4.  The applicant was born in 1959 and lives in Kharkiv, Ukraine. 5.  At the material time the applicant was the director and allegedly the owner of the Passage private company, which provided currency exchange services. On 16 August 1996 the tax police inspected one of the departments of the company, seized some documents and cash assets, and imposed financial sanctions. 6.  On 28 April 1998 the applicant was invited to the Kharkiv State Tax Police Inspectorate (Податкова міліція Державної податкової інспекції м. Харкова) to retrieve the documents that had been removed by the tax police. According to the applicant, at 9 a.m., when he entered the office of S., the Head of the Tax Police Inspectorate, and asked when the documents in question would be returned, the latter started to beat him and broke the tape recorder which the applicant had in his pocket. According to the applicant, several people were present at the time in S.'s office. The latter allegedly told his subordinates not to let the applicant out until 11 a.m. At 11 a.m. the applicant left the Tax Police premises. 7.  On the same day the applicant complained about these events to the Anti-corruption Department of the Kharkiv Regional State Tax Inspectorate (Відділ по боротьбі з корупцією Державної податкової інспекції в Харківській області). The applicant was sent for a medical examination and his complaint was transferred to the Prosecutor's Office. 8.  On 29 April 1998 the medical examination revealed that the applicant had suffered minor injuries, and in particular that he had bruises on his abdomen. No head injury was identified. 9.  From 30 April to 23 May 1998 the applicant was a patient in the neurosurgery department of Hospital No. 4. He was diagnosed with concussion and numerous bruises were found on his head. 10.  On 11 June 1998 a further forensic medical examination concluded that the applicant was suffering from moderately severe physical injuries (including a head injury) which had caused a temporary disability. 11.  On 18 August 1998 the financial sanctions against the Passage company were rescinded. 12.  According to a forensic medical expert opinion of 1 September 1998, the applicant's medical treatment from 30 April to 8 June 1998 was for a head injury, which could have been inflicted on 28 April 1998 or later. It further stated that, since according to the medical examination of 29 April 1998 the applicant had not had a head injury, it was impossible to establish a link between the incident of 28 April 1998 and the applicant's medical treatment for a head injury. 13.  On 2 September 1998 the Kharkiv City Prosecutor's Office (прокуратура м. Харкова) refused to institute criminal proceedings against Mr S. for want of corpus delicti. In particular, S. and Sh. and P. (employees of the Tax Police who had been present in the office during the events in question) and Zh. (a security officer) testified that the applicant had not been subjected to any kind of physical pressure. S. and Sh. submitted that the applicant had tried to record his conversation with S. and when the latter had asked the applicant to give him the tape recorder, the applicant had dropped it on the floor and stepped on it. G. (an associate of the applicant, who had accompanied him to the Tax Police office) testified that he had seen the applicant through the window being beaten by S. It was established that it had not been physically possible for G. to have seen the events in question; in any event his testimony was rejected since he was “an interested person”. 14.  On 24 November 1998 the cash assets seized in 1996 were returned to the applicant. 15.  On 1 December 1998 the Kharkiv City Prosecutor's Office rejected the applicant's request to institute criminal proceedings against the tax police officers who had carried out the inspection on 16 August 1996. 16.  On 29 December 1998 the Kharkiv Regional Prosecutor's Office (прокуратура Харківської області) quashed the decision of 2 September 1998 and opened criminal proceedings to investigate the circumstances of the incident of 28 April 1998. It was stated that the applicant had indeed received moderately serious physical injuries but that the origin of these injuries was unknown. Therefore, more extensive investigation into the facts of the case was needed. 17.  On 9 and 19 April 1999 two additional forensic medical examinations were carried out. The experts held that there was not enough information to conclude that the head injury sustained by the applicant had been received between 28 and 30 April 1998. The bruises on the applicant's abdomen could have resulted from a blow inflicted three to five days before 29 April 1998. 18.  On 21 April 1999 the Kharkiv City Prosecutor's Office terminated the criminal proceedings for lack of evidence that the applicant had been beaten by S. 19.  On 14 January 2000 the Kharkiv Regional Prosecutor's Office quashed the decision of 21 April 1999, in particular because the hospital doctors who had examined the applicant had not been questioned, and remitted the case for additional investigation to the Kyiv District Prosecutor's Office (прокуратура Київського району м. Харкова). 20.  By a decision of 18 February 2000 the investigating officer of the Kyiv District Prosecutor's Office refused to recognise the applicant as a victim in the proceedings, on the ground of lack of proof that he had sustained moderately severe physical injuries. Following this decision the applicant refused to testify or participate in the investigation. 21.  On 29 June 2000 an investigator of the Kyiv District Prosecutor's Office terminated the criminal proceedings on the ground that the minor physical injuries sustained by the applicant could have been inflicted earlier than 28 April 1998 and that there was no evidence that they had been inflicted by S. In particular, there was no medical evidence to confirm when the applicant had received the head injury. The Tax Police employees testified that S. had not beaten the applicant and the only witness who testified otherwise (G.) had not physically been able to see the events in question; this had been confirmed in a reconstruction of the events. 22.  On 11 January 2001 the Kyivskyy District Court of Kharkiv quashed the decision of 29 June 2000 and ordered that the criminal proceedings be reopened. The court emphasised that the investigation had failed to find out how the applicant had received the injuries in question. 23.  On 5 April 2001 the applicant was declared a victim of an alleged crime. 24.  On 23 April 2001 the applicant introduced a civil claim for compensation for pecuniary damage against S. to be considered in the course of the criminal proceedings. 25.  On 14 August 2001 the Kharkiv Regional Prosecutor's Office refused to institute criminal proceedings for abuse of power against S., for want of corpus delicti. 26.  On 20 September 2001 a forensic medical examination concluded that on 29 April 1998 the applicant had had bruises on his abdomen which could have been inflicted on 28 April 1998. 27.  On 3 October 2001 the Kyiv District Prosecutor's Office discontinued the criminal proceedings for the infliction of moderately severe physical injuries, in the absence of evidence of a crime. 28.  On 10 October 2001 the Kharkiv Regional Prosecutor's Office quashed the decision of 3 October 2001 and remitted the case back for further investigation. 29.  On 12 November 2001 the Chervonozavodskyy District Court of Kharkiv quashed the decision of 14 August 2001. 30.  