant's school performance and on O.Č.'s health. The second applicant's school submitted its reply on 14 March 2008. It informed the court that the second applicant's school performance had improved and that the first applicant had been helping the second applicant a lot. O.Č.'s psychiatrist responded on 21 March 2008, informing the court that O.Č. had been seeing her regularly but refusing treatment. On 8 April 2008, further to the request of the special representative, the court ordered the re-examination of the second applicant by the expert in psychology. However, on 30 April 2008, the expert informed the court that both applicants had failed to appear. He explained that, having regard to the considerable documentation in the case, he could reach conclusions even without interviewing the second applicant. Nevertheless, he expressed willingness to interview the second applicant if the court deemed it necessary. Further to this information, the court did not insist on interviewing the second applicant. On 13 May 2008 the expert T.P. submitted an additional report. He concluded that the first applicant seemed to be a more suitable guardian of the second applicant than O.Č. or a foster family as the second applicant seemed to be happy, tidy and had good grades since she had been living with the first applicant. However, he refused to speculate as to what extent the first applicant would be able to offer the second applicant a warm and loving environment. On the contrary, on 28 May 2008, the Celje Social Work Centre submitted its report in which it came to the conclusion that neither of the parents was suitable to be granted custody and as a result the second applicant should be placed temporarily in foster care. In this connection, they also indicated a suitable person. On 29 May 2008 the court held a hearing. The first applicant and O.Č. came to an agreement to change part of the temporary court settlement concluded at the hearing of 22 November 2007 (see paragraph 80 above), as far as the contact between the second applicant and O.Č. was concerned. On 30 May 2008 the court again ordered an additional expert opinion to be drawn up by the expert T.P. He was requested to assess the emotional state of the second applicant as well as the relationship between the applicants and between the second applicant and O.Č. On 2 September 2008 O.Č.'s psychiatrist informed the court that she had had no contact with O.Č. for several months. On 3 September 2008 the second applicant's school informed the court that the second applicant's school performance had improved and that she had told her teacher that she wanted to live with the first applicant. Also on 3 September 2008 the court was informed about O.Č.'s hospitalisation in the psychiatric stabilisation unit. It appeared that she had been taken to the hospital on 18 August 2008. On 4 September 2008 the court held a hearing. The first applicant and O.Č. concluded an enforceable court settlement by which the first applicant was awarded full custody of the second applicant and O.Č. was ordered to pay child maintenance. She was also granted contact every weekend, on Saturdays from 9 a.to 4 p.and on Sundays from 10 a.to 2 p.On 23 December 2008 the applicants lodged a claim for just satisfaction in respect of unreasonable length of proceedings with the State Attorney's Office. Their claim contained explicit reference to section 26 of the Constitution (see “Relevant domestic law” below). On 6 February 2009 the State Attorney's Office responded to the applicants, observing that an identical claim for just satisfaction had already been lodged with the Court. They further informed the applicants that new domestic legislation had been enacted (“the 2006 Act”) in order to remedy any alleged unreasonable length of proceedings. As a result, the applicants were requested to confirm whether they wish the State Attorney's Office to examine the claim under the 2006 Act. On 18 February 2009 the applicants responded that the just satisfaction claim lodged with the State Attorney's Office was only a subsidiary one and that they wished to maintain their just satisfaction claim made before the Court. Consequently, the State Attorney's Office dismissed their claim. The part of the claim concerning the second applicant was dismissed because the second applicant was not party to the proceedings in question and could therefore not be considered a victim of the violation in respect of the undue length of the proceedings. The State Attorney's Office further dismissed the claim as a whole due to the fact that the claim was made under section 26 of the Constitution, which was from 1 January 2007, when the 2006 Act was enacted, no longer a legal basis for a claim for just satisfaction. | [
