ITEMID: 001-98210
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PARASKEVA TODOROVA v. BULGARIA - [English Translation] by European Roma Rights Centre "ERRC"
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+6-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1952 and lives in Trud, in the Plovdiv region. She is a Bulgarian citizen and belongs to the Roma ethnocultural minority.
6. In 2005, on an undisclosed date, the Plovdiv District Prosecutor’s Office opened criminal proceedings against the applicant for fraud; she was reproached in particular for the fraudulent appropriation of the sum of 2,600 Bulgarian levs (approximately 1,300 euros) and the jewels of a certain G.S. On 23 December 2005, she was sentenced to trial in the District Court of Plovdiv.
7. During the proceedings, the District Court heard the prosecution and defence witnesses, gathering documentary evidence and the conclusions of experts. The concerned party claimed that on the day of the events in question, 12 July 2005, she was in Zlatitsa, a town about 100 kilometres from the victim’s village, and that she had consulted a doctor because she had felt ill. She submitted a doctor’s medical certificate and had her son’s companion interviewed. In her defence speech, her lawyer emphasised that the police had not found significant amounts of money or jewellery at the applicant’s home. She challenged the reliability of the identity parade carried out at the preliminary stages of investigation and drew the court’s attention to the contradictions in the evidence of the prosecution’s witnesses as to the age and the physical appearance of the applicant who had defrauded the victim. The lawyer insisted that the first of three prosecution witnesses, a neighbour, had seen a woman of Roma origin approaching and speaking with the victim, but that she was not in a position to recognize the individual. In addition, during the identity parades and in the courtroom, the second witness, another neighbour, had stated that she was not sure whether the applicant was the woman who had defrauded the victim. As for the third of these witnesses, the counsel for the applicant noted that she was the granddaughter of the victim and invited the court not to grant credit to her statements. The lawyer admitted that the applicant had previously been sentenced for theft. However, her last conviction was more than twenty years old.
8. In her defence speech, the district prosecutor invited the court to recognize the applicant guilty of the alleged facts: she had been recognized by the victim and two witnesses against her. The testimony of a third witness corroborated the conclusion that the concerned party had fraudulently taken the money and jewels of the victim. She invited the court not to grant credit to the evidence of the defence’s witness, who was among those close to the applicant. In view of the preponderance of mitigating circumstances in the present case and of the applicant’s state of health, the prosecutor argued in favour of a suspended conviction and a sentence close to the minimum provided for by the Criminal Code.
9. On 29 May 2006, the Plovdiv District Court, consisting of a professional judge and of two lay assessors (съдебни заседатели), pronounced its judgment in which it found the applicant guilty of defrauding G.S. and sentenced her to three years of imprisonment. The reasons for the judgment were issued to the applicant in June 2006 and bore the signature of the professional judge who had presided over the District Court’s trial. At the beginning of these reasons, among other personal information used to identify the applicant, such as her place and date of birth, her home address and her unique identification number, her Roma origin was also listed. In the fact-finding portion of the reasoning, the court found that the accused had entered the victim’s home fraudulently, suggesting to her that her family had been struck by black magic which she could dispel. Taking advantage of G.S.’s credulity, she took the money and jewellery that she then kept in her home. The court based these findings on the statements of the prosecution witnesses which it found to be consistent with the other evidence gathered. It did not retain the statements of the defence witness who had explained that the applicant had visited relatives in Zlatitsa in July 2005 and that she had consulted a doctor there. The court refused to take into account the medical certificate presented by the applicant: even if it was dated 12 July 2005, there was no date after its reference number, as is normally the case. Similarly, the doctor had affixed his stamp on the document, but it lacked the stamp of the hospital. The court found that the sentence should be three years’ imprisonment because of the balance between the aggravating and mitigating circumstances in this case. Among the aggravating circumstances, it mentioned the negative data on the applicant’s personality, previous convictions, the absence of a stable job, the gravity of the alleged acts, the high amount of money taken by the applicant, and the operating mode thereof. The court held as a mitigating circumstance the advanced age of the applicant.
10. The District Court refused to suspend the execution of the three-year sentence for the following reasons:
“The decision to impose an effective sentence of imprisonment in this case arises from the legal obligation for the court (Article 66 of the Penal Code) to determine whether suspension of the sentence’s execution is compatible with the objectives of the penal sanction. The court considers that this is not the case in this case, especially as there is a feeling of impunity, especially among members of minority groups, for whom a conditional sentence is not a conviction (this concerns general prevention). Moreover, this conclusion is equally valid with regard to special prevention – the execution of the sentence imposed will prevent [the applicant] from committing other criminal offenses and [will enable her] to correct her behaviour and to rehabilitate herself.”
11. The applicant appealed against this judgment. She considered that the court based its findings on the statements of the prosecution’s witnesses, who did not prove her implication in the acts alleged against her, and that the lower court refused to obtain evidence corroborating the defence’s case. At her request, the Plovdiv Regional Court questioned the doctor who issued the medical certificate, as well as the nurse who worked with him. Both confirmed that the applicant had come to the doctor’s office on the morning of 12 July 2005 for a matter of high blood pressure. The examination was finished after twenty minutes. In her plea, the applicant’s lawyer reiterated her arguments before the first-instance court concerning the credibility of the prosecution’s witnesses’ statements and the accountant’s alibi (see paragraph 7 above) and argued that the lower court had taken into account the applicant’s ethnicity to justify its decision. She invited the regional court to acquit her client or to give her no more than a suspended sentence.
