ITEMID: 001-72590
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRASNIKI v. THE CZECH REPUBLIC
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1971 and lives in Skopje (“the former Yugoslav Republic of Macedonia”).
9. On 24 April 1997 the applicant was accused of having committed the offence of the unauthorised production and possession of narcotics and poisonous substances between January and April 1997, contrary to Article 187 § 1 of the Criminal Code as in force at the material time.
10. According to the Government, a witness using the fictitious name of “Jana Charvátová” was examined for the first time on 24 April 1997, having been contacted by the police in connection with their investigation into the applicant’s criminal activities. The witness stated, inter alia, that “she want[ed] to testify because she kn[ew] what heroin c[ould] do and that she want[ed] Teplice to be free of drug dealers” and that “for great fear for her own life she w[ould] testify provided that anonymity w[ould] be granted to her, because after the police had detained most of former dealers, the Yugoslavs threaten[ed] that if anybody w[ould] ‘rat’ on the dealers and they w[ould] find it, they w[ould] ‘annihilate’ him or her”.
11. The applicant stated that the record of the interview in his criminal file was not a statement signed by the witness, but a so-called official record (úřední záznam) drawn up and signed by the police officer afterwards. He further maintained that it was not clear from that record whether “Jana Charvátová” had been examined or whether the report had been drawn up before or after the applicant was charged. He contended that such a record could not be used as evidence for the prosecution.
12. In the course of the pre-trial proceedings the applicant denied his guilt, stressing that he was a heroin addict and that the drugs found in his possession were for his own use only. “Jana Charvátová” and another witness, using the fictitious name of “Jan Novotný”, were questioned by the Teplice District Investigation Office (okresní úřad vyšetřování) on 11 July 1997. The applicant’s lawyer attended the interview, the applicant not being present. Witness “Jana Charvátová” said:
“... as for Hasan Krasniki, I am not familiar with his surname, I got in touch with him some time in the winter of last year ... my boyfriend, who is also a drug addict, sent me to see him.
I wish to correct the facts concerning the individual named Hasan Krasniki. As I have already said, I am not familiar with his surname. I know, or more precisely, I remember the forename: my boyfriend sent me to Pikes in Trnovany and told me to find a certain Hasan in order to get 0.5 grams of heroin. ...
As for Hasan, I was still buying narcotics ... from him ... last year. I do not remember seeing him since then. As for his description, I can say that he is about 170 cm tall, slim with short dark blond hair ... and I recall that he wore blue jeans and a dark jacket.”
13. In reply to a question put by the applicant’s lawyer, the witness said that she was giving evidence as an anonymous witness because she owed money for drugs. In reply to a question put by the investigating officer as to whether the persons to whom she owed money had ever threatened or beaten her, she replied that a Yugoslav to whom she had owed money for drugs had beaten her up and that there had been similar incidents.
14. She was shown a photograph album with ten photographs and was asked to examine them. She stated:
“... I do not know the name of the person in photograph no. 5 ... I was buying narcotics from him ... in Pikes in Trnovany some time after Christmas ...; he then moved to Pikes near the railway station. It was some time in winter when I last saw him.”
15. In reply to a question put by the applicant’s lawyer, “Jana Charvátová” said that “Hasan” from whom she had bought heroin around Christmas 1996 was not among the individuals in the photographs. In reply to the investigating officer’s question as to whether she knew somebody called “Jura” or “Džura” and whether he was in any of the photographs, she answered:
“I am not familiar with the name “Jura”, but rather Džuro. I have the impression that I was buying heroin from somebody like him; I’m sure I was buying heroin from him in Pikes in Trnovany; it was some time in winter, last year or this year, I do not know precisely. ... I think that must be him in photograph no. 1.”
16. According to the applicant, the chronology of the examination of “Jana Charvátová” was as follows: the witness was asked about Hasan Krasniki and therefore she started to speak about a person called Hasan first. She described him and, after that, she was shown the photograph album and then incidentally mentioned that she knew most of the persons shown in the photographs including the applicant. The official record of the interview stated that “Jana Charvátová” was questioned about Hasan Krasniki, alias “Jura” or “Džuro”, during the examination of 11 July 1997, and that she identified “Džuro” as being the individual in photograph number one.
17. Interviewed on the same day, witness “Jan Novotný” stated:
“I know quite a lot of Yugoslavs and I can definitely speak about the person concerned - I know him by his nickname Džuro.
I know that he was here about four years ago, then he left and reappeared some time at the beginning of this year. He was selling heroin for about three months in the Pikes gambling club in Trnovany; ... he moved to Pikes near the railway station for a while. I could buy 10 g of heroin altogether from him ... I last saw Džura three months ago, so some time in the second half of April or at the beginning of May ... As for his description, I can say that he was about 25 years old, some 170 cm tall, slim, with short dark blond hair. ...”
18. When presented with a photograph album, “Jan Novotný” stated:
“I clearly recognise the person in photograph number five: it is Džura from whom I was buying heroin in the Pikes gambling club in Teplice, in Masarykova Street and near the railway station from the beginning of this year to about April or the beginning of May.”
19. The applicant’s lawyer asked the witness why he was so afraid and why he wished to remain anonymous. The witness stated that Yugoslavs were a temperamental people, that they had threatened him when he had wanted to buy drugs from someone else and that he had been concerned about the safety of his family. To the lawyer’s further question whether the person in photograph number five had ever threatened him, the witness replied in the negative. In reply to the lawyer’s last question, “Jan Novotný” said more precisely that he had bought heroin from the man in photograph number five after the New Year, most recently around mid-April.
20. The police case file was sent to the Teplice District Prosecutor’s Office (okresní státní zastupitelství), which on 12 September 1997 filed an indictment against the applicant with the Teplice District Court (okresní soud). The prosecutor charged the applicant with having distributed heroin in Teplice during the period between January 1997 and 23 April 1997, with having sold at least twenty packets each containing 0.5 grams of heroin to “Jan Novotný” and with having sold the same drug to “Jana Charvátová”. The prosecutor suggested that the two anonymous witnesses as well as witnesses K. and S. give evidence at the trial and that the police records on the photograph-based recognition of the applicant be read out.
