ITEMID: 001-68312
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KSENZOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Pavel Aleksandrovich Ksenzov, is a Russian national, who was born in 1980 and lives in Rostov-on-Don. He is represented before the Court by Mr Krakovskiy, a lawyer practicing in Rostov-on-Don. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 February 2000 the applicant was arrested on suspicion of having murdered two minors and was brought to the Pervomaiskiy District police station in Rostov-on-Don.
According to the applicant, in the police station he was beaten up. In particular, he alleges that he was hit with a baton and with a wooden hammer, that he was beaten on the head with a plastic bottle filled with water while being handcuffed and chained to a pipe.
According to the applicant, on 20 February 2000 he was taken out of the cell and brought to an officer of the prosecutor's office who hit him on the head with a chair, stripped him naked, handcuffed the applicant's wrists and feet together, put the applicant on the knees and tortured him with electric shocks to force him to confess that he had committed the murder.
On 3 March 2000 the applicant sent a letter to his mother in which he mentioned that on the day of arrest he “was beaten almost to death” by police officers.
On 19 April 2000 the applicant's mother passed him certain medicines, allegedly for liver and kidney treatment.
On 26 July 2000 in the hearing of the criminal case against the applicant he pleaded guilty in having taken part in the robbery and murder, but contested that he had organised them. In this context he denied in part the confession he made at the interrogation. He alleged that he made it under duress. The court called and examined the investigator, Mr Tiskovskiy, who testified that during investigation “the applicant's state of health was normal” and that “he had never received any complaints from the applicant about ill-treatment by the police”. The court held that “[the applicant's] declaration that he had been beaten up upon arrest by police officers [was] unsubstantiated”, found that the statement at issue was consistent with other evidence, and recalled that the applicant kept changing his submissions concerning his role in the gang throughout the proceedings. On that basis it admitted the disputed statement as evidence aggravating the applicant's charge.
On 10 January 2001 the Supreme Court of the Russian Federation considered the applicant's appeal, which was based, in particular, on his complaint that the statements allegedly made under duress were wrongly admitted as evidence. It found that the first instance court exercised sufficient diligence examining the applicant's objections and rightly admitted the disputed evidence, given that the allegations of ill-treatment were completely unsubstantiated.
Following the communication of this case to the respondent Government the applicant's complaints about ill-treatment were apparently brought to the attention of competent domestic authorities. The latter, in turn, questioned the persons who could have witnessed the events concerned.
In this connection, on 4 and 6 June 2003 written statements were produced by Z. and M., the applicant's former cellmates in the cell No. 113 of the detention facility IZ61/1. They testified that no physical force or other pressure was applied to the applicant or other inmates.
On 9 June 2003 the Pervomaiskiy District Prosecutor's Office conducted a further investigation. The investigator, the legal aid counsel who had been present at interrogation, and the police officers of the Pervomaiskiy police station who arrested the applicant, were questioned. All of them denied that ill-treatment had taken place, or that the applicant's confession had been forced. They stated that at the material time the applicant had no injuries and made no complaints about ill-treatment.
On 11 June 2003 the prosecutor's office concluded that no proof to the applicant's allegations could be found and refused to open criminal investigation into the alleged illtreatment. It referred to the statements of the investigator, the counsel and the police officers. In addition, it stated that the existing security control would not allow the officers to bring the objects allegedly used for torture into the interrogation area and noted that the furniture in the interrogation area was secured to the floor.
From 18 February 2000 to 21 October 2000 the applicant was detained on remand in the detention facility IZ-61/1 (then IZ-59/1) in Rostov-on-Don. Initially he was detained in a common cell No. 113.
Following the judgment of 26 July 2000, the applicant was transferred to the cell No. 88, a special cell for detainees serving a life sentence. For some time he was kept alone, until another detainee was placed in the same cell.
The applicant gives the following account of the conditions in the cell. It was a solitary confinement cell measuring 2.5 m x 2 m, 2.3 m high; there was no daylight; the 60 watt bulb was covered by two layers of dense metal mesh leaving the cell always dark, which made it impossible to read or write; the concrete floor was flooded with water, there was mould on the walls and the ceiling; there was no air ventilation; the air was stale and musty; the cell was dirty and overrun with cockroaches and infested with pests and mice; access to tap water was limited, as the tap could only be turned on by the warder outside the cell; the toilet was often blocked with sewage.
The Government submit that the cell No. 88 had a window, a toilet, a washbasin; that the temperature and humidity were maintained in accordance with the standard sanitary requirements; the applicant had a bed and was provided with a set of bedding.
On 24 August 2000 the applicant's mother complained to a prosecutor's office that the applicant's cell had no daylight and that it was damp.
On 25 August 2000 the applicant's counsel submitted a complaint to the administration of the detention facility claiming that the applicant should not have been transferred to a solitary confinement cell.
On 28 August 2000 the applicant's mother submitted a written complaint to the Chief Supervisor of the Detention Facilities of the Rostov Regional Prosecutor's Office alleging, inter alia, that the applicant's cell was damp.
On 30 August 2000 the Chief Supervisor of the Detention Facilities of the Rostov Regional Prosecutor's Office informed the applicant's mother that an inspection had been conducted further to her complaints about the applicant's detention conditions. He replied that the condition in his cell “generally satisfied the sanitary requirements, although the detainees slept in turns due to the shortage of bunk beds”.
On 6 September 2000 the Chief of the detention facility informed the applicant's counsel, in reply to his complaint of 25 August 2000, that the applicant was detained in a cell intended for a small number of inmates according to the law and to the applicant's own request.
On 9 September 2000 the applicant's mother and counsel brought proceedings before the Kirovskiy District Court of Rostov against the administration of the detention facility IZ61/1. They referred, in particular, to the poor detention conditions: insufficient light, humidity, lack of air ventilation, restricted access to tap water and toilet facilities.
On 21 October 2000, the applicant, further to his complaints about poor conditions in the cell No. 88, was transferred to the detention facility IZ61/3 (then UC-398/T) in the town of Novocherkassk, where he remained until 6 December 2000. He was detained in solitary confinement cells Nos. 19 and 20.
The applicant alleges that his cell was cold; that he was not allowed to have blankets or warm clothes and thus had to sleep on a bare iron bed, that the sewage was often blocked and that his access to the water tap was limited.
The Government submit that the applicant's cells had adequate sewage and water supply, and that light and temperature were in accordance with standard sanitary requirements. The applicant was provided with clothes and bedding.
On 1 November 2000 the applicant's mother filed a complaint with the Rostov Regional Prosecutor's office which included a complaint about the poor conditions in the detention facility IZ-61/3. In particular, she complained that the applicant was placed in a solitary confinement cell with a limited water supply; she requested to be permitted to give him warm clothes and a blanket.
From 9 December 2000 to 18 February 2001 the applicant was held in SIZO2 (IZ77/2), a detention facility in Moscow. It appears that he was subsequently transferred back to the detention facility IZ-61/1.
On 2 March 2001 the Kirovskiy District Court of Rostov discontinued the proceedings against the prison administration as the parties had failed twice to appear before the court.
On 15 March 2001 the applicant was transferred from the detention facility IZ-61/1 to another penitentiary institution to serve his sentence.
On 14 February 2002 the Kirovskiy District Court of Rostov accepted the claim of the applicant's counsel that he had not been duly summoned to take part in the proceedings and reversed its decision of 2 March 2001.
On 12 March 2002 the applicant's mother filed a request to discontinue proceedings against the prison administration, as they were apparently brought by the applicant's counsel without consent of either the applicant or herself.
