ITEMID: 001-61930
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HRICO v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1949 and lives in Košice.
9. At the relevant time the applicant was the publisher and editor in chief of the weekly Domino efekt. In 1994 and 1995 the weekly published three articles which concerned civil proceedings for defamation pending before the Slovakian courts. The proceedings were between Mr Slobodník, a Minister who became later a Member of Parliament, and Mr Feldek, a poet and publicist who had published a statement alleging, inter alia, that Mr Slobodník had a fascist past. The relevant parts of the articles, which were not written by the applicant, read as follows.
“Quo vadis, Slovakian justice? (A shameful judgment delivered by the Supreme Court)
When the Bratislava City Court put an end to the first round of the judicial dispute between Mr Slobodník and Mr Feldek dismissing the former minister’s action for protection of his personality rights, voices could be heard alleging that the outcome of the appellate proceedings before the Supreme Court would be different. They argued that [the Supreme Court] judges were ‘different’. Those views came true and Slovakia faces further ridicule at the international level. The Supreme Court chamber presided over by [judge Š. - the article mentioned the full name of the judge] did not disappoint.
A tragicomic farce
The Slovakian poet and writer Ľubomír Feldek (who opted for Czech nationality in the meantime) stated in 1992 that Mr Dušan Slobodník, who had just become the Minister of Culture of the Slovak Republic, should not exercise the post of a minister in a democratic state as he had a fascist past... The statement was based on facts which were generally known: during World War II Slobodník had been a member of the Hlinka Youth and he had participated in a terrorist course in Sekule organised under the auspices of that organisation. Several participants in that course (it should be mentioned that Dušan Slobodník was not among them) had been later involved in the killing of the inhabitants of [a] village...
Feldek, who never alleged that Slobodník was a murderer or a criminal ... expressed the view of a citizen of a free society who considered that a person who had belonged to the Hlinka Youth and who had been close to people who later killed members of the civilian population, should not be a minister of a democratic state. Nothing more and nothing less...
[Instead of retiring from the post] Slobodník filed an action for protection of his personality rights and thus gave rise to a case which, in a certain way, is tragicomic... [and in the course of which Mr Slobodník] failed to show that he had not been a member of the Hlinka Youth and that he had not participated in the course in Sekule. [Mr Slobodník] thus failed to disprove the facts on the basis of which Feldek had declared that he had a fascist past. We simply recall that a decree by President Beneš of 1945 provided that the Hlinka Youth was to be considered as a fascist organisation.
Strange reasoning
The Bratislava City Court took all the above facts into account and ... dismissed the action of Slobodník. [The City Court judge] ...thus established the very best case-law for the newly born democracy and warned every politician that his or her past may and even must be the object of an increased interest by the public.
At the hearing held on 22 March 1994 [the Supreme Court] judge Š. took the opposite approach in that he ordered Feldek to pay 200,000 Slovakian korunas [SKK] to Slobodník and to apologise to the latter [in the press]... Thus [judge Š.] warned all citizens of the Slovak Republic that, should they come to the conclusion that the moral profile of a politician is incompatible with the exercise of the public function entrusted to him or her, they had better keep quiet.
[Judge Š.] also showed the strength of his spirit when giving reasons for the judgment. 1. Hlinka Youth ... was, in principle, a very good organisation which had been abused by politicians, 2. Feldek not only caused damage to Slobodník, but also to the whole of Slovakia, the Prime Minister, the Movement for a Democractic Slovakia, the Government and the Parliament, ... 4. the post-war retribution decrees enacted in Czechoslovakia were the result of a conspiracy between President Beneš and the communists.
[Judge Š.] revises history
...
[It should be recalled that] the Czechoslovak legal rules on retribution, of which the decrees by President Beneš form a part, were adopted in accordance with the principles of the United Nations Commission for the Investigation of War Crimes established in London on 20 October 1943. They were further based on the ... agreement on the establishment of the International Military Tribunal of 8 August 1945 and the Report on the Berlin Conference held in Potsdam... Such retribution rules were adopted by practically all European states which had been occupied by Nazi Germany during the war and which had to take a position with respect to collaborators and traitors.
The words which [judge Š.] used in order to justify his judgment directly call in question the attitude which, after World War II, the democratic states in Europe took towards fascism and those who had served it.
It should be said, however, that [judge Š.] had no choice. When he wanted to reach the decision which he reached, no other reasoning was available – it simply did not exist... When I wish to say A, that is that the past of a person who was a member of the Hlinka Youth and who took part in the course in Sekule is not a fascist one, I am obliged to say also B, that is that I do not recognise the law which defines the Hlinka Youth as a fascist organisation. As the case may be, I will add that the Hlinka Youth was a good organisation and things are settled.
Thus, quo vadis, Slovakian justice? Slobodník is said to look forward to the international court in Strasbourg. However, a Slovakian citizen, having in mind such ‘objective’ decisions of the ‘independent’ and ‘impartial’ Supreme Court does not have many reasons for being pleased. Even if he or she is successful at first instance, the chances of obtaining justice after a possible appeal to the Supreme Court are slight as has been shown by the case Feldek v. Slobodník.”
On 12 August 1994 the weekly Domino efekt published an interview with the former president of the Constitutional Court who was the lawyer of Mr Feldek in the defamation proceedings brought by Mr Slobodník. It was entitled “Slovakia is governed by an absolute legal chaos” and the relevant parts read:
- “The press stated that [judge Š.], who decided the case of Slobodník against Feldek in the way he did and in which you were the advocate of the poet, is a candidate of the Christian-Social Union in the [parliamentary] election. What do you think about it?
- ... It is ... unusual that a judge, whose task it is to guarantee the objectiveness and impartiality in a democratic society, manifests his political views in public. Having one’s name included in the list of candidates of a political party undoubtedly represents such a manifestation of political views.
- Let’s talk about the particular inscription of [judge Š.] on the election list of a particular party, namely the Christian-Social Union...
- One should see that that party has a clear position as regards the period between 1939 and 1945. To put it mildly - it does not condemn that period. And this is the core of the problem - [judge Š.], who decided the case of Slobodník against Feldek, that is a dispute in which one of the main points at issue had been the behaviour of one of the participants during the period of the Slovakian State, is the candidate of a party which does not condemn the Slovakian State or the regime by which it was governed, on the contrary...
