ITEMID: 001-71082
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: F. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms F., is a Slovakian national, who was born in 1959 and lives in Bratislava. She was represented before the Court by Mr I. Gažík, a lawyer practising in Prievidza. The respondent Government were represented by their Agent, Mr. P. Kresák, succeeded by Ms A. Poláčková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 January 1996 the applicant gave birth to a boy. A blood test showed that the applicant’s husband had not fathered the child. The child’s father is unknown.
As the applicant had health problems at the time of delivery, the child was placed in a social institution, with the applicant’s consent, on 25 April 1996. The applicant visited her son regularly and bought necessary items and presents for him.
On 5 August 1996 the applicant claimed that she should be allowed to take care of the child.
On 9 September 1997 the Bratislava III District Court dismissed the action. The decision stated that the applicant’s situation did not allow her to take appropriate care of her son, and that she suffered from a lasting mental disease. It was served on the applicant on 20 October 1997. The applicant did not appeal.
Between 21 November 1997 and 16 March 1998 the applicant was treated as an in-patient in a psychiatric hospital.
The Government contend, with reference to a list of the visits, that the applicant’s last visit of her son took place on 2 July 1997.
The applicant submits that between 2 July 1997 and 21 November 1997 she attempted to visit her son but was told that he was in the theatre. After her in-patient treatment had ended in March 1998, the applicant submits, without giving further details, to have again unsuccessfully attempted to visit the child.
On 13 November 1997 the Bratislava III District Court delivered a judgment depriving the applicant of her legal capacity on the ground that she suffered from a mental illness. On 25 September 1998 the Bratislava Regional Court upheld the first instance judgment and the decision became final on 29 March 1999.
The documents submitted by the Government indicate that the Malacky District Court, on 20 May 1999, allowed the applicant’s son to be adopted by a couple. The judgment became final on 1 July 1999. It stated, inter alia, that the applicant’s last visit of her son took place on 2 July 1997. As she had failed to manifest any interest in the child thereafter, the boy had become free for adoption as from 2 February 1998. On 2 March 1998 he had been placed in the pre-adoption care of the couple concerned. A guardian appointed to represent the interests of the child in the proceedings agreed to the adoption. It is apparent from the judgment that the applicant was not considered to be a party to the proceedings.
On 12 July 2001 the Bratislava III District Court restored legal capacity to the applicant. Reference was made to an expert opinion submitted on 19 April 2001. In the opinion the expert summed up the applicant’s situation, as described by the applicant during the examination. According to the opinion, the applicant stated that her child born in 1996 had been placed in an institution. She could not visit him as she had been treated in a hospital. The boy had been adopted by other persons and the applicant had no information about him. She could only hope that the child was doing well. The applicant also stated that she had not been aware that it would have sufficed, as demonstrating her interest in the child, to send him a postcard.
On 13 January 2004 the applicant’s lawyer requested, on the applicant’s behalf, that the applicant should be allowed to meet her son.
In a letter dated 14 January 2004 and delivered on 19 January 2004 the social institution where the child had been placed prior to his adoption replied that the boy had not been in its care as from 2 March 1998 and that he had been adopted by a family. The adoption had been approved by a court and it was irrevocable. Reference was made to Section 63(1) and, in substance, to Section 72(1) of the Family Act.
The letter further stated that the applicant had visited the boy for the last time on 2 July 1997 and that his father was unknown. The boy had been adopted under Section 68(1)(a) of the Family Act without the applicant’s consent as she had failed to show interest in him for more than six months.
The following relevant provisions of the Family Act (Zákon o rodine) were in force at the relevant time.
Under Section 63(1), following a person’s adoption the same relations as those existing between parents and children come into being between the adopted person and the persons who adopted him or her.
Paragraph 2 of Section 63 provides that a court decides on a person’s adoption upon the proposal of those who wish to adopt that person.
Section 68(1)(a), as in force until 31 March 2002, provided that, in cases where the legal representatives of a child to be adopted were his or her parents, their consent to the child’s adoption was not required when they had failed to demonstrate, for at least six months, real interest in the child which they normally should show as parents. With effect from 1 April 2002 this provision was extended in that it enumerated the following reasons as examples of the parents’ failure to show real interest in the child: failure to visit the child regularly, failure to comply regularly and voluntarily with the obligation to provide for the child’s maintenance, failure to show willingness to adjust, as far as possible, their family and social situation in a manner permitting them to take personal care of the child unless they were prevented from doing so for a serious reason.
Pursuant to paragraph 2 of Section 68, in such cases it is required that a guardian appointed to represent the interests of the child in the context of the adoption proceedings should give his or her consent to the child’s adoption.
Under Section 69(1), prior to a judicial decision on his or her adoption, the child concerned has to be in care of the person wishing to adopt him or her for at least three months.
Section 72(1) provides that, following a person’s adoption, mutual rights and obligations existing between that person and his or her original family cease to exist. The rights and obligations of a guardian appointed, as the case may be, to exercise such parental rights also cease to exist following the adoption of the person concerned.
Article 181(1) provides that parties to proceedings concerning the adoption of a minor are the child to be adopted, his or her parents, the person adopting the child and his or her spouse.
Under paragraph 2 of Article 181, the parents of the child to be adopted are not parties to proceedings when they are deprived of parental rights or of their legal capacity as well as in cases where their agreement is not required for adoption of their child notwithstanding that they are his or her legal representatives.


ITEMID: 001-5507
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: O. AND P.-O. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Finnish nationals, both born in 1942. They are a married couple living in Naantali, Finland. The first applicant is a Court of Appeal judge and the second applicant is a university teacher. Before the Court they are represented by Mr Matti Wuori, a lawyer practising in Helsinki.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1990 criminal proceedings were brought in the District Court (kihlakunnanoikeus, häradsrätt) of Piikkiö. The applicants' neighbours (MS, RS and their daughter PS) were charged with defamation, infringement of domestic peace and slander, among other offences. The first applicant was charged with minor theft. There was an order of a joinder of the two cases. On 12 February 1991 MS was found guilty of slander and fines were imposed. He was ordered to pay the second applicant FIM 3,000 in compensation. The other charges were rejected as inadmissible or unfounded.
The applicants appealed to the Court of Appeal (hovioikeus, hovrätt) of Turku claiming compensation and requesting their neighbours to be convicted. The judges of the third chamber of the Court of Appeal, which dealt with the case, were K, L and N. As the appeal concerned the evaluation of a particular statement by a witness and this witness's observations of the premises, the Court of Appeal decided to conduct an inspection on the site, i.e. the backyard of the applicants' house. The inspection took place on 27 September 1991 in the presence of judges K, L and N.
On 6 April 1992 the Court of Appeal found the charge against RS to be unfounded rather than inadmissible but otherwise upheld the District Court's judgment.
On 30 September 1992 criminal proceedings were instituted by the public prosecutor in the City Court (raastuvanoikeus, rådstuvurätt) of Turku against JE and TS, who had been witnesses in the above-mentioned trial, and against MS, RS and PS. JE and TS were charged with giving false statements as a witness under oath. PS was charged with giving false statements as a witness. MS and RS were charged with inciting the above-mentioned offences. RS was also charged with slander as she was accused of claiming that the applicants had done something which might endanger their good reputation (the actual content of the slander is not mentioned in the file). Each of the applicants claimed FIM 30,000 in compensation for moral damage.
On 11 November 1992 the applicants brought additional private prosecution proceedings against MS, RS and PS, charging PS with attempted fraud and malicious accusation and MS and RS with incitement to those offences. The public prosecutor did not support these charges. There was an order of a joinder of the two cases (with the proceedings instituted on 30 September 1992).
