Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1952 and lives in the village of Baybuzy, Cherkassy region, Ukraine.

On 26 September 2003 at around 8 p.m. the applicant’s wife, while riding a bicycle, was hit by a car and died on the spot.

On the same day police examined the accident spot in the presence of two witnesses, V. and M. (both inhabitants of Baybuzy who arrived at the spot after the accident) and the accident sketch map was drawn. The driver of the car, P., was questioned. He testified that he had been temporarily blinded by the long-distance headlights of an approaching car. After that he saw a bicycle rider 7-8 meters in front of his car. He did not brake and his car hit the bicycle. Similar testimonies were given by the car passenger, S. The driver also underwent a test for the blood alcohol and drugs level.

On 27 September 2003 a forensic medical expert concluded that the applicant’s wife’s death had been caused by a basal skull fracture.

On 29 September 2003 criminal proceedings into the accident were instituted by the Cherkassy District Police Office (Черкаський районний відділ Управління Міністерства внутрішніх справ України в Черкаській області) for an alleged breach of traffic rules which caused a person’s death (Article 286 paragraph 2 of the Criminal Code). On the same day an investigation officer requested the head of the Cherkassy District Police Office to order a search for the accident witnesses, if any.

On the next day the applicant was recognised as a victim in the above criminal proceedings.

On 7 October 2003 a police officer informed the head of the Cherkassy District Police Office that it was impossible to identify witnesses who could have seen the accident.

On 17 October 2003 a reconstruction of events was carried out and a decision to perform an auto-technical forensic examination was adopted. The expert was requested to determine interposition of the car and the bicycle at the moment of collision, whether the driver had had a technical possibility to avoid the collision and whether the driver and the bicycle rider had breached the traffic rules.

On 27 October 2003 the applicant lodged a civil claim within the criminal proceedings.

On 18 November 2003 an expert concluded that the applicant’s wife had breached the traffic rules when riding a bicycle since there had been no lights and light reflectors on the bicycle and that the car driver had had no technical possibility of avoiding the accident.

On 26 November 2003 the proceedings were terminated for absence of evidence of a crime.

On 6 February 2004 the Cherkassy District Prosecutor’s Office (прокуратура Черкаського району Черкаської області) quashed this decision and remitted the case for additional investigation. A prosecutor instructed the head of the police investigation department in charge of the investigation to perform numerous additional investigation actions. It was noted, inter alia, that the questioning of P. and S. had been superficial, a number of details had not been clarified, the witnesses of the accident had not been properly sought, and the reconstruction of events had been conducted improperly. There were significant corrections on the accident sketch map and there was contradictory evidence in the case-file materials. It was also noted that “the expert conclusion was based actually on the testimonies of P. and S.” Consequently, another auto-technical forensic examination should be performed and an expert should be provided with objectively received data. It was also noted that an investigation officer should verify the facts and circumstances indicated by the applicant in his complaints.

By a letter of 22 March 2004 the Cherkassy District Prosecutor’s Office informed the applicant, in reply to his complaint to the General Prosecutor’s Office, that the investigation had been indeed protracted and there were disciplinary proceedings against two investigation police officers pending. The district prosecutor ordered to accelerate the proceedings.

In June 2004 P. and S. were again questioned and in July 2004 several other witnesses were questioned (M., V. and the persons who stopped at the spot after the accident). On 29 September 2004 the reconstruction of events was conducted. It was established that after passing an on-coming car the bicycle had become visible to the car driver and at that moment the distance to the bicycle had been 20 metres.

On 5 May 2005 a decision was taken to conduct an auto-technical forensic examination. The expert was requested to give an opinion, inter alia, on how the driver should have acted in the circumstances and whether he had had a possibility of avoiding the collision. On 19 July 2005 the expert concluded that P. had had no technical possibility of avoiding the collision. It was not safe to overtake the bicycle rider “since the collision had happened when P. had been passing an on-coming car”. An expert indicated that, according to the circumstances of the accident described by an investigation officer, there had been no breach of the traffic rules by the car driver which could have provoked the accident. The expert also separately noted that the reconstruction of events of 29 September 2004 had been performed with a breach of procedure.

On 1 November 2005 the proceedings were terminated for the absence of evidence of a crime.

By letter of 3 November 2005 the Cherkassy Regional Department of the Ministry of Internal Affairs of Ukraine (Управління Міністерства внутрішніх справ України в Черкаській області) informed the applicant, inter alia, that the investigation officer, K., in charge of the case, had been disciplinarily sanctioned for protracting the proceedings.

On 23 November 2005 the decision of 1 November 2005 was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that more witnesses should be questioned, a police officer should be questioned about the corrections on the accident sketch map, a reconstruction of events should be conducted, if necessary, but with the assistance of a traffic specialist.

On 26 December 2005 the proceedings were stayed since “it was impossible to establish the guilt of the person who caused the collision with the applicant’s wife”. By letter of 7 March 2007 the Cherkassy Regional Prosecutor’s Office informed the applicant, however, that a forensic automobile technical examination was pending in his case.

In August 2008 the case was transferred to another investigation officer. On 9 August 2008 a decision similar to the one of 26 December 2005 was adopted.

On 24 June 2009 the decision of 9 August 2008 was quashed by the Cherkassy District Prosecutor’s Office. It was noted, inter alia, that a number of witnesses had to be questioned, a reconstruction of events should be conducted and the police officers should be questioned about corrections on the accident sketch map.

On the next day, however, an investigation officer of the Cherkassy Regional Police Department again terminated the proceedings for the absence of evidence of a crime.

On 15 June 2011 this decision was quashed by the Cherkassy District Prosecutor’s Office and the case was remitted for additional investigation. It was noted that the instructions of the prosecutor’s office issued on 23 November 2005 and 24 June 2009 had to be complied with.

On 8 August 2011 an auto-technical forensic examination was ordered.

On 25 June 2012 an expert concluded that it was impossible to answer the questions about a possibility for P. of having avoided a collision and whether P. had breached the traffic rules that had resulted in a traffic accident. The expert noted that the reconstruction of events of 29 September 2004 had been conducted with a breach of procedure therefore the obtained data could not be used for an expert conclusion. The expert, however, noted that the applicant’s wife had breached the traffic rules since there had been no lights on her bicycle and that had caused the collision.

On 29 June 2012 an investigation officer, referring to the above expert conclusion, terminated the proceedings in the case.

On 10 August and 22 September 2004 the applicant brought two claims for damages against P. On 14 September and 28 October 2004 the Cherkassy District Court dismissed the applicant’s claims for procedural shortcomings. The applicant neither appealed against these decisions nor submitted new claims in compliance with procedural requirements.

On 26 March 2006 the applicant took part in the local elections as a candidate for the position of the head of the village territorial community and came second with three votes less. On 3 April 2006 the Cherkasskyy District Court invalidated the results of the elections. On 6 April 2006 the Cherkassy Regional Court of Appeal quashed the decision of 3 April 2006 and rejected the applicant’s complaint that some of the voters had been prevented from voting. On 25 May 2006 the Higher Administrative Court of Ukraine rejected the applicant’s request for leave to appeal in cassation as the decision of 6 April 2006 was not subject to appeal.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-2 - Information on reasons for arrest;Article 5-4 - Review by a court;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

On 25 April 2008 the applicant arrived in Turkey legally on a visa valid for one month.

