ITEMID: 001-71526
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SPROTTE v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Mr Ludwig-Norbert Sprotte, is a German national, who was born in 1950 and lives in Berlin in Germany. He was represented before the Court by Mr S. König, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 March 1993 at 2.30 a.m. the applicant was arrested by the police while driving his car on a public road in Brandenburg. The applicant had intended to cover a distance of approximately 500 metres in order to park his car for the night. According to the subsequent charge brought against him, his blood alcohol concentration amounted to 1.45 grams per litre. At the time of this incident, the applicant worked as a criminal court judge. He has been granted unpaid leave from office since January 1996.
On 24 August 1993 the Oranienburg District Court (Amtsgericht) issued a penal order (Strafbefehl) inflicting a sentence of 30 daily rates of DEM 80 upon the applicant and withdrawing his driving licence for negligent drunken driving (fahrlässige Trunkenheit im Verkehr).
On 6 October 1993 the applicant filed an objection.
On 17 January 1994, following two adjournments of the hearing upon the applicant’s request, the District Court changed the sentence to 30 daily rates of DEM 65 and confirmed the revocation of his driving permit.
On 29 March 1994 the District Court rejected the applicant’s appeal as having been filed out of time.
On 6 July 1994 the Brandenburg Court of Appeal (Oberlandesgericht) quashed the decisions of 17 January and 29 March 1994 on the grounds that the District Court had erroneously rejected the applicant’s offers of proof and remitted the case to the District Court.
On 4 August 1994 the case-file was returned to the District Court.
On 15 August 1994 the driving licence was returned to the applicant.
On 9 January 1995 the District Court scheduled the main hearing for 22 March 1995, which the applicant did not attend.
On 30 March 1995 the District Court, upon the applicant’s request, decided to obtain an expert opinion as to whether the blood sample taken in March 1993 was identical with the applicant’s blood, and the alcohol concentration of that sample.
On 26 April 1995 the Brandenburg Institute of Forensic Medicine confirmed the blood-alcohol concentration of the sample.
On several occasions in May 1995 the applicant refused to have a blood sample taken. He argued that the examination could also be carried out with a sample of his saliva.
On 28 June 1995 the District Court rejected the applicant’s request to have a sample of saliva taken, stating inter alia that an examination of a blood sample was simpler and less costly.
On 7 August 1995 the Institute of Forensic Medicine confirmed the identity of the two blood samples.
On 15 March 1996, following two requests by the applicant to adjourn the hearing and the judge’s illness in February 1996, the District Court scheduled the date for the main hearing for 29 April 1996.
On 29 April 1996 the Oranienburg District Court convicted the applicant of deliberate drunken driving (vorsätzliche Trunkenheit im Verkehr). It did not change the fine and imposed a three months’ driving ban on him.
On 18 November 1996 the Brandenburg Court of Appeal quashed this judgment on the grounds of an insufficient assessment of the evidence and remitted the case to a different chamber of the Oranienburg District Court.
On 8 January 1997 the case-file was returned to the Oranienburg District Court.
On 4 November 1997 the District Court scheduled the main hearing for 11 February 1998.
On 11 February 1998 the District Court decided to discontinue the proceedings. It based its decision on the excessive length of the proceedings and their adverse effects on the applicant.
On 25 November 1998, following the Public Prosecutor’s appeal, the Brandenburg Court of Appeal quashed the District Court’s decision and remitted the case to the Potsdam District Court.
On 23 December 1998 the applicant lodged a constitutional complaint raising the issue of the excessive length of the proceedings.
On 1 September 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s constitutional complaint. It found that the applicant had not as yet exhausted all possible prior legal remedies.
On 21 January 1999 the case file arrived at the Potsdam District Court.
On 19 February 1999, following the applicant’s request to postpone the hearing, the District Court scheduled the main hearing for 2 March 1999.
On 10 March 1999 the applicant excused himself from attending the continuation of the main hearing by submitting a medical attestation. The District Court ordered the applicant’s medical examination and ordered the main hearing to be continued on 12 March 1999.
On 12 March 1999 the District Court adjourned the hearing, because the Public Health Officer had given notice that the medical examination could not take place before 15 March 1999.
On 19 July 1999 the District Court scheduled the main hearing for 23 November 1999.
On 17 November 1999, following the applicant’s request, the District Court adjourned the hearing.
On 1 March 2000 the District Court decided to discontinue the proceedings on account of their excessive length.
On 21 June 2000 the Potsdam Regional Court (Landgericht), following the Public Prosecutor’s appeal, quashed the decision of the District Court on the ground that the length of the proceedings was not so excessive as to warrant their termination, and remitted the case to the District Court.
On 20 July 2000 the case-file was returned to the Potsdam District Court.