On 5 May 1993 the City Court found RS guilty of slander and rejected the rest of the charges. RS was ordered to pay the applicants FIM 5,000 each in compensation.
The applicants, the public prosecutor and RS appealed to the Court of Appeal of Turku. The appeals were examined by the third chamber of the court which had also conducted the inspection in the previous case in 1991. Judges L and N were still sitting in this chamber. A chamber of the Court of Appeal consists of three judges.
On 2 November 1994 the Court of Appeal acquitted RS and upheld the rest of the City Court's judgment. In its reasoning the Court of Appeal made an explicit reference to its findings based on the inspection conducted during the earlier proceedings.
The applicants were refused leave to appeal by the Supreme Court (korkein oikeus, högsta domstolen) on 22 June 1995.
B. Relevant domestic law
According to Chapter 13, Section 1, of the Code of the Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the relevant time, a judge is disqualified when he has acted as a judge in another court in respect of the same case or when he has on a court order earlier decided on a question related to that case.


ITEMID: 001-60739
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF VEEBER v. ESTONIA (No. 1)
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Georg Ress
TEXT: 9. The applicant was born in 1948 and lives in Tartu, Estonia. He is the owner of the company AS Giga, with a registered office in Tartu. The company has been involved in reconstructing the public heat supply of the city.
10. On 14 November 1995 the Tartu police initiated criminal proceedings against the head of the Energy Department of the Tartu City Government. The proceedings concerned the alleged abuse of his position in contracting a loan with the Ministry of Finance for reconstructing the city's heat supply in an amount higher than approved and guaranteed by the City Council. In the context of these criminal proceedings the Tartu Public Prosecutor (Tartu prokurör) approved a search of the applicant's company's premises on 14 November 1995 in order to determine whether there were any original bookkeeping documents which might provide information with regard to the unauthorised use of the loan.
11. On 15 and 20 November 1995 the Tartu police searched the company's premises and seized respectively 36 and 50 files of documents, which comprised practically all of the company's bookkeeping records from the years 1994 and 1995. The documents seized were recorded by the files and not individually. The applicant estimates that their total number amounted to approximately 10,000.
All seized files were placed in a separate room in the Tartu Police Prefecture for examination by the State auditors, who were assisted by staff of the financial department of the Tartu City Government.
12. On 16 November 1995 the applicant filed a complaint with the Tartu Public Prosecutor alleging that the police search and seizure of documents had been unlawful. On 17 November 1995 he complained also to the State Public Prosecutor (Riigiprokurör), submitting that the wholesale nature of the seizure and the failure to make an individual record of the seized items were inconsistent with the requirements of Articles 139 and 140 of the Code of Criminal Procedure.
13. On 22 November 1995 the police informed the applicant that he was free to consult the seized documents at the police station for the continued activities of his company.
14. On 23 November 1995 the Tartu Public Prosecutor instructed the police to make a record of the individual characteristics of the seized documents and to return the documents irrelevant to the criminal investigation.
15. On 24 November 1995, in response to the applicant's complaint, the Tartu Public Prosecutor informed him of his instructions to the police to correct the deficiencies in the recording of documents and pointed out that the police had given the applicant access to the documents with the possibility of making photocopies. The prosecutor also stated that his action was open to appeal to the State Public Prosecutor.
16. On 27 November 1995 the applicant filed a complaint with the State Public Prosecutor. On the same day the police returned to the applicant's company three previously seized files.
17. By a letter of 30 November 1995 the Deputy State Public Prosecutor informed the applicant that he had examined the complaint. He noted that the searches had been approved by the prosecutor, but acknowledged that, due to the large number of documents, their recording had been deficient. He further noted that the Tartu Public Prosecutor had ordered the police to remove the shortcomings. He accepted the measures of the Tartu Public Prosecutor and the reply issued to the applicant on 24 November 1995. It was also noted that the applicant was free to use the documents during their examination by the State auditors.
18. On 10 January 1996 the applicant's company filed a complaint with the Tartu Administrative Court (Tartu Halduskohus) asking it to declare unlawful the measures of the Tartu City Council in connection with the inspection of the company's records as well as the police search and seizure of documents.
19. By a judgment of 13 September 1996 the Administrative Court dismissed both parts of the company's complaint. Regarding the impugned police acts the court found that, according to Article 3 § 2(3) of the Code of Administrative Court Procedure, it lacked competence to deal with complaints which fell under civil and criminal procedure. The Administrative Court could not interfere with criminal proceedings and examine the lawfulness of the acts of the bodies of preliminary investigation.
20. In an appeal against the judgment the applicant argued that the police had abused its powers and that its actions violated the provisions of the Code of Criminal Procedure, the Constitution and the Convention.
21. On 22 November 1996 the Tartu Court of Appeal (Tartu Ringkonnakohus) confirmed the lack of competence to review police actions in criminal proceedings. It held that in the administrative proceedings it could not be examined whether the police, in effecting the search and seizures, had acted contrary to the Code of Criminal Procedure, the Constitution or the Convention. According to Article 120 of the Code of Criminal Procedure, supervision over the lawfulness of measures taken by the police in the context of criminal proceedings rested with the public prosecutor, not with the administrative court. The Court of Appeal quashed in part the judgment of the first instance court and terminated the administrative proceedings in respect of the complaint concerning the police actions.
22. On 15 January 1997 the Supreme Court (Riigikohus) refused to grant the company leave to appeal.
23. In the meantime, on 23 October 1996, the police decided to return twelve previously seized files. The applicant refused in writing to accept them, stating that their seizure had not been documented and that the act of return did not describe each document individually.
On 22 November 1996 these documents were sent to the Tartu City Court (Tartu Linnakohus), where the applicant's criminal case was pending (see paragraph 26 below). The applicant agreed to accept the documents in 1997.
Of the 86 files seized from the applicant's company on 15 and 20 November 1995, 28 files have been returned to the company. The applicant estimates that at least 5000 – 6000 documents are still not returned.
24. On 4 December 1995, following the seizure of documents, the Tartu police initiated criminal proceedings against the applicant on the suspicion of having misused his official position in the company.
On 22 March 1996 the applicant was formally charged with misusing his position as well as with tax evasion and falsification of documents, but on 28 June 1996 the charge concerning misuse of position was dropped.
On 1 July 1996 a further charge of fraud was brought against the applicant.
25. On 31 October 1996 the preliminary investigation was complete and the case was sent to the Tartu City Court for trial.
26. By a judgment of 13 October 1997 the City Court convicted the applicant of the charges and imposed a suspended sentence of 3 years and 6 months' imprisonment. It did find that in seizing of documents from the applicant's company the preliminary investigation authorities had infringed upon the procedural requirements stipulated in Article 140 of the Criminal Code. In particular, they had seized documents which were not relevant as evidence in the criminal case, had failed to record the documents individually and had taken away entire files. This had hampered the preliminary investigation of the case as well as its examination by the court.
27. On 18 October 1997 the applicant lodged an appeal against the judgement with the Tartu Court of Appeal. He contended, inter alia, that the indiscriminate seizure of documents from his company AS Giga on 15 and 20 November 1995 violated his rights of defence since he was deprived of the opportunity to submit necessary documents which were in the hands of the police.
28. By a judgment of 12 January 1998 the Tartu Court of Appeal rejected the applicant's appeal on the procedure and upheld his conviction. As regards the procedure, it found that the seizure of documents was conducted in accordance with the requirements of Article 140 of the Criminal Code. The records contained a description of the seized files, their number and the number of pages therein. The documents were thus sufficiently individualised.
29. On 17 September 1998 the applicant lodged an appeal with the Supreme Court, challenging his conviction as well as the procedure, claiming that the manner in which the seizure had been carried out had adversely affected his defence rights.