On 3 April 2002 the Kirovskiy District Court of Rostov decided to discontinue the proceedings against the prison administration as the plaintiff had failed two more times to appear before the court. The court also took into account the request of the applicant's mother to discontinue proceedings. This decision has not been appealed.
On 4 June 2003, following the communication of this case to the respondent Government, and apparently in response to their request to clarify certain facts, the applicant gave written explanations to the Chief Penitentiary Directorate concerning the conditions in the pre-trial detention. He wrote that the conditions in the detention facilities IZ61/1, IZ61/3 and SIZO-2 were satisfactory. He stated that he had had no complaints concerning his pre-trial detention conditions and that it was his counsel who wrote the complaint to the Court.
The criminal proceedings against the applicant began on 9 February 2000.
On 20 February 2000 the applicant signed a confession that he had murdered two minors.
On 26 July 2000 the Rostov Regional Court held the applicant guilty on account of a robbery and an aggravated murder and convicted him to life imprisonment.
On 9 September 2000 the applicant's mother and counsel brought proceedings before the Kirovskiy District Court of Rostov against the administration of the detention facility IZ61/1. They claimed, inter alia, that the applicant was handcuffed whenever he visited him in the detention facility, which hampered reading the file and prevented the applicant from taking notes or writing complaints. He also complained that on several occasions the administration of the detention facility had hindered correspondence between the applicant and himself, which impeded the applicant's right to defend himself in the criminal proceedings. These proceedings were subsequently terminated for being abandoned by the applicant, as described above in para. 2 (“Conditions of detention”).
On 10 January 2001 the Supreme Court of the Russian Federation, acting on appeal, upheld the first instance judgment as to the substance, but reduced the sentence to 20 years' of imprisonment.
On 11 June 2003, following the communication of this case to the respondent Government and apparently in response to their request to clarify certain facts, the applicant gave written explanations to the Chief Penitentiary Directorate of the Rostov Region. He stated that he was not handcuffed during the meetings with his counsel in the period between October and December 2000. He made no comments as to other periods.
On 15 February 2000 a regional newspaper Vecherniy Rostov published an article based on an interview with the Pervomaiskiy District Prosecutor. The article was entitled “Three perverts valued children's lives at RUR 8,000”. The article was accompanied by the photograph of the prosecutor and the passport size photographs of the applicant and his two co-accused. The article referred to the prosecutor's opinion on the matter and contained, inter alia, the following statements:
“[...] Mr Ksenzov [i.e. the applicant], 20, one of the murderers, responded that they had to [kill them] because [one of the victims] had recognised him. The officers of the Pervomaiskiy District Prosecutor's office disagree. They are convinced that Ksenzov together with his companions in crime had a clear murderous intent, why would they carry knives otherwise? [...] The circumstances of the bloody crime were as follows [...]. The murderers are found to be three unemployed young men: Pavel Ksenzov, [A.P.] and [M.I.] [...]. The ringleader in the gang was Ksenzov [...]. A decision to create a criminal gang of three came earlier this year. They had no desire of earning by fair means, and were not skilled enough for burglary, hence they chose robbery [...]. They cut the first girl's throat and dragged the second one to the bathroom to torture her. [...] The perverts took money and then cruelly killed the girl hitting her in turn with knives and scissors. [...] The criminals were found within less than a day due to the professionalism of investigators of the Pervomaiskiy District Prosecutor's office. [...] All three [including Ksenzov] were arrested on 9 February. [...] 'What punishment awaits the murderers?', asks the Vecherniy Rostov's reporter. 'It is for the court to impose the sanction, although I can only add, as a human, that the capital punishment has not yet been officially abolished [...]', Mr Mkrtychev answers.”
On 30 June 2000 the applicant's counsel challenged before the Sovetskiy District Court of Rostov the newspaper publication of 15 February 2000. In particular, he requested to declare the statement of guilt publicly made by the prosecutor prior to a trial unlawful.
On 21 November 2000 the Sovetskiy District Court of Rostov held that the claim could not be examined, as the counsel had not been authorised by the applicant to bring any proceedings which fell outside the main criminal proceedings. This decision has not been appealed.
The relevant provisions of the Code of Criminal Procedure of 1960 in force at the material time were reviewed by the Constitutional Court of the Russian Federation in its Ruling No. 1-P dated 14 January 2000. It abolished the courts' power to institute criminal proceedings as incompatible with their judicial function, other that for a limited category of private prosecution cases. The relevant part of the ruling reads as follows:
“If a court examining a criminal case establishes facts which themselves disclose an appearance of a crime [committed by a third person], it must refrain from stating that there are sufficient grounds to suspect a particular person and from formulating charges, and must refer the relevant materials to the prosecution authorities competent to carry out further checks and to take a decision as to whether there are sufficient grounds to institute criminal proceedings. The latter are obliged to take immediate measures pursuant to the facts and circumstances established by the court.”
The Federal Law N 4866-1 On Appeal against Acts and Omissions Infringing Individual Rights and Freedoms dated 27 April 1993, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a state body or official can be challenged before a court if it encroaches on an individual's rights or freedoms or unlawfully vests an obligation or liability on an individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State.
The Code on Civil Procedure as in force at the material time contained similar provisions.
The Civil Code provides for the procedure by which an individual can sue the State for damages in civil proceedings.
According to the applicant, in 2000 the Ombudsman of the Russian Federation published a country report, which states that in 1999 263,645 complaints about police misconduct were filed, and that 902 out of them resulted in prosecution of police officers.
On 23 November 2001 the Rostov-based NGO Christians against Torture and Child Slavery adopted a document entitled “Preliminary Report on Ill-Treatment during Pre-trial Investigation”. The report presents an account of 19 cases of ill-treatment in the Rostov Region recorded by this NGO. The reference period is not defined in the report, but at least two of the reported cases date back to 2000. The report also contains the following figures obtained through a questionnaire answered by 130 advocates of 17 different bar associations of the Rostov Region:
- 58 respondents had come across cases of ill-treatment by police;
- 73 did not believe that there existed effective legal remedies against ill-treatment;
- 10 believed that such remedies existed;
- 68 did not consider it possible to receive compensation for ill-treatment;
- 10 considered it possible;
- other respondents have never considered to seek redress;
- a majority did not believe that emergency medical assistance was readily available in the event of ill-treatment by police.
On that basis the report concluded that torture of suspects in criminal cases was a “common practice”


ITEMID: 001-96158
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZAPADKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1949 and lives in Ostróda. In the 1990s the applicant was suffering from lung cancer. During his treatment he was infected with type B hepatitis.
6. On 17 February 1998 the applicant lodged a claim for compensation against the hospital. He was represented by counsel, Z.K. On 22 September 1998 the Olsztyn Regional Court awarded the applicant compensation in the amount of twenty percent of his claim. The applicant appealed.
7. On 24 August 1999 the court issued a supplementary judgment declaring that in view of the reform of the health care system the State Treasury was liable jointly with the hospital for damage suffered by the applicant.
8. By a judgment of 29 December 1999 the Warsaw Court of Appeal held that the amount of compensation did not correspond to the damage which the applicant had suffered. Nevertheless, it dismissed the appeal. It pointed to the fact that the applicant had wrongly named one of the defendants, namely the hospital.
9. Subsequently, the applicant asked Z.K. on several occasions, including by letter, to take further steps and to lodge another appeal. He also contacted the local Bar, complaining about the lawyer's conduct. Finally, he authorised Z.K. to represent him in the cassation proceedings.