On 24 April 2010 the applicant, who had been living in Turkey since April 2008, was taken into police custody while he was at Istanbul Atatürk Airport. He made a statement to the airport police on the same day. According to the document containing his statement, the applicant was informed that he was suspected of lacking a valid identity document and of illegal entry into Turkey. He was kept in detention at the airport police station for the following three days.

On 27 April 2010 the applicant was sent to Istanbul Kumkapı Removal Centre. According to the applicant’s account, the centre was severely overcrowded at the time of his detention, which resulted in hygiene problems. The building was infested with insects and the quality and quantity of the food was also fairly poor. Moreover, there was no provision for outdoor exercise.

On 2 June 2010 the applicant applied for release to the Istanbul Magistrates’ Court. The court decided on the same day that it did not have jurisdiction as the applicant had not been detained within the scope of a criminal investigation. The court therefore ruled that any request had to be brought before the administrative courts.

On an unspecified date the applicant made an asylum claim to the Ministry of the Interior and lodged an application for refugee status with the United Nations High Commissioner for Refugees (UNHCR).

On 25 June 2010 the applicant was granted a temporary residence permit in the province of Bilecik as an asylum-seeker and was released from Kumkapı Removal Centre on the same day.

According to information provided by his representative on 4 January 2017, a deportation order was issued in respect of the applicant on an unspecified date in 2016. He has been detained at İzmir Işıkkent Removal Centre since 20 September 2016 with a view to his expulsion. The domestic proceedings brought by the applicant against the deportation order and the applicant’s application to the UNHCR for refugee status are still ongoing.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The first applicant was born in 1980 and lives in Sharya, the Kostroma Region.

The applicant was held in remand prison IZ-44/1 in Kostroma in the following cells:

The parties disagreed on the design capacity of the cells and the actual number of inmates.

The first applicant, relying on three hand-written statements from his co-detainees, submitted that Cell 49 had contained three two-tier bunk beds with metal sheets welded to beds on the upper and lower levels to create additional sleeping places. Cell 49 was used to accommodate between ten and twenty prisoners. Cell 43 contained two two-tier bunk beds and accommodated four prisoners.

The Government submitted that the number of prisoners in the cells had not exceeded the occupancy limit. Cell 29 had three sleeping places, Cell 49 four places and Cell 43 two places. They submitted selected pages from the prison registration log. All of these pages, except one dated 24 July 2009, indicate that Cell 49 was designed for four persons and accommodated as many prisoners. The number “4” appears to be written over a different number that was erased. The entry of 24 July 2009 indicated that Cell 49 was designed for ten persons and accommodated eight prisoners. Similarly, the entries in respect of Cell 29 show traces of erasures and alterations. Its design capacity is listed as two or three places and the actual population is always three prisoners.

The second applicant was born in 1958 and has been serving his term of imprisonment in Ivdel, the Sverdlovskiy Region.

Between 14 July 2009 and 4 July 2010 the second applicant was held in remand prison IZ-59/1 in the Perm Region. According to him, the facility was overcrowded. In particular, Cell 90 measuring 40 sq. m accommodated up to sixteen inmates.

According to the Government, the second applicant was held in cells 80, 90, 92, 98 and 103. The actual number of inmates detained in the cells did not exceed their designed capacity. Each inmate had more than 3 sq. m of personal space. Other conditions were satisfactory. The Government submitted selected pages from registration logs, some of which appears to contain erasures and alterations in the fields showing the number of inmates in Cell 90. On some pages the listed total number of inmates is ten less than the number produced by adding up the population of individual cells.


CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant company is a limited liability company based in Vienna. It is the owner and publisher of the weekly news magazine Profil.

Until 2007 the Land of Carinthia (Land Kärnten) owned almost 50% of the shares of Hypo Alpe-Adria Bank. From 1996 until 2006 a man called Mr. Rauscher was in charge of the treasury department of the bank. In that capacity he was responsible for authorising foreign currency transactions. He was answerable only to the bank’s executive board, which consisted of three members. While Mr. Rauscher was head of the treasury department, his father, who had been a regional government member responsible for finance until 1996, was also on the bank’s supervisory board. The father had that position until 2003.

At the beginning of 2006 the bank’s executive board informed the Financial Market Authority (Finanzmarktaufsicht, “the FMA”) that the bank had financial difficulties. On 31 March 2006 the executive board held a meeting with the executive board of the FMA and informed it that the bank had made a loss of several hundred million euros in 2004. Mr Kulterer, the chief executive of the bank, informed the FMA that the treasury department had gone over its internal transaction limit of 100 million euros (EUR) by EUR 47 million.

Between 1 and 6 April 2006 a number of daily newspapers published reports on the investigation and mentioned Mr Rauscher by name as responsible for the speculative transactions in question. Among those articles was one by newspaper Der Standard published on 4 April 2006 (see Standard Verlags GmbH v. Austria (no. 3), no. 34702/07, §§ 6-17, 10 January 2012).

On 5 April 2006 the FMA filed criminal information (Strafanzeige) about offences committed in relation to the business of Hypo Alpe-Adria Bank against the three members of the executive board and Mr Rauscher, accusing them of embezzlement by investing money entrusted to the bank contrary to the instructions of the executive board. In substance, the FMA alleged that Mr Rauscher had authorised highly speculative transactions with foreign currency derivatives (swaps), disregarding instructions by the executive board.

In its issue of 10 April 2006, the applicant company published an article on the investigations into the heavy losses incurred by Hypo AlpeAdria Bank. The front cover of Profil had the words: “Kärntner HypoAffäre – Wie viel wusste Haider?” (“Carinthian Hypo affair - How much did Haider know?”).

The article, headlined “Schwere Hypothek” (“Heavy Mortgage”), ran to nine pages. It reported on the enormous loss of EUR 328 million incurred by Hypo Alpe-Adria Bank in 2004, the question of who was responsible for the damage and whether there were failings in the bank’s risk management. It accused the bank’s executive board of failing to give information to the supervisory board, the bank’s accountants and the FMA, and of trying instead to hush up the losses by manipulating the balance sheets for 2004, which meant that the full extent of the damage was only discovered by external accountants when examining the balance sheets for 2005. The accountants had then informed the FMA. Furthermore, the article featured an interview with Mr Kulterer, confronting him with those accusations. Mr Kulterer was quoted as accusing Mr Rauscher of having disregarded internal guidelines in his foreign currency transactions.

The relevant passages of the article read as follows:

“By the time the warning system was triggered the disaster had long since run its course. On Wednesday 17 November 2004 the risk management and control software programme in the head offices of Hypo Alpe-Adria Bank in Klagenfurt showed, in all the relevant departments of the bank, exactly the kind of figures which bring managers of credit institutions out in a cold sweat: staggering losses on investment operations. In the treasury division, which manages the bank’s liquidity and for that purpose trades, among other things, in interest rates and currencies, there was a shortfall of more than 100 million euros. ‘At that point we immediately called a halt’ said CEO Wolfgang Kulterer. However, as several similar operations were in progress simultaneously, it was impossible ‘to close the floodgates at once’. When that was eventually done, the losses stood at 328 million euros, several times higher than the self-imposed threshold of 100 million.