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74,010 | The applicant, a Spanish national, was born in 1968 in <COUNTRY>. He was represented by Mr B. Muralt. The Government were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant lived in <COUNTRY> and held a permanent residence permit ( Niederlassungsbewilligung ) since birth. In 1991 his son (Y), who still lives in <COUNTRY>, was born (out of wedlock). In 2003 the applicant married X (born in 1976), a Belarusian citizen, who was subsequently granted a residence permit as part of family reunification. The applicant’s mother, who also lived in <COUNTRY>, returned to <COUNTRY> in 2001. One of the applicant’s brothers and his sister are still living in <COUNTRY>. Another brother lives in <COUNTRY>. On 11 May 2009 the applicant was convicted by the competent District Court of multiple counts of sexual activity with a minor ( mehrfache sexuelle Handlungen mit einem Kind ), multiple counts of attempted sexual activity with a minor ( mehrfacher Versuch der sexuellen Handlungen mit einem Kind ), multiple counts of sexual assault ( mehfache sexuelle Nötigung ), rape ( Vergewaltigung ) and multiple counts of pornography ( mehrfache Pornographie ) committed between March and December 2006. The court considered the applicant to have a high and very serious level of culpability. The victim was the then 13 ‑ year-old daughter of his extramarital partner and the offences had been committed over a relatively long period of ten months. The District Court was of the opinion that the applicant had disregarded the victim’s right to sexual self-determination without hesitation and had committed acts against the young daughter of his “sexual partner at the time” with complete disregard for the child’s development. By taking advantage of his position of authority, he had abused her trust in the most shameful way to satisfy his inferior sexual inclinations. In doing so, he had not shied away from using psychological and physical violence and threats when pursuing his inappropriate goals. As a result of these terrible experiences, the victim developed serious psychological problems, from which she still suffers to date. The applicant was sentenced to thirty months’ imprisonment. He served six months under electronic surveillance (house arrest) and the remaining two years were suspended on probation because prior to his conviction the applicant had a clean criminal record. Nine months after the end of his probation, the applicant installed three miniature cameras in the apartment of his former extramarital partner, the victim’s mother. Criminal proceedings were opened against him in 2012 for coercion and breach of secrecy or privacy through the use of recording devices. The complaint was withdrawn and a settlement was reached, the applicant admitting to the offences. As a result, no conviction was entered. By a decision of 20 January 2014, the competent Migration Office withdrew the applicant’s permanent residence permit and ordered him to leave <COUNTRY> by 30 April 2014. It based the withdrawal of the permit on Article 63 § 2 and Article 62 (b) of the Federal Act on Foreign Nationals of 16 December 2005 (“FAFN”; see paragraphs 29-30 below). With regard to the public interest, the Migration Office considered that the applicant had disregarded fundamental norms and massively violated valuable legal interests. It also observed that there were forty-five open loss certificates ( offene Verlustscheine ) against the applicant amounting to a total of approximatively 75,000 Swiss francs (CHF). It also held that the sexual assaults had represented a serious interference in the sexual development of the then 13-year-old girl. There were therefore considerable security and public safety interests in revoking the applicant’s permanent residence permit. Furthermore, the Migration Office pointed to the fact that the applicant had reoffended only nine months after the end of his probation. Even though he had admitted to having installed cameras in his ex ‑ girlfriend’s apartment, no conviction had been entered because the complaint had been withdrawn and settlement had been reached. Since particularly valuable legal interests were at stake, the risk of further delinquency was all the more unacceptable. As to proportionality, the Migration Office held that the revocation of the permanent residence permit would certainly hit the applicant hard, as he had lived in <COUNTRY> since birth. However, he still maintained contact with his homeland and spoke Spanish. The professional experience he had gained in <COUNTRY> would be an advantage for him in <COUNTRY>. According to the Migration Office, the relationship with his wife could not stop him from committing criminal offences. His wife was free to follow him to <COUNTRY>. However, if she decided to stay in <COUNTRY>, she could maintain the relationship with her husband in the form of visits, e-mails, Skype, telephone calls and so forth. In addition, the Migration Office raised the question of how stable the relationship with his wife was, given that he had had an intimate relationship with the victim’s mother for several years. In conclusion, the Migration Office considered that the general interest in ensuring public safety outweighed the applicant’s interest in being able to continue his private and family life with his wife in <COUNTRY>. The applicant filed an appeal with the competent Administrative Court in which he argued that he had not reoffended since the first judgment and that there were no indications that he would do