... Section 54 of the Judiciary and Judges Act clearly provides that one of the principal obligations of judges is that ‘a judge shall abstain from any action which could impair the dignity of the judicial function or jeopardise the trust in independent, impartial and just decision-making of the courts’...
- Do you think that [judge Š.] had internally decided ‘the case of Feldek’ long before the delivery of the judgment and that all the fuss in the court room served nothing?
- There is nothing else that I can think. The performance of that judge has no other explanation. In particular, I can say that, after the delivery of the judgment, I learned that the Supreme Court judges had expected such a decision to be taken. The views of [judge Š.] as regards the case or as regards the existence of the Slovakian State during World War II were known...
The appeal against the Bratislava City Court judgment, which was in favour of Mr Feldek, was transmitted to the Supreme Court on 22 February 1994... The case was decided upon on 23 March ... that is with the rapidity of a missile, and one can hardly find another case examined by the Supreme Court which was dealt with the same promptness.”
“See you soon in Strasbourg (Not even death will separate the couple Slobodník – Feldek)
The judicial proceedings in the case Slobodník v. Feldek which have lasted three years have not been ended by the decision delivered by the cassation chamber of the Supreme Court. Even the latter has not found the courage to quash in full the legal farce (‘paškvil’ [The Short Dictionary of the Slovakian Language (Slovak Academy of Sciences, Bratislava, 1989, p. 282) defines “paškvil” as (i) a satirical and offensive piece of writing or as (ii) an unsuccessful imitation of something.]) produced by [judge Š.] on 23 March 1994. The aforesaid judge quashed the decision delivered by the City Court in Bratislava and granted the whole claim lodged by Slobodník.
Two jokes were thus produced out of one... [To the extent that the claim by Mr Slobodník was granted by the cassation chamber of the Supreme Court], Feldek will bring the case ... before the European Court of Human Rights in Strasbourg.
Thus Slovakian justice was open to ridicule. To make things clear – the Slovak Republic has no chances of success in Strasbourg. The existing case-law of [the European Court of Human Rights] comprises a sufficient number of examples where that court used a phrase protecting freedom of expression as such, which every politician in a democratic state should be acquainted with: ‘The limits of admissible criticism are wider as regards a politician and narrower in the case of a private person’. It is easy and clear at the same time and the cassation chamber of the Supreme Court (like [Mr] Slobodník) has not grasped it...
A different fact is relevant: Feldek has to apologise for a civic ‘value judgment’ whereas this is not acceptable for the free world. ‘Value judgments’ expressed publicly are not, in accordance with the established European practice and also in accordance with the European Convention on Human Rights, susceptible of proof...
Should we admit (as we did in fact) [that a journalist who publishes his or her value judgments in respect of a public figure be obliged to prove the truth of such statements], a situation would arise which has nothing to do with democracy and with the principles of a democratic society. Citizens will simply fear making ‘value judgments’ because they will be under the threat of a sanction. As a result, the vital sap of democracy will dry out – namely an open debate on issues of public interest.
The Supreme Court failed to understand these principles which ... are simple and easy to understand and which are respected by the democratic world as something that is ‘given’. Or, as the case might be, it did not want to understand.
P.S. I will dare make a ‘value judgment’ despite the position which ‘value judgments’ have in this country thanks to this case law. In my view, the Supreme Court of the Slovak Republic did NOT WANT to respect the European principles of the protection of the freedom of expression. It would have sufficed if the judges had read the Constitution of the Slovak Republic. In particular Article 11 where it is written in black and white.”
10. On 20 September 1995 judge Š. filed an action under Article 11 et seq. of the Civil Code for protection of his personal rights against the applicant. The plaintiff claimed that the above articles interfered grossly with his civil and professional honour and also with his authority as a Supreme Court judge. The plaintiff further claimed that the applicant be ordered to publish an apology and to pay him SKK 150,000 in compensation for non-pecuniary damage.
11. In his reply the applicant stated that the author of the above articles had informed the public about the judicial proceedings in a case which attracted public attention. The contested statements were value judgments and the articles contained permissible criticism of a public figure.
12. On 3 July 1996 the Košice 1 District Court delivered a judgment in which it ordered the applicant to publish, in the weekly Domino efekt, the following statement:
“a) ... the article ‘A shameful judgment delivered by the Supreme Court; Quo vadis, Slovakian justice’, which presented [judge Š.], the president of a chamber of the Supreme Court in a negative light and which ridiculed the proceedings conducted by him,
b) ... the interview with the former president of the Constitutional Court published on 12 August 1994 in which it is stated that [judge Š.] made up his mind on the outcome of the proceedings long before the delivery of the judgment,
c) the phrase ... ‘Even the latter has not found courage to quash in full the legal farce produced by [judge Š.] on 23 March 1994’ which was published in the article ‘Not even death will separate the couple Slobodník – Feldek; See you soon in Strasbourg’ published on 16 June 1995,
interfere grossly and without any justification with the civil and professional honour of [judge Š.] for which [the applicant], as the editor of the newspaper Domino efekt makes a public apology to [judge Š.]...”
13. The applicant was further ordered to pay the plaintiff SKK 50,000 in compensation for non-pecuniary damage and to pay the court fees and the plaintiff’s costs.
14. The District Court found that the limits of objective and acceptable criticism had been exceeded in that the above articles comprised such expressions as “tragicomic farce”, “shameful judgment”, “strange reasoning” and “legal farce”. The first and the third article were capable of giving the readers the impression that the plaintiff had been biased. The District Court further recalled that the judgment criticised in the articles was delivered by an appellate chamber of three judges. However, the articles referred to the plaintiff as if he were the only author of the judgment. The District Court recalled that a chamber of the appellate court always decides after deliberations in the presence of a typist. A majority of votes is required and the presiding judge is the last to vote. The District Court also recalled that judges are independent when deciding on matters before them and that the cassation chamber of the Supreme Court had not found any procedural shortcomings in the proceedings leading to the judgment criticised in the above articles.
15. When deciding to grant non-pecuniary damages to the plaintiff the District Court noted that the above articles criticised, repeatedly and without justification, a judge of the Supreme Court whereby his dignity and position in the society had been considerably affected.
16. The applicant and the plaintiff appealed. The applicant argued that the District Court had failed to apply the law correctly and that it had decided arbitrarily. The applicant submitted that the statements in question were value judgments which were based on facts explicitly set out in the articles. He therefore requested that the first instance judgment, to the extent that it granted the action, be overturned. The plaintiff failed to submit any reasons and subsequently he maintained that he had not appealed.
