ITEMID: 001-114965
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PESUKIC v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6+6-3-d - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Mark Villiger;Paul Lemmens
TEXT: 6. The applicant was born in 1974. He is currently detained in a cantonal prison in Regensdorf in Switzerland.
7. On 15 October 2001, shortly after midnight, N.B. was killed by a gunshot in the back of his neck in front of the post-office in ZurichSchwamendingen. The applicant was suspected of having carried out the shooting.
8. On 8 July and 21 August 2002, the prosecution authority of the canton of Zurich interrogated X as a witness. X declared that he had been at the crime scene and that he had been able to see, from a distance of twenty metres, that the applicant had shot the victim in the back of his neck. During the interrogations, the witness, the investigating judge, a police officer and a translator were sitting in a separate room, while the applicant, the former coaccused Z. L., their respective defence counsel and two police guards were sitting in another room. The interrogation was transmitted via a sound link, and the witness’ voice was distorted in order to protect the witness’ anonymity. Following the interrogation, the defence counsel were given the opportunity to put additional questions via the sound link.
9. At the beginning of each interrogation the applicant’s counsel declared that the modalities of the witness interrogations did not allow for an adequate exercise of the rights of the defence.
10. On 29 January 2004, X was interrogated before the Jury Court of the canton of Zurich (Geschworenengericht). While the judges, the jury and an interpreter were sitting directly together with the witness in the hearing room, the applicant, his counsel, the interpreter, the civil parties, the public prosecutor and the journalists were placed in one of the court’s deliberation rooms. The interrogation was transmitted via a sound link and the witness’ voice was distorted in order to prevent his being identified.
11. The applicant and his counsel were allowed to put additional questions to X. The latter, however, refused to answer a number of questions which the defence counsel considered to be important, notably the following:
“Why had X arranged a meeting with N.B.? How did X react after the crime? Did X approach the body? Did he wait for the police? Did he consume drugs? Was he afraid of someone close to the applicant? Had he been concretely threatened by someone? Did X have an argument with the applicant or with Z.L.? Where did X go after the crime? Was he on foot or did he have a vehicle? Did he have a criminal record? Was he residing legally in Switzerland? Did he wear spectacles?”
12. On 6 February 2004, the jury court convicted the applicant of manslaughter (vorsätzliche Tötung) and of several counts of drug-trafficking and sentenced him to fourteen years and nine months’ detention. The court considered that the testimony given by X was credible and pertinent. It further considered that the conditions to allow the witness’ anonymity were met. It noted that X had submitted in a credible and convincing way that his life was in danger in case he testified, as persons close to the applicant and to Z. L. were ready to take revenge and did not even hesitate to kill somebody. According to X’s submissions, he was the only person who had observed the crime and who dared to testify. It thus appeared comprehensible that X feared reprisals. It was further obvious that the applicant had a motive to take revenge on the witness who had contributed to his conviction and to prevent him from making further testimonies.
13. The fears expressed by X were in line with the overall picture conveyed by the other witnesses, who showed fear which was sometimes even bordering to panic when it came to making any concrete incriminating statements. The court considered that there were concrete indications that the applicant lived in an extremely violent environment in which recourse to violence and even to arms was frequent even for seemingly minor reasons. Moreover, there were specific indications that persons who had been ready to testify before the jury court had been exposed to death threats.
14. The court further considered that the measures taken were both necessary and sufficient to prevent identification of the witness X. The court had taken a number of measures to compensate the restrictions imposed on the rights of the defence. Firstly, the witness had not been examined by the regional prosecutor (Bezirksanwalt), but by the president of the court. Secondly, the identity of X had been confirmed by the police-officer in charge of the investigation and had been known to the regional prosecutor and to the president of the court.
15. Thirdly, the police officer and the regional prosecutor gave testimony about X’s reputation and credibility. It had thus been known that X had no criminal record and that there was no indication that he had any contact with the drug trafficking scene. There was further no indication that X had been in any way involved in the crime. It was further known that X spoke the Serbo-Croatian language. Conversely, the regional prosecutor refused to divulge any detailed information on X’s private and professional background, his education, his family situation and his residence status. The jury court considered, however, that this information was of minor importance for the assessment of credibility and that the information available gave the court a sound basis for assessing the general credibility of the witness.
16. The court further noted that X had been interrogated in front of the complete court and that all persons participating in the decision-making process could gain a personal impression of the witness and of his reaction to the questions put to him. Furthermore, the court had taken into account that, under the case-law of the European Court of Human Rights, a conviction could not be exclusively based on testimony given by an anonymous witness. The principle of a public hearing had been safeguarded by allowing the press directly to follow the interrogation from the separate room in which the defence was seated. The court considered that the core rights of the defence had been safeguarded and that the measures taken had been proportionate.
17. Referring to the Court’s case-law, the jury court considered that a criminal conviction must not be exclusively based on testimony given by an anonymous witness. Accordingly, the court considered that it could not rely on the anonymous witness’ testimony insofar as this constituted the only evidence available. The jury court resumed its examination by laying out general principles for the assessment of the credibility of evidence by witnesses. It considered that the applicant’s own submissions, according to which he could not have been present at the crime scene as he first entered Swiss territory in January 2002 – and thus after the victim had been killed – were contradictory and thus lacked credibility. Conversely, the court considered the testimony given by the anonymous witness, who submitted that he had seen the applicant shooting the victim, to be credible.
18. The jury court further considered that there had been other evidence linking the applicant to the crime. There was, in particular, witness and circumstantial evidence allowing the conclusion that the applicant had been residing in the Zurich region since August 2001, that he had known the victim and that he had engaged in drug trafficking with him. As regarded the shooting of the victim, the court considered that the statements made by the witness Z. L., who had declared in a credible and convincing way to the police that the applicant had explained to him some days after the incident that he had killed N.B. before the latter could kill him, weighed heavily against the applicant, notwithstanding the fact that Z. L. did not repeat these allegations during the court proceedings, but stated that he could not remember what had happened. The testimony given by Z. L. during the police investigation was supported by the convincing submissions made by the anonymous witness, and by testimony given by a witness who had presumably met the applicant immediately after the crime. Relying on all available evidence, the jury court concluded that there was no doubt that N. B. had been shot by the applicant. With regard to the concrete factual circumstances, the jury court considered that the prosecution based its submissions mainly on testimony given by the anonymous witness. It followed that, for formal reasons, these circumstances could not be taken into account and that it had to be assumed in the applicant’s favour that the concrete circumstances had not been proven. It followed that there was no sufficient factual basis which would allow the conclusion that the applicant acted with a particular degree of scrupulousness (besonders skrupellos) which would lead to the crime being characterised as murder.
19. The applicant lodged a nullity appeal (Nichtigkeitsbeschwerde) with the Court of Cassation (Kassationsgericht) of the canton of Zurich.
20. By decision of 19 December 2005 the Court of Cassation quashed the judgment and remitted the case to the lower court. That court noted that the anonymous witness had been heard in camera and that the applicant’s counsel did not have the possibility directly to question the witness. Neither the applicant nor his counsel had ever seen the witness, whose personal details remained secret. The court further noted that the witness refused to answer a number of questions which the defence considered important (see paragraph 11, above). The court did not call into question that the legal conditions for granting anonymity were fulfilled in the instant case and confirmed the first instance court’s finding that it had been necessary to protect X against possible reprisals.
21. With regard to the applicant’s rights under Article 6 of the Convention, the court considered that the maintenance of the anonymity of the witness X and the fact that X had been shielded from sight and that his voice had been distorted seriously interfered with the defence’s right to confront the witness. The fact that the prosecution and the presiding judge were aware of the witness’ identity could not be regarded as a counterbalancing factor as such. Given the fact that all judges were accountable for the judgment, and that it was the role of the defence to examine the findings of the prosecution from the defendant’s point of view, it appeared problematic that the presiding judge had knowledge that was superior to that of the other members of the court, including the jury, and that the latter had more knowledge than the defence. Adequate compensation could only be conceivable if at least the defence had the right directly to take part in the interrogation of the witness and was given the opportunity to assess the witness’ credibility; however, this possibility was not granted in the instant case.
22. Relying on the Court’s case-law (the court referred to the cases of Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996II and Van Mechelen and Others v. the Netherlands, 23 April 1997, Reports of Judgments and Decisions 1997III), the court considered that the criminal court could not rely on the testimony given by the anonymous witness for two separate reasons: Firstly, according to the case-law of the Court, it was decisive whether the applicant’s defence counsel had been present during the interrogation of the anonymous witness or had at least been in a position to follow the interrogation via an audiovisual link and to put questions. As this had not been the case, the modalities of the witness’ interrogation did not comply with the standards set up by the Court and were thus contrary to Article 6 § 3 (d) of the Convention.
