ITEMID: 001-96453
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FRASIK v. POLAND
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1975 and lives in Kraków.
8. On 5 September 2000 the applicant was arrested by the police on suspicion of having committed rape and uttered threats against a certain I.K. On 7 September 2000 he was brought before the Kraków-Śródmieście District Court (Sąd Rejonowy) and, upon the application of the Kraków-Śródmieście District Prosecutor (Prokurator Rejonowy), detained on remand for 3 months starting from the date of his arrest, that is, until 5 December 2000.
9. The court held that the evidence against the applicant, in particular his partial confession, justified a reasonable suspicion that he had committed the offences with which he had been charged. It also considered that there was a considerable risk that the applicant, if released, would obstruct the proceedings against him or induce witnesses to give false testimony. Moreover, one of the offences in question (rape) carried a maximum sentence of 10 years’ imprisonment, which made it likely that a severe penalty would be imposed on him. In sum, in the court’s opinion, keeping the applicant in custody was necessary to secure the proper conduct of the proceedings.
Earlier, the applicant and I.K. had been in a relationship that had lasted some 4 years, but they had terminated it several months before the above events.
10. As regards the circumstances surrounding I.K.’s decision to ask the prosecution to institute criminal proceedings against the applicant, the Government submitted that, when testifying during the initial stage of the proceedings, she had stated that she had been afraid to terminate their relationship because she had been threatened by the applicant, and that on several occasions he had beaten her. On 21 December 2000, when the District Prosecutor again heard evidence from her, she confirmed her decision.
11. In the meantime, on 27 November 2000, the Kraków-Śródmieście District Court had extended the applicant’s detention until 5 January 2001, holding that the grounds stated in the initial decision remained valid. It added that his detention was necessary to secure the process of obtaining evidence from experts in sexology, forensic psychiatry and psychology.
12. The applicant appealed on 1 December 2000. He contested the factual basis for the rape charge, arguing that it was doubtful whether his acts could be qualified as rape, in particular as they had been directed against his co-habitee, I.K., whom he had beaten during intercourse because she had told him that she had had a relationship with another man. He had already confessed to battery. Moreover, since in his view it was the victim’s evidence, not his, that was the most relevant for the outcome of the proceedings, there was no risk of his exerting pressure on her. He also relied on Article 5 § 3 of the Convention, maintaining that, in these particular circumstances, his detention amounted to serving a prison sentence.
13. The appeal was examined and rejected by the Kraków Regional Court (Sąd Okręgowy) on 16 January 2001. The court held that the charges against the applicant were supported by the existing evidence and that keeping him in detention was justified by a serious risk of collusion and of his interfering with the collection of evidence. These conclusions were based on the fact that the applicant had threatened the victim and used physical violence against her, and that one of the offences carried a severe penalty.
14. Meanwhile, on 3 January 2001, the Kraków-Śródmieście District Court had prolonged the applicant’s pre-trial detention until 5 February 2001, relying on the grounds given in the previous decisions. The applicant appealed on 15 January 2001, again contesting the basis for the rape charge and submitting that there were serious doubts as to whether he had committed the offence since I.K. wished to marry him.
15. Earlier, on 11 December 2000, the applicant had asked the Kraków-Śródmieście District Prosecutor to release him under police supervision, stating that on 30 November 2000 he had received a visit from I.K. He had apologised to her and she had forgiven him for everything he had done. They wanted to get married and live a normal family life together. In consequence, she wished to withdraw all her accusations. As Christmas was approaching, he wanted to spend it with I.K. and her daughter to strengthen their relationship and make amends for all the harm he had done to her. He feared that his continued detention would be detrimental to their relationship and to I.K.’s young daughter, who treated him as her father and whom he treated as his own daughter.
The District Prosecutor rejected the application on 15 December 2000.
16. On 2 January 2001 I.K. asked the District Prosecutor to release the applicant, unconditionally or under police supervision. She said that he had apologised and she had forgiven him. She thought he should be released because the time he had already spent in detention had changed him for the better and made him realise that what he had done was wrong. She believed that he would mend his ways as he was aware that if he did not he would be severely punished. She admitted that she had made her accusations against the applicant under the influence of the anger and pain he had caused her, adding that, for those reasons, she would like to be absolved from testifying against him.
17. On 3 January 2001 the applicant asked the District Prosecutor to release him under police supervision. He stated that he loved I.K. and had apologised to her and been forgiven. What had happened would never happen again. They wanted to get married and live together. They could move into a flat that he had meanwhile inherited from his grandfather. I.K. needed his financial support and help taking care of her daughter, whom he used regularly to fetch from school. He added that, having been in detention since 5 September 2000, he had understood that what he had done had been wrong. He knew that he would never do it again. He wanted very much to be with I.K. and make amends to her for what he had done.
The application was rejected on 8 January 2001.
18. On 15 January 2001 the applicant also filed a complaint that his appeal of 1 December 2000 had been examined as late as 16 January 2001, that is to say six weeks later. This was incompatible with Article 5 § 4 of the Convention, which required the court to examine the lawfulness of his detention “speedily”.
19. On 24 January 2001 the applicant was indicted before the KrakówŚródmieście District Court on charges of rape and uttering threats.
20. On 7 February 2001 the Kraków Regional Court heard the applicant’s appeal of 15 January 2001 against the decision extending his detention until 5 February 2001. It dismissed the appeal, finding that the decision had been fully justified by the need to secure the proper conduct of the proceedings. In particular, the court stressed the risk of the applicant’s exerting pressure on I.K., especially in view of the fact that she had stated during the investigation that even when in detention he had sent her a letter hinting that after his release he might seek revenge on her. Moreover, the offence of rape carried a maximum sentence of 10 years which, together with the serious circumstances of the incident as related by I.K., gave sufficient grounds to believe that the applicant, given the severity of the penalty, might be prompted to bring pressure to bear on her in order to make her refuse to testify, or change her testimony.
21. The trial started on 1 March 2001. I.K. stated before the court that she “was a family with the applicant” and wished to exercise her right not to testify.
22. On 26 March 2001 the District Court ordered that the applicant be held in detention pending trial until 5 June 2001. In particular, it relied on the risk of his bringing pressure to bear on I.K. It further reiterated all the previous grounds for his continued detention.
23. The applicant appealed and again contested the factual basis for the rape charge and stressed that his detention had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention.
24. In the meantime, presumably on 2 April 2001, I.K. had made a written declaration to the court, submitting that she wished to exercise her right not to testify because she was, as defined in Article 185 of the Code of Criminal Procedure (Kodeks postępowania karnego), “in a particularly close personal relationship” (w szczególnie bliskim stosunku osobistym) with the applicant. She also asked the court to release the applicant and stated that she wished to marry him.
25. On 23 April 2001 I.K. repeated that statement at a hearing and asked the court to absolve her from her duty to testify. However, the court rejected her request. It held, first, that her refusal was dictated by her fear of the applicant rather than by her affection for him and, secondly, that their relationship – both past and present – lacked the necessary psychological, physical and financial bonds to be regarded as a de facto marriage and, consequently, a “particularly close personal relationship” within the meaning of the Code of Criminal Procedure that would override her duty to testify against the applicant at the trial. Since I.K. persisted in refusing to testify, the presiding judge imposed a fine on her for obstructing the trial.
On 30 April 2001 I.K. unsuccessfully appealed against the court’s decision to fine her for refusing to testify. She again stated that she did not want to testify against the applicant.
26. On 24 April 2001 the Regional Court dismissed the applicant’s appeal against the decision of 26 March 2001, holding that the District Court had correctly assessed the evidence before it and had rightly concluded that it fully indicated the probability that the applicant had committed the offences with which he had been charged. It also analysed the circumstances surrounding I.K.’s refusal to testify, explaining that, even though she had again informed the trial court that she would like to exercise her right not to testify because she regarded herself as a “person in a particularly close relationship” with the applicant, that question had to be decided finally by the trial court. In the Regional Court’s opinion, regardless of how the trial court eventually qualified their relationship there was still the risk that the applicant would attempt to influence the witness, especially in view of his previous aggressive behaviour towards her. Lastly, referring to the complaint of a breach of Article 5 § 3, the court rejected the applicant’s arguments as to the allegedly excessive length of his detention. It observed that the District Court had proceeded swiftly with the trial. Since 24 January 2001, the date on which the bill of indictment had been lodged, it had already held 2 hearings and, as it had heard most of the evidence, the first-instance proceedings were soon to be concluded.
27. During the proceedings the applicant sent numerous letters to I.K. In May 2001 their number reached 140.
28. Subsequently, the District Court gave two further decisions prolonging the applicant’s detention. On 21 June 2001 it extended his detention until 5 October 2001 and on 3 October 2001 until 5 December 2001. The court relied on the grounds given in the previous decisions, attaching special importance to the risk of the applicant’s tampering with the witness I.K. At that time the witness still maintained her decision to marry the applicant and her refusal to testify.
