ITEMID: 001-100920
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PANAYI v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Panayiotis Panayi, is a Cypriot national who was born in 1954 and lives in Limassol.
The applicant has brought the present application in his capacity as administrator of his deceased father's estate.
On 16 March 1990 a civil action was brought before the District Court of Paphos by, inter alia, the applicant, in his capacity as administrator of his deceased father's estate, against four members of his family and the Attorney-General of the Republic concerning the transfer and registration of certain plots of land.
On 10 March 1999 the action was settled by way of friendly settlement.
On 28 January 2000 the applicant, in his capacity as administrator of his deceased father's estate, brought another civil action before the District Court of Paphos against four members of his family and the Attorney-General (“the defendants”) seeking the transfer and registration of a plot of land in his name.
On 18 July 2006 the District Court upheld the applicant's claim in part. It issued an order for the annulment of the registration of the plot in the names of defendants nos. 1–4 and further, an order for the restoration/reinstatement/re-registration of the property in the applicant's grandfather's name.
On 28 August 2006 the applicant lodged an appeal with the Supreme Court, claiming that the District Court should have ordered the transfer and registration of the plot in his name and also that he should have been awarded general, special and exemplary damages (appeal no. 353/06). The defendants also appealed against the first-instance judgment (appeal no. 261/2006).
On 11 February 2009 the Supreme Court dismissed the applicant's appeal but upheld the respondents' appeal. It set aside the District Court's judgment and annulled the orders that had been issued.
Article 30 § 2 of the Constitution safeguards the right to a fair trial. It provides as follows, in so far as relevant:
“In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ...”.
In order to ensure the effective protection/application at domestic level of the principle of the right to a trial within a “reasonable time” and to provide effective domestic remedies in relation to breaches of that right, Parliament passed the Law Providing For Effective Remedies for Exceeding the Reasonable Time Requirement for the Determination of Civil Rights and Obligations, Law 2(I)/2010. This Law entered into force on 5 February 2010 and applies to complaints concerning the length of proceedings in all civil and administrative cases.
The relevant parts of Law 2(I)/2010 provide as follows:
“Whereas Article 6.1 of the European Convention on Human Rights and Article 30.2 of the Constitution of the Republic of Cyprus safeguard the right to determination of civil rights and obligations within a reasonable time,
And whereas in a number of individual recourses against Cyprus the European Court of Human Rights found violations of Article 6.1 of the Convention in that the civil rights and obligations of the applicants in civil cases and recourses had not been determined by the Cyprus Courts within a reasonable time as required by the above-mentioned Article and also found a violation of Article 13 in that there were no effective remedies in the Republic as required by Article 13 regarding the applicants' allegations of violation of the requirement of Article 6.1,
And whereas the Republic's obligation under Article 46 of the Convention to abide by the said Judgments of the European Court of Human Rights is being supervised by the Committee of Ministers of the Council of Europe and entails the adoption of measures preventing future violations as those found by the Court in the above-mentioned individual applications,
And whereas a number of individual recourses against the Republic are pending before the European Court of Human Rights for violation of Articles 6.1 and 13 of the Convention regarding determination of the applicants' civil rights and obligations in civil cases and recourses,
And whereas the Republic is bound by Article 1 of the Convention to secure the rights of the Convention including the right to effective domestic remedies for violation of the right to determination of civil rights and obligations within a reasonable time.”
“(1) This Law applies with regard to the violation of the right of persons to determination of their civil rights or obligations within a reasonable time in District Court or Supreme Court cases, whether they are pending at any stage at first instance or on appeal or have been concluded.
(2) A person who alleges that in a case to which this law applies his right to determination of his civil rights or obligations within a reasonable time has been violated has a right to have recourse to the legal proceedings provided for in the present Law for obtaining the remedies provided by it.
(3) Violation, in a court case to which this Law applies, of the right of a person to determination of his civil rights or obligations within a reasonable time and the granting of the remedies provided for in this Law for the violation, is determined by courts vested with competence under this Law.”
“The right to determination of civil rights and obligations within a reasonable time in a case to which this Law applies is actionable, and the person who alleges that he or she is a victim of a violation of the right may have recourse to the court with jurisdiction by way of action against the Republic by virtue of this Law, claiming the remedies for the violation provided for in this Law.”
“(1) An action under section 4 may be instituted for violation of the right in a case which has been concluded with a final court judgment concerning violation of the right at any stage of the case, i
(2) An action under section 4 may also be instituted for violation of the right in a case concluded with a judicial decision before the date of entry into force of the present Law, or in which execution of a judgment given before the date of entry into force is pending, provided that the action is instituted within one year of the date of entry into force or the date of the ed within the above time-limit.”
“(1) Irrespective of the provisions of any other law, the court which is granted jurisdiction by this Law to examine and determine an action under sections 4 and 5 for a violation of the right to determination of civil rights or obligations within a reasonable time in cases which were concluded with the issuance of a final judicial decision are:
(a) in relation to district court cases, the administrative President of any District Court who, in a case in which, according to the action, the plaintiff's right to determination of his civil rights or obligations within a reasonable time has been violated, did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in which the case was pending and did not participate at any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate.
(b) in relation to Supreme Court cases, three judges of the Supreme Court, as the Supreme Court may in the event designate.
(2) The judgment of the court with jurisdiction under sub-section (b) of paragraph (1)is final and is not subject to appeal.”
“(1) Without prejudice to the right to institute an action under sections 4 and 5, a person who is a party in a pending case to which this law applies has the right at any stage of the proceedings whilst the case is pending to have recourse to the legal remedies provided for in sub-paragraph (2) in relation to the allegation that in the case his right to determination of civil rights or obligations within a reasonable time has been violated.
(2) For the purposes of sub-section (1) a party who alleges that there has been a violation of his right to determination of his civil rights or obligations within a reasonable time in a pending district court or Supreme Court case may at any stage of those proceedings have recourse by instituting an originating application against the Republic to the court with jurisdiction as provided by section 8 for the examination of the allegation and the granting of remedies for the violation provided for by this Law and for the issuance of a decision on these matters.
(3) the provisions of paragraphs (1) and (2) are applied also in relation to cases which were pending at any stage at the date of entry into force of the present Law.
(4) There is no suspension or adjournment of any procedure in a pending case by reason of an application made under this section or pending the conclusion of its examination.
...”
“(1) Irrespective of the provisions of any other law, the court which is hereby granted jurisdiction to examine and determine an allegation and to grant remedies in an originating application under section 7 is:
(a) in relation to a district court case which is pending at that stage before a district court, the administrative President of any District Court who does not exercise duties at the court in which the case is pending and who did not participate in any stage of its examination, or in the event there is no administrative president who did not exercise duties at the court in question and did not participate in any stage of its examination, the next senior president of the district court or another judge who fulfils the above, as the Supreme Court may in the event designate.
(b) in relation to a district court case which is pending at that stage before the Supreme Court or to a Supreme Court case which is pending before the court in question at any stage, three judges of the Supreme Court, as the Supreme Court may in the event designate.
Provided that by virtue of this paragraph under this section judges of the Supreme Court who did not participate at any stage of the case will be designated.
(2) The judgment of the court with jurisdiction, under sub-section (b) of paragraph (1), is final and is not subject to appeal.”
“In an action under sections 4 and 5 and in an originating application under sections 7 and 8, the court with jurisdiction gives judgment at the conclusion of the examination of the action or the application, as the case may be, or, in the event it reserves its judgment, it is to deliver it without delay.”
“Actions and originating applications against the Republic under this Law are instituted against the Attorney-General of the Republic as defendant or respondent, depending on the case and the provisions of section 57 of the Courts of Justice Laws apply.”
“The court, in order to determine whether there has been a violation of the right of the plaintiff or the applicant to determination within a reasonable time of his civil rights or obligations in an action under sections 4 and 5 and in an application under sections 7 and 8, takes into account –
(a) the total period during which the determination of the rights or obligations in the case is pending or has lasted, taking into account the date on which the case was lodged with the court, and also where relevant any preceding period,
(b) the nature of the case in which, according to the allegation of the plaintiff or the applicant, his right has been violated,
(c) the possible complexity of the case,
(d) the conduct of the plaintiff or the applicant in the proceedings of the case,
(e) the conduct of the judicial authorities at the various stages and processes of the case, including, where relevant, the execution procedures, and the prosecution of the case in the said stages and procedures,
(f) the conduct of other authorities of the Republic, where relevant, at the stage and procedures of execution, as well as at any relevant stage and procedures prior to the date the case was lodged with the court,
(g) any other factors taken into account by the European Court of Human Rights as relevant to the matter in issue as these arise from its relevant case-law on the subject.”