On 27 June 2002 a fresh medical examination again concluded that on 29 April 1998 the applicant had had bruises on his abdomen which could have been inflicted on 28 April 1998. 31.  On 27 August 2002 the Kharkiv City Prosecutor's Office terminated the criminal proceedings on the ground that it was not possible to establish with sufficient certainty that the injuries suffered by the applicant had been inflicted by S. Moreover, the injuries sustained (bruises on the applicant's abdomen) were classified as minor and in this case, according to Article 27 of the Code of Criminal Procedure, the applicant should have brought a private prosecution directly before the court. 32.  On 21 October 2002 the Kharkiv City Prosecutor's Office refused to institute criminal proceedings against S. on suspicion of burglary, for want of corpus delicti. It was stated that the applicant's tape recorder had been broken as a result of a dispute which had occurred on 28 April 1998 between the applicant and S. However, the applicant had provoked S.'s reaction by trying to record their conversation. 33.  By letters of 2 October, 6 and 20 November and 18 December 2002 and 2 January 2003, the Kharkiv Regional Prosecutor's Office informed the applicant that the criminal proceedings had been terminated lawfully. 34.  In March 2001 the applicant instituted defamation proceedings in the Chervonozavodskyy District Court of Kharkiv against the Kharkiv Regional Prosecutor's Office. He stated that he had submitted numerous complaints of violations to different State authorities. These had been forwarded to the Kharkiv Regional Prosecutor's Office, which in its response letters to the Ukrainian Parliament Commissioner for Human Rights, to the Member of Parliament, L., and to the Prosecutor General, had provided false information about the actions of the tax police in respect of the applicant's enterprise and about the investigation in the applicant's criminal case. 35.  On 2 October 2001 the court upheld the applicant's complaint. 36.  On 21 February 2002 the Kharkiv Regional Court of Appeal quashed the judgment of 2 October 2001 and rejected the applicant's complaint as unsubstantiated. 37.  On 1 October 2002 a panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal under the cassation procedure. 38.  On an unidentified date the applicant instituted proceedings in the Pecherskyy District Court against the Prosecutor General of Ukraine, claiming that he had unlawfully refused to examine the applicant's complaints. On 27 January 2004 the court returned the applicant's complaint as he had failed to comply with the procedural requirements.


5.  The applicant companies carry out the slaughter of cattle and pigs, which makes them liable under the Agricultural Market Act (Agrarmarktgesetz) to pay agricultural marketing charges, calculated on the basis of the number of animals slaughtered, to Agrarmarkt Austria (“AMA”), the national agricultural marketing board. 6.  In 2006 AMA issued payment orders against the applicant companies. On 5 July 2006 it ordered the first applicant company to pay outstanding contributions for the years 2003 and 2004 in the amount of 56,573.62 euros (EUR) and, in addition, imposed a surcharge for failure to pay, amounting to 10% of the unpaid contributions. On 30 May 2006 it ordered the second applicant company to pay outstanding contributions for the years 2004 and 2005 in the amount of EUR 12,556.43 and imposed a surcharge of 10%. On the same date it ordered the third applicant company to pay outstanding contributions for the years 2005 and 2006 in the amount of EUR 5,936.01, imposing a surcharge of 10%, and ordered the fourth applicant company to pay outstanding contributions for the years 2005 and 2006 in the amount of EUR 96,050.48, imposing a surcharge of 60%. 7.  The applicant companies appealed against these orders. They argued that the above system was contrary to European Union rules on state aid. They also asked for oral hearings to be held in their appeals. 8.  The Federal Minister of Agriculture, Forestry, the Environment and Water (Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft), acting as the appeal authority, dismissed the applicant companies’ appeals on 17 July 2006 without holding a hearing. 9.  The applicant companies argued that AMA contributions were levied for financing activities, such as AMA’s quality programme, which were not in compliance with EU law. However, the Federal Minister found that, after a decision of the European Commission of 30 June 2004 (C(2004)2037), the applicant companies had been in a position to know precisely which charges they had to pay. In that decision, the European Commission had stated that it had no objection to AMA’s quality assurance scheme and quality mark, registered as state aid under notification number NN 34A/2000 (“Qualitätsprogramme und das AMA-Biozeichen und das AMA-Gütesiegel”), because that state aid was in accordance with the Common Market provided for in the Treaty establishing the European Community (“the EC Treaty”). The Federal Minister referred further to the Administrative Court’s decision no. 2005/17/230 of 20 March 2006, in which the court had also found that the levying of AMA contributions was in compliance with the relevant provisions of EU law. The Federal Minister further held that it had not been necessary to hold a hearing, because a hearing was only held if a decision had been taken by a panel on an appeal against the decision of a tax office or a regional directorate of finance, which was not the case here. 10.  Thereupon, the applicant companies lodged complaints with the Constitutional Court and the Administrative Court against the Federal Minister’s decision. Before the Constitutional Court they complained that the surcharges imposed had violated their constitutional right to property. Before the Administrative Court, they complained that the appeal authority had not been a court within the meaning of the case-law of the European Court of Justice, with the result that they had been prevented from having the lawfulness of the European Commission’s decision of 30 June 2004 reviewed by the European Court of Justice in proceedings under Article 234 of the EC Treaty. As regards the imposition of the surcharges, the applicant companies complained that the findings of fact made by the authorities in imposing those surcharges had been insufficient. In particular the authorities had failed to establish whether the objective and subjective elements of the offence (objektiven und subjektiven Tatbildvoraussetzungen) had been met. Relying on Article 6 of the Convention, they further complained that there had not been a public hearing and that the criminal charges against them had not been decided by an impartial tribunal established by law (“es ist kein unparteiisches, auf Gesetz beruhendes Gericht über den erhobenen strafrechtlichen Vorwurf eingeschritten”). As the authorities imposing the surcharges had failed to hold an oral hearing, the applicant companies asked the Administrative Court for a public hearing. 11.  On 25 September 2006 the Constitutional Court declined to deal with the applicant companies’ complaints under Article 144 of the Federal Constitution for lack of prospects of success. 12.  The Administrative Court dismissed the applicant companies’ complaints on 30 January 2007 in separate decisions and held as follows:
“The present case does not differ in [substance] to the [case] decided by the Administrative Court on 20 March 2006, no. 2005/17/230. Pursuant to Section 43(2) of the Administrative Court Act reference is made to it.
