ITEMID: 001-101962
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HENRYK URBAN AND RYSZARD URBAN v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants were born in 1962 and 1960 respectively and live in Uherce Mineralne.
6. Both applicants were charged with the administrative offence (wykroczenie) of refusing to disclose their identity to the police. Henryk Urban (“the first applicant”) was also charged with using offensive language in a public place.
7. On 13 September 2006 the Lesko District Court, in summary proceedings, convicted the applicants as charged. They lodged an objection to the ruling. Consequently, their case was examined by the District Court in ordinary proceedings.
8. On two occasions the applicants requested the court to admit a certain Z.W. to the proceedings as a representative of a civil society organisation and/or their counsel. The District Court refused their requests as inadmissible in law. The second applicant was represented by legal-aid counsel.
9. On 7 November 2006 the first applicant filed a request for the withdrawal of all judges and “assessors” (junior judges) of the Lesko District Court on the ground that he had lost faith in them. On 21 December 2006 the Krosno Regional Court decided to exclude two Lesko District Court judges, J. Ł. and L. R.-S., from examining the first applicant's case as they had been victims and witnesses in an earlier criminal case against the first applicant. In respect of the other judges and assessors of the Lesko District Court, the applicant's request was dismissed. The Regional Court held that the general dissatisfaction of the first applicant with the decisions given by the District Court in his cases had not undermined the impartiality of those judges and assessors.
10. On 29 December 2006 the District Court decided to examine the two applicants' cases jointly.
11. On 31 August 2007 the first applicant requested that the assessor (asesor sądowy) B. R.-G. withdraw from the case on the ground that she had not accepted a medical certificate excusing his mother from attending a hearing. On 24 September 2007 the Lesko District Court, sitting as a single judge, dismissed the first applicant's request as ill-founded and prompted only by his subjective assessment of the assessor.
12. On 2 October 2007 the Lesko District Court, sitting as an assessor, gave judgment. Both applicants were convicted of failing to disclose their identity to the police and sentenced to a fine of PLN 100. The first applicant was acquitted of the other charge.
13. The applicants appealed. They objected, inter alia, to the fact that their case had been decided by an assessor, alleging that she was not a judge. They referred to the Constitutional Court's judgment of 24 October 2007 and submitted that the assessor could not exercise judicial powers because she did not offer sufficient guarantees of independence.
14. On 10 December 2007 the Krosno Regional Court upheld the District Court's judgment. It considered the applicants' objections to the composition of the first-instance court, based on the Constitutional Court's judgment, unfounded. No further appeal lay against the Regional Court's judgment.
15. According to the Government, the applicants did not question the ability of an assessor to give judgments, but they alleged that the particular assessor who had judged them had not been impartial. The applicants referred to the assessor as an institution only after the Constitutional Court's judgment, in the supplement to their appeal.
16. The Constitution was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997.
Article 45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Article 190 of the Constitution, regarding the effects of judgments of the Constitutional Court, provides, in so far as relevant:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such a time-limit may not exceed eighteen months in relation to a statute or twelve months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given, shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
17. The Law of 27 July 2001 (as amended) on the Organisation of Courts (Prawo o ustroju sądów powszechnych; hereinafter “the 2001 Act”) sets out comprehensively all matters related to the organisation and administration of courts of general jurisdiction, the status of judges and their self-governing bodies, and the position of assessors and trainee judges, court employees and officers and lay judges.
The 2001 Act stipulates the requirements that have to be fulfilled to assume the office of a district court judge. A candidate for such office is required, among other conditions, to complete a judge's or prosecutor's training (aplikacja) and then pass the relevant examination. Subsequently, he or she has to work a minimum of three years as an assessor in a district court.
Sections 134-136 of the 2001 Act regulate the position of assessors. They provide, in so far as relevant:
Section 134
“§ 1. The Minister of Justice may appoint as an assessor a person who has completed a judge's or prosecutor's training and passed the judge's or prosecutor's examination and who meets the requirements specified in section 61 § 1 (1-4).
[...]
§ 5. The Minister of Justice may discharge an assessor having given him notice and subject to approval by the board (of judges) of a regional court.”
Section 135
“§ 1. The Minister of Justice may, subject to approval by the board (of judges) of a regional court, authorise an assessor to exercise judicial powers in a district court for a specified period of time, not exceeding four years. [...]
§ 2. While adjudicating, assessors shall be independent and subject only to the Constitution and statutes.
[...]
§ 5. During the period in which an assessor exercises judicial powers he or she remains under the supervision of a judge designated to carry out the function of a consulting judge.
[...]”
18. In this decision, following the filing of two constitutional complaints challenging the constitutionality of the status of assessors, the Constitutional Court decided to draw the attention of the Sejm (the lower Chamber of the Parliament) to the need to consider a bill on the system of appointing persons who exercise judicial powers. It noted that both the National Judicial Council and the Ombudsman had shared the main arguments of the claimants as to the unconstitutionality. The Constitutional Court noted that the possible finding of unconstitutionality in respect of the provisions governing the status of assessors could have far-reaching consequences for the whole system of the administration of justice, having regard to the number of assessors adjudicating in the district courts.
19. The proceedings before the Constitutional Court were initiated by two constitutional complaints. The first of them was made by J.W., who complained that his detention had been imposed by an assessor. The second complaint was lodged by a company, AD Drągowski S.A., which complained that a prosecutor's decision discontinuing a criminal investigation had been reviewed by an assessor. Both complainants alleged that various provisions of the 2001 Act which govern the position of assessors were incompatible, inter alia, with Article 45 of the Constitution, providing for the right to have one's case examined by an impartial and independent court.
20. The Constitutional Court heard the case as a full court (fourteen judges). In the first part of the operative part it held that:
“Section 135 § 1 of the Law of 27 July 2001 on the Organisation of Courts was incompatible with Article 45 § 1 of the Constitution.”
It found that the vesting of judicial powers in assessors by the Minister of Justice (representing the executive) was unconstitutional since the assessors did not enjoy the necessary guarantees of independence which were required of judges. As a preliminary point the Constitutional Court considered that the constitutional requirements of independence were equally relevant for all courts, regardless of their level and scope of jurisdiction. It noted that the lack of independence of the first-instance court would amount to a breach of Article 45 of the Constitution even when the second-instance court examining an appeal complied with the requirements of independence.
21. The Constitutional Court gave, inter alia, the following reasons:
“3.4. (...) Since Article 45 of the Constitution explicitly refers to the content of Article 6 of the Convention, being one of the sources of international law binding on our State, it should be added that the European Court of Human Rights does not interpret the concept of “a tribunal” used in the Convention in the formalistic manner and accepts that “a tribunal may be composed fully or partly of persons who are not professional judges” (Ettl v. Austria, judgment of 23 April 1987, no. 9273/81, and Engel and Others v. the Netherlands, judgment of 8 June 1976). (...)
5.4. In accordance with the text of the statute, while adjudicating an assessor shall be independent and subject only to the Constitution and statutes (section 135 § 2). However, ..., such regulation of itself is only a declaration, not ensuring the real and effective independence required by the Constitution, unless the independence is supplemented by concrete guarantees, namely particular legal regulations related to effective securing of the observance of the particular elements of the concept of independence. (...)