23. Secondly, the court examined whether the testimony given by the anonymous witness had to be regarded as being “decisive” for the applicant’s conviction within the meaning of the “sole or decisive” rule developed by the Court. It noted that the anonymous witness was the only direct witness of the crime at issue, as the remaining witnesses only gave evidence by hearsay. It was thus obvious that the anonymous witness’ testimony had more than only minor relevance for the assessment of the evidence. Even though the evidence given by other – indirect – witnesses carried a certain weight, the anonymous witness had to be regarded as the decisive evidence (“massgebliches Beweismittel”), and was decisive to an extent which, under the Court’s case-law, excluded the possibility of having recourse to this evidence in order to establish the applicant’s guilt.
24. On 3 February 2006 the senior public prosecutor (Oberstaatsanwalt) of the canton of Zurich lodged a nullity appeal against the decision of the Court of Cassation.
25. By judgment of 2 November 2006 the Federal Tribunal (Kassationshof) quashed the decision of 19 December 2005 and remitted the case to the Court of Cassation. That court considered that the lower court’s judgment did not comply with the principle of free appreciation of the evidence under Article 249 of the Federal Law on Criminal Procedure (Grundsatz der freien Beweiswürdigung, see relevant domestic law, below).
26. The Federal Tribunal confirmed that it had been necessary to protect the witness by shielding his appearance both from the applicant and from the applicant’s counsel. It considered that the counsel was not under any legal obligation to transmit information on the witness’ identity to the applicant. Even if such a duty existed, the risk that the defence counsel did not respect this obligation or inadvertently divulged information to his client was unacceptably high. The tribunal further considered that it was compatible with Article 6 of the Convention to consider the testimony given by an anonymous witness insofar as it could complete – like a mosaic stone – the picture gained through other evidence, which was in itself not sufficient to support an establishment of guilt, but established a strong suspicion, and thus contributed to a full establishment of guilt.
27. The tribunal further reviewed the other evidence examined by the jury court and concluded that this evidence, taken separately, would have been sufficient “to establish a strong suspicion of a criminal offence, or even to establish his guilt”. The tribunal reiterated that the jury court had considered that the testimony given by the witness X had been credible and that it was, furthermore, in line with the scientific conclusion that the victim had been killed by gunshot in the back of his neck on 15 October 2001.
28. The tribunal concluded that the anonymous testimony only served as one piece of a mosaic which enforced the conclusion drawn from the remaining evidence. It followed that the criminal courts were not prevented from taking this evidence into account.
29. On 12 February 2007 the Court of Cassation rejected the applicant’s nullity appeal. On 19 April 2007 the Federal Tribunal rejected the applicant’s appeal.
30. Article 249 of the Federal Law on Criminal Procedure as in force at the relevant time reads as follows:
“The court shall be free to interpret the evidence. It is not bound to any rules on admissible evidence”.
31. Article 131 a of the Code of Criminal Procedure of the Canton of Zurich as in force at the relevant time provided:
“(1) In case of considerable or serious danger, appropriate specific measures can be taken for the protection of witnesses or third persons. It is, in particular, possible
1. to exclude the public,
2. to keep personal data confidential,
3. to exclude direct confrontation between the witness and the defendant or third persons and
4. to dissimulate the witness’ appearance and voice by technical means.
(2) These measures have to be proportionate and are permissible only if it is impossible to avert the impending danger by other means.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-101264
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: FAZEKAS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Tibor Fazekas, is a Hungarian national who was born in 1972 and lives in Hosszúpályi. He was represented before the Court by Mr I. Barcsi, a lawyer practising in Debrecen. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 August 2005 criminal proceedings were initiated against the applicant and six co-accused on account of various offences which they had allegedly committed in their capacity as police officers. The applicant and another suspect retained Mr Barcsi as defence counsel. On 23 August 2005 the Győr District Court excluded Mr Barcsi from the proceedings. It held that because his two clients' interests conflicted, he was not eligible. This decision was later quashed by the Győr-Moson-Sopron County Regional Court. Subsequently, the other suspect retained another lawyer.
On 9 May 2006 a bill of indictment was preferred in the case.
On 17 January 2008 the District Court again excluded Mr Barcsi from the applicant's defence. On 3 March 2008 the Regional Court dismissed an appeal lodged by the applicant and Mr Barcsi. The courts observed that during the preliminary investigation Mr Barcsi had been retained by two defendants; however, since their testimonies had been contradictory, the double retainer had amounted to conduct against those defendants' interest. The court held that the conflict of interest between these defendants had a significant bearing on the outcome of the case, in that the defence of one might be to the detriment of the other. They applied section 45(1c) of the Code of Criminal Procedure, according to which a person acting against the interests of a defendant cannot act as defence counsel. Mr Barcsi's complaint to the Attorney General was to no avail.
Subsequently, a legal-aid lawyer was appointed for the applicant. On 21 March 2008 he complained to the District Court that, in his view, the legal-aid lawyer had not prepared his case adequately.
Hearings were held on 1 April, 8 May, 6 June and 18 September 2008. Closing statements were heard on 22 September 2008.
The District Court delivered a judgment on 6 October 2008. The applicant was found guilty of various charges and sentenced to three years and six months' imprisonment, to five years' prohibition from public affairs and to a fine of 500,000 Hungarian forints. The lapse of time since the commission of the offences was taken into account as a mitigating factor.
On appeal, the Regional Court scheduled a hearing for 1 March 2010. According to the information available in the case file, the case is still pending before the appellate court.
Act No. XIX of 1998 on the Code of Criminal Procedure provides as follows:
“(1) The defendant, the defence counsel ... are entitled to file a written complaint with the trial court complaining about an omission ... allegedly committed by that court, requesting that the omitting court be instructed to perform the omitted procedural act or adopt a decision or ... take an appropriate action in the case within a reasonable time limit.
(2) Such a complaint may be filed if:
a) the law prescribes a time-limit for a court within which to perform a procedural act or to pass a decision and the time-limit has elapsed without any result,
b) a court has set a time-limit for [a participant of the procedure] within which to perform a procedural act, the time-limit has elapsed without any result, and the court has failed to impose on the one responsible the measures allowed by the law...
(1) Except for the case specified under subsection (2), the trial court shall, within eight days, directly forward the files to the court competent to decide on the complaint. In an enclosed document, it shall set out the reasons which – according to its assessment – made impossible the performance of the procedural act or the passing of a decision.
(2) If the trial court itself finds the complaint well-founded, it shall, within thirty days counted from the receipt of the complaint, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of the manner in which the complaint has been settled...
(4) If the [superior] court determining the complaint admits the complaint, it shall, by setting a time-limit, instruct the [trial] court to take ... the action required for the proper progress of the case .... If it finds the complaint ill-founded, it shall dismiss it in a reasoned decision. No further appeal shall lie against this decision...”


ITEMID: 001-118045
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF JULIUS KLOIBER SCHLACHTHOF GMBH AND OTHERS v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Criminal charge;Impartial tribunal;Independent tribunal;Tribunal established by law);Pecuniary damage - claim dismissed
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant companies carry out the slaughter of cattle and pigs, which makes them liable under the Agricultural Market Act (Agrarmarktgesetz) to pay agricultural marketing charges, calculated on the basis of the number of animals slaughtered, to Agrarmarkt Austria (“AMA”), the national agricultural marketing board.
6. In 2006 AMA issued payment orders against the applicant companies. On 5 July 2006 it ordered the first applicant company to pay outstanding contributions for the years 2003 and 2004 in the amount of 56,573.62 euros (EUR) and, in addition, imposed a surcharge for failure to pay, amounting to 10% of the unpaid contributions. On 30 May 2006 it ordered the second applicant company to pay outstanding contributions for the years 2004 and 2005 in the amount of EUR 12,556.43 and imposed a surcharge of 10%. On the same date it ordered the third applicant company to pay outstanding contributions for the years 2005 and 2006 in the amount of EUR 5,936.01, imposing a surcharge of 10%, and ordered the fourth applicant company to pay outstanding contributions for the years 2005 and 2006 in the amount of EUR 96,050.48, imposing a surcharge of 60%.
7. The applicant companies appealed against these orders. They argued that the above system was contrary to European Union rules on state aid. They also asked for oral hearings to be held in their appeals.
8. The Federal Minister of Agriculture, Forestry, the Environment and Water (Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft), acting as the appeal authority, dismissed the applicant companies’ appeals on 17 July 2006 without holding a hearing.
