ITEMID: 001-57615
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF KOSTOVSKI v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-d;Just satisfaction reserved
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 9. Mr Slobodan Kostovski is a Yugoslav citizen born in 1953. He has a very long criminal record, including convictions for various crimes in the Netherlands, notably armed robbery at a jeweller’s shop in 1979 for which he was sentenced to six years’ imprisonment.
In November 1980 the Amsterdam District Court (arrondissements- rechtbank) had declared admissible a request by Sweden for his extradition to stand trial for serious offences committed in Stockholm in September 1979, namely two armed robberies and assisting in an escape from a court building, involving in each case attempted manslaughter.
On 8 August 1981 the applicant escaped from Scheveningen prison together with one Stanley Hillis and others; he remained on the run until the following April.
10. On 20 January 1982 three masked men conducted an armed raid on a bank in Baarn and made off with a substantial amount of currency and cheques.
Police suspicions centred on Stanley Hillis and his associates because, being on the run, they probably needed money and because some years previously Stanley Hillis had been directly involved in a robbery carried out at the same bank with exactly the same modus operandi as the 1982 raid. These suspicions were strengthened on 25 January, when the Amsterdam police received an anonymous telephone call from a man who said:
"A few days ago a hold-up took place at a bank in Baarn. Those responsible for the hold-up are Stanley Hillis, Paul Molhoek and a Yugoslav. Stanley Hillis and the Yugoslav escaped from prison in The Hague in August last year."
11. On 26 January 1982 a man visited the police in The Hague. The reporting officer drew up, on 18 March, the following account of the interview:
"On 26 January there appeared before me a man who for fear of reprisals desired to remain anonymous but whose identity is known to me. He stated as follows:
‘A few months ago four men escaped from the remand centre (huis van bewaring) in The Hague, among them a Yugoslav and an Amsterdamer. They are now living with an acquaintance of theirs in Utrecht. I do not know the address. They are also in touch with Paul Molhoek of The Hague. The Yugoslav and the Amsterdamer sometimes spend the night at Aad Denie’s home in Paul Krugerlaan in The Hague. Paul Molhoek sleeps there almost every night. The Yugoslav and the Amsterdamer now drive a blue BMW car; I do not know the registration number. Paul Molhoek drives a new white Mercedes sports car. The Yugoslav, the Amsterdamer and Paul Molhoek carried out a hold-up a few days ago on a bank in Baarn, in the course of which the staff of the bank were locked up. Aad Denie, who otherwise had nothing to do with the affair, takes Paul Molhoek to the two men in Utrecht every day because Paul Molhoek does not have a driving licence. Aad Denie drives a silver-grey BMW car, registration mark 84-PF-88.’
I wish to add that, after being shown various photographs included in the police file, he picked out photos of the following persons: Slobodan Kostovski ... as being the Yugoslav to whom he had referred; Stanley Marshall Hillis ... as being the Amsterdamer in question."
12. On 27 January the Utrecht police, acting on information received that Stanley Hillis was hiding with a brother of Paul Molhoek at an address in that town, conducted a search there. Whilst they found no one, they did find fingerprints of Stanley Hillis and Paul Molhoek.
13. On 23 February 1982 a person visited the police in The Hague. The two reporting officers drew up, on 22 March, the following account of the interview:
"On Tuesday 23 February 1982 there appeared before us a person who for security reasons wishes to remain anonymous but whose identity is known to us. He/She stated that he/she knew that Stanley Hillis, Slobodan Kostovski, Paul Molhoek and Aad Denie, who were known to him/her, were guilty of the armed raid on a branch of the Nederlandse Middenstands Bank at Nieuwstraat 1 in Baarn on or about 19 January 1982. According to the said person, the first three of the aforementioned persons had carried out the raid and Aad Denie had acted as driver or at least he had picked them up in a car after the raid.
The said person also stated that the proceeds of the raid, amounting to about Fl. 600,000, had been divided into more or less equal parts by Hillis, Kostovski and Molhoek and that Aad Denie had received a small part thereof. From what he/she said, this would have been about Fl. 20,000. The said person also stated that Hillis, Kostovski and Molhoek knew each other from when they were detained in Scheveningen prison.
Hillis and Kostovski escaped from the said prison on 8 August 1981 and Molhoek was released at a later date. The said person stated that Paul Molhoek lived most of the time with Aad Denie at Paul Krugerlaan 216 in The Hague. Hillis and Kostovski were said to have lived for a while at Oude Gracht 76 in Utrecht, which they had rented in another name. A brother of Paul Molhoek also lived there; he was called Peter. The said person stated in this connection that the Utrecht police had raided the said premises but had not found the above-mentioned people. He/she said that Hillis, Kostovski and Molhoek were in a room on a higher floor of the same building in the Oude Gracht at the time of the police raid. The police had not searched that floor. The person in question also stated that Hillis was now believed to be living in Amsterdam.
Paul Molhoek and Hillis were said to meet each other quite regularly there, near Amstel Station, which was their usual meeting place.
According to the person in question, Hillis, Kostovski and Molhoek were in possession of powerful weapons. He/she knew that Hillis and Kostovski each had a Sten gun among other things and that Paul Molhoek had a revolver, possibly a Colt 45.
The person interviewed by us stated that he/she might later be able to provide more details about the above-mentioned persons and the offences they had committed."
14. On 1 April 1982 Stanley Hillis and Slobodan Kostovski were arrested together in Amsterdam. They were in a car driven by one V., who had helped them to escape from prison and had had various contacts with them in and after January 1982.
On his arrest Slobodan Kostovski was in possession of a loaded revolver. Subsequently, firearms were also found in the home of Paul Molhoek, who was arrested on 2 April, in the home of V. and in another room in the house previously searched in Utrecht.
Like the applicant, Stanley Hillis, Paul Molhoek, Aad Denie and V. all have very long criminal records.
15. A preliminary judicial investigation (gerechtelijk vooronderzoek; see paragraph 23 below) was instituted in respect of Stanley Hillis, Slobodan Kostovski, Paul Molhoek and Aad Denie. On 8 April 1982 Mr Nuboer, the examining magistrate (rechter-commissaris), interviewed, in the presence of the police but in the absence of the public prosecutor and of the applicant and his counsel, the witness who had made a statement to the police in The Hague on 23 February (see paragraph 13 above). The magistrate, who did not know the person’s identity, considered his/her fear of reprisals to be well-founded and therefore respected his/her wish to remain anonymous. His report on the hearing recorded that the witness made the following sworn statement:
"On 23 February 1982 I made a statement to the police in The Hague which was included in a report drawn up on 22 March 1982. You read out that statement to me. I declared that it is the truth and that I stand by it, on the understanding that I was not aware that the bank in Baarn was at No. 1 Nieuwstraat. My knowledge stems from the fact that both Stanley Hillis and Paul Molhoek, as well as Aad Denie, had all told me about the hold-up. They said that they had taken not only cash, but also American travellers’ cheques and Eurocheques. I myself saw a number of the Eurocheques."
