ITEMID: 001-95996
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: TOMASIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicants, Mr Vjekoslav Tomašić and Mrs Jelka Tomašić, are Croatian nationals who were born in 1942 and 1941 respectively and live in Zagreb. They were represented before the Court by Mr D. Rotar, an advocate practising 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.
On 1 January 1997 the Act on Compensation for, and Restitution of, Property Taken under the Yugoslav communist regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine – “the Denationalisation Act”) entered into force. It enabled the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or a spouse), to obtain under certain conditions either restitution of or compensation for property appropriated during the communist regime. They were required to submit their requests within six months from the Act’s entry into force. Requests submitted after that date were to be declared inadmissible.
Pursuant to section 22 of the Denationalisation Act, nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the provider of the flat under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo). At the same time, the former owners were entitled to financial compensation in respect of the flats.
On the other hand, pursuant to section 32 of the Denationalisation Act, confiscated flats were to be awarded to their former owners. Under section 13 of the Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine), the tenant had the right to purchase a confiscated flat only if no request for its restitution had been submitted or if such request had been dismissed in a final decision.
The applicants were holders of the specially protected tenancy of a flat in Zagreb, measuring 125 square metres. The flat is located in the same building, which on 28 November 1945 was confiscated from its owner T.G. by the communist authorities.
On 25 March 1997 the applicants made a request to the City of Zagreb to purchase their flat, under the Specially Protected Tenancies (Sale to Occupier) Act.
On 9 March 1998 the applicants asked the Office for Property Affairs of the City of Zagreb (Grad Zagreb, Gradski ured za imovinskopravne poslove) whether a request for restitution of the building in which their flat was located had been submitted. In their letter of 28 May 1998 the Office replied that no such request had been submitted.
On 10 September 1998 the City of Zagreb, as the provider of the flat, concluded a contract of sale with the applicants whereby it sold them the flat in respect of which they had a specially protected tenancy for 87,255 Croatian kunas (HRK). Shortly afterwards the applicants were recorded as the owners of the flat in the land register.
Meanwhile, on 13 June 1997 K. and F.G. and M.D., the heirs of the former owner T.G., (“the heirs of T.G.” or “T.G.’s heirs”) instituted administrative proceedings before the Office for Property Affairs of the City of Zagreb by submitting a request for restitution of T.G.’s confiscated property, including the above-mentioned building.
On 11 June 1999 the Office delivered a partial decision awarding ownership of all business premises in the building at issue to the heirs of T.G.
On 19 January 2001 the Office delivered another partial decision awarding ownership of all flats in the building, except the applicants’ flat and one other, to T.G.’s heirs.
On 3 January 2007 the Office delivered the last partial decision whereby it awarded ownership of the two remaining flats, including the applicants’ flat, to the heirs of T.G. and declared that the applicants had acquired the status of protected lessees (zaštićeni najmoprimci) under section 33 of the Denationalisation Act. The applicants appealed.
It appears that the proceedings are currently pending before the Ministry of Justice (Ministarstvo pravosuđa), as the second-instance administrative authority.
On 20 July 2001 the heirs of T.G. brought a civil action against the applicants and the City of Zagreb in the Zagreb Municipal Court (Općinski sud u Zagrebu). They asked the court to declare the above contract of sale null and void as being contrary to peremptory rules. They argued that under the Denationalisation Act, confiscated flats were not to be sold to their tenants but awarded to their former owners. Only if the former owner’s request for restitution had been dismissed or declared inadmissible were the tenants allowed to purchase such flats. They plaintiffs explained that on 13 June 1997 they had submitted a request for restitution of the entire building in which the flat in question was located with the Office for Property Affairs of the City of Zagreb, and that this request had not been dismissed or declared inadmissible by the time the impugned contract of sale had been concluded. On the contrary, on 11 June 1999 and 19 January 2001 that Office had adopted decisions awarding them ownership of the building with all the flats and business premises in it. Therefore, the City of Zagreb had not been allowed to sell the flat while the request for its restitution was pending. The applicants replied that it was the same Office for Property Affairs which in its letter of 28 May 1998 had informed them that no request for restitution had been lodged in respect of their flat. They had therefore acted in good faith when they had concluded the contract of sale and should not suffer the consequences of the mistake made by the authorities.
On 4 February 2004 the court declared the impugned contract of sale null and void ab initio, endorsing the arguments adduced by the plaintiffs. In doing so it noted the applicants’ main argument that they had been misinformed by the authorities, but did not expressly address that argument. It confined itself to stating that the contract was in breach of peremptory rules and therefore null and void from its inception. The applicants appealed.
On 18 October 2005 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicants and upheld the first-instance judgment endorsing the reasons given therein. It added that the Office for Property Affairs had obviously made a clerical error when on 28 May 1998 it had informed the applicants that no request for restitution had been submitted as regards the building in which their flat was located. However, since it had been established beyond doubt that the plaintiffs had indeed submitted such a request, the City of Zagreb had breached peremptory rules when later on it sold the flat to the applicants.
The applicants then lodged a constitutional complaint, alleging violations of their constitutional rights to property and equality before the law.
On 24 January 2007 the Constitutional Court dismissed the applicants’ constitutional complaint and served its decision on their representative on 13 February 2007. It agreed with the findings of the lower courts and added that the letter of the Office for Property Affairs of 28 May 1998 could not be considered a certificate or an extract from the official records, that is, a public document in respect of which it could have been presumed that the information it contained was correct. It explained that this was so because the offices for property affairs had not been keeping records on requests submitted under the Denationalisation Act.
The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/1996, 92/1999 (corrigendum), 80/2002 (amendments) and 81/2002 (corrigendum) – “the 1996 Denationalisation Act”), which entered into force on 1 January 1997, enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and a spouse), to seek under certain conditions either restitution of or compensation for appropriated property. The relevant provisions of the Denationalisation Act read as follows:
I. BASIC PROVISIONS
“...
(2) Restitution of property appropriated from former owners within the meaning of this Act shall, in principle, take the form of payment of compensation in money or securities (stocks or shares, or bonds), or, exceptionally, restitution in kind.
...
(4) Ownership of confiscated property shall be awarded to its former owner in accordance with this Act, and if this is impracticable ... the former owner shall have the right to compensation in the form of money or securities.”
IV. SUBJECT OF RESTITUTION
3.1. (a) RESTITUTION OF APPROPRIATED FLATS
“(1) Unless they were appropriated by means of confiscation, the ownership of flats ... let under specially protected tenancies shall not be restored to their former owners.
...
(3) The former owner shall have the right to compensation and the tenant [i.e. the holder of a specially protected tenancy] shall have the right to purchase the flat.”
3.1. (b) RESTITUTION OF CONFISCATED FLATS
“Ownership of a flat appropriated [by means of confiscation] shall be awarded to its former owner.”
“Where the flat is awarded to its former owner, the tenants [i.e. the holders of a specially protected tenancy of the flat] shall acquire the status of [protected] lessees under the provisions of [the Lease of Flats Act].”
“In the case of further disposal in rem of the flat, the lessee shall have the right of pre-emption.”
VI. EXCEPTIONS FROM RESTITUTION IN KIND OF NATIONALISED, CONFISCATED OR OTHERWISE APPROPRIATED PROPERTY
“Unless otherwise provided by this Act, ownership and possession of property of which third persons have acquired ownership on the basis of a valid legal title, or of property which has been handed over into their possession on the basis of a valid legal title for acquiring ownership, shall not be returned to the former owner.”
The Appropriated Property Compensation Fund Act (Zakon o Fondu za naknadu oduzete imovine, Official Gazette nos. 69/1997, 105/1999 and 64/2000), which entered into force on 12 July 1997, reads as follows in so far as relevant:
“The tenants (lessees) of confiscated flats in respect of which no requests for restitution were submitted within the time-limit prescribed by [the Denationalisation Act], or such requests were dismissed by a final decision, shall acquire the right to purchase their flats under the provisions of that Act.”
The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments – “the 1978 Obligations Act”) provided as follows:
“(1) A contract that is contrary to the Constitution, peremptory rules or morals shall be null and void unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise.
(2) If the conclusion of a contract is prohibited only to one party, the contract shall remain valid, unless the law in a particular case provides otherwise, and the party that has breached the statutory prohibition shall bear the relevant consequences.”
“Where a contract is null and void, each contracting party is bound to return to the other everything it has received on the basis of such a contract. If that is not possible, or if the nature of the obligation performed renders restitution impracticable, an appropriate [amount of] monetary compensation shall be given, according to the prices at the moment a court decision is passed, unless the law provides otherwise.”
“(1) A contract that is null and void shall not become valid if the cause of nullity subsequently disappears.
(2) However, if a prohibition was of minor importance, and the contract has been performed, the issue of nullity may not be raised.”
