ITEMID: 001-139785
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TRIPON v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: 1. The applicant, Mr Teodor Octavian Tripon, is a Romanian national, who was born in 1968 and lives in Beius.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 21 September 2001 the applicant, who was a civil servant employed as a customs officer at a border crossing point, was placed in pre-trial detention by a decision of the public prosecutor’s office. Along with six other colleagues working at the same customs office, he was suspected of having abused his office contrary to State interests, which is an offence under Article 248 of the Criminal Code. By a decision of 21 November 2001, the Oradea Court of First Instance extended the applicant’s pre-trial detention to 1 December 2001, when he was released.
4. On 28 November 2001, by a decision of the Ministry of Public Finance, the applicant was dismissed under Article 130 (j) of the Labour Code, which authorised employers to dismiss an employee who had been placed in pre-trial detention for a period exceeding sixty days, irrespective of the grounds for detention.
5. The applicant appealed against his dismissal to the Oradea Court of Appeal.
6. In a ruling of 29 April 2002 on a preliminary question of law, the Oradea Court of Appeal applied to the Constitutional Court of its own motion for examination of an objection on grounds of constitutionality, namely, whether Article 130 (j) of the Labour Code was compatible with the applicant’s constitutional right to respect for the presumption of innocence. The Court of Appeal held that Article 130 (j) of the Labour Code infringed the right to be presumed innocent because it allowed consequences to be drawn for the purposes of labour law even before guilt had been established by a final decision and did so entirely independently of the grounds for placing the suspect in pre-trial detention.
7. In a decision of 14 January 2003, the Constitutional Court dismissed the objection on grounds of unconstitutionality, holding that an employer’s right to dismiss an employee who had been placed in pre-trial detention for over sixty days was justified by an objective fact, namely, his prolonged absence from work, and not by considerations linked to whether or not he was guilty of an offence that had justified imposing a custodial measure on him. In the Constitutional Court’s view, the primary purpose of Article 130 (j) of the Labour Code was to protect the employer from the potentially adverse effects of an employee’s prolonged absence from work and resulting failure to fulfil his contractual obligations.
8. In the written grounds of appeal lodged with the Court of Appeal by his lawyer, the applicant agreed with the Court of Appeal’s view, considering, for his part, that Article 130 (j) of the Labour Code was contrary to the right to respect for the presumption of innocence, guaranteed by the Constitution. While not denying that a custodial measure of over sixty days had been imposed on him, the applicant pointed out that greater respect for the principle of the presumption of innocence would have been achieved by merely suspending his employment contract pending the relevant court’s final decision regarding his guilt, which was a measure available under section 79 of Law no. 188/1999 on the status of civil servants.
9. In a decision of 24 February 2003, the Oradea Court of Appeal dismissed the applicant’s appeal. It held that his dismissal had been in conformity with the law and was not contrary to the Constitution, having regard to the decision of the Constitutional Court and the provisions of the Labour Code. It noted that Law no. 188/1999 on the status of civil servants, which provided that a civil servant could be suspended from service if he had been committed for trial for an offence that was incompatible with his duties, expressly provided that the provisions of the Labour Code supplemented that Law. Accordingly, Article 130 (j) of the Labour Code was also applicable to civil servants such as the applicant.
10. In a final judgment of 16 January 2004, the Supreme Court of Justice dismissed an appeal by the applicant against the Court of Appeal’s decision, upholding it on the merits.
11. After 1 December 2001, when the decision of 21 November 2001 of the Oradea Court of First Instance extending the applicant’s pre-trial detention expired, the applicant was released. He remained free throughout the remainder of the criminal proceedings against him.
12. In a judgment of 11 October 2004, the Oradea Court of First Instance sentenced the applicant to one year and eight months’ imprisonment, suspended. It deducted from that period the time the applicant had spent in pre-trial detention from 21 September to 10 December 2001. The court found, after hearing submissions from the applicant, who was represented by a lawyer, and at the end of public and adversarial proceedings, that the applicant and six of his colleagues also employed as customs officials had committed the offences of abusing their office contrary to State interests and giving false data for inclusion in a document, contrary to Articles 248 and 289 of the Criminal Code respectively, thereby causing the Ministry of Finance, through their illegal customs activities, to incur a loss of 2,201,573,847 Romanian lei (approximately 519,424,189 euros) in tax and excise duty not collected by the State.
13. On appeal by the applicant and his co-defendants, who sought an acquittal on grounds that the Court of First Instance had wrongly interpreted the applicable laws, the Timiş County Court gave judgment on 17 December 2007 upholding the lower court’s judgment on the merits.
14. In a judgment of 30 September 2008, the Timişoara Court of Appeal remitted the case to the Timiş County Court. The applicant sought a finding by that court that the offences of which he was accused were statute-barred. He nonetheless asked the court to continue with his criminal trial under Article 13 § 2 of the Code of Criminal Procedure, in order to secure an acquittal.
15. In a decision of 31 March 2010, the Timiş County Court set aside the judgment of 11 October 2004. While noting that the offences were statute-barred, it granted the applicant’s request to continue his criminal trial under Article 13 § 2 of the Code of Criminal Procedure. Having re-examined all the evidence adduced in the case (statements of witnesses and co-accused, expert technical reports, various documents, and so forth), the court found that the applicant could not be acquitted of the charges against him as the prosecution evidence adduced in the case proved his guilt. The court then ordered the trial to be discontinued on all counts, in accordance with Article 13 § 3 of the Code of Criminal Procedure, thus bringing into effect the applicable special time bar.
16. On an appeal by the applicant, who sought an acquittal, the Timişoara Court of Appeal delivered a final judgment on 14 December 2010 upholding the decision of 31 March 2010 of the Timiş County Court on the merits.
17. Article 130( j) of the Labour Code provided, at the material time, that an employer could dismiss an employee if his detention exceeded sixty days. The new Labour Code, which came into force on 5 February 2003, initially contained a similar provision, in Article 61 (b), providing that an employer could dismiss an employee if he was in pre-trial detention for more than sixty days, in the conditions set forth in the Code of Criminal Procedure. The sixty-day period was reduced to thirty days by Government Ordinance no. 65/2005 amending the Labour Code.
18. Regarding pre-trial detention, the Code of Criminal Procedure in force at the relevant time provided that over and above a period of thirty days, during which the public prosecutor’s office had power, at that time, to issue a detention order, any extension of the period of pre-trial detention had to be ordered exclusively by a court. At the material time Article 159 of the Code of Criminal Procedure was worded as follows:
“The investigation file shall be lodged by the prosecutor [with the court] at least two days prior to the hearing and may be consulted by the lawyer on request. The defendant shall be brought before the court, assisted by a lawyer. ... If the court allows a request to extend [the period of detention], this shall not exceed 30 days. The prosecutor or accused may appeal against a decision on a preliminary question of law in which the court has ruled on an extension of the period of pre-trial detention. The time-limit for appealing is three days and shall run from the date of delivery of judgment for those who are present at trial and from the date of service for those who are not. An appeal against a decision extending the period of pre-trial detention shall not have suspensive effect ... The court may allow further requests for an extension of the period of pre-trial detention, but no period shall exceed 30 days.”
19. Since the adoption of Government Emergency Ordinance no. 109 of 24 October 2003 the public prosecutor’s office no longer has power to order the pre-trial detention of a person accused of having committed an offence. Only an independent and impartial tribunal may order pre-trial detention or an extension thereof, by a reasoned decision, amenable to appeal, taken after hearing submissions from the accused in the presence of his lawyer.


ITEMID: 001-79411
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF JASAR v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (alleged ill-treatment);Violation de l'Art. 3 (effective investigation into these allegations);Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1965 and lives in Štip, in the former Yugoslav Republic of Macedonia.
9. On 16 April 1998, at around 9 p.m., the applicant and his friend F.D., both citizens of the former Yugoslav Republic of Macedonia of Roma ethnic origin, were having a drink in a downtown bar in Štip. On the other side of the bar, two men were gambling. The man who lost pulled out a gun, fired several shots into the air and one into the ground, and asked for his money back. All those in the bar, including the applicant and his friend, tried to leave, but were ultimately unable to do so because of the crowd that had already blocked the exit.