17. On 24 June 1997 the Košice Regional Court overturned the first instance judgment in that it dismissed the action of judge Š. The Regional Court’s judgment stated that the applicant had ceased being the editor of Domino efekt in February 1997. As he was not the author of the articles in question, he no longer had standing to be a defendant in the case. The new editor could not be sued as he was not a general successor to the rights and obligations relating to the weekly. The plaintiff’s claim that an apology be published in the weekly could not, therefore, be granted.
18. The Regional Court also examined the merits of the case and found that the phrase “Even the latter has not found courage to quash in full the legal farce produced by [judge Š.] on 23 March 1994” published on 16 June 1995 represented an attack against the authority of the courts as such and that it was not proportionate to the aim pursued, namely to criticise the reasons for the Supreme Court judgment presented orally by judge Š. However, no satisfaction could be granted in this respect as the applicant had lost standing in the case.
19. On 9 September 1997 the plaintiff filed an appeal on points of law in which he challenged the conclusions reached by the Regional Court.
20. On 29 May 1998 the cassation chamber of the Supreme Court quashed the Regional Court’s judgment of 24 June 1997. The Supreme Court held that the appellate court had decided erroneously and instructed the latter to take further evidence. As regards the merits of the case in particular, the court of cassation held that because of their expressive character the applicant’s statements were disproportionate to the aim pursued, namely to criticise a judicial decision or the public activities of judge Š. In the Supreme Court’s view, those statements clearly indicated that the applicant had intended to offend judge Š., to humiliate and discredit him. Limits of acceptable criticism had been thereby exceeded.
21. On 11 March 1999 the Košice Regional Court upheld the part of the Košice 1 District Court’s judgment of 3 July 1996 by which the applicant had been ordered to pay SKK 50,000, together with the statutory default interest, to the defendant in compensation for non-pecuniary damage. The Regional Court further dismissed the remainder of the plaintiff’s action.
22. The judgment stated that the plaintiff had failed to submit reasons for his appeal. Accordingly, the Regional Court could review the first instance judgment only to the extent that it had been appealed against by the applicant. The Regional Court dismissed the claim that an apology be published in Domino efekt as (i) the editing rights had been transferred to a different person and the name of the weekly had changed and (ii) the plaintiff had failed to amend his action so that a judgment in this respect could be enforced. The Regional Court noted that the plaintiff had failed to specify which parts of the article published on 1 April 1994 interfered with his personal rights. The relevant part of the action was therefore also dismissed.
23. As regards the merits of the remaining part of the case, the Regional Court recalled, with reference to Article 10 of the Convention and the relevant provisions of the Constitution, that judges enjoyed special protection as regards the criticism of the way in which they exercised their function. This was dictated by the requirement of impartiality of judges. The latter could be jeopardised if the society tolerated unjustified criticism of a judge for a decision delivered by him or her.
24. The judgment further stated that the situation is different in cases where a judge makes public his or her intention to become involved in politics, and where the decision on a case to be subsequently taken by such a judge is linked to the political views presented by him or her. By failing to withdraw from a case in such circumstances the judge concerned deliberately exposes himself or herself to the threat of criticism by the public, notwithstanding that the decision in question was lawful. The Regional Court therefore held that, when a judge decided to become involved in politics, he or she became a person of public interest and, as such, he or she no longer enjoyed special protection as regards the limits of acceptable criticism.
25. The Regional Court recalled that it was bound by the views expressed in the judgment delivered by the cassation chamber of the Supreme Court on 29 May 1998. It therefore concluded that the contested statements in the articles published on 12 August 1994 and on 16 June 1995 interfered with the personal rights of the plaintiff, whereby his dignity and the esteem for his person in society had been considerably diminished. The expressive character of the terms used was disproportionate to the aim pursued, namely the criticism of a judicial decision or the plaintiff’s involvement in public life. Those terms clearly showed that the purpose of the statements was to offend, to humiliate and to discredit the criticised person. Accordingly, the plaintiff was entitled to compensation for non-pecuniary damage which he had thus suffered.
26. On 19 April 1999 judge Š. filed an appeal on points of law. It was dismissed by the Supreme Court on 28 September 2000.
27. The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code.
28. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
29. Pursuant to Article 13 (1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
30. Article 13 (2) provides that in cases where the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person’s dignity and position in society have been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage.
VIOLATED_ARTICLES: 10


ITEMID: 001-57551
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF O. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;No violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved
JUDGES: C. Russo;N. Valticos
TEXT: 8. At the time of his application to the Commission, the applicant, an Irish national born in 1943, lived in England. He was married in 1967 but was divorced from his wife on 20 October 1981. During their marriage they had seven children, A, B, C, D, E, F and G, born in 1968, 1970, 1971, 1973, 1975, 1977 and 1978 respectively.
9. In 1973, because of accommodation problems, the couple on three occasions put their then children into the voluntary care (see paragraphs 29-31 below) of the local authority ("the Authority"). On 11 January 1974, the local juvenile court made care orders (see paragraphs 21-23 and 25 below) in respect of A, B, C and D. As the applicant had obtained more satisfactory accommodation, these orders were discharged at his request by the juvenile court in June 1975 and replaced by supervision orders (see paragraphs 24 and 27 below).
10. Following concern as to the children’s welfare, brought to a head when the applicant assaulted A, the Authority obtained from the juvenile court on 2 July 1976 care orders in respect of A, B, C, D and E; the latter are hereinafter referred to as "the children", F and G not being the subject of the present proceedings. On 9 September 1976, the Crown Court dismissed the applicant’s appeal against this decision; he did not lodge a further appeal (see paragraph 28 below).
11. The children lived at first in a children’s home. In December 1976, A and B were placed with foster parents near the town where the applicant lived, and C with other foster parents in the same town. In February 1978, D and E, who had remained in the meantime at the children’s home, were placed with foster parents at an address which was not given to the applicant by the Authority. It so decided following a case review held on 17 October 1977 and attended by social workers responsible for the children; the applicant was not informed of the review and was not invited to attend it.
