ITEMID: 001-76950
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GRABCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1949 and resides in the village of Liski, Volyn region, Ukraine.
6. In 1993-1994 the applicant worked as a director of a café in the town of Volodymyr-Volynskyy, Volyn region, Ukraine.
7. On 14 February 1995 criminal proceedings were instituted against the applicant for plundering State property (Article 84 § 1 of the Criminal Code).
8. On 6 June 1995 the applicant was charged with plundering State property in particularly large quantities (Article 86 § 1 of the Criminal Code). The same day she was arrested.
9. On 9 June 1995 the applicant was released on bail subject to an undertaking not to abscond (підписка про невиїзд).
10. On 26 December 1997 the criminal case was terminated for want of proof of a crime.
11. On 13 July 1999 the Prosecutor of Volodymyr-Volynskyy District quashed the decision of 26 December 1997 and sent the case for further investigation.
12. By a decision of 5 October 1999, the criminal proceedings against the applicant were terminated partly for want of proof of a crime and partly on the ground that the further prosecution in her case was time-barred. The investigator did not find it proven that the applicant had been involved in plundering, but considered that her actions could be classified as negligence, which was an offence under Article 167 of the Criminal Code in the wording which was in force at the relevant time (see paragraph 27). However, given that the statutory time-limit for prosecuting the applicant for negligence had passed, the criminal case in respect of that charge had to be discontinued as time-barred.
13. On 22 October 1999 the applicant complained to the Prosecutor of Volodymyr-Volynskyy District about the decision of 5 October 1999. This complaint was rejected. The applicant appealed to the court.
14. On 22 December 1999 the Volodymyr-Volynskyy District Court allowed the applicant’s appeal and quashed the decision of 5 October 1999. The court noted that a criminal case could be terminated on non-exonerative grounds, like a time-bar on further prosecution, only with the consent of the prosecuted person. As the applicant had never agreed to the termination of the case on this ground the investigation should be continued.
15. On 29 February 2000, the investigator terminated the criminal proceedings against the applicant on the same grounds as previously.
16. On 3 November 2000, the same court, upon the applicant’s appeal, quashed this decision and remitted the case for a fresh consideration.
17. On 4 December 2000 the criminal case against the applicant was terminated for want of proof of a crime. At the same time, in his decree terminating the criminal proceedings against the applicant, the investigator mentioned that the courts had quashed the previous decisions on termination of the criminal case on non-exonerative grounds, because the applicant had not agreed. In the investigator’s opinion the applicant’s consent was not necessary, because even though her conduct could be qualified as a crime of negligence, no criminal proceedings could be instituted, as prosecution was time-barred and she could not be considered as an accused in this respect. The investigator, therefore, decided that:
“In the actions of Ms Mariya Mykhaylivna Grabchuk there are corpus delicti (є склад злочину), provided for in Article 167 of the CCU [the Criminal Code of Ukraine], that is negligence, of which she herself confessed to be guilty. Nevertheless, taking into account that from the moment when she had committed that crime (час скоєння нею даного злочину) the time-limits had expired... the institution of a criminal case under Article 167 of the CCU should be rejected for being time-barred...”
18. The applicant challenged the decision of 4 December 2000, requesting that her guilt be proved in judicial proceedings in accordance with Article 62 of the Constitution. She further submitted that closing the criminal case against her on non-exonerative grounds deprived her of a possibility to receive compensation for the unlawful actions taken against her.
19. On 26 April 2001 the Volodymyr-Volynskyy Local Court rejected the applicant’s complaint about the decision of 4 December 2000. In its decision the court stated in particular:
“As it appears from the materials of the criminal case against M.M. Grabchuk and the decision of the head of the investigating unit of the Volodymyr-Volynsky Department of Interior of 4 December 2000, the actions of M.M. Grabchuk disclose signs of the corpus delicti (ознаки складу злочину) provided for in Article 167 of the CCU [the Criminal Code of Ukraine] and she had acknowledged her guilt of having committed this offence.
According to Article 167 of the CCU, in the wording of 1993-1994, ... this crime was punishable by imprisonment for a period of up to two years.
Under Article 48 § I (2) of the CCU, a person cannot be charged with an offence if three years have elapsed from the date when a criminal offence punishable under the law by imprisonment for a period of up to two years was committed.
Under Article 6 § I (3) [of the Code of Criminal Procedure] no criminal proceedings could be initiated and any proceedings which had been started should be terminated as time-barred.
Therefore, in the above circumstances, no criminal case charging M.M. Grabchuk with an offence under Article 167 of the CCU could be instituted because prosecution against her was time-barred.”
This decision was not subject to appeal.
20. On an unspecified date the applicant lodged a claim with the Volodymyr-Volynskyy Town Court, seeking compensation for damage caused by the allegedly unlawful criminal proceedings against her.
21. On 30 June 1999 the court found in part for the applicant and awarded her UAH 70,000 in compensation. The decision was not appealed against and became final.
22. By letter of 5 August 1999 the Volyn Regional Department of the State Treasury, responsible for the enforcement of the decision, requested the Regional Prosecutor to lodge a supervisory review appeal on the ground that the State Budget for 1999 did not foresee expenditure of this kind. Following this request, the Prosecutor sought supervisory review, arguing that the actions of the police were lawful and that the amount awarded to the applicant was too high, in particular given the difficult economic situation in the country.
23. On 20 September 1999 upon a supervisory review appeal of the prosecutor, the Presidium of the Volyn Regional Court quashed the decision of the Volodymyr-Volynskyy Town Court of 30 June 1999 and remitted the case for a fresh consideration.
24. On 6 July 2001 the Volodymyr-Volynskyy Local Court rejected the applicant’s claim for compensation because the criminal proceedings against her had been terminated on a non-exonerative ground, namely that prosecution was time-barred. The court noted that it appeared from the decisions of 5 October 1999, 29 February and 4 December 2000 terminating the criminal case against the applicant, that her conduct disclosed signs of the corpus delicti provided for in Article 167 of the CCU (negligence), namely the inappropriate performance of professional duties by an official due to a negligent attitude, which had caused significant loss to the State’s interests. The record of her interrogation of 6 June 1995 showed that the applicant acknowledged her guilt of negligence. The court further stated that, given that the criminal case was terminated on a non-exonerative ground, the applicant lost the right to compensation under the Law “on the procedure for compensation of damage caused to the citizen by the unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts”.
25. The applicant did not appeal against that decision.
26. Article 62 of the Constitution reads as follows:
“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty.
No one is obliged to prove his or her innocence of committing a crime.
An accusation shall not be based on illegally obtained evidence as well as on assumptions. All doubts in regard to the proof of guilt of a person are interpreted in his or her favour.
In the event that a court verdict is revoked as unjust, the State compensates the material and moral damages inflicted by the groundless conviction.”
27. The relevant provisions of the Code read as follows:
Article 48.
The statute of time-bar for instituting criminal proceedings
“1. A person cannot be charged with an offence, if the following periods have elapsed from the date of the criminal offence:
... 2. three years from the date of offence for committing a crime punishable under the law by imprisonment for the period of up to two years;...”
Article 84.
Plundering the State or collective property through misappropriation, embezzlement or malversation
“1. Misappropriation or embezzlement the State or collective property by a person to whom it was entrusted shall be punishable by imprisonment for a term of two to four years, or a fine in the amount of ten to fifteen non-taxable incomes, with or without deprivation of the right to occupy certain posts or to practice certain activities for the term of three years...
3. Any such actions as provided for by paragraph 1 or 2 of this Article, if repeated or committed by a group of person upon their prior conspiracy shall be punishable by imprisonment for a term of five to eight years with or without a confiscation of property, with deprivation of the right to occupy certain posts or to practice certain activities for the term of three years...”
Article 86-1.
Plundering State or collective property in particular large quantities
“Plundering State or collective property, performed in particularly large quantities, regardless of the manner of plundering (Articles 81-84, and 86) shall be punishable by imprisonment for a term of ten to fifteen years with the forfeiture of property.”