For the reasons set out in that decision, the breach of law complained of by the applicant company also does not exist in the present case, for which reason it can be dismissed without further proceedings in camera.
For the reasons set out in the decision referred to, Article 6 of the Convention is also of no relevance here.”


4.  In 1992 the applicant was working for a pharmaceuticals company. 5.  In March 1992 the Elin Pelin Investigation Service opened a preliminary investigation into the attempted theft of ten barrels of chemicals from the company premises. In April and May 1992 the applicant and two other employees were charged. 6.  On 2 July 1992 the investigator finished his work on the case and sent the file to the Elin Pelin District Prosecutor’s Office. On 15 July 1992 that Office dropped the charges against the applicant’s co‑accused and on 24 July 1992 indicted the applicant. 7.  At a hearing held on 27 October 1992 the Elin Pelin District Court found indications that the applicant’s co‑accused might have been involved in the commission of the offence and referred the case back for further investigation. 8.  Following additional inquiries, on 23 March 1993 the investigator charged the applicant and the two other employees anew and on 31 March 1993 sent the file to the Elin Pelin District Prosecutor’s Office. 9.  On 3 May 1993 the Elin Pelin District Prosecutor’s Office again dropped the charges against the applicant’s co‑accused. Upon the appeal of the applicant, on 7 June 1993 the Sofia Regional Prosecutor’s Office confirmed this decision. Upon the applicant’s further appeal, on 9 August 1993 the Chief Prosecutor’s Office found that the facts of the case had not been sufficiently elucidated, quashed the decision and referred the case back for further investigation. 10.  Following an additional investigation, in December 1993 the applicant and the two other employees were charged anew and in January 1994 the file was sent to the Elin Pelin District Prosecutor’s Office. 11.  On 3 February 1994 the Elin Pelin District Prosecutor’s Office referred the case back to the investigator, finding that the facts had not been sufficiently elucidated and that the applicant and one of his co-accused had been questioned in the absence of their counsel. 12.  After addressing these omissions, on 7 March 1994 the investigator sent the file to the Elin Pelin District Prosecutor’s Office. 13.  On 14 March 1994 the Elin Pelin District Prosecutor’s Office dropped the charges against the applicant’s co‑accused and on 27 June 1994 indicted the applicant. 14.  The Elin Pelin District Court examined the case in six hearings which took place between October 1994 and November 1995. It heard a number of witnesses. Three of the hearings were adjourned because certain witnesses, despite being duly subpoenaed, failed to appear. One hearing failed to take place because the prosecutor was absent and one was adjourned to allow the applicant to call additional witnesses. 15.  In a judgment of 30 November 1995 the Elin Pelin District Court found the applicant guilty and sentenced him to one year and three months’ imprisonment, suspended. 16.  Both the applicant and the prosecution appealed. 17.  The Sofia Regional Court, after adjourning one hearing upon the request of the applicant’s counsel, who had not had enough time to prepare due to the late arrival of the file in the court’s registry, examined the appeal at a hearing held on 26 February 1996. 18.  On 27 February 1996 the Sofia Regional Court quashed the lower court’s judgment and remitted the case to the preliminary investigation stage. It found that the lower court had failed to apprise the applicant of his rights to defend himself and to request the recusal of the judges. It also found that the value of the chemicals had not been assessed by an expert and that the lower court’s findings of fact had not been sufficiently supported by the evidence. 19.  Following additional inquiries, on 15 May 1996 the applicant was charged anew and the file was sent to the Elin Pelin District Prosecutor’s Office. On 8 July 1996 that Office found that the facts had not been sufficiently elucidated and referred the case back to the investigator. 20.  On an unspecified date the investigator sent the file to the Elin Pelin District Prosecutor’s Office without having carried out any investigative steps. Accordingly, on 10 October 1996 that Office referred it back. 21.  Following a few additional inquiries, on 8 June 1999 the investigator sent the file to the Elin Pelin District Prosecutor’s Office with a proposal to drop the charges against the applicant. Finding that its instructions had not been complied with, on 4 October 1999 that Office once more referred the case back to the investigator. 22.  After questioning five witnesses between October 1999 July 2000, on 18 July 2000 the investigator sent the file to the Elin Pelin District Prosecutor’s Office. After partially reformulating the charges against the applicant on 29 November 2000, on 15 January 2000 that Office again referred the case back to the investigator with instructions to clarify certain aspects of the commission of the offence. 23.  On 26 February 2001 the applicant was charged anew. On 28 February 2001 the file was sent to the Elin Pelin District Prosecutor’s Office, which indicted the applicant on 21 June 2001. 24.  The Elin Pelin District Court examined the case in six hearings which took place between September 2001 and June 2002. It heard a number of witnesses and one expert. Three of the hearings were adjourned because of the absence of witnesses who had not been duly subpoenaed. One hearing was adjourned because the applicant had not been summoned and consequently did not appear. One of the adjournments was also due to the applicant’s request to call additional witnesses. 25.  In a judgment of 10 June 2002 the Elin Pelin District Court found the applicant guilty. It sentenced him to three months’ imprisonment, suspended – below the statutory minimum. In determining the sentence it took into account the applicant’s lack of prior convictions, the lack of information that he was of bad character, the long lapse of time between the commission of the offence and the handing down of the court’s judgment, and the fact that the offence had remained inchoate. 26.  The applicant appealed. 27.  After holding a hearing on 28 October 2002, on 11 November 2002 the Sofia Regional Court upheld the conviction and sentence, with one slight modification relating to the legal characterisation of the offence. 28.  The applicant appealed on points of law. 29.  After holding a hearing on 17 March 2003, on 31 March 2003 the Supreme Court of Cassation upheld the lower court’s judgment.