Following the main hearing on 6 October 2000, which the applicant did not attend, the District Court ordered the applicant’s medical examination.
On 23 November 2000 the Public Health Officer submitted his expert opinion.
On 18 January 2001 the Brandenburg Constitutional Court (Verfassungsgericht des Landes Brandenburg) rejected the applicant’s constitutional complaint lodged on 10 January 2001, in which he complained about the length of the proceedings, as having been filed out of time.
On 13 February 2001 the Potsdam District Court convicted the applicant of negligent drunken driving and sentenced him to fifteen daily rates of DEM 60. It also imposed a driving ban for three months. According to the District Court, the length of the proceedings did not justify to discontinue the proceedings without a criminal sentence.
On 15 February 2001 the applicant revoked his counsel’s power of attorney.
On 19 March 2001 the applicant granted the lawyer Ms Z. a power of attorney which was restricted to consulting the case-file.
On 9 June 2001, without having received a written copy of the judgment, the applicant lodged an appeal.
On 8 November 2001 the District Court judgment was served on the lawyer Ms Z.
On 25 April 2002 the Potsdam Regional Court dismissed the applicant’s appeal as being ill-founded.
On 23 July 2002 the Potsdam Regional Court, following the applicant’s further appeal, decided that the judgment of 13 February 2001 had not been properly served on the applicant.
Following several unsuccessful attempts to serve the judgment of 13 February 2001 on the applicant, the judgment was duly served on him on 14 November 2002.
On 21 July 2003 the Brandenburg Court of Appeal dismissed the applicant’s appeal on points of law as being ill-founded.
On 22 August 2003 the applicant lodged a second complaint with the Federal Constitutional Court.
On 21 January 2004 the Federal Constitutional Court quashed the judgment of the District Court of 13 February 2001 and the decision of the Court of Appeal of 21 July 2003 and remitted the case to the Potsdam District Court. It found that the applicant’s conviction was disproportionate considering the excessive length of the proceedings, a delay of twenty-two months attributable to the conduct of the lower courts and the relatively insignificant charge and thus violated the applicant’s rights to a fair criminal trial as guaranteed by Article 2 § 2 of the Basic Law in conjunction with the principle of proportionality enshrined in the rule of law.
The Federal Constitutional Court found, first, that the overall length of the proceedings as such, which amounted to approximately ten years, was unreasonable. According to the Constitutional Court, the applicant had considerably contributed to the length of the proceedings by his own legitimate conduct during the proceedings, such as by filing three appeals on points of law, by lodging several requests to postpone the hearings, by at first refusing the taking of evidence by blood sample in May 1995 and by complicating the serving of the judgment of 13 February 2001. However, neither the delays caused by the applicant’s own conduct nor the delays caused by the Public Prosecutor’s appeals could justify the overall length of the proceedings. In this respect, the Constitutional Court noted that the charge of drunken driving was of a relatively minor nature and that the complexity of the case was low and did not necessitate any extensive taking of evidence.
Furthermore, the Federal Constitutional found that there had been a total delay of twenty-two months which was imputable on the domestic courts. In this respect, the Constitutional Court confirmed the finding of the lower courts, which had identified delays from 15 August 1994 (date on which the driving licence was returned to the applicant) to 9 January 1995 (scheduling of a new date for the main hearing), from 8 January (return of the case-file to the District Court after the second appeal decision) to 4 November 1997 (scheduling of a main hearing), from 12 March (adjournment of the hearing) to 19 July 1999 (scheduling of a new hearing) and from 17 November 1999 (adjournment of the hearing) to 1 March 2000 (decision on the termination of the proceedings).
With respect to the applicant’s complaint about further delays amounting to thirty-four months, the Constitutional Court found that these did not violate the applicant’s rights under the Constitution. It found, notably, that the District Court’s decision to order the taking of evidence by blood sample was comprehensible. The delay between the adjournment of the hearing in November 1995 and March 1996 had been sufficiently explained by the competent judge’s illness. The Federal Constitutional Court further accepted the delay between 19 July 1999 and the hearing held on 23 November 1999.
The Federal Constitutional Court further found that those delays which had been caused by the remittal of the case to the first instance courts did not violate the obligation to expedite the proceedings. This could only apply if the judgments of the first instance courts had been flagrantly violating the law, which had, however, not been the case.
Turning to the consequences the length of the proceedings had on the applicant, the Constitutional Court noted that, according to a medical attestation of 23 November 2000, the applicant had with a high probability developed a psychological disorder which negatively affected his quality of life and necessitated a rapid termination of the proceedings. Furthermore, the applicant had been deprived of his driving license for more than seventeen months. The Constitutional Court finally noted that disciplinary proceedings had been instituted against the applicant.