Article 167 of the Code prior to 11 July 1995 provided for a sanction of imprisonment of up to two years for negligence, that was “the failure to perform or improper performance, by an official, of his or her official duties due to careless or inaccurate attitude, which caused significant damage to the state or public interests or to the legally protected rights and interests of individual physical or legal persons”.
28. At the material time paragraph 3 of part I of Article 6 of the Code provided that criminal proceedings could not be initiated and started proceedings should be terminated if further prosecution was time-barred. This provision was repealed on 12 July 2001. At the same time the right to close the case as time-barred was given to the courts.
29. Article 99 of the Code laid down the conditions for refusing to institute criminal proceedings against a person and Article 214 the conditions for terminating the criminal proceedings.
30. The termination of criminal proceedings on the ground of paragraph 3 of part I of Article 6 of the Code required the applicant’s consent.
31. The relevant provisions of the Law read as follows:
Article 2
“The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:
acquittal by a court;
termination of a criminal case on grounds of absence of proof of commission of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime;
refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;
termination of proceedings for an administrative offence.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-114259
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ZDRAVKO STANEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Free legal assistance;Insufficient means;Required by interests of justice);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Pavlina Panova;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1951 and lives in Kazanluk.
6. The applicant was representing his father in a tort action against the local forestry office. At a hearing held in December 2001 he objected to the decision of the judge hearing the case, who was the President of the Kazanluk District Court, to order a graphological examination of a photocopied document. The judge overruled his objection and the applicant appealed.
7. On 7 December 2001, allegedly in order to illustrate the absurdness of the judge’s ruling, the applicant filed with the court photocopies of two declarations, asking that they be attached to his appeal. The first, purportedly emanating from the judge, said that she had forced the applicant to draw it up and that, to compensate him for the frustration and damage caused, she undertook to pay him 5,000 United States dollars (USD). The second, purportedly emanating from the director and an official of the forestry office, said that they owed the applicant USD 5,000. On 18 December 2001 the applicant filed with the court a further document purportedly emanating from the forestry office’s counsel which stated that she had forced the judge to carry out certain acts in relation to the case and that she owed the applicant USD 10,000.
8. All three documents, presented in photocopy, bore the purported signatures of the individuals concerned.
9. The judge referred the matter to the prosecution authorities, which opened an investigation against the applicant on charges of forgery. The judge, the forestry office’s officials and counsel also brought civil-party claims against him.
10. All judges of the Kazanluk District Court withdrew from the case and it was transferred to the Stara Zagora District Court. On 23 September 2002 that court referred the case back to the prosecution authorities for the rectification of procedural errors. On 7 May 2003 the prosecuting authorities indicted the applicant, the charge being reduced to using forged documents contrary to Article 316 of the Criminal Code (see Relevant domestic law below).
11. Following a query by the President of the Kazanluk District Court, on 5 June 2003 the Supreme Court of Cassation ordered that the case be transferred to the Nova Zagora District Court, which was in another judicial region, because that would obviate the need for judges to withdraw from the case even at the appellate level.
12. On 1 July 2003 the applicant objected to the indictment. He argued, inter alia, that he had filed the copies of the documents in order to illustrate the impossibility of subjecting photocopies to graphological testing.
13. The trial took place on two dates over the summer of 2003.
14. In a judgment of 30 September 2003 the Nova Zagora District Court found the applicant guilty. Instead of imposing a penal sentence, it replaced his criminal liability with an administrative fine of 500 Bulgarian levs (BGN). It further ordered him to pay the civil parties non-pecuniary damages in the following amounts: BGN 10,000 to the judge (the full amount claimed), BGN 5,000 to the counsel, BGN 1,200 to the director of the forestry office, and BGN 700 to the official of that office.
15. In reaching its decision, the District Court found that the applicant had knowingly used false documents with a view to improving his procedural position in the case against the forestry office. Since there was no proof that he had made the documents, he could not be held liable for that. In using them, however, he had understood the unlawful character of his actions and had wished for negative consequences to occur in order to win the civil case. His act was particularly serious, because he had undermined the integrity of the judicial process. Moreover, further aggravating factors included the high amounts mentioned in the documents and the fact that they had been linked with the professional capacities of the individuals mentioned in them.
16. In assessing the quantum of damages, the court noted that the applicant was unemployed and did not own any property, which militated in favour of a minimal fine. However, concerning the judge’s claim for damages, the court found that the applicant’s act had injured her reputation and lowered her professional standing. The declaration purportedly emanating from her had become known to all judges and staff members of the court in which she worked, as well as to those members of the court which had examined the appeal against her ruling. It had also become known to the investigators and prosecutors who had dealt with the criminal case against the applicant. The judge had been serving for seventeen years, eleven of which as a president of the court; for that reason the allegation that she acted unlawfully when hearing cases had been particularly injurious. The applicant’s act had also impaired society’s trust in the judicial system, at a time when it was being subjected to many criticisms.
17. The applicant appealed on the ground that there was insufficient evidence to support the court’s conclusions. He asked the court to order the prosecution to produce the originals of the impugned documents, with a view to their graphological examination, and sought leave to re-question the claimants and the experts and to call witnesses and adduce further evidence. Finally, he requested that counsel be appointed for him.
18. In a decision of 11 November 2003 the Sliven Regional Court held that there was no need for an expert examination of the signatures on the documents, as the applicant was not charged with forging them but merely with using them. In any case, it was impossible to enjoin the prosecution to produce the originals, as this could obviously not be done without the assistance of the person who had used the photocopies. No requestioning was necessary, because the applicant had been given the opportunity to ask questions at the trial, but had failed to do so. Finally, it was impossible to assess the need for further witnesses, as the applicant had not indicated their identity.
19. The court also refused to appoint counsel for the applicant. It noted that he could not afford one, but held that the interests of justice did not require that he be provided with free legal assistance, as he held a university degree and the charges against him were not very serious.
20. In a brief filed on 1 December 2003 the applicant argued that the lower court had erred in the assessment of the evidence and had made arbitrary findings of fact. In particular, it had not specified on what basis it had concluded that the applicant had used the documents to win the civil case, seeing that he had not claimed the sums mentioned in them, but had merely employed them to illustrate a theoretical assertion. The court had also given reasons bordering on the absurd in determining the gravity of the offence, and had impermissibly dealt with the civilparty claims.
21. In a final judgment of 9 December 2003 the Sliven Regional Court upheld the lower court’s judgment. It held that it had properly admitted and analysed the evidence, had not omitted to gather relevant evidence, had made accurate findings of fact, and had correctly concluded that, by using false documents to win the civil case, the applicant had committed the offence with direct intent. There had been no material breaches of the rules of procedure. In particular, it had not been erroneous to try the applicant and only then give him an administrative punishment, nor to examine the civil claims against him, because all damage directly flowing from the offence – in this case, the claimants’ moral suffering – was subject to reparation. Nor had the court erred in determining the quantum of damages.
22. Article 316 of the 1968 Criminal Code provides that whoever uses a false document, but cannot be prosecuted for its forgery, is punishable with up to two years’ imprisonment.
23. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed certain situations in which an accused who could not retain counsel had to be provided with courtappointed counsel. None of these situations were relevant to the facts of the present case. On 1 January 2000 a new point (7) was added as part of a comprehensive overhaul of the Code intended to bring it into line with the Convention. It was based on Article 6 § 3 (c) of the Convention and provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required.
24. In appeal proceedings, the courts are prohibited from worsening the situation of the accused in the absence of a prosecution appeal (Articles 333 § 4, 334 § 2, and 335 § 2 of the 1974 Code of Criminal Procedure).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-101958
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF IVAN ATANASOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Determination (civil));No violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1959 and lives in the village of Elshitsa, in the Panagyurishte municipality, in a house owned by him and his former wife. His parents also live in that house. His daughter, from whose mother the applicant is divorced, stays with him every first and third weekend of the month and one month in the summer. The applicant's house is situated about one kilometre from the tailings pond (хвостохранилище) and the flotation plant (обогатителна фабрика) of a former copperore mine. The applicant cultivates agricultural land located about four kilometres from the pond. On 23 December 2008 the applicant's father donated to him more agricultural land in Elshitsa; the applicant did not specify its exact location.