“Where in an action under sections 4 and 5 or in an application under sections 7 and 8 the court considers that the right of the plaintiff or applicant to determination of his civil rights or obligations within a reasonable time has been violated, the plaintiff/applicant is entitled:
(a) to compensation for any pecuniary damage, loss, costs, and expenses proved to have been sustained on account of the violation;
(b) to compensation for non-pecuniary damage or injury suffered on account of the violation;
(c) to legal costs proved to have been incurred on account of the violation.
(2) For ascertaining the damage sustained on account of the violation as provided in sub-section (1) and assessing and awarding the compensation provided for under sub-section (1), the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they can be determined from its case-law in analogous cases of violation of Article 6.1 of the Convention, and the amounts of compensation awarded by the said Court in such analogous cases.”
“In examining an application made under sections 7 and 8 concerning the issue as to whether the applicant's right to determination of his civil rights or obligations within a reasonable time has been violated, the court exercises its judgment in relation to factors referred to in paragraphs (a)-(g) of section 11 after hearing the applicant and the Attorney-General of the Republic, by reference to the records of the proceedings and the contents of the file or files at first instance, or of any appeal of the case in which the applicant alleges that there has been a violation of his said right.”
“(1) Where in an application under sections 7 and 8 the court decides under the present Law that there has been a violation in a pending case of the applicant's right to determination within a reasonable time of civil rights or obligations, the said court transmits its judgment immediately to the Supreme Court.
(2) If the case concerning which the competent court issued its judgment and transmitted it to the Supreme Court under sub-section (1) is still pending, the Supreme Court issues such directions as under the circumstances it considers necessary to accelerate the procedure in the pending case, so as to prevent any continuance of the delay or any new delays, and avoid the possibility of continuation of the violation or new violations of the rights of any party in the pending case:
Provided that a judge or judges of the Supreme Court who had participated in any stage of the examination of the pending case shall not participate in the issuing of directions.
(3) Directions under sub-section (1) may include amongst other things-
(a) that the pending case be set down immediately for directions before the court, or for trial
(b) that pleadings which may not yet have been filed be so filed within deadlines specified in the directions,
(c) that the record of the proceedings be prepared;
(d) that costs which may have been awarded be subject to taxation
(e) that priority be given to the conduct of the hearing of the case or the hearing of any interim applications;
(f) that priority be given to the completion of any interim application procedures, or of other interim procedures,
(g) that priority be given to the delivery of a judgment reserved in the case or in an interim application,
(h) that priority be given to the completion by the judicial authorities of the execution procedures of a judgment given in the case to the extent that such authorities are involved.
(4) Directions under sub-section (3) for accelerating the procedure in a pending case are issued irrespective of the fact that the relevant judgment which has been transmitted may have been given in accordance with paragraph (a) of sub-section (1) of section 8, and/or has been appealed against by the Attorney General.”


ITEMID: 001-104963
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CSULLOG v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: 5. The applicant was born in 1964 and lives in Budapest.
6. The applicant was arrested on 7 February 2005. In 2006 he was convicted of conspiracy to murder and sentenced to five years’ imprisonment in a strict-regime prison. Following the delivery of a non-final judgment, on 24 April 2006 he was transferred to Sopronkőhida Strict and Medium Regime Prison, where he was placed in a special security cell. On 28 April 2006 the applicant’s defence counsel filed a request for transfer with the Ministry of Justice. On 27 June 2006 the Head of the Penitentiary Administration Unit of the Detention Affairs Department of the National Headquarters of the Penitentiary Service (“the Penitentiary Administration”) authorised the applicant’s transfer to Vác Strict and Medium Regime Prison.
7. Upon a subsequent decision of the Committee for Ordering Special Detention (“the “Committee”), on 17 August 2006 the applicant was transferred to Sátoraljaújhely Strict and Medium Regime Prison in order to be placed in a special security department. In this context the Government submitted that the prison authorities had been informed that his escape had been under preparation; that under Section 30(3) of Act no. CVII of 1995 on the Penitentiary Service this kind of information relating to the security of detention could not be communicated to the detainee; that, besides, further criminal proceedings were being conducted against him; and that these elements had warranted his placement in an appropriate, closed institution and his separation, as far as possible, from his accomplices. The applicant’s placement in a special security department was also supported by information received from the National Bureau of Investigation, classified as a State secret. The information which served as the basis for the decision has never been revealed to the applicant. None of the applicant’s accomplices were placed in a special security department.
8. Between 17 August 2006 and 23 September 2008 the applicant was detained as a “Grade 4 security” inmate in Sátoraljaújhely prison’s special security department (“KBK”), apart from the period between 15 February and 27 March 2007, which he spent in similar circumstances in Budapest Prison. His classification as a “Grade 4 security” inmate and his placement in the “KBK” department were reviewed and prolonged at regular intervals, but without any reasoning. His complaints about the conditions of detention to the National Commander of Penitentiaries, the Borsod-Abaúj-Zemplén County Public Prosecutor’s Office and the Attorney General’s Office were to no avail. Upon the applicant’s enquiry, on 25 June 2007 the County Public Prosecutor’s Office stated that “decisions concerning placement in KBK departments falls within the jurisdiction of the National Headquarters of the Penitentiary Service, therefore the County Public Prosecutor’s Office is not entitled to take measures in this regard.” The Public Prosecutor’s Office found that all the measures taken by the prison authorities had a proper legal basis.
9. The rules pertaining to the conditions prevailing in the KBK departments are outlined in the chapter on Relevant domestic law (see paragraphs 13 to 16 below). The applicant submitted that there was only artificial light in his cell, the ventilation was insufficient, the toilet had neither a seat nor a cover, and he had to endure full cavity searches on a daily basis. Moreover, the range of objects he was allowed to possess in his cell was very restricted: no watch, pen, comb, plastic cutlery, teabag or stationery was allowed, and he could have only a limited number of books or newspapers.
10. Subsequently, the applicant was transferred to Budapest Prison. His detention continued under the “Grade 4 security” regime, although he was no longer placed in a KBK department. He was accommodated in a special security cell located in the basement level of the institution.
11. Having served his sentence, the applicant was released on 10 February 2009.
“(2) Inmates shall have the right to access, with the exceptions specified in subsection (3), all the data related to them and to request the rectification of any incorrect data and the deletion of unlawfully kept data. Such requests of the inmates shall be complied with.
(3) Data relating to the security of detention and originating from an action which the detainee must tolerate under the law shall not be communicated to the inmate. On release, such data shall be communicated to the inmate upon request, unless they contain service or State secrets.”
“(1) Unless provided otherwise under the law, matters relating to an inmate’s detention shall be decided on – upon request or ex officio – by the head of the designated unit of the penitentiary institution in which the inmate is residing for the purpose of serving the punishment or measure imposed on him. In matters relating to his detention, the inmate may, without indicating the subject matter of his request ..., request the head of the unit or the governor of the penitentiary to hear him in person, or submit a written request.
(2) Inmates may file a complaint to the governor against a ruling, measure, decision or omission occurring in the context of subsection (1). Where the decision has been taken by the governor ..., the complaint shall be examined by the national governor.
(3) Where, in cases specified under the law, the inmate’s case was decided on ... by the national commander, the complaint shall be examined by the Minister ...”
“(1) Inmates shall be classified by the Reception and Employment Committee ... as belonging to the ‘Grade 1, 2, 3 or 4 security groups’ on the basis of the increasing threat level which their detentions pose.
(2) When assigning inmates into a security group, the following elements shall be taken into consideration:
a) the offence committed (its nature and circumstances), the duration of the imprisonment and the prison regime imposed, the portion of the sentence not yet served, and the date of parole,
b) the inmate’s personality, previous record, health and physical state and contacts,
c) – if other criminal proceedings have been instituted against the detainee – the nature and circumstances of the act giving rise to those proceedings,
d) the characteristics of the penitentiary institution and the security aspects of the inmate’s occupation.
