ITEMID: 001-85308
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF STOICA v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;No violation of Art. 13;Violation of Art. 14+3;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1987 and lives in Gulia, a village with an 80% Roma population in the commune of Dolhasca, Suceava county.
6. On 3 April 2001 the deputy mayor, four police officers from the Dolhasca Police Force and their chief, six public guards from Dolhasca and a driver, left in three cars to enforce a by-law against owners whose cattle were grazing on public pasture. Three of the public guards were wearing black uniforms with hoods and carrying truncheons. At around 8 pm, on their way back to Dolhasca Police Station, they entered C.C.’s bar in Gulia to check the owner’s documents. A conflict arose between the authorities and the 2030 Roma gathered in front of the bar. The parties’ submissions differ as to the sequence of events.
7. F.L., a villager of Roma origin, was just leaving the bar as the police entered. Sergeant D.T. asked him whether he was a “Gypsy (ţigan) or Romanian”. When F.L. answered that he was a Gypsy, the deputy mayor asked the police officers and the public guards to teach him and the other Roma “a lesson”. The police and public guards started beating F.L. and other Roma who happened to be in the vicinity of the bar.
8. The applicant, who had just bought something from a nearby shop, ran away with other children, but was tripped up by D.T. who started beating, kicking and hitting him on the back of his head and pushed him into a ditch. The applicant told D.T. that he had just undergone head surgery and that the beating could endanger his life. D.T. continued beating him until the applicant lost consciousness. Several persons, including the applicant’s schoolmates witnessed the incident. The deputy mayor and police officers were heard shouting racist remarks.
9. The officials left the premises, leaving the applicant unconscious on the ground. A.S., V.D. and I.C., witnesses to the incident, carried him to his parents’ home.
10. The deputy mayor entered C.C.’s bar with a police officer and complained about the insalubrious conditions in the premises and that C.C. allowed people to drink excessively.
11. C.C. asked his customers to leave the bar. During the discussions with the authorities, C.C. and his wife urged their customers, who were gathered in front of the bar, to antagonise the officials. The customers became aggressive. The police officers surrounded the deputy mayor in order to protect him. The officials returned quickly to their cars and left the premises immediately. The deputy mayor’s car, which was the last to leave, was attacked by the locals with bats.
12. On the evening of 3 April 2001 the applicant was taken by his parents to Sfânta Maria Hospital in Iaşi.
13. On 6 April 2001 he was examined by a doctor from the Iaşi Forensic Institute. The certificate issued recorded the following:
“- On the exterior upper side of the left elbow: a discontinuous excoriation of 1,2x1 cm with red haematic crust.
- The space between the scapula and the vertebras: purple transversal linear ecchymoses, ranging from 9x3,2 cm to 5,52x2,8 cm, two on the right side, one on the left side.
- On the exterior side of the right arm: one red transversal linear ecchymosis of 5,5x2 cm.
- The subject states that he is experiencing pain in the right parietal epicranius but there are no visible exterior posttraumatic lesions...
Conclusion
Stoica Constantin presents with ecchymoses, thoracic concussion and excoriation, inflicted by a linear blunt instrument, which could date from 3 April 2001.
He needs three to five days of medical care to recover.”
14. With regard to his medical history, the applicant was diagnosed with brain disease and was operated upon on 20 December 1999. On 12 April 2001, the Commission for the Protection of Handicapped Persons established that he had a first-degree disability which required permanent supervision and a personal assistant.
15. On 4 April 2001, the 3 April incidents between the Roma and the authorities were discussed in the Mayor’s office with representatives of the Prefect’s Office, the Government and the Roma Party. Several persons gave evidence, including the applicant’s mother and eyewitnesses. On 5 April 2001 a report was sent to the Suceava Police Inspectorate (“the Suceava Police”).
16. On 9 April 2001 the Romani CRISS, acting on behalf of the applicant, asked the commander of the Suceava Police to open criminal investigations into the incidents. The same day, they expressed their concern to the Prefect about the racist motivation behind the incidents.
17. On 18 April 2001 the Prefect informed the Romani CRISS that the Mayor’s investigation of 4 April, in which his representative had also taken part, had excluded the possibility of any racist motivation being behind these incidents.
18. On 18 April 2001 the applicant’s father lodged, on behalf of his son, a criminal complaint with the Bacău Military Prosecutor, against D.T., the other police officers and the deputy mayor.
19. On 5 June 2001 the Ombudsman, informed of the events by Romani CRISS, requested the opening of investigations by the Suceava Police, the Bacău Military Prosecutor, the Suceava Child Protection Agency and Suceava County Council and asked for compensation and aid for the applicant’s family.
20. On 20 August 2001 the Suceava Child Protection Agency informed the Ombudsman that conciliation proceedings had been started and that 2,000,000 old Romanian lei (ROL) had been awarded to the applicant’s family in aid for assistance in the psychological and medical recovery of the applicant.
21. On 29 May 2001 the Romani CRISS filed a criminal complaint with the Bacău Military Prosecutor against D.T. and the other persons allegedly responsible for the incidents, accusing them of abusive behaviour.
22. The Suceava Police, hierarchically superior to Dolhasca Police Force, started the investigations into the case.
23. On 7 May 2001 evidence was heard from villagers D.D. and F.L., eyewitnesses, F.S., the applicant’s mother and A.S., the father of another alleged victim.
They stated that either police officers or public guards had tripped up and then beaten the applicant.
24. Two police officers and the deputy mayor gave evidence on 8 May 2001. They stated that C.C. criticised the deputy mayor, alleging that he had won Roma votes by making false promises which he had reneged upon when elected. These words had roused the Roma gathered in front of the bar to protest against the officials, to insult them in Romani and to attack their cars as they were leaving. They stated that no villager had been beaten by any of the police officers and public guards that night and that all the officials had left the premises in a hurry by car.
25. Villager L.D. testified the same day that he had seen D.T. beating the applicant on his back and chest and that the officer had stopped when he had seen the witness approaching.
26. On 16 May 2001, the police heard evidence from the applicant. He reiterated that he had been tripped up and had fallen and that D.T. had punched him in the stomach, kicked him in the back and beaten him with a truncheon.
27. Giving evidence on the same day D.T. denied that he had beaten the applicant, declared that he had not even been carrying his truncheon that day and gave the same version of the facts as the other police and public guards.
28. Two police officers and four passers-by gave evidence that day, all stating that no violence had been used by the authorities.
29. On 1 June 2001 the Suceava Police sent its final report to the Bacău Military Prosecutor. It proposed not to press charges against the accused persons.
30. On 11 June 2001 the Suceava Police informed the Ombudsman and the Romani CRISS that the proceedings concerning the accusations of abusive behaviour against sergeant D.T. were pending, and that the final decision would be taken by the Military Prosecutor’s Office.
On 11 July 2001 the Suceava Police informed the Ombudsman that the case had been sent to the Bacău Military Prosecutor with recommendation not to press charges.
31. On 20, 21 and 31 August, 3 and 13 September 2001 the prosecutor heard evidence from several persons: C.C., the owner of the pub, and E.C., his wife, the applicant, his father, D.S., and mother, D.F., four villagers who had witnessed the conflict, the deputy mayor (twice), the eleven police officers and guards, including D.T. and four passers-by. All of them maintained the version of events they had given to the Suceava Police. The Roma involved contended, mainly, that they had seen the police officers and public guards using violence against some of the Roma children present while the officials denied the allegations. The passers-by supported the authorities’ version. The school principal and the head of the Roma Party stated that the Roma refused to send their children to school after the incidents, for fear of reprisal.
32. C.C. stated the following:
“20 to 30 Roma armed with bats, axes etc. gathered around the three cars. I yelled at the deputy mayor: ‘We voted for you in the elections and now you come to kill our people!’ As the situation became tenser ... I yelled at the Roma present not to come close to the three cars and then I sought to protect the deputy mayor and the other officials until they got into their cars and left for Dolhasca.
The cars were not hit, but Roma were insulting the occupants of the cars until they left. I did not see any Roma getting beaten that evening by the police or public guards, but I heard later that D.S.’s son (the applicant) had been beaten by the police officers...
