ITEMID: 001-68175
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PARTIDUL COMUNISTILOR (NEPECERISTI) AND UNGUREANU v. ROMANIA [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
TEXT: 9. The first applicant is a political group which was refused registration as a political party in a judgment delivered by the Bucharest Court of Appeal on 28 August 1996. The second applicant is its chairman.
10. On 23 March 1996 the PCN was founded at a national conference chaired by the second applicant, at which its constitution and political programme were adopted. The relevant parts of the constitution read as follows:
“The PCN shall respect national sovereignty, the territorial integrity of the State, its legal order and the principles of democracy. None of its members shall defame the country and the nation, promote war and national, racial, class or religious hatred, encourage discrimination, territorial separatism or public violence, or engage in obscene and immoral activities.
The PCN is a free association of citizens who support political pluralism, uphold the principles of a democratic law-based State and strive to defend their own interests without denying those of others.
Aims
Article 1: The PCN shall express, represent and defend the political interests of the workers, without any distinction based on ethnic origin, sex, age, profession, belief or opinions. 'Workers' means all those who earn their living by working, regardless of activity ...
With a view to ensuring a constant increase in workers' living standards, the PCN shall act within the law, using any means lawfully available to all political parties, to gain political power in order to establish a humane and democratic society. ...
Article 20: The PCN is not the successor of the former Romanian Communist Party, with which it has no connection; it represents the continuation of the resistance against the Communist Party prior to 1989. Being founded by and composed of persons who were not members of the former Communist Party, the PCN emphasises that none of the qualities with which the former Communist Party was credited, or the criticisms that party aroused, should be attributed to it.”
11. In its political programme, adopted on 23 March 1996, the PCN stated that its aims were to defend workers' interests and to adhere to the essence of communist doctrine, based on the following fundamental principles: non-exploitation of certain persons by others or by the State; social justice based on labour and proper qualitative competition; and genuine democracy capable of securing the rights of the majority through free elections in which all political tendencies should be allowed to take part. It deplored what it called the antisocial and anti-working-class direction in which Romanian society had moved since the overthrow of the previous regime in 1989, and the country's transformation into a “colony of the European and global neo-colonialist empires”. The programme also contained the following political ideas:
“The thesis underlying all policy and all doctrine is that the main advantage in politics is number. Those who are greatest in number are always right, irrespective of the way they think or act, and this is constantly being borne out, as, for example, on 22 December 1989 when the anti-working-class, antisocial and antinational counter-revolution emerged victorious in several European countries.
The starting-point of all workers' action has been the desire to change what is evil; in practice, only what is good has changed, and almost completely. What do we mean by good? ... During its years of socio-economic practice in the territory of former Dacia[], socialism achieved goals for the masses – despite the errors, excesses, failings and abuses on the part of the former Communist Party bourgeoisie – which workers cannot abandon or forget: the highest material and spiritual living standards in history; the highest level of culture and civilisation in history ...; the broadest and most extensive democratic legal framework ...
The PCN is a workers' revolutionary political group that acts in an organised, conscious manner within the constitutional framework to eradicate the effects of the counter-revolution and to resume building the most humane and democratic society ever known – socialism. Regardless of its position in relation to the other political forces, [that is, whether it is] involved in the exercise of power and the administration of the State, the PCN will strive to attain such goals as may ensure the protection of the interests of the masses.”
12. On 4 April 1996 the second applicant, as the PCN's representative, applied to the Bucharest County Court to enter it in the special register for political parties.
13. By a decision of 19 April 1996, the court refused the application as being ill-founded. The relevant passages of the reasoning of the decision read as follows:
“In support of the application to register the party, a number of documents have been filed: a list of the party leaders, a list of its founder members, the constitution governing its organisation and functioning, its political programme, the lease for its headquarters, evidence of its financial resources and its constitutive instrument, namely the minutes of the national conference held on 23 March 1996.
It appears from an examination of the documents in the file that the party's constitution, in the chapter setting out its aims, ... states that it strives to gain political power in order to establish a humane and democratic society.
It therefore follows from its constitution and political programme that the party pursues the aim of establishing a humane State based on communist doctrine, which would imply that the constitutional and legal order in place since 1989 is inhumane and not founded on genuine democracy.
The party is therefore in breach of Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989, which provides that 'the aims of political parties must be based on respect for sovereignty, and that the means employed to achieve them must be in accordance with Romania's constitutional and legal order'.”
14. On 6 July 1994 the applicant appealed against that decision to the Bucharest Court of Appeal. In a judgment delivered on 28 August 1996, the Court of Appeal dismissed the appeal on the ground that the assessment made in the decision had been correct. It finalised the text of the judgment on 21 October 1996 and sent it to the Bucharest County Court to be archived. The second applicant states that he learned of the reasons for the judgment on 13 November 1996. The relevant paragraph of the reasoning reads as follows:
“As to the final ground of appeal, concerning the merits of the case, the first-instance court was correct in considering the [PCN's] constitution to be in breach of Legislative Decree no. 8/1989 with regard to the country's constitutional and legal order. Accordingly, the Court dismisses the complaint as being ill-founded.”
15. On 28 May 1997 the Procurator-General of Romania informed the second applicant that he could see no reason to lodge an application (recurs în anulare) to have the judgment of 28 August 1996 quashed.
16. The second applicant lodged an application to set aside (contestaţie în anulare), which the Bucharest County Court dismissed as being out of time on 5 December 1997.
17. After 1997 the second applicant continued to express his political opinions in the newspaper Pentru socialism (“For Socialism”), of which he was the editor. On 13 August 1998 he published an article entitled “The communist manifesto”, which proclaimed his attachment to communist doctrine and criticised both the direction taken by the Communist Party leaders before 1989 and the policy pursued by successive governments since then. A large number of articles which the second applicant published in the newspaper in 1998 and 1999 contained slogans such as “Workers of all countries, unite!”, “The struggle continues!” and “Long live socialism!”. In one article he stated that, once in power, he would “accept only those who accept[ed him]”.
18. In 2000 the second applicant published a book, The anti-socialist, anti-working-class and antinational counter-revolution, in which he replied to about a hundred questions from a journalist. In December 2003 he sent the Court a copy of the book. In it he set out his political vision, outlining his commitment to communist doctrine and the working classes and describing Marx as the greatest political philosopher of all humanity; he also criticised both the authorities' gradual betrayal, in his view, of communist ideals prior to 1989 – while praising former President Ceausescu – and the policy pursued by those in power after that date. He stated that, unlike the pre-1989 communist regime, he was in favour of free, multi-party elections in which all the political forces could take part, except extremists and fascists, and voiced his support for a form of political competition based on respect for others and their political views. Among other things, he referred to the difficulties encountered since 1989 in finding sufficient members to register the PCN and to the fact that the party was not well known in Romania, particularly among those for whom it was primarily intended, the peasants and workers.
19. Arguing that socialism had in the past been the subject of frequent “attacks” designed to destroy it, examples being the events in 1968 in Prague, 1978 in Poland and 1985 and 1993 in Russia, the second applicant stated in conclusion to his reply to a question from the journalist:
“As long as there are still capitalist, imperialist and religious brutes in the world, whose main aim is to enslave others, the conditions for further internal and external activities against socialism will continue to exist, ... [socialism] being a fundamental idea and belief of the people; remember the endless succession of attacks against the forces of good in fairy tales ... These attacks will not cease until the hideous and parasitic farmyard fowls, who commit crimes in all places and at all times, have been destroyed.”
