ITEMID: 001-102296
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF DUDEK (No. 1) v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Renate Jaeger
TEXT: 4. The applicant was born in 1947 and lives in Lohne. He is a dentist and member of the Lower Saxony Association of Contractual Dentists (Kassenzahnärztliche Vereinigung Niedersachsen) (“the Association”), the self-governing body of the contractual dentists practising in the Land Lower Saxony. The Association is responsible for, inter alia, entering into contracts with public health insurers on behalf of its members, checking costs claimed by its members, distributing reimbursements for contractual work paid by public health insurers, and allocating the effects of austerity measures in the public health sector among its members.
5. On 19 June 2002 the applicant brought an action against the Lower Saxony AOK- Die Gesundheitskasse, a public health insurance company, before the Hanover Social Court (“the Social Court”), seeking assistance in the institution of compensation proceedings for alleged mistreatment of his mother during hospitalisation preceding her death caused by cardiac arrest at the age of 83.
6. On 10 December 2002 the Social Court dismissed the action.
7. On 5 February 2003 the applicant appealed. The Lower SaxonyBremen Social Court of Appeal (“the Social Court of appeal”) held oral hearings on 30 September 2005 and on 18 April 2007. It dismissed the appeal on the last-mentioned date, holding that the respondent had sufficiently assisted the applicant by commissioning an expert opinion and declaring the applicant's further complaints inadmissible because they had not been raised before the Social Court.
8. On 13 May 2007 the applicant lodged a constitutional complaint.
9. On 26 July 2007 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible without giving further reasons (1 BvR 1800/07).
10. On 30 March 1999 the Association determined the applicant's remuneration as a contractual dentist for the year 1998.
11. On 28 April 1999 the applicant made an unsuccessful administrative complaint.
12. On 20 October 1999 he brought an action against the Association before the Social Court which suspended the proceedings at the parties' request on 22 April 2003.
13. On 29 August 2005 the Association modified the impugned decision, stipulating that the applicant was entitled to 195,769.35 Deutschmarks (DEM) of the DEM 207,892.64 claimed.
14. On 26 September 2007 the Social Court dismissed the action after having rescheduled an oral hearing at the applicant's request. The applicant's requests for rectifications of the judgment and the transcript of the hearing were to no avail. His attempts to institute criminal proceedings against the presiding judge were unsuccessful.
15. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
16. Furthermore, the applicant unsuccessfully pursued inactivity and constitutional complaint proceedings before the Social Court of Appeal and the Federal Constitutional Court.
17. On 29 March 2005 the Association determined the applicant's remuneration as a contractual dentist for the year 2004, stipulating that he was entitled to 204,324.53 Euros (EUR) of the EUR 221,875.07 claimed.
18. On 7 April 2005 the applicant made an unsuccessful administrative complaint.
19. On 10 March 2006 he brought an action against the Association before the Social Court, which rejected the claim on 26 September 2007.
20. The applicant appealed before the Social Court of Appeal.
21. On 23 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of EUR 1,000 for abuse of process (1 BvR 917/08).
22. On 7 May 2008 the Social Court dismissed the applicant's request for rectification; the applicant's appeal against that decision was to no avail.
23. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
24. On 5 April 2000 the Association provisionally determined the applicant's remuneration as a contractual dentist for 1999. According to the decision the applicant was entitled to DEM 515,581.04 of the DEM 721,628.35 claimed.
25. On 18 April 2000 the applicant made an unsuccessful administrative complaint.
26. On 17 April 2001 he brought an action against the Association before the Social Court, which granted the action in part on 30 June 2004.
27. On 13 July 2004 the applicant appealed before the Social Court of Appeal.
28. On 6 April 2006 the Association rendered a final decision which supplanted the impugned decision.
29. On 9 April 2008 the Social Court of Appeal dismissed the appeal. On 30 April, 18 June and 11 August 2008 the Social Court of Appeal dismissed challenges for bias against three of its judges; the applicant's appeals for the right to be heard against these decisions were to no avail. On 7 November 2008 the Social Court of Appeal dismissed the applicant's requests for rectification of the judgment and the transcripts.
30. On 17 June 2009 the Federal Social Court refused leave to appeal on points of law.
31. On 29 March 2000 the Association, in applying a decision of its council on the allocation of the effects of austerity measures for contractual dentists among its members, provisionally deducted DEM 13,657.06 from the amount claimed by the applicant in respect of his remuneration as a contractual dentist for 1999.
32. On 18 April 2000 the applicant made an unsuccessful administrative complaint.
33. On 11 June 2001 he brought an action against the Association before the Social Court which was dismissed on 5 November.
34. On 19 November 2003 the applicant appealed before the Social Court of Appeal.
35. On 26 February 2004 the Association amended the impugned decision.
36. On 13 January 2006 the Social Court of Appeal suggested a friendly settlement.
37. On 6 April 2006 the Association replaced the impugned decision.
38. On 9 April 2008 the Social Court of Appeal dismissed the appeal as inadmissible. On 7 November 2008 it dismissed the applicant's request for rectification and as inadmissible the applicant's appeal for the right to be heard. The applicant's challenges for bias against two judges were unsuccessful, as were his appeals for the right to be heard against these decisions.
39. On 17 June 2009 the Federal Social Court refused leave to appeal on points of law.
40. On 28 March 2001 the Association provisionally determined the applicant's remuneration as a contractual dentist for the year 2000, stipulating that he was entitled to DEM 527,171.48 of the DEM 674,102.66 claimed.
41. On 9 April 2001 the applicant made an unsuccessful administrative complaint.
42. On 15 May 2002 he brought an action against the Association before the Social Court which was dismissed on 29 September 2004.
43. On 25 October 2004 the applicant appealed before the Social Court of Appeal, which dismissed the applicant's appeal on 25 February 2009.
44. On 26 March 2002 the Association provisionally determined the applicant's remuneration as a contractual dentist for 2001, stipulating that he was entitled to DEM 478,222.72 of the DEM 563,511.30 claimed.
45. On 5 April 2002 the applicant made an unsuccessful administrative complaint.
46. On 2 July 2002 he brought an action against the Association before the Social Court which was dismissed on 28 July 2004.
47. The applicant appealed before the Social Court of Appeal. On 18 July 2005 the Social Court of Appeal stayed the proceedings and resumed them on 25 August 2005. On 12 May 2010 it dismissed the applicant's appeal.
48. On 19 April 2002 the Association dismissed the applicant's request for a hardship allowance for 2000.
49. On 29 April 2002 the applicant made an unsuccessful administrative complaint.
50. On 22 August 2002 the applicant brought an action against the Association before the Social Court, which dismissed the action on 25 October 2006.
51. On 15 November 2006 the applicant appealed before the Social Court of Appeal, which dismissed the appeal on 12 May 2010, after having previously dismissed the applicant's challenges for bias against two judges and his appeals for the right to be heard against these decisions.
52. On 5 April 2000 the Association determined the applicant's remuneration as a contractual dentist for the year 1999.
53. On an unspecified date the applicant made an administrative complaint which was dismissed on 24 March 2004.
54. On 1 April 2004 the applicant brought an action against the Association before the Social Court, which dismissed the action on 26 September 2007.
55. On 23 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action manifestly inadmissible as clearly insufficiently substantiated, and imposed a fine of EUR 1,000 for abuse of process (1 BvR 918/08).
56. On 25 April 2008 the Social Court dismissed the applicant's request for rectification; his appeal against that decision was to no avail.
57. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal against the judgment of 26 September 2007.
58. On 23 March 2004 the Association determined the applicant's remuneration as a contractual dentist for the year 2003. According to the decision the applicant was entitled to payment of EUR 181,976.50 of the EUR 198,310.84 claimed.
59. On 1 April 2004 the applicant made an unsuccessful administrative complaint.
60. On 25 May 2004 he brought an action against the Association before the Social Court, which dismissed the action on 26 September 2007.
61. On 23 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action manifestly inadmissible as clearly insufficiently substantiated and imposed a fine of EUR 1,000 for abuse of process (1 BvR 916/08).
