Arşiv

📂 2003

2003 — Four Years Without Assistance, Worsening Heart and Other Physical Illnesses, a New Application for Urgent Judicial Protection, and a Serious Complaint Submitted to Strasbourg Main court case: Verwaltungsgericht Berlin — VG 32 A 599.03. Earlier related cases: VG 32 A 594.00, VG 32 A 487.01, and Oberverwaltungsgericht Berlin — OVG 6 S 52.00. The number of my first application to the European Court of Human Rights, as recorded in subsequent correspondence: 746/04. This folder contains applications for social assistance, responses from public authorities, hospital records, medical certificates, correspondence from lawyers, and court materials showing how the events that began in 1998–2002 continued in 2003. My complaint addressed to Strasbourg, bearing the date 1 September 2003, is also an important part of this history. The documents in the folder show a period in which my health deteriorated, I had no opportunity to work or support myself, and my struggle for social assistance and continuing medical care remained unsuccessful. In this explanatory account, I describe the contents of the documents, the contradictions between them, and their consequences for my life. To provide a fuller understanding of the events, I also recount experiences I personally lived through that are not separately repeated in every document in this folder. The extensive records concerning the earlier detentions, violence, and other proceedings are presented in separate folders. Their not being reproduced in full here does not mean that my situation in 2003 was separate from those earlier events. In 2002, lawyer Harald Lilge had informed the court in writing that depriving me of medical assistance constituted an extremely cynical violation of human dignity, that my health was being played with, and that there was a danger of permanent damage and worsening illness. The documents from 2003 show that, following that warning, my need for protection continued and my health deteriorated further. Official Confirmation of the Absence of Assistance and Another Refusal On 4 June 2003, I applied again for social assistance. In my application, I stated that I was not permitted to work, received no assistance, and depended on other people to survive. I explained the deprivation I experienced in obtaining food, clothing, and everyday necessities. I wrote that I had been unable to obtain proper clothing for years and was forced to meet my needs with things I found on the streets and in rubbish bins. An official certificate issued on 5 June 2003 confirms that I was not receiving assistance under the AsylbLG. The absence of assistance is therefore not merely my subsequent explanation: it is a situation recorded in a public authority’s document from that period. In the response dated 11 June, assistance was refused again. Raatsch’s letter referred to AsylbLG § 1a, number 1, and relied on the assessment that I had entered Germany to obtain assistance. It stated that I could return to Azerbaijan, referred to earlier court assessments, and did not consider my explanations concerning my needs credible. Applying for voluntary return was presented as a condition for reconsidering my situation. I strongly object to this approach. My opportunity to work had been blocked; nevertheless, the assistance I requested to meet my living and treatment needs was also withheld. My survival through help from others was turned into an assessment that I did not need assistance. My objection is that the dependency the state had created and failed to resolve was once again used against me. In my submission dated 16 October 2003, I again raised the fact that my objection of 16 June had remained unanswered. In that submission, I also referred to four medical certificates. Thus, the public authorities had repeatedly been informed about both my subsistence situation and my health problems. Hospital Admission and Deterioration of My Heart Condition From 17 to 30 August 2003, I received inpatient treatment at DRK Westend Hospital. In my application to Strasbourg, I wrote that I had been admitted with a temperature of 40 degrees Celsius. The medical documents in the folder record a febrile infection, suspected inflammation of the heart muscle — myocarditis — an ejection fraction of 42 per cent, and the cardiac examinations performed. During that period, I personally underwent an intervention through an artery in my leg, extending as far as my heart. I could see what was happening during the procedure. I was told beforehand that the substance to be administered would cause an intense sensation of heat in my body. Afterwards, strong pressure and a dressing were applied to the arterial entry site to prevent bleeding. This remains in my memory as a serious cardiac event and intervention. The medical document dated 11 September expressly records cardiac catheterisation. The documents state that coronary heart disease had been excluded and that myocarditis or perimyocarditis was suspected. The medical assessment of what I experienced must be read together with those records and the hospital’s complete procedure documentation. Alongside the heart problem, the medical materials also record pangastritis, oesophagitis, findings concerning intestinal inflammation, chronic prostatitis, and other complaints. The certificate dated 29 September refers to viral myocarditis, reflux and gastritis, prostatitis, depression, and other conditions. It states the need for continuing treatment and emphasises that references to my mental condition must not cause my physical illnesses to be forgotten. Here, one of the most severe contradictions affecting my life arose: doctors required physical rest and continuing monitoring, but I was forced to search the streets for food, clothing, and the means to survive. I described this situation explicitly in my Strasbourg letter. Expecting a sick person to rest without providing assistance and stable accommodation does not provide the basic conditions necessary for recovery. Lawyer Muharrem Aras’s Application for Urgent Judicial Protection On 23 