ITEMID: 001-22553
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: STROMBERG v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Gaukur Jörundsson
TEXT: The applicant, Britta Strømberg, is a Danish national, born in 1938 and living in Rønde, Denmark. She is represented before the Court by her husband, Mr Verner Hansen.
The respondent Government are represented by its Agent Ms Nina HolstChristensen, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the early 1980s the applicant stood security for an amount of 250,000 Danish kroner (DKK), for her husband’s debt to the Danish Bank (Den Danske Bank). In the late 1980s her husband entered into negotiations concerning the development of a golf course, which involved selling three plots of land belonging to him. As part of the husband’s original terms of sale he made it a condition that the Danish Bank would release the applicant from the above guarantee. Though the bank did not comply with this wish, the applicant’s husband signed a conditional deed to sell the land on 1 November 1990. Subsequently, the applicant’s husband signed a power of attorney on 7 August 1991, permitting two named lawyers to sign all documents relating to the above sale.
In the meantime, on 23 July 1991, the applicant’s husband had signed a declaration according to which he owed the applicant DKK 2,210,434. With reference thereto the applicant levied execution on her husbands “rights emanating from the sale of one of the above plots of land” and on 8 August 1991 she requested the Bailiff’s Court to sell the land at a foreclosure auction.
Due to default in payments, on 22 June 1992 the Danish Bank called in all loans granted to the applicant’s husband. Consequently, on 22 July 1992 the bank ordered the applicant to pay the DKK 250,000 she stood security for. Since the applicant did not pay, the bank sent a bankruptcy petition to the Probate Court of Århus (Skifteretten i Århus), which declared the applicant bankrupt on 25 August 1992. On appeal, this decision was upheld by the High Court of Western Denmark (Vestre Landsret) on 1 October 1992. The trustee in bankruptcy thereafter withdrew the applicant’s request to sell the land at a foreclosure auction.
On 15 June 1993 the applicant, represented by a lawyer, initiated civil proceedings in the High Court of Western Denmark against the Danish Bank and the above two lawyers. The applicant claimed compensation from the bank in the amount of DKK 2,210,434. In the alternative she claimed the same amount of compensation from the bank and the lawyers. In a counterclaim, the bank maintained that the applicant should pay DKK 250,000 emanating from her bank guarantee.
During the pre-trial period written pleadings were submitted by the three defendants on 31 August and 3 September 1993, and 7 January 1994 respectively. On 1 February 1994 the applicant’s lawyer withdrew from the case. The applicant’s pleading was submitted on 22 April 1994.
Following exchange of correspondence between the parties and the court on 1 July 1994 the preparations were closed. On 6 October 1994 the hearing was scheduled to commence on 10 October 1995. On that date the applicant appeared with the intention of being represented by her husband. However, the High Court found it impossible to give the case a proper consideration without legal assistance and pursuant to section 259 of the Administration of Justice Act (retsplejeloven) the applicant was ordered to retain counsel. According to the said provision the court can order a litigant in civil proceedings to be represented by counsel “if the court finds it impossible to hear the case properly (“på forsvarlig måde”) without such representation”. The case was consequently adjourned on this matter. On 27 October 1995 the High Court assigned a lawyer for the applicant. He requested a three-month extension of the timelimit for lodging a pleading on the applicant’s behalf. At a court session on 23 January 1996 his request was complied with and at the same time, in order to avoid that ongoing further preparation would delay the proceedings the trial was re-scheduled to commence on 17 February 1997. Having requested another adjournment on 11 and 22 March 1996, the lawyer informed the High Court on 20 May 1996 that he wished to withdraw from the case. In a session held on 23 May 1996, the applicant was instructed to find another counsel. On 20 June 1996 the High Court assigned a third lawyer for the applicant, but on 19 September 1996 also this lawyer wished to withdraw from the case as the trust between counsel and client had broken down. At a session on 24 September 1996 a fourth lawyer was appointed and at the same time the High Court emphasised that the applicant could not expect to have yet another lawyer appointed, should problems of cooperation arise between her and her lawyer.
The applicant’s submissions were finally delivered to the High Court in writing on 28 January 1997.
The trial took place from 18 until 20 February 1997 and on 23 April 1997 the High Court pronounced its judgment finding for the bank and the two lawyers.
On 2 May 1997 the applicant, represented by her husband, appealed against this judgment to the Supreme Court (Højesteret). Pleadings from the defendants were received on 28 May 1997. On 3 July 1997 the applicant requested permission to procure additional evidence, notably to hear a witness before an alternative court. With the defendants’ consent the Supreme Court complied with her request and the witness in question was heard in the City Court of Assens on 2 September 1997. On 30 September 1997 the defendants were ready for the scheduling of the trial. On 6 October 1997 the applicant submitted her reply. Thereafter, on 21 October 1997 drawing attention to the scope and complexity of the case she requested that a named attorney, who apparently had agreed to represent her, be appointed. At a court session held on 9 December 1997 the Supreme Court refused to appoint a lawyer, but ordered that the applicant be represented by one. By letter of 13 January 1998 the said named lawyer informed the applicant’s husband that he could not undertake to represent the applicant , partly because he found the prospects of success extremely poor. Subsequently, although the applicant alleged that she could not find a lawyer who would represent her without being appointed the Supreme Court upheld its decision on this subject on 2 and 11 March 1998. Having succeeded in finding an attorney who would represent her, at a session held on 23 April 1998 the lawyer in question requested an adjournment in order to procure additional evidence. The proceedings were then adjourned and on 28 April 1998 the lawyer’s specified that he wished to re-hear one of the witnesses already heard before the High Court, however only as regards a limited specified subject. At a session held on 17 August 1998 the request was complied with, and the examination of the witness was carried out before the City Court of Århus on 23 October 1998. On 20 November 1998 the defendants stated being ready for the scheduling of the trial. On 25 November 1998 the applicant’s lawyer requested an adjournment pending his evidential and procedural considerations. The request was granted. On 22 December 1998 the applicant’s pleadings were submitted containing a statement that the proceedings gave rise to no further claims. Thus, on 23 December 1998 the parties were summoned to a pre-trial review on 14 January 1999. However, on 30 December 1998 the applicant requested that the Supreme Court revoke its order that she retain counsel as in her opinion no lawyer were able to appear on her behalf in an adequate manner. Also she revoked her pleading of 22 December 1998. By letter of 7 January 1999 the said lawyer regretted to inform the Supreme Court that the applicant’s husband had asked him to resign from the case. In the circumstances on 29 January 1999 the Supreme Court decided to release the applicant from its previous order, and her husband subsequently represented her. On 5 February 1999 the court received a pleading from the applicant replacing the former of 22 December 1998 and entailing new submissions. Against the defendants’ objections on 29 April 1999 the Supreme Court allowed the new submissions and a pre-trial review was set for 16 June 1999. On 3 May 1999 the applicant submitted yet another pleading containing additional submissions. Correspondence in this respect were exchanged between the parties and the Supreme Court and it appears that at the session on 16 June 1999 the defendants accepted the new submissions and thus the final hearing was scheduled to take place on 12 April 2000. The trial was eventually conducted on 13 April 2000 and the Supreme Court pronounced its judgment on 19 April 2000 upholding the High Court judgment.


ITEMID: 001-88144
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: M. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant is a male national of the Republic of Congo who was born in 1973. The applicant, who was granted legal aid, is represented by Gillman-Smith Lee, a firm of solicitors practising in Middlesex. The Government are represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Between 1994 and 1997 the applicant worked for President Lissouba (see below) as a bodyguard and martial arts trainer for his children. The applicant had also been a chief sergeant in the Congolese military. He was in charge of soldiers who fought for President Lissouba and organised defence when the President had to flee into exile. In 1998 he joined the National Council of Resistance (CNR) and its military branch the Autodefence Force of Resistance (FDR). He was closely involved in training fighters for the CNR.
On 15 October 2000 he was arrested along with 31 other soldiers and detained until 17 November 2000. He was subjected to torture in detention, including, inter alia, being subjected to electric shocks. The applicant submitted medical evidence in support from the Medical Foundation which attributed multiple scars on his person to torture. He claimed that on 1 January 2001 a senior Congolese army officer opposed to the regime helped him escape. The applicant was shot trying to escape.
The applicant arrived in the United Kingdom on 22 January 2001 via the Democratic Republic of Congo, Zambia and South Africa and claimed asylum on arrival.
After arrival he was diagnosed with AIDS. In 2001 or 2002 the applicant married a British national who had five children from a previous relationship.
The Home Office and the Adjudicator rejected the applicant’s asylum claim on 12 March 2001 and 18 June 2003 respectively. They emphasised that there was no risk in returning Congolese citizens unless they had been heavily implicated in anti-government activities and that a UNHCR report suggested that only the most senior members of the Lissouba regime would be at risk. As to his medical condition, the Adjudicator noted that the applicant had family in the Congo who could care for and support him. The Adjudicator also noted that at the time the applicant and his wife married she already had five children and they were aware of his precarious immigration status.