While I was present, none of the police officers or public guards hit, insulted or threatened the Roma. It is not true that the conflict that evening was of a racial nature...”
33. His wife, E.C., confirmed his statements.
34. The applicant’s father stated in particular that:
“Scared of what was happening in front of the pub ... my son came out [of the store] and started running home, but a public guard tripped him up and then Sergeant D.T. savagely beat him...
My son ... ran home on the evening of 3 April 2001, out of fear, although he knew that he was not allowed to run [due to his medical condition].”
35. The applicant declared that:
“Seeing what was happening, I got scared and started running home. After 4-5 steps, the police officer D.T. tripped me up, so I fell to the ground.
After I fell I saw that officer D.T. wanted to hit my head with a truncheon, so I told him ‘don’t hit my head, I have had head surgery’. He did not listen and hit me several times with the truncheon and with his fists and kicked me all over my body, on my back and chest.”
36. On 23 August 2001 the Suceava Police informed the military prosecutor that the Dolhasca police officers had not filed a report in order to have criminal investigations started against the Roma for insulting behaviour, for the following reason:
“[T]he way in which some of the Roma acted is pure Gypsy behaviour (pur ţigănesc) and does not constitute the crime of insulting behaviour.”
37. On 2 October 2001 the Bacău Military Prosecutor decided not to prosecute, as the evidence did not confirm the alleged violence against the applicant. The relevant parts of his decision state as follows:
“At a certain point, bothered by the [deputy mayor’s] criticism, C.C. became verbally aggressive, complaining to the deputy mayor about certain aspects of his professional activity. C.C. came out of his bar and, speaking in Romani, incited the twenty-thirty Roma there present against the two officials [the deputy mayor and one of the police officers who accompanied him].
Considering that the situation was likely to degenerate, as the Roma were becoming extremely aggressive and violent, and as they were armed with blunt objects, the police officers surrounded the deputy mayor to protect him, then they got into their cars and left in a hurry towards the centre of Dolhasca.
The Roma nationals (cetăţeni) attacked the last vehicle, where the deputy mayor was seated, with blunt objects, but no damage was caused since the vehicle was already leaving the area.
C.C. declared that he had not seen any Roma being beaten by the police that evening.
He also denied that the incidents amounted to racial conflict. His statement corroborates those of the police officers and public guards [who testified in the case].
Eyewitness statements in support of the applicant shall be disregarded as unreliable in so far as the evidence in the file shows that these persons arrived at the scene of the incidents after the three cars had left.
Moreover these witnesses’ statements are contradictory and do not corroborate the statements made by [the applicant and his father] who alleged that [the applicant] had been punched, kicked and beaten with the truncheon all over his body, including on his head...
This conclusion tallies with the medical certificate in the file...
The [applicant’s] witnesses’ statements show that when the incident started [the applicant] ran home, against the medical recommendations that had been made to him...”
It also considered that C.C.’s statements, supported by those given by the police officers and public guards, confirmed that the conflict had not been racially motivated.
38. On 3 October the military prosecutor informed Romani CRISS of its decision, stating that “the evidence gathered showed that the applicant was not injured, insulted or threatened by the police officers”.
39. The applicant’s mother and Romani CRISS contested the conclusion reached in the investigations.
40. On 14 May 2002 the prosecutor’s decision was confirmed by the Military Prosecutor’s Office attached to the Supreme Court of Justice, on the ground that the case indicated that no violence had been inflicted on persons of Roma origin.
41. On 19 February 2002 the applicant’s father asked Romani CRISS to file a complaint with the competent authorities about some incidents that had occurred during the investigations. He alleged that, on 3 September 2001 the military prosecutor who had dealt with the case had tried to intimidate witnesses and physically assaulted the Romani CRISS representative. Consequently, some witnesses had refused to testify. Moreover, he claimed that members of the police were trying to persuade them to give up their complaints by harassing the family. On 7 December 2001 a police patrol had come to the applicant’s house at around midnight but had left when told that the applicant’s father was not home. In February 2002 D.T. had allegedly threatened and punched the applicant’s grandfather.
42. On 19 February 2002 Romani CRISS forwarded the complaint to the Suceava Police, which dismissed it as unsubstantiated on 20 March 2002.
43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor Ruler are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007) and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004).
44. The relevant provisions of the Criminal and Civil Codes concerning the means of obtaining compensation for alleged ill-treatment are set out in Kalanyos and Others v. Romania ((dec.), no. 57884/00, 19 May 2005).
45. In the same decision, as well as in paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004).
VIOLATED_ARTICLES: 14
3
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-110186
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF RICCARDI v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 7. The applicant was born in 1956 and lives in TârguMureş, Romania.
8. On 19 October 2001 criminal proceedings were initiated against the applicant and other third parties in respect of embezzlement, forgery of accountancy papers and tax evasion offences that had allegedly been committed by him in his capacity as director of the limited liability company R. On the same day he was placed in police custody for twentyfour hours on the basis of Article 148 (c) and (h) of the Romanian Code of Criminal Procedure (“the CCP”) on the ground that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged, that he was a danger to public order, that the offences with which he had been charged were punishable by more than two years’ imprisonment, and that he was preparing to abscond.
9. On 20 October 2001 the TârguMureş Prosecutor’s Office issued an arrest warrant on the basis of Article 148 (h) of the CCP and the applicant was placed in pretrial detention for thirty days on the ground that the offences with which he had been charged were punishable by more than two years’ imprisonment and that he was preparing to abscond.
10. On 18 February 2002 the applicant and the third parties were indicted to stand trial on the abovementioned charges. They continued to remain in pretrial detention.
11. The applicant’s pretrial detention was extended repeatedly by final interlocutory judgments of the TârguMureş County Court. The court confirmed the legality of the detention on the ground that the reasons provided for by Article 148 (h) of the CCP which had justified the applicant’s initial detention remained valid, did not breach his right of presumption of innocence and that the length of proceedings depended on the complexity of the case. Therefore it dismissed the applicant’s repeated arguments that he was not a danger to public order, that his pretrial detention could be replaced by alternative measures and that the length of his detention and of the overall proceedings was excessive. The domestic courts did not provide any other explanation for the extension of the applicant’s pretrial detention. Moreover, the eight hearings held between March 2002 and April 2003 were repeatedly adjourned, inter alia, in order to allow all the suspects to employ the services of a lawyer, for witnesses to be heard, the summoning of various parties to the proceedings, the submission of technical and medical expert reports and the examination of the transfer of the file to another court as a result of the applicant’s request.
12. By the interlocutory judgment of 20 May 2003 the TârguMureş County Court, having regard to the length of the pretrial detention, the applicant’s complaint concerning his state of health and his medical condition, the facts of the case and the evidence submitted by the parties, ordered the release of the applicant. The court also ordered the applicant not to leave town without the court’s consent pending the outcome of the criminal investigation. Lastly, the court adjourned the hearing until 17 June 2003 for procedural reasons. The TârguMureş Prosecutor’s Office appealed against the decision.
13. By a final interlocutory judgment of 23 May 2003 the TârguMureş Court of Appeal allowed the appeal of the Prosecutor’s Office on the ground that according to the medical expert reports the applicant’s health problems could be treated in prison hospitals and that the initial reasons justifying his detention were still valid. Consequently, the court ordered the applicant’s pretrial detention to be extended from 26 May to 24 June 2003.
14. By an interlocutory judgment of 17 June 2003 the TârguMureş County Court, sitting as a twojudge bench, again extended the applicant’s pretrial detention from 25 June to 24 July 2003. The court held that the applicant’s detention was still justified under Article 148 (h) of the CCP. Moreover, the court could not be held responsible for the length of proceedings given the complexity of the case, the large amount of evidence submitted by the parties and the difficulties it faced in summoning the witnesses living in other cities. Lastly, the court adjourned the hearing for procedural reasons and ordered a technical expert report to be drafted. The applicant appealed against the decision.
15. By a final interlocutory judgement of 2 July 2003 the TârguMureş Court of Appeal allowed the applicant’s appeal, quashed the interlocutory judgment of 17 June 2003 in part and ordered the lower court to reexamine the matter of extending the applicant’s pretrial detention. The court held that the decision had been taken by two judges despite the applicable procedural rules requiring that this be done by a single judge. The court did not address the issue of the applicant’s release despite this having been requested by the applicant.