5.5. The issue of independence from the Minister of Justice should be seen from the angle of the assessor's appointment, the vesting of judicial powers in an assessor and his or her dismissal. In respect of the appointment, and in particular the vesting of judicial powers, the statute does not precisely specify the time frame in which such appointment should be made. Considered from the functional point of view, independence does not have to mean appointment for life or appointment until retirement age, but it must mean a certain level of stability in employment and in the exercise of judicial powers. It should be indicated here that the Strasbourg case-law underlines precisely that if judges or persons exercising judicial powers are not appointed for life, they could be appointed for a certain term of office, and that they must benefit from a certain stability and must not be dependent on any authority (judgment of the ECHR of 23 October 1985 in the case of Benthem v. the Netherlands, no. 8848/80). It may be indicated here that in attempting to define more closely a certain minimum period which would guarantee professional stability the European Court of Human Rights found three years to be sufficient (judgment of the ECHR of 28 June 1984 in the case of Campbell and Fell v. the United Kingdom, nos. 7819/77 and 7878/77, and the judgment of the ECHR of 22 October 1984 in the case of Sramek v. Austria, no. 8790/79). The regulation of the assessor's status does not contain such guarantees, since there is no minimum period for which such a person is employed and no minimum period for which an assessor is vested with judicial powers. It is undoubtedly a situation which gives rise to significant misgivings as to its compliance with the principle of independence. In this respect the situation would have looked unambiguous if the statute had expressly determined the period for which an assessor was appointed and the period for which the judicial powers were vested. The existing regulation, implying discretion of the minister and the board of judges of the regional court (...) thus amounts to one-sided dependence of the assessor's professional status on those organs.
(...)
5.7. The principal argument indicative of the unconstitutionality of the vesting of judicial powers in an assessor is the admissibility of his or her dismissal, including even during the period in which an assessor exercises judicial powers. Even assuming the constitutional admissibility of the institution of temporarily vesting those powers in an assessor within the jurisdictional and temporal limits specified by a statute, then a rudimentary aspect of the principle of independence which must be adhered to also in this case requires that it should be possible to remove an assessor from office only in the same way as judges may be so removed or even only in some of those cases. The existing regulation, firstly, does not contain a proviso that the dismissal of an assessor (at least one who has been vested with judicial powers) is allowed only as an exception to the rule. Secondly, the statute does not precisely set out the factual circumstances serving as justification for dismissal from the office. Thirdly, a decision on dismissal is taken by the Minister of Justice and not by a court. It follows that, regardless of whether dismissal from the office of assessor may be reviewed by a court, the essential requirements of independence from non-judicial authorities stemming from Article 180 § 1 of the Constitution are not met. The obligation [to secure] the approval of the board of judges of a regional court is not a pertinent circumstance, since this body is not a court but an organ of court administration, and moreover its approval is also of a discretionary character as there are no specific legal norms which indicate whether or not a dismissal is justified in a given situation. Consequently, there are no substantive guarantees and no adequate procedural guarantees which would indicate that the assessor's dismissal on the ground of the content of his/her rulings is excluded. (...)”
The Constitutional Court also found that:
“5.13. The protection of the arbiter's internal independence from outside, including political, pressures is particularly difficult when – as in the case of assessors – it is the Minister of Justice – a political appointee and a member of the executive – who has influence over their promotion and career. (...)”
Furthermore, the Constitutional Court found that an assessor was also dependent on a board of judges of the regional court since that body was competent to approve the vesting of judicial powers in him or her and to dismiss him or her. It also played a consultative role in the procedure for an assessor's nomination for the position of district court judge. In addition, the 2001 Act did not prohibit assessors from being members of political parties.
22. In the second part of the operative part of the judgment the Constitutional Court held as follows:
“1. The provision mentioned in the first part of the operative part of the judgment (section 135 § 1 of the 2001 Act) will lose its binding force eighteen months after the promulgation of the judgment in the Journal of Laws of the Republic of Poland.
2. The acts of the assessors referred to in section 135 § 1 of the 2001 Act shall not be subject to a challenge on the basis of Article 190 § 4 of the Constitution.”
The Constitutional Court ordered that the unconstitutional provision should be repealed eighteen months after the promulgation of the judgment. Its decision was motivated by the fact that assessors constituted nearly 25% of the judicial personnel in the district courts and that their immediate removal would seriously undermine the administration of justice. During the eighteen-month period it was constitutionally admissible for the assessors to continue adjudicating. That period was also necessary for Parliament to enact new legislation dealing with the matter.
23. The Constitutional Court, having regard to the constitutional importance of the finality of rulings, considered the consequences of its judgment for the validity of rulings given in the past by the assessors. It held that there was no possibility of reopening the proceedings in respect of such rulings under Article 190 § 4 of the Constitution.
24. In respect of the consequences of its judgment, the Constitutional Court observed, inter alia, as follows:
“6.1. Ruling on the unconstitutionality of section 135 of the 2001 Act, the Constitutional Court did not exclude the possibility of the existence of assessors as an institution. However, it questioned its normative framework, having regard to the vesting of judicial powers in assessors (by the Minister of Justice, a representative of the executive) to carry out the constitutional function of the administration of justice without also [securing] the constitutionally required guarantees of independence which judges enjoy. Nor should the judgment of the Constitutional Court be understood as ruling out, in principle, the possibility to allow adjudication by persons other than judges within the meaning of the Constitution. In this respect also international standards binding on Poland indicate many possible types of solutions [which are] compatible with the rule of law. Those standards should be used by the legislator when considering a solution [to the problem]. In any case solutions to be considered should be such as to guarantee real separation between the judiciary and the other powers (Article 10 of the Constitution), to loosen the bond between the assessors and the Minister of Justice [and] to ensure the influence of the National Judicial Council on the professional career of a judge in spe. Without prejudging the future normative regulation of the institution of assessors, the present judgment of the Constitutional Court should be understood as a negative constitutional assessment of the currently existing normative model of this institution. (...)
6.4 In the present judgment the unconstitutionality concerns the institutional provisions [who may exercise judicial powers]. (...) Thus, the question arises as to the relationship between the unconstitutionality of the said institutional provisions and the validity of the judgments given by the assessors. It should be underlined that the judgments – given [by assessors] during the period in which, in the light of the thenexisting constitutional standard, the vesting of judicial powers in the assessors was not challenged – cannot be questioned. In particular, it would be an error to look for any analogy with a situation in which a ruling was given by a body which was incompetent or (...) incorrectly composed. It was only the ruling of the Constitutional Court which, ratione imperii, rebutted the presumption of constitutionality of the impugned norm [section 135 § 1]. And in order to remove any doubts as to the legal significance of the rulings given so far by the assessors, the Constitutional Court included in the operative part a suitable finding (part II (2) of the operative part). (...)
6.6 The finality of rulings is itself a constitutional value. (...) Thus, in every case the undermining of the finality of rulings has to be subject to the careful balancing of the values. This means that the judgments given by assessors in the period when the constitutionality of vesting judicial powers in them was not challenged cannot be automatically questioned. (...) On the one hand the duly implemented right to a court rules out staffing the independent court with judges who do not possess the guarantees of independence, which is determinative of the finding of unconstitutionality in the present case; on the other hand, were it allowed to challenge the final judgments given by assessors in the period when the possibility of vesting judicial powers in them was not questioned, this would lead to the weakening of the right to a court and undermine the stability of the law and legal certainty. (...) The protection of the finality of rulings is constitutionally embedded in Article 7 of the Constitution, which talks about the functioning of the public authorities (courts in this case) on the basis of, and within the limits of, the law. Thus, the final rulings are backed by the constitutional presumption stemming from this provision. It may be rebutted – when the ruling itself departs from the constitutional standard (the unconstitutionality concerning substantive law or procedure applied in concreto when giving a final ruling). However, it would be disproportionate to undermine final rulings on the basis of the finding of pro futuro unconstitutionality which concerns the composition of a body giving those rulings, which acted in accordance with the Constitution at the time of giving them.
(...)