21. On 18 November 1997 the applicant’s trial began in the District Court. The applicant entered a plea of not guilty.
22. The record of the hearing shows that, under Article 209 § 1 of the Code of Criminal Procedure (“the CCP”), the presiding judge heard the anonymous witness “Jan Novotný” outside the courtroom and out of sight of the applicant and his counsel, who were able to put questions to the witness through the presiding judge. The witness stated that the applicant was the person who had sold drugs to him and that he had bought heroin from the applicant some time in early 1997. In his testimony, the witness also stated that he was cured and was no longer addicted to any drug. In reply to several questions put by the applicant’s lawyer, the witness stated that the applicant had sold drugs some time ago. He had then disappeared and had started selling them again in 1997. He also said that he had been buying drugs from the applicant during a one-month period in 1997 and that he had seen him selling heroin to other people during the first three months of 1997. He described the applicant as a man of about 175-180 cm in height, slim, with straight dark hair. He added that, unlike at present, he had not been good at recalling the colour of hair at that time. In reaction to the anonymous witness’s testimony, the applicant claimed that it was not true.
23. The court then read out the witness statements of K. and S., an expert report and other written evidence. It adjourned the proceedings until 25 November 1997 with a view to summoning “Jana Charvátová”.
24. Another hearing was held on 9 December 1997. It was recorded that the investigating authorities had reported by telephone that, at the time of the hearing, “Jana Charvátová” could not be found at her home. The proceedings were therefore adjourned until 14 January 1998. The police were instructed to conduct a search to find out whether the witness was staying at her home address.
25. According to the record of the hearing of 14 January 1998, the District Court read out the police reports of 9 and 17 December 1997 on the unknown whereabouts of “Jana Charvátová”. In accordance with Article 211 § 2 (a) of the CCP, her witness statement from the pre-trial police records was read out. In reaction to the witness’s testimony, the applicant claimed that he had not been in the Czech Republic at the relevant time.
26. In a judgment given on the same day, the court found the applicant guilty of the unauthorised production and possession of narcotics and poisonous substances, and sentenced him to two years’ imprisonment, as well as expulsion from the Czech Republic for an unlimited period of time. It held that, from January 1996 to 23 April 1997, the applicant had been selling heroin in “small envelopes”. He had sold at least twenty “envelopes” of heroin to “Jan Novotný”, and on a number of occasions during this time he had also sold heroin to “Jana Charvátová”.
27. The applicant maintained that he had not been in the Czech Republic at the relevant time and that the drugs found in his possession had been for his personal use.
28. The District Court based its finding of guilt exclusively on the testimonies of the two anonymous witnesses. It stated that the confidentiality of their identities prior to their interview in order to safeguard their security was justified under Article 55 § 2 of the CCP, having regard to the seriousness of the offence at issue and the witnesses’ fear of testifying in open court.
29. The District Court stated that anonymous witness “Jan Novotný” had stated that he had bought at least twenty “envelopes” of heroin from the applicant and that he had recognised the latter from photographs, both in the pre-trial proceedings and at trial, as the person who had been selling heroin not only to him, but also to other persons.
30. As regards “Jana Charvátová”, the court referred to the police report stating that the witness could not be found at her place of residence and that the search for her had been unsuccessful. It mentioned that she had testified in the pre-trial proceedings in the presence of the applicant’s lawyer and had said that she had been buying heroin from the applicant, whom she had recognised from photographs.
31. The court also had regard to a photocopy of the applicant’s passport, finding that he had arrived in the Czech Republic on 17 March 1997 from Bulgaria. According to the expert psychiatric report, the applicant was, inter alia, a drug addict who should have been aware of the dangerousness of his criminal activity for society and could have controlled his conduct. An expert examination of the substance found on the applicant indicated that it was heroin.
32. The court, having assessed all the relevant evidence, held that the testimonies of the anonymous witnesses were trustworthy and consistent and that they incriminated the applicant. It also stated that the witness “Jan Novotný” had recognised the applicant in both the trial and pre-trial proceedings. It concluded that the evidence adduced by the applicant - the copy of his passport and a plane ticket showing that he was not in the Czech Republic for most of the period during which he was alleged to have committed the offence - was not sufficient to rebut the strength of the case against him. It seems that the court did not rely on the witness statements of K. and S.
33. On 2 February 1998 the applicant appealed, claiming that he had not committed any criminal offence and that the heroin found in his possession had been for his personal use only. He also challenged the District Court’s reliance on the testimonies of the anonymous witnesses whose statements had been misused to his detriment. The applicant further complained of the failure of both the investigating authorities and the District Court to resolve material contradictions in the statements of the anonymous witnesses.
34. On 9 March 1998 the Ústí nad Labem Regional Court (krajský soud) dismissed the applicant’s appeal, finding his objection to the use of anonymous testimony unsubstantiated. It noted that both anonymous witnesses had been interviewed in the pre-trial proceedings and that the statement of “Jana Charvátová” had been read out because she could not be located at her home address. The court further noted that witnesses K. and S. had refused to testify at trial.
35. The court found that, owing to the nature of the criminal activity, the witnesses had been recruited from among drug users and drug addicts, who were “much more vulnerable”. It concluded that the concerns which the two anonymous witnesses had expressed to the investigating authorities had resulted in the correct procedural steps being taken, in accordance with Article 55 § 2 of the CCP, including the decision to interview them under fictitious names.
36. As regards the inconsistency in the witnesses’ statements, the Regional Court stated that witness “Jana Charvátová” had recognised the applicant from the photographs as the person from whom she had bought heroin, but had not known his name. She had described a drug dealer whom she had known by the name “Hasan” and who had not corresponded to the description of the applicant. The court held that the testimony given by witness “Jan Novotný” had not been contradictory and that he had repeatedly described from whom, where and when he had bought heroin. He had usually seen the applicant in a smoke-filled gambling hall under subdued lighting and had not been concentrating on remembering details of the applicant’s appearance, but rather on obtaining drugs. The court held that his inability to describe the correct hair colour “did not play an important role”. It fully endorsed the District Court’s findings of fact and law.
37. On 6 May 1998 the applicant lodged a constitutional appeal (ústavní stížnost), claiming a violation of his rights as guaranteed by Article 6 § 3 (d) of the Convention. He alleged that there had been no legal basis for the use of the anonymous witness testimony and that the authorities had put the defence at a substantial disadvantage, contrary to the principle of equality of arms. He complained that his conviction had been based solely on the testimonies of anonymous witnesses.