4.  The applicant was born in 1958 and lives in Syktyvkar, Komi Republic. 5.  The applicant and his family were living in a wooden house owned by the municipality on the riverside in Sedkyrkeshch settlement of Syktyvkar. From 1995 the applicant had repeatedly informed the local authorities that the river was overflowing and the house was at risk of destruction. 6.  In the spring of 1998 the town administration made the applicant a few offers of a temporary dwelling. However, the applicant found it unsatisfactory and refused to move. On 18 May 1998 the applicant’s house was flooded, and the applicant’s family moved to his parents’ flat. 7.  On 13 July 1998 the applicant lodged a claim against the Syktyvkar town administration, seeking to be provided with a flat of a total surface area of not less than 36 sq. m. or to receive housing subsidy. He also sought compensation for pecuniary and non-pecuniary damage. 8.  The first hearing was scheduled for 10 August 1998, but it did not take place due to the parties’ default in appearance. The hearing of 26 April 1999 did not take place for the same reason. 9.  On 20 May 1999 the town administration requested that examination of the case be postponed until their representative returned from vacation. The applicant and his representative appeared at the hearing of 7 June 1999, which was adjourned to 21 September and then to 26 October 1999 on account of involvement of the Sedkyrkeshch settlement administration as a co-respondent and to give the applicant time to specify his claims. 10.  On 26 October 1999 the Syktyvkar Town Court (“the Town Court”) partly found for the applicant and obliged the town administration to provide him with a flat. His other claims were dismissed. 11.  On 7 December 1999 in a separate judgment the Town Court awarded the applicant legal expenses in the amount of 2,008 Russian roubles (RUB). 12.  On 27 January 2000 the Supreme Court of the Komi Republic (“the appeal court”) overturned the judgment of 26 October 1999 on appeal and remitted the case for fresh consideration. 13.  The parties did not appear at the hearing of 28 March 2000, which was adjourned to 25 September 2000. On the latter date the hearing took place and was adjourned, with the applicant having been invited to specify his claims. 14.  On 26 January 2001 the trial court required that the town administration supply certain documents. 15.  The hearing of 30 October 2001 did not take place as the respondent’s representative failed to appear. On 26 February and 10 October 2002 the hearings were adjourned to give the applicant time to adjust his claims for non-pecuniary damage and to resolve an unspecified motion. On 29 November 2002 the hearing was adjourned following a default in appearance of one of the lay judges sitting in the case. 16.  On 22 January and 8 May 2003 the applicant challenged judge L. on account of procrastination in consideration of the case. On 16 September 2003 the case was assigned to judge N. 17.  On an unspecified date the applicant renounced his claim for provision of housing, now seeking to be placed on the waiting list of persons entitled to State-funded housing subsidy, for the amount of the subsidy to be determined and to receive compensation for pecuniary and non-pecuniary damage. He also sought reimbursement of legal expenses. 18.  On 2 October 2003 the court gave a new judgment in which it ordered the authorities to place the applicant on the waiting list and to determine the amount of subsidy due to him. It also granted the applicant’s pecuniary claim for RUB 12,000. The rest of his claims for pecuniary and non-pecuniary damage were dismissed. On the same date the court terminated the proceedings concerning reimbursement of legal expenses ruling that the issue had already been decided on 7 December 1999. 19.  On 20 November 2003 the appeal court upheld the judgment on appeal. 20.  On 25 February 2004 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 7 December 1999 which had awarded the applicant legal expenses by way of supervisory review. On 18 March 2004 the applicant learned about this decision and brought new claims for reimbursement of legal expenses. 21.  On 19 March 2004 the sum of RUB 12,000 was transferred to the applicant’s bank account and the enforcement proceedings in this part were terminated. 22.  The hearings of 9 and 23 April 2004, scheduled for examination of the legal expenses claim, did not take place as the applicant failed to appear. 23.  On 14 May 2004 the Town Court disallowed his claim. However, this judgment was overturned on appeal, and a new hearing was required. On 16 July 2004 the Town Court granted his claim and awarded him RUB 4,433. The award was enforced on 2 September 2004. 24.  On 3 February 2005 the bailiff terminated the enforcement proceedings concerning the applicant’s housing claims. It transpires from the text of the decision that on 24 November 2004 the town administration informed the bailiff service that it had determined the amount of the housing subsidy for the applicant, and on 30 December 2004 it stated that the applicant had been placed first on the shortlist of persons entitled to State housing subsidy following destruction of their homes by natural disaster. However, in a copy of the town administration’s letter to the bailiff service of 24 November 2004 obtained by the applicant the author advised that the applicant had been placed on the list of persons in need of improved housing conditions at number 4,134. 25.  The applicant appealed against the decision to terminate the enforcement proceedings. His complaint was first granted by the Town Court which noted that the bailiff had not been in possession of any evidence, other than the respondent’s letters, that the in-kind awards had indeed been enforced. However, this judgment had been set aside on appeal on 28 March 2005.


8.  In the late evening of 29 April 1993, the father of S., born in 1985, laid a criminal information against the applicant, alleging that the applicant, her private music teacher, had sexually abused S. during an individual music lesson that afternoon. S. and her mother were questioned at the local police office on the afternoon of 30 April 1993. S. was heard by a police officer and confirmed her father’s statements. S.’s mother stated that S. had been very disturbed after her music lesson and that she had later confided in her mother. 9.  On 10 January 1994 the Künzelsau District Court, sitting with a single judge, convicted the applicant of having committed the offence of sexual abuse of a child in concurrence with the offence of sexual abuse of a charge. He was sentenced to seven months’ imprisonment on probation.
In establishing the relevant facts, the court relied on the statements made by the mother concerning her daughter’s account of the relevant events, her behaviour after the music lesson on 29 April 1993 and her character in general, and also on the evidence given by the police officer who had questioned S. shortly after the offence in April 1993.
The court dismissed the applicant’s request for a psychological expert opinion regarding the credibility of S.’s statements on the ground of the court’s own professional experience, acquired as a judge in family matters, in evaluating statements made by children.
Moreover, the court observed that it had not been reasonable to hear S. herself, as, according to her mother, she had meanwhile repressed her recollection of the event in question and would seriously suffer if reminded thereof. If S. were to be examined, this would not contribute to a further clarification of the facts, but seriously impair her personal development. 10.  The applicant appealed to the Heilbronn Regional Court, requesting his acquittal. In the appeal proceedings, he was assisted by counsel. 11.  On 17 March 1995 the Heilbronn Regional Court dismissed the applicant’s appeal against his conviction of sexual abuse of a child, but set aside the conviction of sexual abuse of a charge. The sentence to seven months’ imprisonment on probation was upheld.