8. The pond, whose surface area is 98.3 ha, was in operation until 1991. The mine continued to be worked until 1999. After decommissioning, measures for the conservation and reclamation of the pond were taken. In June 1994 a scheme, drawn up in March 1994, was subjected to an environmental impact assessment (“EIA”). The conclusion was positive. In December 1994 the EIA was submitted for public discussion by the inhabitants of Elshitsa and modified in line with their comments. The scheme was approved by the Interdepartmental Expert Council of the Ministry of Industry in October 1997 and began to be implemented in January 1999. It consisted in laying earth and soil and planting vegetation on the pond. Its implementation was stopped in April 1999.
9. In May 1999 Mr Marin Blagiev, operating as a sole trader under the business name “ET Marin Blagiev”, proposed to the Ministry of Industry a new solution for the reclamation of the tailings pond. It consisted in the temporary capping of the pond's surface and slopes with soil cement, to prevent the spreading of dust, and in the use of sludge from a waste-water treatment plant in Plovdiv for biological reclamation.
10. On 1 June 1999 the Pazardzhik Regional Inspectorate of Environment and Water gave a negative opinion on the new scheme. It expressed doubts as to the sustainability and the stability in acidic environments of the soil cement intended to be used for capping the pond. The proposed technology would provide a provisional solution for containing the dust spread from the pond, but would not lead to the pond's full reclamation. Moreover, ET Marin Blagiev had not specified the chemical composition of the sludge from the Plovdiv waste-water treatment plant. It appeared to contain heavy metals, as the plant treated not only domestic, but also industrial waste water. According to the relevant classifier, sludge resulting from the treatment of the latter was hazardous waste.
11. On 2 June 1999 Panagyurishte's mayor also expressed a negative opinion on the new scheme. He noted, among other things, that the previous scheme had been fully approved and had begun to be implemented. In addition, the composition of the sludge from the Plovdiv plant was unclear, as it treated not only domestic, but also industrial waste water. This meant that the sludge might contain heavy metals.
12. However, on 3 June 1999 the Ministry of Industry's Interdepartmental Expert Council approved ET Marin Blagiev's proposal and allowed him to submit a new scheme.
13. In a letter of 24 June 1999 to the Minister of Industry, the regional governor said that the new reclamation scheme was not technologically superior to the previous one and should not be approved.
14. On 1 July 1999 the Minister of Industry transferred the tailings pond from the assets of the State-owned company Panagyurski Mini EAD to those of a specially formed State-owned company, Eco Elshitsa EOOD.
15. On 27 August 1999 ET Marin Blagiev presented its scheme to the Ministry of Industry. At about the same time Panagyurski Mini EAD, which had been implementing the initial reclamation scheme (see paragraph 8 above), presented the Ministry of Industry with an update to the initial scheme.
16. The Ministry appointed a specialist board of experts to assess the two schemes. The board comprised experts from the Ministry of Industry, of Environment and Water, and from the Ministry of Finance, as well as from Panagyurski Mini EAD and ET Marin Blagiev. It held a meeting on 7 September 1999 to discuss the relative merits of the two schemes. It noted that both lacked checks on the stability of the pond. However, according to an expert's report, neither of them would impair the pond's stability. Both lacked climatological and hydrological descriptions of the area and data on the expected consolidation of the sludge after the reclamation had ended. The problems relating to the neutralisation of the acid water were partially addressed in ET Marin Blagiev's scheme and not addressed in Panagyurski Mini EAD's scheme. According to an expert's report, it was possible to use stabilised waste-water sludge from the Plovdiv treatment plant. The area around the pond did not have enough humus for the biological reclamation envisaged by Panagyurski Mini EAD's scheme; it would thus be necessary to enrich the existing soil artificially. ET Marin Blagiev's scheme envisaged finishing the reclamation in eighteen months and resolving the dust-spread problem even before that. Panagyurski Mini EAD's scheme also had an eighteenmonth timeline, but it was unrealistic. ET Marin Blagiev's scheme provided for the restoration of the productive qualities of 19.2 ha of polluted soil outside the tailings pond and its use for the production of specialised grass. According to accounts submitted by the two firms, ET Marin Blagiev's scheme would cost 5,139,356 Bulgarian levs (BGN) and Panagyurski Mini EAD's scheme BGN 5,878,945. On that basis, the board recommended that the Ministry of Industry's Interdepartmental Expert Council approve ET Marin Blagiev's scheme. Two experts representing Panagyurski Mini EAD disagreed, saying that this scheme did not meet various regulatory requirements. In particular, wastewater sludge was not appropriate for reclamation; humus was much better suited for that task. It was also unclear whether the use of sludge would yield stable and safe results. According to the relevant classifier, the sludge from the Plovdiv plant was hazardous waste, because it came not only from domestic but also from industrial waste water. The documents relating to the scheme did not specify the exact toxic-substance content of the sludge. Lastly, the scheme's scope and potential effects on the environment warranted an EIA. The updated initial scheme suffered from none of these drawbacks, but, on the contrary, would provide a sustainable solution.
17. The Ministry of Industry's Interdepartmental Expert Council, comprising representatives from several ministries, considered the two schemes on 9 September 1999. It examined the findings of the specialist board of experts, as well as the opinions of the Pazardzhik Regional Inspectorate of Environment and Water, of Panagyurishte's mayor, and of the regional governor. It also heard Mr Blagiev's explanations. Following a discussion, which touched upon, among other matters, the alleged heavymetal content in the sludge from the Plovdiv plant, the Council unanimously resolved to approve ET Marin Blagiev's scheme. The resolution was later approved by the Minister for Industry.
18. In a newspaper interview published on 21 September 1999 the Minister for the Environment said that the new reclamation scheme was controversial and that she intended to challenge it. In her view, a fresh method of reclamation was to be sought, if need be with the help of university scientists.
19. The new scheme began to be implemented in October 1999. Eco Elshitsa EOOD was the investor and ET Marin Blagiev the contractor.
20. On 13 January 2000 the Pazardzhik Regional Inspectorate of Environment and Water found that the company carrying sludge from the Plovdiv plant to the pond was doing so without the licence required under section 12(1) the 1997 Limitation of the Adverse Impact of Waste on the Environment Act (see paragraph 52 below), which corresponded to an administrative offence. On 29 March 2000 it fined the company.
21. Consequently, ET Marin Blagiev applied for such a licence, which was granted by the Minister for the Environment and Water on 22 February 2000. In her decision the Minister allowed ET Marin Blagiev to process up to four hundred tonnes of domestic wastewater sludge a day. In particular, it could carry stabilised sludge from the Plovdiv treatment plant to the pond, store it in pits or other openair containers and use it for fertilising soils or improving the environment. The sludge was to be carried in lorries, with between six and eleven runs from the Plovdiv plant to the pond per day. It was to be laid on the pond in keeping with the technology approved by the Interdepartmental District Council and with certain other precautionary measures. The laying of sludge had to be finished before 30 December 2001. In the meantime, ET Marin Blagiev had to present quarterly chemical analyses of the sludge to the Ministry of Environment and the Pazardzhik Regional Inspectorate of Environment and Water.
22. After finding out about the above licence, on 21 December 2000 the applicant applied to the Supreme Administrative Court (Върховен административен съд) for judicial review of the Minister's decision to grant it. He started by contending that he had a sufficient legal interest to contest the decision, because it impacted on his right under Article 55 of the Constitution (see paragraph 47 in limine below) to live in a “healthy and favourable environment corresponding to the established standards and norms”. He pointed out that he lived in Elshitsa, close to the place where the licence allowed sludge to be laid, and that the sludge could have adverse effects on the environment and human health. He also referred to Article 120 § 2 of the Constitution (see paragraph 47 in fine below). He further argued that the decision was null and void, as its implementation was impossible. The decision allowed ET Marin Blagiev to carry and process domestic waste-water sludge. However, this could not be done, because the waste water treated in the Plovdiv plant came from both domestic and industrial sources. It was unfeasible to separate the domestic from the industrial sludge and for this reason it was impossible to carry and process solely domestic sludge. The applicant further argued that the Minister's decision unlawfully classified the sludge as industrial waste, as under the relevant rules it was hazardous waste; this was also evident from various analyses. Furthermore, the Minister had taken the decision in breach of the rules of procedure, as no EIA had been drawn up.