so. In addition, the applicant argued that no new debt recovery operations had been recorded since 2000 and that he was fully integrated in <COUNTRY>. By a judgment of 26 June 2014, the Administrative Court dismissed this appeal, ordering the applicant to leave <COUNTRY> by 30 September 2014. It based its decision on the same legal and public-interest grounds as those referred to by the Migration Office. As to the proportionality of the measure, the Administrative Court held with regard to the right to respect for his private life that the permanent residence permit of a foreigner who had resided in <COUNTRY> for a long time could only be revoked with particular restraint. That court also observed that no new debt recovery operations had been recorded since 2000, but that the applicant was far from being able to reimburse all his debts. It further stated that even though the applicant had spent his entire life in <COUNTRY>, part of his family lived there and he had no close relationship with <COUNTRY>, he could still be expected to leave <COUNTRY> and move to <COUNTRY>, as it offered comparable sociocultural conditions and had a similar economic system. His mother and eldest brother lived there. Due to his good professional education and his knowledge of Spanish, he would be able to find a comparable job there and create an environment for new relationships. There appeared, therefore, to be no overriding private interest in him staying in <COUNTRY>. The Administrative Court assessed the proportionality of the measure with regard to the right to respect for his family life in a similar way. In the court’s view, the applicant’s 23-year-old son did not fall within the scope of Article 8 of the Convention because he was an adult. Even though he had always sought to be close to the applicant, he was now leading an independent life. He lived with his girlfriend during the week and had been working since 2013. Special elements of dependency other than normal emotional ties between the applicant and his son had not been claimed and were not evident from the files. <COUNTRY> was relatively easy to reach from <COUNTRY>, which was why the relationship between the applicant and his son could be maintained even from a distance through occasional visits and various means of communication. This also applied to the applicant’s brother and sister living in <COUNTRY>. As regards the applicant’s wife, the Administrative Court held that she would certainly be hit hard if she had to follow the applicant to <COUNTRY>. The applicant was however himself to blame for the consequences that his expulsion would have for his wife. She could still choose not to follow him to <COUNTRY>. If she decided to stay in <COUNTRY>, she could maintain her relationship with the applicant in the form of visits, e-mail, Skype, telephone calls and so forth. The applicant appealed to the Federal Supreme Court of <COUNTRY>, submitting, inter alia , that the revocation of the permanent residence permit was disproportionate. The Federal Supreme Court dismissed the applicant’s appeal with a judgment of 5 January 2015, stating that the applicant’s level of culpability (violation of the sexual integrity of a child) was extremely serious. He had committed a serious breach of public order and security through the offences committed. A risk of recidivism could not be ruled out, especially considering the later installation of a camera in the apartment of the victim’s mother and her surveillance by a private detective in 2012, shortly after the end of his probation. The court stated that the applicant had thus shown that he was unwilling or unable to comply with the Swiss legal system in the future and that he therefore posed a threat to public safety. The Federal Supreme Court also reiterated that there were forty-five open loss certificates against the applicant amounting to a total of approximatively 75,000 CHF, which also had to be taken into account in the assessment of the applicant’s case. The Federal Supreme Court further held that the lower court had correctly balanced the interests involved. The public interest was not outweighed by the private interests of the applicant in remaining in <COUNTRY>. Contrary to the applicant’s opinion, the difficult economic situation in <COUNTRY> did not constitute such an overriding private interest or justify his stay in <COUNTRY>. The Federal Supreme Court held that the right to respect for one’s private and family life was not absolute. Even though in the present case his permanent residence permit could only be revoked with particular restraint and the court had not failed to recognise the hardship that this would entail for the applicant, the offences committed, the applicant’s level of culpability and the behaviour he had shown after committing the offences were so serious that they outweighed the private interest of the latter in remaining in <COUNTRY>. The applicant left <COUNTRY> on 28 February 2015 and registered in Gandia (<COUNTRY>) on 9 March 2015. According to information provided to the Court in April 2020, he currently lives in <COUNTRY> and is unemployed. His wife lives in <COUNTRY>. RELEVANT