“A contracting party responsible for the conclusion of a contract that is null and void shall be liable in damages to the other contracting party for the damage sustained on account of the nullity of the contract, if the latter did not know or, according to the circumstances, should not have known of the existence of the cause of nullity.”
“(1) The court shall examine the issue of nullity of its own motion [ex officio] and any interested party may raise it.
(2) A state attorney shall also have the right to plead nullity.”
“The right to plead nullity shall not lapse.”
On 1 January 2006 the new Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 35/2005 and 41/2008 – “the 2006 Obligations Act”) entered into force. Its sections 322, 323 and 326 to 328 contain the same provisions as sections 103, 104 and 107 to 110 of the 1978 Obligations Act.
The other relevant domestic law and practice are set out in Pavlinović and Tonić v. Croatia (dec.), nos. 17124/05 and 17126/05, 3 September 2009).


ITEMID: 001-115019
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF R.R. AND OTHERS v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Respondent State to take individual measures (Article 46-2 - Individual measures);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The first applicant, Mr R.R., is a Serbian national who was born in 19... and lives in Hungary. The second applicant, Ms H.H., a Hungarian national, is his common-law wife who was born in 19.... The other three applicants are their minor children.
6. On 12 June 2007 the first applicant, once active in a drug-trafficking mafia run by Serbians in a European country and subsequently in hiding in Hungary under a false identity, was apprehended by the Hungarian police. It is disputed whether he turned himself in or was arrested. He admitted to various offences he had committed and gave information, secretly, about the activities of the mafia in question, enabling prosecution against it. He was offered a plea bargain which he accepted. Subsequently the Hungarian prosecution, despite his complaints, joined his own case to the one conducted against the criminals he had been informing about. This required him to appear in open court, disclose his identity and act publicly as a collaborator of justice.
7. Since this event apparently resulted in the applicants being exposed to vengeance from the Serbian mafia, the family was enrolled in the Witness Protection Scheme on 28 August 2007. The agreement on their enrolment contained a clause to the effect that if it was cancelled on account of a breach of the rules of the Scheme by the first applicant, the whole family would be excluded from the Scheme.
8. Within the framework of the Scheme, the following measures of special protection were introduced, in compliance with section 16(1a–c) of Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”). The applicants were issued with new personal documents as part of providing them with new identities.
Ms H.H. and the children were accommodated in a three-room, then in a four-room ‘safe flat’ and finally in a five-room family house. The two elder children attended school, while the youngest child – who suffers from medium-grade autism – attended a crèche providing special care, then a kindergarten. The applicants submitted that, in any case, no adequate care was provided in respect of this child’s condition – an assertion disputed by the Government. They further alleged that during this time the Scheme’s operatives insisted that the first and second applicant should break up their relationship.
9. On or some time after their admission to the Scheme, the family – having otherwise no regular income in excess of the various welfare allowances due under the law – started to receive a monthly subsistence allowance. Their rent, public utility bills, health care and schooling costs (including those related to the situation of the youngest child, in particular the fee of a teacher specialised in developing pedagogy) were wholly or partly paid by the Scheme. Resources were allotted to the children’s clothing, the maintenance of the family’s car and their travel costs incurred when visiting the first applicant, who was in detention. The latter also received a sort of allowance with regard to his participation in the Scheme. The amounts of these disbursements were raised several times.
10. During this time, the first applicant was imprisoned in an unspecified jail. As to his contact history during the programme, the Government submitted that the family had kept regular contact with him through emailing, phone calls and in the form of monthly visits (an hour per month as per the witness protection agreement). If a visit was, for some reason, omitted, it was substituted either by another occasion or by prolonging the next visit. The last time the first applicant and his family met while the programme was running was on 26 January 2012. The next visit, scheduled for 9 February 2012, was cancelled due to the illness of the youngest child. Arrangements for a substitute visit could not be made, since on 28 February 2012 the first applicant was found in the possession of prohibited articles (see paragraph 14 below) and subjected to a 30-day, then a 10-day confinement; and on 12 April 2012 the applicants’ enrolment in the programme was cancelled altogether.
A month or so after his enrolment in the Scheme in 2007, the first applicant’s whereabouts were communicated to his lawyer; the latter subsequently attended several of his meetings with operatives of the National Bureau of Investigations.
11. The first applicant submitted that during his trial his mother was assaulted at her home in Serbia and the perpetrators made it clear to him, in an unknown manner, that the assault was in connection with him being a collaborator of justice. He emphasised that he did not change his mind about becoming a collaborator of justice although a significant sum of ‘blood money’ had been set by the Serbian mafia on his head because of this, and his parents had been – and still were – being harassed by the Serbian authorities and the mafia.
12. The Government submitted that the operatives of the Scheme carried out, as is the standard practice, a careful assessment of potential threats to the applicants, including interviewing some of the first applicant’s relatives. However, although the first applicant repeatedly mentioned the setting of ‘blood money’ of 200,000 euros on his head by Serbian mafia men, no evidence corroborated this allegation in the eyes of the authorities. In the applicants’ view, the gathering of information in this respect was insufficient.
13. After numerous hearings held between 5 November 2007 and 9 February 2009, on 23 February 2009 the Budapest Regional Court convicted the first applicant, as a member of a criminal organisation consisting of another 18 persons, of aggravated abuse of narcotics and of firearms and other offences and sentenced him to 14 years of imprisonment. In the reasoning of its 187-page judgment, the Regional Court relied inter alia on testimonies given by numerous experts and witnesses, including that of the first applicant, physical evidence, documents and information obtained through secret surveillance.
On 6 January 2010 the Budapest Court of Appeal reduced the first applicant’s sentence to six years.
On 6 October 2010 the Supreme Court aggravated the first applicant’s sentence to nine years.
Some of the persons who, in the authorities’ perception, represented a threat to the applicants were convicted in the same proceedings.
14. During his ensuing detention, on 28 February 2012 a laptop computer and a mobile internet device, held without authorisation, were found by the guards in his cell. He was caught in the act of communication using a voice-over-internet service. It could not be established how the prohibited devices had been smuggled into the penitentiary. The identities of the person or persons the first applicant had communicated with could not be determined with certainty either. The authorities nevertheless deduced from the first applicant’s oral statements and the circumstances that he might have maintained contacts with criminal circles.
15. As a sanction, the entire family was excluded from the Scheme on 12 April 2012. This was explained by the fact that, by carrying out illicit communications, the first applicant had seriously breached the clauses of the agreement with the Scheme. It was found that, by virtue of this exposure, he had become a source of danger in the first place for his family and also for the operatives of the Scheme. It was also recalled that the co-operation between him and the Scheme operatives had gradually become very difficult, since he had kept complaining about various matters and demanded advantages not provided in the protection agreement or their better implementation.
16. On the same day, the Scheme’s operatives visited Ms H.H. and informed her about the termination of the programme and of the protection measures, and about the fact that their original identities would simultaneously be restored.
17. The Government submitted that the agreement with the first applicant had been cancelled because of him having repeatedly breached its provisions, rather than because the threat to him and his family had diminished. In any case, in their view, this threat had indeed decreased on account of the apprehension of those persons who represented a danger for the applicants. The applicants contested this view, submitting that, despite these incarcerations, the criminal organisation which was after the first applicant was still active and posing a real threat.
18. The Government further submitted that after the applicants’ exclusion from the programme, another scheme called “personal protection” had been put in place for them, in application of section 4(5) of Government Decree no. 34/1999. (II.26.). They had continued benefiting from the house, the car, the telephone line and the computer and other items as well as the allowances during the transitional period of one month or so. The Witness Protection Scheme had arranged for returning their original documents and the withdrawal of cover documents, and taken the requisite steps with regard to the maintenance, under their original names, of the family’s health and social care and the children’s schooling. The family’s public utility bills due for April 2012 had been paid by the Scheme, which had also assisted them in moving house, including the provision of free transport and free temporary storage facilities. For the first applicant, “personal protection” consisted of his relocation to the strict-regime department of S. Prison which is physically separated from the rest of the institution. Here, he has been placed in a cell of 6 square metres; the view from the window is blocked; he is entitled to have an open-air walk once a day for an hour.
19. The applicants submitted that, the programme having been terminated irrespective of the persistent threat, no real care had been taken of Ms H.H. and the children. The latter were bound to return to school under their real names; and, inevitably, the fact that the family had been in witness protection for five years must have been revealed as a consequence of this. The measures of “special protection” had included nothing but an emergency phone number available to Ms H.H. and scarce visits paid to the family by police officers enquiring if anything was wrong. The family’s personal particulars and whereabouts became accessible to anyone.
20. Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”) provides as follows:
“For the purposes of this Act, the term:
1. “Protection Programme” means organised protection that cannot be secured within the framework of personal protection, which is granted to a witness, an aggrieved party, a defendant, a relative of the above persons or to any other person under threat on account of the person concerned,
a) provided by the police under a civil law agreement concluded with the person under threat, and
b) in the course of which the application of special measures (section 16) and – in order to help the social integration of the person concerned – mental, social, economic, human and legal support is needed;
2. “Agreement” means a civil-law agreement between the police and the person under threat on the latter’s enrolling in the Protection Programme, on the cooperation to be carried out under the Programme, and on the rights and obligations of the participants in the Protection Programme;
3. “Personal protection” means measures carried out, in pursuit of a separate decree..., by the police ... in order to secure personal protection for the participants in criminal proceedings and the officials of the authority in charge ...;”
“(4) To settle a dispute emanating from the agreement, the parties shall conduct conciliatory negotiations. If the parties are unable to settle the dispute in three days, either party may seek a judicial ruling. The Budapest High Court has exclusive competence to deal with such disputes and adjudicates them in non-contentious proceedings. Where appropriate, the court shall hear the parties in person.”
“(1) In order to prevent an unlawful act against the life, bodily integrity or personal liberty of the person concerned, the Scheme may apply the following special protection measures:
a) placement (moving) of the person concerned in a safe place by changing his domicile or place of residence or by relocating a detainee covered by the Programme from the penitentiary institution in which he is placed into another one;
b) granting personal protection for the person concerned;
c) ordering that the data of the person concerned, stored in official registers, no longer be accessible and that any request for access to such data be signalled;
d) change of name;
e) change of identity;
f) participation in international cooperation.”
21. Recommendation Rec(2005)9 of the Committee of Ministers to Member States on the protection of witnesses and collaborators of justice (adopted by the Committee of Ministers on 20 April 2005 at the 924th meeting of the Ministers’ Deputies) reads as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Recommends that governments of member states:
i. be guided, when formulating their internal legislation and reviewing their criminal policy and practice, by the principles and measures appended to this Recommendation;
ii. ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies, such as judicial organs, investigating and prosecuting authorities, bar associations, and relevant social institutions.
For the purposes of this Recommendation, the term:
- “witness” means any person who possesses information relevant to criminal proceedings about which he/she has given and/or is able to give testimony (irrespective of his/her status and of the direct or indirect, oral or written form of the testimony, in accordance with national law), who is not included in the definition of “collaborator of justice”;
- “collaborator of justice” means any person who faces criminal charges, or has been convicted of taking part in a criminal association or other criminal organisation of any kind, or in offences of organised crime, but who agrees to cooperate with criminal justice authorities, particularly by giving testimony about a criminal association or organisation, or about any offence connected with organised crime or other serious crimes;
- “intimidation” means any direct or indirect threat carried out or likely to be carried out to a witness or collaborator of justice, which may lead to interference with his/her willingness to give testimony free from undue interference, or which is a consequence of his/her testimony;
- “anonymity” means that the identifying particulars of the witness are not generally divulged to the opposing party or to the public in general;
- “people close to witnesses and collaborators of justice” includes the relatives and other persons in a close relationship to the witnesses and the collaborators of justice, such as the partner, (grand)children, parents and siblings;
- “protection measures” are all individual procedural or non-procedural measures aimed at protecting the witness or collaborator of justice from any intimidation and/or any dangerous consequences of the decision itself to cooperate with justice;
- “protection programme” means a standard or tailor-made set of individual protection measures which are, for example, described in a memorandum of understanding, signed by the responsible authorities and the protected witness or collaborator of justice.
...
...
18. Any decision to grant anonymity to a witness in criminal proceedings will be made in accordance with domestic law and European human rights law.
...
20. Any decision to grant anonymity should only be taken when the competent judicial authority finds that the life or freedom of the person involved, or of the persons close to him or her, is seriously threatened, the evidence appears to be significant and the person appears to be credible.
...
22. Where appropriate, witness protection programmes should be set up and made available to witnesses and collaborators of justice who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses/collaborators of justice, and people close to them, aiming in particular at providing the appropriate physical, psychological, social and financial protection and support.
23. Protection programmes implying dramatic changes in the life/privacy of the protected person (such as relocation and change of identity) should be applied to witnesses and collaborators of justice who need protection beyond the duration of the criminal trials where they give testimony. Such programmes, which may last for a limited period or for life, should be adopted only if no other measures are deemed sufficient to protect the witness/collaborator of justice and persons close to them.
24. The adoption of such programmes requires the informed consent of the person(s) to be protected and an adequate legal framework, including appropriate safeguards for the rights of the witnesses or collaborators of justice according to national law.
25. Where appropriate, protection measures could be adopted on an urgent and provisional basis before a protection programme is formally adopted.
26. Given the essential role that collaborators of justice may play in the fight against serious offences, they should be given adequate consideration. Where necessary, protection programmes applicable to collaborators of justice serving a prison sentence may also include specific arrangements such as special penitentiary regimes.
27. Protection of collaborators of justice should also be aimed at preserving their credibility and public security. Adequate measures should be undertaken to protect against the risk of the collaborators of justice committing further crimes while under protection and therefore, even involuntarily, jeopardising the case in court. The intentional perpetration of an offence by a collaborator of justice under protection should, according to the relevant circumstances, imply the revocation of protection measures.
...”
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-76300
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HARKMANN v. ESTONIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1955 in Estonia and lives in Tartu.
5. In 1995 or 1996 the applicant lodged an application with the Public Prosecutor’s Office in which he requested that criminal proceedings be initiated against four persons, including two police officers. The applicant had allegedly been beaten by these men. A prosecutor refused to initiate criminal proceedings.
6. Subsequently, the same four persons made a report concerning an offence allegedly committed by the applicant. They argued that the applicant had submitted false accusations concerning the beating. On 8 October 1996 criminal proceedings were instituted against the applicant under Article 174 § 1 (submitting knowingly false accusations concerning the commission of a criminal offence by another person) of the Criminal Code (Kriminaalkoodeks).
7. In the following years, the applicant repeatedly failed to appear at the police prefecture when summoned. On several occasions it proved to be impossible to compel him by force to appear (sundtoomine), as he was not present at the address he had indicated and his whereabouts were unknown. On some occasions, when the authorities found him, he refused to familiarise himself with the charges, to give statements or to sign an undertaking not to leave his place of residence (allkiri elukohast mittelahkumise kohta).
8. According to a forensic psychiatric expert opinion given in 2000 on the request of an investigator, the applicant was not mentally unsound but had a paranoid personality disorder. He was considered to be able to give statements, attend court hearings and serve any punishment.
9. Also in 2000 a new criminal case was instituted against the applicant, again under Article 174 § 1 of the Criminal Code. The case was joined with the case initiated in 1996.
10. In 2000 and 2001 the period of the preliminary investigation was extended repeatedly due to the applicant’s alleged ill-health. On 28 November 2001 he was compelled by the police to appear in the police prefecture. On the next day, he was presented with the formal charges under Article 174 § 1 of the Criminal Code. He refused to make any statements, to familiarise himself with any documents or to sign them.
11. On 15 January 2002 the prosecutor approved the summary of charges and the criminal case file was sent to the Tartu County Court (Tartu Maakohus).
12. On 17 January 2002 the County Court committed the applicant for trial and maintained the signed undertaking not to leave his residence as a preventive measure against him. The hearing was scheduled for 26 March 2002.
By a letter of 24 March 2002 the applicant informed the court that he could not participate in the hearing due to his ill-health. He requested that the hearing be adjourned.
On 26 March 2002 the hearing was adjourned due to the absence of the applicant and a new hearing was scheduled for 13 June 2002. The court decided that the applicant should be compelled by the police to appear before it on that date.
As the police was unable to find the applicant and to secure his attendance at the court hearing on 13 June 2002, the hearing was adjourned until 30 September 2002. The court again decided that the applicant had to be compelled by the police to appear in court.
13. On 30 September 2002 the applicant failed to appear in court. The police had been unable to secure his attendance, as during repeated checks no one had opened the door at his residence. The applicant’s appointed lawyer, the prosecutor and one of the victims had appeared before the court. The County Court decided to adjourn the hearing and to declare the applicant a fugitive. It decided that when found he should be taken into custody (vahi alla võtmine) and that a new hearing would be scheduled then. The court relied on Articles 66, 68, 73 § 1, 209, 218 and 223 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks).
14. The applicant was taken into custody on 2 October 2002 in Tallinn.
15. He subsequently lodged a complaint addressed to the Tartu Court of Appeal (Tartu Ringkonnakohus). As stated by the applicant in the complaint, “[it was] handed over on 05.10.2002, in the presence of witnesses, to the officer in charge of the Arrest House of the Tallinn Police Prefecture to be transmitted to the Tartu Court of Appeal”.
A copy of the complaint submitted to the Court by the Government bears a handwritten note “Complaint received. Tartu County Court. 10.10.02” and a seal and signature of a judge of the County Court.