9. The applicant companies argued that AMA contributions were levied for financing activities, such as AMA’s quality programme, which were not in compliance with EU law. However, the Federal Minister found that, after a decision of the European Commission of 30 June 2004 (C(2004)2037), the applicant companies had been in a position to know precisely which charges they had to pay. In that decision, the European Commission had stated that it had no objection to AMA’s quality assurance scheme and quality mark, registered as state aid under notification number NN 34A/2000 (“Qualitätsprogramme und das AMA-Biozeichen und das AMA-Gütesiegel”), because that state aid was in accordance with the Common Market provided for in the Treaty establishing the European Community (“the EC Treaty”). The Federal Minister referred further to the Administrative Court’s decision no. 2005/17/230 of 20 March 2006, in which the court had also found that the levying of AMA contributions was in compliance with the relevant provisions of EU law. The Federal Minister further held that it had not been necessary to hold a hearing, because a hearing was only held if a decision had been taken by a panel on an appeal against the decision of a tax office or a regional directorate of finance, which was not the case here.
10. Thereupon, the applicant companies lodged complaints with the Constitutional Court and the Administrative Court against the Federal Minister’s decision. Before the Constitutional Court they complained that the surcharges imposed had violated their constitutional right to property. Before the Administrative Court, they complained that the appeal authority had not been a court within the meaning of the case-law of the European Court of Justice, with the result that they had been prevented from having the lawfulness of the European Commission’s decision of 30 June 2004 reviewed by the European Court of Justice in proceedings under Article 234 of the EC Treaty. As regards the imposition of the surcharges, the applicant companies complained that the findings of fact made by the authorities in imposing those surcharges had been insufficient. In particular the authorities had failed to establish whether the objective and subjective elements of the offence (objektiven und subjektiven Tatbildvoraussetzungen) had been met. Relying on Article 6 of the Convention, they further complained that there had not been a public hearing and that the criminal charges against them had not been decided by an impartial tribunal established by law (“es ist kein unparteiisches, auf Gesetz beruhendes Gericht über den erhobenen strafrechtlichen Vorwurf eingeschritten”). As the authorities imposing the surcharges had failed to hold an oral hearing, the applicant companies asked the Administrative Court for a public hearing.
11. On 25 September 2006 the Constitutional Court declined to deal with the applicant companies’ complaints under Article 144 of the Federal Constitution for lack of prospects of success.
12. The Administrative Court dismissed the applicant companies’ complaints on 30 January 2007 in separate decisions and held as follows:
“The present case does not differ in [substance] to the [case] decided by the Administrative Court on 20 March 2006, no. 2005/17/230. Pursuant to Section 43(2) of the Administrative Court Act reference is made to it.
For the reasons set out in that decision, the breach of law complained of by the applicant company also does not exist in the present case, for which reason it can be dismissed without further proceedings in camera.
For the reasons set out in the decision referred to, Article 6 of the Convention is also of no relevance here.”
13. The relevant provisions of the Federal Act Establishing the Market Regulation Institution “Agrarmarkt Austria”, Federal Law Gazette 376/1992 (Bundesgesetz über die Errichtung der Marktordnungsstelle “Agrarmarkt Austria”, BGBl 276/1992 – “the AMA Act”), the Administrative Court Act (Verwaltungsgerichtshofgesetz), a summary of the Administrative Court’s decision no. 2005/17/230 of 20 March 2006, to which reference is made in the present judgment, and an abstract of the Constitutional Court’s judgment G 181/86 of 14 October 1987 are reproduced in the Court’s judgment in the case of Steininger v. Austria, no. 21539/07, §§ 13-28, 17 April 2012.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76779
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TANRIGUNVERDI AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants, Mr Mustafa Tanrıgünverdi, Mr Mehmet Tanrıgünverdi, Ms Gülden Acır, Ms Nejla Elmasiğne, Ms Zeynep Özışık, Mr Yücel Tanrıgünverdi, Mr Veli Tanrıgünverdi, Ms Yüksel Doğrugider, Ms Anıl Acır and Mr Yunus Enver Tanrıgünverdi, are Turkish nationals who were born in 1922 (1341 according to the former Muslim calendar, as submitted by the applicant), 1932, 1938, 1945, 1948, 1947, 1964, 1968, 1973 and 1978 respectively, and live in Tarsus.
They are represented before the Court by Mr A. Akıllıoğlu, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 March 1996 the Tarsus Municipality issued an order to expropriate a plot of land belonging to the applicants. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicants on 11 December 1997.
Following the applicants’ request for additional compensation, the Tarsus Civil Court of first instance ordered an expert opinion to be prepared to assess the value of the plot. As the parties mutually objected to the opinion, the court ordered a second opinion to be drawn up by a separate committee of experts.
On 13 October 1998, seeing that the two assessments were parallel, the court awarded the applicants a corresponding amount of additional compensation plus interest at the statutory rate.
However, on 25 October 1999 the Court of Cassation quashed the judgment and remitted the case back to the first-instance court for further examination.
Having obtained a revised expert opinion, the Tarsus Civil Court issued a new judgment on 9 May 2000. It awarded the applicants an additional compensation of 896,224,000 Turkish liras (TRL) plus interest at the statutory rate.
On 30 October 2000 the Court of Cassation upheld this subsequent judgment. On 9 April 2001 the Court of Cassation rejected a request for rectification and thereby concluded the court proceedings.
On 18 April 2001 the Tarsus Municipality paid the applicants the sum of TRL 2,627,945,310, interest included.


ITEMID: 001-73081
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MALISIEWICZ-GĄSIOR v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in born in 1950. She is a choreographer and lives in Łódź, Poland.
8. On 10 June 1992 at 11 p.m. Mr Andrzej Kern, at that time the Deputy Speaker of the Sejm, made a formal notification of the commission of an offence (zawiadomienie o popełnieniu przestępstwa) to the Łódź Regional Prosecutor, E.S., alleging that the applicant and her husband had kidnapped his 17-year-old daughter, M.K. The applicant submitted that the allegation was false as M.K. had in fact run away from home and had only been accompanied by the applicant’s son who had been her boyfriend for a long time. M.K. had previously run away from home on several occasions because of conflicts with her parents. Prosecutor E.S., who – according to the applicant – was a friend of Mr Kern, immediately instructed the Łódź Deputy Regional Prosecutor E.C. to take charge of the case.
9. On the same day, i.e. 10 June 1992, the prosecutor E.C. signed a warrant authorising the search of the applicant’s flat. The warrant was intended to search the flat for M.K. and for drugs. On 11 June 1992 prosecutor E.C. signed an order allowing the tapping of the applicant’s telephone.
10. On 11 June 1992 at 1 a.m. the applicant’s husband went to his cottage situated in the suburbs of Łódź. He was arrested by police officers who then searched the cottage. Prosecutor E.S. and Mr Kern were present at the scene. Subsequently, the applicant’s husband was taken to the Łódź Regional Police Station, where he was detained overnight.
11. On 11 June 1992 at 4 a.m. police officers searched the applicant’s flat in her presence. However, they did not find either M.K. or drugs. The police officers advised the applicant that her husband had been detained and served her with a summons to report on the same day at 12 noon to the Regional Police Station for questioning.
12. In the morning of 11 June 1992 the applicant’s husband was taken handcuffed to the premises of the regional prosecution service. He was questioned by prosecutors E.S. and E.C.. Mr Kern was present during the questioning. The applicant’s husband was released after the questioning.
13. The applicant failed to report for questioning on 11 June 1992. She submitted to the police a letter explaining that she had to care for her daughter who was ill. Subsequently, the applicant failed to report for questioning on 15 and 17 June 1992. On 23 and 24 June 1992 police officers tried to serve a summons on the applicant, but could not find her at her place of residence.
14. On 25 June 1992 prosecutor E.C. charged the applicant with kidnapping and signed an arrest warrant for her. Prosecutor E.C. also charged the applicant’s son with kidnapping.
15. On 29 June 1992 the applicant was taken into custody. She was detained in the Łódź prison hospital, apparently in the psychiatric ward.
16. On 1 and 2 July 1992 the applicant was questioned by prosecutor E.C. She was also confronted with Mr Kern.
17. In the afternoon of 2 July 1992 the applicant was released from detention.
18. On 30 June 1992 the applicant applied for a transfer of her case to a prosecutor who worked outside the Łódź region. On 4 August 1992 the Ministry of Justice advised her that the application had been allowed and that her case had been taken over by the Poznań Regional Prosecutor R.G.