LEGAL FRAMEWORK The relevant provisions of the Federal Act on Foreign Nationals of 16 December 2005 ( Bundesgesetz über die Ausländerinnen und Ausländer ; SR 142.20 systematic report - “the FAFN”), as in force at the material time, read as follows: Article 62 “The competent authority may revoke authorisations, with the exception of a permanent residence permit, and other orders under this Act if the foreign national: (a) or their representative in the permit procedure provides false information or conceals material facts; (b) has been given a long custodial sentence or made subject to a criminal measure within the meaning of Articles 59 to 61 or 64 of the Criminal Code.” Article 63 “The permanent residence permit can only be revoked if: (a) the conditions laid down in Article 62 § 1 (a) or (b) are fulfilled; (b) the foreigner has seriously violated or endangered public safety and order in <COUNTRY> or abroad or endangered internal or external security; ... The permanent residence permit of foreign nationals who have resided in <COUNTRY> continuously and lawfully for more than [fifteen] years may only be revoked on the grounds of paragraph 1 (b) and Article 62 § 1 (b).” Article 5 of Annex I to the Agreement of 21 June 1999 between the Swiss Confederation and the European Community and its member States on the Free Movement of Persons ( Abkommens zwischen der Schweizerischen Eidgenossenschaft einerseits und der Europäischen Gemeinschaft und ihren Mitgliedstaaten andererseits über die Freizügigkeit ; SR 142.112.681 – “the AFMP”) reads as follows: Public Order: “The rights granted under the provisions of this Agreement may be restricted only by means of measures which are justified on grounds of public order, public security or public health. ...” Other relevant Materials Recommendation Rec(2000)15 of the Committee of Ministers concerning the security of residence of long-term migrants, adopted on 13 September 2000, states inter alia : “As regards the protection against expulsion (a) Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria: the personal behaviour of the immigrant; the duration of residence; the consequences for both the immigrant and his or her family; existing links of the immigrant and his or her family to his or her country of origin. (b) In application of the principle of proportionality as stated in paragraph 4 (a), member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled: - after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; - after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension. After twenty years of residence, a long-term immigrant should no longer be expellable. (c) Long-term immigrants born on the territory of the member State or admitted to the member State before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen. Long-term immigrants who are minors may in principle not be expelled. (d) In any case, each member State should have the option to provide in its internal law hat a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.” R ecommendation Rec(2002)4 of the Committee of Ministers on the legal status of persons admitted for family reunification, adopted on 26 March 2002, reads as follows in the relevant parts: Effective protection against expulsion of family members “When considering the withdrawal, refusal to renew a residence permit or the expulsion of a family member, member states should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and wellbeing of children. ...” Recommendation 1504 (2001) of the Parliamentary Assembly on the non-expulsion of long-term immigrants, adopted on 14 March 2001, reads as follows, inter alia : “Taking account of Rec(2000)15 of the Committee of Ministers concerning the security of residence of long-term migrants, the Assembly recommends that the Committee of Ministers: 2 invite the governments of member states: ... (c) to undertake to ensure that the ordinary-law procedures and penalties applied to nationals are also applicable to long-term immigrants who have committed the same offence; ... (g) to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty; (h) to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances; ...” | Spain, Switzerland | [
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41,695 | 2 | 30911/06) and Mrs Roxana Ţiclete (application no. 40967/06) were born in 1957 and 1967 respectively and live in Cluj-Napoca, <COUNTRY>. The facts of the cases, as submitted by the parties, may be summarised as follows. In December 1989 Mr Gheorghe Pastor and Mrs Roxana Ticlete's husband, among others, took part in the anti-communist demonstration in Cluj-Napoca. Following the intervention of the army to crush the demonstration, Mr Pastor suffered a bullet wound, which required months of medical treatment and which left him with a long-term physical disability. Mrs Ticlete's husband was killed. In total twenty-six people were killed during the demonstration and fifty-two others received bullet wounds. In January 1990 the Cluj-Napoca Military Prosecutor's Office opened a criminal investigation in respect of several civilians and military officers as a result of the violent crushing of the anti-communist