ITEMID: 001-94818
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: INVESTYLIA PUBLIC COMPANY LIMITED v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Investylia Public Company Ltd, is a company incorporated under Cypriot law with its registered office in Larnaca. It was represented before the Court by Ms L. Stylianou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The facts of the case, as submitted by the parties, may be summarised as follows.
In January 2000 the applicant company was registered as a public company.
During the same month an investor company (Livadhiotis Bros Investments Ltd) made an offer to the applicant company to purchase 20 founder's shares and 20,000 ordinary shares, at 0.5 Cypriot pounds (CYP) each; the total value amounting to CYP 12,020. The offer was accepted by the applicant company and the investor company made an advance payment of CYP 1,200.
In March 2000 the applicant company declared a public offer of the shares.
On 7 April 2000 Law 42(I)/2000 came into force, amending the Securities and Cyprus Stock Exchange Law of 1993 (Law 14(I)/1993).
In May 2000 the investor company paid the remaining sum of CYP 10,820 to the applicant company.
In June 2000 the shares were transferred to the investor company.
On 14 June 2000 the applicant submitted an application to introduce the share titles on the Cyprus Stock Exchange.
The application was rejected by the Cyprus Stock Exchange Council.
On 16 February 2001 Law 42(I)/2000 was amended by Law 9(I)/2001. Section 58A of Law 42(I)/2000 was abolished and replaced.
On 12 May 2001 the investor company requested reimbursement of the sum paid for the purchase of the shares plus interest, as the share titles had not been introduced on the Stock Exchange.
The applicant company was granted an extension by the Cyprus Stock Exchange for the return of the money. This extension covered the period from 28 September 2000 until 20 February 2002.
On 11 September 2001 the investor company (“plaintiff”) brought civil proceedings against the applicant company (action no. 2780/01) before the District Court of Larnaca claiming the return of the sum of CYP 12,020 paid to the applicant company for the purchase of the shares. The claim was based on sections 58 A (3) (b) of the Securities and Cyprus Stock Exchange Law of 1993 as amended by Law 42(I)/2000 and, alternatively, on section 3 (3) of the latter law.
The applicant company alleged, inter alia, that the relevant law did not provide the plaintiff with the right to request reimbursement of the sums paid, nor did it require the applicant company to return this money. The applicant company also raised the question of the constitutionality of the applicable law, referring to Articles 23, 25 (1) and 26 (1) of the Constitution and the case of Lapertas Fisheries Ltd v. the Police (Criminal Appeals 7279 and 7289, judgment of 9 July 2002) in which the Supreme Court had found that section 3 (1) of Law 42 (1)/ 2000 contravened the Constitution.
On 30 July 2003 the Larnaca District Court issued its judgment. The court observed that the first part of the sum had been paid by the plaintiff in January 2000, that is before the entry into force of Law 42(I)/2000, whereas the rest of the sum had been paid afterwards, in May 2000. The court found that in the light of sections 58A (3) (b) and 3 (3) the plaintiff had an actionable right which commenced after the lapse of three months from the date of the submission of an application for the introduction of the relevant titles on the Stock Exchange or earlier in the event of rejection of the application. In such an event the issuer or company or person who received the sum had to return it to the purchaser within ten days of the date when the purchaser asked for it. Law 9(I)/2001 did not affect rights and obligations which had been created before its entry into force.
Following the three-month period the applicant company had been granted an extension by the Stock Exchange for the return of the money. This extension was still in force both when the plaintiff requested the return of the shares (12 May 2001) and when the plaintiff brought the civil proceedings (11 September 2001). Therefore, in so far as the sum of CYP 1,200 was concerned, which was claimed on the basis of section 3 (3) of Law 42(I)/2000, this claim was premature in view of the extension given to the applicant company by the Stock Exchange.
The court then went on to examine the applicant company's claim regarding constitutionality. In this respect it firstly held, inter alia, that Article 23 of the Constitution, providing for the protection of the right to property, was not relevant to the contested legislative provisions. In considering the applicant company's complaint as to the constitutionality of the provisions in question in relation to Articles 25 and 26 of the Constitution protecting the freedom to conduct business and the freedom to contract respectively, the court observed that such an issue could not be examined in abstracto but only in relation to the circumstances of a given case. Although the applicant company claimed that the law interfered with an agreement between the parties that had come into effect, the facts put before the court did not support this claim. First of all, it could not be ascertained when the agreement had been reached. Secondly, the court was not aware of the contents of the agreement, and in particular whether the agreement contained conditions as to the rights and obligations of the parties in the event that the share titles were not introduced on the Stock Exchange. It could not therefore be ascertained whether the sections of the law in question affected and/or interfered with the specific agreement in any way. Consequently, the court held that it could not, on the basis of the facts before it, examine the issue of constitutionality raised before it.
Furthermore, the court held that the case of Lapertas Fisheries Ltd v. the Police (cited above) relied on by the applicant was not applicable. In this respect it noted that in that case the Supreme Court had examined the constitutionality of sections 3 (1) and (2) of Law 42(I)/2000 in relation to Article 25 of the Constitution. Section 3 (1) imposed an obligation on the company to submit a (duly completed and well-founded) application for the introduction of titles on the Stock Exchange within two months, or alternatively on another date but not more than eight months following the date of entry into force of the applicable law. The Supreme Court found that section 3 (1) was unconstitutional as it deprived the appellant company [in that case] of the capability of acting in the way which it considered promoted the financial interests of the company and those of its members. It rendered criminal the freedom of the appellant company to regulate its financial relations and the free financial operation of the business so that it could operate profitably.
The court pointed out that in the present case the plaintiff was not seeking to interfere with the activities of the applicant company but had requested reimbursement of the sums it had paid for the purchase of the shares, with the prospect that the share titles would be introduced on the Stock Exchange, a right which had been implicitly, if not directly, recognised by the Supreme Court in the case of Lapertas, where the following was stated:
“The complainant-investors have contracted freely and of their own accord with the appellants. The Cyprus legal framework contains provisions which protect the rights of the investor. For a possible violation of rights which emanate from the relationship which they created with the appellants, they may resort to the remedies provided by the Civil Law.”
Accordingly, the court found in favour of the plaintiff and awarded it the sum of CYP 10,820 with 6% interest from 14 June 2000, the date of the submission of the application to introduce the share titles on to the Stock Exchange, until payment. Costs were awarded against the applicant company.
On 31 July 2003 the applicant company lodged an appeal with the Supreme Court (appeal no. 11802). The applicant company had eighteen grounds of appeal. It raised, inter alia, the compatibility of the legal provisions in question with Articles 21, 23, 25 and 26 of the Constitution (see below), Articles 11 and 14 of the Convention and Article 1 of Protocol No. 1. In the context particularly of Article 25, the applicant company, in its written submission to the court, alleged that it had made known to prospective purchasers that it did not meet one of the basic requirements for admission to the Stock Exchange.
However, during the hearing of the appeal, the applicant company restricted its grounds of appeal to two points. Firstly, that the respondents did not have an actionable right on the basis of the relevant provisions and secondly that these provisions were unconstitutional because they contravened Article 23 of the Constitution, which protected the right to property. The applicant company's complaint of unconstitutionality was therefore limited to the above Constitutional provision. In this respect, the applicant relied on the Supreme Court's judgment in the case of Charalambos Markides v. Cyber Group Ltd (Criminal Appeal no. 7730, judgment of 7 February 2005) in which the Supreme Court had found that the Law on the Return of Money to Investors (Law 168(I)/2000) contravened Article 23 of the Constitution.
On 26 May 2005 the Supreme Court upheld the first-instance judgment and dismissed the appeal. With regard to the question of constitutionality the court noted that the case of Charalambos Markides (cited above) relied on by the applicant was distinguishable from the present case. The court noted that the above decision of the Supreme Court concerned a criminal case in which the provisions of section 3 of Law 168(I)/2000 were examined. This law criminalised a specific omission by a person, which arose from the operation of a private agreement, that is to say in the domain of civil law. The court pointed out that the issue which arose in the present appeal was covered fully by the decision of the Supreme Court in the case of Harvest Capital Management Ltd v. Georgiou Tamasiou (Civil Appeal 11192, judgment of 26 November) where the provisions of section 3(3) of Law 42(1)/2000, which were in essence identical to the contested provision, namely section 58A (3) (b), were discussed extensively. In that case the Supreme Court decided that the provisions of the relevant section were constitutional. The Supreme Court decided that the same was applicable to the provisions of section 58A (3) (b). In particular, the court noted that legislative provisions and regulations which had the object of protecting the public interest and social and financial interests as well as those of the public and citizens, were permissible. The Supreme Court went on to cite the essential parts of the above judgment:
“We consider that in the present case too what has been done by the legislation in issue is the regulation of the relations between the contracting parties thus excluding the application of the provisions of Article 23 (of the Constitution). Even if in any case it could be said, if this article was applicable, that the provisions of section 3 (3) were put there for the protection of the rights of third parties, as permitted by paragraph 3 of the above article of the Constitution.
...