19. On 16 September 1992 prosecutor R.G. decided to discontinue the criminal proceedings against the applicant and her son. He considered that they had not kidnapped M.K. The prosecutor referred to the statement taken from M.K. who testified that it had been her decision to run away from home and that she had asked the applicant’s son to accompany her.
20. Mr Kern and his wife lodged appeals against the decision to discontinue the criminal proceedings against the applicant and her son, but on 15 February 1993 prosecutor B.M. of the Ministry of Justice dismissed them. The prosecutor considered that the allegations of kidnapping were groundless.
21. The case concerning the alleged kidnapping of M.K. received wide coverage in the media.
22. In 1993 the applicant stood as an independent candidate in the parliamentary elections.
23. On 22 August 1993 she published an article in the weekly newspaper “Angora”. The first half of the article, which was published in a section entitled “Preelection Pranks”, read as follows:
“WHY?
I am an independent candidate for the Senate, not connected to any ‘networks’, relations or obligations. The fact that I am described in the press and television as ‘a mother-in-law of M. K.’ probably shows that the authors cannot mention names since they use such a euphemism. It is not my achievement and it was not a result of my efforts that we have become a family with Mr Kern. It can be explained by my son and his wife, if it is important ...
In order to explain the origin of the idea of standing in the elections to the Senate I have to go back to the events which took place a year ago. At that time, I learned at my cost what the abuse of power meant! The Deputy Speaker of the Sejm at that time, directed by emotions and personal animosities, made the persons responsible for respecting the law – the Regional Prosecutor and his Deputy, and even the Minister of Justice – breach the law because of ‘the solidarity of colleagues’. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for ‘drugs’, my telephone calls were tapped, a car damaged. After such compromising events, a politician of such a calibre in the West would have had to leave. But here he still felt good – and the Sejm decided not to dismiss him! I can imagine what sort of arrangements must have existed in the Sejm to make such a decision! I was so shocked by this that I was ready to go abroad as nothing could be changed. A turning point came when the President dissolved the Parliament. People started to telephone and write letters asking me to stand in the elections. They were saying that the events which had taken place a year ago showed that I could fight. I am convinced that I am not the only one touched by the breaches of the law committed by the representatives of ‘the new democracy’. However, the law is the same for everybody, regardless of whether somebody is in power or is ‘an ordinary man’. This fundamental rule of democracy must be respected!”
24. The second half of the article described the applicant’s ideas about working in the Senate.
25. On 5 September 1993 the applicant published in the same weekly the following article:
“ABOUT ME
The first years of my professional life were dedicated to art. As a dancer and a choreographer I worked with numerous theatres and cultural centres – both in Poland (among others the Łódź Grand Theatre), and abroad. I also worked as a pedagogue with children and young people. In 1981 I started to run a private business and presently I am a co-owner of a company ‘AVATAR’. I have two children: a 22year old son ... and a 6-year old daughter ..., my husband – Jan – is an actor. I did not belong to any political party. I did not participate actively in politics ...
In the summer of 1992 events took place which changed my attitude to the world. The abuse of authority, which I experienced, has made it impossible for me to stand idly on the sideline and watch people who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. After all, precisely that was done to me by the former Deputy Speaker of the Sejm, the former Minister of Justice, the former Regional Prosecutor and his former deputy.
It is not by chance that today for some malicious people it is not important that I am an independent candidate for the Senate but only that I can be called the mother-in-law of M. K. [in bold in original]. They are not interested in the fact that a year ago I was arrested groundlessly and imprisoned – purposely! – in a psychiatric cell, that my home was searched on the pretext of ‘looking for drugs’, that after my release I was followed, my telephone calls were tapped and my car damaged, causing me constant mental pressure! All this happened in a country in which a westernstyle democracy had just set in!
Today the Vice Minister of Justice sees ‘clear pressure brought by the Deputy Speaker Kern on the Łódź prosecution service’, and there are criminal proceedings pending against its former employees.
I am a strong person. I have endured... However, I do not want any other innocent person to suffer similar harassment. There must be justice and equality before the law – regardless of whether somebody is ‘the man in the street’ or the Deputy Speaker of the Sejm! I know that I can fight and win! I have remained independent! That is why I have decided to enter the political arena! [in bold in original].”
26. In election broadcasts on the Łódź local radio station on 6, 9 and 15 September 1993 the applicant made the following statement:
“A turning-point came last year. You remember that story, it was well-known in the whole of Poland, although I did not cause it. At that time, I realised to my cost what the abuse of power meant. The Deputy Speaker of the Sejm at that time, directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues. I was arrested, detained in a psychiatric cell, my flat was provocatively searched for drugs, my telephone calls were tapped, a car damaged. All this because the daughter of Mister Deputy Speaker decided to spend holidays with my son without her daddy’s permission. Until then I had thought that such behaviour had been possible only in the Stalinist era.”
27. In election broadcasts on the Łódź local television station on 13 and 16 September 1993 the applicant made the following statement:
“The abuse of authority, which I experienced, has made it impossible for me to stand on the sideline and idly watch people, who should be the guardians of the law, breaking it ruthlessly for the sake of their private interests. Precisely that was done to me by the former Deputy Speaker of the Sejm, the former Regional Prosecutor and his deputy. Today, there are criminal proceedings pending against them. I am a strong, enduring person, however I do not want any other innocent person to suffer similar harassment.”
28. On 27 September 1993 Mr Kern lodged with the Łódź District Court a private bill of indictment. He charged the applicant with seven counts of defamation (zniesławienie) under Article 178 § 2 of the Criminal Code. In particular, Mr Kern alleged that the applicant had published the above articles and had broadcast the above election statements “in order to debase in the public opinion the Deputy Speaker Andrzej Kern and to expose him to loss of the trust necessary to perform his public and political functions.”
29. The applicant was tried by the Skierniewice District Court between 22 May 1995 and 18 March 1996. On 19 March 1996 she was convicted for having made on television, radio and in the press, between 22 August and 16 September 1993, statements that “Mr Kern directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues” and that “today there are criminal proceedings pending against him”. The trial court considered that her publications and statements constituted a single continuous offence of defamation. By making the above statements, the applicant “defamed Andrzej Kern and made untrue allegations which could have debased the victim in the public opinion and exposed him to loss of the trust necessary to perform the functions of Deputy Speaker of the Sejm of the Republic of Poland and other public functions as well as to work as a lawyeradvocate”.
30. As regards the first statement that “Mr Kern directed by emotions, made the Regional Prosecutor, his Deputy, and even the Minister of Justice breach the law because of the solidarity of colleagues” the trial court considered that even though Mr Kern personally made a formal notification of the commission of an offence to the prosecutor E.C., nevertheless, the prosecutors E.S. and E.C. acted independently when they made their decisions concerning the applicant’s case. The court noted that it was the right of every citizen to lodge a request to prosecute somebody and, therefore, the applicant’s statement that it constituted “a breach of law for the private interest” had been untrue.
The court then examined the merits of the applicant’s allegations that she had been “arrested, detained in a psychiatric cell, [her] flat was provocatively searched for drugs, telephone calls were tapped, a car damaged.” The District Court established that warrants given by the prosecutor to arrest her, search her flat and tap her telephone calls were given in accordance with the law, however, it acknowledged that the prosecutor should have considered other preventive measures then arrest in order to interrogate the applicant. In sum, the court found as unsubstantiated the allegation that Mr Kern suggested, ordered, or in other manner “made the prosecutor to give decision to detain the applicant on remand”.
31. With respect to the statement broadcast on 13 and 16 September 1993 the court observed that: “between 22 August and 16 September 1993 there were no criminal proceedings pending against Andrzej Kern. In fact, the criminal proceedings against him were initiated only on 22 December 1993. On that date he was charged with having committed against M. K. a crime described in Article 168 of the Criminal Code. The victim filed written information about that crime on 11 October 1993 ...”
32. The trial court concluded that there was no evidence that while the applicant made the statements in question she “had a belief based on a wellfounded basis that the allegations were true and that she was defending a socially justified interest”.
34. The applicant appealed to the Skierniewice Regional Court against her conviction. On 18 November 1997 the court gave a judgment in which it upheld her conviction but changed the sentence. The applicant’s prison term was lowered to one year suspended for three years. She was ordered to pay for the publication of the judgment in one national daily and the announcement containing her apologies in the weekly “Angora”. Moreover, the applicant was ordered to reimburse the private prosecutor PLN 480 for the costs of the appellate proceedings and to pay a PLN 90 fee to the State Treasury.
