ITEMID: 001-75959
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SAVKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Štefan Savka, is a Slovakian national who was born in 1925 and lives in Snina. The respondent Government were represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 April 1992 the applicant and his relatives claimed before the Humenné District Court that several plots of land had been owned by his late father and belonged to his estate. In the course of the proceedings the plaintiffs specified the subject-matter of their action.
On 29 October 1992 the District Court ruled on part of the claims and decided to deal separately with the remainder of the action.
On 26 January 1993 the District Court invited an expert to submit an opinion and ordered the parties to pay an advance on the expert’s costs.
On 30 September 1993 the Košice Regional Court quashed the decision to the extent that it related to the expert’s costs.
Between 24 February 1994 and 14 April 1994 the District Court held two hearings and obtained further evidence.
Further evidence was obtained between May and July 1995. On 12 October 1995 the case was assigned to a different judge.
On 13 March 1996 the Humenné District Court dismissed the action. It held that the defendant company lacked standing in the proceedings as it did not possess the land in question.
The applicant appealed on 15 April 1996. On 21 May 1996 the District Court ordered the applicant to pay the fees for the appellate proceedings.
On 22 July 1997 the Košice Regional Court quashed both the judgment of 13 March 1996 and the District Court’s decision of 21 May 1996.
On 5 December 1997 the applicant and the other plaintiffs re-stated the subject-matter of the action. They indicated a State-owned company and an administrative authority as defendants in the case.
On 13 February 1998 the Humenné District Court refused to exempt the applicant from the obligation to pay the court fee.
Between January and March 1998 the court obtained further evidence.
On 21 January 1999 the case was adjourned.
On 1 December 1999 the District Court found that the three plots of land in question belonged to the estate of the applicant’s late father.
On 24 January 2000 the applicant appealed. He claimed that the District Court’s judgment did not cover three other plots of land which his father had also owned. After having taken further procedural steps, the District Court submitted the case to the court of appeal on 6 July 2000.
On 30 April 2001 the Prešov Regional Court sent the case back to the District Court with the instruction to decide on the outstanding claim within 30 days.
On 11 September 2001 the District Court issued a supplementary judgment in which it dismissed the action to the extent that it concerned one of the two defendants in the case. On 27 September 2001 the applicant appealed. The file was submitted to the Regional Court in Prešov on 23 January 2002.
On 16 January 2003 the Regional Court asked an administrative authority to submit documentary evidence to it. On 26 February 2003 it ordered the District Court to decide on the applicant’s claim that several other plots of land also belonged to his father’s estate. After complying with the instruction the District Court was to return the file to the appellate court for further proceedings in the case.
On 30 April 2003 the District Court dismissed the applicant’s request for the judgment of 1 December 1999 to be completed to include three different plots of land. That decision became final on 30 June 2003.
On 25 November 2004 the Regional Court in Prešov did not allow the applicant’s request for amendment of the action and it dismissed his appeal against the first instance judgment of 1 December 1999 as modified by the judgment of 11 September 2001.
On 16 February 2005 the District Court in Humenné issued a decision in which it corrected an error in the operative part of its judgment of 1 December 1999.
In a letter of 18 December 2002 the Court’s Registry informed the applicant of the Court’s practice requiring that applicants in a similar position should use the remedy under Article 127 of the Constitution available as from 1 January 2002.
On 7 January 2003 the applicant complained to the Constitutional Court, inter alia, about the length of the proceedings before the Humenné District Court.
In a letter dated 22 January 2003 a constitutional judge informed the applicant that his submission fell short of the formal requirements, thus preventing the Constitutional Court from dealing with it.
In addition, the letter contained the following information:
“To the extent that your submission concerns delays in proceedings before an ordinary court, it should be noted that ... Article 127 (1) of the Constitution requires that a complaint must be filed against a current and continuing interference by public authorities with the plaintiff’s fundamental rights. This view is based on the fact that a complaint [to the Constitutional Court] plays an important preventive role, namely as an effective remedy preventing an interference with fundamental rights and, in cases where such an interference has occurred, its role is to put an end to a violation of such rights.
Therefore, in cases where it is obvious that no further delays can occur in proceedings at the moment when a complaint is filed with the Constitutional Court (even in cases where no final decision has been given), such a complaint can be rejected as being manifestly ill-founded.”
Article 48 (2) provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Prior to 1 January 2002 there was no “effective remedy” within the Convention meaning in Slovakia as regards this right (see, mutatis mutandis, Bánošová v. Slovakia (dec.), no. 38798/97, 27 April 2000).
With effect from 1 January 2002, the Constitution has been amended in that, inter alia, natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
It has been the Constitutional Court’s practice to entertain complaints about excessive length of proceedings only where the proceedings complained of were pending at the moment when such complaints were lodged (see, for example, decisions file nos. I. ÚS 34/99, II. ÚS 55/02, IV. ÚS 96/02 or I. ÚS 161/02).
In proceedings file number I. ÚS 56/02 the Constitutional Court examined an individual complaint under Article 127 of the Constitution of delays in enforcement proceedings concerning a minor’s claim for maintenance. The enforcement commenced in 1998 in Bratislava IV District Court and, from 2001, continued in Bratislava I District Court where it was still pending. In a judgment (nález) of 14 May 2003 the Constitutional Court found that there had been unjustified delays in the proceedings before both District Courts and awarded the minor complainant non-pecuniary damages to be paid by both courts.
In proceedings file number I. ÚS 145/02 the Constitutional Court examined a complaint by an individual under Article 127 of the Constitution of delays in proceedings in his civil action of 1995. The action was partially granted at first instance in 1999. That judgment was however quashed on appeal in March 2002 and the matter was remitted to the first instance court where it was still pending. In a judgment of 9 April 2003 the Constitutional Court found that there had been unjustified delays in the proceedings before the first instance court and awarded the complainant non-pecuniary damages. The Constitutional Court also examined the phase of the proceedings before the court of appeal but found no unjustified delays. A similar approach was adopted in proceedings number I. ÚS 100/02.
In proceedings file number III. ÚS 123/02 the Constitutional Court examined a complaint by an individual under Article 127 of the Constitution of delays in proceedings in a civil action against him. The action was lodged in 1993 with a District Court which, shortly after, transferred it to a Regional Court for reasons of jurisdiction. The action was then pending before the Regional Court until 1998 when the Supreme Court ruled that it should be determined at first instance by the District Court. The action was eventually withdrawn and the proceedings were consequently discontinued by a final decision of January 2003. In a judgment of 6 June 2003 the Constitutional Court found that there had been unjustified delays in the proceedings both before the District Court and the Regional Court. The complainant was awarded non-pecuniary damage to be paid by both courts.
In proceedings file number IV. ÚS 176/03 (decision of 9 October 2003), the Constitutional Court took a different approach. The plaintiff complained to the Constitutional Court, inter alia, about the length of proceedings concerning her maintenance. The action was originally filed with the Košice II District Court in 1998. The question arose whether the first instance and the second instance court judges were impartial. On 24 May 1999 the Supreme Court decided that the question of impartiality of the judges at the first instance would be determined by the Žilina Regional Court. The latter decided on 28 January 2000 that the action would be examined at first instance by the Michalovce District Court which determined it on 11 December 2002. On 10 September 2003 the Žilina Regional Court upheld the first instance judgment. In her complaint to the Constitutional Court of 28 February 2003 the plaintiff alleged that the ordinary courts had violated her right to a hearing without undue delay. The Constitutional Court declared this complaint manifestly ill-founded. The decision stated that, insofar as the complaint related to the part of the proceedings leading to the Supreme Court’s decision of 24 May 1999, it had been filed out of time since, at the moment of the introduction of the constitutional complaint, the relevant part of the proceedings was no longer pending. For similar reason the Constitutional Court rejected the complaint in respect of the subsequent proceedings before the Michalovce District Court which had ended on 11 December 2002. As to the appellate proceedings before the Žilina Regional Court, the Constitutional Court noted that they had lasted less than five months and found that this period was not excessive.