62. On 6 May 2008 the Social Court dismissed the applicant's request for rectification; the applicant's appeal against that decision was to no avail.
63. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
64. On 27 March 2003 the Association determined the applicant's remuneration as a contractual dentist for the year 2002, stipulating that he was entitled to EUR 204,249.46 of the 229,852.22 claimed.
65. On 2 April 2003 the applicant made an unsuccessful administrative complaint. On 7 August 2003 he brought an action against the Association before the Social Court, which dismissed the action on 26 September 2007.
66. On 18 April 2008 the Federal Constitutional Court declared the applicant's constitutional complaint that the Social Court had taken no action inadmissible, without giving further reasons (1 BvR 851/08).
67. On 6 May 2008 the Social Court dismissed the applicant's request for rectification; the applicant's appeal against that decision was to no avail.
68. On 12 May 2010 the Social Court of Appeal dismissed the applicant's appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99905
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DBOUBA v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (in case of expulsion to Tunisia);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1967 and is currently being held in the Gaziosmanpaşa Foreigners' Admission and Accommodation Centre in Kırklareli.
6. In 1986 the applicant became an active sympathiser of the Islamic Tendency Movement, an illegal organisation in Tunisia. In 1989 the organisation was renamed Ennahda. He was arrested and questioned by the police on various occasions. As a result of persecution by Tunisian security forces, the applicant left Tunisia in 1990 and arrived in Syria, via Libya and Egypt. In 1992 he went to Italy and in 1994 he returned to Syria.
7. According to the applicant's submissions, in 1996, when the applicant went to the Tunisian consulate in Damascus, Syria, to renew his passport, he was detained and questioned by Tunisian officials there. Subsequently, he left Syria and arrived in Turkey.
8. Between 1996 and 2007 the applicant lived in the province of Şanlıurfa without a residence permit.
9. On 19 June 2007 the applicant was arrested by officers from the AntiTerrorist Branch of the Şanlıurfa Police Headquarters within the context of a police operation conducted against al-Qaeda. On 20 June 2007 he was transferred to the Bursa police headquarters. On 22 June 2007 the Bursa Magistrates' Court ordered his pre-trial detention.
10. On 9 August 2007 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court, charging the applicant and twenty-two others with membership of al-Qaeda. As regards the applicant, the public prosecutor noted that he was protected by another suspect, the person who was responsible for the Bursa area, and gave Arabic lessons to members of al-Qaeda.
11. On 24 January 2008 the Istanbul Assize Court held the first hearing on the merits of the case. During the hearing the applicant made statements to the effect that his asylum request had been rejected at the end of 1996 and he had been living in Turkey for more than ten years. He further maintained that he had not been involved in the activities of al-Qaeda and that he could not return to Tunisia because he risked ill-treatment and the death penalty in his home country. At the end of the hearing, the court decided to release the applicant pending trial. The court however banned the applicant from leaving the country.
12. According to the information in the case file, the criminal proceedings against the applicant are still pending before the first-instance court.
13. On an unspecified date the applicant reapplied to the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) and requested to be recognised as a refugee.
14. Following his release from pre-trial detention and prior to his placement in a foreigners' admission and accommodation centre, on 25 January 2008 the applicant was questioned by two police officers at the foreigners' department of the Kocaeli police headquarters. According to the document containing his statements, the applicant was informed that a procedure for his deportation had been initiated. He was then asked to make statements as to his application to the UNHCR. The applicant maintained that his lawyer had contacted the UNHCR on his behalf and that he had been interviewed by the UNHCR on 18 January 2008. The applicant further contended that he did not wish to be sent to Tunisia, as he risked the death penalty and ill-treatment in his country of origin.
15. On 5 March 2008 the director of the department responsible for foreigners, borders and asylum attached to the General Police Headquarters requested the Kocaeli governor's office to ensure the applicant's removal from Turkey. The applicant could not however be deported, on account of the decision of the Istanbul Assize Court banning him from leaving Turkey.
16. On 17 October 2008 the deputy director of the Kocaeli police headquarters requested the Istanbul Assize Court to annul its decision banning the applicant from leaving the country. He stated in his letter that the applicant had provoked others in the Centre and had started a protest by not accepting the meals served. The deputy director also noted that the applicant was a person liable to be deported under Article 19 of Law no. 5683.
17. On 3 December 2008 the applicant was recognised as a refugee under the UNHCR mandate.
18. On 23 December 2008 the applicant made an official application to the Ministry of the Interior for temporary asylum in Turkey. He was interviewed by officials from the Ministry of the Interior about his request between 9 and 12 November 2009, but has not been informed of the outcome of that interview.
19. In the meantime, on 22 January 2009 the Istanbul Assize Court set aside its decision of 24 January 2008.
20. According to the Government's submissions, the procedure for the applicant's deportation had been re-initiated following the decision of the Istanbul Assize Court of 22 January 2009. However, the procedure was suspended due to the application of the Rule 39 measure. The Government maintained that the applicant had been living in Turkey without seeking asylum. He had sought asylum only after it had been decided to remove him from Turkey. His request for temporary asylum was rejected since he was a suspected al-Qaeda member and therefore his presence in Turkey endangered national security and public order.
21. According to a letter of 14 September 2009 written by Mr Rashid Ghannouchi, one of the founders and the chairman of Ennahda, the applicant is a member of the Ennahda Party of Tunisia and would be at risk of imprisonment and torture if removed to Tunisia on account of his affiliation with that organisation.
22. The applicant was placed in the anti-terrorist branch of the Kocaeli police headquarters following the decision of the Istanbul Assize Court dated 24 January 2008 (see paragraph 11 above).
23. On 11 March 2008 the applicant was transferred to Kırklareli Foreigners' Admission and Accommodation Centre, where he is currently being held.
24. As regards the conditions in which he was kept in the Kocaeli and Kırklareli facilities, the applicant submitted that in Izmit he had been kept in a 9 sq.m cell where there were two benches of 0.75 x 0.90 metres. He had to call the warders when he needed to go to the toilet. He was given a meal once a day and did not have the right to leave his cell. During his detention in Izmit he had no access to his family or his lawyer. He therefore started a hunger strike, as a result of which he was allowed to see his lawyer three times.
25. As to the Kırklareli Foreigners' Admission and Accommodation Centre, the applicant maintained that he had been held in a 16 sq.m room with three other detainees. He was provided with meals three times a day. However, the food was of very poor quality. There was no drinkable water and therefore he was obliged to buy mineral water. He also noted that the detainees were not provided with any hygiene or cleaning products and that the warders had an aggressive attitude towards the detainees.
26. The Government submitted that the applicant was held in satisfactory material conditions in Kocaeli Police Headquarters and the Kırklareli Centre, where he was accommodated.
27. A description of the relevant domestic law and practice can be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-44, 22 September 2009).
28. A description of the situation of Ennahda members in Tunisia can be found in Saadi v. Italy ([GC] (no. 37201/06, §§ 65-79, ECHR 2008...).
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-1
5-2
5-4
5-5


ITEMID: 001-90677
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TAXQUET v. BELGIUM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1957 and lives in Angleur.
6. On 17 October 2003 the applicant appeared before the Liège Assize Court, together with seven co-defendants, on charges of murdering a government minister, A.C., and attempting to murder the minister's partner, M-H.J., on 18 July 1991. The indictment stated that they were accused of the following:
“1. having knowingly and intentionally killed [A.C.], with the additional circumstance that the killing was premeditated; this offence is classified by law as premeditated murder (assassinat);
2. having attempted, knowingly, intentionally and with premeditation, to kill [M-H.J.], the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrators; this offence is classified by law as attempted premeditated murder.”
7. The indictment further noted on pages 11 to 12:
“Carlo T. accuses Richard Taxquet, P.D.M. and A.V.D.B. of having ordered the murder of A.C. ...
In April 1991 Richard Taxquet informed him about an altercation he had had with A.C., who, having evidently found out about certain matters, had told Richard Taxquet 'that he would get it'.
Richard Taxquet also confided in his uncle that someone had issued a death threat against him, adding: 'it will be him or me'.”