In any case, as has also been stated in Chimonides (above), legislative provisions and regulations are permissible which have the object of protecting the public interest, the social and financial interests as well as the protection of the public and the citizens. The same section provides for the prevention of exploitation by persons who have peculiar financial power, something which in our view would be completely applicable to our case, where learned counsel for the appellant himself in his oral address before us referred extensively to the problems and situations created by the introduction of companies on to the Cyprus Stock Exchange. In any case, however, in the case of the Supreme Court of the USA Home Building and Loan Association v. John H. Blaisdell (1933) 290 U.S. 398, at page 434, it was said that the State also continues to have the power to secure the vital interests of its people. It does not matter if appropriate legislation which serves this purpose has the consequence of amending or annulling agreements already in force (see Stephenson v. Binford, 287 U.S. 251, 276).”
Section 58A (3) (b) of the Securities and Cyprus Stock Exchange Law (Law 14(I)/1993) as amended by Law 42(I)/2000 which entered into force on 7 April 2000 provides as follows:
“Any interested purchaser who has paid any sum or other consideration to an issuer, a company or a person for the purchase of shares either in accordance with the provisions of sub-section (1) above or otherwise, may after three months have elapsed from the date of the submission of an application for the introduction of the relevant titles on the Stock Exchange, or earlier in the event of rejection of the application, apply in writing for the return of the sum or consideration if the relevant titles have not been given to him or the relevant titles have been given to him but they have not as yet been introduced on the Stock Exchange. In such an event the issuer or company or person who received the sum or consideration must return it to the interested purchaser within ten days of the date when the interested purchaser asked for the return of the sum or consideration, with 6% interest calculated from the date when the application for the introduction of the said titles on the Stock Exchange was made, and must return the relevant titles if they have been issued and given to the interested purchaser:
Provided that, notwithstanding the provisions of sub-section (2), the Council may bar an issuer or company which contravenes the provisions of this section from introducing titles on the Stock Exchange.”
On 16 February 2001 Law 42(I)/2000 was amended by Law 9(I)/2001. Section 58A of Law 42(I)/2000 was abolished and replaced. However, the provisions of Law 42(I)/2000 continued to be applied to rights and obligations that arose before Law 9(I)/2001 came into force.
Sections 3 (1), (2) and (3) of Law 42(I)/2000 provide as follows:
“3 (1) Any issuer, company, member of the board of a company or person who has received or has bound any sum or has received any consideration for the sale or offer for sale or acceptance of an offer for the purchase of titles on their behalf or on behalf of any company incorporated or being incorporated before the entry into force of the Securities and Cyprus Stock Exchange (Amending) (No. 4) Law of 2000, with the prospect and/or representations that the said titles would be introduced on the Stock Exchange, shall within two months or within any other period which will be decided by two-thirds of the interested purchasers and which shall not in any case exceed eight months from the date of entry into force of the Securities and Cyprus Stock Exchange (Amending) (No. 4) Law of 2000 take all the necessary actions for the submission of a duly substantiated and documented application (in accordance with the present Law and the Regulations issued thereunder) for the introduction of the relevant titles on to the Stock Exchange.
(2) Failure by an issuer, company, member of the board of a company or any person to act in accordance with the provisions of sub-section (1) above is a criminal offence punishable by imprisonment of up to two years or a fine of up to fifty thousand pounds and/or with both these penalties and entails the compulsory return of any sum or consideration received or the release of any bound sum, with interest of 6% to be paid to the interested purchaser with the return at the same time of the relevant titles if they have been issued and given to the interested purchaser.
(3) Any issuer, company, member of the board of a company or person who has received any sum or any consideration from the sale or offer for sale or acceptance of an offer for the purchase of titles on behalf of any company incorporated or being incorporated before the entry into force of the Securities and Cyprus Stock Exchange (Amending) (No. 4) Law of 2000, with the prospect or representations that the said titles would be introduced on the Stock Exchange, shall, if the relevant titles are not introduced for any reason on the Stock Exchange within three months of the date of the submission of the application for their introduction on the Stock Exchange, or earlier in the event of rejection of the application, and if the interested purchaser asks for it in writing, return the sums or considerations to those who had paid them within ten days of the date when the interested purchaser asked for them, which he had paid with 6% interest calculated from the date of the submission of the application, at the same time as the return of the relevant titles:
Provided that, if the Council ascertains that the application under consideration is duly and sufficiently substantiated and documented in accordance with the Stock Exchange Regulations and that there is no prima facie substantial obstacle to the approval of the application and that the delay in approving the application is not due to the applicant, it may grant a reasonable extension of time to the applicant with regard to the return of the sums received.”
Section 3 (1) above imposes an obligation on any “issuer, company, member of the board of a company or person” to submit an application for the introduction of shares on to the Stock Exchange within two months or within any other period which will be decided by two-thirds of the interested purchasers and which shall not in any case exceed eight months from the date of entry into force of the amending Law 42(Ι)/2000. Failure to submit such an application is a criminal offence. In the case of Lapertas Fisheries Ltd v. the Police (cited above) the Supreme Court found that the penalisation of the failure to submit an application to introduce titles on to the Stock Exchange within a fixed time-limit, and in an absolute manner, was an impermissible interference with the right protected by Article 25 (1) of the Constitution and nullified the freedom which that provision guaranteed. It accordingly held that section 3 (1) was unconstitutional.
In the case of Charalambos Markides (cited above) the Supreme Court found that section 3 of the Return of Money to Investors Law (Law 168(I)/2000) was unconstitutional. This case was a criminal case and the law in question criminalised a specific failure by a person which had risen from the operation of a private agreement, that is to say in the domain of civil law. In that case the Supreme Court held the following:
“A purchaser has bought shares from an issuer on the condition that the latter would introduce them on the Stock Exchange, and this has not happened, then, if the procedure provided by section 3(1) of the law is followed, he is entitled to ask for the return of the money or the consideration which he gave for the purchase of the shares. If the issuer does not return to the purchaser the money or the consideration he gave, then he commits a criminal offence as provided in section 5 of the law, and if convicted is liable to imprisonment of up to five years or to a fine of up to £50,000.
Our thoughts and judgment follow. As to the amount or any consideration given by a purchaser of shares to the issuer, who both issues and hands over the shares to him, that amount and any other consideration come into the absolute ownership of the issuer just as the shares come into the ownership of the purchaser. The use by the law of the term “returns” is without true legal substance. It does not correspond to the legal truth. What the law essentially provides is the compulsion of the issuer, by the likelihood of prosecution and conviction, to deliver to the purchaser, and the registered owner of the shares, part of his property. This is constitutionally impermissible, because it compels the issuer to alienate part of his property, otherwise he will face the consequences which the law provides.
The decision of our Supreme Court in Harvest Capital Management Ltd v. Georgiou Tamasiou (2003) 1 CLR 1683 has no relation to the legal treatment that this criminal appeal ought to have. In that case it was decided that the legislative provision (section 3(3) of Law 42(1) 2000) constituted a regulation of contractual relations and for this reason it did not violate Article 26 of the Constitution.
Of assistance in the present case is the decision in Criminal Appeals 7279 and 7280 Lapertas Fisheries Ltd. v. Police, 9.7.02, a decision which was upheld by the Full Bench in recourses 79/02 and others Demetris Pitsillides and others v. the Cyprus Securities and Exchange Commission, 19.1.04. We observe, however, that in both the above two cases the Court discussed whether the law violated Article 25 of the Constitution, given the suggestion that the legislative provision was necessary for the reasons contained in paragraph 2 of the Article of the Constitution. The law in issue, examined in this case, as we said above, and for the reasons we have explained, abolishes in toto the fundamental right secured by Article 23 of the Constitution.
We will not deal with anything else, which results from the good work done collectively by the advocates in the case. The law in issue, the Return of Money to Investors Law of 2002, 168(1) is held to be unconstitutional.”
Article 21 of the Constitution provides as follows, in so far as relevant:
“1. Every person has the right to freedom of peaceful assembly.
2. Every person has the right to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. Notwithstanding any restriction under paragraph 3 of this Article, no person shall be compelled to join any association or to continue to be a member thereof.
3. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are absolutely necessary only in the 'interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person, whether or not such person participates in such assembly or is a member of such association.
...
6. Subject to the provisions of any law regulating the establishment or incorporation, membership (including rights and obligations of members), management and administration, and winding up and dissolution, the provisions of this Article shall also apply to the formation of companies, societies and other associations functioning for profit.”
Article 23 - The right to property
Article 23 of the Constitution provides as follows, in so far as relevant:
“1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such right.
...
2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.”
Article 25 - The right to work
Article 25 of the Constitution provides as follows, in so far as relevant:
“1. Every person has the right to practise any profession or to carry on any occupation, trade or business.”
Article 26 of the Constitution provides as follows, in so far as relevant:
1. Every person has the right to enter freely into any contract subject to such conditions, limitations or restrictions as are laid down by the general principles of the law of contract. A law shall provide for the prevention of exploitation by persons who are commanding economic power.
...”.


ITEMID: 001-57585
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF SUTTER v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo
TEXT: 10. At the time of the events giving rise to this case, Mr. Peter Sutter, a Swiss national born in 1949, was a student and resident in Basel.
11. During refresher courses (Wiederholungskurse) organised in 1974 and 1975 as part of ordinary military obligations, he was subjected to five and seven days’ strict arrest for refusing to comply with Article 203 bis of the service regulations, relating to hair-cuts.
12. Shortly before the beginning of the 1976 refresher course, the applicant received a registered letter from his unit commander instructing him to report for the course with a regulation hair-cut. He nevertheless presented himself on 28 August 1976 with his hair longer than authorised and refused to obey the officer’s verbal order to have it cut.