Taking into account these elements, in particular the minor nature of the charge, the overall length of the proceedings and the hardships on the applicant, the Federal Constitutional Court found that it was unjustified to impose a criminal sentence on the applicant. It followed that the proceedings had to be discontinued without a criminal conviction. The Constitutional Court further ordered the Land of Brandenburg to reimburse the applicant the necessary expenses incurred by his constitutional complaint.
On 3 March 2004 the case-file was returned to the Potsdam District Court.
On 10 March and 10 May 2004 the District Court judge requested the Public Prosecutor to consent to a termination of the proceedings.
Between 23 March and 10 August 2004 the case-file was dispatched to the Tiergarten District Court in Berlin.
On 18 October 2004 the Potsdam District Court scheduled a hearing for 6 December 2004 and requested the Public Prosecutor to consent to a termination of the proceedings.
On 6 December 2004 the Potsdam District Court discontinued the proceedings pursuant to section 153b of the Code of Criminal Procedure (see relevant domestic law below). It further ordered that the Court fees had to be borne by the Treasury and that the applicant was to be reimbursed half of the necessary expenses incurred by the proceedings.
The relevant provisions of the Code of Criminal Procedure (Strafprozessordnung) read as follows:
Section 153
“(1) If a less serious criminal offense is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator’s culpability is considered to be of a minor nature and there is no public interest in the prosecution....
(2) If charges have already been preferred, the court, with the consent of the public prosecution office and the accused, may discontinue the proceedings at any stage thereof ...”
Section 153b
“(1) If the conditions apply under which the court may dispense with imposing a penalty, the public prosecution office may, with the consent of the court which would have jurisdiction over the main hearing, dispense with preferment of public charges.
(2) If charges have already been preferred the court may, with the consent of the public prosecution office and of the accused, discontinue proceedings prior to the beginning of the main hearing.”


ITEMID: 001-91288
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GOSPODARCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1948 and lives in Zielona Góra, Poland.
6. On 26 October 1998 the applicant purchased a house and a plot of land located in Niedoradz in the Otyń municipality, for which he paid 28,684 Polish zlotys (PLN).
7. In December 1999 the applicant discovered that the plot in question was 36 sq. m smaller than the size specified in the contract.
8. On an unspecified date in 2002 the applicant lodged a claim against the municipality with the Zielona Góra Regional Court, seeking PLN 412,666 in compensation for the alleged difference between the actual size of the property and the one declared in the notarial deed. He claimed that due to the fact that the plot was in fact smaller he could not construct a special sanitary tank there and consequently could not open a bakery, which he had originally planned to do. He also sought exemption from the entire amount of court fees which were set at PLN 22,233.30. The applicant claimed that his monthly income was only an invalidity pension of PLN 449.51. He submitted that after paying rent for his cooperative flat, his net income amounted to PLN 200.
9. The Regional Court requested the applicant to supplement his declaration of means. Subsequently, the applicant submitted that he owned a house in Niedoradz which according to him had a value of PLN 120,000, and that he had a cooperative flat in Zielona Góra, a plot of land (570 sq. m), a small retail outlet and a van (valued at PLN 10,000) used for temporary work. He claimed that he had purchased the Niedoradz property using his savings and family loans, and that he intended to use it to create employment for him and his family. He also informed the court that he had invested PLN 92,000 of his own money in the house.
10. On 22 July 2002 the Regional Court refused his application for exemption from court fees. It held, in so far as relevant:
“Pursuant to Article 113 § 1 of the Code of Civil Procedure exemption from court fees may be sought by a party who is unable to bear them without entailing a substantial reduction in his or her standard of living. The plaintiff does not satisfy this requirement. It is evident to the court that the plaintiff has a substantially higher income than the declared pension which he knowingly does not disclose, in that his retail outlet and his van must generate profits. These profits must be substantial because otherwise he could not have a cooperative flat and three other properties and could not invest nearly PLN 100,000 in other business projects and maintain them. The plaintiff continuously conceals his real profits and they are substantial, because nobody could believe that he lives on PLN 200 per month.
Exemption from court fees is a privilege serving to legally protect the indigent, and the plaintiff is a very affluent person in Polish terms”.
11. The applicant appealed against that decision and pleaded that he was in an exceptional situation. He submitted that he had acquired the Niedoradz property, which was the subject of his dispute with the municipality, and had invested PLN 92,000 in it with a view to conducting business activity there. However, he could not execute his business plans since the property did not conform to certain unspecified requirements and as a result his financial situation had worsened. He further submitted that he had to pay back a loan of PLN 40,000 obtained from his brother for renovation of the house. He produced a statement signed by his brother which attested that the applicant had received the loan and had not paid it back as of 1 August 2002.