38. On 3 March 1999 the Constitutional Court (Ústavní soud) dismissed the applicant’s appeal as unsubstantiated. It held that statements by anonymous witnesses could only be used in evidence if the principle of subsidiarity was observed, namely if there were no other means of ensuring the safety of a witness and any limitation on the rights of the defence had been minimised. The court recognised that there was a conflict between, on the one hand, the constitutional right to defend oneself and, on the other hand, the need to protect the health and life of witnesses. It held that this conflict could be resolved only on the basis of the principle of proportionality.
39. The Constitutional Court did not accept the applicant’s allegation that the anonymous witness procedure had been misused to his detriment. It held that, to the extent that defence rights might found that, according to official police records, the two anonymous witnesses had been interviewed in the presence of the applicant’s lawyer, who had had the opportunity to question them. The court concluded that, having regard to the photograph-based recognition of the applicant before the pre-trial authorities, as well as before the trial court, no doubt could be cast on the legality and fairness of the proceedings. It held that any disadvantages under which the defence might have operated did not give rise to a question of unconstitutionality, as it was the content of the witnesses’ evidence rather than their identity that was relevant, notwithstanding the fact that the courts had not provided sufficient reasons for having adopted the procedure laid down in Articles 55 and 209 of the CCP.
40. On 18 April 2005 the Minister of Justice lodged a complaint in the applicant’s favour, alleging a breach of law (stížnost pro porušení zákona). He based his complaint on the following grounds:
“... [the courts] did not sufficiently offer the necessary guarantees to ensure a fair trial as [the applicant’s] lawyer could not see both anonymous witnesses during their interviews in order to learn their identity,
the prosecuting authorities did not examine the question whether it was necessary to conceal the identity of the witnesses,
before the decision to conceal the identity of the witnesses was taken, the defence was never given an opportunity to raise objections concerning their credibility or the justification of the alleged threats against them which might justify their anonymity,
the courts did not specify ... that they knew the true identity of both witnesses and found that the accused represented a serious threat to the life and liberty of both anonymous witnesses,
[the applicant’s] lawyer could not verify the credibility of the anonymous witnesses and their statements, and the courts did not do so either,
inadequate conditions during the identification of the accused from photographs deprived the witnesses of their credibility, and
the conviction of the accused was based exclusively on the statements of the anonymous witnesses.”
41. In a decision of 31 May 2005 the Supreme Court (Nejvyšší soud) dismissed the complaint, relying on and sharing the legal opinions of the Constitutional Court. It added that Article 55 § 2 of the CCP did not provide for the right of counsel to see anonymous witnesses and to be informed of their identity. The Minister’s two specific arguments in this connection had therefore been submitted contra legem.
42. Article 187 § 1 provided that anyone who manufactured, imported, exported, transported, or kept or acquired for a third party, narcotics or poisonous substances, without authorisation, would be punished by imprisonment of up to three years or by a fine.
43. Under Article 55 § 2 of the CCP, where the circumstances indicated that a witness or a person close to the witness ran an obvious risk of bodily harm or other serious danger of interference with his/her fundamental rights in testifying, and when it was not possible to ensure the effective protection of the witness in another manner, the authorities were required to take measures to prevent the visual identification of the witness. The witness’s name and surname as well as his/her other particulars were not recorded in the statement, but were kept separate from the criminal file and known only to the authorities. The witness had to be informed of the right to have one’s identity concealed and to sign the statement using a fictitious forename and surname, by which the person would subsequently be identified. If the reasons for concealing the witness’s identity and for separating the witness’s particulars ceased to exist, that information would be attached to the criminal file and the witness’s identity would no longer be concealed.
44. Under Article 209 § 1, the president of the division was to ensure that any witness who had not yet testified did not attend the interview of the defendant or of other witnesses. If there was any doubt that the witness would not testify truthfully in the presence of the defendant, or if the witness or persons close to him or her were at risk of bodily harm, death or any other serious danger, the president of the division was required to take appropriate measures to ensure the safety or to conceal the identity of the witness, or to order the defendant to leave the courtroom while the witness was being questioned. However, once having returned to the courtroom, the defendant had to be informed of the content of the witness’s testimony and be given the opportunity to comment on it, and, without meeting the witness in person, might put questions to the witness through the president of the chamber. When the witness’s identity was to remain confidential, the president of the chamber was required to take measures in order to prevent the true identity of the witness being revealed.
45. Article 209 § 2 provided that when a witness whose identity had been concealed was examined at trial, the court, acting of its own motion, was required to take all necessary steps with a view to verifying the witness’s credibility.
46. Article 101 § 1 provided, inter alia, that prior to examination, the identity of a witness and his or her relationship to the accused, if any, had to be ascertained. The witness was to be advised that he or she had the right to refuse to give testimony and, if need be, to proceed under Article 55 § 2. The witness was also to be warned to tell the truth and nothing but the truth. At the same time, instructions had to be given on the importance of the testimony with regard to the general interest and on the criminal law consequences of perjury. The second paragraph provided, inter alia, that at the beginning of the examination, the witness would be asked about his or her connection with the case at issue and any relationship to the parties and,
if need be, about other circumstances that might be important for ascertaining his or her reliability.
47. The plenary assembly of the Constitutional Court declared unconstitutional the version of Articles 55 § 2 and 209 of the CCP then in force. It held that the criteria for assessing whether the use of anonymous witnesses was constitutional and in line with the principle of subsidiarity were as follows: first, anonymity may only be granted if the witness cannot be provided with reliable protection in any other way; secondly, any constraints on the exercise of the rights of the defence resulting from the hearing of evidence from anonymous witnesses must be kept to a minimum.
48. In this case, the court found the criminal proceedings unfair because the appellant’s identification had been based on photograph albums alone and the witness had not described the appellant prior to the identification procedure. Concerning the use of anonymous witnesses, the Constitutional Court concluded that the trial court had not verified the credibility of the witnesses as required by Article 209 § 2 of the CCP. The trial court had only declared that the witnesses had no “outstanding accounts” with the appellant and hence there was no reason for them to take revenge against him and to incriminate him falsely. Such a declaration could not in itself mean that the trial court had complied with Article 209 § 2 of the CCP. It should have examined and verified the relationship between the witnesses and the appellant, checked the latter’s objections to their credibility and produced all necessary evidence, for example the full transcript of the criminal records of the witnesses, the reports of the local police and administrative authorities on the reputation of the witnesses, and the expert psychological reports on the witnesses, under Article 118 of the CCP. The Constitutional Court quashed the decisions of both the trial and appellate courts.