16. By an interlocutory judgment of 4 July 2003 the TârguMureş County Court extended the applicant’s pretrial detention to 23 July 2003 on the ground that the reasons justifying his initial detention were still valid. It also dismissed the applicant’s claim that his pretrial detention had ceased to be lawful after the final interlocutory judgment of 2 July 2003. It held that the said interlocutory judgment had mainly concerned the composition of the bench which had examined the merits of the judgment and considered, in terms of the lawfulness of the applicant’s detention, that the conditions set out by Article 160c of the CCP had been met. Moreover, the extension of the applicant’s pretrial detention had been lawful since it had been the will of both judges. The applicant appealed against the decision.
17. By a final interlocutory judgment of 7 July 2003 the TârguMureş Court of Appeal dismissed the applicant’s appeal and upheld the decision of 4 July 2003.
18. By an interlocutory judgment of 23 July 2003 the TârguMureş County Court rejected the request of the Prosecutor’s Office for the extension of the applicant’s pretrial detention and ordered the applicant’s immediate release. The court held that following the judgment of 2 July 2003 the applicant’s detention from 25 June 2003 had been unlawful in so far as the authorities had not extended the arrest warrant which had expired on 24 June 2003. Moreover, the present decision was not in breach of the res judicata principle in respect of the final decision of 4 July 2003 since the current decision, among others, did not touch on the merits of the case, but only assessed the lawfulness of the detention, and the decision of 4 July had interfered with the applicant’s procedural rights. The Prosecutor’s Office appealed.
19. By a final interlocutory judgment of 23 July 2003 the TârguMureş Court of Appeal allowed the appeal of the Prosecutor’s Office. It held that the County Court’s judgment of 23 July 2003 interfered with the legal principle of res judicata. Consequently it quashed the decision and ordered the extension of the applicant’s pretrial detention on the general ground that he was a danger to public order and that the reasons justifying his initial detention, including the ground provided for by Article 148 (c) of the CCP, were still valid.
20. Between 19 August 2003 and 19 April 2004 the applicant’s pretrial detention continued to be extended by final interlocutory judgments of the domestic courts generally on the basis of the provisions of Article 148 (h) of the CCP, while his complaints concerning the length of his pretrial detention and of the proceedings as a whole were dismissed generally for the reason that the case was complex. Furthermore, no additional reasons or explanations were provided by the courts in respect of the applicant’s personal situation and his repeated claims that his pretrial detention following the judgment of 2 July 2003 was illegal were dismissed as res judicata. Finally, the hearings were repeatedly adjourned, inter alia, in order to allow for witnesses and parties to the proceedings to be heard or resummoned and for the submission of technical expert reports.
21. By an interlocutory judgment of 12 May 2004 the TârguMureş County Court assessed the lawfulness of the applicant’s detention and ordered his immediate release. The court held that the applicant’s detention between 20 October 2001 and 24 June 2003 had been unlawful in so far as the arrest warrant had been issued by a prosecutor who was not a “magistrate” within the meaning of the European Convention on Human Rights (ECHR) and who had not clearly established the charges against the applicant. The prosecutor had also failed to hear the applicant prior to his detention or to provide reasons for his detention and had failed to immediately bring him before a judge following his arrest. At the same time, it considered that the assessment of lawfulness carried out by the domestic courts following the applicant’s arrest could not have remedied the abovementioned failures. Furthermore, it held that the applicant’s pretrial detention between 25 June and 4 July 2003 had also been unlawful in so far as following the final judgment of 2 July 2003 the applicant’s arrest had not been based on any express or valid court order. It considered that the previous decisions delivered by the domestic courts in respect of the same issue were not res judicata, because the said principle did not apply to issues such as the applicant’s detention which were separate from the merits of the case concerning the existence of the offence and the guilt of the accused. Moreover, it considered that its argument flowed from the provisions of the domestic procedural law which required courts to regularly assess the lawfulness of pretrial detention even if other domestic courts had previously delivered final judgments in respect of the same issue and to revoke ex officio the measure if it had been rendered unlawfully. The court further held that the applicant’s detention after 4 July 2003 had also been unlawful on the ground that the judgment of 4 July 2003 could not simply extend his pretrial detention which had started on 20 October 2001 since the applicant had not been lawfully detained at the time. In so far as the judgment could be perceived as a new detention order, the court considered that the legal conditions for such an order had not been met: there were no new grounds for the applicant’s detention, the court had not provided any reasons for it, no new detention order had been issued and the transcript of the applicant’s evidence given to the court in respect of his detention had been missing from the file. Finally, the court held that in any event the extension of the applicant’s pretrial detention could no longer be justified. There was no evidence that the applicant was a danger to public order or that his release would interfere with the criminal investigation and his continuous pretrial detention of two years and seven months was excessive and did not comply with the guarantees set out by Article 5 of the ECHR. The court also adjourned the hearing on procedural grounds and ordered the resummoning of some of the witnesses. The Prosecutor’s Office appealed against the decision.
22. By an interlocutory judgment of 16 June 2004 the TârguMureş Court of Appeal adjourned the appeal proceedings against the interlocutory judgment of 12 May 2004 for twentyfour hours on the ground that the applicant had not been summoned and ordered his summoning.
23. By an interlocutory judgment of 17 June 2004 the TârguMureş Court of Appeal, in the absence of the applicant, who had been summoned, but in the presence of his chosen lawyer, suspended the appeal proceedings against the interlocutory judgment of 12 May 2004 pending the referral of an objection of unconstitutionality raised by the applicant’s lawyer to the Constitutional Court in respect of Article 38511 (3) of the CCP. Relying on the provisions of Article 303 (6), 3002 and 160b of the CCP the court reviewed and maintained the applicant’s pretrial detention. Consequently, it dismissed the applicant’s request for an end to his detention. He had based his request on the argument that after 16 June 2004 his pretrial detention had no longer had a legal basis, since the sixtyday timelimit for assessing the lawfulness of detention provided for by the Constitution and the CCP had lapsed.
24. By a final interlocutory judgment of 13 August 2004 the TârguMureş Court of Appeal reviewed and maintained the applicant’s pretrial detention on the ground that the reasons justifying the applicant’s initial detention were still valid.
25. By an interlocutory judgment of 27 August 2004 the TârguMureş County Court ordered the applicant’s immediate release. It held that the argument of the Prosecutor’s Office that the applicant’s pretrial detention was justified by the applicant’s preparation to abscond (Article 148 (c)) had already been dismissed by the domestic courts on 7 March 2002 and that there was no new relevant evidence to rebut that finding. Moreover it held that there was no evidence that the applicant was a danger to public order and that two years and ten months was an unreasonable length of time for the proceedings. At the same time the court adjourned the hearing for procedural reasons. The TârguMureş Prosecutor’s Office appealed.
26. By a final interlocutory judgment of 30 August 2004 the TârguMureş Court of Appeal dismissed the appeal and upheld the judgment of 27 August 2004. The applicant was released the same day.
27. In October 2004 the Constitutional Court dismissed the objection of unconstitutionality raised by the applicant’s lawyer at the hearing of 17 June 2004 on the ground that the legal provision contested by the applicant was in compliance with the Constitution.
28. By a final interlocutory judgment of 8 December 2004 the TârguMureş Court of Appeal dismissed the Prosecutor Office’s appeal against the interlocutory judgment of 12 May 2004 as moot on the ground that the applicant had already been released.
29. The thirtyone hearings held by the TârguMureş County Court between 24 September 2004 and 2 February 2009 were repeatedly adjourned, inter alia, in order to allow for more witnesses to be heard, the summoning of various parties to the proceedings, the resummoning of some of the witnesses, the submission of technical expert reports and the examination of some of the judges’ requests to withdraw from the proceedings.
30. On an unspecified date in 2008 the applicant was arrested in Italy. He refused to take part via video link in the hearing of 2 February 2009 concerning the criminal proceedings brought against him in Romania and pending before the domestic courts.