Treasury manager Christian Rauscher, who was responsible for authorising the transactions, was immediately told to clear his desk. (This son of the former SPÖ regional finance chief Max Rauscher was not available for comment). However, the consequences of the orgy of speculation, which lasted just two weeks, continue to preoccupy the bank’s management. And they are not the only ones: in particular, the manner in which Kulterer and his colleagues dealt with the loss-making transactions has also come to the attention of the authorities in recent days. Last Wednesday the financial markets supervisory authority (the FMA) even saw fit to lodge a criminal complaint against the entire executive board. Rauscher is the object of a preliminary enquiries [Vorerhebungen] (file no. 3 St 79/06x) before the Klagenfurt Regional Court on suspicion of embezzlement. The executive board faces charges of misrepresenting the end-of-year accounts, in other words, falsifying the balance sheets.

The transactions in question were all performed between 20 September and 5 October 2004. According to Hypo boss Kulterer, Rauscher – in breach of internal regulations – gambled, by means of so-called swaps, on the occurrence of a highly explosive combination of two trends on the financial markets: on the one hand a fall in interest rates and on the other a rise in the dollar and the yen against the euro. A few weeks later, on 17 November 2004, the perfect storm hit.

Lack of controls. Rapid rates of growth motivate not just the boss, but also the employees – including the now ex-treasury manager Christian Rauscher. According to inside sources, Rauscher may have set the stakes so high precisely because he wanted to make his mark as a candidate for the vacant post of department manager. After all, high stakes mean correspondingly high profits if all goes according to plan. A marked surplus on his account would undoubtedly have boosted his chances of securing the post.”

The article continued with an overview of the history of Hypo AlpeAdria Bank, which had gone from being a regional bank to an international investment bank in the space of fifteen years. The article looked at previous business transactions which had resulted in risks and losses for the bank and the conduct of the executive board. Finally, the article examined the relationship between the bank’s management and local politicians and asked how much Mr Haider, the then regional governor of Carinthia, knew of the losses, and when he had found out about them. It noted that the Land of Carinthia owned 49.4% of the bank and that funds from the bank had financed a number of political projects in the region, in particular Mr Haider’s Future Fund (Zukunftsfonds), designed to fund infrastructure and other large-scale projects.

On 14 June 2006 Mr Rauscher brought proceedings against the applicant company for disclosing his identity in breach of section 7a of the Media Act (Mediengesetz). He submitted that he was not a public figure and that his position at the bank had not been such as to justify the disclosure of his name. He asserted that when authorising the transactions at issue he had acted in accordance with his instructions and with the approval of his superiors. The publication of his name had had negative repercussions on his professional advancement and had not been justified by any public interest.

On 19 August 2008 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) dismissed Mr Rauscher’s action. It found that the following facts had been established: the article had provided a comprehensive report on the losses of Hypo Alpe-Adria Bank. At the time the article had been published, the Land of Carinthia had owned 49.4% of the bank. The claimant’s father had been a regional government member responsible for finances and had also been on the bank’s supervisory board until April 2003. The claimant had been the head of the bank’s treasury department since 1999. He had not been active in politics nor had he been in the public eye in connection with his professional activity. The Regional Court noted that the task of a bank’s treasury department was to carry out liquidity and finance planning for the bank. Hypo Alpe-Adria’s treasury department had been directly answerable to the executive board. The transactions which had subsequently led to such enormous losses had been carried out between the end of September and the beginning of October 2004 and the claimant had been the main person in charge. On 5 April 2006 the FMA had sent information to the Klagenfurt public prosecutor’s office on three members of the executive board, who were suspected of manipulating the bank’s balance sheets, and on the claimant who was suspected of embezzlement for carrying out unauthorised foreign currency transactions. Following receipt of that information the public prosecutor’s office had started preliminary enquiries. From 24 May 2006 preliminary investigations (Voruntersuchung) had been conducted by the Regional Court. Criminal proceedings against the claimant had been discontinued in 2008. After accusations against the claimant had been published in various media, his employment contract had been terminated. He had not been able to find a similar position in another bank.

The Regional Court noted that section 7a (1) of the Media Act required a weighing of the claimant’s interest in the protection of his identity and the public interest in its disclosure. As a rule, adults who were suspected of having committed a crime were only protected against the disclosure of their identity if such disclosure disproportionately affected their professional advancement.

It observed that at the material time the Land of Carinthia owned almost 50% of Hypo Alpe-Adria Bank. That fact alone demonstrated an increased public interest as the taxpayer had a right to know who was responsible for the bank’s losses. The applicant had been a senior employee at the bank, and had been suspected of embezzlement. Although the criminal proceedings had still been at an early stage, the Financial Market Authority, the competent controlling authority, had laid criminal information against the claimant. Moreover, the chief executive of the bank, Mr Kulterer, had levelled of obtaining information outweighed the claimant’s interest in not having his name disclosed.

On 20 April 2009 the Vienna Court of Appeal (Oberlandesgericht) granted an appeal by the claimant, declared that the disclosure of his identity in the article had violated his rights and ordered the applicant company to pay him EUR 3,000 euros in compensation and to reimburse his procedural costs.

The Court of Appeal found that the Regional Court’s conclusion had been wrong after it had weighed the conflicting interests at issue. It shared the view of the Regional Court that there was a public interest in knowing who was responsible for Hypo Alpe-Adria Bank’s losses due to the fact that the Land owned 50% of the bank. However, the article should have confined itself to mentioning the head of the bank’s treasury department without disclosing his name. The public interest in reporting on the criminal offences at issue had not in itself been sufficient to justify disclosing the claimant’s identity. The fact that the claimant had been answerable to the executive board, although he had an important position in the bank, and that the criminal proceedings against him had been at an early stage, meant that the claimant’s interest in protecting his identity outweighed the public interest in the disclosure of his name.

The applicant company lodged an application under Article 363a of the Code of Criminal Procedure (Strafprozeßordnung) with the Supreme Court (Oberster Gerichtshof). It submitted in particular that the Vienna Court of Appeal’s judgment had violated Article 10 of the Convention as there had been an overriding public interest in what it had reported, including the disclosure of Mr Rauscher’s identity.

On 17 March 2010 the Supreme Court dismissed the applicant company’s application. It examined in detail the reasons given by the Court of Appeal. Referring to the Court’s findings in “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 2) ((dec.), no. 62746/00, 14 December 2002), the Supreme Court found that the appeal court had correctly weighed the conflicting interests of the claimant under Article 8 on the one hand and of the applicant company under Article 10 on the other, especially because of the early stage of the criminal proceedings against the claimant.

The Supreme Court’s judgment was served on the applicant company’s counsel on 15 April 2010.