On 18 August 2003 the Immigration Appeal Tribunal (IAT) granted the applicant permission to appeal in relation to lack of suitable medication in the Republic of Congo and in relation to the Adjudicator’s acceptance of core elements of the applicant’s account whilst making a broad negative credibility finding.
On 1 October 2004, following a hearing at which the applicant was represented, the IAT rejected the applicant’s appeal. Whilst the IAT accepted that he had been detained and ill-treated, it found that the applicant had been a low-level supporter of the CNR and that he would therefore be able to benefit from the 1999 amnesty for acts committed during civil conflicts. It noted the applicant’s own evidence that since May 2003 the peace process had advanced significantly and an amnesty had been offered, and concluded that even on the applicant’s own evidence he would not be at risk merely because of his past association with the defunct CDR party, the successor of which was a legal opposition party taking part in the political process.
As regards the applicant’s medical condition, the Tribunal found that he had “full-blown AIDS” and was receiving anti-retroviral treatment. It noted that in his Home Office interview the applicant had accepted that there was medical treatment available in the Congo, the question being the adequacy of that treatment. It referred to a Tribunal determination in 2003 that in Congo anti-retroviral drugs were available, although expensive. It noted that as of 27 February 2003 the applicant’s CD4 count was 370 and his viral load 73,800. It noted that as at 28 January 2004 the applicant’s viral load was less than 50 (down from just under 80,000) and his CD4 count above 500 (from less than 400) and observed that he was clearly making progress. It noted his doctor’s report that he was taking medication with three components one of which (Abacavir) was not available anywhere in Africa. The applicant submitted a medical report dated 28 January 2004 in support. However the IAT also referred to a further letter dated 17 March 2004 which it found indicated that, contrary to the previous impression, some appropriate treatment might be available after all and was sold cheaply, although patients who took Abacavir generally did much better. It concluded that even on the applicant’s evidence some treatment for his AIDS was available although it might not be the consultant’s treatment of choice and that it was available at a reasonable cost.
The applicant sought leave to appeal to the Court of Appeal as regards the IAT’s findings about his illness and the prospects of receiving adequate treatment in the republic of Congo. Leave to appeal was refused by the IAT on 15 November 2004.
On 5 July 2006 the Home Office maintained its refusal of the applicant’s asylum claim. It also noted that as the applicant had spent all his formative years in the Congo he would have an adequate support network at home. It concluded that in his present condition, with the treatment available in the Congo and his support network at home, his removal would not breach Article 3. It also noted that he had separated from his wife.
The applicant is now divorced from his wife. In 2006 he formed a relationship with a British citizen, with whom he has a child born in February 2008. It is not known whether either his present partner or the child are infected with HIV. It does not appear that he has sought leave to remain in the United Kingdom on the basis of his current relationships.
A medical report dated 7 May 2008 stated as follows:
“The patient is under our care at North Manchester. He has an HIV chronic infection well controlled with antiretrovirals. His last CD4 count was 752 (34%) and viral load is undetectable.
Recently he has had to change his antiretroviral regimen because of a problem with lipodystrophy. He was on Trizivir and changed to Kivexa and Efavirenz. He is tolerating his treatment relatively well. If he can not get the treatment his life expectancy would be 2-3 years because of the possibility of opportunistic infection. If he continues to take his antiretrovirals he can have a life expectancy similar to a normal person but he will be more prone to cardiovascular events like heart attacks or strokes.”
A medical report from the applicant’s general practitioner, dated 13 May 2008, recorded that the applicant was also receiving treatment for moderate depression and diabetes.
According to the United Kingdom’s Foreign and Commonwealth Office Country Profile on the Republic of Congo dated September 2006, in 1992 multi-party democratic elections took place and Pascal Lissouba’s party won the majority of seats in both the National Assembly and Senate. This shift in power destabilised the country and led to conflict between the army and militia groups. Civil war broke out between the militia forces loyal to Mr Lissouba and Mr Kolelas, on one side, and Mr Sassou-Nguesso, on the other, one month before the next elections were due to take place, in July 1997. The war continued for five months, and was finally won by Mr Sassou-Nguesso. The ousted President Lissouba and Prime Minister Bernard Kolelas fled. The planned elections did not take place, the constitution was suspended, and a transitional government was set up. The militia forces, however, fought on sporadically for another two years. A peace agreement was finally reached in November 1999.
A new constitution was adopted in 2001 and endorsed by a referendum in January 2002. The provisions of the constitution provided for a strong executive president, with a limit of two terms, with the length of the term extended from five years to seven years. The provisions also provided for a bicameral legislature to be elected every five years. The constitution banned political parties organised on regional, ethnic or religious identity.
In March 2002, renewed violence began in the Pool region, instigated by members of the Ninja militia group. The conflict slowly spread to other parts of the country and intensified as it did so. A peace agreement between the Ninja militia group and the government was signed in March 2003 and ended the fighting. In August 2003, the National Assembly formally approved an amnesty for the former Ninja militia fighters.
Presidential elections were held in March 2002. Most of the key candidates were banned from participating in the elections or withdrew from the election. This left Mr Sassou-Nguesso to win the election virtually unopposed. A peace agreement between exiled former Prime Minister Kolelas and President Sassou-Nguesso was signed in March 2003. In January 2005, President Sassou-Nguesso appointed a new government made up exclusively of members of his PCT party.
In October 2005, clashes between Ninja fighters and government forces occurred, following the return of Mr Kolelas to the country to attend the funeral of his wife. President Sassou-Nguesso subsequently requested that the legislature grant an amnesty to Mr Kolelas in the interests of national reconciliation. This was duly approved, and the death sentence issued in absentia against Mr Kolelas in May 2000, was overturned. Several days after the amnesty was granted, Mr Kolelas apologised to the Congolese people for his role in instigating the 1997 civil war.
According to the United States State Department 2007 Country Report on Human Rights Practices in the Republic of Congo, published 11 March 2008, the government’s human rights record remained poor; although there were fewer documented abuses during the year, serious problems remained. Citizens’ right to peacefully change their government was limited. In addition, the following serious human rights problems were reported: killings of suspects by security forces; mob violence, including killing of suspected criminals; security force beatings, physical abuse of detainees, rapes, looting, solicitation of bribes, and theft; harassment and extortion of civilians by uncontrolled and unidentified armed elements; poor prison conditions; impunity; arbitrary arrest; lengthy pre-trial detention; an ineffective judiciary; infringement of citizens’ privacy rights; limits on freedom of the press; restrictions on freedom of movement; official corruption and lack of transparency; domestic violence and societal discrimination against women; trafficking in persons; discrimination on the basis of ethnicity, particularly against Pygmies; and child labour.
The State Department Report further stated that the government did not prevent the return of citizens, including political opponents of the president. By year’s end, former president Pascal Lissouba, who was sentenced in absentia in 2001 to 30 years in prison for “economic crimes,” had not returned to the country, despite a November announcement that President Sassou-Nguesso had agreed to allow his return and pardon him. In August a former prime minister, Joachim Yhombi-Opango, returned to the country after the Council of Ministers granted him an amnesty in May for a 2001 conviction in absentia for allegedly improperly selling the country’s oil while in office.
The Country Progress Report for 2005, submitted by the government of the Republic of Congo to UNAIDS in January 2006, stated that at that time the Congo had two outpatient treatment centres, one at Pointe-Noire and the other in Brazzaville. These centres were the main structures providing global treatment for people living in the country. The active list of HIV-positive patients in these two centres in December 2005 numbered 3,478, of whom 1,230 were receiving antiretroviral drugs (ARVs). According to the same report, the total number of patients taking ARVs in the Congo rose from 850 in 2003 to 1,900 in 2004 and 2,550 in 2005, giving an increase in recruitment rate of 33% over the past three years. At the end of 2004, the regular monitoring of patients taking ARVs was 88%, the percentage lost to follow-up was estimated at 10% and the specific mortality rate at 3%.


ITEMID: 001-100901
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF STANISZEWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki
TEXT: 6. On 14 December 2006 the applicant lodged with the Kłodzko District Court an action against his former employer, concerning his social insurance entitlements.
7. On 26 April 2007 the Kłodzko District Court dismissed the applicant's action.
8. On 15 May 2007 the applicant appealed. On 23 October 2007 the Świdnica Regional Court dismissed his appeal.
9. On 5 November 2007 the applicant was served with the judgment with its written grounds. The court informed him at the same time that he had sixty days as of the date of the service of the judgment (until 5 January 2008) to lodge a cassation appeal.
10. In his letter of 28 December 2007, received by the court on 31 December 2007, the applicant requested the court to appoint a legalaid lawyer for the purposes of lodging a cassation appeal.