30. On 8 April 1998 the Supreme Court upheld the judgments of the lower courts with regard to the applicant's conviction. It acknowledged that in effecting the seizure of documents the procedural norms were not strictly followed, but found that such infringement was not substantial and did not hinder the thorough, complete and objective examination of the case or prevent the court from rendering a lawful and substantiated judgment. It considered that a detailed description of documents in the record of seizure was necessary only when they were used as evidence in the criminal case.
31. Article 15 of the Constitution guarantees everyone whose rights and freedoms are violated the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legal act or measure to be declared unconstitutional. The courts shall observe the Constitution and shall declare unconstitutional any law, other legal act or measure which violates the rights and freedoms under the Constitution or which is otherwise in conflict with the Constitution.
32. Article 25 of the Constitution provides that everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.
33. Article 26 of the Constitution stipulates that everyone has the right to the inviolability of private and family life. State agencies, local governments and their officials shall not interfere with the private or family life of any person, except in cases and pursuant to a procedure provided for by law in order to protect health, morals, public order, or the rights and freedoms of others, to prevent a criminal offence, or to apprehend a criminal offender.
34. Article 33 of the Constitution provides for the inviolability of the home. It stipulates that no one's dwelling, real or personal property under his or her control, or workplace shall be forcibly entered or searched, except in the cases and pursuant to procedure provided for by law to protect public order, health or the rights and freedoms of others, to prevent a criminal offence, to apprehend a criminal offender, or to ascertain the truth in criminal proceedings.
35. The law provides that the Public Prosecutor's office is an agency of the executive power, which is under the administration of the Minister of Justice and has the status of an independent agency. It supervises the lawfulness of the preliminary investigation in criminal cases as well as the lawfulness of the police activities. In the exercise of their duties public prosecutors are independent and act according to law and their convictions.
36. According to Article 3 § 2(3) of the Code, the Administrative Court is not competent to deal with claims and complaints which fall under civil and criminal procedure. Article 4 § 1(1) of the Code provides that the Administrative Court is competent to deal with appeals against the organs of the executive State power or the legal acts or action by one of its officials.
37. The Supreme Court has stated in respect of Article 4 § 1(1) of the Code that legal acts and actions by the State Public Prosecutor, as a Government official, can be appealed to the Administrative Court and, since an appeal against his/her decisions is not provided for in the Code of Criminal Procedure, control of such acts and action falls within the competence of the Administrative Courts. In exercising this function, the Administrative Court does not interfere with the criminal proceedings in question and does not exercise supervision over the lawfulness of the actions of the organs of preliminary investigation. The Administrative Court examines only whether the State Public Prosecutor dealt lawfully with the complaint submitted (decision of the Administrative Chamber of the Supreme Court of 3 November 1995, Riigi Teataja III 1995, 17, 217).
38. Under Article 22(3) of the Code, the public prosecutor exercises his powers independently and is guided only by law.
39. According to Article 120 paragraph 1 of the Code supervision of the lawfulness of activities of the organs of preliminary investigation rests with the public prosecutor.
Under paragraph 2 of this Article the public prosecutor has the power, inter alia, to annul the unlawful and unfounded orders of investigators, to give written instructions to the investigators, to approve searches and to remove a investigator from further investigation if the investigator has acted unlawfully.
Paragraph 3 provides that the written instructions of the Prosecutor are binding on the authorities carrying out preliminary investigation.
40. Under Articles 182 and 183 of the Code, complaints regarding the activities of the police investigator and the police examiner are submitted to the public prosecutor whose decisions and actions concerning the complaints can be appealed against to the higher level public prosecutor.
41. Article 139 of the Code stipulates that if an investigator has sufficient reason to believe that in a certain room, location or in a person's possession there might be items of significance to a criminal case he conducts a search to find them. A search may be conducted on the basis of the decision of an examiner or investigator and only upon the authorisation of the public prosecutor or his deputy. If an investigator knows the exact location of an item, which is of significance to a criminal case, he conducts the seizure of that item.
42. According to Article 140 of the Code, an investigator, in performing a search and a seizure, can take away only those items and documents which are relevant to a criminal case. Each seized item and document must be entered in a record indicating their exact amount, format, weight and individual characteristics.
43. Sub-chapter 4 of Chapter 2 of the Code deals with the protection of personal rights. It cites specifically defamation (Article 23), protection of private life (Article 24) and protection of a person's name (Article 25).
Article 24 paragraph 1 of the Code provides that a person has the right to demand termination of a violation of the inviolability of his or her private life and to demand compensation for moral and material damage caused thereby.
Paragraph 2 lists 6 acts which constitute a violation of the inviolability of private life, if performed without legal basis or against a person's will. These acts include a) entry into the dwelling or onto the property of a person; b) search of a person or of objects in his or her possession; c) use of a person's manuscripts, correspondence, notes or other personal documents or information.
Paragraph 3 stipulates that a court may also declare that an act not indicated in section 2 violates the inviolability of a person's private life if the intrusion is effected without a legal basis or against the person's will.
Article 26 of the Code states that, in cases provided for by law, a person may also demand termination of the violation of his or her personal rights which are not specified in Articles 23 to 25 as well as compensation for moral and material damage caused thereby.
44. According to Article 112 of the Code, measures for the protection of civil rights include: a) recognition of rights; b) elimination of violations and prevention of further violations; c) restoration of the situation that existed prior to violation; d) compensation for damage.
45. Article 172 paragraph 2 of the Code provides that moral damage caused to a person shall be compensated for by the person who caused the damage. The latter person is released from the obligation to compensate for moral damage if the person proves that he or she is not at fault for causing the damage.
Paragraph 3 of this Article states that if there has been a violation of personal rights, a court will decide on the basis of the facts of the case whether the violation caused any moral damage.
Paragraph 4 stipulates that in determining the amount of compensation, a court shall take into account the extent and nature of the caused moral damage as well as the degree of fault of the person who had caused the damage.
46. In a civil case between two individuals concerning eviction from a residence, in which the plaintiff had asked the competent civil court to declare his eviction unlawful, the Tallinn Court of Appeal held that in so far as the applicant's action concerned the alleged violation of personal rights, his claim fell to be considered under the General Principles of the Civil Code. The Housing Act was not relevant in deciding on an action concerning the protection of personal rights. Although the request of the applicant to declare his eviction unlawful was not a civil claim which would fall under Article 112(2) of the above Code, the question of lawfulness of the impugned measure was relevant in determining whether there had been a violation of personal rights (judgment of the Tallinn Court of Appeal of 7 September 2000, case no. II-2/829/00).
47. In a case which concerned an action for damages against the Government in connection with a search by the police of the applicant's home and the seizure of personal objects, the Tallinn Court of Appeal found that the claim fell to be considered under Article 24 of the General Principles of the Civil Code. It held however, that there had been no violation of the inviolability of the applicant's private life within the meaning of Article 24 as the search and seizure had been lawful under Articles 139 and 140 of the Code of Criminal Procedure (judgment of the Tallinn Court of Appeal of 1 July 1999, case no. II-2/637/99).
48. In a case concerning a compensation claim for moral damage suffered as a result of the unlawful acts of the police, which included a search of the plaintiff's personal belongings on suspicion of shoplifting, the Tallinn Court of Appeal found that the plaintiff's personal rights had been violated and ordered the Government to pay damages. The court relied, inter alia, on Article 25 of the Constitution and Articles 24 (2), 26, and 172 (2) and (3) of the General Principles of the Civil Code (judgment of the Tallinn Court of Appeal of 20 February 2001, case no. II-2/253/2001).
49. The civil courts have also considered claims of violation of personal rights presented, inter alia, in connection with unlawful detention and conviction, opening of prisoners' correspondence and defamation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96143
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ILCHYSHYN AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicants are Ukrainian nationals residing in the Lviv Region.