According to the complaint, the deprivation of the applicant’s liberty was unlawful, as he had not been presented with the decision of the County Court on the basis of which he had been arrested. Moreover, the decision had been taken by the County Court in his absence. He alleged that the registration of his residence at the address where the City Court had sent the summonses had been cancelled. He noted that, according to the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus), in case the residence of a person could not be determined, the place where he or she was actually staying should be deemed his or her residence. On 2 October 2002 he had stayed in Tallinn and prior to that in Tartu. However, he had not received the summonses. He requested that he be immediately released from custody and that the County Court’s decision concerning his arrest be invalidated.
16. The applicant was kept in custody until 17 October 2002. On that date the Tartu County Court held a hearing in the presence of the applicant, his appointed lawyer and the prosecutor. The court decided that, as the applicant and his lawyer had not familiarised themselves with the case file, the hearing had to be adjourned. As the applicant alleged that he had not received the summons for the hearing of 30 September 2002 and promised to appear before the court when invited in the future, he was released from custody. The court applied a more lenient preventive measure in respect of the applicant – a signed undertaking not to leave his place of residence.
17. On 5 November 2002 the Tartu Court of Appeal adjourned the hearing concerning the applicant’s appeal against the County Court’s decision of 30 September 2002, since the applicant’s lawyer had not appeared.
On the same day the Court of Appeal received the applicant’s amendments to his appeal. He alleged, inter alia, that he had never signed an undertaking not to leave his place of residence and claimed compensation for his unlawful detention.
18. On 11 November 2002 the Court of Appeal held a hearing and dismissed the applicant’s appeal. It noted that, under Article 73 § 1 of the Code of Criminal Procedure, preventive custody could be applied in order to prevent a defendant at trial from evading the criminal proceedings or committing a new crime. It held that the County Court had had good grounds to believe that the applicant was evading the criminal proceedings and that he was in breach of a signed undertaking not to leave his place of residence. He had not reacted to summonses sent to his place of residence and had not answered phone calls. The fact that the applicant had been taken into custody had made it possible, on 17 October 2002, to conduct a hearing, after which the applicant had been released. In respect of the applicant’s allegation that he had never signed an undertaking not to leave his place of residence, the Court of Appeal established, based on the case file, that the applicant had been presented with a decision according to which a prohibition to leave his place of residence had been applied as a preventive measure. The fact that the applicant had refused to sign it could not be interpreted to mean that the measure had not been applied. The preventive measure in the form of a signed undertaking not to leave one’s place of residence was not meant to restrict one’s freedom of movement; its purpose was rather to keep the court informed of the person’s whereabouts so that the criminal proceedings could be conducted without delays. However, in the particular instance, the criminal case could not be conducted without delays, as the applicant had failed to comply with the preventive measure applied under Article 69 § 1 of the Code of Criminal Procedure. The Court of Appeal noted that it was not possible in those proceedings concerning the appeal against the County Court’s ruling to decide on the compensation claim for damage.
Under the provisions of the applicable criminal procedure law, the decision of the Court of Appeal was final.
19. In late 2003 and 2004 the hearings in the criminal case were repeatedly adjourned, mainly due to the applicant’s failure to appear before the court and to comply with the court’s orders concerning his forensic psychiatric expert examination. At the same time, the applicant lodged numerous complaints and appeals against various institutions.
20. According to a forensic psychiatric examination’s report of 3 August 2005, the state of the applicant’s mind did not allow him to understand and control his acts. He was considered to be unable to give statements before a court or to serve punishment. His compulsory treatment was deemed to be unnecessary, as he presented no danger to himself or to society.
21. By a decision of 21 September 2005, the County Court found it established that the applicant had committed the acts that he had been charged with. However, since his state of mind had deteriorated, as evidenced by the forensic psychiatric examination’s report, and he was unable to give statements before a court and serve punishment, the criminal proceedings were discontinued. The decision could be appealed against within ten days.
22. By a decision of 27 September 2005, the Supreme Court (Riigikohus) rejected the applicant’s appeal against several decisions of lower courts, including the Court of Appeal’s decision of 11 November 2002. It held that only a lawyer – and not the applicant himself – could appeal against a decision of an appellate court. Moreover, the above decision of the Court of Appeal had been final according to the applicable criminal procedure law.
23. On 22 October 2005 the applicant lodged an appeal against the County Court’s decision of 21 September 2005.
24. The relevant provisions of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, provided:
“(1) If there is sufficient reason to believe that an accused or a defendant at trial who is at liberty might abscond from an investigation or court proceedings or impede the establishment of the truth in a criminal matter or continue to commit criminal offences, or in order to ensure the enforcement of a court judgment, one of the following preventive measures may be applied with regard to him or her:
1) a signed undertaking not to leave place of residence (allkiri elukohast mittelahkumise kohta);
...
3) taking into custody;
...”
“(1) In the choice of preventive measure, there shall be taken into account the seriousness of the criminal offence in question, the personality of the suspect, accused, or defendant at trial, the possibility that the suspect, accused, or defendant at trial may abscond from the investigation or from the court proceedings or may impede the establishment of the truth, and the state of health, age, marital status and other facts concerning the suspect, accused or defendant at trial which may be relevant to the application of a preventive measure.
...”
“(1) A signed undertaking not to leave a place of residence means a written commitment obtained from a suspect, accused or defendant at trial not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court.
(2) If the suspect, accused or defendant at trial violates such a commitment, a more severe preventive measure may be applied with regard to him or her, the consequences of which the suspect, accused or defendant at trial shall be warned of at the time of obtaining his or her signature.”
“(1) A preventive custody measure may be applied in respect of a suspect, accused or defendant at trial in order to prevent him or her from evading the criminal proceedings or committing a new offence, as well as to ensure the enforcement of a court judgment.
...
(4) ... A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of defence counsel ... Such requirements are not applied if the person to be taken into custody is a fugitive, or if his or her whereabouts are unknown.
(5) A preventive custody measure ... shall be granted or refused by a reasoned ruling of a county or city court judge. ...”
“A person taken into custody ... may challenge the custody measure by an appeal lodged within five days...”
“...
(3) A preventive measure applied in respect of a defendant at trial may be altered or annulled by the trial court or a higher court.
...”
“(1) A person who has been summoned ... has to promptly inform ... the court ... if he or she is unable to appear at the time indicated in the summons.
...”
“(1) Compulsory attendance (sundtoomine) may be ordered ... by a court with regard to ... an accused ..., if he or she fails to appear before ... the court and the summons indicates that the person concerned may be compelled to attend in case of failure to appear.
...
(2) Compulsory attendance is effected by the police.
(3) A person subject to compulsory attendance who is staying in the same district as ... the court may be detained for up to eighteen hours prior to the commencement of ... a court session. In the case of the compulsory attendance of a person who is staying in another district, the term of detention shall not exceed forty-eight hours.
...”
“(1) A criminal matter shall be heard in a session of a court of first instance in the presence of the defendant at trial whose appearance in court is mandatory.
...”
“If the defendant at trial fails to appear in a court session, a court shall adjourn the hearing of the criminal matter ... . The court shall impose a fine on a defendant at trial who fails to appear ... and shall decide on the application of compulsory attendance or other preventive measures with regard to the defendant at trial.”
“In the course of a court hearing of a criminal matter, the court has the right to choose, amend or annul ... the preventive measures previously chosen with regard to the defendant at trial.”
25. According to section 7(1) of the State Liability Act (Riigivastutuse seadus), a person whose rights are violated by the unlawful activities of a public authority in a public law relationship may claim compensation for damage caused to him or her.
26. A special law – Unjust Deprivation of Liberty (Compensation) Act (Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus) –, which entered into force on 1 January 1998, deals with the issues of compensation for damage caused by unlawful deprivation of liberty. According to section 1(3)(2) of the Act, damage caused by deprivation of liberty shall not be compensated for in a case where the person concerned absconded from the criminal proceedings, violated the obligation arising from a preventive measure not to leave his residence without the permission of a court, escaped or was in hiding.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5


ITEMID: 001-5510
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SADOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish citizen born in 1950.
A.
1. The applicant’s detention on remand
On 17 March 1994 the applicant was arrested. On 22 March 1994 the Gdańsk District Prosecutor detained him on remand on charges of armed robbery committed on 15 December 1993 against a post office in Gdańsk. The prosecutor referred to a danger of absconding and to the serious character of the offence concerned. On 11 April 1994 the Bielsko-Biała Regional Court dismissed the applicant’s appeal against this decision.
On 21 April, 9 and 19 May 1994 the prosecutor refused to release the applicant.
From 22 March 1994 to 8 June 1994 the applicant served a prison sentence imposed by a judgment of the Częstochowa Regional Court of 19 July 1993, pursuant to which a fine had been imposed on him with 90 days’ imprisonment in default.