The Regional Court noted that the applicant had denied having sexually abused S. It found that his guilt could be established on the basis of the evidence before it, i.e. the statements made by S.’s mother and the police officer as well as a psychological expert opinion on the question of S.’s credibility, ordered in the context of the appeal proceedings. In her report of November 1994, the expert, who had questioned S. in October 1994, confirmed that S.’s statements were credible.
The Regional Court considered that the absence of S.’s testimony in court constituted a serious shortcoming in the taking of evidence. In this respect, it noted that the parents had refused to bring their daughter to court on account of the risk that her state of health would deteriorate as she suffered from neurodermatitis. According to the Regional Court, the parents’ refusal was understandable. In this respect, the Regional Court had regard to a medical certificate confirming the parents’ statements and the findings of the psychological expert that S.’s state of health would most likely deteriorate again if she were to be heard anew on the event in question. Taking into account that S.’s statements had been reported by her mother and by the police officer and that an expert opinion on her credibility had been prepared, the Regional Court, considering the rather trivial nature of the charge and the sentence at stake, reached the conclusion that S. was to be regarded as a witness out of reach. 12.  On 2 August 1995 the Stuttgart Court of Appeal dismissed the applicant’s appeal on points of law. 13.  On 18 January 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint, leaving open the question whether the complaint had been lodged in time.


11.  The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano. 12.  He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder. 13.  In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology. 14.  The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture. 15.  On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”). 16.  On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title. 17.  By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda. 18.  On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them). 19.  On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant. 20.  On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder. 21.  On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30 November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance. 22.  On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant. 23.  On 10 September 2002 Switzerland became a member of the United Nations. 24.  When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized. 25.  On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban. 26.  On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border. 27.  On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him. 28.  By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant. 29.  On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions. 30.  By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list. 31.  On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”). 32.  By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure. 33.  On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex 2 to the Taliban Ordinance. 34.  On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25 September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation. 35.  On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list. 36.  By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6 July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal. 37.  In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence. 38.  The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law (jus cogens), he argued that Switzerland was not obliged to implement them. 39.  By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12 July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20 July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision. 40.  On 29 October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28 November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting. 41.  By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits. 42.  It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council. 43.  The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression). 44.  The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime. 45.  However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article 103 of the Charter, taken together with Article 30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations. 46.  The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens. Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed. 47.  The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens. 48.  As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows:
“7.4  ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment.
The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)).
...” 49.  The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights. 50.  The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude (Ermessensspielraum) in implementing them:
“8.1  The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)).
The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)).
As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12 February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list.
Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance.
... 8.3  In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance.
It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights.
The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...” 51.  The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows:
“9.1  The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity. 9.2  For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses.
United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ...
On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.” 52.  Lastly, the Federal Court examined whether the travel ban enforced under Article 4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows:
“10.1  Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions.
According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ... 10.2  Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation.
The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions.
The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval. 10.3  The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings.
The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.” 53.  Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21 February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision. 54.  On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court.
During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient.
As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council. 55.  The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6. 56.  On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15 July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand. 57.  On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation. 58.  By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12 December 2008, did not affect his situation. 59.  In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant. 60.  On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list. 61.  On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban. 62.  On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009. 63.  By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example. 64.  The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory panel of independent experts authorised to submit delisting proposals to the Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked intensively with its partners to ensure that the Resolution on the renewal of the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption in December, met that need. In the meantime Switzerland had supported the publication in October 2009 of a report proposing, as an option for an advisory review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security Council adopted Resolution 1904 (2009), setting up the office of ombudsperson to receive complaints from individuals affected by the United Nations Security Council counterterrorism sanctions (see paragraph 78 below). Lastly, Switzerland had called on many occasions, before the United Nations Security Council and General Assembly, for an improvement in the procedural rights of the persons concerned by the sanctions.


6.  The applicant was born in 1934 and lived in Belgorod. 7.  The applicant received an old-age pension. The Law of 21 July 1997 on the Calculation and Upgrading of State Pensions (“the Pensions Act”) introduced, from 1 February 1998 onwards, a new method for calculating pensions. The idea behind this method, based on what is known as an “individual pensioner coefficient”, was to link the pension to the pensioner's previous earnings. 8.  The authority in charge of the applicant's pension, the Pension Fund Agency of Belgorod (“the Agency”), fixed the applicant's coefficient at 0.525. The applicant challenged the Agency's decision in the Sverdlovskiy District Court of Belgorod. She argued that her coefficient should be 0.7 from 1 February 1998. 9.  On 1 July 1999 the District Court found for the applicant, considering that the Agency had misinterpreted the Pensions Act. It decided that the Agency was to recalculate the applicant's pension using a coefficient of 0.7. 10.  The Agency appealed against the judgment. On 19 October 1999 the Belgorod Regional Court upheld the judgment, which became enforceable on the same day. The judgment was never executed. 11.  On 29 December 1999 the Ministry of Labour and Social Development (“the Ministry”) issued an Instruction on the “Application of Limitations” established by the Pensions Act (“the Instruction”). The Instruction clarified how to apply the Pensions Act. 12.  On 12 January 2000 a Deputy Prime Minister wrote a letter to the Prosecutor General. She complained that throughout the country courts had been deciding in pensioners' favour based on a manifestly wrong interpretation of the Pensions Act, and that the Pension Fund was unable to meet the unforeseen expenses. She asked the Prosecutor General to ask the Supreme Court to reconsider one such judgment to create a pilot case. 13.  Some time thereafter a group of individuals challenged the Instruction before the Supreme Court of the Russian Federation. On 24 April 2000 the Supreme Court dismissed the complaint. It found that, contrary to what the complainants had suggested, the Ministry of Labour had not acted ultra vires in issuing the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. On 25 May 2000 the Cassation Division of the Supreme Court upheld this judgment on appeal. 14.  On 25 May 2000 the Agency lodged an application with the District Court for the reconsideration of the applicant's case owing to newly discovered circumstances on the basis of the Instruction, which supported their position. They argued that the Instruction had been upheld by the Supreme Court. 15.  On 14 September 2000 the District Court examined the Agency's request. The Agency maintained that the interpretation of the Pensions Act in the Instruction was a newly discovered circumstance which warranted the quashing of the judgment. The applicant submitted that the Agency had missed the statutory time-limit for requesting the reconsideration. 16.  The District Court held as follows:
“... the court considers that the application by the Pension Fund Agency of Belgorod is to be granted for the following reasons:
On 29 December 1999 the RF Ministry of Labour and Social Development issued an instruction on the application of the Federal Law on the Calculation and Upgrading of State Pensions. The lawfulness of the instruction was subject to examination by the RF Supreme Court ... which established its compliance with the provisions of the civil legislation.