13. On 8 November 1976, the Military Prosecutor (auditeur militaire) drew up a "bill of indictment" (Anklageschrift) against Mr. Sutter, charging him with repeated insubordination and, subsidiarily, failure to observe service regulations (Articles 61 and 72 of the Military Criminal Code).
14. On 16 May 1977, at the close of a public hearing, Divisional Court no. 5 delivered in public a judgment sentencing the applicant to ten days’ imprisonment for the two offences.
Mr. Sutter’s defence counsel had unsuccessfully requested the Divisional Court to decline jurisdiction on the ground that it lacked the independence and impartiality required by Article 6 (art. 6) of the Convention; he had also applied, in vain, for a supplementary enquiry into the futility, or indeed abusive nature, of the regulations on hair-cuts.
A copy of the decision was sent to the applicant on 23 June 1977.
15. Having been duly informed by the grand juge (President of the Divisional Court) that he could appeal on points of law within twenty-four hours from delivery of the judgment, Mr. Sutter had immediately given notice of appeal to the Registrar (section 189 para. 2 of the Federal Army (Constitution of Courts and Criminal Procedure) Act of 28 June 1889 - "the 1889 Act").
On 2 July 1977, within the prescribed period of ten days from service of the judgment, the applicant filed a memorial containing a "final" statement (section 189 para. 3 of the 1889 Act) of his grounds of appeal.
He submitted that the decision appealed against had infringed the law (section 188 para. 1, no. 1, of the 1889 Act) by applying regulations that were incompatible with Article 8 (art. 8) of the Convention; that the Divisional Court had not been composed in the manner prescribed by law (ibid., no. 2), four of the six judges being substitutes for the ordinary judges and the grand juge having been appointed by the Chief Military Prosecutor (auditeur en chef); that the Divisional Court had erred in not declining jurisdiction to hear the case on the merits (ibid., no. 3), since the military courts were not tribunals within the meaning of Article 6 (art. 6); and that the refusal to order a supplementary enquiry had prejudiced the defence on decisive points (ibid., no. 6) concerning the application of Article 8 (art. 8) and in particular paragraph 2 (art. 8-2) thereof.
Mr. Sutter also drew the attention of the Military Court of Cassation to the fact that it was not consonant with Article 6 (art. 6) to conduct proceedings entirely in writing; he therefore requested it to hold at least one hearing and to pronounce its judgment publicly.
16. The grand juge transmitted the appeal to the Military Prosecutor, in his capacity as respondent; the latter was entitled to "submit his observations" within ten days (section 189 para. 3 of the 1889 Act), but chose not to do so.
The grand juge afterwards sent the appeal and the papers in the case, without appending "his report on the matters in dispute" (ibid.), to the Chief Military Prosecutor.
The latter forwarded the documents to the Military Court of Cassation. He could himself have filed observations if he had thought fit, but - like the Military Prosecutor and the grand juge - he confined himself to submitting that the appeal should be dismissed.
17. The President of the Military Court of Cassation requested a judge whom he had designated from amongst his colleagues to draft a report containing a reasoned proposal. This document was circulated, together with the papers in the case, amongst the other members. On 21 October 1977, the Court of Cassation deliberated on the matter in camera and dismissed the appeal. It thus did not rule on the merits of the case; according to the provisions then in force (section 194 of the 1889 Act), it could have done so only if the judgment had been quashed and the sole ground for the quashing had been misapplication of the law. This power the Military Court of Cassation no longer enjoys (see paragraph 19 below).
The operative provisions of the judgment were immediately served on Mr. Sutter in writing. He received the full text on 24 January 1978 (section 197 of the 1889 Act). The reasons covered twenty pages and concerned mainly Mr. Sutter’s submissions as to the incompatibility of the 1889 Act with Articles 6 and 8 (art. 6, art. 8) of the Convention. As to the composition of the Divisional Court, the judgment stated that the substitute judges had the same legal status as the ordinary judges, and that the Chief Military Prosecutor had not infringed the law by appointing the grand juge - who had the status of an ordinary judge - to sit on the case, the ordinary president being unable to take part as he had had to deal with the matter at a previous stage as Military Prosecutor.
18. At the time of the facts giving rise to the present case, military criminal procedure was governed by the 1889 Act (see paragraph 15 above). As regards the public character of the proceedings, this Act drew a distinction according to the level of the court concerned.
The Divisional Courts, which heard military-law cases at first instance, were required to give their decisions after holding public hearings and to pronounce their judgments in open court.
On the other hand, proceedings before the Military Court of Cassation were conducted entirely in writing and its judgments were not delivered in public. Concerning the latter point, section 197 of the Act laid down merely that "an extract" of the judgment had to be communicated to the Chief Military Prosecutor, the accused and the grand juge.
19. The 1889 Act was repealed by the Federal Military Criminal Procedure Act of 23 March 1979 ("the 1979 Act"), which entered into force on 1 January 1980.
The existing system was maintained for proceedings before the Divisional Courts, and was extended to the Courts of Appeal which were set up by the same statute.
As regards the Military Court of Cassation, the 1979 Act provides that "There shall be no oral hearings" (section 189 para. 1). The Act did, however, make two innovations: in future, the Court of Cassation was to deliver judgment in open court (sections 48 para. 3 and 194 para. 1) and could in no circumstances itself rule on the merits of the case.
20. As was also the case in the past, the judgments of the Military Court of Cassation are collected together annually in a provisional form (roneotyped). Anyone who can establish an interest may consult or obtain a copy of the full text on application to the Chief Military Prosecutor or the military court registries.
If judgments contain features that are novel or of importance for the interpretation of the law, they are subsequently published in printed form.
The Sutter judgment of 21 October 1977 appeared in 1983 in volume 9 (covering the years 1973 to 1979) of the judgments of the Military Court of Cassation, under the number 136.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102940
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HAAS v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1953 and lives in Meltingen (Canton of Solothurn).
7. The applicant has been suffering from a serious bipolar affective disorder for about twenty years. During this period he has twice attempted suicide and has stayed in psychiatric hospitals on several occasions. On 1 July 2004 he became a member of Dignitas, an association which offers, among other services, assisted suicide. Taking the view that his illness, for which treatment is difficult, made it impossible for him to live with dignity, the applicant asked Dignitas to assist him in ending his life. He approached several psychiatrists to obtain the necessary lethal substance, namely 15 grams of sodium pentobarbital, which is available only on prescription, but was unsuccessful.
8. On 8 June 2005 the applicant contacted various official bodies seeking permission to obtain sodium pentobarbital from a pharmacy without a prescription, through the intermediary of Dignitas.
9. The Federal Office of Justice found that it did not have jurisdiction to grant his request and rejected it on 27 June 2005.
10. On 20 July 2005 the Federal Department of Public Health dismissed the applicant’s claim on the ground that sodium pentobarbital could only be obtained on prescription from a pharmacy. It also expressed its opinion that Article 8 of the Convention did not impose on the States Parties a positive obligation to create the conditions for committing suicide without the risk of failure and without pain.
11. On 3 August 2005 the Health Department of the Canton of Zürich also dismissed the applicant’s request, finding that, in the absence of the necessary medical prescription, he could not be authorised to obtain the substance in question from a pharmacy. It too noted that such a right could not be inferred from Article 8 of the Convention. That decision was upheld by the Administrative Court of the Canton of Zürich on 17 November 2005.
12. On 20 December 2005 the Federal Department of the Interior declared inadmissible an appeal lodged by the applicant against the decision of 20 July 2005, on the ground that this was not an emergency in which a substance usually subject to medical prescription could be delivered without one. It noted that only a doctor could issue the relevant prescription.
13. The applicant lodged appeals with the Federal Court against the decisions of the Federal Department of the Interior and the Administrative Court of the Canton of Zürich. Relying in particular on Article 8 of the Convention, he alleged that this provision guaranteed the right to choose to die and that State interference with this right was acceptable only in the conditions set out in the second paragraph of Article 8. In the applicant’s opinion, the obligation to submit a medical prescription in order to obtain the substance necessary for suicide, and the impossibility of procuring such a prescription – which, in his view, was attributable to the threat that hung over doctors of having their licence withdrawn by the authorities should they prescribe the substance in question to mentally ill persons – amounted to interference with his right to respect for his private life. He argued that while this interference was admittedly in accordance with the law and pursued a legitimate aim, it was not, in his case, proportionate.
14. By a judgment of 3 November 2006, the Federal Court joined the two sets of proceedings and dismissed the applicant’s appeals.
15. It noted, firstly, that, pursuant to the applicable legal provisions, sodium pentobarbital could only be obtained on medical prescription and that the applicant had not obtained such a prescription. It further noted that this was not an exceptional case in which a medical product could be issued without a prescription.
16. As to the alleged violation of Article 8 of the Convention, the Federal Court found as follows:
[Translation]
“6.1. ... The right to self-determination within the meaning of Article 8 § 1 [of the Convention] includes the right of an individual to decide at what point and in what manner he or she will die, at least where he or she is capable of freely reaching a decision in that respect and of acting accordingly ...