On 7 June 1994 the Bielsko-Biała Regional Court prolonged the applicant’s detention until 17 September 1994, referring in particular to new evidence gathered in the case since the beginning of the investigations which made the charges against the applicant and other accused plausible. The court further stressed that the suspects had probably been acting in an organised group, acting in a violent manner bordering on terrorism, and had unlawfully possessed weapons. The court further noted that various indications of criminal connections between the accused and other persons needed clarification.
On 16 August 1994 the Katowice Appellate Prosecutor dismissed the applicant’s appeal against a refusal of 25 July 1994 to release him, considering in particular that the testimony of witnesses pointed to the applicant’s guilt. On 2 September 19994 the Bielsko-Biała Regional Court prolonged detention on remand until 10 December 1994.
On 11 October 1994 the Bielsko-Biała Regional Prosecutor again refused to release the applicant. On 11 November 1994 the Katowice Appellate Prosecutor upheld this decision. On 2 December 1994 the applicant’s detention was prolonged until 10 March 1995.
On 27 December 1994 the Bielsko-Biała Regional Prosecutor refused to release the applicant, referring to evidence gathered in the investigations, which supported suspicion against the applicant and to the danger of absconding.
On 28 December 1994 the Katowice Court of Appeal dismissed the applicant’s appeal against a decision prolonging his detention until 10 March 1995.
On 16 February 1995 and on 27 February 1995 the Katowice Appellate Prosecutor upheld this decision, finding in particular that the evidence gathered so far in the investigations strongly supported the suspicion against the applicant.
On 6 July 1995 the Bielsko-Biała Regional Court refused to release the applicant.
On 23 January 1996 the Bielsko-Biała Regional Court refused to release the applicant. On 14 February 1996 the Katowice Court of Appeal upheld the decision of 23 January 1996, considering in particular that the applicant’s allegations that the evidence against him had been fabricated, should be seen in the light of the fact that it was ultimately for the court to assess evidence in criminal cases. The applicant’s health had also been examined and it did not amount to an impediment to the applicant’s continued detention.
On 6 March 1996 the Bielsko-Biała Regional Prosecutor lodged a bill of indictment, including two further charges of armed robbery with the Bielsko-Biała Regional Court to which the case had in the meantime been transferred.
On 7 March 1996 the Bielsko-Biała Regional Court refused to release the applicant, and on 27 March 1996 the Katowice Court of Appeal upheld this decision, considering that the arguments advanced by the applicant in his appeal were essentially the same which he had put forward before in the proceedings concerning his detention. The court noted that certain evidence had still to be taken, in particular as certain witnesses had failed to attend the hearings in order to be questioned. The court further noted that the facts which sufficed for a continuation of detention on remand were not of the same level of probability as those which could ultimately lead to a conviction. In the applicant’s case there was enough evidence against him to justify his continued detention. The applicant’s health had repeatedly been taken into consideration by the courts and assessed under Article 218 of the Code of Criminal Procedure.
On 26 July 1996 the Bielsko-Biała Regional Court rejected the applicant’s request for release. The court recalled that the applicant’s request for release had been examined by competent courts on numerous occasions, for the last time in March 1996. No changes had occurred since that time such as to justify the release, in particular as several witnesses from Częstochowa had failed to comply with the court’s summonses. Moreover, the lawyer of another accused, M.S., had fallen ill, and M.S. had not consented to his being temporarily replaced by another lawyer. Thus, it was necessary to maintain the detention in order to ensure the proper course of the proceedings. Since the last judicial decision by which the lawfulness of the applicant’s detention had been reviewed, he had twice been examined by an orthopaedist. The medical opinion of 18 July 1996 indicated that the applicant’s pains had become less severe, that no muscular atrophy had been established and that he had a wider range of movement in his right arm than he had had before, thus, there were no grounds to release the applicant.
On an unspecified later date the applicant complained to the President of the Bielsko-Biała Regional Court that his detention was unlawful. In reply, he was informed by a letter of 8 August 1996 that pursuant to the provisions of the new Code of Criminal Procedure, detention on remand of persons arrested before 4 August 1996, whose length of detention had exceeded time-limits fixed by Article 222 of the new Code, could be maintained until 1 January 1997. In cases in which a request for prolongation of detention had been submitted by a competent court to the Supreme Court, detention was to be maintained until this request be examined by that court. Therefore there was nothing, showing that the applicant’s detention was, or had become, unlawful.
On 11 September 1996 the Supreme Court refused to entertain the request of the Bielsko-Biała Regional Court for prolongation of the applicant’s detention, considering that this request should have been given by way of an interlocutory decision and not by a court’s administrative order. On 12 November 1996 the Bielsko-Biała Regional Court requested again that the applicant’ detention be prolonged.
On 17 January 1997 the Supreme Court, at the motion of the Bielsko-Biała Regional Court, prolonged the applicant’s detention until 31 March 1997. The court considered that the applicant had been arrested on 17 March 1994 and noted that from 22 March to 8 June 1994 he had been serving a prison sentence. Likewise, from 23 December 1995 to 11 January 1996 he had been serving another sentence. Consequently, he had been detained on remand for a period of two years, six months and twenty-seven days, which exceeded time-limits fixed by Article 222 of the new Code of Criminal Procedure. The Court further considered that the lawfulness of the applicant’s detention had been repeatedly examined by the courts. In the light of the evidence gathered in the case, their arguments in support of the applicant’s detention appeared correct and should be accepted as well-founded. The proceedings against the applicant could not have been terminated on the grounds which could not be effectively counteracted by the Regional Court, such as the fact that the applicant and other accused had submitted various requests for evidence to be taken, and that already when the proceedings were well advanced, for instance during the hearings held on 30 July and 30 and 31 October 1996. The Court further had regard to the fact that certain witnesses failed to comply with the court summonses. Therefore the grounds on which detention could be prolonged beyond periods fixed by the Code of Criminal Procedure, listed in Article 222 § 4 of the Code were obtained in the case and necessitated the prolongation of the applicant’s detention.
On 7 March 1997 the Bielsko-Biała Regional Court convicted the applicant of three counts of armed robbery and sentenced him to seven years of imprisonment and a fine with twenty days of imprisonment in default.
On 28 November 1997 the Katowice Court of Appeal amended this judgment in part, in that it acquitted the applicant of one count of robbery, reduced his sentence to six years of imprisonment and upheld the judgment in its remainder.
On 30 January 1998 the applicant lodged a cassation appeal with the Supreme Court against the judgment of 28 November 1997.
On an unspecified later date the applicant was released.
2. The applicant’s medical treatment
In July 1994 the applicant, at the prosecutor’s request, was examined in the forensic medicine ward of the Regional Health Centre in Bielsko-Biała. It was established that he could remain in detention if appropriate medical care was given to him.
On 19 July 1994 the applicant was examined by a court medical expert.
On 5 December 1994 the Wadowice District Prosecutor refused to institute investigations concerning the alleged offence of refusal of medical care to the applicant, finding that, in fact, the applicant had been receiving appropriate care.
On 20 December 1994 the applicant was examined by a medical panel which did not find any counter-indications for his continued detention.
On an unspecified later date before January 1995 the applicant had been examined and consulted by specialists in the Kraków Prison Hospital.
By a letter of 18 January 1995 the Bielsko-Biała Regional Court- Penitentiary Division reminded the applicant that he had been examined by a court expert and that he had also been repeatedly examined by physicians of Wadowice prison. It had been demonstrated that his detention did not fall within the ambit of circumstances referred to in Article 218 of the Code of Criminal Procedure.
On 7 March 1995 the applicant was examined by a medical panel, composed of, inter alia, an orthopaedist and a surgeon, found that he could be maintained in custody.
On 17 May 1995 the Bielsko-Biała Regional Court ordered that the applicant should be examined by a physician, having a status of a court expert, and that a relevant expert opinion be prepared as to whether his continued detention on remand was compatible with his health.
In a report of 13 June 1995 the forensic medicine ward of the Regional Health Centre in Bielsko-Biała stated that the applicant, on numerous occasions, had been examined by physicians at the prison, that numerous medical analyses and additional examinations had been made, which, in essence, had shown that the applicant had not had any particular pathological symptoms. His complaints related in particular to frequent headaches and vertigos. The physicians had diagnosed him as suffering from discopathy. In conclusion, the applicant who also suffered from certain sequelae of a trauma to his right shoulder could remain in detention.
On an unspecified date before 11 October 1995 the applicant was examined by a neurologist and had had an electroencephalography, which had not showed any pathological changes.

By letters of 28 August 1995 and 20 October 1995 the applicant was informed by the Central Prison Administration that his complaints had been examined and that no lack of diligence had been established on the part of the prison medical services.
On an unspecified date the Bielsko-Biała Regional Court, having found that the applicant’s health was not such as to justify a conclusion that his continued detention was incompatible with the requirements of Article 218 of the Code of Criminal Procedure, prolonged his detention until 10 March 1995.