12. Until June or July 1978, the applicant and his wife continued to visit the children - or those whose whereabouts they knew - at least once a week, although the foster parents complained that the visits upset the children. The social worker responsible then proposed that future visits take place at the social services building in the town where the applicant lived. The parents saw there all five children, for about an hour, on 4 July 1978 and A, B and C, for about 45 minutes, on 24 April 1979.
13. An application by the parents, who had taken legal advice with a view to establishing their right to access to the children, to revoke the care orders was rejected on 13 June 1979 by the juvenile court; the proceedings could not lead to a review of the isolated question of access, since the juvenile court, pursuant to the statutory provisions, had to determine whether or not it was appropriate to discharge the care orders as a whole (see paragraphs 27 and 42 below). No appeal was lodged against this decision (see paragraph 28 below).
14. On 14 June 1979, the applicant’s solicitors wrote to the Authority’s Social Services Department seeking regular access for the parents to the children. In an interim reply of 20 June, the Department indicated that it would be holding a case conference in the near future, but that its policy concerning the children was unlikely to change significantly. A fuller reply, dated 10 July, was in the following terms:
"Further to my letter of the 20th June, a case conference has now been held to determine our future policy in respect of the five ... children in the care of this Authority.
As you will no doubt appreciate, our paramount consideration must be the best interests of the children. In coming to a decision the case conference was very aware of Section 59 of the Children Act 1975 which [provides]: ‘In reaching any decision relating to a child in their care, a Local Authority should give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.’ As a result of the unsuccessful application by the [applicant and his wife] to have the Care Orders on their children in the care of the [Authority] discharged, the real desire of all these children to remain with their foster parents was emphasised. The case conference therefore decided that the best interests of the children would be served by them remaining on a long term basis with their present foster parents.
The visits which the [applicant and his wife] have made to their children in the past have proved quite unsettling for the children and their foster parents. In view of the fact that we see these children remaining in long term care emphasis should be placed on helping the children feel secure and happy in their foster homes. I therefore have to inform you that in the interests of the children there should be no contact with their natural parents.
I do appreciate that this decision will be a matter of deep disappointment to the [applicant and his wife]. My social worker ... will be in touch with them in the near future and will be pleased to discuss with [them] in more detail the reasons behind this decision."
The applicant asserts that he was not invited to attend the case conference referred to in this letter or consulted beforehand about the decision to terminate access.
15. On 25 February 1980, the parents, in an attempt to raise the question of their access to the children, issued an originating summons as a result of which the latter became wards of court (see paragraphs 36-38 and 43 below). On 2 April, the Authority applied to the High Court for the wardship to be lifted (see paragraph 38 below); the parents contended in reply that while the Authority should continue to have care of the children, they should have access to them.
16. At a hearing held on 6 October 1980, the High Court examined the questions whether it had jurisdiction to consider the parents’ application for access in the context of wardship proceedings and whether the wardship should continue. The judge stated:
"... this Court does not sit as a Court of Appeal in relation to decisions of the Local Authority, and can only interfere with a decision of the Local Authority on the basis of the principles governing the interference with statutory discretions given to statutory bodies; that is, this Court can only interfere if it is satisfied that the Local Authority has taken into account matters which it should not have taken into account, or has not taken into account matters which it should have taken into account, or it can interfere if it comes to the conclusion that the Local Authority has come to a decision which no reasonable Local Authority could have come to. It can also interfere, of course, if it were satisfied that the Local Authority had been acting in bad faith."
Given this limited jurisdiction, he held that the Authority’s decision to refuse further access was not impeachable on any of the above grounds and therefore must stand. He accordingly terminated the wardship order.
The applicant was advised that although an appeal from this decision would have been possible, it would have had no prospects of success in the light of the relevant case-law (see paragraphs 42-43 below).
17. On 25 August 1981, an adoption order was made in respect of D and E, the judge having dispensed with the consent of the applicant and his wife (see paragraph 46 below). The 1976 care orders in respect of these two children thereupon terminated.
The applicant left the United Kingdom in late 1984. It appears that he was not then regularly visiting A and C (the Authority’s embargo on access never having been lifted) and that they did not wish him to do so. It also appears that he was not then regularly visiting B, although he had re-established contact with him at the latter’s request. B and C are still subject to the 1976 care orders; that in respect of A terminated in 1986, on her attaining the age of 18.
18. In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority.
Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative.
The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets.
By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for compulsory care and the wardship jurisdiction of the High Court which were directly relevant.
19. The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders.
20. Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger.
A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it.
If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 36-38 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 21-23 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 26 below); if an application of the last kind is refused, the child’s immediate release "may be ordered".
21. Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court.
22. In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented.
A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation.
23. If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 20 above).
24. A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents.
25. A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption.
26. An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 20 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 25 above).
27. A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act).
In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child.
28. Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords.
The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court.
29. The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently.
30. Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare.
31. Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]).
Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 32 below) or apply to make the child a ward of court (see paragraphs 36-38 below).
32. If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975).
Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account.
33. If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]).
34. A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]).
The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980).
35. Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords.
36. The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court.
37. The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority.
Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child.
38. Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings.
A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords.
The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive.
Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory.
39. The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]).
Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers.
40. A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority.
In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 42 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection.
41. A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court.
Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time.
42. The statutory remedies described in paragraphs 27-28 and 33-35 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child.
A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows:
(a) the authority acted illegally, ultra vires or in bad faith;
(b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223);
(c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986).
The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)).
43. In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 42 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court.
The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests.
44. The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point.
Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration.
This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion.
45. In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access.
46. A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3).
47. Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-84966
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TRAJKOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1964 and lives in Prilep.
6. In a number of administrative proceedings, the applicant challenged the lawfulness of administrative decisions related to the construction and operation of a petrol station that was located a few metres from his home. He also brought criminal charges against the state officials who took the relevant decisions and against the manager of the petrol station.
7. On 30 January 2001 at 8.20 p.m. the applicant, accompanied by his wife and Mr P.N., went to the Prilep police station to report the possibility of a fire and explosion at the petrol station as a result of alleged improper handling of petrol stocks at the time. Upon their arrival, they had parked their car in front of an access ramp on the street in front of the police station. At the warden’s request, the applicant had moved his car to a car park situated behind the “Lipa” hotel. After the applicant had entered the police station, the same officer had pushed him backwards. In his initial submission, the applicant stated that a gun had also been pointed at his head. Seven or eight police officers had arrived at the scene and had assaulted him, grabbing him by his arms, legs and hair and throwing him against the stairway. They had continued hitting and beating him all over his body. During the beating, the police officers had used offensive language.