29. The applicant unsuccessfully appealed against those decisions, submitting that the trial court, by holding him in custody, repeatedly imposing fines on I.K. and refusing to grant them leave to marry in prison, had not only penalised him without him having been convicted but also showed no respect for their private life. In his view, this amounted to a “misunderstanding” and unjustified interference with their right to private life. He also relied on the fact that I.K. had stated before the court that she “no longer felt that she had been raped”, maintaining that the change of both parties’ attitude to each other and to the applicant’s deed was an important circumstance militating in favour of his release. In his appeals, he invoked Article 5 § 3 and Article 12 of the Convention.
30. Before the end of the trial I.K. eventually testified, stating, among other things, that she no longer considered that the applicant had raped her and that she had forgiven him.
31. On 19 November 2001 the Kraków-Śródmieście District Court convicted the applicant as charged and sentenced him to 5 years’ imprisonment. It ordered that the applicant be held in custody pending the outcome of his appeal.
32. On 7 May 2002 the Kraków Regional Court heard the applicant’s appeal. It upheld the conviction but reduced the sentence to 3 years’ imprisonment, finding that the complete change of the victim’s attitude to the applicant over the course of the proceedings fully justified the reduction. It also observed that that change could not have been dictated simply by her fear of the applicant because, had it been so, she would have preferred to have him locked up for the longest period possible.
33. The applicant filed a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). The Supreme Court heard and dismissed the appeal on 27 May 2003.
34. On 24 April 2001 the applicant asked the trial court to grant him leave to marry I.K. in the Kraków Remand Centre. He maintained, among other things, that they both wished to solemnise their relationship and that they had already planned to get married in the past. In April 1999 their plans were delayed because I.K., who had been pregnant with their child, had had a miscarriage. The next date was to be fixed for December 2000 but that fell through because he was arrested and detained on remand in September 2000.
35. On 15 May 2001 I.K. requested the Kraków-Śródmieście District Court to grant them leave to marry in prison. She stated that they had been together for 4 years and remained in a close relationship for 3 years. She also referred to their past decisions to get married – which had not been realised because of her miscarriage in 1999 and, as regards the plans to fix a marriage date in December 2000, because the applicant had been arrested. Furthermore, she submitted that their marriage would also be important for her daughter, who had developed a close emotional bond with the applicant, treated him as her father and missed him badly. Finally, she said that she loved the applicant very much and asked for her request to be granted.
36. At the hearing held on 21 May 2001 the applicant again asked the court to grant him leave to marry I.K. in prison. He said that he loved her very much and would like to marry her as soon as possible.
I.K., summoned by the presiding judge to the hearing room, confirmed that she had already applied to the court for leave to marry the applicant in the Kraków Remand Centre. She asked the court to enable her to contact him in order to discuss arrangements for the marriage. She continued to refuse to testify against him, saying that she loved him very much and deeply regretted what she had said at the police interview. She asked the court to regard her as his common-law wife.
37. On 2 July 2001 the applicant again asked the District Court for leave to marry in the Kraków Remand Centre, maintaining that the judge had informed him at the hearing of 21 May 2001 that leave had been granted and that he would receive it in writing. He further asked the court to grant him permission to have photographs taken of the ceremony and to serve light refreshments, such permission being required by the Governor of the Kraków Remand Centre in order to organise the event.
38. By a letter of 11 July 2001 the presiding judge informed the applicant, his lawyer and I.K. that their requests for leave to marry in the remand centre had been refused. The letter read, in so far as relevant, as follows:
“The Kraków-Śródmieście District Court Second Criminal Division hereby informs you that the application for leave to contract a marriage in prison made by the accused Rafał Frasik and the injured party (pokrzywdzona) [I.K.] has not been granted in view of the interests of the proceedings.
A prison or remand centre is no place to hold ... ceremonies so important in a person’s life as a wedding.
In this court’s opinion no circumstances justify contracting a marriage in the remand centre. If indeed – which in the court’s view is doubtful – the accused and the injured party are sure of their decision that is so important for them and for their families and want to hold a ceremony, they may plan it for another time and in another place than a remand centre.
It should be noted that marriage is always connected with a ceremony and the participation of other persons whose presence is obligatory; certainly, the conditions in a remand centre or prison are not suitable for it.
If the accused and the injured party have known each other for 4 years and they have not yet managed to officialise their life, in the circumstances of the present case their sudden decision to enter into a marital union sheds doubt on their intentions, to say the least.
The accused and [I.K.]’s decision to marry has emerged at a particular moment in the course of the proceedings, namely when the court refused to consider [I.K.] as a ‘close person’ (osoba najbliższa) – [a status] which would have given her the right to refuse to testify – and when it imposed a fine on her for unjustified refusal to testify.
Thus, the court cannot but find that a request for leave to contract a marriage [made] at this particular time is a further attempt to persuade the court that the relations between the accused and the injured party are of a close nature – which, in reality, in the court’s opinion, is not the case and was invented only for the sake of the proceedings.”
39. The applicant’s lawyer replied to the letter on 6 August 2001. He stated that the court’s arguments could not erase the applicant’s and I.K.’s right to marry guaranteed by Article 12 of the Convention. He added that the mere fact that he was in detention did not deprive him of that right.
40. It appears that later the applicant and I.K. made further requests for leave to contract their marriage in the remand centre, but to no avail.
41. In his cassation appeal against the Regional Court’s judgment of 7 May 2002 the applicant invoked Article 12 of the Convention as one of the legal grounds for the appeal. The Supreme Court, in its above-mentioned judgment of 27 May 2003 (see paragraph 33 above), held that the refusal to grant the applicant leave to contract a marriage in prison constituted a violation of Article 12 of the Convention. Nevertheless, in the Supreme Court’s view, this kind of – admittedly serious – breach of the law on the part of the trial court did not have any real bearing on the applicant’s conviction and could not result in it being quashed.
42. The relevant part of the reasoning of the Supreme Court’s judgment reads as follows:
“However, one must agree with the appellant that there has been a violation of Article 12 of [the Convention] in the present case. This provision concerns the right to marry and in this context the European Court of Human Right’s case-law states that a detainee cannot be prohibited from marrying, except in order to prevent fictitious unions .... However, in the court’s decision refusing the request made by the injured party and the accused for leave to marry, it was observed that if they had known each other for 4 years and had not managed to officialise their life “their sudden decision to enter into a marital union shed doubt on their intentions”, especially as the request “emerged at a particular moment ... when the court refused to consider [I.K.] as a ‘close person’”; this, in the [court]’s view, was accordingly merely “a further attempt to persuade the court that the relations between the accused and the injured party [were] of a close nature, which, in reality ... [was] not the case”.
These arguments are not convincing. It is in a way natural that the request for leave to contract a marriage emerged after the court’s refusal to recognise the injured party’s status at the trial because the injured party and the accused had previously regarded themselves as close persons. It is also evident that if the accused had not been kept in detention but had been released, there would have been no obstacles to his contracting a marriage. Only his incarceration made it impossible for him and the injured party to decide autonomously to get married. A prospective nuptial couple (nupturienci) do not have to prove and demonstrate to the relevant authority the depth of their feelings justifying their marriage. The court’s decision, especially in view of the reasons given for it, was consequently wrong and amounted to a flagrant breach [of the law] since it infringed the standards laid down in the European Convention on Human Rights, which is binding on Poland.”
43. The relevant domestic law and practice concerning the detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
44. As regards the general situation of a detainee, during criminal proceedings against him he is considered to be “at the disposal” (w dyspozycji) of the authority – be it a prosecutor or a court – currently dealing with the case. One of the consequences of this is that a detainee wishing to have visits from relatives in prison, or a visit from any third person or, as in the present case, to contract a marriage during his detention, must first obtain leave from the relevant authority. While the number and nature of visits in prison are regulated by the provisions of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) and the Rules for Execution of Detention on Remand (Regulamin wykonywania tymczasowego aresztowania), such matters as leave to contract a marriage in prison are entirely at the competent authority’s discretion.
45. The Code of Criminal Procedure grants an unqualified right not to testify only to the accused’s closest relatives and an accomplice witness who has been charged with the same offence in another case (Article 182). Except for national security, in all other situations, even such as client-lawyer privilege, doctor-patient privilege and journalist privilege, the prosecutor or the court can either absolve witnesses from their duty not to disclose confidential information or order them to testify (Article 180).
46. According to Article 185, a similar rule applies to persons who are in a “particularly close personal relationship” with the accused. This provision reads as follows:
“A person who remains in a particularly close personal relationship with the accused may, if he or she has so requested, be absolved from testifying or from replying to a question.”