10. The cassation appeal was lodged on 4 August 2000.
11. On 27 April 2001 the Supreme Court dismissed it, partly because the lawyer had wrongly challenged the first-instance court judgment instead of the judgment of the appellate court and partly because the statement of appeal had not fulfilled the applicable formal requirements.
12. The decision was served on Z.K. on 30 May 2001 but he failed to inform the applicant of this. As a result, the applicant only learned about the outcome of the proceedings on 9 July 2002 when he contacted the registry of the Supreme Court directly.
13. On 24 June 2002 the applicant terminated his contract with Z.K.
14. On 14 November 2002 the applicant lodged a claim for compensation against Z.K. with the Elbląg Regional Court. In a judgment delivered on 4 June 2003 the Elbląg Regional Court awarded compensation for non-pecuniary damage sustained by the applicant as a result of Z.K.'s failure to represent his interests in the proceedings diligently.
15. On 7 October 2003 the applicant lodged an appeal against this judgment which was dismissed by the Gdańsk Court of Appeal on 9 March 2004. The decision was served on the applicant on 19 April 2004.
16. On 20 April 2004 the applicant requested legal aid for the purposes of preparing a cassation appeal. On 30 April 2004 the Gdańsk Court of Appeal allowed his request and requested the Gdańsk Bar Association to assign a lawyer to the case. On 13 May 2004 the Bar assigned the case to M.K. On an unspecified date between 14 and 17 May 2004 M.K. was served with a copy of the second-instance judgment.
17. On 19 May 2004 the applicant was served with a legal opinion prepared by M.K. and dated 17 May 2004 by which M.K. explained why he had found no grounds to prepare a cassation appeal.
18. On 27 July 2004 the applicant complained to the Ministry of Justice about the refusal.
19. As a result of this intervention with the Ministry, on 3 September 2004 the Gdańsk Court of Appeal requested M.K. to prepare the cassation appeal within seven days. In a written opinion of 6 September 2004 M.K. maintained his view that there were no grounds for a cassation appeal in this case.
20. On 9 September 2004 the applicant asked the local Bar to assign another legalaid lawyer to the case.
21. The Bar replied on 7 October 2004 that, having regard to the opinion expressed by the first lawyer, it saw no grounds for assigning new counsel to the applicant. It also reminded him that pursuant to the case-law of the Supreme Court it was permissible for a legalaid lawyer to refuse to prepare a cassation appeal if he or she considered that it offered no prospects of success.
22. On 27 September 2004 the applicant asked for retrospective leave to lodge a cassation appeal out of time. On 28 October 2004 that request was rejected.
23. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular, should indicate the consequences of that party's acts or failures to act.
24. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he or she submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family's standard of living.
25. Pursuant to Article 117 of the Code, persons exempted from court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant's case.
26. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court which terminated the proceedings.
27. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected.
28. Article 393 1 of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
29. Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part:
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
30. Article 393 4 read as follows:
“A second-instance court shall reject in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”
31. The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part:
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case,
ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case law,
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
32. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is established to provide legal assistance, co-operate in protecting a person's rights and freedoms as well as to formulate and apply the law.
2. The Bar is organised as a self-governing association.
3. An advocate whilst executing his/her professional duties is accountable only to the law.”
33. Article 3 of the Act provides as follows:
“The general tasks of the professional Bar Council are as follows:
1) creation of conditions for the statutory performance of the Bar's tasks,
2) representation of the Bar and protection of its rights,
3) supervision over the observance of the rules regulating the practice of the profession,
4) development of professional skills and training of advocates,
5) determination and promotion of professional ethics and ensuring their observance,
6) management (...) of the Bar's assets.”
34. Article 28 of the Act reads:
“1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council.
2. In cases where legal assistance is granted on the basis of the legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.”
35. Under Article 21 § 3 of the Act, an advocate shall provide legalaid services in the jurisdiction of a court where he or she has their office.
36. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in proceedings before the bar disciplinary court.
37. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under the legalaid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney, terminate the representation, or notify the refusal to the body which appointed him or her.
38. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive.
39. The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice, but also touched on human rights, and the right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid under Polish law.
40. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legalaid lawyers' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. This was so partly because the essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of a cassation appeal had been introduced in 1996, when this new kind of appeal had been created.
41. As a result, the scope of legalaid lawyers' obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on lawyers' legalaid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The court noted that the judicial practice regarding the application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts.
42. The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client's wishes. The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment.
43. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had rejected such requests and in others it had accepted them. However, it did not prevent the parties from having recourse to this course of action.
44. Pursuant to Article 169 of the Code of Civil Procedure, a party to proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with lodging the request.
45. Article 133 § 3 of the Code of Civil Procedure reads, in so far as relevant:
“If a legal representative ... has been appointed in a case, the court correspondence shall be served on [him or her].
However, in a number of decisions the civil courts have held that the running of the time-limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non-represented party and its subsequent grant or refusal. That time-limit starts to run on the date when the party was served with the judgment of the appellate court together with its written grounds, also where the request for legal aid has subsequently been granted (the Supreme Court's decisions of 15 April 1997, II CZ 35/97; 18 April 1997, I PKN 120/97; 10 September 1998, II UZ 101/98; 6 July 1999, II UKN 332/99; 9 August 2000, I CKN 747/00; 23 March 2001; II UZ 17/01; 19 June 2001, I PZ 33/01; 27 September 2001, II UZ 51/01; 28 November 2001, II UZ 85/01, 15 December 2005, I UZ 33/05).
46. The Supreme Court has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within a period of thirty days counted from the day of service of the judgment on the party. The parties waiting for legal-aid services cannot be held at fault for shortcomings in the system. A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it. A request to appeal out of time should therefore be submitted within seven days from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local Bar Association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01;
47. In a resolution adopted by a bench of seven judges of the Supreme Court on 17 February 2009 (III CZP 117/08) that court acknowledged that there had been discrepancies in the manner in which the beginning of the seven-day time limit for submitting an application for leave to appeal out of time by legally-assisted parties had been determined. The court was of the view that applications for leave served the purpose of making access to the Supreme Court for legally-aided parties genuine and effective. Hence, the beginning of the time-limit could not be determined in a mechanical manner in all cases. The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal.
VIOLATED_ARTICLES: 6


ITEMID: 001-60722
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SERGHIDES AND CHRISTOFOROU v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to access to court;Just satisfaction reserved
TEXT: 8. In 1959, the applicant acquired freehold ownership of plot 565, Nicosia, with a frontage on Jason Street, which is now called Georgios Grivas Digenis Avenue. She was also issued with a Certificate of Registration of Immovable Property by the Land Registry Office, Registration No. B662, dated 28 April 1959. The surface area of plot 565 was 23,488 square feet. On 16 September 1959 the applicant leased plot 565 to Mobil Oil Cyprus Ltd. On 7 October 1959 Mobil, in its capacity as the representative of the applicant, applied to the municipality of Nicosia and obtained a building permit for the construction of a petrol-station, a carwash and other ancillary structures. In 1969 the lease was renewed until September 1973, with the option to extend until September 1977. In paragraph 1 of the third page of the lease, the rented property was described as being “situated at Grivas Digenis Avenue on plot 565”. Paragraph 5(e) of the lease provided that the landlord authorised the tenant as her agent to sign all applications concerning the plants and works which Mobil would construct, reconstruct, operate and continue to operate on the plot, and generally to do all things necessary on her behalf.
9. On 30 March 1973, Notice No. 612 was published in the Official Gazette of the Republic No. 1002, pursuant to the Streets and Buildings Regulation Law, Cap. 96, by the Municipal Committee of Nicosia, aimed at widening Grivas Digenis Avenue.