23. In his application the applicant also requested the court to stay, as an interim measure, the enforcement of the impugned decision, as failure to do so could frustrate the purpose of the proceedings and cause irreparable harm to the environment, thus infringing the right of Elshitsa's inhabitants to a safe and healthy environment. As the court did not rule on that request, on 21 February 2001 the applicant renewed it. He argued that the continuing implementation of the decision could lead to irreparable harm for the environment, as the spreading of sludge was still going on at a regular pace.
24. On 21 March 2001 (опр. № 1826 от 21 март 2001 г. по адм. д. № 732/2001, ВАС, ІІ отд.) a threemember panel of the Supreme Administrative Court declared the application inadmissible. It found that the applicant had not been party to the administrative proceedings and therefore had no standing to seek review of the Minister's decision. His interests could not be adversely affected by the decision, but solely by the potential unlawful actions of those whom the decision authorised to carry and process waste.
25. On an appeal by the applicant, on 14 June 2001 a fivemember panel of the Supreme Administrative Court quashed the threemember panel's ruling and remitted the case for an examination on the merits (опр. № 4333 от 14 юни 2001 г. по адм. д. № 3777/2001, ВАС, петчленен състав). It held that in view of the aim of the environmental protection legislation – to prevent or at least reduce the adverse effects of waste on the environment and human health – all individuals living in an area at risk of pollution due to wastetreatment operations could be considered as interested parties. The applicant, as well as all persons living near the tailings pond, had an interest in preventing activities, such as those allowed by the impugned ministerial decision, which could pollute their environment and thus possibly impair their health.
26. On 28 August 2001 the applicant reminded the court once more of his request for a stay of execution of the decision. On 18 September 2001 the three-member panel turned down the request, saying that the materials in the file did not point to any danger for the applicant's interests.
27. A hearing listed for 16 October 2001 did not take place, as ET Marin Blagiev had not been properly summoned. It took place on 15 January 2002. The court heard the parties' arguments. A public prosecutor participating in the proceedings ex officio submitted that the application should be allowed.
28. In a decision of 23 January 2002 (опр. № 605 от 23 януари 2002 г. по адм. дело № 4993/2001, ВАС, ІІ отд.) the three-member panel discontinued the proceedings, holding that the case had become devoid of object as the licence granted to ET Marin Blagiev had expired on 30 December 2001.
29. The applicant appealed, arguing, among other things, that he had a continuing legal interest in seeking judicial review of the decision, because it had allowed waste disposal near his home, which could lead to problems for his health. The annulment of the decision was in addition a prerequisite for successfully prosecuting a claim in respect of the harm occasioned by the unlawful waste disposal. The decision's effects had not ended on 30 December 2001, as the negative results of the activities which it had made possible could persist for years to come.
30. On 24 September 2002 a fivemember panel of the Supreme Administrative Court upheld the discontinuance (опр. № 8432 от 24 септември 2002 г. по адм. д. № 7232/2002, ВАС, петчленен състав). It noted that the subsistence of a legal interest in seeking the annulment of an administrative decision was mandatory throughout the proceedings. The threemember panel had had regard to a fresh development – the expiry of the licence – which had come to pass while the proceedings were pending. The allegation that the applicant had suffered damage at the time when the licence had still been in force was not sufficient to establish the existence of a continuing legal interest, as reparation for such damage could be sought in civil proceedings.
31. The new reclamation scheme drew widespread disapproval from Elshitsa's inhabitants. On 10 and 19 April 2000 Mr A.P., member of the Panagyurishte Municipal Council, sent letters to the Ministry of Health and to the National Centre for Hygiene, Medical Ecology and Nutrition (a subdivision of the Ministry of Health). He asked them to give their expert opinion on the question whether the implementation of the scheme could put at risk the health of the people living near the pond.
32. The Centre replied on 25 April 2000. It said that there was a risk of heavy-metal contamination impacting on the population's health within a tenkilometre perimeter around the pond. The reclamation scheme lacked a suitable system for monitoring the underground water, where the migration of such metals could be expected, as the polymer cover was not stable in the long term. According to an expert in the Centre's toxicology laboratory, the heavy-metal content of the sludge spread on the pond was above the regulatory maximum, as shown by the chemical analysis of samples. The high levels of copper, zinc, cadmium, nickel, cobalt and chrome led to a pollution risk and a risk to the population's health. So did the presence in the sludge of lead and manganese. Those metals could have a negative impact on the nerve, respiratory and cardiovascular systems, the kidneys, the liver and the production of blood. Some of them were allergens, mutagens and carcinogens. The scheme's implementation would thus lead to a risk of dust from the sludge spreading in the atmosphere. There was also a risk that those metals would migrate through the surface and underground water, because of the acid pH of the water in the pond. The methodology for reclaiming old polluted areas classified the area situated ten to twenty kilometres from the source of the pollution as being at risk.
33. Having received the Centre's opinion, on 17 May 2000 Mr A.P. asked the Chief Sanitary Inspector to stop the operation of the site. He did not receive a reply. Mr A.P. also alerted the mayor of Panagyurishte.
34. On 29 May 2000 Panagyurishte's mayor appointed a commission to take samples from the place where the sludge was being spread and to submit it to a laboratory for an analysis of its heavy-metal content. Such samples were taken and sent to the National Centre for Hygiene, Medical Ecology and Nutrition. In a letter of 6 June 2000, accompanied by the expert opinion of a researcher in its toxicology laboratory, the Centre said that the lead, cadmium, copper, zinc, chrome and nickel content of the sample was well above the maximum permitted levels. Copper and zinc had a negative effect on agricultural crops and livestock. Lead, cadmium, chrome and nickel were systematically toxic for mammals and humans: they could harm the peripheral and central nervous systems, the production of blood, the liver and the kidneys. Those metals also had mutagenic and carcinogenic effects. In addition, chrome, cadmium and nickel were strong allergens. The underlying soil cement cover would provide some protection for the underground water in the region, but it was unclear how it would prevent the migration of heavy metals to the surface water.
35. On 12 June 2000 Panagyurishte's mayor and the regional governor wrote to the Deputy Prime Minister. They urged him to halt the scheme's implementation and noted that its continuation could lead to civil unrest in Elshitsa. Apparently no reply was received.
36. On 13 December 2001 the Ministry of Environment and Water granted Eco Elshitsa EOOD a permit to discharge waste water, setting certain limits on the content of heavy metals and other toxic substances in it, and requiring the company to report to the competent authorities on a monthly basis.
37. On 25 September 2002 the works on the pond were accepted by the authorities.
38. On 11 August 2004 Elshitsa's mayor asked the environmental inspection authorities in Pazardzhik to provide him with information about Eco Elshitsa EOOD's monthly selfmonitoring reports. On 8 September 2004 those authorities replied that they did not have such reports on file and that they were pressuring the company to comply with its reporting obligations.
39. On 9 January 2001, as a result of pressure from inhabitants of Elshitsa, the Minister for the Environment and Water ordered Eco Elshitsa EOOD to commission an EIA. In an additional decision of 1 March 2001 she specified that the EIA was to be ready by 31 March 2001.
40. As a result of a hunger strike by three members of a public committee opposed to the scheme and of a visit by the Minister for the Environment and Water to Elshitsa, on 10 November 2001 the Pazardzhik Regional Inspectorate of Environment and Water, noting that no EIA had been drawn up, ordered that the implementation of the scheme be stopped pending completion of the assessment. However, by that time about 97 ha of the 98.3 ha of the pond had been covered with sludge. It seems that the total amount deposited was fortyeight thousand cubic metres.
41. The EIA was ready in March or April 2002. It was submitted for a public discussion, at which three experts from the University of Sofia's faculty of geology and geography expressed their misgivings about the scheme.