47. In the light of the Supreme Court’s case-law and legal writing, a “particularly close personal relationship” is generally defined as a strong and long-lasting emotional bond between the accused and the witness, resulting, for instance, from friendship, colleagueship, engagement, cohabitation or tutorship such that the act of testifying causes the witness internal conflict.
48. Under the provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) the registrar of the relevant Registry Office (Kierownik Urzędu Stanu Cywilnego) may refuse to solemnise a marriage only if there exists a statutory obstacle rendering the marriage null and void, such as age, legal incapacity, mental disorder, bigamy, close affinity of the parties or adoptive relationship (Articles 5, 10 11, 12, 13, 14 and 15). In case of doubt, the registrar must ask the competent court to rule on whether the marriage can be contracted (Article 5).
Pursuant to Article 4, a marriage before the registrar may not be concluded until 1 month after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage. At their request and for important reasons, the registrar may solemnise the marriage before the expiry of that term.
49. Article 6 of the Family and Custody Code lays down the rules for a proxy marriage. Contracting a marriage through a representative is subject to leave that can be granted by a family court in a non-contentious procedure. It depends on two principal conditions. First, the court must be satisfied that there exist “important reasons” justifying the departure from the normal procedure. Secondly, the applicant’s signature on a proxy must, on pain of being null and void, be made in the presence of a notary, who confirms its authenticity by a special declaration.
The Supreme Court’s case-law and the practice of the domestic courts in respect of proxy marriage is very scant. A few existing rulings of the Supreme Court relate to applications by foreigners for leave to contract proxy marriages with Polish women and date back to the 1970s.
50. The Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of the enforcement of custodial sentences and detention on remand that may be relevant to the present case.
Rule 3 reads:
“Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.”
Rule 70 reads, in so far as relevant:
“1. Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority.
...
If the request is denied or a complaint rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”
VIOLATED_ARTICLES: 12
13
5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-5447
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: E. AND S. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Finnish nationals, born in 1949 and 1965 respectively and living in Helsinki.
s, may be summarised as follows.
The applicants married in 1990 and lived in the municipality of I. until 1998. Their son J. was born in January 1991. The second applicant has another son (S.) from another relationship who lives with her and the first applicant. It appears that the first applicant has two further sons from a previous relationship.
In March 1991 the local Social Welfare Board (sosiaalilautakunta, socialnämnden) placed J. in another family as a support measure necessitated, in particular, by the second applicant’s hospitalisation due to her illness diagnosed as schizophrenia typus schizo-affectiva. She was hospitalised between June and November 1991 and had also required such care earlier.
J.’s placement in a substitute family was later extended until the end of September 1991. On 16 September 1991 the Social Welfare Board placed him in public care in pursuance of Section 16 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 as amended by Act 13/1990). The applicants had consented to the measure and J. was now placed in another substitute family in a municipality not far from I. The Social Welfare Board noted that the mother remained in hospital. The father, who was studying elsewhere, had considered himself unable to assume J.’s care. J. had already been placed with another family for six months. As none of the parents were able to care for and raise J., his placement in public care served his best interest. The Social Welfare Board had regard to an opinion of Dr R.R., specialised in psychiatry, and Dr N.S.
The Social Welfare Board imposed no restriction on meetings or other forms of contact between J. and the parents. The placement with the substitute parents was to be in force until further notice. Once the parents’ conditions had changed the need for public care would be reconsidered.

In 1995 the applicants requested the Social Welfare Board to terminate J.’s public care and placement in a substitute home. Prior to the Board’s decision the substitute parents, J. himself, the maternal grandparents, and a former social welfare official who had been in charge of preparing and monitoring J’s public care were heard by social welfare officials. The Board also obtained opinions from the local Mental Health Care Office (of 27 September 1995) and a Family Advice Centre. The medical opinion was issued by a specialist in psychiatry who had been monitoring the second applicant in 1988-89 and as from June 1994. In addition, she had at her disposal the second applicant’s medical file going back to 1984.
According to the substitute parents, who were heard in November 1995, J. and the applicants had met only once every 6-8 weeks for some two hours during J.’s four-year long placement with the substitute parents. The second applicant had also been maintaining a certain contact by telephone calls. Not until the beginning of 1995 had the first applicant made any contact with J. during meetings. According to the former social welfare official, who was supervising the meetings until the end of 1993, the first applicant had often not been at home during the meetings in the applicants’ home. If at home, he had not spoken to J. or otherwise participated in the meetings.

The applicants were heard by social welfare officials on four occasions between May and December 1995. The first applicant stated that during meetings with J. he had deliberately remained in the background so as not to confuse him by the presence of two mothers and two fathers. The applicants having been afforded the opportunity to propose that other persons or institutions be heard prior to the decision, the second applicant proposed that her own parents be heard.
On 16 September 1996 the Social Welfare Board refused the applicants’ request for termination of the public care. It recalled, inter alia, that the mother had been hospitalised while she was expecting J. and the parents were experiencing a crisis in the marriage. The mother had tried to care for J. with the help of her parents and a municipal carer but had again been hospitalised about a month after having given birth to J. The father, who was studying far away, had then stated that he was not available to assume J.’s care. The applicants were now enrolled as students in Helsinki but continued to live in I. The mother was receiving early retirement pension. After lengthy reflection the applicants were now ready to assume J.’s care and recognised that his transfer into their family would have to be implemented gradually. According to the medical opinion the mother was suffering from a serious mental disturbance. Although her condition had been stable over the last years the illness could re-occur despite regular medication. The mother’s thoughts were influenced by unrealistic optimism and denial of difficulties. Although she could be expected to manage the care of S., J.’s transfer into that family was not the optimal alternative for his development. The Board had been informed by the then expert at the Mental Health Care Office that there was no such fresh information which would warrant a revised opinion on the mother’s state of health. The discussions with the applicants and the others heard had all led to the impression that in the applicants’ family the responsibility for J. would always and principally fall on the mother. The father had stated that should the mother not be able to assume that responsibility, he would only then assume it. The Social Welfare Board had therefore not become convinced that the responsibility for J.’s everyday care and upbringing would be shared between the parents, which J.’s entry into the family would definitely require. J. had lived with his substitute parents all his life and he was perceiving them as his parents both in practical and psychological terms. As the conditions in J.’s biological family had not changed decisively, the best solution from J.’s point of view was to maintain status quo as regards his care. As it was also in his interest to get to know his biological parents the contact to that end would be continued and, if possible, extended, regard being had to J.’s development and age.
The applicant’s requested the Social Welfare Board to reconsider its decision. They submitted, inter alia, that the Board’s opinion of the first applicant as father was incorrect. He had a good and stable relationship with all of his four sons.
On 13 November 1996 the Social Welfare Board maintained its decision. The applicants appealed further to the competent County Administrative Court (lääninoikeus, länsrätten), maintaining that since the care order had been issued their conditions had changed so as to enable them to assume J.’s care. Their opinion had not been properly recorded or had been ignored by the Social Welfare Board.
On 17 February 1997 the County Administrative Court rejected the appeal after having obtained the Social Welfare Board’s written opinion and the applicants’ rejoinder. The court reasoned, in extenso, as follows:
(translation from Finnish)
“According to the medical opinion in the file, [the second applicant] is suffering from a serious mental disturbance which may re-occur despite regular medication. Due to her limited mental strength she would need particularly significant support in raising two children on an everyday basis. According to the documentation, the responsibility for the care and upbringing of the children would, in the applicants’ family, fall principally on [the second applicant]. For these reasons and considering the other elements transpiring from the documents, the County Administrative Court finds that the need for [J.’s] public care and placement with substitute parents within the meaning of Section 16 of the Child Welfare Act continues to exist and that a termination of the public care would be manifestly contrary to the child’s best interest. The Social Welfare Board has therefore been under an obligation to maintain the public care.”

The applicants appealed further, emphasising that the second applicant had not needed
hospital care for over five and a half years, which fact had been ignored by the Social Welfare Board. The applicants submitted an opinion of 20 March 1997 issued by the doctor at the Mental Health Centre who had been monitoring the second applicant’s medical state since October 1995 and had acquainted himself with her medical file. Since the previous medical opinion had been issued in September 1995 the second applicant had been seeing staff at the Mental Health Centre once a month or once in two months. Although her mental state had remained stable, it could still not be excluded that her illness might deteriorate. The opinion concluded that the termination of J.’s public care would not be the best solution, considering the need to ensure his healthy development.
On 5 September 1997 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) rejected the applicants’ appeal after hearing the Social Welfare Board in writing and obtaining the applicants’ rejoinder. The Supreme Administrative Court reasoned, in extenso, as follows:
(translation from Finnish)
“Having regard to the requests in this matter, the material received, the reasons stated in the County Administrative Court’s decision and the legal provisions applied, there is no reason to amend [that] decision.”