49. The Appendix to Recommendation No. R (97) 13 of the Committee of Ministers of the Council of Europe, concerning the intimidation of witnesses and the rights of the defence, includes the following passage:
“...11. Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that:
– the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened; and
– the evidence is likely to be significant and the person appears to be credible.
12. Where appropriate, further measures should be available to protect witnesses giving evidence, including preventing the identification of the witness by the defence, for example by using screens, disguising the face or distorting the voice.
13. When anonymity has been granted, the conviction shall not be based solely or to a decisive extent on the evidence of such persons.
14. Where appropriate, special programmes, such as witness protection programmes, should be set up and made available to witnesses who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses, their relatives and other persons close to them.
15. Witness protection programmes should offer various methods of protection; this may include giving witnesses and their relatives and other persons close to them a change of identity, relocation, assistance in obtaining new jobs, providing them with bodyguards and other physical protection.
16. Given the prominent role that collaborators of justice play in the fight against organised crime, they should be given adequate consideration, including the possibility of benefiting from measures provided by witness protection programmes. Where necessary, such programmes may also include specific arrangements such as special penitentiary regimes for collaborators of justice serving a prison sentence.”
50. Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at the domestic level following judgments of the European Court of Human Rights, adopted by the Committee of Ministers of the Council of Europe on 19 January 2000, provides as follows:
“... Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);
Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms (“the Convention”) the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (“the Court”) in any case to which they are parties and that the Committee of Ministers shall supervise its execution;
Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum);
Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system;
Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum;
I. Invites, in the light of these considerations, the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum;
II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where:
(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and
(ii) the judgment of the Court leads to the conclusion that
(a) the impugned domestic decision is on the merits contrary to the Convention, or
(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-95001
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LOBACH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: The applicant, Ms Klavdiya Mykolayivna Lobach, is a Ukrainian national who was born in 1934 and lives in the village of Vodoslavka, Kherson region, Ukraine. She was represented before the Court by Ms N. Petrova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
At around 4 p.m. on 30 December 2000 the applicant’s husband was found dead in his home.
The same day the Novotroitskiy District Prosecutor’s Office (“the DPO”) instituted proceedings into the murder and ordered a forensic medical examination.
On 30 and 31 December 2000 thirteen neighbours, relatives and friends of the deceased were questioned.
On 31 December 2000 the forensic examination concluded that the applicant’s husband had received multiple bodily injuries and had been strangled. His death had occurred during the night of 29 to 30 December 2000.
On 2 January 2001 the DPO questioned a further witness and issued a search warrant in respect of Mr S. and Mr D.
On 4 January 2001 Mr D. was interrogated.
On 5 January 2001 five more witnesses were questioned.
On 8 January 2001 the DPO ordered the forensic examination of footprints and fingerprints that had been found at the scene of the crime. The examination reports were completed on 10 January (for the footprints) and 31 January 2001 (for the fingerprints).
On 9 January 2001 two more witnesses were questioned.
On 10 January 2001 Mr D. was interrogated and a reconstruction was held.
On 15 January 2001 the investigator granted the applicant aggrieved party status. The applicant was questioned as the aggrieved party.
On 16 January 2001 Mr D was identified by two witnesses as a person who had asked about the deceased’s place of residence on the eve of the crime – 28 December 2000.
On 17 January 2001 the investigator decided not to prosecute Mr D. for murder and robbery as he had an alibi for the time of murder. However, the investigator nevertheless considered that Mr D., who had arrived at the village with a certain Mr R. and Mr K. on 28 December 2000 and had enquired about the deceased’s place of residence, had to have been aware that this information was wanted by Mr R. and Mr K. for an illegal purpose, such as burglary. Mr D. was therefore charged with complicity in burglary.
On 18 January 2001 Mr D. was questioned as an accused.
On 20 January 2001 the investigator arranged for the formal identification of a pair of running shoes by two witnesses, who testified that they belonged to Mr K.
On 25 January 2001 another footprint examination was ordered. It was completed on 12 February 2001 and established that one of the footprints at the scene of the crime had been left by a sports shoe belonging to Mr K.
On 12 February 2001 the investigator issued resolutions to bring charges against Mr K. and Mr R. of murder for financial gain. The prosecutor issued an arrest warrant with respect to Mr K. and Mr R. and placed them on a wanted list.
On 27 February 2001 the investigation was suspended since the whereabouts of the suspects were unknown.
On 22 March 2001 the investigator ordered a search of Mr K.’s home. The search was carried out the same day.
On 12 June 2001 the investigator issued a warrant to monitor the telegraphic and postal correspondence of Mr K.’s relatives. On 14 June 2001 the warrant was sent to the Head of the Genichesk Post Office.
On 3 August 2001 five more witnesses were questioned.
On 19 August 2001 Mr R. surrendered voluntarily to the prosecutor and was interrogated. At the same day the investigator decided to discontinue the criminal proceedings against Mr R for burglary and murder for lack of evidence. However, on 4 December 2001 that decision was quashed.
According to the applicant, on the advice of the investigator, she paid 500 United States dollars to a lawyer G. to represent her in the proceedings but never signed a formal agreement with the lawyer.
On 16 October 2001 the Novotroitsky District Court of Kherson examined the case against Mr D. and remitted it for additional investigation; it instructed the investigator to arrange a confrontation between Mr K. and Mr R. Mr D. was released on condition that he did not abscond. The applicant was not present at the hearing but the lawyer G. acted on her behalf, allegedly without her authorisation.
On 19 October 2001 the Novotroitsky District Prosecutor’s Office appealed against the decision of 16 October 2001. They maintained, in particular, that it was not possible to arrange for a confrontation between Mr D. and Mr K. since Mr K. had absconded.
On 11 December 2001 the Kherson Regional Court upheld the decision of the Novotroitsky District Court.
On 30 December 2001 an additional medical forensic examination was ordered. The report was completed by 23 January 2002.
On 11 January 2002 Mr R. was interrogated again. On the same day the investigator decided not to initiate criminal proceedings against Mr R. for destruction or damage of property with intent.