CASE OF BIRYUCHENKO AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

The applicants are all Russian nationals. They were charged with different criminal offences and placed in detention. The applicants complain in particular that after their cases had been submitted to the trial court they were detained for approximately six months without a court order. The applicants’ individual circumstances are detailed below.

The applicant was born in 1964 and lives in Vsevolozhsk.

In 1998 criminal proceedings were instituted against him on suspicion of being a member of a large criminal group which had committed extortions by threats and other serious crimes.

On 7 December 1999 he was arrested by Czech police in Prague and on 18 February 2002 extradited to Russia where he was placed in detention.

On 1 March 2002 the Prosecutor of St Petersburg extended his detention up to four months, until 18 June 2002. The applicant did not appeal against this order.

On 10 June 2002 the Deputy Prosecutor General extended the applicant’s detention until 18 September 2002.

On 15 July 2002 the applicant’s counsel lodged an application for release with the Oktyabrskiy Federal Court claiming that the applicant should be released on the ground that the new Code of Criminal Procedure had entered into force on 1 July 2002, and that a person could now be detained only on the basis of a court order.

On 9 August 2002 the Oktyabrskiy Federal Court dismissed the application for release. This decision was quashed on 11 September 2002 by the St Petersburg City Court on the applicant’s appeal and the matter was sent back for reconsideration. On 4 October 2002 the Oktyabrskiy Federal Court referred the matter back to the City Court because the case had already been referred to it for trial.

On 19 September 2002 the applicant was served with a bill of indictment and on the same date the case was referred for trial to the St Petersburg City Court.

On 20 September and on 23 December 2002 the applicant applied to the St Petersburg City Court asking to be released on the grounds that his detention had ceased to be lawful after the expiration on 18 September 2002 of the last detention order.

On 13 March 2003 the applicant complained to the Supreme Court (“the Supreme Court”) about the St Petersburg City Court’s failure to examine his application for release of 23 December 2002. On 10 April 2003 the Supreme Court forwarded his complaint to the City Court.

The applicant’s detention was further extended by the St Petersburg City Court on 18 March, 18 June and 18 September 2003. Each time the City Court relied on the gravity of charges. All detention orders were appealed by the applicant. The detention orders of 18 March and 18 June 2003 were upheld by the Supreme Court on 18 September and on 8 October, respectively, whereas the detention order of 18 September 2003 was quashed on 3 December 2003.

On 8 December 2003 the applicant lodged an application for release with the St Petersburg City Court on the ground that since the extension order of 18 September 2003 had been quashed on appeal, he should be immediately released from detention. This application was never examined by the City Court.

On 16 December 2003 the St Petersburg City Court relying on the gravity of the charges extended the applicant’s detention for further three months, until 18 March 2004.

On 30 December 2003 the applicant appealed on the ground that the order had been unlawful since it was only based on the gravity of charges against him. Moreover, his detention had been extended despite the fact that the previous detention order had been quashed on appeal.

It appears that the applicant’s detention was further extended on 16 March 2004 and that the applicant appealed against that decision. On 29 March 2004 the St Petersburg City Court referred the case for additional investigation and confirmed that the applicant should remain in detention.

On 5 May 2004 the St Petersburg City Court referred the case for additional investigation. On the same date an investigator with the Prosecutor’s Office of St Petersburg ordered the applicant’s release on an undertaking not to leave his place of residence.

On 6 December 2007 the St Petersburg City Court found the applicant guilty as charged and sentenced him conditionally to five years’ imprisonment.

The applicants, Mr Ilya Aleksandrovich Stepanov (“the first applicant”), Mr Roman Sergeyevich Ponomarev (“the second applicant”) and Mr Aleksandr Anatolyevich Leontyev (“the third applicant”) were born in 1978, 1975 and 1964 respectively and live in Syasstroy, in the Leningrad region.

On 11 November 2004 the applicants were arrested on suspicion of theft.

On 13 November 2004 the Lodeynopolskiy Town Court of the Leningrad Region extended the applicants’ custody up to seventy-two hours. The applicants did not appeal this decision.

On 16 November 2004 the same court ordered the applicants’ pre-trial detention. No appeal was lodged against this order.

On 11 January 2005 the Lodeynopolskiy Town Court by three separate decisions extended the applicants’ detention until 12 February 2005. The Town Court held, in respect of the first and second applicants, that they “had committed the crime” while they had been under a written undertaking not to abscond. In respect of the third applicant, the Town Court held that he “had committed the crime” while he had been under a suspended sentence. The applicants appealed, notably on account of the wording used in these orders.

On 4 February 2005 the prosecuting authorities referred the criminal case against the applicants to the Lodeynopolskiy Town Court for trial.

On 9 February 2005 the Leningrad Regional Court upheld the detention orders of 11 January 2005.

On 14 February 2005 the Lodeynopolskiy Town Court remitted the criminal case against the applicants to the prosecuting authorities. The Town Court also held that the measure of restraint should remain unchanged without other details.

On 11 and 12 April 2005 the applicants’ detention was upheld by the Town Court with the same summary formula. Both decisions were appealed by the applicants and on 18 May 2005 both were upheld by the Leningrad Regional Court.

On 25 July 2005 the Lodeynopolskiy Town Court extended the applicants’ detention, indicating that this extension was necessary given that the six-month period of the applicants’ detention pending trial would expire on 4 August 2005.

On 21 October 2005 the Lodeynopolskiy Town Court acquitted the applicants of all charges and they were immediately released. On 14 December 2005 the Regional Court quashed this judgment.

On 28 April 2007 the Lodeynopolskiy Town Court found the applicants guilty of theft and sentenced them to different terms of imprisonment. On 6 June 2007 the Leningrad Regional Court upheld that judgment.

The applicant, Mr German Leonidovich Oynas was born in 1966 and lives in St Peterburg.

On 27 November 2003 the applicant was charged with causing grave bodily injury, an offence under Article 111 § 1 of the Criminal Code.

On 28 November 2003 the Vyborgskiy District Court of St Petersburg ordered the applicant’s placement in detention. On 25 December 2003 this order was upheld by the St Petersburg City Court.

On 22 January 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 February 2004. The applicant appealed. On 26 February 2004 the St Petersburg City Court, in the applicant’s absence, upheld the extension order of 22 January 2004.

On 26 February 2004 the case was referred to the Vyborgskiy District Court for trial.

On 2 March 2004 the District Court, in the absence of the applicant, decided to set the case for trial without holding a preliminary hearing and held that the measure of restraint applied to the applicant should remain unchanged. The prosecutor and the applicant appealed.

On 29 April 2004 the St Petersburg City Court, in the applicant’s absence, quashed the decision of 2 March 2004 in so far as it had set the examination of the case without holding of a preliminary hearing and remitted the matter for fresh examination to the Vyborgskiy District Court. It also held that the review of the lawfulness of the applicant’s detention was not within its competence. It further decided that the measure of restraint applied to the applicant should remain unchanged.