12. On 16 October 2006, the Plovdiv Regional Court upheld the judgment of the first-instance court. It upheld again the statements of the prosecution’s witnesses, which it considered consistent with the other evidence. It did not uphold the statements of the applicant’s son’s companion, believing that they were not sufficiently specific. It found that the applicant’s allegation that she had, on 12 July 2005, consulted a doctor in Zlatitsa was well established. However, in the absence of any indication as to the exact time of the medical visit, the court found that, given the length of the consultation and the distance between the town of Zlatitsa and the victim’s village, in theory as well as in practice, the interested party would have had the opportunity to go to G.S.’s home at the time indicated by the witnesses, namely around noon on the same day. In its part on the appropriateness of suspending the execution of the sentence, the judgment of the Regional Court reads as follows:
“The appeal court shares the reasons for the inapplicability of a suspended sentence with respect to Paraskeva Todorova. It agrees wholeheartedly with the opinion of the initial court that a possible suspension of execution could not contribute to the accomplishment of the objectives of general and specific prevention because, on one hand, it would have created a feeling of impunity, and on the other, it would not have prevented [the applicant] from resuming her wrongful behaviour, and the sentence would not have had a deterring effect on other members of society.”
This judgment was not subject to appeal in ordinary cassation.
13. On 6 November 2006, the applicant lodged an appeal with the Supreme Court of Cassation provided for by Article 422, paragraph 1, point 5 of the Code of Criminal Procedure. She claimed that her conviction was unfair, discriminatory, and contrary to domestic law and to international conventions ratified by Bulgaria, including Article 6 § 1 of the Convention. The applicant requested the High Court to order the re-examination of the case or to potentially modify the judgment of the Regional Court.
14. In her defence brief submitted to the High Court, the applicant’s counsel challenged in particular the courts’ reasoning concerning sentencing and the refusal to suspend the execution of the sentence. It argued that the file contained no information which could lead to the conclusion that there was negative information on the applicant’s personality. The applicant had received a pardon after her prior convictions, which obligated the courts to no longer consider her criminal record as an aggravating circumstance. Given the unemployment rate in the country and the age of the applicant, the lack of a stable job could not be considered as such a circumstance. As for the gravity of the events, this was part of the very characteristics of the penal infraction for which the conviction had been made, which prevented the courts from taking up the same argument for also arguing it as an aggravating circumstance. Moreover, according to the consistent legal precedents of the domestic courts, the amount of the money appropriated was not significant. The decision of the courts not to suspend the execution of the applicant’s sentence was motivated by her membership with a minority ethnic group. The applicant’s counsel argued that this same motivation demonstrated the bias of the court that had sentenced her client.
15. In a judgment on 5 June 2007, the Supreme Court of Cassation dismissed the applicant’s appeal. The High Court found that the lower courts had correctly established the facts on the bases of the relevant evidence gathered during the criminal investigation and in court. They had correctly characterized the established events as fraud and determined the length of the sentence imposed by taking into account the seriousness of the events and the personality of the applicant in light of previous criminal infractions. The Supreme Court of Cassation admitted that the formal conditions for a sentence suspension had been met, particularly in view of the fact that the applicant had been rehabilitated. However, it found that the conviction of an effective sentence was justified for the following reasons:
“It has been rightly admitted [by the lower courts] that the execution of the sentence was indispensable and justified from society’s point of view. Thus, the accused will be deprived of the opportunity to resume her wrongful behaviour and [the penal sanction] will have a deterring effect on other members of society.”
16. Article 6, paragraph 2 of the Constitution proclaims the principle of equality of citizens before the law and prohibits any restriction of their rights or privileges based on, among others, race or ethnicity. Article 11, paragraph 2 of the Code of Criminal Procedure of 2006 (hereinafter the CCP), obligates the courts, the public prosecutor’s department, and the bodies responsible for the criminal investigation to apply the law uniformly to all citizens.
17. According to Article 66 of the Penal Code, the court may suspend enforcement of the sentence of imprisonment imposed if the term of imprisonment does not exceed three years, if the concerned party has not already been convicted to a term of imprisonment for a criminal offense prosecuted ex officio and if the court finds that the objectives of the penal sanction can be attained without the imposition of an effective penalty. The existence of a previous conviction does not preclude, in principle, the application of Article 66 of the Penal Code, if the party in question has benefited from rehabilitation (see, for example, Решение № 13 от 25.01.2001г. на ВКС по н.д. № 700/2000г., ІІ н.о.).
18. According to Article 36 of the Penal Code, the imposition of a criminal penalty has the following objectives: to correct the behaviour of the convicted person and encourage him or her to respect the laws and virtue; to prevent the possibility for him or her to commit other criminal offenses; to prevent criminal offenses by other members of society and encourage in them respect for the law and good virtues.
19. According to Article 346 of the CCP, the judgments of regional courts rendered in the appeal court, when they confirm the judgments of initial courts, are not susceptible to ordinary appeal.
20. Nevertheless, these judgments can be criticised for the same deficiencies which justify appeal in cassation (non-observance of substantive or procedural legislation or imposition of an unfair penalty) before the Supreme Court of Cassation by the appeal provided by Article 422, paragraph 1, point 5 of the CCP. This plea, which the legislature regulated in the chapter of the CCP dedicated to the reopening of criminal proceedings, can be introduced by the sentenced person, through the court of first instance (Article 422, paragraph 2) within a period of six months from the date of the judgment of the appeal court (Article 421, paragraph 3 of the CCP).
21. If the Supreme Court of Cassation finds any of the aforementioned breaches of substantive or procedural rules, it is bound to overturn the judgment of the lower court and may remit the case for reconsideration, terminate the criminal proceedings, acquit the person concerned or amend the judgment under appeal (Article 425, paragraph 1 of the CCP).
22. In view of Articles 420, paragraph 1, Article 421, paragraph 2 and Article 422, paragraph 1, point 4 of the CCP, the public prosecutor is obligated to request the reopening of the criminal proceedings of a convicted person within one month of the judgement of the European Court of Human Rights finding a violation of the Convention, if the violation found is of particular importance for the outcome of the criminal proceedings. The body competent to decide in this case is the Supreme Court of Cassation.
VIOLATED_ARTICLES: 14
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108766
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MIAŻDŻYK v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1950 and lives in Poznań.
7. On 19 November 2004 the applicant was arrested and subsequently placed in detention.
8. On 14 November 2005 the Poznań Appellate Prosecutor released the applicant from detention and imposed other preventive measures, namely bail, police supervision and prohibition on leaving the country, combined with the withholding of his passport. Those measures were imposed for an indefinite period of time.