31. By an interlocutory judgment of 6 March 2009 the TârguMureş County Court decided to separate the proceedings concerning the applicant from the proceedings concerning the other co-accused and ordered the applicant’s temporary transfer from Italy to be arranged.
32. The proceedings brought against the applicant are still pending before the firstinstance court.
33. In January 2002, following an episode of depression, the applicant underwent a psychiatric examination. The panel of experts concluded that the applicant’s condition was a “situational reaction” and that he could be treated in detention in Bucharest Prison Hospital which was equipped with a psychiatric unit.
34. The two psychiatrists on the panel of experts expressed a dissenting opinion. They concluded that the applicant should be treated in a civilian psychiatric hospital because psychotherapy sessions could not be properly provided in detention owing to the “lack of privacy”.
35. There is no evidence in the applicant’s medical file to show that he spent time in hospital for psychiatric treatment or that he continued to have similar problems afterwards.
36. The applicant also informed the Court that he had been kept in solitary confinement and that from the end of 2003 he had been under the same detention regime as dangerous detainees, which meant that he had been under constant supervision. His allegations are contradicted by a letter of 13 November 2003 sent by the TârguMureş Prison authorities to the domestic courts from which it can be seen that the applicant was not classified as a “dangerous detainee”.
37. According to the applicant’s medical records, he was diagnosed with chronic uveitis in his left eye in May 2002.
38. A medical expert report drafted in February 2003 concluded that the applicant’s situation required surgery and postsurgery treatment in a specialised hospital, specifically the RahovaBucharest Prison Hospital. However, his state of health was not incompatible with his detention.
39. The applicant did not undergo the surgery. However, he did not complain about the lack of medical treatment before the domestic courts under Article 3 of the Government Emergency Ordinance no. 56/2003 (GEO 56/2003) concerning the rights of individuals serving prison sentences.
40. After his release from prison on 30 August 2004 the applicant underwent cataract surgery in Italy.
41. The relevant parts of Emergency Ordinance no. 56/2003 on the rights of prisoners, adopted by the Government on 25 June 2003 read as follows:
“(2) Prisoners may complain about measures taken by prison authorities (...)
(5) In examining a complaint, the court takes one of the following decisions:
(a) allows the action and orders the annulment, revocation or change of the measure taken by the penitentiary authority;
(b) dismisses the action if it is ill-founded.”
42. The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide:
“In cases concerning offences which are punishable by a prison sentence, and in order to ensure the proper conduct of the criminal trial and prevent the suspect or accused from evading criminal proceedings ..., one of the following preventive measures may be taken against him or her:
(...)
(c) pre-trial detention.
The measure provided for in (c) may be ordered by the prosecutor or by a court.”
“The legal instrument by which an interim measure is adopted must list the facts which gave rise to the charges, their legal basis, the sentence provided for in the legislation concerning the offence in question and the specific reasons which determined the adoption of the interim measure.”
“An interlocutory judgment delivered by a first-instance court ordering, revoking (...) a preventive measure can be separately appealed (recurată) against by the accused or the prosecutor (...)
The appeal (recurs) lodged against an interlocutory judgment ordering a preventive measure to be taken does not suspend its enforcement.”
“The authority responsible for criminal proceedings may detain a person in police custody if there is cogent direct or indirect evidence that he or she has committed an offence prohibited by the criminal law.
(...)
Cogent evidence exists where, in alleged offences.”
“Where the requirements of Article 143 are met, and in one of the cases provided for in Article 148, the prosecutor may, of his or her own motion or at the request of the prosecuting authority, order that the suspect be placed in pre-trial detention by a reasoned order indicating the legal grounds for such detention, for a period not exceeding five days.
(...)”
“Pre-trial detention of the accused may be ordered where the requirements set out in Article 143 are met and if one of the following conditions is satisfied:
(...)
(c) the accused absconded or prepared to abscond ...;
(...)
(h) the accused has committed an offence for which the law prescribes a prison sentence of more than two years and his or her continued liberty would constitute a threat to public order.
(...)”
“The length of pre-trial detention of the accused may not exceed one month, except where it is extended in accordance with a procedure prescribed by law. ...
(...)”
“Where necessary, pre-trial detention of the accused may be extended if reasons are given.
Extension of pre-trial detention may be ordered by the trial court (...)”
“The trial court shall be presided over by the president of the court or a judge appointed by him or her; the prosecutor’s participation is compulsory.
The investigation file shall be lodged [at the court] by the prosecutor at least two days prior to the hearing and may be consulted by the lawyer on request.
The accused shall be brought before the court, assisted by a lawyer.
(...)
If the court grants extension [of the detention], such extension may not exceed thirty days.
(...)
The prosecutor or the accused may appeal against the interlocutory decision by which the court decides on extension of the pre-trial detention. The time-limit for an appeal shall be three days, starting from delivery of the judgment for those who are present and, for those who are not present, from the date of notification. An appeal against a decision to extend pre-trial detention has no suspensive effect, while an appeal against a decision to dismiss the request for an extension of the pre-trial detention does have suspensive effect.
(...) The court may grant further extensions of pre-trial detention, but none of these may exceed thirty days.”
“...
In cases where the accused is arrested, the court is obliged of its own motion and at the first hearing to confirm the lawfulness of the adoption and extension of the detention measure [against the accused].”
43. The relevant domestic practice concerning the notion of “danger to public order” provided for by the provisions of Article 148 (h) of the CCP is set forth in the case of Calmanovici v. Romania (no. 42250/02, §§ 4042, 1 July 2008). Following the amendment of the CCP by Law no. 281/2002 published in the Official Gazette on 1 July 2003, Article 148 (h) of the CCP required the existence of evidence that the release of an accused would pose a real danger to public order.
44. Article 160c of the CCP in force for a brief period of time provided that during the trial stage of proceedings the firstinstance court could extend pretrial detention if new elements had appeared justifying the measure.
45. Article 23 (6) of the Romanian Constitution and Article 160b of the CCP provide that during the judgment stage of the proceedings the domestic courts must regularly examine, no later than every sixty days, the lawfulness of the pretrial detention. If the court finds that the reasons justifying the detention have ceased to exist and that there are no new reasons justifying it, it must order the release of the accused. Article 3002 of the CCP provides that when the accused has been detained at the trial stage of the proceedings, the court to which the matter has been lawfully referred must examine the lawfulness of the pre-trial detention pursuant to the provisions of Article 160b of the CCP. Article 303 (6) provides, by referring to Article 160b of the CCP, that the regular examination of pretrial detention is also necessary where the proceedings have been suspended for a matter to be referred to the Constitutional Court.
46. Article 38511 (3) of the CCP provides that appeals (recurs) in respect of preventive measures can be decided in the absence of the accused as long as he has been legally summoned.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-76770
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BARTOS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Árpádné Bartos, is a Hungarian national who was born in 1952 and lives in Szatymaz, Hungary. The respondent Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1995 criminal investigations were instituted against the applicant and her accomplice on suspicion of aggravated fraud.
On 8 August 1997 the Szeged District Public Prosecutor preferred a bill of indictment against the applicant, charging her with aggravated fraud and forgery of documents.
On 30 October 1998 the Szeged District Court convicted the applicant.
On appeal, on 7 December 1999, the Csongrád County Regional quashed the judgment.
In the resumed proceedings, on 3 June 2002 the District Court again convicted the applicant of the charges and sentenced her to one year’s imprisonment, suspended for two years, and ordered her to pay damages to the victim. The applicant appealed against this judgment.
On 19 November 2002 the Regional Court upheld in essence the first-instance judgment. This decision became final on that date.
On 10 March 2003 the applicant’s request for a retrial was rejected. Her appeals against this rejection were dismissed by the Regional Court on 18 March and by the Szeged Court of Appeal on 3 May 2004.
Meanwhile, on 22 September 2003 the Supreme Court rejected, without an examination on the merits, the applicant’s petition for review as “excluded by the law” (törvényben kizárt) – and as such, inadmissible – since it was incompatible ratione materiae with the relevant provisions of the New Code of Criminal Procedure. Her repeated petition for review was rejected on 24 October 2005.


ITEMID: 001-100885
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF CECHOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki
TEXT: 4. The applicant was born in 1967 and lives in Košice.