(3) On the basis of the elements specified in subsection (2): ...
d) Inmates who are expected with good reason to commit an act severely violating the order of the penitentiary, to escape, or to endanger their own life or limb or that of others, or who have already committed such acts and whose safe detention may only be guaranteed by close guarding or – exceptionally – by strict surveillance shall be classified as “Grade 4 security” prisoners.
(4) If the facts or data necessary for the security group classification are incomplete, inmates shall be classified as ‘Grade 3 security’ prisoners until the missing facts or data are obtained.”
“(1) ... ‘Grade 4 security’ classification is to be reviewed by the reception committee every three months.
(2) If a change occurs in the circumstances underlying the inmate’s classification, the reception committee ... shall modify it, irrespective of the time-limit[s] specified in section (1).”
“(1) Classification into security groups shall not affect statutory inmate rights; the manner and order of exercising those rights under the various security regimes shall be regulated in the prison rules.
(2) The reasons underlying the classification of an inmate into a certain security group shall only be communicated to him if such communication does not endanger the security of detention.”
“(1) An inmate classified as ‘Grade 4 security’ prisoner may be placed in a special security cell or department.
(2) An inmate may also be placed in a special security cell or department if the protection of his life or limb cannot be secured otherwise.
(3) An inmate placed in a special security cell or department shall:
a) be under constant surveillance,
b) move around on the premises of the institution only with permission and under supervision, and his cell shall be kept locked,
c) work only inside the special safety department or at a place designated by the governor,
d) not participate in inmates’ associations,
e) participate in educational, sport and spare-time group activities only inside the special security department or with the governor’s permission; he, however, may practice self-education,
f) not wear his own clothes – except for inmates placed in a special security cell or department pursuant to subsection (2),
g) possess only a limited range of personal objects.
(4) The implementing rules concerning inmates placed in special security cells or departments shall be laid down in the prison rules.
(5) Placement in a special security cell shall be ordered by the reception committee for a period of maximum three months which can be prolonged twice, each time for a period of maximum three months. Placement in a special security cell for a period exceeding these periods shall be ordered by a committee designated by the national commander... The justification for continued placement shall be reviewed by the committee every six months.
(6) Placement in a special security department shall be ordered by the committee for a period of maximum six months. This period can be prolonged if reasons for such placement continue to exist. The justification for placement in a special security department shall be reviewed by the committee every six months.
(7) Placement in a special security cell or department shall immediately be terminated when the underlying reasons cease to exist.
(8) For the purposes of this Decree:
a) ‘special security cell’ means specially built and equipped premises operating under special rules where inmates specified under subsections (1) and (2) shall be placed alone. The cells of the penitentiary institutions operating as special security cells shall be designated by the national governor...
b) ‘special security department’ means a purpose-built, segregated part of the penitentiary institution designated by the national governor, which consists of special security cells and adjoining premises, where inmates specified under subsections (1) and (2) can be placed irrespective of the prison regime imposed on them.”
“(1) Inmates shall have the right: ...
g) to submit a statement of public interest, a complaint, a request or a legal declaration to the penitentiary institution, or to another organ independent of the penitentiary service;”
The rules governing the conditions prevailing in “KBK” departments can be summarised as follows. Inmates under the “KBK” regime receive their visitors in special security rooms and have their meals on their own. They can exercise their right to periods in the open-air one person at a time in a special area; they may not participate in cultural or sport events together with other inmates; they may only watch television, listen to the radio, read, practise sport or observe their religion alone in their cells. Before and after every removal from the cell, the inmate must be body-searched and stripped if necessary. Such inmates shall undergo medical examinations, shave and wash themselves in their cells.
Inmates under the “KBK” regime may be removed from the “KBK” department only if handcuffed and if it is ensured that they will not encounter other inmates. For medical examinations, such inmates must be handcuffed. At any given time, a maximum of two such inmates can benefit simultaneously from open-air periods or sports; however, they must not see or have contact with each other.
“51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.
51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.
51.3 As soon as possible after admission, prisoners shall be assessed to determine:
a. the risk that they would present to the community if they were to escape;
b. the risk that they will try to escape either on their own or with external assistance.
51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.”
“52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.
52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.
52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.
52.4 It shall be possible for prisoners to contact staff at all times, including during the night.
52.5 National health and safety laws shall be observed in prisons.”
“53.1 Special high security or safety measures shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.
53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.
53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.
53.6 Such measures shall be applied to individuals and not to groups of prisoners.
53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.”
“70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority.
70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”
18. The Commentary to the draft Rule 70 of the above Recommendation reads as follows:
“This Rule does not attempt to prescribe an exclusive model of a complaints procedure but sets out the basic requirements such procedures should comply with lest they be considered to represent effective remedies in terms of art. 13 of the ECHR (see: Van der Ven v. The Netherlands (appl. nr. 50901/99 – 04/02/2003)). What is important is that the complaint procedure ends with a final binding decision taken by an independent authority. The member states are free to designate the independent authority that has the power to handle complaints. This can be an ombudsman or a judge (enforcement magistrate or executing or supervisory judge), supervising prosecutor, court, or a Public Defender (CPT/Inf (2002) 14 – Visit to Georgia in 2001).”
“94. In every country there will be a number of so-called “dangerous” prisoners (a notion which covers a variety of types of person) in respect of whom special conditions of custody are required. This group of prisoners will (or at least should, if the classification system is operating satisfactorily) represent a very small proportion of the overall prison population. However, it is a group that is of particular concern to the CPT, in view of the fact that the need to take exceptional measures concerning such prisoners brings with it a greater risk of inhuman treatment than is the case with the average prisoner.
95. The dangers involved in this area are well described in the following extract from the Explanatory Memorandum to the Recommendation (No. R(82)17) on the custody and treatment of dangerous prisoners adopted by the Committee of Ministers of the Council of Europe on 24 September 1982: “43. Human dignity is to be respected notwithstanding criminality or dangerousness and if human persons have to be imprisoned in circumstances of greater severity than the conventional, every effort should be made, subject to the requirements of safe custody, good order and security and the requirements of community well-being, to ensure that living environment and conditions offset the deleterious effects – decreased mental efficiency, depression, anxiety, aggressiveness, neurosis, negative values, altered biorhythms – of the severer custodial situation. In the most serious instances prisoners regress to a merely vegetative life. Generally the impairment may be reversible but if imprisonment, especially in maximum security, is prolonged, perception of time and space and self can be permanently and seriously impaired – ‘annihilation of personality’.”
96. ... The status of Grade 4 prisoners is reviewed every six months. However, it would appear that the reasons underlying the decision for placement/prolongation of a Grade 4 measure are not disclosed to the prisoner concerned.
97. It is axiomatic that a prisoner should not be held in a special security regime any longer than the risk which he presents makes necessary. This calls for regular reviews of the placement decision. Further, prisoners should as far as possible be kept fully informed of the reasons for their placement and, if necessary, its renewal; this will inter alia enable them to make effective use of avenues for challenging that measure.
98. Consequently, the CPT recommends that:
– a prisoner who is placed in a Grade 4 regime by the judicial or prison authorities or whose placement in such a regime is renewed be informed in writing of the reasons for that measure (it being understood that the reasons given could exclude information which security requirements reasonably justify withholding from the prisoner);
– a prisoner in respect of whom such a measure is envisaged be given an opportunity to express his views on the matter;
– the placement of a prisoner in such a regime should be as short as possible and reviewed at least every three months.
100. Firstly, the delegation observed at Budapest Remand Prison that means of restraint (such as handcuffs and/or anklecuffs) were routinely applied to Grade 4 prisoners. ... The practice of routinely handcuffing and/or anklecuffing prisoners when outside their cell is highly questionable, all the more so when it is applied over a prolonged period of time in a secure environment. ...
101. Secondly, some Grade 4 prisoners were kept for some considerable time in isolation and had particular difficulties to receive visits and have access to a telephone, allegedly for security reasons.”
“64. ... The CPT calls upon the Hungarian authorities to take steps to implement its previous recommendations concerning the provision to prisoners placed in a Grade 4 regime of written information on the reasons for the measure as well as the opportunity to express their views on the matter. It is equally important to provide such prisoners with written information on the possibilities to contest the decision. More generally, the Committee recommends that the Hungarian authorities review and refine the system of classifying prisoners as Grade 4 with a view to ensuring that this grade is only applied – and retained – vis-à-vis prisoners who genuinely require to be accorded such a status.”