On 20 May 2004 the applicant lodged an application for release with the Vyborgskiy District Court. He complained that after 26 February 2004 he had been detained without any court order, that on 29 April 2004 the St Petersburg City Court quashed the decision of 2 March 2004 in his absence and, without giving any reasons, ordered not to change the measure of restraint. On 25 June 2004 this application was rejected by the District Court.

On 27 May 2004 the Vyborgskiy District Court opened the preliminary hearing. The applicant applied for release. On the same date the court rejected the applicant’s motion for release having found that the applicant was charged with a serious offence, had been previously convicted and might interfere with the proceedings if released. The hearing was adjourned until 18 June 2004 and subsequently until 25 June 2004.

On 5 June 2004 the applicant appealed against the decision of 27 May 2004.

On 18 June 2004 the applicant’s counsel lodged an application for release with the Vyborgskiy District Court. On 25 June 2004 the Vyborgskiy District Court dismissed it having found that the applicant was charged with a serious offence, had been previously convicted, and might interfere with proceedings if released

On 25 June 2004, after having held the preliminary hearing, the Vyborgskiy District Court, set the case for trial on 9 July 2004 and held that the measure of restraint should remain unchanged.

On 4 and 5 July 2004 the applicant appealed against the decisions of 25 June 2004.

On 9 July 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 November 2004, having found that the applicant was charged with a serious offence, he had been previously convicted and might interfere with proceedings if released. The applicant appealed. On 14 October 2004 the St Petersburg City Court upheld the detention order of 9 July 2004.

On the same date the St Petersburg City Court held that it was impossible to examine the applicant’s appeals against the decisions of 27 May and 25 June 2004 by which his requests for release had been dismissed.

The applicant’s detention was further extended by the Vyborgskiy District Court on 23 November 2004, 25 February 2005, 23 May 2005 and on 15 July 2005. All these extension orders were based on the same grounds. Each time the applicant appealed. All these extension orders were upheld by the City Court.

On 4 October 2005 the applicant was found guilty and sentenced to five years’ imprisonment. His conviction was upheld by the St Petersburg City Court on appeal on 31 January 2006. On 12 March 2007 the applicant was released for good behaviour.

On 4 August 2003 Mr Biryuchenko and on 16 September 2004 Mr Oynas complained to the Russian Constitutional Court about the de facto extension of their detention after their case files had been sent by the prosecution authorities to the respective trial courts. The Constitutional Court examined their complaints together with similar complaints lodged by other individuals. In a Ruling adopted on 22 March 2005 the Constitutional Court found that the challenged provisions of the new CCrP complied with the Constitution of the Russian Federation. However, their practical interpretation by the courts may have contradicted their constitutional meaning. In part 3.2 of the Ruling the Constitutional Court held:

“The second part of Article 22 of the Constitution of the Russian Federation provides that ... the detention is permitted only on the basis of a court order ... . Consequently, if the term of detention, as defined in the court order, expires, the court shall decide on the extension of the detention, otherwise the accused person should be released ...

These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages.

Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure applied at the pre-trial stage ... may continue to apply until the expiry of the term, for which it has been set in the respective court decision [imposing it] ...

[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within fourteen days, set a hearing and establish ‘whether the preventive measure applied should be lifted or changed’. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term, for which the preventive measure has been set.

The prosecution, in its turn, while approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the moment of transferal of the case-file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, pursuant to Articles 108 and 109 of the Code of Criminal Proceedings, [should] request the court to extend the period of detention.”

On 1 August 2005 Mr Biryuchenko lodged a complaint with the General Prosecutor’s office. He submitted that between 19 September 2002, which was after his case had been referred for trial to the City Court, and 18 March 2003, he had been detained unlawfully (see paragraphs 10-16 above). Subsequently, his detention had been extended six times: on 18 March, 18 June, 18 September and 16 December 2003, on 16 March and 29 March 2004. He pointed out that he had appealed against all the extension orders, but the appeal court had failed to take his arguments into account. Relying on the ruling of the Constitutional Court of 22 March 2005, the applicant argued that in his case the courts had wrongly interpreted Article 255 of the new CCrP and had taken an unlawful decision on 18 March 2003. All the subsequent detention orders had also been unlawful. He requested the Prosecutor to lodge a request for supervisory review with the Supreme Court and apply for quashing of the extension orders.

On 21 September 2005 the General Prosecutor’s Office replied that the ambiguity of Article 255 allowed the courts to detain the defendants during six months without taking any decision in this respect. Therefore, when extending the applicant’s detention and dismissing his applications for release, the courts of first and second instances had not found any violation of law. Furthermore, the applicant had been released on 5 May 2004. Therefore, his right to liberty had been reinstated long before the adoption of the ruling of 22 March 2005 by the Constitutional Court. For these reasons, there had been no grounds to apply for a supervisory review of detention orders.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


CASE OF KUDRYAVTSEV AND OTHERS v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


BAJRAMOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant, Mr Ismet Bajramovski, is a Macedonian national who was born in 1955 and lives in Schötz, Switzerland. He was represented before the Court by Mr E. Glavinče, a lawyer practising in Bitola.

The Macedonian Government (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov, later succeeded by Ms D. Djonova.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 2008 the applicant lodged a civil action against A.L. and H.L. with the Kičevo Court of First Instance (Основен суд Кичево, “the first-instance court”), claiming recognition of a title to a house and a courtyard that had been returned to the defendants in earlier restitution proceedings.

On an unspecified date thereafter Judge V.S., the presiding judge in the applicant’s case, notified the president of the first-instance court that A.L. was a judge of that court, and asked him to request that the next level of court up from the first-instance court assign the case to another firstinstance court.

On 23 May 2008, under section 60 of the Civil Proceedings Act (“the Act”) and for the reasons relied upon by Judge V.S., the president of the first-instance court requested that the Gostivar Court of Appeal (Апелационен суд Гостивар, “the Court of Appeal”) assign the case to another competent first-instance court.

On 29 May 2008 the Court of Appeal returned the case file to the first-instance court. The Government submitted that the Court of Appeal had found no grounds to assign the case to another competent court. No copy of a decision was provided.

On 3 December 2008 a three-judge panel of the first-instance court, presided over by Judge V.S. and two lay judges, dismissed the applicant’s claim. The panel established that the applicant’s father had bought the property from a third party whose legal predecessor had acquired it unlawfully and in bad faith.

The applicant appealed against that judgment, complaining of factual and legal errors and an incorrect assessment of the evidence. He also complained that the court had not provided sufficient reasons for its judgment. He did not voice any concerns about an alleged lack of impartiality on the part of the first-instance court.

On an unspecified date the applicant’s lawyer requested that the Supreme Court assign the case to another second-instance court under section 61 of the Act, given the fact that two judges of the first-instance court (former colleagues of Judge A.L.) had been appointed judges of the Gostivar Court of Appeal, the court which was to decide the applicant’s appeal. The relevant part of the application read as follows:

“The defendant, A.L., is a judge of the Kičevo Court of First Instance. The claim was submitted to the Kičevo Court of First Instance in the belief that the court would deliver a correct judgment based on the facts of the case ...”

On 5 March 2009 the Supreme Court dismissed the applicant’s application, holding that the reasons given by the applicant were “irrelevant” and that a transfer of jurisdiction to another competent court was not warranted.