8. In June 1996 a person described by the applicant as an anonymous witness had passed on certain information to the investigators. A record of 3 September 1996 mentioned the informer's intention to remain anonymous, which he justified by fears for his safety “in view of the importance of his information and the media outcry that has always surrounded the C. case”. The person was never interviewed by the investigating judge. He had given the investigators information obtained in confidence from a person whose identity he refused to disclose. During the trial in the Assize Court, the investigators were asked on the initiative of several defendants about the informer's identity. They stated that their informer was not one of the defendants and had not personally witnessed the alleged offences. According to the information supplied, which was set out in fifteen points, A.C.'s murder had been planned by six people, including the applicant and a leading political figure. The only point incriminating the applicant stated:
“V.der B. and Taxquet apparently laid particular emphasis on the urgent need to kill C. before the '91 holidays as he had promised to make some significant disclosures after the summer break.”
9. On 7 January 2004 the Assize Court sentenced the applicant (and his co-defendants) to twenty years' imprisonment.
10. The jury had been asked to answer thirty-one questions from the President of the Assize Court. Four of them concerned the applicant and were worded as follows:
“Question 25 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present before this court, guilty,
as principal or joint principal,
– either through having perpetrated the offence or having directly cooperated in its perpetration,
– or through having, by any act whatsoever, lent such assistance to its perpetration that without it the offence could not have been committed,
– or through having, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, directly incited another to commit the offence,
– or through having, by means of speeches in a public place or assembly, or by means of any written or printed matter, image or emblem displayed, distributed or sold, offered for sale or exhibited in a place where it could be seen by the public, directly incited another to commit the offence,
of having knowingly and intentionally killed [A.C.] in Liège on 18 July 1991?
ANSWER: yes
Question 26 – AGGRAVATING CIRCUMSTANCE
Was the intentional homicide referred to in the previous question premeditated?
ANSWER: yes
Question 27 – PRINCIPAL COUNT
Is the accused Richard Taxquet, who is present before this court, guilty,
as principal or joint principal,
...
of having attempted knowingly and intentionally to kill [M.-H.J.] in Liège on 18 July 1991, the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrator?
ANSWER: yes
Question 28 – AGGRAVATING CIRCUMSTANCE
Was the attempted intentional homicide referred to in the previous question premeditated?
ANSWER: yes”
11. On account of the numerous events occurring in the course of the trial, the Assize Court delivered thirteen interlocutory judgments:
(1) judgment of 17 October 2003 noting the absence of certain defendants and directing that they were to be tried in absentia;
(2) judgment of 20 October on the submissions of a co-defendant on the issue of cassette recordings of a video link;
(3) judgment of 27 October 2003 concerning the examination of witnesses without one of the co-defendants being present;
(4) judgment of 18 December 2003 on the civil parties' submissions as to the examination of certain witnesses;
(5) judgment of 3 November 2003 on the examination of a witness in camera;
(6) judgment of 6 November 2003 setting aside the order for a co-defendant to be tried in absentia;
(7) judgment of 13 November 2003 refusing a request by the prosecution for a hearing in camera;
(8) judgment of 19 November 2003 on the examination of certain witnesses in camera;
(9) judgment of 18 December 2003 on the submissions of a co-defendant objecting to the showing of a recording made by video link;
(10) judgment of 18 December 2003 on the submissions of a co-defendant as to the issue of witnesses who had failed to appear and witnesses to be reheard;
(11) judgment of 18 December 2003 on the submissions of a co-defendant as to the issue of the anonymous witness;
(12) judgment of 18 December 2003 on the applicant's submissions as to the issue of the anonymous informer;
(13) judgment of 18 December 2003 on the applicant's submissions as to the issue of witnesses who had failed to appear and witnesses to be reheard.
12. With regard to the request for an investigating judge to hear or rehear evidence from the person who had anonymously supplied information noted down by two non-commissioned gendarmerie officers, the Assize Court held:
“This information, obtained anonymously by members of the police force, has no probative value as such. In the present case it simply constituted information capable of giving fresh impetus or a new slant to the investigation and leading to the independent gathering of lawful evidence.
When examined at the hearing as witnesses, [the two non-commissioned gendarmerie officers] stated that their informer was not one of the defendants and that he himself had not witnessed any of the acts he described; he had merely relayed information he said he had received in confidence from a person whose identity he refused to disclose.
...
In the investigators' view, the process of drawing up an official record of information given to them by an anonymous informer did not in itself constitute any infringement of the defence rights of the persons named by the informer. All that was involved at that stage was the disclosure, with a view to its analysis and verification, of information that might be of interest to the investigation and might assist in clarifying the facts. Viewed in isolation from any objective data that might subsequently confirm it, this information did not constitute evidence of the acts allegedly carried out by the persons whose identity was mentioned by the informer.
...
Lastly ... it is not possible to speak of rehearing when it does not appear from the case file or the oral proceedings that [the person described as an anonymous witness] gave evidence under oath to an investigating judge.
With regard to the request for cross-examination of that person, firstly, the court is unaware of his identity and, secondly, regardless of the grounds relied on by the investigating judicial authorities in that respect, it does not appear useful for establishing the truth and would delay the proceedings needlessly without giving the hope of more certain results.”
13. In another interlocutory judgment delivered the same day, the Assize Court held as follows in relation to the applicant's request for a second examination of certain witnesses:
“The witnesses S.N., J.M., L.L. and A.R. gave evidence to the Assize Court, and the defendant Richard Taxquet and his counsel had the opportunity to put to them any questions they wished and to challenge freely all the evidence adduced by the prosecution and the civil parties.
In any event, as matters stand a second examination of those witnesses is unlikely to assist in establishing the truth and would tend to prolong the proceedings needlessly without giving cause to hope for more certain results.
...
Lastly, the requested examination of the witness E.G., who was called but refused to appear, and of a new witness, F.R., are likewise not necessary for establishing the truth and would tend to prolong the proceedings needlessly without giving cause to hope for more certain results, since the jury already has all the information required to form its verdict.”
14. The applicant appealed on points of law against his conviction of 7 January 2004 by the Assize Court and against all the interlocutory judgments given by that court.
15. In a judgment of 16 June 2004 the Court of Cassation dismissed the appeal. It held, in particular, that:
– the belated appearance of a co-defendant could not infringe the appellants' defence rights as they had been able to challenge freely both the statements made by that defendant during the preliminary investigation and relayed at the hearing by the persons to whom they had been given, and the statements made directly by the defendant before the jury.
– the Assize Court had rightly ordered that two witnesses should be examined in camera, fearing that they might not be able to express themselves freely if the hearing were public, which would have hindered the proper administration of justice;
– in refusing to show the film of the confrontation between witnesses on the ground that it might delay the proceedings needlessly, the Assize Court had not breached the principle of respect for the rights of the defence or the principle that hearings must be conducted orally, since the refusal had been based on the fact that those taking part in the confrontation, having appeared at the hearing, had been afforded the opportunity to be brought directly face to face with the defendants;
– in directing that the proceedings should continue on the ground that the examination of certain absent witnesses (who had been duly summoned to appear in court) was not necessary for establishing the truth, and in holding that a further appearance by certain other witnesses “would tend to prolong the proceedings needlessly without giving cause to hope for more certain results”, the Assize Court had not breached Article 6 of the Convention and the principle that hearings must be conducted orally;
– since the presumption of innocence related above all to the attitude of judges called upon to determine a criminal charge, the comments made by an investigator and the press reports, even if inaccurate, malevolent or resulting from a criminal offence, could not in themselves cause the trial to breach Article 6 §§ 1 and 2 of the Convention;
– it could not be inferred from the alleged inexperience of the jurors, the speed with which they deliberated or the lack of reasons given for their verdict that they were incapable of impartial adjudication in a case that had attracted considerable press coverage;
– the procedure for appointing members of the jury and the fact that they reached their verdict as to guilt without having discussed the issue with the court did not mean that the Assize Court was not an independent and impartial tribunal established by law within the meaning of Article 6 § 1 of the Convention or that the presumption of the accused's innocence could not be lawfully rebutted in that court;
– neither Article 6 nor Article 13 of the Convention guaranteed the right of appeal;
– neither Article 6 §§ 1 and 3 (b) of the Convention nor Article 14 § 3 (b) of the International Covenant on Civil and Political Rights, nor Article 149 of the Constitution, even when read in conjunction with the above-mentioned treaty provisions, placed any obligation on a jury to state reasons for its answers;
– the ground of appeal relating to Article 6 § 3 (b) of the Convention (inability to confer freely with his lawyer as a result of his detention the day before the trial had begun) was inadmissible as it did not appear from the evidence in the file that the applicant had alleged before the Assize Court that there had been a violation of the right to have adequate facilities for the preparation of his defence;
– Articles 10 and 11 of the Constitution, Article 14 of the International Covenant on Civil and Political Rights and Article 6 § 1 of the Convention did not state that reasons had to be given for a guilty verdict, or lay down the right of appeal or the right to appear before courts made up solely of career judges; the discretion of the lay jury, which, moreover, was restricted by Articles 351, 352, 364 and 364 bis of the Code of Criminal Procedure, did not give rise to an arbitrary difference in treatment for the purposes of Article 14 of the Convention.