“66. ... The CPT must reiterate its view that there can be no justification for routinely handcuffing prisoners outside their cells, all the more so when this measure is applied in an already secure environment. The application of restraints while the prisoner is inside a secure exercise yard is clearly an unacceptable practice. As regards the handcuffing of prisoners during medical consultations, in the CPT’s view, such a practice infringes upon the dignity of the prisoners concerned and prohibits the development of a proper doctor-patient relationship (and is possibly detrimental to the establishment of an objective medical finding). The CPT calls upon the Hungarian authorities to review without further delay their current policy with regard to the application of means of restraint to prisoners placed under a special security regime (Grade 4 prisoners).”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-80806
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: LJUBICIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Ivka Ljubičić, is a Croatian national who was born in 1933 and lives in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1965 the applicant bought the attic of a house on Puljska Street, Zagreb. In the same year she obtained a building permit (građevinska dozvola) and built a new floor and a garage; in 1995 she also obtained a permit to use the newly built part of the building (uporabna dozvola).
On 14 July 1998 the applicant filed a request with the Land Registry Division of the Zagreb Municipal Court (Zemljišnoknjižni odjel Općinskog suda u Zagrebu), asking that the newly built attic and garage be entered in the land register as her property. On 11 January 1999 the applicant further asked that the change in the street name, from Puljska to Vitezovićeva, also be recorded in the land register.
When the applicant failed to comply with the Municipal Court’s invitation of 29 September 1998 to submit all the documents necessary for it to comply with her request, the court dismissed the applicant’s request on 23 April 2004. The decision expressly stated that the applicant would be able to have her ownership recorded in the land register once she submitted all relevant documentation. The applicant’s subsequent appeal of 12 May 2004 was dismissed by the Zagreb County Court (Županijski sud u Zagrebu) on 15 March 2005.
Meanwhile, on 25 February 2004 the applicant filed a constitutional complaint in respect of the length of proceedings. On 14 October 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s complaint inadmissible. It found that a constitutional complaint was not allowed in respect of the proceedings in question, since the decisions to be adopted in those proceedings were not individual acts within the meaning of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, hereinafter “the Constitutional Court Act”) and thus not within its competence.
Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) provides:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
The relevant part of section 63 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002) provides:
“(1) The Constitutional Court shall examine a constitutional complaint, irrespective of whether all legal remedies have been exhausted, if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess the appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date on which a request for payment is lodged.”
Under the case-law of the Constitutional Court as applied until 26 April 2006, constitutional complaints lodged under section 63 in the context of all land registry proceedings were to be declared inadmissible. In decision no. U-IIIA/3244/2004 of 26 April 2006 the Constitutional Court changed its practice, accepting a complainant’s constitutional complaint and awarding him compensation.


ITEMID: 001-57921
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF QUINN v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;No violation of Art. 5-3 (detention on remand);Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 7. Mr Thomas Quinn, who was born in New York in 1937, is an American national and at the material time lived in Paris. On 24 September 1992 the French Government extradited him to Switzerland.
8. Following ninety-three complaints laid by French investors, an investigation was opened in France in 1988. The persons concerned had been approached by brokers established in Switzerland and in Liechtenstein who had sold them at artificially inflated rates shares issued on the American market by sham companies. The sums collected were paid into accounts opened in Switzerland in the name of foreign companies, but the complainants were never able to realise their shares. Criminal proceedings were instituted against eleven persons, including the applicant. They were all foreign nationals.
9. Mr Quinn was arrested on 1 August 1988 in possession of two false Greek passports and was charged on the same day with fraud, offences under the legislation on the issuing of securities and forgery of administrative documents. On the following 29 November the investigating judge added to the initial charges the aggravating circumstance of fraud by a person having solicited the public for a savings scheme.
10. On the day of his arrest Mr Quinn had been remanded in custody at the Santé prison in Paris.
On three occasions, 30 November 1988, 23 March and 20 July 1989, the investigating judge extended the detention by four months at a time. He took the view that detention was the sole means of ensuring the appearance for trial of an accused, who was a foreign national, who had been arrested in possession of false passports and who had several residences outside France and a large number of accomplices.
11. Mr Quinn appealed to the Indictment Division of the Paris Court of Appeal against the order of 20 July 1989 extending his detention on remand.
After holding a hearing on 2 August 1989, the Indictment Division set aside the contested order by a decision delivered in the applicant’s absence at 9 a.m. on 4 August. It directed that he should be "released forthwith if he [was] not detained on other grounds" and gave the following reasons:
"At the present stage in the investigation, which has been conducted with due diligence, and given the evidence against him, detention no longer appears necessary for establishing the truth.
In view of the reimbursements which have been, or are in the process of being, effected, it is no longer required on grounds of public order.
Finally, the seizures carried out are such as to ensure that the appellant will appear for trial and in addition he provides guarantees as regards his place of residence and his movements."
This decision was immediately enforceable and no appeal was lodged against it.
12. The applicant was not released, however. His release was subject to the decision being notified by the public prosecutor responsible for its execution and to completion of the relevant formalities.
13. The applicant appeared before the Paris Criminal Court while in detention with a view to extradition (see paragraphs 16 and 17 below). On 10 July 1991 he was found guilty of fraud to the detriment of ninety-three persons and of organising a campaign to solicit the public in connection with transactions involving foreign securities in France, without prior authorisation. He was sentenced to four years’ imprisonment and fined 300,000 French francs (FRF). The court ordered his detention (see paragraph 30 below).
14. The prosecuting authority and Mr Quinn appealed to the Paris Court of Appeal. In a judgment of 23 April 1992 that court found that the aggravating circumstance of soliciting the public for a savings scheme was not made out and reduced the sentence to four years’ imprisonment, one year of which was suspended. It ordered that he remain in detention (see paragraph 30 below).
15. The applicant, who had been in detention on remand from 1 August 1988 to 4 August 1989 and then for the duration of the court proceedings in the domestic case - a total of approximately one year and ten months -, was extradited to Switzerland on 24 September 1992 after having completed his sentence.
16. On 4 August 1989, towards 5.30 p.m., a Geneva investigating judge sent by fax to the Paris public prosecutor’s office a request for the applicant’s provisional arrest with a view to his extradition. The same request was transmitted through the intermediary of the International Criminal Police Organisation (Interpol) on 5 August and through diplomatic channels on 16 August. The applicant was described as "currently detained in the Santé prison in Paris, and today released on a provisional basis".
This document headed "fiche d’accompagnement" (covering note) was marked "very urgent, to be delivered in person to the addressee [a deputy public prosecutor], who is apprised of the matter".
It was accompanied by the international warrant issued by the Swiss judge for Mr Quinn’s arrest on charges of professional fraud and forging securities. He was accused of having, with his accomplices, sold shares in American companies to nearly ten thousand investors throughout the world, deceiving them as to the value of the shares and using false identities to pay the sums in question into Swiss bank accounts. The total prejudice was estimated at over ten million dollars.
17. The Paris public prosecutor ordered the applicant’s provisional arrest. Mr Quinn, who was still detained in the Santé prison, was arrested there. He was questioned by the prosecutor at around 8 p.m. and placed in detention with a view to extradition.
18. On 4 October 1989 the Paris Indictment Division - composed differently to the division that had ruled on the applicant’s detention - served on the applicant the instrument on the basis of which he had been arrested.
19. In the course of the extradition proceedings brought against him, Mr Quinn applied three times for his release, relying on each occasion on Article 5 (art. 5) of the Convention. He complained of the circumstances in which he had been arrested.
In its three decisions, given on 23 August 1989, 2 November 1989 and 19 December 1990, the Indictment Division dismissed his three applications, finding that the detention had been ordered in conformity with the provisions of the European Convention on Extradition. It justified its refusal to release the applicant on the grounds of the risk of his absconding and the lack of guarantees to ensure his presence in connection with the further proceedings. On the question of the length of his detention, it considered that the proceedings had been "conducted uninterruptedly and without delay".
In response to the applicant’s complaint concerning the unlawfulness of the manner in which he had been placed in detention with a view to extradition, it observed that "the complaints in the pleadings on this point [were] a matter for French domestic law and [could not] be examined in extradition proceedings".