On 6 July 2010 a three-judge panel of the Court of Appeal not including the two judges in respect of whom the applicant had voiced concerns about impartiality dismissed the applicant’s appeal and upheld the first-instance court’s judgment. It found no reasons to depart from the established facts and reasons provided by that court.

The applicant lodged an appeal on points of law with the Supreme Court in which he reiterated the complaints described in paragraph 9 above. He also referred to the earlier requests (see paragraphs 5, 6 and 10 above) for his case to be assigned to different first and second-instance courts.

On 29 March 2012 the Supreme Court dismissed the applicant’s appeal on points of law. It did not address his submissions concerning the lower courts’ alleged lack of impartiality.

The relevant provisions of the Civil Proceedings Act provide as follows:

“If the competent court is not able to act, owing to a judge being excluded, it shall notify the higher court. The higher court shall assign the case to another competent court in its territory.”

“The Supreme Court may, following a proposal by a party or the competent court, assign a case to another court if this would obviously facilitate the proceedings, or for other important reasons.”

“A judge or a lay judge cannot perform his/her judicial function if:

he/she is a party, a statutory representative, or a party’s counsel...;

he/she is permanently or temporarily employed by a party to the proceedings;

a party or a party’s counsel is his/her relative...;

he/she is a custodian, an adoptive parent, [or] an adoptive child ... of a party;

he/she participated in rendering any decision by a lower court or another body in the relevant proceedings; and

there are other grounds which cast doubt on his/her impartiality.”

The Supreme Court has previously granted applications for a transfer of jurisdiction based on section 61 of the Act in cases where: the court before which proceedings were conducted was itself a party to those proceedings, for example a defendant in employment disputes or a claimant in enforcement proceedings (Р.бр. 60/2015, Р.бр. 3/2014, Р.бр. 64/2014, Р.бр. 11/2014); a judge of the court was a party in a case which was to be decided by that court (Р.бр. 23/2009, Р.бр. 78/2009, Р.бр. 86/2009); a claimant’s mother was a judge of the trial court (Р.бр. 36/2010); a legal representative of defendants who were minors was a judge of the trial court (Р.бр. 79/2009); a claimant was the son of a judge of the trial court (Р.бр. 15/2010); some judges of the trial court had been excluded and against other judges the defendant had initiated criminal proceedings expressing doubts about their impartiality (Р.бр.10/2010).

In one case, the Supreme Court refused an application for a transfer of jurisdiction where the claimant in the case was a judge of the trial court (Р.бр. 56/2012).

The President of the Bitola Court of First Instance granted applications for exclusion from all of the judges of that court in a case between the Bitola Court of First Instance and one of its employees (СУИЗЗ-111/15).


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen;Robert Spano

The applicants were born in 1971 and 1979. They live in Malmö, Sweden.

The first applicant was born in Togo, where he lived until the age of 6 and again briefly from the age of 21 to 22. From the age of 6 to 21 he lived in Ghana with his uncle. He attended school there for ten years and speaks the local language. On 18 July 1993, when he was 22 years old, he entered Denmark and requested asylum, which was refused by a final decision of 8 March 1995.

In the meantime, on 7 November 1994 he had married a Danish national. Having regard thereto, on 1 March 1996, by virtue of the former section 9, subsection 1(ii), of the Aliens Act (Udlændingeloven) he was granted a residence permit, which became permanent on 23 September 1997.

On 25 September 1998, the first applicant and his Danish wife divorced.

On 22 April 2002 the first applicant acquired Danish citizenship. Thus, at the relevant time he met the requirement relating to the length of his period of residence, age, general conduct, arrears owed to public funding and language proficiency.

On 22 February 2003 in Ghana, the first applicant married the second applicant, whom he had met during one of four visits to Ghana made in the five years prior to their marriage. The second applicant was born in Ghana.

On 28 February 2003, at the Danish Embassy in Accra in Ghana, the second applicant requested a residence permit for Denmark with reference to her marriage to the first applicant. At that time she was 24 years old. She stated that she had not visited Denmark. Her parents lived in Ghana. In the application form, the first applicant submitted that he had not received any education in Denmark, but had participated in various language courses and short-term courses concerning service, customer care, industrial cleaning, hygiene and working methods. He had been working in a slaughterhouse since 15 February 1999. He had no close family in Denmark. He spoke and wrote Danish. The spouses had come to know each other in Ghana and they communicated in the Hausa and Twi languages.

At the relevant time, under section 9, subsection 7, of the Aliens Act family reunion could only be granted if both spouses were over 24 years old and their aggregate ties to Denmark were stronger than the spouses’ attachment to any other country.

On 1 July 2003, the Aliens Authority (Udlændingestyrelsen) refused the request because it found that it could not be established that the spouses’ aggregate ties with Denmark were stronger than their aggregate ties to Ghana.

In July or August 2003 the second applicant entered Denmark on a tourist visa.

On 28 August 2003 she appealed against the Aliens Authority’ decision of 1 July 2003, to the then Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration).The appeal did not have suspensive effect.

On 15 November 2003 the applicants moved to Sweden.

By Act no. 1204 of 27 December 2003, section 9, subsection 7, of the Aliens Act was amended so that the attachment requirement was lifted for persons who had held Danish citizenship for at least 28 years (the so-called 28-year rule, 28-års reglen). Furthermore, persons born or having arrived in Denmark as small children could be exempted from the attachment requirement, provided they had resided lawfully there for 28 years.

On 6 May 2004 the applicants had a son. He was born in Sweden but is a Danish national due to his father’s nationality.

On 27 August 2004 the Ministry of Refugee, Immigration and Integration Affairs upheld the decision by the Aliens Authority of 1 July 2003 to refuse to grant the second applicant a residence permit. It noted in particular that the second applicant had always lived in Ghana and had family there, and that the first applicant had ties with Ghana and had, among other things, attended school there for ten years. Finally, it found that the family could settle in Ghana, as that would only require that the first applicant obtain employment there.

On 18 July 2006, before the High Court of Eastern Denmark (Østre Landsret), the applicants instituted proceedings against the Ministry of Refugee, Immigration and Integration Affairs and relied on Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, as well as Article 5 (2) of the European Convention on Nationality. They submitted, among other things, that it amounted to indirect discrimination against them when applying for family reunion, that persons who were born Danish citizens were exempt from the attachment requirement altogether, whereas persons who had acquired Danish citizenship at a later point in life had to comply with the 28-year rule before being exempted from the attachment requirement. In the present case that would entail that the first applicant could not be exempted from the attachment requirement until 2030, thus after 28 years of Danish citizenship, and after having reached the age of 59.

By a judgment of 25 September 2007 the High Court of Eastern Denmark unanimously found that the refusal to grant the applicants family reunion with reference to the 28-year rule and the attachment requirement did not contravene the Articles of the Convention or the European Convention on Nationality relied on. It stated as follows:

“...the facts given in the decisions of the immigration authorities in the case are found not to be disputed.