ITEMID: 001-67067
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KROKSTÄDE v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Hans-Olof Krokstäde, is a Swedish national born in 1943 and living in Bunkeflostrand.
The applicant had been a member of the Swedish Bar Association (Sveriges advokatsamfund, hereinafter “the Bar”) since 1975.
On 20 November 1997 the Disciplinary Board of the Bar (Sveriges advokatsamfunds disciplinnämnd), having previously received a number of complaints against the applicant, held a hearing at which the applicant was present.
On 25 November 1997 the applicant submitted to the Disciplinary Board that he had had a migraine attack during the hearing and had therefore not been able to answer the questions or argue in a satisfactory manner. He stated his views on a number of issues and also enquired whether he could submit further explanations with regard to those issues. This was however refused by the Board.
On 4 December 1997 the Disciplinary Board found that some of the applicant's actions amounted to misconduct and that others involved serious neglect of his duties as a lawyer (advokat). It decided to exclude him from the Bar with immediate effect.
The applicant appealed to the Supreme Court (Högsta domstolen) which held an oral hearing during which the applicant was heard anew. A chartered accountant was heard as a witness at the applicant's request. The applicant also invoked new written evidence, inter alia doctors' certificates stating that his working ability during the period in question had been poor due to migraine and apnoea.
On 22 December 1999 the Supreme Court rejected the applicant's appeal. It concluded that there was not much guidance as to the meaning of “misconduct” for the purposes of the provision in the Code of Procedure (Rättegångsbalken, 1942:740) entailing exclusion from the Bar. The preparatory works stated that the wording primarily aimed at actions pertaining to the relationship between the lawyer and his or her client but that the Bar could also focus on misconduct taking place outside the work as a lawyer. Furthermore, the action did not have to be punishable under criminal law in order to qualify as misconduct.
The Disciplinary Board had found that the applicant had neglected the creditors of his limited company. In this respect the Supreme Court concluded that it was clear that the applicant, without having informed himself of the company's financial situation, had sold the company's assets below cost to himself assuming only part of the company's debts. He had thereafter disposed of the company shares without considering the interests of the creditors. The Supreme Court also concluded that these actions entailed misconduct.
The Supreme Court further recalled that a lawyer must not promote wrong and that according to its case-law, a lawyer having participated in the creation of false documents or consciously having drafted false documents had acted in a way amounting to misconduct. It found to be established that the applicant in the fall of 1996 had issued a receipt dated 23 May 1996, in which he had stated that his law firm had received 100,000 Swedish kronor in cash as payment from a client. On 23 May 1996 the same amount had been deposited in the account of another limited company. The payment did not concern a consultation and the applicant had furthermore antedated the receipt. The Supreme Court concluded that a receipt regarding payment from a client was an important document in a lawyer's business, and consciously stating incorrect information could be considered as misconduct. Not being able to exclude that the applicant had been misled to sign the receipt, it however concluded that he had merely neglected his duties as a lawyer.
The Supreme Court finally determined that the organisation of the applicant's office and business, inter alia an incorrect book-keeping, amounted to neglect of his duties as a lawyer.
The Supreme Court concluded that the applicant's actions constituted misconduct and neglect of his duties as a lawyer. Even considering his state of health there were no mitigating circumstances as to his misconduct. The court found that he should therefore be disbarred.
The duties of the Bar are set out in the Code of Procedure and its Regulations are issued by the Government. The Bar is a private association with the duty to maintain ethical and professional standards within the legal profession. Only a member of the Bar can use the title advokat (as opposed to jurist). The Bar has also been entrusted with some public duties, such as its disciplinary powers.
Under chapter 8 section 6 of the Code of Procedure, the activities of the members of the Bar are supervised by the Board and the Disciplinary Board of the Bar.
Under chapter 8 section 7 of the Code of Procedure, a lawyer who in his or her work consciously does a wrong or otherwise acts in a manner amounting to misconduct, shall be excluded from the Bar. If there are mitigating circumstances the lawyer might receive a warning. A lawyer who otherwise neglects his or her duties may receive a warning or an admonition. If there are especially aggravating circumstances the lawyer may be excluded from the Bar.
Under chapter 8 section 8 of the Code of Procedure, anyone having been denied entry to the Bar or having been excluded from the Bar may appeal against the decision to the Supreme Court.
Under Swedish law there is no requirement that a lawyer has to be a member of the Bar in order to practise law. Only when the state appoints a defence counsel in criminal cases should that person according to the Code of Procedure be an advokat, but even in this case there are certain exceptions.
Under section 3 of the Regulations of the Bar, in order to be accepted as a member, the person in question must inter alia have worked in the legal field for at least five years out of which three years must have been spent working for another lawyer in a law firm (advokatbyrå) or in one's own law firm. Furthermore, the person must be working in either of the two in order to be granted membership. Lawyers working in companies, consultancy agencies, organisations or authorities can therefore not use the title advokat.