12. The applicant further submitted that he had a cooperative flat, but that he was in arrears of rent in the amount of PLN 3,532.35. In addition, he maintained that his and his wife’s retail outlet was making losses. He produced their joint tax return which attested that in the 2001 tax year he had sustained a loss of PLN 14,628.23. Furthermore, the applicant claimed that he was financially supported by his family, in particular his mother who provided him with PLN 600 each month. He produced a statement from his mother to that effect.
13. On 14 August 2002 the Poznań Court of Appeal upheld the contested decision. It held, in so far as relevant:
“The appeal should be considered unfounded. In particular, the first-instance court was right when holding that the applicant’s declaration of means was unreliable. In that declaration of means the applicant did not state, inter alia, that he was conducting a business activity, and he explained that circumstance only in the appeal proceedings. It is also not difficult to notice the differences between the applicant’s declared income and the value of his assets. It is a well-established principle in the case-law that being an owner of a[n immovable] property excludes the possibility of granting exemption from court fees (judgments of the Supreme Court of 23 October 1934, no. C II 1441/34 and of 1 February 1937, no. C II 2379/36).
The applicant can pay the court fees for his action since he has considerable assets and given that he has recently, as he claims, invested PLN 124,000 in one of his properties. What is more, the fact at the origin of the dispute, namely that the property acquired by the applicant from the municipality is in fact smaller than declared in a notarial deed, has been known to the applicant since 1999. Thus, he could have made savings with a view to funding his litigation.”
14. Consequently, the applicant was summoned to pay the court fees for proceeding with his claim against the municipality. On 21 October 2002 the Zielona Góra Regional Court returned the applicant’s statement of claim since he had not paid the fees in question. The applicant appealed against that decision. However, he was informed that his appeal would not be considered until he had paid PLN 4,446.70 in court fees.
15. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-60337
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF STASAITIS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 8. The applicant was the owner and director of several holding companies which defaulted on their financial obligations. On 8 January 1993 criminal proceedings were instituted against him on suspicion that he had concealed his income. On 30 July 1993 the applicant was charged with cheating. On 2 August 1993 the case was transferred to the Vilnius First City District Court. On the same date the applicant was granted bail. On 25 July 1994 the applicant failed to attend a court hearing, and the court ordered his detention on remand.
9. On 25 October 1994 another criminal case was instituted against the applicant concerning irregular operations with currency and securities. On the same date, a prosecutor authorised the applicant’s detention on remand in the context of that case.
10. Meanwhile, the applicant was suspected of hiding in Russia. On 25 October 1994 the Prosecutor General requested the Russian authorities to extradite him on suspicion of having engaged in irregular operations with currency and securities. On 29 October 1994 the applicant was arrested in Moscow. On 1 November 1994 he was extradited to Lithuania and remanded in custody.
11. On 9 November 1994 he was charged with irregular operations with currency and securities. On 10 November 1994 the prosecutor’s decision of 25 October 1994 to authorise the applicant’s detention on remand was revoked on the ground that there had already been the court order regarding the applicant’s detention of 25 July 1994.
12. On 27 December 1994 the judge of the Vilnius City First District Court decided that the applicant should remain in custody. No term was specified.
13. On 20 March 1995 the Prosecutor General authorised the applicant’s detention in the criminal case concerning the operations with currency and securities. The Prosecutor General noted that the applicant had previously breached his bail, and that the reasons for his detention were the dangers of absconding and obstructing the establishment of the truth in the case. No term of detention was specified.
14. On 21 March 1995 the Vilnius Regional Court revoked the detention order of 25 July 1994.
15. On an unspecified date the criminal cases against the applicant were joined. From 18 May 1995 until 21 August 1996 the term of the applicant’s detention was extended every two months by the Prosecutor General, for fear of the applicant’s absconding.
16. On 14 August 1996 the applicant was indicted on nine counts, including cheating, misappropriating the property of another, and irregular operations with currency and securities. There were four other co-accused persons in the case. On the same date the Prosecutor General extended the term of the pre-trial investigation until 21 September 1996.
17. On 20 August 1996 a judge of the Vilnius Regional Court examined the prosecution’s application to extend the term of the applicant’s detention until 21 September 1996 given the risks of absconding and obstructing the establishment of the truth in the case. The prosecutors’ application was granted. The applicant’s defence counsel was present at the hearing.
18. On 10 September 1996 the pre-trial investigation was concluded. From 10 September 1996 until 14 November 1996 all the accused had access to the case-file.
19. On 18 November 1996 the Deputy Prosecutor General confirmed the bill of indictment whereby the applicant was charged on nine counts, including cheating (Article 274 of the Criminal Code), embezzlement (Article 275), and irregular operations with currency and securities (Article 329).