5. By a judgment of 20 May 2004 the Drohobych Court awarded the fourth applicant 774.33 Ukrainian hryvnias (UAH) in compensation for various work-related payments and teachers' benefits due to him under Article 57 §§ 1(8) and 1(10) of the Education Act and legal costs to be paid by the Drohobych State Department of Education.
6. By separate judgments of 28 September 2004 the Drohobych Court awarded the first applicant UAH 342.06, the second applicant UAH 1,053.05, the third applicant UAH 976.95, the fifth applicant UAH 1,355.50, the sixth applicant UAH 456.64, and the seventh applicant UAH 543.50 in compensation for similar payments and teachers' benefits as above.
7. The judgments became final and enforceable. Parts of the judgment debts were paid to the first, third, fourth, fifth, sixth and seventh applicants during 2006. The judgments were enforced in full on 2 October 2008.
8. The relevant domestic law and practice are summarised in the judgments of Piven v. Ukraine (no. 56849/00, §§ 25-31 29 June 2004), Zhovner v. Ukraine (no. 56848/00, §§ 23-29, 29 June 2004), and Skrypnyak and Others v. Ukraine (nos. 9177/05, 14241/05, 10596/06, 17346/06, 20912/06 and 34604/06, §§ 7-13, 10 July 2008).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-67506
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PRAVEDNAYA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1936 and lives in Novosibirsk.
8. Since 1991 the applicant has been receiving an old-age pension. From 1 February 1998 the amount of her pension was to be determined by the Law on Calculating and Upgrading State Pensions (the “Pensions Law”). The Pensions Law introduced a new method of upgrading retirement benefits—“Individual Pensioner Coefficient” (“the IPC”). The IPC, established for the purpose of calculating individual pensions, was the ratio between the individual’s final wages at retirement and the national average wage, and was meant to maintain a link between a person’s pension and previous earnings.
9. The authority in charge of the applicant’s pension—the Pension Fund Agency of the Zayeltsovskiy District of Novosibirsk (“the Agency”)—decided that the IPC to be applied to her should be 0.525. The applicant considered this decision arbitrary as it conflicted, in her opinion, with the Pensions Law. On 12 April 1999 she brought an action against the Agency.
10. On 21 October 1999, the Zayeltsovskiy District Court of Novosibirsk (“the District Court”) found in the applicant’s favour. It held that since the defendant had misinterpreted the Pensions Law, the applicant’s pension should be recalculated with an IPC of 0.7. The Agency appealed against the judgment to the Novosibirsk Regional Court (“the Regional Court”). It alleged that the District Court had misinterpreted the Pensions Law.
11. While the appeal was pending before the Regional Court, on 24 January 2000 the Agency requested the District Court to re-consider its judgment of 21 October 1999 due to discovery of new circumstances. The Agency claimed that on 29 December 1999 the Ministry of Labour and Social Development (“the Ministry of Labour”) had passed the Instruction on the Application of Limitations established by the Pensions Law (“the Instruction”). The Instruction specified how the Pensions Law should be applied. The Agency contended that since it had been unaware of these circumstances at the moment when the judgment was passed, the judgment should be re-considered.
12. On 30 January 2000 the Agency withdrew its application because the judgment of 21 October 1999 had not by that moment come into force, having been appealed against to the Regional Court.
13. On 15 February 2000 the Regional Court upheld the judgment having agreed with the interpretation of the relevant laws given by the District Court. The decision of the Regional Court contained no reference to the Instruction. The judgment of 21 October 1999 accordingly came into force as from 15 February 2000.
14. On 21 August 2000 the Agency submitted a new application for reconsideration of the judgment of 21 October 1999 due to discovery of new circumstances. This time the Agency claimed, in addition, that on 24 April and 25 May 2000 the Supreme Court had confirmed the lawfulness of the Instruction.
15. On 16 January 2001 the District Court granted the Agency’s application. The court applied Article 333 of the Code of Civil Procedure according to which judgments could be re-considered in case of discovery of significant circumstances which were not and could not have been known to the party concerned. The court found that the Instruction, as upheld by the Supreme Court, could serve as such a circumstance. No appeal lay against this decision.
16. After a fresh examination on 12 February 2001, the District Court rejected the applicant’s claims in full having applied the Instruction. On 27 March 2001 the Regional Court upheld the judgment on appeal.
17. The Code of Civil Procedure of 1964 (“CCivP”) in force at the material time:
“The court of cassation instance shall verify the lawfulness and validity of the judgment of the first-instance court in the scope of the cassation appeal. It may examine new evidence and establish new facts. The court shall examine newly submitted evidence if it considers that the evidence could not have been submitted to the first-instance court...”
“[Judgments] which have come into force may be re-considered on the basis of newly-discovered circumstances. The grounds for re-consideration ... shall be:
1. significant circumstances which were not and could not have been known to the party who applies for re-consideration;...
4. cancellation of a court [judgment] or of another authority’s decision which served as legal basis for the [judgment] in question.”
“... [An application for re-consideration of a [judgment] due to discovery of new circumstances] is to be made within three months after the discovery of the circumstances.”
18. On 24 April 2000 the Supreme Court dismissed a complaint lodged by a number of individuals against the Instruction. The Supreme Court found that, contrary to the complaint, the Ministry of Labour had not trespassed its authority when it issued the Instruction, and that the Ministry’s interpretation of the Pensions Law had been correct. On 25 May 2000 the Cassation Section of the Supreme Court upheld this judgment on appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87247
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CAREVIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Miodrag Carević, is a Slovenian national who was born in 1953 and lives in Celje. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 23 January 1997 the applicant instituted proceedings against the insurance company ZT and his employer in the Celje Local Court (Okrajno sodišče v Celju) seeking compensation in the amount of 1,431963 SIT (approximately 60.000 euros) for injuries he had sustained in an accident at work.
4. Between 25 August 1998 and 12 January 2001 the applicant lodged four requests that a date be set for a hearing.
5. Between 28 October 1998 and 26 October 1999 the applicant lodged three written submissions.
6. Hearings were held on 30 November 1998, 11 January 1999 and 8 October 2001.
7. During the proceedings the court appointed a medical expert to prepare a forensic report.
8. On 8 October 2001 the court partly upheld the applicant’s claim. The written judgment was served on the applicant on 3 December 2001.
9. All parties appealed.
10. On 5 March 2003 the Celje Higher Court (Višje sodišče v Celju) delivered a judgment partly upholding the appeals.
The judgment was served on the applicant on 10 April 2003.
11. Subsequently, ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
12. On 26 August 2004 the Supreme Court partly upheld the appeal and changed the first- and second-instance court’s judgments accordingly.
The Supreme Court’s judgment was served on the applicant on 10 December 2004.
13. On 20 February 2007 the respondent Government were given notice of the present application.
14. On 4 June 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in the amount of 1,040 euros (EUR) in respect of non-pecuniary damage and EUR 292 for reimbursement of the costs and expenses connected with the case.
15. Subsequently, the applicant informed the State Attorney’s Office that he was not willing to accept the proposal as the sum offered was too low. At the same time, he proposed to settle the case for EUR 1,500 in respect of non-pecuniary damage and approximately EUR 990 in costs and expenses, in particular lawyer’s fees.
16. As no settlement had been reached, the applicant, relying on section 25, paragraph 2 of the 2006 Act, lodged a claim for just satisfaction with Celje Local Court on 6 November 2007. He claimed EUR 3,000 in respect of non-pecuniary damage sustained due to alleged excessive length of the proceedings and EUR 500 in respect of the alleged violation of the right to effective remedy.
These proceedings are still pending.
17. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the Lukenda Project the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which was enacted on 1 January 2007.
18. Section 25 of the 2006 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest.....
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
19. The following parts of the 2006 Act are relevant as regards the claim for just satisfaction:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
“....
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.”
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in amounts 300 to 5,000 euros.
“...
(3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office.
...
(6) Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.
(7) Appeal on points of law shall be excluded for disputes on damage under this Act.”
“...
(2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.”
...”
“Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”
20. The general provisions of the Civil Procedure Act (Zakon o pravdnem postopku, uradno prečiščeno besedilo, Official Gazette, no. 73/2007) concerning the role of the domestic courts in determining costs and expenses of the proceedings, including lawyer’s fees, apply also to the proceedings concerning small claims (sections 151 to 166 and 442).


ITEMID: 001-77910
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SARATLIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Dušan Saratlić, is a Croatian national, who was born in 1950 and lives in Belanovica, Serbia. He was represented before the Court by Mr M. Mihočević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owned a house in Okučani, where he lived until May 1995, when he left Croatia, due to military operations in the area.
On 28 November 1995, in line with the applicable legislation, the Croatian authorities gave the applicant’s house for temporary use to P.R. and his family, refugees from Bosnia and Herzegovina.
On 20 October 2000 the applicant filed a request for repossession of his property with the competent administrative authority.
On 1 March 2001 the Okučani Housing Commission (Stambena komisija Okučani) (“the Housing Commission”) set aside its decision of 28 November 1995, establishing the right of the applicant to repossess his house. In its decision, the Housing Commission established that P.R. enjoyed a right to stay in the applicant’s house until he was provided with adequate housing by the State.
On 4 December 2002 the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo) (“the Ministry”) issued a decision allowing the applicant to repossess his house.
On the same day the Ministry invited the applicant to contact its competent regional office in order to repossess his house and/or receive compensation for the prolonged inability to use it, in accordance with the relevant legislation.
On 24 February 2002 the applicant instituted civil proceedings before the Nova Gradiška Municipal Court (Općinski sud u Novoj Gradiški) requesting the court to order P.R. and his family to vacate his house.
On 14 March 2003 the Municipal Court issued a judgment ordering P.R. to vacate the house. The defendant appealed against the judgment.
On 13 May 2003 the Ministry sent a letter to the applicant with a proposal to settle the case in respect of the damage suffered by the applicant.
The Government submitted that on 10 June 2003 the applicant’s representative, Ms K.V., a lawyer practicing in Vukovar, Croatia, signed a sale contract in respect of the applicant’s house with the Agency for Real Property Transactions (Agencija za pravni promet i posredovnaje nekretninama, hereinafter “the Agency”). She received the settled price and also stated that the applicant had renounced all claims for damages in respect of the use of his house.
On 14 August 2003 the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu) upheld the first instance judgment of 14 March 2003.
On 23 September 2003 the applicant filed an application with the Nova Gradiška Municipal Court seeking enforcement of the judgment adopted by the same court and ordering the eviction of P.R.
The enforcement order was issued on 9 October 2003.
However, on 27 October 2003 the applicant’s representative, Ms M.T., a lawyer practicing in Slavonski Brod, withdrew the application for an enforcement order stating that the applicant had no further interest in pursuing these proceedings and therefore sought that the proceedings be terminated.
The applicant states that the above sale contract of 10 June 2003 was signed without his knowledge or consent. However, he did not dispute that he himself had hired Ms K.V. as his legal representative.
On 13 May 2005 the Agency filed a criminal complaint with the Osijek Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Osijeku) stating that the power of attorney presented by Ms K.V. was falsified.
On an unspecified date the applicant left Croatia allegedly because he had received death threats. He moved to Serbia.
Section 2 of the Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995, 7/96) provides that property, situated in the previously occupied territories and belonging to persons who had left Croatia, should be in the possession and under the control of the State.
The relevant part of the Act on Termination of the Temporary Takeover and Control of Certain Property Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no.101/98) provides that persons, whose property was given to others for accommodation during their absence from Croatia, are to file a request for repossession of their property with the competent local authority.
The Act on the Areas of Special State Care (Zakon o područjima od posebne državne skrbi, Official Gazette nos. 44/96, 57/96 (correction), 124/97, 73/00, 87/00 (correction), 69/01, 94/01, 88/02, 26/03 (consolidated text)), as amended by the 2002 Amendments, provides as relevant:
Sections 8, 9 and 17 provide that a temporary occupant has the right to housing.
Section 27 provides that the Ministry shall compensate the damage suffered by the owner who has submitted a request for repossession of his property prior to 30 October 2002 but to whom the property has not been returned by that date.


ITEMID: 001-99609
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STYLIANOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: The applicants, Mr Chris (Takis) Stylianou and Mrs Athena (Athenoulla) Stylianou, are of Greek-Cypriot origin and have dual nationality, Cypriot and Australian. They were born in 1947 and in 1948 respectively and live in Australia. They are represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia, Cyprus.
The Turkish Government (“the Government”) were represented by their Agent, as were the intervening Government, the Republic of Cyprus.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were married in 1971. They built a house on land donated by the father of the second applicant; however the land had not been transferred into their names. It appears that the second applicant's father has since died.
The second applicant owned two plots of land situated in Kythrea. The first applicant was a businessman and prior to 1974 had run a petrol station in Kythrea on rented land and premises.
Since August 1974 the applicants have not had access to and/or use of their home and property in the northern part of Cyprus.


ITEMID: 001-82415
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RAPLEY AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants, Mr Anthony Richard Rapley, Mr John Stephen Lyon and Mr Bruce Bradley are British nationals who were born in 1958, 1963, and 1954 and live respectively in Surrey, North Somerset and Buckinghamshire. They were represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office.
The applicant’s wife died on 31 May 2000, leaving two children born in 1987 and 1990. His claim for widows’ benefits was made on 6 September 2000 and was rejected on 28 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant lodged an appeal on 6 October 2000, which was decided and rejected on 21 December 2000. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant’s wife died on 20 February 1998, leaving two children born in 1994 and 1997. His claim for widows’ benefits was made on 10 December 2000 and was rejected on 3 January 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant’s wife died on 3 September 1995, leaving one child born in 1992. His claim for widows’ benefits was made on 5 April 2001 and was rejected on 26 April 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-72211
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YURTAYEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1961 and is currently serving a prison sentence at Penitentiary No. 8 in Makeyevka, the Donetsk region.
5. On 27 February 1998 the applicant, along with eight others, was arrested on suspicion of hooliganism and extortion.
6. On 2 March 1998 the applicant was charged with the above crimes and detained on remand.
7. By June 1998 the pre-trial investigation was completed and the applicant was given access to the case file. On 26 June 1998 he finished studying it.
8. On 17 July 1998 the investigator drafted the bill of indictment. On 3 August 1998, it was approved by the district prosecutor and referred to the Tsentralno-Gorodskoy District Court of Gorlovka (hereafter “the District Court”) for examination on the merits. The prosecution’s case was that the applicant and eight other suspects were members of a gang, involved in several counts of extortion and hooliganism (Articles 144 and 206 of the 1960 Criminal Code, respectively).
9. Between 2 September 1998 and 6 October 1998 the District Court held eight hearings. On the latter date it ordered an additional forensic assessment of the severity of the bodily harm suffered by K. (one of four victims).
10. On 3 December 1998 the trial judge resumed the hearing and, until 16 December 1998, conducted three more sittings.
11. On 30 December 1998 the applicant was acquitted of extortion but sentenced to two years’ imprisonment for inflicting bodily harm (Article 102 of the Code). The prosecution appealed, challenging the court’s reclassification of the imputed offences which led to the excessive mildness of the sentence. On 23 February 1999 the Donetsk Regional Court upheld the conviction.