7.5 In the present case the unconstitutionality concerns the institutional provisions, and thus a relationship between a concrete ruling and the unconstitutional norm is much more tenuous than in the case of unconstitutionality of a substantive or procedural provision applied in an individual case. (...)
In the Constitutional Court's view it is not, however, possible that the relationship between the unconstitutional institutional provision (as in the present case) and the final ruling justifies the reopening of an individual ruling pursuant to Article 190 § 4 of the Constitution. The unconstitutionality of the rule determining who may be vested with the exercise of judicial powers does not have to mean that the content of the ruling or the procedure applied in reaching it is unconstitutional. (...)”
25. On 23 January 2009 Parliament enacted the Law on the National School for the Judiciary and the Prosecution Service (Ustawa o Krajowej Szkole Sądownictwa i Prokuratury), which entered into force on 4 March 2009. The law establishes a comprehensive and centralised institution responsible for training judges and prosecutors.
In response to the Constitutional Court's judgment of 24 October 2007 the Law on the National School abolished the institution of judicial assessors as provided for by the Law of 27 July 2001 on the Organisation of Courts (section 60 (12)). Furthermore, it specifically provided that as from 5 May 2009 assessors ceased to be authorised to exercise judicial powers (section 68 (1)).
26. In the above judgment the Constitutional Court considered the relationship between its jurisdiction and the jurisdiction of the Court. It observed as follows:
“6.3. (...), the Constitutional Court draws attention to the fact that the control exercised by the European Court of Human Rights (ECHR) does not as such relate to the assessment of norms of the legal system of a State where the events considered as breaches of human rights occurred. [Its control] concerns concrete facts of breaches of human rights in the activities of public authorities in respect of concrete persons. In principle it is not a control of the provisions (norms) which constitute the legal order of the State, but an examination of a situation concerning potential individual breaches of human rights and freedoms laid down in the Convention. The control exercised in an individual case may occasionally indicate that the domestic legal order also contains norms which, as applied, led in concreto to a breach of human rights in the case examined by the ECHR. This does not automatically amount to the disqualification of a norm in so far as its constitutionality is concerned.
The jurisdiction of the Constitutional Court in the constitutional complaint proceedings extends to controlling the constitutionality of legal norms in accordance with the principle adopted in Article 79 § 1 of the Constitution: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or administrative authority has issued a final decision on his freedoms or rights or his obligations as specified in the Constitution.”
The duty to consider the effects of a relevant judgment of the ECHR in the activities of the domestic authorities of the State obliges the Constitutional Court to take into account – in the framework of its control of the constitutionality of norms – the standards elaborated by the ECHR, with a view to eliminating possible conflicts between them. However, the Constitutional Court does not examine whether the impugned provisions were correctly applied in individual cases, as this comes within the jurisdiction of the ordinary and administrative courts. Nor does [The Constitutional Court], in the proceedings initiated by a constitutional complaint, examine the compatibility of the reviewed norms with the international agreements. (...)”
27. Article 540 § 3 of the Code of Criminal Procedure provides for the possibility of reopening the proceedings following a judgment of the European Court of Human Rights. It reads as follows:
“The proceedings shall be reopened for the benefit of the accused when such a need results from a decision (rozstrzygnięcie) of an international body acting on the basis of an international agreement ratified by the Republic of Poland.”
28. The applicants argued that the assessor who had heard their case in the first-instance court had not been “an independent tribunal” within the meaning of Article 6 § 1 of the Convention. Article 6 § 1 of the Convention reads, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
30. The applicants argued that they had been deprived of a fair trial on account of the lack of independence of the trial court. They contended that the relevant legislation on the status of assessors had not met the standard of “independent tribunal” required under Article 6 of the Convention. They supported this contention by the findings of the Constitutional Court in its judgment of 24 October 2007 and the case-law of the Court.
31. Firstly, persons exercising judicial powers had to benefit from certain stability and could not be dependent on any authority, while the regulation concerning assessors fell short of those guarantees. Secondly, the 2001 Act was deficient as regards the possibility of an assessor's dismissal. The guarantee of an “independent tribunal” required that an assessor should be able to be removed from office only in the same way as judges. However, the legislation provided for decisions concerning the dismissal of assessors to be taken by the Minister of Justice and not by a court. Thus, an assessor was not protected against the influence of the executive. Thirdly, as regards the perception of an assessor's independence, the applicants asserted that the administration of justice had to be carried out in an independent and impartial manner. They underlined in this connection that their own negative perception of the assessor's independence was of importance. This had been reinforced by the mistakes made by the assessor in the proceedings against the applicants. Lastly, the applicants submitted that the appellate court had not cured the lack of independence of the trial court. The appellate court, referring to the Constitutional Court's judgment, had simply held that the applicants' misgivings about the trial court's composition had been unfounded.
32. The Government underlined the importance of the principle of subsidiarity. They observed that the Constitutional Court in its judgment of 24 October 2007 had ruled that section 135 § 1 of the 2001 Act was not in conformity with Article 45 § 1 of the Constitution. Subsequently, the Parliament amended the relevant law and as of 9 May 2009 the office of assessor ceased to exist in the Polish legal system. The Government argued that since the source of the alleged violation had already been identified in the Constitutional Court's judgment, there was no need for the Court to deal with the problem of the independence of assessors.
33. The Government commented on the comparison of the level of protection of judicial independence in the Convention and the Polish Constitution. They maintained that up until 2007 the Court and the Polish Constitutional Court had interpreted the requirements of independence and impartiality in a similar manner. In that period, the Constitutional Court had to a large extent been inspired by the Court's decisions and, in consequence, the Polish standard had in principle reflected the Convention standard.
34. However, the Constitutional Court's judgment of 24 October 2007 brought about a fundamental change in this area. It set the constitutional guarantees on a level significantly higher than that existing and accepted before. The Government argued that it seemed virtually impossible for anyone but a professional judge to meet those standards, even though the Constitutional Court had not excluded the possibility of justice being administered by “persons with a status similar to that of judges, officially provided with guarantees of independence in adjudicating”. In reaction to the judgment, Parliament abolished the institution of assessors and decided against introducing any other, similar institution, being aware that in the light of the new standards the task would be virtually impossible.
35. They emphasised that prior to the Constitutional Court's judgment, assessors had been universally considered as an institution that fulfilled the constitutional criteria of independence and impartiality. The situation had changed significantly only after the Constitutional Court's “signal decision” (postanowienie sygnalizacyjne) in which it indicated the need to remedy a legal deficiency in connection with the examination of case no. SK 7/06. Thus, the Constitutional Court's judgment of 24 October 2007 should be assessed in this context as introducing a key modification of the manner of construing previously accepted institutions of the legal system.
36. In addition, the Government argued that there were further reasons which rendered the Constitutional Court's judgment irrelevant to the outcome of the present case. Firstly, the Convention laid down a certain minimum standard to be met, while the Polish Constitution, as the supreme act of domestic law, set out not a minimum but a maximum standard. In consequence, it could be possible for a measure that satisfied the Convention standard to be inconsistent with the constitutional standard. Secondly, the Constitutional Court's review concerned a single, coherent legal system rather that several dozens of different systems, so it was possible to develop the standard further. The Court, on the other hand, had to take into account differences between various European legal systems and could not set too detailed and far-reaching directives in its judgments. Thirdly, the Constitutional Court's review was a formal review of the conformity of lower ranking provisions with the Constitution and, in principle, its jurisdiction did not extend to the issue of the application of a given provision in concreto. In contrast, the subject-matter of the Court's review was not the legal provision itself but the substantive content of the regulation and the effects it produced in an individual case. In conclusion, the Government noted that the constitutional standard of independence as laid down in the Constitutional Court's judgment was stricter than that enshrined in the Convention. Furthermore, the Constitutional Court's judgment did not determine that a court in which an assessor adjudicated lacked independence within the meaning of Article 6 § 1.