8. The Government submitted that the applicant had parked his car in front of the entrance of the Prilep police station on a street on which no traffic and parking had been allowed. They further maintained that he had failed to move his car despite having been ordered to do so by the police officers on duty. The applicant had then entered the police station without identifying himself. He had ignored the officers’ verbal order that he leave the building. He had actively resisted when police officers took him out of the station.
9. A medical certificate (“the first certificate”) issued on 30 January 2001 at 9.15 p.m. indicated that the applicant had sustained several bodily injuries which did not qualify as grievous. A tranquilliser was prescribed. That certificate did not specify the possible origin of the injuries, their timing or the way in which they had been inflicted.
10. After communication of the case, the applicant obtained another medical certificate issued on 11 May 2006 by the Prilep Hospital which described the applicant’s injuries, noted on the first certificate, in the following terms: slight redness on the right temple, a scratch on the right ankle and a toe. In addition, it was noted that his right elbow and the left side of his hip were tender.
11. After communication, the applicant also obtained a forensic expert report of 23 May 2006 concerning his post-incident trauma. That report, which was based on the medical records and the applicant’s statement, indicated that, after the incident, the applicant had a bruise on his left elbow, a scratch on his left shinbone and bruises on his face below his left eye and on his left hip.
12. No court decision about the incident at issue has been given against the applicant.
13. On 30 January 2001 the applicant asked the Sector to investigate the incident. On 23 August 2001 the Sector drew up a report giving a factual account of the incident. It established that the applicant had been taken out of the building after he had ignored the officers’ verbal order to that effect. He had actively resisted the police officers and he had behaved in an arrogant manner. It found that there had been no abuse of power by the police in their attempts to subdue the applicant. It further stated that on 6 February 2001 an application for misdemeanour proceedings had been submitted against the applicant under the Act on minor offences against public order. That application indicated, inter alia, that policemen had grabbed the applicant by his arms and taken him outside the police premises.
14. On an unspecified date, the applicant brought before the public prosecutor criminal charges against Mr P.R., a police officer who had allegedly participated in the incident, for having ill-treated him while on duty. It cannot be established whether the applicant complained about other policemen as well.
15. The Government stated that on 9 March 2001 the public prosecutor requested that additional inquiries be made by the Ministry of the Interior (“the Ministry”). The latter submitted an official report about the incident in reply. No evidence was submitted in support of that assertion.
16. On 15 May 2001 the public prosecutor rejected the applicant’s complaint, arguing that the alleged offence was not considered to be a crime that could be prosecuted upon his motion. It was established that on 30 January 2001 the applicant had parked his car in front of the entrance of the Prilep police station, blocking the police cars’ way. He had shouted at police officers and threatened to set the petrol station on fire. Mr P.R. and Mr K.N., another police officer, had ordered the applicant to move his car. After having questioned Mr P.R. and other police officers, including Mr P.N., who had been present at the scene at the time, the public prosecutor established that Mr P.R. had not ill-treated the applicant, nor had the latter been subjected to inhuman and degrading treatment. No gun had been pointed at him by Mr P.R. or by any other police officer. It was finally concluded that Mr P.R. had not committed the offence complained of or any other prosecutable act.
17. On 22 May 2001 the applicant lodged a subsidiary criminal complaint against Mr P.R. and four other unidentified police officers with the Prilep Court of First Instance (“the trial court”). He complained that he had been shouted at, insulted, beaten and dragged across the floor and that as a result he had sustained light bodily injuries and bruises. He requested that the trial court hear statements from him, his wife and Mr P.N., who had been an eyewitness to the incident, as well as from Mr K.N.
18. On 20 June 2001 the trial court requested that the applicant make his complaint more specific by providing the names of the unidentified police officers.
19. On 26 June 2001 the applicant informed the trial court that he was unable to discover the identities of the remaining police officers. He pointed out that one of them had been a warden and the other a guard at the time of the events. He further maintained that the trial court could officially request information about their identities and that he would easily be able to confirm it afterwards.
20. On 2 July 2001 the trial court rejected the applicant’s subsidiary complaint as incomplete, namely because he had not identified the remaining four police officers. No comment was made as to the charges against Mr P.R.
21. On 1 August 2001 the applicant appealed against that ruling, arguing that the trial court had failed to investigate his allegations, and that he had no effective way of discovering the identities of the police officers concerned but that he would be able to identify them in a line-up.
22. On 7 November 2001 the Bitola Court of Appeal upheld the trial court’s ruling.
23. On 25 December 2001 the public prosecutor informed the applicant that there were no grounds for lodging a request for the protection of legality with the Supreme Court.
24. Section 254 § 1 (1) of the Criminal Proceedings Act (“the Act”) provides that an indictment should contain, inter alia, personal information about the person accused.
25. In accordance with section 255 § 2 of the Act, the president of the adjudicating panel examines whether the indictment has been duly completed, and if it has not, he/she shall return it to the claimant, who shall to rectify it within three days. If an injured party does not comply with that time-limit, the prosecution shall be considered as having been withdrawn and the proceedings shall be suspended accordingly.
26. Other statutory provisions relevant to the present case are described in the Jasar case (see Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 31-40, 15 February 2007).
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-97219
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SABIROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1;Violation of Art. 6-1;Violation of Art. 6-3-c
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1982 and lives in Sharan, Bashkortostan Republic.
7. On an unspecified date the applicant was charged with disorderly conduct. On 25 April 2003 he signed an undertaking not to leave the town.
8. On 8 July 2003 the Justice of the Peace of the Sharanskiy District of the Bashkortostan Republic found the applicant guilty as charged and sentenced him to one year and nine months' imprisonment, conditionally suspended for two years. It ordered the applicant to remain in the town until the conviction became final. The applicant and the prosecutor appealed.
9. On 19 August 2003 the Sharanskiy District Court of the Bashkortostan Republic upheld the applicant's conviction on appeal. It revoked the suspension of the sentence, however. On the same day the applicant was taken into custody.
10. Further to a cassation appeal lodged by the applicant, on 9 October 2003 the Supreme Court of the Bashkortostan Republic quashed the District Court's judgment of 19 August 2003 and remitted the case to the District Court for fresh examination. The Supreme Court noted that the District Court had failed to observe the procedure pertaining to the presentation of the final submissions by the parties and to classify the conviction in full compliance with the applicable substantive law.