On 16 January 2002 Mr D. was interrogated further and a confrontation was staged between him and Mr R.
On 23 February 2002 the investigator decided not to pursue the prosecution of Mr R. on the ground that he had an alibi for the murder that was supported by five witnesses. According to Mr R. on the eve of the murder Mr D. had asked him to take Mr K. and Mr D. to the village where the applicant’s husband lived. He had done so. He had waited for them for fifteen minutes and then taken them back to the town of Genichensk. Mr R. denied, and there was no evidence to the contrary, that he had been aware of the true intentions of Mr D. and Mr K. with respect to the applicant’s husband.
On 30 April 2002, owing to changes in the procedural legislation that required any arrest order to be approved by the court, the investigator submitted a request to the Novotroitskyy District Court for a warrant for Mr K’s arrest. On 3 May 2002 the court ordered Mr K. to be taken into custody as a preventive measure.
On 16 June 2002 the proceedings were suspended since the accused’s whereabouts were unknown. Thereafter the investigation was suspended and resumed several times.
By a letter of 6 June 2003 the applicant was informed that Mr D. had absconded and that the criminal proceedings against him were suspended.
Owing to changes in the legislation on criminal procedure, on 17 December 2003 the investigator requested authorisation from the Kherson Regional Court of Appeal to survey the telegraphic and postal correspondence of Mr K.’s relatives and friends. On 18 December 2003 the court issued the authorisation.
On 22 June 2004 the investigator issued a resolution for Mr K’s property to be seized. The investigator reported, however, that Mr K. had no property.
By a letter of 31 August 2005 the Kherson Regional Prosecutor’s Office informed the applicant that they were still looking for Mr K., who had been identified as a suspect. The investigators also checked the possible involvement of Mr R. and Mr D. in the murder of the applicant’s husband, but as their was no proof of their guilt, the Novotroitsky Prosecutor’s Office declined to prosecute them and the Kherson Regional Prosecutor’s Office upheld its decisions.
By a letter of 19 October 2005 the Kherson Regional Prosecutor’s Office informed the applicant that the law-enforcement authorities were still looking for Mr K. and that the decisions to close the criminal proceedings against Mr R. and Mr D. were well-founded
The investigator systematically issued orders to establish Mr K.’s whereabouts on 4 April 2002, 15 June 2002, 19 September 2003, 28 April 2004, 1 September 2004, 9 September 2004, 1 March 2005, 15 April 2005, 27 April 2005, 17 September 2005, 14 October 2005, and 15 November 2005.


ITEMID: 001-60954
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF HUTCHISON REID v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-1;Violation of Art. 5-4 with regard to burden of proof;Violation of Art. 5-4 with regard to speed of review;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Georg Ress;Nicolas Bratza
TEXT: 9. The applicant was born in 1950 and is currently detained in Carstairs Hospital, Lanarkshire.
10. On 8 September 1967 the applicant, then aged 17, was convicted, after a guilty plea, of culpable homicide. The court was satisfied on the oral evidence of two consultant psychiatrists that the applicant was suffering from “mental deficiency”, a mental disorder within the meaning of the Mental Health (Scotland) Act 1960 and such as would warrant his detention (sections 6 and 23(1)). It ordered that he be detained in a mental hospital under a hospital order. It also made an order restricting his discharge from detention without limit of time (sections 55(1) and (7) and 60(1) of the 1960 Act). Although one doctor gave the opinion that the applicant suffered from a psychopathic or personality disorder, this was not the basis for the detention.
11. On 24 April 1972 the applicant escaped from the State hospital but was recaptured the same day.
12. By no later than 1980, he was no longer regarded as suffering from a mental deficiency. The sole medical basis for his detention since that date has been a diagnosis of anti-social personality or psychopathic disorder.
13. After 1983, patients under a restriction order were provided with the opportunity of applying annually to the sheriff to obtain discharge. According to the Mental Health (Scotland) Act 1984 (“the 1984 Act”), the criteria for admission for both civil and criminal patients were amended. Section 17 provided that where the mental disorder from which the person suffered was a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct (that is, a psychopathic or anti-social personality disorder), he could only be detained where medical treatment was likely to alleviate or prevent a deterioration of his condition. This reflected general medical pessimism as to the benefits of medical treatment for psychopaths. The sheriff was required to release a restricted patient where the patient was not suffering from a mental disorder making it appropriate for him to be detained in a hospital for medical treatment, or it was not necessary for the health and safety of the patient or the protection of other persons that he receive such treatment (section 64 of the 1984 Act).
14. In 1985 the applicant was transferred to an open hospital. On 6 August 1986 he reoffended, was arrested and remanded to prison. He was charged on a summary complaint with the assault and attempted abduction of an 8-year-old child. Psychiatric reports were obtained from two consultant psychiatrists. In their reports of 14 August 1986, both referred to the applicant’s personality disorder but neither considered him to be suffering from mental disorder making it appropriate for him to receive hospital treatment. He was found sane and fit to plead. Accordingly, on conviction of assault and attempted abduction by a sheriff on 26 September 1986, he was sentenced to three months’ imprisonment, not to a hospital disposal.
15. On completion of his sentence in prison, the applicant was recalled to the State hospital by the Secretary of State on the basis of the 1967 hospital and restriction orders, pursuant to section 68(3) of the 1984 Act. This had been on the recommendation of a consultant psychiatrist consulted by the Secretary of State, who in his report of 8 August 1986 found that there was no continuing evidence of mental subnormality or of any evidence of mental illness other than persistent abnormally aggressive or seriously irresponsible conduct. While he was not convinced that the applicant’s period of treatment in the open hospital had improved his behaviour in any consistent fashion, the only possible reason to continue his detention in hospital was to attempt to modify his aggressive and seriously irresponsible conduct. In his view the only appropriate type of hospital management would be the more secure and structured organisation within the State hospital. It was further noted that the incident with the child raised grave doubts concerning the safety to other people of allowing the applicant to be released from institutional care and it was for that reason that he recommended the applicant’s return to the State hospital. On 7 October 1986, on the day of the applicant’s release from prison, the applicant was transferred back to the State hospital.