37. The Government submitted that the office of an assessor differed from that of a judge. The former had been primarily devised as an intermediate stage between the judicial traineeship and the office of a judge. This resulted in a natural differentiation regarding the appointment procedure, tenure, possibility of dismissal and remuneration, yet the key element was to establish whether the level of safeguards provided for assessors was sufficient under Article 6 § 1.
The Government claimed that if the independence of an assessor were to be considered from two perspectives, namely the positive one (the assessor's subordination in administering justice only to legal norms and their own beliefs) and the negative one (third parties' inability to persuade them to decide the case in a given way) then it could be considered that in reality assessors were independent in respect of their adjudicatory role, even though they were not equipped with all the constitutional guarantees. In addition, there were many arguments related to the case-law of the Court which required that the independence of an assessor be assessed in a different way than that expressed in the Constitutional Court's judgment.
38. The Government analysed in detail the provisions of the 2001 Act regulating the status of assessors and, in particular, those related to the exercise of judicial powers by them. In their view, those regulations, which in many respects extended rules applicable to judges to assessors, fulfilled the standard of judicial independence defined in Article 6 § 1 of the Convention.
They emphasised that the constitutional guarantees of independence of the courts and professional judges (Articles 178-181 of the Constitution) had materially influenced the status of assessors. An assessor vested with judicial powers was a member of the community of judges and, following the common practice, was treated accordingly. In consequence, any attempt to undermine the actual independence of assessors had to be interpreted in the context of the guarantees enjoyed by judges. In practice, it meant that assessors had been required to comply with those very standards. The judicial community, particularly interested in maintaining the constitutional guarantees of independence and impartiality, had always exerted an extremely strong influence on assessors. The Government further referred to the fact that both society and the legal community had considered assessors independent and equal to professional judges. They also pointed to the existence of institutions similar to that of the assessor in a number of European countries (Germany, Austria, the United Kingdom, the Netherlands, Luxembourg, and Estonia).
39. As regards the possibility of dismissing an assessor provided for in section 134 § 5 of the 2001 Act, the Government argued that this power of the Minister of Justice had not been unrestrained since the necessary condition for dismissal was the prior consent of the board of a Regional Court. That mechanism effectively protected an assessor against the threat of unjustified dismissal by the executive, thereby eliminating the possibility of pressure being brought by the Minister. The Government, basing themselves on the official statistics, emphasised that the Minister of Justice had never exercised the power to dismiss an assessor. Accordingly, the above arrangement had been in compliance with Article 6 § 1 of the Convention.
40. The Government asserted that in the present case there had been no reason to consider that the assessor who had adjudicated in the case had not been objective. The applicants had tried from the outset of the proceedings to exclude all the judges, and they had subsequently done the same in respect of the assessor, using the Constitutional Court's judgment as a pretext. The Government claimed that in their appeal the applicants had not challenged the fact that their case had been decided by an assessor, but they had alleged a lack of impartiality on her part. This had been motivated by the negative outcome of the trial. The applicants had referred to the “assessor” as an institution rather than to the particular assessor only after the delivery of the Constitutional Court's judgment on the sideline of their appeal. Above all, the applicants had been unable to show that the assessor had not been independent.
41. The Government lastly drew the Court's attention to the fact that if all decisions issued by assessors were to be generally challenged by the Court, it would undoubtedly cause legal chaos. Assessors constituted about 30% of the judges adjudicating in District Courts and in 2005 alone about 8,600,000 cases were brought before those courts. Were the Court to find a violation in this and other similar cases, it would affect at least hundreds of thousands of judicial decisions given in the last few years. Such a finding would create a breach of the principle of protection of the citizens' trust in the State and its law. It would further undermine the need to protect the stability of the national legal system, as well as the Convention rights of other participants in those proceedings. Assessors had decided the majority of civil and criminal cases heard in the first instance before District Courts. In most of the cases the effects of the decision made could not be reversed, for example where time spent in detention on remand had been credited towards the sentence, an inheritance had been accepted and disposed of, and so on.
42. Independently of the above arguments, the Government highlighted the negative effect a judgment finding a violation of the Convention in the present case would have. In their view, the Constitutional Court's judgment constituted a pretext for submitting the application to the Court as, prior to its delivery, the independence of assessors had not been called into question. The finding of a violation by the Court would create a chilling effect, discouraging the Constitutional Court from further elevating any constitutional standard. The State should not suffer any negative consequences for elevating the standards of protection of individual rights. The chilling effect would probably affect not only the Polish Constitutional Court but also similar judicial authorities in other European countries.
43. The Government, referring to the Court's case-law, submitted that objections regarding the independence and impartiality of the first-instance court could not be upheld where the case had been examined by the court of second instance fully satisfying, as in the present case, the requirements of Article 6 § 1 of the Convention. They acknowledged that the right to an independent and impartial court guaranteed in the Convention was of a substantive nature. Accordingly, since the assessment was carried out in respect of the result, the legal test was whether a final decision in the proceedings had been rendered by a court satisfying the requirements of independence.
44. In conclusion, the Government submitted that the first-instance court, composed of an assessor, which dealt with the applicants' case had been independent as required by Article 6 § 1 of the Convention.
45. The Court recalls that in determining whether a body can be considered as “independent” – notably of the executive and of the parties to the case – regard must be had, inter alia, to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80; Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997I; Incal v. Turkey, 9 June 1998, § 65, Reports 1998IV; Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005II; and Luka v. Romania, no. 34197/02, § 37, 21 July 2009). Furthermore, the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). What is at stake is the confidence which the courts in a democratic society must inspire in the public (see, amongst many other authorities, Piersack v. Belgium, 1 October 1982, § 30, Series A no. 53, and Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009...). The Court further recalls that the requisite guarantees of independence apply not only to a “tribunal” within the meaning of Article 6 § 1 of the Convention, but also extend to “the judge or other officer authorised by law to exercise judicial power” referred to in Article 5 § 3 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 35, ECHR 2006X).
46. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court's case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers' interaction (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003VI, and Sacilor-Lormines v. France, no. 65411/01, § 59, ECHR 2006XIII). The question is always whether, in a given case, the requirements of the Convention are met and in the present case the Court has to determine whether the assessor B.R.-G. who tried the applicants in the first-instance court had the required “appearance” of independence (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000II).
47. Assessors were appointed by the Minister of Justice provided that they met a number of specific conditions stipulated in the 2001 Act (section 134 § 1). The Minister could confer on an assessor the authority to exercise judicial power in a district court, subject to approval by the board of judges of a regional court and for a period not exceeding four years (section 135 § 1). Under section 134 § 5 of the 2001 Act the Minister could remove an assessor, including those who were vested with judicial powers. However, the Minister had no unfettered discretion as to removal since he had to secure the approval of the board of judges of a regional court.
48. The Constitutional Court considered the status of assessors in its leading judgment of 24 October 2007. It held that section 135 § 1 of the 2001 Act, providing that the Minister of Justice could confer the exercise of judicial powers on assessors, fell short of constitutional requirements because assessors did not enjoy the necessary guarantees of independence, notably vis-à-vis the Minister. The Court notes that in its analysis of the question of the independence of assessors the Constitutional Court referred to the Strasbourg case-law and observed that Article 45 of the Constitution was modelled on Article 6 § 1 of the Convention (see paragraph 21 above).