... the Pension Fund Agency of Belgorod did not request the reconsideration of the judgment of 1 July 1999 until after the examination of the application [challenging the lawfulness of the Instruction] by the RF Supreme Court... Therefore the Agency had missed the statutory time-limit for requesting the reconsideration for good reason.
Taking into account the above-mentioned reasons the court considers that the judgment ... of 1 July 1999 is to be quashed owing to newly discovered circumstances.” 17.  In a decision of 14 September 2000 the District Court granted the Agency's application and quashed the judgment of 1 July 1999. 18.  As a result of the fresh examination of the case the District Court delivered a judgment of 14 September 2000 in which it rejected the applicant's claims in full. The applicant appealed against the judgment. On 31 October 2000 the Belgorod Regional Court dismissed the applicant's appeal and upheld the judgment of 14 September 2000. 19.  From 1 May 2001, following changes to the pension regulations, the applicant's pension was calculated based on a coefficient exceeding 0.7. According to the Government the coefficient was fixed at 0.84.


5.  The applicants were born in 1990 and 1989 respectively and live in Chişinău. 6.  The present case concerns the circumstances surrounding the killing of the applicants’ 29-year-old brother Alexei Vlasi during a police operation on 14 March 2009. 7.  On that date at approximately 10.20 p.m. three plain-clothed police officers (N., B. and C.) entered a five-storey apartment block to arrest a person suspected of armed robbery. According to their information, the suspect in question was supposed to be visiting his ex-girlfriend M. that evening, who lived on the fourth floor of the building. 8.  At the same time, M. was coming down the stairs from the fourth floor with a group of four friends. None of them was the suspect wanted by the police. Two young women (S. and Z.) and a young man (G.) were at the front of the group and they passed the police officers between the third and second floor. 9.  Upon passing the first part of the group one of the police officers immediately apprehended G. Alexei Vlasi and M. were several storeys up and saw the police officers as they approached the rest of the group. Two police officers rushed after Alexei Vlasi, who started to run back up the stairs. They apprehended him on the fifth floor. Shortly afterwards, one of the police officers shot him in the back of the head at very close range. He died instantly. 10.  An investigation followed, during which all the witnesses and police officers were questioned. There were two versions of events: that of the group of friends coming down the stairs with the victim (the witnesses), and that of the police officers. 11.  The witnesses’ version was that two police officers, N. and C., were armed with pistols which they were holding upwards. Upon passing the first part of the group, the officers saw that there was someone else upstairs and ran in that direction, leaving the first part of the group with police officer N. They then told police officer N. to come upstairs with the rest of the group. After apprehending Alexei Vlasi somewhere on the fifth floor, police officers B. and C. started to beat him up. All the members of the group recounted an almost identical description of what they had heard and the conversation that had taken place between the two police officers and Alexei Vlasi. According to them, one of the police officers (B.) called Alexei Vlasi by his first name and told him to follow them. In response, he addressed B. by his first name and told him to stop beating him up. Sounds of someone being beaten up were heard and Alexei Vlasi threatened to report his injuries to a forensic doctor. The manner in which he said this last sentence was very specific, as he used a mixture of both Romanian and Russian words and the witnesses recounted it in the same manner. It later transpired that police officer B. and Alexei Vlasi already knew each other, as in 1999 the latter had been arrested by the former for bicycle theft. 12.  The encounter between police officers B. and C. and Alexei Vlasi took place on the fifth and top floor. Two of the witnesses M. and G. were the closest to the scene at the time, being held by police officer N. on the fourth floor. The fourth floor was separated from the fifth floor by two flights of stairs going in opposite directions joined by an intermediate landing. M. (who also already knew police officer B.) started to shout at him, telling him to leave Alexei Vlasi alone. She called him by his first name and tried to get past police officer N. in order to help Alexei Vlasi. In her struggle with police officer N. she could partly see what was happening on the fifth floor. G. was also there. According to them, police officer B. grabbed Alexei Vlasi by his right hand while officer C. grabbed him by his left hand and started to make his way down the stairs from the fifth floor to the landing between the fifth and fourth floors. At about the third from last step, Alexei Vlasi was facing the handrail and grabbed it. The police officers who were behind him bent him over and, according to one of the witnesses, held both his hands behind his back. According to another witness, one of his hands was on the handrail while the other was held by a police officer behind his back. Police officer C. was holding his pistol at the back of Alexei Vlasi’s head while he was bent over. Police officer B. punched him in the ribs and he repeated again that he would be reporting his injuries to a forensic doctor. Immediately afterwards, he was shot in the back of the head by police officer C. at very close range. He collapsed on the landing between the two flights of stairs, with his feet on the stairs and his body on the landing. Blood started to spurt out of his head wound. M. shouted: “He shot him straight in the head!” and her first reaction was to try to stop him losing any more blood with her hands. In what appeared to be an attack of hysteria she started to scream and to attack police officer B. and shouted “Why did you do that?” Another female friend in the group approached her from behind, hugged her and tried to pull her away from the body. 13.  According to the witnesses, Alexei Vlasi did not have anything in his hands after collapsing to the ground. Police officer B. asked officer C.: “What the hell did you do?!” C. did not respond with anything intelligible but remained still, holding his head in his hands. One of the witnesses said they heard him respond in a low voice: “I didn’t want to do that”. He was very pale. According to the witnesses he did not have any visible injuries and could walk perfectly well. Immediately afterwards, officer B. ordered all the witnesses to go into M.’s apartment on the fourth floor. He and police officer N. pushed everybody into her apartment and closed the door. Police officer N. was holding the doorknob so that nobody could leave. Many of the neighbours started to look out of their apartments but the police officers ordered them all to close their doors and stay inside. 14.  According to the police officers, when Alexei Vlasi ran up the stairs, they thought he was the suspect they had been after. They claimed to have been convinced that the victim was the suspect they were looking for and that they only realised their mistake after he had been shot. However, during a confrontation which took place later, police officer B. admitted he had known Alexei Vlasi for a long time. The following description of the police officers’ version of events was made after a video reconstruction of the scene, which was filmed during the investigation with the participation of police officer C. on 7 August 2009. Police officer B. recounted an identical version of events. 