9. On 23 December 2005 the applicant and the other fifteen accused were indicted. The applicant was charged with running an organised criminal group and several counts of fraud, stealing cars and handling stolen goods. In the bill of indictment of almost 200 pages the prosecutor requested the court to hear over 100 witnesses.
10. On 17 April 2007 the applicant’s lawyer requested the trial court to postpone the hearing scheduled on 18 April 2007, because of the applicant’s state of health. The lawyer submitted that the French Consulate had informed him that the applicant was in a psychiatric hospital in connection with depression and a suicide attempt. It is unclear whether the hearing was postponed.
11. On 28 March 2008 the court decided that the trial should be restarted.
12. The applicant’s lawyer made nine requests for the measure preventing him from leaving Poland to be lifted (he produced copies of the following six requests: those of 18 May, 24 October, and 30 November 2006, 14 February and 12 December 2007, and 6 November 2008). He relied on the fact that the applicant had been deprived of contact with his three children, who lived in France, and on his poor state of health. He also considered that the prohibition on leaving Poland had already lasted too long and that the applicant’s situation was getting worse with time: he had no work and no income in Poland, and thus no means of staying there for several years.
13. The Poznań District Court refused each of the requests to lift the preventive measure in question, relying on similar grounds, which included a reasonable suspicion that the applicant had committed the offences with which he had been charged and the likelihood that a heavy penalty would be imposed on him. The court also considered that allowing the applicant to leave the country would impair the proper conduct of the proceedings. As regards contact with his family, the court considered that there was nothing to prevent the applicant’s children from visiting him in Poland. The court also found that the concerns about the applicant’s health had not been confirmed by any medical evidence.
14. All the appeals lodged by the applicant’s lawyer were unsuccessful; the decisions refusing to lift the preventive measure were all upheld.
15. On 27 March 2009 the Poznań District Court upheld the decision of 5 December 2008, in which the same court had refused the applicant’s lawyer’s request to lift the prohibition on leaving the country.
16. On 27 January 2011 the Poznan District Court lifted the preventive measure applied in relation to the applicant. The court took the view that:
“ (...) taking into account that the accused had already been heard, the period of time during which the measure was applied and the fact that the accused is a foreigner, a renewed application of this measure must be considered unnecessary to secure the proper conduct of the proceedings and too onerous for the accused.”
17. On 27 January 2011 the court decided again that the trial should be restarted.
18. After 27 January 2011 the applicant left for France. On 22 February and 10 March 2011 the trial court held two hearings, at which the applicant did not appear. His counsel was present.
19. On 14 June 2011 the trial court held a further hearing. The applicant and his counsel appeared at the trial. However, the applicant and several other co-accused decided not to participate in the hearing and agreed that the court could continue the proceedings without their presence. The court held the hearing and heard four witnesses.
20. The proceedings are pending before the first-instance court.
21. The 1997 Code of Criminal Procedure defines prohibition on leaving the country (zakaz opuszczania kraju) as one of the “preventive measures” (środki zapobiegawcze). Those measures are, in addition to prohibition on leaving the country, pre-trial detention (tymczasowe aresztowanie), bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), and a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności).
22. Paragraph 1 of Article 277 of the Code provides, in so far as relevant, as follows:
“A prohibition on leaving the country may be imposed if there is a reasonable risk that an accused will abscond or go into hiding; this prohibition may be combined with withholding the accused’s passport or other travel document or with a prohibition on issuing such a document ...”
23. Paragraph 1 of Article 376 of the Code allows the court to proceed in the accused’s absence and provides, in so far as relevant, as follows:
“If an accused who has already been heard leaves a courtroom without the court’s consent, the court may continue proceedings in the accused’s absence and a judgment given in these circumstances will not be considered a default judgment ...”
24. Paragraph 2 of Article 376 of the Code provides, in so far as relevant, as follows:
“The above provision is applicable when an accused who has already been heard and informed of the date of a postponed hearing fails to appear without giving any justification for his absence”.
VIOLATED_ARTICLES: P4
VIOLATED_PARAGRAPHS: P4-2
VIOLATED_BULLETPOINTS: P4-2-1


ITEMID: 001-111547
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF E.S. v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1987.
6. In September 2002, when the applicant was 14 years old, she discovered that her stepfather had hidden a video camera in the laundry basket in the bathroom. The camera was directed at the spot where the applicant had undressed before taking a shower.
7. The incident was reported in 2004 and on 21 October 2005 the public prosecution indicted the stepfather for sexual molestation (sexuellt ofredande) under Chapter 6, section 7 of the Penal Code due to the said event.
8. On 20 January 2006, represented by an officially appointed counsel (målsägandebiträde), the applicant submitted a claim for damages of 25,000 Swedish kronor (SEK) (approximately EUR 2 750) to be joined to the criminal proceedings. The basis of the claim was that the stepfather had, through the act for which he was being prosecuted, severely violated the applicant’s personal integrity and should therefore pay compensation for the violation and for her pain and suffering.
9. Before the District Court (Falu Tingsrätt), the applicant, her stepfather, her mother and a cousin were heard. The applicant explained that on the relevant day, just before she was about to take a shower, her stepfather had something to do in the bathroom. When she discovered the camera, it was in recording mode, making a buzzing sound and flashing. She did not touch any of the buttons. Crying, she took the video camera, wrapped in a towel, to her mother. The stepfather took the camera from the mother. Subsequently, the applicant saw her mother and stepfather burn a film, but she was not sure whether it was a recording of her.
10. The applicant’s mother confirmed the applicant’s statement and added that she did not know whether anything had been recorded since the film had been burned without her seeing it. She had not reported the incident to the police until 2004, when she had heard that the applicant’s cousin had also experienced incidents with the accused.
11. The stepfather explained that he had lived with the applicant’s mother from 1997 to the autumn of 2003. They had separated due to, inter alia, the incident in question. He had wanted to try to film with a hidden camera, but it was an impulsive act. He was not sure whether the camera had been in recording mode or whether any film had been recorded. The applicant’s mother had burned the film without any of them seeing it.