20. On 20 November 1996 the case was transmitted to the Kaunas City District Court. On 29 November 1996 the applicant submitted an application to the Kaunas City District Court, complaining that the term of his detention on remand had expired. He requested his release. The court did not examine this application.
21. On 3 January 1997 a judge of the Kaunas City District Court, without hearing the parties, took a decision to commit the applicant and his co-accused for trial. The judge noted no fundamental procedural irregularities in the case. The judge also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for that detention were specified.
22. The applicant submitted a request to vary the remand, alleging that he had been seriously ill. On 3 March 1997 the judge of the Kaunas City District Court dismissed the request. The reasons for the dismissal were that the applicant had been accused of having committed serious offences, that he had already tried to avoid trial, and that he could therefore abscond and obstruct the establishment of the truth in the case. The applicant’s defence counsel was present at the hearing.
23. On 23 May 1997 the judge ordered further investigations in the case and returned the case-file to the investigators. In the same decision the judge extended the term of the applicant’s detention for four months. No grounds for the detention were specified. The applicant’s defence counsel was present at the hearing.
24. The prosecution appealed, complaining that there was no need for further investigation and that the trial could proceed. The applicant’s detention on remand was not mentioned in the prosecution’s appeal.
25. On 26 August 1997 the Kaunas Regional Court rejected the prosecution’s appeal, holding that further investigation measures were required. The applicant’s defence counsel was present at the hearing. The Regional Court amended the decision of 23 May 1997 insofar as the District Court had decided to return the case-file to the investigators. It ordered the return of the case-file to the Prosecutor General. The applicant’s detention on remand was not mentioned in the decision of 26 August 1997.
26. On 26 September 1997 the Prosecutor General lodged a cassation appeal against the decisions of 23 May 1997 and 26 August 1997, stating that there was no need for further investigation and that the trial should resume.
27. On 29 December 1997 the applicant submitted an application to the Court of Appeal, complaining that the term of his detention had ended on 23 September 1997 and that it had not been extended thereafter. He renewed the complaint on 8 and 21 January 1998. These applications were not examined.
28. On 29 January 1998 the Court of Appeal examined the prosecuting authorities’ cassation appeal. The court quashed the decisions of 23 May 1997 and 26 August 1997, deciding that the trial could be resumed. It transmitted the case to the Kaunas City District Court for a new examination. The court concluded that, “although the decision to order further investigations is quashed, the decision to commit the accused persons for trial [of 3 January 1997], whereby the question of the remand measures in respect of the accused has been properly decided, remains effective”. The applicant’s defence counsel was present at the hearing.
29. The applicant applied to the Ombudsman, complaining that his detention had been unlawful. The prison administration stated in reply that, pursuant to Article 106 § 5 of the Code of Criminal Procedure at that time, the applicant could be lawfully detained on remand for more than six years.
30. Having examined the applicant’s complaint and the observations of the prison administration, on 18 February 1998 the Ombudsman held that Article 20 of the Lithuanian Constitution, Articles 96 and 106 of the Code of Criminal Procedure and Article 9 of the Detention on Remand Act provided that a person could only be remanded in custody pursuant to an appropriate order, specifying the term of detention. He observed that a detainee ought to be released from prison if the term of detention was not extended by a court. On the basis of the above observations, the Ombudsman concluded that certain periods of the applicant’s detention had been unlawful under the domestic criminal procedure. The Ombudsman rejected the prison administration’s arguments that there had been valid court decisions during the overall period of the applicant’s detention and that Article 106 § 5 of the Code of Criminal Procedure authorised the applicant’s continued remand in custody for more than six years, given that the maximum sentence for the most serious offence with which the applicant was charged was 10 years’ imprisonment. The Ombudsman emphasised that this legal provision was incompatible with the right to be brought to trial within a reasonable time guaranteed by Article 5 § 3 of the Convention. The Ombudsman also drew the attention of the Prosecutor General and the Court of Appeal to the fact that the length of the applicant’s remand in custody had been excessive. Finally he addressed the Parliamentary Committee on Legal Affairs, stating that the provisions of the Code of Criminal Procedure “regulating the terms of detention on remand are not clear or logical [because] calculating the terms depends on various circumstances, including access to the case-file and dates when a particular decision becomes effective”. As such circumstances were not foreseeable and could be interpreted in different ways, the Ombudsman suggested amendments to the Code of Criminal Procedure.
31. At a trial hearing before the judge of the Kaunas City District Court on 4 May 1998, the applicant stated that he had been unlawfully detained. He requested the judge to order his release. The applicant also claimed access to additional material held in the case-file. In a decision of 4 May 1998, the judge stated that a court would establish whether or not the applicant’s detention on remand had been unlawful when delivering the judgment on the merits of the case. The applicant’s request to vary the remand was rejected on the ground that he might abscond. The judge allowed the applicant to have access to additional material held in the case-file at a time when there are no trial hearings.