20. He stated in the book that the political system would in time become structured according to social class, that the PCN sought to represent the interests of the peasants and workers, and that a democratic parliament should reflect the country's social structure, with the two classes in question holding the vast majority of seats according to their share of the population.
21. Arguing that capitalism encouraged theft, the second applicant stated in the book that the masses, who despised wealth, would move away from the post-1989 political parties and, over about fifty years, towards the PCN.
22. With regard to property, he stated that it was for the people to decide whether privatisation was beneficial and that “the rich” could enjoy possessions they had obtained by lawful means. As to the restitution of property that had passed into State ownership during the communist regime, the second applicant considered that property confiscated for political reasons should be returned, although entire buildings and factories should not, because the nationalisation measures carried out after 1947-48 had been acts of social justice.
23. At the material time the relevant provisions of Legislative Decree no. 8/1989 on the registration and operation of political parties, which was published in the Official Gazette on 31 December 1989 and repealed by the Political Parties Act (Law no. 27 of 26 April 1996), read as follows:
“Political parties may be freely founded in Romania, with the exception of fascist parties or those that spread ideas contrary to the constitutional and legal order. No other objection, whether based on race, religion, nationality, level of culture, sex or political views, may hinder the formation and operation of political parties ...”
“...
3. The aims of political parties and public-interest organisations shall be based on respect for the nation's sovereignty, independence and territorial integrity and for democracy, in order to ensure the exercise of citizens' rights and freedoms and to uphold the dignity of the Romanian nation.
4. The means employed to achieve the aims of political parties and public-interest organisations shall be in accordance with Romania's constitutional and legal order.”
“Political parties shall be registered with the Bucharest County Court, which shall give a decision within five days as to whether they have been lawfully constituted. An appeal against the decision of the Bucharest County Court shall lie to the Supreme Court of Justice ...”
24. Article 37 § 2 of the Constitution provides:
“Any political parties or organisations which, through their aims or activities, campaign against political pluralism, the principles of the rule of law, or the sovereignty, integrity or independence of Romania, shall be unconstitutional ...”
25. Section 3 of the National Security Act (Law no. 51/1991) provides:
“The following shall constitute a threat to the national security of Romania: ... (h) the act of provoking, organising, carrying out or supporting, by whatever means, any totalitarian or extremist action inspired by communism, fascism, ... racism, anti-Semitism, revisionism or separatism that might jeopardise in any manner the unity and territorial integrity of Romania; and the act of encouraging activities that might undermine the rule of law.”
Section 13 provides that, in cases referred to in section 3 above, the public prosecutor may allow certain measures to be taken, such as phone-tapping, in order to obtain further information about the acts in question.
By section 19, the formation and organisation of intelligence networks capable of undermining national security is an offence punishable by two to seven years' imprisonment.
VIOLATED_ARTICLES: 11


ITEMID: 001-22736
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DAL AND ÖZEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicants, Özkan Dal and Erkan Özen, are Turkish nationals, who were born in 1970 and 1963 respectively and live in Ankara and Çanakkale. They were represented before the Court by Mr Tevfik Demirel, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicants from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicants:
The first applicant, a non-commissioned officer, was a member of the Menzil group, which was attached to the Nakşibendi sect. He established contacts with officers O.A and M.Y who were involved in the activities of the sect. He had antisocial character and his wife carried an Islamic scarf.
The second applicant, also a non-commissioned officer, was a member of the Işıkcı sect. He had an antisocial character and his wife carried an Islamic scarf. He avoided participating in social gatherings in military premises.
His superiors considered the applicant as an insubordinate and undisciplined soldier. He was sentenced to six days’ confinement for being absent when called out and two days’ confinement for being absent in a social gathering. He received a warning for being undisciplined.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicants had breached military discipline and that they should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-106649
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FURTSEV v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Volodymyr Furtsev, is a Ukrainian national who was born in 1949 and lives in Sokolov. He was represented before the Court by Mr L. Zscherp, a lawyer practising in Plzeň. The Czech Government (“the Government”) were represented by their Agent, Mr V. A. Schorm, of the Ministry of Justice. The Government of Ukraine were invited to state whether they wished to submit written comments on the case (Article 36 of the Rules of Court). They did not avail themselves of that possibility.
Before moving to the Czech Republic on 22 July 1999, the applicant had lived and worked in Ukraine as a professional soldier for twenty years and then as an entrepreneur. He had received a military pension from Ukraine from 1991 to 2002. Afterwards, he had received a military pension from the Czech Republic until 8 August 2004. The applicant was employed in the Czech Republic from 1 June to 7 November 2003. From 20 December 2002 to 31 May 2003 and then from 8 November 2003 to 31 January 2004 he was registered as unemployed.
On 5 January 2005 the Czech Military Social Authority (Vojenský úřad sociálního zabezpečení) awarded him an old-age pension of 6,991 Czech korunas (CZK) per month (290 euros (EUR)) starting from 8 August 2004. The amount was calculated on the basis of the applicant’s wage in the Czech Republic in 2003 together with an unspecified notional amount determined by the Czech Ministry of Defence for the calculation of his military pension. On 3 March 2005 the Ministry of Defence upheld that decision.
The applicant lodged a request for judicial review arguing, inter alia, that he had been discriminated against on account of his employment in the Czech Republic because had he never worked in the country, his pension would be calculated based on section 7 (2) of the Czech-Ukrainian Agreement on the Application of the Treaty on Social Security (“the Agreement”). In that case it would reach CZK 8,147 (EUR 340). He further argued that he had been discriminated against because his income in Ukraine had not been taken into account at all when calculating his pension.
On 25 January 2006 the Plzeň Regional Court (krajský soud) upheld the decisions of the administrative authorities, holding that they had correctly applied the Czech-Ukrainian Treaty on Social Security (“Treaty”), the Agreement and the relevant law.
On 23 May 2007 the Supreme Administrative Court (Nejvyšší správní soud) dismissed the applicant’s appeal on points of law (dovolání). It rejected, inter alia, the applicant’s claim of discrimination, holding that the rule by which the income in another country cannot be taken into account when calculating a pension, was justified by technical and practical difficulties and it also protected persons whose pension would be lowered by taking into account low income abroad. The court further stated that it did not consider that any discrimination arose from the fact that section 7 (2) of the Agreement was not applicable in the applicant’s case.
On 9 October 2009 the Constitutional Court (Ústavní soud) rejected the applicant’s constitutional appeal as manifestly ill-founded, agreeing with the ordinary courts.
The entitlement to and the calculation of old-age pensions in the Czech Republic of persons having arrived from Ukraine is governed by the bilateral Czech-Ukrainian Treaty on Social Security of 4 July 2001 (“the Treaty”) and the subsequent Agreement on the Application of the Treaty on Social Security of 25 June 2003 (“the Agreement”) .
Under Article 18 of the Treaty a State Party undertakes to calculate the average wage or the basis for calculating the pension only on the basis of the insurance years earned under the law of that State Party.
Under section 7(1) of the Agreement, when calculating the pension under Article 18 of the Treaty, no account is taken of any income earned in the other State Party. Section 7(2) stipulates, however, that if the calculation of a pension is not possible because the person has acquired insurance periods only in the other State Party, the calculation in the Czech Republic shall be based on the average Czech wage two years before the date the pension is awarded.