16. The applicant sought discharge from hospital on a number of occasions. Between February 1987 and June 1994 he obtained some eighteen reports from six psychiatrists, the majority of which were to the effect that he did not suffer from a mental disorder of a nature or degree justifying continued detention as he was not treatable. Some of the reports indicated that the continuing detention was leading, or was likely to lead, to a deterioration of his condition and that he required rehabilitation from his institutionalisation. Between August 1986 and May 1994, ten psychiatric reports on the applicant were prepared for government agencies by eight psychiatrists, in which varying opinions were also given as to the applicant’s amenability to treatment.
17. The applicant’s appeals to the sheriff on 29 February 1988, 20 October 1988, and 12 May 1992 for absolute or conditional discharge were unsuccessful.
18. On 8 April 1994, the applicant lodged a further appeal with the sheriff under section 63(2) of the 1984 Act. Between May and June 1994, psychiatric reports were prepared. On 14 June and 1 July 1994, the sheriff heard evidence.
19. On 19 July 1994 the sheriff rejected the applicant’s application for discharge. He noted that it was common ground that the onus of proof lay on the applicant to satisfy him, on the balance of probabilities, that the conditions in section 64(1)(a) or (b) were made out (see “Relevant domestic law and practice” below, paragraph 32). He had before him the written and oral evidence of seven consultant psychiatrists. He found that they were unanimous that the applicant suffered from a mental disorder, namely a persistent and permanent psychopathic/anti-social personality disorder, manifested by abnormally aggressive and seriously irresponsible behaviour. In the event of the applicant being released, he found there was a very high risk of his reoffending and that any such offence was likely to have a sexual connotation. He accepted that the evidence was such that the applicant’s disorder would not be likely to justify his admission to hospital had his original offence been committed in 1994 and noted that the majority of the opinions were to the effect that the applicant’s condition was not curable and that the medical treatment provided by the State hospital had not alleviated and would not alleviate his condition. However, he nonetheless found that the applicant’s disorder was severe and that it was appropriate for him to be detained in a hospital for medical treatment. He stated that nowhere in the Act did it state that a criminal ordered by the High Court to be detained without limit of time should be discharged if his condition was not being alleviated. However, in any event, he agreed with Dr White, the medical officer responsible for the applicant, who stated in his report:
“... in the structured setting of the State hospital in a supervised environment [the applicant’s] anger management improves, resulting in his being less physically aggressive. There is evidence that when this structure or supervision is lessened [the applicant] poses more of a danger to others e.g. his abuse of parole ... Medical treatment has alleviated his condition and should continue to do so.”
20. The sheriff also referred to Dr Smith’s report which stated:
“At that time (1967) he was emotionally immature and illiterate. Since then there have been marked improvements in his educational attainments. He has benefited from nursing and medical care in the stable environment provided by the State hospital.”
21. The sheriff concluded:
“The majority medical opinion is that rehabilitation should take place in another hospital. It is a matter for Dr White to consider whether he can prepare the applicant for a transfer; and it is for Dr White to decide and not for me to advise. Presumably rehabilitation will alleviate his condition. ... I am told that psychiatrists would today be unlikely to recommend admission to the State hospital. However, the applicant was properly admitted and detained and I have not been satisfied that he is now not suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.”
22. No appeal lay against the sheriff’s decision.
23. On 28 February 1995 the Secretary of State received notice that the applicant had applied for legal aid to challenge the sheriff’s decision by way of judicial review application. In March 1995 legal aid was refused. On 16 October 1995 the Secretary of State received intimation of the applicant’s fresh application for legal aid. On 17 November 1995 legal aid was granted by the Scottish Legal Aid Board.
24. On 21 February 1996 the applicant lodged a petition with the Outer House of the Court of Session for judicial review of the sheriff’s decision, claiming that the sheriff had erred in law or that he had reached a decision on the appeal which was irrational having regard to the evidence. A hearing took place on 16 May 1996 before Lord Rodger. On 29 May 1996 Lord Rodger dismissed the petition, finding that the sheriff’s conclusion that it was appropriate that the applicant should be liable to be detained in hospital for treatment was entirely justifiable. He dismissed the applicant’s claim that the sheriff had imposed an excessively high burden of proof on the applicant, considering that the sheriff had applied the proper standard and had made a positive finding that he was satisfied that it was appropriate for the applicant to be detained for treatment.
25. On 14 June 1996 the applicant renewed his application to the Inner House of the Court of Session. On 28 June 1996 the case was sisted (adjourned) to enable the applicant to apply for legal aid. On 30 August 1996 the Scottish Legal Aid Board granted legal aid. On 7 November 1996 the applicant applied to end the adjournment. On 12 November 1996 the Inner House recalled the sist. On 23 January 1997 a hearing was set for 2426 June 1997. The hearing took place.
26. On 22 August 1997 the Inner House of the Court of Session allowed the appeal and quashed the decision of the sheriff. It held that in the case of a psychopath the discharge criteria in section 64 of the 1984 Act incorporated the “treatability” criterion in section 17 of the Act, namely the criterion that, in the case of a person suffering from a mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct, the medical treatment must be such as was likely to alleviate or prevent a deterioration in his condition. Having reviewed the evidence, it found that the sheriff had wrongly concluded that the applicant was treatable and that the sheriff was obliged to discharge a restricted psychopathic patient who was not treatable.
27. On 11 November 1997 the Secretary of State appealed to the House of Lords. On 9 December 1997 and 25 February 1998 the parties agreed to an extension of time to lodge court documents. On 31 March 1998 the case was set down for hearing on 12 and 13 October 1998.
28. Following that hearing, on 3 December 1998, the House of Lords allowed the appeal. In their judgment, the Lords agreed with the Inner House that the treatability criterion was incorporated into the discharge criteria in section 64 but rejected its approach to the evidence. They held that treatment which alleviated the symptoms and manifestations of the underlying medical disorder of a psychopath was treatment within the meaning of section 17(1), even if the treatment did not cure the disorder itself. They found that the Inner House, on a judicial review application, was not entitled to substitute its own opinion as to the applicant’s treatability for that of the sheriff, although it could have done so on an appeal.