12. By judgment of 14 February 2006 the District Court convicted the stepfather. It found it established that he had had a sexual intent in hiding the camera in the laundry basket and directing it at the part of the bathroom where it was usual to undress. It added that the buzzing sound from the camera perceived by the applicant strongly suggests that the camera was switched on and actually did record. Otherwise, there would be no point in hiding the camera among the clothes in the laundry basket. The hole in the laundry basket indicated that the approach was quite refined. Regardless of the fact that, afterwards, no one verified the contents of the film, it can under the present circumstances be considered established that the stepfather actually filmed the applicant when she appeared nude.
13. In the judgment, in which the stepfather was also convicted of three additional acts of sexual molestation against the applicant and her cousin, a suspended sentence combined with compulsory community service for seventy-five hours was imposed on him. Moreover, he was ordered to pay the applicant damages in the amount of SEK 20,000.
14. On appeal, by judgment of 16 October 2007, the Court of Appeal (Svea hovrätt) acquitted the stepfather of the incident in question.
15. The court found it established that the stepfather had put a camera in the bathroom and that he had started the recording system before the applicant was about to take a shower. Whether a recording had actually been made, however, was unclear. It was apparent, the court continued, that the stepfather’s motive was to film covertly the applicant for a sexual purpose. Given this motive, it was also regarded as certain that the stepfather did not intend the applicant to find out about the filming. Nor was he, according to the court, indifferent to the risk that she would find out about it. The court thereafter assessed whether the act legally constituted sexual molestation within the meaning of Chapter 6, section 7 of the Penal Code. It referred to a Supreme Court judgment (NJA 1996 p. 418) in which the Supreme Court had held, among other things, that the filming of sexual abuse was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent. Following that line of reasoning, and although finding that the act in question constituted a violation of personal integrity, notably in the light of the applicant’s age and relationship to her stepfather, the Court of Appeal found that the stepfather could not be held criminally responsible for the isolated act of filming the applicant without her knowledge. Even if she had indeed obtained knowledge of the filming, the court reiterated, this knowledge was not covered by the stepfather’s intent.
16. The Court of Appeal went on by pointing out that the act might, at least theoretically, have constituted an attempted child pornography crime (försök till barnpornografibrott) considering the applicant’s age. However, since no charge of that kind had been brought against the stepfather, the Court of Appeal could not consider whether he could be held responsible for such a crime. In conclusion, despite finding the stepfather’s behaviour extremely reprehensible, he was acquitted and the applicant’s claim for damages dismissed.
17. On 12 December 2007 the Supreme Court (Högsta domstolen) refused leave to appeal.
18. The relevant provisions of the Penal Code (Brottsbalken, 1962:700) include the following:
“A person who by violence or threat which involves, or appears to the threatened person to involve an imminent danger, forces another person to have sexual intercourse or to engage in a comparable sexual act, that having regard to the nature of the violation and the circumstances in general, is comparable to forced sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years. Causing helplessness or a similar state of incapacitation shall be regarded as equivalent to violence.
If having regard to the nature of the violence or the threat and the circumstances in general, the crime is considered less serious, a sentence of imprisonment for at most four years shall be imposed. If the crime is gross, a sentence of imprisonment for at least four and at most ten years shall be imposed for gross rape. In assessing whether the crime is gross, special consideration shall be given to whether the violence involved a danger to life or whether the perpetrator caused serious injury or serious illness or, having regard to the method used or the victim’s youth or other circumstances, exhibited particular ruthlessness or brutality.”
“A person who, under circumstances other than those defined in Section 1, makes someone engage in a sexual act by unlawful coercion shall be sentenced for sexual coercion to imprisonment for at most two years. If the person who committed the act exhibited particular ruthlessness or if the crime is otherwise considered gross, a sentence of at least six months and at most four years shall be imposed for gross sexual coercion.”
“A person who induces another person to engage in a sexual act by gross abuse of his or her dependent state shall be sentenced for sexual exploitation to imprisonment for at most two years. The same shall apply to a person who engages in a sexual act with another person by improperly taking advantage of the fact that the latter is helpless or in some other state of incapacitation or is suffering from a mental disturbance. If the accused has exhibited particular ruthlessness or if the crime is otherwise to be considered gross, imprisonment for at least six months and at most six years shall be imposed for gross sexual exploitation.”
“A person who engages in a sexual act with someone under eighteen years of age and who is that person’s offspring or for whose upbringing he or she is responsible, or for whose care or supervision he or she is responsible by decision of a public authority, shall be sentenced for sexual exploitation of a minor to imprisonment for at most four years. This also applies to a person who, in circumstances other than those mentioned previously in this Chapter, engages in a sexual act with a child of under fifteen years. If the person who committed the act exhibited particular lack of regard for the minor or if the crime by reason of the minor’s young age or otherwise is regarded as gross, imprisonment for at least two and at most eight years shall be imposed for gross sexual exploitation of a minor.”
Repealed
“If a person has sexual intercourse otherwise than as previously provided in this Chapter with his or her own child or its offspring, imprisonment for at most two years shall be imposed for sexual intercourse with offspring. A person who has sexual intercourse with a blood sibling shall be sentenced to imprisonment for at most one year for sexual intercourse with a sibling. The provisions of this Section do not apply to a person who has been made to commit the act by unlawful coercion or other improper means.”
Before 1 April 2005 the section provided, in as far as relevant, the following:
“If a person sexually touches a child less than fifteen years of age otherwise than as previously provided in this Chapter, or induces the child to undertake or participate in an act with sexual implication, a fine or imprisonment for at most two years shall be imposed for sexual molestation.
A sentence for sexual molestation shall also be imposed on a person who by coercion, seduction or other improper influence induces a person who has attained the age of fifteen but not eighteen to undertake or participate in an act with sexual implication if the act is an element in the production of pornographic pictures or constitutes pornographic posing in circumstances other than those relating to the production of a picture.