ITEMID: 001-98596
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF YELDASHEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of Art. 6-1;No violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1961 and lives in Noginsk, a town in the Moscow Region.
7. The applicant is a retired serviceman. He enlisted in 1980, and at the material time he was a captain of the Space Force, occupying on a contractual basis the post of a deputy director of social and political education.
8. On 24 July 1998 the Noginsk Town Court ordered the command to grant the applicant an early discharge because of the command's failure to fulfil their obligations under the contract. On 4 August 1998 this judgment became binding but was not enforced immediately, and the applicant resubmitted his claim.
9. On 21 June 2002 the 94th Garrison Military Court ordered the command to discharge the applicant for health reasons, to provide him with housing, and to pay 7,000 Russian roubles (RUB) in damages. On 24 July 2002 this judgment became binding in the part concerning the discharge and housing. The part concerning the damages was referred for a retrial.
10. On 3 September 2002 the 94th Garrison Military Court ordered the command to pay RUB 23,817.60 in pecuniary and non-pecuniary damage. On 9 October 2002 this judgment became binding.
11. On 9 June 2003 the applicant received the flat.
12. On 27 June 2003 the applicant was discharged from service.
13. On 26 April 2004 the applicant submitted enforcement papers in respect of the damages, and on 5 February 2005 he received the sum due.
14. At the material time judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by Government's Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61019
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PAPASTAVROU AND OTHERS v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Françoise Tulkens
TEXT: 8. The applicants are involved in a long-standing dispute with the State concerning the ownership of land in Omorphokklisia in Galatsi forming part of a wider area called the “Veikou Estate” over which the State claims ownership. In 1923, 1928, 1931, 1932 and 1941 the State expropriated large parts of the Veikou Estate for various purposes in the public interest.
9. In an opinion (no. 23/1987) which was approved by the Minister of Finance in 1987 and confirmed by the same minister in 1992, the Public Estates Consultative Board said that the Veikou Estate belonged to the State, since Mr Veïkos’s heirs had failed to prove that they had acquired property rights under title deeds or from adverse possession of the estate. On the basis of that opinion, the State Lands Authority registered the land possessed by Mr Veïkos’s heirs and subsequently all the plots which had been transferred to third parties by the heirs as public estates. Various sets of proceedings brought against the State by Mr Veïkos’s heirs and third parties are still pending in the domestic courts.
10. In 1934 the Minister of Agriculture decided to extend reafforestation in Attica to a region which included the disputed land. According to that decision, the area had “consisted, before the destruction and deterioration of the forest vegetation ..., of pine-tree forest which [had] progressively deteriorated and was starting to disappear ...” (decision no. 108424/1934).
11. However, in a document of the Athens Forestry Commission of 16 November 1968 on city planning, it was stated that half the area concerned was agricultural and the other half scrubland covered by bushes and just five pine trees. The Forestry Commission expressed the opinion that the area had never been forest land and could not be reafforested, since the decision of the Ministry of Agriculture of 1934 excluded from the scope of reafforestation barren land or parcels owned by individuals. The Forestry Commission concluded that the city development plan could be extended to the area concerned. Two previous documents of the Ministry of Agriculture, dated 3 December 1948 and 11 September 1949, and an expert report concerning the Veikou Estate had arrived at the same conclusion.
12. On 10 October 1994 the prefect of Athens decided that an area within the Veikou Estate, including the disputed plot of land, should be reafforested. It was expressly stated in the prefect’s decision that the aim was “... to recreate the forest greenery that [had] been destroyed or [had] deteriorated by illegal quarrying and other illegal actions, such as land clearing and building, over an area covering 935,483,000 sq. m”.
13. On 23 December 1994 the applicants challenged the prefect’s decision of 10 October 1994 in the Supreme Administrative Court. They claimed that they were the owners of properties that had been created by the parcelling of the Veikou Estate and were located inside the area set aside for reafforestation. In particular, they contended that the prefect’s decision sought to deprive them of any rights of possession or ownership in the contested plot. In their additional observations of 26 July 1996, they claimed that the underlying reason for the decision was an attempt by the State to create a dispute over the applicants’ rights of possession or ownership, despite the fact that there was no basis in law for the decision, since the area had never been a forest in the past.
14. On 20 January 1995 the applicants invited the State to purchase the plot in question from them. The authorities did not reply.
15. On 6 April 1998 the Supreme Administrative Court declared the applicants’ appeal inadmissible on the ground that the prefect’s decision was not an operative one, since it simply confirmed the decision that had been issued by the Minister of Agriculture in 1934. In particular, the Supreme Administrative Court held that the 1934 decision remained in force because it had not been reversed by any other act of equivalent importance. Subsequent acts of the authorities, such as the interpretation of some aerial photographs, could not be considered as a fresh assessment of the situation capable of rendering the prefect’s decision operative.
16. On 22 October 1999 the Athens Forestry Commission, following the procedure prescribed by Law no. 998/1979, classified 189,475 sq. m of land located within the area concerned by the prefect’s decision of 10 October 1994. It concluded that only 20,650 sq. m of it was forest land and should be reafforested. The Forest Disputes Resolution Committee upheld that decision and an appeal is now pending before the Appeal Board.
17. In various judgments over the past few years the Greek courts have been called upon to decide the property status of parts of the Veikou Estate (judgments no. 8864/1995 of the Athens Court of First Instance, no. 8314/1996 of the Athens Court of Appeal, and no. 9632/2000 of the Athens Court of Appeal). The courts have recognised that a number of plots which were situated in the greater Veikou Estate did not constitute forest land but were private properties which were included in the city development plan. Other judicial decisions (judgments no. 13789/1977 of the Athens Court of First Instance, no. 7350/1978 of the Athens Court of Appeal, no. 696/1980 of the Court of Cassation, no. 1865/1992 of the Athens Court of First Instance, and no. 1783/1997 of the Athens Court of First Instance) concluded that the greater area, which comprised the properties claimed by the applicants, had never been forest land in the past.
18. The relevant provisions of the Constitution read as follows:
“The State is under a duty to protect the natural and cultural environment. It shall adopt special preventive or repressive measures for the conservation of the environment. Matters pertaining to the protection of forests and forest areas in general shall be regulated by law. Any change in the use of public forests and public forest areas shall be prohibited, except where agricultural development or any other use is beneficial to the national economy or dictated by the national interest.”
“Public or private forests or forest areas which have been or are destroyed by fire or otherwise deforested, shall not be divested for that reason of their previous status but shall be designated as reafforestation areas and not used for any other purpose.”
19. The Government submitted that, for the purposes of Article 117 § 3, which under the Supreme Administrative Court’s established case-law is directly applicable, the statutory protection of forests continues without any limitation in time and notwithstanding illegal destruction or deforestation. Moreover, the designation of an area as a reafforestation area and the prohibition of any use detrimental to reafforestation are not left to the discretion of the authorities but are mandatory.
20. The relevant sections of Law no. 998/1979 read as follows:
“A Forest Disputes Resolution Committee shall be established at the seat of each prefecture with jurisdiction to settle disputes over the classification of all or part of an area as forest land and over the limits of such land.”
“(1) If no forest register has been compiled, the classification of all or part of an area as forest land and the determination of the limits thereof ... shall be carried out, at the request of any person having a lawful interest or ex officio, by the competent forestry commission.
(2) ... The classification shall be notified to the person, legal entity or public service having submitted the request ...
(3) The prefect or any other person with a lawful interest may lodge an objection to the aforementioned classification within two months from the date of notification ... with the Committee mentioned in section 10(3) ... The Committee and the Appeal Board ... shall decide the objection by a reasoned decision within three months from the date it is filed ...”
“Forests and forest lands which are destroyed or deforested by fire or illegal logging shall be designated reafforestation areas, regardless of any special category they may come into or their location ...”
“(1) The decision to designate land as a reafforestation area shall be taken by the competent prefect. It shall clearly indicate the limits of the area and be accompanied by a plan ...
(3) ... the decision of the prefect mentioned in subsection (1) shall be taken following a recommendation by the competent forestry inspector.”
21. The Government stressed that the aforementioned provisions establish a special judicial procedure for classifying an area as forest land and aim at settling disputes in a way that binds both the authorities and the individual.