20. The applicant lodged three appeals on points of law. In a judgment of 19 December 1989 dismissing one of those appeals, the Court of Cassation stated as follows:
"... contrary to the claims of Thomas Quinn, the judges [of the Indictment Division] were not under a duty, in order to justify his continued detention, to refer solely to the provisions of Article 144 of the Code of Criminal Procedure [see paragraph 29 below], inasmuch as in extradition proceedings it is not their task to determine the merits of the charges brought against the person sought."
It observed in a judgment delivered on 15 April 1991 dismissing another appeal that the judges were not concerned with "the conditions and rules governing the foreign prosecution", and that "the decision of the Indictment Division of 4 August 1989 which ordered [the applicant’s] release in the proceedings brought against him in France was entirely without force for the purposes of extradition proceedings".
21. On 16 August 1989 the principal public prosecutor interviewed the applicant with a view to formally establishing his identity.
22. In a preliminary decision of 2 November 1989 the Indictment Division sought additional information from the requesting State.
The information which it obtained concerning the complainants, the bank accounts and the acts constituting the fraudulent transactions was communicated to the applicant at a hearing held on 17 January 1990. He pleaded that there had been an abuse of procedure on the part of the Swiss State. The Swiss authorities had sought to prevent the French court from exercising its jurisdiction.
23. On 14 March 1990 the Indictment Division of the Paris Court of Appeal ruled in favour of the applicant’s extradition.
Expressing its view on the notions of "urgency" and "person sought" within the meaning of the European Convention on Extradition, it stated as follows:
"The assessment of the urgency is a matter for that State [Switzerland] and that urgency was justified by the fact that Quinn’s release in the French proceedings had just been ordered;
The French authorities cannot be criticised for having warned the Swiss authorities as this conduct is natural and usual in the context of international judicial co-operation."
24. On 24 July 1990 the Court of Cassation dismissed as inadmissible under Article 16 of the Law of 10 March 1927 (see paragraph 28 below) Mr Quinn’s appeal on points of law against the Indictment Division’s opinion.
25. On 24 January 1991 the Prime Minister granted the Swiss authorities’ request for the applicant’s extradition. The order was served on him on the following 19 February.
Mr Quinn applied to the Conseil d’Etat for a stay of execution and for review of the order, but his application was dismissed on 31 January 1992, on, inter alia, the following ground:
"... the fact that the arrest warrant was issued by a Swiss judge on the day on which the Indictment Division of the Paris Court of Appeal gave its decision on an application for release filed by Mr Quinn, who was facing charges in France, does not establish, contrary to the applicant’s contention, that there was an abuse of procedure."
26. Mr Quinn, who had been in detention with a view to extradition from 4 August 1989 to 10 July 1991 - a period of one year, eleven months and six days - was surrendered to the Swiss authorities on 24 September 1992 (see paragraph 15 above).
27. The European Convention on Extradition which was signed in Paris on 13 December 1957 and which came into force on 11 May 1986 provides as follows:
"The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."
"1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory.
..."
"The requested Party may refuse to extradite the persons claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested."
"1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. ... The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.
..."
"...
3. If the [extradition] request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender.
..."
"1. The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested.
2. The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement by the Parties."
28. The Law of 10 March 1927 on the extradition of aliens provides, inter alia, as follows:
"Where there is no treaty, the conditions and the procedure for and the effects of the extradition shall be determined by the provisions of the present Law.
The present Law shall also apply to questions which have not been dealt with by the treaties."
"An extradition request shall not be granted:
...
3. Where the serious or less serious offences (crimes ou délits) have been committed in France or in the French colonial possessions;
..."
"Where an alien is prosecuted or convicted in France and where the French Government is requested to extradite him in connection with a different offence, he shall not be surrendered until the criminal proceedings have been concluded, and, in the event of his conviction, until the sentence has been executed.
However, this provision shall not preclude the sending on a temporary basis of the alien to appear before the courts of the requesting State, subject to the express condition that he be returned as soon as the foreign courts have given judgment.
..."
"[If the person concerned does not consent to being surrendered to the authorities of the requesting State], the Indictment Division, in a ruling against which no appeal lies, shall give its reasoned opinion on the extradition request.
..."
"If the Indictment Division’s reasoned opinion is opposed to granting the extradition request, that opinion shall be final and the request may not be granted."
"If the division is not opposed, the Minister for Justice shall submit, where appropriate, for the signature of the President of the Republic, an order authorising the extradition. If, within a period of one month of the extradition order being served, the authorities of the requesting State have not taken charge of the person to be extradited, he shall be released and his extradition may not be sought on the same grounds."
29. Under Article 144 of the Code of Criminal Procedure:
"... detention on remand may be ordered or continued:
1. Where the detention on remand of the accused is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims, or collusion between the accused and accomplices;
2. Where this detention is necessary to preserve public order from the prejudice caused by the offence or to protect the accused, to put an end to the offence or to prevent its repetition or to ensure that the accused remains at the disposal of the judicial authorities.
..."
Article 145-1 of the Code of Criminal Procedure reads as follows:
"In cases involving `less serious’ criminal offences (matière correctionnelle) detention on remand may not exceed four months. However, at the end of this period, the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article 145. No extension may be ordered for a period exceeding four months.
Where the person charged has not previously been sentenced for a serious or less serious offence (crime ou délit) to a non-suspended term of imprisonment exceeding one year and where the sentence he risks does not exceed five years, the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding two months.
In other cases, the person charged may not be kept in detention for longer than one year. However, in exceptional circumstances, the investigating judge may decide at the end of that period to extend the detention, for a period not exceeding four months, by a reasoned order made in accordance with the provisions of the first and fifth paragraphs of Article 145, it being possible to renew such an order under the same procedure. Nevertheless the person charged may not be kept in detention for more than two years where the sentence he risks does not exceed five years.
..."
30. As the execution of judgments is stayed during the periods prescribed for lodging appeals, the courts may order at the trial or appeal hearing that the convicted person remain in detention on remand (Articles 464-1, 465 and 569 of the Code of Criminal Procedure). This period of detention is deducted in full from the sentence imposed (Article 24 of the Code of Criminal Procedure).
31. A person detained following a request for extradition from a foreign government is subject to the same rules as a remand prisoner (Article D 507 of the Code of Criminal Procedure).
32. The decision of the court which rules on an application for release is immediately enforceable (Article 148-2 of the Code of Criminal Procedure, second sub-paragraph); responsibility for its execution lies with the principal public prosecutor (Article 207 of the Code of Criminal Procedure).
33. Prior to his release, a remand prisoner facing charges must make a statement giving his address (Article 148-3 of the Code of Criminal Procedure), before the investigating judge if the latter has had him taken out of prison or otherwise before the governor of the prison. In so far as the governor is required to obtain a declaration of the detainee’s address before releasing him, the investigating judge must inform him, when transmitting the order for his release, whether the accused has already given an address in his presence.
On release, each released detainee is issued with a release order (Article D 288 of the Code of Criminal Procedure). Where several detainees are due for release on the same day, precautions are to be taken to ensure that they do not meet each other, but the application of this rule must not have the effect of delaying beyond midday their release on the day on which they are to be released (Article D 289 of the Code of Criminal Procedure).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-79873
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MC ILVANNY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant is a British citizen born in 1972 and currently serving a life sentence in HM Prison Dumfries. He is represented by Robertson and Ross, solicitors practising in Paisley. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 May 1996 the applicant was convicted of murder, committed on 31 January 1996. He received a mandatory life sentence. The trial judge made no indication as to the length of sentence to be served.
In January 2001, the Justice Department of the Scottish Executive informed prisoners such as the applicant of proposed changes in the law affecting life prisoners (Convention Rights (Compliance) Bill).
On 8 October 2001, certain provisions of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”) came into force bringing the law governing the release of adult mandatory life prisoners into line with discretionary life prisoners and those convicted of murder under the age of 18. The 2001 Act required the punishment part of life sentences to be fixed by a court and hearings to be held in respect of existing life prisoners.
On 2 November 2001, the Scottish Ministers referred the applicant’s case to the High Court of Justiciary for a hearing under paragraph 12 of the Schedule to the 2001 Act.