This shall also apply if a person exposes himself or herself in such a manner that the nature thereof gives offence or otherwise manifestly behaves indecently by word or deed towards the latter in a way that flagrantly violates a sense of propriety.” (Law 1994:1499)”
Currently, the relevant legislation is placed in Chapter 6, section 10 and reads as follows:
“A person who, otherwise than as previously provided in this Chapter, sexually touches a child under fifteen years of age or induces the child to undertake or participate in an act with sexual implications, shall be sentenced for sexual molestation to a fine or imprisonment for at most two years.
This also applies to a person who exposes himself or herself to another person in a manner that is likely to cause discomfort or who otherwise by word or deed molests a person in a way that is likely to violate that person’s sexual integrity.” (Law 2005:90)”
“A person who promotes or improperly financially exploits casual sexual relations for payment of another person shall be sentenced for procuring to imprisonment for at most four years. A person who, holding the right to the use of premises, grants the right to use them to another in the knowledge that the premises are wholly or to a substantial extent used for casual sexual relations for payment and omits to do what can reasonably be expected to terminate the granted right, he or she shall, if the activity continues or is resumed at the premises, be considered to have promoted the activity and shall be sentenced in accordance with the first paragraph.”
“If the crime provided for in Section 8 is gross, imprisonment for at least two and at most six years shall be imposed for gross procuring. In assessing whether the crime is gross, special consideration shall be given to whether the accused promoted casual sexual relations for payment on a large scale or ruthlessly exploited another.”
“A person who, by promising or giving recompense, obtains or tries to obtain casual sexual relations with someone under eighteen years of age, shall be sentenced for seduction of youth to a fine or imprisonment for at most six months.”
“Criminal responsibility as provided for in this Chapter for an act committed against someone under a given age shall be required of a perpetrator who did not realise, but had reasonable grounds for assuming, that the other person had not attained such age.”
“An attempt to commit rape, gross rape, sexual coercion, gross sexual coercion, sexual exploitation, gross sexual exploitation, sexual exploitation of a minor, gross sexual exploitation of a minor, procuring and gross procuring shall be dealt with in accordance with the provisions of Chapter 23. This also applies to preparation for and conspiracy to commit rape, gross rape, gross sexual exploitation of a minor and gross procuring, together with failure to reveal such crime.”
“If, in a case of sexual exploitation of a minor under Section 4, first paragraph, second sentence or an attempt to commit such a crime, or in a case of sexual molestation under Section 7, first paragraph, there is little difference in age and development between the person who committed the act and the child, public prosecution shall not occur unless it is called for in the public interest.”
“A person who
1) portrays a child in a pornographic picture;
2) disseminates, transfers, grants use, exhibits or in any other way makes such a picture of a child available to some other person;
3) acquires or offers such a picture of a child;
4) brings about contact between a buyer and a seller of such pictures of children or takes any other similar step to facilitate dealing in such pictures; or
5) possesses such a picture of a child
shall be sentenced for committing a child pornography crime to imprisonment for at most two years, or, if the crime is petty, to a fine or imprisonment for at most six months.
By child is meant a person whose pubertal development is not complete or who is less than 18 years of age. If a person’s pubertal development is completed, liability will be imposed for deeds committed under points 2-5 above only if is apparent from the picture or its attendant circumstances that the depicted person is less than 18 years of age.
....” (Law 2010:1357)”
Before 1 January 2011, the second paragraph of the section read:
“By child is meant a person whose pubertal development is not complete or, if it is apparent from the picture and its attendant circumstances, who is less than 18 years of age.
...”
“A person preparing or conspiring to mutiny [...] shall be sentenced in accordance with the provisions of Chapter 23. The same shall also apply [...] to the crime of attempting to commit a child pornography crime described in section 10a, first paragraph .... (Law 2010:399)
...”
“A person who has begun to commit a crime without bringing it to completion shall, in cases where specific provisions exist for the purpose, be sentenced for attempting to commit a crime if there was a danger that the act would lead to the completion of the crime or such danger had been precluded only because of fortuitous circumstances.
Punishment for attempt shall be at most what is applicable to a completed crime and not less than imprisonment if the least punishment for the completed crime is imprisonment for two years or more.”
19. The Code of Judicial Procedure (Rättegångsbalken 1942:740) provides in so far as relevant:
“A judgment may not be given for something else or more than that properly demanded by a party. In cases amenable to out-of-court settlement, the judgment may not be based on circumstances other than those pleaded by a party as the foundation of his action.”
“The judgment may relate only to an act for which a prosecution was properly instituted or to a matter referred by statute to the court’s criminal jurisdiction. The court is not bound by a claim regarding the legal characterisation of the offence or applicable provisions of law.”
20. The Tort Liability Act (Skadeståndslag 1972:207) provides in so far as relevant:
“Anyone who deliberately or negligently causes a personal injury or damage to property shall compensate the injury or damage inferred. (SFS 2001:732)”
“Anyone who seriously violates another person through a crime involving an attack against the person, freedom, serenity or honour of that person shall compensate the damage the violation inferred. (SFS 2001:732)”
21. In a judgment of 16 October 1992 (NJA 1992 p. 594) concerning a person who had secretly filmed sexual intercourse between himself and his girlfriend and who had subsequently shown the film to several persons, the Supreme Court noted that it was not prohibited under Swedish law to film another person without his or her consent or to show the film to others. This was so, the court continued, even in situations where the deed in question deeply violated the personal integrity of the person concerned. Apart from certain exceptional situations, the only general sanctions available were the criminal provisions on defamation in conjunction with Chapter 1, section 3 of the Torts Liability Act (now Chapter 2, section 3 of the named act). The court found that the accused person had committed defamation by showing the film to others.
22. A further judgment dated 27 June 1996 (NJA 1996 p. 418) concerned a man who had filmed and photographed a sleeping woman while assaulting her and committing sexual offences against her. The District Court found his acts to constitute, inter alia, sexual molestation. The Court of Appeal and the Supreme Court held that the filming and photographing did not constitute criminal offences under Swedish law and that these acts were thus to be disregarded when assessing the man’s conduct under criminal law.