10. According to the text of paragraph 1 of the Notice, the affected plots were the following: all plots with frontage on a certain specified part of the Avenue (that is, the part of the Avenue between Prodromos Street and Th. Dervis Street) and certain plots with frontage on both the Avenue and other side roads. (The numbers of these “corner plots” were expressly set out in the Notice.)
11. However, the Notice did not mention that plot 565 was part of the land taken for the widening of the street.
12. The Notice provided that any objection against the widening scheme should be raised within seventy-five days of the publication of the Notice in the Official Gazette.
13. On 11 July 1973, Mobil filed with the Municipality an application for a building permit to make minor alterations to a station built in 1959, the pumps’ shelter and an oil ditch. The distance of the new construction from the newly aligned Grivas Digenis Avenue was more than 10 feet, the distance required by Regulation 6(3) of the Streets and Buildings Regulations.
14. Upon receipt of the application, the Municipality addressed to the applicant, through her duly authorised agent, a letter dated 24 July 1973. It was expressly provided in that letter that the plans of the street-widening scheme relating to the Grivas Digenis Avenue should be taken into account. A copy of the official plan which showed the effect of the street-widening scheme was attached to the letter.
15. According to the Government neither the applicant nor Mobil protested.
16. On 27 March 1978 the building permit was issued. By letter of 28 March 1978, the Municipality of Nicosia requested the Office of the Land Registry and Survey to register as part of the public domain, by virtue of section 13 (1) of the Streets and Buildings Regulation Law, Cap. 96, the part of plot 565 affected by the street-widening scheme. At some time between 1978 and 1979, the District Land Registry Office of Nicosia registered the disputed area of 2,060 square feet as part of Grivas Digenis Avenue.
17. According to the applicant, the Government Survey Plan and the applicant’s title were amended without anyone notifying her. In the Land Register, the ceding of the disputed area to the road was described as follows : “By purchase from the Government after compulsory acquisition + By grant. A public road. Fees: gratis”. The applicant alleges that she was never notified about this amendment of the Register which contains a false declaration. Moreover, Mobil was never notified, as no mention of the expropriation was made in the conditions attached to the building permit which had been granted. Even the letter sent to Mobil on 24 July 1973 only stated that the street-widening scheme would have to be taken into consideration, giving no specific indication that the disputed area would be compulsorily ceded to the road.
18. Although the street-widening plan was made in 1978, the actual widening was not effected until September 1989. On 5 September 1989 Notice of Acquisition No. 1391 was published in Gazette No. 2439. Again, however, the applicant’s plot did not appear to be affected. According to the Government, this was due to the fact that the part of the plot affected by the street-widening scheme had already become part of the street through the earlier procedure, pursuant to sections 12 and 13 of the Streets and Buildings Regulation Law, Cap. 96.
19. The applicant claims that the first time she became aware of the situation was after receiving a Government Survey Plan on 4 September 1989 which she had requested from the Land Registry for the purpose of filing an objection to taxes imposed on some of her immovable property.
20. As the original 1959 registration certificate for plot 565 was lost, the applicant requested a further official copy, which she received on 30 December 1992. However, the certificate had been changed in relation to the surface area of the plot and contained the declaration – “Mode of Acquisition: By virtue of purchase by the Government after Compulsory Acquisition and by virtue of cession to the public road”.
21. On 17 November 1989 the applicant lodged an application with the Supreme Court of Cyprus, sitting at first instance, against both the Municipality of Nicosia and the Republic. She asked the court to declare the Land Registry’s Office decision to take away 2,060 square feet of her land, as well as the decision to declare that piece of land to be part of a public road, void and without any legal effect. The applicant invoked Article 23 (2) and (4) of the Constitution (see Relevant Law below).
22. On 22 January 1990 the application was fixed for directions before the Supreme Court on 16 March 1990. On 23 January 1990 the Republic filed its opposition. On 16 March 1990 the court directed the Municipality to file its opposition by 23 April 1990. On that date as well as on 15 May 1990 and 11 June 1990, the Municipality applied for consecutive extensions. The applicant’s lawyer stated on each occasion that he did not object. On 20 June 1990 the Municipality filed its opposition. On 19 September 1990 the applicant filed her observations. On 6 December 1990 and 8 February 1991 the Republic and the Municipality applied for an extension of the time-limit for filing their observations in reply. These observations were filed on 14 April 1991 and 8 May 1991. On 12 June 1991 and 13 September 1991 the applicant’s lawyer was granted two further extensions for submitting additional observations.
23. On 22 January 1992 the Supreme Court reserved its decision, which was not rendered until 2 February 1993.
24. On 8 December 1992 the applicant transferred the ownership of plot 565 to her children by way of donation. According to the relevant Declaration of Transfer submitted by the Government, she transferred the totality of her legal title in plot 565 without any reservation whatsoever. This fact was not brought to the knowledge of the Supreme Court by the applicant.
25. According to the applicant, as she was seriously ill, she transferred the ownership of 21,428 square feet of land out of the total 23,488 square feet which she had originally held in 1959, with a half share to each to her two children – Mrs A. Christoforou and Dr G.A. Serghides. The remaining 2,060 square feet which she did not transfer is the disputed area. The entry of this transfer in the Land Registry Office appears to have been made on 23 February 1993.
26. On 2 February 1993, the Supreme Court rejected the application as out of time, it having been filed more than seventy-five days after Notice No. 612 had been published in the Official Gazette. It held that the letter of 24 July 1973 to Mobil from the Municipality constituted sufficient notice. It further held that the acts and/or actions of the Municipality of Nicosia and the Republic of Cyprus as regards the expropriation of 2060 square feet of the applicant’s land were not executory administrative acts, and thus could not be annulled by virtue of Article 146 of the Constitution. It concluded that the street-widening scheme did not amount to a deprivation of property but only to a restriction on property having regard to the total surface area of the property and the affected land.
27. On 9 March 1993, the applicant filed an appeal on points of law with the Supreme Court.
28. On 5 September 1996 the parties were notified by the Registrar that the appeal was fixed for hearing on 12 December 1996. On that date the lawyer for the Municipality applied for an adjournment of the hearing, to which the applicant’s lawyer did not object. On 20 January 1997 the Supreme Court adjourned the hearing for want of time. On 3 April 1997 the hearing commenced but was not completed. On 15 May 1997 then on 1 July 1997 the hearing was further adjourned upon applications made by the lawyers of the applicant and the Municipality respectively. The hearing was completed on 10 September 1997 and judgment was reserved.
29. On 27 February 1998 the Supreme Court dismissed the appeal on a procedural point, without examining the merits of the case. It held that, as the applicant had transferred her property, she no longer had locus standi in respect of the land taken by the Municipality in 1978.
30. In neither of the procedures before the Supreme Court did the applicant ever contend that she had had no notice of the publication of the street-widening scheme that affected her property.
31. The relevant Articles of the Constitution provide as follows:
“(1) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved.
(2) No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.
(3) Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right.
Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court.
(4) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a commune for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only
(a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution;
(b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition;
(c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.”
“The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this part.”
“(1) The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a claim made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such an organ or authority or person.
(2) Such a claim may be made by a person whose existing legitimate interest, which he has either as a person or by virtue of being a member of a community, is adversely and directly affected by such a decision or act or omission.
(3) Such a claim shall be made within seventy-five days of the date when the decision or act was published or not published and, in case of an omission, when it came to the knowledge of the claimant.”