29. Lord Hutton said, inter alia:
“It is clear that there was a difference of opinion between the seven psychiatrists who gave evidence before the sheriff. The sheriff recognised this and stated that ‘the majority opinion among the witnesses was that the medical treatment provided by the State hospital had not alleviated and would not alleviate his condition’. But the sheriff referred to the evidence of Dr Chiswick, who was in favour of an absolute discharge of the [applicant], and who stated that ‘Dr White’s plans for anger management etc. would be regarded by him as treatment’. And it is clear ... that the sheriff accepted the opinion of Dr White, who was the responsible medical officer for the [applicant] that the anger management of the [applicant] in the structured setting of the State hospital in a supervised environment resulted in his being less physically aggressive. In other words, it was Dr White’s opinion that the symptoms of his underlying condition were alleviated and this led the sheriff to the conclusion that medical treatment ‘should continue’ to alleviate his condition.
Therefore in my view contrary to the opinion of the Inner House the Lord Ordinary was right to decide that, given the evidence which was before the sheriff, it would be wrong to hold that no sensible sheriff could have reached the decision which he did.”
30. Lord Hutton adverted to the danger which could arise under the mental health provisions that a sheriff could be obliged to release an untreatable psychopath who might well harm members of the public. The balancing of the protection of the public against the claim of a psychopath convicted many years ago that he should not continue to be detained in hospital when medical treatment would not improve his condition was, however, an issue for Parliament to decide, not the judges.
31. Section 17(1) of the 1984 Act provided:
“A person may, in pursuance of an application for admission under section 18(1) of the Act, be admitted to a hospital and there detained on grounds that-
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(i) in the case where the mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition ...
... and
(b) it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this Part of the Act.”
32. Section 64(1) of the 1984 Act provided:
“Where an appeal is made by a restricted patient who is subject to a restriction order, the sheriff shall direct the absolute discharge of the patient if he is satisfied –
(a) that the patient is not, at the time of the hearing of the appeal, suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(b) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; and (in either case)
(c) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.”
33. The Crime and Punishment (Scotland) Act 1997 provided, from its coming into force, that any person convicted of an offence for which a hospital order could be made could now be made subject of a hospital direction (or hybrid order) whereby the offender, although sent to hospital, also had a sentence imposed on him. If the offender’s mental condition improved to the extent that detention in hospital was no longer justified, he could be transferred to prison to complete the remainder of his sentence. These provisions, which were not retrospective, did not affect the applicant.
34. On 2 August 1999, in Noel Ruddle v. the Secretary of State, the sheriff ordered the release of a patient suffering from a psychopathic disorder where the treatability test was not satisfied. The release into the community of this patient caused considerable public controversy and led to the first Act of the new Scottish Parliament.
35. On 8 September 1999, the Parliament passed the Mental Health (Public Safety and Appeals) Scotland Act 1999 which amended section 64 of the 1984 Act so as to require the sheriff to dismiss an appeal by a patient where he was suffering from a mental disorder which required him to be detained in hospital, whether for medical treatment or not, in order to protect the public from serious harm.
Section 64(A1) of the 1984 Act now provided:
“Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall refuse the appeal if satisfied that the patient is, at the time of the hearing of the appeal, suffering from a mental disorder the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital, whether for medical treatment or not.”
This Act also gave a right of appeal from the sheriff’s decision to the Court of Session for both the applicant and the Secretary of State.
36. Proceedings were taken by hospital detainees concerning, inter alia, whether the Act was within the powers of the Parliament. On 16 June 2000 the Lord President gave the judgment of the Inner House of the Court of Session, rejecting the challenges to the Act, taking into account, in particular, the principles laid down in Article 5 §§ 1 and 4 of the Convention (see A. v. the Scottish Ministers, 2000 Session Cases 1). On 18 October 2001 the Judicial Committee of the Privy Council dismissed the further appeal, also finding that it was not incompatible with Article 5 § 1 (e) to require the continued detention of a restricted patient in a hospital where this was necessary on the grounds of public safety, whether or not the mental disorder was treatable (see A. v. the Scottish Ministers, 2001 Scots Law Times 1331).
37. The Report of the Millan Committee on the Review of the Mental Health (Scotland) Act 1984 made a number of recommendations concerning the 1999 Act. In particular, it criticised the fact that entry and exit criteria to hospital no longer coincided:
“[T]he justification for continuing to detain a patient should reflect the basis on which detention was initiated. This is an important principle which we have emphasised throughout our report: no one should be detained if they no longer meet the grounds for detention. ... The effect of the public safety test in the 1999 Act is that some restricted patients may be required to remain in hospital when they no longer meet the criteria for admission to hospital.”
38. In January 1999 the Report of the Committee of Inquiry into the Personality Disorder Unit, Ashworth Special Hospital was issued concerning the treatment and detention of psychopathic offenders:
“6.3.1 Whether or not a convicted offender is diagnosed as suffering from psychopathic disorder and becomes the subject of a hospital order is, to a considerable extent, a matter of chance. ...
Because [the definition of the personality disorder category] is legal, not clinical, and is unlikely to be the subject of scrutiny, it is possible for almost any violent offender to slip into this category ...
...
6.3.8 The uncertainties in this process have been called a ‘lottery’ ...
...
General Conclusions
6.10.1 It is evident from all the evidence which we have heard and read that there continues to be a wide diversity of opinion among experts from all the professions about the treatment and management of personality disorder and particularly severe personality disorder ...
...
6.10.5 A few generalisations can be made with which there is general agreement:
1. Some personality disorders are more treatable than others and they are conditions which are less severe and which have a low association with violence.
2. Some personality disorders are sometimes treatable.
3. Some, particularly severe personality disorders, are resistant to treatment or frankly untreatable, although they may benefit from management and humane containment. ...
...
6.10.11 We see no rational justification for keeping this very manipulative and troublesome sub-group in expensive therapeutic units providing management and treatment techniques from which they gain no benefit.”