By an opinion of 31 December 1995 the same court expert, who had already examined the applicant in July 1994 and in June 1995, stated that the applicant suffered from sequelae of trauma to his right shoulder, significant obesity, hypertension and heart condition. This syndrom in itself did not amount to a categorical counter-indication for the applicant’s continued detention. However, the persistent pains in his shoulder necessitated that the rehabilitation be undertaken as soon as possible under the supervision of an experienced orthopaedist, either in a civil or in a prison hospital.
On 15 March 1996 a physician of the Bielsko-Biała District Detention Centre issued a medical certificate to the effect that the applicant was suffering from hypertension, and from sequelae of a trauma to his right shoulder, from discopathy and psoriasis. He was not rehabilitated, despite the orthopaedist’s recommendation, as there was no such possibility in the conditions of the detention centre. He was also taking significant amounts of various medicines, which had not brought about any significant amelioration of his state.
On 15 April 1996 the applicant was admitted to the prison hospital of Bytom prison, but he refused to give his consent for staying there.
On 13 May 1996 the Bielsko-Biała District Prosecutor refused to institute criminal proceedings against persons responsible for the alleged offence of the applicant’s unlawful deprivation of liberty in conditions which entailed danger to his health, finding that the applicant had been kept in detention on the basis of valid decisions of competent authorities, and that the lawfulness and justified character of his detention had repeatedly been examined in the context of various appeals filed by the applicant, also as to its alleged incompatibility with his health. The prosecutor concluded that no criminal offence had been committed.
On an unspecified date before July 1996 the applicant was put in the hospital of the Bytom prison. A medical opinion of 18 July 1996 stated that the applicant had complained about pains and limited movement of his right arm, caused by an accident, certain pains in his spine, headaches and lack of appetite. The applicant’s condition necessitated a permanent pharmaceutical treatment of his hypertension and periodical treatment of his spine problems. Also, a treatment to bring his right shoulder to full efficiency was indicated. Apparently, the applicant’s actual pains were less severe than he had reported. Likewise, the range of movement of his right shoulder seemed to be wider than complained of. The physician concluded that the applicant could be maintained in detention and that the necessary treatment could be provided by the prison medical services.

On 8 August 1996 the Bielsko-Biała Regional Prosecutor upheld this decision of 13 May 1996 finding, first, that there were no grounds on which to believe that the applicant’s detention could be unlawful. It had repeatedly been reviewed by competent authorities who had found that the allegations of unlawfulness were ill-founded. It was emphasised that the applicant had very often been examined by prison physicians and that he had access to appropriate medical care, available in conditions of detention. The only limitation to this access concerned the rehabilitation treatment, but this was due simply to the fact that the detention centre was not in a position to ensure this kind of medical care to detained persons. This circumstance alone could not serve as a basis for the applicant’s release as it had been established by way of expert medical opinions that his ailments were not severe enough to fall within the scope of Article 218 of the Code of Criminal Procedure. In conclusion, the applicant’s allegations that his detention could amount to a criminal offence were entirely implausible and should be regarded as attempts to put pressure on the justice administration organs.
On 19 February 1997 a medical expert opinion was submitted to the Bielsko-Biała Regional Court. The expert had examined the applicant and analysed the entries in his voluminous medical records. He stated that the applicant suffered significant obesity, had sustained a trauma of his right shoulder with a persistent pain syndrome, had a light hypertension and very light decrease of audition, caused by slight damage of a hearing nerve. It transpired from the entries in the applicant’s records that he had very often requested medical advice and had been taking great quantities of painkillers and anti-inflammatory medicines. In conclusion, the applicant’s ailments were not of such severity as to prevent him either from being detained on remand, or from serving a prison sentence. It was true that the rehabilitation treatment could not be provided in prison, and that, if postponed for a long time, this could lead to a gradual deterioration in the state in the applicant’s arm.
B. Relevant domestic law and practice
1. Evolution of Polish criminal law in the relevant period
Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament (Sejm) on 6 June 1997, and which entered into force on 1 September 1998.
The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning imposition of detention on remand was postponed until 4 August 1996. In pursuance of these provisions, detention on remand was to be imposed by a judge (whereas before it was imposed by a prosecutor - see section 2 below).
The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”) entered into force on 1 January 1996.
2. Preventive measures
The Code of Criminal Procedure (“old”), applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.
After the bill of indictment was transmitted to the court, relevant orders were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.
3. Grounds for detention on remand
Article 217 of the “old” Code of Criminal Procedure, as applicable at the relevant time, provided that a person could be held in detention on remand if there were serious grounds for believing that this person would abscond, did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society or that he was a recidivist within the meaning of the Criminal Code.
Pursuant to Article 218 of the “old” Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.
After the Interim Law of 1 December 1995 entered into force on 1 January 1996, grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, or that a suspect would go into hiding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that the suspect would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.
4. Proceedings to examine the lawfulness of detention on remand
At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release. Under Article 221 § 2 of the “old” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor (see above). Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention on a prosecutor's request. Finally, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
5. Statutory time-limits for detention on remand
Until 4 August 1996 the law did not fix any time-limits concerning detention on remand in judicial proceedings. During the investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given upon a request of the Prosecutor General
Article 222 of the Code of Criminal Procedure, as applicable from 4 August 1996, provided insofar as relevant:
"3. The whole period of detention on remand until the date on which the first-instance court gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the merits of the case, ... prolong detention on remand for a further fixed period exceeding the periods referred to § ... 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits set out in § 3.”
However, under Article 10 (a) of the Interim Law of 1 December 1995 different rules applied in respect of persons whose detention on remand started prior to 4 August 1996. This article provided:
“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be maintained in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Article 222 § 4 of the Code of Criminal Procedure.
2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be lifted not later than 1 January 1997.”
Under all the relevant provisions of the Code of Criminal Procedure read together, a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings. However, no appeal lay in law either against a decision containing a request under Article 222 § 4, or against a decision of the Supreme Court granting such a request.


ITEMID: 001-67141
LANGUAGEISOCODE: ENG
RESPONDENT: AUT;BEL;DNK;ESP;FIN;FRA;DEU;GRC;IRL;ITA;LUX;NLD;PRT;SWE;GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SEGI AND OTHERS & GESTORAS PRO-AMNISTIA AND OTHERS v. 15 STATES OF THE EUROPEAN UNION
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants are
– in the case of application no. 6422/02: Segi, an association based in Bayonne (France) and San Sebastián (Spain), and the association’s two spokespersons, Ms Araitz Zubimendi Izaga, a Spanish national, member of the Basque autonomous parliament, who lives in Hernani (Guipuzcoa province), and Mr Aritza Galarraga, a French national living in Senpere (département of Pyrénées-Atlantiques);
– in the case of application no. 9916/02: Gestoras Pro-Amnistía, an association based in Hernani (Guipuzcoa province), and the association’s two spokespersons, Mr Juan Mari Olano Olano, a Spanish national, currently detained in Gradignan remand prison (département of Gironde), and Mr Julen Zelarain Errasti, a Spanish national, currently a prisoner in Soto del Real Prison (Madrid province).
The applicants were represented before the Court by Mr D. Rouget, a lawyer practising in Bayonne.
(a) Segi (meaning “Continue”) was set up on 16 June 2001. At the constituent general meeting on that date it appointed as its spokespersons Ms Araitz Zubimendi Izaga and Mr Aritza Galarraga. They are authorised to act on the association’s behalf and to represent it.
Segi describes itself as the movement of Basque youth. It has members in all the provinces of the Basque lands in France and in Spain. Its aims are to campaign on youth issues and protect the Basque identity, Basque culture and the Basque language. It asserts that it works through democratic channels to ensure respect for fundamental rights, both collective and individual. It campaigns for the right to self-determination and a negotiated political solution to the Basque conflict. It fights for a fairer, more mutually supportive society by combating inequality and discrimination, racism, sexism and homophobia. It combats the oppression of youth, drug trafficking, social insecurity, poverty and violence against young people. It promotes the social, cultural and political expression of young people by organising events, rallies, festivals and concerts.
In a decision of 5 February 2002, central investigating judge no. 5 at the Audiencia Nacional in Madrid ordered the suspension of the association’s activities as a preventive measure on the ground that it was “an integral part of the Basque terrorist organisation ETA-EKIN”. In a decision of 11 March 2002 he further ordered the detention pending trial of eleven of the association’s leaders, including the applicant Aritza Galarraga, charged with terrorism-related activities punishable under the Spanish Criminal Code; he referred to Common Position 2001/931/CFSP of the Council of the European Union.
(b) Gestoras Pro-Amnistía is a non-governmental organisation for the protection of human rights in the Basque lands, particularly those of political prisoners and exiles.