32. The relevant Sections of this law provide as follows:
“In this Law
alteration, addition or repair, when used with reference to buildings, means any structural alteration, addition or repair whereby any dimension of such building is altered ...
building means any construction, whether of stone, concrete, mud, iron, wood or other material and includes any pit, foundation, wall, roof, chimney, veranda, balcony, cornice or projection or part of a building, or anything affixed thereto, or any wall, earth bank, fence, paling or other construction enclosing or delimiting or intended to enclose or delimit any land or space.”
“No person shall
(a) lay out or construct a street;
(b) erect, or suffer or allow to be erected a building or demolish or reconstruct or make any alteration, addition or repair to any existing building, or suffer or allow any such demolition or construction or any such alteration, addition or repair to be made;
(c) lay out or divide any land... into separate sites,
(d) divide any building ... into separate tenements;
(e) start to do any of works or matters herein-before set out
without a permit first obtained from the appropriate authority as provided in subsection (2).”
“(1) Notwithstanding any provision contained in this Law, a competent authority may, with the object of widening or straightening any street, prepare or have prepared plans showing the width of such a street and the direction that it shall take.
(2) When any plans have been prepared under subsection (1), the competent authority shall deposit such plans in its office and shall also have a notice published in the Gazette and in one or more local newspapers and deposited in its office, open to inspection by the public at all reasonable times, for a period of seventy-five days from the date of the publication of the notice in the Gazette.
(3) At the expiry of the period set out in subsection (2), the plans shall, subject to any decision of the Supreme Court after a claim is filed as provided for in section 18 of this law, become binding on the competent authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans.”
“(1) Where a permit is granted by a competent authority and such permit entails the new alignment of any street, in accordance with any plan which has become binding under section 12 of this law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of that street without the payment by the authority of any compensation whatsoever:
(2) When a permit is granted under subsection (1), the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remains unaltered.”
33. On 25 June 1976 the Supreme Court held that section 12 of the Streets and Buildings Regulation Law, Cap. 96, was not contrary to Article 23 of the Constitution, because it resulted only in the imposition of restrictions or limitations on the right of property and, particularly, on the use of such property for the purposes of building development, which were absolutely necessary in the interests of town and country planning within the meaning of Article 23 (3) of the Constitution (Neophytos Sofroniou and Others v. the Municipalty of Nicosia and Others judgment of 25 June 1975).
34. By a judgment of 23 May 1997 in the case of Kyprianides and Others v. the Municipality of Nicosia, the Supreme Court ruled that no claim for damages could be introduced when the disputed area was less than 15% of the original area. This judgment was subsequently confirmed in the case of the Attorney General v. F. Iacovides (Civil Appeal No. 9965, judgment of 29 September 1998).
35. As regards section 12(3), the Government affirm that the publication of such a scheme does not result in the acquisition by the competent authority of the part of the property affected thereby. It merely imposes restrictions and limitations upon future plans for the development of such property. If an application is made for the issue of a building permit in relation to such property, the permit must be in accordance with the plans of the streetwidening scheme. The provisions of section 13 come into play in the event of the issue of a building permit. Then the affected part of the property becomes part of the street.
36. The Government contend that it follows that in the present case the alleged expropriation of 2,060 square feet of the applicant’s land was not brought about by any administrative act or decision of the competent authority but by operation of law. The relevant statutory provisions operated automatically as soon as the building permit was issued, that is on 27 March 1978. The procedure that followed for the registration of the area was not an executory administrative act but merely an act of implementation because the said area had already become part of the street on the date on which the permit was issued.
37. The relevant sections of this Law provide as follows:
“In the present Law ‘owner’ means the person entitled to be registered as the owner of any immovable property whether he is actually registered or not.”
“No transfer or voluntary charge affecting any immovable property shall be made in the District Lands Office by any person unless he is the registered owner of such property ...”
“The area of land covered by a registration of title to immovable property shall be the area of the plot to which the registration relates in any Government Survey Plan or any plan made to scale by the Director:
Provided that where the registration cannot be related to any such plan, the area of land concerned shall be that to which the holder of the title may be entitled by adverse possession, purchase or inheritance.”
“From and after the date of the coming into operation of this Law, every registration made and every certificate issued in connection with any transfer of land or building, or any devolution thereof by inheritance, shall be deemed to include all immovable property connected therewith to which the transferor or deceased was entitled.”
38. Section 4 of this law provides as follows:
“Where any property is required to be compulsorily acquired for the purpose of a public benefit, the acquiring authority shall cause a notice of the intended acquisition in the form set out in the Schedule hereto ... to be published in the official Gazette of the Republic, containing a description of the property intended to be acquired, stating clearly the purpose for which it is required and the reasons for the acquisition, and calling upon any person interested in such property to submit to such authority within a specified time, being not less than two weeks from the date of the publication thereof, any objection which he may wish to raise to such acquisition ...”
39. The relevant regulations provide as follows:
“(a) Judgments are delivered as soon as possible after the end of the proceedings and cannot be reserved for a period longer than six months.
(b) If the Court fails to comply with the provisions of sub-paragraph (a), any concerned party may apply to the Supreme Court according to Regulation 5.”
“If a decision which has been reserved ... [or] continues to be reserved for a period which exceeds nine months, the case is ipso jure fixed before the Supreme Court for the delivery of the order which is necessary in the circumstances, pursuant to Regulation 5 of the Regulations.”
“In considering the application lodged according to Regulation 3, the Supreme Court may ...
(b) make an order for the issue of the reserved judgment by a specific date and, in case of non-compliance, order a re-hearing by another court.”
40. Regulation 5(1) provides as follows:
“The respondent may within twenty-one days from the service of the application, file with the registry and serve at the applicant’s address for service an opposition thereto ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109221
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ABIL v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Non-pecuniary damage - award
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1952 and lives in Baku.
6. The applicant stood for the elections to the National Assembly of 6 November 2005 as an independent candidate. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-member Garadagh Electoral Constituency no. 11.
7. On 28 October 2005 the ConEC held a meeting in the applicant’s absence and decided to apply to the Court of Appeal with a request to cancel his registration as a candidate owing to reports of his engaging in activities incompatible with the requirements of the Electoral Code. In particular, the ConEC noted that it had received a number of written statements from voters claiming that the applicant had promised them money in exchange for their promise to vote for him. The ConEC forwarded a total of seventeen such statements to the Court of Appeal, enclosed with its request for the applicant’s disqualification.
8. On 29 October 2005 the applicant and his lawyer attempted to get a copy of the case file from the Court of Appeal, but were not allowed to do so.
9. On 31 October 2005 the Court of Appeal examined the case and cancelled the applicant’s registration as a candidate, in accordance with Articles 88.4 and 113.2.3 of the Electoral Code. During the hearing, the applicant submitted that he had not been informed of the ConEC meeting of 28 October 2005 in advance and, therefore, had not been able to attend it. He denied all the accusations against him and asserted that they had been fabricated.
10. The court heard oral testimonies of eight out of the seventeen persons who had submitted written statements to the ConEC accusing the applicant of attempting to bribe them. One of them, H., testified that the applicant had personally offered him money. The remaining seven testified that they had been approached by some unknown people who had offered them money if they promised to vote for the applicant. When asked in court whether, when offering money, those “unknown people” had inquired from them whether they had been registered as voters in the applicant’s constituency, these witnesses replied in the negative.
11. The Court of Appeal considered the above evidence sufficient to find that the applicant had offered money to voters in exchange for their votes in his favour, thus breaching Article 88.4 of the Electoral Code.