6.2.1. The right to choose to die, which is not as such in issue here, must however be distinguished from the right to assistance with suicide from the State or a third party. In principle, such a right cannot be inferred either from Article 10, paragraph 2, of the Federal Constitution [enshrining individual freedom] or from Article 8 of the Convention; an individual who wishes to die does not have a right to be assisted in committing suicide, whether by the provision of the necessary means or through active assistance where he or she is not capable of ending his or her own life ... The State has a fundamental obligation to protect life. Admittedly, such protection is not generally extended against the will of a person who is capable of forming his or her own views ... Nonetheless, it does not follow that the State has a positive obligation to ensure that a person who wishes to die has access to a dangerous substance, selected for the purpose of suicide, or to tools intended to be used for that purpose. In such circumstances, the right to life guaranteed by Article 2 of the Convention obliges the State, at the very least, to put in place a procedure to ensure that a decision to commit suicide does indeed correspond to the free will of the individual in question ...
6.2.2. The foregoing is confirmed by the case-law of the Strasbourg institutions: Article 2 [of the Convention] guarantees no right to die, whether with the assistance of a third party or of the State; the right to life has no corresponding negative freedom (judgment in Pretty v. the United Kingdom, no. 2346/02, § 40, ECHR 2002III) ... Article 3 does not in principle oblige the State to guarantee criminal impunity for assisting a person to commit suicide or to create a legal basis for another form of assistance with that act; the State must not sanction actions intended to terminate life (Pretty, cited above, §§ 55 et seq.). With regard to Article 8, the Court found that – without in any way negating the principle of sanctity of life – the quality of life and, in consequence, the question of the individual’s autonomy play a role under this provision (judgment in Pretty, cited above, § 65). The Court stated that it ‘[was not prepared] to exclude’ that the fact that the applicant was precluded from exercising her choice to avoid what she consider[ed would] be an undignified and distressing end to her life constituted an interference with her right to respect for private life within the meaning of Article 8 § 1 of the Convention (Pretty, cited above, § 67; see also the judgment of the Supreme Court of Canada in the case of Rodriguez v. British Columbia [Attorney General; [1993] 3 S.C.R. 513], and Judge Sopinka’s opinion as the basis of the majority’s findings); this had already been presaged in the 1983 Reed case, where the Commission had emphasised that the activity of a person aiding and abetting suicide did not, as such, fall within the sphere of Article 8, but that, on the contrary, the protection of the private life of the person seeking to die could be at stake (inadmissibility decision in Reed v. the United Kingdom, no. 7630/76, Commission decision of 4 July 1983, Decisions and Reports 33, p. 273, § 13).
6.2.3. The case of Pretty (like that of Rodriguez) is not comparable to the instant case: the applicant’s freedom to commit suicide, and consequently the impunity of an individual who might provide assistance to that end, providing he or she is not acting from selfish motives (Article 115 of the Criminal Code), are not in issue here. The matter in dispute is whether, on the basis of Article 8, the State must take steps to ensure that the applicant is able to end his life without pain and without risk of failure, and that, in consequence, he is able to obtain sodium pentobarbital without a medical prescription, in derogation from the legislation. This question must be answered in the negative: admittedly, the Convention guarantees not rights that are theoretical or illusory but rights that are practical and effective (judgment in Artico v. Italy, 13 May 1980, § 33, Series A no. 37); it does not appear, however, – given that other options exist – that the freedom to commit suicide and, accordingly, the freedom to choose one’s own quality of life are restricted by the mere fact that the State does not authorise the unconditional issue of the substance in question, but makes it dependent on the presentation of a medical prescription, issued on the basis of the ‘recognised rules of pharmaceutical and medical science’ and knowledge of the health of the individual concerned (section 24(1)(a) taken in conjunction with section 26 of the LPTh [Federal Medicines and Medical Devices Act], and section 9(1), taken in conjunction with section 10, of the Lstup [Federal Drugs Act]). In order to guarantee effectively the freedom to choose to end one’s own life, derived from Article 8 § 1 of the Convention, it is not necessary to authorise unrestricted availability of sodium pentobarbital, even if this substance is supposedly highly suitable for the act of committing suicide. The mere fact that solutions other than sodium pentobarbital entail higher risks of failure and greater pain is not sufficient to justify the provision, without prescription, of this substance for the purpose of suicide. Such a positive obligation cannot be inferred either from Article 10 § 2 of the Federal Constitution or from Article 8 of the Convention ...
...
6.3.2. The obligation to submit a medical prescription has a clear, accessible and foreseeable legal basis, namely, in respect of domestic law, sections 24 and 26 of the Federal Medicines and Medical Devices Act and sections 9 and 10(1) [sic] of the Federal Drugs Act, and, with regard to international law, Article 9 § 1 and Schedule III of the [United Nations] Convention on Psychotropic Substances of 21 February 1971. Generally speaking, this obligation is intended to protect the health and safety of the population and, in the context of assisted suicide, to prevent the commission of criminal offences and combat the risks of abuse (Pretty judgment, cited above, §§ 74 and 75 ...). A substance ; in the patient’s interests, provision of such a substance must be subject to the presentation of a medical prescription. A medical prescription presupposes a diagnosis drawn up on the basis of a doctor’s professional code of ethics, a medical indication (Indikationsstellung) and an information-seeking interview. Only a doctor can assess a patient’s capacity for discernment and his or her medical records, and determine whether all treatment options have been exhausted to no avail ... The obligation to obtain a prescription for sodium pentobarbital is a guarantee that doctors will not issue this substance without all the necessary conditions being fulfilled, since otherwise they would leave themselves open to criminal, civil or disciplinary sanctions ... It protects individuals from hasty and unconsidered decisions ... and guarantees the existence of a medical justification for the action. ... A potential interference with the right to self-determination protected by Article 8 of the Convention has only a relative bearing in view of the consequences attached to issuing sodium pentobarbital for the purpose of suicide. ... In contrast, the protection of life, the prohibition of murder and the latter’s delimitation with regard to assisted suicide, which is not a priori subject to penalties, represent a significant public interest. ... While assisted suicide by medical means is authorised, a matter that, given the importance of the ethical issue at stake, must in the first instance be assessed by the legislature (see the above-cited Pretty judgment, § 74 in fine), the State is entitled to put in place a procedure for review, thus guaranteeing that the decision of the individual concerned does indeed correspond to his or her free and considered will ...; to that end, the obligation to obtain a medical prescription is appropriate and necessary. In so far as the applicant alleges that this argument does not take into consideration the 1,300 cases of suicide and the 63,000 cases of attempted suicide per year, in which the State allegedly fails to comply with its duty of protection, it must be emphasised that those cases do not, as the instant case does, concern the question of dispensing, without prescription, a substance for the purpose of suicide and are thus not comparable to the present situation.
...
6.3.4. The regulations on assisted suicide are relatively liberal in Switzerland, in so far as assistance or incitement is punishable only in the event of selfish motives (Article 115 of the Criminal Code). In contrast, the legislature remains free, in weighing up the interests at stake – the right to self-determination of persons wishing to kill themselves on the one hand, and protection against impulsive suicides (Affektsuizid) on the other – to make the legality of assisted suicide and the provision of a dangerous product subject to compliance with professional rules and the state of medical science. The Guidelines on End of Life Care issued by the Swiss Academy of Medical Sciences on 25 November 2004 acknowledge that, in borderline cases, a doctor may be faced with an ‘intractable conflict’ (point 4.1 of the Guidelines). Clearly, assisted suicide cannot be considered as part of a doctor’s activities, since it is self-evident that such an action goes against the aim of medicine; however, respect for the patient’s wishes is also fundamental to the relationship between the doctor and patient, so that the doctor may be led to take a decision in all conscience, a decision that ought to be respected. If the doctor opts for assisted suicide, he is guarantor of the fact that: (1) the patient’s illness makes it likely that death is close; (2) other options for support have been discussed and, where appropriate, put into place; and (3) the patient is capable of discernment, his or her wish appears to be carefully considered, is not the result of external pressure and is to be regarded as final, which must be verified by an independent third party who need not necessarily be a doctor; the final act which leads to death must always be carried out by the patient himself. Contrary to the applicant’s assertions, a doctor is entitled, in the context of the recognised professional rules, to prescribe sodium pentobarbital for the purpose of suicide, provided that the conditions for doing so are fulfilled. As the Federal Court has already observed, a change in attitude is to be perceived in modern society, in the sense that assisted suicide is increasingly considered as a voluntary medical activity which cannot be imposed on any doctor, but which is not excluded by the rules of professional conduct and supervision, provided that the duty of medical care is respected in examining patients, diagnosing them and dispensing the product (judgment 2P.310/2004 of 18 May 2005, paragraph 4.3, with references), and provided that doctors do not allow themselves to be guided solely by their patient’s wish to die and fail to examine the reasons for such a decision in accordance with the applicable scientific criteria ...
6.3.5. The question of prescribing and dispensing sodium pentobarbital is particularly problematic in cases of mental illness:
6.3.5.1. It must not be forgotten that a serious, incurable and chronic mental illness may, in the same way as a somatic illness, cause suffering such that, over time, the patient concludes that his or her life is no longer worth living. The most recent ethical, legal and medical opinions indicate that in such cases also the prescription of sodium pentobarbital is not necessarily precluded or to be excluded on the ground that it would represent a breach of the doctor’s duty of care ... However, the greatest restraint must be exercised: it is necessary to distinguish between a desire to die as the expression of a psychological disorder which can and must be treated, and a wish to die that is based on the considered and sustained decision of a person capable of discernment (‘pre-suicide assessment’), which must be respected as applicable. Where the wish to die is based on an autonomous and all-embracing decision, it is not prohibited to prescribe sodium pentobarbital to a person suffering from a psychiatric illness and, consequently, to assist him or her in committing suicide ...