16. As to the argument that the appellants' conviction had been decisively or incidentally based on the statements of an anonymous informer, the Court of Cassation stated:
“In so far as they challenge the observation that the Assize Court was unaware of the identity of the person whose examination was being requested and could therefore not order it, these grounds of appeal, being directed against an obiter dictum, are immaterial.
On that account, they are inadmissible.
As to the other submissions, the presence in a criminal case file of a record containing information from an unidentified source does not require the trial court to ensure that the informer is identified and examined in accordance with the procedure set forth in Articles 189 bis and 315 bis of the Code of Criminal Procedure in order for the prosecution to be valid or admissible; those provisions leave it open to the trial court to appoint an investigating judge to that end if such a step appears useful for establishing the truth.
The judgments consider, on the basis of a factual assessment which this court is not empowered to overrule, that the examination requested would delay the proceedings needlessly without giving cause to hope for more certain results.
The judgments also observe that the information obtained anonymously did not correspond to the evidence obtained lawfully and independently against the defendants.
It does not appear from the Assize Court's reply to the appellants' submissions that the trial courts contested their right to rebut the evidence produced at the trial.
On that account, these grounds of appeal cannot be allowed.
As to the remaining grounds, a breach of Article 6 § 3 (d) of the Convention ... does not result from the mere fact that the trial court considered it unnecessary, or impossible, to order the cross-examination of the anonymous informer whose disclosures provided helpful guidance for the investigation.
On that account, these grounds of appeal have no basis in law.”
17. Addressing a further ground of appeal, the Court of Cassation noted:
“The appellant [another co-defendant] submitted that before the start of the trial, the President of the Assize Court, acting by virtue of the powers conferred on him by Article 298 of the Code of Criminal Procedure, had 'called a series of witnesses who, according to the criminal file, had been connected with with the matter of the anonymous witness'; the appellant observed that the session had, however, opened without those persons being examined and concluded that his trial had therefore not been fair within the meaning of Article 6 of the Convention ...
However, the investigative measures described by the appellant could also have been ordered after the start of the trial, even under a different procedure, by the President of the Assize Court acting by virtue of his discretionary power.
It does not appear from the evidence in the file that the appellant requested the President of the Assize Court to order the examinations that, according to the ground of appeal, were not carried out.
Since this ground of appeal cannot be raised for the first time before this court, it is inadmissible.”
18. The Assize Court includes a President and two other judges (assesseurs); it sits with a jury. For the investigation and trial of civil actions, the court sits without a jury (Article 119). Persons appearing on the list of jurors must be registered on the electoral roll, enjoy full civic and political rights, be aged at least thirty and less than sixty and be able to read and write (Article 217). Members of the jury are chosen by lot from the list of persons on the electoral roll (Article 218). The procedure for compiling the list of jurors consists of several stages.
19. Article 223 provides that the mayor (bourgmestre) is required to carry out a survey of all the voters on the preliminary list in order to determine whether they can read and write, whether they are capable of following the proceedings in the Assize Court in the language of the region concerned, whether they are in active employment and, if so, in what capacity, whether they occupy a public office, whether they are a minister of a religion, whether they are a member of the armed forces in active service, what academic qualifications they have obtained, whether they have previously held elected office at national, provincial or municipal level, whether they are a member of one of the committees listed in point (9) of Article 223, and whether there are any impediments preventing them from carrying out the duties of a juror. Persons on the electoral roll must accurately complete the form drawn up for this purpose.
20. The prosecution is responsible for ensuring that, at least forty-eight hours before the opening of the oral proceedings, the list of jurors is served on each accused person, and the documents relating to the survey provided for in Article 223 in respect of the actual jurors and the additional jurors called for service are attached to the criminal file, where they remain until the trial jury is formed (Article 241).
21. Before the opening of the oral proceedings in each case, on the day appointed for that purpose, the jurors are called before the Assize Court in the presence of the Principal Public Prosecutor and the defendant, who is assisted by counsel (Article 242). The president of the Assize Court draws the names of the jurors one by one. First the defendant, then the Principal Public Prosecutor, may challenge an equal number of jurors. Neither the defendant nor the Principal Public Prosecutor may disclose their grounds for challenging a juror (Article 247). The jury is formed as soon as the names of twelve jurors have been drawn by lot without being challenged. The president of the court then draws the substitute jurors by lot (Article 248). The examination of the case begins immediately after the formation of the jury (Article 252).
22. The president addresses the members of the jury, who stand, and asks them to take the following oath: “You will swear and promise to examine with the most scrupulous attention the charges which will be made against ...; not to betray either the interests of the accused or those of society which accuses him; to communicate with no one until after your verdict; to allow no hatred, spitefulness, fear or affection to influence your judgment; to reach your decision in the light of the charges and the submissions in defence, according to your conscience and your innermost conviction, with the impartiality and resolution which befit a free and upright person” (Article 312). Each member of the jury, called on individually by the president, raises his hand and replies “I so swear”, on pain of nullity.
23. The president may order the clerk to read out the judgment by which the defendant was committed for trial. He orders the distribution to each juror of a copy of the bill of indictment and the statement of defence, if one has been filed. The Principal Public Prosecutor reads out the indictment and the defendant or his counsel the statement of defence (Article 313).
24. A witness whose identity has been kept secret in accordance with Articles 86 bis and 86 ter cannot be summoned to appear in court as a witness without his consent. The president reads out the witness statement at the hearing and mentions that details of the witness's identity have been kept secret in accordance with Articles 86 bis and 86 ter. If the witness agrees to give evidence at the trial, he retains full anonymity. In that eventuality, the president takes the necessary steps to guarantee the witness's anonymity. The president may direct the investigating judge, either of his own motion or on an application by the prosecution or by the defendant, the civil party or their counsel, to rehear evidence from the witness or to interview a new witness in accordance with Articles 86 bis and 86 ter with a view to establishing the truth. The president may decide to be present when the witness is interviewed by the investigating judge (Article 315).
25. Following the witness's depositions, the civil party and the Principal Public Prosecutor address the court. The defendant may make submissions in reply and the civil party and the Principal Public Prosecutor are allowed to reply to the defence submissions, but the defendant always has the final word. The president then declares the oral proceedings closed (Article 335).
26. The president reminds members of the jury of the duties they will have to discharge. He then puts questions to them. The question arising from the indictment is put in these terms: “Is the defendant guilty of committing this murder, this theft or this other crime?” (Articles 336 and 337).
27. After asking the questions, the president hands them to the jury, represented by the foreman; at the same time, he hands over the bill of indictment, the reports establishing the offence and the documents in the file other than the written witness statements. He advises the jury that if the defendant is found guilty on the principal count by a simple majority, this must be mentioned at the top of their verdict. (Where appropriate, the president advises the jury that evidence obtained under Articles 86 bis and 86 ter cannot be admitted unless it is corroborated to a decisive extent by other evidence (Article 341).)