16. On 2 June 1982 the examining magistrate wrote to the lawyers acting for those concerned, enclosing copies of the official reports, including the statements of the anonymous person he had seen. He indicated that they could submit written questions on the basis of the statements made, pointing out that they would not be invited to the hearing before him. Amongst those who responded was Mr Kostovski’s lawyer, Mrs Spronken, who submitted fourteen questions in a letter of 14 June.
On 22 June, as a result of those questions, the anonymous witness whom Mr Nuboer had heard was interviewed again, this time by Mr Weijsenfeld, an examining magistrate deputising for Mr Nuboer. The police were present but neither the public prosecutor nor the applicant or his counsel. The magistrate’s report of the hearing recorded that the witness - whose anonymity was respected on this occasion also - made the following sworn statement:
"I stand by the statement which I made on 8 April 1982 to the examining magistrate in Utrecht. My answers to the questions posed by Mrs Spronken are as follows.
I am not the person who telephoned anonymously to the police communications centre in Amsterdam on 25 January 1982, nor the person who made a statement on 26 January 1982 at the police station in The Hague. I did not state to the police that I knew that the bank was at Nieuwstraat 1 in Baarn. I knew that it was in Baarn, but not the street. I learned the latter from the police and it was included as being part of my own statement by mistake. Although Mrs Spronken did not ask this, I would add that I did not inform the municipal police in Utrecht.
As regards the questions posed by Van Straelen, I would in the first instance refer to the statement I have just made. I am acquainted with Hillis, Kostovski, Molhoek and Denie and have no doubts as to their identity."
In the event, only two of Mrs Spronken’s fourteen questions, most of which concerned the circumstances in which the witness had obtained his/her information, were answered. In this connection Mr Weijsenfeld added the following in his report:
"The questions sent in, including those from S.M. Hillis, which have not been answered were either not asked by me, the examining magistrate, in order to preserve the anonymity of the witness, or not answered by the witness for the same reason."
17. The cases against Stanley Hillis, Slobodan Kostovski and Paul Molhoek came on for trial before the Utrecht District Court on 10 September 1982. Although for procedural reasons each case was dealt with separately and was the subject of a separate judgment, the court held a single sitting, so that the statements made thereat applied to all three suspects.
The witnesses heard in court included the examining magistrates Mr Nuboer and Mr Weijsenfeld (see paragraphs 15-16 above) and Mr Weijman, one of the police officers who had conducted the interview on 23 February (see paragraph 13 above). They had been called at the applicant’s request, but the court, pursuant to Article 288 of the Code of Criminal Procedure (see paragraph 25 (b) below), did not allow the defence to put to them certain questions designed to clarify the anonymous witnesses’ reliability and sources of information, where answers would have revealed the latter’s identity.
Mr Nuboer stated that he believed the witness he had heard on 8 April 1982, who had "made a favourable impression" on him; that he did not know the witness’s identity and considered the fear of reprisals advanced in support of his/her wish for anonymity to be a real one; that he believed the witness had made his/her statement to the police voluntarily; and that he had refused an offer by the police for him to interview the man they had seen on 26 January 1982 (see paragraph 11 above) as he could not guarantee the latter’s anonymity.
Mr Weijsenfeld stated that he considered to be "not unreliable" the witness - whose identity he did not know - whom he had interviewed on 22 June 1982 (see paragraph 16 above); and that he too regarded the witness’s fear of reprisals as well-founded.
Mr Weijman stated that, in his view, the person he had interviewed with a colleague on 23 February 1982 (see paragraph 13 above) was "completely reliable" because he/she had also given information on other cases which had proved to be correct. He added that certain parts of that person’s statement had been omitted from the official report in order to protect his/her identity.
18. The anonymous witnesses themselves were not heard at the trial. Contrary to a defence submission, the official reports drawn up by the police and the examining magistrates on the hearings of those witnesses were used in evidence. Also the sworn statements made by one of them to the magistrates were read out and designated as statements by a witness made at the trial, in accordance with Article 295 of the Code of Criminal Procedure (see paragraph 26 below).
In its judgments of 24 September 1982 the Utrecht District Court recognised, with regard to the use of the statements of the anonymous witnesses, that their sources of information could not be checked, that it could not form an independent view as to their reliability and that the accused were deprived of the possibility of being confronted with them. By way of justification for its decision nevertheless to use this material in evidence the court stated that it had been convinced of Mr Kostovski’s guilt, considering that the statements strengthened and partly complemented each other and having regard to the views it had heard as to the reliability of one of the anonymous witnesses (see paragraph 17 above). Having also noted that the applicant had previously been found guilty of similar offences, the court convicted him and his co-accused of armed robbery and sentenced each of them to six years’ imprisonment.
19. Mr Hillis, Mr Kostovski and Mr Molhoek - who have always denied any involvement in the bank raid - appealed to the Amsterdam Court of Appeal (Gerechtshof), which set aside the Utrecht District Court’s judgments as it arrived at a different assessment of the evidence. However, after a retrial, at which the three cases were dealt with together, the Court of Appeal, by judgment of 27 May 1983, also convicted the applicant and his co-accused and imposed the same sentences as before.
On 13 May the Court of Appeal had heard a number of the witnesses previously heard at first instance, who stood by their earlier testimony. Like the Utrecht District Court, it had not allowed certain questions by the defence to be answered, where this would have revealed the identity of the anonymous witnesses. The following statement had also been made to the Court of Appeal by Chief Superintendent Alferink of The Hague municipal police:
"Consultations take place before anonymous witnesses are interviewed. It is customary for me to ascertain the identity of the witness to be interviewed in order to assess whether he or she could be in danger. In this case the anonymous witnesses were in real danger. The threat was real. Both witnesses decided to make statements on their own initiative. The public prosecutor was contacted, but I cannot remember who it was. The testimony of anonymous witnesses is offered to the examining magistrate after consultation with the public prosecutor. Both anonymous witnesses made a reliable impression on me."
The Court of Appeal likewise did not hear the anonymous witnesses but, again contrary to a defence submission, considered the official reports of their interviews with the police and the examining magistrates to be admissible evidence. The court found that the witnesses, who had made their statements on their own initiative, had good reason to fear reprisals; noted that they had made a reliable impression on Mr Alferink and a reasonably reliable one on Mr Nuboer; and took into account the connections between, and the mutual consistency of, the statements in question.
20. On 25 September 1984 the Supreme Court (Hoge Raad) dismissed an appeal by the applicant on points of law. It found that the Amsterdam Court of Appeal had adduced sufficient reasons for admitting the reports in question (see paragraph 32 below). It also stated that Article 6 (art. 6) of the Convention did not prevent a judge, if he deemed it necessary in the interest of the proper administration of justice, from curtailing to some extent the obligation to answer questions and, notably, from allowing a witness not to answer questions about the identity of persons.