11. The applicant remained in custody. He allegedly complained to the director of the remand prison that his continued detention was not based on a judicial decision and asked to be released. The director responded by informing him that a certain “Judge K.” had told him not to release the applicant until further notice. The applicant also complained to the Supreme Court of the Bashkortostan Republic but received no reply.
12. On 5 November 2003 the District Court fixed an appeal hearing for 13 November 2003. Neither the applicant nor his counsel attended the hearing. As regards the applicant's detention, the court noted as follows:
“The preventive measure, notably placement of [the applicant] in custody, should remain unchanged.”
13. According to the applicant, he received a copy of the decision of 5 November 2003 on 25 November 2003. Therefore, he considered that he had missed the ten-day time-limit for challenging the decision in question and did not lodge an appeal against it.
14. On 5 December 2003 the District Court upheld the applicant's conviction on appeal and revoked the suspension of his conditional sentence. The applicant was represented by Mr G., state-appointed counsel. Both the applicant and the prosecutor appealed.
15. The Supreme Court scheduled a hearing for 17 February 2004. On 29 January 2004 the court dispatched summonses to the parties, including the applicant and his counsel, notifying them of the date and time of the hearing.
16. On 17 February 2004 the Supreme Court held the cassation hearing. It heard the prosecutor and granted his request to reclassify the charges against the applicant. It found the applicant guilty of battery and sentenced him to one year, eight months and fifteen days' imprisonment. The applicant was neither present nor represented.
17. A defendant can be remanded in custody or his detention can be extended only on the basis of a judicial decision (Russian Constitution, Article 22). The court should make the relevant decision upon a reasoned request by the prosecutor or the investigator supported by appropriate evidence (Code of Criminal Procedure, Article 108 § 3) or of its own motion (Code of Criminal Procedure, Article 108 § 10).
18. When considering a cassation appeal lodged by one of the parties to the criminal proceedings, the cassation court is required to decide whether or not a preventive measure, including placement in custody, should be applied pending a new hearing (Code of Criminal Procedure, Article 388 § 1).
19. The Supreme Court of Russia provided the following interpretation of the relevant parts of Article 388 § 1 (Resolution no. 28 “on application of the rules set forth in the Russian Code of Criminal Procedure governing appeal and cassation proceedings, adopted on 23 December 2008, as amended):
“23. When quashing the verdict or any other judicial act and remitting the matter for fresh consideration to the trial or appeal court or to the prosecutor, the cassation court should, if asked by the prosecutor or of its own motion, decide whether to apply a preventive measure in respect of the defendant who is held in custody, the aims [of this decision] being the protection of the rights and legal interests of the parties to the proceedings and the proper conduct of the court hearing within a reasonable time. The court may impose any of the preventive measures authorised by [law] provided it ensures that the said aims are achieved.
When deciding to extend the defendant's detention..., the cassation court should specify... the exact time-limit of the [detention]. If, on the date of the decision, the earlier imposed detention period has not expired and this period is sufficient to secure the above-mentioned aims, [the court] should indicate... that the previously imposed detention will remain unchanged. In any event, [the court] should state the reasons for its decision.”
20. The failure of a party, who has been duly notified of the date, time and place of the cassation hearing, to attend the hearing should not preclude the court from proceeding with the examination of the case (Code of Criminal Procedure, Article 376 § 4).
21. If a convicted person wishes to take part in the appeal hearing, he or she must indicate this request in his statement of appeal (Code of Criminal Procedure, Article 375 § 2).
22. If the court is unable to proceed owing to the absence of a party summoned to court, it must adjourn the hearing (Code of Criminal Procedure, Article 253 § 1).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-23610
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PAULINO TOMAS v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Ana Maria Paulino Tomás, is a Portuguese national who was born in 1970 and lives in Caldas da Rainha (Portugal). She was represented before the Court by Ms A.P. de Carvalho, of the Caldas da Rainha Bar, who appeared on her behalf at the hearing on 27 March 2003. The respondent Government were represented at the hearing by their Agent, Mr J. Miguel, Deputy Attorney-General, assisted by Ms M.M. Flores Ferreira, Deputy Attorney-General and coordinator of the Administrative Proceedings Division of the Central Administrative Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 May 1993 the applicant brought an action for damages against two private individuals and the Motor Insurance Fund (“the Fund”) in the Caldas da Rainha District Court after suffering a road accident. She also applied for legal aid.
On 25 May 1993 the court summoned the defendants to appear.
The Fund filed pleadings in reply on 13 July 1993. One of the other defendants filed his pleadings on 14 July 1993 and also applied for legal aid.
In an order of 10 February 1995 the court requested information from the police authorities about the financial and social circumstances of the applicant and the defendant who had applied for legal aid. The National Republican Guard replied on 26 May 1995.
On 26 June 1995 the court gave a preliminary decision (despacho saneador) setting out the facts that had already been established and the matters remaining to be clarified. It also awarded legal aid to the applicant and the defendant who had applied for it.
After the registry of the Caldas da Rainha District Court had realised that the applicant had not been notified either of the defendants’ pleadings in reply or of the preliminary decision, the court directed on 15 February 1996 that those documents should be served on her.
On 30 September 1996 the applicant submitted a list of the witnesses she wished to have examined. She also asked the court to order an insurance company and the Caldas da Rainha medical centre to produce certain documents and requested an expert medical opinion. The court allowed her requests on 28 October 1996.
The Caldas da Rainha medical centre produced the requisite documents on 30 January 1997. The insurance company did so on 2 December 1997, after the court had fined it for failing to comply with its order in good time.
In an order of 30 January 1998 the court announced that the appointment of the experts would take place on 9 February 1998. The experts carried out the examination on 20 May 1998 and submitted their report on 2 June 1998.
On 30 June 1998 the court set the case down for hearing on 25 November 1998. However, the hearing could not take place on that date because counsel for one of the defendants was absent. It was postponed until 26 April 1999 but could not take place on that date either, as the District Court was occupied with the taking of evidence from witnesses in a criminal case. The hearing finally took place on 16 November 1999.
In a judgment of 4 January 2000 the District Court allowed the applicant’s claims in part.
Article 20 § 4 of the 1976 Constitution enshrines the right to a “judicial decision within a reasonable time”.