49. The Court reiterates that appointment of judges by the executive is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Campbell and Fell, cited above, § 79, and Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007). It notes that the principal reason for the Constitutional Court's finding was related to the Minister's power to remove an assessor who exercised judicial powers, and the lack of adequate substantive and procedural safeguards against the discretionary exercise of that power (see paragraph 21 above, point 5.7 of the judgment). The 2001 Act did not specify what factual grounds could serve as the basis for removal of an assessor and provided for the decision on removal to be taken by the Minister and not by a court. The lack of the requisite guarantees prompted the Constitutional Court to note that the removal of an assessor based on the content of his rulings was not excluded.
50. Furthermore, the Constitutional Court found, contrary to what was asserted by the Government, that the requirement to secure the approval of the board of judges was not a sufficient safeguard. The Government's statistics indicating that the Minister of Justice never exercised the power to remove an assessor do not, in the Court's view, invalidate the reasons for the finding of unconstitutionality. In addition, the Constitutional Court was critical of the fact that the 2001 Act did not contain sufficient guarantees as regards the assessors' term of office. The regulation did not specify a minimum period for which an assessor was employed and for which he was vested with judicial powers.
51. The Court reiterates that it is in the first place for the domestic authorities, notably the courts, to interpret and apply the domestic law and to decide on issues of constitutionality (see, among many other authorities, Former King of Greece and Others v. Greece [GC], no. 25701/94, § 82, ECHR 2000XII, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 86, ECHR 2005VI). The Court notes that the Constitutional Court's findings were made in the context of an abstract review of the constitutionality of statutory provisions but, mindful of the principle of subsidiarity, considers that they may be applied to the facts of the present case, having regard to the similarity between the constitutional and the Convention requirements in so far as judicial independence is concerned and the reliance of the Constitutional Court on the relevant jurisprudence of the Court. The Government argued that the Constitutional Court's judgment did not determine that an assessor lacked independence within the meaning of Article 6 § 1 of the Convention. However, the Court observes that in constitutional complaint proceedings the Constitutional Court has no jurisdiction to review the compatibility of legislation with international agreements, including the Convention (see paragraph 26 above). The important consideration for this Court is that the Constitutional Court found that the manner in which Poland had legislated for the status of assessors was deficient since it lacked the guarantees of independence required under Article 45 § 1 of the Constitution, guarantees which are substantively identical to those under Article 6 § 1 of the Convention. It would be justified for the Court to reach a contrary conclusion only if it was satisfied that the national court had misinterpreted or misapplied the Convention provision or the Court's jurisprudence under that provision or reached a conclusion which was manifestly unreasonable (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 174 in fine, ECHR 2009...). The Court observes that in some earlier cases it had due regard to rulings of the Constitutional Court in which the latter declared domestic legislation unconstitutional and/or incompatible with the Convention (see, inter alia, in respect of the Bug river claims, Broniowski v. Poland [GC], no. 31443/96, § 131, ECHR 2004V; rent-control legislation and Article 1 of Protocol No. 1, Hutten-Czapska v. Poland [GC], no. 35014/97, § 208, ECHR 2006VIII; overcrowding of detention facilities and Article 3 of the Convention, Orchowski v. Poland, no. 17885/04, § 123, ECHR 2009... (extracts); and regulation of prisoners' visiting rights and Article 8 of the Convention, Wegera v. Poland, no. 141/07, § 73-74, 19 January 2010).
52. The Court underlines that the Constitutional Court set aside the regulatory framework governing the institution of assessors as laid down in the 2001 Act. It further stresses that the Constitutional Court did not exclude the possibility that assessors or similar officers could exercise judicial powers provided they had the requisite guarantees of independence (see paragraph 24 above, point 6.1 of the judgment). The Constitutional Court, referring to international standards, pointed to the variety of possible solutions for allowing adjudication by persons other than judges. In this connection, the Court notes that its task in the present case is not to rule in abstracto on the compatibility with the Convention of the institution of assessors or other similar officers which exist in certain Member States of the Council of Europe, but to examine the manner in which Poland regulated the status of assessors.
53. Having regard to the foregoing, the Court considers that the assessor B.R.-G. lacked the independence required by Article 6 § 1 of the Convention, the reason being that she could have been removed by the Minister of Justice at any time during her term of office and that there were no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister (see, by contrast, Stieringer v. Germany, no. 28899/95, Commission decision of 25 November 1996, in which the relevant German regulation provided that dismissal of probationary judges was susceptible to judicial review). It is not necessary to consider other aspects of the status of assessors since their removability by the executive is sufficient to vitiate the independence of the Lesko District Court which was composed of the assessor B.R.-G.
54. It remains to be determined whether the failing in question was rectified on appeal by the Regional Court. This court was composed of a professional judge with tenure and was thus “an independent tribunal” as required under Article 6 § 1 of the Convention. The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for defects that took place in the first-instance proceedings (see De Cubber, cited above, § 33, and Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005XIII). In this connection the Court notes that the Constitutional Court considered that review by the second-instance court could not remedy the initial defect as regards the lack of independence. In the present case, the Regional Court did not have the power to quash the judgment on the ground that the District Court had been composed of the assessor since the assessors vested with judicial powers were – in accordance with the 2001 Act – authorised to hear cases in firstinstance courts. In any event, the applicants raised the issue of the lack of independence of the assessor in their appeal. However, the Regional Court dismissed their objections as unfounded. The Court observes that for the purposes of the Constitutional Court's judgment, any appeal based on the unconstitutional status of assessors was bound to fail as the impugned provisions of the 2001 Act remained legally binding for a period of eighteen months following the promulgation of the judgment. In those circumstances the Court finds that the Regional Court did not remedy the defect in question (see, De Cubber, cited above, § 33, and De Haan v. the Netherlands, 26 August 1997, § 54, Reports of Judgments and Decisions 1997IV).
55. In the light of the foregoing, the Court finds that the Lesko District Court was not independent within the meaning of Article 6 § 1 of the Convention. There has accordingly been a violation of this provision.
56. The Court notes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court (see paragraph 27 above). However, in light of the reasons underlying the finding of a violation in the present case and having regard to the principle of legal certainty as expounded in the Constitutional Court's judgment and its own case-law (see paragraphs 64-65 below), the Court considers that in the present case there are no grounds which would require it to direct the reopening of the applicants' case (see, mutatis mutandis, Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). The Court would not exclude that it might take a different approach in a case where, for example, the circumstances of a particular case give rise to legitimate grounds for believing that the Minister had or could reasonably be taken to have an interest in the proceedings.
57. The applicants also complained under Article 6 § 3 (c) of the Convention about the District Court's refusal to admit a representative of a civil society organisation to the proceedings. Relying on Article 14 of the Convention, they alleged that their conviction amounted to discrimination on the ground of their social origin.
58. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
59. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
60. The applicants claimed 4,000 euros (EUR) each in respect of nonpecuniary damage. They submitted, inter alia, that their case had been examined by an assessor and not by a judge.
61. The Government argued that the claim was grossly excessive.
62. The Court considers that in the particular circumstances of the instant case the finding of a violation constitutes in itself sufficient just satisfaction for any nonpecuniary damage which may have been sustained by the applicants. It refers in this connection to its conclusions set out in paragraph 56 above regarding reopening.
63. The Court recalls that in the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, the Court has indicated in certain judgments that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requested (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court adopted a similar stance in cases against other Contracting Parties where the finding of a breach of Article 6 was related to the lack of independence or impartiality of the domestic courts (see, San Leonard Band Club v. Malta, no. 77562/01, § 70, ECHR 2004IX, and Gurov v. Moldova, no. 36455/02, § 43, 11 July 2006). The Grand Chamber has endorsed the general approach adopted in those cases (see, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005IV) and has extended it to cases where a conviction followed proceedings that entailed breaches of the requirements of Article 6 of the Convention (see, Sejdovic v. Italy [GC], no. 56581/00, § 126, ECHR 2006II).