21. On 8 July 1988, by which time he had served 1,461 days of his prison sentence, Mr Kostovski became due for release on parole. However, on that day he was extradited from the Netherlands to Sweden, to serve there a sentence of eight years’ imprisonment.
22. The Netherlands Code of Criminal Procedure ("CCP") came into force on 1 January 1926. The citations appearing in the present judgment are taken from the CCP as it stood at the time of the applicant’s trials.
23. Article 168 CCP provides that each District Court has one or more examining magistrates to whom criminal cases are entrusted. They are nominated, for a term of two years, by the competent Court of Appeal from amongst the members of the District Court.
It is open to the public prosecutor, under Article 181 CCP, to request what is called - in order to distinguish it from the subsequent investigation at the trial - a "preliminary investigation", which it is the task of an examining magistrate to conduct. In that event the latter will hear the suspect, witnesses and experts as soon as possible and as often as is required (Article 185 CCP). Both the public prosecutor and defence counsel are, in principle, entitled to be present at those hearings (Articles 185 § 2 and 186) and, even if they are absent, to give notice of questions they wish to have put.
The preliminary investigation provides a basis for a decision with regard to the further prosecution of a suspect and also serves to clarify matters which cannot properly be investigated at the trial. The magistrate must act impartially, by collecting also evidence which might exculpate the suspect.
If the public prosecutor is of the opinion that the results of the preliminary investigation justify further prosecution, he will notify the suspect and refer the case to the court. The investigation at the trial will then follow.
24. Under Article 338 CCP, a finding that the accused has been proved to have committed the acts with which he is charged may be made by a judge only if he has been so convinced through the investigation at the trial, by the contents of "legal means of evidence". The latter consist, according to Article 339 CCP, exclusively of (i) what the judge has himself observed; (ii) statements made by the accused; (iii) statements made by a witness; (iv) statements made by an expert; and (v) written documents.
Evidence in the third category is defined in Article 342 CCP, which reads:
"1. A statement by a witness is understood to be his statement, made in the investigation at the trial, of facts or circumstances which he himself has seen or experienced.
2. The judge cannot accept as proven that the defendant has committed the act with which he is charged, solely on the statement of one witness."
25. Articles 280 and 281-295 CCP contain various provisions concerning the examination of witnesses at the trial, of which the following are of importance in the context of the present case.
(a) The president of the court must ask the witness to state, after his first names and surname, his age, occupation and address (Article 284 § 1 CCP); the same obligation is also laid, by Article 190 CCP, on an examining magistrate when he is hearing witnesses.
(b) Articles 284, 285 and 286 CCP make it clear that the accused is entitled to put questions to a witness. As a general rule witnesses are examined first by the president of the court; however, a witness who has not been heard during the preliminary investigation and has been called at the request of the defence will be examined first by the accused and only afterwards by the president (Article 280 § 3 CCP). In any event, Article 288 CCP empowers the court "to prevent a question put by the accused, counsel for the defence or the public prosecutor being answered".
(c) Article 292 CCP enables the president of the court to order an accused to leave the court-room so that a witness may be examined out of his presence. If such an order - for which reasons do not have to be given - is made, counsel for the defence may question the witness and "the accused shall be told immediately what has happened during his absence and only then will the investigation be resumed" (Article 292 § 2 CCP). Thus, on returning to the court-room the accused may avail himself of his right, under Article 285 CCP, to put questions to the witness.
26. Article 295 CCP provides for an exception to the rule in Article 342 CCP (see paragraph 24 above) that witnesses should be heard at the trial. It reads:
"An earlier statement by a witness who, having been sworn in or admonished to speak the truth in accordance with Article 216 § 2, has died or, in the opinion of the court, is unable to appear at the trial shall be considered as having been made at the trial, on condition that it is read aloud there."
In connection with witnesses unable to appear at the trial, Article 187 CCP provides:
"If the examining magistrate is of the opinion that there are grounds for assuming that the witness or the expert will not be able to appear at the trial, he shall invite the public prosecutor, the defendant and counsel to be present at the hearing before him, unless, in the interest of the investigation, that hearing cannot be delayed."
27. The fifth category of evidence listed in Article 339 CCP (see paragraph 24 above) is defined in Article 344 CCP which, so far as is relevant, reads:
"1. By written documents is understood:
1o ...;
2o official reports and other documents, drawn up in the lawful form by bodies and persons who have the proper authority and containing their statement of facts or circumstances which they themselves have seen or experienced;
3o...;
4o...;
5o all other documents; but these are valid only in conjunction with the content of other means of evidence.
2. The judge can accept as proven that the defendant has committed the act with which he is charged, on the official report of an investigating officer."
An anonymous statement contained in an official police report falls within the scope of sub-paragraph 2o of paragraph 1 of this Article.
28. In the Netherlands, the procedure in a criminal case follows in actual practice a course that is markedly different from that suggested by the provisions referred to in paragraphs 23 to 27 above. This is to a considerable extent due to a leading judgment delivered by the Supreme Court on 20 December 1926, the year in which the CCP came into force. That judgment (Nederlandse Jurisprudentie (NJ) 1927, 85) contains the following rulings, each of which is of importance in the context of the present case:
(a) for a statement by a witness to be considered as having been made at the trial under Article 295 CCP (see paragraph 26 above), it is immaterial whether or not the examining magistrate has complied with Article 187 CCP (ibid.);
(b) a deposition by a witness concerning what he was told by another person (hearsay evidence) may be used as evidence, albeit with the utmost caution;
(c) it is permissible to use as evidence declarations made by the accused or by a witness to a police officer, as recorded in the latter’s official report.
29. These rulings permit the use, as "legal means of evidence" within the meaning of Articles 338 and 339 CCP (see paragraph 24 above), of depositions made by a witness not at the trial but before a police officer or the examining magistrate, provided they are recorded in an official report which is read aloud in court. The rulings have had the effect that in practice the importance of the investigation at the trial - which is never conducted before a jury - has dwindled. In the great majority of cases witnesses are not heard at the trial but either only by the police or also by the examining magistrate.
30. The law does not make the presence of counsel for the defence obligatory during the investigation by the police. The same applies to the preliminary investigation by the examining magistrate (but see paragraph 23 above). Nowadays, however, most examining magistrates invite the accused and his counsel to attend when they are hearing witnesses.
31. The CCP contains no express provisions on statements by anonymous witnesses.
However, with the increase in violent, organised crime a need was felt to protect those witnesses who had justification for fearing reprisals, by granting them anonymity. In a series of judgments the Supreme Court has made this possible.
32. A precursor to this development was a judgment of 17 January 1938 (NJ 1938, 709) in which the Supreme Court held that hearsay evidence (see paragraph 28 (b) above) could be admitted even if the witness did not name his informant. Decisions to the same effect have been handed down in the 1980’s.