Article 22 also defines the civil liability of the State and its authorities and agents in the following terms:
“The State and other public bodies shall be jointly and severally liable in civil law with the members of their agencies, their officials or their agents for actions or omissions in the performance of their duties, or caused by such performance, which result in violations of rights, freedoms or safeguards or in prejudice to another party.”
Legislative Decree no. 48051 governs the State’s non-contractual civil liability. It contains the following provisions of relevance to the instant case:
Article 2 § 1
“The State and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by unlawful acts committed with negligence (culpa) by their agencies or officials in the performance of their duties or as a consequence thereof.”
Article 6
“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.”
Article 7
“The obligation on the State and other public bodies and on members of their agencies and their officials to pay compensation shall not be contingent on the victims’ use of their right of appeal against the measures that gave rise to the damage; however, the right to compensation shall be available only if the damage is not attributable to the failure to lodge an appeal or to negligence in the conduct of proceedings after an appeal has been lodged.”
In accordance with the case-law concerning the State’s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.
Article 498 of the Civil Code provides that the right to compensation is time-barred after the expiry of a period of three years from the date on which the victim becomes, or should have become, aware of the possibility of exercising that right.
The Supreme Administrative Court’s decision of 7 March 1989 in the case of Garagens Pintosinho, Lda was for a long time the only example of the application of Legislative Decree no. 48051 to the length of proceedings. Referring to the judgments of the European Court of Human Rights in the cases of Guincho v. Portugal (10 July 1984, Series A no. 81), Baraona v. Portugal (8 July 1987, Series A no. 122) and Martins Moreira v. Portugal (26 October 1988, Series A no. 143), the Supreme Administrative Court considered that the excessive length of proceedings was to be regarded as an unlawful act meriting compensation. The main period in issue in the Garagens Pintosinho, Lda case was the five years it took for the Lisbon industrial tribunal to deliver a judgment that should have been given within a statutory period of three days.
Subsequently, on 15 October 1998, the Supreme Administrative Court gave a ruling in the case of Pires Neno, concerning civil proceedings that had lasted almost seven years for one level of jurisdiction. The appellants in that case had also lodged an application with the European Commission of Human Rights complaining of the length of those proceedings. Their application had resulted in the adoption by the Committee of Ministers of the Council of Europe of a resolution awarding them 540,000 Portuguese escudos (PTE) by way of just satisfaction. The Supreme Administrative Court allowed their claims in part and ordered the State to pay them PTE 900,000 in compensation, less the above-mentioned sum of PTE 540,000. Referring to the Strasbourg Court’s case-law, it considered, in particular, that the State incurred non-contractual civil liability for the non-pecuniary and pecuniary damage resulting from the unlawful and negligent administration of justice in breach of Article 20 of the Constitution and Article 6 § 1 of the Convention. The judgment was published and commented on in the legal journal Cadernos de Justiça Administrativa (no. 17, September/October 1999).
The Supreme Administrative Court gave a similar decision on 1 February 2001 in the case of Alecarpeças, Lda, concerning the delay with which a court’s instructions had been carried out in enforcement proceedings. The court pointed out that failure to comply with procedural deadlines was not in itself an unlawful act but that it became unlawful if Article 6 § 1 of the Convention was breached at the same time.
Lastly, the Coimbra Administrative Court, in a judgment of 14 July 1999 that was not contested by the State, likewise allowed a claim for damages on the basis of the State’s non-contractual liability for the excessive length of proceedings concerning an objection to an enforcement measure that had already been carried out.
According to a statistical table produced by the Government, twenty-five actions to establish non-contractual liability on the part of the State for the excessive length of proceedings had been brought before the administrative courts. In four of them the courts had found against the State, and in four others the applicants’ claims had been dismissed. The proceedings are still pending in seventeen cases; in two of them, the first-instance court has found against the State, which has subsequently appealed to the Supreme Administrative Court.
In July 2001 the Government tabled Bill no. 95/VIII in Parliament, concerning the State’s non-contractual civil liability and repealing Legislative Decree no. 48051.
The explanatory memorandum on the bill stated, inter alia, that “for the first time in Portuguese law”, there was a statute dealing comprehensively with the State’s non-contractual liability for damage resulting from the performance of political, legislative, administrative and, “for the first time in Portugal”, judicial duties. It pointed out that it had been “thought helpful to incorporate into law various conclusions reached by the courts over the course of time”.
Clauses 7 to 10 of the bill governed the State’s liability for damage caused in the performance of its administrative duties. Clause 7 (2) and (3) explicitly introduced the concept of “administrative fault” or “official error”.
Clause 12 of the bill provided, inter alia:
“... the rules on liability for unlawful acts committed in the performance of administrative duties shall apply to damage caused by the unlawful administration of justice, particularly in the case of a violation of the right to a judicial decision within a reasonable time.”
The bill lapsed as a result of the dissolution of Parliament.
On 21 November 2002, however, the new Parliament passed on its first reading Bill no. 148/IX, tabled by members of the Socialist Party, which reproduced in full the explanatory memorandum to and the text of Bill no. 95/VIII.
The bill still has to be approved on its second reading.
On 20 December 2002 the Attorney-General issued a circular to all officials and members of his department. He instructed them not to challenge the administrative courts’ jurisdiction ratione materiae to deal with actions to establish non-contractual liability on the part of the State for the excessive length of proceedings.
By Article 76 of the Regulations on the Attorney-General’s Department, all officials and members of the department are required to abide by the circular.


ITEMID: 001-81637
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VYROVYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1936 and lives in Vinnytsya.
5. In 1992 the applicant requested the State Cooperative Association “Zakhidelevatoragrospetsbud” (the “Association”; Державно-кооперативне об'єднання по агропромисловому будівництву “Західелеваторагроспецбуд”), his employer at the material time, to grant him and his family priority in the allocation of housing to employees. Subsequently his request was allowed on account of the fact that his father had fought and perished in World War II.
6. In January 1997 the Association attributed the applicant apartment no. 43 in a new building being constructed by several investors, including the Association. However, in September 1997 the Association transferred this apartment to another investor, as the value of its contribution into the construction project had been reassessed at a lower level.
7. On 1 March 1998 the Association transferred its assets to the State Company “Vinelevatorbud” (the “Company”; Державне підприємство “Вінелеваторбуд”) and ceased carrying out any business. However, the liquidation formalities were not completed.