64. However, it is only exceptionally that a violation, by its very nature, does not leave any real choice as to the measures required to remedy it (see, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004II). In the present case, the Court notes that the judgment of the Constitutional Court identified a structural dysfunction and called for a legislative response. Such response was given by the Parliament which removed the structural dysfunction as of 2009 (see paragraph 25 above). The Court is of the opinion that in this particular context the finding of a violation need not necessarily entail the respondent State's obligation to reopen all proceedings in which assessors participated at the first-instance level. In this regard, the Court notes that the Constitutional Court devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings. In particular, it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned. Further, it emphasised that the finding of unconstitutionality concerned institutional provisions, that is, provisions regulating the composition of the bodies which gave final rulings. The Constitutional Court considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it (see paragraph 24 above in fine). Consequently, the Constitutional Court held in the operative part of the judgment that its ruling could not serve as a basis for the reopening of cases decided in the past by assessors (or with their participation). This ruling was even extended to two claimants who successfully challenged the provisions regulating the status of assessors before the Constitutional Court, thus depriving them of the so-called “right of privilege” (przywilej korzyści).
65. In this context, the Court recalls its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31). Moreover, it has also been accepted, in view of the principle of legal certainty, that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period (see Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000). Referring to the Constitutional Court's decision not to allow the reopening of the cases decided in the past by assessors on the ground that it would undermine the principle of legal certainty, the Court does not consider this interpretation to have been arbitrary or manifestly unreasonable. Indeed, the Court in its jurisprudence has underlined the significance of the principle of legal certainty in the context of final judicial rulings (see, mutatis mutandis, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999VII).
66. The Court observes that the domestic law provides for a possibility of reopening of criminal proceedings when such a need results from a judgment of the Court (see paragraph 27 above). However, having regard to the foregoing, the Court reiterates its conclusion that in the instant case the reopening of the applicants' case is not called for (see paragraph 56 above).
67. The Court would further observe that in the view of the Constitutional Court the constitutional deficiency identified in its judgment required the intervention of the legislator to bring the status of assessors into line with the Constitution, but there was no automatic correlation between that deficiency and the validity of each and every ruling given previously by assessors in individual cases. To that end the Constitutional Court ruled that the unconstitutional provision should be repealed eighteen months after the promulgation of its judgment. It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities – which decided to abolish the office of assessor altogether – within the time-frame allotted by the Constitutional Court (see paragraph 25 above). Having regard to the above, it may be noted that the authorities of the respondent State took the requisite remedial measures in order to address and remedy the deficiency underlying the present case.
68. The applicants also claimed EUR 2,000 in legal costs. Their representative claimed to have worked 10 hours on the case with an hourly rate of EUR 200. No receipts or invoices were provided in support of the sum claimed.
69. The Government submitted that any award should be limited to those costs which were actually and necessarily incurred and were reasonable.
70. The Court notes that the applicant received EUR 850 by way of legal aid from the Council of Europe. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the absence of any evidence to support the applicants' claim as to costs and expenses, no award is made under this head. The Court observes that in light of the reasons underlying the finding of a violation in the present case and the fact that the authorities took adequate measures to address the deficiency at issue, the Court considers that there is no justification for awarding legal costs under Article 41.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89577
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MALAI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1963 and lives in Chişinău. On 28 November 2004 he was charged with unlawful fishing and misappropriation of seventy-three kilograms of fish.
6. On 21 December 2004 the Orhei District Court, in a closed sitting, heard an application to remand the applicant in custody, which it granted. The reasons for remanding him in custody relied upon by the court were that he had changed his address and that he might re-offend. Neither the applicant nor his lawyer was present at the hearing and they found out about the detention order only one year later, when the applicant was arrested.
7. On 22 December 2005 at approximately 6 p.m. the applicant was arrested at his home in Chişinău and taken to the Orhei District Court where an investigating judge saw him and confirmed the detention warrant of 21 December 2004. He was then taken to the Orhei detention centre.
8. According to the applicant, he was kept in a small cell called the “aquarium” until approximately 10 p.m. the next day, when he was moved to cell no. 9. The “aquarium” was approximately two metres long and 0.80 metres wide and did not have a bed, chair, toilet or sink. It was intended for periods of detention not longer than three hours. Cell no. 9 was located below floor level and did not have windows. There was no ventilation. The electric light was always on, although it was so weak that it was difficult to distinguish the faces of the co-detainees. The cell was approximately seven metres long and three metres wide and there were six detainees in it. The cell was not equipped with a toilet but instead had a big bucket in a corner which was not separated from the rest of the cell. There was no sink and the detainees had to keep water in plastic bottles which they were allowed to refill once in a while outside the cell. There were no beds, but only a brick shelf a little higher than the floor on which four people could sleep. The cell was not provided with any bedding and the applicant alleged that he was only able to sleep for one hour per day. The cell was infested with insects, with the result that the applicant was covered with painful bites, some of which later became wounds. The applicant sent the Court photographs showing the bites on his body. The food was insufficient and of very poor quality. The detainees were fed only once a day from dirty plates and the applicant was permanently hungry. His relatives were not allowed to bring him food because he would not confess to the charges against him. The applicant was unable to have any contact with his relatives and the outside world. He did not have any paper, pen or envelopes. The room was not provided with a radio or television and due to the lack of natural light the applicant never knew what time of day it was.
9. On 4 January 2006 the applicant’s wife hired a lawyer and learned about the detention warrant of 21 December 2004. On 5 January 2006 the applicant’s lawyer challenged the detention order before the Chişinău Court of Appeal. He complained, inter alia, under Article 3 of the Convention, of the inhuman and degrading conditions of the applicant’s detention. After giving a detailed description of the conditions in which the applicant was being detained, he asked the court to find that the applicant’s rights guaranteed by Article 3 of the Convention had been breached and to award him compensation.
10. On 13 January 2006 the applicant’s lawyer repeated the habeas corpus request and the complaint under Article 3 of the Convention before the Chişinău Court of Appeal. The above complaints have never been examined by the Chişinău Court of Appeal.
11. In the meantime the applicant complained on several occasions to the prison authorities and to the sanitation department about the poor conditions of detention. However, his complaints were unsuccessful.
12. On 12 January 2006 the applicant’s lawyer complained to the Orhei district prosecutor about the applicant’s poor conditions of detention. As a result of that complaint the prison authorities moved the applicant to another cell without disinfecting it and reported to the prosecutor that the problem had been remedied. According to the applicant, the only shower in the prison was fixed then.
13. On 20 January 2006 the detention warrant expired and the applicant was released.
14. The criminal proceedings against the applicant ended with the judgment of the Chişinău Court of Appeal of 5 October 2006, by which the applicant was ordered to pay a fine of 3,000 Moldovan lei (the equivalent of 178 euros (EUR)).
15. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, unofficial translation) read as follows:
“B. Establishments visited
... - EDP of Chişinău Police Inspectorate (Follow-up visit)
... b. remand centres (EDPs)
53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity.
54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. ...
55. One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty.
56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit.
In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m².
57. The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ...
...Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet.
59. The CPT also recommends that steps be taken to:
- reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level;
- supply persons in custody with clean mattresses and clean blankets;
- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter.
In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.”
“4. Conditions of detention.
a. Institutions of the Ministry of Internal Affairs
41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs.
The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow lifting the concern of the Committee. In fact, most recommendations made have not been implemented.
42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to pass the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives...