In September 1999 the applicants informed the Court that they and J. were corresponding once a month. J. had spent one and a half week with them in Helsinki in the summer of 1999. He was experiencing certain problems in the substitute home. S. was living with a grandparent in the municipality of I. but the applicants intended to have him start school in Helsinki in the autumn of 2000. The applicants were continuing their studies.


ITEMID: 001-79008
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF AKGÜL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant was born in 1980 and lives in Izmir.
5.
6. On 23 February 1999 the applicant was taken into custody by police officers from the Anti-Terror branch of the Izmir Security Directorate (Terörle Mücadele Şubesi) on suspicion of aiding and abetting an illegal organisation, namely the PKK (the Kurdistan Workers’ Party), contrary to Article 169 of the Criminal Code.
7. On 26 February 1999 the applicant was brought before a single judge of the Izmir State Security Court. The applicant denied the veracity of his signed statements taken in detention, alleging that they had been obtained under duress. On the same day, the judge ordered his detention on remand.
8. On 3 March 1999 the public prosecutor at the Izmir State Security Court filed a bill of indictment, charging the applicant under Article 169 of the Criminal Code with aiding and abetting the PKK by engaging in propaganda for it.
9. On 7 April 1999 the State Security Court held its first hearing in the absence of the applicant. The court ordered that the applicant’s detention on remand be continued as he could not be heard.
10. On 11 May 1999 the State Security Court held its second hearing in the presence of a military judge. The applicant was heard by the court. He denied having engaged in propaganda and stated that he had been merely watching the crowd shouting slogans. He further denied the statements taken in police custody and before the public prosecutor. He alleged that he had been forced to sign the impugned statements under duress. He asked the court to dismiss the charges and release him. Assessing the evidence against the applicant, the court dismissed his request and ordered his continued detention on remand.
11. On 18 June 1999 the Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge hearing the applicant’s case was replaced by a civilian judge.
12. On 19 August 1999 the State Security Court held a hearing. The applicant’s representative requested his release. He further asked the court to hear evidence from four witnesses. The court dismissed his requests. Considering the state of the proceedings, the court reasoned that the evidence to be given by the four witnesses would not help to elucidate the facts.
13. On 22 September 1999 the State Security Court held another hearing. The applicant’s representative submitted the applicant’s written defence submissions and read them at the hearing. The court ordered that the applicant’s detention on remand be continued.
14. On 13 October 1999 the State Security Court composed of three civilian judges convicted the applicant as charged and sentenced him to three years’ imprisonment under Article 169 of the Criminal Code.
15. On 9 October 2000 the Court of Cassation upheld the judgment. Two days later, this decision was pronounced in the absence of the applicant’s representative.
16. As required by law, the decision was deposited with the registry of the Izmir State Security Court for the applicant’s review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67446
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ZANDER v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Netherlands national, born in 1952 and living in the Netherlands. He was initially represented before the Court by Mr P.J.A. Prinsen, a lawyer practising in The Hague. Mr Prinsen has now been replaced by Ms T.C. ten Rouwelaar, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had a relationship with a woman, Ms B., out of which a child, Rosa, was born on 11 October 1987. The applicant recognised Rosa as his child. By a decision dated 3 December 1987 the Deventer District Court judge (Kantonrechter) vested parental authority jointly in the applicant and Ms B.
After the relationship between the applicant and Ms B. had ended in 1989, the latter applied to the Deventer District Court for the guardianship (voogdij) over Rosa. In its decision of 8 February 1991 the District Court appointed Ms B. as Rosa's guardian (voogd) and the applicant as her subsidiary guardian (toeziend voogd). Rosa was to remain with Ms B. The applicant was granted an access arrangement (omgangsregeling) under which Rosa would stay with him for one weekend each fortnight and for periods of several days during the school holidays.
On 22 January 1992 Ms B. applied to the Regional Court (Arrondissementsrechtbank) of Zutphen for a change in the access arrangement. The applicant submitted a written statement of defence suggesting changes of his own. On 11 May 1992, the Regional Court agreed to change the access arrangement in accordance with the wishes of Ms B. The changes involved, essentially, that Rosa would be handed to the applicant at times which would preclude the applicant from picking up or dropping Rosa at school, as “communication at school” had apparently led to conflicts between the applicant and Ms B.
It appears that on 13 September 1992, when Ms B. came to pick up Rosa at the applicant's home, an incident took place between the applicant and Ms B. which gave rise to separate criminal complaints filed by both of them. According to a statement made by Ms B. to the police this incident was caused by disagreement about her decision to send Rosa to a different school. Thereafter Ms B. refused the applicant all access to Rosa.
On 29 September 1993 - shortly before the hearing in summary injunction proceedings (kort geding) aimed at securing Ms B.'s cooperation with the access arrangement (see below) - Ms B. applied to the Zutphen Regional Court for the access arrangement between the applicant and Rosa to be terminated altogether. The applicant lodged a written statement objecting to this suggestion, asking for the access arrangement to be altered instead. The Regional Court decided to order the Child Welfare Council (Raad voor de Kinderbescherming) to report to it on the feasibility of continuing the access arrangement.
The Regional Court held a hearing on 8 March 1994. The applicant complained that the Child Welfare Council was taking too long to finish its report He asked for the Council's terms of reference to be changed and for access to be resumed in the meantime. The Regional Court decided not to alter the Council's terms of reference and deferred its decision until the report was ready.
The Child Welfare Council submitted a report dated 11 April 1994 by a psychologist, who - at the request of the Child Welfare Council - had examined Rosa and who had found that Rosa had suffered by the lack of understanding between her parents. Resumption of access by the applicant would be too threatening for Rosa and ought therefore not to be considered at this stage. Psychological support was needed to help Rosa overcome the psychological problems caused by the conflicts that she had witnessed. Both Ms B. and the applicant, with whom the psychologist had had conversations both prior to and after Rosa's examination, had been given the opportunity to make comments on this report. These comments were annexed to the report.
In a second report dated 17 May 1994 by the Child Welfare Council, which had been drafted on the basis of conversations held with Ms B. and the applicant and the psychologist's report of 11 April 1994, it was noted that Rosa had better ties with Ms B. than with the applicant and felt threatened in her contacts with the applicant. It was recommended that access should not be resumed until such time as Rosa herself was ready for it, that Ms B. should receive psychological support and that the applicant should seek psychological treatment. Both Ms B. and the applicant were given the possibility to make written comments on the report. Only Ms B. availed herself of this opportunity. Her comments were appended to the report. The applicant's lawyer merely stated that the applicant considered that the contents of the report were not at all correct, but that he did not wish to avail himself of the possibility to submit comments.
On 9 June 1994 the Regional Court gave a decision terminating the access arrangement altogether. Insofar as relevant, the Regional Court held:
“The Regional Court accepts the advice of the expert and the <Child Welfare> Council and will decide accordingly.
Since we are faced with the case of a girl who is just over six years old who does not yet have a strong personality, this will have to be taken into consideration.
If access by the father were to be resumed at this point, that would be too much of an imposition on the child, given the apprehensive reactions observed in Rosa, who moreover is emotionally blocked and has found a safe haven with her mother; access <by the father> would seriously harm her development.
The father's request will be rejected on the above-mentioned grounds and the mother's request will be granted.
The father must allow Rosa some time.
The Regional Court draws the mother's attention to her responsibility as the caring parent and charges her to take all measures necessary to get her daughter out of the present blockage.”
On 30 June 1994, the applicant filed an appeal with the Arnhem Court of Appeal (Gerechtshof) against the decision of 9 June 1994.
In its decision of 4 October 1994, the Court of Appeal endorsed the refusal of the Regional Court to order an access arrangement. The Court of Appeal considered that it was generally in the child's interests for it to have contacts with the non-custodial parent, and that the non-custodial parent was in principle entitled to such access. However, basing itself on the psychologist's report, the Court of Appeal found it necessary for Rosa to grow up in a safe family environment, from which the applicant was to be excluded so as to allow Rosa to develop a normal bond with Ms B., who was to help Rosa overcome her negative emotional reactions to the applicant, for which Ms B. needed to seek psychological counselling. It would then be possible in a few years' time for contact between the applicant and Rosa to be resumed. In the meanwhile Ms B. was to provide the applicant twice a year with information on Rosa's development, including recent photographs and school reports. It held, amongst other things, that although there was nothing in the relationship between Rosa and the applicant to impede contact between them, it would not be in Rosa's interests to order a compulsory access arrangement in view of the serious lack of understanding between Ms B. and the applicant as well as Rosa's own psychological state.
On 15 November 1995, the applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad). He argued that the Court of Appeal ought to have ordered an access arrangement, leaving it to Rosa's parents to see to it that she did not suffer any harm or, in the alternative, the Court of Appeal ought to have examined the question of whether the facility with which access arrangements could be terminated was not partly the cause of the problems, and whether continuing the access arrangement rather than terminating it would not have been more conducive to reducing tensions between the parents. He further argued that the Court of Appeal's decision was insufficiently reasoned, given that the Court of Appeal had found that there was nothing to impede contact between the applicant and Rosa per se and so it was not clear how compelling Ms B. to allow such contact could harm Rosa's interests.