Under the Pension Act (no. 155/1995), the amount of pension is calculated on the basis of the person’s contribution to the social security scheme during thirty years before the date the pension is awarded. However, certain periods are disregarded, including any periods when the person was unemployed, was receiving another pension or the amount of income cannot be established. The minimum old age pension under Section 33, irrespective of any prior contribution to the scheme, is currently CZK 3,000 (EUR 125).
Act no. 589/1992 determines the subjects required to contribute to the social security scheme and amounts which have to be paid. Section 3 sets out a list of persons who have to pay social security contributions. It includes, inter alia, employees, self-employed persons, persons in various paid elected State offices, civil servants, and shareholders and managers of corporations if they are remunerated for their work.


ITEMID: 001-99863
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MLADOSCHOVITZ v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants were born in 1998 and 2002 respectively and live in Linz.
6. The applicants have a maintenance claim against their father Mr W (“the debtor”). Apparently the debtor fell into arrears with maintenance payments (Unterhaltsrückstand) amounting to the sum of EUR 3,006. The applicants applied for enforcement of their payment orders to the competent District Court (Bezirksgericht) in Enns. The enforcement order (Exekutionsbewilligung) provided for the sale of the debtor's movable property (Fahrnisexekution) and granted the applicants a lien on outstanding claims which the debtor held against his own debtors (Forderungsexekution).
7. On 21 July 2006 the debtor lodged an action under Section 35 of the Enforcement Act (Oppositionsklage) to have the claim underlying the enforcement order dismissed and also applied to postpone enforcement (Aufschiebung der Exekution) until a decision on his action had been reached. In support of his case to have the enforcement order set aside, the debtor stated that during the period of time in which he had not made maintenance payments, the applicants had been living with him and he had paid all their living expenses.
8. In support of his application to postpone enforcement regarding the sale of movable property, the debtor claimed he would risk losing his property rights over the objects seized for enforcement. He also argued that if a lien against outstanding claims from his own debtors was enforced, the recovery of the money from the applicants, who did not have any funds, would be nearly impossible if the enforcement order was, in fact, set aside.
9. On 27 July 2006 the District Court, without hearing the applicants, allowed the postponement of enforcement by granting the applicants a lien on outstanding claims if a deposit of EUR 3,500 was lodged with the court but the postponement of the sale of the debtor's movable property was not granted. On 2 August 2006 the debtor appealed, claiming that the deposit was too high. The applicants were not notified of the appeal.
10. The Steyr Regional Court (Landesgericht) quashed the decision, ordering both kinds of enforcement to be postponed until the decision on the action under Section 35 of the Enforcement Act was rendered and re-setting the deposit at EUR 1,000. The applicants were not heard in the proceedings. It held that an appeal on points of law to the Supreme Court was not admissible. The applicants, having lost the case on postponement of the enforcement, were obliged to reimburse legal costs amounting to EUR 305.40 to the debtor.
11. The enforcement of court orders is set down in the Enforcement Act (Exekutionsordnung). In principle, an application for an enforcement order (Exekutionsbewilligung) can only be made when the civil right to be enforced is established with final effect; such a decision establishing a civil right is called a fiat of execution (Exekutionstitel).
12. If after a fiat of execution has been passed, new facts emerge which vitiate or weaken the enforceable claim, the debtor can bring an action under Section 35 of the Enforcement Act. If successful, such an action will set aside the fiat of execution. In the proceedings, the Code on Civil Procedure (Zivilprozeßordnung) will apply.
13. If an action is brought under Section 35 of the Enforcement Act, enforcement may also be postponed according to Section 42 § 1 no. 5 of the Enforcement Act, until a final decision is taken under Section 35 of the Enforcement Act. The postponement of enforcement is taken in the form of a decision (Beschluß). According to Section 44 § 2 no. 1 of the Enforcement Act, such postponement is to be subject to the payment of a deposit by the debtor seeking to have the claim underlying the fiat of execution set aside unless the debtor can show unobjectionable documents supporting his action under Section 35 of the Enforcement Act. The deposit serves to safeguard the creditor(s) against damage resulting from delay in the enforcement of the claim.
14. According to Austrian jurisprudence, the amount of the deposit is to be determined according to the likelihood of a successful outcome to the action under Section 35 of the Enforcement Act, without taking into account the merits of the action under Section 35.
15. Section 78 of the Enforcement Act stipulates that, unless provided otherwise, the general provisions of the Code of Civil Procedure (Zivilprozessordnung) are applicable to enforcement proceedings.
16. As a general principle, the opponent does not have the right to be heard if the other party lodges an appeal against a decision (Rekurs) other than those decisions set out in Section 521a of the Code of Civil Procedure.
17. The legal costs have to be borne by the party who loses the case; in circumstances in which both parties partly lose and partly win a case, the costs will be split proportionately, with the court enjoying a narrow margin of appreciation (see Sections 40 to 43 of the Code of Civil Procedure).
18. While certain court fees are payable upon application for an enforcement order and the bringing of an action under Section 35 of the Enforcement Act, no such fees are payable for a motion to postpone enforcement. However, appeals against decisions (Rekurs) have to be signed by a lawyer in principle, who is entitled to remuneration.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75317
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CELEJEWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1963 and is at present detained in the Częstochowa Detention Centre.
5. On 7 March 2002 the applicant was arrested by the police.
6. On 7 March 2002 the Kraków District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed several crimes including kidnapping for ransom and extorting protection money. Later, six other persons were detained and charged in connection with the same set of crimes.
7. On 22 May 2002 the Kraków Regional Court (Sąd Okręgowy) prolonged the applicant’s detention until 28 August 2002 considering that the strong suspicion against him of having committed the serious crimes with which he had been charged and the risk of going into hiding and tampering with evidence justified holding him in custody.
8. The applicant’s detention on remand was prolonged on 13 August and 25 November 2002.
9. On 19 February 2003 the Katowice Court of Appeal (Sąd Apelacyjny) prolonged the applicant’s detention on the grounds that there was a strong suspicion that he had committed the crimes in question, that a severe sentence of imprisonment might be imposed on him and that keeping him in custody was necessary to secure the proper course of the investigation.
10. On 7 May 2003 the Katowice Court of Appeal further prolonged the applicant’s detention considering that the grounds originally given for remanding him in custody were still valid.
11. On 14 August 2003 the Katowice Regional Prosecutor (Prokurator Okręgowy) filed a bill of indictment against the applicant and nine other persons that comprised 41 charges. The applicant was indicted on charges of having committed in total thirteen offences, including three offences while acting in an organised group.
12. The applicant’s detention was prolonged by the Katowice Regional Court on 25 August 2003. The court reiterated the grounds given previously for keeping him in custody and added:
“The strong probability that severe imprisonment may be imposed on [the applicant] creates a legal presumption that [the applicant and other accused] will obstruct the criminal proceedings.”...
13. On an unspecified date the case was transferred to the Częstochowa Regional Court.
14. On 10 February 2004 the Częstochowa Regional Court made a request under Article 263 § 4 of the Code of Criminal Procedure in which it asked the Katowice Court of Appeal to extend the applicant’s detention.