28. Once the questions have been put to and handed to the members of the jury, they retire to deliberate in private. The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his consent. Before the deliberations begin, the foreman reads out the following instruction, which is also displayed in large type in the most visible place in the deliberation room: “The law does not ask jurors to account for how they reached their personal conviction; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence; it requires them to ask themselves questions, in silence and contemplation, and to discern, in the sincerity of their conscience, what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence. The law does not tell them: 'You will hold every fact attested by this number of witnesses to be true'; nor does it tell them: 'You will not regard as sufficiently established any evidence that does not derive from this report, these exhibits, this number of witnesses or this many clues'; it simply asks them this one question, which encompasses the full scope of their duties: 'are you inwardly convinced?'” (Article 342).
29. The members of the jury may leave their room only when they have arrived at their verdict (Article 343).
30. If the jury finds the defendant guilty, the Principal Public Prosecutor makes submissions as to the application of the law. The defendant may file a defence; however, he can no longer dispute the facts but can merely submit that a particular act is not prohibited or defined in law as an offence, or that he does not deserve the sentence sought by the prosecution (Article 362).
31. The court, consisting of the judges and the jury, subsequently deliberates on the sentence to be imposed in accordance with the criminal law. The court then delivers its judgment (Article 366).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84264
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MUMLADZE v. GEORGIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: András Baka;Antonella Mularoni;Françoise Tulkens;Irakli Adeishvili;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1938 and lives in Zestafoni, Georgia.
6. In a judgment of 2 July 1998 the Zestafoni District Court ordered the applicant to discharge the debt of USD 1,000 (EUR 730) in favour of another private individual. On 20 August 1998 the Supreme Court of Georgia upheld this judgment in cassation and it became binding.
7. On an unspecified date, the applicant filed with the Supreme Court a request for the supervisory review of the final judgment of 2 July 1998, seeking the re-opening of the case. On 13 May 1999 the Vice-President of the Supreme Court dismissed that request as unsubstantiated.
8. On 15 May 1999 the new Code of Civil Procedure of 14 November 1997 (“the CCP”), annulling the system of supervisory review, entered into force. Pursuant to its Article 436, supervisory proceedings which had not been finalised before the entry into force of that Code were to be maintained by the Supreme Court.
9. On an unspecified date, the applicant requested the Supreme Court to resume examination of her supervisory review request on the basis of Article 436 of the CCP. On 25 October 2000 the Supreme Court replied that her request was manifestly ill-founded, insofar as the relevant supervisory proceedings had been terminated on 13 May 1999, i.e. prior to the CCP's entry into force.
10. The applicant brought another court action, requesting that the Supreme Court be ordered, as “an administrative organ”, to resume the supervisory proceedings under Article 436 of the CCP. This action was dismissed as unsubstantiated several times and, lastly, on 18 February 2003 by the Administrative Affaires Chamber of the Supreme Court.
11. As the applicant refused to discharge the judgment debt of 2 July 1998, enforcement proceedings were initiated against her. Subsequently, an enforcement officer attached the applicant's house, located at 58 Pirosmani Street in Zestafoni (“the house”), which was put up for public auction.
12. On 22 June 2001 the auction was held but no buyer appeared. In the course of the rescheduled auction on 16 July 2001, the house was initially offered for the price of GEL 10,042 (EUR 4,430), this amount corresponding to its market value according to an auditor's report of 30 March 2001. However, as no bids were made, the enforcement officer started decreasing the price and, ultimately, the creditor, being the sole bidder, purchased the house for GEL 2,076 (EUR 916). On 18 July 2001 the certificate confirming the creditor's property title to the house was issued and the Land Register amended accordingly.
13. As the applicant continued living in the house, the creditor brought a court action for her eviction. On 12 March 2002 the Zestafoni District Court allowed the action on the basis of both parties' written and oral submissions. The court found it established that the creditor had acquired ownership of the house through the public auction of 16 July 2001. It reasoned that, insofar as the applicant had never challenged the lawfulness of that auction in separate proceedings, the house was to be vacated.
14. On 25 April 2002 the applicant lodged an appeal. She claimed to have been discharging the judgment debt in instalments and complained that the forced sale of her house had therefore been unjustified. She also contended that the house had been her husband's registered property and that the enforcement officer had no competence to conduct the auction.
15. In a decision of 13 June 2002, the Kutaisi Regional Court, after having heard both parties' oral pleadings, dismissed the appeal and upheld the judgment of 12 March 2002. It reiterated the lower court's findings that the applicant had never disputed the results of the public auction and that the creditor had acquired ownership of the house in good faith.
16. On 2 August 2002 the applicant lodged a cassation claim, reiterating her previous appeal arguments.
17. On 16 September 2002 the Supreme Court declared the applicant's cassation claim admissible and dispensed with an oral hearing on the merits under Article 408 § 3 of the CCP. By the same decision, the applicant was exempted, as an indigent person, from the court fees for cassation proceedings.
18. On 23 September 2002 the Supreme Court sent its decision of 16 September 2002 to the parties; the creditor was also served with a copy of the applicant's cassation claim. The Zestafoni postal services notified the Supreme Court on 26 September 2002 that this decision had been delivered to the applicant on 24 September 2002.
19. On 30 September 2002 the creditor submitted comments in reply. Those were not transmitted to the applicant. In a decision of 9 December 2002, the Supreme Court dismissed the applicant's cassation claim. It found, in the light of the case materials, that the applicant had been the owner of the disputed house before the public auction. It reasoned that, since the results of the auction had never been the subject of an examination by the lower courts, either in separate proceedings or by way of a counter-claim within the same proceedings, the applicant was absolved from raising certain arguments for the first time before the cassation court. However, as no “additional and well-founded cassation argument” (sakasacio pretenzia) had been made, the findings of the lower courts concerning the binding on the cassation court.
20. In its decision of 9 December 2002, the Supreme Court did not take into account the arguments contained in the respondent's submissions of 30 September 2002; it solely addressed the issues raised in the applicant's cassation claim.
21. On 9 January 2003 the Supreme Court sent this last decision to the parties. According to the applicant, she never received that dispatch (see paragraphs 46 and 48 below).
22. On 20 January 2003 the applicant requested the Supreme Court to stay the cassation proceedings, in view of the fact that the supervisory proceedings were pending (see paragraph 10 above). In a letter of 18 February 2003, the Supreme Court replied that its decision of 9 December 2002, dismissing her cassation claim, was final and that no appeal lay against it. This letter was delivered to the applicant on 24 February 2003.
23. According to the applicant, the letter of 18 February 2003 enclosed the Supreme Court's decision of 9 December 2002, and that was how she learned first about the termination of the eviction proceedings.
24. On 30 April 2003 the applicant, along with other persons, lodged a constitutional claim with the Constitutional Court, requesting the annulment of Article 408 § 3 of the CCP for being unconstitutional.
25. On 3 July 2003 the Constitutional Court examined this claim. As the vote of the sitting judges was tied, the claim, pursuant to section 21 § 6 of the Constitutional Court Act, was dismissed (for more details, see paragraph 28 below).
Articles 70-78 prescribed the procedure for serving court summons on a party to the proceedings. This procedure required an acknowledgement of delivery to be returned to the dispatching court (Article 73).
Pursuant to Article 83 § 1, the parties had equal procedural rights. They could consult the case file and make extracts from or take copies of all the materials therein.
Pursuant to Article 393 §§ 1 and 2, only the lawfulness of an appellate decision could be challenged in a cassation claim. The disputed decision could be found to be unlawful if the appellate court had wrongly applied or interpreted legislative provisions.
Pursuant to Article 397, which regulated the time-limit for lodging a cassation claim, appellate decisions were considered to be delivered when handed to a party in court or communicated under the procedure envisaged by Articles 70-78.
Article 396 § 1 (f) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was challenging not only substantive but also procedural legal provisions.
According to Article 399, unless Chapter XLIX, which contained special rules for cassation proceedings, stated otherwise, the provisions regulating appellate proceedings should equally apply in cassation.
Chapter XLIX did not contain any provisions overruling or contradicting Articles 70-78 and 397.
Article 400 stated that a copy of the cassation claim with all the supporting documents should be forwarded to the adversary. Neither this nor any other provision of the Code required the adversary's reply to be transmitted to the appellant or that any further exchange of comments was possible.