5. On 13 January 2000 the applicant's former husband lodged an action against the applicant for distribution of matrimonial property.
6. On 10 June 2004 the Constitutional Court found that the Košice II District Court had violated the applicant's right to a hearing within a reasonable time. It awarded the applicant the equivalent of 876 euros (at that time) as just satisfaction in respect of non-pecuniary damage, ordered the District Court to proceed and to reimburse the applicant's legal costs.
7. On 15 March 2006 it rejected the applicant's fresh complaint about the length of these proceedings as being manifestly ill-founded.
8. On 8 December 2009 the District Court delivered a judgment in the case. The applicant appealed and the proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77862
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MOLANDER v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1951 and lives in Helsinki.
5. On 4 June 1993 an article entitled “Experts have doubts about the impartiality of the child ombudsman. Children are weapons in bitter disputes.” was published in a magazine S. The article, written by a free-lance journalist N., concerned the applicant and her work.
6. On 21 October 1993 the applicant instituted criminal proceedings against N., the editor-in-chief of the magazine, F., and the publishing company Yhtyneet Kuvalehdet Oy before the then City Court (raastuvanoikeus, rådstuvurätt) of Helsinki, for public defamation, alleging that the article insulted and defamed her professional experience. On 3 March 1994 the court dismissed the action. It referred to the amendments to the Freedom of the Press Act (painovapauslaki, tryckfrihetslag), according to which the proceedings should have been initiated before the District Court (käräjäoikeus, tingsrätten) of Espoo. Apparently the applicant’s counsel failed to lodge new charges in time.
7. On 19 November 1996 the applicant instituted criminal-based civil proceedings against N., F. and the publishing company before the District Court of Espoo, requesting compensation for non-pecuniary damage of 150,000 Finnish Marks (FIM, amounting to 25,231 euros (EUR)) for mental distress and suffering due to the allegedly incriminating and insulting nature of the article.
8. The defendants lodged a counterclaim, which was served on the applicant on 3 March 1997. She lodged an additional claim on 13 August 1997.
9. The defendants served their written submissions on 20 October 1997. On 22 January 1998 the applicant submitted further written submissions.
10. On 1 September 1998 the District Court held a preparatory hearing.
11. On 29 September 1998 the District Court held the principal trial, which terminated on 5 October 1998 after a hearing, which last three days.
12. By its judgment of 6 November 1998 the District Court rejected the applicant’s claims and ordered her to reimburse the defendants’ legal costs. She appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki.
13. On 6 November 1998 the applicant’s counsel requested an extension of the time-limit for the appeal. This was extended to 8 January 1999. On 12 January 1999 the applicant lodged her appeal documents.
14. On 15 March 1999 the applicant requested the Court of Appeal to suspend the enforcement of the District Court’s judgment.
15. On 7 April 1999 the Court of Appeal dismissed her request.
16. On 9 April 1999 the Court of Appeal invited the parties to submit written observations. These were received on 30 April and 3 May 1999.
17. On 25 October 2000 the applicant submitted further written evidence.
18. On 29 December 2000 the Court of Appeal requested the defendants to submit their observations on the further evidence and the applicant to submit her comments on the new witnesses proposed by the defendants. It informed the parties that there would be an oral hearing and proposed dates in March 2001.
19. According to the Government, the dates fixed had to be vacated due to the unavailability of the parties. The hearing took place instead on 4, 7 and 8 June 2001. The parties were told that the judgment would be delivered on 5 October 2001. This however was postponed due to the illness of one of the judges.
20. On 2 November 2001 the Court of Appeal revoked the judgment of the District Court, finding a part of the article to be defamatory. It ordered the defendants to pay the applicant 20,000 FIM (EUR 3,364) plus interest for non-pecuniary damage caused by the defamation. It further ordered that both parties should bear their own legal costs incurred before the domestic courts.
21. On 2 January 2002 the applicant sought leave to appeal from the Supreme Court and lodged further submissions on 24 September 2002. On 30 September 2002 the Supreme Court refused leave to appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92567
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SIVUKHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1946 and lives in Krasnodar.
6. In 1986 the applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site. He was subsequently granted Category 2 disability status and became entitled to various social benefits, including a 50% discount on housing charges.
7. In March 2004 the municipal housing maintenance authority lodged a claim against the applicant, seeking to recover unpaid housing charges.
8. On 31 March 2004 the applicant counterclaimed, seeking compensation in respect of non-pecuniary damage. He insisted that he had paid the housing charges on time and in full. The amount of the charges paid had been calculated to include the 50% discount to which he and his family were entitled.
9. On 26 July 2004 the Justice of the Peace of the 47th Court Circuit of the Prikubanskiy District of Krasnodar partly found against the applicant and ordered him to pay outstanding housing charges. It rejected the applicant’s counterclaim, finding that by law only he, but not his family members, was entitled to the discount.
10. The applicant appealed against the judgment. He challenged the first-instance court’s assessment of the facts and application of the legal provisions.
11. On 1 October 2004 the applicant’s representative requested the Prikubanskiy District Court of Krasnodar to bring the Social Protection Department into the proceedings as a third party. The court granted this request and suspended the proceedings.
12. The appeal hearings were subsequently scheduled for 24 December 2004 and 21 January 2005 but did not take place due to the presiding judge’s illness.
13. On 2 February 2005 the Prikubanskiy District Court of Krasnodar upheld the judgment. The applicant received the summons on 3 February 2005 and therefore neither he nor his representative could attend the hearing. The judgment (определение) contained a notice to the effect that no appeal lay against it.
14. On 9 February 2005 the applicant requested the court to resume the appeal proceedings since he had been summoned to the appeal hearing on 2 February 2005 belatedly.
15. On 6 April 2005 the Prikubanskiy District Court of Krasnodar heard the parties and rejected the applicant’s request. The court established that the summons had been sent to the applicant on 1 February 2005, and there had been no evidence showing that the summons had reached him before the hearing on 2 February. Nevertheless, according to civil procedural law, improper summoning is not a ground for a review of the case.
16. On 5 July 2005 the Krasnodarsk Regional Court rejected the applicant’s request for supervisory review proceedings.
17. Under Article 113 of the Code of Civil Procedure of 2002, in force at the material time, parties to the proceedings are to be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt, by court summons with an acknowledgment of receipt, by telegram, by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party. Summons shall be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case.
18. According to Article 327 §§ 2 and 3 of the Code of Civil Procedure, an appeal court examines a case following rules of procedure in a first-instance court; it can establish new facts and examine new evidence.
19. Article 2.13 of the Instruction on the judicial workflow in district courts, approved by Order no. 36 of the Judicial Department of the Supreme Court on 29 April 2003, provides that, summons and copies of procedural documents shall be sent by registered mail with an acknowledgement of receipt form
VIOLATED_ARTICLES: 6


ITEMID: 001-22984
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KÖTTERL and SCHITTILY v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Franz, Elisabeth and Georg Kötterl and Barbara Schittily are German nationals, born in 1953, 1923, 1956 and 1958 respectively, and live in Germany. They were represented before the Court by Mr A. Feichtner, a lawyer practising in Kitzbühel (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 September 1973 the applicants’ father or husband, respectively, concluded a “tenancy, option to purchase and mortgage agreement” (Miet-, Options- und Pfandbestellungsvertrag) with the owner of an apartment in Jochberg (Tyrol). According to this agreement its duration was to be 100 years, the rent was ten Austrian schilling per year and was considered as having already been paid as part of the contribution to the costs of construction. The tenancy contract automatically extended to future heirs. The owner would accept any successor named by the other party or its heirs as tenant. Furthermore, the owner granted him a right to pre-emption and an option to purchase the apartment to which he was bound for the duration of the contract. The price was fixed and in case of purchase would be set off against the contribution to the construction costs. Subsequently this agreement was entered in the Land Register (Grundbuch).
In 1993 the Real Property Transactions Officer filed an action with the Innsbruck Regional Court (Landesgericht) against the applicants, the heirs to their father or husband who had died in the meantime, requesting the court to declare void (Feststellung der Nichtigkeit) the “tenancy, option to purchase and mortgage agreement” of 1973.