In a judgment of 5 February 1980 (NJ 1980, 319), concerning a case where the examining magistrate had granted anonymity to and had heard a witness without the accused or his counsel being present, the Supreme Court held - following its judgment of 20 December 1926 (see paragraph 28 above) - that non-compliance with Article 187 CCP (see paragraph 26 above) did not prevent the magistrate’s official report being used in evidence, "albeit with the caution called for when assessing the probative value of such evidence". The same ruling was made in a judgment of 4 May 1981 (NJ 1982, 268), concerning a case where the witness had been heard anonymously by both the police and the examining magistrate; on that occasion the Supreme Court also held - in accordance with its above-mentioned judgment of 17 January 1938 - that the mere fact that the official reports of the hearings did not name the witness was not an obstacle to their utilisation in evidence, subject to an identical proviso as to caution.
It may be inferred from a judgment of 29 November 1983 (NJ 1984, 476) that the caution called for does not necessarily imply that anonymous witnesses must have been heard by the examining magistrate also.
The next judgments in the series are those given by the Supreme Court on 25 September 1984 in the cases of Mr Kostovski and his co-accused, one of which is published in NJ 1985, 426. They contain the following new elements:
(a) the mere fact that the examining magistrate did not know the identity of the witness does not prevent the use in evidence of the official report of the hearing he conducted;
(b) if the defence contests at the trial the reliability of depositions by an anonymous witness, as recorded in the official report of the hearing of the witness, but the court nevertheless decides to admit them as evidence, it must give reasons justifying that decision.
These principles were confirmed in a judgment of 21 May 1985 (NJ 1986, 26), which makes it clear that the Supreme Court’s review of the reasons given to justify the admission of anonymous statements as evidence is only a marginal one.
33. In their submissions preceding certain of the Supreme Court’s judgments referred to in paragraph 32 above, various Advocates-General, whilst recognising that the granting of anonymity to witnesses could not always be avoided and sometimes had to be accepted as the lesser evil, nevertheless voiced concern. The learned writers who annotated the judgments did likewise, stressing the need for the courts to be very cautious indeed. The judgments have, however, also been criticised.
34. In 1983 the Association of Judges expressed disquiet at the increase in cases in which witnesses were threatened and at the growing number of witnesses who refused to testify unless they were granted anonymity. The Association recommended that the legislature should direct its attention to the question of anonymous witnesses.
The Minister of Justice consequently set up in September 1984 an external advisory committee, called "the Commission on Threatened Witnesses", to examine the problem. In its report of 11 June 1986, which was later submitted for advice to several bodies concerned with the application of the criminal law, the Commission concluded, with only one member dissenting, as follows:
"In some cases one cannot avoid anonymity of witnesses. Reference is made to the fact (which was also pointed out by the Minister) that at present there are forms of organised criminality of a gravity that the legislature of the day would not have considered possible."
The Commission added that "in a society governed by the rule of law the interference with, or more accurately the frustration of, the course of justice resulting [from this situation] cannot possibly be accepted".
The Commission proposed that the law should in principle forbid the use as evidence of statements by anonymous witnesses. It should, however, be possible to make an exception where the witness would run an unacceptable risk if his or her identity were known. In such cases an anonymous statement might be admitted as evidence if the witness had been examined by an examining magistrate, the accused being given a right of appeal against the latter’s decision to grant anonymity. The report contains a Bill making the necessary modifications to the CCP (with draft explanatory notes) and comparative data.
According to the Government, initiation of legislation in this area has been deferred pending the Court’s decision in the present case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-94321
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LOWE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Paul Lowe, is a British national who was born in 1967 and is currently detained in HMP Ranby.
.
Between 1998 and 27 February 2000, the major crime unit of the Merseyside Police carried out a surveillance operation (Operation Kingsway) into a suspected conspiracy to supply heroin and ecstasy. The operation involved surveillance from fixed and mobile observation points which were recorded over radio link and logged. Details of telephone calls were also gathered. Some observations were photographed.
The conspiracy involved repeated imports of large quantities of heroin. From July 1999 onwards, the heroin was imported into the United Kingdom via the Channel Tunnel by Mr F. and taken to the house of Mr E., at 107 Upper Parliament Street, Liverpool. The final delivery with an estimated street value of GBP 1.3 million was seized by police at 107 Parliament Street on 27 February 2000.
The prosecution case was that the applicant was a central figure in the conspiracy and acted as the controller and director of operations. The case against the applicant was almost entirely circumstantial and was based on the observations gathered in Operation Kingsway.
The applicant was first interviewed in the presence of his solicitor at 12.50 p.m. on 28 February 2000. He was cautioned and asked about his presence at 107 Upper Parliament Street on 27 February 2000. He was also advised that his own home had been searched and was questioned about items recovered during the search, including the sum of GBP 24,270 in cash. He was told that it was believed that he associated with named individuals who were also suspected of participating in the conspiracy. He made no comment, save to say that the cash belonged to a member of his family and that he did not wish to disclose the identity of that person “at this moment”. He indicated that his refusal to comment was the result of the “lack of disclosure”. The interview lasted for 12 minutes.
Later that same day, at 6.42 p.m., the applicant was questioned a second time. He was cautioned again. The details of the police observations from Operation Kingsway starting from July 1998 were put to him and he either made no comment or was silent in response to questions put.
At 7.27 p.m., the interview was continued under caution. Every observation relating to the 15 and 16 November 1999 was put to the applicant. The applicant remained silent on all matters.
At 8.16 p.m. the interview was continued under caution. The applicant was asked specifically about police observations from 30 and 31 January and 1 February 2000. He did not answer any questions. He was also asked about a passport in another name bearing his photograph. He did not make any comment.
The applicant was tried before the Crown Court. In July 2000, prior to the commencement of the trial, the applicant served on the prosecution and the court a detailed defence statement. In October 2000, at the trial itself, he gave detailed evidence in his defence regarding the large sums of money found at his home and his movements as observed during Operation Kingsway. In particular, the applicant claimed that he was involved in the buying and selling of stolen cars, and that this explained the movements recorded by the police.
In relation to his failure to make any comment during the police interviews, the applicant explained that he was shocked by the circumstances of his arrest; that he was acting on legal advice; and that he had not wished to incriminate others involved in the buying and selling of stolen cars.
The prosecution intimated that they intended to invite the trial judge in due course to make an adverse inferences direction to the jury regarding the applicant’s silence during the police interviews. The applicant sought to have the defence statement made in July 2000 put before the jury at his trial in order to show that he had set out his defence some time before the trial. The trial judge refused the application noting that the applicant had given detailed evidence in court and had therefore had the opportunity to present his case to the jury.
In his summing up to the jury, the judge noted that a number of the defendants, including the applicant, had declined to answer questions when interviewed by the police. The judge reminded the jury that the applicant was cautioned before the interviews, the terms of the caution being that he did not need to say anything but that it might harm his defence if he did not mention something when questioned on which he later sought to rely in court. The judge further noted that the defendants had subsequently, as part of their defence, relied on certain facts which they admitted they had not mentioned when questioned. In relation to the applicant, he gave one example of such a fact. He concluded with the following general direction:
“Members of the jury, since these defendants did not mention facts on which they now rely in support of their defences when they were interviewed, then as they were told, it may harm their defence ...