15.  Police officer B. chased Alexei Vlasi and approached him from behind on the landing of the top, fifth floor. He put his hand on his shoulder, called him by the name of the wanted suspect, announced that he was a police officer and asked him to come with him. At that moment Alexei turned around and punched police officer B. in the face with his right fist and attempted to run down the stairs. When he punched police officer B. he did not have anything in his hand. Police officer B. was pushed into a wall on his right and lost his balance. However, police officer C., who had already approached them from behind, managed to apprehend Alexei Vlasi by pulling his left arm near his shoulder (in his initial statement police officer C. stated that he had apprehended him by the collar of his jacket). The apprehension took place on the top three steps of the flight of stairs leading to the fifth floor. Police officer C. was behind Alexei Vlasi on a higher step, holding his hand with his left hand and holding his pistol pointed upwards in his right hand. At that moment, without changing his position, Alexei Vlasi stabbed police officer C. in the right thigh with a knife, which he had been holding in his right hand in reverse grip. Then, without changing the position of the knife, Alexei Vlasi attempted to turn to his left and to stab police officer C. in the face. According to police officer C., Alexei Vlasi had been standing upright. Fearing for his life, police officer C. pulled the trigger of the pistol he was still holding upwards and shot him in the upper neck. The police officers did not say how the victim’s body ended up on the landing between the fifth and fourth floor some six or seven steps lower, but it is reasonable to infer that it rolled down by itself before slumping at the bottom of the stairs. 16.  A criminal investigation was formally initiated on 15 March 2009. According to a report describing the scene, Alexei Vlasi’s body was lying in a pool of blood on the intermediate landing between the fourth and fifth floors. There was an open small pocket knife with a lock mechanism with a blade 6.5 cm long in the palm of his right hand. His feet were on the first two steps of the flight of stairs leading to the fifth floor. There were traces of blood on those steps. The report contains pictures of areas stained with blood, such as the landing where the body was lying, the walls around it, and the landing between the third and the fourth floor, where blood had run down from above. No traces of blood appear to have been found above the steps on which the victim’s feet were located. On the wall above the sixth step of the flight of stairs going down to the fourth floor from the landing where the body was lying, there was a bullet hole 2.3 metres above the step, exactly opposite where the witnesses alleged the victim had been shot when facing the handrail. 17.  During the investigation, the Chişinău prosecutor’s office obtained several forensic reports which found, inter alia, that the entry wound was on Alexei Vlasi’s upper left neck and the exit wound was on the right side of his forehead above his eyebrow. According to the forensic report, the shot was fired at such close range that gunshot residue was present on the victim’s skin around the entry wound. Another forensic report found that the police officer who had shot him had had an injury to his right thigh made by a knife wound and the other police officer who had allegedly been punched in the face by Alexei had had a bruise on his face. Another expert report did not find any fingerprints on the knife found in Alexei Vlasi’s palm after his death. 18.  On 21 September 2009 the Chişinău prosecutor’s office decided to discontinue the criminal investigation on the grounds that the police officer who shot Alexei Vlasi had acted in self-defence. The prosecutor’s office was based on the police officers’ version of events. The applicants challenged the above decision before the Prosecutor General’s Office. 19.  On 9 October 2009 a deputy Prosecutor General quashed the above decision on the grounds that it was based exclusively on the police officers’ version of events and that no consideration was given to the witnesses’ statements. The investigator had failed to determine the exact place of the shooting and the victim’s position in relation to the shooter. Moreover, no ballistics test had been conducted in order to determine the trajectory of the bullet. 20.  In the reopened investigation some of the witnesses were re-questioned. One of them, G., changed his statements and submitted that he had not seen or heard anything, but later claimed that he had only done so because he had been pressured and threatened to do so by the accused police officers. 21.  A ballistics test was carried out with the help of an assistant standing where the police officers alleged the victim had been standing at the time of shooting. The assistant had a cabbage placed on his shoulder, near his head. Through a hole pierced in the cabbage, a thread was led to the bullet hole in the wall, which was considerably lower than the cabbage. Taking into consideration the positions of the entry and exit wounds on the victim’s head, it was concluded that, at the moment of the shooting, the victim had been bent over and not standing upright as suggested by the police officers in their version of events. 22.  On 30 June 2010 the Chişinău prosecutor’s office again discontinued the criminal proceedings on similar grounds as the first time, namely on the basis of the police officers’ version of events. It does not appear that the prosecutor attempted to reconcile the findings of the ballistics test with the police officers’ version of events concerning the circumstances of Alexei Vlasi’s shooting. The applicants appealed. 23.  On 22 July 2010 a hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge. 24.  On 20 October 2010 an investigating judge from the Rascani District Court upheld the applicants’ appeal, quashed the decisions of 30 June and 22 July 2010 and ordered a re-investigation of the case. He concluded that the investigation had been incomplete and that the conclusions reached by the investigators were inconsistent with the evidence in the case file. The investigating judge also noted that no confrontations had been carried out between all the witnesses and the accused officers, no importance had been attached to the fact that no fingerprints had been found on the knife the victim had allegedly stabbed police officer C. with, and that the investigation had not been conducted within a reasonable time. 25.  Following the investigating judge’s decision, the applicants applied to the Prosecutor General’s Office with a request to have the case removed from the Chişinău prosecutor’s office on account of its bias and to have it transferred to another prosecutor’s office. On 8 November 2010 a deputy Prosecutor General rejected the applicants’ request as ill-founded. 26.  