ITEMID: 001-86588
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MARUSEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1962 and lives in Smolensk.
7. The applicant’s 6 year old son, Sergey, suffered from a serious congenital heart disease. On 8 February 1995 he died during heart surgery in a State-owned clinic. The applicant requested the Smolensk town prosecutor’s office to investigate her son’s death. She suspected that he had died as a result of medical negligence. On several occasions the case was opened and then closed by the prosecutor’s office on the ground that no fault on the part of the doctors had been established. The conclusions of the investigative authorities relied, in particular, on the results of the forensic examination carried out after the death of Sergey Marusev. The applicant challenged the refusal to prosecute the doctors in court, but to no avail. On 12 February 1997 the Zadneprovskiy District Court of Smolensk (“the District Court”) upheld the prosecution’s decision to discontinue the criminal proceedings. That judgment was upheld by the Smolensk Regional Court on 11 March 1997.
8. On 23 August 1995 the applicant brought a civil action for negligence against Dr M., who had performed the operation, and Hospital no. 1 of Smolensk, in which the operation had been carried out (“the hospital”). She sought compensation for pecuniary and non-pecuniary damage.
9. On 23 December 1996 the District Court rejected her claim, holding that her son had died of natural causes. On 11 February 1997 that judgment was upheld by the Smolensk Regional Court.
10. On an unspecified date the applicant requested the Supreme Court of the Russian Federation to examine her case by way of supervisory review (see the “Relevant Domestic Law” part below).
11. On 23 February 1999 the Vice-President of the Supreme Court brought an extraordinary appeal (протест), pointing to numerous errors of fact and law in the lower courts’ decisions. On 18 March 1999 the Presidium of the Regional Court examined the case, allowed the extraordinary appeal and quashed the impugned judgments of 23 December 1996 and 11 February 1997. The case was remitted to the first-instance court.
12. According to the Government, on 21 March 1999 the District Court received the case file from the Supreme Court. The judge invited the parties to an informal preliminary meeting, which took place on 11 May 1999. The first hearing was held on 20 May 1999. The judge decided to summon additional witnesses and the case was adjourned to 8 July 1999.
13. On 9 July 1999 the District Court dismissed the applicant’s action, holding that the defendants could not be held responsible for the death of Sergey Marusev. On an appeal by the applicant, on 21 October 1999 the Regional Court quashed that judgment, pointing out that the first-instance court had failed to assess important medical aspects of the case. It also recommended that certain additional steps be taken. The case was remitted to the first-instance court.
14. On 17 November 1999 the District Court again dismissed the applicant’s action. On 28 December 1999 the Regional Court overruled the first-instance court and remitted the case to it for a fresh examination. The Regional Court noted that the first-instance court had failed to take certain procedural steps, breached procedural rules and failed to establish and analyse all the pertinent facts of the case.
15. On 19 January 2000 the District Court received the case file from the Regional Court. According to the Government, after having received the case file the judge tried to initiate a supervisory review of the decision of the Regional Court, but to no avail – on 30 March 2000 his request for supervisory review was rejected.
16. On 8 April 2000 the judge invited the parties to an informal preliminary meeting. The first hearing took place on 29 May 2000. On that date the judge decided that an additional forensic examination was needed to establish the cause of death of Sergey Marusev. He formulated eighteen questions to be answered by medical experts and transferred the documents from the case file to a clinic based in the Moscow Region. It took the court several months to obtain the results of that examination.
17. The next hearing was held on 21 December 2000. On that date the court decided to examine two more witnesses – Mr B., the director of the Scientific Centre of Cardiovascular Surgery of the Russian Academy of Sciences, and Mr P., his deputy.
18. On 11 January 2001 the District Court sent a rogatory letter to the Zamoskvoretskiy District Court of Moscow, requesting the questioning of those witnesses. The rogatory letter was received by the Zamoskvoretskiy District Court on 12 March 2001. Mr B. and Mr P. were summoned to the court but failed to appear. On several occasions the court bailiffs tried to reach them at their home and professional addresses, but to no avail.
19. In 2002 the applicant complained about the court’s inactivity to the Administration of the President of Russia and to the Federal Ombudsman’s Office. Her complaints were forwarded to the Moscow City Court. Finally, on 11 February 2002 the judge of the Zamoskvoretskiy District Court of Moscow questioned Mr B. and Mr P. and sent the transcript of their testimonies to the Zadneprovskiy District Court of Smolensk. It was received on 4 March 2002.
20. On 14 March 2002 the Zadneprovskiy District Court set the date for the next hearing at 15 May 2002. On 17 May 2002 it dismissed the applicant’s action against the hospital and doctor M. The applicant appealed. On 15 October 2002 the Regional Court quashed the first-instance judgment and remitted the case to the first-instance court.
21. On 26 December 2002 the District Court delivered a new judgment. This time the court found that there had been certain counter-indications to performing the surgery and that the hospital had not obtained the relevant medical information before the operation. The court concluded that the surgical team and the hospital had therefore been responsible for the death of the applicant’s son due to negligence and satisfied the applicant’s claims in part, awarding her 15,000 Russian roubles (“RUB”, approximately 457 euros) in compensation for non-pecuniary damage and 16,430 RUB ( 500 euros) for pecuniary damage. The court held that the above sums should be paid by the hospital, exonerating Doctor M. from any liability. The remaining part of the applicant’s claims (248,569 RUB in compensation for non-pecuniary damage) was rejected.
22. On 4 January 2003 the applicant appealed. By a decision of 11 March 2003 the Regional Court increased the award for non-pecuniary damage to 100,000 RUB. As regards compensation for pecuniary damage, the judgment of 26 December 2002 was quashed and the case remitted to the first-instance court.
23. On 25 April 2003 the District Court awarded the applicant RUB 6,304 for pecuniary damage. On 24 June 2003 that judgment was quashed by the Regional Court.
24. On 22 August 2003 the District Court examined the case again. It partly satisfied the applicant’s claims, awarding her RUB 43,984 in compensation for pecuniary damage. On 21 October 2003 that judgment was upheld by the Regional Court.
VIOLATED_ARTICLES: 6