6.3.5.2. The question of whether the conditions have been met in a given case cannot be examined without recourse to specialised medical – and particularly psychiatric – knowledge, which is difficult in practice; a thorough psychiatric examination thus becomes necessary ..., which can only be guaranteed if the obligation to submit a prescription in order to obtain sodium pentobarbital is maintained, and if responsibility does not lie solely with private organisations for assisted suicide. The activities of such organisations have been criticised on several occasions; a study carried out in Basle, analysing 43 cases of assisted suicide by the organisation Exit between 1992 and 1997, rightly criticised the failure to take into account psychiatric or social factors in the decision to end one’s life ... Accordingly, one cannot argue that issuing sodium pentobarbital and delegating responsibility for its use to an organisation for assisted suicide is equally compatible with the purpose of the legislation as maintaining the obligation to obtain a medical prescription.
6.3.6. To conclude, it is appropriate to note that – contrary to the applicant’s allegations – neither Article 8 of the Convention nor Article 10 § 2 of the Federal Constitution ... impose an obligation on the State to issue, without medical prescription, sodium pentobarbital to organisations for assisted suicide or to persons who wish to end their lives. The requirement of a medical prescription for sodium pentobarbital has a legal basis, is intended to protect public safety and health and to maintain order in the public interest, and is also a proportionate and necessary measure in a democratic society. In weighing up the interests at stake, namely the protection of life – which requires (as a minimum) verification, on a case-by-case basis, of whether individuals’ decisions to end their lives genuinely correspond to their free and considered will where they opt for assisted suicide using a product subject to legislation on drugs or medicinal products –, and the individual’s right to self-determination, the State remains free – from the standpoint of constitutional law or of the Convention – to lay down certain conditions and, in this context, to maintain, inter alia, the obligation to obtain a prescription for sodium pentobarbital. The (summary) medical documents submitted [by the applicant] alter nothing in his case; the delivery of a substance for the purpose of assisted suicide necessitates, in his case too, a thorough and considered examination and a medical indication, and, with regard to the genuineness of his wish to die and capacity for discernment in this connection, monitoring over a certain period by a medical specialist who would subsequently be able, as appropriate, to issue a medical prescription; in contrast, in the context of the present case [the applicant] cannot receive such a prescription by requesting that the obligation to present a prescription be lifted; for this reason, the explanations with regard to his capacity for discernment do not appear relevant (Pretty judgment, cited above, §§ 74-77) ...”
17. On 2 May 2007 the applicant sent a letter to 170 psychiatrists, almost all of whom, according to the information available to the Court, practise in the Basle region. He asked each of them whether they would agree to see him for the purpose of carrying out a psychiatric examination and with a view to issuing a prescription for sodium pentobarbital. The letter was worded as follows:
[Translation]
“Dear Sir/Madam,
Please find attached a copy of a Federal Court judgment in my case. I had asked the Federal Court to be granted direct access to sodium pentobarbital so that, with the help of Dignitas, I could commit assisted suicide without risk of failure and without pain. Admittedly, the Federal Court has accepted that the right to choose the time and manner of one’s death is a human right. At the same time, it has held that direct access to sodium pentobarbital is impossible, since a medical prescription is necessary in order to obtain the said product.
Given that I suffer from mental illness, the Federal Court also stated that a preliminary in-depth psychiatric examination was also necessary (p. 75, paragraph 6.3.5.2.). This should determine whether my wish to die is the expression of a psychological disorder that is open to treatment or whether it results from an autonomous, considered and sustained decision by a person who is capable of discernment (see also p. 75, paragraph 6.3.5.1.).
I hereby ask whether you would be willing to accept me as a patient, for the sole purpose of conducting such an assessment.
In addition, I draw your attention to the fact that I am unlikely to commit suicide at present; I have not taken neuroleptics since November 2006.”
18. None of the doctors responded positively to his request. Some refused on the ground of lack of time and/or the necessary competence, or for ethical reasons. Others argued that the applicant’s illness could be treated.
19. The relevant provisions of the Swiss Criminal Code are worded as follows:
Article 114 – Homicide at the victim’s request
“Any person who for commendable motives, and in particular out of compassion, causes the death of a person at that person’s own genuine and insistent request shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.”
Article 115 – Inciting and assisting suicide
“Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall, if that other person thereafter commits or attempts to commit suicide, be liable to a custodial sentence not exceeding five years or to a monetary penalty.”
20. The Federal Drugs Act (Lstup) (“the Drugs Act”) of 3 October 1951 regulates the use and supervision of drugs. The Federal Medicines and Medical Devices Act (LPTh) (“the Therapeutic Products Act”) of 15 December 2000 applies to drugs covered by the Drugs Act where they are used as therapeutic products (section 2(1)(b) of the Therapeutic Products Act). The Drugs Act remains applicable, however, if the Therapeutic Products Act does not regulate a specific matter or if its regulation is less extensive (section 2(1 bis) of the Drugs Act).
21. Under section 1 of the Drugs Act and the Order on Drugs and Psychotropic Substances of 12 December 1996 issued by the Swiss Institute for Therapeutic Products, sodium pentobarbital is considered to be a drug within the meaning of the Drugs Act. Moreover, it appears from the Federal Court’s judgment of 3 November 2006 that sodium pentobarbital is categorised as a “category B” medicinal product within the meaning of the Therapeutic Products Act.
22. In addition, sodium pentobarbital is listed in Schedule III of the United Nations Convention on Psychotropic Substances of 21 February 1971. Under that Convention, it may be issued for individual use only on the basis of a medical prescription.
23. Section 9 of the Drugs Act lists the members of the medical profession who may obtain drugs without authorisation. Section 9(1) is worded as follows:
“Doctors, dentists, veterinary surgeons and those managing a public or hospital pharmacy who practise as self-employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to the Federal Law of 19 December 1877 on the practice of the professions of doctor, pharmacist and veterinary surgeon in the Swiss Confederation, may obtain, hold, use and issue drugs without authorisation, within the limits justified by the practice, in conformity with the requirements, of their profession. This shall be without prejudice to the cantonal provisions regulating direct dispensing by doctors and veterinary surgeons ...”
24. Pursuant to section 10(1) of the same Act, only doctors and veterinary surgeons are authorised to prescribe drugs:
“The doctors and veterinary surgeons who fall under the scope of section 9 shall be authorised to prescribe drugs.
...”
25. Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally (section 11(1) of the same Act, and Article 43 § 1 of the Order on Drugs of 29 May 1996).
26. Sections 24 and 26 of the Therapeutic Products Act are worded as follows:
Section 24 – Issuing of medicinal products subject to a prescription
“The following persons shall be authorised to issue medicinal products that are subject to a prescription:
(a) pharmacists, on a medical prescription, and, where justified in exceptional cases, without a medical prescription;
(b) any other person exercising a medical profession, in accordance with the provisions on dispensing physicians;
(c) any duly trained professional, under the supervision of a person who comes under the scope of paragraphs (a) and (b).
...”
Section 26 – Principle of prescription and issue
“The recognised rules of pharmaceutical and medical science shall be respected in the prescription and issuing of medicines.
A medicinal product may be prescribed only where the state of health of the consumer or patient is known.”
27. Chapter 8 of the same Act contains criminal-law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by the Act. Section 86 of the Act provides:
Section 86 – Offences
“Anyone who intentionally endangers human life shall be liable to imprisonment or a fine of up to 200,000 francs, unless he or she has committed a more serious offence within the meaning of the Criminal Code or of the Drugs Act of 3 October 1951, if he or she:
(a) neglects the duty of care when carrying out an operation related to therapeutic products;
(b) manufactures, places on the market, prescribes, imports or exports medicinal products or trades in them abroad without authorisation or in infringement of other provisions of this Act;
(c) issues therapeutic products without authorisation to do so;
...
(f) neglects his or her obligation to ensure the upkeep of medical devices;
...
Where the perpetrator is acting in a professional capacity, the term of imprisonment shall be for up to five years and the fine shall be up to 500,000 francs.
Where the perpetrator acts through negligence, the term of imprisonment shall be up to six months or the fine up to 100,000 francs.”
28. In its judgments 6B_48/2009 and 6B_14/2009 of 11 June 2009, the Federal Court upheld the conviction and sentencing to four and a half years’ imprisonment of a psychiatrist on the ground that the latter, who had assisted his patient to commit suicide, had incorrectly assessed the patient’s capacity for discernment.
29. The research conducted by the Court indicates that certain member States of the Council of Europe have specific regulations covering access to substances liable to facilitate suicide.
30. In Belgium, for example, the Law of 28 May 2002 defines euthanasia as an act carried out by a third party which intentionally ends an individual’s life at the latter’s request (section 2 of the Law). A pharmacist who issues a “lethal substance” does not commit an offence where this is done on the basis of a prescription in which the doctor explicitly states that he or she is acting in accordance with the law. The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issue of such medicines; the necessary measures must also be taken to ensure the availability of the lethal substances.