11. On 9 January 2008 the applicant was granted legal aid. In a letter of the same date the court requested the Wałbrzych Regional Bar Association to assign a legal-aid lawyer to the case. This letter was served on the addressee on 14 January 2008. A legal-aid lawyer was assigned to the case on the same day.
12. In his fax of 25 January 2008 to the Świdnica Regional Court the applicant requested the court to extend the statutory time limit for lodging the cassation appeal in his case. He explained that he had been trying to find a lawyer; to no avail. Finally, he stated that he was “delighted with the legal-aid lawyer assigned to his case, who was superb”.
13. In a letter of 24 January 2007 to the Świdnica Regional Court, the legal-aid lawyer stated that she had found no points of law on which a cassation appeal in the applicant's case could be based and submitted a legal opinion as to why a cassation appeal did not, in her view, offer any prospects of success. A copy of that letter was sent to the applicant on the next day.
14. In his letter of 30 January 2008, served on the Świdnica Regional Court on 1 February 2008, the applicant requested that the case be reexamined by that court. The applicant also applied to have the power of attorney of the defendant enterprise invalidated for the purpose of safeguarding the equality of arms in the proceedings as he intended to present his case to the court without legal representation.
15. By a letter of 28 February 2008 the President of the Labour Division of the Świdnica Regional Court informed the applicant that there were no grounds on which to envisage a re-examination of the case in which a final and valid judicial decision had been given.
16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court's judgments in the cases of Siałkowska v. Poland, no. 8932/05, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 March 2007; Smyk v. Poland, no. 8958/04, 28 July 2009; Zapadka v. Poland, no. 2619/05, 15 December 2009; Bąkowska v. Poland, no. 33539/02, 12 January 2010.
17. On 5 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 (Ustawa o zmianie ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych), entered into force. Under the amended text of Article 398 1 § 5, the timelimit for lodging a cassation appeal with the Supreme Court was extended from thirty to sixty days.
18. The Supreme Court has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within a period of thirty days counted from the day of service of the judgment on the party. The parties waiting for legal-aid services cannot be held at fault for shortcomings in the system. A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it. A request to appeal out of time should therefore be submitted within seven days from the date on which the legalaid lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local Bar Association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01);
19. In a resolution adopted by a bench of seven judges of the Supreme Court on 17 February 2009 (III CZP 117/08) that court acknowledged that there had been discrepancies in the manner in which the beginning of the seven-day time limit for submitting an application for leave to appeal out of time by legally-assisted parties had been determined. The court was of the view that applications for leave served the purpose of making access to the Supreme Court for legally-aided parties genuine and effective. Hence, the beginning of the timelimit could not be determined in a mechanical manner in all cases. The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86859
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TEMESAN v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicant was born in 1951 and lives in Bucharest.
6. Between 1994 and 1996 the applicant, in his capacity as the President of Bank B., facilitated the sponsoring of the Government by the bank in the production of a book promoting the image of Romania abroad. On 14 March 1997 the applicant was dismissed from his job.
7. On 24 September 1996 the company O.P. filed a criminal complaint against the applicant, accusing him of abuse of authority (abuz în serviciu, under Article 248 of the Criminal Code) and misappropriation of funds (deturnare de fonduri, under Article 302 of the Criminal Code) in relation to the above-mentioned sponsorship contract.
8. On 6 November 1996 the prosecutor attached to the Bucharest District Court took a statement from the applicant in connection with the allegations above.
9. On 14 November 1996 the prosecutor decided not to start criminal proceedings as the facts in the case did not disclose the commission of a crime.
On the same date, the applicant was informed of the decision.
10. On 26 September 1997 Bank B. filed a criminal complaint against the applicant for fraud (înşelăciune, under Article 215 of the Criminal Code) and abuse of authority (under Article 248 of the Criminal Code) in the handling of the same sponsorship contract mentioned above.
11. On 9 January 1998 the applicant made a statement to the prosecutor.
12. Witnesses’ and co-defendants’ depositions were taken in November 1996, November and December 1997, January, February, August and December 1998, and March and December 1999.
13. On 2 February 1998 a criminal investigation for fraud was started in respect of the applicant.
14. On 17 February 1998 the prosecutor attached to the Supreme Court of Justice enquired about French companies that had been involved in the publication of the book. He asked for evidence to be taken on commission (comisie rogatorie) by the prosecutor attached to the Paris Tribunal de Grande Instance. The request was reiterated on 13 October 1998. The documents were received from France on 13 November 1998.
15. On 12 October 1998 the prosecutor attached to the Supreme Court of Justice overturned the prosecutor’s decisions of 14 November 1996 and 2 February 1998. He considered that as long as the decision of 14 November not to prosecute had not been overturned, the prosecutor could not have legally started the criminal prosecution on 2 February. He ordered the opening of a criminal prosecution for fraud through contracts.
16. On 3 November 1999 the prosecutor attached to the Supreme Court of Justice changed the legal classification of the offence from fraud to abuse of authority.
17. On 9 December 1999 the applicant was questioned by the prosecutor at the Supreme Court of Justice for the first time in connection with the new classification of the offence. On the same day the applicant was arrested and remanded in custody until 7 January 2000 on the prosecutor’s order.
18. On 15 December 1999 the applicant (in the presence of the lawyer of his choice) was informed of the content of his criminal file.
19. On 16 December 1999 the prosecutor attached to the Supreme Court of Justice issued an indictment for abuse of authority.
20. The case was registered with the Bucharest County Court. Thirteen hearings took place before this court, from five of which the applicant was absent for medical reasons. On four other occasions the court postponed the oral hearings for various reasons, including requests made by the applicant’s counsel.
21. On 27 February 2001 the Bucharest County Court declared null and void the prosecution acts, referred the case back to the prosecutor and ordered him to carry out a complete review of the facts under investigation (refacerea urmăririi penale). Upon an appeal by the prosecutor, in a final decision of 22 May 2001 the Bucharest Court of Appeal considered that only the indictment of 16 December 1999 was null and void and therefore referred the case back to the prosecutor and ordered him to review that act.
The courts found that the prosecutor had not allowed enough time for the applicant to familiarise himself with the prosecution file and to formulate his requests, if any, in connection with it, and that the prosecutor had acted in haste in indicting the applicant only one day after presenting him with the file.
22. On 8 January 2002 the applicant made a statement to the prosecutor.
23. On 18 April 2002 the prosecutor attached to the Supreme Court of Justice decided to end the prosecution against the applicant, on the ground that the legal relationships under examination were of a civil and commercial nature and not of a criminal nature.
On 22 April 2002 he informed the applicant of his decision.
24. On 10 December 1999 the applicant contested his detention pending trial. The Bucharest County Court ordered his release on 14 December 1999. However, this decision was overturned by the Bucharest Court of Appeal in a final decision of 28 December 1999. The applicant remained in custody.
25. He later requested the Bucharest County Court to revoke the order for his detention. On 7 January 2000 the court ordered his release from custody. The prosecutor appealed and the County Court’s decision was quashed by the Bucharest Court of Appeal on 24 January 2000. The applicant’s detention order was extended by thirty days.
26. Upon the applicant’s request, the County Court concluded, on 2 February 2000, that his detention order had expired on 7 January. In a final decision of 15 February 2000 the Bucharest Court of Appeal dismissed an appeal by the prosecutor.
27. Consequently, on 15 February 2000 the applicant was released from custody.
28. The applicant brought an action against Bank B. claiming compensation for illegal dismissal. In a final decision of 3 March 2003 the Bucharest County Court awarded the applicant 103,992 United States Dollars (USD) in respect of pecuniary damage (loss of earnings) and USD 33,000 in respect of nonpecuniary damage.
29. On 9 April 2004 the applicant lodged an action against the State, under Articles 504-505 of the Code of Criminal Proceedings, 998-999 and 1000 § 3 of the Civil Code and the Convention, seeking compensation for unlawful detention. He claimed 10,000,000,000 Old Romanian Lei (ROL) in respect of pecuniary and non-pecuniary damage, of which USD 12,999 represented salaries that he had not received from Bank B. during his arrest.
30. On 24 September 2004 the Bucharest County Court allowed the action and granted the applicant ROL 250,000,000 in respect of nonpecuniary damage. It held:
“The evidence in the file confirms the applicant’s right to compensation under Article 504 of the [Code of Criminal Procedure] for his detention...
The applicant’s detention for 30 days on the prosecutor’s order; the detention from 7 January 2000 to 15 February 2000 which, as decided by means of a final decision, contravened the Code of Criminal Procedure and the Constitution, which required that the arrest be ordered by a “judicial officer” and extended by a court...; and lastly, the decision to terminate the criminal prosecution against the plaintiff on the ground that the facts committed did not fall within the scope of the criminal law, required the State’s responsibility for the judicial error made in the case...
Concerning the salaries not received during his arrest, ... the court notes that the applicant was released from his position on 14 March 1997, [Bank B.’]s criminal complaint being posterior to his dismissal. Therefore ... the court considers that there is no causal link between the applicant’s arrest and loss of revenue.