... [T]hey were told that it may harm their defences because you ... may draw such inferences as appear proper from their failure to mention the facts concerned when they were interviewed when you are deciding whether they are guilty as charged. However ... you may draw inferences of that kind only in certain circumstances that I want to make clear to you. First of all, before you could draw such an inference you would have to conclude that quite independently of any such inference the prosecution’s case against the defendant concerned was sufficiently compelling to call for an answer by him.
Secondly ... you would have to conclude that the fact that you are considering, the fact which he did not mention but has relied on now, was something that he could reasonably have been expected to mention at that time. Thirdly, you would have to conclude that the defendant had no answer [at] that time, and has since made up his account or has tailored his account to fit the prosecution’s case, or indeed done both.
If those are your conclusions ... but only if those are your conclusions, then you may, if you think it is right and fair to do so, take into account the silence of the defendant concerned when deciding whether his evidence about [the] facts concerned [is] true. But ... that silence must not be the only basis or indeed the main basis of any verdict of guilty that you may return.
... [T]he defence invites you not to draw any adverse inferences from their silence for a variety of reasons ... In Mr Lowe’s case ... he said, ‘I didn’t answer questions but amongst my reasons are that I was shocked by the circumstances of my arrest and I was acting on legal advice’ ...
If ... you think that the various matters raised ... by the defendants, or any of them, amounts to a reason why you should not draw any inference from the silence of the defendant concerned, then do not do so. But otherwise, subject to the direction that I have given you, you may do so.”
The judge advised the jury that the fact that a defendant had received legal advice not to answer questions did not mean that the jury were automatically prevented from drawing any adverse inferences from the defendant’s silence at interview. However, the judge emphasised the importance of legal advice and its relevance in considering whether the defendant’s silence at interview was justified, provided that the jury were satisfied that the defendant in question had received such legal advice. He directed as follows:
“The fact that a defendant receives legal advice not to answer questions does not mean that you are automatically prevented from drawing any adverse inferences from that defendant’s silence. But legal advice is obviously a matter of importance and is something [to] which you should have due regard in deciding whether you do in fact draw adverse inferences.
You will first, of course, have to decide whether you accept that the defendant ... did in fact receive or may have received legal advice not to answer questions or certain of them. Obviously, if you do not believe that ... then the question of legal advice does not arise at all. But if you do accept that the defendant ... received legal advice to remain silent, then you should consider whether in the circumstance that the defendant found himself in, including indeed the nature of the advice that he was given, it was reasonable for him to act on the advice that he was given. Or whether, having been told that his silence might harm his defence, he could reasonably have been expected to decide for himself to say then what he has now said in court.”
Following discussion of the position as regards legal advice, the judge reminded the jury of the position in the following terms:
“All of this is subject to the general direction that I have already given to you, and you will recall that as part of that direction I have told you that adverse inferences only become a possibility if the only sensible reason for the silence of the defendant concerned was that he had no answer at the time of the interview to the questions that were being asked, and has made up his account since or tailored it to fit the prosecution’s case or has done both.”
The judge then went through the applicant’s interviews in detail with the jury, pointing out that in relation to the sum of GBP 24,270 found at his home, the applicant had subsequently admitted telling a lie when he claimed that the money belonged to a member of his family.
The judge further highlighted that the applicant had not, during interview, mentioned his involvement in buying and selling stolen cars and reminded the jury that, subject to the general direction he had given, they could draw adverse inferences from his silence if they thought it right to do so.. He summarised the reasons given by the applicant for his failure to answer questions during interview and directed the jury as follows:
“If you think that those matters or any of them amount to a reason not to draw adverse inferences from his silence then do not do so. Otherwise, subject to the reference which I gave you earlier, you may do so if you think it right and fair to do so.”
On 4 December 2000, the applicant was convicted by the jury of conspiracy to supply Class A drugs.
On 5 February 2001, the applicant was sentenced to 24 years’ imprisonment.
The applicant appealed to the Court of Appeal arguing, inter alia, that the judge should not have given a direction to the jury on the drawing of adverse inference from silence in his case. His appeal was dismissed on 30 October 2003.
On 30 June 2006, the Criminal Cases Review Commission referred the applicant’s case to the Court of Appeal on the ground that the trial judge’s summing up in relation to adverse inferences was deficient when compared with the Judicial Studies Board guidelines. In particular, the trial judge had failed to identify the precise facts in respect of which adverse inferences could be drawn; he had left the impression that an adverse inference could be drawn from the mere fact that the applicant had remained silent at interview (rather than from his failure to mention a fact on which he had subsequently sought to rely at trial); and the judge had failed to clarify that if the jury believed the applicant’s reason for his silence, they could not draw an adverse inference.
On 12 March 2007, the Court of Appeal dismissed the appeal. In relation to the general direction to the jury, the court considered (at paragraph 12) that:
“...save for the fact that the judge did not give a clear direction in accordance with the judgment of the Court of Human Rights in Condron, no fair criticism can be made of the directions he gave. He made it abundantly plain to the jury that they had to identify facts which were not mentioned in interview but which were relied upon subsequently by a defendant and in other respects he accurately directed them as to the circumstances in which any adverse inference could be drawn.”
It later noted (at paragraph 14) that:
“...The mere fact ... that [the trial judge] did not list each of the facts [upon which the applicant relied at trial] themselves does not in our view derogate in any way from the overall direction which he gave which adequately identified the parts of the appellant’s case which consisted of the fact upon which he relied which was not mentioned in interview ... [T]he way the judge did identify the facts could in no way be described as amounting to a misdirection.”
As regards the trial judge’s summing up in relation to the applicant’s silence during the police interview and his reasons for that silence, the court found:
“[Counsel for the defence] can rightly criticise that part of the summing-up, firstly for failing to state that the appellant was under no obligation to answer any questions: he had a right to silence. Secondly, in our view he can criticise properly the fact that the judge appears to have been indicating to the jury that silence in interview could in itself entitle the jury to draw adverse inferences beyond the issues which he had in fact specifically identified ...”
However, the court took into account the fact that no criticism had been made of the judge’s summing up at the time and that, when the trial and summing up took place, the “attitude of the courts to the proper way to sum up in relation to this aspect of trials was developing”. It considered that the correct approach was to assess whether, having regard to the jury’s verdict on the direction as given, the jury would have been bound to convict if a proper direction had been given. If the answer was in the affirmative, then the verdict was safe. Finally the court referred to the earlier Court of Appeal judgment which had found the evidence against the applicant to be overwhelming and concluded that the criticisms “have the air of ex post facto criticisms which should not result in this appeal being allowed”.
On 22 February 2008, the applicant appeared before the Magistrates’ Court in respect of his non-payment of a confiscation order imposed following his conviction. The sum outstanding was GBP 42,800, composed of GBP 19,500 in “hidden assets” and GBP 23,300 in interest on that sum.