31. In Luxembourg, the Law of 16 March 2009 decriminalised euthanasia and assisted suicide. Under that Law, access to a medicine enabling suicide is legally possible for a doctor only if he or she plays an integral part in the process of euthanasia or assisted suicide.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-91319
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MESHAYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 7. The applicants are:
Ms Salamat Magomedsaliyevna Meshayeva, born in 1961;
Mr Lom-Ali Akhiadovich Meshayev, born in 1950;
Ms Ayshat Lom-Aliyevna Meshayeva, born in 1975;
Ms Petimat Lemayevna Elmurzayeva, born in 1989;
Ms Kheda Leomayevna Meshayeva, born in 1992;
Mr Khasan Leomayevich Meshayev, born in 1993;
Mr Khuseyn Leomayevich Meshayev, born in 1993;
Mr Mokhdan Lom-Aliyevich Meshayev, born in 1974;
Mr Mukhtar Suleymanovich Saydayev, born in 1971;
Ms Zharman Gazikhadzhiyevna Saydayeva, born in 1940;
Mr Aslan Suleymanovich Saydayev, born in 1963;
Ms Milana Aslanovna Saydayeva, born in 1997;
Ms Rumisa Dzhabrailovna Musayeva, born in 1965;
Mr Uvays Suleymanovich Saydayev, born in 1968;
Mr Islam Suleymanovich Saydayev, born in 1983;
Mr Magomed Uvaysovich Saydayev, born in 2000.
8. They live in the village of Martan-Chu, Urus-Martan district, Chechnya.
9. The applicants represent two families. Two of their relatives were detained on the night of 16 to 17 December 2002 in Martan-Chu. The two men have not been seen since the day of detention, and the families have been conducting a search for them together.
10. The first eight applicants are relatives of Leoma Akhiatovich Meshayev, who was born in 1952. The first applicant is his wife, the second applicant is his brother, the fourth, fifth, sixth and the seventh applicants are his children. The third and eighth applicants are his niece and nephew. Leoma Meshayev worked as a driver and tractor mechanic. The first applicant suffers from a number of chronic diseases and has category 3 disabled status. The fifth applicant, the Meshayevs’ minor daughter, is seriously ill and has category 1 disabled status. The applicants submitted that Leoma Meshayev had suffered from tuberculosis. In March 2003 the heads of administration of Martan-Chu and of the Urus-Martan district certified that there was no information to suspect Mr Meshayev of involvement in illegal armed groups or any other criminal activities.
11. The Meshayev family live in their own house at 12 Rechnaya Street. About 3 a.m. on 17 December 2002 a group of five or seven men wearing camouflage uniforms and white camouflage cloaks entered the house. They were all armed and masked and spoke Russian and Chechen.
12. One of the men woke up Leoma Meshayev and told him in Chechen “Leoma, wake up!” They threw him on the floor and handcuffed him. When one of the intruders pointed his automatic rifle at Meshayev’s nine-year-old son, another told him in Chechen “Don’t touch the children, they are not guilty”. Then the armed men escorted Leoma Meshayev out of the room, without permitting him to put on warm clothes. He was wearing a short-sleeved Tshirt, trousers and was allowed to put on a pair of boots.
13. The first applicant submitted that she had cried and asked them not to take her husband away and that he hadn’t done anything. The armed men had ordered her to keep quiet, or they would use the firearms. They took her husband’s passport with them, in which documents for his Ural truck were inserted. When they were leaving the house, one of the men hit the first applicant with a rifle butt on the head, as a result of which she briefly lost consciousness. The first applicant was able to see this person quite closely and submitted that he was short and plump, had large blue eyes visible in the opening of his mask and spoke Russian.
14. When the first applicant came round, she found that the men had closed the entrance door to the house by pushing a wardrobe against it. The first applicant managed to open it, with difficulty, and went out into the courtyard. The servicemen there tried to start her husband’s Ural truck, but failed. They then proceeded along Svoboda Street towards the cemetery. The first applicant ran after them, but they started to shoot at her with machine guns with silencers and she had to keep a distance.
15. The first applicant reached the cemetery and there she lost sight of the men. A woman who lived near the cemetery told her on the following day that she had seen military vehicles – an armoured personnel carrier (APC), two Ural trucks and a UAS vehicle – all without registration numbers, parked near her house. She had also seen a group of armed men around these vehicles, who had loaded her neighbour’s winter supply of wood into one of the vehicles before they left.
16. Leoma Meshayev’s brother, the second applicant, stated that in the early hours of 17 December 2002 he had been awoken by the cries of his sister-in-law, the first applicant, who asked for help and said that his brother had been taken away. The second applicant ran from his house into the nearby main street leading towards Urus-Martan and saw an APC, Ural trucks and a UAZ vehicle passing through the military roadblock towards Urus-Martan. In the moonlight the witness clearly saw that the cars were not stopped or detained at the roadblock.
17. The first and the second applicants submitted detailed statements about the events of the night of 16-17 December 2002. The applicants also submitted a hand-drawn plan of Martan-Chu indicating the places to which they referred.
18. The applicants have had no news from Mr Meshayev since that night.
19. The Government in their observations did not dispute the facts as presented by the applicants. They stated that it had been established that on 17 December 2002 unidentified armed men wearing masks had entered the applicants’ house at 12 Rechnaya Street and taken away Leoma Meshayev, whose whereabouts had not been established.
20. Applicants nine to sixteen are relatives of Bislan Suleymanovich Saydayev, who was born in 1977. The ninth, eleventh, fourteenth and fifteenth applicants are his brothers. The tenth applicant is his mother. The twelfth and sixteenth applicants are his niece and nephew and the thirteenth applicant is his sister-in-law. The applicants submitted that in November 2005 the eleventh applicant had been abducted by unknown persons at the market in Grozny and the family have had no news of him since. The applicants did not submit any complaints in that connection.
21. In March 2003 the heads of administrations of Martan-Chu and of the Urus-Martan district certified that there was no information to suspect Mr Saydayev of involvement in illegal armed groups or any other crimes. The applicants submitted that several days prior to Bislan Saydayev’s detention he, together with the fourteenth applicant, had travelled in the latter’s Kamaz truck together with the military commander of the village and his staff to Mozdok in North Ossetia, to collect New Year presents for the servicemen stationed in the village.
22. The Saydayev family live in their own house in Svoboda Street. In the night of 16 to 17 December 2002 the applicants and their family members were at home sleeping. At about 3 a.m. a group of about 30 men entered the house. They were all armed with machine guns equipped with silencers and masked. Some were dressed in green or black camouflage uniforms, others wore white camouflage cloaks on top. They spoke Russian and Chechen. They did not explain anything to the applicants and did not produce any papers. They proceeded to check the documents of all the men in the family.
23. The tenth applicant, Bislan Saydayev’s mother, submitted that she had been awoken in the night to find the room filled with armed servicemen. A group of soldiers were standing over Bislan Saydayev’s bed. They briefly searched the room and ordered Bislan Saydayev to dress. The tenth applicant asked why they were taking him away and they told her not to worry. They also took Bislan Saydayev’s identity documents with them.
24. The fourteenth applicant, Bislan Saydayev’s brother, submitted that in the early hours of 17 December 2002 he had been awoken by the light of several torches pointed at him. He was ordered not to move and to produce his documents. The fourteenth applicant showed them where his documents were, the men checked them and ordered him to get out of bed and to show them who was sleeping in which room. When the servicemen were taking his brother away, the fourteenth applicant asked where they could find him, but received no reply.
25. The eleventh applicant, Bislan Saydayev’s other brother, submitted that on the night of 17 December 2002 he was sleeping with his family in a separate house within the same courtyard. He was awoken at about 3 a.m. by his mother, the tenth applicant, who knocked on his door and said that Bislan had been taken away. The eleventh applicant rushed into the courtyard and his mother pointed towards the back of the yard, to the vegetable patch. The eleventh and fourteenth applicant tried to pursue the men who had taken their brother away, but they shouted at them to get back and made a few warning shots from automatic guns with silencers, so the applicants had to stop. The applicants noticed an APC, an Ural truck and a UAZ vehicle that had been stationed about 200 metres from their house in the Rechnaya Street. The vehicles left in the direction of Urus-Martan.
26. The eleventh applicant submitted that he had immediately gone to the village military commander’s office but was not allowed to see anyone. Then he had met a fellow villager Sultan M. who confirmed that he had just seen a convoy of an APC, an Ural and a UAZ passing through the military roadblock at the exit from Martan-Chu towards Urus-Martan.
27. In addition to their own detailed statements of facts, the applicants also submitted a hand-drawn plan of Martan-Chu indicating the places to which they referred.
28. The applicants have had no news from Mr Saydayev since that night.
29. The Government in their observations did not dispute the facts as presented by the applicants. They stated that it had been established that on 17 December 2002 unidentified armed men wearing camouflage uniforms and masks had entered the applicants’ house at Svoboda Street in Martan-Chu and taken away Bislan Saydayev to an unknown destination.
30. Immediately after the detention of their family members the applicants started to search for them. On numerous occasions, both in person and in writing, the applicants and their family members applied to prosecutors of various levels, to the Ministry of the Interior, to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, to military commanders, the Federal Security Service (FSB), to the administrative authorities, media and public figures. The applicants also personally visited detention centres in Chechnya as well as further afield in the Northern Caucasus. The search was primarily carried out by the first and the ninth applicant in respect of their husband and brother, respectively.
31. Besides personal visits, the applicants submitted letters to the prosecutors and other authorities in which they stated the facts of their relatives’ detention and asked for assistance and details on the investigation. The applicants have submitted copies of some of the letters they had written.