45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereals at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions.
47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.”
“II. Institutions of the Ministry of Internal Affairs
In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation.”
16. According to Article 313 of the Code of Criminal Procedure, a party to criminal proceedings can contest the actions or inactions of the criminal investigator before the investigating judge.
VIOLATED_ARTICLES: 13
3
5


ITEMID: 001-140594
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KOUFAKI AND ADEDY v. GREECE [Extracts]
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre
TEXT: 1. The first applicant, Ms Ioanna Koufaki, is a Greek national who was born in 1967 and lives in Athens. She was represented before the Court by Mr I. Adamopoulos, Mr V. Chirdaris and Mr A. Argyros, lawyers practising in Athens. The second applicant is the Confederation of Public-Sector Trade Unions (ADEDY). It was represented before the Court by Ms M.M. Tsipra and Mr M. Miliarakis, lawyers practising in Athens.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first applicant is a member of the Athens Bar and since 2 March 2001 has been on the scientific staff of the Greek Ombudsman’s Office. On that date she commenced employment under a private-law contract for an initial five-year period and subsequently on an indefinite basis. Her pay was governed by Laws nos. 2477/1997 and 3205/2003 on the salary rules applicable to public servants and public-sector employees. On 10 April 2012 she was seconded to the central department of the Technical Chamber of Greece (Techniko Epimelitirio Ellados), a corporate body governed by public law.
4. The second applicant is a trade union organisation representing several unions of public-sector workers employed on a permanent basis or under private law by the State, corporations governed by public law and the local and regional authorities. Its main aim is to defend the economic, social and professional interests of public-sector workers, including with regard to pension issues.
5. On 15 March 2010 Law no. 3833/2010, entitled “Protection of the national economy – Urgent measures to respond to the financial crisis” was published in the Official Gazette ... The Law reduced the pay of persons working in the public sector – irrespective of their employment status – by a percentage ranging from 12% to 30%, notwithstanding any other specific or general legislation, collective agreement, arbitration ruling or individual agreement or contract (section 1). It established a new pay ceiling for all persons working in the public sector (section 2) and set out the government’s 2010 revenue policy. The above-mentioned reductions were to apply retrospectively from 1 January and 1 March 2010.
6. On 3 May 2010 the Minister of Finance and the Governor of the Bank of Greece, representing the Hellenic Republic, and the European Union’s Commissioner for Economic and Monetary Affairs, signed a memorandum of understanding. This document set out in detail the measures comprising a three-year programme drawn up by the Greek authorities after consultation with the European Commission, the European Central Bank and the International Monetary Fund. It stated, inter alia, that “[i]ncomes and social security policies need to buttress the fiscal adjustment effort and restoration of competitiveness. Realigning incomes to sustainable levels is necessary to assist fiscal correction, support a reduction in inflation well below the euro area average, and improve price and cost competitiveness on a lasting basis”. Further on, the document stated as follows:
“The government is committed to fairness in the distribution of the adjustment burden. Our resolve to protect the most vulnerable in society from the effects of the economic downturn was taken into account in the design of the adjustment policies. In consolidating government finances, larger contributions will be raised from those who have traditionally not carried their fair share in the tax burden. With regard to the reduction in public wages and in pensions, the minimum earners have been protected: [as regards] pension reductions: The elimination of the 13th and 14th pensions is compensated, for those receiving less than €2500 a month, by introducing a new flat bonus of €800 a year. The benefit reduction is weighted toward the higher pension earners. Wage bill reductions. The 13th and the 14th wage payments will be eliminated for all employees. To protect the lower income segment, here too, for those receiving less than €3000 a month, a flat bonus payment of €1000 a year per employee will be introduced, which will be financed through cutting salary allowances for higher income segments.”
7. On 6 May 2010 Law no. 3845/2010 on measures to implement the euro area/IMF financial stabilisation mechanism for Greece was published, essentially ratifying the memorandum of understanding with regard to relations between Greece and the euro area Member States. Section 3 of the Law reduced public-sector pay by a further 8%. Section 4 increased the rate of VAT and the special consumption taxes.
8. On 8 and 10 May 2010 the Finance Minister signed two agreements: the “Loan Facility Agreement between certain Euro Area Member States and KfW (as Lenders) and the Hellenic Republic (as Borrowers) and the Bank of Greece (as the Borrower’s Agent)”, and the “International Monetary Fund Stand-by Arrangement”.
9. Under Laws nos. 3833/2010 and 3845/2010 the first applicant, who had been receiving a gross monthly salary of 3,339 euros (EUR) (leaving her with a net salary of EUR 2,435.83) had her special allowance reduced by 20% from 1 January 2010 and her “Easter” allowance cut by 30%. The latter was subsequently abolished altogether, together with the “Christmas” allowance and the holiday allowance. More specifically, the first applicant’s gross salary had been made up of a basic salary of EUR 2,311, a family allowance of EUR 53, a graduate allowance of EUR 45 and a special allowance of EUR 752.93. The last of these allowances had been set at EUR 930 on 1 January 2008 but was reduced by 12% on 1 January 2010 and by a further 8% on 1 June 2010. With the entry into force of Law no. 3845/2010, the applicant’s Christmas, Easter and holiday allowances were stopped since her total monthly pay exceeded EUR 3,000... .
10. Law no. 3847/2010 reduced the amount of these allowances for public-sector retirees and abolished them altogether for those under the age of sixty.
11. On 26 July 2010 the applicants and other individuals applied to the Supreme Administrative Court: the first applicant applied for judicial review of her pay statement, while the second applicant sought judicial review of the adverse impact which the above-mentioned laws would have on its members’ financial situation. The persons lodging the applications alleged that the laws in question were in breach of the Constitution and of various international instruments including Article 1 of Protocol No. 1.
12. On 20 February 2012 the Supreme Administrative Court, sitting as a full court, rejected the applications for judicial review (judgment no. 668/2012, finalised on 2 March 2012). ...
...
13. On 28 February 2012 an administrative decision adopted under Law no. 4024/2011 (laying down rules on pensions, salary scales, appraisal, the creation of a reserve of posts and other measures to implement the public finances medium-term strategic plan (2012-15)) cut the applicant’s salary by a further EUR 700, bringing her net monthly salary to EUR 1,885.79.
...


ITEMID: 001-83480
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MCCARTNEY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 2 (lack of independence of the investigating body during the initial stages of the investigation);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 6. The applicant was born in 1955 and lives in Derry. He was the brother of Colm McCartney.
7. On the night of 24 August 1975, Colm McCartney, the applicant's brother and Sean Farmer were driving home from the All-Ireland Gaelic football semi-finals in Croke Park, Dublin. Both men were found shot dead on the Cortamlet Road, Altnamachin, in South Armagh. Colm McCartney had been shot four times, Sean Farmer six times. According to the later inquest, the time of death was about 11.35 pm. The car was found burnt out half a mile from the murder scene.
8. Prior to their deaths, at about 10.45 pm a police patrol in an unmarked car had been stopped at what was believed to be a bogus checkpoint (“VCP”) manned by armed men in military style uniforms on the A25 several hundred yards from where the bodies were found. A short conversation took place between the three RUC officers and a person holding a torch dressed in full military combat uniform. The officers noticed a second person also dressed in military uniform lying in a ditch apparently giving cover with a rifle. The scene at the checkpoint roused suspicions, inter alia, due to the lack of other vehicles, the accent of the person who stopped them and the length of hair of the man in the ditch. After being allowed through the checkpoint, the officers requested clarification by radio as to the presence of any army checkpoints in the vicinity. They were informed that none were operating. The police patrol drove to a police station, where, requesting army support, they decided to investigate further.