Mr Juan Mari Olano Olano and Mr Julen Zelarain Errasti have been appointed as its spokesmen.
In a decision of 19 December 2001, central investigating judge no. 5 at the Audiencia Nacional in Madrid ordered the suspension of the association’s activities as a preventive measure on the ground that it was “an integral part of the Basque separatist organisation ETA”. The association appealed.
Common Positions 2001/930/CFSP and 2001/931/CFSP of 27 December 2001
On 27 December 2001 the representatives of the fifteen member States, meeting as the Council of the European Union, adopted in the context of the Common Foreign and Security Policy (CFSP) the following two common positions:
– Common Position 2001/930/CFSP “on combating terrorism”. This contains measures of principle to be taken by the European Union and its member States to combat terrorism. Article 14 of Common Position 2001/930/CFSP recommends that member States become parties as soon as possible to the international conventions and protocols relating to terrorism listed in an annex. These include the Council of Europe’s European Convention on the Suppression of Terrorism of 27 January 1977, which came into force on 4 August 1978;
– Common Position 2001/931/CFSP “on the application of specific measures to combat terrorism”.
These two common positions took effect on the date of their adoption. They were published in the Official Journal of the European Communities (OJEC) on 28 December 2001.
Common Position 2001/931/CFSP is addressed to both the European Community (Articles 2 and 3, relating to the freezing of funds, which affects the free movement of capital, a Community matter) and the member States (Article 4, relating to police and judicial cooperation in criminal matters, which is not a question for the Community). Article 1 states that the common position applies to “persons, groups and entities involved in terrorist acts” who are listed in its annex. The names of both the applicant associations appear on the annexed list. However, according to the list, they are subject to Article 4 of the position only.
Article 4 of Common Position 2001/931/CFSP provides:
“Member States shall, through police and judicial cooperation in criminal matters within the framework of Title VI of the Treaty on European Union, afford each other the widest possible assistance in preventing and combating terrorist acts. To that end they shall, with respect to enquiries and proceedings conducted by their authorities in respect of any of the persons, groups and entities listed in the Annex, fully exploit, upon request, their existing powers in accordance with acts of the European Union and other international agreements, arrangements and conventions which are binding upon member States.”
Council Regulation (EC) no. 2580/2001 of 27 December 2001 “on specific measures directed against certain persons and entities with a view to combating terrorism” implemented Articles 2 and 3 of the common position as regards their provisions on the freezing of funds.
The provisions concerning a Common Foreign and Security Policy (CFSP), designated as the second pillar of the European Union, were introduced by the Treaty on European Union of 7 February 1992, known as the Maastricht Treaty (“the EU Treaty”). They were modified on 2 October 1997 when the member States adopted the Amsterdam Treaty, which came into force on 1 May 1999. The CFSP is therefore at present provided for in Title V of the EU Treaty.
Under the CFSP the Council, which consists of a representative of each member State at ministerial level, authorised to commit the government of that member State (Article 203 § 1 of the Treaty establishing the European Community), takes various types of decision, particularly joint actions (Article 14 of the EU Treaty) and common positions (Article 15 of the EU Treaty). These common positions define the approach of the Union to a particular matter of a geographical or thematic nature. Member States must ensure that their national policies conform to the common positions.
Article 23 of the EU Treaty provides that decisions under the CFSP are to be taken by the representatives of the member States, either unanimously, under paragraph 1, or by a qualified majority, under paragraph 2. Where a member State declares that, for important and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by a qualified majority, no vote is taken. The Council, acting by a qualified majority, may request that the matter be referred to the European Council, for decision by unanimous vote.
In both cases, whether unanimity or qualified majority, the opposition of a single State prevents the taking of a decision under the CFSP.
CFSP decisions are therefore intergovernmental in nature. By taking part in their preparation and adoption each State engages its responsibility. That responsibility is assumed jointly by the States when they adopt a CFSP decision.
Police and judicial cooperation in criminal matters (known as Justice and Home Affairs Policy – “JHA” or the third pillar) is now provided for by Title VI of the EU Treaty, as modified by the Amsterdam Treaty. In the context of such cooperation the Council can take common positions and promote cooperation contributing to the pursuit of the objectives of the Union, using the appropriate form and procedures.
The Union’s actions in the field of the CFSP and JHA have a strongly intergovernmental character. The instruments through which the CFSP is mediated are joint actions and common positions.
Common positions are intended to strengthen and improve the coordination of cooperation between the member States, which are supposed to apply and defend them. Adopted by the Council of the Union, they are Community acts which require member States to conduct national policies consistent with the approach laid down by the Union in a particular field. They are therefore not directly applicable, as such, in the member States, and their implementation requires the adoption by each member State of concrete domestic provisions in the appropriate legal form.
Decisions taken by the States’ representatives under the CFSP are not subject to judicial review within the European Union, since by virtue of Article 46 of the EU Treaty the Court of Justice of the European Communities is not empowered to review the lawfulness of decisions taken in the field of the CFSP.
A Justice and Home Affairs issue may not be referred to the Court of Justice except in the form of a request for a preliminary ruling under the conditions laid down in Article 35 of the EU Treaty.


ITEMID: 001-60684
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF CAÑETE DE GOÑI v. SPAIN
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Matti Pellonpää
TEXT: 8. The applicant was born in 1950 and lives at Jerez de la Frontera (in the province of Cadiz).
She teaches history and geography at secondary-school level. From 1 July 1989 to 30 June 1994 she was the head teacher of a secondary school in Jerez de la Frontera where she taught.
9. The Autonomous Community of Andalusia gave notice through an advertisement in the Official Gazette of 31 December 1991 of an internal competition to fill 2,014 senior teaching posts at secondary-school level. On 16 February 1993 the Department of Education and Science of the Autonomous Community of Andalusia (“the Department”) published a provisional list of the candidates whose applications to take part in the competition had been accepted. The final list comprised 4,901 candidates, including the applicant, and was published on 27 March 1993.
10. On 9 December 1993 the Department published the candidates’ assessments and the number of marks awarded to each under the chosen selection criteria, in order to allow any complaints to be lodged.
11. By an order of 7 February 1994, it published a final list of the candidates, including the applicant, who had passed the examination.
12. In January 1994 more than 300 candidates issued proceedings in the Administrative Division of the Andalusia Higher Court of Justice complaining about the manner in which the competition had been organised and, in particular, of the use of, and weighting given to, teacher-training diplomas in the assessment process, which they maintained was discriminatory. Notice of each individual application was published in the Official Gazette of the province of Seville. The national and regional press carried reports that a large number of legal actions had been brought complaining about the organisation and results of the competition and that senior officials in the Andalusian government or members of their families had passed the examination as a result of the significant weighting given to one of the assessment criteria. The dispute was referred to the Ombudsman (defensor del pueblo) for Andalusia, who strongly criticised the weighting system and advised the Andalusian government to annul the competition. The teachers unions took a stand on the matter, which was also debated in the Andalusian parliament.
13. By a decision of the Department dated 15 March 1994 the applicant was appointed to the grade of senior history and geography secondary-school teacher.
14. In the judicial review proceedings that had been brought by a large number of candidates, the Andalusia Higher Court of Justice ordered the Department to furnish a list of the candidates in the competition, to produce the administrative file and to serve notice on interested third parties to attend the hearing. The Department lodged written pleadings, but without identifying the interested third parties who ought to be summoned. At the end of the proceedings, in a judgment of 31 March 1995, the Higher Court of Justice annulled the competition for history and geography teachers and directed the examiners to re-mark the examination papers without applying the disputed weighting.
15. In other judicial review proceedings that had been brought in the Andalusia Higher Court of Justice on the same grounds, interested third parties, who had not been personally served with summonses to appear, made an application under Article 24 of the Constitution for leave to intervene after learning about the proceedings from other sources. The Higher Court of Justice agreed to their participation in the proceedings.
16. On the reassessment of the candidates under the procedure laid down by the Higher Court of Justice, the applicant did not attain the requisite level and failed the examination. The Department issued an order on 31 August 1995, which was published on 9 September 1995 in the Official Gazette of the Autonomous Community of Andalusia, annulling her appointment to the senior teaching post.
17. The applicant lodged an amparo appeal with the Constitutional Court under Article 24 of the Constitution (right to a fair hearing) against the Higher Court of Justice’s judgment of 31 March 1995 and the Department’s order of 31 August 1995. She said in her appeal that she had learnt of the notice in the 9 September 1995 issue of the Official Gazette of the Autonomous Community of Andalusia by accident and complained in substance that the process whereby her appointment to the senior teaching post had been annulled was unfair, as she had not been summoned to appear before the Andalusia Higher Court of Justice as an interested party to the dispute. In that connection, she argued, inter alia, that the Higher Court of Justice had been under a duty under section 64 of the Administrative Courts Act to inform her of the court proceedings and to summon her to appear. She also sought a stay of execution of the Andalusia Higher Court of Justice’s judgment.