23. Yet another judgment dated 23 October 2008 (NJA 2008 p. 946) concerned, inter alia, a person who had covertly filmed his ex-girlfriend with another man in an intimate situation and who had subsequently emailed the film, together with certain descriptive messages, to others. The Court of Appeal found the filming to constitute molestation and the sending of some of the e-mails to amount to defamation. It also awarded the exgirlfriend damages for, inter alia, violation of personal integrity. The Supreme Court granted leave to appeal concerning only the former alleged offence, namely the sexual molestation, and the issue of damages. The court reiterated that Swedish law contained no general prohibition against covert filming. The court also noted that in cases where the covert filming did not constitute a crime, no damages could be awarded. Although the need for a strengthened legal scheme in this regard had been acknowledged in Swedish legislative work already in the 1960s, the Court further noted, it had so far not led to any concrete results. According to the court, it was highly questionable whether the fact that acts of filming of an individual in situations where such filming deeply violated the personal integrity of the person concerned were left wholly unsanctioned under Swedish law, was compatible with the requirements of Article 8 of the Convention. Given this finding, the court continued, it was legitimate to examine whether sanctions could be provided by interpreting otherwise non-applicable domestic provisions in a treaty-conform manner. In this regard, the court referred to domestic case-law concerning compensation for violations of the Convention (see paragraphs 27-29 and 30). However, the court noted, another requirement under the Convention was that no one should be punished for an act which, at the time when it was committed, was not clearly criminalised by law. After having found that the filming in the present case did not fall under any applicable criminal provision, it was left unsanctioned and no damages were awarded.
24. In January 2011 the Swedish Ministry of Justice issued a report on illicit photographing (Ds 2011:1) in which it proposed to criminalise such photographing - the term being used as meaning both photographing and filming - in certain situations. The aim of the proposal was in particular to protect individuals from interference in their private sphere by other individuals. It was proposed that the new criminal provision should cover anyone who, in a manner violating another individual’s personal integrity, photographed or by other technical means recorded a picture of the individual in a home, bathroom, changing closet or a similar space. Moreover, the provision was proposed also to cover photographing or recording in any other space than the ones mentioned, if the act was committed in a pushy, covert or intrusive manner or if it constituted a serious violation of another individual’s personal integrity in his or her capacity as a private person. It was proposed that sentences under the provision could range from penalties to imprisonment of up to one year. According to the report, no need to criminalise attempted photographing had emerged and it was therefore proposed that such acts, an example being the placing of technical equipment with the aim to film someone, were not to be covered by the new provision.
25. In outlining the reasons for the proposal it was stated, inter alia, that acts of covert or unauthorized filming of individuals by other individuals had constituted a general problem for a long time and that the problem was growing. The technical development had resulted in that individuals could be photographed at in principal any place, at any time and in any circumstances. It was also acknowledged that such acts may violate an individual’s personal integrity regardless of whether he or she was made aware of the filming while it was ongoing or found out about it at a later stage. The report also referred to domestic case-law and noted that although the showing of a photograph or film to other people had been found to constitute a criminal act in some cases, the mere filming had been left unsanctioned. The report furthermore referred to Article 8 of the Convention and to the State’s positive obligations under the article. In all, the report concluded, it was held unsatisfactory that acts such as the ones at issue were not prohibited by law.
26. In a judgment of 25 February 2005 (NJA 2005 p. 80), which concerned the photographing and filming of certain young individuals aged over 15 but under 18, the Supreme Court held that the pubertal development of the individuals was clearly complete and that it was impossible, from the pictures alone, to determine whether they had attained the age of 18 or not. Their age could moreover not be read from any text accompanying the pictures or any other attending circumstances. In such a situation, and regardless of whether the person responsible for the pictures was aware of the individuals’ age or not, the act could not be held to constitute a child pornography crime.
27. In a judgment of 9 June 2005 (NJA 2005 p. 462) concerning a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention on account of the excessive length of criminal proceedings, the Supreme Court held that the plaintiff’s right under Article 6 of the Convention had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damages.
28. In a decision of 4 May 2007 (NJA 2007 p. 295), concerning length of detention, the Supreme Court held that the principle concerning a right to damages established in the above-mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of the Article should be assessed in the first place under domestic law which, to the extent necessary, should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions.
29. In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 of the Convention had been violated as a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned two cases to violations of Articles 5 and 6 of the Convention and concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8.
30. A further Supreme Court decision of 29 October 2007 (NJA 2007 p. 747) concerned a claim for damages brought by an individual against a private insurance company. The claim concerned an alleged violation of Article 8 of the Convention related to secret surveillance undertaken in respect of the plaintiff. The Supreme Court noted that the Convention did not impose duties on individuals. Even if the State may have positive obligations under the Convention, the court continued, in view of the ruleof-law-value held by the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention.
31. Yet another Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiff’s father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty, which should, in principle, include a possibility of obtaining compensation for damage.
32. In a judgment in 2009 (NJA 2009 n 70), which concerned length of tax proceedings, the Supreme Court referred to the abovementioned caselaw and held it to be a general principle that in so far as the State had the obligation to compensate someone due to a Convention violation and such compensation could not be awarded on the basis of national law, the obligation was to be fulfilled by awarding compensation without a particular reference to domestic law. The ruling of the Supreme Court concerned only the amount of compensation awarded.
33. In a judgment of 16 June 2010 (NJA 2010 p. 363), lastly, which concerned, inter alia, length of proceedings before the District Court and the Court of Appeal in a civil case against the State, the Supreme Court found violations of Articles 6 and 13 of the Convention and awarded the plaintiff compensation.
34. Furthermore, the Chancellor of Justice has delivered decisions concerning compensation to individuals for violations of the Convention. In a decision of 23 June 2009, the Chancellor of Justice awarded an individual damages for violations found under, inter alia, Articles 8 and 13. The case concerned, inter alia, storage of certain personal information concerning the applicants in the data bases of the Swedish Security Service.