10. In the meantime, five police officers arrived at the scene of the incident and turned to the applicant and his friend. One of the police officers caught the applicant by his hair and pushed him against the police car, while another officer grabbed his friend's arm and twisted it behind his back. Shortly afterwards, the police took them to the local police station, where they were locked up in two separate cells.
11. The applicant maintains that around midnight one of the police officers concerned came to the cell where he was being held and told him to bend over. The applicant alleges that the police officer kicked him in his head, which caused bleeding from his mouth. As he fell down on the floor, the police officer grabbed him by his hair and allegedly started hitting him savagely with his fists and a truncheon. The applicant further maintains that another police officer, who was allegedly beating his friend in the other cell, came to his cell later and continued to batter him until 5 a.m. They were then taken to an office, where they were questioned about the incident. After drawing up a report, the police released the applicant and his friend at around 11 a.m. the next day.
12. Following his release, the applicant went to the Emergency Aid Unit at Štip Hospital and asked for medical assistance. A medical certificate issued on 17 April 1998 by the doctor who had examined him indicated that the applicant had sustained several bodily injuries which were described as slight. In addition, the certificate stated that the applicant had declared that he had been beaten at the police station with a truncheon and kicked all over his body. The medical certificate did not specify the possible origin of the injuries, their timing or the way in which they had been inflicted.
13. The applicant submitted an excerpt from a newspaper together with his statement concerning the incident in which he had made no allegations of being beaten at the scene in the bar. A photograph of him having a swollen right eye also appeared in the newspaper.
14. The applicant and his friend have never been charged with any offence in relation to the incident at issue.
15. On 16 April 1998, between 9 and 10 p.m., the applicant and F.D. arrived at the café bar Lotus. They joined a group watching people gambling with dice. At around 2 a.m. on 17 April one of the losing gamblers claimed that the dice had been fixed and demanded his money back. An argument started in which the applicant and F.D. participated. When a certain J.N. took out a pistol and fired, F.D. tackled him and the gun fell on the floor. At about 2.30 a.m. the police came to the scene after the shooting incident had been reported to them. Meanwhile, there was a certain disruption inside the bar, after which some people went outside. The police's inspection of the scene lasted until 4.30 a.m.
16. The police sought to take M.S., an individual reported to them, into custody. The applicant and F.D., who had taken the side of M.S. in the dispute, obstructed the police's efforts, allowing M.S. to escape. F.D. also assaulted another person on the scene. The police then decided to take all those present, including the applicant, to the police station.
17. At 5 a.m. the applicant and F.D. were interviewed by the police. They were released at 7.30 a.m. No force was used against the applicant during the questioning, nor did he make any complaint at the police station concerning any abuse by the police or any injury he had sustained. No charges were subsequently brought against him.
18. On 25 May 1998 the applicant, through his legal representative, filed a criminal complaint (кривична пријава) with the Štip Basic Public Prosecutor's Office (Основно Јавно Обвинителство Штип) against an unidentified police officer under section 143 of the Criminal Code (see “Relevant domestic law”). In the complaint, the applicant set out a factual account of the incident and alleged that the officer concerned had ill-treated him while he was in police custody. He requested the public prosecutor's office to initiate proceedings as provided for by law. The medical certificate of 17 April 1998 was produced in support of his complaint.
19. On 28 May 1999 the applicant's legal representative wrote a letter to the Štip public prosecutor, stressing that his criminal complaint had been filed more than a year previously and that since then he had received no information and had no knowledge as to whether any steps had been taken by the public prosecutor's office to identify the offenders and to initiate a formal investigation.
20. As there was again no reply, on 25 October 1999 the applicant's lawyer sent another letter to the public prosecutor, requesting information about any action undertaken concerning the applicant's case. He made no reference to the civil proceedings that had already finished and did not inform the public prosecutor of the identity of the police officers concerned, which had been determined in the course of the civil proceedings.
21. In a letter dated 11 November 1999 the Štip public prosecutor replied that his office had responded to the criminal complaint at issue by officially requesting additional inquiries from the Ministry of the Interior (“the Ministry”). However, to date his office had received no information from the Ministry.
22. As the applicant has not received any fresh information since then as to any action taken by the relevant prosecuting authorities, the proceedings concerning his criminal complaint are still pending.
23. On 25 May 1998 the applicant submitted a compensation claim against the respondent State and the Ministry for the non-pecuniary damage he had suffered as a result of the violence to which he had been subjected while in police custody. He made the same statements as in the criminal complaint, namely that after the police officers had arrived at the bar, one of them had grabbed him by his hair and pushed him against the police car; that at the police station he had been told to do push-ups and had been subsequently kicked in the head, which had caused his mouth to bleed; and that he had been punched and beaten with a truncheon all over his body.
24. The Government stated that in December 1998, following the bringing of the civil action, the Solicitor General's Office had requested information from the Ministry concerning the incident. In January 1999 the Štip police submitted a report based on the official notes and records, stressing that the police had not used force at the station and had intervened and placed the applicant in the police van when he and his friend had resisted them at the scene and his friend had attacked another person. They added that no force had been used against the applicant, nor had he submitted any complaint concerning the injuries allegedly sustained during the police intervention at the bar. Among the documents accompanying this report, the Ministry provided the official police record of the statements given by the applicant while being questioned. No complaints of alleged abuse or injuries had been noted in that record.
25. On 22 March 1999 the Štip Court of First Instance dismissed the applicant's claims as ill-founded. The court heard evidence from F.D. and several police officers who had participated in the police raid on the night of the incident. It also heard evidence from a specialist doctor, who provided his expert opinion about the applicant's injuries indicated in the medical certificate. As stated by him, the following injuries had been observed: a blow on the back of the head; contusion of the left eye; swollen and bruised left cheek; bruise on the lower part of the chest and punch on the right hand. He stated that the injuries had been probably inflicted by a blunt object such as a hand or a tool and that no special treatment had been necessary for the applicant's recovery. The court also admitted as evidence the medical certificate of 17 April 1998 and the photographs showing the applicant's condition after the incident.
26. The court found it undisputed that the applicant had been injured, but stated that there was no evidence that the injuries had been inflicted as a result of police brutality. It established that the applicant had sustained certain injuries, but concluded that it could not be inferred under what circumstances they had been inflicted, or by whom or when. On the basis of the police officers' statements, the court further established that the applicant had sustained some injuries to his head and eye before he had been taken to the police station. It found that the injuries had either been sustained during the fight in the bar (while the applicant was assisting the escape of a person who had fired a gun and caused a disturbance) or had resulted from the legitimate action of police officers in trying to restrain the applicant who had resisted arrest. 's argument that he had not been able to undergo a medical examination immediately after being released from custody owing to his lack of financial means, since this was contradicted by the medical certificate dated 17 April 1998.
27. On 29 April 1999 the applicant appealed.
28. On 5 October 1999 the Štip Court of Appeal dismissed the applicant's appeal as ill-founded. It stated that the lower court had indisputably found that the applicant had sustained certain injuries before he had been taken into police custody and that the police officers had not inflicted them. It concluded that the lower court had reasonably found that the State could not be held liable and had dismissed the applicant's claim for damages.
29. On 4 February 2000 the applicant requested the public prosecutor to lodge with the Supreme Court an application for the protection of legality (барање за заштита на законитоста). Referring to the outcome of the civil proceedings, he did not provide the public prosecutor with the identity of the police officers who had allegedly beaten him and who had given evidence in the course of those proceedings.
30. On 1 March 2000 the public prosecutor rejected the applicant's request.
31. Section 143 of the Criminal Code (Кривичен законик) provides that a person who, in the performance of his duties, mistreats, intimidates, insults or generally treats another in such a manner that his human dignity or personality is humiliated is to be punished by a term of imprisonment of six months to five years.
32. The relevant provisions of the Criminal Proceedings Act (“the Act”) (Закон за кривичната постапка) may be summarised as follows:
33. Section 16 provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences subject to merely private charges, the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party, acting as a subsidiary prosecutor under the conditions specified in the Act.
34. Section 17 sets forth the duty of the public prosecutor to proceed with a criminal prosecution if there is sufficient evidence that a crime subject to ex officio prosecution has been committed (the principle of legality).