35. The appellate court considered that the trial court’s assessment of facts and legal reasoning were correct. The court stressed that in order to find that there was no office of defamation, all three conditions set out in Article 179 § 2 must be fulfilled jointly. It further stated:
“...Turning to the instant case, it should be considered that even if [the applicant] proved that her statements directed against Mr Kern were true or that she had a belief based on a well-founded basis that the allegations were true, that in any event, would not justify the trial court to apply Article 179 § 2. The firstinstance court rightly found that the action of I. Malisiewicz-Gąsior directed against A. Kern was an element of her election campaign, aiming at ‘promoting’ ... her own person, in order to obtain a positive election result...Therefore, [the applicant] could not be said to have been defending a socially justified interest, as she had been trying to achieve her private objective...”
36. Nevertheless, the Regional Court found that the sentence imposed on the applicant by the trial court was too harsh. In this connection the court established as follows:
“...The appellate court considers that, in deciding the severity of the criminal measures against the applicant, her particular psychological situation - since the beginning of all criminal proceedings against her - should have been taken into consideration. It is beyond doubt that she could have subjectively felt that the [prosecuting] authorities had been overactive, which was not without influence on her being able to control her emotions and on her motivations.”
37. The applicant could not afford to hire a lawyer to lodge a cassation appeal and therefore she applied to the Minister of Justice and the Ombudsman to lodge a cassation appeal against her conviction. On 15 December 1998 the Ombudsman allowed her application and filed with the Supreme Court a cassation appeal against the judgment of the Skierniewice Regional Court.
38. The Ombudsman submitted that the courts had failed to take into account evidence pointing to the fact that “the inadequacy of the actions of the police and the prosecution service in respect of herself and her family in the case concerning the kidnapping of M. K. could have led [the applicant] to the justified belief that her allegations concerning Mr Kern had been true and that she had been ‘defending a socially justified interest’”. In this connection, the Ombudsman stated in his appeal that:
“Furthermore, the courts’ view that the defendant was not defending a socially justified interest because she was participating in her own election campaign and aiming in the first place to achieve her own private objective is not supported by the evidence which was collected and disclosed at the hearing.
The participation in one’s own election campaign cannot be an obstacle to speaking on the subject of ensuring respect for the law by institutions and public personalities. What is more – an election campaign invariably constitutes a period of public statements on important social issues, which certainly include the respect for the law, especially by institutions and persons especially obliged to do so.
It is therefore difficult to consider that it was the defendant’s intention to promote herself and not – by using the opportunity to speak publicly – pointing, on the basis of her own experience, to the danger of breaking the law by a public institution as a result of yielding to the pressure of public personalities.”
39. The Ombudsman further submitted that prosecutors E.S. and E.C. had broken the law. He relied on the files on the disciplinary proceedings taken against both prosecutors.
40. Finally, the Ombudsman challenged the courts’ assessment of part of the evidence.
41. On 1 December 2000 the Criminal Section of the Supreme Court dismissed the cassation appeal. Its reasoning ended with the following conclusion:
“The irresistible conclusion is that the submissions made in the cassation appeal, formally of a procedural nature, concern in fact the allegation of an error in the assessment of facts taken as the basis for the decision and the assessment of evidence, which is not allowed in cassation proceedings.
Cassation proceedings cannot be transformed into third-instance proceedings dedicated to further consideration of all aspects of the submissions made in the appeal, which have already been analysed by the appellate court. (...)”
42. In the meantime, on 24 August and 28 September 2000 the Skierniewice District Court held hearings on the enforcement of the applicant’s prison sentence as she had failed to apologise to Mr Kern. The applicant did not attend the hearings.
43. On 23 October 2000 the Skierniewice District Court decided not to enforce the suspended prison sentence imposed on the applicant.
44. Article 178 of the Criminal Code 1969 read as follows:
“§ 1. Anyone who imputes to another person, a group of persons or an institution such behaviour or characteristics, which may debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 2 years, a restriction of liberty or a fine.
§ 2. Anyone who raises or makes public untrue allegation about behaviour or characteristics of another person, a group of persons or institutions in order to debase them in the public opinion or expose to loss of the trust necessary for a certain position, occupation or a type of activity, shall be liable to imprisonment not exceeding 3 years.
(...)
§ 4. The prosecution takes place under a private bill of indictment.”
Pursuant to Article 179:
“§ 2. There is no offence described in Article 178 § 1 if:
1) an allegation made publicly is true and the offender acts in the defence of a socially justified interest or has a belief based on a well-founded basis that he is defending such an interest, or
2) the offender makes an allegation publicly and has a belief based on a wellfounded basis that the allegation is true and that he is defending a socially justified interest.
§ 3. Non-existence of an offence resulting from the reasons described in §§ 1 and 2 does not exclude the offender’s liability for defamation because of the form in which an allegation was made or made public.”
VIOLATED_ARTICLES: 10


ITEMID: 001-100926
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KONSTANTIN MARKIN v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+8;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Respondent State to take measures of a general character
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1976 and lives in Novgorod. He is a serviceman in military unit no. 41480.
6. On 30 September 2005 his wife Ms M. gave birth to their third child. On the same day a court granted their application for divorce.
7. On 6 October 2005 the applicant and Ms M. entered into an agreement under which their three children would live with the applicant and Ms M. would pay maintenance for them. Several days later Ms M. left for St Petersburg where she has been living ever since.
8. On 11 October 2005 the applicant asked the head of his military unit for three years’ parental leave. On 12 October 2005 the head of the military unit rejected his request because three years’ parental leave could be granted only to female military personnel. The applicant was allowed to take three months’ leave. However, on 23 November 2005 he was recalled to duty.
9. On 30 November 2005 the applicant brought proceedings against his military unit claiming three years’ parental leave. He also challenged the decision of 23 November 2005.
10. On 28 February 2006 the applicant was disciplined for systematic absences from his place of work.
11. On 9 March 2006 the Military Court of the Pushkin Garrison annulled the decision of 23 November 2005 and upheld the applicant’s right to the remaining 39 working days of his three months’ leave. On 17 April 2006 the Military Court of the Leningradskiy Command quashed the judgment and rejected the applicant’s claims.
12. On 14 March 2006 the Military Court of the Pushkin Garrison dismissed his claim for three years’ parental leave as having no basis in domestic law. The court held that only female military personnel were entitled to three years’ parental leave and that the applicant was entitled to three months’ leave, of which he had made use. Moreover, the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care.
13. In his statement of appeal the applicant complained, in particular, that the refusal to grant him three years’ parental leave violated the principle of equality between men and women guaranteed by the Constitution.
14. On 27 April 2006 the Military Court of the Leningradskiy Command upheld the judgment. It endorsed the reasoning of the first-instance court and added that the applicant’s “reflections on equality between men and women ... cannot serve as a basis for quashing the first-instance judgment, which is correct in substance”.
15. On 18 July 2006 the applicant was for a second time disciplined for being absent from his place of work.
16. By order of 24 October 2006 the head of military unit no. 41480 granted parental leave to the applicant until 30 September 2008, the third birthday of his youngest son. On 25 October 2006 the applicant received financial aid in the amount of 200,000 Russian roubles (RUB), equivalent to approximately 5,900 euros (EUR). By letter of 9 November 2006 the head of military unit no. 41480 informed the applicant that the financial aid was granted to him “in view of [his] difficult family situation, the necessity of taking care of three minor children and the absence of other sources of income”.
17. On 8 December 2006 the Military Court of the Pushkin Garrison issued a decision (“частное определение”) in which it criticised the head of military unit no. 41480 for granting the applicant three years’ parental leave, and thereby disregarding the judgment of 27 April 2006 in which it had been found that the applicant was not entitled to such leave. The court drew the attention of the head of the military unit to the unlawfulness of his order.
18. On 11 August 2008 the applicant applied to the Constitutional Court, claiming that the provisions of the Military Service Act concerning the three-year parental leave were incompatible with the equality clause in the Constitution.
19. On 15 January 2009 the Constitutional Court rejected his application. It held as follows:
“2.1 ... military service is a special type of public service which ensures the defence of the country and the security of the State, it is therefore performed in the public interest. Persons engaged in military service exercise constitutionally important functions and therefore possess a special legal status which is based on the necessity for a citizen of the Russian Federation to perform his duty and obligation in order to protect the Fatherland.
When establishing a special legal status for military personnel, the federal legislature is entitled, within its discretionary powers, to set up limitations on their civil rights and freedoms and to assign special duties...
... by signing a military service contract a citizen ... voluntarily chooses a professional activity which entails, firstly, limitations on his civil rights and freedoms inherent in this type of public service, and, secondly, performance of duties to ensure the defence of the country and the security of the State. Accordingly, military personnel undertake to abide by the statutory requirements limiting their rights and freedoms and imposing on them special public obligations.
... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status. Therefore, the imposition by the federal legislature of limitations on the rights and freedoms of such citizens is not in itself incompatible with [the Constitution] and is in accordance with ILO Discrimination (Employment and Occupation) Convention no. 111 of 25 June 1958 which provides that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (Article 1 § 2).
2.2 Under section 11 § 13 of [the Military Service Act] parental leave is granted to female military personnel in accordance with the procedure specified in federal laws and regulations of the Russian Federation. A similar provision is contained in section 32 § 2 of the Regulations on military service, which also provides that during parental leave a servicewoman retains her position and military rank.
A serviceman under contract is entitled to leave of up to three months if his wife dies in delivery or if he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care). The purpose of such leave is to give the serviceman a reasonable opportunity to arrange for the care of his child and, depending on the outcome, to decide whether he wishes to continue the military service. If the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons...
The law in force does not give a serviceman the right to three years’ parental leave. Accordingly, servicemen under contract are prohibited from combining the performance of their military duties with parental leave. This prohibition is based, firstly, on the special legal status of the military, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of servicemen who are fulfilling their duty to defend the Fatherland.
Owing to the specific demands of military service, non-performance of military duties by military personnel en masse must be excluded as it might cause detriment to the public interests protected by law. Therefore, the fact that servicemen under contract are not entitled to parental leave cannot be regarded as a breach of their constitutional rights or freedoms, including their right to take care of, and bring up, children guaranteed by Article 38 § 2 of the Constitution of the Russian Federation. Moreover, this limitation is justified by the voluntary nature of the military service contract.
By granting, on an exceptional basis, the right to parental leave to servicewomen only, the legislature took into account, firstly, the limited participation of women in military service and, secondly, the special social role of women associated with motherhood. [Those considerations] are compatible with Article 38 § 1 of the Constitution of the Russian Federation. Therefore, the legislature’s decision cannot be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women, as guaranteed by Article 19 §§ 2 and 3 of the Constitution of the Russian Federation.
It follows from the above that section 11 § 13 of [the Military Service Act], granting the right to parental leave to female military personnel only, does not breach the applicant’s constitutional rights ...
2.4 As servicemen having minor children are not entitled to parental leave, they are also not entitled to receive monthly child-care allowances payable to those who take care of children under the age of a year and a half...”
The Constitutional Court concluded that the provisions challenged by the applicant were compatible with the Constitution.
20. The Russian Constitution guarantees the equality of rights and freedoms of everyone regardless of, in particular, sex, social status or employment position. Men and women shall have equal rights and freedoms and equal opportunities (Article 19 §§ 2 and 3).
21. The Constitution also guarantees protection of motherhood and the family by the State. The care and upbringing of children is an equal right and obligation of both parents (Article 38 §§ 1 and 2).
22. The Labour Code of 30 December 2001 provides that women are entitled to a so-called “pregnancy and delivery leave” (maternity leave) of 70 days before the childbirth and 70 days after it (Article 255). Further, women are entitled to a three-year “child-care leave” (parental leave). Parental leave may be also taken in full or in part by the father of the child, his/her grandmother, grandfather, a guardian or any relative who is actually taking care of the child. The person on parental leave retains his/her employment position. The period of parental leave is counted for seniority purposes (Article 256).
23. The Federal Law on Obligatory Social Insurance of Sick Leave or Maternity Leave (no. 255-FZ of 29 December 2006) provides that during maternity leave the woman receives a maternity allowance, payable by the State Social Insurance Fund, amounting to 100% of the salary (section 11). During the first year and a half of the parental leave the person who is taking care of the child receives monthly child-care allowances, payable by the State Social Insurance Fund, amounting to 40% of the salary, but no less than RUB 1,500 for the first child and RUB 3,000 for each of the subsequent children (section 11.2). During the second year and a half of the parental leave no social-insurance payments or allowances are available.
24. The Federal Law on the Status of Military Personnel (no. 76-FZ of 27 May 1998, “the Military Service Act”) provides that female military personnel are entitled to maternity leave and to parental leave in accordance with the Labour Code (section 11 § 13). There is no similar provision in respect of male personnel.
25. Under the Regulations on military service, enacted by Presidential Decree No. 1237 on 16 September 1999, a servicewoman is entitled to maternity leave, to three years’ parental leave, and to all related social benefits and allowances. A serviceman under contract is entitled to three months’ leave in one of the following cases: (a) his wife has died in childbirth, or (b) he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care) (section 32).
26. The relevant parts of the International Labour Organisation (ILO) Report “Maternity at work: A review of national legislation” (2005) read as follows:
“While maternity leave aims to protect working women during their pregnancy and recovery from childbirth, parental leave refers to a relatively long-term leave available to either parent, allowing them to take care of an infant or young child over a period of time usually following the maternity or paternity leave period.
...
The Workers with Family Responsibilities Recommendation, 1965 (No. 123) and the Maternity Protection Recommendation, 1952 (No. 95) ... only included provisions on maternity leave and only women’s need to reconcile work with family responsibilities were considered. One important change in the policy of the ILO with the adoption of the current Recommendations [and the Convention on Workers with Family Responsibilities, 1981 (No. 156)] was the recognition of fathers’ involvement in family responsibilities in general and in this case especially with regard to parental leave. This was an important step towards the creation of effective equality of opportunity and treatment for men and women workers...
Contrary to the other regions, all the countries analysed in Europe provide a period of parental leave to take care of a newborn or young child, even if the length of the leave differs from country to country...
A major difference between maternity and parental leave is the scope of the provisions. While maternity leave is available only for women, parental leave provisions normally are also available for men. In some countries, it is a shared entitlement, where either the mother or the father has the right to take parental leave [for example in Estonia]. In other countries, each parent has an individual right to parental leave, which cannot be transferred to the other parent [for example in Belgium and Iceland]. As mentioned above, according to the EU Directive on parental leave [Council Directive 96/34/EC of 3 June 1996], it should be available to both parents as an individual entitlement. To promote equal opportunities and equal treatment between men and women, parental leave should, in principle, be granted on a non-transferable basis (EC, 1996)...
The introduction of parental leave provisions available to both fathers and mothers can be an effective tool for promoting gender equality. It recognizes the fact that fathers also have caring responsibilities. But even if parental leave by definition is available to both mothers and fathers, women are most often the ones who take parental leave, once maternity leave is finished. Generally, men’s take-up rates are very low (ILO, 1997). For this reason, some countries have introduced a paternity quota that can only be taken by the father and is lost if he does not use it...”
27. With respect to maternity leave the Report states, in particular, as follows:
“In many countries, various categories of workers are explicitly excluded in the scope of labour legislation and/or social security legislation or of the corresponding law regulating cash maternity benefits...
In the European Union ... the EU Directive applies to workers in all fields and occupations, with no exceptions. Nevertheless, ... in Greece, the armed forces, the police and domestic servants are not covered. In 1999, the Commission of the European Communities noted that the exclusion of these groups is contradictory to Community law, leading to infringement proceedings against [Greece] (Commission of the European Communities, 1999).”
28. A report entitled “International Review of Leave Policies and Related Research” published in July 2007 by the United Kingdom Department for Business, Enterprise and Regulatory Reform describes leave entitlements for workers with dependent children in twenty-four countries (twenty-one European countries, Australia, Canada and the United States of America). According to that report the United States of America is the only country where there is no statutory right to parental leave. In contrast to maternity and paternity leave, which are by definition gender-related, parental leave can be taken by either parent in all countries under examination except one (in Hungary only the mother is entitled to take parental leave during the child’s first year; during the child’s second and third years, however, parental leave may be taken by either parent).
29. Parental leave is a family entitlement in ten countries, to be divided between parents as they choose (Australia, Austria, Canada, Denmark, Estonia, France, Germany, Hungary, Poland and Spain); an individual entitlement in another ten countries, with each parent entitled to a certain portion of parental leave (Belgium, the Czech Republic, Greece, Iceland, Ireland, Italy, Portugal, Slovenia, the Netherlands and the United Kingdom); and mixed (part family, part individual entitlement) in three countries (Iceland, Norway and Sweden). Various measures have been introduced to encourage fathers to take parental leave. Mostly these take the form of wholly or partly individualised entitlements, whereby fathers not using their ‘quota’ will lose it, since unused leave cannot be transferred to a partner. Another approach is to offer bonus leave days to fathers who take some parental leave (as, for example, in Italy, Finland and Germany).