Article 404 § 1
“The cassation court shall review the [disputed] judgment only in so far as challenged in the cassation claim. The cassation court cannot go beyond the facts referred to under Article 396 § 1 (f) or inquire of its own motion into other procedural breaches.”
“The cassation court shall take into account the party's submissions only in so far as disclosed by the case file or the appellate judgment; only the facts submitted under Article 396 § 1 (f) can be taken into account.
The establishment of the facts [by the appellate court] is binding on the [cassation] court, unless an additional and well-founded cassation argument has been raised.”
“If the cassation court finds it appropriate..., it can decide the case without an oral hearing. The parties shall be notified of such a decision.”
“Enforcement, when related to immovable property, is carried out by a public auction, mortgage or sequestration.”
“...the final price offered during [the first] public sale shall not be less than 70 % of the object's market value and shall include the costs of the auction ...”
“If an appropriate price was not offered in the course of the first public sale, the enforcement officer shall schedule a repeat auction...
During the repeated auction, the final price shall be of at least such an amount as to cover the creditor's claims and the costs of the sale ...”
Section 21 § 6 (as amended on 12 February 2002)
“If the vote of a Chamber (Panel) [of the Constitutional Court] is tied, the constitutional claim is considered to have been dismissed.”
The provisions on the nature of Georgian constitutional proceedings were summarised in paragraph 23 of the Court's judgment in the case of Apostol v. Georgia (no. 40765/02, ECHR 2006...).
The Constitutional Court dismissed the applicant's complaint, challenging Article 408 § 3 of the CCP, which provided for the possibility to dispense with an oral hearing in cassation proceedings.
The Constitutional Court noted that, unlike an appellate court which established facts, the cassation court could only review the application of legal provisions. It could however examine, on the basis of Articles 396 § 1 (f) and 407 §§ 1 and 2 of the CCP, the facts which had been explicitly raised by the appellant in relation to the alleged violations of procedural law.
Consequently, whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law, the Constitutional Court concluded that the right to an oral hearing in cassation proceedings was not absolute.
In its judgment of 28 February 2006 in the case of “Gokhi” v. “Telasi” JSC, the Supreme Court defined the notion of an “additional and well-founded cassation argument” (Article 407 § 2 of the CCP), as follows:
“...'An additional and well-founded cassation argument' is ... a reference to those procedural breaches which, having been committed by the appellate court during the examination of the case, have resulted in an erroneous assessment of matters of fact and/or the incorrect interpretation and application of substantive legal provisions.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69497
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KOWALCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Anna Kowalczyk, is a Polish national who was born in 1941 and lives in Krzęcin, Poland. She is represented before the Court by Mr P. Sołhaj and Mr K. Tor, lawyers practising in Cracow, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 August 1992 the applicant lodged an application with the Cracow District Court (Sąd Rejonowy). She asked for an easement (right-of-way) to be granted to her.
The proceedings were terminated on 5 November 2003. On 16 February 2001, the date on which the application was lodged with the Court, they were pending before the Cracow District Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-72371
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: COKARIC AND OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are 72 inhabitants of the coastal town of Stobreč (see Appendix I), of whom 35 claim to be the owners of real property in the area (see Appendix II). They are represented before the Court by an environmental association named Association for Preserving the Cultural and Natural Heritage Stobreč Epetium (Udruga za očuvanje kulturne i prirodne baštine Stobreč “Epetium”), with its seat in Stobreč and the aim to promote preservation of the environment and of cultural and historical monuments. The respondent Government are represented by their Agent, Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
Within the framework of a project to protect the Kaštel Bay of the Adriatic Sea, the State is constructing a sewer network, with an outlet near the coastal town of Stobreč.
On 12 November 2001 the Ministry of Environment and Zoning (Ministarstvo zaštite okoliša i prostornog uređenja; “the Ministry”) granted the company V.K. a building permit for constructing the sewer outlet in Stobreč.
On 29 April 2002 the applicants filed a motion for re-opening of the above administrative proceedings (prijedlog za obnovu postupka) with the Ministry. They claimed not to have been afforded the opportunity to participate in those proceedings, which had violated their constitutional rights and international environmental treaties as the sewer would not be equipped with a proper biological purification system.
On 2 August 2002 the Ministry requested the applicants to substantiate their complaints and submit additional documents. The applicants replied on 27 August 2002.
On 30 April 2003 the Ministry dismissed the applicants’ motion, finding that they had failed to prove their locus standi or to substantiate their allegations as required by the relevant legislation.
On 27 June 2003 the applicants brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against the Ministry’s decision. On 13 January 2005 the Administrative Court quashed the Ministry’s decision. In its judgment, the Administrative Court stated that, due to the fact that they lived in the area of possible negative impact of the building works, the applicants could not have been denied locus standi in the case.
Currently, the proceedings concerning the applicants’ request to reopen the administrative proceedings are again pending before the Ministry.
On 29 April 2002 the applicants lodged a constitutional complaint, seeking to have the building permit quashed. They submitted that the permit violated some of their constitutional rights, including freedom of movement, as well as the right to work and to protection of health. Moreover, in their constitutional complaint the applicants requested an interim measure in order to stop the ongoing building works.
On 30 January 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicants’ constitutional complaint inadmissible for non-exhaustion of legal remedies.
On 13 March 2003 the applicants requested the Split Municipal Court (Općinski sud u Splitu) to issue an interim measure in order to stop the building works. On 22 May 2003 the court scheduled an on-site inspection for 29 May 2003. Following the inspection, on 31 July 2003 the court experts submitted an offer, charging 42,000 Croatian kunas (HRK) for their opinion. The applicants never advanced the amount sought; the proceedings are still pending.
Sometime in 2003, three of the 72 applicants lodged a civil action with the Split Municipal Court seeking compensation for damage resulting from the construction of the sewer outlet. The proceedings are still pending before the first-instance court.
With a view to securing the building site, the police cordoned off the area. On 23 July 2002 several applicants, while swimming, approached the visibly marked area. The police intervened, preventing the applicants from approaching the site.
Section 156 of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/91, 73/91, 3/94, 7/96 and 112/99), provides for a so-called ecological action and, insofar as relevant, reads as follows:
1. Everyone may request another person to remove a source of danger, which might cause substantial damage to him or to other persons or to sustain from an activity which causes disturbance or might cause damage...
2. The court shall, at the request of an interested person, order appropriate measures to be undertaken, for prevention of damage or disturbance or removal of the source of danger, at the expense of the possessor of the source of such danger...
3. If damage occurs while performing an activity in the general interest, for which a permit of the competent authority has been obtained, one may seek compensation for such damage as exceeds only the usual limits...”
In its decisions Rev 1681/1998-2 of 11 July 2001, the Supreme Court found that the owner of agricultural land near a factory chimney had the right to compensation for damage to his products ruined due to chimney emissions.
In its decision Rev 1711/1996-2 of 16 December 1999, the Supreme Court ruled that the owners of a house had the right to compensation for damage suffered due to the construction of a nearby road. The damage they sustained included the drop of the value of their property.
Section 49 of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette nos. 53/1991 and 103/1996) provides that a party to the administrative proceedings is a person, at whose request the proceedings have been instituted, or a person against whom the proceedings have been instituted, or any other person who can participate in the proceedings with a view to protecting his or her rights or interests.
Section 218 § 1 of the Administrative Procedure Act provides that in simple matters an administrative body is obliged to issue a decision within a period of one month following the lodging of the party’s request. In more complex cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged. Section 218 § 2 of the same Act enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his or her request had been denied.
Section 26 § 1 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides that, if a second-instance authority fails to issue a decision on an appeal by the party within 60 days, and within an additional period of seven days following the repeated request, the party may lodge an action with the Administrative Court as if his or her request had been dismissed. The same applies to the failure of a first-instance authority to issue a decision, if no appeal against that decision is allowed.
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”


ITEMID: 001-96865
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BALINT v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1969 and lives in Bucharest.
5. On 29 September 1994, the applicant was arrested mainly on charges of robbery and trespassing. The criminal proceedings against him and three other persons were opened the same day.