35. In accordance with section 42, in discharging this statutory right and duty, the public prosecutor is empowered to take measures to detect crimes, to identify their perpetrators and to coordinate preliminary criminal inquiries; to request the opening of an investigation; to file and to defend an indictment or application for prosecution before the competent court; to lodge appeals against decisions which have not become final; and to make use of extraordinary judicial remedies against final court decisions.
36. Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that that party may conduct the prosecution himself.
37. Section 144(1) provides that the public prosecutor is to dismiss the criminal complaint if it transpires that the act reported is not a criminal offence subject to ex officio prosecution; that the statute of limitations has expired; that the offence has been amnestied or pardoned or that other circumstances exist which preclude prosecution; or that there is no reasonable suspicion that the person in question committed the offence. The public prosecutor shall notify the injured party of the dismissal of the complaint and of the grounds for the dismissal within eight days (section 56) and, if the complaint was filed by the Ministry, he shall notify the latter accordingly.
38. Section 144(2) provides that if the public prosecutor is unable to establish, from the criminal complaint, whether or not the allegations set out in the complaint are credible, or if the information given in it is insufficient for him to take a decision on whether to request the opening of an investigation, or if he has merely learned of rumours that a crime has been committed, particularly where the perpetrator is unknown, he shall, if he cannot do this alone or through other authorities, request the Ministry to gather the necessary information and to take other measures to investigate the offence and identify the offender. The public prosecutor may at any time require the Ministry to inform him about the measures taken.
39. Section 148 provides, inter alia
40. Section 150 provides that an investigation is to be opened in respect of a particular person where a reasonable suspicion exists that he has committed an offence.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-100811
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: TOPA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Ruslan Topa, is a Moldovan national who was born in 1975 and lives in Chişinău. He was represented before the Court by Mr V. Zama, a lawyer practising in Chişinău.
On 26 March 2008 the applicant was arrested on suspicion of being part of a criminal gang specialised in the smuggling of heroin through Moldova to the European Union. His arrest took place as a result of the seizure of a large quantity of heroin in Chişinău.
Between the date of his arrest and 8 July 2009 the applicant was remanded in custody. The detention warrants were issued on a monthly basis and the reasons given for prolonging his detention were the same throughout the entire period of detention: the applicant was accused of a serious criminal offence punishable with more than two years' imprisonment and he could abscond or hinder the investigation. All of the applicant's habeas corpus requests were dismissed.
On 21 October 2009 the applicant was acquitted of all the charges against him.
The relevant provisions of Law No. 1545 “on Compensation for Damage caused by the Illegal Acts of the Criminal Investigation Bodies, Prosecution and Courts”, read as follows:
Article 1
(1) In accordance with the present law, individuals and legal entities are entitled to compensation for non-pecuniary and pecuniary damage caused as a result of:
a) illegal detention, illegal arrest, illegal indictment, illegal conviction;
b) illegal search carried out during the investigation phase or during the trial of the case, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the persons' rights;
c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine;
d) the carrying out of operative investigative measures in breach of lawful procedure;
e) illegal seizure of accounting documents, other documents, money, or stamps as well as the blocking of bank accounts.
(2) The damage caused shall be fully compensated, irrespective of the degree of culpability of the agents of the criminal investigation organs, prosecution and courts.
Article 4
A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:
a) the pronouncement of an acquittal judgment;
b) the dropping of charges or discontinuation of an investigation on the ground of rehabilitation;
c) the adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation;
d) the adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova;...


ITEMID: 001-68650
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SOKOLOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 7. The applicant is a Polish national who was born in 1950 and lives in Wodzisław.
8. In October 1995 a local branch of the Christian-National Association published a political leaflet entitled “Wodzisławianin”, which contained a following note, written by the applicant:
“The inhabitants of Wodzisław wonder why the lists of the local election commissions [for the coming 1995 presidential election] have not been made public in the city hall, as used to be the case.
We have the answer to this question: the composition of nine election committees was determined in a secret vote held by the [Wodzisław] Municipal Council, and the councillors elected themselves to hold posts [in these commissions]. Sixteen persons [who were not members of the Council] were not elected, including four representatives of the lower councils, three women [...] who are all respectable citizens.
The payment for the work in the election commission is PLZ 1,500,000, which is equivalent to two thirds of [unemployment benefit], ...
Inhabitants of Wodzisław! When you go to the polls, remember that the election committee No. 8 in P. will be composed of, among others, Mr [...] and Mr J. K., which means that [by receiving their payment] they would take away from you 1,5 tons of coal for this winter, while at the same time they obtain 8 to 10 per cent of the average national salary as remuneration for their work as councillors of the Municipal Council. [...]”
9. A list of other municipal councillors who would participate in the election committees followed, each name accompanied by a designation of certain goods, such as 500 loaves of bread or 200 bus tickets, worth PLZ 1,500,000 at that time, which, according to the leaflet, they would thus “take away” from the reader.
10. The note went on to say:
“Remember! You could have received this money yourself. That money is to be paid from taxes you have paid.
The municipal councillors, whom you elected, are poor and concerned, above all, about their own interest and that of their families.
You, as a lesser member of the local society, should be thankful that your councillor has informed you about the possibility of earning additional income, that he elected himself to the local election committee, that he put his power to a legitimate use in the interest of the community, and that he thereby revealed the truth about himself”.
11. Subsequently J.K. lodged with the Jędrzejów District Court a private bill of indictment against the applicant, complaining that the leaflet was defamatory.
12. At the first hearing, held on 25 January 1996, J.K. expressed willingness to settle the case, but the applicant declined to do so. At the hearing on 26 June 1996 the plaintiff again proposed to settle the matter amicably. The applicant refused.
13. At the same hearing the court heard statements from the applicant and the plaintiff. The applicant refused to acknowledge that by publishing the impugned statements he had committed an offence. When interviewed by the court, he confirmed that he had written the contested text.
14. The court examined as witnesses requested by the prosecution a saleswoman from the kiosk where the applicant had left the leaflets to be taken by its clients and R.B., a journalist who had written an article about the way in which the public had reacted to the leaflet.
15. The applicant requested the court to admit in evidence the testimony of W.C. as to the contents of the impugned leaflet. He also asked the court to take into consideration two articles about the leaflet and the public reaction to it, one published in “Gazeta Jędrzejowska” and another one in “Słowo Ludu”, written by K.S. He also requested that K.S. be heard as a witness to prove that the leaflet had not been understood as amounting to an accusation of theft against J.K. The court allowed his requests in respect of the articles, but declined to call the witnesses requested by the applicant, considering that their evidence would relate to the contents of the leaflet which had already been included in the case file.
16. On the same day the Jędrzejów District Court convicted the applicant of disseminating untruthful information about J.K. in order to denigrate him and to lower him in the public esteem necessary for his function as a municipal councillor, i.e. the offence of libel, punishable under Article 178 § 2 of the Criminal Code of 1969.
17. The court established that J.K., a headmaster of a public school in P., had been a municipal councillor in Wodzisław for the past eight years. Until 31 December 1995 he had been the president of the Council's Board of Auditors. During the presidential election in 1995 he had been a member of the election commission in P.
18. In October 1995 the local branch of the Christian-National Association, of which the applicant was a member, had published a leaflet co-authored by the applicant.
19. The judgment further read:
“In this leaflet addressed to the inhabitants of Wodzisław, the authors stated, among other things, that '[... ] and J.K. would take away from you 1, 5 tons of coal for this winter', that the councillors were 'poor and concerned, above all, about their own interest and that of their families', that they had 'elected themselves to the local elections committees', that they 'put their power to a legitimate use in the interest of the community'.
The court considered the following:
The plaintiff had stated that, in his opinion, the leaflet was slanderous. It implied that he intended to commit theft, that when receiving remuneration for his participation in the election committee he had been acting out of base motives and that he had been using the function of councillor for his personal enrichment. The community of Wodzisław understood the leaflet in a similar manner, as had been shown by the testimony given by R. B.
The court, when assessing the statements in the leaflet, shared the opinion of the plaintiff and of the local community that it amounted to slander. The statements that the councillors had 'elected themselves to the local elections committee' and that they were 'concerned, above all, about their own interest and that of their families' related also to the plaintiff.