At a trial hearing on 14 May 1998, the applicant repeated his request for bail, complaining about the lawfulness and conditions of his detention. The judge of the Kaunas City District Court noted that the medical experts had not yet submitted their conclusions as to the applicant’s state of health. The judge refused to vary the remand, as there was no guarantee that the applicant would not abscond.
32. The applicant repeatedly applied to the Ombudsman, alleging in particular that the court decision of 20 August 1996 had not been included in the case-file, and that the prison administration could not know that his detention on remand had been prolonged from 20 August 1996 to 21 September 1996.
33. On 12 June 1998 the Ombudsman amended his conclusions of 18 February 1998 insofar as they concerned one period of the unlawful detention of the applicant.
34. On 13 July 1998 the applicant complained to the Kaunas Regional Court that he had requested the Kaunas City District Court to discontinue the unlawful detention, not that the court vary the remand. The applicant referred to the amended provision of Article 109-1 of the Code of Criminal Procedure, which had come into force on 24 June 1998. The applicant requested the Regional Court to quash the decisions of the Kaunas City District Court of 3 January 1997 and 14 May 1998. He stated that he could not remain in custody because of his health, and that the length of the detention had been excessive, in breach of Article 5 § 3 of the Convention. He also requested the Regional Court to hear him in person when examining the appeal. On 21 July 1998 the applicant announced a hunger strike in connection with his detention.
35. On 28 July 1998 a judge of the Kaunas Regional Court informed the applicant that his challenge to the decisions of 3 January 1997 and 14 May 1998 was not subject to appeal, pursuant to the then Article 372 § 4 of the Code of Criminal Procedure.
36. On 9 September 1998 the applicant submitted a request to the judge of the Kaunas City District Court to be released. On 10 September 1998 the judge dismissed the request on the ground that the applicant might abscond.
37. On 15 October 1998 the judge of the Kaunas City District Court found the applicant guilty of the nine charges against him, the applicant and his defence counsel being present. The judge established that the applicant had unlawfully appropriated various assets of a total worth of several million litai. He was sentenced to seven years’ imprisonment and his property was confiscated. No allegations of the unlawfulness of the remand were mentioned by the court.
38. On 2 November 1998 the applicant appealed against his conviction, alleging various procedural irregularities, including breaches of his rights to legal representation, to examine witnesses, and to have unconditional access to the case-file. He stated inter alia that the latest extension of the term of his detention on remand was that made by the Vilnius Regional Court on 20 August 1996, and that his remand in custody from 21 September 1996 had been unlawful. He claimed that his detention had been excessively long. On 30 November 1998 the applicant supplemented the appeal, submitting inter alia that Articles 3, 5, 6 and 7 of the Convention had been breached, and that he had been unable to challenge judges and prosecutors who had allegedly fabricated the case against him.
39. On 22 March 1999 the Kaunas Regional Court amended the applicant’s conviction as regards the count concerning irregular operations with currency and securities. In this respect the court reclassified the charge under Article 329 of the Criminal Code with that under former Article 87 of the Criminal Code which had been applicable at the time when the crime was committed. The applicant and his defence counsel were present at the appellate hearing. The Regional Court considered that no procedural irregularities had occurred during the pre-trial investigation and trial, noting inter alia that the applicant had had several defence counsel throughout the proceedings, he had had full access to the case-file, experts had been consulted and witnesses had been questioned. The Regional Court did not change the applicant’s sentence. On 14 June 1999 the applicant lodged a cassation appeal, pleading inter alia that his detention had been unlawful.
40. On 30 September 1999 the Supreme Court quashed the conviction and the appellate decision because of numerous breaches of domestic criminal procedure, including violations of the applicant’s defence rights. The court ruled inter alia that the applicant could only have been prosecuted on one count of irregular operations with currency and securities under former Article 87 of the Criminal Code, by reference to which he had been extradited from Russia. It held that the other eight counts could not stand unless the appropriate permission from Russia had been obtained. The court also stated that it had no competence to examine the applicant’s allegations of unlawful detention during the pre-trial investigation. It did not decide on the applicant’s remand, but it ordered the release on bail of his co-accused. The case was returned to the Kaunas City District Court for a new examination to be carried out. The applicant remained in prison.
41. On 30 September 1999 the applicant wrote letters to the Prosecutor General, the Minister of the Interior, the Minister of Justice and the President of the Kaunas City District Court, stating that his detention from 30 September 1999 had been unlawful in that, inter alia, the Supreme Court had not decided the question of his remand.
42. By letter of 1 October 1999 a Supreme Court judge informed the Kaunas City District Court and the Prisons Department that the detention order of 3 January 1997 had constituted a valid basis for the applicant’s continued detention on remand because the order of 23 May 1997 had been quashed by the Court of Appeal on 29 January 1998.