ITEMID: 001-59565
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PRICE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant is four-limb deficient as a result of phocomelia due to thalidomide. She also suffers from problems with her kidneys. On 20 January 1995, in the course of civil proceedings in Lincoln County Court for recovery of a judgment debt, she refused to answer questions put to her concerning her financial position and was committed to prison for seven days for contempt of court. In the applicant's recollection, the judge ordered that she should be taken directly to Wakefield Prison. Before leaving the court the applicant asked a court officer if she could take the battery charger for her wheelchair with her. She alleges that the officer told her that this would be considered a luxury item and that she would not, therefore, be able to bring it.
8. Because the applicant's case had been heard during the afternoon of 20 January 1995, it was not possible to take her to prison until the next day and she spent that night in a cell in Lincoln Police Station. This cell, which contained a wooden bed and a mattress, was not specially adapted for a disabled person. The applicant alleges that she was forced to sleep in her wheelchair since the bed was hard and would have caused pain in her hips, that the emergency buttons and light switches were out of her reach, and that she was unable to use the toilet since it was higher than her wheelchair and therefore inaccessible.
9. The custody record states that on arrival, at 7.20 p.m., the applicant informed the custody officer that she suffered from kidney trouble and a recurring ear infection but that she did not require any medication or to see a doctor at that time. At 7.50 p.m. she declined a meal and a hot drink. At 8.50 p.m. the applicant said she was cold so the officer wrapped her in two blankets. When she was checked on again at 9.15 p.m. the applicant was still complaining of being cold. At 9.35 p.m., since she was still cold and had a headache caused by the cold, another blanket was wrapped around her. She was offered a hot drink which she refused. The applicant was asleep at 10 p.m., but by 10.50 p.m. she was awake again, complaining about the cold, and again refused a hot drink. At 11.15 p.m. she asked to see a doctor, who arrived at 11.50 p.m. The doctor's note of his examination of the applicant at 12.35 a.m. states:
“Patient complained of feeling cold, headache and queasy (no food since admission – offered but refused). Talking quite sensibly, not obviously hypothermia, seated in wheelchair. Tells me unable to lie flat and sleeps on sofa, sitting up, at home. On Erythromycin for ear infection. On examination ears NAD Nystigmus J36. Unfortunately the facilities available in the cells for this type of disabled person (sic). Really requires a room temp in the high 70's as not moving/not able to move around. Insulated with 'space blanket' and extra blankets. Offered/given Paracetamol and [bn] stemetil as no co-proxamol available.”
10. According to the custody record, the applicant slept until 7 a.m., when she was moved to another cell and offered food and drink, which she refused. At 8.30 a.m. she was taken to New Hall Women's Prison, Wakefield, where she was detained until the afternoon of 23 January 1995.
11. The applicant was not placed in a normal cell in New Hall, but was instead detained in the prison's health care centre. Her cell had a wider door for wheelchair access, handles for the disabled in the toilet recess and a hydraulic hospital bed. On arrival at the prison the applicant completed a medical questionnaire. She stated that she had health worries but that they were “under control – takes it as it comes”. Staff Nurse Broadhead, who countersigned the questionnaire, wrote:
“Admitted into hospital mainly for mobility problems. Inmate has thalidomide and uses an electric wheelchair which would be difficult to use in the main prison due to steps e.g. to dining room. Has not brought chair charger with her as she says police wouldn't let her.
She suffers from urological problems and has intermittent renal failure ... Is able to feed herself if food is cut up, is able to use cup. Manages on and off the toilet to P.U. [pass urine] but will need assistance with B.O. [opening bowels] in order to clean herself.
Usually sleeps on a couch at home and her dog helps her up during the night. Will need assistance here during the night to get off bed to use the toilet. Will try to use the hospital bed with backrest out. Contacted Dr Rhodes re help for night nurse. Memo done to Night Orderly Officer and Security re assistance at night and need to unlock ...
She is allergic to many antibiotics ... Needs frequent changes of clothes due to urinary problems.
Has settled into unit and eaten dinner.
PS: Cannot be lifted in normal fashion as she has a persistently dislocated shoulder due to an old injury.”
12. The applicant was examined by Dr Kidd, whose notes stated:
“New reception.
Thalidomide victim with numerous deformities including absent arms upper/lower with dislocating L shoulder and no use in R upper limb. Both lower limbs are absent with small feet.
Bladder – is unable to empty completely and gets frequent retentions (when she needs catheterisation) and infection ...
Bowels – ... unable to manually clean herself.
At home she is relatively independent tho' has numerous services including electric wheelchair – which may need recharging over W/E [weekend].
In hospital has difficulty with
bed – too high
sink – unable to reach
mobility – battery running down
fluid intake – likes to take juice and there is none
diet – vegetarian
general hygiene – needs help ...
Needs: fluid intake
batteries recharged
adequate temperature ...”
13. A “continuous medical record” on the applicant was kept during her detention. The first entry, dated 21 January 1995, stated:
“I asked duty Governor, Mr Ellis, to give permission for a battery charger for Adele's wheelchair to be brought in if we could arrange it. He agreed to this and whilst here we pointed out the numerous problems staff may encounter with this inmate i.e.
(1) Needs lifting in and out of bed and she says this is usually done by one person standing behind her with arms around her midriff then lifting her either onto the bed or onto her wheelchair.
(2) She has, at home, a device worked by compression that gets her in and out of the bath. If she doesn't have a daily bath she risks developing sores, especially where her foot lies across her 'leg'.
(3) Because of recurrent urinary infections she should take two litres of fluid daily but usually has juice and doesn't like water, therefore will probably reduce her fluid intake. After some consideration Mr Ellis decided that if we could find Adele a suitable place in outside hospital he would licence her to go, but we do not have any medical condition to admit her to hospital with. Dr Kidd will review Adele tomorrow, as he thinks there is a likelihood she will develop a UTI [urinary tract infection].”
14. The nurses who cared for the applicant during her detention kept a contemporaneous record, which stated for the night of 21 January 1995:
“Impossible to toilet during the night. Have been into Adele's cell twice. Took over 1/2 hour to toilet her then could not get her back on the bed. Given analgesia and she is getting a great deal of pain through lying on a solid mattress. Very difficult to care for her with one nurse.”
15. The applicant alleged that on the evening of 21 January 1995 she was lifted onto the toilet by a female prison officer, but was then left sitting on the toilet for over three hours until she agreed to allow a male nursing officer to clean her and help her off the toilet. The Government submitted that on 21 January 1995 there was only one female nurse on duty, Nurse Lister, and that she enlisted the help of two male members of staff, Senior Officer Tingle and Officer Bowman, and that the two male members of staff assisted Nurse Lister in sitting the applicant up and then left the room while the applicant moved her bowels. Nurse Lister then cleaned the applicant and laid her back down. It is unclear from the Government's submissions whether Senior Officer Tingle and Officer Bowman were nursing staff or whether they were prison officers without nursing qualifications. The applicant further claimed that later that evening, a female nurse who was assisting her onto the toilet removed her bedclothes in the presence of two male prison nursing officers, thereby exposing her, naked from the chest down, to the male officers. The Government denied that these incidents occurred. They pointed out that prior to her release the applicant made a complaint to the prison governor concerning the lack of adequate facilities, but containing no mention of the above events.
16. An agency nurse was employed to care for the applicant during the night of 22 to 23 January 1995. The entries in the nursing record for 22 January stated:
“Says she finds bed uncomfortable and there is a risk of her developing bed sores, but she is not completely immobile and is able to shift her weight about the bed. No problems with diet but fluid intake diminished due to her not liking water. There is a need for us to separate Adele's little whims from her genuine problems.
Bowels opened, says she's in retention and has not PU'd [passed urine] since 01.00 hours, refusing to drink water, refuses to get ready for bed until 8 p.m.
Night – 21.50 asked to be put to bed. When asked why she was not in bed says day staff said agency nurse was going to wash her and put her to bed.
23.10 asked to be moved as she was having pains in 'legs'. Coproximol given and sat up. Settled and slept later. Has not PU. Has been drinking.”
17. The remission provisions in sections 45 and 33 of the Criminal Justice Act 1991 meant that the applicant had only to serve half the sentence imposed, namely, three and a half days. Prior to her release, on 23 January 1995, the applicant was examined by Dr Kidd who found she needed catheterising due to urine retention. The medical record stated:
“For release this afternoon as soon as transport arrangements can be made. ...
To have bath and bladder emptied via catheter before leaving.
When asked if she had any specific medical complaints – she only asked for a bath and to be catheterised.
She had some complaints about her sleeping arrangements. Said that Gv. Mr Ellis had said that she could sleep on a chair and have her cell door open all night. Given that she is due for release today she said her Governor's application was immaterial. ...”
18. The applicant was collected from prison by a friend. She claimed to have suffered health problems for ten weeks as a result of her treatment in detention, but has not provided direct medical evidence in support of this claim.
19. On 30 January 1995 the applicant consulted solicitors with a view to bringing an action in negligence against the Home Office. She was granted legal aid, limited to obtaining evidence and seeking counsel's opinion as to merits and quantum. In his opinion dated 6 March 1996, her counsel referred to the difficulties which the applicant was likely to face in proving that she had suffered the ill-treatment which she alleged, and referred to a judgment of the High Court (Knight and Others v. Home Office and Another [1990] 3 All England Law Reports 237) which held that, given the lack of resources, the standard of care required of a prison hospital was lower than that which would be required in an equivalent outside institution. Counsel advised that, in the light of this case-law and the difficulties of proof which she faced, the applicant had a limited prospect of success in her claim and that, even if successful, damages were not likely to exceed 3,000 pounds sterling. In the light of this advice, the applicant's legal aid certificate was discharged on 13 May 1996.
20. It is not normal practice for the County Court to give any direction as to where a particular defendant should be detained. Section 12(1)-(2) of the Prison Act 1952 provides that it is for the Secretary of State to allocate a prisoner to any prison:
“12 (1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.
(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct, and may by the direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.”
VIOLATED_ARTICLES: 3


ITEMID: 001-4677
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LANTTO v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Finnish citizens, born in 1945 and 1952 and resident in Pello (Sweden) and Pello (Finland), respectively. The first applicant is a building engineer and the second applicant is a managing director.

They are represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
The first applicant was the managing director of the limited liability company K (hereinafter “K”), and the second applicant the managing director of the limited liability company P (hereinafter “P”). They are brothers.
On 22, 23 and 30 May 1991, requests for a winding-up order were filed against P. On 27 May 1991, the second applicant, as the company’s managing director, was notified of the winding-up proceedings.
On 30 May 1991, the applicants signed a contract between the companies K and P. According to the contract, K was to repair a roof of a building owned by P. The contract was priced at 600,000 Finnish marks (FIM). On the same day, P paid the said sum to K in advance. The works were to be completed by 15 July 1991.
On 12 June 1991, the District Court (kihlakunnanoikeus, häradsrätten) of Ylitornio ordered the winding-up of P for insolvency.
On 27 June 1991, the liquidators of P’s assets decided to maintain the contract between K and P.
On 27 September 1991, the liquidators lodged a petition with the police. They suspected that the applicants had acted dishonestly as debtors by signing the contract despite being aware of the winding-up requests against P. They found that the correct contract price was FIM 200,000, at the most. Moreover, the work had not been completed and it had been impossible to recuperate the money that P had paid to K.

On 26 May 1992, the Chief of Rural Police and Public Prosecutor of Ylitornio, S, (hereinafter “prosecutor S”) charged the second applicant with, inter alia, the offence of debtor’s dishonesty. Furthermore, he charged the first applicant with aiding and abetting that crime. According to the indictment, the second applicant had known, on the basis of his existing or expected financial difficulties, that his act could be detrimental to the financial interests of his creditors. In these circumstances he had, without good cause, increased his financial obligations by entering into the contract of FIM 600,000 when the real value of the contract was FIM 200,000, at the most, and the whole contract price had been paid immediately after signing the contract. The prosecution relied on chapter 39, section 1 (4), of the Penal Code.
Chapter 39, section 1, of the Penal Code (rikoslaki, strafflagen, 769/1990) stipulates as follows:
“The Offence of Debtor’s Dishonesty. A debtor, who, on the basis of his existing or expected financial difficulties, is aware that that his act can be detrimental to the financial interests of his creditors,
1) destroys his property,
... (points 2 and 3 concern donations and transfers abroad),
or
4) increases, without good cause, his financial obligations,
thereby causing his insolvency or substantially aggravating it, shall be sentenced for the offence of debtor’s dishonesty ...”
(Unofficial translation from Finnish. NB. that the Finnish word in point 1) (hävittää) has also a less concrete meaning than “destroy”, namely “dispose of” or “dissipate”. Hereinafter the word “dispose of” is being used.)