A term of imprisonment of one year, one month and 23 days was imposed, in default of payment, which represented one day’s imprisonment for every GBP 110 outstanding.
Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“(1) Where in any proceedings against a person for an offence, evidence is given that the accused–
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings;
...
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies
...
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
...”
Section 38(3) provides that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”
A number of domestic cases have considered the application of section 34 in practice. In R. v Cowan ([1996] 1 Criminal Appeal Reports 1), Lord Taylor CJ set out five “essentials” when making a direction on adverse inferences:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
Subsequently, in R. v. Argent ([1997] Criminal Appeal Reports 27), Lord Bingham CJ added a sixth condition that had to be met before section 34 of the 1994 Act would allow inferences to be drawn:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 is provided by the Judicial Studies Board, which provides specimen directions. The present specimen direction on section 34 is based on the five ‘essentials’ listed in R. v Cowan, as applied in subsequent section 34 cases before the domestic courts, including R v. Argent, and by this Court in John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996I and Condron v. the United Kingdom, no. 35718/97, ECHR 2000V).
The Judicial Studies Board specimen direction, which was last amended in December 2004, prior to the applicant’s second appeal, provides as follows (the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant’s trial):
“1. Before his interview(s) the defendant was cautioned ... He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.
2. As part of his defence, the defendant has relied upon (here specify the facts to which this direction applies - see Note 10). But [the prosecution say][he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that is so, this/This] failure may count against him. This is because you may draw the conclusion ... from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/has since invented his account/has since tailored his account to fit the prosecution’s case/(here refer to any other reasonable inferences contended for ... )]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it ...; but you may take it into account as some additional support for the prosecution’s case ... and when deciding whether his [evidence/case] about these facts is true.
3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him ...
4. (Add, if appropriate:) The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence (here set out the evidence ... ). If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.”


ITEMID: 001-23807
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: POLLANO v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Dora Pollano, is an Italian national who was born in 1934 and lives in San Giuseppe Vesuviano (Naples). She was represented before the Court by Mrs R. Filosa and Mr G. Sannino, lawyers practising in Naples.
The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a flat in Naples, which she had let to F.M.
In a writ served on the tenant on 16 November 1991, she communicated her intention to terminate the lease on expiry of the term on 30 June 1992 and summoned him to appear before the Naples Magistrate.
At the hearing of 4 December 1991, F.M. opposed alleging that the lease expired on 31 December 1995. The Magistrate declared its incompetence because of the value of the object of the proceedings and referred the parties to the Naples Tribunal.
On 23 January 1992 the action was resumed.
By a decision of 23 March 1994, the Naples Tribunal decided to extend the lease to 31 December 1997 pursuant to Law 359/1992, and ordered that the premises be vacated by 31 January 1998.
On 11 March 1998, a notice was served on the tenant requiring him to vacate the premises.
On 2 May 1998, the tenant was informed that the order for possession would be enforced by a bailiff on 13 May 1998.
On 13 May 1998, the bailiff made an attempt to recover possession, but it proved unsuccessful.
Pursuant to article 6 of Law 431/98, on 8 November 1999, the Naples Tribunal suspended the eviction proceedings until 2 January 2000.
On 9 December 1999, a second notice was served on the tenant informing him that the order for possession would be enforced by a bailiff on 15 January 2000.
Between 15 January 2000 and 4 April 2000, the bailiff made four attempts to recover possession, which proved unsuccessful, as the applicant was never granted the assistance of the police enforcing the order for possession.
On 26 May 2000, the applicant recovered possession of the flat.


ITEMID: 001-107978
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LUTOSHKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicant, Mr Aleksandr Petrovich Lutoshkin, is a Russian national who was born in 1963 and lives in Novosibirsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant received compensation for health damage from the State, following his participation in the emergency clean-up operations at the site of the Chernobyl nuclear plant.
By a judgment of 11 December 2003 the Kirovskiy District Court of Novosibirsk (“the District Court”) granted in part his claim for arrears and adjustment of his allowance relative to the minimum wage.
On 13 January 2004 the Novosibirsk Regional Court, which considered the above judgment on appeal, modified a part of the judgment and upheld the remainder on appeal.
On an unspecified date the applicant, who was not content with the amount of compensation granted and with the way the domestic courts had interpreted the applicable law, lodged an application for supervisory review of the judgment of 11 December 2003, as upheld on 13 January 2004.
On 17 December 2004 the Presidium of the Novosibirsk Regional Court granted his request and quashed the judgments of 11 December 2003 and of 13 January 2004 on account of erroneous interpretation of the domestic law by the lower courts. The case was remitted for fresh examination.
In the ensuing proceedings the applicant’s claims were granted by the District Court on 15 May 2007. That judgment was upheld on appeal by the Novosibirsk Regional Court on 14 June 2007 and enforced on 6 August 2007.


ITEMID: 001-94634
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KARASINSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1952 and lives in Poznań.
5. The applicant lives in a rented flat in a house in Poznań.
6. In 1995 a certain M.W. converted an attic above the applicant's flat into a flat and, without the required permit, moved in. She failed to carry out the necessary soundproofing work and, as a result, the applicant could be heard from her flat and is disturbed by noise coming from the flat above her.
7. In 1995 the applicant instituted administrative proceedings. She sought a demolition order in relation to the unauthorised flat.
8. On 28 June 1998 the mayor of Poznań gave a decision ordering the compulsory demolition “of the constituent elements of the flat” and imposing on the co-owners of the building an obligation to restore the attic to its former condition (przywrócenie stanu poprzedniego).
9. On an unspecified date the co-owners of the building and M.W. appealed against that decision.
10. On 24 September 1998 the Poznań Governor (Wojewoda Poznański) quashed part of the challenged decision in so far as it imposed obligations on the co-owners of the building and upheld the remainder of the decision.
11. On an unspecified date M.W. lodged a complaint with the Supreme Administrative Court. She requested that both decisions be declared null and void.
12. On 25 May 1999 the Supreme Administrative Court (Naczelny Sąd Administracyjny) gave judgment and, for procedural reasons, quashed part of the challenged decision in so far as it had set aside the first-instance decision. The court dismissed the remainder of the complaint, with the result that the coowners of the house became obliged to carry out the demolition and to restore the attic to its previous condition.
13. The obligations arising from the final judgment of the Supreme Administrative Court were not performed by the co-owners.
14. In November 1998 the administrative enforcement authority, namely the Poznań Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego), sent a reminder to the co-owners to perform their obligations imposed by the final and enforceable decision of the Poznań Governor. The reminder remained ineffective.
15. In September 1999 another reminder, also ineffective, was sent to the debtors.
16. On 12 October 1999 the Poznań Local Inspector of Construction Supervision imposed a fine on the co-owners for non-performance of their obligations (grzywna w celu przymuszenia). The fine was subsequently enforced but, as the co-owners had appealed against the decision imposing the fine and the Supreme Administrative Court quashed it, the amount paid had to be returned to the debtors.