On 4 August 1994 the Regional Court declared the agreement void. It found that the intention of the parties when concluding the contract of 1973 had been to transfer a status tantamount to that of an owner on the applicants’ father, as was apparent from the conditions set out in the contract although it had the form of a tenancy agreement. In view of the number of foreign land owners in Jochberg, the real property transaction authorities would not have given their consent to a sales contract. The contract of 1973 was therefore a sham and had to be declared void under Section 879 of the Civil Code, which provides that a contract concluded in violation of a prohibition established by law is void.
Upon the applicants’ appeal, on 28 February 1995, the Innsbruck Court of Appeal (Oberlandesgericht) confirmed the Regional Court’s judgment. On 10 April 1995 the applicants filed a further appeal on points of law (Revision) with the Supreme Court (Oberster Gerichtshof) in which they argued that the power of the Real Property Transaction Officer to request the courts to declare void contracts which had been concluded many years ago violated their rights under Article 1 of Protocol No. 1 as the declaration by the Regional Court constituted a disproportionate interference with a legal position they had enjoyed over many years. Furthermore, they argued that the 1991 amendment to the Real Property Transaction Act had not been properly published and was therefore unconstitutional.
On 27 June 1995 the Supreme Court dismissed the applicants’ further appeal. It found that the 1991 amendment had been properly published and that there was no reason for applying to the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of that amendment. It also had no doubts about the constitutionality of Section 16a of the Real Property Transactions Act as nobody could expect that a status acquired by an unlawful act could become one protected by the law in the future. The fact that the Real Property Transaction Officer could file actions against sham contracts which had been concluded long ago did not interfere with acquired rights (wohlerworbenen Rechten), the only limit being prescription after thirty years.
On 20 September 1995, after the Supreme Court had given its above decision, another chamber of that court decided that the right of the Real Property Transactions Officer to request a declaratory decision applied only to transactions that were effected after 1988. If this right extended to previous transactions, that provision would be unconstitutional. On 10 December 1996 the Constitutional Court declared unconstitutional the 1991 amendment to the Real Property Transactions Act, which established the Real Property Transactions Officer’s powers, because it considered that this amendment had not been published as required by the relevant law.
Under the Tyrol Real Property Transactions Act 1970 (Grundverkehrsgesetz), a contract concerning the transfer of ownership over real property was subject to approval by the Real Property Transaction Commission if agricultural and forestry land was concerned or if the purchaser did not possess Austrian nationality (Section 1 and 3). Such a contract could only take effect if it was approved by the real property transaction authorities (Sections 3 and 16). The purchaser of land was obliged to seek approval of the contract within two months (Section 15 § 1). If approval was withheld, the acquisition was null and void (Section 16 § 1). The conclusion of a tenancy did not require such consent, neither did an acquisition under a will.
According to an amendment to the Real Property Transactions Act of 28 November 1973, Regional Law Gazette No. 6 of 1974, which entered into force on 1 January 1994, tenancy agreements concluded with a foreigner could only be entered in the Land Register after the Real Property Transaction Commission had given its consent.
A further amendment to the Real Property Transactions Act of 3 July 1991 enabled the Real Property Transactions Officer to request a court decision declaring void a contract which constituted a circumvention of the requirement of consent under that Act (Section 16a). This right of the Real Property Transaction Officer also related to transactions which had been concluded before that amendment entered into force (Article II § 4).


ITEMID: 001-57884
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF VALLÉE v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 7. Mr Alain Vallée, a French national born in 1964, is an inspector of electronic equipment with an annual salary of about 80,000 French francs (FRF), but he often has to take sick-leave.
8. He was infected with the human immunodeficiency virus (HIV) between 27 November 1984 and 4 June 1985. As a severe A-haemophiliac he had received frequent blood transfusions. As early as October 1987 he was classified as having reached stage IV, the last stage of infection, on the scale of the Atlanta Center for Disease Control.
9. Mr Vallée is one of five brothers, all infected with the human immunodeficiency virus. Being unaware that he was HIV-positive, he infected his girlfriend.
10. On 12 December 1989 the applicant submitted a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection, in accordance with Article R.102 of the Administrative Courts and Administrative Courts of Appeal Code (see paragraph 25 below). He sought FRF 2,500,000, maintaining that he had been infected with the human immunodeficiency virus as a result of the Minister’s negligent delay in implementing appropriate rules for the supply of blood products.
Six hundred and forty-nine similar claims were sent to the Minister; the number of haemophiliacs who had been infected was one thousand two hundred and fifty.
11. On 30 March 1990, shortly before the expiry of the statutory four-month time-limit (see paragraph 25 below), the Director-General for Health rejected the applicant’s claim.
12. On 31 May 1990 Mr Vallée lodged an application with the Versailles Administrative Court for the annulment of the ministerial decision and for compensation from the State in the amount of FRF 2,500,000 plus statutory interest. On 11 October he submitted a supplementary memorial.
The Minister filed his defence pleadings on 22 April 1991. In them he called on the court to "dismiss the applicant’s claim" but added:
"However, in the event of the court’s accepting the principle of negligence on the part of the State, I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence."
13. Under an order of 11 July 1991 transferring jurisdiction, made pursuant to Article R.80 et seq. of the Administrative Courts and Administrative Courts of Appeal Code, the case was referred to the Paris Administrative Court, which had been designated to deal with all the applications lodged against the State by infected haemophiliacs.
14. On 2 January 1992 the Paris Administrative Court sent the applicant’s lawyer an official request for information, asking him to indicate the date on which the applicant had learned he was HIV-positive and his current state of health. Although he had already provided a copy of his haemophiliac’s health record with his supplementary memorial of 11 October 1990, Mr Vallée immediately sent the court a memorial together with a medical certificate, which summarised the situation as follows:
"Subject to any new developments, the last negative result in a serological test was recorded in June 1984 and the first positive result in June 1985. Since these results were obtained with first-generation tests, a serological control is being performed using serum-bank samples taken on 18 September 1984, 27 November 1984 and 4 June 1985.
From a clinical point of view, the patient’s general state of health is good but he was assigned to group IV C II of the CDC classification on account of herpes zoster, which he contracted in October 1987. The last checkup performed in February 1992 also revealed skin mycosis. From a biological point of view, his CD4+ lymphocyte count is 274 per mm3. The patient is not receiving any special treatment at present. Rétrovir should shortly be prescribed."
To supplement the information given in the medical certificate the applicant also indicated in his memorial that:
"The Centre Air et Soleil run by Dr Congard did not prescribe any blood transfusions from September 1984 to 23 November 1985.
However, except for serious incidents, for which he received treatment at the centre, Mr Vallée effected transfusions himself at home, and his haemophiliac’s health record (see exhibit no. 13 to the supplementary memorial) shows that he injected himself with PPSB on 18 April, 28 April, 18 May and 24 May 1985.
There are accordingly sufficiently serious, precise and concurring grounds for supposing that Mr Alain Vallée was infected between 12 March and 1 October 1985."
15. The case was set down for hearing on 16 March 1992. On 25 March the court gave an interlocutory decision as follows:
" ... The State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985."
It also ordered the applicant to send it "the results of the serological tests performed on the blood samples taken on 18 September 1984, 27 November 1984 and 4 June 1985".
The decision was served on Mr Vallée two months later. On 10 June 1992 he filed a memorial to which the documents requested were appended.
16. A hearing took place on 20 January 1993. In his submissions the Government Commissioner (commissaire du gouvernement) recommended that the court should order the State to pay the applicant compensation of FRF 2,200,000, plus interest at the statutory rate from 13 December 1989. This amount was higher than the sum of FRF 2,000,000 normally awarded to persons who had reached stage IV of the illness, to take into account the fact that all of Mr Vallée’s brothers had likewise been infected and that he himself had been infected while still very young.
On 15 April 1993 the applicant’s lawyer wrote to the President of the court to express his concern that no judgment had yet been served on his client.
A further hearing was held on 30 April 1993.
17. On 28 May 1993 the Paris Administrative Court gave the following judgment:
"The State’s liability
...