8. On 9 December 1997 the applicant instituted civil proceedings in the Staromisky District Court of Vinnytsya (the “District Court”; Староміський районний суд м. Вінниця) against the Association, asserting his rights to apartment no. 43.
9. Between December and June 1998 the court adjourned five hearings on account of the Association's absence, and one on account of the court's relocation to another building.
10. On 8 June 1998 the District Court allowed the applicant's claims and allocated him apartment no. 43, having found that the re-distribution of the apartment between the investors was flawed and that the applicant's family were entitled to priority allocation of housing. The Association lodged an appeal in cassation.
11. On 14 July 1998 the Vinnytsya Regional Court (the “Regional Court”; Вінницький обласний суд) quashed this judgment, having found that the analysis of facts and law by the District Court was insufficient and remitted the case to the District Court for a fresh consideration.
12. On 1 October 1998 the District Court dismissed the applicant's claims, having found that the re-distribution process was not in breach of applicable law. The applicant lodged an appeal in cassation.
13. On 1 December 1998 the Regional Court quashed this judgment and remitted the case to the District Court for a fresh consideration. In particular, it found that the District Court's analysis was insufficient.
14. Between January and April 1999 the District Court held two hearings, one of them being adjourned on account of the parties' failure to appear.
15. On 22 April 1999 the District Court found that, since the applicant was entitled to priority housing, the Association should have redistributed another apartment to the investors. The court further obliged the Association to provide the applicant with an apartment of equal value at its own expense. This judgment was not appealed against and became final in May 1999.
16. On an unspecified date the Staromisky District Bailiffs' Service initiated the enforcement proceedings in respect of the judgment of 22 April 1999 and requested the District Court to provide instructions as to the execution of the judgment, given that the Association had transferred all its assets to the Company.
17. On 30 September 1999 the District Court found the Company to be the Association's successor in respect of the judgment of 22 April 1999 and ordered it to pay the applicant 31,080 Ukrainian hryvnyas (UAH) instead of providing an apartment. This decision was not appealed against and became final in October 1999.
18. On 13 January 2000 the Presidium of the Regional Court quashed the ruling of 30 September 1999 following a “protest” instituted by the court's President and ordered the District Court to re-consider the request of the Bailiffs' Service. In particular, the Presidium noted that the District Court had not requested any liquidation documents and had insufficiently explored whether the Association had been succeeded by the Company. Furthermore, in breach of applicable law, the court had neither heard nor summoned the parties concerned.
19. On 14 April 2000 the District Court found that the Association had not been formally liquidated and ordered it to purchase an apartment for the applicant. This decision became final in April 2000.
20. On 30 May 2000 the applicant petitioned the District Court to re-open the proceedings in connection with a “newly disclosed circumstance” (перегляд за нововиявленими обставинами), namely that the Association had, in fact, ceased to exist.
21. On 7 July 2000 the District Court allowed the applicant's petition. It annulled the judgment of 22 April 1999 and remitted the case for a fresh consideration, having summoned the Company as the defendant in the Association's stead.
22. On 29 September 2000 the District Court allowed the applicant's claims and ordered the Company to provide him with an apartment. The Company appealed in cassation.
23. On 21 November 2000 the Regional Court, by a final decision, upheld the judgment of 29 September 2000.
24. On 29 March 2001 the Presidium of the Regional Court quashed the judgment of 29 September 2000, following a “protest” lodged by the Deputy President of the Supreme Court, and remitted the case for a fresh consideration.
25. Between May 2001 and March 2002 the District Court adjourned seven hearings, one of the adjournments being attributable to the applicant (amendment of claims).
26. On 15 March 2002 the District Court partly allowed the applicant's claims. It obliged the Association and the Company jointly to provide an apartment to the applicant. The Company appealed.
27. On 4 June 2002 the Regional Court quashed this judgment and remitted the case for a fresh consideration, having found that the District Court had still failed to explore a number of issues, including that of succession between the Association and the Company.
28. On 19 December 2002 the District Court dismissed the applicant's claims, having found that the defendants had no apartments for distribution and the applicable law did not provide for monetary compensation in this event. Moreover, the applicant no longer qualified for priority treatment either by the Association or the Company, since he no longer worked for them and his living conditions were satisfactory. The applicant appealed.
29. On 1 April 2003 the Regional Court upheld this judgment. The applicant appealed in cassation.
30. On 23 May 2003 the District Court returned the applicant's appeal in cassation as “not lodged” on account of his failure to abide by the court's order to pay a court fee. The applicant appealed, seeking to be relieved of the obligation to pay the fee.
31. On 7 July 2003 the Regional Court dismissed the applicant's appeal against the decision of 23 May 2003. The applicant did not appeal in cassation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86408
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TOPPLAN ESTATES LTD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: The applicant, is a limited company registered in London. It is represented before the Court by Bude Nathan Iwanier, a firm of lawyers practising in London. The respondent Government are represented by Ms A. Sharif, Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
In March 1992, the applicant purchased, from the liquidators of an insolvent company, 13 acres of land consisting of open fields in Lancashire and was registered as proprietor of the land at HM Land Registry. A neighbouring farmer, whose father had held a grazing licence over the land, had been using the land for grazing and for harvesting hay, without any right to do so, since 1 January 1983, but the applicant was unaware of this at the time of purchase.
On 23 October 2003, the High Court dismissed the applicant’s claim to possession in respect of all but a very small portion of the land which had been used by the local council during roadworks. The High Court found that the farmer had been in adverse possession from 1 January 1983 and had remained so for 12 years from that date, except in the case of the working area. As such, it considered itself bound by the decision in J. A. Pye (Oxford) Ltd v Graham & Another [2003] 1 AC 419 to order that the farmer be registered as proprietor of the land other than the working area.
The Court of Appeal dismissed the applicant’s appeal on 27 October 2004 for essentially the same reasons as those given by the High Court. It held, inter alia, that there was no obligation in law for a squatter to draw the true owner’s attention to the fact that time was running against him and concluded, as had the High Court, that the farmer’s activities on the land had been open and apparent.
The Court of Appeal refused the applicant leave to appeal to the House of Lords on 19 November 2004. The House of Lords refused the applicant leave to appeal on 16 March 2005.
The domestic law on limitation and adverse possession is set out in J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, §§ 24-35, ECHR 2007,-