43. On 11 and 13 October 1999 the applicant requested the Kaunas City District Court to release him on the ground that his detention had been unlawful. The applicant pleaded inter alia that the question of the lawfulness of his detention remained unclear, as was shown by the necessity of the aforementioned letter of 1 October 1999.
44. On 25 October 1999 a judge of the Kaunas City District Court returned the case to the prosecution for further investigations to be carried out. The court also extended the term of the applicant’s detention on remand for two months, given the gravity of the nine offences for which he could be convicted if the appropriate permission from Russia were obtained.
45. On 30 October 1999 the applicant appealed, which appeal was dismissed by the Kaunas Regional Court on 14 December 1999. The court referred to the danger of the applicant absconding as warranting his remand in custody on suspicion of his having committed the nine possible offences. The Regional Court noted that although Russia’s permission to press these charges had not yet been granted, the prosecuting authorities had enough time to apply to the Russian Federation for that authorisation.
46. On 24 December 1999 the applicant applied to the Kaunas City District Court for release. He stated, inter alia, that he could only be prosecuted for the one offence of irregular operations with currency and securities. He noted that no permission had been obtained from Russia to prosecute him on other charges, and that the courts’ reference to those charges as warranting his remand in custody had been unlawful.
47. On 24 December 1999 a judge of the Kaunas City District Court rejected the prosecution’s application to extend the term of the applicant’s remand in custody. By reference to Article 399 of the Code of Criminal Procedure, the judge held that the order of 25 October 1999 had become effective on the date when the appeal had been decided, and that the two months’ time-limit for the applicant’s remand in custody had therefore started on 14 December 1999. The applicant remained in prison.
48. Both the applicant and the prosecution appealed against the decision of 24 December 1999, rejected respectively by the Kaunas Regional Court on 10 and 20 January 2000. The Kaunas Regional Court referred the question of the applicant’s detention to the Vilnius Regional Court.
49. On 8 February 2000 the Vilnius Regional Court refused the prosecution’s application to extend the applicant’s remand in custody. The court held that the term of the applicant’s detention designated on 25 October 1999 had expired on 25 December 1999, and that his remand in custody after that date had been unlawful. The Vilnius Regional Court also held that the applicant could only be prosecuted on one charge of irregular operations with currency and securities, for which he risked a maximum sentence of five years’ imprisonment. However, the applicant had completed those five years on 29 October 1999. The Regional Court further noted that on 17 January 2000 Russia had given permission to prosecute the applicant on the other charges, but that at the material time the applicant was not charged with any other offence, and could not be deprived of his liberty on that basis. The court concluded that the applicant’s release was warranted. The applicant was released in the courtroom.
50. The applicant has not been remanded in custody since. It appears that the proceedings are still pending at first instance.
51. The Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija):
Article 20 § 3:
“A person arrested when committing an offence must, within 48 hours, be brought to court for the purpose of determining, in the presence of the detainee, whether detention is appropriate. If the court does not order the detention of the arrested person, he shall be released immediately.”
Article 30 § 1:
“A person whose constitutional rights or freedoms are violated shall have the right to apply to court.”
52. The previous and amended Code of Criminal Procedure (Baudžiamojo proceso kodeksas):
Article 10 (in force until 21 June 1996):
“No one shall be arrested save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor ... .”
Since 21 June 1996 arrest may only be ordered by a court or judge.
Article 104 (under the law No. I-551 of 19 July 1994, in force until 21 June 1996):
“Detention as a remand measure shall be used only where based on the decision of a court, order of a judge, or the authorisation of a prosecutor in cases where a statutory penalty of at least one year of imprisonment is envisaged ... .
In deciding whether to authorise the detention, a prosecutor ... shall personally hear the suspect or defendant when necessary ... .”
Article 104 (in force from 21 June 1996):
“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ... .
The grounds for detention on remand shall be the reasoned suspicion that the accused will:
(1) abscond from the investigation and trial;
(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];
(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ... .”
Article 104-1 (in force from 21 June 1996 to 24 June 1998):
“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ...
After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.”
The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry.
Article 106 § 3 (in force from 21 June 1996 to 24 June 1998):
“For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.”
The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.
Article 109-1 (in force from 21 June 1996 to 24 June 1998):
“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.
A further appeal shall be determined when examining the extension of the term of the detention on remand.”
The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.
Article 226 § 6 (in force until 24 June 1998):
“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”
Since 24 June 1998 this period is no longer relevant for remand decisions.
Article 372 § 4 (in force until 1 January 1999):
“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ... .”
Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (since 24 June 1998, see above).