12. On 24 February 1999 the Presidium of the Donetsk Regional Court, following the protest (an extraordinary appeal) of the Deputy President of the Donetsk Regional Court (hereafter “the Regional Court”), quashed these decisions and remitted the case for a fresh investigation.
13. By April 1999 the additional investigation was finalised and the applicant was given access to the case file. On 26 May 1999 the investigator filed a bill of indictment against the applicant and his co-accused, charging them with extortion.
14. On 22 June 1999 the new trial commenced before the District Court, sitting with another judge, and on 22 July 1999, following ten hearings, the District Court convicted the applicant and his co-defendants of inflicting bodily harm and unlawfully depriving another of liberty (Article 123 of the Code). The court further amnestied and released six of the convicts; however, the applicant and two others were left in custody. The prosecution challenged this decision relying on the same grounds as in its previous appeal (paragraph 11 above).
15. On 19 October 1999 the Regional Court returned the case file to the District Court on account of its failure to provide the defendants with an opportunity to study the court records, as required by the Code of Criminal Procedure.
16. On 22 November 1999 the District Court, having complied with that requirement, resubmitted the case to the Regional Court. On 30 November 1999 the latter quashed the decision of 22 June 1999 and remitted the case to the Kuybyshevsky District Court of Gorlovka (hereafter “the Kuybyshevsky Court”).
17. On 4 January 2000 the Kuybyshevsky Court recommenced the trial and scheduled the first hearing for 11 January 2000. However, this sitting did not take place due to the absence of the defendants who had been released in June 1999. The judge adjourned the trial pending the establishment of their whereabouts.
18. On 20 March 2000 the proceedings concerning the defaulting defendants were disjoined from the applicant’s case. The court fixed the next hearing for 3 April 2000, which subsequently was adjourned until 17 April 2000 due to the victim’s failure to appear.
19. Between 17 April 2000 and 15 June 2000, the Kuybyshevsky Court held twelve hearings. On 22 June 2000, at an in camera hearing, the court sentenced the applicant to nine years’ imprisonment following his conviction for extortion. The period of detention on remand was included in the sentence. In his appeal the applicant’s lawyer challenged the court’s assessment of facts and law; however, he did not raise the issue of the non-public examination of the case.
20. On 20 April 2001 the Regional Court ruled that the first instance court had failed to comply with certain procedural requirements regarding the defendants’ right to be duly notified about the conduct of the appeal proceedings. The court therefore decided to return the case file to the Kuybyshevsky Court for this purpose.
21. On an unspecified date, the case was referred anew to the Regional Court.
22. On 1 June 2001 the Regional Court upheld the decision of 22 June 2000 in substance but mitigated the prison regime applicable to the applicant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86456
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ALITHIA PUBLISHING COMPANY LTD & CONSTANTINIDES v. CYPRUS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Myron Nicolatos;Sverre Erik Jebens
TEXT: 7. The first applicant, Alithia Publishing Company Ltd, is registered under Cypriot law and is the publisher of the daily morning newspaper Alithia. The second applicant, Alecos Costantinides, is the editor-in-chief of Alithia. He was born in 1930 and lives in Nicosia.
8. Between December 1992 and 31 January 1993 the first applicant published a series of twelve articles written by the second applicant. These articles concerned the conduct of Mr Aloneftis, who at the relevant time was Minister of Defence of the Republic of Cyprus. The articles claimed that he had been involved in a conspiracy with armaments traders for the misappropriation of public funds.
9. According to the applicants, Mr Aloneftis, acting on behalf of the Government, was in the habit of accepting more expensive armaments contracts in return for generous commissions from certain armament traders. It was alleged that he used these commissions to fund his gambling habit in London casinos. It was further reported that Mr Aloneftis, while betting in casinos in the company of his friends - the armaments traders -, would discuss classified information concerning the Republic’s armament programme, and that this was how such information had been divulged to the international press. It was also claimed that he had instigated a bomb attack against the second applicant.
10. In particular, in an article of 15 January 1993, written by the second applicant, the newspaper “revealed” that the Republic of Cyprus had purchased a French armament system which was effectively useless, given that the Cypriot Republic did not possess the equipment that was necessary to maintain it. It was claimed that various officials had received commissions of at least 10 million Cypriot pounds (CYP) in respect of this purchase. The President of the Republic and the Minister of Defence, amongst others, were well aware of the identity of the beneficiaries, but journalists daring to investigate in such matters should be very careful.
11. A second article published on the same date and entitled “People in hiding: a reply to an anonymous article by Mr Aloneftis, Minister of Defence”, the second applicant expressed his concern about the fact that the Minister of Defence, who was “certainly” aware of the individuals who were receiving commissions from the purchase of armaments, did not denounce them to the relevant authorities. It read: “such questions... [should be] addressed to Mr Aloneftis, who is a connoisseur of ... casinos”. It was added that, should the Attorney-General wish to proceed with a criminal investigation into these matters, he should start with the acts of those “who are gambling in casinos, laughing at us, while we, the fools, are required to pay for their chips”.
12. A subsequent article by the second applicant, dated 16 January 1993 and entitled “The Attorney-General and the clowns [μασκαράδες]”, stated that the Minister of Defence, Mr Aloneftis, through an article in another Cypriot newspaper, had had the “incredible nerve” to request Alithia to name the suppliers of armament systems who were paying commissions to State officials. The article read as follows:
“Those names, however, were well known to everyone, and firstly to the President of the Republic and the Minister of Defence. The latter regularly appears in casinos alongside the most important arms supplier, and attends receptions given by another. No one attends receptions given by people whom he does not know, or embarks on cruises in the yachts of strangers. The Attorney-General should interfere where he ought to do so. There are many clowns and crooks in this place, who are beyond the reach of the short and crooked arm of the law.”
13. The closing paragraphs of the article read:
“The last time that our paper covered the great feast hosted by defence officials, the Attorney-General had not been invited. In fact, certain hit men were employed to terrorise our newspaper and, to a certain extent, their attempt has been successful. Cyprus is a small country and everyone knows what is going on. Everyone is aware of the names that we were called on to reveal. Everyone knows about the casinos. Everyone knows about the bomb attack and the people who instigated it. So the clowns (μασκαράδες) should stop acting in a provocative [and] hypocritical manner.”
14. In another article of 20 January 1993 the second applicant stated:
“According to information from a serious source, at one stage an arms firm had offered us [the Republic of Cyprus] 150 tanks. We did not accept the offer because the tanks had been offered for free. Had we agreed to take these tanks, there would have been no commissions - and then what would happen to the casinos?”
15. A further article by the second applicant, dated 27 January 1993 and entitled “Aloneftis’s newspaper, casinos and missiles”, stated:
“A Cypriot newspaper, to which the Minister of Defence Mr Aloneftis is transmitting poppycock [σπερμολογίες, literally, spermologies] against the newspaper Alithia, published the following in its edition of 26 January:
‘Recent publications, appearing on a daily basis for the few last weeks in a morning daily newspaper, have prompted a threatening statement from the Turkish Prime Minister Suleiman Demirel. The Turks were particularly worried by information published concerning the intention of the National Armed Forces to purchase Exoset missiles.’
The above statement obviously concerns Alithia and warrants a reply:
Alithia has never stated anything concerning Exoset missiles. The reference to negotiations conducted by the Republic of Cyprus for the purchase of Exoset missiles was published in the foreign military journal Defence News approximately one year ago and was mentioned in the newspaper Cyprus Mail some days ago.
On the contrary, Alithia merely stated that it would be foolish for the Republic of Cyprus to buy such missiles, which are primarily launched from airplanes that we do not possess.