6. On 28 November 1994, he was released from custody.
7. In an indictment dated 29 September 1995, the Prosecutor's Office attached to the Bucharest County Court committed the applicant and the three other persons for trial.
8. On 12 October 1995 the case was registered with the Bucharest District Court.
9. On 2 April 1996, on an appeal by one of the co-accused against an interlocutory judgment rendered in the case, the file was sent to the Bucharest County Court, from where it was returned on 13 May 1996 and was entered into the court's list on 29 May 1996. However, none of the contents of the file could be found after this date.
10. Consequently, on 7 March 1997, the District Court sent the case back to the County Prosecutor's Office to reconstitute the file.
11. On 6 June 1997, under Article 510 of the Code of Criminal Procedure, the County Prosecutor's Office referred the case back to the District Court, this being the appropriate judicial authority to reconstitute the file at that stage of the proceedings.
12. Therefore, on 30 June 1997, the case was re-entered into the District Court's list.
Several items, such as the indictment and the arrest warrants, were requested from the Prosecutor's Office.
13. On 7 December 2001 the District Court considered the file reconstituted. It gave judgment on 7 February 2003, sentencing the applicant to six years' imprisonment.
14. Most of the adjournments of the hearings were caused by the failings of the judicial authorities in summoning the defendants or civil parties
15. Following an appeal by the applicant, the sentence was upheld in a decision of 12 May 2004 of the Bucharest County Court and lastly in a final decision of 29 July 2004 of the Bucharest Court of Appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104587
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: STEPHAN AND ROHRIG v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Ganna Yudkivska
TEXT: The applicants, Mr Dieter Stephan and Mrs Beate Röhrig, are German nationals who were born in 1951 and 1952 respectively and live in Rösrath.
They were represented before the Court by Mr R. Heindl, a lawyer practising in Overath. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are the owners of a house and a flat in Rösrath-Forsbach, which is situated a few kilometres northeast of the Köln Bonn Airport.
As of 1993, on account of complaints from people living in another community close to the airport, the Commission responsible for consulting the Federal Aviation Office with regard to noise pollution (Fluglärmkommission des Luftverkehrsbundesamts), hereinafter referred to as “the Commission”) identified other possible flight paths.
From 10 November 1994 to 26 October 1995, still in order to obtain further data, a number of the new flight routes were used. This resulted in numerous protests on the part of the then affected communities.
On 26 October 1995 the Federal Aviation Office re-determined the flight routes for air traffic coming and going from the northeast – by means of an amendment to the Fifth Decree of the 147th Order implementing the Aviation Order (Fünfte Verordnung zur Änderung der Hundertsiebenundvierzigsten Durchführungsverordnung zur Luftverkehrs Ordnung).
On 11 November 1996 the applicants lodged a constitutional complaint against this decree.
On 23 April 1997 the Federal Constitutional Court refused to admit the constitutional complaint on the ground that the applicants were first to seek protection before the administrative courts.
On 23 October 1997 the applicants lodged a claim against the decree with the Nordrhein-Westfalen Administrative Court of Appeal.
On 19 August 1999 the Nordrhein-Westfalen Administrative Court of Appeal rejected the claim as inadmissible.
On 28 June 2000 the Federal Administrative Court quashed that decision and remitted the case.
On 4 March 2002 the Nordrhein-Westfalen Administrative Court of Appeal rejected the claim as unfounded. It also refused leave to appeal.
On 16 December 2002 the Federal Administrative Court rejected the applicants’ appeal against the refusal for leave to appeal. It found that they merely criticised the decision in general terms without, however, substantiating any reason justifying leave to appeal as required by section 133 § 3 Federal Code of Administrative Proceedings (see “Relevant domestic law” below).
On 7 February 2003 the applicants lodged a constitutional complaint.
On 30 August 2005 the Federal Constitutional Court refused to admit the constitutional complaint. It found that the applicants had failed to comply with the requirement to exhaust domestic remedies in accordance with the formal requirements laid down in domestic law.
The applicants received the decision on 5 September 2005.
Under section 133 § 3 s. 3 Federal Code of Administrative Proceedings a complaint against a refusal for leave to appeal must lay down either the fundamental importance of the matter, indicate the decision with which the impugned decision does not comply or indicate the alleged procedural shortcomings.


ITEMID: 001-93734
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: FATHI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Jamil Jaafar Fathi, is an Iranian national who was born in 1977 and lives in Alsemberg, Belgium.
The facts of the case may be summarised as follows.
In 2002 the applicant, who had previously taken refuge in Iraq for political reasons, fled to Turkey illegally. He was then recognised as a refugee by the UNHCR as part of a group of 1,204 asylum seekers (“the 1,204 group”) who had similarly fled Iran to Turkey in 2001. Following an agreement between the Turkish authorities and the United Nations High Commissioner for Refugees (UNHCR), the applicant was granted a temporary residence permit in Turkey to reside at a place to be determined by the Ministry of the Interior. The applicant, however, was not recognised as a “refugee” proper, within the meaning of the 1951 Geneva Convention, but was merely given “alien” status under Law no. 5683 on “the Residence and Travel of Aliens in Turkey”. He was also notified by the Ministry of the Interior that the terms of his residence in Turkey did not involve an eventual resettlement in a third country.
On 15 December 2006 the President of the Chamber notified the respondent Government of the introduction of the application under Rule 40 of the Rules of Court.
According to the information provided by the respondent Government in their observations, the applicant has been issued a temporary residence permit.
On 22 September 2008 the applicant informed the Court that he had fled Turkey to Belgium, where he sought asylum.
On 14 November 2008 the respondent Government informed the Court that despite his valid permit to reside in the city of Kahramanmaraş, the applicant had left the city without permission and that they had no information as to his whereabouts.


ITEMID: 001-99339
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: FELCSER v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Ms Krisztina Felcser, is a Hungarian national who was born in 1972 and lives in Budapest. She was represented before the Court by Mr I. Maklári, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 June 2001 an action was brought with a view to evicting the applicant from her service flat. A first-instance decision, requiring the applicant to vacate the flat and the plaintiff to arrange for alternative accommodation, was adopted on 11 June 2003. Part of this judgment was quashed and remitted on 16 March 2004. The Buda Central District Court gave judgment on 2 December 2004. On 14 June 2005 the Budapest Regional Court reversed this decision and established the fee payable by the applicant for the past use of the flat. On 27 March 2006 the Supreme Court rejected the applicant's petition for review.
In the meantime, the applicant filed a motion for execution against the plaintiff in respect of her claim for alternative accommodation. On 10 May and 22 September 2005 the District and the Regional Court respectively rejected this motion, observing that this claim was not enforceable until the applicant vacated the flat.


ITEMID: 001-77870
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BACKSTROM AND ANDERSSON v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Pierre Bäckström and Mr Mattias Andersson, are Swedish nationals who were born in 1971 and 1972 respectively. They are presently serving prison sentences in Sweden. They were represented before the Court by Mr B. Schultz, a lawyer practising in Askersund. The Swedish Government (“the Government”) were represented by their Agent, Ms A. Linder, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
By a bill of indictment (stämningsansökan) of 11 February 2000, the Public Prosecutor’s Office in Örebro charged the applicants with a number of criminal offences, including several counts of theft and handling of stolen goods, violations of the Inflammable and Explosive Products Act (Lagen om brandfarliga och explosiva varor, 1988:868) and the Weapons Act (Vapenlagen, 1996:67) and, most importantly, attempted aggravated robbery and attempted murder. Describing the robbery offence, the prosecutor, inter alia, stated the following:
“[The applicants] have ... on 25 November 1999 ... attempted with threats and physical violence to steal from a money transport vehicle operated by the security company Securitas on behalf of the Swedish Central Bank. ... The robbery was not successful but there was a risk of the crime being completed. ...