Hence, [the second applicant] who is a Ghanaian national, was thus 24 years old when she applied for a residence permit on 28 February 2003, and she had no other ties with Denmark than her recent marriage to [the first applicant]. [The second applicant] had always lived in Ghana and had family there. [The first applicant] had some ties with Ghana, where he had lived with his uncle while attending school in Ghana for ten years. He entered Denmark in 1993 at the age of 22 and became a Danish national on 22 April 2002. [The applicants] married in Ghana on 22 February 2003 and have lived in Sweden since 15 November 2003 with their child, born on 6 May 2004. [The first applicant] has told the High Court that the family can settle lawfully in Ghana if he obtains paid employment in Ghana.

It appears from a Supreme Court judgment of 13 April 2005, reproduced on page 2086 in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) for 2005, that Article 8 of the Convention does not impose on the Contracting States any general obligation to respect immigrants’ choice of the country of their residence in connection with marriage, or otherwise to authorise family reunion.

In view of the information on [the applicants’] situation and their ties with Ghana, the High Court accordingly finds no basis for setting aside the Defendant’s decision establishing that [the applicants’] aggregate ties with Ghana were stronger than their aggregate ties with Denmark and that [the applicants] therefore did not meet the attachment requirement set out in section 9, subsection 7, of the Aliens Act. In this connection, the High Court finds that the refusal did not bar [the applicants] from exercising their right to family life in Ghana or in a country other than Denmark. The fact that [the first applicant] is only able to reside in Ghana if he obtains paid employment there is found not to lead to any other assessment. Accordingly, the High Court holds that the decision of the Ministry did not constitute a breach of Article 8 of the Convention.

Although the High Court has held that Article 8 of the Convention has not been breached in this case, the High Court has to consider [the applicants’] claim that, within the substantive area otherwise protected by Article 8, the decision of the Ministry constituted a breach of Article 14 read in conjunction with Article 8 of the Convention.

The High Court initially observes that [the first applicant] had been residing in Denmark for 11 years when the Ministry made its decision. Although he acquired Danish nationality in 2002, nine years after his entry to Denmark, he did not meet the 28-year nationality requirement applicable to all Danish nationals pursuant to section 9, subsection 7 of the Aliens Act, irrespective of whether they are of foreign or Danish extraction. Nor did he have the comparable attachment to Denmark throughout 28 years which will generally lead to an exemption from the attachment requirement according to the preparatory works to the 2003 statutory amendment.

The 28-year rule is a generally worded relaxation of the attachment requirement based on an objective criterion. In practice, however, the rule may imply that a Danish national of foreign extraction will only meet the 28-year rule later in life than would be the case for a Danish national of Danish extraction. When applied, the rule may therefore imply an indirect discrimination.

According to the relevant explanatory report, Article 5 of the European Convention on Nationality must be taken to mean that Article 5 § 1 concerns the conditions for acquiring nationality while Article 5 § 2 concerns the principle of non-discrimination. According to the report, it is not a mandatory rule that the Contracting States are obliged to observe in all situations. Against that background, Article 5 is considered to offer protection against discrimination to an extent that goes no further than the protection against discrimination offered by Article 14 of the Convention.

The assessment of whether the refusal of the Ministry implied discrimination amounting to a breach of Article 14 read in conjunction with Article 8 of the Convention is accordingly considered to depend on whether the difference in treatment which occurred as a consequence of the attachment requirement despite the nationality can be considered objectively justified and proportionate.

According to the preparatory works to the Act, the overall aim of the attachment requirement, which is a requirement of lasting and strong links to Denmark, is to regulate spousal reunion in Denmark in such manner as best to ensure the integration of immigrants in Denmark, which aim must in itself be considered objective. In the view of the High Court, difference in treatment between Danish nationals of Danish extraction and Danish nationals of foreign extraction can therefore be justified by this aim relative to the right to spousal reunion if a Danish national of foreign extraction has no such lasting and strong attachment to Denmark.

The balancing of this overall consideration relative to the specific circumstances in the case requires a detailed assessment. The High Court finds that the assessment and decision of the Ministry were made in accordance with section 9(7) of the Aliens Act and the preparatory works describing the application of the provision. Accordingly, and in view of the specific information on [the first applicant’s] situation, the High Court finds no sufficient basis for holding that the refusal by the Ministry to grant a residence permit to [the second applicant] with reference to the attachment requirement of the Aliens Act implies a disproportionate infringement of [the first applicant’s] rights as a Danish national and his right to family life. The High Court therefore finds that the decision of the Ministry was not invalid, and that it was not contrary to Article 14 read in conjunction with Article 8 of the Convention.”

The applicants appealed against the judgment to the Supreme Court (Højesteret), which passed its judgment on 13 January 2010 confirming the High Court judgment.

The Supreme Court found, unanimously, that it was not in breach of Article 8 of the Convention to refuse the second applicant a residence permit in Denmark. It stated as follows:

“By its decision of 27 August 2004, the Ministry of Integration refused the application from [the second applicant] for a residence permit on the grounds that the aggregate ties of herself and her spouse [the first applicant] with Denmark were not stronger than their aggregate ties with Ghana, see section 9, subsection 7, of the Aliens Act.

[The applicants] first submitted that the refusal was unlawful because it was contrary to Article 8 of the European Convention on Human Rights. If the refusal was not contrary to Article 8, they submitted as their alternative claim that it was contrary to the prohibition against discrimination enshrined in Article 14 read in conjunction with Article 8, for which reason they were eligible for family reunion in Denmark without satisfying the attachment requirement set out in section 9(7) of the Act.

For the reasons given by the High Court, the Supreme Court upholds the decision made by the Ministry of Integration that it is not contrary to Article 8 to refuse [the second applicant’s] application for a residence permit.”

Moreover, the majority of the Supreme Court (four judges) found that the 28-year rule was in compliance with Article 8 of the Convention in conjunction with Article 14 of the Convention. They stated as follows:

A minority of three judges was of the view that the 28-year rule implied an indirect discrimination between persons who were born Danish citizens and persons who had acquired Danish citizenship later in their life. Since persons who were born Danish citizens would usually be of Danish ethnic origin whereas persons who acquired Danish citizenship at a later point in their life would generally be of foreign ethnic origin, the 28-year rule also entailed an indirect discrimination between ethnic Danish citizens and Danish citizens with a foreign ethnic background. More specifically, they stated:

“As stated by the majority, the requirement of section 9, subsection 7, of the Aliens Act that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger than their aggregate ties with another country (the attachment requirement) does not apply when the resident person has been a Danish national for 28 years (the 28-year rule).

The 28-year rule applies both to persons born Danish nationals and to persons acquiring Danish nationality later in life, but in reality the significance of the rule differs greatly for the two groups of Danish nationals. For persons born Danish nationals, the rule only implies that the attachment requirement applies until they are 28 years old. For persons not raised in Denmark who acquire Danish nationality later in life, the rule implies that the attachment requirement applies until 28 years have passed after the date when any such person became a Danish national. As an example, [the first applicant] who became a Danish national at the age of 31, will be subject to the attachment requirement until he is 59 years old. The 28-year rule therefore implies that the major restriction of the right to spousal reunion resulting from the attachment requirement will affect persons who only acquire Danish nationality later in life far more often and with a far greater impact than persons born with Danish nationality. Hence, the 28-year rule results in obvious indirect difference in treatment between the two groups of Danish nationals.