Moreover, in the Bucharest County Court’s decision of 3 March 2003, ... [which became final], a causal link was established between ... the plaintiff’s dismissal of 14 March 1997, which had not been a consequence of his detention, and the damage incurred, that is, the loss of earnings; this decision awarded compensation for the damage...
...[ [U]nlawful arrest and prosecution causes moral, social and professional suffering, and breaches dignity, honour and individual freedom, human rights protected by law. However, the amounts claimed by the plaintiff exceed by far the awards made by the European Court ... for just satisfaction under the ... Convention, the instrument invoked by the plaintiff as the legal basis for his claims.”
31. On 12 October 2005 the Bucharest Court of Appeal dismissed appeals lodged by the parties, upheld the County Court’s arguments and confirmed that:
“The plaintiff’s deprivation of liberty affected his honour and reputation, and the reparation can and must be made by a financial award.”
32. In a final decision of 22 February 2007 the High Court of Cassation and Justice (the former Supreme Court of Justice) dismissed for being out of time and ill-founded respectively, appeals on points of law lodged by the applicant and the State.
33. On 31 October 2007 the Government informed the Court that the applicant should request the execution of the final decision and communicate to the Ministry of Finance details of a valid bank account where the money could be transferred, but that to date no such steps had been taken by the applicant.
34. The newspaper “România Liberă” presented in its 17 March 1997 edition the opinion of various political figures on the applicant’s dismissal and arrest:
“The former president of [Bank B.], Răzvan Temeşan, was called on Friday for questioning by the police, informs prosecutor G.M. from the General Prosecutor’s Office. G.M. pointed out that the hearings might continue in the following days.
The Prosecutor’s Office imposed an obligation on Răzvan Temeşan not to leave Bucharest for thirty days. The president of [Bank B.] was accused, in the press, of bad management...
S.D., the president of the FPS [the State Property Fund], stated that the members of [Bank B.]’s executive board had been asked on Friday ... to dismiss Răzvan Temeşan ... from his position...
C.A., deputy president of the PSDR [the Romanian Social-Democrat Party]: ‘We only comment when we know the exact content of the file. In the case at hand we can only say that, in principle, the investigation of Răzvan Temeşan is part of the general fight against corruption. ... [H]owever, his responsibility shall be determined after investigations by the police and the Prosecutor’s Office...’
H.R., leader of the PL ‘93 [the Liberal Party ‘93]: ‘I believe it is a good thing that the present political power, unlike the former one, is allowing the investigation of fraud in the banking world...’
The Romanian National Bank (BNR) considers that the changes in the administration of [Bank B.] reflect the shareholders’ right, in particular FPS’s right, as the major shareholder, to decide upon the bank’s fate, stated A.V., director for communications of BNR...
I.D., president of PNTCD [the Agrarian Party] and CDR [the Romanian Democratic Convention]: ‘The facts surrounding Răzvan Temeşan were predictable. Have you not seen what the press published? Maybe it would have been better not to coincide his dismissal with the start of the criminal investigation by the police and the Prosecutor’s Office. But these authorities know better how to proceed...’”
35. On 15 March 1997 the newspaper “Jurnalul Naţional” published an article on the applicant’s dismissal and arrest. The article presented the point of view expressed during a TV show on corruption and organised crime by E.C., the President of Romania at that time. He stated mainly that:
“Our objective is to save and protect the Romanian banking system, which needs consolidation. As from next week important action against corruption shall commence...
Our decision was to fight corruption from the top to the bottom and the action will continue.”
36. On a different occasion E.M. reiterated his intention to have criminal investigations started in relation to all the corruption scandals that had previously only been investigated by the press.
37. Other similar positions, as well as interviews with the applicant, were reported in the press.
38. On 21 January 2000 the Minister of Justice told the newspaper “Cotidianul” that the courts should be more careful when dealing with requests for release from pre-trial detention and noted that some of the most inappropriate decisions to release individuals from custody had been adopted by the Bucharest County Court.
VIOLATED_ARTICLES: 6


ITEMID: 001-79501
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ÖZÇELİK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1952 and lives in Ankara. He was the deputy chairman of the pro-Kurdish HADEP (Halkın Demokrasi Partisi – People’s Democracy Party) prior to the events giving rise to the present application.
5. On 21 July 1999 the applicant was taken into custody by police officers from the anti-terror branch of the Ankara Security Directorate. According to the arrest protocol (yakalama tutanağı) signed by four police officers and the applicant, a search warrant had been issued in respect of the applicant. When the officers saw the applicant, they asked him to show his identity card. The applicant however attempted to escape.
6. On 23 July 1999 the deputy director of the Ankara Security Directorate sent a letter to the public prosecutor at the Ankara State Security Court requesting that the applicant’s custody period be extended. The deputy director maintained, inter alia, that the applicant had been taken into custody on 21 July 1999 during the course of a police operation carried out against the PKK and that the police had not yet completed the detailed questioning of the applicant and the gathering of evidence.
7. The public prosecutor referred the security directorate’s request to the Ankara State Security Court. On the same day, the single judge of the State Security Court decided to extend the custody period for three days starting from 24 July 1999, including 26 July 1999. The applicant did not appear before the judge.
8. On 25 July 1999 two police officers from the anti-terror branch of the Ankara Security Directorate took statements from the applicant. The applicant was questioned, in particular, about his statements made in several television programmes, broadcast on MED-TV, a pro-Kurdish channel, in which he had taken part in his capacity as deputy chairman of the HADEP.
9. On 27 July 1999 the applicant was brought before the public prosecutor at the Ankara State Security Court, who questioned him about his statements during the same television programmes. Subsequently, the public prosecutor requested the Ankara State Security Court to order the applicant’s detention on remand.
10. On the same day, the single judge at the Ankara State Security Court ordered the applicant’s release from detention, having regard to the nature of the alleged offence and the state of the evidence.
11. On 9 August 1999 the public prosecutor requested that the Ankara State Security Court file a bill of indictment, charging the applicant with aiding and abetting members of the PKK on account of his statements made during the television programmes shown on MED-TV.
12. On 21 December 2000 new legislation (Law no. 4616) on the suspension of proceedings and the execution of sentences regarding offences committed before 23 April 1999 came into force.
13. On 25 June 2002 the Ankara State Security Court decided to defer the imposition of a final sentence on the applicant, pursuant to Law no. 4616. The court held, under Article 1 § 4 of the same law, that the criminal proceedings against him would be suspended and a final sentence would be imposed should he be convicted of a similar offence within five years of this decision.
14. A description of the relevant domestic law at the material time can be found in Daş v. Turkey (no. 74411/01, § 18, 8 November 2005).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-61561
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SADIK ÖNDER v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The applicant is born in 1969 and lives in Istanbul.
10. On 9 July 1994 the applicant with fourteen other people was taken into police custody by the Anti-Terror branch of the Istanbul Security Directorate on suspicion of being a member of the PKK.
11. The applicant alleges that he was ill-treated and tortured in the police car on the way to the Istanbul Security Directorate and during his detention there. He claims that during his interrogation, he was blindfolded and stripped naked. He was strung up by his arms in the form of torture known as “Palestinian hanging”. His head was hit against the wall and he was held parallel to the ground on his hands and feet. He was also electrocuted, threatened and insulted.
12. The applicant further claims that he was coerced into signing a statement in which it was stated that he had worked for and had been involved in the terrorist activities of the PKK. After having signed the statement prepared by the police, he was allegedly kept in custody for one more week so that the signs of the ill-treatment to which he had been subjected would disappear. During that week, he claims that a police officer came to his cell at regular intervals and applied a medicine on his wounds in order to cover up the signs of ill-treatment. He claims that due to this medicine his scars healed very quickly.
13. The Government submit that the applicant was questioned by the police on 15 July 1994. They have produced a copy of a statement signed by the applicant on this occasion.
14. On 22 July 1994 the applicant together with 14 other detainees was examined by Dr T. Taner Apaydın at the Istanbul Forensic Medical Department. According to the medical report prepared by Dr Apaydın, the applicant showed no signs of ill-treatment.
15. On 23 July 1994 the applicant was brought before the Public Prosecutor at the Istanbul State Security Court. According to the records of this hearing, the applicant admitted that he had been involved with PKK related activities in the past and had been convicted on that account by the Erzincan State Security Court in 1989. He denied having any current relation with the PKK. He stated that the police invented the statement taken in custody.
16. The applicant alleges that he was brought to the Public Prosecutor at the Istanbul State Security Court together with the other detainees on 22 July 1994 but that the Public Prosecutor did not take his statement because he had complained to the prosecutor that he had been tortured in police custody. He further stated that because he told to the prosecutor that he was subjected to torture, he was once again tortured by the police. The Government contested this argument and stated that the applicant was brought for the first time before the Public Prosecutor on 23 July 1994.