9. At about 11.30 pm a local resident who had been walking his dog noticed a vehicle stopped on Cortamlet Road. He saw the interior light of the car come on and a door on the passenger side open. Three or four gunshots were heard. The witness saw a light from a lamp lying on the road. He then heard the sound of someone running along the road and a man's voice shouting "Stop, stop," several times. This was followed by a flash and a bang. He heard a wild scream and everything went quiet. Fearing for his safety, the witness hid behind a tree. He heard further shooting, five to ten shots. After some minutes, he heard a car engine being started and the car, brownish with a black vinyl roof, drove past him without its lights on. He went to a neighbour who returned with him to the scene where they found two bodies. They contacted the police.
10. At first light, a Detective Constable visited the scene and inspected the bodies which were some 50 metres apart. He arranged for the scene to be examined, photographed and mapped. The bodies were identified.
11. The police visited the McCartney and Farmer families that day. On the same day, Colm McCartney's car was found gutted by fire half a mile from the scene. It was subsequently established by ballistics examinations that three firearms had been used and that the weapons had been used in other incidents.
12. The police believed that the murders had been carried out by an extreme loyalist paramilitary organisation, reacting to a murder of a local Protestant. They had little doubt that the men who stopped the police patrol had been directly connected with the murders if not in fact the actual murderers.
13. A report was submitted by the police to the Director of Public Prosecutions on 17 February 1976.
14. An inquest occurred on 23 July 1976. It appears that the local resident who witnessed the shooting did not appear at the inquest, nor was his statement made available due to the decision of a police officer to protect his identity.
15. The applicant claimed that there were concerns about the thoroughness of the original investigation. He stated that the occupants of the two cars who had come upon the two bodies were not asked to give a statement to the police or at the inquest. Because of the method used (a VCP manned by persons in uniform), there were allegations of security force collusion made at the time of the shooting.
16. The investigation did not close and became active again in 1978, when a Catholic priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to use him as a hostage vis-à-vis the IRA. The police arrested a reserve police constable, William McCaughey, who, in the course of questioning, revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incidents. McCaughey also named a police officer as being involved in a range of incidents. He specifically referred to a well-known paramilitary as being involved in the Altnamachin murders. While this paramilitary had been arrested and interviewed by the police on a number of occasions, the Government stated that there was no record that he had been specifically interviewed about the Altnamachin murders. The police officer was arrested and questioned, inter alia, about his role in the murders of McCartney and Farmer. He made no admissions. He was charged with other serious offences, resigned from the police and was subsequently convicted and sentenced.
17. McCaughey's revelations gave rise to investigations in eleven specific cases, some of which were linked in terms of the identities of those involved, the modus operandi or by virtue of the ballistics examinations of weapons used. Nine suspects were arrested in total, including five police officers and all were eventually charged with offences.
18. One of those implicated was a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980 and sentenced to life imprisonment. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder.
19. On 1 February 1993, John Weir was released from prison on licence. In January 1999, he made a statement to a journalist alleging RUC and Ulster Defence Regiment (“UDR”) collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (“the Centre”).
20. John Weir's statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents. He alleged inter alia that RUC Reserve Constable Laurence McClure had told him that McClure and Robert McConnell, a member of the UDR, along with members of the Ulster Volunteer Force (“UVF”), a proscribed loyalist paramilitary organisation, had been involved in the murder of Colm McCartney and Sean Farmer.
21. The statement also made links between the attack on Donnelly's Bar and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of John and Brian Reavey and wounding of Anthony Reavey in their home on 4 January 1976 (see application no. 34640/04); the attack on Donnelly's Bar in which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were killed (see application no. 32457/04); the murder of Joseph, Barry and Declan O'Dowd and wounding of Barney O'Dowd (see application no. 34622/04); and the attack on the Rock Bar in which Michael McGrath was seriously injured (see application no. 34651/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland.
22. On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly's Bar. A BBC Spotlight programme produced a similar documentary.
23. These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir's allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir's account who could be traced. No charges were preferred. The interviews followed the format of Weir's allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged. Amongst those interviewed by the police in the course of the preliminary investigation of Weir's allegations, was one person questioned about the Altnamachin murders. He denied any involvement and made no admissions.
24. Meetings were held regularly with RUC counterparts in the Republic of Ireland. The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see the description of the inquiry in the Brecknell case referred to above). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir's allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir's whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Inquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result.
25. The Serious Crime Review Team (“SCRT”) was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities. A preliminary case assessment was carried out by a detective chief inspector, who audited all known information and documentation. It was noted that the dossier provided by the Centre included statements from civilian witnesses who had allegedly come across the bodies following the murders. The SCRT attempted without success to obtain access to these materials. In light of the preliminary assessment, the case was referred to the Historical Enquiry Team (“HET”). On 28 April 2006, a senior investigating officer reported on the further review; a number of potential lines of inquiry were identified and recommendations made, including that the HET should extensively interview Weir. This recommendation has been approved. The HET director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which has progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources, together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. The Government have provided recent information that Weir finally agreed to meet with the HET in Dublin; he refused, however, to make a written statement or to give evidence in court.
26. There has been contact between the police and family members, their solicitors or the Centre. In particular, there were meetings on 21 January 2000 with Chief Superintendent McCann; on 19 December 2001 with Detective Inspector Aiken and in November 2002 with Detective Inspector Williamson and in June and August 2004 with the Chief Constable; members of HET met with families or their representatives on 30 March and 25 May 2006, and there has also been extensive correspondence with the families or their representatives.
See Brecknell, cited above (§§ 39-41).
See Brecknell, cited above (§§ 42-49).
VIOLATED_ARTICLES: 2


ITEMID: 001-93879
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SOLONSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1938 and lives in the town of Gorlovka.
5. In July 1995 the applicant instituted proceedings in the Tsentralno-gorodskoy District Court of Gorlovka (“the court”) against his former employer, a State company “Kommunalnik” (“the company”), claiming compensation for damages resulting from his work-related disease.
6. On 29 December 1998 the court awarded the applicant UAH 44,273.27. By the same judgment he was entitled to receive an allowance of UAH 372.24, to be paid monthly. On 5 February 1999 the Gorlovka Bailiffs’ Service (“the Bailiffs’ Service”) initiated enforcement proceedings.
7. On 10 October 2000 the judgment was enforced in part; the applicant received UAH 127.12.
8. In March 2002 the applicant instituted proceedings in the court against the company and the State Insurance Fund for Work Accidents and Work-Related Diseases (“the Fund”) seeking re-calculation of the monthly allowance paid to him for his work-related disability and claiming payment of losses sustained on account of the erroneous calculation.
9. On 11 April 2002 the court allowed the applicant’s claims and ordered the company to pay the applicant UAH 30,645.53. By the same judgment he was entitled to receive a monthly allowance of UAH 737.04, to be paid by the Fund as from 1 April 2001. On 30 May 2002 the Bailiffs’ Service initiated enforcement proceedings.
10. In November 2005 the applicant instituted court proceedings against the Bailiffs’ Service seeking compensation for damages caused to him by the non-enforcement of the judgments. On 29 December 2005 the court found against the applicant. On 27 April 2006 the Donetsk Regional Court of Appeal upheld this judgment. The applicant did not appeal in cassation.
11. On 13 March 2008 the Bailiffs’ Service returned the enforcement writs in respect of the judgments of 29 December 1998 and 11 April 2002 to the applicant.
12. The company failed to enforce the judgments of 29 December 1998 and 11 April 2002 in full. The Fund has no judgment debts vis-à-vis the applicant.
13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1