October 2003, lawyer Muharrem Aras of the Bümlein law firm applied for urgent judicial protection under VwGO § 123. The application requested social and medical assistance under AsylbLG §§ 3 and 4 and legal aid for the costs of the proceedings — Prozesskostenhilfe. The lawyer raised the absence of assistance over four years in relation to the principle of the social state and human dignity. The application stated that depriving a person of essential means of subsistence did not eliminate their basic living needs, even where an allegation of abuse of entitlement to assistance was made. The application referred to Charité’s certificate dated 14 July 2003, stating that an extremely high acute risk of suicide existed following previous suicide attempts. Thus, the court was presented not merely with general dissatisfaction but with specific medical information concerning physical illnesses and a danger to life. The lawyer also objected to the absence of an individual discussion with me and a separate assessment of my circumstances. He stated that, if there were doubts about my medical condition, the court should investigate them. Protection of my health and human dignity was demanded. I also preserve my conversation with the lawyer here as my direct testimony. After the cardiac event, he said that the seriousness of my physical condition should now take centre stage before the court. He told me that we should set the psychiatric certificates aside and focus on the serious cardiac event, and expressed that he could not accept assistance being refused in such circumstances. Nevertheless, according to my account, the assistance I requested was again not provided. When I asked him to approach the higher court, I remember the lawyer saying that he had never seen such injustice and that continuing this case could have consequences for him severe enough to require him to leave Germany. What I write about this conversation is my personal testimony. The Public Authority’s Position Before the Court In the response dated 31 October 2003, Schadow requested rejection of the urgent application and the request for Prozesskostenhilfe. The restriction of assistance was again justified by reference to AsylbLG § 1a. The position that my situation resulted from my own responsibility rather than that of the public authorities was defended. Some of the medical information was assessed as a subjective account, and it was stated that assistance for individual acute illnesses was possible. I strongly object to this position. The possibility of individual emergency interventions did not provide treatment for my continuing illnesses or meet my nutritional and accommodation needs. The contradiction between leaving a person who had been discharged from hospital and needed physical rest without assistance, while assigning responsibility for his situation to him, is clear here. The court’s letter dated 5 November provides me with the opposing party’s response and allows one week to comment. On 13 November, lawyer Aras wrote again in case VG 32 A 599.03, stating that the opposing party did not dispute my illnesses, that my health condition constituted an obstacle to deportation, and referring to a new medical certificate. Andreas Kaps’s letter dated 5 November also shows that my accommodation was unstable: because of overcrowding in the home, I was asked to find somewhere else. Treatment, subsistence, and somewhere to sleep remained unresolved for me at the same time. The final decision rejecting that application is not separately apparent in this folder. However, I maintain my personal account that the protection I requested was not provided. The lawyers’ applications and the opposing party’s request for rejection in the folder form the documentary part of that struggle. The Application to Strasbourg — a Life History Extending Beyond a Health Complaint I prepared the letter bearing the date 1 September 2003 to apply to the European Court of Human Rights. I continued working on it after leaving hospital. I paid for the translation of the text I had prepared in Azerbaijani. When the translator telephoned me to arrange delivery of the letter, I explained that I was in hospital. I sent the letter towards the end of 2003. The number of my first application is recorded in subsequent correspondence as 746/04. According to my account, the first response concerning it arrived in 2004, during my time at Charité following the events of 7 January. The contents of this application were not limited to heart disease or a single social assistance decision. I explained how my hopes when arriving in Germany had turned into severe deprivation and how I had lost my health, honour, pride, and human dignity. I stated that I felt not like a person seeking protection but like a victim being hunted in a forest. In the letter, I described my first detention in Köpenick in 1998, my complaints about illness, my demands for assistance, my hunger strikes, and the deterioration of my health. I wrote that I had collected signatures from more than forty detainees concerning my health condition and submitted them to the court. Those signatures concerned a separate event from the collective protest supported by approximately 480 signatures in 1999. I described approaching the Ausländerbehörde four times after the first detention, the failure to resolve my legal situation, and the warning that I would be detained if I returned again. I explained that I had been left ill, without assistance, and homeless during winter, without continuing access to a doctor. I also included my complaints concerning the second detention in 1999, serious illness, unanswered calls for help, violence, being taken to a punishment cell, and humiliation. I described the protest supported by approximately 480 signatures, the hunger strike announced for 20 December 1999, the participation of representatives of different nationalities, and the complaints conveyed to the administration. I also described my punishment on a charge of unlawful stay in 2000 and the legal struggle against that judgment. In the