On 18 April 2002, the preliminary review committee (PRC) indicated, by means of a recommendation to the Scottish Ministers, that he would receive his first formal review by the Parole Board after he had served nine years. While noting the savageness of the offence and numerous misconduct reports, the PRC also took into account his recent improvement in response in prison.
On 30 August 2002, the applicant applied for an extension of time to lodge a note of appeal against sentence, claiming that the judge ought to have backdated his sentence to the date when he was fully committed.
On 30 September 2002, High Court of Justiciary held a punishment part hearing in respect of the applicant. Lord Drummond Young ordered that twelve years be served before release on licence. At that time it was the opinion of the High Court that no account could be taken of circumstances following the conviction of an existing life prisoner, such as good conduct in prison or the existence of a date previously intimated as a date for first formal review of his case by the Parole Board.
The applicant appealed this decision, inter alia, claiming that he had been told in prison that his case would be reviewed from the nine-year point.
On 4 October 2002 and 18 November 2002 the court granted the applicant an extension of the time-limit for lodging a note of appeal.
On 22 November 2002, the applicant lodged his note of appeal.
On 4 June 2003 the case of Flynn v. HMA 2003 JC 153 was decided in the High Court of Justiciary. On 5 June 2003, the court granted leave to appeal to the Privy Council in that case, which inter alia raised issues as to length of proceedings under Article 6 of the Convention where a punishment part hearing was held some time after the original trial proceedings.
On 20 June 2003, the High Court held a hearing on the applicant’s sentence. It upheld his appeal and backdated his sentence to 2 February 1996.
On 31 July 2003, the applicant lodged an extension of time request to lodge a note of appeal against the setting of the punishment part of his sentence on 30 September 2002. On 5 August 2003, the court granted the extension.
On 10 August 2003, the applicant lodged his appeal against the punishment part, with grounds of appeal.
On 18 August 2003, the applicant lodged a devolution minute, raising various issues of legislative competence and Convention rights.
In October 2003, Lord Drummond Young issued his report to the appellate court.
On 13 November 2003, at first sift, the court refused leave to appeal.
On 13 January 2004, at second sift, the court granted leave.
On 18 March 2004, the Privy Council delivered judgment in Flynn v. HM Advocate (2004 SC (PC)1 and remitted it for decision by the High Court, finding that the provisions of the 2001 Act were compatible with Convention rights and that events after the date of the original conviction and sentence could be taken into account in a punishment part hearing of an existing life prisoner. In dismissing the appellants’ Convention complaints, Lord Rodger of Earlsferry rejected the argument that the appellants’ rights to a fair trial within a reasonable time had been violated due to the opening up of the case and the amendment of sentence many years later. He stated:
“This is a highly artificial argument since the original proceedings were completed within a reasonable time for the purposes of Article 6(1). Since then, in Convention rights’ terms, the appellants’ position has been governed by Article 5(1)(a) and (4). In any event it is now accepted that in terms of Article 6(1) the determination of the period to be served by the appellants as a punishment should have been made by the judge as part of the trial and not by the Scottish Ministers. The legislation and the punishment part hearings under paragraph 13 are designed to cure this violation. Since the punishment part proceedings themselves have not violated the reasonable time guarantee in Article 6(1), there is no basis for holding that, overall, that guarantee had been breached in these cases.”
By letters dated 6 November and 31 December 2004 and 11 April 2005, the applicant’s solicitor wrote to the court inquiring about the hearing date for the appeal.
In summer 2005, the Scottish Executive lodged its report about the applicant’s conduct in prison and any expectations under previous release arrangements.
By decision of 10 August 2005, the High Court noted the horrific nature of the crime (his victim was stabbed 62 times) and his record in prison of 85 misconduct reports (including 13 positive drugs tests). It concluded that he was not a person appropriately directing himself in relation to arrangements for his release and that there was no basis for making any discount on the 12-year period.
On 1 February 2008, the applicant’s punishment part of his sentence will expire.


ITEMID: 001-82991
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KORSHUNOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;Violation of Art. 6-1;Remainder inadmissible
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1971 and lives in St Petersburg.
6. On 7 August 2000 a criminal case was opened into smuggling of consumer goods.
7. On 25 June 2002 the Investigations Department of the Federal Security Service (“FSB”) declared the applicant to be a suspect in the criminal case. His whereabouts, however, could not be established. On 12 July 2002 the applicant's name was put on the list of fugitives from justice.
8. On 23 November 2003 the applicant was arrested by the Chinese police in Guangzhou, China, where he lived with his family.
9. On 26 November 2003 the applicant was extradited to Russia where he was taken into custody by the FSB. He was charged with several counts of aggravated smuggling.
10. From April to November 2005 the applicant was granted access to the materials in the case file.
11. On 29 November 2005 the case was referred for trial before the Avtozavodskiy District Court of Nizhniy Novgorod. According to the Government, the case materials comprised 113 binders; charges had been brought against five individuals who had acted in conspiracy; the witnesses' list included seventy-six prosecution witnesses from several cities in Russia, Belarus, Ukraine, China and Italy, as well as twenty-five witnesses and experts for the defence.
12. On 16 December 2005 the Avtozavodskiy District Court held the preliminary hearing and fixed the opening trial date for 28 December 2005.
13. On 23 March 2006 the Avtozavodskiy District Court ordered that the case be returned to the Prosecutor General's Office for correcting defects in the indictment against the applicant. That decision was set aside by the Nizhniy Novgorod Regional Court on 2 May 2006, which referred the case back to the District Court.
14. On 29 May 2006 the trial resumed but it was subsequently stayed from 23 June to 24 July 2006.
15. On 31 January 2007 the applicant was released on bail.
16. According to the information provided by the parties and the elements available in the case-file to date, the criminal proceedings are still pending before the trial court.
17. On 26 November 2003 the Lefortovskiy District Court of Moscow ordered the applicant's detention on the grounds that he was charged with a particularly serious offence and could abscond, or interfere with, the investigation. On 10 December 2003 the Moscow City Court upheld the detention order, following an appeal by the applicant's counsel.
18. On 23 January, 5 April and 4 August 2004 the Lefortovskiy District Court extended the applicant's detention. Each time the District Court referred to the gravity of the charge against the applicant and to unspecified grounds to believe that he would abscond.
19. Further extensions were granted by the Moscow City Court on 24 November 2004, 25 March and 5 May 2005. By way of justification, the City Court invoked the gravity of the charges against the applicant and noted that the applicant had been in hiding from 2002 to 2004 [sic] and that two other co-defendants had also absconded. The extension order of 5 May 2005 specified that the applicant should remain in custody “until the defendants and their counsel had finished studying the case file, the prosecutor had referred the case for trial and the trial court had decided on the measure of restraint”.
20. The applicant's appeals against the extension orders were rejected.
21. On 29 November 2005 the applicant was moved to remand centre no. IZ-52/1 in Nizhniy Novgorod.
22. On 16 December 2005 the Avtozavodskiy District Court extended the applicant's detention, referring to the gravity of the charges against the applicant, his history of absconding, and the risk that he would “otherwise” interfere with the course of the trial because two other defendants had gone into hiding. On 24 January 2006 the Nizhniy Novgorod Regional Court upheld that decision on appeal.
23. On 1 June 2006 the Avtozavodskiy District Court, by a single decision, ordered to extend the applicant's and his co-defendant's detention until 2 September 2006, holding as follows:
“In deciding on extending the period of detention, the court takes into account that the measure of restraint in respect of [the applicant and his co-defendant] was imposed in accordance with Articles 97 to 101 and 108 of the Code of Criminal Procedure as there existed sufficient grounds to believe that they would abscond investigation and trial or interfere with the criminal proceedings. The grounds justifying the application of the measure of restraint still obtain to date. Positive references of the defendants and their medical ailments do not remove the grounds to believe that they can abscond because they are charged with particularly serious offences”.
24. Counsel for the applicant filed an appeal. He submitted, in particular, that the first-instance court had failed to take into account the facts mitigating for the applicant's release, such as the absence of a prior criminal record, positive references, a need to provide for his minor son, his chronic ailments, and the long period of detention which had already exceeded thirty months.
25. On 26 June 2006 the Nizhniy Novgorod Regional Court upheld on appeal the extension order of 1 June 2006, noting that the initial grounds justifying the holding of the applicant and his co-defendant in custody still obtained and that the defence had not put forward any arguments warranting a change in the preventive measure.