42. On 4 July 2002 the Minister for the Environment and Water decided not to accept the EIA and sent it back for revision. She noted some serious omissions in its estimation of the health risk to the population arising from the reclamation scheme, the lack of information about the hazardous substances involved in the scheme, and the fact that the team which had drawn it up did not include an expert on the health and hygienerelated aspects of the environment. The Minister instructed the experts to revise the EIA and, in particular, to make a comparative study of the existing analyses and make an additional chemical analysis of the sludge laid on the pond. It was to be specifically checked for heavy metals and mercury content. The taking of samples for that analysis had to be done in the presence of the persons concerned. The experts were also to indicate the tailings' permeability, before and after the pond's capping with soil cement, as well as the permeability of the underlying rocks and the stability and the permeability of the soil cement after eighteen months of use. The revised EIA was to analyse all aspects of the scheme with reference to their effect on the health of the inhabitants of the villages surrounding the pond, and to propose concrete measures to tackle the problem. The analysis had to focus specifically on the penetration of heavy metals in the food chain.
43. In October 2003 Eco Elshitsa EOOD and the company which it had hired to draw up the EIA submitted additional documents to the Ministry. In a letter of 17 October 2003 the Minister said that those documents did not contain the information requested in her decision of 4 July 2002. It was thus impossible to draw any reliable conclusions as to the effect of the reclamation scheme on the people and the environment. However, under the regulations in force, it was not necessary to pursue the matter further and finalise the EIA. As the works on the site had already been completed, it was sufficient for Eco Elshitsa EOOD to produce a self-monitoring report on the scheme's impact.
44. Following pressure from Elshitsa's inhabitants and the local authorities, on 6 April 2004 the Minister of Health ordered the National Hygiene and Ecology Centre to carry out an assessment of the environment and the impact of the reclamation scheme on the local population's health. In a letter of 14 June 2004 the Centre informed the Ministry that its experts were ready to complete the task, but that it could come up with only twenty per cent of the necessary funding, amounting to BGN 8,000. In 2007, 2008 and February 2009 the applicant asked the municipality of Panagyurishte to cover the remaining eighty per cent of the amount, but the municipality made no provision for such an outlay in its budget. At the time of the latest information from the applicant on that point (29 January 2010) the money had not been found and the assessment had not been completed.
45. The first selfmonitoring report by Eco Elshitsa EOOD was drawn up in November 2007 and covered the period between November 2006 and November 2007. It gave an account of, among other things, the heavymetal content of water coming out of the pond and of grass near it. These measurements were based on two water samples and five grass samples. One of the water samples did not show a heavymetal content above the regulatory maximum levels, whereas the other did, leading the report to conclude that the pond's drainage water was heavily polluted. According to the report, the polluting content of the grass samples was below the regulatory maximum level, but the applicant submitted that its authors had used the wrong comparators, using the regulatory maximum levels for soil, not grass, which were considerably lower. The report said that the pond should continue to be monitored, but at a decreasing pace, with sampletaking once a year for grass and twice a year for water. Further reporting was envisaged in 2010.
46. In its report on the state of the environment in 1997 the Ministry of Environment and Water noted, on page 98, that the Plovdiv waste water treatment plant had generated 45,601 tonnes of dangerous waste. In its annual report for 2004 the Environmental Protection Agency (Изпълнителна агенция по околната среда) noted, on page 4, that out of approximately 50,175 tonnes of sludge monitored by its Plovdiv branch, approximately 41.5 tonnes could be classified as dangerous. In its reports for 2006 and 2007 the Agency noted, on pages 9 and 9 respectively, that the chromium content of the sludge coming from the Plovdiv wastewater treatment plant was above the regulatory maximum. That sludge was therefore not appropriate for the reclamation and regeneration of agricultural land.
47. The relevant provisions of the 1991 Constitution read as follows:
“The Republic of Bulgaria shall ensure the preservation and the reproduction of the environment, the conservation of the variety of living nature, and the reasonable utilisation of the country's natural and other resources.”
“Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They must preserve the environment.”
“1. The courts shall review the lawfulness of the administration's acts and decisions.
2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”
48. Under section 19(1) of the 1991 Environmental Protection Act (Закон за опазване на околната среда), repealed and replaced by the 2002 Environmental Protection Act, all activities of private individuals and entities and State bodies could be subjected to an EIA. Section 20(1)(1) of the 1991 Act, superseded by section 92(1) of the 2002 Act, provided that an EIA was mandatory for all the schemes listed in a schedule to the Act. Those schemes included the dumping of industrial and domestic waste and of waste-water sludge (point 27.4 of the Schedule, as in force between 1997 and 2001). An EIA could be carried out in other cases as well, pursuant to a proposal made by those concerned to the competent authorities (section 20(3) of the 1991 Act, superseded by section 93 of the 2002 Act, which lays down more detailed rules in that domain).
49. The EIA was to be commissioned by the investor and carried out by independent experts having no connection with the scheme's planning and no vested interest in its completion (section 21(1) of the 1991 Act). The expenses were to be borne by the investor (section 23(2) of the 1991 Act). The final report was to be submitted to the competent authority, which had to organise a public discussion on it (sections 23(1) and 23a(1) of the 1991 Act). The public had to be notified of the discussion at least one month in advance, through the mass media or other appropriate channels (section 23a(2) of the 1991 Act). The authority was to decide on the scheme's feasibility not later than three months (after an amendment in 2001, one month) after the discussion (section 23b(1) of the 1991 Act). The decision was to be notified to the investor and made public through the mass media or other appropriate channels (section 23b(2) of the 1991 Act). Those concerned could seek judicial review (section 23b(3) of the 1991 Act). Under section 23c of the 1991 Act, the authorities had to ban or halt schemes whose EIAs were negative or which had not been subjected to an EIA if one was mandatory.
50. Under section 29 of the 1991 Act, whose text has been reproduced in section 170 of the 2002 Act, everyone was bound to make good the damage which they had, through their own fault, caused to another by polluting or spoiling the environment. The amount of compensation could not be less than the money needed to repair the damage. Under section 30(1) of the 1991 Act, the text of which has been reproduced in section 171 of the 2002 Act, those who had suffered damage as described in section 29 could bring proceedings to enjoin the polluter to put an end to the breach and eliminate the pollution's effects. Section 30(2) provided that such proceedings could be brought by any individual, the municipal authorities and nonprofit associations. There is no reported caselaw under those provisions.
51. The 1992 Regulations on hygienic requirements for the protection of health in the urban environment (Наредба № 7 от 25 май 1992 г. за хигиенните изисквания за здравна защита на селищната среда), issued by the Minister of Health on 25 May 1992 and amended several times after that, lay down minimum permitted distances between urban areas and sources of pollution. Schedule No. 1 to the Regulations provides, in point 184, that tailings ponds used for depositing hazardous industrial waste for up to ten years must be situated farther than two kilometres from urban areas. Point 184a lays down the same requirement in respect of tailings ponds used for depositing nonhazardous industrial waste for more than ten years. Point 335 provides that non-hazardous waste periodically covered with soil must be stored more than three kilometres from urban areas. Point 335a lays down the same requirement in respect of hazardous waste which is intended to remain in the storage area for more than ten years. The Ministry of Health may authorise a reduction of those distances on the basis of an opinion by the local hygiene and epidemiology inspectorate and of an EIA (regulation 4(1)). If no EIA is required in respect of the installation in issue, before authorising a reduction the Ministry must obtain a comprehensive ecological expert's report containing a healthimpact assessment, drawn up by an independent expert (regulation 4(2)).
52. Under section 12(1) of the 1997 Limitation of the Adverse Impact of Waste on the Environment Act (Закон за ограничаване на вредното въздействие на отпадъците върху околната среда), superseded by section 12(1)(1) of the 2003 Waste Management Act (Закон за управление на отпадъците), a licence was required for all activities relating to the collection, storage or decontamination of waste. The decision to grant such licence was subject to judicial review (section 50 of the 1997 Act, superseded by section 49 of the 2003 Act).