32. The applicants received hardly any substantive information from official bodies about the investigations into the disappearances and their results. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of the letters retained by the applicants and the replies they received from the authorities.
33. The applicants submitted that in the weeks following Leoma Meshayev’s arrest they had applied in person to the district military commander’s office, the district department of the FSB, the district department of the interior (ROVD), the Urus-Martan District Prosecutor’s Office (the district prosecutor’s office) with inquiries about the fate of their relative.
34. Within this initial period the applicants also submitted written applications stating the circumstances of Mr Meshayev’s detention and requesting assistance in finding him. They did not retain copies of these applications, but on 5 January 2003 the district prosecutor’s office opened criminal investigation file no. 34002 into Leoma Meshayev’s abduction by unidentified armed persons in camouflage uniforms under Article 126 of the Criminal Code. The applicants submitted that they had learnt of the investigation only on 5 March 2003 when the first and the second applicants were questioned and granted victim status in the proceedings.
35. On 13 March 2003 the district prosecutor’s office informed the first applicant that the criminal investigation into her husband’s abduction had been adjourned due to failure to identify the culprits. In response to this information, the first applicant requested the district prosecutor to allow her to have access to the case-file.
36. On 3 April 2003 the first applicant submitted a statement about a missing person to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms.
37. On 18 April 2003 the first applicant wrote to the district prosecutor’s office and the ROVD and asked them to carry out a proper investigation into her husband’s abduction.
38. On 21 April 2003 the district prosecutor’s office replied to the first applicant that although the investigators had taken all possible steps to identify the perpetrators of the crime they had failed to do so. She was invited to inform the prosecutors of any new information about the kidnapping which came to her knowledge.
39. On 29 April 2003 the applicants published a notice in the Marsho newspaper, with a description of the circumstances of their relatives’ apprehension and a call for any information about them.
40. On 18 June 2003 the first applicant again requested the district prosecutor to give her access to the documents of the criminal investigation. On 1 July 2003 the prosecutor’s office invited the first applicant to consult the file.
41. On 10 July 2003 the military prosecutor of the United Group Alliance (UGA) in Chechnya forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 in Khankala.
42. On 28 July 2003 the district military commander informed the first applicant that, following an internal investigation, it had been established that his office had had no part in the apprehension of her husband and had no information about his whereabouts or the identity of the perpetrators.
43. On 30 July 2003 the first applicant appealed the adjournment of the criminal investigation to the Chechnya Prosecutor’s Office. She reasoned that Leoma Meshayev, and also Bislan Saydayev, who had been detained on the same night by the same group of persons, could only have been detained by servicemen because of the use of military vehicles and the fact that these vehicles had been allowed to travel freely through the roadblock, despite the curfew in place. The first applicant requested the prosecutor to resume the investigation, to question the servicemen from the roadblock, the military commander’s office and other law-enforcement bodies of the district about the details of the operation, to identify and question witnesses among local residents, and to collect and examine the bullets and cartridges left behind by the abductors who had shot at the applicant as she was trying to pursue them. He was requested to carry out the investigation urgently, before the traces of the detained men had been lost. The first applicant also requested the prosecutor to join the investigation to the one opened into the abduction of Bislan Saydayev.
44. On 4 September 2003 the district prosecutor’s office replied to the first applicant that the investigation had taken all possible steps to solve the crime, but had failed to identify the culprits.
45. On 17 November 2003 the SRJI wrote to the district prosecutor on behalf of the first and ninth applicants and asked him to inform them of the state of the investigation in files nos. 34002 and 34041. The letter further asked him to join the investigations. A copy of that letter was forwarded to the Chechnya Prosecutor’s Office.
46. On 17 December 2003 the Chechnya Prosecutor’s Office informed the SRJI that on 10 December 2003 the criminal investigations into the abductions of Mr Meshayev and Mr Saydayev had been joined. Further details would be communicated to the applicants directly.
47. On 7 July 2004 the SRJI wrote to the district prosecutor’s office and again asked for information about the progress of the investigation.
48. On 21 July 2004 the district prosecutor’s office replied to the SRJI that the two criminal cases had been joined under file number 34002 and that on 13 December 2004 (to quote the text) the investigation had been adjourned. Efforts to find the two men would continue.
49. On 14 November 2005 the SRJI asked the district prosecutor’s office to inform them of the progress in the investigation and to carry out the following actions: to identify the provenance of the military vehicles involved in the abduction, to locate and review all registration documents related to the movement of military vehicles in the district on the night in question, to identify the authorities that had carried out special operations in the district on 17 December 2002 and to question their officers about the detention of Leoma Meshayev and Bislan Saydayev, and to question the servicemen of the Urus-Martan military commander’s office and other officials in charge of enforcing the curfew.
50. In the morning after his brother’s abduction, on 17 December 2002, the fourteenth applicant went to the military commander of the village. He submitted that the commander had told him that he did not know who had detained his brother. The commander also told him that on the previous day, on 16 December 2002, he had received a warning that an operation was being prepared in their village, but that later this operation had been cancelled. He had not been informed about the reasons for the operation or for its cancellation. He also allegedly promised to help them if Bislan Saydayev had been detained by the military, but said that he would not be able to do anything if he had been detained by the FSB.
51. The applicants submitted that in the following weeks they applied in person with inquiries about the fate of their relative to the district military commander’s office, the FSB, ROVD and the prosecutor’s office. The ninth applicant also asked the head of the Administration of Chechnya to order an investigation of his brother’s detention by unidentified servicemen.
52. At some point the applicants submitted written applications to the authorities stating the circumstances of Mr Saydayev’s detention and requesting assistance in finding him. They did not retain copies of these applications, but kept copies of the later applications. On 24 March 2003 the ninth applicant requested the district prosecutor’s office to open a criminal investigation into his brother’s abduction or to inform him if his brother had been accused of any crime. He referred to their previous unsuccessful applications to various law-enforcement structures.
53. On 6 April 2003 the ninth applicant wrote to the member of the State Duma elected from Chechnya and to the Speaker of the State Duma, complaining about his brother’s disappearance. He stated that they had applied to various law-enforcement bodies in vain. The ninth applicant asked the Duma to create a commission to investigate the phenomenon of “disappearances” in Chechnya.
54. On 11 April 2003 the district prosecutor’s office informed the ninth applicant that their office had opened criminal proceedings into his brother’s kidnapping.
55. On 23 April 2003 the ninth applicant was granted victim status in criminal investigation file no. 34041 opened into his brother’s abduction by unidentified persons.
56. On 5 May 2003 the tenth, eleventh, fourteenth and fifteenth applicants asked the district prosecutor’s office to grant them victim status in the proceedings concerning the abduction of their son and brother. It is unclear if these requests were granted.
57. On 10 June 2003 the district prosecutor’s office informed the ninth applicant that on 10 June 2003 criminal investigation no. 34041, opened on 10 April 2003, had been adjourned due to failure to identify the culprits. The applicant was informed of the possibility to appeal.
58. On 17 June 2003 the military prosecutor of military unit no. 20102 forwarded the ninth applicant’s complaint to the district prosecutor’s office and stated that there were no grounds to suspect the involvement of military servicemen.
59. On 28 July 2003 the ninth applicant appealed against the adjournment of the criminal investigation to the Chechnya Prosecutor’s Office. He reasoned that his brother could only have been detained by servicemen because of the use of military vehicles and the fact that the vehicles had been allowed to travel freely through the roadblock, despite the curfew in place. The ninth applicant requested the prosecutor to resume the investigation, to question the servicemen of the roadblock, of the military commander’s office and other law-enforcement bodies of the district about the details of the operation, to identify and question witnesses among local residents, to collect and examine bullets and cartridges left behind by the abductors who had shot at the eleventh and fourteenth applicant as they were trying to pursue them. The complaint requested that the investigation be carried out urgently, before the traces of Bislan Saydayev had been lost.
60. On 9 August 2003 the Chechnya Prosecutor’s Office forwarded the ninth applicant’s complaint to the district prosecutor’s office.
61. On 29 September 2003 the ninth applicant requested the district prosecutor’s office to allow him access to the materials of the adjourned criminal investigation into his brother’s abduction.
62. In their observations the Government did not dispute the information concerning the investigations as presented by the applicants. Relying on information obtained from the General Prosecutor’s Office, they referred to other procedural steps which had not been mentioned by the applicants. However, despite specific requests from the Court, the Government did not submit copies of most of the documents to which they referred (see below). The Government submitted the following.
63. On 5 January 2003 the district prosecutor’s office opened criminal investigation file no. 34002 concerning the abduction of Leoma Meshayev on 17 December 2002. According to a document issued on 21 June 2006 by the acting district prosecutor, the main version of the crime examined by the investigation was the involvement of “power structures and military units” (“силовых структур и воинских подразделений»).
64. On 8 January 2003 the first applicant was questioned and granted victim status in the proceedings. She was also questioned again on several occasions. She stated that on the night of 16 to 17 December 2002 about five armed persons wearing military uniforms who had spoken Russian and Chechen had entered their house and abducted her husband. The second applicant was questioned on 8 January 2003 and gave similar statements; however, he stated that there had been about ten abductors.
65. On 10 April 2003 the district prosecutor’s office opened criminal investigation file no. 34041 concerning the abduction of Bislan Saydayev on 17 December 2002.