It is not open to any doubt that the defendant distributed the leaflet; he admitted he had. Moreover, K.B. [when giving evidence] stated that the defendant had personally brought it to the editorial office of 'Słowo Ludu'. Despite the fact that only 150 copies of the leaflet had been printed, the defendant envisaged that that they would have more readers, as shown by the phrase contained therein: 'If you have read it, pass it on'.
Dissemination of information of this kind was, in the court's view, degrading for the plaintiff; the accused, when publishing it, had an intention to denigrate the plaintiff; by distributing it he lowered the plaintiff in public esteem, necessary for him to carry out his work as a councillor. This demonstrates the seriousness of his offence, which must therefore be qualified as slander punishable under Article 178 § 2 of the Criminal Code”.
20. The court imposed on the applicant a fine of PLN 1,000 with three months and ten days' imprisonment in default, ordered him to pay PLN 100 to a local hospital and a further PLN 100 to J. K. and to pay the court costs to the Treasury in the amount of PLN 100. The court further ruled that the operative part of the judgment should be published in the local daily newspaper. When determining the fine, the court had regard to the fact that the applicant's financial situation was “very good. His monthly income from his shop was PLN 400-600, his wife's monthly salary was PLN 450, and he also owned a farm of 7,40 hectares”. Therefore the sentence imposed on him under Article 178 § 2 read together with Article 54 of the Criminal Code was appropriate to the applicant's situation.
21. The applicant appealed. He argued that the court had wrongly established the relevant facts in that it considered that his intention had been to insult J.K., while he had been acting out of concern for the public interest. It was further argued that the court had wrongly considered credible only the evidence called for the plaintiff, i.e. the testimony of journalist R.B., whom the court had questioned and whose opinions were unfavourable to the applicant. However, the court had refused to call as a witness on the applicant's behalf another journalist K.S., who had also published an article about the applicant's case, expressing views favourable to the applicant's stand and sharing the applicant's conclusions. The court admitted this article as evidence, but had not referred to it in its judgment, and had refused to call K.S. as a witness.
22. On 17 February 1997 the Kielce Regional Court upheld the contested judgment.
23. The court considered that the lower court had carefully assessed the evidence before it and logically explained its reasons in the written grounds of the judgment. It had not been arbitrary in the assessment of the evidence. It was not in dispute between the parties that it was the applicant who had written the impugned text in the leaflet. That text had informed the public in Wodzisław that J.K. as the local councillor had elected himself to the election commission, had taken care only of his own interests and that of his family, and had thereby abused his powers.
24. The court considered that the leaflet could undoubtedly lower J.K. in public esteem and divest him of the trust necessary for his work as a councillor. The applicant could not successfully rely on his argument that when publishing the leaflet he had been acting out of concern for a legitimate public interest.
25. It had to be taken into consideration that the offence of aggravated defamation could be committed if the perpetrator knowingly disseminated false information about the victim. Such defamation could not be justified either by good faith or by the public interest. If the perpetrator had any grounds on which he could foresee that the allegations might be untrue, but he or she still disseminated them, he thereby committed the offence of aggravated defamation, punishable under Article 178 § 2 of the Criminal Code. These elements obtained in the applicant's case as he had published his allegations about J.K., acting in bad faith.
26. The court considered that the sentence imposed was adequate, having regard both to the social danger of the offence and to the applicant's personal situation. The court also ordered the applicant to pay PLN 100 by way of court fee and to reimburse the court fee paid by the plaintiff in the amount of PLN 100.
27. The applicant lodged a cassation appeal with the Supreme Court.
28. It was first argued that the first-instance court had breached provisions of procedural law in that it infringed the principle that the taking of evidence should be direct. The court had called as a witness for the plaintiff the journalist R.B. and questioned him, but refused to call another journalist K.S as a witness on the applicant's behalf. K.S. had written and published an article in which he agreed with the stand taken by the applicant in the leaflet. The opinion about the character of the leaflet and about the public response to it was entirely different in these two articles, since R.B.'s article was critical of the applicant. Likewise, the articles written by R.B. and K.S. were divergent as to their assessment of the public reaction to the leaflet. The first-instance court had failed to give any grounds in its judgment to explain why it had chosen not to call K.S. as witness.
29. Secondly, the appellant submitted that the contested judgments were in breach of substantive law. This was so because the lower courts had wrongly accepted that the applicant's acts amounted to a criminal offence of slander. The applicant's text published in the leaflet should have been regarded as legitimate criticism of public persons, the councillors of the Wodzisław Municipal Council, compatible with the applicant's freedom of expression guaranteed by Article 10 of the Convention.
30. On 20 February 2001 the Supreme Court, in a decision for which no written grounds were given, dismissed the cassation appeal as manifestly ill-founded and ordered the applicant to pay the court fee for the cassation proceedings.
31. Under Article 178 § 2 of the Criminal Code of 1969, applicable at the material time, whoever disseminated untrue statements about other person's acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions, committed a criminal offence punishable by a prison sentence of up to three years.
32. Under Article 54'
VIOLATED_ARTICLES: 10


ITEMID: 001-90937
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF A.L. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. On 13 March 2001 a mother contacted the police on account of a suspicion that her child R., a girl born in December 1986, had some ten days earlier been sexually abused by a relative, the applicant. On 21 March 2001 the police took a statement from the mother. On 9 July 2001 the police questioned the applicant. R. was interviewed by the police on 30 July 2001 in the presence of a social worker. No other person was present at the interview, nor was it recorded.
6. The applicant was subsequently charged before the Tampere District Court (käräjäoikeus, tingsrätten) with having sexually abused R., who was 14 years’ old at the time, by touching her sexual organs. The applicant denied the charge. The court received testimony from R.’s mother and the applicant as well as three witnesses who testified on the applicant’s behalf. The prosecutor submitted a video recording of two interviews with R. conducted by a medical expert, H., on 17 and 18 April 2001. H. was heard as a witness in this connection. The prosecutor also submitted a medical statement containing an assessment of the interviews in question and another medical certificate containing findings relating to R.’s physical examination. The prosecutor further produced a statement given on 14 March 2001 by a rehabilitation centre for intellectually disabled persons. From the statement it transpired that R. had the intelligence level of a child aged 6 to 8½ years. Written evidence of R.’s need for professional help was submitted on her behalf.
7. On 20 November 2001 the District Court convicted the applicant of sexual abuse of a child and sentenced him to a suspended term of seven months’ imprisonment. As evidence, the court relied firstly on the testimony of R.’s mother, which it found more credible than that of the applicant and his witnesses and secondly, on the video recording along with H.’s testimony. The court noted that R. had given similar accounts of the events to her mother and to H. It further noted that during the interviews R. had talked to H. openly and with confidence, but her behaviour had clearly changed when the issue of the alleged abuse had been broached. R. had, nevertheless, been able to give an account of the events in a rather versatile and detailed manner. The recording gave the court no reason to suspect that R. had been repeating some other person’s words or that she had imagined the events.
8. The applicant appealed against the judgment to the Turku Court of Appeal (hovioikeus, hovrätten), arguing, inter alia, that the District Court should not have decided the case without hearing R. in person. He had not been given the opportunity to put questions to R. at any point of the proceedings. Nor had he been given an opportunity to watch the video recording of her interviews before the main hearing, yet the recording had been an essential part of the evidence leading to his conviction. The applicant requested that the Court of Appeal hold an oral hearing and that R. be heard in person.
9. On 9 January 2003 the Court of Appeal refused the applicant’s request to hear R. in person as it might be detrimental to her, taking into account her level of development and the nature of the issue in question. The court relied on the principle contained in section 10(1) of the Act on the Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång, Act No. 945/1984), which provided that a person below the age of 15 could not attend a hearing if the court found that this could be detrimental to him or her, and to section 15(2) of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt, Act No. 361/1983), which provided that a child could be heard in court only if it was clear that this would not be detrimental to him or her. This decision was not subject to separate appeal.
10. In the subsequent oral hearing, the Court of Appeal was presented with the same evidence as had been before the District Court, with the addition of four photographs and the floor plan of the applicant’s apartment. On 27 February 2003 the court upheld the lower court’s judgment finding no reason to deviate from its assessment of the evidence.
11. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining, inter alia, that his Convention right to examine witnesses against him had been breached. He requested, inter alia, that the court refer the case back to the lower courts for re-examination and that he be granted an opportunity to put questions to R., either in an oral hearing or by using other arrangements. In the alternative, the applicant requested that an oral hearing be held in the Supreme Court and that testimony be obtained from the applicant and the three witnesses on his behalf.
12. On 14 January 2004 the Supreme Court refused leave to appeal.
A. The pre-trial investigation
13. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act No. 575/1988) provides that when questioned during a pre-trial investigation a child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11).
14. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act No. 449/1987) provides that the investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1), Act no. 692/1997). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times as well (section 34, Act No. 692/1997).
15. As of 1 January 2004, the Criminal Investigations Act provides also that the questioning of a victim or a witness (from now on referred to as a witness) must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the witness in person, due to his or her young age or disturbed mental state, without causing him or her harm. The special requirements set by the level of that person’s development for the methods used, for the number of participating persons, and for other conditions, must be taken into account. The person in charge of the investigation may also allow other authorities, under supervision of the investigator, to put questions to the witness. The suspect must be provided with an opportunity to put questions to the witness. The suspect may also put the questions through legal counsel or another representative. However, the investigator may order that the questions be put through his or her intermediary (section 39a, Act No. 645/2003).
B. The receipt of evidence in court
16. At the time of the proceedings in question, apart from the leave to appeal proceedings in the Supreme Court, there were no legal provisions concerning the use as evidence of a video recording of testimony given by a child during the pre-trial investigation.
17. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. The relevant provisions at the time of the proceedings in question, as regarded the proceedings in the lower courts, provided as follows.
18. A statement included in a pre-trial investigation report or another document, or a statement recorded by other means, may, as a rule, not be admitted as evidence in court. The court may, exceptionally, admit such a statement as evidence, if the witness in question cannot be questioned before the court (Chapter 17, sections 11(1)(2) and 11(3), Act No. 690/1997).
19. If a person called as a witness is less than 15 years old, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, section 21, Act No. 571/1948).
20. The Code of Judicial Procedure was amended with effect from 1 October 2003.
21. According to the current provisions, the testimony of a person under 15 years old, or a mentally disturbed person, recorded on audio or videotape during the pre-trial investigation, may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (Chapter 17, section 11(2), Act No. 360/2003). According to the explanatory report to the relevant Government Bill (No. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to, inter alia, a child and on the importance of respecting the rights of the defence.
22. As to hearing a child under the age of 15, or a mentally disturbed person, Chapter 17, section 21 (Act No. 360/2003) provides that he or she may be heard as a witness, or for the purpose of obtaining evidence, if the court finds it appropriate, and if the hearing in person is of significant relevance for the establishment of the facts of the case, and the hearing is not likely to cause such suffering or other harm as could be detrimental to the person concerned (from now on referred to as the witness) or to his or her development. Where necessary, the court shall designate a support person for the witness. The witness shall be questioned by the court, unless it finds particular reason to entrust the questioning to the parties. The parties shall be provided with an opportunity to put questions to the witness through the intermediary of the court or, if the court finds it appropriate, directly to the witness. Where necessary, the hearing may take place on premises other than the court room.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-71471
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MIKULOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (access to court);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1952 and lives in Prešov.
5. In 1993 the applicant was dismissed from her job. On 16 November 1995 the Prešov District Court found that the dismissal had been unlawful. On 20 November 1995 it issued a supplementary judgment in which, inter alia, it dismissed the applicant’s claim that her employment with the defendant still continued. The parties did not appeal against this conclusion and it thus became final.
6. On 18 August 1997 the Prešov District Court delivered a decision approving a settlement agreement under which the defendant undertook to pay compensation to the applicant for the above unlawful termination of her employment. The period for which compensation was to be paid ended by the date on which the judgment of 16 November 1995 had become final, that is 3 June 1997.
7. On 10 October 1997 the employer asked the applicant to sign a document indicating that she was being compensated for lost income in the context of the above judicial decisions and the subsequent settlement agreement. The document further indicated that the applicant had refused to resume her job, agreed to the termination of her employment with effect from 31 May 1997, and waived any further claims in this respect.
8. On 22 November 1997 the applicant challenged the second termination of her employment before the Prešov District Court. She alleged that she had been obliged to sign the above document.
9. In the course of 1998 the District Court held six hearings, and on 10 September 1998 it found that the termination of the applicant’s employment as from 31 May 1997 had been unlawful. The court heard witnesses and took further evidence. It established that the applicant had not agreed to the termination of her employment of her own free will as the relevant document had been typed in advance and the payment of compensation under the earlier judicial decisions was made subject to the applicant’s agreement to the termination of her employment.
10. On 29 October 1998 the defendant appealed. On 13 November 1998 the applicant submitted her observations in reply.
11. On 28 June 1999 the Prešov Regional Court overturned the first instance judgment and dismissed the applicant’s action. It noted that in the first set of proceedings terminated by the Prešov District Court’s judgments of 16 and 20 November 1995, the applicant’s claim concerning the duration of her contract employment had been dismissed as the applicant had expressly stated at a hearing that she did not wish to return to her job. That decision had become final. As a result, the applicant’s contract of employment had been terminated in accordance with the relevant law. The Regional Court concluded that, when the above document had been signed on 10 October 1997, the applicant had no longer been entitled to be employed by the defendant.
12. The appellate court’s judgment was to be served on the parties through the intermediary of the District Court. It was sent by registered mail and the delivery slip indicates that the post officer unsuccessfully attempted to serve the document at the address of the applicant’s advocate on 3 and 4 August 1999. The delivery slip further indicates that the envelope was deposited at the post office on the latter date.
13. The advocate representing the applicant was on leave abroad between 30 July 1999 and 14 August 1999. The employee authorised to receive mail addressed to the advocate fell ill on 30 July 1999. A medical certificate indicates that she was on sick leave until 13 August 1999. A different employee of the advocate was on leave from 2 to 6 August 1999. She came back to work on 9 August 1999. On that day the advocate’s employee received the appellate courts’ judgment and signed the delivery slip to that effect.
The applicant’s advocate explained that other employees had been present in the premises on 3 and 4 August 1999. However, they were assigned to work in the context of bankruptcy proceedings entrusted to the advocate and they were not authorised to receive mail on his behalf.
14. On 23 August 1999 the District Court’s Registry put a stamp on the appeal judgment indicating that it had become final on 13 August 1999.
15. On 8 September 1999 the applicant filed an appeal on points of law against the Regional Court’s judgment. She argued that the appellate court had failed to establish the relevant facts and that its decision was arbitrary.
16. The Prešov District Court submitted the appeal on points of law to the Supreme Court on 15 November 1999. The accompanying letter stated that the appellate court’s judgment had become final on 13 August 1999 and that the appeal on points of law had been filed within one month from that date as required by the law.
17. On 22 February 2000 the Supreme Court rejected the appeal on points of law as having been lodged belatedly. The Supreme Court, with reference to the file, held that an attempt to serve the Regional Court’s judgment on the parties’ lawyers had been made on 3 August 1999. However, the addressees could not be reached at their respective address. A second attempt to serve the judgment on 4 August 1999 had failed notwithstanding that the addressees had been staying at the places of service. The envelopes with the judgment had therefore been deposited at the post office and the addressees had been notified thereof. As the addressees had not withdrawn the mail at the post office within three days from the moment of its deposit there, the third day of this period, that is 7 August 1999, was to be considered as the date of service in accordance with Article 47(2) of the Code of Civil Procedure. The one-month timelimit for filing an appeal on points of law had therefore expired on 7 September 1999.
18. On 4 April 2000 the applicant requested the Prosecutor General to file an extra-ordinary appeal on points of law on her behalf. She argued that the Supreme Court had proceeded arbitrarily when concluding that the appeal on points of law had not been filed in time. In particular, the applicant submitted that her lawyer had been abroad on leave from 30 July 1999 to 14 August 1999 and that his employee authorised to receive the mail had been on sick leave between 30 July 1999 and 13 August 1999. The judgment had been received on 9 August 1999 and no notification of its deposit at the post office had been found in the lawyer’s office. The applicant argued that the requirement making service by default of a judgment subject to the addressee’s presence at the place of service had not been met in her case.