letter, I referred to a new lawyer’s submission challenging that judgment on 21 May 2003. This issue is presented extensively in other folders, but in my Strasbourg complaint it appeared as part of the overall sequence constricting my life. I also explained my applications for social assistance and medical treatment vouchers, demands that I sign a document concerning voluntary departure, refusals, and my objection to the opposing party’s information being given precedence in court. I raised the absence of an independent medical expert assessment and the failure of a public institution’s intervention on my behalf to produce a result. In the letter, I wrote that, following the court application in 2002, I had received a medical treatment voucher only after waiting five months, and that a new certificate was subsequently required for each quarter. I explained that my application of 22 January 2003 concerning my legal status and permission to work had remained unsuccessful. I also objected to the causes of my physical illnesses being replaced by references to my mental condition. I stated that the effects of the detention, violence, and deprivation I had experienced in Germany on my mental condition were being pushed into the background. My accusation was this: first destabilising a person through severe conditions, then using that distress to discredit his complaints. In the letter, I also expressed a specific position concerning responsibility. At that time, I stated that Raatsch was carrying out Adamiec’s instructions and assigned the principal responsibility to Adamiec. This is the allocation of responsibility I expressed in writing at that time and must not be lost in a subsequently prepared explanatory account. I also recorded the collision involving a police vehicle while I was cycling on 1 October 2002 and the resulting concussion. I referred to Leonid Poljakov’s witness account of the incident. Although the separate materials concerning this incident are presented in another folder, it appeared in my Strasbourg letter as part of the sequence of dangers and harm. In the letter, I explicitly stated that I was not accusing the German population as a whole. I gratefully acknowledged friends, lawyers, doctors, and public institution employees who had helped me. I wrote about Planta, Harald Lilge, Beyer, doctors, and other people who had provided assistance. I also expressed my allegations concerning some people who had supported me subsequently being removed from their jobs. My objection was directed at specific conduct and the people responsible. Although I began the letter on 1 September 2003, I completed and sent it towards the end of 2003. At the end of that letter, I stated that officials in Germany saw themselves as God over the fate of foreign people and looked down on foreigners. Yes, they may regard themselves as God, but they have forgotten one thing: I recognise only one God, and I will make my final complaint to Him. After sending this complaint to the European Court of Human Rights, I attempted suicide in front of the German Parliament on 7 January 2004. My application to Strasbourg was therefore my attempt to inform an international institution about the severe situation at that time. I had already presented the events, my allegations concerning responsibility, and the danger I perceived to my life in writing in 2003. These are not complaints recalled only twenty-eight years later. The Transition from the End of 2003 to the Crisis of January 2004 I do not accept presenting my situation at the end of 2003 separately from the events of 7 January 2004. According to my account, following a three-day hunger strike, I reached the point of attempting suicide. The extensive documents concerning this event are presented in the 2004 folder. The Charité document dated 16 January 2004, included in this folder, provides the medical basis for that transition. The document records that I had been in hospital since 7 January, that an attempt to set myself on fire with petrol in front of the Reichstag/Bundespresseamt had been prevented, and that my social, financial, accommodation, and health circumstances were connected to the severe crisis. It warns that returning me to poverty and homelessness could cause deterioration and a renewed risk of suicide. I do not separate this outcome from the preceding years of untreated illness, absence of assistance, detention and violence, and unsuccessful efforts to obtain legal protection. I accuse the failure to provide protection, despite the public authorities and courts having been informed, of forming part of the chain of events that drove me into that crisis. For me, 2003 was not simply another year of writing applications. The absence of assistance had been officially confirmed; my physical illnesses and cardiac deterioration had been documented; a lawyer had requested urgent protection for my life and human dignity; and I was trying to convey that entire sequence to Strasbourg. Nevertheless, the protection I needed for accommodation, subsistence, and continuing treatment was not provided in my life. I do not regard these events as separate mistakes without consequences. My firm accusation is that blocking my opportunity to work, failing to provide social and continuing medical assistance, minimising the seriousness of my illnesses, and leaving my requests for protection unsuccessful created a sequence that devastated me physically and psychologically, made me dependent on others, and deprived me of the freedom to choose the direction of my life. This folder is intended to preserve those documents, my application to Strasbourg, my direct testimony, and my firm position concerning responsibility together. The events of 2004 and subsequent proceedings are presented in a separate folder. Legal Provisions I Invoke Concerning the Events of 2003 and the Subsequent Suicidal Crisis I allege that the acts and omissions described above violated my dignity, endangered my life, damaged my physical and mental health, and drove me into a suicidal crisis. I invoke the following provisions