17. On 18 August 2000 the applicant's lawyer complained of the inactivity of the administrative authorities to the Regional Inspector of Construction Supervision. He relied on the newly amended section 54(2) of the 1966 Administrative Enforcement Proceedings Act (ustawa o postępowaniu egzekucyjnym w administracji), which allowed creditors to lodge complaints about the excessive length of administrative enforcement proceedings. It appears that the applicant's lawyer's complaint remained ineffective.
18. On 21 March 2002, relying on the same ground as previously, the applicant's lawyer again complained about the excessive length of the administrative enforcement proceedings to the Regional Inspector of Construction Supervision.
19. On 30 April 2002 the Regional Inspector of Construction Supervision dismissed the complaint, finding that the enforcement proceedings had been carried out properly and without undue delay. The Regional Inspector mentioned the Supreme Administrative Court's judgment, according to which the “necessity of enforcing the demolition order cannot lead to the carrying out of unlawful activities”.
20. On 7 March 2003 the applicant's lawyer lodged a further complaint about the excessive length of the administrative enforcement proceedings with the Regional Inspector of Construction Supervision.
21. This complaint was not examined within the statutory time-limit. Therefore, on 6 May 2003, the applicant lodged an appeal with the Chief Inspector of Construction Supervision, complaining that the administrative case had not been examined within the prescribed time-limit.
22. On 21 May 2003 the Chief Inspector of Construction Supervision ordered the Regional Inspector to examine the complaint.
23. On 22 May 2003 the Regional Inspector of Construction Supervision dismissed the complaint.
24. On 2 June 2003 the applicant appealed against that decision.
25. On 9 July 2003 the Chief Inspector of Construction Supervision upheld the decision.
26. On 4 August 2003 the applicant lodged a complaint against that decision with the Supreme Administrative Court.
27. Following the reform of the administrative courts in Poland, the complaint was transferred to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny).
28. On 28 January 2005 the Warsaw Regional Administrative Court gave judgment and dismissed the complaint. The court found that the decisions of the administrative authorities at first and second instance dismissing the applicant's complaint about the excessive length of the enforcement proceedings had been given in accordance with the relevant provisions. It further found that the administrative authorities had conducted the proceedings “without undue delay” and that the enforcement could not be performed because M.W. still lived in the flat in question and had refused to leave it. Therefore, the persons responsible for enforcement of the final decision had to institute civil proceedings for termination of the lease agreement with M.W. and the proceedings were still pending, which constituted an objective obstacle to enforcement.
29. Irrespective of the official complaints about the excessive length of the enforcement proceedings lodged in accordance with the 1966 Administrative Enforcement Proceedings Act, the applicant sent reminders and letters to the administrative authorities, urging them to act (letters of 13 March 2003, 30 May 2003 and 17 November 2003). These letters, however, remained unanswered.
30. Section 54(2) of the 1966 Administrative Enforcement Proceedings Act (ustawa o postępowaniu egzekucyjnym w administracji) provides, in its relevant part, that a complaint about the excessive length of enforcement proceedings may also be lodged by a creditor who is not the administrative authority responsible for conducting the enforcement proceedings.
31. Section 48(1) of the Construction Act of 7 July 1994 (Prawo budowlane), as applicable at the material time, provided, in so far as relevant, as follows:
“The relevant authority shall order that a building or part of a building be demolished if it is under construction or has been constructed without an appropriate permit or notification thereof, or contrary to the building permit...”
VIOLATED_ARTICLES: 6


ITEMID: 001-89905
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TRUFANOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1956 and lives in Voronezh, a town in the Voronezh Region.
5. On 30 October 2000 the Kominternovskiy District Court of Voronezh awarded the applicant against a local welfare authority 2,289.68 Russian roubles (RUB) in child benefit arrears. This judgment became binding on 10 November 2000 but was not enforced immediately.
6. On 7 October 2003 the District Court awarded the applicant against the regional authority RUB 8,774.01 in child benefit arrears. This judgment became binding on 23 October 2003 but was not enforced immediately.
7. On 19 June 2007 the two judgments were enforced.
8. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-107997
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MESIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mr Jasmin Mešić, is a Slovenian national who was born in 1979. He was represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been serving his sentence in the closed section of Dob Prison since 24 July 2006.
As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), no. 5711/10 etc., 27 September 2011.
The applicant has been held in different cells. Until 21 November 2009 he was held in Block 4 in cells measuring 59.25 square metres, in which the number of inmates varied between thirteen and sixteen (3.7 to 4.5 square metres of personal space available to each inmate). During this time he was on five occasions placed in Block 1 – for about thirteen months altogether, mostly for security reasons. There, he was held in cells accommodating no more than four inmates at a time, while most of the time each inmate had more than seven square metres of personal space, and never less than 3.9. The applicant was held in the same conditions in Block 1 between 21 November 2009 and 13 February 2010. Afterwards he was placed in Block 3, where he was held in cells measuring 59.89 square metres and accommodating between thirteen and fourteen inmates (4.2 to 4.6 square metres of personal space available to each inmate).
The applicant has completed his primary education in prison, and is continuing with secondary education, including food-preparation and catering classes. During the initial months of his imprisonment he worked in the Pohorje Public Institute (agricultural activities and metalwork), later he attended work therapy sessions.
The applicant suffers from hepatitis C. Further to the results of the blood test which confirmed that he had this disease, received on 17 August 2006, he was referred to a specialist in order to undergo an examination. He underwent an abdominal ultrasound in December 2006. On 29 March 2010, following the applicant’s notifying the prison doctor about his hepatitis C infection, he was again referred to the specialist and underwent a further abdominal ultrasound. The doctor specialised in this field found that the applicant was chronically ill with hepatitis C, and should undergo appropriate medical treatment. A liver biopsy was scheduled for October 2010, but was postponed. Between 6 and 8 December 2010, the applicant was hospitalised in General Hospital Novo Mesto in order to undergo a liver biopsy.
According to a report dated 13 August 2010 drawn up by a prison doctor, the applicant had been treated in the prison clinic on ninety-nine occasions for various medical problems. He had not raised the issue of hepatitis C when visiting the prison doctor until March 2010. The additional report by the aforementioned doctor dated 7 December 2010 read, as far as relevant, as follows:
“[The applicant] had not shown interest in continuing treatment and had not mentioned anything connected to the treatment of hepatitis C until 29 March 2010. The disease had not manifested itself during that period. In the opinion of the representative for the patient’s rights, M. P, ... the patient’s rights under the Patient Rights Act had not been breached [in the applicant’s case]. Section 54 of the aforementioned Act states that in order to obtain health care of good quality, the patient should actively participate in his or her treatment. Jasmin Mešić certainly had not actively participated in his treatment.”
The applicant had also been visiting the prison psychiatrist and had for a while been undergoing methadone-maintenance treatment.