19. On 26 July 2000 the Office of the Prosecutor General informed the applicant that an extra-ordinary appeal on points of law was not available in the case.
20. Subsequently the applicant complained to the Supreme Court that the name of the defendant company was incorrectly indicated in the decision of 22 February 2000. On 22 June 2004 the Supreme Court issued a decision by which it rectified that mistake.
21. On 19 February 2002 the applicant claimed compensation from the advocate who had represented her in the above proceedings. She maintained that, as a result of the advocate’s failure to file the appeal on points of law in time, she had been prevented from recovering compensation for lost salary which had been the subject-matter of those proceedings.
22. On 31 March 2003 the Prešov District Court dismissed the action. The Regional Court in Prešov upheld this judgment on 10 December 2003. The courts held that the applicant had not shown that she would have succeeded in the proceedings had the cassation court quashed the appellate judgment.
23. On 5 April 2004 the applicant filed a complaint to the Constitutional Court. She claimed that the Supreme Court’s decision of 22 February 2000 was void as the defendant had been incorrectly indicated in it. The applicant also complained under Article 6 § 1 of the Convention that her claim for compensation filed against the advocate had not been determined in an appropriate manner.
24. On 28 April 2004 the Constitutional Court rejected the applicant’s complaints about the Supreme Court’s decision of 22 February 2000 and the Prešov District Court’s judgment of 31 March 2003 as they had been filed beyond the statutory two months time-limit from the delivery of those decisions. The Constitutional Court further held that the Prešov Regional Court’s judgment of 10 December 2003 was not arbitrary.
25. Article 47(2) provides that, where a document is to be notified to an addressee in person and the addressee has not been reached notwithstanding that he or she is staying at the place of service, the person delivering the document shall inform the addressee in an appropriate manner that a second attempt to deliver it will be made at a time indicated in the notification. Where such a new attempt to serve the document fails, the person in charge of the delivery shall deposit the document at the post office or with a municipal body and shall notify the addressee thereof in an appropriate manner. Where the addressee fails to withdraw such a document within three days from its deposition, the last day of this term is considered as the day of service even if the addressee did not learn that the document had been deposited with the post office or a municipal authority.
26. Pursuant to Article 158(2), a certified copy of a judgment is to be served on the parties or, as the case may be, on their representatives in person.
27. Under paragraph 4 of Article 158, a judgment with reasons is to be prepared in writing and dispatched to the parties within 30 days from its oral delivery unless the president of the court decides otherwise for important reasons.
28. Article 159(1) provides that a judgment which cannot be challenged by means of an appeal is final.
29. Pursuant to Article 238(1), an appellate court’s judgment modifying a first instance judgment on the merits of a case can be challenged by means of an appeal on points of law.
30. Article 240(1) provides that a party can file an appeal on points of law within one month from the final effect of an appellate court’s decision. An appeal on points of law is to be filed with the court which decided the case at first instance. Under paragraph 2 of Article 240, there can be no exemption from the time-limit laid down in paragraph 1. Where, however, an appeal on points of law is filed with the court of appeal or court of cassation within one month from the final effect of the appellate court’s decision, the time-limit is deemed to have been complied with.
31. A document to be served on a party in person is not deemed to have been served by default under Article 47(2) of the Code of Civil Procedure where the addressee was not residing at the place of delivery at the time when the attempt to deliver the document to him or her was made (Collection of opinions, conclusions, analyses and assessments of judicial practice, No. IV, p. 1087 and also Supreme Court’s Collection 42/1999).
32. Where the requirements of Article 47(2) of the Code of Civil Procedure for service by default of a document have been complied with, such a document is considered to have been served on the third day from the moment when it was deposited with the competent authority regardless of the date when the addressee actually received it (Supreme Court’s Collection 3/1996 and 24/1998).
33. In a judgment of 27 August 2002 the Supreme Court, in the context of proceedings under the Administrative Proceedings Act, clarified the requirements for service by default of a document which was to be delivered to the addressee in person. It held, in particular, that the requirement that the addressee should reside at the place where the document was to be served was not met where the addressee was either outside that place, for example on leave or a business trip, or where his or her health condition prevented the addressee in an objective manner from coming to the place of delivery of the document (Supreme Court’s Collection 50/2003).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58073
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF DOMENICHINI v. ITALY
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-3-b;Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: C. Russo;R. Pekkanen
TEXT: 7. The applicant has been in custody since 5 December 1980 in connection with various criminal proceedings brought against him on suspicion of his having taken part in the activities of the terrorist organisation known as "Prima linea".
8. When he lodged his application with the Commission on 6 November 1989, there were three prosecutions pending against Mr Domenichini. The first of these ended in a judgment of the Ancona Court of Appeal of 28 June 1988, which became final on 26 October 1989. The court sentenced him to eleven months and twenty days' imprisonment and a fine of 700,000 Italian lire for aiding and abetting aggravated armed robbery, aiding and abetting aggravated theft, aiding and abetting the handling of stolen goods and unlawful possession of weapons. The second trial ended in a judgment of the Rome Assize Court of Appeal of 9 December 1988, which became final on 13 July 1989. The court sentenced him to nineteen years, eleven months and fifteen days' imprisonment for murder, aggravated armed robbery, treasonable conspiracy, membership of an armed organisation and other offences. The third trial, at the Bari Assize Court of Appeal, ended in a judgment of 10 October 1989, which became final on 15 January 1990. The court imposed a sentence of eleven years and two months' imprisonment and a fine of one million lire for armed robbery and other offences. A. Monitoring of the applicant's correspondence during his detention in Cuneo Prison
9. On 12 March 1987 the judge responsible for the execution of sentences (magistrato di sorveglianza) at Cuneo, where Mr Domenichini had been in custody since 19 December 1984, decided under section 18 of Law no. 354 of 26 July 1975 (see paragraph 18 below) that his correspondence and that of other prisoners in the special unit of Cuneo Prison should be censored for a period of six months. On 23 May 1987 the Court of Cassation declared inadmissible an appeal on points of law lodged against that order on an unspecified date.
10. After the end of the first period, the Cuneo judge responsible for the execution of sentences renewed the censorship every six months, in September 1987, March 1988 and on 16 September 1988 and 13 March and 14 September 1989. The reasons given for these decisions were, firstly, that the monitoring of the applicant's correspondence and that of the other prisoners concerned had made it possible to discover differences of opinion within the group of former terrorists and to prevent confrontations and acts of vengeance and, secondly, that there was a danger that the applicant would use the mail to commit offences or prejudice public order or safety.
11. It is not contested that the following letters were inspected: (a) a letter of 29 November 1988 from the applicant to the lawyer Mr Francesco Piscopo; (b) a registered letter of 23 January 1989 from the applicant to the lawyer Mr Ugo Giannangeli; (c) a letter of 26 February 1989 from the applicant to Mr Ugo Giannangeli; and (d) letters of 26 February 1989 and 14 February 1990 from the applicant to Mr Francesco Piscopo.
12. On an unspecified date the applicant challenged the decision of 16 September 1988 (see paragraph 10 above) in the Turin Sentence Execution Court (tribunale di sorveglianza). On 24 October 1988 that court declared his appeal inadmissible on the ground that the relevant Italian Law did not provide any remedy in respect of such decisions in view of their administrative nature. The court's decision was served on Mr Domenichini on 8 November 1988, and on the next day he appealed on points of law. In a pleading of 30 November 1988 his counsel argued, in particular, that the possibility of appealing to the Sentence Execution Court against decisions to impose censorship was provided for in Italian legislation. He also maintained that the measure in issue, applied "collectively" to a group of prisoners, irrespective of the individual circumstances of each, was absolutely unjustified and that the delay in forwarding to him, after it had been inspected, the applicant's letter informing him of the receipt of the court's decision rejecting his appeal had impeded the exercise of the rights of the defence. The Sentence Execution Court, however, did not forward the appeal and other procedural documents to the Court of Cassation, but set the matter down for hearing on 19 December 1988, when it rejected the appeal, holding it to be essentially identical with the earlier one it had dismissed on 24 October 1988.