12. After the delivery of the Court of Appeal’s judgment, the applicant carried out an enquiry about the identity of the persons who had testified against him. He found out that four of the eight persons who had testified against him in court were not actually registered as voters in his constituency. Moreover, witness H. was not registered and did not actually reside at the address which, according to his submissions to the court, was his primary residence located in the applicant’s constituency. In the applicant’s opinion, this information gave rise to serious doubts as to the personal integrity of the witnesses and the truthfulness of their statements, because it showed that they had either lied about their personal details or made false accusations against him, as there was no reason or incentive for a candidate in a given constituency to attempt, either by means of legal campaigning or illegal methods, to secure the votes of persons who were registered to vote elsewhere and therefore could not vote for him anyway.
13. The applicant lodged an appeal with the Supreme Court, arguing that the Court of Appeal’s judgment was arbitrary, that the evidence used against him had been fabricated, that the persons who had testified against him were false witnesses and that some of those persons were actually relatives of various officials of the local executive authorities. In support of his arguments, he submitted the information described in the above paragraph.
14. On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’
15. In the meantime, in September and October 2008 the applicant lodged several complaints with the ConEC and the Central Electoral Commission (“the CEC”) concerning various alleged irregularities in the election process in his constituency. However, according to the applicant, he did not receive any replies to his complaints.
16. The applicant lodged an action with the Court of Appeal, complaining about the above-mentioned irregularities and asking the court to hold the Chairman of the CEC liable for the alleged failure to respond to his complaints. On 2 November 2005 the Court of Appeal dismissed the applicant’s claims as unsubstantiated. On 7 November 2005 the Supreme Court upheld that judgment.
17. Article 88.4 of the Electoral Code of 2003 provides as follows:
“88.4. Candidates ... are prohibited from gaining the support of voters in the following ways:
88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work;
88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work;
88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material);
88.4.4. providing services free of charge or on privileged terms;
88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.”
18. According to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code.
19. Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11).
20. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.
21. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2).
22. The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-100903
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PANKOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 (procedural aspect);No violation of Art. 2 (substantive aspect);No violation of Art. 13
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1980 and lives in Pleven.
6. In April 1999 the applicant was conscripted into the Bulgarian Army to perform his mandatory military service. He was serving in a regiment in the town of Gorna Banya. In mid-July 1999 the regiment doctor relieved him from physical exercise and daily duty because of illness. Nevertheless, on the night of 21 July 1999 he was assigned to night duty.
7. After finishing his duty, in the morning of 22 July 1999 the applicant was sent, together with other soldiers from his regiment, to shooting practice at a military shooting range near the town of Slivnitsa. During the practice soldiers from the applicant's regiment and another regiment were present on the range. The applicant performed his task, which consisted of firing twelve rounds. After that he handed back all spent cartridge cases and was sent to a watchtower to guard against outsiders penetrating into the range. The tower was a square concrete construction 9.3 metres long and 7 metres wide. In the middle it had a threemetrehigh chimney.
8. At about 11.10 a.m., minutes after climbing up the tower, the applicant was shot in the abdomen. According to the findings of the ensuing investigation, the shot was fired at close range from his own automatic rifle, whose breechblock he was trying to fix without following the applicable safety procedures. The applicant disputes those findings and asserts that the shot was in all probability fired by another soldier from afar.
9. After the shot the applicant fell down on the roof of the tower, screaming and moaning. Chief Lieutenant P.P., who was sitting with a few soldiers from his regiment at the foot of the tower, rushed up the stairs. He brought the applicant down with the help of soldier T. and medical officer N.G., who were also at the foot of the tower and climbed up after the shot.
10. After that the applicant was put into an ambulance and transported, accompanied by medical officer N.G., to the Military Medical Academy in Sofia, where he underwent lifesaving surgical operations on 23, 26 and 27 July 1999. On 28 July 1999 his condition was found to be serious but stable. He was discharged from hospital on 9 September 1999, and later received a medical discharge from the army.
11. On the day of the incident a military investigator, notified by the military police, opened a preliminary investigation whose aim was to “determine the causes and the circumstances in which [the applicant] shot himself”.
12. At 2.30 p.m. the investigator inspected the scene of the incident. He found that it had not been preserved intact. He described in detail everything he found. He also identified, on the basis of the statement of Chief Lieutenant P.P., the likely positions of the applicant's body and of his rifle “after the shot”. He impounded the rifle, a halfscrubbed and oxygenated cartridge case, some pieces of dark reddish matter, dactyloscopic traces from the rifle, and traces from the surface of the tower.
13. Later that day the hospital where the applicant had been operated upon sent the investigator the piece of skin surrounding his entry wound and acetone smears from his palms. The applicant's commander handed over to the investigator the shirt he had been wearing during the shooting and some of his personal items.
14. The next day, 23 July 1999, the investigator interviewed Chief Lieutenant P.P., a sergeant responsible for counting the targets at the shooting range, the applicant's mother, and Captain Y.P., the officer in charge of the shooting practice. He also ordered a complex ballistic, microbiological and physicochemical report and a medical expert report.
15. Chief Lieutenant P.P. said that while he was sitting at the foot of the watchtower he heard a single shot from above, much louder than those coming from the firing range, and then heard screaming from the top of the tower. He climbed up the stairs and saw the applicant lying on the ground, moaning and tossing his upper body up and down. He noticed that the applicant's shirt was unbuttoned and that he had a wound on the left side of his abdomen. The wound did not have a clear shape and looked more like a star than a hole. It was surrounded by a round black patch with a diameter of five to seven centimetres and consisting of many black spots close together. The lieutenant saw another wound on the applicant's back, with a clear round shape, one centimetre in diameter, with a little blood on it. He also saw the applicant's rifle, which did not have a round in its chamber, had its safety lever down and was in semiautomatic mode.
16. Captain Y.P. handed over to the investigator the order and the plan for the shooting practice, and described the safety briefing given to all soldiers before the start of the shooting practice. He said that after the briefing a chief lieutenant checked the weapons of all soldiers taking part in the practice, and ordered two soldiers to step aside and clean their weapons. Then the captain announced to the soldiers the manner in which the practice would be conducted and the safety measures. They were to fire solely upon his command, and stop firing immediately if he so ordered, or if they received a visual signal from the watchtower, or if they noticed people, animals or machines near the targets. The firing range was delimited by markers at both ends. It was strictly forbidden, under any circumstances, to point a firearm outside the firing range. If a firearm jammed, the soldier had to report it immediately, remain still, put the safety catch down and not touch the firearm. The soldiers fired in groups of four, with those waiting their turn having unloaded weapons. The soldiers first went to the starting point, received magazines containing twelve rounds, and put them in their bags, while keeping their rifles on their backs. When they received the order to fire, they had to run to the firing position with their rifles pointing towards the firing range. Then, on a further order, they had to take the magazines out of the bags, put them onto the rifles, load a round, lift the safety catch and report that they were ready to fire. When ordered to fire, after the captain had made sure that each of them had loaded his weapon and was ready to fire, they put the safety catch in automatic firing mode and started firing. After finishing firing, they had to report, remove the magazine, and, when ordered, fire a control shot towards the firing range and put the safety catch on. After that they had to stand up, have their rifles checked by the captain with the magazine removed, fire a second control shot, and hand back the spent cartridges. At the time of the incident a group of soldiers was firing, with the captain standing about two metres behind them. Immediately after hearing the applicant's screams the captain ordered the soldiers to stop firing and empty their weapons, and then checked the weapons.
17. The order for the shooting practice, issued by the head of the regiment, designed a commanding officer, an officer, a sergeant and a soldier ensuring the sealing off of the area, a technician, an emergency medical officer, a standby ambulance, two guards, one of whom was the applicant, and a head of the ammunition supply point. It directed the commanding officer to ensure compliance with the safety measures in line with the applicable instructions. An annex to that order shows that all the soldiers confirmed that they had been briefed about the safety measures.