17. The applicant alleges that he told the prosecutor on 23 July 1994 of his subjection to torture but that his statement was not taken into consideration by the Public Prosecutor and was not written down on the hearing records.
18. The applicant further stated that he was not seen by a doctor before being questioned by the Prosecutor on 23 July 1994 and consequently he does not have any medical evidence concerning the torture he was subjected to on 22 July 1994.
19. On 23 July 1994 the applicant was also brought before the Judge at the State Security Court. He denied the allegations against him and stated that he was not a member of the PKK. He further declared that the statement he gave to the Public Prosecutor was true. The Judge ordered his detention on remand.
20. The applicant claims that he told the State Security Court Judge that he had been tortured in police custody and that he had explained this to the Public Prosecutor at the State Security Court. However the case files show that the applicant did not claim to have being subjected to ill-treatment neither before the Public Prosecutor nor the State Security Court.
21. While the applicant was held in detention in prison, he requested to see a doctor. The prison doctor prepared a provisional report for the applicant and he was sent to the Eyüp Forensic Medical Department for a medical examination.
22. On 22 August 1994 the medical report prepared by the institution and signed by the medical expert stated that the applicant complained of widespread pain on his back, right arm and on both of his legs but that he could not find any signs of traumatic lesions. The medical report further stated that the complaints were not life threatening but accorded him one day's sick leave.
23. On 15 June 1995 the Chamber of Medicine of Istanbul (Istanbul Tabib Odası), in the context of disciplinary proceedings following complaints, found that Dr T. Taner Apaydın had concealed signs of torture in the medical examinations conducted on several persons between 3 February and 7 October 1994 and he was, therefore, prohibited from practising as a doctor for six months.
24. On 12 December 1994 the Public Prosecutor at the Istanbul State Security Court filed an indictment with the court, requesting that the court to apply Articles 168 §§ 1 and 2 and 169 of the Criminal Code and Section 5 of the Prevention of Terrorism Act.
25. On 13 September 1994 the applicant filed a complaint with the Istanbul Public Prosecutor's Office. He alleged that he had been ill-treated while in police custody and requested that proceedings be instituted against the police officers. He submitted the medical report of 22 August 1994 as proof of his ill-treatment.
26. On 11 January 1995 the Istanbul Public Prosecutor, referring to the medical report of the Eyüp Forensic Medical Department, gave a decision of non-prosecution on account of lack of evidence.
27. On 8 February 1995 the applicant filed an objection with the Beyoglu Assize Court against the Public Prosecutor's decision.
28. On 7 March 1995 the Beyoğlu Assize Court dismissed the applicant's objections.
29. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Veznedaroğlu v. Turkey, no. 32357/96, 11 April 2000, Tepe v. Turkey (dec.), no. 31247/96, 22 January 2002, and Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996VI).
VIOLATED_ARTICLES: 3


ITEMID: 001-57900
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF LALA v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient
JUDGES: R. Pekkanen
TEXT: 8. Mr Radjinderpersad Roy Lala is a Netherlands national born in 1961 and resident in The Hague.
It appears that in proceedings predating, and unrelated to, the events complained of he was sentenced to pay a fine, failing which he was liable to a term of detention (hechtenis).
9. On 19 November 1986, after a trial in absentia, the Hague Regional Court (arrondissementsrechtbank) convicted Mr Lala of the indictable offence (misdrijf) of forgery (valsheid in geschrifte) in that he had concealed an income from work while enjoying social- security benefits. It sentenced him to four weeks’ imprisonment (gevangenisstraf), two weeks of which were suspended for a probationary period of three years on condition, inter alia, that he co-operated in repaying the excess.
10. Mr Lala filed an appeal to the Hague Court of Appeal (gerechtshof).
Summoned to the hearing of that court on 7 September 1987, he failed to appear. The official record of the hearing states that Mr Lala was declared to be in default and contains the following passage:
"Mr A. G., lawyer in The Hague, is present as counsel of the accused and states that his client will not appear at the hearing because he is still liable to pay a fine, which he is unable to do, and he therefore runs the risk of being arrested immediately to serve the term of detention to which he is liable in the event of failure to pay."
11. In its default judgment of 21 September 1987, the Court of Appeal overturned the judgment of the Regional Court on technical grounds; it again convicted Mr Lala but reduced the sentence to two weeks’ imprisonment.
12. Through his lawyer, the applicant filed an appeal on points of law to the Supreme Court (Hoge Raad). Those of his complaints which are of relevance here may be summarised as follows: firstly, the Court of Appeal had not allowed the applicant’s counsel to speak last, as required by law; and secondly, not only had the Court of Appeal not allowed the applicant’s counsel to conduct the defence, although the latter had signalled the wish to do so by his presence, but the Court of Appeal had also failed to determine whether Mr Lala had had a compelling and legitimate reason not to appear, in which case his counsel should have been entitled to conduct the defence in his client’s absence.
13. In its judgment of 27 September 1988, the Supreme Court dealt with the applicant’s second complaint first in the following terms:
"In cases where the accused has not appeared but his counsel is present at the beginning of the court hearing, the court may proceed on the assumption that if counsel for the accused wishes to act as such despite the absence of his client, he will make this known to the court. As the record of the hearing of the Court of Appeal contains nothing from which it might be deduced that counsel made it known to the Court of Appeal that he wished to act in that capacity - neither his own presence nor his explanation of his client’s absence will serve this purpose - it must be assumed that he has failed to do so. Under these circumstances the Court of Appeal was not obliged to allow counsel to act as such in the course of the hearing of the criminal case against his client."
As to the first complaint, the Supreme Court held that it appeared from the official record of the hearing that the lawyer had stated the reasons for his client’s absence, but not that he had acted as counsel during his client’s trial. Consequently, that it had to be assumed that he had not so acted. Accordingly, the Court of Appeal had been under no obligation to allow the lawyer to speak last.
14. In general, the accused - if he is not a juvenile (section 500 h of the Code of Criminal Procedure (Wetboek van Strafvordering, CCP)) - is not under an obligation to appear at the hearing.
The court must examine of its own motion the validity of the summons (geldigheid der dagvaarding - section 348 CCP). If, in spite of having been properly summoned, the accused does not appear at the hearing, the court will declare him to be in default (verstek verlenen) and proceed with the case in his absence. This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be adjourned (see, inter alia, the judgment of the Supreme Court of 26 February 1985, NJ (Nederlandse Jurisprudentie, Netherlands Law Reports) 1985, 567) or submits his defence in writing (see the judgment of the Supreme Court of 9 October 1990, NJ 1991, 133) and even if the accused cannot be blamed for his absence (see, inter alia, the judgments of the Supreme Court of 20 December 1977, NJ 1978, 226, and 10 October 1989, NJ 1990, 293). The court has the power to order the accused to appear or to be produced before them by the police (section 272 CCP) but it is rarely made use of unless the accused is a juvenile.
15. An accused who has been convicted in his absence by the first-instance court may file an objection (verzet - section 399 (1) CCP); this is an ordinary legal remedy in Netherlands law. Such an objection entitles the accused to a full retrial by the same court (section 403 CCP).
An objection may not be filed by an accused who has, or has had, the opportunity to appeal to a higher court with jurisdiction as to both fact and law (hoger beroep - section 399 (2) CCP). This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal, i.e. where the sentence is nothing more serious than a small fine or where a regulatory offence (overtreding) has been dealt with in first instance by the Regional Court.
It follows from section 339 (1) CCP that no objection may be filed against a default judgment given on appeal.
16. In certain cases the accused may be represented in his absence. In cases which are dealt with at first instance by the Regional Court, this possibility exists if the criminal offence with which the accused is charged does not carry a prison sentence. However, the representative must be a lawyer who must state that he has been specifically empowered to act as such (bepaaldelijk daartoe gevolmachtigd - section 270 CCP).
At the hearing the procedural position of the representative is that of the accused himself, i.e. - even if the representative is a lawyer - not that of counsel (see, inter alia, the judgment of the Supreme Court of 25 April 1989, NJ 1990, 91). This means that like the accused, he may be cross-examined by the court and the prosecution and his statements may be used as evidence (see the judgment of the Supreme Court of 13 February 1951, NJ 1951, 476); he may also be assisted by a lawyer - or another lawyer - as counsel.
If representation is allowed at first instance before the Regional Court, it is also allowed on appeal before the Court of Appeal (section 415 CCP).
17. The question - which was in dispute among learned writers - whether the defendant, having been declared in default, is entitled to have his defence conducted for him by counsel was decided by the Supreme Court in its judgment of 23 November 1971 (NJ 1972, 293). Although the Procurator General (procureur-generaal) had suggested an answer in the affirmative, the Supreme Court came to the opposite conclusion. It reasoned that, were such an entitlement to be recognised, trial in absentia would take on an adversarial character incompatible with the basic idea of the Code of Criminal Procedure that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence. The Supreme Court went on to hold that it was true that since the introduction of the Code of Criminal Procedure the right to file an objection had been considerably curtailed, but pointed out that in so doing the legislature had not changed the character of trial in absentia. In conclusion, no section of the Code of Criminal Procedure nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel.