The case was heard by the District Court of Ylitornio, which held six hearings.
Prosecutor S acted as prosecutor at the three first court hearings, namely on 26 May, 8 September and 1 December 1992. As he was to take up a post in a different rural police district, he was replaced by another prosecutor, R (hereinafter “prosecutor R”). The fourth court hearing was held on 9 February 1993.
On 6 April 1993, at the fifth court hearing, both applicants were present and counsel represented them. During this hearing, prosecutor R stated that the second applicant had, by entering into the contract in issue, not only increased P’s financial obligations but also disposed of its property. In this regard, he referred to the advance payment whereby P’s possessions had been transferred out of its creditors’ reach. He stated that in this respect he extended the charges. He referred to chapter 39, section 1, of the Penal Code without further specification as to the point in that section. Furthermore, he requested that a prohibition of engaging in business be imposed on the second applicant.
The second applicant, represented by counsel, replied that he had not disposed of P’s possessions. The parties declared that they were ready for the case to be decided. The District Court, however, adjourned the case to prepare its judgment and fixed the pronouncement thereof for 26 May 1993.
On 26 May 1993, the District Court held the last hearing. Both applicants were present and represented by counsel. During this hearing, the District Court heard a further witness called by the second applicant (previously, ten witnesses had been heard). Moreover, the District Court accepted further oral submissions from the parties. The defence submitted that the charges had been extended but that the extension had not been substantiated. The parties informed the court that they were ready for the case to be decided.

On 26 May 1993, the District Court pronounced its judgment. The District Court, when citing the prosecutor, noted that according to the indictment, which referred to the contract and the payment thereof, the company’s financial obligations had not only been increased but its possessions had also been disposed of. In this connection, the District Court referred to chapter 39, section 1(1), of the Penal Code.
The District Court found that the second applicant had, without good cause, increased P's financial obligations by entering into the contract with K and by paying the full contract price immediately on signature, although K had not intended to fulfil its part of the contract. Thereby, the second applicant had disposed of P’s property and substantially aggravated its insolvency. The District Court found that the first applicant had aided and abetted the crime, having accepted P's payment to K although aware of P’s financial difficulties.
The District Court found the second applicant guilty of, inter alia, the offence of debtor’s dishonesty in violation of chapter 39, sections 1(1) and 1(4), of the Penal Code. He was sentenced to one year and four months’ suspended imprisonment and was prohibited from exercising any business activity for a three-year period. The first applicant was found guilty of aiding and abetting that crime and sentenced to ten months' suspended imprisonment. Furthermore, the applicants were ordered to pay damages to P.

After the District Court’s judgment, the applicants instituted three sets of proceedings:
(i) appeal proceedings, i.e. appeal to the Court of Appeal (hovioikeus, hovrätten) and request for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen);
(ii) petition with the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern i statsrådet) concerning the bias of prosecutor S;
(iii) report of an offence against a lay judge, Y, on the basis of bias, with the Prosecuting Counsel (kanneviskaali, advokatfiskalen) at the Court of Appeal. In the course of these proceedings, the Prosecuting Counsel also initiated an investigation concerning an allegation that prosecutor R had addressed the District Court outside the court proceedings during its deliberations.
In the following, the above-mentioned proceedings are described separately, following chronological order within each set of proceedings.
(i) The appeal proceedings

Both applicants appealed, separately, to the Court of Appeal of Rovaniemi. They requested that the charges against them be dismissed. They objected to the alleged extension of the charges. Furthermore, the second applicant requested that the Court of Appeal hold a hearing with a view to re-examining the witnesses heard by the District Court. Also the first applicant submitted that the Court of Appeal should hold a hearing. The applicants based their appeals, inter alia, on the bias of the above-mentioned lay judge Y, who had participated in the decision-making. They stated that Y had been a member of the Board of Directors of a company that had been P’s creditor at the time of the District Court’s proceedings. Furthermore, they found that a second lay judge, V, who had participated in the proceedings only at an early stage, had been biased on the ground that he had also been a member of the Board of Directors of one of P’s creditor companies at the time of the court proceedings.

On 24 November 1993, the Court of Appeal held a hearing. The applicants, assisted by counsel, were present at the hearing. The Court of Appeal examined, in addition to the parties, two of the eleven witnesses heard by the District Court, two further witnesses as well as F, who had been the second applicant's counsel in certain matters. According to the Court of Appeal's minutes, all five were heard at the second applicant's request. There is no indication that the Court of Appeal would have refused to examine the other witnesses previously heard by the District Court or any other witnesses. The prohibition of engaging in business was withdrawn until the Court of Appeal gave its final judgment.
On 17 March 1993, the second applicant sent the Court of Appeal further written submissions. He noted, inter alia, that the Court of Appeal was the first impartial tribunal examining the case. Furthermore, he commented on certain evidence that had come to light during the oral hearing.

On 2 June 1994, the Court of Appeal delivered its judgment. Under the subheading “Procedure in the Court of Appeal”, it found that the lay judges Y and V had lacked impartiality. The Court of Appeal noted that the defence had not even contented that those judges had influenced the proceedings before the District Court or the contents of the minutes. For this reason, and in view of the fact that the applicants had lodged an appeal concerning all aspects of the case and requested an oral hearing, the Court of Appeal had itself held such a hearing without referring the case back to the District Court.
The Court of Appeal dismissed the applicants' objection regarding the alleged extension of the charges.
The Court of Appeal summed up F’s oral statements as follows. F had been instructed by the second applicant to investigate the possibilities of obtaining compensation for the damaged roof. After K’s insolvency had been discovered, the second applicant had informed F that the first applicant had also become personally insolvent. From this testimony, the Court of Appeal inferred that, at the time of signing the contract between P and K, the second applicant had been aware both of K’s insolvency and the first applicant’s personal insolvency.
As regards the merits, the Court of Appeal found that the second applicant had had a good reason for taking action to have the roof of P’s building repaired. Moreover, the contracted price had not been excessive and K’s failure to complete the works had partly been due to P’s liquidators’ failure to supervise them. It noted that the roof had originally been built by the first applicant and that, most obviously, the second applicant would have had the right to compensation from the former. The Court of Appeal found that the second applicant, when entering into the contract, had been aware that P was insolvent and that the contract and the payment could be detrimental to the creditors’ financial interests. Furthermore, the second applicant had, by entering into the contract, without good cause increased P’s financial obligations and by paying the contract price, disposed of its property, thereby substantially aggravating its insolvency. It found the second applicant guilty of, inter alia, the offence of debtor’s dishonesty, relying on chapter 39, section 1, points 1 and 4, of the Penal Code. It sentenced the second applicant to six months’ suspended imprisonment and the first applicant to four months’ suspended imprisonment. It also reduced the damages to be paid and quashed the prohibition of engaging in business imposed on the second applicant.
On 26 and 27 July 1997, the applicants, respectively, sought leave to appeal to the Supreme Court. They requested that the Supreme Court, either without or after an oral hearing, dismiss the charges against them or, alternatively, quash the Court of Appeal’s judgment and refer the case back to a court of a lower instance for renewed proceedings (alemman oikeuden uudelleen käsiteltäväksi). Their requests for leave to appeal concerned, inter alia, the bias of the lay judges, the bias of prosecutor S, the extension of the charges, as well as the evaluation of evidence before the Court of Appeal. According to the applicants, F had never said that the first applicant was insolvent. He had only said that the first applicant was unable to pay some FIM 700,000 in damages. Moreover, F had made no statement regarding K. The applicants did not complain that prosecutor R had addressed the District Court outside the hearings during its deliberations.