53. Section 37(2) of the 1997 Act provided that facilities and installations for the storage and decontamination of waste could be built only following a positive EIA.
54. Section 1(1) of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act, provides that the State is liable for the damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage flowing from unlawful administrative decisions may be claimed after the decisions concerned have been annulled in prior proceedings. The court examining the claim for compensation cannot enquire into the validity of a voidable decision; it may merely examine whether a decision is null and void. Section 8(2) provides that if another statute provides for a special avenue of redress, the Act does not apply.
55. The text of a number of international instruments and documents concerning the environment, including that of the 1998 United Nations Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention, which Bulgaria signed on 25 June 1998 and ratified on 17 December 2003) may be found in the Court's judgment in the case of Tătar v. Romania (no. 67021/01, ECHR 2009... (extracts)).
56. On 4 November 1999 a standing committee acting on behalf of the Council of Europe's Parliamentary Assembly adopted Recommendation 1431 (1999), entitled “Future action to be taken by the Council of Europe in the field of environment protection”. Point 8 of the recommendation said that “[i]n the light of changing living conditions and growing recognition of the importance of environmental issues, ... the Convention could include the right to a healthy and viable environment as a basic human right”. It urged the Committee of Ministers to, among other things, “instruct the appropriate bodies within the Council of Europe to examine the feasibility of ... drafting an amendment or an additional protocol to the [Convention] concerning the right of individuals to a healthy and viable environment”.
57. On 27 June 2003 the Parliamentary Assembly adopted Recommendation 1614 (2003), entitled “Environment and human rights”. Point 3 of the recommendation stated that “in view of developments in international law on both the environment and human rights as well as in European caselaw, especially that of the [Court], the time has now come to consider legal ways in which the human rights protection system can contribute to the protection of the environment”. Point 8 referred to “the caselaw of the [Court] concerning States' positive obligations in the area of protection against environmental nuisances which are harmful or dangerous to health” and said that it “wishe[d] to encourage this process by adding provisions concerning the recognition of individual procedural rights, intended to enhance environmental protection, to the rights set out in the [Convention]”. It therefore recommended to the governments of the Member States to “ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the [Convention] and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection”. It also called upon the Committee of Ministers to “draw up an additional protocol to the [Convention] concerning the recognition of individual procedural rights intended to enhance environmental protection, as set out in the Aarhus Convention” and to “draw up, as an interim measure in preparation for the drafting of an additional protocol, a recommendation to member states setting out the ways in which the [Convention] provides individual protection against environmental degradation, proposing the adoption at national level of an individual right to participation in environmental decision making, and indicating a preference, in cases concerning the environment, for a broad interpretation of the right to an effective remedy guaranteed under Article 13”.
NON_VIOLATED_ARTICLES: 13
6
8
P1
NON_VIOLATED_PARAGRAPHS: 6-1
8-1
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-59205
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF WILKINSON AND ALLEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. At the time of the events in question, both applicants were serving in the army and were tried by district courts-martial convened pursuant to the Army Act 1955.
8. Mr Wilkinson pleaded guilty to the armed forces’ disciplinary offence of absence without leave (contrary to section 38(a) of the Army Act 1955). Although the Army Board upheld his petition against the custodial part of his sentence, the charge for which he was convicted carried a potential sentence of two years’ imprisonment (see paragraph 17 below).
9. Mr Allen pleaded guilty to two charges of possession of controlled drugs contrary to the Misuse of Drugs Act 1971, these being civilian criminal offences. The Army Board reduced the custodial element of his sentence to six months’ imprisonment.
10. The relevant provisions of the Army Act 1955 are set out in the judgment of the European Court of Human Rights in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51).
11. Central to the system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court-martial. He or she had the final decision on the nature and detail of the charges to be brought and the type of court-martial required, and was responsible for convening the court-martial.
12. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.
13. Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence.
14. The convening officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court-martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.
15. The convening officer usually acted as confirming officer also. A court-martial’s findings were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.
16. Since the applicants’ trials, the law has been amended by the Armed Forces Act 1996 (see the above-mentioned Findlay v. the United Kingdom judgment, §§ 52-57).
17. A person convicted of absence without leave shall be liable to imprisonment for a term not exceeding two years (section 38(a) of the 1955 Act).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77707
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: LAGERGREN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Arnold Christopher Lagergren, is an American national who was born in 1970 and lives in New York. He was represented before the Court by Mr Henrik Karl Nielsen, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Peter TaksøeJensen of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant spent his childhood, youth and part of his adult life in the United States, where he was educated within the field of business economics. He arrived in Denmark on 20 December 1994 at the age of twenty-four. He married a Danish citizen on 20 May 1995 and two children were born out of marriage in 1995 and 1999, respectively. The applicant, who speaks Danish, was employed in a computer firm. The spouses separated in August 2001, and with the applicant’s consent the mother was granted custody of the children. The applicant regularly had access to the children. On 18 December 2002 the spouses divorced.
In the meantime, on 4 March 2002 the applicant was arrested and charged pursuant to the Penal Code with drug offences and an armed bank robbery.
The drug offences were allegedly committed during the period from 1 January to 4 March 2002 and related to 643 ecstasy pills, 69.3 grams of amphetamine and 28.5 grams of cocaine.
As regards the bank robbery committed on 4 March 2002, the applicant was allegedly the instigator who, at the relevant time being 31 years old, had persuaded three younger men, respectively 17, 21 and 25 years old, to participate. The two youngest men entered the bank with a sawn-off sporting gun and the third acted as the chauffeur, while the applicant awaited them all at an appointed place. The proceeds in the amount of approximately 145,000 Danish kroner (DKK), equal to 19,500 euros (EUR), were split equally between them. The applicant pleaded guilty to the charges and was accordingly found guilty on 8 August 2002 by the City Court of Skive (Retten i Skive). He was sentenced to three years’ imprisonment and expelled from Denmark with a life-long ban on his return. As regards the expulsion order, the City Court took into account the nature and seriousness of the crime committed, the applicant’s age when he entered Denmark, the fact that he was separated and had two children in Denmark, and that his parents and two brothers lived in USA. The court found that a decision to expel the applicant would not contravene the principle of proportionality.
On appeal, the judgment was upheld on 3 October 2002 by the High Court of Western Denmark (Vestre Landsret), which stated as follows:
“Having regard to the character of the offences and the information concerning [the applicant’s] role in the robbery and its planning [the High Court] confirms the sentence as fixed by the City Court.
Furthermore, for the reasons set out by the City Court, [the High Court] agrees with the expulsion order. Having made an overall assessment, which included [the applicant’s] ties to his home country, [the applicant’s] relationship with his children cannot imply that the expulsion is contrary to the principle of proportionality.”
The applicant’s request to be granted leave to appeal against the judgment to the Supreme Court (Højesteret) was refused on 18 December 2002.
Having been released on parole, with 547 days remaining of his sentence, the applicant left Denmark on 4 September 2003.
The applicant submitted that while incarcerated in Denmark he had telephone contact with his children every second week and that subsequent to his expulsion they have been in weekly telephone contact.
The relevant provisions of the Penal Code applicable at the time read as follows:
1. Any person who, in contravention of the legislation on euphoriant drugs, supplies such drugs to a considerable number of persons, or in return for a large payment, or in any other particularly aggravating circumstances, shall be liable to imprisonment for any term not exceeding six years. If the supply relates to a considerable quantity of a particularly dangerous or harmful drug, or if the supply of such drug has otherwise been of a particularly dangerous nature, the penalty may be increased to imprisonment for any term not exceeding ten years.
2. Similar punishment shall apply to any person who, in contravention of the legislation on euphoriant drugs, imports, exports, buys, distributes, receives, produces, manufactures or possesses such drugs with the intention to supply them as mentioned in subsection 1, above.
1. Any person who, for the purpose of obtaining for himself or for others an unlawful gain, by violence or threat of immediate application of such,
(i) takes or extorts from any other person a tangible object belonging to another person; or ...