demonstration. The investigation was focused mainly on the role played by some of the prominent members of the former communist party and by military officers in the crushing of the demonstration. Consequently, several ballistic and forensic expert reports were made and the military prosecutors heard the victims and a number of witnesses. On 15 October 1992 the Cluj-Napoca Military Prosecutor's Office ordered the discontinuance of the criminal investigation in respect of the individuals suspected of organising and participating in the crushing of the anti-communist demonstration, on the ground that no unlawful acts had been committed. At the same time, however, the Cluj-Napoca Military Prosecutor's Office ordered that the criminal investigation continue, so that the identity of alleged “unidentified shooters” could be discovered. The applicants contested the Cluj-Napoca Military Prosecutor's Office order. On 22 September 1997 the Court of Cassation Military Prosecutor's Office (“the Military Prosecutor's Office”) quashed the order of 15 October 1992 and ordered the reopening of the criminal investigation in respect of a member of the former communist party and the military officers who had organised and/or taken part in the crushing of the demonstration. The Court of Cassation Military Prosecutor's Office was given jurisdiction to investigate the case, and the prosecutors heard once again some of the witnesses and the parties to the proceedings. On an unspecified date in 1998 the military personnel involved in the crushing of the demonstration and subject to investigation were assigned to the military reserves. On 29 May 1998 the Military Prosecutor's Office issued an indictment and charged six individuals, in particular the former secretary of the local branch of the communist party and six military officers, with murder and incitement to murder. At the same time, the Romanian Ministry of Defence was summoned to take part in the proceedings as a civilly liable third party. On 8 June 1998 the file was lodged with the Registry of the Court of Cassation. At the first hearing of 2 November 1998 the Court of Cassation heard some of the civil parties and ordered the adjournment of the hearing on the ground that the accused lacked mandatory legal representation. On 16 and 30 November the Court of Cassation heard other civil parties and decided to adjourn the hearing on account of procedural errors concerning the summoning of some of the other parties. On 25 January 1999 the Court of Cassation allowed the parties to submit oral observations in respect of an objection raised by the lawyers representing the accused concerning the lawfulness of the indictment. On the same date, the Court of Cassation decided that the file had not been lawfully referred to it and ordered the pre-trial investigation file to be returned to the Military Prosecutor's Office. On 28 June 1999 the Military Prosecutor's Office referred the file to the Court of Cassation for the second time. On the same date it dismissed an application from the lawyers representing the accused for the withdrawal of the trial judges, and decided to adjourn the hearing. On 20 September 1999 the Court of Cassation decided to suspend the hearing on the ground that the prosecutor was absent. On 18 October 1999 the Court of Cassation heard two of the accused. On the same date it ordered a forensic expert report and adjourned the hearing in respect of the rest of the accused. On 15 November 1999 three other accused were heard by the court. On 10 January, 14 February, 13 March, 17 April, 15 May and 19 June 2000 the civil parties were heard by the Court. Over the course of fifteen more hearings, held between 18 September 2000 and 25 March 2002, the Court of Cassation heard approximately sixty witnesses at a rate of between one witness per hearing (30 October and 20 November 2000, 7 May and 4 June 2001 and 25 February 2002) and nine witnesses per hearing (18 September 2000, 15 January and 12 February 2001, 14 February 2002). The court also fined on several occasions absent lawyers and witnesses. On 25 March 2002 the Court of Cassation acknowledged that a large number of witnesses from Cluj-Napoca had not attended the hearings held in Bucharest, in spite of the fact that they had been fined. Consequently, the judges of the Court of Cassation decided to travel to Cluj-Napoca in order to hear 254 witnesses chosen on the basis of the parties' submissions. In Cluj-Napoca, between 15 and 26 April 2002, the judges of the Court of Cassation heard 110 witnesses. Following the return of the judges to Bucharest, on 3 June, 30 September, 28 October and 9 December 2002, the Court of Cassation continued to hear other witnesses and to accept submissions from the parties' lawyers. On 20 January 2003 the Court of Cassation raised of its own motion the question of the judicial requalification of the acts committed by the accused to involuntary killing and negligent physical injury and allowed the parties to submit oral observations. In order to allow the lawyers representing the parties also to submit written observations, the court adjourned delivery of the judgment several