26. On 21 August and 16 November 2006 the Avtozavodskiy District Court granted further extensions of the applicant's and his co-defendant's detention, invoking two grounds: that they were charged with particularly serious offences punishable with up to twelve years' imprisonment, and that the applicant had once absconded, whereas the investigation had established that his co-defendant had planned to abscond.
27. In the decision of 21 August 2006 the District Court found that:
“...if the preventive measure is replaced with a more lenient one, there exists a risk that the defendants would not appear at trial; thus, only the custodial measure may... ensure the protection of the interests of the State and society against crime and the possibility of a fair trial.”
28. The decision of 16 November 2006 employed a somewhat different wording which read as follows:
“Another, more lenient preventive measure, such as bail, would not be able to ensure a fair trial in this particular case. For that reason the need to ensure an effective protection of the public interests – notwithstanding the presumption of innocence and long periods of detention of both defendants – justifies a departure from the principle of individual liberty.”
29. On 11 September and 15 December 2006 the Nizhniy Novgorod Regional Court upheld, in a summary fashion, the above decisions.
30. On 30 January 2007 the Avtozavodskiy District Court granted the applicant's and his co-defendant's application for release on bail. It found that, although the risk of absconding still existed, with the passage of time that risk was no longer sufficient to justify a breach of the principle of individual liberty. The bail was set at 1,500,000 Russian roubles (approximately 44,000 euros). On the following day the applicant was released.
31. Since 1 July 2002 detention matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001).
32. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).
33. When deciding on a preventive measure, the court is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or interfere with the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).
34. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
35. After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” is two months but it can be extended for up to six months. Further extensions for up to twelve or eighteen months may be authorised only if the accused is charged with serious or particularly serious criminal offences (Article 109 §§ 1-3).
36. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “during the trial”. The term of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
37. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code).
38. A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-5
6-1


ITEMID: 001-71813
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ATANASOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicants, Mihajlo Atanasovic, Slavko Atanasovski and Savka Milanovska, are nationals of the former Yugoslav Republic of Macedonia, who were born in 1937, 1945 and 1926 respectively, and live in Kumanovo, the former Yugoslav Republic of Macedonia.
5. By judgments of the then Kumanovo Municipal Court (Општински суд во Куманово) of 7 December 1988 and 17 May 1989, the applicants obtained parts of the movable and immovable property of Mr S.A., the father of the first and the second applicants.
6. In 1989 the applicants instituted proceedings to divide the property of Mr S.A. On 22 November 1990 the Kumanovo Municipal Court decided the applicants’ claim and divided the property at issue. Mr S.A. was also ordered to pay certain amounts to each of the applicants, in compensation for the movable property that was awarded only to him.
7. As Mr S.A. did not comply, the applicants instituted enforcement proceedings before the Kumanovo Municipal Court.
8. On 20 March 1991 the Kumanovo Municipal Court ordered public sale of certain items belonging to Mr S.A. to satisfy the applicants’ claims.
9. On 17 September 1991 the Kumanovo Municipal Court accepted Mr S.A.’s objection that the interest had been miscalculated and ordered a new calculation.
10. On 15 December 1991 Mr S.A. passed away. On 10 March 1992 the court stayed the enforcement proceedings pending the decision as to the succession to Mr S.A.’s estate.
11. By a decision of 21 May 1993, delivered in separate succession proceedings, the Kumanovo Municipal Court determined five heirs of Mr S.A.’s estate: the first and second applicants and their three brothers – Mr S.K., Mr K.I. and Mr C.I. Each of the heirs obtained equal parts of their late father’s estate.
12. On 22 December 1993 the applicants asked the Kumanovo Municipal Court to continue the enforcement proceedings against one of their brothers, Mr C.I. The applicants argued that Mr C.I. should take over his late father’s debts towards them as he had allegedly been in possession of Mr. S.A.’ s estate before his death and had benefited from it.
13. On 20 March 1994 the court granted the applicants’ request and approved the enforcement of their claims against Mr C.I.
14. On 9 May 1994 the Kumanovo Municipal Court upheld Mr C.I’s challenge and stayed the enforcement proceedings. The court decided to continue the proceedings against all five heirs for the execution of the third applicant’s claims only. The first and the second applicants were thus named debtors and the third applicant - the sole creditor.
15. On 14 December 1995 the then Skopje District Court (Окружен суд во Скопје) upheld the applicants’ and Mr C.I.’s complaints. It quashed the lower court’s decision and ordered a retrial. It, inter alia, instructed the lower court to examine the case on the basis of section 144 of the Law on inheritance whether and, if so, to what extent, Mr C.I. owed sums of money to the applicants. It also instructed the lower court to establish whether the amount of the debt was correctly calculated.
16. No further actions were taken by the Municipal Court of Kumanovo.
17. On 9 December 1998 the applicants requested the Kumanovo Municipal Court to resume the enforcement proceedings and to re-evaluate their original claims. They received no reply to their request.
18. Section 99 § 3, in so far as relevant, provides that a judge shall be discharged: with regard to a serious disciplinary offence as defined by law, making him/her unsuitable to perform the office of a judge as decided by the Republican Judicial Council; with regard to the unprofessional and unethical conduct of a judge, as described by the Republican Judicial Council in a procedure set forth by law.
19. Section 105 provides that the Republican Judicial Council proposes to the [National] Assembly the election and discharge of judges and determines proposals for the discharge of a judge in cases set forth in the Constitution; decides on the disciplinary responsibility of judges; assesses the competence and ethical behaviour of judges in the performance of their office.
20. According to Section 76 § 1, the Ministry of Justice carries out tasks related to the judiciary’s administration.
21. Section 76 § 2 provides that the Ministry of Justice communicates with the Presidents of Courts with regard to the court’s administration.
22. Section 77 provides, inter alia, that the following matters fall within the court’s administration: the examination of the petitions and complaints of citizens concerning the work of the courts in respect to postponement of the proceedings or the work of the court services; the supervision of the court’s efficiency.
23. According to Section 81 the President of the Court represents the latter, organises its work and takes measures with regard to the prompt and regular enforcement of the court’s affairs.
24. Section 32 provides, inter alia, that the Council assesses the ability and moral character of the judges when the information concerning the results achieved, the number of the cases resolved, the quality and promptness of their work indicate that the office of a judge has been performed unprofessionally, unethically and incompetently in general.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67928
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PY v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: No violation of P1-3;Not necessary to examine Art. 14
TEXT: 8. The applicant was born in 1964 and lives in Nancy. He is a university lecturer and researcher in private law and is a member of the French civil service.
9. On 1 September 1995 he was appointed to a post at the French University of the Pacific in Nouméa, New Caledonia, which at the material time was a French overseas territory. The holder of the post was required to live in the territory.
10. The applicant applied to be registered on the electoral rolls for his place of residence. He was entered on the general electoral roll for the municipality of Nouméa but was refused registration on the special electoral roll for the 1998 ballot on self-determination. On 7 April 1997 the mayor of Nouméa notified him that he had been deemed not to satisfy the residence requirements laid down in section 2 of the Act of 9 November 1988 in that he could not show that he had been permanently resident in New Caledonia since 6 November 1988. The applicant did not appeal against that decision.
11. On 5 May 1998 the Nouméa Accord was signed. It laid down transitional arrangements for the political organisation of New Caledonia and for its move to self-determination. It altered New Caledonia's constitutional status, making it a sui generis territory with its own specially designed institutions. Article 77 of the Constitution was consequently amended to provide that the measures required for the implementation of the Accord were to be laid down in an institutional Act.
12. Institutional Act no. 99-209 of 19 March 1999 brought about the twelfth institutional reform in New Caledonia since 1853, giving it its ninth different status since 1976. It strengthened Congress's powers and introduced a ten-year residence requirement for taking part in the election of members of Congress and the provincial assemblies.
13. On 9 April 1999 the applicant applied to be registered on the special electoral roll for the elections to Congress and the provincial assemblies on 9 May 1999 in the municipality of Nouméa. He was refused registration on the ground that he could not show that he had been permanently resident in New Caledonia in the ten years prior to 9 May 1999.
14. The applicant applied to the Nouméa Court of First Instance for a review of the conformity of the Act with the Convention, and for registration on the special electoral roll for the municipality of Nouméa. On 3 May 1999 the court dismissed his applications.