15. On 18 February 2004 the Katowice Court of Appeal allowed the request submitted by the Regional Court and prolonged the applicant’s detention until 31 October 2004. In addition to the grounds previously given – the reasonable suspicion of his having committed the offences in question and the risk of a severe sentence – the court found that the complexity of the case justified the applicant’s detention. The applicant’s appeal was dismissed on 1 April 2004.
16. On 2 June 2004 the Katowice District Court decided to detain the applicant on remand in connection with another set of criminal proceedings against him. Subsequently, the applicant was indicted in this set of proceedings. The applicant’s detention ordered in this set of proceedings had been prolonged on several occasions and the applicant remains detained on the order of this court.
17. On 22 October 2004 and 20 May 2005 the Katowice Court of Appeal further prolonged the applicant’s pre-trial detention. In the latter decision the court examined the course of the trial and found that there were no delays and that the trial court had proceeded according to the schedule. The court pointed to the particular complexity of the case involving an organised group charged with numerous offences and the substantial amount of adduced evidence. On 16 June 2005 the applicant’s appeal against this decision was dismissed.
18. On 26 October 2005 the Katowice Court of Appeal allowed another application of the Częstochowa Regional Court and prolonged the applicant’s detention until 31 December 2005. The court reiterated the reasons invoked on the previous occasions.
19. The applicant submits that he was not informed about the majority of the scheduled court sessions at which his detention on remand was prolonged, therefore he could not attend them.
20. On 20 December 2005 the Częstochowa Regional Court gave judgment. The applicant was convicted and sentenced to fourteen years’ imprisonment.
21. It appears that he lodged an appeal against the judgment and that the appellate proceedings are pending.
22. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, read:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
23. Article 249 § 3 reads:
“Before deciding on the application of the preventive measures, the court or the prosecutor shall hear the person charged with offence... The lawyer of the detainee should be allowed to attend the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.”
Article 249 § 5 provides:
“ The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-72578
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BERESTOVYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Damage - claim dismissed
TEXT: 4. The applicant was born in 1942 and lives in the town of Chervonograd, Lviv region, Ukraine.
5. On 8 February 2001 the Chervonogradskyy Town Court of the Lviv Region awarded the applicant UAH 23,351, UAH 4,553.56 and UAH 50 in compensation for pecuniary and non-pecuniary damage, and for legal aid respectively, against the State Mining Enterprise No. 7 “Velykomostivska”.
6. In 2001 – 2003 the judgment was enforced by instalments, the final amount being paid on 14 February 2003.
7. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-119046
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF PETUKHOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Lawful order of a court);Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1937 and lives in Moscow.
6. On 13 December 2005 she complained to the police about her neighbours. She stated that a “gang” of neighbours had damaged her property and had used “psychotronic generators” in their apartments and cars to cause damage to her health and mind. The applicant also mentioned in the complaint that she had in the past made submissions to the Federal Security Service, the President of the Russian Federation and the State Duma, which had been unsuccessful.
7. On 20 January 2006 a police officer took statements from the applicant’s neighbours, who stated that she had behaved unreasonably, walked naked on the streets, shouted at people and accused them of various illegal activities.
8. The Psychoneurological Outpatient Clinic no. 20 of Moscow (“the POC”) was requested by the police on 20 January 2006 to carry out a psychiatric examination of the applicant.
9. On 14 July 2006 a resident psychiatrist at the POC (Ms K.) issued a report confirming the need for a psychiatric examination of the applicant relying on the evidence obtained seven months before. The report stated that the nature of the applicant’s complaints to various authorities gave reason to believe that they were brought about by a pathology associated with a psychiatric disorder. The psychiatrist concluded that an examination of the applicant was necessary, because progressive development of the disorder might cause a deterioration in her health and aggressive behaviour towards others. The report was certified by the head physician of the POC. It is not clear whether the psychiatrist examined the applicant in person before issuing the report.
10. On the same day Ms K. filed an application with the Kuzminskiy District Court of Moscow (“the District Court”) seeking authorisation for an involuntary psychiatric examination under section 23, subsection 4 (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of the Citizens’ Rights Related to Its Administration 1992 (“the Psychiatric Assistance Act”). The application stated that there was evidence of “a psychiatric disorder resulting in significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance”. It also indicated that on 20 January 2006, during a police interview, the applicant had refused to consent to undergo a voluntary psychiatric examination. The application was also certified by the head physician of the POC.
11. Evidence attached to the application included the above-mentioned psychiatrist’s report of 14 July 2006, the applicant’s complaint to the police of 13 December 2005, the police officer’s request of 20 January 2006, and the applicant’s neighbours’ statements of 20 January 2006.
12. The application was received by the District Court on 27 July 2006 and a hearing was scheduled for 18 August 2006. On 14 August 2006 the court sent a summons to the applicant by registered letter, but that was later returned to the sender after several unsuccessful delivery attempts.
13. On 18 August 2006 the District Court considered the psychiatrist’s application for involuntary psychiatric examination of the applicant. Neither the applicant nor the representative of the POC were present at the hearing. It was noted in the court transcript and decision that both parties had been duly notified of the hearing but that neither had chosen to appear in court. The District Court authorised a psychiatric examination of the applicant without her consent and ordered it to be carried out either at her home or at the POC. It reasoned as follows:
“The court, having examined the evidence, namely the report of the POC on the need for a psychiatric examination, considers the application well-founded ... for the following reasons.
In accordance with Section 23, subsection 4 of the Psychiatric Assistance Act 1992 ... a psychiatric examination of a person may be carried out without his or his legal representative’s consent when the evidence available suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes feebleness, i.e. the inability to autonomously satisfy one’s basic needs, or significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance.
The said condition ... has been proven by the POC’s medical report, a copy of the applicant’s complaint to [the police] concerning the use of various types of secret weapons, a copy of a statement by Ms Sh. (Ms Petukhova’s neighbour), who stated that Ms Petukhova behaved unreasonably, walked naked on the streets and shouted at people, as well as by other evidence confirming the need for a psychiatric examination of Ms Petukhova.”
14. The Court has received no evidence to suggest that the applicant was either notified of the decision or provided with a copy.
15. More than three months later, on 1 December 2006, the POC sent a request to the police seeking their assistance in the applicant’s apprehension in order to prevent her from potentially behaving aggressively towards others. The request stated that the clinic was unable to ensure that the applicant would attend an examination.
16. On the same day at around 10 a.m. three policemen visited the applicant’s flat and took her by force to a police station. Having spent four hours there she was transferred by ambulance to Psychiatric Hospital no. 13 (“the PH-13”). At 2.30 p.m. on arrival at the hospital, the applicant was informed that she had been brought there under the authorisation of the District Court. It is not clear whether she was allowed to read the court order.
17. Later that day at 4.30 p.m. the applicant was examined by a medical counselling panel and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome.
18. After her release from the hospital on 4 December 2006 the applicant requested the District Court to provide her with a copy of its decision of 18 August 2006 authorising her involuntary psychiatric examination.
19. On 18 December 2006 the applicant appealed against that decision. She argued, inter alia, that the District Court had examined the case in her absence and that she had not been duly notified of the hearing; that the decision did not contain reasons and that it was based on a single psychiatric report which was accepted by the court without scrutiny.