On 27 April 2011 the Chişinău prosecutor’s office questioned witness M. again. On 17 May 2011 witness G. was questioned again. He submitted having seen police officer B. stabbing police officer C. in his thigh with a knife before being forced into M.’s apartment after the shooting. According to him, this took place between the third and the fourth floor and he had mentioned it during his initial questioning, but no record had been made. Confrontations were organised between M. and police officer B. and between G. and police officer B. on 20 and 24 May 2011, during which each party maintained their statements. 27.  On 21 July 2011 witness G. took a lie-detector test to determine whether his statement about police officer B. stabbing police office C. with a knife was truthful. The test result was negative, i.e. G.’s statement was not truthful. 28.  On 15 September 2011 the Chişinău prosecutor’s office again discontinued the criminal investigation on similar grounds as the previous occasions. The results of the lie-detector test were added to the decision. The applicants appealed against it and argued that the results of the lie‑detector test were inadmissible because the test had been carried out by colleagues of the accused police officers rather than by independent experts. 29.  On 20 October 2011 the hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge. 30.  On 12 December 2011 an investigating judge from the Rascani District Court upheld the applicants’ appeal, again finding that the investigation had been incomplete. The judge also declared the results of the lie-detector test inadmissible. 31.  On 13 April 2012, without conducting any further investigative measures, a prosecutor from the Chişinău prosecutor’s office again discontinued the criminal investigation. The content of the decision was identical to that of the decision of 15 September 2011, including reference to the lie-detector test. 32.  On 9 July 2012 the hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge. 33.  On 16 October 2012 an investigating judge from the Rascani District Court again upheld the applicants’ appeal, quashed the decisions of 13 April and 9 July 2012 and ordered a reopening of the investigation. 34.  On 11 March 2013 a prosecutor from the Chişinău prosecutor’s office again discontinued the criminal investigation. 35.  On 22 April 2013 the hierarchically superior prosecutor dismissed the applicants’ appeal. They appealed to an investigating judge. 36.  On 19 July 2013 an investigating judge from the Rascani District Court again upheld the applicants’ appeal, quashed the decisions of 11 March and 22 April 2012 and ordered a reopening of the investigation. The investigation appears to be pending to date.


5.  The applicant was born in 1937 and lives in Bitola. He worked for “Aparati za domakinstvo”, a socially-owned company which was later restructured under the Government’s decision of August 1997 allowing its transformation. 6.  On 21 February 1997 the applicant was reassigned to the post of technologist with the stated aim of increasing productivity and efficiency and improving operations. 7. On 17 March 1997 the applicant brought a civil action seeking to have the reassignment annulled since, in thirty years with the same employer, he had never worked as a technologist. 8.  On 21 May 1997 the Bitola Court of First Instance (“the first-instance court”) dismissed the applicant’s claim. On 29 September 1997 the Bitola Court of Appeal quashed this decision ordering the lower court to examine what had been the applicant’s status with the employer; whether and how had the bankruptcy proceedings, initiated meanwhile against the employer, affected the applicant’s employment and whether the employer had been restructured. 9.  On 30 September 1998 the first-instance court annulled the employer’s decision of 27 May 1997 dismissing the applicant (in respect of which the applicant had brought a separate action). According to the Government, in these proceedings the applicant had sought to have the proceedings concerning his reassignment suspended. 10. On 29 March 1999 the applicant’s claim was upheld at first instance. The court held that although the reassignment decision had referred to the relevant provisions of the Labour Act and the General Collective Agreement (see “Relevant domestic laws” below) it had not provided the applicant with concrete reasons for his reassignment. In this connection, it stated that section 27 of the Labour Act had been of a declaratory nature without providing any concrete reason for reassignment. On 29 September 1999 the Bitola Court of Appeal quashed this decision finding that the reassignment decision had provided reasons for the applicant’s reassignment. However, it ordered the first-instance court to determine whether the reassignment had been justified. 11. On 26 March 2001 the first-instance court, deciding the case for the third time, upheld the applicant’s claim and annulled the reassignment decision. The court established that the applicant had worked for the same employer since 1966 in different posts and that no concrete reasons had been given for his reassignment. In this latter respect, it referred to a court annulment, for lack of concrete reasons, of the reassignment of Mr R.V., the applicant’s colleague, which had been based on the same grounds, as the applicant’s (see paragraph 6 above, П.бр. 680/97 of 9 June 1999). Noting that the reassignment decision had been rendered under section 27 of the Labour Act and section 11 of the General Collective Agreement, it stated, inter alia,
“... in case of reassignment, an employee should be provided with a reasoned decision in writing so that he or she can protect his or her rights and the court may review its lawfulness. In the present case, the disputed decision does not set out any reasonable ground, which implies that the employer had not established the need for the [applicant’s] reassignment. If no reasonable grounds are provided, the reassignment of any employee, including the [applicant], is unlawful. [The employer] has only quoted the terms for reassignment, as specified in the Collective Agreement, without providing any reasonable ground ...” 12. The court also concluded that the reassignment had been unjustified given the applicant’s age and lack of experience required for the new post. 13. On 24 May 2001 the Bitola Court of Appeal dismissed the employer’s appeal and upheld the lower court’s decision. It stated, inter alia:
“... the reassignment decision does not set out any reasons. The employer has merely referred to the Collective Agreement’s objectives of increasing the productivity and efficiency of the applicant and for work organisation purposes. It does not mean that by mere reference to these grounds, the employer has established the need for the [applicant’s] reassignment...It means that [the applicant] was reassigned to a post which does not correspond to his work experience ...” 14. On 29 May 2003 the Supreme Court allowed an appeal on points of law submitted by the employer on 9 July 2001 and overturned the lower courts’ decisions. It held that they had wrongly applied national law. Referring to section 27 of the Labour Act and section 11 of the Collective Agreement, it found that the employer had been entitled to assess the need for reassignment - which would be well-founded only if an employee was reassigned to a post commensurate with his or her vocational capacity. It further held that the issue as to whether the employee would be more efficient in the new post went beyond the scope of judicial review. It concluded that:
“Concerning the grounds for reassignment provided in the [disputed] decision, the court considers that it is sufficient to state one of the terms specified in the Collective Agreement. The disputed decision meets this requirement ...”