The Supreme Court handed down its decision on 22 September 1995 dismissing the applicant's appeal. As to the applicant's first complaint it held that the Court of Appeal had been entitled to decide, on the basis of the information available to it (including the psychologist's report), that to impose an access arrangement would be contrary to Rosa's weighty interests. As regards the applicant's second complaint, the Supreme Court held that the Court of Appeal had merely stated that an access arrangement imposed by court order would be detrimental to Rosa's interests.
Following the incident of 13 September 1992 the applicant tried, initially through social workers and later through his lawyer, to get Ms B. to recommence implementing the access arrangement as determined on 11 May 1992. These attempts did not meet with success.
On 22 September 1993 the applicant summoned Ms B. to appear before the President of the Regional Court of Zutphen in summary injunction proceedings. The applicant sought an order against Ms B. to co-operate in the implementation of the access arrangement or forfeit a sum of money each time that she failed to do so.
Following a hearing held on 30 September 1993, the President of the Regional Court gave judgment on 7 October 1993 declining to give the order sought by the applicant. He held:
“Parties are making mutual reproaches which, in the absence of a sound substantiation, cannot be adequately examined in the present proceedings as to their degree of foundedness. The proceedings on the merits already pending ... are more suitable for a thorough examination, the more so since in those proceedings use can be made of the assistance of the Child Welfare Council of Zutphen. Also taking into consideration that the <applicant> has not had access to Rosa for more than one year, it cannot be considered for the time being as being in Rosa's interests - which takes a central place in this matter - that in anticipation of the outcome of the proceedings on the merits the present access arrangement will be restarted, as this would result in a change of a stable situation which, having regard to Rosa's tender age, does not appear to be opportune.”
The President of the Regional Court did, however, not award costs against the applicant but ordered both parties to bear their own costs.
The applicant filed an appeal with the Arnhem Court of Appeal. He argued that the President ought to have ordered the resumption of the access arrangement, because that would have made it clear in what way contact between him and Rosa should be resumed and would thus have yielded information which would have benefited the decision of the Regional Court on whether or not to terminate the access arrangement altogether. He further argued, inter alia, that his intention was to give practical effect to a right that had been determined by a decision of a court that had obtained the force of res iudicata.
Following a hearing held on 15 September 1994, the Court of Appeal gave judgment on 4 October 1994, i.e. the same day on which it handed down its decision on the access arrangement (see above). It held that, as it had endorsed the termination of the access arrangement, the applicant's claim had lost its basis and that therefore the judgment of the President of the Regional Court had to be confirmed. The applicant as the losing party was ordered to pay a sum of money towards Ms B.'s legal costs.
The applicant filed an appeal in cassation with the Supreme Court on 15 November 1994. He argued that, although the ground for his claim had disappeared due to the decision of the Court of Appeal terminating the access arrangement, the Court of Appeal ought nevertheless to have ruled in principle on the claim's foundedness, since the question whether or not he was in fact the losing party depended on it, and the decision on costs in turn depended on that.
In its judgment of 24 November 1995, the Supreme Court held that the Court of Appeal had erred in law by deciding without a further examination that the applicant was the losing party. The Court of Appeal ought instead to have addressed the question of whether or not the President of the Regional Court had rightly dismissed the applicant's claim and to have based its decision on costs on the outcome of that examination. The Supreme Court did not, however, refer the case back for a rehearing on appeal, holding instead that irrespective of the outcome of such a rehearing each party should bear its own costs. In so doing it applied by analogy the rule that such a decision was possible in litigation between married parents.
At the relevant time, access rights were regulated in Articles 1:161a and 1:162 of the Civil Code (Burgerlijk Wetboek). These provisions were subsumed in Article 1:377a et seq. of the Civil Code by the Act of 6 April 1995, which entered into force on 2 November 1995.
Article 1:161a of the Civil Code, as in force at the material time, provided as follows:
“1. The child and the parent who has not been appointed as guardian are entitled to have access to each other (omgang met elkaar). Access between the parent and the child can take place from the time at which the other parent's guardianship has begun.
2. The Regional Court shall, at the time of the divorce or at a later date, at the request of both parents or of one of them, establish an arrangement for the implementation of the right to access, for a definite period or not as the case may be, or shall deny, for a definite period or not as the case may be, the right to access.
3. The Regional Court shall only deny the right to access if:
a. access would seriously impair the mental or physical development of the child; or
b. the parent must be deemed to be obviously unfit for, or obviously incapable of, access; or
c. access would for another reason be contrary to weighty interests (zwaarwegende belangen) of the child; or
d. the child, being at least twelve years old, when being heard has made serious objections to allowing his parent access.”
Article 1:162 of the Civil Code, as in force at the material time and insofar as relevant, read as follows:
“At the request of one or both of the parents, the Regional Court may amend decisions given pursuant to Articles 161 and 161a or change an access arrangement concluded by mutual agreement between the parents on the grounds that the circumstances have changed or that the decision was based on inaccurate or incomplete information.”
Although the provisions governing access as in force at the relevant time only related to access following divorce, the right of access of parents who had never been married to each other was in fact recognised in domestic case-law under Article 8 of the Convention (cf. Hoge Raad, 22 February 1985, Nederlandse Jurisprudentie 1986, nr. 3; and Hoge Raad, 22 October 1993, Nederlandse Jurisprudentie 1994, nr. 153).
Where an access arrangement is not complied with, the parent concerned may request the competent court to issue a measure aimed at enforcing compliance. Courts cannot act at their own initiative in this field. Judicial measures aimed at enforcing compliance can take the form of, inter alia, assistance by the police, civil imprisonment, suspension of maintenance payments or placement under supervision (ondertoezichtstelling).
In civil cases where urgency is required, summary injunction proceedings (kort geding) before the President of the Regional Court may be taken in order to obtain an immediate or interim measure. Such proceedings may be taken where the parties cannot wait for a decision in the proceedings on the merits (bodemprocedure). Summary injunction proceedings are governed by Articles 289-297 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering). They are concluded speedily and focus on oral submissions at the hearing. As these proceedings are characterised by speed, issues raised are only examined summarily. Decisions taken in summary injunction proceedings are usually handed down within a week after the hearing and are immediately enforceable (bij voorraad uitvoerbaar). They may however not be detrimental to the outcome of the proceedings on the merits (“beslissingen bij voorraad brengen geen nadeel toe aan de zaak ten principale”). The court determining the merits of the case is not bound by the decision handed down by the President of the Regional Court in summary injunction proceedings.


ITEMID: 001-22959
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: STANFORD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The applicant, Mr Bryan Stanford, is a United Kingdom national, born in 1949 and currently in prison in Durham. He is represented before the Court by Mr M. Farrar, a lawyer practising in Bradford.
In 1988 the applicant was convicted of rape, indecent assault, kidnapping and threats to kill in relation to two girls, aged 15 and 10 respectively. He was sentenced to 10 years’ imprisonment. In 1997 he was again imprisoned having been found guilty of three counts of indecent assault.
On 22 June 2000 the applicant was convicted by the Crown Court on three counts of rape and five counts of indecent assault concerning two male minors, two brothers aged 13 and 6. He was further convicted on one charge, and he pleaded guilty to two charges, of taking indecent photographs of one of those minors.
He was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 in relation to the rape conviction.
In that regard, the trial judge stated inter alia:
“the evidence and your demeanour in the witness box throughout this case demonstrate that you are a scheming, manipulative and highly plausible paedophile with a quite appalling record behind you... You are in my view a dangerous man when at large where young children of either sex are involved. Under section 2 ... I have no alternative but to pass an automatic life sentence, which I do with no lack of conviction or enthusiasm.”
The applicant was also sentenced to four years’ imprisonment for each indecent assault conviction, the four years being concurrent to each other but consecutive to the rape sentence. For each of the indecent photograph convictions, he was sentenced to 30 months’ imprisonment, concurrent with each other and with the indecent assault sentences.
In fixing the tariff in respect of the life sentence, the trial judge made it clear that if he had been required to set a determinate sentence, he would have chosen 15 years’ imprisonment, made up of 11 years in respect of the rape offences and 4 years to run consecutively in respect of the indecent assault offences. He explained that the period of 15 years had been chosen in view of:
“the aggravating features, that is to say your previous convictions and indeed the rest of your track record, the breach of trust, the number of victims here, their youth, the frequency of the acts and the nature of them.”
The trial judge accordingly fixed the tariff at 7 1/2 years’ imprisonment since the applicant would normally have had to serve some half of any determinate sentence. Taking account of the period already spent in custody pending trial (9 months), the minimum period to be served by the applicant was fixed at a further 6 years and 9 months. The trial judge stated that in matters of parole:
“... my present feeling is that great care should be exercised. I do not doubt that it always is, but in this case particular care should be exercised before you are let loose on the community.”