18. On 27 July 1999 the investigator interviewed medical officer N.G., SergeantMajor G.I., the person in charge of ammunition safety during the shooting practice, and soldier R.V. of the applicant's regiment.
19. N.G. said that, while sitting at the foot of the watchtower, she heard a loud whizzing sound and then screaming. She climbed up the tower and saw a wound on the applicant's abdomen. It was a small hole with a round darkbrown patch around it. Later, the officer was with the applicant in the ambulance, she noticed another wound, with a diameter of one centimetre, on the left side of his lower back. In the ambulance, she repeatedly asked the applicant how he had sustained the injury, but he kept silent. At one point, he said “I wanted to fix it”. She pressed him for more, but he said “Oh, leave me, leave me” and asked whether they had already reached the hospital.
20. G.I. said that following the incident, when he had been counting the cartridge cases spent during the shooting practice, somebody, probably Lieutenant M., threw a cartridge case on to the pile, and it got mixed up with the others. When G.I. enquired about the case's origin, lieutenant M. had replied that it had come from the scene of the incident. Later, with a view to identifying the case, the officer in charge of the practice ordered G.I. to divide the cases up into lots. He found only one with a diverging serial number, and handed it over to the investigator. G.I. also said that he was certain that the applicant had earlier returned to him all twelve cases of the cartridges allotted to him for the shooting practice.
21. R.V. said that the applicant had been in a good mood on the day of the incident, that both of them had had their rifles checked and returned their spent cartridge cases after the shooting practice, and that, prior to climbing up the watchtower, the applicant did not have a magazine on his rifle.
22. On 29 July 1999 the investigator interviewed the applicant, who was still in the intensive care unit of the emergency surgical department of the Military Medical Academy in Sofia (see paragraph 10 above). According to the record of this interview, the applicant said that while he was on the watchtower he tried to fix his rifle's sling. He knelt down on his right knee and laid the rifle on the ground with the muzzle pointing towards him. He noticed that the safety catch was in automatic firing position and the breechblock was not in position. With his right hand he pushed the breechblock forward. It jammed and he used force to push it, with the rifle's barrel lying on his left hand and the magazine holder pointing upwards. When the breechblock moved into position, he heard a shot. He became short of breath and started crying for help.
23. The applicant strongly disputes the accuracy of this record and maintains that, being in a very serious medical condition, he could not remember how this interview unfolded or the statements he made during it. He submits that the only reliable statements were those which he made during a subsequent interview on 13 September 1999, four days after his discharge from hospital. At that interview he said that before going to the tower he fired all twelve cartridges at the shooting range and then returned the spent cases to SergeantMajor G.I. When going up the tower, he noticed two sergeants there, talked to them for a while and then remained alone. When standing with his left side toward the shooting range and his rifle slung over his shoulder, he suddenly felt powerless, weak in the knees and short of breath, but did not hear a shot close by. He started shouting for help and ten seconds later someone came up to him.
24. On 11 and 17 November 1999 the investigator interviewed Captain V.P., a staff doctor from the applicant's regiment, and two soldiers serving with the applicant. All of them said that they had not seen any signs of depression in the applicant prior to the incident.
25. The medical expert report ordered by the investigator was drawn up on 28 July 1999 by Dr G.D., deputy chief of the Forensic Medicine Centre of the Bulgarian Army. He had not examined the applicant but based his report on the existing medical documentation. The report read as follows:
“... The entry wound is situated on the front left side of the abdomen, slightly above the navel and on the midclavicular line, with burns on the surrounding skin. The exit wound is on the left side of the back, under the corner of the scapula.
If the body was in an upright position the channel of the wound would go slightly upward from the front to the back.
The entry wound's description in the medical documents shows that it was the result of a shot from a very close range. To determine precisely the distance of the shot it is necessary to carry out a ballistic testing of the clothes worn by [the applicant] at the time when the shot was fired.
When passing through the body the projectile (the bullet), in addition to damaging the soft tissues, broke the twelfth rib on the left, ruptured the front and the back walls of the stomach, the transverse colon, the splenic flexure (in two places), and the spleen. As a result, there was a flow of faeces and a massive haemorrhage in the abdominal cavity, causing a temporarily lifethreatening medical condition.
The above necessitated an emergency lifesaving surgery, consisting of a full midline laparotomy, with a drainage of the blood and the faeces from the abdominal cavity and a resection of the omentum, a wedge-shaped resection and stitching of the stomach, partial resection of the transversal colon and of the splenic flexure, with a removal of a bitruncular colostoma, surgical removal of the spleen, treatment of the fractured rib, lavage and drainage of the abdominal cavity, and laparostoma.
After that surgical intervention the bleeding was stopped and the risk to [the applicant's] life was averted, i.e. the case concerns loss of the spleen.
It should be borne in mind that without a timely and highlyqualified medical intervention death would have occurred very rapidly.
After the surgical intervention [the applicant] was placed in an intensive care unit. Following Xray data about a haemorrhage in the left pleural cavity on 23 July 1999, a left-side thoracentesis (drainage of the pleural fluid) was carried out. On 26 July 1999 a surgical bandage was made, and on 27 July 1999 – a second laparotomy with a revision of the laparostoma and of the abdominal cavity was carried out, a local aesthetic was applied on the mesentery, ileostomy and debrissage of the small intestine through it were performed, and a new laparostoma was placed. After the surgical intervention the [applicant] was again placed in an intensive care unit. On 28 July 1999 his condition was assessed as being stable but serious.”
26. On 10 September 1999 a biology expert drew up a report saying that the blood-red dry matter taken from the scene of the incident was indeed human blood. However, as a result of the depletion of the sample, it was impossible to determine its type or to tell whether it was identical with the applicant's blood. The applicant's shirt had blood on it.
27. In a report of 14 September 1999 three experts stated that the applicant's rifle was in good working order and able to produce a shot. The force needed to be applied to the trigger in order to fire was within the acceptable limits. They further found that the rifle had been fired since it had last been cleaned, and that the cartridge case handed over by SergeantMajor G.I. to the investigator did not come from that rifle.
28. In a physicochemical report of 4 October 1999 two experts said that they had been unable to conclude whether the gunpowder from the rifle's barrel was identical to that taken from the applicant's shirt. They also said that the smears from the applicant's palms and wrist-bands did not contain traces of a shot.
29. On 22 November 1999 the investigator proposed discontinuing the investigation. He found that the applicant had shot himself at close range. There was no evidence pointing to breaches of the regulations on conducting shooting exercises or the applicable safety rules. Nor was there any indication that the applicant had had psychological problems or depression which could push him to commit suicide, or that he had tried to damage his health with a view to evading military service. The evidence thus led to the conclusion that his injury was the result of an accidental shot fired because of his improper handling of his firearm.
30. On 30 November 1999 the Sofia Military Regional Prosecutor's Office decided to discontinue the investigation, repeating the reasons given by the investigator verbatim.
31. On 9 April 2001 the applicant appealed to the Military Appellate Prosecutor's Office. He argued, among other things, that the authorities had explored solely the version that he had shot himself. No expert report had been drawn up on the identity of the firearm which had produced the shot. It was absurd to think that this was the rifle he had been carrying while on the watchtower, because it had not been loaded and had its safety catch down. His clothes had not been examined by an expert and it was therefore impossible to conclude whether or nor the shot had been fired at close range. The medical expert report was not based on primary medical documents and had thus come to the erroneous conclusion that the bullet had left his body, producing a second wound on his back. There were indications, such as the noise of the shot, noted by the witnesses, that he had been wounded by a ricochet and that the bullet had shattered.