18. In a decision of 5 February 1996 the Constitutional Court declared her amparo appeal admissible.
19. On 26 February 1996 the Constitutional Court granted the applicant a stay of execution; it discharged that order on 27 May 1996.
20. State Counsel lodged written pleadings with the Constitutional Court on 30 May 1996 concerning the amparo appeal. He argued that the appeal should be allowed in part, as there had been a violation of Article 24 of the Constitution for the following reasons:
“... In order to examine this appeal, it is necessary to recapitulate the criteria and conditions laid down in the case-law of the Constitutional Court establishing that a failure to serve a summons personally will violate the right to the effective protection of the courts.
In that connection, the notion of ‘legitimate interest’ has a special meaning for the purposes of Article 24 § 1 (of the Constitution), as it determines who has a legitimate right to take part in court proceedings, that is to say standing as an interested party to bring an appeal.
The Constitutional Court has frequently stated that the notion of ‘legitimate interest ... is defined as an advantage or any legal benefit arising out of the remedy sought’ (judgment no. 60/1982). In the present case, it will be seen that the appellant had a legitimate interest in the application before the Andalusia Higher Court of Justice, as she was liable to be affected by the judgment, which resulted in a new list of selected candidates being drawn up and, consequently, the loss of her newly obtained status as a senior secondary-school teacher. From that standpoint, therefore, it was vital for the summons to be served on her personally and directly in the proceedings.
3. Secondly, ... since the appellant was identifiable, it is necessary to determine whether she could have been served personally. In that connection, it will be observed from the pleadings lodged with the Higher Court of Justice in support of the application for judicial review that it was not only the ‘scale’ that was contested, but also the provisional list of candidates permitted to take part in the competition, which means that the persons concerned were readily identifiable.
4. Consequently, it was not only necessary, but also feasible, for the appellant to be summoned personally and directly. The last requirement is that the person concerned should have no knowledge of the proceedings. In the present case, there is no evidence to suggest that the appellant knew or could have found out about the proceedings, as the judgment was not even served on her. Accordingly, the rule established in the Constitutional Court’s judgment no. 117/1983 should be applied, namely: ‘this Court will only dismiss the appeal if there is evidence establishing that the appellant was aware of the proceedings ...’
5. In the light of the foregoing, in the present case, the appellant should have been summoned to appear in the judicial review proceedings in the Andalusia Higher Court of Justice. The fact that she was not so summoned put her in a position that was prejudicial to her defence rights, in breach of the fundamental right guaranteed by Article 24 § 1 of the Spanish Constitution.”
21. In a decision of 8 March 1999, the Constitutional Court ordered the joinder of various amparo appeals against the Andalusia Higher Court of Justice’s judgment in which the appellants all relied on the same points of law.
22. In a judgment delivered on 14 September 1999 after an adversarial hearing, the Constitutional Court dismissed the amparo appeal.
23. With respect to the complaint that the annulment of the applicant’s appointment to the senior teaching post was tainted with procedural unfairness, owing to the failure to summon her to appear before the Andalusia Higher Court of Justice as an interested party to the dispute, the Constitutional Court held:
“...
4. ... While it is true that the appellants allege, firstly, a violation of section 64 of the Administrative Courts Act on the ground that the Seville Administrative Proceedings Division effected service by advertisement and not personally, such a violation would only have a legal bearing on a constitutional amparo appeal if the breach of the Act also constituted a violation of the fundamental right relied on (see judgments nos. 15/1995 and 197/1997, legal reason no. 4). This Court addressed the issue of failure to summon third parties with an interest in judicial review proceedings in detail in its judgment no. 9/1981. The rules established in that case have been systematically recited, inter alia, in decisions delivered during the current decade, in judgments nos. 97/1991 (legal reason no. 2); 78/1993 (legal reason no. 2); 325/1993 (legal reason no. 3); 192/1997 (legal reason no. 2); 229/1997 (legal reason no. 2); 122/1998 (legal reason no. 3); and 26/1999 (legal reason no. 3). As a general rule, the following three conditions must be satisfied for amparo relief to be granted:
(a) The appellant must have a personal legitimate right or interest capable of being affected by the judicial review proceedings concerned ...
(b) It must be possible for the court or tribunal concerned to identify the appellant. Whether that requirement is satisfied will depend essentially on the information set out in the notice of application, the administrative file or the grounds of appeal ...
(c) Lastly, the appellant must have been a victim of a material infringement of his or her defence rights [indefensión material]. There will be no material infringement of defence rights if the person concerned has constructive notice of the proceedings and has not appeared through want of diligence. A finding that the person concerned had constructive notice of the proceedings must be based on reliable evidence [fehaciente] (judgments nos. 117/1983 (legal reason no. 3); 74/1984 (legal reason no. 2); 97/1991 (legal reason no. 4); 264/1994 (legal reason no. 5); and 229/1997 (legal reason no. 3)). That does not prevent proof being established on the basis of presumptions (judgments nos. 151/1988 (legal reason no. 4); 197/1997 (legal reason no. 6); 26/1999 (legal reason no. 5); and 72/1999 (legal reason no. 3). The presumption that the person concerned had notice will be particularly strong in cases concerning civil servants employed by an authority that is a defendant in the proceedings (judgments nos. 45/1985 (legal reason no. 3); and 197/1997 (legal reason no. 6)).
5. The application of the aforementioned constitutional parameters to the present case gives the following results:
(a) Firstly, the appellants indisputably had a legitimate interest ...
(b) Secondly, ... in the present case, the Administrative Division had precise details of the co-defendants or other parties, as the application for judicial review referred to the provisional list of the selected and unselected candidates ... and even the final list of candidates ...
(c) However, thirdly, as to whether there has been a material infringement of the rights of the defence, this Court held in its judgment no. 113/1998 (legal reason no. 4) that it was reasonable to presume that teachers had constructive notice of judicial review proceedings when, as in the present case, they had been appointed to their senior teaching posts following a competition that had been challenged in the administrative courts, had attracted extensive media coverage and had had an important impact in trade-union circles ...
We reach the same conclusion in the present case. A number of articles on the proceedings challenging the scale used in the competition (and the list of candidates selected to take part) have appeared in large circulation newspapers in Andalusia (the case has received extensive coverage in Diario 16 (Andalusia), ABC (Seville edition), Jaén, El País, Huelva Información and Diario de Córdoba)). The underlying issues were also examined by the Andalusian parliament at a briefing session (held on 24 November 1994). In June 1994 the Department of Education and Science sent a memorandum to the teachers via the ‘Sector Education Office’ expressly informing them of the proceedings pending in the Andalusia Higher Court of Justice. To these considerations must be added the subjective characteristics common to all the applicants: they are all civil servants employed by the defendant authority; as teachers, they are in a category of the population that has frequent access to the media, particularly the press. Lastly, the number of people affected by the appeals is very high (4,091 teachers entered the competition and 2,014 were selected in a very specific functional environment (teaching)). In the light of the foregoing, we reach the clear conclusion that the appellants had constructive notice of the judicial review proceedings that were heard by the Administrative Division in Seville. Consequently, their failure to take part in those proceedings was not attributable to any lack of diligence by that Division. Accordingly, there has been no violation of the right to the protection of the courts (Article 24 § 1 of the Spanish Constitution).”
“1. Everyone shall have the right to the effective protection of the judges and courts in the exercise of his rights and legitimate interests and shall never be left defenceless.
2. Likewise, everyone shall have the right of access to a judge of ordinary jurisdiction, as predetermined by law, to defend himself and to be assisted by a lawyer, to be informed of the charges against him, to have a public trial without undue delay and attended by all safeguards, to use the evidence relevant to his defence, not to incriminate himself, not to admit guilt and to be presumed innocent.
...”
“Everyone appearing to have an interest in the dispute shall be immediately informed of any decision by the authority that issued the relevant instrument or provision to forward the administrative file to the court and summoned within nine days to attend the hearing ...”
24. In a series of judgments published in the Official Gazette of the State, the Constitutional Court has established the legal principles applicable to cases in which interested third parties have not been personally served with summonses requiring their appearance in judicial review proceedings to which they were not parties (see section 64 of the Administrative Courts Act). A detailed summary of the rules is to be found in the Constitutional Court’s judgment of 14 September 1999 in the present case (see paragraph 23 above).
It is the settled case-law of the Constitutional Court that anyone with constructive notice of and a legitimate personal interest in judicial review proceedings who has not been personally served with a summons to take part in those proceedings may apply to the court for leave to do so by virtue of Article 24 § 1 of the Constitution. A number of interested parties were given leave to intervene in some of the applications for judicial review heard by the Andalusia Higher Court of Justice challenging the assessment criteria used by the authority (see paragraph 15 above).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1