The applicant applied for leave to appeal against conviction and sentence. Concerning his conviction, he argued that the judge was wrong to refuse to sever the indictment so that the jury would not be aware of the counts of the taking of photographs to which he had pleaded guilty as this was likely to have an overwhelmingly prejudicial effect on the jury so as to render a fair trial impossible. He also argued that the judge had been wrong to direct that the jury could consider the evidence of one of the boys as probative in respect of the evidence of the other. Concerning his sentence, he argued that the life sentence was imposed in breach of Articles 3 and 5 of the Convention.
On 25 October 2000 leave to appeal was refused by a single judge.
On 6 March 2001 the Court of Appeal dismissed his renewed application for leave to appeal against sentence and conviction. On the grounds of appeal against conviction, they found no point of merit, there being no ground to criticise the refusal to sever the indictment and the judge’s direction being clear and appropriate concerning the relevance of the photographs and the supportive value of the boys’ evidence. As regarded the applicant’s sentence, it stated that it had no doubt that this was a case which called for severe sentences. It reiterated the trial judge’s remarks and stated:
“So far as that is concerned, the applicant contends that the imposition of an automatic life sentence, pursuant to the then current Act was contrary to the Articles 3 and 5 of the Convention in that it was arbitrary to impose that sentence without any specific assessment of whether the accused is dangerous. Of course that is wholly wrong. The sentencing remarks just quoted clearly indicated the judge’s view as to the dangerousness of this particular applicant.
It is not the view of this Court that these automatic life sentences were obviously contrary to Article 3 or Article 5, the contentions are not supported by authority and are not supportable by authority and are not sustainable.
In any event, within the context of this case, as the Single Judge observed, a discretionary life sentence would not have been excessive in any event.”
The applicant applied to the Criminal Cases Review Commission for a review of his conviction and sentence. In a decision dated 29 November 2001, the CCRC found no grounds for referring his case to the Court of Appeal on either sentence or conviction.
The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows:
“(1) This section applies where -
(a) a person is convicted of a serious offence committed after the commencement of this section; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) The court shall impose a life sentence, that is to say -
(a) where the person is 21or over, a sentence of imprisonment for life; (b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982,
unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.
(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.”
Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape.
Sections 3 and 4 of the 1997 Act impose mandatory penalties of seven and three years for a third conviction on class A drug trafficking offences and domestic burglaries, respectively. Both sections oblige the court to impose the fixed sentence when the statutory conditions are fulfilled except:
“where the court is of the opinion that there are specific circumstances which --
(a) relate to any of the offences or to the offender; and
(b) would make the prescribed custodial sentence unjust in all the circumstances.”
In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act.
The appellants contended that section 2 was incompatible with, inter alia, Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence.
It considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention.


ITEMID: 001-114118
LANGUAGEISOCODE: ENG
RESPONDENT: MNE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: EPARHIJA BUDIMLJANSKO-NIKŠIĆKA AND OTHERS v. MONTENEGRO
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants are Eparhija Budimljansko-Nikšićka (“the first applicant”) with its seat in the monastery Đurđevi stupovi in Berane (“the second applicant”), monasteries Bijela from Šavnik (“the third applicant”), Podmalinsko from Šavnik (“the fourth applicant”), Dobrilovina from Mojkovac (“the fifth applicant”), Svete Trojice from Bijelo Polje (“the sixth applicant”), Svete Trojice from Plav (“the seventh applicant”), Piva from Plužine (“the eighth applicant”), Svetog Luke from Nikšić (“the ninth applicant”), Kosijerevo from Nikšić (“the tenth applicant”), as well as churches Sv. Vasilija Ostroškog from Nikšić (“the eleventh applicant”), and Svetog Apostola Petra i Pavla from Nikšić (“the twelfth applicant”), all part of the Serbian Orthodox Church in Montenegro. They were represented before the Court by Ms V. Mijanović, a lawyer practising in Nikšić.
2. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On unspecified dates immediately after World War II several plots of land were expropriated from the seventh and twelfth applicants, apparently in the absence of any decision to that effect.
5. On various dates in 1946 several plots of land were expropriated from the second, third, fourth, fifth, sixth, eighth, ninth, tenth and eleventh applicants by the relevant District Agricultural Commissions’ decisions (Sreska poljoprivredna komisija). These decisions would appear to have been upheld by the State Agrarian Court (Zemaljski agrarni sud).
6. On 18 March 2004 the applicants filed a request with the Government seeking restitution of the expropriated plots of land, relying on the Just Restitution Act 2002 (see paragraphs 16 and 18-19 below).
7. On 19 May 2004 the applicants urged the Government to decide on their request.
8. On 16 June 2004, not having received any response from the Government, the applicants initiated an administrative dispute (upravni spor) before the Supreme Court (Vrhovni sud) for “silence of administration”.
9. On 22 September 2005 the Administrative Court, which, in the meantime, had taken over the competencies of the Supreme Court in respect of administrative disputes (see paragraph 35-36 below), ruled against the applicants on the grounds that the Government had no jurisdiction to rule on their request.
10. On 24 October 2005 the Administrative Court decision was dispatched by regular post to the applicants’ representative in the domestic proceedings.
11. On 26 October 2005 the postman noted down that the applicants’ representative had moved from the address provided (preseljen sa date adrese).
12. On 2 October 2006 the Administrative Court noted that its judgment of 22 September 2005 could not be served on the applicants’ representative as he had changed his address, failing to inform the court of the new one. Pursuant to section 142 § 5 of the Civil Procedure Act, the court decided that all the relevant documents (sva pismena u ovom sporu) would be served on the applicants by posting the documents on the court’s notice board. Accordingly, the decision was posted on the notice board the same day and removed from it on 11 October 2006.
13. On 8 May 2003 the Constitutional Court declared a number of the core provisions of the Just Restitution Act 2002 unconstitutional including those relating to restitution in kind as well as the composition and the competencies of the Restitution Commission (see paragraphs 29-31 below).
14. The Just Restitution Act 2002 was never applied in practice. The Government have never enacted secondary legislation needed for its implementation and nor has the Restitution Commission, which was supposed to deal with restitution requests, or any other relevant body, ever been established.
15. On 8 April 2004 the Restitution of Expropriated Property Rights and Compensation Act entered into force, providing that the restitution of property to religious communities would be regulated by a separate law (see paragraphs 32-34 below).
16. Section 1 provided that restitution in kind should always be the rule and other forms of compensation, specified in section 12, “only the exception”, where restitution was not possible due to legal or factual reasons.
17. Section 3 §§ 2 and 3 provided that previous owners whose property rights had been taken away on the basis of, inter alia, a court judgment or a decision were also entitled to restitution.
18. Section 5 § 1(3) provided that de facto expropriations of property would be treated in the same manner as expropriations carried out on legal grounds.
19. Section 10 § 6 provided that religious organisations or communities (vjerska organizacija ili zajednica) could be beneficiaries of the right to restitution in the same manner as natural persons.
20. Section 11 § 1 provided that if the property had been taken on the basis of Republic regulations or by a Republic body action (radnjom), the debtor (obveznik restitucije) was the Republic of Montenegro. Section 11 § 3 provided that if the property subject to restitution was owned by a natural or legal person, the debtor was that person.
21. Section 12 provided that when the right to restitution could not be in kind, it could be exercised, inter alia, by providing other property of the same value or by compensation.
22. Section 33 § 1 provided that the Government of Montenegro would establish a Restitution Fund within 60 days as of the date of entry into force of the Act.
23. Section 36 § 1 provided that restitution requests would be dealt with by a Restitution Commission.
24. Section 39 prohibited the disposal of the property subject to restitution pursuant to the Act (zabranjen je promet) until the relevant restitution proceedings had been concluded.
25. Section 40 § 1 provided that the Government would enact a decree on regulations and the implementation of the Act within 60 days of the date of entry into force of the Act.
26. Section 40 § 2 further provided that these regulations would further define the modalities of the Act, including the establishing and functioning of the Restitution Commission and the Restitution Fund.
27. Section 40 § 3 provided that at least half of the members of the restitution commissions would be representatives of former owners.
28. The Act entered into force on 10 July 2002.
29. On 8 May 2003 the Constitutional Court established that a number of provisions of the Just Restitution Act 2002 were unconstitutional and that they should cease to have effect as of the date of publication of its decision.
30. The Constitutional Court held, inter alia, that restitution in kind would be in breach of existing property rights. Other unconstitutional provisions referred mostly to the composition and competencies of the Restitution Commission, and the limitations imposed by the Act on current owners of property subject to restitution. In particular, it was held that: (a) the Restitution Commission’s competence to decide on the restitution of property taken by virtue of final court judgments was contrary to the principle of separation of powers; (b) the prohibition imposed on current owners to dispose of their property which was subject to restitution proceedings until the relevant proceedings had been concluded, was contrary to the current owners’ property rights; and (c) the provision that previous owners could be members of the Restitution Commission was unacceptable because of their interest in the outcome of the proceedings.