On 14 December 1994, the Supreme Court refused the applicants leave to appeal.
(ii) The petition with the Chancellor of Justice concerning the bias of the prosecutor
On 25 March 1994, the applicants lodged a petition concerning the bias of prosecutor S.

On 15 February 1995, the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, justitiekanslersadjointen i statsrådet) found that prosecutor S had been a member of the Board of Directors of a bank called T when the bank had granted loans to P. That bank had been an important creditor of P at the time when P went into liquidation. It merged with two other banks, and, subsequently, a bank L was founded. Prosecutor S had been a member of the Board of Governors of the latter bank at the time when the petition concerning offences around the liquidation of P had been lodged with the police. The offences had violated the interests of P’s creditors. Due to the merger, bank L had succeeded bank T as P's creditor. The Deputy Chancellor of Justice found that in these circumstances prosecutor S’s impartiality had been open to doubt and that, therefore, he should neither have considered whether to press charges against the applicants nor have acted as prosecutor in the case. The Deputy Chancellor reprimanded S but found no grounds for considering that he had committed an offence in office, given the lack of explicit provisions in domestic law governing the impartiality of public prosecutors.
(iii) The petition with the Prosecuting Counsel concerning the bias of a lay judge

On 4 March 1994, the applicants lodged a report of an offence with the Prosecuting Counsel of the Court of Appeal concerning an offence in office by lay judge Y, who had participated in the decision-making of the District Court’s judgment (see also “ (i) The appeal proceedings”). The lay judge had been a member of the Board of Directors of a company that had been P’s creditor at the time of the District Court’s proceedings. The applicants considered that Y had committed an offence in office by not stepping down from the bench.
The lay judge stated in his written submission, inter alia, that prosecutor R had during the last hearing in the District Court requested “more severe sentences and a lengthy prohibition of the second applicant’s business activities”. On the last point, prosecutor R had referred to the winding-up of another company in Pello in which the second applicant had been involved. According to Y, the prosecutor’s request had resulted in an amendment to the draft judgment, which the presiding judge had distributed to the lay judges.
On 20 April 1994, the Prosecuting Counsel of the Court of Appeal requested that a pre-trial investigation be opened regarding Y's suspected partiality and prosecutor R’s above-mentioned request to the District Court. The Prosecuting Counsel requested that the police investigate the circumstances in which prosecutor R had made this request.
In the pre-trial investigation Y, on 15 June 1994, acknowledged that he should not have taken part in the applicants’ case. His participation had been due to his lack of knowledge but had not affected the outcome of the case. According to the recollection of the Presiding Judge of the District Court, also heard in the pre-trial investigation, prosecutor R had requested the prohibition of engaging in business “at the last or last but one hearing”. The Presiding Judge, furthermore, stated that the parties’ oral submissions at the hearings had been transcribed verbatim.
The pre-trial investigation record was completed on 20 June 1994. A copy thereof, which the applicants submitted to the European Commission of the Human Rights as an annex to their application, was certified on 23 December 1994.
B. Relevant domestic law and practice
For chapter 39, section 1, of the Penal Code, see A. above.
According to the Code of Procedure (oikeudenkäymiskaari, rättegångsbalken), as it stood, the District Court was composed of a presiding professional judge and three or four lay judges.
Courts of appeal are competent to examine both factual and legal issues.
The Supreme Court’s precedent of 12 June 1984 (KKO 1984-II-110) concerned a case in which the Court of Appeal had found that a lay judge in the District Court had been biased. Therefore, the Court of Appeal had referred the case back to the District Court. In the Supreme Court’s view, since there was no indication that the biased lay judge would have influenced the proceedings and since all the defendants had by appeal brought the case in its entirety before the Court of Appeal, the latter should not have refrained from examining the case itself.
The Supreme Court found in another precedent of 6 November 1995 (KKO 1995:185) that the District Court had not met the requirements of impartiality as guaranteed by Article 6 of the Convention. Therefore, and in order to fulfil the requirements of a fair trial, the case was to be referred back for a retrial to the relevant court of first instance.


ITEMID: 001-67964
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: LUPASCU v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Petru Lupascu, is a Moldovan national who was born in 1957 and lives in Chisinau.
The applicant was charged with fraud in February 1997. During the subsequent criminal investigation, his home was searched and certain family assets were seized by order of the court. He was also prohibited from leaving the city. Since his job required frequent travel abroad, he was dismissed. In 1999 he was acquitted, an acquittal upheld on appeal.
Given his acquittal, the applicant initiated an action for damages for which domestic law provided. On 10 September 2001 the Rîşcani District Court accepted his claims in part and awarded him 200,000 Moldovan lei (MDL) in compensation (pecuniary and non-pecuniary loss) and MDL 8000 (the equivalent of EUR 674 at the time) in legal costs. On 18 December 2001 the Chişinău Regional Court partly set aside that judgment: it awarded him MDL 100,000 (the equivalent of EUR 8,420 at the time) in compensation (non-pecuniary loss only) and it upheld the legal costs award (MDL 8000). On 21 March 2002 the Court of Appeal upheld the Regional Court's judgment. An enforcement warrant was submitted to the bailiff, who did not enforce it.
On 23 July 2002 the Prosecutor General filed a request for the annulment of the judgment of 21 March 2002, a request upheld on 25 September 2002 by the Supreme Court of Justice. That court adopted a new judgment awarding him MDL 3000 (the equivalent of EUR 226 at the time) in compensation for non-pecuniary damage and upholding the legal costs award (MDL 8000). That judgment was enforced in November 2002.