to substantiate this accusation. Criminal responsibility must be assessed on the basis of each person’s specific conduct, knowledge, intent, duty to act, and causal connection with the consequences produced, in accordance with the legislation applicable at the time. My accusation is not limited to the personal conduct of individual officials. I also expressly assert state responsibility for the consequences that state institutions, courts, and public officials created in my life through their official activities. The division of responsibility among different authorities and court proceedings does not remove the need to assess those consequences together. German Constitutional Law • Basic Law, Article 1(1) and (3): protection of human dignity and the directly binding force of fundamental rights upon the legislature, executive authorities, and courts. • Article 2(1): free development of personality and personal autonomy. • Article 2(2): the right to life and physical integrity, including protection against serious harm to physical and mental health. • Article 19(4): effective judicial protection against violations by public authorities. • Article 20(1) and (3): the principle of the social state, and the binding of executive authorities and courts to law and justice. • Article 103(1): the right to be heard in court. Responsibility of the German State for the Conduct of Public Officials • Basic Law, Article 34: where an official duty owed to a third party is breached in the exercise of public office, responsibility for the resulting damage generally rests with the state or relevant public institution employing that person. In cases of intent or gross negligence, the state’s right of recourse against the official is retained. • German Civil Code — BGB § 839: liability for compensation for damage resulting from an intentional or negligent breach of an official duty protecting a third party. Section 839(2) establishes special conditions concerning judicial decisions; a separate rule also exists concerning the unlawful failure or delay in performing an official duty. Under these provisions, the damage I report having suffered cannot be presented solely as the personal matter of a particular official. State liability for compensation for damage connected with the exercise of public office must be raised alongside the individual criminal responsibility of those who participated in the act. Article 34 of the Basic Law specifically concerns the state’s liability for damage; individual criminal responsibility is determined under the relevant criminal-law provisions. Medical Assistance and Judicial Protection • AsylbLG §§ 3 and 4: basic subsistence assistance and necessary treatment for acute illnesses and pain; these must be assessed together with the version of § 1a applicable in 2003. • VwGO § 86(1): the court’s duty to investigate the facts on its own initiative. • VwGO § 123: interim protection against the risk of substantial harm. These provisions concern the assessment of medical evidence and the protection requested while the case was being considered. German Criminal-Law Provisions Relevant to My Allegations • StGB § 223: bodily injury, including damage to health. • StGB § 226: serious bodily injury where the specific serious consequences defined by law are established, including certain lasting physical or mental impairments. • StGB § 229: negligent bodily injury. • StGB § 340: bodily injury inflicted by a public official in the performance of official duties or in connection with those duties. • StGB § 13: commission of an offence by omission where the person had a legal duty to prevent the relevant harmful result and the other statutory requirements are satisfied. • StGB § 339: the intentional perversion of justice by a judge or another public official covered by this provision, in favour of or against a party when conducting or deciding a legal matter — Rechtsbeugung. An adverse or erroneous decision alone does not establish the existence of this offence. I invoke these provisions in connection with my allegations of deliberate harm to health, abuse of office, and failure to provide protection despite knowledge of a serious danger. A prevented suicide attempt does not eliminate the physical and psychological harm already suffered. The criminal-law assessment of causing or contributing to such an attempt depends on the specific facts; it cannot be determined solely from the fact that the attempt occurred. The gravity of my accusation does not lie solely in the occurrence of the suicide attempt. My accusation concerns the continuation of deprivation despite documented illnesses, the need for continuing treatment, and warnings of a danger to life, as well as the destruction of my health and the worsening of my crisis. My survival does not erase this harm or close the question of responsibility. European Convention on Human Rights • Article 2: the right to life and the state’s protective obligations — where state authorities knew or ought to have known of a real and immediate risk of suicide, and reasonable protective measures within their powers were possible. • Article 3: prohibition of torture and inhuman or degrading treatment, including sufficiently severe physical or mental suffering. • Article 8: protection of private life, physical and psychological integrity, and personal autonomy. • Article 13: an effective remedy for an arguable claim of a violation of Convention rights. The central issue I raise is the response to the documented danger: what did state institutions and courts know, what protection could they have provided, and what did they do or fail to do? The case-law of the European Court expressly examines protective obligations concerning a known risk of suicide. United Nations Human-Rights Treaties • International Covenant on Civil and Political Rights, Article 6: protection of life. • Article 7: prohibition of torture and cruel, inhuman or degrading treatment. • Article 2(3): an effective remedy against violations of rights protected by the Covenant. • International Covenant on Economic, Social and Cultural Rights, Articles 11 and 12: an adequate standard of living and the highest attainable standard of physical and mental health, including conditions ensuring medical assistance in the event of illness. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment • Article 1: the definition of torture involving the intentional infliction of severe physical or mental suffering for specified purposes, with the involvement, instigation, consent, or acquiescence of a public official. • Article 2: the obligation to take effective measures to prevent torture; exceptional circumstances or orders from a superior do not justify torture. • Article 12: a prompt and impartial investigation where there are reasonable grounds to believe that torture has been committed. • Article 13: the right to complain, prompt and impartial examination of the complaint, and protection of complainants and witnesses against pressure and intimidation because of their complaints and testimony. • Article 14: redress for victims of torture, fair and adequate compensation, and the means for as full a rehabilitation as possible. • Article 16: prevention of other cruel, inhuman or degrading treatment that does not fall within the definition of torture, where it occurs with the involvement, consent, or acquiescence of public officials. I invoke these provisions for the legal assessment of physical and mental suffering, humiliation, my personal testimony concerning attempts to silence me, and the failure to provide protection despite a known danger. My accusation encompasses not only blows inflicted upon a person’s body, but also the destruction of that person’s will, independence, and ability to continue living. Attribution of the Acts of State Institutions to the State — International State Responsibility The UN International Law Commission’s 2001 “Articles on Responsibility of States for Internationally Wrongful Acts”: • Articles 1 and 2: international state responsibility arises where an act or omission attributable to the state breaches an international obligation. • Article 4: the conduct of legislative, executive, and judicial organs, and of central and local state institutions, is regarded under international law as the conduct of the state. • Article 7: the conduct of a state organ or a person exercising governmental authority in that capacity may also be attributable to the state where that organ or person exceeds their authority or acts contrary to instructions. • Article 8: the conduct of other persons may be attributable to the state where they act under the state’s instructions, direction, or control in carrying out the specific conduct. • Articles 30 and 31: cessation of wrongful conduct, assurances of non-repetition where appropriate, and full reparation for the material and moral injury caused. This document is not a separate UN convention; it is a set of legal articles concerning international state responsibility. This is precisely my position concerning state responsibility: the official conduct of state institutions cannot be set aside as merely the personal matter of the particular official or judge. State responsibility arises for conduct attributable to the state under international law that breaches an international obligation. The criminal responsibility of particular individuals remains separate alongside it. Rome Statute — References Concerning Genocide and Crimes against Humanity • Article 6, particularly 6(b): causing serious bodily or mental harm to members of a national, ethnic, racial, or religious group, with the specific intent to destroy that group in whole or in part, is among the acts included in the definition of genocide. In addition to serious individual harm, this legal definition requires the specific intent to destroy a protected group. • Article 7(1), particularly 7(1)(k): other inhumane acts intentionally causing great suffering or serious injury to the body or to physical or mental health, committed as part of a widespread or systematic attack against a civilian population and with knowledge of that attack, fall within crimes against humanity. • Article 11: the temporal jurisdiction of the International Criminal Court begins on 1 July 2002, when the Statute entered into force. The events of 2003 occurred after that date; the other jurisdictional requirements must also be considered. • Article 25: individual criminal responsibility; under paragraph 4 of that article, individual responsibility does not affect the responsibility of states under international law. • Article 27: official position or status does not exempt a person from criminal responsibility under the Statute. I am not removing the reference to the Rome Statute from this folder. I retain here my position calling for my allegations of deliberate serious physical and mental harm, destruction of living conditions, and systematic conduct to be assessed also under international criminal law. In that assessment, Article 6’s requirement of specific intent to destroy a protected group and Article 7’s requirements concerning a widespread or systematic attack against a civilian population must be identified separately. My Final Position Concerning Responsibility My accusation is that the destruction of my living conditions, obstacles to treatment, and failure to provide protection despite warnings of an acute risk of suicide must be assessed together. Surviving the suicide attempt does not restore the health, independence, and opportunities in life that I report having been destroyed. I do not present these events merely as difficulties created against me by individual persons. I allege that the acts and omissions of state institutions and courts produced a sequence that devastated me physically and mentally, made me dependent on others, and drove me into a suicidal crisis. Establishing individual responsibility does not eliminate state responsibility, and asserting state responsibility does not eliminate the responsibility of particular individuals. In this folder, I expressly retain my position concerning both forms of responsibility.