35. In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damage arising from disregard of the Convention, and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.
36. In the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, drafted in October 2007, the Council of Europe observed, inter alia, that the sexual exploitation of children, in particular child pornography and prostitution, were destructive to children’s health and psycho-social development and that sexual exploitation and abuse of children had grown to worrying proportions at both national and international level, in particular as regards the increased use by both children and perpetrators of information and communication technologies. The Convention therefore obliged its Parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conducts, including offences concerning child pornography. The Convention was ratified by Sweden on 25 October 2007 and entered into force on 1 July 2010.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-23016
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: J.G. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, J.G., is a Polish national, who was born in 1958 and lives in Polwica, Poland. He was not legally represented in the proceedings before the Court. The respondent Government were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 May 1994 the Wrocław Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with drug smuggling and detained him on remand in view of the reasonable suspicion that he had committed the offence in question, the serious nature of that offence and the risk that he might obstruct the proper conduct of the proceedings. On the same day, the applicant’s wife was charged with a similar offence and detained on remand.
The applicant, in his written observations, submitted that, upon their detention, the authorities had ordered them to surrender their passports. The Government have not contested that fact.
Subsequently, on several occasions, the applicant asked the prosecutor to release him on bail, but all his applications were to no avail.
On 3 August 1994, on an application by the Regional Prosecutor, the Wrocław Regional Court (Sąd Wojewódzki) prolonged the applicant’s detention on remand until 31 December 1994. The court held that there was a reasonable suspicion that the applicant had committed the serious offence with which he had been charged. It considered that the need to confront suspects with each other, to obtain evidence from abroad and expert evidence justified the prolongation of his detention in order to ensure the proper course of the investigation. The Wrocław Court of Appeal (Sąd Apelacyjny) upheld this decision and the reasons therefor on 25 August 1994.
On 19 September 1994 the applicant’s counsel asked the prosecutor to order that the applicant be examined by a cardiologist and a psychiatrist. According to a medical report, which was submitted to the prosecutor on 4 October 1994, the applicant’s health was not an obstacle to holding him in detention.
On 15 December 1994 the applicant’s wife was released from detention on health grounds.
On 22 December 1994, on a subsequent application by the Regional Prosecutor, the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1995, repeating the reasons already invoked in the decision of 3 August 1994. The Wrocław Court of Appeal upheld that decision on 19 January 1995.
On 3 January 1995 the applicant’s counsel informed the prosecutor that his client’s health was very bad and that, in particular, he had lost consciousness during one of their meetings in prison. It was, he added, not a single instance of fainting as the applicant had already several times had similar attacks. He asked the prosecutor to release the applicant immediately.
The prosecution first asked the prison authorities to provide them with an updated report on the applicant’s health. According to that report, which was received on 13 January 1995, the applicant had only once informed prison doctors of having lost consciousness. Doctors did not consider that the applicant’s condition militated against keeping him in custody.
Meanwhile, on 22 December 1994, the applicant had filed an application for release on bail with the Wrocław Regional Prosecutor and offered a security in the form of his movable and immovable property. The application was dismissed by the Wrocław Regional Prosecutor on 22 December 1994 and, on appeal, by the Wrocław Prosecutor of Appeal (Prokurator Apelacyjny) on 5 January 1995. In those decisions the prosecutors referred to the need to ensure the proper conduct of the proceedings and considered that the applicant’s detention should continue until at least the end of the investigation, especially as the applicant had not confessed.
On 6 February 1995 the Regional Prosecutor laid further charges against the applicant.
On 28 February 1995 the prosecution lodged a bill of indictment with the Wrocław Regional Court. The applicant was indicted on a charge of having smuggled not less than 30 kg of heroine. The bill of indictment comprised 21 charges against 15 co-accused.
In March 1995 the applicant made 3 applications for release on health grounds. He complained about frequent headaches and states of unconsciousness, insomnia and heart-burning sensation. He also referred to his difficult family situation and, in particular, to the bad health of his wife, who was suffering from depressive neurosis and chronic gastritis. He produced the relevant medical certificates.
On 21 March 1995 the Regional Court refused to release him. It considered that there was a sufficient likelihood that the applicant had committed the offence with which he had been charged. It also held that his detention should continue in view of the need to ensure the proper conduct of the trial. The court did not find that the situation of the applicant’s family was so serious as to justify his release on the grounds specified in Article 218 of the Code of Criminal Procedure.
On 22 May 1995 the applicant filed a subsequent request for release. Later, in August 1995, he made several fresh, similar applications. He stressed that he had already spent nearly one year in detention. He referred to his own and his wife’s bad health, maintaining that she urgently needed help and support from him. He produced several medical and other certificates relating to her health and family situation.
In June 1995, the Wrocław Regional Court ordered that further evidence concerning the applicant’s and his wife’s health and their family situation be obtained.
On 7 and 17 August 1995, the applicant produced further documents.
On 22 August 1995 the court rejected all the applications. It held that there was a sufficient appearance of likelihood that he had committed the offence in question. It further considered that that offence represented a serious danger to society and that, accordingly, there was a need to ensure the proper course of the trial. Referring to the applicant’s health, the court observed that the applicant was suffering only from neurosis, which was not in itself an obstacle to his continued detention. As regards his family situation, the court pointed out that other members of their family could provide his wife with the necessary care and assistance.
The Wrocław Court of Appeal upheld that decision on 26 September 1995. It found that the charge against the applicant was sufficiently confirmed by evidence heard before the trial court. It also considered that the character of the offence, the complicated process of obtaining evidence and the stage of the proceedings indicated that holding the applicant in custody was necessary to secure the proper conduct of the trial.
In the meantime, on 4 August 1995, the Regional Court had rejected the applicant’s other applications for release, which he had filed on 3 July and 1 August 1995. This decision was then upheld on appeal on 31 August 1995. The courts relied on two principal reasons, namely, on the reasonable suspicion that the applicant had committed the serious offence and the need to ensure the proper conduct of the proceedings. As regards the applicant’s health and his family situation, the courts found that there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure.