13. On 14 February 1989 the applicant's lawyer asked the court to forward the appeal to the Court of Cassation, which alone was competent to rule on an appeal that had been made direct to it.
14. Shortly afterwards, on 13 March 1989 (see paragraph 10 above) the Cuneo judge responsible for the execution of sentences renewed the order that Mr Domenichini's correspondence should be censored. On 17 April 1989 the applicant's lawyer lodged a fresh appeal on points of law with the Turin Sentence Execution Court. On 29 May 1989 the court declared inadmissible "the appeal against the decision declaring the appeal inadmissible" and did not forward the appeal to the Court of Cassation. B. The applicant's continued detention
15. On an unspecified date the applicant was transferred to Milan Prison.
16. In a report drawn up by the prison management in October 1992, it was stated that the applicant's behaviour towards the staff and his attitude towards his past had shown some improvement. On 22 October 1992, taking the view that this progress was not sufficient, the Milan Sentence Execution Court dismissed an application by Mr Domenichini to be given semi-custodial treatment instead of being kept in detention. From November 1992 onwards, however, the applicant was granted short periods of prison leave.
17. On 8 September 1993, on the basis of two reports of April and August 1993 which indicated further, substantial progress, the court ordered that the applicant should be given semi-custodial treatment.
18. Section 18 of Law no. 354 of 26 July 1975 ("Law no. 354"), as amended by section 2 of Law no. 1 of 12 January 1977, provides that power in the matter of censorship of prisoners' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision, however, does not specify the cases in which such a decision may be taken.
19. The censorship of which the applicant complains consists, in particular, in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him, and in the stamping of letters for the purpose of showing that they have been inspected. Censorship cannot extend to deleting words or sentences, but the judicial authority can order that one or more letters shall not be handed over; in that case, the prisoner must immediately be informed of the fact. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judicial authority of his action.
20. Article 103 of the New Code of Criminal Procedure forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer, provided that the correspondence is recognisable as such and unless the judicial authority has well-founded reasons to believe that the correspondence constitutes the substance of the offence. Similarly, by Article 35 of the transitional provisions of the same Code, the rules on the censorship of a prisoner's correspondence that are laid down in Law no. 354 and Presidential Decree no. 431 of 29 April 1976 do not apply to correspondence between the prisoner and his lawyer. It follows, among other things, that the only authority that may order censorship of that correspondence, and then solely in the case mentioned above, is the judge or court dealing with the case.
21. The Court of Cassation has held on several occasions that the measure in issue is an administrative act and has also stated that Italian law does not provide any remedy in respect of it; in particular, censorship cannot be the subject of an appeal on points of law, since it does not affect the prisoner's personal freedom (Court of Cassation, judgments nos. 3141 and 4687 of 14 February 1990 and 4 February 1992 respectively).
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-4989
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VAHTERA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The applicant is a Finnish citizen, born in 1957 and living in Hyvinkää, Finland. He is represented before the Court by Mr Jarkko Jaatela, a lawyer practising in Helsinki
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
In April 1992 A bought the share capital of a company in which B and C also came to work. The applicant had no official function in the company, but it appears that in certain matters he acted as an adviser.
On 1 June 1992 the company applied for a company credit card. This was granted on 4 June 1992, inter alia, on the condition that the card was not to be used to pay for the personal purchases of the cardholder. The credit-card company, however, closed the account on 15 July 1992 as by then the card had been used for purchases worth 104,568.30 Finnish marks (FIM) that allegedly had no connection with the business activities of the company.
On the basis of these alleged irregularities the police commenced an investigation into the activities of A, B and C. A was interrogated by the police from 21 to 24 September 1992 and on 19 and 28 October 1992. It appeared that the irregularities related in particular to a trip to Thailand, involving A, B and C as well as the applicant, and to a car rental. During the police interrogations A repeatedly incriminated the applicant who was not at that moment under investigation. It appears that also B and C incriminated the applicant in their statements to the police.
Following the police investigations charges of fraud were brought against A, B and C. By judgment of 13 January 1993 A and B were found guilty of the charges brought against them by the Helsinki City Court (raastuvanoikeus, rådstuvurätt; as from 1 December 1993 the Helsinki District Court, käräjäoikeus, tingsrätt). By judgment of 2 June 1993 the same court convicted C for similar offences. The applicant did not in any way participate in these proceedings.
It appears that the police also commenced an investigation into the applicant’s activities vis-à-vis the credit card fraud. He was interrogated for the first time on 15 June 1993, but denied all charges and any personal involvement. The reports of the police investigations concerning A, B and C were presented to the applicant during this investigation.
Court proceedings against the applicant opened on 13 October 1993 in the Helsinki District Court where he was charged with having committed two frauds, together with A, B and C, in connection with the trip to Thailand and a fraud in connection with the car rental. It appears that the prosecution intended to rely on the statements made by A, B and C during their own trials, whereas the applicant called A to testify. During his testimony before the District Court on 13 October 1993 A withdrew his previous statements concerning the involvement of the applicant in the frauds and stated that the applicant had not been involved in them. Confronted with his previous statements made in connection with his own trial A maintained, primarily, that, because of his excessive use of alcohol at that time, he had been in a bad physical condition during his detention and that he had not read the documents carefully enough.
Following the examination of A, and after the applicant had had the opportunity to comment thereon, the prosecutor requested an adjournment in order to call B and C to testify. The case was accordingly adjourned until 7 December 1993.
The trial continued on 7 December 1993 when the prosecution announced that it had not been possible to call B and C. In these circumstances the applicant requested the District Court to reject as evidence B’s and C’s previous statements made during their own trials since he had had no possibility of challenging that evidence. Furthermore, he stated that if the prosecutor wanted to rely on their statements, they should be heard in this trial. It appears that the District Court dismissed the request and pronounced its judgment on the basis of the available material. In its judgment of 7 December 1993 the District Court stated, inter alia, the following:
(translation from Finnish)
“Imputed Offences
Point 1
[The applicant] has, on 4 June 1992, in complicity with ... A, B and C and in order to gain unjust benefit, by concealing their inability and unwillingness to pay debts, deceived [the credit-card company] to induce it to grant a credit card to [the company] ..., A acting as representative of [the company]. By using the credit card between 9 June and 15 July 1992 for purchases worth FIM 104,568.30, they have caused loss to [the credit-card company].
...
Point 2
[The applicant] has, on 25 June 1992, in complicity with ... A, B and C and in order to gain unjust benefit, by concealing their inability and unwillingness to pay debts, deceived [the travel agency] to obtain four tickets to Thailand worth FIM 17,180, C acting as representative of [the company]. By failing to pay for the tickets, they have caused loss to [the travel agency].
Point 3
[The applicant] has, on 3 August 1992, in Helsinki, in complicity with another person and in order to gain unjust benefit, deceived [the car rental company] to obtain delivery of [a car] on the basis of a car rental contract valid until 17 August 1992, by falsely representing him as representative of [the company]. By failing to return the car, he has caused loss to [the car rental company].


ITEMID: 001-121989
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: URSU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Costin Ursu, is a Romanian national, who was born in 1971 and lives in Timişoara. He was represented before the Court by Ms C.L. Schwartz, a lawyer practising in Timişoara.
2. The Romanian Government (“the Government”) were represented successively by their Agents, Mr Răzvan-Horaţiu Radu, Mrs Carmen Ciută and Mrs Irina Cambrea, of the Ministry of Foreign Affairs.
3. On 4 February 2000 the applicant was taken to the Bihor police headquarters for questioning in relation to fraud charges. He was suspected, together with P.C.C., his business associate, of having written cheques to be drawn on the bank account of the company they owned together, despite being aware that there was no money in that account. In the absence of a lawyer, the applicant gave a statement and maintained that he had acted in accordance with the law at all times. At 11.30 pm, after he gave this statement, the police informed the applicant that he was accused (învinuit), according to domestic law. The applicant waived his right to have an appointed lawyer.
4. On 5 February 2000 the applicant was brought before a prosecutor. He gave a new statement in the presence of a lawyer who had been appointed to represent him. It appears from the documents in the file that he maintained his initial statement. He was then placed under arrest and taken to the cells of Bihor police station.