The vast majority of persons born Danish nationals will be of Danish ethnic origin, while persons acquiring Danish nationality later in life will generally be of other ethnic origin. At the same time, the 28-year rule therefore implies obvious indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin regarding the right to spousal reunion.

Pursuant to section 9, subsection 7, of the Aliens Act, the attachment requirement may be disregarded if exceptional reasons make it appropriate. According to the preparatory works to the 2003 Act, this possibility of exemption is to be administered in such a manner that aliens who were born and raised in Denmark or who came to Denmark as small children and were raised here must be treated comparably to Danish nationals, which means that they will be exempt from the attachment requirement when they have lawfully resided in Denmark for 28 years. However, relative to persons who were not raised in Denmark, but acquire Danish nationality later in life, this does not alter the situation described above concerning the indirect difference in treatment implied by the 28-year rule.

When the attachment requirement was introduced by Act No. 424 of 31 May 2000, all Danish nationals were exempt from the requirement. Act No. 365 of 6 June 2002 made the attachment requirement generally applicable also to Danish nationals. Concerning the reason for this, the preparatory works to the Act state, inter alia: “With resident aliens and Danish nationals of foreign extraction it is a widespread marriage pattern to marry a person from their countries of origin, among other reasons due to parental pressure [...]. The Government finds that the attachment requirement, as it is worded today, does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident Danish nationals of foreign extraction. There are thus also Danish nationals who are not well-integrated in Danish society and where integration of a spouse newly arrived in Denmark may therefore entail major problems.” By Act No. 1204 of 27 December 2003, the application of the attachment requirement to Danish nationals was restricted through the 28-year rule, and the preparatory works to the Act stated that the purpose was, inter alia, “to ensure that Danish expatriates with strong and lasting ties to Denmark in the form of at least 28 years of Danish nationality will be able to obtain spousal reunion in Denmark”. In the light of these notes, it is considered a fact that the indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction following from the 28-year rule is an intended consequence.

Under Article 14 of the Convention, the enjoyment of the rights and freedoms recognised by the Convention, including the individual’s right under Article 8 to respect for his or her family life, must be “secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” As mentioned above, the 28-year rule implies both indirect difference in treatment between persons born Danish nationals and persons only acquiring Danish nationality later in life and, in the same connection, indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction. Both these types of indirect difference in treatment must be considered to fall within Article 14 read in conjunction with Article 8 of the Convention. The two types of indirect difference in treatment implied by the 28-year rule are therefore contrary to Article 14 unless the difference in treatment can be considered objectively justified and proportionate.

The European Convention on Nationality of 6 November 1997, which has been ratified by Denmark, provides in Article 5 § 2: “Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.” The memorandum of 14 January 2005 made by the Ministry of Integration and the memorandum of November 2006 made by the working group composed of representatives of the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Integration state that the provision solely concerns issues on the revocation and loss of nationality. In our opinion it is dubious whether there is any basis for such restrictive interpretation as the provision, according to its wording, comprises any difference in treatment exercised as a consequence of how and when nationality was acquired. As appears from the explanatory report, the provision is not a prohibition from which no derogation may be made, and the provision must be taken to mean that it may be derogated from if the difference in treatment is objectively justified and proportionate. However, when assessing the 28-year rule relative to Article 14 read in conjunction with Article 8 of the Convention, we consider it necessary to include the fact that, at least according to its wording, Article 5 § 2 of the European Convention on Nationality comprises a general provision stating that any difference in treatment between different groups of a State Party’s own nationals is basically prohibited.

In an assessment made under Article 14 read in conjunction with Article 8 of the Convention, another factor to be taken into consideration is the crucial importance of being entitled to settle with one’s spouse in the country of one’s nationality.

As mentioned, Danish nationals were originally generally exempt from the attachment requirement. The Supreme Court established in a judgment reproduced on p. 2086 in the Danish Weekly Law Reports for 2005 that discrimination relative to the right to spousal reunion based on whether the resident spouse is a Danish or foreign national is not contrary to the prohibition of discrimination laid down in Article 14 read in conjunction with Article 8 of the Convention. In this respect, the Supreme Court referred to paragraphs 84 to 86 of the judgment delivered by the European Court of Human Rights on 28 May 1985 in Abdulaziz, Cabales and Balkandali v. the United Kingdom. Difference in treatment based on nationality must be seen, inter alia, in the light of the right of Danish nationals to settle in Denmark, and no significance can be attributed to the fact that such discrimination is not considered contrary to Article 14 read in conjunction with Article 8 when assessing whether it is permissible to implement a scheme implying difference in treatment between different groups of Danish nationals. In our opinion, no crucial significance can be attributed to paragraphs 87 to 89 of the Abdulaziz, Cabales and Balkandali judgment either in this assessment, among others because difference in treatment based on the length of a person’s period of nationality is not comparable to difference in treatment based on place of birth.

In the cases in which the attachment requirement applies, some of the factors emphasised are whether the resident spouse has strong links to Denmark by virtue of his or her childhood and schooling in Denmark. Such strong attachment to Denmark will exist in most cases in which a person has held Danish nationality for 28 years. However, when assessing whether the difference in treatment implied by the 28-year rule can be considered objectively justified, it is not sufficient to compare persons not raised in Denmark who acquire Danish nationality later in life with the large group of persons who were born Danish nationals and were also raised in Denmark. If exemption from the attachment requirement was justified only by regard for the latter group of Danish nationals, the exemption should have been delimited differently. The crucial element must therefore be a comparison with persons who were born Danish nationals and have been Danish nationals for 28 years, but who were not raised in Denmark and may perhaps not at any time have had their residence in Denmark. In our opinion, it cannot be considered a fact that, from a general perspective, this group of Danish nationals has stronger ties with Denmark than persons who have acquired Danish nationality after entering and residing in Denmark for a number of years. It should be taken into consideration in that connection that one of the general conditions for acquiring Danish nationality by naturalisation is that the relevant person has resided in Denmark for at least nine years, has proved his or her proficiency in the Danish language and knowledge of Danish society and meets the requirement of self-support.

Against that background, it is our opinion that the indirect difference in treatment implied by the 28-year rule cannot be considered objectively justified, and that it is therefore contrary to Article 14 read in conjunction with Article 8 of the Convention.

The consequence of this must be that, when applying section 9, subsection 7, of the Aliens Act to Danish nationals, the authorities must limit the 28-year rule to being solely an age requirement, meaning that the attachment requirement does not apply in cases in which the resident spouse is a Danish national and is at least 28 years old.

Accordingly, we vote for ruling in favour of the [applicants’] claim to the effect that the Ministry of Integration must declare invalid the decision of 27 August 2004, thereby remitting the case for renewed consideration.

In view of the outcome of the voting on this claim we see no reason to consider the claim for compensation.”