20. On 15 February 2007 the Moscow City Court after hearing the applicant and her representative dismissed the applicant’s appeal and upheld the authorisation for an involuntary psychiatric examination. The court reasoned that the applicant’s presence at the District Court hearing was not required under Article 306 of the Code of Civil Procedure. Furthermore, it stated that the psychiatric report was well-founded because it contained details of the applicant’s actions giving grounds to presume the existence of a psychiatric disorder.
21. The applicant applied for supervisory review, but to no avail.
22. The applicant lodged a constitutional complaint about Article 306 of the Code of Civil Procedure. She alleged that this legal provision did not guarantee her a right to be present during the hearing of an application for involuntary psychiatric examination, since it specified that such applications shall be considered by “a single judge”.
23. On 18 December 2007 the Constitutional Court of the Russian Federation dismissed the applicant’s complaint. It argued that the term “single judge” for the purposes of Article 306 of the Code of Civil Procedure referred only to the composition of a court and did not preclude the parties’ participation in a hearing.
24. On 1 December 2006 after the applicant was brought to the hospital and diagnosed with paranoid schizophrenia aggravated by paranoid syndrome (see paragraphs 16-17 above), the medical panel of the PH-13 concluded that involuntary hospitalisation of the applicant was required under section 29 of the Psychiatric Assistance Act 1992 in order to prevent potentially significant damage to her health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance. The application for involuntary hospitalisation was filed with the Lyubinskiy District Court of Moscow on the same day.
25. On 4 December 2006 the applicant was discharged from PH-13 and advised to follow an outpatient treatment programme. Later that day the deputy head physician of PH-13 requested the Lyubinskiy District Court of Moscow to discontinue the proceedings concerning the applicant’s involuntary hospitalisation in the light of her discharge from the facility. The request was granted and the proceedings discontinued on 6 December 2006.
26. The applicant did not initiate any proceedings for review of her hospitalisation.
27. Article 306 of the Code of Civil Procedure of the Russian Federation of 2002, which entered into force on 1 February 2003, regulates the procedure for the judicial authorisation of involuntary psychiatric examinations. It reads as follows:
“An application for involuntary psychiatric examination of a citizen shall be lodged by a psychiatrist with the court at the place of the citizen’s place of residence. A reasoned report by a psychiatrist on the need to conduct such an examination and other evidence shall be attached to the application. Within three days of the application being filed, a single judge shall consider the application for involuntary psychiatric examination and shall decide to either authorise the involuntary psychiatric examination of a citizen or refuse [it].”
28. The Psychiatric Assistance Act 1992 in section 5 subsection 2 provides a list of the rights of persons suffering from a psychiatric disorder, including the right to be informed of their rights, the nature of their disorder and available treatment, the right to the least restrictive methods of treatment, and the right to the assistance of a lawyer, legal representative or other person. Section 5 subsection 3 prohibits restrictions on the rights of persons suffering from a psychiatric disorder solely on the basis of their diagnosis or their admission to a specialised facility.
29. Sections 23 and 25 of the Act regulate the procedure for conducting involuntary psychiatric examinations. The relevant parts read as follows:
“(1) A psychiatric examination shall be conducted in order to determine whether the examinee suffers from a psychiatric disorder and needs psychiatric assistance, and to determine the type of such assistance.
(2) A psychiatric examination, as well as a prophylactic examination, shall be conducted at the examinee’s request and with his consent ...
...
(4) A psychiatric examination of a person may be carried out without his or his legal representative’s consent in cases when the available evidence suggests that the examinee performs acts giving reason to presume the existence of a severe psychiatric disorder which causes:
...
c) significant damage to health due to the deterioration of a psychiatric condition in the absence of psychiatric assistance ...”
“...
(4) In cases when a person does not present an immediate danger to himself or others, the application for a psychiatric examination shall be submitted in writing and shall contain detailed information giving reasons for the need for examination and an indication of the refusal by the person or his or her legal representative to consult a psychiatrist. The psychiatrist may request additional information necessary for making the decision.
(5) Having established that the application ... is well-founded the psychiatrist submits to a court at the place of the person’s residence his written reasoned conclusion as to the need of the examination as well as the application for examination and other available materials. The judge gives sanction within three days from receiving all of the materials ...”
30. The Police Act 1991 in section 10 establishes the duties of police in law enforcement. In the relevant part it reads as follows:
“The police in line with assigned tasks shall:
...
(22) deliver to healthcare institutions ... for medical treatment persons refusing to appear, suffering from diseases and presenting danger to themselves and others, and also ... to ensure together with healthcare institutions in cases and under a procedure prescribed by law supervision over persons suffering from mental disorders ... and presenting danger to others ...”
31. In its decision of 10 March 2005 (no. 62-O) interpreting the Psychiatric Assistance Act 1992, the Constitutional Court stated that judicial proceedings in cases concerning psychiatric assistance must be adversarial and respect the principle of equality of parties. Consequently, a psychiatric facility lodging an application with a court was under an obligation to provide evidence confirming the information stated in such an application.
32. In the decision of 21 April 2011 (no. 592-O-O) concerning procedural guarantees afforded to individuals subjected to involuntary psychiatric examination, the Constitutional Court concluded that such guarantees were essentially the same as those afforded in the course of involuntary hospitalisation and that they included the duty of the courts to verify all the evidence presented to them.
33. Article 304 of the Code of Civil Procedure of 2002 establishes the procedural guarantees afforded to a person placed in a psychiatric facility. In the relevant part it reads as follows:
“1. An application for involuntary placement to a psychiatric facility, or extension of a period of involuntary placement, of a citizen who is suffering from a psychiatric disorder shall be considered by a judge within five days from the date on which the proceedings were initiated. The court shall hold a hearing in the courtroom or in the psychiatric facility. The citizen has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility.
2. The case shall be considered with the participation of a prosecutor, a representative of the psychiatric facility which applied to the court ... , and the citizen’s representative ... .”
34. Articles 220 and 221 of the Code of Civil Procedure establish the grounds for discontinuation of the proceedings and its consequences. In the relevant part they read as follows:
“The court discontinues the proceedings on the case, if: ...
a plaintiff withdraws his lawsuit and the court accepts the withdrawal ...”
“The proceedings in the case are discontinued by a decision of the court, which states that repeated submission of the lawsuit regarding the dispute between the same parties, on the same matter and the same grounds in not permitted.”
35. Section 7 subsections 1 and 3 of the Act (as in force at the material time) specified that persons suffering from a psychiatric disorder had the right to a representative of their own choosing. The administration of the psychiatric facility had the obligation to ensure the opportunity for the individual to obtain legal representation by a lawyer (except for urgent cases).
36. Section 29 of the Act sets out the following grounds for involuntary placement of a person in a psychiatric facility:
“A person suffering from a mental disorder may be hospitalised at an inpatient psychiatric facility without his or his representative’s consent prior to judicial authorisation only if his medical examination or treatment is not possible outside of an inpatient facility, the mental disorder is severe and causes:
a) a immediate danger to himself or others, or
b) feebleness, i.e. the inability to autonomously satisfy basic needs
c) significant damage to health due to the deterioration or aggravation of the psychiatric condition in the absence of psychiatric assistance.”
37. Section 32 of the Act specifies the procedure for the examination of patients involuntarily placed in a psychiatric facility:
“1. A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Act shall be subject to compulsory examination within 48 hours by a panel of psychiatrists of the hospital, who shall take a decision as to the need for hospitalisation. ...