53. Other relevant provisions of the Code of Criminal Procedure:
Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “ submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”
Article 249 § 1:
“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ...
(11) whether the remand measure has been selected appropriately.”
Article 250 § 1:
“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ...
(2) of the remand measure in respect of the accused ... .”
Article 267 § 1:
“The defendant has the right to ... 3) submit requests; ...
(11) appeal against the judgment and decisions of a court.”
Article 277:
“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”
54. The law amending and supplementing the Code of Criminal Procedure (Baudžiamojo proceso kodekso pakeitimų ir papildymų įstatymas) of 21 June 1996 stated that detention authorised by a prosecutor prior to 21 June 1996 could thereafter be extended by a court in accordance with the new procedure governing remand in custody.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-98800
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALAJOS KISS v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Violation of P1-3;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 6. The applicant was born in 1954 and lives in Rózsaszentmárton.
7. In 1991 the applicant was diagnosed with manic depression. On 27 May 2005 he was placed under partial guardianship. Although this measure was based on the Civil Code which deals with the pecuniary and certain personal relations of citizens (see paragraph 12 below), it nevertheless also attracted the application of Article 70(5) of the Constitution (see paragraph 11 below) to the applicant, excluding him from the right to vote. In the underlying court decision it was noted that he took care of himself adequately but sometimes wasted money in an irresponsible fashion and was occasionally aggressive. The applicant did not appeal against this decision.
8. On 13 February 2006 the applicant realised that he had been omitted from the electoral register drawn up in view of the upcoming legislative elections. His complaint to the Electoral Office was to no avail.
9. The applicant further complained to the Pest Central District Court. On 9 March 2006 this court dismissed his case. It observed that, under Article 70(5) of the Constitution, those under guardianship could not participate in elections. This decision was served on the applicant's representative on 25 April 2006.
10. In the meantime, legislative elections took place on 9 and 23 April 2006, in which the applicant could not participate.
11. Article 70(5) of the Hungarian Constitution provides inter alia that persons placed under total or partial guardianship do not have a right to vote.
12. The Civil Code provides:
“(1) This Act regulates the pecuniary and certain personal relations of citizens ...”
“(4) Persons of legal age may be placed under partial guardianship by a court if their faculties necessary to conduct their affairs are – owing to their mental state, unsound mind or pathological addiction – permanently or recurrently diminished to a great extent in general or in relation to certain groups of matters.
(5) If the limitation of discretionary ability is only partial, the person under guardianship may make valid legal statements independently in all matters in relation to which the court did not limit his/her capacity in its decision.
(6) The court may limit the full capacity of a person placed under guardianship in particular in respect of the following groups of matters:
i. requests of social security, social and unemployment benefits and disposition over such benefits or over income deriving from employment ... exceeding the amount defined in paragraph (2) c) of section 14/B;
ii. right of disposition concerning moveable and real property;
iii. making certain legal statements in family law matters, namely:
a) legal statements concerning matrimonial property rights or property rights related to a registered partnership,
b) making statements in relation to the establishment of parentage,
c) defining the name of one's child and its alteration,
d) giving consent to the adoption of one's child;
iv. taking pecuniary decisions in relation to maintenance obligations;
v. making legal statements in relation to residential leases (conclusion and termination of the contract);
vi. inheritance matters;
vii. legal statements concerning placement in an in-house social institution;
viii. disposing of rights related to health services;
ix. determination of place of residence.”
13. Act no. C of 1997 on Election Procedure provides as follows:
“(1) In order to establish the right to vote, the organs listed under points a)-c) keep informed the central agency, managing the register of citizens' personal data and addresses, of the changes occurring in the data, specified in paragraph (2), of ... citizens of legal age without the right to vote, as follows:
a) the office of guardians ... on placement under guardianship limiting or excluding legal capacity, and on the termination of guardianship, ...
(2) The communication described under paragraph (1) includes the citizen's:
a) first and last name (for women, also maiden name),
b) personal identification number,
c) the reason for exclusion from the exercise of voting rights, its beginning date and expected end date.”
14. The United Nations Convention on the Rights of Persons with Disabilities (the “CRPD”), which was ratified by Hungary on 20 July 2007, provides as follows:
... “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.”
“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. ...”
“States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:
a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.”
15. The Council of Europe Recommendation R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted on 23 February 1999) (“Recommendation R(99)4”) provides as follows:
“... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.”
16. Opinion no. 190/2002 of the European Commission for Democracy through Law (Venice Commission) on the Code of Good Practice in Electoral Matters (“Opinion no. 190/2002”) provides as follows:
“i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;
iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence.
v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”
17. The Council of Europe Recommendation R(2006)5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015 (adopted on 5 April 2006) (“Recommendation R(2006)5”) provides as follows:
“... iii. to ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability; ...”