31. The decision was published on 2 June 2003.
32. Sections 6 and 8 § 1 provide that natural persons, endowments and other non-profitable legal persons (zadužbine i druga nekomercijalna pravna lica) are entitled to restitution or compensation in accordance with this Act.
33. Section 8 § 2 provides that the conditions, method and the procedure for the restitution of property to religious communities will be regulated by a separate law.
34. The Act entered into force on 8 April 2004 thereby repealing the Just Restitution Act 2002.
35. Sections 23 and 24 provided that an Administrative Court would be set up for the territory of Montenegro, and that its competencies would include, inter alia, deciding in administrative disputes on the lawfulness of administrative decisions (o zakonitosti upravnih akata) and other individual decisions.
36. Section 132 provided that the Administrative Court would become operational by 31 December 2004.
37. Section 212 § 2 enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal with the appellate body as if his request had been refused. If the appeal is not allowed, the appellant can directly initiate an administrative dispute before the court with jurisdiction.
38. Section 127 § 1 provides that court documents (pismena) shall be delivered via the regular post, but may also be delivered by a designated court employee, an authorised legal person registered for delivery, directly in court or in another manner as provided for by this Act.
39. Section 133 § 1 provides, inter alia, that when a party has a representative (punomoćnika), all court documents will be served on the representative.
40. Section 135 § 1 provides that the delivery can be effected any day between 7 a.m. and 8 p.m. at the flat or at the business premises of the person on whom a document is to be served. If the delivery cannot be effected at the address and at the time provided for in paragraph 1 of this section it can be effected at any time and at any place.
41. Section 140 provides that if a registered person (subjektu upisanom u registar) cannot be served at the registered address, the documents will be posted on the court’s notice board. Eight days thereafter the delivery shall be deemed to have been fully effected.
42. Section 142 § 5 provides, inter alia, that if during the proceedings a party or his/her representative changes the address to which the documents should be delivered they are obliged to immediately inform the court thereof. If they fail to do so, the court will order that the documents be posted on the court’s notice board. The delivery shall be deemed to have been effected eight days after the document has been posted on the notice board.


ITEMID: 001-113777
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TSONYO TSONEV v. BULGARIA (No. 3)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1977 and lives in Gabrovo.
7. In a judgment of 20 September 1996, which became final on 5 October 1996, the Gabrovo District Court (Габровски районен съд) found the applicant guilty of an offence and sentenced him to ten months’ imprisonment. In 1996 the applicant spent ten months in prison in execution of that sentence.
8. In a judgment of 20 May 1999, which became final on 20 June 1999, the Gabrovo District Court found the applicant guilty of another offence and sentenced him to ten months’ imprisonment, suspended.
9. In a judgment of 14 November 2001, which became final on 22 October 2002, the Gabrovo District Court found the applicant guilty of yet another offence and sentenced him to eighteen months’ imprisonment (see Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, §§ 10, 14 and 17, 14 January 2010).
10. In late 2002 or early 2003 the applicant asked the Gabrovo District Court to combine the above sentences. On 14 February 2003 the court decided to combine the sentences imposed in 1996 and 1999 but not the one imposed in 2001. The resulting sentence, determined in line with the applicable sentencing rules, was ten months’ imprisonment. Applying a rule allowing the increase of the combined sentence by up to one half, and taking into account periods that the applicant had already spent in prison, the court ordered that the total amount of time which the applicant was to serve under the combined sentence should be thirteen months. He was to serve the eighteen months meted out in 2001 separately.
11. On an appeal by the applicant, on 3 April 2003 the Gabrovo Regional Court (Габровски окръжен съд) upheld that decision. On 3 February 2004 the Supreme Court of Cassation (Върховен касационен съд) refused to hear the applicant’s ensuing appeal on points of law, finding that no appeal lay against the Gabrovo Regional Court’s decision.
12. In the morning of 26 September 2000 it was discovered that a bag with medicines had been stolen from a pharmacy in Gabrovo the previous night. The police inspected the crime scene and took fingerprints, but the ensuing tests could not establish to whom they belonged.
13. The next day, 27 September 2000, police officer N.D., who was in charge of the area where the applicant resided, visited the applicant at his parents’ home, where he lived. The officer invited the applicant to the police station, where the applicant apparently confessed to stealing the bag. The applicant then took the officer back to his home and produced the bag. After that both of them went again to the police station, where a record was drawn up stating that the applicant had voluntarily surrendered the bag, explaining that he had found it near a kindergarten. When later testifying at the trial against him, the applicant said that he had voluntarily followed the officer to the station and had been aware that he could refuse to go there. After surrendering the bag, the applicant was charged and interviewed by an investigator. He said that he understood the charge, was aware of his right to counsel but chose not to have one, and would make a statement. He then went on to confess to stealing the bag. He also said that he had not been sure what to do with the medicines and had decided to surrender them to the police. He expressed regret for his actions.
14. In the following days the police investigator in charge of the case interviewed witnesses and gathered written and expert evidence. On 10 October 2000 he proposed that the applicant be brought to trial.
15. On 17 October 2000 the applicant was indicted. His trial took place on 25 June and 4 October 2001 and 18 and 21 January 2002 before the Gabrovo District Court. At the outset the court apprised the applicant of his right to counsel, but he said that he did not wish to have one. The court heard as witnesses the owner and an employee of the pharmacy, two police officers who had patrolled the area on the night of the theft, the applicant’s father and officer N.D. It also admitted in evidence, among other items, written statements by other officers who had patrolled the area, and the record stating that the applicant had surrendered the bag. The applicant initially objected to officer N.D. testifying on the ground that he had taken part in the investigation. However, noting from documents presented to him in the courtroom that this was not the case, he withdrew his objection and the court allowed officer N.D. to testify.
16. Officer N.D. said that, having learned about the theft, he had visited the applicant at his parents’ home and had invited him to go to the police station for “a conversation”, because the applicant’s name featured on a list of offenders who had previously committed thefts. During the conversation the applicant had confessed to committing the theft, specifying that he had done so to obtain money which he needed for his defence in other criminal cases against him, but not providing any details as to the manner in which he had gone about perpetrating the offence. He had also agreed to produce the stolen medicines, and, although at first asserting that they were not at his parents’ home, had later on admitted that they were there. He had then taken officer N.D. to his parents’ home and had produced the medicines. After that, the officer and the applicant had returned to the police station, where the applicant had signed a record to the effect that he was surrendering the medicines voluntarily. This had obviated the need formally to impound them.
17. In his closing speech the applicant pointed out, inter alia, that officer N.D. was employed by the criminal investigation department of the Gabrovo Police, and was in charge of the area in which the theft had taken place and where the applicant lived. He had thus been under pressure to identify the person who had committed the theft. His testimony was the only evidence linking the applicant to the commission of the offence.
18. On 21 January 2002 the Gabrovo District Court found the applicant guilty and sentenced him to two years and nine months’ imprisonment. It based its finding that the applicant had stolen the medicines chiefly on the testimony of officer N.D. It noted that that testimony was fully corroborated by the statements made by the applicant during his interview with the investigator, but added that it could not take those statements into account because they had not been given in the presence of a judge (see paragraph 36 below). The court went on to say that officer N.D.’s testimony was corroborated, albeit indirectly, by the statements of the officers who had patrolled the area around the pharmacy at the time when the theft had taken place.
19. In addition, the court of its own motion decided to combine the sentences imposed in 1996 and 1999 (see paragraphs 7 and 8 above). The resulting sentence, determined in line with the relevant sentencing rules, was ten months’ imprisonment. Applying a rule which allowed the combined sentence to be increased by up to one half, and taking into account the periods which the applicant had already spent in prison, the court ordered that the total amount of time which he was to serve under the combined sentence was thirteen months.
20. In its judgment the court noted that the applicant was unemployed and was financially dependent on his parents.
21. The applicant appealed to the Gabrovo Regional Court, arguing that it had not been proved that he had stolen the medicines, and, in the alternative, that his sentence was too harsh. He also said, without giving particulars, that the proceedings against him had been in breach of the rules of criminal procedure and of the Convention.
22. The court examined the case at four hearings. At the first two of those hearings it heard a number of witnesses. At the third, noting that a judge who had taken part in the first two hearings could not continue to sit in the case, the court decided to start hearing the case afresh.