18. The Supreme Court has accepted, however, that a trial court may, at its discretion, allow counsel to speak in defence of an accused who has been declared in default. This discretion is quite frequently made use of. The Supreme Court strictly maintains the rule that if in such cases a trial court allows counsel to speak at all, it must allow him all rights available to the defence. It may not impose any limitations as to what subjects he may address (judgment of 19 May 1987, NJ 1988, 217); it may not deny him the right to speak last (judgment of 22 March 1988, NJ 1989, 13); if there are witnesses, counsel must be permitted to cross-examine them (judgment of 28 May 1991, NJ 1991, 729).
19. In principle the Supreme Court has held to its rule (see paragraph 17 above) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel, but since its judgment of 26 February 1980 (NJ 1980, 246) it is its established case-law that there is one exception: in that judgment, it ruled, on the basis of, inter alia, Article 6 (art. 6) of the Convention, that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that "compelling reasons" (klemmende redenen) prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case. The Supreme Court has accepted the corollary that counsel should in any case, if he so requests, be allowed the opportunity to argue that such reasons exist (judgments of 10 October 1989, NJ 1990, 293, and 19 December 1989, NJ 1990, 407).
20. The Supreme Court, in its judgment of 16 February 1988 (NJ 1988, 794), has held that a "compelling reason" exists not only if it is impossible for the accused to appear, but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he cannot reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until some later time when he will be able to attend or that his counsel will be allowed to conduct the defence.
The Supreme Court has consistently refused to accept the possibility of the accused being arrested as a "compelling reason" for his absence (see, inter alia, its judgments of 24 November 1988, NJ 1988, 638, of 9 February 1992, DD (Delikt en Delinkwent, Offence and Offender) 93.292, and 4 May 1993, DD 93.396, in addition to its judgment in the instant case).
21. If counsel wishes to act for the defence in the absence of his client, he should expressly ask permission to do so. His presence alone is not sufficient (see, inter alia, the judgments of the Supreme Court of 14 November 1986, NJ 1987, 862; 25 November 1986, NJ 1987, 686; 8 December 1987, NJ 1988, 704; 18 September 1989, NJ 1990, 145; 14 December 1993, DD 94.166). Nor does a request made by counsel for the hearing to be deferred suffice, as was held in, inter alia, the Supreme Court’s judgment of 21 December 1993 (DD 94.176).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-89305
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BOBOC v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1933 and lives in Cahul.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. In 1983 the applicant bought a house. The Cahul municipality subsequently allocated to the applicant the plot of land on which his house stood. In 1995, E., the applicant’s neighbour, moved the fence separating their respective plots and thus reduced the size of the applicant’s land.
8. The applicant brought court proceedings against E., seeking the removal of all impediments on the part of E. to his use of his land. On 29 May 1995 the Cahul District Court found in favour of the applicant. No appeal was lodged and the judgment became final. Following a request by the Prosecutor General’s Office, on 13 October 1995 the Supreme Court of Justice quashed the judgment of 29 May 1995 and ordered a full re-hearing. On 24 May 1996 the Cahul District Court rejected the applicant’s claims.
9. In parallel, the applicant requested the municipality to determine the boundary between his land and that of E. This was carried out on an unknown date in 1996. E. challenged the municipality’s actions in court but her complaint was rejected on 4 May 1996 by the Cahul District Court. There was no appeal and the judgment became final.
10. The applicant requested the municipality to establish his title to the land. On 26 February 1997 the municipality did so, determining the area of the land respectively owned by E. and the applicant. E. challenged that decision in court. Her request was rejected by the Cahul District Court on 8 August 1997. That judgment was upheld by the Cahul Regional Court on 13 November 1997 and the Court of Appeal on 17 March 1998. The judgment thus became final.
11. On 4 February 1999 the municipality annulled its own decision of 26 February 1997 and granted the applicant title to a smaller parcel of land. The applicant challenged the 1999 decision in court and sought an order for the removal of all impediments to his use of his land. On 20 September 1999 the Cahul District Court annulled the 1999 municipality’s decision. That judgment was upheld by the Comrat Regional Court on 2 May 2000 and the Court of Appeal on 7 September 2000. That judgment was final.
12. The applicant requested the Cahul District Court to issue an enforcement warrant, which was apparently refused. He made a number of complaints in this respect to various State authorities such as the Parliament, the Supreme Court of Justice, the municipality (for instance, in November 2000, September 2001, April and June 2002, January and March 2003) and was informed that during the period 1995-2000 no enforcement warrant in his name had been submitted for execution. On 19 December 2001 he was informed by the Ministry of Justice that it was not necessary to issue any enforcement warrant since the court in its judgment of 8 August 1997 had rejected E.’s claims and thus the municipality’s decision of 26 February 1997 remained in force.
13. On 8 October 2001 E.’s representative C.M. lodged a separate appeal against the judgment of 20 September 1999. On 5 December 2001 the Supreme Court of Justice decided that the appeal by E.’s representative should be examined by the Chişinău Regional Court, since most of the judges in the Cahul District Court had already sat in the case. On 18 April 2002 the Chişinău Regional Court dismissed the appeal on grounds of res judicata. There was no appeal and the judgment became final.
14. On 6 August 2002 E. initiated new proceedings asking the court to determine the rights over the land (both hers and the applicant’s). The applicant argued that there was no need to examine the case since all outstanding issues had been settled by the various municipality and court decisions adopted earlier. On 30 May 2003 he asked for an expert report to be made concerning the feasibility of using the land in any other manner than that in which it had been allocated by the municipality in 1997.
15. On 11 July 2003 the Cahul District Court rejected E.’s claim and found that the land should be divided in accordance with the municipality’s decision of 26 February 1997. That judgment was upheld by the Cahul Court of Appeal on 9 April 2004 and by the Supreme Court of Justice on 26 May 2004.
16. On 26 May 2004 the applicant was issued with an enforcement warrant ordering the delimitation of the border between the applicant’s land and that belonging to E.
17. Article 192 of the Code of Civil Procedure reads:
“(1) Court actions shall be examined by the first-instance court within a reasonable time. The criteria for determining of the reasonable length of the proceedings include: the complexity of the case, the conduct of the parties to the proceedings, the conduct of the court. The observance of the reasonable time requirement in examining cases shall be ensured by the court. In examining a specific case, the observance of the reasonable time requirement shall be verified by the higher courts when examining the case on the relevant form of appeal.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23712
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: LATIF and OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger;Nicolas Bratza
TEXT: The applicants, Meina and Claire Latif and Mark Frank Francom, are United Kingdom nationals, who were born in April 1981, July 1978 and May 1976, respectively. They are currently detained in HMP Holloway, HMP Durham and HMP Long Lartin, respectively. They are represented before the Court by Mr J. Goodwin, a lawyer practising in Leeds.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were arrested and interviewed by police, along with two other persons, in connection with the robbery, false imprisonment and murder of a woman in April 1998. It was alleged that the victim, an eighteen-year old schizophrenic girl, had been held at the flat where two of the applicants lived and had been subjected to numerous acts of violence. According to the evidence later adduced at trial, the victim was, inter alia, punched and kicked, beaten with a snooker cue and an iron, urinated upon, forced to drink disinfectant and locked in a kitchen cupboard. Once the victim died, she had been placed in a shallow grave where she was found on 25 April 1998.
During the police interviews, Meina and Clare Latif, on the advice of their solicitor, made no comment to questions put to them. In his first interview, Mark Francom admitted to disposing of the body and described the deceased’s appearance after she had been struck with an iron by another co-accused. He stated that the deceased had been put in a cupboard and described seeing the deceased with a plastic bag over her head and the same co-accused with her hands round the deceased’s neck. At his second interview, Mark Francom made no comment when the allegations of other witnesses were put to him. All three applicants were subsequently charged with murder and false imprisonment and Clare Latif was also charged with robbery. The two other persons arrested were also charged with murder, false imprisonment and one was charged with robbery.
The trial of all five co-accused was held from 21 April to 28 May 1999. The evidence against the applicants consisted of forensic evidence and the statements of a number of witnesses who called at the flat while the deceased was there. The witnesses described injuries being inflicted upon the deceased by each of the applicants. There was also evidence from witnesses to admissions made by Meina and Clare Latif while they were in custody, in which they independently gave detailed descriptions of what had happened to the deceased while in the flat. One witness stated that Meina and Clare Latif had told her that they were going to try to blame it all on one co-accused and that it was Mark Francom who had placed the bag over the deceased’s head and burnt her with a cigarette.
At trial, each of the applicants gave evidence and offered an account of events, admitting their presence at the flat but stating that it had been the acts of another co-accused which had killed the deceased without their encouragement or participation.