30. Parental leave may be unpaid (as, for example, in Greece, Ireland, Italy, the Netherlands, Spain and the United Kingdom). A majority of countries (16), however, provide some element of payment to the parent on leave. In seven cases (Austria, Belgium, the Czech Republic, Estonia, France, Italy and Poland) the payment is rather low, whether a flat rate or means-tested, or is paid for only part of the leave period, or a combination of these. Only nine countries pay an earnings-related benefit set at more than half of normal earnings. In some cases – notably the Czech Republic, France and Poland – parents on leave receive a general ‘child-rearing’ benefit that is paid to all parents with young children, not just those taking leave.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-91342
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LYUBCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: The applicant, Ms Lyudmila Fedorovna Lyubchenko, is a Ukrainian national who was born in 1945 and lives in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
On 16 May 1994 the applicant instituted civil proceedings in the Dzerzhynsky District Court of Kharkiv against a State company, Kharkivsadvinprom, challenging her dismissal on the grounds of redundancy from the position of dispatcher and seeking reinstatement and compensation for wrongful dismissal. She alleged, inter alia, that at the material time the position of senior financial controller (ведучий економіст-ревізор) was vacant, and the defendant was obliged under the applicable law to offer it to the applicant.
Between May and December 1994 the court listed five hearings. Three hearings were adjourned since the applicant failed to appear, one hearing was adjourned since the both parties failed to appear.
On 13 December 1994 the court left the applicant’s claims without consideration. In April 1995 the applicant lodged an appeal against this ruling.
On 15 August 1995 the Kharkiv Regional Court quashed the ruling of 13 December 1994 and remitted the case to the first instance court.
Between September 1995 and May 1996 the first instance court listed some sixteen hearings. Ten hearings were adjourned since the applicant failed to appear. One hearing was adjourned since the judge was involved in other proceedings.
On 31 May 1996 the court ruled against the applicant, finding her dismissal lawful. The court observed, in particular, that the applicant’s qualifications were insufficient to fill the position of senior financial controller. The applicant appealed in cassation.
On 30 July 1996 the Kharkiv Regional Court allowed the applicant’s cassation appeal and remitted the case for fresh consideration. The court found that the first-instance court had not sufficiently investigated the applicant’s eligibility for the vacant position. The proceedings were transferred to the Kyivsky District Court of Kharkiv.
Between August 1996 and May 1997 the first instance court listed five hearings. One hearing was adjourned since the applicant was ill, one due to the applicant’s request for adjournment. One hearing was adjourned since the defendant’s representative failed to appear.
On 21 May 1997 the Kyivsky District Court of Kharkiv reinstated the applicant and partly allowed her compensation claims, having found that the applicant was sufficiently qualified to fill the vacant position of senior financial controller and that the defendant had wrongly failed to offer her this option. The defendant appealed in cassation.
On 1 July 1997 the Kharkiv Regional Court quashed the judgment of 21 May 1997 and remitted the case for fresh consideration, having found that the first-instance court had insufficiently investigated whether the applicant’s qualifications made her eligible for the vacant position.
Between September 1997 and March 2003, some forty-four hearings were listed by the first instance court. Seventeen hearings were adjourned due to the applicant’s failure to appear, two due to the applicant’s request for adjournment, two due to the absence of the applicant’s representative appointed ex officio. These adjournments caused a delay of almost two years.
Two hearings were adjourned because the judge was involved in other proceedings, five because of the judge’s illness, two because the judge was on leave, and one because he was travelling on official business. Two hearings were adjourned due to the defendant representative’s failure to appear. These adjournments caused a delay of about one year. Most of the hearings in the applicant’s case were scheduled by the first instance court at intervals from several days to two months.
On 29 June 2001 the amendments to the Code of Civil Procedure entered into force. They provided a right to lodge a cassation appeal within a three month period with the Supreme Court of Ukraine against court decisions adopted before 29 June 2001 and which had entered into force before that date. Accordingly, in September 2001, while the proceedings before the first instance court were still pending, the applicant lodged an application with the Supreme Court of Ukraine seeking annulment of the ruling of the Kharkiv Regional Court of 1 July 1997. On 3 December 2001 the Supreme Court rejected the applicant’s appeal in cassation.
On 31 March 2003 the Kyivsky District Court of Kharkiv dismissed the applicant’s claims. On 8 July 2003 the Kharkiv Regional Court of Appeal upheld this judgment. The applicant appealed in cassation before the Supreme Court.
On 22 October 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
In March 2004 the applicant requested the Kyivsky District Court of Kharkiv to quash the judgment of 31 March 2003 in the light of newly discovered circumstances. On 13 July 2004 the court refused to grant the applicant’s request. On 8 September 2004 and 18 January 2007 the Kharkiv Regional Court of Appeal and the Supreme Court, respectively, upheld this ruling.
The applicant complained under Article 6 § 1 of the Convention that the length of proceedings in her case was excessive. She further complained that the proceedings were unfair, notably because free legal aid had not been made available to her and the merits of her claims had been dismissed.


ITEMID: 001-58781
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF JECIUS v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (six month period);Violation of Art. 5-1 as regards the applicant's preventive detention;Violation of Art. 5-1 as regards the applicant's detention from 4 June to 31 July 1996;No violation of Art. 5-1 as regards the applicant's detention from 31 July to 16 October 1996;No violation of Art. 5-3 as regards the alleged failure to bring the applicant promptly before a judge or other officer;Violation of Art. 5-3 as regards the length of the applicant's detention;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 8. The applicant, a hotel director, was suspected of a murder committed in 1994. In 1995 the murder case was struck out for lack of evidence.
9. The applicant was arrested on 8 February 1996. On the same date the Chief Police Commissioner ordered the applicant's “preventive detention” (prevencinis sulaikymas) for sixty days on the authorisation of the Deputy Prosecutor General. On 9 February 1996 a judge of the Vilnius Regional Court confirmed the preventive detention order. The order referred to a general provision of Article 50-1 of the Code of Criminal Procedure then in force which permitted preventive detention in connection with banditry, criminal association and intimidation. The applicant appealed against his arrest, claiming, inter alia, that he had not been informed of the reason for his detention or of any charge against him. On 19 February 1996 a judge of the Vilnius Regional Court dismissed the appeal. No specific charge was brought against the applicant in the above decision. No investigation was carried out in connection with his preventive detention.
10. On 8 March 1996 the murder case was reopened. The applicant was charged, as a principal offender, with murder with aggravating circumstances. He was accused of organising the unlawful punishment of the alleged thief of his car, who had died as a result. Among the five accused persons in the case were three police officers who had allegedly handed over the arrested victim to the applicant.
11. On 14 March 1996 the Deputy Prosecutor General, by reference to Article 104 of the Code of Criminal Procedure, authorised the applicant's detention on remand on suspicion of murder. His detention was authorised until 4 June 1996.
12. On 27 March 1996 the applicant was questioned. On 22 April 1996 he submitted an application to the prosecution, claiming that there was no evidence to suspect him of having committed or prepared an offence, and that his preventive detention and subsequent detention on remand were incompatible with domestic criminal procedure and Article 5 of the Convention. On 24 April 1996 the Chief Prosecutor of Panevėžys Region dismissed the application on the ground that the applicant's detention could be justified merely by the gravity of the alleged offence.
13. On 17 May 1996 the applicant submitted an application to the Prosecutor General, again arguing that there was no reasonable suspicion against him, and that his detention infringed his rights under Article 5 of the Convention. On 21 May 1996 a regional prosecutor dismissed the application. On 4 June 1996 a renewed application by the applicant's representative was rejected by the Chief Prosecutor of the Panevėžys Region.
14. The pre-trial investigation was concluded on 29 May 1996. From 30 May to 10 June 1996 the applicant and his counsel were given access to the case file. The other defendants in the case had access to the file until 14 June 1996.
15. The applicant, after consulting the case file, submitted an application to the prosecution, arguing that the charge and detention were ill-founded. On 11 June 1996 a prosecutor of the Panevėžys Regional Prosecutor's Office dismissed the application, stating that the case file as a whole contained sufficient evidence of the applicant's guilt.
16. On 13 June 1996 the prosecutor informed the authorities of the prison in which the applicant was remanded that his detention was “automatically extended until 14 June 1996” pursuant to former Article 226 § 6 of the Code of Criminal Procedure, and that the case had been transmitted to the Chief Prosecutor of the Panevėžys Region to confirm the bill of indictment. No decision on the applicant's detention on remand was taken.
17. On 24 June 1996 the Chief Prosecutor of the Panevėžys Region wrote to the prison authorities, informing them that the murder case had been transmitted to the Panevėžys Regional Court, and that the applicant's detention had been valid. No decision as to the detention was taken.