2. If hospitalisation is considered necessary, the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person’s further confinement in the hospital.”
38. Sections 33-35 set out the procedure for judicial review of applications for the involuntary in-patient treatment persons suffering from a psychiatric disorder:
“1. Involuntary hospitalisation for in-patient psychiatric treatment on the grounds laid down in section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital.
2. An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is confined ...
3. A judge who accepts an application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.”
“1. An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge, on the premises of the court or hospital, within five days of receipt of the application.
2. The person has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility ...”
“1. After examining the application on the merits, the judge shall either grant or refuse it. ... ”
39. On 22 September 2004 the Committee of Ministers adopted Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder. In the relevant part the Recommendation provides:
“2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if:
i. his or her behaviour is strongly suggestive of such a disorder;
ii. his or her condition appears to represent such a risk;
iii. there is no appropriate, less restrictive means of making this determination; and
iv. the opinion of the person concerned has been taken into consideration.”
“1. The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should:
i. take into account the opinion of the person concerned;
ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted ...
4. Involuntary placement, involuntary treatment, or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience, and in accordance with valid and reliable professional standards.”
“1. Persons subject to involuntary placement or involuntary treatment should be promptly informed, verbally and in writing, of their rights and of the remedies open to them ...”
2. They should be informed regularly and appropriately of the reasons for the decision and the criteria for its potential extension or termination.”
“1. In the fulfilment of their legal duties, the police should coordinate their interventions with those of medical and social services, if possible with the consent of the person concerned, if the behaviour of that person is strongly suggestive of mental disorder and represents a significant risk of harm to him or herself or to others.
2. Where other appropriate possibilities are not available the police may be required, in carrying out their duties, to assist in conveying or returning persons subject to involuntary placement to the relevant facility.
3. Members of the police should respect the dignity and human rights of persons with mental disorder. The importance of this duty should be emphasised during training.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-b


ITEMID: 001-75747
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: YEREMENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Lyubov Grigoryevna Yeremenko, is a Russian national who was born in 1949 and lives in Taganrog. She was represented before the Court by Ms I. Trofimova, a lawyer practising in Taganrog. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant moved from Chechnya to the Rostov Region due to military hostilities in Chechnya. She left her flat and other property in Chechnya.
In December 1999 the Rostov Regional administration approved payment of compensation for the lost housing. The compensation was paid to the applicant in March 2001.
The applicant considered that the value of the compensation had significantly decreased because it had taken the administration almost two years to pay it. She sued the Ministry of Finance of the Russian Federation for the damage caused by the delay in payment of the compensation.
On 5 August 2002 the Justice of the Peace of the 2nd Circuit of the Leninskiy District of Rostov-on-Don granted the applicant’s action and awarded her 22,268.31 Russian roubles (RUR, approximately 715 euros).
That judgment was upheld on appeal by the Leninskiy District Court of Rostov-on-Don on 13 September 2002 and the applicant sent a writ of execution to the Ministry of Finance on 23 October 2003.
On 25 December 2004 the Ministry of Finance transferred the judgment debt to the applicant’s bank account. However, five days later, the bank returned the sum to the Ministry of Finance because the applicant had closed her account.
On 23 March 2005 the applicant sent a registered letter to the Ministry of Finance informing it of her new bank account. As it follows from the acknowledgment of receipt, the applicant’s letter reached the Ministry of Finance on 4 April 2005.
On 16 August 2005 the judgement debt was paid to the applicant.
In August 2005 the applicant sued the Ministry of Finance for RUR 11,377.85 (approximately EUR 326) as compensation for the damage caused by depreciation of the value of the judgment debt as a result of non-enforcement from July 2002 to July 2005.
On 19 September 2005 the Justice of the Peace of the 2nd Circuit of the Leninskiy District of Rostov-on-Don granted the applicant’s action and awarded her RUR 10,169.71 (approximately EUR 293).
The judgment of 19 September 2005 was not appealed against and became final on 30 September 2005. Three days later the Leninskiy District Court issued the applicant with a writ of execution.
On 11 October 2005 the applicant submitted the writ of execution to the Ministry of Finance and on 24 December 2005 she received the money.


ITEMID: 001-60953
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF DJAVIT AN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (State responsibility, non-exhaustion of domestic remedies);Not necessary to examine Art. 10;Violation of Art. 11;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Lucius Caflisch
TEXT: 8. The applicant is a Cypriot national of Turkish origin who was born in 1950 and is a paediatrician residing in Nicosia, north of the “green line”.
9. In addition to being a critic of the Turkish-Cypriot authorities and of the Turkish military presence in the northern part of Cyprus, which he defines as “occupation”, the applicant is the “Turkish-Cypriot coordinator” of the Movement for an Independent and Federal Cyprus, an unregistered association of Turkish and Greek Cypriots founded in 1989 in Nicosia. The movement has a Turkish-Cypriot coordinating committee in the northern part of the island and a Greek-Cypriot coordinating committee in the southern part. The purpose of the Movement is to develop close relations between the two communities. To that end, it organises bi-communal meetings of a political, cultural, medical or social character.
10. The applicant is normally unable to obtain a permit from the Turkish and Turkish-Cypriot authorities to visit the “buffer-zone” or the southern part of the island in order to participate in various bi-communal meetings. Thus, between 8 March 1992 and 14 April 1998, the date of the Commission's admissibility decision, only 6 out of 46 requests for such permits were granted. Further, between 18 April 1998 and 16 October 1999 two more permits were refused, one of which, however, was granted later on. The requests that were turned down concerned, inter alia, a UNFICYP (United Nations Peacekeeping Force in Cyprus) Spring Fair at Nicosia International Airport in May 1992, a bi-communal medical seminar organised by the UNHCR (United Nations High Commissioner for Refugees) in June 1992, a meeting of the coordinating committee for the “Movement for an Independent and Federal Cyprus” at the Ledra Palace in October 1992 as well as two meetings for the reorganisation of this committee in April and July 1994, a seminar on cardiology organised by the UNHCR in June 1994, a general meeting of the New Cyprus Association in December 1997 and a number of receptions organised by the German embassy in Nicosia. Moreover, in May 1992 the above-mentioned authorities refused to allow Greek Cypriots to attend a meeting organised by the applicant in the northern part of the island.
11. The applicant claimed that the Council of Ministers of the “Turkish Republic of Northern Cyprus” (the “TRNC”) had adopted a decision prohibiting him from contacting Greek Cypriots. Reference to this decision was allegedly made in a letter dated 3 February 1992 by the Health Minister of the “TRNC” to the applicant, which reads as follows:
“According to the information our Ministry has received, you were informed by the Ministry of Foreign Affairs and Defence orally and this has been a decision of the government and we have nothing to add in our capacity as the Ministry.”
12. On 7 May 1992 the applicant wrote to the Prime Minister of the “TRNC” requesting to be informed of the content of the Council of Ministers' decision referred to in the above-mentioned letter, but received no reply.
13. On 29 May 1992 he sent a letter of protest to the Foreign Minister of Turkey, which has also remained unanswered.
14. On 18 May 1994 the Directorate of Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence of the “TRNC” informed the applicant that “the permission requested by [his] letter of 19 April 1994 was refused for security reasons, in the public interest and because [he had] made propaganda against the State”.