The second applicant has forced his way into the driver’s seat of the money transport vehicle and driven it ... to a secluded place on a smaller road about 2 kilometres away from [the place where it was halted]. The first applicant has driven the robbers’ Saab to the same place. There the two perpetrators ... have forced open the outer door to the place where the valuables were stored. Then they have tried ... to gain access to the strong room of the vehicle but have ended the attempt before succeeding to complete the crime, as they believed that another vehicle was approaching and that there was a risk that they would be discovered. ”
By a judgment of 17 April 2000, the District Court (tingsrätten) of Örebro convicted the applicants on all charges except car theft and attempted murder. With respect to the latter charge, however, the second applicant was instead convicted of aggravated assault, having shot at the money transport vehicle and wounded one of the security officers. The first applicant was sentenced to nine and a half years in prison and the second applicant to ten years’ imprisonment. In regard to the charge of attempted aggravated robbery, the court reached the following conclusion:
“To sum up, the District Court finds that it must be considered to be beyond every reasonable doubt that [the applicants] on the night between 24 and 25 November 1999 on E18/E20 ... began an attempt to rob the Securitas money transport vehicle... . The attempt thereafter continued on a smaller road ... by means of the applicants taking various measures to get access to the strong room of the vehicle. They ended the attempt, apparently because they got alarmed by lights from one or more cars, but there was a risk of the crime being completed. The crime is of an aggravated nature, mainly due to the fact that almost 10 million Swedish kronor [SEK] were stored in the vehicle and that firearms were used. ...”
Both the applicants and the public prosecutor appealed to the Göta Court of Appeal (Göta hovrätt).
The Court of Appeal heard the case on 30 and 31 May and on 5, 6, 7, 9, 13, 19 and 20 June 2000. Several witnesses gave evidence. On 19 June, when only the parties’ closing statements remained, the president of the court invited the parties to consider whether the robbery charge could not be regarded as encompassing a charge of completed aggravated robbery. As a consequence, the public prosecutor, in his closing statement, adjusted the charge in question to concern, in the first place, aggravated robbery and, in the second place, attempted aggravated robbery. The description of the offence then read:
“[The applicants] have ... on 25 November 1999 ... with threats and physical violence unlawfully taken, with the intention of appropriating it, a money transport vehicle containing in total SEK 9,905,000 in cash. The transport was operated by ... Securitas, on behalf of the Swedish Central Bank.”
Counsel for the applicants objected that the adjustment was not permissible, as it introduced a new charge of intentional appropriation of the vehicle in question. Counsel for the second applicant stated that the charge of aggravated robbery could be considered as covered by the original indictment. Nevertheless, having regard to the factual circumstances, the applicants’ actions could not be seen as constituting a completed aggravated robbery but only an attempt. Counsel for the first applicant maintained that the robbery offence had not been completed.
The Court of Appeal did not take a separate decision as to whether the public prosecutor’s adjustment should be allowed. In its judgment of 4 July 2000, it stated that the applicants had objected to the adjusted description of the offence because it introduced an additional charge of theft of the vehicle. Finding that no such additional charge had been made but, instead, that the prosecutor, following the adjustment, had claimed that the robbery had been completed through the appropriation of the vehicle, the court decided to allow the adjustment.
On 4 July 2000 the Court of Appeal upheld the District Court’s judgment, except that it found the applicants guilty of aggravated robbery and acquitted the first applicant of one charge of handling stolen goods and the second applicant of the charge of aggravated assault. In the latter respect, the court found that the use of violence was not a separate offence but had to be seen as an element of the robbery, leading to the latter being considered to be an aggravated offence. Finding that the robbery constituted a completed offence and not an attempt, the court stated the following:
“Through the oral evidence combined with the telephone lists and other technical evidence, the Court of Appeal finds that it has been shown beyond reasonable doubt that [the applicants], in the manner claimed by the public prosecutor, have planned and prepared the robbery together and in mutual agreement, and that they have thereafter halted the money transport vehicle ... following which they have driven it to a secluded location two kilometres away from the place where it was halted.
[The applicants] have not succeeded in getting access to the strong room of the vehicle and have therefore been forced to abandon the vehicle without getting hold of any part of its money contents. However, the very fact that [the applicants] have taken possession of the money transport vehicle with its money contents means that the robbery offence is completed, notwithstanding the fact that they thereafter have been unable to appropriate any of its load.”
The Court of Appeal sentenced both applicants to eight years’ imprisonment.
The applicants appealed to the Supreme Court (Högsta domstolen). The appeal included the same complaints as those made in the present application.
On 4 August 2000 the Supreme Court refused leave to appeal.
Domestic provisions of relevance to the present case are found in the Criminal Code (Brottsbalken) and the Code of Judicial Procedure (Rättegångsbalken).
A person who steals from another person by means of violence or by threat, implying or appearing to the threatened person to present an imminent danger, shall be sentenced for robbery to no less than one and no more than six years’ imprisonment (chapter 8, section 5 of the Criminal Code). In order to convict a person of robbery, he or she must have unlawfully taken somebody’s property with the intent to appropriate it. If the violence used endangers life or is very brutal, the crime is to be regarded as aggravated robbery, with a range of punishment from four to ten years’ imprisonment (chapter 8, section 6).
If the commission of a crime has begun but is not brought to completion, the perpetrator is sentenced for an attempt to commit the crime if there was a danger that the crime would be completed or such danger was precluded only because of fortuitous circumstances, and provided that the act of attempt is criminalised by a specific provision (chapter 23, section 1). An attempt requires the same subjective condition as a completed crime, while some factual requisite may be missing on account of, for example, interference by the police. An attempt to commit robbery or aggravated robbery is punishable with terms of imprisonment corresponding to those applicable to a completed crime (chapter 8, section 12 and chapter 23, section 1).
A court’s judgment may only relate to an act for which a prosecution has been properly instituted (chapter 30, section 3 of the Code of Judicial Procedure). A charge of criminal responsibility is conducted by the public prosecutor, who files with the court a bill of indictment against the person or persons to be accused (chapter 45, section 1). The indictment must, inter alia, identify the criminal act and specify the time and place of its commission and the other circumstances required for its identification (chapter 45, section 4). These particulars of the offence provide the framework for the court’s adjudication. The prosecutor should also state the applicable domestic law and the means of evidence invoked.
The particulars of the offence should include all the prerequisites of the act distinguishing it as criminal, that is, the actual facts as well as the subjective elements. The court must not judge on any other acts than those included in the particulars of the offence, or on any other extraneous elements. However, the court is not bound by the prosecutor’s characterisation of the offence or reliance on a particular legal provision (chapter 30, section 3). It is for the court to know the law and apply the relevant provision to the act, as charged.
As a rule, once a prosecution has been instituted, it should not be altered. If the prosecutor wishes to prosecute another act, a new prosecution must be brought. However, the prosecutor may extend the prosecution against the same defendant to encompass another act if the court finds it appropriate, having regard to the investigation and other circumstances. In addition, the prosecutor may, with respect to the same act, without altering the indictment, adjust it by narrowing the action, or invoke a new circumstance or another legal provision in support of the prosecution (chapter 45, section 5).
Whether the prosecution is extended or merely adjusted depends on whether the new element amounts to a new act. The possibility to adjust the prosecution is closely connected to the principles of legal force, or res judicata. The criminal liability for those prerequisites which have already been determined in a judgment may not be taken up again for adjudication (chapter 30, section 9). Consequently, prerequisites which could be embraced by the legal force of a judgment may freely be added to the prosecution case, while prerequisites that could be prosecuted separately, even after the judgment, may not usually be added. However, the prosecutor may present another subjective requisite without being considered to have introduced a new act.
The court examining a case shall make certain that it is investigated appropriately and ensure that irrelevant matters are not presented. Through questions and observations, the court shall also attempt to remedy any unclear and incomplete statements which have been made (chapter 46, section 4 and chapter 51, section 17). Further, as the court is not bound by the prosecutor’s characterisation of the offence or the legal provision on which reliance is placed, procedural guidance might be necessary in order to draw the parties’ attention to any altered perceptions. In particular, a court of appeal must take into account that it should not alter the judgment of a district court without allowing the parties to comment on all the circumstances of importance for such alterations. Moreover, the Supreme Court has stated that the defendant must be able to answer to everything which is held against him or her, and that no unexpected elements may influence the outcome (NJA 2003, p. 486).