The investigation has shown that on 27 November 1984 Mr Vallée did not have any antibodies revealing the presence of human immunodeficiency virus and that he was found to be HIV-positive on 4 June 1985 after having undergone transfusions of non-heat-treated blood products in April and May 1985; the State is accordingly liable vis-à-vis the applicant for the damage suffered as a result of the transfusions he received between 12 March and 1 October 1985;
Mr Vallée will be adequately compensated for all his problems by an award of FRF 2,000,000;"
In the same decision the court - acting under section 12 of the Act of 31 December 1987 (see paragraph 26 below) - referred the case to the Conseil d’Etat for an opinion on a point of law concerning the application Mr Vallée had made concurrently to the Compensation Fund (see paragraph 24 below). It accordingly deferred its final decision until the Conseil d’Etat had given its opinion or, if no opinion was forthcoming, until three months after the date on which the file was forwarded to the Conseil d’Etat.
The judgment was served on Mr Vallée on 11 June 1993, and the file was transmitted to the Conseil d’Etat the same day.
18. On 25 June 1993 the applicant filed a memorial. His main submission was that the request for an opinion was inadmissible; in the alternative he pointed out that an opinion was not necessary because the issue had already been determined by the Conseil d’Etat.
On 16 September 1993, since the Conseil d’Etat had not given its opinion within the statutory time-limit, Mr Vallée requested the Administrative Court to give judgment without further delay.
On 15 October 1993 the Conseil d’Etat gave the following opinion:
"1. The decree of 12 July 1993 ..., which is applicable to cases pending at the date of its publication, ... provides a solution to the problem raised in the Administrative Court’s first question.
2. ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party, when the evidence shows this to be the case, even if that party does not file submissions, on the basis of its subrogation to the rights of the victim, seeking the reimbursement of the amounts it has paid as compensation for the damage suffered by the latter.
Accordingly, an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must, when it has been informed by one of the parties that the victim or his heirs have already received compensation for the damage complained of, deduct of its own motion such compensation from the amount payable in respect of the damage.
...
Where the sum offered by the Fund has been accepted by the claimants, or where a sum has been fixed in a judgment of the Paris Court of Appeal, against which no appeal on points of law has been lodged, or again where an appeal on points of law against the Court of Appeal’s judgment has been dismissed by the Court of Cassation, it should be held that all or part of the damage complained of has been actually and finally compensated by the Fund. Consequently it is incumbent on an administrative court which has been informed that this is the case to deduct, of its own motion, the amount thus owed by the Fund from the compensation which it orders the public authority liable for the damage to pay to the victim."
19. The Paris Administrative Court held a further hearing on 8 December 1993. On 5 January 1994 it gave the following decision:
"Article 1: The State is ordered to pay Mr Vallée the sum of FRF 548,000.
Article 2: This amount shall bear interest from 13 December 1989 at the statutory rate. The sum of FRF 1,352,000 paid to Mr Vallée by the Compensation Fund for Transfusion Patients and Haemophiliacs shall bear interest at the statutory rate from the same date until 27 November 1992.
Article 3: The interest due on the FRF 548,000 as at 12 March 1992 and 20 September 1993 shall be capitalised on each of those dates so that it also bears interest. The interest due on the FRF 1,352,000 as at 12 March 1992 shall be capitalised on that date so that it also bears interest until 27 November 1992.
Article 4: The State shall be subrogated to the rights of Mr Vallée vis-à-vis any party acknowledged to have jointly caused the damage for which reparation is made in this judgment.
..."
The judgment was served on Mr Vallée on 4 March 1994. The time-limit for filing an appeal will expire on 4 May 1994. At the date of the adoption of the present judgment, the applicant had not appealed to the Paris Administrative Court of Appeal.
20. On 3 March 1992 Mr Vallée submitted a claim to the Compensation Fund set up by the Act of 31 December 1991 (see paragraph 24 below).
On 15 July 1992 the Fund offered him as "HIV-infection compensation" a sum of FRF 1,452,000, payable in three instalments over a period of three years, from which FRF 100,000 paid out by the private haemophiliacs’ solidarity fund was to be deducted. In addition the applicant was to receive a sum of FRF 484,000 as soon as he developed AIDS (acquired immunodeficiency syndrome).
21. The applicant turned down this offer and appealed to the Paris Court of Appeal under section 47 VIII of the Act of 31 December 1991.
In a judgment of 27 November 1992 that court decided that the HIV-infection compensation should be paid in a single instalment. On the other hand, it upheld the Fund’s decision to pay the "AIDS compensation" of FRF 484,000 only at a later date.
On 18 December 1992 the Fund sent the applicant a cheque for FRF 1,364,170.21.
22. Mr Vallée appealed on points of law, seeking a declaration that it was unlawful to defer payment of the "AIDS compensation". The Court of Cassation dismissed the appeal on 20 July 1993.
23. On 22 June 1992 Mr Vallée applied to the Paris Criminal Court to be joined as a civil party to the proceedings at the trial of certain senior officials of the blood transfusion service.
On 23 October 1992 the court awarded him FRF 300,000 as compensation for deception as to the quality of the products.
Mr Vallée appealed against the judgment but subsequently withdrew his appeal.
24. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides:
"I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below.
II. ...
III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board.
...
IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the information in their possession.
Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy.
...
V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage ...
...
VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court.
X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat.
XI. ...
XII. The Compensation Fund’s sources of revenue shall be specified in a subsequent Act.
XIII. ...
XIV. ..."
25. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions:
"Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision.
Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint.
..."
"The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security."
"Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur.
Under the authority of the president of the court or division to which he belongs, the rapporteur He may request the parties to supply any evidence or documents relevant to the resolution of the dispute, which shall be added to the file so as to be accessible to all the parties."
"A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter’s president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter."
26. Section 12 of the Act of 31 December 1987 on the reform of the organisation and functioning of the administrative courts provides as follows:
"Before giving a decision on an application which raises a new point of law of particular difficulty arising in a large number of cases, the Administrative Court or Administrative Court of Appeal may, by a decision from which no appeal lies, transfer the case file to the Conseil d’Etat, which shall examine the point at issue within three months. The decision on the merits shall be deferred until the Conseil d’Etat has given its opinion or, if no opinion is forthcoming, until the expiry of this time-limit."
27. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 24 above):
"Part II
Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991
Article 15
In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
Article 16
The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991.
Article 17
Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings.
Where the victim has accepted the offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court.
The registry shall notify the parties of the information communicated by the Fund.
Article 18
The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened.
Article 19
...
Article 20
The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree ..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-121771
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF CSÁKÓ v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Ján Šikuta;Luis López Guerra;Nona Tsotsoria
TEXT: 4. The applicant was born in 1964 and lives in Rožňava.
5. On 19 February 2003 an individual (“the claimant”) filed a petition with a judicial enforcement officer (“JEO”) for the enforcement of the equivalent of some 1,315 euros (EUR) worth of an adjudicated claim against the applicant.
6. On 26 February 2003 the JEO requested authorisation to carry out the enforcement under file no. Ex 97/2003. The authorisation was granted by the Spišská Nová Ves District Court (“the Enforcement Court”) on 12 March 2003 under the file no. 1Er 279/03.
7. On 17 March 2003 the JEO issued a notice of enforcement (upovedomenie o začatí exekúcie), by which he notified the applicant that enforcement proceedings had commenced against him. The notice specified that amounts to be enforced comprised the above-mentioned principal amount, the equivalents of some EUR 20 in court fees, EUR 250 in the JEO’s remuneration and EUR 50 in the JEO’s expenses.
8. On 25 April 2003 the applicant challenged the notice of enforcement by way of a protest (námietky) to the Enforcement Court arguing that the principal amount had already been paid and disputing the claim for compensation in respect of the JEO’s remuneration and expenses.
9. On 30 April 2003 the claimant filed his observations in reply to the applicant’s protest and, on 5 May 2003, the JEO transmitted these observations to the Enforcement Court for determination of the protest.
10. On 14 June 2006 the Enforcement Court allowed the protest in part which concerned the principal amount and dismissed its remainder. That decision became final and binding on 8 July 2006, following which – on 21 July 2006 – the Enforcement Court discontinued the enforcement proceedings in so far as the principal amount was concerned. The latter decision became final and binding on 26 July 2006.