15. On 24 May 1994 the applicant wrote to the Deputy Prime Minister of the “TRNC”, asking whether the previous decision of the Council of Ministers was still in force since he was not allowed to visit the buffer-zone or cross over into Nicosia. He received no answer and on 19 July 1994 he sent a reminder, which also remained unanswered. However, the applicant claimed that, in an article published in a newspaper on 18 March 1996, the former Deputy Prime Minister (to whom he had sent the above-mentioned letters) had stated that when he had held this position he had requested an explanation by the Prime Minister as well as the President of the “TRNC” in relation to the refusal of permits, but had not received an answer.
VIOLATED_ARTICLES: 11
13


ITEMID: 001-89025
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SHYTIK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Ms Klara Nikolayevna Shytik, is a Ukrainian national who was born in 1937 and lives in Bratske, the Mykolayiv Region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 2001 the applicant instituted civil proceedings against Mrs G.N., her neighbour, seeking damages for the latter's having hit her on the head with a stick and caused her light bodily injuries.
At the hearing the court examined the parties and four witnesses.
The applicant argued that the defendant had started hitting her in response to a reprimand for allowing her turkeys to graze in the applicant's garden. The defendant acknowledged having had an argument with the applicant, but denied hitting her. She submitted that, on the contrary, the applicant had hit and scratched her, and had torn her jacket.
One witness, Mrs T.N., claimed to have seen the defendant hitting the applicant on the head. Another witness, Mrs G.P., claimed that it had been the applicant who had hit the defendant with a shovel, and that the defendant had not harmed her. Mr K.N., the applicant's husband, was unable to explain who started the fight; however, he claimed to have seen the defendant hit his wife. Finally, Mr E.N., the defendant's husband, submitted that he had learned about the fight from his wife.
On 18 February 2002 the Bratskе Court (Місцевий суд Братського району Миколаївської області) partly allowed the applicant's claim for damages. Mrs G.N. appealed before the Mykolayiv Regional Court of Appeal (Апеляційний суд Миколаївської області).
According to the Government, the Regional Court duly notified the applicant that the hearing in her case was scheduled for 10 April 2002. In support of this argument the Government presented a copy of page 43 of the case-file, containing an acknowledgement slip for a summons addressed by the Regional Court to the applicant's home address, which included the following text: “the summons [was] received [on] 4 April 2002; delivered for handing over to Shytik”. The date and the applicant's last name are handwritten, while the remainder of the text is preprinted. According to the postmarks on the document, it was despatched from Mykolayiv on 29 March 2002 and sent back from Bratske on 5 April 2002.
According to the applicant, she never received the above notification and therefore failed to appear at the hearing.
On 10 April 2002 the Regional Court decided to hold the hearing in the applicant's absence, noting that she had been duly notified of its date and time. It heard the defendant, who repeated the version of events submitted to the first-instance court. No questions were asked of her. Lastly, the court examined documentary evidence submitted to the first-instance court. According to the minutes of the hearing, contained on pages 45 to 48 of the case-file, it started at 12:55 and finished at 13:20 with the delivery of a new judgment, by which the applicant's claims were dismissed.
The Regional Court found that the District Court had erred in assessing the evidence. In particular, the submissions of Mrs T.N., the only witness in the applicant's favour, were inconsistent, as she had testified that the incident had happened on a different date. The statements by the other witnesses were insufficient to prove that the defendant had assaulted the applicant rather than defended herself.
On 23 May 2002 the applicant appealed in cassation. Her only complaint was that she had been unlawfully deprived of an opportunity to attend the hearing on appeal, as the case-file materials contained no proof that the summons had been served on her.
On 11 September 2002 the Supreme Court of Ukraine rejected the applicant's request for leave to appeal in cassation.


ITEMID: 001-87938
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ANDRÉ AND ANOTHER v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. In their capacity as a lawyer and a law firm, the applicants had been retained by Clinique Les Roches Claires, a public limited company (société anonyme), to assist and represent it during audit operations conducted into its affairs for the period 1 January 1997 to 31 December 2000 as a result of an audit notice of 10 July 2000.
5. On 12 June 2001, pursuant to the provisions of Article L. 16 B of the Code of Tax Procedure, the tax authorities applied to the President of the Marseilles tribunal de grande instance to authorise a search and seizure operation to be carried out in the context of the audit of Clinique Les Roches Claires, with a view to obtaining accounting, legal and corporate documents supporting certain declarations, on account of suspected fraudulent activities (price mark-ups and uninvoiced or fictitious transactions).
6. By a warrant of the same date the President authorised the tax inspectors, assisted by senior police officers, to carry out the searches and seizures required in order to discover evidence of the alleged activities at certain sites where documents or data carriers connected with the suspected fraud might be found, in particular at the applicants’ place of business, since they had been retained to assist and represent Clinique Les Roches Claires and were therefore assumed to be in possession of documents evidencing the suspected fraud on the part of their client.
7. The judge authorised only one search, setting 20 June 2001 as the time limit for the search and 30 June 2001 as the time-limit for the submission of a report on the operations.
8. On 13 June 2001, simultaneous searches were conducted at the locations indicated in the warrant issued by the President of the Marseilles tribunal de grande instance. The operations carried out at the applicants’ place of business by four tax inspectors took place between 7.30 a.m. and 1.10 p.m., in the presence of the first applicant, the chairman of the Marseilles Bar Association and a senior police officer. On that occasion, the first applicant was given a copy of the warrant of 12 June 2001.
9. A record of the search and seizure operations and an inventory were drawn up and signed by those present. Sixty-six documents were seized. They included handwritten notes and a document with a comment in the first applicant’s handwriting, in respect of which the chairman of the Bar Association expressly pointed out that these were the lawyer’s personal documents and were accordingly protected by the rule of absolute professional secrecy and could not be seized. The first applicant protested at the way in which the search had been carried out and made a number of observations which were logged in the record. He was given a copy of the record and the documents seized.
10. The applicants appealed on points of law within the statutory time-limit of five days. In their pleadings in support of the appeal, they raised two grounds alleging that the searches and seizures had been unlawful. They stated in particular, relying on professional secrecy and the rights of the defence, that documents sent by a client to that client’s lawyer and correspondence between them could not be seized where the search was not aimed at establishing proof that the lawyer in question had been involved in the offence. They also complained that the search warrant issued by the President of the tribunal de grande instance had failed to mention specifically that the presence of the chairman of the Bar Association or his or her representative was compulsory during the operations.
11. In a judgment of 11 December 2002 the Court of Cassation dismissed the applicants’ appeal. As to the failure to refer specifically to the presence of the chairman of the Bar Association, the court stated that the search warrant did not have to determine the measures required for professional secrecy to be observed, any breaches thereof being examined in the context of the review of the lawfulness of the operations and not the review of the lawfulness of the warrant. As regards the seizure of the documents at issue, the Court of Cassation considered that the professional secrecy of lawyers did not constitute an obstacle to searches of their premises and seizure of any documents in their possession being authorised, in so far as the judge had found that the information provided by the applicant authority contained sufficient evidence for the suspicion mentioned in the warrant.
12. The relevant provisions of the Code of Tax Procedure, as applicable at the material time, read as follows:
“I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly making inaccurate or false entries or causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents.
II. All searches must be authorised by an order of the liberties and detention judge of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located.
The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search.
The order shall include:
(i) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power;
(ii) the address of the premises to be searched;
(iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search.