times, to 3 and then to 17 February, 3 and 17 March and 2 April 2003. On 9 April 2003 the Court of Cassation, sitting as a court of first instance, acquitted two of the accused and convicted a third of murder and attempted murder and sentenced him to five years' imprisonment. Three other accused were convicted of involuntary killing and causing injury by negligence, however the court found that the crimes they were accused of were time-barred. The court also ordered jointly the convicted individuals and the Ministry of Defence to pay the applicants between 150,000,000 and 200,000,000 lei (ROL) (between 4,105 euros (EUR) and EUR 5,474) in compensation for pecuniary and non-pecuniary damages. The parties appealed the judgment. On 25 October 2004 the Court of Cassation, sitting as a second ‑ instance court, allowed the parties' appeal and quashed the judgment of 9 April 2003, on the ground that procedural errors had been made in examining the question of the judicial requalification of the acts committed by the accused, and errors had been committed in determining the level of the pecuniary and non-pecuniary damages awarded to the applicants. On 28 March 2005, during the second procedural cycle, the Court of Cassation, sitting as a first-instance court, proceeded to examine once again the judicial requalification of the acts committed by the accused, and allowed the parties to submit oral observations. On 23 May 2005 the Court of Cassation acquitted one of the accused and convicted the five others of murder, incitement to murder and attempted murder, and sentenced them to between eight and fifteen years' imprisonment. It also ordered those convicted and the Romanian Ministry of Defence jointly to pay Mr Gheorghe Pastor ROL 650,000,000 (EUR 18,571) and Mrs Roxana Ţiclete ROL 1,250,000,000 (EUR 35,714) in civil damages. The applicants appealed against the decision on the ground that the amount of the civil damages awarded did not entirely cover the pecuniary and non-pecuniary damage they had sustained. By a final decision of 20 March 2006 the Court of Cassation, following a global analysis of the appeal points submitted by the applicants, rejected the applicants' appeal, on the ground that the amount of the civil damages had been awarded correctly on the basis of the adduced evidence. On 26 April and 10 May 2006 the Ministry of Defence paid the applicants the civil damages awarded by the final judgment of 20 March 2006. | Romania | [
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36,249 | 13, 6 | On 14 March 1988 the applicant brought a civil action against his then employer in the Zagreb Basic Court of Associated Labour ( Osnovni sud udruženog rada u Zagrebu ), seeking damages in connection with an employment-related accident. The case was later on transferred to the Zagreb Municipal Court ( Općinski sud u Zagrebu) . On 29 May 2006 the applicant lodged a request for the protection of the right to a hearing within a reasonable time with the Zagreb County Court ( Županijski sud u Zagrebu ) complaining about the length of the above civil proceedings. On 14 March 2007 the Zagreb Municipal Court orally pronounced its ruling as to the applicant’s civil claim and awarded him compensation for the employment-related accident. At this moment in time, however, the applicant did not receive a written copy of the judgment ( see paragraph 12 below). On 25 April 2007 the Zagreb County Court found a violation of the applicant’s right to a hearing within a reasonable time. It awarded him compensation in the amount of 6,500 Croatian kuna (HRK), and ordered the Zagreb Municipal Court to decide the case as quickly as possible but in any case within six months. On 21 May 2007 the applicant appealed against the Zagreb County Court decision, contesting the amount of compensation awarded, the six-month time-limit and the dismissal of his claim for the costs of proceedings. On 4 October 2007 the applicant’s appeal was forwarded to the Supreme Court of the Republic of <COUNTRY> (Vrhovni sud Republike Hrvatske) . On 11 January 2008 the applicant lodged a constitutional complaint as he did not receive the Municipal Court decision within six months as ordered by the County Court. In a letter of 23 January 2008 the Constitutional Court notified the applicant that it was not competent to supervise the implementation of the higher court’s decisions ordering lower courts to decide a case within a certain time-limit. The written copy of the Zagreb Municipal Court’s judgment of 14 March 2007 (see paragraph 7 above) was served on the applicant’s counsel on 22 February 2008. In the meantime, on 14 January 2008 the defendant had lodged an appeal against the first instance judgment with the Zagreb County Court. On 30 June 2008 the Supreme Court accepted the applicant’s appeal of 21 May 2007 against the County Court’s decision of 25 April 2007, concerning the length of proceedings and awarded him an additional amount of HRK 6,500 in compensation. On 13 January 2009 the County Court partly upheld the first instance judgment of 14 March 2007. | Croatia, Serbia | [
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Subsets and Splits