With regard to the level of punitive measures the Government submitted the following information, which was not disputed by the applicant:
In Denmark three years of imprisonment is a very severe sentence. According to the European Sourcebook of Crime and Criminal Justice Statistic, 2003 (WODC, report no. 121, p.196), while the European countries had 139 prisoners per 100 000 inhabitants on average in 2000, the figure for Denmark was 64. The reason for this low number of prisoners is an extensive use of fines and other types of non-custodial sentences. According to figures from the yearbook on crime statistics from Statistic Denmark (Danmarks Statistik) in 2002, out of the total number of convictions for penal-code-offences, half were fines, 29 per cent were suspended sentences and other non-custodial sentences, leaving about one fifth of the sentences to be unsuspended prison sentences.
The low prison rate is also a result of short prison terms. In 2002, the average length of prison sentences imposed for penal-code-offences was 7.2 months, and only 12 per cent of all prison sentences were longer than one year. Looking at the even longer prison terms from 2002, only 3 per cent — corresponding to 224 prison sentences — exceeded three years. Most of the long prison sentences are imposed for homicide and drug offences. As for armed robbery of a non-aggravated nature (section 288, subsection 1 of the Penal Code), a study has revealed that the average length of all prison sentences imposed from 1996 to 2000 was 1.7 years if the person had no prior criminal record, but had committed other offences which were included in the sentence. In 2002 the average length of all prison sentences for non-aggravated bank robbery was 2.2 years. However, most bank robbery cases involve offenders with a prior criminal record.
As for supplying drugs, the length of the prison sentence is closely related to the quantity and the kind of drugs in question. Drug dealing with ecstasy, amphetamine and cocaine does not normally result in heavy measures as, for instance, heroine does. To give an example, a person charged with the sale of 600-700 ecstasy pills would most likely face a six to nine months’
The relevant provisions of the Aliens Act (Udlændingeloven) applicable at the time read as follows:
1. An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7 or 8 may be expelled if:
...
(ii) the alien, for several criminal counts, is sentenced to a minimum of two years’ imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration;
...
(iv) the alien is sentenced, pursuant to the Act on Euphoriant Drugs or section 191 or 191 A of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature;
...
(vi) the alien is sentenced, pursuant to ... section 288 of the Penal Code, to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.
1. An alien who has lawfully lived in Denmark for more than the last three years may be expelled if:
(i) any ground given in section 22 is applicable;
(ii) the alien is sentenced to a minimum of two years’ imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration;
(iii) the alien, for several criminal counts, is sentenced to a minimum of one year’s imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration;
(iv) ...
1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:
(i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years;
(ii) the duration of the alien’s stay in Denmark;
(iii) the alien’s age, health, and other personal circumstances;
(iv) the alien’s ties with persons living in Denmark;
(v) the consequences of the expulsion for the alien’s close relatives living in Denmark;
(vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and
(vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.
2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.
1. As a consequence of a judgment, court order or decision ordering an alien to be expelled, the alien’s visa and residence permit will lapse, and the alien will not be allowed to re-enter Denmark and stay in this country without special permission (entry prohibition). An entry prohibition may be time-limited and is reckoned from the first day of the month following departure or return from Denmark. The entry prohibition is valid from the time of departure or return from Denmark.
2. An entry prohibition in connection with expulsion under sections 22 to 24 is given for:
(i) three years if the alien is sentenced to suspended imprisonment or is sentenced to imprisonment not exceeding three months or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature or duration;
(ii) five years if the alien is sentenced to imprisonment exceeding three months, but not exceeding one year, or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration;
(iii) ten years if the alien is sentenced to imprisonment exceeding one year, but not exceeding two years, or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration;
(iv) an unlimited time if the alien is sentenced to imprisonment for more than two years or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration.
3. An entry prohibition in connection with expulsion under section 22, subsection 1, (iv) to (vi) is given for a minimum of five years.
4. An entry prohibition in connection with expulsion under section 25 [danger to national security or serious threat to public order, safety or health] is given for an unlimited time. An entry prohibition in connection with expulsion under sections 25a and 25b is given for one year.
5. The police authority in charge of the arrangements for departure delivers to the alien a written notice giving the grounds for the entry prohibition and the penalty carried by non-compliance with the prohibition.
6. An entry prohibition lapses if, under the conditions mentioned in section 10, subsection 2, the person in question is issued with a residence permit under sections 6 to 9.
7. An entry prohibition given to a national of another Nordic country may be lifted at a later date where exceptional reasons make it appropriate.
The Government submitted that according to practice, a visitor’s visa may be issued only in absolutely extraordinary cases to aliens who have been expelled with a permanent prohibition against re-entry. During the first two years following the departure, this may be relevant if the alien’s presence in Denmark is imperative, for example in case of acute serious illness of a spouse or a child living in Denmark and where consideration for the person(s) living in Denmark makes it appropriate to issue a visa to the expelled person. After the expiry of the two years following the departure, a visa can be issued in practice where exceptional reasons make it appropriate, for example in case of serious illness in the family living in Denmark.
The applicant pointed out that the Government’s allegation of this practise was not supported by any evidence or reference to national provisions.


ITEMID: 001-114609
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CIORAP v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Tudor Ciorap, is a Moldovan national who was born in 1965 and lives in Chişinău.
2. On 29 December 1999 the Centru District Court convicted the applicant of fraud and usurping official powers (Articles 122(2) and 207 of the Penal Code (“the P.C.”) applicable at the time) and sentenced him to seven years’ imprisonment. The court absolved him from serving the sentence in view of an amnesty law which applied to participants in the military conflict in the Transdniester region in 1992.
3. On 20 July 2000 a prosecutor asked the court to quash its own judgment of 29 December 1999 since the amnesty should not have applied to the applicant. The prosecutor explained that it had been discovered shortly prior to making the request that a copy of the document submitted by the applicant to the court in 1999 to prove his participation in the 1992 conflict could not be found in the file. At the same time, the applicant was not registered with any organisation responsible for issuing such documents and keeping the lists with those issued with such documents. This, the prosecution considered, constituted new facts unknown to the court when it had adopted its judgment.
4. On 23 March 2001 the Centru District Court reopened the proceedings and declared the applicant guilty of having committed the offences covered by Articles 122(2) and 207 of the C.P. It sentenced him to seven years of imprisonment.
5. On 29 May 2001 the Chişinău Regional Tribunal partly quashed that judgment and reduced the punishment to 5 years’ imprisonment. On 11 October 2001 the Court of Appeal upheld that judgment.
6. Having eventually gathered sufficient evidence in February 2004, a specialised State Commission confirmed the applicant’s participation in the 1992 conflict. The prosecution then asked the court to quash the judgment of 23 March 2001 and all subsequent judgments upholding it.
7. On 7 July 2004 the Centru District Court again found the applicant guilty of having committed the offences provided under Articles 122(2) and 207 of the C.P. and applied the amnesty law to him, absolving him from serving his sentence.
8. According to the documents submitted by the Government, the applicant was released immediately after the adoption of the judgment of 29 December 1999 and was re-arrested on 23 October 2000 on suspicion of having committed another offence (extortion) on 22 October 2000. According to the applicant, he was detained for up to 48 hours on 28 May and 26 June 2000 on suspicion of fraud committed during May-June 2000 and was arrested again on 23 October 2000. He claimed that during MayJune 2000 his office and car had been searched.
9. On 23 October 2000 the applicant was arrested on suspicion of having extorted money from a private individual on 22 October 2000. He was also accused of having defrauded several persons during March-June 2000.
An arrest warrant was issued by the Hînceşti District Court on 25 October 2000 and it was renewed thereafter until 22 December 2004, when he was released in order to undergo medical treatment in a civilian hospital. Since he thereafter absconded from the law enforcement authorities, he was re-arrested on 22 April 2005. On 8 August 2005 he was convicted of fraud by the Botanica District Court.
10. That judgment was partly upheld by the Chişinău Court of Appeal on 29 December 2005 and by the Supreme Court of Justice on 29 March 2006, sentencing him to eleven years’ detention.