18. On 1 July 1996 the Panevėžys Regional Court informed the prison authorities that a court hearing would be held on 31 July 1996 and that directions for the trial of the applicant and his co-accused would be given. No formal order as to the applicant's detention on remand was issued.
19. On 31 July 1996, at the directions hearing, a judge of the Panevėžys Regional Court decided that the applicant's detention on remand “should remain unchanged”. The judge did not mention any other aspects concerning the lawfulness of the applicant's detention. The applicant's counsel was present at the hearing.
20. The trial started before the Panevėžys Regional Court on 3 September 1996. On 9 September the examination of the case was adjourned in order to collect further material evidence.
21. From 14 to 16 October 1996 the Regional Court heard the case in the presence of the applicant and his lawyer. On 16 October 1996 the court decided that the applicant was to remain in custody. No other aspects of the lawfulness of the applicant's detention on remand were mentioned in the decision. The term of the applicant's detention was extended to 15 February 1997. The court also ordered additional investigative measures.
22. On 28 October 1996 the applicant appealed against that decision to the Court of Appeal. He also lodged applications with the Prosecutor General, the prison authorities, and the Ombudsman. The applicant claimed that the Regional Court's decision to detain him had not been valid, because it had simply prolonged a non-existent decision on detention which had expired on 4 June 1996. The applicant stated, inter alia, that Article 20 of the Lithuanian Constitution and Article 5 of the Convention had been infringed to his detriment.
23. On 21 November 1996 the Ombudsman drew the attention of the Minister of the Interior, the Prosecutor General, the Director of the Prison Department and the prison governor to the fact that, in his view, the applicant “had been remanded in custody unlawfully from 14 June 1996 until 31 July 1996, in breach of Article 20 of the Constitution ... and Article 5 § 1 (c) of the Convention”.
24. On 25 November 1996 the applicant renewed his appeal against his detention.
25. On 27 November 1996 the Court of Appeal disallowed the appeal by reference to Article 372 § 4 of the Code of Criminal Procedure as it was worded at the time. In its letter to the applicant, the Court of Appeal admitted that the lower judges had “possibly” erred in law in deciding the question of his detention, but it noted that no appeal lay against their decisions.
26. On the same date, on appeal by the prosecution against the Panevėžys Regional Court's decision of 16 October 1996, the Court of Appeal quashed the decision to order additional investigative measures in the case. The applicant appealed.
27. On 30 November 1996 the applicant lodged an application against his detention with the President of the Supreme Court. On 30 December 1996 the President of the Criminal Division of the Supreme Court informed the applicant that the application could not be examined. He admitted that the applicant “was remanded in custody from 4 June 1996 to 31 July 1996 without the remand measure being extended”. He emphasised, however, that the “ground of appeal cannot overturn the provision of law according to which a decision ordering, varying or extending a remand measure (Article 372 § 4 of the Code of Criminal Procedure) ... cannot be the subject of an appeal”.
28. On 14 January 1997 the Supreme Court amended the Court of Appeal's decision of 27 November 1996 quashing the Panevėžys Regional Court's decision of 16 October 1996 to order additional investigative measures. The Supreme Court also decided that a bench of three judges rather than a single judge should consider the merits of the murder case.
29. The applicant instituted civil proceedings against the prison authorities for keeping him in detention without any formal order. On 26 February 1997 a judge of the Šiauliai District Court dismissed the action. The judge held that the prison's actions had been based on “the authorisation of the prosecutor, and letters containing information about the extension of the detention, and decisions of the judge and court”. On 28 April 1997 the Šiauliai Regional Court upheld the decision of the District Court.
30. The applicant applied for bail on health grounds. On 17 March 1997 the Panevėžys Regional Court dismissed the application. The trial was again adjourned and additional investigations ordered until 28 April 1997, when the case was referred back to court. The trial resumed on 26 May 1997.
31. On 9 June 1997 the Panevėžys Regional Court acquitted the applicant on all charges for lack of evidence. He was released from custody.
32. The prosecution and the other defendants in the case appealed against the first-instance judgment. On 27 August 1997 the Court of Appeal quashed the judgment of the Regional Court. The case was referred back to the prosecution for further investigation.
33. On 22 October 1997 a prosecutor of the Panevėžys Regional Prosecutor's Office informed the applicant that the criminal proceedings against him had been discontinued by a decision of 21 October 1997.
34. The following provisions of the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija) are relevant:
“A person arrested when committing an offence must, within forty-eight hours, be brought to court for the purpose of determining, in the presence of the detainee, whether detention is appropriate. If the court does not order the detention of the arrested person, he shall be released immediately.”
“A person whose constitutional rights or freedoms are violated shall have the right to apply to a court.”
35. Relevant provisions of the former Code of Criminal Procedure (Baudžiamojo proceso kodeksas) are:
“No one shall be arrested save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor ...”
“... [H]aving sufficient reasons to suspect that a person may commit a dangerous act, the elements of which are set out in Articles 75 [banditry], 227-1 [criminal association] and 227-2 [intimidation] of the Criminal Code of the Republic of Lithuania, and with a view to preventing the commission of such an act, a chief of police ... may, by a reasoned decision, with the authorisation [of a prosecutor] ... order the arrest of the person ...
Within forty-eight hours, in the presence of the police officer who took the decision to arrest and the prosecutor who authorised it ... a president of a district court, a judge of a regional court or a president of a division of a regional court shall decide on the lawfulness of the arrest.
The judge, in determining whether the arrest was lawful, may of his own motion bring the arrested person before him; however, the judge may also decide in the absence of the arrested person ...
The arrested person ... may appeal against the decision to a higher judge.
... [T]he decision of the higher judge shall be final and cannot be the subject of an appeal ...
... [A] person detained on the authorisation of a prosecutor and whose detention is confirmed by a judge may be so detained for no longer than two months ...”
Since 21 June 1996 arrest may only be ordered by a court or judge.
“Detention as a remand measure shall be used only where based on the decision of a court, the order of a judge or the authorisation of a prosecutor in the case of offences carrying a statutory penalty of at least one year of imprisonment ...
In the case of offences specified in [Article] ... 105 [murder with aggravating circumstances] ... of the Criminal Code, detention as a remand measure may be ordered on the ground of the gravity of the offence alone ...
In deciding whether to authorise the detention, a prosecutor ... shall personally hear the suspect or defendant where necessary ...”
“... [T]he arrested person shall be brought before a judge within not more than forty-eight hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the hearing. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ...
After the case has been transmitted to the court ... [it] may order, vary or revoke the detention on remand.”
The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial examination of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the period of detention on remand before its expiry.
“For the purpose of extending the term of detention on remand [at the stage of pre-trial investigation a judge] must convene a hearing to which defence counsel, the prosecutor and, if necessary, the detained person shall be called.”
The version of the Code in force since 24 June 1998 makes it compulsory for the detainee to attend the remand hearings.
“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel, or counsel alone, shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.
A further appeal shall be heard when the extension of the term of detention on remand is examined.”
The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing in the presence of the detainee and his counsel, or his counsel alone.
“The period when the accused and his counsel have access to the case file shall not be counted as part of the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case file shall not be counted as part of the overall term of pre-trial investigation and detention.”
Since 24 June 1998 this period has ceased to be relevant for remand decisions.
“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of an appeal ...”
36. A number of provisions of the present Code of Criminal Procedure are relevant.
Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor or court”.
“In deciding whether to commit the accused for trial, a judge individually, or a court at a directions hearing, shall determine
...
(11) whether the remand measure has been selected appropriately.”
“After deciding that there is a sufficient basis to commit the accused for trial, a judge individually, or a court at a directions hearing, shall determine issues concerning
...
(2) the remand measure in respect of the accused ...”
“The defendant shall have the right to
...
(3) submit requests;
...
(11) appeal against the judgment and decisions of a court.”
“In the course of a trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”
37. The law of 21 June 1996 amending and supplementing the Code of Criminal Procedure (Baudžiamojo proceso kodekso pakeitimų ir papildymų įstatymas) stated that detention authorised by a prosecutor prior to 21 June 1996 could thereafter be extended by a court in accordance with the new procedure governing remand in custody.
38. The reservation entered by Lithuania in respect of Article 5 § 3 of the Convention was in force until 21 June 1996 and provided as follows:
“The provisions of Article 5, paragraph 3, of the Convention shall not affect the operation of Article 104 of the Code of Criminal Procedure of the Republic of Lithuania (amended version No. I-551, July 19 1994) which provides that a decision to detain in custody any persons suspected of having committed a crime may also, by decision of a prosecutor, be so detained. This reservation shall be effective for one year after the Convention comes into force in respect of the Republic of Lithuania.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-3