The defence urged that it would not be appropriate to draw any inference from the applicants’ failure to mention during the police interviews facts later relied on in the trial as provided for by section 34 of the Criminal Justice and Public Order Act 1994. The trial judge, in the exercise of her discretion, agreed that she would direct the jury that they should not draw any adverse inference from the applicants’ silence. Leading counsel for one of the applicants told the jury that they would be directed to that effect by the trial judge. However, in her summing-up, the trial judge did not specifically direct the jury that they could not draw adverse inferences from the applicants’ silence at interview.
On 28 May 1999, all three applicants were convicted of murder and false imprisonment. Clare Latif was also convicted of robbery. The applicants appealed against conviction and a single judge of the Court of Appeal granted leave to appeal on certain of the grounds of appeal relied upon. The full Court of Appeal granted leave to appeal including on the ground that the failure of the trial judge to specifically direct the jury that no adverse inference should be drawn from their silence during the police interviews rendered their trial unfair within the meaning of Article 6 of the Convention and the Court’s judgment in the case of Condron v. the United Kingdom (no. 35718/97, ECHR 2000-V).
On 31 July 2000, the Court of Appeal dismissed the applicants’ appeals against conviction on the ground, inter alia, that any omission or error in the trial judge’s direction to the jury did not render their convictions unsafe or the trial unfair within the meaning of Article 6 of the Convention and the Condron case. The Court emphasised that everyone involved in the trial accepted that no adverse inference should be drawn and that nothing was said by either the trial judge or counsel which was inconsistent with this. Further, the trial wholly depended on which witnesses the jury believed and they clearly did not believe the accounts given by the applicants.
The applicants subsequently applied to the Court of Appeal to certify that the case raised a point of law of general public importance and, having done so, to grant leave to appeal to the House of Lords. The Court of Appeal refused the application on 19 December 2000.
Section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) provides that:
“(1) Where, in any proceedings against a person for an offence, evidence is given that the accused–
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies–
...
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
(3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.
...”
Section 38(3) of the 1994 Act adds that:
“(3) A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...”
The Judicial Studies Board has adopted several specimen directions regarding the drawing of adverse inferences from silence according to section 34 of the 1994 Act. These specimen directions offer guidance to trial judges as to the directions they should give to the jury. The specimen directions are revised from time to time in accordance with developments in statute and case-law.
Prior to May 1999 specimen directions existed for the situation in which a trial judge decided that it was open to the jury to draw an adverse inference. Following the case of R v. McGarry (1999) 1 Criminal Appeal Reports 377), specimen direction no. 40, adopted in May 1999, provided that, if a trial judge decided as a matter of law that it was not open to the jury to draw an adverse inference, a specific direction (contained in specimen direction no. 44) should be given to that effect.


ITEMID: 001-92549
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BORISENKO AND YEREVANYAN BAZALT LTD v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The first applicant, Mr Mikhail Borisenko, is an Armenian national who was born in 1950 and lives in Yerevan. The second applicant, Yerevanyan Bazalt Ltd, is a private company which was set up in 1995 and has its registered office in Yerevan (hereafter, the applicant company). They were represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan.
s, may be summarised as follows.
The first applicant is the director of the applicant company. The latter’s capital was divided in various proportions among seven stakeholders, including the first applicant and a third person, Y.K.
On 1 October 2003 Y.K. passed away.
By the decisions of the applicant company’s general assembly of 26 May and 2 June 2004 Y.K.’s share in the company’s capital was found to constitute five per cent and the transfer of this share to Y.K.’s successors was approved.
On 8 April 2007 Y.K.’s successors instituted proceedings in the Commercial Court (ՀՀ տնտեսական դատարան) against the applicants and other stakeholders seeking to annul the above decisions, claiming that Y.K.’s share in the applicant company’s capital amounted to 20 per cent.
On 16 July 2007 the Commercial Court granted the claim.
On 31 July 2007 the applicants’ lawyer lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In his appeal the lawyer argued that a number of provisions of substantive and procedural law had been violated. As regards the admissibility grounds required under Article 231.2 § 1 of the Code of Civil Procedure (CCP), the lawyer did not indicate any of those grounds, arguing instead that this provision lacked legal certainty.
By a decision of 17 August 2007 the Court of Cassation decided to return the applicants’ appeal on the ground that they had not indicated any of the grounds required under Article 231.2 § 1 of the CCP.
A copy of this decision was sent to the applicants on 11 October 2007.
On 27 November 2005 amendments were adopted to the Armenian Constitution which entered into force on 6 December 2005. As a result of these amendments the Court of Cassation was entrusted with a new role, namely to ensure the uniform application of the law. The relevant provisions of the amended Constitution read as follows:
“...The highest judicial instance in Armenia, except for matters falling within constitutional jurisdiction, is the Court of Cassation which is called upon to ensure the uniform application of the law. ...”
In order to implement the above constitutional amendments, a substantial reform was introduced to the Armenian procedural law. As part of this reform substance-based admissibility requirements were introduced in respect of appeals on points of law lodged with the Court of Cassation. The relevant provisions of the CCP, as amended on 7 July and 25 December 2006 and 21 February 2007 and in force at the material time, read as follows:
Article 221.4: Entry into force of a judgment of the Commercial Court
“1. A judgment adopted by the Commercial Court following the examination of a case at first instance shall enter into force 15 days after delivery.
2. If an appeal on points of law is lodged against a judgment which has not entered into force, the judgment shall not enter into force until a decision is taken on admitting the appeal by the Court of Cassation. ...”
“Judgments and decisions of the Commercial Court can be contested through cassation proceedings...”
Article 222: Review of judicial acts through cassation proceedings
“1. Judgments of ... the Commercial Court which have not entered into force can be reviewed through cassation proceedings based on the appeals brought by persons indicated in Article 223 of this Code. ...”
Article 223: Persons entitled to bring appeals on points of law
“1. The parties to the proceedings and persons who were not parties to the proceedings but whose rights and obligations were affected by a judgment are entitled to lodge an appeal on points of law against a judgment of the Commercial Court which has not entered into force. ...”
“1. Appeals on points of law lodged against judgments of ... the Commercial Court which have not entered into force are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation).
2. The objective of the Court of Cassation’s activity is to ensure the uniform application of the law and its correct interpretation, and to promote the development of the law.”
“An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...”
“...2. An appeal on points of law against a judicial act adopted by the Commercial Court on cases examined at first instance can be lodged ... before the entry into force of the judicial act. ...”
“1. An appeal on points of law must contain (1) the name of the court to which the appeal is addressed; (2) the appellant’s name; (3) the name of the court that has adopted the judgment, the case number, the date on which the judgment was adopted, the names of the parties, and the subject-matter of the dispute; (4) the appellant’s claim, with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ...; (4.1) arguments required by any of the subparagraphs of paragraph 1 of Article 231.2 of this Code; [and] (5) a list of documents enclosed with the appeal.
2. An appeal on points of law shall be signed by the appellant.
3. A document certifying payment of the State fee shall be attached to the appeal.”
“1. An appeal on points of law shall be returned if it does not comply with the requirements of Article 230 and paragraph 1 of Article 231.2 of this Code...”
“1. The Court of Cassation shall admit an appeal on points of law, if (1) the judicial act to be adopted on the given case by the Court of Cassation may have a significant impact on the uniform application of the law, or (2) the contested judicial act contradicts a judicial act previously adopted by the Court of Cassation, or (3) a violation of the procedural or the substantive law by the lower court may cause grave consequences, or (4) there are newly discovered circumstances.
2. The Court of Cassation sitting as a panel composed of the President of the Court of Cassation and the judges of the chamber shall decide whether appeals on points of law lodged with the Court of Cassation comply with the requirements of Article 230 of this Code and paragraph 1 of this article and should be admitted.
3. An appeal on points of law shall be admitted if at least three of the judges of the Court of Cassation vote in favour of admitting it. This decision of the Court of Cassation is not subject to appeal. ...”


ITEMID: 001-70720
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OURANIO TOXO AND OTHERS v. GREECE [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 11;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Loukis Loucaides
TEXT: 9. The political party Ouranio Toxo (Rainbow), founded in 1994, has regularly taken part in elections since that date. Its declared aims include the defence of the Macedonian minority living in Greece. The other two applicants are members of the party's political secretariat.
10. In September 1995 the party established its headquarters in the town of Florina. The second and third applicants affixed to the balcony of the premises a sign indicating the party's name in the two languages spoken in the region: Greek and Macedonian.
11. According to the applicants, the opening of the headquarters and the affixing of the sign triggered a wave of violent protests by the town's inhabitants, but the police failed to take the appropriate measures to protect them against the various attacks to which they were subjected.
12. In particular, the offices were opened in early September 1995 and on 12 September 1995 priests from the church in Florina published a statement describing the applicants as “friends of Skopje”, driven by “anti-Hellenic and treacherous sentiments”. The statement continued as follows: “we call upon the people to join a demonstration to protest against the enemies of Greece who arbitrarily display signs with anti-Hellenic slogans, and we will demand their deportation.”