On 13 October 1995 the trial began. The court heard evidence from defendants. Further hearings were held on 1 December 1995 and 19 and 25 January 1996. The applicant repeatedly – but with no success – asked for release.
On 25 January 1996 the applicant asked the Regional Court to release him on bail. The court refused on the same day. On 23 February 1996 the Wrocław Court of Appeal upheld that decision. It held that the charge against the applicant had a sufficient basis in evidence that had so far been heard before the trial court. It considered that the applicant’s offence represented a serious danger to society and that the nature of the offence, as well as the modus operandi, justified the fears that the applicant would obstruct the process of obtaining evidence. As regards the applicant’s family situation, the court observed that his wife was under the proper care in a psychiatric hospital and that her condition was not a reason to apply Article 218 of the Code of Criminal Procedure.
On 31 January 1996 the applicant again asked for release on bail. He submitted that the health of his wife had markedly deteriorated and that she was in hospital. On 15 February 1996 the Wrocław Regional Court rejected the application in view of the reasonable suspicion that the applicant had committed the serious offence with which he had been charged and the need to secure the proper conduct of the proceedings. The court found that the bad health of the applicant’s wife was not a circumstance that could militate against his continued detention because she was being given care and treatment in hospital.
On 5 and 7 March and 10, 13 and 31 May, 26 June and 9 July 1996 the Regional Court held further hearings.
In the interim, on 20 March 1996, the applicant had filed another application for release. He repeated his previous arguments and produced further documents describing the bad health and difficult personal situation of his wife. He stressed that the total length of his detention was very considerable.
The Wrocław Regional Court rejected the application on 9 July 1996. On 29 July 1996, on the applicant’s appeal, the Wrocław Court of Appeal quashed the detention order and released him under the condition that he report weekly to the police station at his place of residence and surrender his passport to the court. In addition, the court imposed further restrictions on the applicant’s movement and ordered, inter alia, that he be prohibited from leaving the territory of Poland. The Court of Appeal did not share the applicant’s opinion that he should be released in view of his family situation and held that detention was by itself a measure that inevitably entailed serious consequences for an individual’s family life. It considered, however, that the length of the applicant’s detention, which had at the time exceeded two years, militated in favour of his release. The court stressed that that element, given the fact that the trial had reached an advanced stage, that evidence had been secured and that there was no danger that the applicant might obstruct the process of obtaining evidence, justified the opinion that the application of a less severe preventive measure would adequately secure the further course of the trial.
The trial came to an end on 23 May 1997. Beforehand, the Regional Prosecutor dropped the charge of drug smuggling against the applicant and asked the court to find him guilty of drug trafficking. The Regional Court convicted the applicant of drug trafficking and sentenced him to 3 years’ imprisonment and a fine of 15,000 Polish zlotys. The applicant did not appeal against his conviction.
In their observations, the Government submitted that, on 15 May 1995 the Wrocław Regional Police had obtained information from the Warsaw Office of Interpol, according to which the Italian authorities had issued an order to search for the applicant by a “wanted” notice in connection with the suspicion of his having been involved in money laundering and with their intended request for his extradition to Italy.
The applicant submitted that throughout his trial he had been unaware of that fact and that he had learnt of it – and of the fact that he had already been sentenced in absentia by the Italian courts – on 15 December 2001, when he had been arrested by the German authorities. He produced the relevant warrant of arrest.
In that connection, the applicant added that the German courts had refused to extradite him to Italy because the Italian courts had not ensured him a fair trial in absentia. To begin with, he had not been informed of the charges. Nor had he been heard, summoned to stand trial or notified of the judgment. He produced the relevant decision given by the Dresden High Country Court on 19 February 2002. The court considered that his extradition to Italy was inadmissible because “in the trial preceding his conviction a minimum of his defence rights had not been respected”.
At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) (“the 1969 Code”) – entitled “Preventive measures” (Środki zapobiegawcze). The 1969 Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
The 1969 Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
Article 210 § 1 of the 1969 Code, in the version applicable at the relevant time, read:
“Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.”
Article 222 stated, in so far as relevant:
“1. The prosecutor may order detention on remand for a period not exceeding three months.
(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;
(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.”
Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision, as it stood at the material time, provided:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant:
“Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society.”
On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read:
“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) [as it stood before 1 January 1996].”
Paragraph 2 of Article 217 then read:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate.
Article 213 § 1 provided:
“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”
Article 225 stated:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”
The provisions of the 1969 Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.
Finally, Article 218 provided:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1) it may seriously jeopardise the life or health of the accused; or
(2) it would entail excessively serious repercussions for the accused or his family.”


ITEMID: 001-69655
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KAWALKO V. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Anna Kucińska, is a Polish national, who was born in 1947 and lives in Warsaw, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 July 1983 the applicant filed with the Warsaw District Court (Sąd Rejonowy) an application for division of the joint matrimonial property.
The proceedings were terminated on 25 April 2003, when the Supreme Court (Sąd Najwyższy) refused to deal with the cassation appeal. On 26 July 2000, the date on which the application was lodged with the Court, they were pending before the Warsaw 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:
“1. Parties
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: 001-78414
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MIRVODA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1958 and lives in Krasnyy Luch, the Lungansk region.
5. On 23 October 2000 the Krasnyy Luch Court (Краснолуцький міський суд Луганської області) gave two judgments in favour of the applicant against the State Open Joint Stock Mining Company Krasnolutska (ДВАТ Шахта „Краснолуцька” ДП ДХК „Донбасантрацит”). By these judgments the court awarded the applicant UAH 932.04 in salary arrears and 8,850 kilos of coal, respectively. The judgments became final and the enforcement writs were transferred to the Krasnyy Luch Bailiffs' Service (Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) for enforcement.
6. On 28 October 2004 the judgment awarding the applicant salary arrears was enforced in full. The judgment awarding the applicant coal has been partly enforced. To present day the applicant has received 2,950 kilos of coal. In accordance to the Government, the enforcement is impeded by the debtor's economic hardships.
7. A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6