ITEMID: 001-103585
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LYSAYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
TEXT: 1. The applicant, Ms Lyudmila Anatolyevna Lysaya, is a Ukrainian national who was born in 1968 and lives in Bokovo-Platovo, in the Lugansk region. She was represented before the Court by Mr N. K. Kozyrev, a lawyer practising in Lugansk. The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 10 September 2000 the applicant’s husband, Mr L., who had no previous criminal record, was apprehended on suspicion of theft. The same day he confessed to having been an accomplice in a theft committed with two other individuals.
4. On 13 September 2000 the prosecutor of Antratsyt charged the applicant’s husband with theft and decided to place him in the Temporary Detention Centre of the Antratsyt Police Department (the ITT) in cell no. 6, which he shared with three other detainees, Mr S., Mr A. and Mr Kh.
5. On 14 September 2000 the applicant’s husband was examined by a medical team at his own request. A doctor gave him an injection of chloromazine, finding that the applicant’s husband was suffering from minor bodily injuries and hallucinations as a result of alcohol intoxication.
6. On 17 September 2000 at 10.25 a.m. the ITT administration requested medical assistance for the applicant’s husband. He was transferred by ambulance at 10.40 a.m. to the emergency unit of the Gorlivka Central Hospital, where he died on 18 September 2000.
7. According to the autopsy report of 19 September 2000, the applicant’s husband died from serious multiple bodily injuries, namely; head and chest injuries, a brain haemorrhage, a broken chest bone, broken ribs on both sides, injuries to his lungs inflicted by fragments of broken ribs and chest bones, and an internal haemorrhage into the kidneys and stomach.
8. On 2 October 2000 the applicant lodged a complaint with the General Prosecutor’s Office against the officers of the Antratsyt Police Department for murdering her husband.
9. On 12 October 2000 the Antratsyt Prosecutor’s Office instituted criminal proceedings into the death of the applicant’s husband.
10. On 13 October 2000 the Prosecutor of Antratsyt sent a petition to the Head of the Antratsyt Police Department, referring to violations of regulations in the Antratsyt ITT, in particular the placing of persons without any previous criminal record with those who had been convicted before, and failure of the ITT officers to comply with their duties properly and to react effectively to breaches of discipline by detainees. The Prosecutor requested that the officers responsible for the situation involving the applicant’s husband be disciplined.
11. On 17 October 2000 the Antratsyt Police Department conducted an internal inquiry, which resulted in disciplinary sanctions against some of the police officers. The results of the disciplinary proceedings were reviewed and overruled on 24 October 2000 by the Lugansk Regional Police Department, which issued an order acknowledging that the failure of the officers of the Antratsyt police station to isolate the applicant’s husband and the violation of police regulations had led to serious circumstances. They decided to impose stricter disciplinary sanctions on those responsible and their superiors. As a result, four officers were downgraded in their positions, nine officers were warned about their partial non-compliance with the requirements of their posts, and two more officers were reprimanded.
12. On 30 October 2000 the investigation charged Mr S. with inflicting bodily harm on the applicant’s husband.
13. On 20 November 2000 an additional forensic medical examination was ordered by the investigator to define which injuries had been inflicted on the applicant’s husband by each of his cellmates.
14. On 22 November 2000 the investigation charged Mr A. with inflicting bodily harm on the applicant’s husband.
15. On 27 November 2000 the investigation conducted an on-site reconstruction of the crime with Mr S.
16. On 20 December 2000 the additional forensic medical examination was carried out.
17. On 25 December 2000 the prosecutor Zh. refused to institute criminal proceedings against the police officers of the Antratsyt Department for lack of proof of their involvement in the crime
18. On 25 December 2000 the applicant filed a claim for damages against Mr S., Mr A. and Mr Kh.
19. On 26 December 2000 the investigation charged Mr Kh. with inflicting bodily harm on the applicant’s husband.
20. On 27 December 2000 the applicant studied the case file, which contained all the procedural decisions taken prior to that date.
21. On 30 December 2000 the investigation was completed and the criminal case was sent to the Antratsyt Town Court (“the Antratsyt Court”) for examination.
22. On 19 January 2001 the Antratsyt Court held a preparatory hearing and accepted the case for examination.
23. On 8 February 2001, the Non-Governmental Committee for the Protection of Constitutional Rights and Freedoms of Citizens allowed the applicant’s request for assistance in the protection of her rights in the proceedings and authorised Mr Kozyrev to act in the criminal proceedings as a “public accuser” in her interests. The same day the above-mentioned NGO requested the Antratsyt Court to admit Mr Kozyrev as a “public defender” in the criminal proceedings concerning the death of the applicant’s husband.
24. In the course of the proceedings, the applicant alleged that her husband had been tortured by the police, had had a broken skull and metal objects under his nails. On 3 April 2001 an additional forensic medical examination, ordered by the court, provided further clarifications in relation to the previous expert opinions. The expert confirmed that the applicant’s husband had sustained numerous injuries, but denied the existence of the broken skull and presence of metal objects under the nails of the victim, as alleged by the applicant.
25. On 15 June 2001 the Antratsyt Court found Mr S., Mr A. and Mr Kh. guilty of inflicting bodily injuries on the applicant’s husband, causing his death. The court also found that the police officers had had no reason to beat the applicant’s husband, as he had already pleaded guilty by the time of the incident. It also found that the applicant’s husband had been suffering from chronic alcoholism and had been very aggressive towards the other cellmates. It found that the injuries had been inflicted by the persons who were held in the same cell with the applicant’s husband, who had been defending themselves against his aggressive behaviour, which had been caused by his alcohol-related dependence (delirium tremens). The court stated that the applicant’s husband had sustained the following injuries on 14 September 2000: a cerebral haemorrhage, haemorrhage of both eyelids, left auricle and lips, a broken nose, an injury to the lower eyelid, abrasion of the lumbar region, a haemorrhage of the right kidney capsule and bruises to the lumbar region, all of which amounted to “moderate bodily injuries” for the purposes of assessing the impact on his health. The court further established that on 14-15 September 2000 the applicant’s husband had been severely beaten by Mr S. and had had a conflict with other detainees. Moreover, it found that on 16 September 2000 Mr S. had tied the applicant’s husband up with a shirt and left him lying injured on the floor of the cell until the next morning. The court sentenced Mr S., Mr A. and Mr Kh. to seven, three and two years of imprisonment. The judgment also mentioned that no civil claim had been lodged in the case.
26. On the same day the Antratsyt Court made a separate ruling concerning shortcomings in the work of investigation. It noted that the allegations of the applicant as to signs of torture had not been fully checked at the pre-trial stage and therefore the court had had to order an additional forensic examination to verify the applicant’s allegations (see paragraph 24 above), although that examination could have been carried out at the pre-trial stage.
27. On 21 June 2001 Mr S. lodged an appeal in cassation with the Lugansk Regional Court. Not denying the fact that he had beaten the applicant’s husband, he claimed that he had acted in self-defence and therefore requested a re-examination of the case.
28. Having been informed that Mr S. had lodged an appeal against the judgment of 15 June 2001, the applicant decided not to appeal against that judgment. She did not submit any written submissions to the appeal of Mr S. According to the applicant she had expected to present her arguments orally, but she had not been duly notified of the date of the hearing. According to the Government, the relevant notification had been sent to the applicant.
29. Following amendments to the Code of Criminal Procedure, which entered into force on 29 June 2001 and introduced three levels of jurisdiction in lieu of two, the Lugansk Regional Court (now the Lugansk Regional Court of Appeal) examined the case as a second, appellate instance on 7 September 2001. Mr Kozyrev, who had allegedly found out about the hearing by chance, was not allowed to present his arguments to the Lugansk Regional Court of Appeal, since he was not legal counsel for the applicant or any other party, while the procedural figure of public accuser, in which capacity Mr Kozyrev had entered the proceedings in the first instance, had been completely abolished following the above-mentioned amendments to the Code of Criminal Procedure. The court, in the absence of the parties, upheld the judgment of 15 June 2001 with minor amendments. It found no evidence that injuries had been inflicted on the applicant’s husband by police officers.
30. The applicant appealed in cassation to the Supreme Court. She maintained that her husband had been killed by the police officers and the sentenced persons had confessed to a crime that they had not committed. She further complained that she could not present her arguments to the court of appeal as she had not been duly summoned to it.
31. On 11 July 2002 the Supreme Court rejected the applicant’s appeal in cassation against the judgment of 15 June 2001 and the decision of 7 September 2001, respectively, as being unsubstantiated. It also found the conclusions of the lower courts well-founded.
32. Prior to 29 June 2001 the criminal proceedings in Ukraine had comprised two levels of jurisdiction: a first-instance court and a court of cassation. After a judgment had been given by a first-instance court, the parties had seven days to lodge an appeal in cassation.
33. The Code defined the roles of “public accuser” and “public defender”, which were introduced in Soviet times with the aim of achieving a more active participation of the public in criminal proceedings. Under Article 265 of the Code of Criminal Procedure representatives of non-governmental organisations and groups of employees could participate in judicial proceedings (not at the stage of investigation) both on the side of the prosecution and on the side of the defence. The court could rule to allow a representative of an NGO to participate as a “public accuser” in the court hearings on behalf of his or her organisation. Under the said Article the public accuser was entitled to give testimonies, to examine evidence, make requests, express his or her opinion about the requests of other participants in the proceedings, to request withdrawals, to take part in the court deliberations, and give his or her opinion. The public accuser was not entitled to appeal against a judgment of a court in a criminal case in which he or she had participated. The role of public accuser was complementary to that of the prosecutor and the representative of the aggrieved party.
34. Following the Amendment Act of 21 June 2001 (which entered into force on 29 June 2001), criminal proceedings are examined at two or three levels of jurisdiction depending on the seriousness of the case. If the case was first decided in a local court, the decision is appealable to the regional court of appeal and then to the Supreme Court, as a court of cassation. The Act also repealed the provisions concerning the roles of “public accuser” and “public defender” in their entirety.