5. On 29 February 2000 a complaint that the applicant had lodged against the arrest warrant was allowed and the Oradea Court of Appeal ordered his immediate release.
6. On 22 March 2000 he was summoned to appear in front of the prosecutor for further questioning. On that occasion, he was again placed in pre-trial detention. He was subsequently released on 31 March 2000, following a decision of the Oradea Court of Appeal allowing a challenge to his arrest brought by the applicant.
7. Before being released, on 29 March 2000 he was transferred to Oradea Prison, where his head was shaved.
8. The applicant was committed for trial and the case was registered with the Bihor County Court. On 24 April 2000 the county court fixed a new date for the start of the trial, because the summons had not been served on the applicant at the correct address. On 29 May 2000 following a written request from the applicant, the trial was again postponed to 26 June 2000. On that date, the applicant was absent from the trial hearing but his lawyer was present. The county court questioned P.C.C. and dismissed further requests for witnesses to be heard made by P.C.C. and the prosecutor, holding that the written evidence in the file was a sufficient basis on which to decide the case. It proceeded to judge the case, convicting the applicant of having been an accessory to fraud and sentencing him to six years’ imprisonment. In so ruling, the county court mainly relied on the parties’ submissions and on the commercial and accounting evidence adduced before it.
9. The applicant lodged an appeal. On 26 April 2001 the Oradea Court of Appeal examined the case by calling, at the applicant’s request, one witness and also hearing the parties’ submissions. The applicant was present on this occasion. On 3 May 2001, the Court of Appeal acquitted the applicant of all charges, holding that the first-instance court had erred in its interpretation of the evidence as to the applicant’s guilt. It considered that the simple fact that the applicant had written two cheques following the instructions of his co-accused did not indicate that he was guilty, as long as he had not been aware that the cheques could not be cleared because of a lack of money in the account.
10. The prosecutor appealed. The case was heard by the Supreme Court of Justice on 10 December 2003. The applicant was present at the hearing and he was also represented by three lawyers of his choosing. His lawyers presented arguments for dismissing the appeal on points of law. From the report of the hearing, it appears that the applicant made a concluding statement to the effect that he agreed with his lawyers’ submissions.
11. In his application, the applicant maintained that both he and his coaccused had been heard by the Supreme Court. However, he submitted that he had only been asked two questions during the hearing, namely: (i) if he was a business associate of his coaccused; and (ii) if the new criminal proceedings pending against him also related to fraud. He also claimed that these two questions, and his answers to them, were purposely omitted from the transcript of the hearing. The Government did not provide any clarification on that point.
12. On 10 December 2003, the same date as the hearing, the Supreme Court of Justice delivered a final decision by which it found the applicant guilty, convicted him of having been an accessory to fraud and sentenced him to six years’ imprisonment. It held that the evidence available in the case file was sufficient to indicate that the applicant had knowingly written the cheques and had been aware that there was no money in the account to clear them.
13. On the basis of this final decision, the applicant started serving his prison sentence. He was conditionally released on 22 June 2007.
14. The relevant provisions of the Romanian Code of Criminal Procedure with regard to the authority of the courts of appeal, as in force at the time of the events, read as follows:
“(1) A court judging on an appeal shall review the contested decision on the basis of the evidence in the file and all additional written documents that were adduced before it.
(2) In order to decide on the appeal, the court can make a new assessment of the evidence in the file and can order any new evidence that it deems necessary (...)”
“A court judging an appeal shall decide to:
(...) 2. uphold the appeal and:
(a) quash the decision of the first-instance court, deliver a new decision and proceed in accordance with Article 345 et seq. to [render] a judgment on the merits (...)”
15. The relevant provisions of the Code of Criminal Procedure with regard to the authority of the courts examining appeals on points of law that were in force at the time of the events, as well as the amendments to those provisions adopted in September 2006, are detailed in the case of Găitănaru v. Romania (no. 26082/05, §§ 17-18, 26 June 2012).


ITEMID: 001-104794
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AKGÖL AND GOL v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
TEXT: 5. The applicants were born in 1980 and 1979 and live in Hatay and Urfa respectively.
6. On 3 May 1998 Kenan Mak, a student at the Abant İzzet Baysal University in Bolu (“the university”), was killed in an attack. Thereafter, on 3 May of every subsequent year students at the university have held a meeting to mark the anniversary of the killing.
16. On 9 March 2006 the Court of Cassation upheld the judgment of the first-instance court in respect of the applicants.
17. The applicants asked the prosecutor at the Court of Cassation to apply to that court for rectification of the decision of 9 March 2006. In their letter to the prosecutor the applicants also pointed out that none of the injured gendarmes had accused them of inflicting their injuries.
18. The prosecutor accepted the applicants’ request and on 31 July 2006 applied to the Court of Cassation’s president for rectification of the decision. In his application the prosecutor noted that none of the injured gendarmes had named the applicants as the persons responsible for their injuries. The prosecutor referred to Article 11 of the Convention and argued that university grounds could not be regarded as public places within the meaning of Law no. 2911 and that the applicants’ and their fellow students’ actions could not therefore be regarded to be in breach of that Law. The students’ failure to hold their meeting in a place other than the one for which permission had been granted could only be regarded as a disciplinary issue and dealt with by the university administration and not by courts of law.
19. The prosecutor also noted that the disturbance in the demonstration had been caused by the gendarmes’ intervention. Moreover, the reports drawn up by the gendarmes who had taken part in the operation (see paragraph 8 above) had not made any mention of physical resistance by the students. The trial court had not examined the video footage and had not asked the injured gendarmes to identify the persons responsible for their injuries. As such, the trial court’s decision to convict the applicants under section 32 § 3 of the Law no. 2911 had not been in accordance with applicable law and procedure.
20. In its decision of 10 October 2006 the Grand Chamber of the Court of Cassation’s Criminal Division observed that the transcripts of one of the hearings held by the trial court did not bear the signature of the court’s clerk, and quashed the decision convicting the applicants. It deemed it unnecessary to examine the points raised by the prosecutor.
21. A retrial began before the trial court, which rendered its decision on 24 October 2007. Having examined the video footage, the trial court observed that eleven and a half minutes had elapsed between the beginning of the gathering and its dispersal by the gendarmes. It also noted that neither the applicants nor any of the other participants in the demonstration had used force against the gendarmes. Nevertheless, the trial court considered that the applicants and the other students had taken part in an unauthorised meeting and had thus acted in breach of section 32 §1 of Law no. 2911. According to the trial court, the gathering had been unlawful because it had not been organised in the canteen but rather had taken place outside. The applicants were sentenced to one year and three months’ imprisonment, but the sentence was suspended.
22. The applicants appealed. The appeal proceedings are still pending before the Court of Cassation.
23. In the meantime, on account of his participation in the demonstration, on 9 December 2002 the university imposed a disciplinary sanction on the first applicant Ali Akgöl, and expelled him from the university for two semesters. As the university’s decision was not quashed by the administrative courts until 2004, the decision was enforced and the applicant’s graduation from the university was thus delayed for one year.
24. Also in the meantime, the first applicant completed his studies and started working as a teacher. Nevertheless, on 22 August 2006 the Ministry of Education dismissed him from his post on account of his attendance at the demonstration. He was reinstated in his post in July 2007, following the quashing of his conviction by the Court of Cassation (see paragraph 20 above).
25. At the material time section 10 of the Meetings and Demonstration Marches Act (Law no. 2911) was worded as follows:
“In order for a meeting to take place, the governor’s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...”
26. Section 22 of the same Act prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares must comply with security instructions and not disrupt individuals’ movement or public transport. Finally, section 24 provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor’s office and after the demonstrators have been warned.
27. Section 32 of the Act, in so far as relevant, provided as follows:
“1. Unarmed persons taking part in an unlawful meeting or procession who, instead of dispersing of their own motion after having been warned or ordered to do so and who thus have to be forcefully dispersed by government forces, are liable to be sentenced to a term of imprisonment of between one and three years.
...
2. Unless their action breaches another criminal law provision which stipulates a more severe punishment, persons who resort to violence or making threats while being dispersed, or who resist the attempts to disperse them, are liable to be sentenced to a term of imprisonment of between three and five years.
...”
VIOLATED_ARTICLES: 11