11. On 3 May 2005 the applicant initiated proceedings claiming compensation for his “repeated conviction” in 2001. On 1 July 2005 the Râşcani District Court found in his favour and awarded him MDL 5,000 (EUR 330) for the non-pecuniary damage caused by the 2001 revision and the resulting five months of illegal imprisonment (MayOctober 2000).
12. On 3 November 2005 the Chişinău Court of Appeal quashed that judgment and adopted a new one, rejecting all of the applicant’s claims. According to the applicant, he could not lodge an appeal against that judgment because he could not observe formal requirements such as the typed form of the appeal and the payment of court fees. It appears from the documents submitted by the parties that he managed to lodge his appeal and that it was examined.
13. On 14 March 2006 the Supreme Court of Justice ordered a rehearing of the case by the Chişinău Court of Appeal because of procedural shortcomings.
14. On 29 June 2006 the Chişinău Court of Appeal upheld the judgment of 1 July 2005 and rejected the applicant’s argument that the sum awarded to him had been too small to compensate for the damage caused to him by unlawful detention, which according to him had lasted over four years.
15. On 7 November 2006 the Supreme Court of Justice upheld that judgment. The court found that the applicant was the victim of a miscarriage of justice and that personal freedom was one of the highest social values. However, the applicant was compensated sufficiently by the lower court, in view of the fact that compensation should neither undervalue the damage to the victim nor constitute a source of unjust enrichment.
16. According to the applicant, on 17 July 2009 the Supreme Court of Justice rejected a request of the Prosecutor General’s Office to reopen the proceedings in order to take account of the fact that he had not been detained in May-October 2000. The applicant did not submit a copy of that decision.


ITEMID: 001-70538
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF YILDIZ YILMAZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine under Art. 6-2;Not necessary to examine under Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 7. The applicant was born in 1960 and lives in Uşak.
8. On 15 December 1997 the applicant was arrested by the Anti-Terrorist Branch of the İzmir Police Headquarters on suspicion of membership of an illegal armed organisation, the Revolutionary Communists’ Union of Turkey (“the TIKB”, Türkiye İhtilalci Komünistler Birliği) and placed in custody.
9. In her statement of 18 December 1997 the applicant declared that she aided and abetted the members of the TIKB and that she provided information to the TIKB members who were held in prison.
10. On 19 December 1997 the applicant was brought before the Public Prosecutor at the İzmir State Security Court and then before the judge, where she denied all the charges against her. She declared that her statement in police custody was taken under duress and that she had been given electric shocks. The judge ordered the applicant’s detention pending trial.
11. On 23 December 1997 the Public Prosecutor at the İzmir State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation, aiding and abetting the organisation, providing information to its members who were imprisoned and participating in the demonstrations organised by the organisation.
12. On 4 June 1998 the İzmir State Security Court convicted the applicant under Article 169 of the Criminal Code and sentenced her to three years and nine months’ imprisonment.
13. On 23 June 1998 the applicant appealed against this decision to the Court of Cassation.
14. On 20 September 1999 the Court of Cassation upheld the decision of State Security Court.
15. On 14 October 2000 the Court of Cassation’s decision was deposited with the registry of İzmir State Security Court.
16. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97800
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BUSINESS SUPPORT CENTRE v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. On 14 December 1998 the Business Support Centre entered into an agreement with the Austrian Ministry of Foreign Affairs to set up a business incubator for small and medium-sized enterprises in the town of Ruse. In the course of implementing the project, the applicant organisation undertook to renovate a property of the Ruse municipal council against being granted the right to use it for the needs of the business incubator for a period of ten years. The renovation was completed on 9 February 2000 and cost BGN 192,761 (EUR 98,558) all of which was paid by the applicant organisation.
6. On 20 July 1999, apparently in the course of renovating the municipal property, the Business Support Centre received a supply from a sole trader (“the supplier”). It is unclear whether the transaction was for a supply of goods or services. As both entities were registered under the Value Added Tax Act of 1999 (“the VAT Act”) the transaction constituted a taxable supply under the said Act.
7. The total cost of the received supply was BGN 68,400 (EUR 34,972), of which BGN 57,000 (EUR 29,144) was the value of the goods or services and BGN 11,400 (EUR 5,828) was value-added tax (“VAT”). The supplier issued invoice no. 126/20.07.1999 to the applicant organisation, which the latter paid in full, including the VAT. The applicant organisation recorded the supply in its accounting records for the month of July 1999 and filed its VAT return for that period on 16 August 1999. The supplier, on the other hand, failed to record the transaction in its accounting records, to file a VAT return and to settle its obligations with the State budget.
8. On 11 April 2000 the tax authorities initiated an audit of the applicant organisation, covering, in respect of VAT, the period from 1 July 1999 to 29 February 2000. In the course of the inspection a cross-check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records. As a result, its failure to comply with its VAT reporting and payment obligations was discovered (see paragraph 7 above).
9. On 31 August 2000 the Central Tax Office of the Ruse Territorial Tax Directorate issued the applicant organisation with a tax assessment. In respect of VAT it found that the Business Support Centre had mistakenly deducted five payments it had made to suppliers for input VAT amounting to BGN 25,944.80 (EUR 13,265) and had failed to charge output VAT, in the amount of BGN 38,552.30 (EUR 19,711), on a taxable service it had provided.
10. In particular, in respect of the transaction under invoice no. 126/20.07.1999 the tax authorities refused the applicant organisation the right to deduct the input VAT it had paid, amounting to BGN 11,400 (EUR 5,828), because the supplier had failed to record the transaction in its accounting records, to file a VAT return and to settle his obligations towards the State budget. Thus, they considered that no VAT had been “charged” on the supply in question and that the applicant organisation could not therefore deduct the input VAT.
11. Based on the above conclusions, the tax authorities adjusted the applicant organisation's input and output VAT for the relevant reporting period. In respect of the supply under invoice no. 126/20.07.1999, this had the effect that the applicant organisation had to pay a second time the input VAT of BGN 11,400 (EUR 5,828). In addition, it was ordered to pay interest of BGN 1,396.83 (EUR 714) on that amount.
12. On 4 October 2000 the applicant organisation appealed against the tax assessment. In a decision of 6 November 2000 the Ruse Territorial Tax Directorate confirmed in full the findings in the tax assessment in respect of the input VAT of BGN 11,400 (EUR 5,828). The applicant organisation appealed to the courts.
13. On 28 May 2001 the Varna Regional Court found against the applicant organisation, which appealed further. In a final judgment of 13 August 2002 the Supreme Administrative Court upheld the lower court's findings and those of the tax authorities in respect of the input VAT of BGN 11,400 (EUR 5,828). In reaching their decisions, the courts likewise concluded that in so far as the supplier had failed to file VAT returns and to settle his obligations towards the State budget, the applicant organisation had no right to deduct the said input VAT.
14. The relevant provisions of the VAT Act have been summarised in the case of Bulves AD v. Bulgaria (no. 3991/03, §§ 20-28, 22 January 2009).
15. Article 239 (6) of the Code of Administrative Procedure of 2006, provides that an interested party may request the reopening of administrative proceedings in cases where a “judgment of the European Court of Human Rights has found a violation of the Convention”. The Supreme Administrative Court has already had occasion to use it to reopen proceedings subsequent to Court judgments for violations of Articles 6, 8 and 13 of the Convention (решение № 2476 от 5.03.2008 г. на ВАС по адм. д. № 12127/2007 г., 5-членен с-в, and определение № 4293 от 10.04.2008 г. на ВАС по адм. д. № 9178/2007 г., III о.).
16. The relevance of the acquis communautaire and the findings of the Court of Justice of the European Communities in joined cases C 354/03, C355/03 and C-484/03, Optigen Ltd (C-354/03), Fulcrum Electronics Ltd (C-355/03) and Bond House Systems Ltd (C 484/03) v Commissioners of Customs & Excise and in joined Cases C 439/04 and C-440/04, Axel Kittel v Belgian State (C-439/04) and Belgian State v Recolta Recycling SPRL (C-440/04) (ECR 2006, page I 06161) have also been summarised in the case of Bulves AD (§§ 29 32, cited above).