According to the information submitted by the Government, in 2008 eighty-one prisoners in Dob prison were tested for hepatitis B and C, and seven were tested for HIV. Two were diagnosed with hepatitis B, and fifteen with hepatitis C. In 2009 sixty-five prisoners in Dob prison were tested for hepatitis B and C, while eight were tested for HIV. One was diagnosed with hepatitis B, and seven with hepatitis C. No one was diagnosed with HIV.
For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), as well as Lalić and Others, cited above.
In addition, the Patient Rights Act (Official Gazette no. 15/2008, entry into force on 26 August 2008) provides for procedures for dealing with complaints concerning, inter alia, inadequate medical treatment or care. In accordance with the provisions of that Act, a patient can lodge a complaint directly with a health-care provider. If unsatisfied, he or she can complain to the Commission for Protection of Patients Rights. Ultimately, a patient whose complaint has been unsuccessful can challenge the decisions made in his or her case before the Administrative Court. The Act also regulates the work of the Representative for Patients’ Rights, whose main role is to assist, provide advice to and represent patients in the exercise of their rights provided therein.


ITEMID: 001-60423
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SAKELLAROPOULOS v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Françoise Tulkens
TEXT: 8. The applicant had inherited half a mine producing fluoride, which on 28 January 1985 was assessed by an inspector. According to the Mining Code, minerals are owned by the State and may be assigned by the State to any person, in accordance with the provisions of the law. The main obligation of a mine owner is the exploitation of the mine (Articles 102 and s.). When the competent public service establishes that no exploitation or mining research is carried out in a mine in accordance with the provisions of the law, it forwards the pertinent particulars to the Mines Board which, after hearing the concerned parties, decides on the forfeiture of the right of ownership (Article 121).
9. On 30 April 1986 the applicant asked the Ministry of Industry not to declare that he had forfeited his rights over the mine. He claimed that the mine’s production had dropped because its exploitation had provisionally become unprofitable.
10. On 17 July 1986 the Ministry of Industry declared that the applicant and the other two owners of the mine had forfeited their rights over it because they had remained idle during three years, between 1981 and 1983. During that period there was a crisis in the market as opposed to complete lack of demand for the mineral in question, as the applicant had claimed. The applicant was not given any compensation.
11. On 25 August 1986 the applicant and the two other owners lodged an appeal (προσφυγή) against the decision of the Ministry before the first-instance administrative court (Διοικητικό Πρωτοδικείο) of Athens. They alleged that the Ministry’s decision did not contain adequate reasons. They pointed out in this connection that between 1981 and 1983 the mine was not idle. Its production had simply fallen because there was a crisis in the fluoride market. They also alleged that the inspector’s report of 28 January 1985, on which the Ministry’s decision was based, had not examined their claims. Finally, they alleged that the decision was unlawful because they should have been given an extra year in which to exploit the mine.
12. On 30 October 1987 the court rejected the appeal on the grounds that the mine had indeed remained idle, that it was up to the appellants to prove that there was a crisis in the market and that the fact that they had not been given an extra year was an irrelevant consideration under the relevant rules. This judgment was served on the applicant on 8 November 1998.
13. On 5 December 1988 the applicant and the two other owners appealed. A hearing was set down for 3 July 1990. On that date, on the applicant’s request, the hearing was postponed for 22 November 1990.
14. On 14 December 1990 the Administrative Court of Appeal (Διοικητικό Εφετείο) of Athens ordered the production of a number of documents including the report of 28 January 1985. On 29 November 1991 it rejected the appeal considering, inter alia, that the crisis in the relevant market could not justify the idleness of the mine, as the report of 28 January 1985 had wrongly accepted. The idleness could be justified only if there was no demand for the mineral in question whatsoever, a fact which the appellants did not prove. Finally, there was no obligation under the law for the authorities to grant the applicant an extra year. This judgment was served on the applicant on 21 July 1992.
15. On 17 August 1992 the applicant and the two other persons appealed in cassation. At first, the hearing was set down for 24 March 1993 but it was continuously postponed. A hearing was set down for 24 April 1996. On that date, the applicant appeared before the court and announced that one of the other appellants had died. The hearing was postponed and was finally held on 4 December 1996.
16. On 13 July 1998 the Council of State rejected the appeal considering, inter alia, that it was for the lower courts to assess the report of 28 January 1985.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110301
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BAZELYUK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Anatoliy Oleksandrovych Bazelyuk, is a Ukrainian national who was born in 1949 and lives in Odessa, Ukraine.
On 30 October 2006 the local electricity supply company, O., cut off the electricity in the applicant’s house, allegedly because the electricity counter in his house was not properly sealed so the electricity used by him was not being properly metered. In November 2006 the applicant lodged a civil claim before the Kominternivskyy District Court of the Odessa Region against O., requesting that his house be re-connected to the electricity network, and claiming 3,000 Ukrainian hryvnas (UAH) (at the material time around 445 euros (EUR)) in compensation for non-pecuniary damage. The applicant alleged that without electricity he had not been able to properly store food, to cook and to relax in the evening. He also claimed costs and expenses.
On 16 April 2007 the court found in part for the applicant. The court ordered O. to re-connect the applicant’s house to the electricity network, and awarded him UAH 1,500 in compensation for non-pecuniary damage (at the material time around EUR 212) and UAH 39.50 (at the material time around EUR 6) in costs and expenses.
On 21 August 2007 the Odessa Regional Court of Appeal upheld this decision. O. appealed in cassation. The applicant stated that he had not been informed about it and had had no opportunity to comment on the defendant’s appeal in cassation.
On 30 July 2008 the Supreme Court of Ukraine, in the absence of the parties, quashed the above decisions in so far as they had awarded the applicant compensation for non-pecuniary damage, and rejected his claim for damages.


ITEMID: 001-57750
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF MONACO v. ITALY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Interest - claim dismissed
JUDGES: C. Russo;N. Valticos
TEXT: 9. Mrs Angelina Monaco is an Italian national and resides at Subiaco (Rome). She is unemployed. The facts established by the Commission pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as follows (paragraphs 16-20 of its report):
"16. On 28 February 1985 the applicant took proceedings against the Istituto Nazionale della Previdenza Sociale (INPS) before the Rome magistrate’s court (pretore) in order to establish her disability pension right.
17. The investigation began at the hearing of 5 June 1985, when the magistrate’s court called for a medical opinion. On 25 October 1985 the medical opinion was lodged with the registry, and the hearing of 30 October 1985 before the magistrate’s court ended with the dismissal of the applicant’s claim. The text of the decision was lodged with the registry on the same day.
18. On 16 September 1986 the applicant appealed against the above decision and on 29 September 1986 the presiding judge of the Rome District Court fixed the hearing before the competent court chamber for 19 October 1988. On that date, the court called for a further medical opinion and adjourned the case to 1 March 1989.
19. On a date which has not been specified" - according to the information provided to the European Court by the participants in the proceedings the date in question was 1 March 1989 - "the Court allowed the applicant’s claim. The text of the decision was lodged with the registry on 27 November 1989.
20. It does not appear that an appeal was filed against that decision in the Court of Cassation."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1