39. On 28 March 2001 the Court of Appeal held in R. v. the Mental Health Review Tribunal North and East London Region and the Secretary of State for Health, ex parte H. that sections 72 and 73 of the Mental Health Act 1983 (which contains provisions similar to those set out in section 64 of the Mental Health Act (Scotland) 1984) were contrary to Articles 5 §§ 1 and 4 of the Convention in so far as they imposed a test which required the continued detention of a patient where it could not be shown that his mental condition did not warrant detention. On 26 November 2001 the Mental Health Act (Remedial) Order 2001 came into force, amending sections 72 and 73 to require the tribunal to discharge the patient if it was not satisfied that he fulfilled the conditions for detention. In a recent case in Scotland brought by a patient under section 64 of the 1984 Act (Lyons v. the Scottish Ministers, 17 January 2002, First Division of the Court of Session), the Scottish court noted that the Scottish ministers had accepted, concerning the burden of proof in proceedings for release, that they were required to establish that the patient suffered from a mental disorder of a nature or degree making it appropriate for him to be detained in a hospital.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-109807
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GRANOS ORGANICOS NACIONALES S.A. v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing;Legal aid);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court;Fair hearing;Legal aid)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Mark Villiger
TEXT: 6. The applicant company is registered under Peruvian Law and is based in Lima.
7. The applicant company exported organic bananas to Europe. In 2001/2002 it concluded a commission contract with two German companies, agreeing that all legal disputes would be brought before the courts in Hamburg. The contract also included a clause that legal disputes be settled by an arbitration tribunal in Hamburg.
8. On 31 December 2005 the applicant company requested legal aid to bring a civil action before the Hamburg Regional Court (Landgericht) against the two German companies for breach of the commission contract, submitting that the applicant company and its shareholder were insolvent and could thus not afford an advance payment of the court fees.
9. On 4 January 2006 the Hamburg Regional Court dismissed the request for legal aid. It held that, according to section 116 (2) of the German Code of Civil Procedure (Zivilprozessordnung, see Relevant domestic law, below), only legal persons founded or based in one of the member States of the European Union or the European Economic Area were entitled to legal aid.
10. On 17 January 2006 the Regional Court rejected an objection by the applicant company. It held that section 116 of the German Code of Civil Procedure exhaustively determined which legal persons were entitled to receive legal aid, and it was not for the court to extend this provision to include companies based outside Europe. Germany was not obliged to enable all legal persons in the world to benefit from legal aid.
11. On 23 January 2006 the Hanseatic Court of Appeal (Oberlandesgericht) confirmed the Regional Court’s decisions. It added that the interference with the applicant company’s right of access to a court was justified. The restriction imposed on the applicant’s right of access to a court was justified by the principle of reciprocity: if equal treatment was codified under constitutional law, there would be no incentive for foreign States to provide German legal persons with the same legal standard. The court also held that, even if the applicant company were to be put on a par with a domestic legal person, the non-litigation of the applicant company’s case did not run counter to the general interest. Relying on a ruling of the Federal Constitutional Court of 3 July 1973 (no. 1 BvR 153/69, report BVerfGE 35, 356), it considered in this regard that even a domestic legal entity retained its right to exist under the legal order only if it was able to pursue its objectives by virtue of its own strength and means.
12. On 25 October 2006 the Federal Constitutional Court refused to admit the applicant company’s constitutional complaint. This decision was served on the applicant company on 2 November 2006.
13. The relevant provisions of the German Code of Civil Procedure read as follows:
“(1) Plaintiffs who do not reside in a Member State of the European Union or in another State party to the Agreement on the European Economic Area have, at the other party’s request, to provide a security for the costs of the proceedings.”
“Parties who on account of their personal and economic circumstances are unable to pay the costs of litigation, or who can only pay these costs in part or in instalments shall, upon their application, be granted legal aid if the intended litigation of the case offers sufficient prospects of success and does not appear wanton. ...”
“Upon their application, legal aid shall be granted to
...
(2) legal persons or associations capable of being a party founded or based in another Member State of the European Union or in another State party to the Agreement on the European Economic Area if the costs can be paid neither by them nor by those financially involved in the object of the legal dispute and if non-litigation of the case would run counter to the general interest. Section 114, last part of first sentence, shall apply.”
14. The relevant provisions of the Court Fees Act (Gerichtskostengesetz) read as follows:
“In civil legal disputes the action shall not be served until the fees for the general proceedings have been paid ...”
“Section 12 ... shall not apply where
1. the plaintiff has been granted legal aid,
2. the plaintiff is exempt from paying fees, or
3. the intended litigation of the case does not lack prospects of success and does not appear wanton, and where it can be substantiated that
(a) in view of the plaintiff’s financial situation or other reasons, immediate payment of the costs would cause difficulties or
(b) delaying litigation would cause damage to the plaintiff that could not be compensated, or only with difficulty; the declaration of the authorised counsel is deemed to be sufficient substantiation.”
“An appeal can be lodged against the decision to make the court action contingent upon the advance payment of costs and against the amount of the fees ...”
15. Article 179 of the Peruvian Code of Civil Procedure reads as follows:
“Legal aid is granted to natural persons who would risk, upon payment or guarantee of the costs of the proceedings, to no longer be able to maintain themselves or their dependents.”
16. Article 20 § 1 of the Hague Convention on Civil Procedure (concluded on 1 March 1954) reads as follows:
“In civil and commercial matters, nationals of the Contracting States shall be granted free legal aid in all the other Contracting States, on the same basis as nationals of these States, upon compliance with the legislation of the State where the free legal aid is sought.“
Article 31 of the Hague Convention provides that any State may accede to the convention, unless a State or several States which have ratified the convention object.
The Federal Republic of Germany ratified the Hague Convention on 2 November 1959. The Republic of Peru is not a State party to that convention.
17. A comparative survey conducted in 2008 on legislation and practice in thirty-two State Parties to the Convention distinguished three different approaches as to the possibility for legal persons to obtain legal aid (compare VP DIFFUSION SARL v. France (dec.), no. 14565/04, 26 August 2008, and C.M.V.M.C. O’LIMO v. Spain (dec.), no. 33732/05, 24 November 2009, §§ 11–14).
18. In the majority of States surveyed (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, England and Wales, Ireland, Italy, Latvia, Luxembourg, Malta, Moldova, Romania and Serbia) legislation excluded any form of legal aid to legal persons. In a number of other States (France, Greece, Portugal, Slovenia, Spain and Turkey) only legal persons with a non-commercial purpose (but non-lucratif) were eligible for legal aid. In the third group of States (Austria, Belgium, Estonia, Finland, Germany, the Netherlands, Poland, Russia, Switzerland and Ukraine) legal persons including commercial companies were eligible for specific forms of legal aid in certain circumstances.
NON_VIOLATED_ARTICLES: 14
6
NON_VIOLATED_PARAGRAPHS: 6-1