13. On 13 September 1995 the Florina town council held an informal meeting and, by a resolution published in the local press, decided to organise protests against the applicants.
14. On the same day the public prosecutor at the Florina Criminal Court ordered the removal of the sign on the ground that the inclusion of the party's name in Macedonian was liable to sow discord (Article 192 of the Criminal Code – see paragraph 23 below) among the local population. Police officers removed the party's sign without giving any explanation to the applicants, who then put up a new sign. That evening, according to the applicants, while they were inside the party headquarters a crowd of people, among whom they apparently recognised the mayor, the deputy mayor and certain town councillors, gathered in front of the building to shout threats and insults at them, such as “traitors”, “dogs”, “death to the dogs of Skopje”, “you're going to die”, and “we'll burn everything”. The crowd also allegedly demanded that the applicants hand over the sign.
15. On 14 September 1995 at about 1.30 a.m. a number of people allegedly attacked the party headquarters, and, after breaking down the door, assaulted those inside and demanded that they hand over the sign, which the applicants did. Another group entered the premises at approximately 4 a.m., threw all the equipment and furniture out of the window and set it on fire. According to the applicants, throughout these events they made a number of telephone calls to the police station located some 500 metres from the party headquarters, but were apparently told that no officers were available to come out. The applicants submitted that the public prosecutor's office took no action against those involved in the incidents. However, criminal proceedings for inciting discord were brought against four members of the party, including the second and third applicants, under Article 192 of the Criminal Code. The bill of indictment stated that “they had affixed to the party headquarters a sign on which, among other things, the word vino-zito (rainbow) was written in a Slavic language, and had thus sowed discord among the local inhabitants ...”. The applicants were committed for trial.
16. The trial took place on 15 September 1998 before a single judge in the Florina Criminal Court, who acquitted the applicants (judgment no. 979/1998). The court acknowledged that a crowd had gathered in front of the party headquarters and that one of the applicants had been beaten up. It found that there had also been criminal damage, which had culminated in the premises being set on fire.
17. On 5 December 1995 four party members, including the second and third applicants, lodged a criminal complaint and applied to be joined to the proceedings as civil parties, alleging that those responsible for the incidents had committed the following offences: incitement to discord (Article 192 of the Criminal Code), breach of the peace (Article 189), destruction of property (Article 381), criminal damage (Article 330), trespass (Article 334), threats (Article 333), insults (Article 361) and arson (Article 264).
18. On 24 November 1999 the Indictments Division of the Florina Criminal Court considered that there was insufficient evidence against the individuals named in the applicants' complaint and decided to discontinue criminal proceedings against them (order no. 30/1999).
19. On 10 December 1999 the applicants appealed.
20. On 4 April 2000 the Indictments Division of the Court of Appeal for West Macedonia dismissed the appeal (order no. 27/2000).
21. On 4 May 2000 the applicants appealed on points of law.
22. On 30 January 2003 the Criminal Division of the Court of Cassation dismissed their appeal as inadmissible (order no. 176/2003).
23. The relevant provisions of the Criminal Code read as follows:
“1. Anyone who takes part in an unlawful assembly, ... attacks persons or property, or forcibly enters houses, dwellings or other premises belonging to another, shall be punished by a prison sentence of up to two years.
2. The perpetrators of such an attack and anyone who has incited another to commit the attack shall be punished by a prison sentence of at least three months.
3. The above-mentioned sentences shall be imposed unless the offence attracts a harsher sentence under a different provision.”
“Anyone who, publicly or otherwise, provokes others to commit a violent act or sows discord among citizens, or incites citizens to do so, thus causing a breach of the peace, shall be punished by a prison sentence of up to two years, unless the offence attracts a harsher sentence under a different provision.”
VIOLATED_ARTICLES: 11
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-21955
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: G.M.B. AND K.M. v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are Swiss nationals, born in 1953 and 1951, respectively, and living in Zürich in Switzerland. The respondent Government are represented by their Agent, Mr P. Boillat, Head of the International Affairs Division of the Federal Office of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants married in 1989. They have a daughter L.G.M. born on 14 August 1995. As the daughter’s surname the parents wished to give her the mother’s, i.e. the first applicant’s surname B. This was refused on 18 November 1995 by the Zürich Registry Office. Based on Section 270 § 1 of the Swiss Civil Code (Zivilgesetzbuch, henceforth referred to as CC; see below, Relevant domestic law), the Office found that the child would obtain the family name which in the present case was the second applicant’s, i.e. the father’s surname M.
The applicants’ appeal against this decision was dismissed by the Directorate for the Interior (Direktion des Inneren) of the Canton of Zürich on 15 July 1996. The decision stated:
“1. If the parents of the child are married, the child obtains the family name (Section 270 § 1 CC). As a rule this is the name of the husband, exceptionally it will be the name of the mother if the parents have chosen this name as the family name according to Section 30 § 2 CC. If the mother puts her name first according to S. 160 § 2 CC, this will have no effect on the name of the common child ...
2. There is agreement with the parents that there would be discrimination contrary to Article 14 of the Convention if the family name was based solely on the name of the husband. But no right can be deduced for the parents freely to chose the family name of their common child. The applicants overlook in their argumentation that the reform of matrimonial law considered the equality of man and woman to the extent that the spouses may obtain, according to S. 30 § 2 CC, the authorisation to have the woman’s name as the family name, following an administrative procedure to change the name, if there are commendable grounds. This possibility to change names in case of commendable grounds, in respect of which only minor conditions (geringe Anforderungen) may be attached, is more easily attained than the one stated in Section 30 § 1 CC. Justification herefor is that marriage in any event will oblige one partner to renounce her/his name, for which reason there is less public interest in the irreversibility of a family name than in the case of Section 30 § 1 CC ... A commendable ground can be seen in every, even only remotely understandable, not clearly unlawful or immoral reason ... Even if Section 160 CC continues to uphold the principle of the unity of the family name, the spouses are free to apply, with the Government of their Canton of residence, for the authorisation to employ the woman’s name as the family name. The legislator thus enabled the spouses to choose as a family name the woman’s name and to pass this name on to any common children ... The only difference in Section 30 § 2 CC to a complete freedom of choice lies in the envisaged administrative procedure which, according to Section 179 § 1(2) of the Civil States Ordinance is free of costs. Contrary to the applicants’ opinion, this merely formal difference cannot amount to a breach of the prohibition of discrimination within the meaning of Article 14 of the Convention.
3. Upon announcing their marriage the applicants renounced filing a request within the meaning of Section 30 § 2 CC. As a result, they have opted for the name of the husband as the family name. According to Section 270 § 1 CC, their common daughter L.G.M. obtains the family name of the parents ...”
The applicants’ further appeal was dismissed on 7 November 1996 by the Federal Court (Bundesgericht), the decision being served on 24 December 1996. In its decision the Court recalled that the applicants had not opted for the possibility to choose the wife’s name as the family name. The case concerned not only the interests of the parents but, above all, the interests of the child who had an independent right to a family name and to be attached to the family. It would not be possible to grant parents with more than one child the right freely to choose the family name for every child. It was not clear why a child’s right to identity and individuality should demand the free choice of name for the parents, and Article 8 of the Convention did not grant such a freedom of choice. Insofar as the applicants pointed out that there would be discrimination in respect of whichever name was chosen as the family name that of the husband or that of the wife , the Court considered that it lay in the nature of things that parents had to agree on one name for the child.
Section 30 §§ 1 and 2 of the Swiss Civil Code state:
“(1) The Government of the Canton of residence may grant a person the change of name, if there are important reasons herefor.
(2) The request of the spouses to have the name of the wife as the family name is to be granted if there are commendable reasons (achtenswerte Gründe, intérêts légitimes). ....”
In practice, such “commendable reasons” are assumed if they are worthy of consideration and reasonable. The procedure envisaged under § 2 is free of charge (see BGE [Bundesgerichtsentscheid] 126 I p. 1). After marriage, the name may only be changed if the conditions of § 1 of Section 30 have been met.
Section 160 §§ 1 and 2 CC state:
“(1) The name of the husband is the family name of the couple.
(2) The bride may, however, declare before the Civil Registrar that she wishes to place her previous name before the family name. ...”
Section 270 § 1 CC provides:
“(1) If the parents are married, the child obtains their family name. ...
Section 177a § 1 of the Ordinance on Civil Status (Zivilstandsverordnung), which was introduced after the Court’s Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, states:
“(1) The bride may declare to the Civil Registrar that she wishes to keep her previous name, followed by the family name (Section 160 §§ 2 and 3 CC). The bridegroom has the same possibility, if the spouses file the request to have the wife’s name as the family name after the marriage. ...”
According to 179 § 1(2) of the Ordinance, no costs will be imposed if, upon marriage, bride and bridegroom issue declarations as to their names.