The Turks have therefore heard about the missiles from elsewhere. And it is well known where Defence News obtained its information. When our ministers gamble in casinos together with various arms suppliers and become merry, they start shouting about matters concerning missiles and rockets, and everyone can hear them.”
16. A further short article of the same day was entitled “Casinologists” and was accompanied by a picture of Mr Aloneftis. It referred to an article in another Cypriot newspaper reminding a well-known Cypriot politician that the Cypriot electoral body was not a casino in Las Vegas. It added that there was no need to refer to casinos in Las Vegas since the London casino Maxim was closer. In this respect, the Alithia article stated:
“You should ask Aloneftis and his team who will be in a position to confirm this. Of course, Aloneftis would not know how people exit from casinos in their underwear but he is well aware of how you get in there”.
17. On 28 January 1993, an article entitled “Call 451313 and ask why the Minister of Defence is entertaining himself with armament dealers”, stated:
“Mr Clerides’ promotional film ... could invite taxpayers to call Mr Vasiliou [President of the Republic at the time] and ask him why his Minister of Defence is having fun in restaurants alongside arms dealers, why he is playing Βanko Punto with them in London casinos and why [he] always insists on purchasing everything from those particular arms dealers.”
18. Another article, of the same date, called on the Minister of Defence to explain why Cyprus had paid twice as much as Greece for an identical armament system. The Minister was further called on to explain the exact nature of his relations with a French company involved in the armaments trade (Sofma).
19. A further article of the same date, written by the second applicant and entitled “Casinos and Panties”, read:
“The Minister of Defence, Mr Aloneftis, ... is a regular in casinos; the publisher of Alithia ... said...the following about him:
‘We saw him having fun in various night spots in Athens alongside representatives of arms manufacturers; we saw him cruising in their luxurious yachts; we saw him gambling with them in casinos’.
The reference to casinos.... is made in a literal sense and refers to the London casino Maxim, where hundreds of thousands of pounds are at stake, to the detriment of our defence...
When Alithia first reported on the issue of enormous commissions being paid to State officials by arms dealers, a year and a half ago, it was targeted by nocturnal assailants. As is very well known, the orders behind this were issued from the London casino. (In the meantime, we took our measures and would like to warn such assailants, who dare to speak about morality, that we are not affected by their new threats....).
20. On 31 January 1993 the second applicant stated, in an article entitled “Defence In and Out”:
“The main interest of the Minister of Defence... in recent years was not to improve the defence of Cyprus, but the purchase of excessively expensive systems from Sofma at prices which at times were seven times the price of similar and indeed better systems. His goal was to spend as much as possible for well-known reasons, and not that of the ensuring an effective ... defence...
The defence of Cyprus has accordingly been vested in the hands of a foreign company, Sofma, while Cyprus’s defence policy is in reality being considered and developed at London’s Maxim, where all decision-making is taking place.
The defence of Cyprus in the hands of amateurs, and Sofma has become a lucky game like banco punto, roulette or black jack. And what we fools have not yet realised is that these people are gambling with our own money...”
21. By originating summons of 22 March 1993, Mr Aloneftis instituted civil proceedings for defamation before the District Court of Nicosia. Mr Aloneftis requested compensation for defamation as well as a court order prohibiting further reporting of his conduct in a defamatory manner. The trial took place before Judge Nathanael. It lasted for 18 months, a period considered as extraordinary by the district court. The defendants invited 26 witnesses to give oral evidence and at least 50 written exhibits and other pieces of documentary evidence were admitted.
22. The applicants accepted during the trial that the contested publications were defamatory toward the plaintiff. In particular, it was stated on their behalf that the publications “were intensely defamatory toward the plaintiff and injured, inter alia, his integrity, honesty, reputation, personality, patriotism and good fame, and caused serious injury and damage to his private, social and public life”. Nevertheless, they argued that the publications were covered by the defence of justification and fair comment and constituted a legitimate exercise of their right to freedom of expression. In this context, they maintained that their allegations concerning Mr Aloneftis’s conduct were true.
23. On 29 November 1999 Judge Nathanael delivered the district court’s judgment, by virtue of which the applicants were found liable for defamation. In relation to the defence of justification, the district court noted that where this defence was raised, the burden of proof fell on the defendant to show the accuracy of the facts referred to in a publication. Should the defendant fail to discharge it, then this defence would fail even in cases where a defendant honestly and reasonably believed that the relevant statements were true.
24. It was noted that the defence of fair comment applied when a published statement constituted a fair and reasonable comment on a matter of public interest. The comment had to be made on the basis of facts that were set out correctly and without malice. The defendant would bear the burden of proof in showing that the facts on which the comment was based were true and that the comment could be justified as one that could have been made by a reasonable man. If the defendant succeeded in establishing the fairness of the comment, then the burden would shift to the plaintiff, who would have to show the existence of malice on the part of the defendant. Judge Nathanael added that “there would be a further limitation when a comment concerned a person holding a public post and imputed to him immoral, dishonest or corrupt behaviour, in which case a defendant would have to show the truth of his allegations.”
25. The testimony of the first applicant’s director and the second applicant demonstrated that they had had no evidence or other sources in support of their allegations at the time of publication. Their positions were further undermined by the fact that the applicants had apologised to a certain armaments dealer for their defamatory allegation that he had been conspiring with Mr Aloneftis. The second applicant had been found to be an unreliable and evasive witness. His testimony demonstrated that there had been no research or other attempt to verify most of the allegations made in the impugned publications. Moreover, the second applicant had been entirely contradictory as to whether any effort had been made to contact Mr Aloneftis prior to publication. His evidence was rejected. The evidence of the first applicant’s director was also rejected: his allegations had been found to be clearly unsubstantiated and showed his prejudice against Mr Aloneftis.
26. In relation to the award of damages, Judge Nathanael took into account, inter alia, the seriousness of the defamatory allegations and the complete lack of evidence. He also considered that the overall behaviour of the applicants at trial showed malice: they had insisted on the truth of their defamatory publications and had pursued a defamatory campaign against the plaintiff by a series of clearly defamatory and unverified articles, which continued to be published even while the proceedings were pending. On this basis an award of 30,000 Cypriot pounds (CYP) [equivalent to approximately 51,258.04 euros (“EUR”)] was made as ordinary damages in addition to an award of CYP 5,000 (equivalent to approximately EUR 8,543.01) for exemplary damages.
27. On 7 January 2000 the applicants lodged an appeal against the district court’s judgment with the Supreme Court. In their grounds of appeal they challenged, inter alia, the compatibility of Cypriot defamation law, as set out in the Civil Wrongs Act Cap. 148 (see paragraph 35 below), with the right to freedom of speech as guaranteed in the Constitution of the Republic of Cyprus and the Convention.
28. On 29 November 2002, the President of the Supreme Court Pikis delivered the Supreme Court’s majority judgment, which upheld the district court’s judgment and the corresponding award of damages. It was noted that the applicants had stated in their statement of defence, filed with the district court that the publication of the impugned articles amounted to an exercise of their right to freedom of expression and, as such, should have been protected. On this basis, they argued before the Supreme Court that they had explicitly raised the defence of qualified privilege in their defence statement and that their plea had been ignored by the first-instance court. The majority found that, given that the applicants had not properly raised this defence in their pleadings, the first-instance court had been correct not to examine it.
29. There had been no evidence presented in court supporting the applicants’ allegations and the lack of such evidence was even admitted by the second applicant and the first applicant’s director. The latter’s testimony had been rejected as unreliable. Despite the lack of supporting evidence, the applicants had not presented their serious allegations to Mr Aloneftis prior to publication, which was indicative of their motives and their indifference as to the truth of the facts presented and discussed in the articles. The articles not only imputed to Mr Aloneftis the commission of criminal offences but had disparaged his moral character by presenting him as an unscrupulous criminal driven purely by self-interest. The lack of supporting evidence and the seriousness of the defamatory allegations demonstrated the existence of malice on the part of the applicants as well as their intent to defame the plaintiff.