The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought.
If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV.
The search and seizure of documents shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations.
He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress.
The judge may, if he or she considers it appropriate, attend the premises while the operations are under way.
He or she may at any time decide to suspend or halt the search.
The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with recorded delivery after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the delivery form.
If delivery of the order is not taken, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure.
The time-limit and procedure for appealing shall be set out in the documents accompanying postal or personal service.
The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order.
III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses who shall not be from his or her department or the tax authority.
The tax-authority officials referred to in I may be assisted by other tax-authority officials who have been accredited in the same conditions as the inspectors.
The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure.
The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable.
IV. A record stating how the operation was organised and how it proceeded and logging any findings shall be compiled forthwith by the tax-authority officials. An inventory of the evidence and documents seized shall be appended to it, where necessary. The record and the inventory shall be signed by the tax-authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record.
Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time.
V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative.
The evidence and documents seized shall be returned to the occupier of the premises within six months of the search; however, when criminal proceedings are brought, their return must be authorised by the competent court.
VI. The tax authorities may not use any information obtained against the taxpayer until the seized items and documents have been returned or reproduced and until the review measures referred to in the first and second sub-paragraphs of Article L. 47 have been implemented.”
13. The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, read as follows:
“However, [the senior police officer] must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected.”
“A search of a lawyer’s chambers or home may only be made by a judge and in the presence of the chairman of the Bar Association or a person delegated by him or her. Only the judge and the chairman of the Bar Association or the person delegated by him or her are entitled to inspect documents discovered during a search with a view to their possible seizure.
The chairman of the Bar Association or the person delegated by him or her may object to the seizure of a document which the judge intends to carry out if he or she considers that it would be unlawful. The document must then be placed under official seal. These steps shall be noted in an official record indicating the objections of the chairman of the Bar Association or the person delegated by him or her, which shall not be added to the case file. Where other documents have been seized during the search without any objection, the official record shall be separate from that required by Article 57. The official record and the document placed under official seal shall be transmitted to the liberties and detention judge, along with the original or a copy of the case file.
Within five days of receipt of the documents, the liberties and detention judge shall give a reasoned ruling on the objection, which shall not be open to appeal.
To this end, he or she shall interview the judge who carried out the search and, where necessary, the public prosecutor and also the lawyer whose chambers or home has been searched and the chairman of the Bar Association or the person delegated by him or her. He or she may open the seal in the presence of these persons.
Where he or she considers that it is not necessary to seize the document, the liberties and detention judge shall order its immediate return and the destruction of the official record of the operations and, where necessary, the deletion of any reference to that document or its contents in the official case file.
Otherwise, he or she shall order the inclusion of the document and the official record in the case file. His or her decision shall not prevent the parties from subsequently applying to, the trial court or the investigation division, as appropriate, for the seizure to be declared null and void.”
14. Section 66-5 of Law no. 71-1130 of 31 December 1971 (amended by Law no. 2004-130 of 11 February 2004) provides:
“In all matters, whether with regard to advice or defence, written opinions sent by a lawyer to his or her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers, with the exception, in the latter case, of correspondence marked ‘official’, meeting notes and, more generally, all documents in a case file shall be covered by professional secrecy.”
15. The Court of Cassation has held that the seizure of correspondence between a person under investigation and that person’s lawyer may only be ordered and pursued if the documents seized are capable of establishing proof of the lawyer’s participation in an offence (see in particular Court of Cassation (Criminal Division), 12 March 1992, Bulletin criminel no. 112; 20 January 1993, Bulletin criminel no. 29; Court of Cassation (Commercial Division), 5 May 1998, Bulletin IV, no. 147; Court of Cassation (Criminal Division), 5 Oct. 1999, Bulletin criminel no. 206; 27 June 2001, Bulletin criminel no. 163). Observance of the principle of the confidentiality of exchanges between a lawyer and his or her client is not limited to seizures, but extends to other measures that might affect it (for example, a measure such as the tapping of a lawyer’s private and/or personal telephone line must be preceded by a specific finding that credible evidence exists of the lawyer’s participation in an offence: Court of Cassation (Criminal Division), 15 January 1997, Bulletin criminel no. 14; 8 November 2000, Bulletin criminel no. 335; Court of Cassation (Criminal Division), 18 January 2006, appeal no. 05-86.447).
“18. Community law, which derives from not only the economic but also the legal interpenetration of the Member States, must take into account the principles and concepts common to the laws of those States concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirements, the importance of which is recognised in all of the Member States, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.
19. As far as the protection of written communications between lawyer and client is concerned, it is apparent from the legal systems of the Member States that, although the principle of such protection is generally recognised, its scope and the criteria for applying it vary ...
21. Apart from these differences, however, there are to be found in the national laws of the Member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purpose and in the interests of the client’s rights of defence and, on the other hand, they emanate from independent lawyers , that is to say, lawyers who are not bound to the client by a relationship of employment ...
23. As far as the first of those two conditions is concerned, in Regulation ... care is taken to ensure that the rights of the defence may be exercised to the full, and the protection of the confidentiality of written communications between lawyer and client is an essential corollary to those rights.
24. As regards the second condition, it should be stated that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer’s role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the over-riding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline ... Such a conception reflects the legal traditions common to the Member States and is also to be found in legal order of the Community ...”
16. In this case the CJEC recognised the specific nature of the profession of lawyer. In his submissions presented on 10 July 2001, the Advocate-General Philippe Léger considered, in particular, as follows:
“182. Professional secrecy forms the basis of the relationship of trust between lawyer and client. It requires the lawyer not to divulge any information imparted by the client and extends ratione temporis to the period after the lawyer has ceased to act for the client and ratione personae to third parties. Professional secrecy also constitutes an ‘essential guarantee of the freedom of the individual and of the proper working of justice’, so that in most Member States it is a matter of public policy.”
17. Directive 91/308/EEC states that lawyers are obliged to inform the competent authorities of any fact which could be an indication of money laundering. The particular protection to be afforded to lawyers and the possible exceptions thereto are the subject of debate in the context of a dispute before the CJEC, in relation to Directive 91/308/EEC and the obligation on lawyers to inform and co-operate with the authorities responsible for the fight against money laundering.
18. In its judgment of 26 June 2007 (Ordre des barreaux francophones et germanophones, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles against Conseil des ministres, Case C-305/05), the ECJ ruled that the obligations of information and cooperation with the authorities responsible for combating money laundering did not infringe Article 6 § 1 of the Convention for the following reasons:
– these obligations “apply to lawyers only insofar as they advise their client in the preparation or execution of certain transactions, essentially those of a financial nature or concerning real estate”, that is, in a context with no link to judicial proceedings;
– furthermore, again in the context of these transactions, as soon as the lawyer is called upon for assistance in defending the client or in representing him before the courts, or for advice as to the manner of instituting or avoiding proceedings, that lawyer is exempt from the obligations of information and cooperation (regardless of when the information was received).
19. The relevant provisions of Recommendation No. R (2000) 21 read as follows:
“... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms;
Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter of for any reason;
...
Principle I – General principles on the freedom of exercise of the profession of lawyer
1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...
6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the Rule of Law.”
20. The relevant provisions of the “Basic Principles on the Role of Lawyers” (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana from 27 August to 7 September 1990) state:
“16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
...
22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1