15. The applicant appealed on points of law to the Court of Cassation, complaining that the Court of First Instance had found against him despite the fact that the refusal to register him contravened various provisions of domestic and international law, in particular Articles 1 and 3 of the Constitution of 4 October 1958, Articles 2, 7, 21-1 and 21-3 of the Universal Declaration of Human Rights of 10 December 1948, Article 14 of the Convention, Articles 2-1, 25 and 26 of the New York Covenant of 19 December 1966, Article 6 of the Declaration of the Rights of Man and the Citizen of 26 August 1789, Articles 225-1 and 432-7 of the new Criminal Code, and the Preamble to the Constitution of 27 October 1946.
16. On 13 July 2000 the Court of Cassation dismissed his appeal on the ground that the conditions for taking part in elections to Congress and the provincial assemblies followed from an institutional Act which ranked as constitutional law in that it reproduced the wording of the Nouméa Accord, which itself had constitutional status by virtue of Article 77 of the Constitution. It dismissed the applicant's arguments concerning the provisions of the Convention, holding in particular that the precedence accorded to international undertakings did not apply in the domestic legal order in relation to provisions ranking as constitutional law.
17. The applicant also produced to the Court a decision of 2 June 2000 in which the Court of Cassation had dismissed, on the same grounds, an appeal which was similar to his but which alleged a violation of Article 3 of Protocol No. 1.
...
Chapter I: Distribution of powers among the State, New Caledonia, provinces and municipalities
...
Section 1: Powers vested in the State and New Caledonia
...
“Congress shall be the deliberative body of New Caledonia. It shall have fifty-four members: seven from the Loyalty Islands provincial assembly, fifteen from the Northern provincial assembly and thirty-two from the Southern provincial assembly.
Members of Congress shall be elected for a five-year term in the manner prescribed in Part V. ...”
“The power to initiate territorial laws and regulations shall be vested conjointly in the Government and the members of Congress.”
Section 2: Powers assigned to Congress
“The powers assigned to New Caledonia by Chapter I of Part II shall be exercised by Congress, with the exception of those conferred by this Act on the Government or the President of the Government.”
“Congress shall adopt the budget and approve the accounts for New Caledonia. ...”
“In criminal matters, Congress may make offences against territorial laws and regulations punishable by fines that are commensurate with the classification of petty and more serious offences [contraventions et délits] and do not exceed the maximum amount applicable for offences of the same nature under national legislation and regulations. It may also make such offences subject to such additional penalties as are provided for in national legislation and regulations for offences of the same nature.
Congress may also make provision for administrative penalties for any offence.”
...
Chapter II: Territorial laws
“Instruments by which Congress enacts provisions on the matters listed in the following paragraph shall be designated as 'territorial laws'.
Territorial laws may be enacted in the following areas, being those in which powers are exercised by New Caledonia, or from the date on which they are transferred pursuant to this Act:
(1) symbols of identity and name as referred to in Article 5;
(2) rules on the assessment and collection of taxes, duties or charges of any kind;
(3) basic principles governing labour law, trade-union law and social-security law;
(4) rules on aliens' access to employment;
(5) customary civil status, rules governing customary land and customary assemblies; boundaries of customary areas; procedure for appointing members of the Customary Senate and the customary councils;
(6) rules governing hydrocarbons, nickel, chromium and cobalt;
(7) rules governing publicly owned land in New Caledonia and the provinces, subject to the provisions of Article 127, point (13);
(8) rules on access to employment, pursuant to Article 24;
(9) rules on civil status and capacity, systems of matrimonial property, inheritance and voluntary dispositions;
(10) basic principles concerning ownership, rights in rem and civil and commercial obligations;
(11) apportionment among the provinces of the operating grant and the equipment grant referred to in paragraphs I and II of Article 181; and
(12) powers transferred and the schedule for their transfer, as provided in Section 1 of Chapter I of Part II.”
...
Part V: Elections to Congress and the provincial assemblies
Chapter II: Electorate and electoral rolls
“I. Congress and the provincial assemblies shall be elected by an electorate composed of persons who
(a) satisfy the conditions for registration on New Caledonia's electoral rolls for the ballot of 8 November 1998; or
(b) are listed in the appended table and have been resident in New Caledonia for ten years on the date of the election to Congress and the provincial assemblies; or
(c) have reached the age of majority after 31 October 1998 and can either show that they have been resident in New Caledonia for ten years prior to 1998, or have a parent who was eligible to vote in the ballot of 8 November 1998, or have a parent who is listed in the appended table and has been resident in New Caledonia for ten years on the date of the election. ...”
“Examination of the merits
11.2 The Committee has to determine whether the restrictions imposed on the electorate for the purposes of the local referendums of 8 November 1998 and in 2014 or thereafter constitute a violation of articles 25 and 26 of the Covenant, as the authors maintain.
...
13.3 In the present case, the Committee has taken note of the fact that the local ballots were conducted in the context of a process of self-determination of the population of New Caledonia. ...
13.5 In relation to the authors' complaints, the Committee observes, as the State party indeed confirms, that the criteria governing the right to vote in the referendums have the effect of establishing a restricted electorate and hence a differentiation between (a) persons deprived of the right to vote, including the author(s) in the ballot in question, and (b) persons permitted to exercise this right, owing to their sufficiently strong links with the territory whose institutional development is at issue. The question which the Committee must decide, therefore, is whether this differentiation is compatible with article 25 of the Covenant. The Committee recalls that not all differentiation constitutes discrimination if it is based on objective and reasonable criteria and the purpose sought is legitimate under the Covenant.
13.6 The Committee has, first of all, to consider whether the criteria used to determine the restricted electorates are objective.
...
13.8 The Committee considers that the above-mentioned criteria are based on objective elements for differentiating between residents as regards their relationship with New Caledonia, namely the different forms of ties to the territory, whether specific or general – in conformity with the purpose and nature of each ballot. The question of the discriminatory or non-discriminatory effects of these criteria nevertheless arises.
...
13.10 ... the Committee considers that the criterion used for the 1998 referendum establishes a differentiation between residents as regards their relationship to the territory, on the basis of the length of 'residence' requirement (as distinct from the question of cut-off points for length of residence), whatever their ethnic origin or national extraction. ...
13.11 The Committee therefore considers that the criterion used for the 1998 referendum did not have the purpose or effect of establishing different rights for different ethnic groups or groups distinguished by their national extraction.
...
13.13 Finally, the Committee considers that in the present case the criteria for the determination of restricted electorates make it possible to treat differently persons in objectively different situations as regards their ties to New Caledonia.
13.14 The Committee also has to examine whether the differentiation resulting from the above-mentioned criteria is reasonable and whether the purpose sought is lawful vis-à-vis the Covenant.
...
13.16 The Committee recalls that, in the present case, article 25 of the Covenant must be considered in conjunction with article 1. It therefore considers that the criteria established are reasonable to the extent that they are applied strictly and solely to ballots held in the framework of a self-determination process. ...
...
13.18 Consequently, the Committee considers that the criteria for the determination of the electorates for the referendums of 1998 and 2014 or thereafter are not discriminatory, but are based on objective grounds for differentiation that are reasonable and compatible with the provisions of the Covenant.
...
14.2 The Committee considers that it is not in a position to determine the length of residence requirements. It may, however, express its view on whether or not these requirements are excessive. In the present case, the Committee has to decide whether the requirements have the purpose or effect of restricting in a disproportionate manner, given the nature and purpose of the referendums in question, the participation of the 'concerned' population of New Caledonia.
...
14.5 The Committee considers, first, that the cut-off points adopted do not have a disproportionate effect, given the nature and purpose of the referendums in question, on the authors' situation, particularly since their non-participation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum.
14.6 The Committee further considers that each cut-off point should provide a means of evaluating the strength of the link to the territory, in order that those residents able to prove a sufficiently strong tie are able to participate in each referendum. The Committee considers that, in the present case, the difference in the cut-off points for each ballot is linked to the issue being decided in each vote: the 20-year cut-off point – rather than 10 years as for the first ballot – is justified by the time frame for self-determination, it being made clear that other ties are also taken into account for the final referendum.
14.7 Noting that the length of residence criterion is not discriminatory, the Committee considers that, in the present case, the cut-off points set for the referendum of 1998 and referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory.
15. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of any article of the Covenant.”