32. On 18 June 2002 the Military Appellate Prosecutor's Office dismissed the appeal. It noted that during his interview on 29 July 1999 the applicant had stated that he had shot himself. Moreover, the medical expert had found that he had both an entry and an exit wound. The medical documents showed that the wound was from a shot fired at close range. Noone else was around the applicant at the time of the shot. The lower prosecutor's findings were thus correct.
33. On 9 July 2002 the applicant appealed to the Chief Prosecutor. He asserted that his statement of 29 July 1999 was far from reliable. At that time he had been in hospital, in a very bad condition following several lifesaving operations. It was therefore surprising to see that the official record of this statement seemed so detailed and logical. No expert report had been drawn up on the identity of the firearm which had produced the shot, whereas the evidence showing that it had been fired by his rifle was unreliable and was called into doubt by other evidence. There was no evidence showing that the shot had been fired at close range. Lastly, no consideration had been given to the fact that he had been ordered to take part in the shooting exercises after night duty and while he was ill.
34. On 11 October 2002 the Supreme Cassation Prosecutor's Office dismissed the appeal. It observed that the testing of the piece of skin surrounding the applicant's entry wound showed that the shot had been fired at close range. This was consistent with the applicant's statement of 29 July 1999 and the statement of medical officer N.G. It was impossible to examine the bullet, because it had not been found. It was established that the spent cartridge case handed over to the investigator by SergeantMajor G.I. did not come from the applicant's rifle. However, it could not be ruled out that G.I. had mistakenly identified it as the one thrown on to the pile by lieutenant M., given that the pile contained in total more than nine hundred spent cartridge cases. Even if all of them were to be tested, which was impossible in view of the time elapsed since the events, that would not have led to a definite conclusion about the firearm's identity. The lower prosecutors had thus correctly found that the applicant had injured himself by handling his rifle improperly. There was no indication that other soldiers had shot him or that he had injured himself deliberately.
35. On 11 June 2003 the applicant's representative before the Court wrote to Dr P.L., the head of the forensic department of the Pleven Medical University. He sent him the relevant medical documents and asked for his opinion on (a) whether the description of the applicant's wound was comprehensive; (b) whether it was possible to determine, on the basis of that description, the distance from which the shot had been fired; (c) what could be the exact basis for such determination; (d) what could be the possibility for error; and (e) what type of data would allow a more precise determination of the distance from which the shot had been fired.
36. Dr P.L.'s opinion, drawn up on 13 June 2003, read as follows:
“The questions you pose in your letter ... may be answered like this:
1. The description, which says 'visible entry wound in the abdominal area, at the midclavicular line, slightly above the navel, with burns', is not detailed – the shape of the wound, the condition of the edges, the size of the wound (diameter or diameters), the size of the 'burn' and its position relative to the edges of the wound – concentric or eccentric – are lacking.
2. On the basis of that description, one could make the very general conclusion that the wound was the result of a shot from a close distance. Indeed, the shot could have been even a contact one, if it was fired through several layers of clothing, or thicker, or damp clothing.
In forensic medicine, shot distances are categorised in three ways: contact shots (complete or incomplete), closedistance shots (within the range of action of the shot's additional effects), and longdistance shots (outside the range of action of the shot's additional effects), without this being linked with a concrete distance in centimetres or meters.
3. The basis for the conclusion in point 2 is the fact that the wound was surrounded by a ring, described as a 'burn'.
4. In the case of closedistance shots (and sometimes in the case of contact shots), one can see traces of unburned powder, metal particles, grease, etc. around the wound (the socalled 'stain ring' or 'blackened ring'). The range at which those can make an impact (in the case of a shot with a Kalashnikov rifle) is twentyfive to thirty centimetres. With the increase in the distance, the intensity of those additional effects of the shot diminishes.
There is no burning around an entry firearm wound because the action of the flame and the hot gases is short-term. Sometimes one can find traces of the high temperature – slight burning of thin or more tender hairs or of artificial tissues.
The 'stain ring' around the wound is a result of the mechanical action of the blacks and of the other particles and their ramming into the skin, as well as of the chemical action of the powder gases and the other residues from the shot.
It is also possible that the so-called 'burn' was in fact a 'muzzle mark' – a bruise around the entry wound resulting from the impact of the muzzle in the case of a full contact shot. Such marks are characteristic for shots in the head or in areas having a solid surface (bone) underneath, but can sometimes occur in cases of shots in the abdominal area. The available description does not allow a more specific conclusion to be drawn.
The possibility for error when concluding that a shot has been fired from a close distance on the basis of a 'stain ring' is minimal. The medical literature refers to the so-called 'phenomenon of Vinogradov', in which such a ring appears after a shot from a distance of even several hundred meters. However, such occurrences are rare and do not correspond to the description of the wound in the present case. The description of the wound allows one to conclude that the shot was fired either from a close distance or that it was a contact shot. A long-distance shot is to be excluded.
5. It would be possible to make a more specific assessment of the distance from which the shot has been fired on the basis of:
– a more detailed medical description (as mentioned in point 1);
– more information about the conditions in which the shot was fired (clothes, type of bullet, etc.);
– a special analysis determining the composition of the stain around the wound or on the clothes;
– experimental shots with the same weapon and in the same conditions as the shot under consideration.”
37. Article 192 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could be initiated only by a prosecutor or an investigator. When military courts had jurisdiction to hear a case, as for example when it concerned soldiers or army officers (Article 388 § 1(1) of the Code), the responsibility for conducting the preliminary investigation lay with military investigators and prosecutors.
38. Under Article 237 § 1 (1) of the Code, as in force at the relevant time, prosecutors were to discontinue an investigation if they found that the matters alleged did not amount to a criminal offence. Until 31 December 1999 their decisions to do so could be appealed against before the superior prosecutor (paragraph 6 of that Article, as in force until 31 December 1999).
39. Paragraphs 3 and 4 of Article 237 of the Code, as in force between 1 January 2000 and 30 April 2001, provided that after the discontinuance the prosecutor had to send the case file and his decision to the superior prosecutor's office, which could confirm, modify or quash it. If it confirmed the decision, it had to send the case file to the appropriate court, which had to rule in private as to whether the discontinuation was or was not warranted (Article 237 §§ 5, 6 and 7 of the Code, as in force at that time). Paragraph 9 of that Article provided that no appeal lay against the court's decision. No provision was made for the victim of the offence to be notified of the discontinuance.
40. Article 237 of the Code was completely changed with effect from 1 May 2001 and from that point on provided that the prosecutor's decision to discontinue the proceedings was to be served on the accused and on the victim of the offence. Either of them could then seek judicial review.
41. Under the 2005 Code of Criminal Procedure, which superseded the 1974 Code on 29 April 2006, a prosecutor's decision to discontinue an investigation is served on the accused and the victim of the offence and is subject to judicial review by the relevant firstinstance court. An appeal lies against the court's decision to the higher court, whose decision is final (Article 243 §§ 37 of that Code).
NON_VIOLATED_ARTICLES: 13
2


ITEMID: 001-90960
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FENSKE v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Heinrich Fenske, is a German national who was born in 1929 and lives in Langwedel. He is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5.
In January 1945 the applicant and his family left their then place of residence, at present Dominikowo in Poland, to escape the advancing Red Army. They succeeded in reaching the British occupation zone in Germany. The region in which they lived before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3).
They applicant submits that he and his family have still not been allowed to return to their home and have been refused restitution of their property
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).