66. According to the Government, on 23 April 2003 the investigators granted victim status to the ninth applicant. When questioned he stated that at about noon on 17 December 2002 he had returned from Grozny and had learnt from his brother, the fourteenth applicant, that at about 3 a.m. on that night unknown armed persons had entered their house and taken away their other brother, Bislan Saydayev. The tenth and the fifteenth applicants gave similar statements on unspecified dates.
67. The Government stated that other relatives of Bislan Saydayev, notably, the tenth, fourteenth and fifteenth applicants, had not sought the status of victims in the proceedings related to his disappearance and had not been accorded it.
68. On 13 December 2003 the investigation of the two cases was joined and the case file was assigned number 34001 (to quote the text).
69. The Government submitted to the Court one witness statement made by the first applicant, dated 23 June 2006, in which she described the circumstances of her husband’s arrest and the fact that she had been hit in the face by one of the intruders. No other statements were produced.
70. In their observations the Government referred to witness G.’s statement of 10 December 2003 that on the night of 16 December 2003 [should probably be 2002] a large part of his supply of cut wood for winter, which had been stored near the cemetery, had been stolen. He had seen the tracks of heavy military vehicles, such as APCs or Ural trucks, near that place. On 23 June 2006 the investigation decided not to open criminal proceedings in relation to the theft in view of the expiration of the statutory time-limits.
71. The Government noted that the applicants’ statements that their relatives had been detained by servicemen could not be confirmed. The applicants did not recall any details of the clothing, arms or distinctive marks on the uniforms of the abductors.
72. The Government also noted that the investigation had found no grounds to support the first applicant’s allegations that she had been hit during the arrest of her husband, as she and other witnesses had not mentioned this during questioning. As to the first applicant’s statement that the armed men had also taken her husband’s passport, the Government informed the Court that the investigators had decided not to open criminal proceedings in this respect, due to expiration of statutory time-limits. Finally, the Government contended that Leoma Meshayev had not been on the register of the local tuberculosis health centre, despite the applicants’ allegation that he had suffered from that disease.
73. According to the Government, the investigators had sought information about the two men from various State authorities. On unspecified dates the district military commander’s office, the Urus-Martan district department of the FSB and “other power structures” stated that they had no information about the carrying out of special activities on the night in question in Martan-Chu. Their offices had not detained Leoma Meshayev and Bislan Saydayev. The law-enforcement agencies of Chechnya informed the investigators that they had never detained or arrested the two missing men, nor carried out a criminal investigation in their respect. The investigation failed to establish the whereabouts of Mr Meshayev and Mr Saydayev. Requests for information sent by the investigators in 2007 and 2008 produced no new results in the investigation of the crime.
74. As it appears from the documents submitted by the Government, the investigation had been suspended and reopened a number of times. The applicants had been occasionally informed of these developments. According to the Government, the investigation was under the control of the Prosecutor General’s Office.
75. Despite specific requests by the Court the Government did not submit a copy of the file in criminal case no. 34002, providing only copies of decisions to suspend and resume the investigation and to grant victim status, notifications to the applicants of the suspension and reopening of the proceedings and one witness statement mentioned above. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in breach of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
76. On 6 April 2006 the first and ninth applicants applied to the Urus-Martan Town Court (“the town court”). They complained that the district prosecutor’s office had failed to effectively investigate the disappearances and requested to be granted access to the case file.
77. On 4 May 2005 the town court partially allowed the complaint based on the district prosecutor’s office’s failure to take effective steps and to investigate the abduction. The court ordered the district prosecutor’s office to resume the investigation and to carry out a number of investigative actions as requested by the applicants, such as questioning the residents of Martan-Chu and the servicemen of the military roadblock situated on the road towards Urus-Martan who had been on duty on the night of 16-17 December 2002. The court refused to grant the applicants access to the case file, stating that that right was accorded to victims only on completion of the investigation, and not when the proceedings were adjourned. On 7 July 2005 the Chechnya Supreme Court upheld this decision.
78. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-93324
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DENESOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Sašo Denesoski, is a Macedonian national who was born in 1967 and lives in Ohrid. He was represented before the Court by Mr S. Dimitrov, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 July 2000 the Ohrid Court of First Instance (“the first-instance court”) convicted the applicant and Mr A. of misdemeanours punishable under sections 206 and 207 of the 1998 Customs Act (see “Relevant domestic law” below). They were fined 25,000 Macedonian denars (MKD). The court also ordered a security measure in respect of Mr A., namely confiscation of a car which he had imported free of customs duties (“the confiscation order”). On 19 October 2000 the Bitola Court of Appeal overturned that decision and suspended the misdemeanour proceedings since they had not been instituted by a competent authority.
On 6 March 2001 a fresh application for misdemeanour proceedings was lodged against the applicant and Mr A., now under section 295 of the 1993 Customs Act (see “Relevant domestic law” below).
On 18 May 2001 the first-instance court found the applicant and Mr A. guilty and fined them MKD 15,000 each. It observed that Mr A. had imported the above-mentioned car free of customs duties in January 1998. Under the applicable rules, the car should not have been disposed of for three years after being imported. However, Mr A. had transferred the car to a company T. under an uncertified investment agreement (договор за вложување). The court further established that on 2 April 2000, at 3, 30 a.m., the police had stopped the applicant while he was driving the car. The court ruled that the applicant knew or, in the circumstances, ought to have known that the car had been imported free of customs duties and that he could not use it. By a rectifying decision of 8 June 2001 the confiscation order was issued in respect of Mr A. On 11 September 2001 the Bitola Court of Appeal quashed these decisions and remitted the case for fresh consideration.
On 5 March 2002 the applicant was found guilty of committing an offence punishable under the 1993 Customs Act and was fined MKD 10,000. The confiscation order was issued again in respect of Mr A. This decision was set aside on 21 May 2002.
On 29 October 2002 the first-instance court found the applicant guilty and imposed the same fine. Relying on the evidence admitted in the first set of proceedings, the court found the applicant’s conduct to be in breach of section 295 § 3 of the 1993 Customs Act. It established that on 2 April 2000 at 3.30 a.m., the applicant had been driving the car even though he knew or, in the circumstances, ought to have known that he could not use it given the preferential customs regime under which it had been imported. The court further stayed the proceedings in respect of Mr A. since the four-year time-bar provided for in the 1998 Customs Act had expired. In this connection, it established that on 17 February 1998 Mr A. had transferred the car to company T. although he was legally not supposed to dispose of it until after 11 February 2001. Lastly, the court issued the confiscation order in respect of Mr A. as holder of title to the car.
The applicant appealed, submitting, inter alia, that the prosecution was time-barred, that his conviction was based on the 1993 Customs Act, which was not in force at the date of the purported offence, namely 2 April 2000, that no evidence for his guilt had been presented nor any reason given in respect of the confiscation order and the fine imposed.
On 7 November 2003 the Bitola Court of Appeal dismissed the applicant’s appeal. It held that there was sufficient evidence of his guilt; that it was irrelevant when the applicant had acquired factual possession of the car since the offence was regarded as being committed on 2 April 2000 and that the four-year time-bar, specified in the 1998 Customs Act, had not expired in the applicant’s case. It further stated that the confiscation order had been lawful. No comment was made on the applicant’s complaint that his conviction had been based on the 1993 Customs Act.
On 21 November 2003 this decision was served on the applicant.
On 11 December 2003 the first-instance court dismissed Mr A.’s claim for restitution of the car. It further regarded the applicant’s claim submitted on the same ground as having been withdrawn. On 15 April 2004 the Bitola Court of Appeal upheld this decision.
Section 29 of the 1993 Customs Act identified persons eligible to import goods free of customs duties. A person concerned was obliged to pay the customs levies if he or she, within three years after the import, intended to sell or to transfer to another person or to use the goods concerned for a purpose other than those for which the customs exemption or customs privilege had been granted.
According to section 289 § 1 (9), an enterprise or other legal entity would be fined by an amount of one to three times the evaded customs duty or one to two times the value of the undeclared goods if, before the expiration of the three-year time-limit, it had sold, transferred to another person or used the goods concerned for a purpose other than those for which the customs exemption had been granted.
Section 295 § 1 provided that an enterprise or other legal entity which bought, sold, accepted as a gift, retained, used or held on any ground the goods concerned, although it knew or in the circumstances ought to have known, that an offence had been committed, inter alia, under section 289 § 1 (9), would be sentenced to the same penalty as the offender. Under paragraph 3 of this provision the same applied to individuals, both nationals and foreigners.
Section 187 § 1 of the 1998 Customs Act provided that goods free of customs duties could not, within three years after being imported and without import levies having been paid, be sold, transferred to another person or used for a purpose other than that for which the customs exemption had been granted.
Under section 206 § 1 (14), an individual was to be fined by an amount of one to five times the evaded customs duty or one to three times the value of the goods if he or she, contrary to section 187 and without having paid the customs duty, sold, transferred to another person or used goods for a purpose other than that for which the customs exemption had been granted.
Section 207 §§ 1 and 3 provided that legal entities which, in relation to the activity pursued, bought, sold, accepted as a gift, retained or for transport purposes, held, used or secured possession of goods in respect of which it knew or, in the circumstances ought to have known, that an offence under sections 204-206 had been committed, would be sentenced to the same penalty as the offender. That provision applied likewise to individuals.
The date when the 1998 Customs Act was to enter into force was postponed on several occasions. By a law of 31 December 1999 (Official Gazette no. 86/99), it became applicable as of 1 April 2000.