30. It was observed that the defence of qualified privilege was based on the duty to transmit information, correlated by the right to receive such information. Its establishment depended on a number of factors concerning the nature of the information in issue, the extent of any public interest in the matter, the sources of such information, the measures taken to verify the facts and whether the plaintiff had been requested to comment on the allegations made in the publication. The protection of freedom of expression entailed that the courts should not easily reach the conclusion of lack of public interest over the subject-matter of a publication. In cases of doubt, freedom of expression should be favoured. The majority thus endorsed the House of Lords’ leading judgment in Reynolds v. Times Newspapers [2001] 2 AC 127, at 205. However, it was considered that even assuming that the defence of qualified privilege had been properly raised, in the light of the circumstances of this case it would not have succeeded.
31. Defamation as a tort predated the enactment of the Constitution and it had therefore to be examined whether the provisions of Cap. 148, concerning an action in defamation, were compatible with Article 19 of the Constitution protecting the right to freedom of expression (see paragraph 34 below). Cap. 148 constituted a justified limitation on the right to freedom of expression since its provisions aimed to protect the reputation of another. The limits on freedom of expression had to be directly connected with the aim that rendered them legitimate and the necessity requiring the protection of that aim. Whenever there appeared to be conflict between two rights, the courts should take into account in their balancing exercise that fundamental rights were of equal importance. Reputation was considered to be an integral and important part of the dignity of an individual which, once besmirched by unfounded allegations, could be damaged forever. Its protection was vital for the protection of the rights of individuals and was in the public interest. Hence, the provisions of Cap. 148 did not run counter to the Constitutional protection of freedom of expression.
32. The defence of justification ensured the essence of the right to freedom of expression. However, it was conditional on the existence of good faith on the part of a defendant in defamation proceedings. In the present case, the facts on which the publications had been based were inaccurate and the defendants had acted in flagrant disregard of the requirement to verify the factual allegations they had published.
33. Mr Justice Hadjihambis delivered a dissenting opinion. He considered that the defence of qualified privilege had been raised properly by the applicants in their pleadings, since they had added therein that the action was contrary to their free speech rights. Section 21 (1) of Cap.148 explicitly referred to the defence of qualified privilege in setting out the balance that must be struck between freedom of expression and the right to reputation. Under this provision, a publication would be privileged only if it was made bona fide and did not exceed what would be reasonable under the circumstances. In his view, given that the first-instance court had not considered the relevant defence, the Supreme Court should have ordered a re-trial of the case.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-107731
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZUBOR v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Just satisfaction dismissed (out of time)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1968 and lives in Veličná.
6. On 24 June 2003 the police arrested the applicant. He was accused of planning a robbery and remanded in custody on that date.
7. Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the preliminary proceedings until 24 January 2005.
8. On 21 January 2005 the public prosecutor indicted the applicant and several others before the Žilina Regional Court.
9. The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004.
10. On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody. On 27 July 2005 the applicant complained to the Constitutional Court that his detention after 24 January 2005 was unlawful.
11. In the meantime, on 15 June 2005, the Supreme Court extended the applicant’s detention until 24 June 2006. On 23 August 2005 the applicant lodged a constitutional complaint alleging a violation of Article 5 § 1 of the Convention as a result of that decision.
12. On 31 March 2006 the applicant was released.
13. In judgment III. ÚS 271/06 of 8 March 2007 the Constitutional Court found that by the above decision of 24 May 2005 the Supreme Court had breached the applicant’s right under Article 5 § 1 of the Convention. The Constitutional Court referred to its judgments I. ÚS 6/02 and I. ÚS 204/05 (see paragraphs 25-30 below) and held that there existed no justification for the absence of any judicial decision extending the applicant’s detention after 24 January 2005.
14. The Constitutional Court ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed his claim for just satisfaction, holding that (i) the finding of a violation of Article 5 § 1 provided appropriate redress for the applicant and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s practice, which, however, was not in accordance with practice under the Convention.
15. In a different judgment delivered on 6 June 2007 (IV. ÚS 10/07) the Constitutional Court found that by the above decision of 15 June 2005 the Supreme Court had violated the applicant’s right under Article 5 § 1 of the Convention. In particular, with reference to the reasons for its judgment of 8 March 2007 the Constitutional Court was of the view that the Supreme Court should have remedied the situation resulting from the applicant’s unlawful detention by ordering his release.
16. The Constitutional Court granted the equivalent of 1,470 euros (EUR) to the applicant as just satisfaction and ordered the Supreme Court to reimburse the applicant’s costs.
17. The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case.
18. Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court can only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it can be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber.
19. Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during a trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and in cases of particularly serious offences up to five years. Under paragraph 3 of Article 71 a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial.
20. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it, or when deciding on an accused person’s application for release. Where a reason for an accused person’s detention no longer exists, the accused must be released immediately.
21. Article 72 § 2 entitles the accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she gives other reasons to justify his or her release.
22. Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody.
23. In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 concerned exclusively situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require that a request for continued detention of the accused be made or that a separate decision should be made on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention.
24. Pursuant to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes on the basis of the file that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful, there is no need for a separate decision of the court on continued detention of the accused. However, where the accused applies for release, such application must be decided upon without delay in accordance with Article 72 § 2 of the Code of Criminal Procedure.
25. In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years.
26. It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention. The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings.
27. In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 5961).
28. In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention.
29. In the above case, which concerned one of the present applicant’s co-accused, the detention in the context of pre-trial proceedings had been extended until 24 January 2005. Prior to its expiry, on 21 January 2005, the accused was indicted. In its judgment the Constitutional Court found that the Supreme Court had breached the plaintiff’s right under Article 5 § 1 of the Convention, in that there had been no judicial decision extending his detention after 24 January 2005 and there existed no justification for that situation. It was irrelevant that courts at two levels had dismissed the accused person’s application for release, as those decisions related to detention in the context of pre-trial proceedings, that is prior to the filing of an indictment. In those circumstances, any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted.
30. With reference to its judgment I. ÚS 6/02 of 4 December 2002 the Constitutional Court held that for a detention to be lawful it must always rely on a court decision.
31. In the above two judgments given in the case of a different co-accused of the applicant, the Constitutional Court found a breach of Article 5 § 1, in that there had been no judicial decision extending the accused person’s detention after the filing of the indictment. In the latter judgment it held, in particular:
“In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person, as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure.
However, a court’s decision on detention of a person at the pre-trial stage can constitute a ground for such person’s detention during a short period following the indictment. Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the plaintiff’s detention existed until 25 January 2005. The detention should have been extended by a decision not later than on 25 January 2005 if it was to last after that date. In the absence of any such decision, the restriction of the plaintiff’s liberty after 25 January 2005 was unlawful.
The unlawfulness of the plaintiff’s deprivation of liberty after 25 January 2005 cannot be vindicated retrospectively, not even by a judicial decision. Subsequent judicial decisions could not have extended the plaintiff’s detention as it had ended on 25 January 2005. The only existing possibility was to remand the plaintiff in custody again. As this was not the case, his subsequent deprivation of liberty had no legal ground.”
32. In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful. The court dealing with the criminal case following the indictment is required to take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release.
33. The new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into force on 1 January 2006.
34. Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of the accused within fifteen days of his or her indictment (or submission for approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments.
35. The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates the judicial control of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court’s judgment I. ÚS 6/02 of 4 December 2002.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4