23. At that third hearing, held on 11 March 2003, the applicant called two witnesses with a view to undermining officer N.D.’s credibility. The court acceded to his request over the prosecution’s objection. The first witness said that when investigating a theft of which he had been suspected by officer N.D. of committing, officer N.D. had threatened him that he would frame him in the same way in which he had framed the applicant. The second witness, detained in the same facility as the applicant, said that officer N.D., when arresting him in relation to other offences, had enquired whether he had been aware of any offences committed by the applicant. The tone of his voice had indicated that he bore a personal animosity towards the applicant and wished to frame him. After that the court heard officer N.D., who repeated his account of the events of 27 September 2000. He additionally said that he knew the witnesses called by the applicant, who were either suspected of criminal offences or had previous convictions, and that their statements were not truthful. The court organised a confrontation between them and officer N.D. All three reiterated their positions. Officer N.D. was then crossexamined by the applicant.
24. At the close of the hearing the applicant, saying that he could not afford to retain counsel, asked the court to appoint one for him. The prosecution objected, observing that the applicant had not made such a request during the preliminary investigation and before the firstinstance court. The applicant retorted that he had changed his mind. The court, relying on a declaration about the applicant’s financial situation, decided to appoint counsel for him under Article 70 § 1 (7) of the Code of Criminal Procedure 1974 (see paragraph 37 below).
25. At the last hearing, held on 8 April 2003, the court once again heard officer N.D. It also heard the parties’ closing arguments. The applicant pointed out that the only evidence linking him to the commission of the offence was the officer’s testimony, which was highly suspect and could be the result of collusion between him and the prosecution. Moreover, the officer bore a personal animosity towards him because he had dealt with him on many previous occasions.
26. On 18 April 2003 the Gabrovo Regional Court upheld the applicant’s conviction and sentence. It agreed with the lower court’s findings of fact, but observed that it had erred in even mentioning the statement made by the applicant during his interview with the investigator – this was not admissible evidence. However, there was other evidence showing that the applicant had committed the theft. This was, in the first place, officer N.D.’s testimony, which was coherent and reliable. The court analysed in detail the challenge to officer N.D.’s credibility and concluded that it could not be thrown into doubt by the statements of the two witnesses called by the applicant. It also observed that officer N.D.’s testimony was corroborated by indirect evidence, such as the record of voluntary surrender signed by the applicant. After that the court gave detailed reasons why it did not believe the statements of the two witnesses who had purported to provide an alibi for the applicant and the testimony of the applicant’s father.
27. The court additionally dealt with the question of the combination of the sentences imposed in 1996 and 1999 (see paragraphs 7 and 8 above), and upheld the lower court’s ruling on that point.
28. The applicant appealed on points of law. In a twelvepage additional brief he argued that the lower courts had erred in assessing the evidence. In particular, they had lent too much credence to officer N.D.’s testimony, which was not supported by other evidence, was unspecific, hearsay, based on an informal conversation which had taken place before the institution of criminal proceedings against the applicant, and had been possibly due to officer N.D.’s personal animosity towards the applicant. The lower courts had also failed to analyse properly the testimony of the witnesses called by the applicant. The applicant went on to argue that the lower courts had incorrectly combined his earlier sentences. Lastly, he asked the court to reduce his sentence with a view to providing reparation for the excessive length of the proceedings against him. The brief, although signed by the applicant, gave the impression of having been drafted by a lawyer: it used terms of art, contained numerous citations of caselaw and referred to the applicant in the third person.
29. On 3 February 2004 the applicant asked the Supreme Court of Cassation to appoint counsel for him. Referring to Article 70 § 1 (7) of the Code of Criminal Procedure 1974 (see paragraph 37 below), he pointed out that he did not have the means to retain one because he was unemployed, that he risked imprisonment, and that he was unable to conduct effectively his defence in person.
30. The Supreme Court of Cassation heard the appeal on 13 February 2004. The hearing was not attended by the applicant, but was attended by a public prosecutor. The prosecutor opposed the applicant’s request for the appointment of counsel, saying that this was not mandatory. The court turned the applicant’s request down. It said that the applicant had not pointed out why he had been unable to retain counsel, that he had had a courtappointed counsel in the proceedings before the lower court, and that the manner in which his appeal on points of law had been drafted made it clear that it had been prepared with the help of a qualified lawyer. After that, the court heard the prosecutor, who submitted that the applicant’s appeal should be dismissed.
31. On 9 March 2004 (реш. № 98 от 9 март 2004 г. по н. д. № 707/2003 г., ВКС, І н. о.) the Supreme Court of Cassation upheld all parts of the lower court’s judgment save the part in which it had confirmed the increase of the applicant’s combined earlier sentence to thirteen months. It found that there had been no grounds to increase that sentence from ten to thirteen months, because the applicant had served it as early as 1996 and an increase would not further the aims of the punishment. As for the merits of the criminal case against the applicant, the court observed that, in the absence of breaches of procedural rules on the part of the lower courts, it was not competent to deal with arguments concerning the assessment of evidence and those courts’ findings of fact. There was no appearance of a breach of the rules of procedure and no error in the application of the substantive law. The applicant’s arguments concerning the establishment of the facts had been rejected by the lower courts after careful consideration of all the evidence. The appellate court had allowed the applicant to call witnesses and had reexamined officer N.D. The claim that it had failed to examine the case with due care was therefore illfounded. The lower courts’ findings of fact were based on evidence which had been properly admitted and assessed.
32. Article 91 §§ 1 and 2 of the Code of Criminal Procedure 1974, superseded on 29 April 2006 by Article 116 §§ 1 and 2 of the Code of Criminal Procedure 2005, provided that a conviction could not rest solely on the confession of the accused, and that a confession did not relieve the authorities of their duty to gather other evidence.
33. The accused may refuse to give explanations (Article 87 § 3 of the 1974 Code and Articles 55 § 1 and 115 § 4 of 2005 Code). Witnesses may also refuse to make statements or give answers that would incriminate them (Article 96 § 1 of the 1974 Code and Article 121 § 1 of 2005 Code). Unlike the 1974 Code, which was silent on the point, the 2005 Code specifically provides, in Article 122 § 2, that witnesses have the right to consult a lawyer if they consider that by answering a question they may incriminate themselves.
34. Article 93 § 1 of the 1974 Code provided that a person who had taken part in the proceedings in another capacity could not be a witness. An exception was made for former accused, private prosecutors, civil claimants, civil defendants, and persons who had attested the carrying out of investigative steps (поемни лица). Article 118 § 1 of the 2005 Code maintained the same position. Its paragraph 2 specifies that the bar also applies to persons who have carried out investigative actions or conducted trial proceedings even if the records of those proceedings have not been drawn up in line with the Code’s requirements.
35. Article 73 § 1 of the 1974 Code, as amended in 1990, provided that counsel for the accused was entitled to take part in the proceedings from the point when the accused had been arrested or charged. Article 73 § 2, as amended in 1990, provided that the authorities had to explain to the accused that he or she was entitled to the assistance of counsel, and to give him or her the opportunity to contact a counsel. It went on to specify that the authorities could not take any investigative steps until they had done so. Article 97 §§ 1 and 2 of the 2005 Code maintained the same position, with slightly different wording.
36. Following an amendment that came into force on 1 January 2000, Article 277 § 1 of the 1974 Code allowed the admission in evidence of statements made by the accused during interrogation in the course of the pretrial investigation only if the interrogation had taken place in the presence of a judge. Article 279 § 1 of the 2005 Code kept the same rule, but paragraphs 2 and 3 of that Article allow for exceptions in certain circumstances, with paragraph 4 adding the proviso that a conviction cannot be based solely on statements not made before a judge.
37. Points (1) to (6) of Article 70 § 1 of the 1974 Code listed certain situations in which an accused who could not retain counsel had to be provided with courtappointed counsel. None of these is relevant to the present case. On 1 January 2000 a new point 7 was added. It was part of a comprehensive overhaul of the Code intended to bring it into line with the Convention. It was based on Article 6 § 3 (c) of the Convention, and provided that the appointment of counsel was mandatory if the accused could not afford one but wished to be legally represented and the interests of justice so required. The text of Article 94 § 1 (9) of the 2005 Code matches exactly that of Article 70 § 1 (7) of the 1974 Code.
38. Article 94 § 1 (7) of the 2005 Code, as originally enacted, provided that the participation of counsel in the proceedings before the Supreme Court of Cassation was compulsory in all cases, with the result that counsel had to be appointed if not retained by the accused (Article 94 §§ 2 and 3). However, in November 2009 the Government laid before Parliament a bill for the amendment of the Code, which proposed, among other things, the repeal of that provision. The explanatory notes to the bill stated that the system of mandatory appointment of counsel before the Supreme Court of Cassation in all cases without exception had proved ineffective and that the accused did not show any great interest in it. Moreover, Article 94 § 1 (7) often coincided with other grounds for the mandatory appointment of counsel, for instance those predicating such appointment on the subject matter of the case or the situation of the accused. Parliament enacted the bill in April 2010 and it became law on 28 May 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c