11. On 7 September 2006 the applicant lodged a petition that the remainder of the enforcement be discontinued too, which the Enforcement Court dismissed on 13 October 2006 by a decision that became final and binding on 28 November 2006.
12. On 27 December 2011, upon ultimate termination of the outstanding part of the enforcement proceedings, the JEO returned the authorisation deed to the Enforcement Court.
13. On 4 July 2006 the applicant filed a complaint under Article 127 of the Constitution to the Constitutional Court. Relying on Article 48 § 2 of the Constitution, he contended that the length of the enforcement proceedings against him had been excessive.
14. On 15 March 2007 the Constitutional Court declared the complaint inadmissible on the ground that, prior to his constitutional complaint, the applicant had failed to exhaust ordinary remedies, in particular the complaint to the President of the Enforcement Court.
The Constitutional Court’s decision was served on the applicant on 23 April 2007.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95758
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TONCHEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 8 - Right to respect for private and family life;Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1941 and lives in Vratsa.
7. At about 2.30 p.m. on 25 March 1993 the applicant's fiveyearold son was playing in the street and started spraying a neighbour, Mr M.T., with water from a bottle. According to the findings of the national courts which examined the case later, M.T. asked him to stop. The applicant's son did not heed his request. M.T. then took a fivecentimetrelong piece of tile and threw it at the applicant's son, hitting him in the forehead and the left eyelid. The injuries suffered by the boy were a longitudinal wound on the left eyebrow measuring 11 by 3 millimetres and a bruised lower left eyelid measuring 5 by 3 millimetres. The applicant alleged that his son had in addition suffered psychological trauma.
8. On 3 August 1993 the applicant, acting on behalf of his son, lodged with the Vratsa District Court (Врачански районен съд) a criminal complaint and a claim for damages against M.T. He alleged that M.T. had wilfully inflicted actual minor bodily harm on his son and requested that he be sentenced to two years' imprisonment and be ordered to pay 100,000 old Bulgarian levs (BGL), plus interest, as compensation for his son's pain and suffering.
9. At the first hearing, which took place on 15 November 1993, the court invited the parties to settle. M.T. expressed his regret and said that he was willing to reach a settlement with the applicant, but the latter refused. The court adjourned the case to allow the parties to call witnesses.
10. At the next hearing, held on 18 April 1994, the court again unsuccessfully invited the parties to settle. It heard M.T. and three witnesses and adjourned the case to allow the applicant to call two more witnesses.
11. Four hearings, listed for 19 October 1994, 22 February, 14 June and 18 October 1995, failed to take place: the first because witnesses called by the applicant did not appear; the second because the applicant, who was taking care of his sick son in hospital, and M.T.'s lawyer were absent; the third because the applicant was ill and could not attend; and the fourth because neither the applicant, who was ill, nor M.T. appeared. At the fourth hearing the court noted that M.T. had not given good reasons for his absence and ordered that he be compelled to attend the next hearing.
12. At the next hearing, on 11 December 1995, the court again invited the parties to settle, without success. It heard one witness and asked an expert to give an opinion on the exact extent of the injuries suffered by the applicant's son. The applicant increased the claim for damages to BGL 200,000.
13. At a hearing held on 13 March 1996, in spite of the absence of the applicant's lawyer, the court heard the expert and admitted his report in evidence. The applicant requested a neurological expert report on his son's condition. The court refused his request and heard the parties' closing arguments. In a judgment of the same day it found M.T. guilty of wilfully inflicting actual minor bodily harm on the applicant's son, contrary to Article 130 § 1 of the Criminal Code (see paragraph 25 below). It sentenced him to one year's imprisonment, suspended. It awarded the applicant's son BGL 8,000, plus interest.
14. The applicant appealed to the Vratsa Regional Court (Врачански окръжен съд), arguing that there had been material breaches of the rules of procedure, that the court had erred in assessing the facts and that the sentence was too lenient.
15. A hearing listed for 18 April 1996 was adjourned as M.T.'s lawyer was busy with another case and could not attend.
16. At a hearing held on 20 June 1996 the court unsuccessfully invited the parties to settle. It heard their closing arguments and reserved judgment.
17. On 29 July 1996 the Vratsa Regional Court quashed the lower court's judgment and remitted the case. It held that by proceeding on 13 March 1996 in the absence of the applicant's lawyer the lower court had committed a material breach of the rules of procedure. The court went on to say that the failure to question two witnesses requested by the applicant and to appoint a neurological expert had led to an insufficient evidentiary basis.
18. On remittal, the Vratsa District Court held a hearing on 24 June 1997. It heard M.T. The applicant reiterated his request for a neurological expert to be appointed and increased the claim for damages to BGL 6,300,000. The court ordered a medical report, to be drawn up by three experts, and adjourned the case.
19. At the next hearing, which took place on 23 April 1998, the court heard a medical expert and one witness, and admitted the expert's report in evidence. The applicant requested a further expert report, to be drawn up by three experts. The court granted his request.
20. Two hearings, listed for 11 March and 11 May 1999, failed to take place, the first because the applicant was ill and the second because M.T.'s lawyer was attending a colleague's funeral.
21. A hearing was held on 14 July 1999. M.T. asked the court to adjourn the case, as his lawyer was absent. The court refused his request, saying that the case had already been adjourned many times and that the request was an abuse of process. It heard the parties' closing arguments and, in a judgment of the same date, found M.T. guilty of inflicting minor bodily harm on the applicant's son. It sentenced him to six months' imprisonment and ordered him to pay the applicant's son 10 new Bulgarian levs (BGN), plus interest.
22. Both the applicant and M.T. appealed to the Vratsa Regional Court.
23. At a hearing held on 23 November 2000 M.T.'s lawyer asked the court to discontinue the proceedings, as the applicable limitation period had expired. In a judgment of the same date the Vratsa Regional Court once again quashed the lower court's judgment and remitted the case. It held that by proceeding in the absence of M.T.'s lawyer at the last hearing the lower court had infringed his defence rights. It had also failed to duly admit for examination the applicant's increased claim for damages. The court went on to say that it could not rule on the merits of the case, as the limitation period had expired in September 2000. However, it could not discontinue the proceedings on this ground, such matters falling within the exclusive jurisdiction of the firstinstance court. It therefore instructed that court to discontinue them.
24. In a decision of 27 December 2000 the Vratsa District Court discontinued the proceedings, noting that the limitation period had expired. The alleged offence had been committed on 25 March 1993, that is, more than seven and a half years earlier, which barred any further prosecution. Upon an appeal by the applicant, the Vratsa Regional Court upheld the decision discontinuing the proceedings in a judgment of 4 April 2001. A subsequent appeal by the applicant was dismissed by the Supreme Court of Cassation (Върховен касационен съд) on 12 October 2001.
25. Article 130 § 1 of the 1968 Criminal Code makes it an offence wilfully to inflict actual minor bodily harm, defined as an injury to health other than those specifically set out in Articles 128 § 2 and 129 § 2 of the Code, which deal with grievous and intermediate bodily harm. The maximum penalty on conviction is two years' imprisonment or compulsory labour. Aggravated actual minor bodily harm, which includes cases where it has been inflicted on a child under fourteen years of age, carries a maximum penalty of three years' imprisonment (Article 131 § 1 (4) of the Code).
26. Minor bodily harm is privately prosecutable (Article 161 of the Code). The prosecution is thus brought directly by the victim of the offence and not by the public prosecutor (Article 240 § 1 (2) of the 1974 Code of Criminal Procedure, superseded by Article 247 § 1 (2) of the 2005 Code of Criminal Procedure). In exceptional cases, where the aggrieved parties cannot ensure the defence of their interests because of frailty or dependency on the alleged perpetrator, the public prosecutor may bring a prosecution in their stead or intervene in the proceedings (Articles 4546a of the 1974 Code and Articles 4850 of the 2005 Code).
27. The law and practice concerning limitation periods for the prosecution of criminal offences have been described in paragraphs 27 and 28 of the Court's judgment in the recent case of Dinchev v. Bulgaria (no. 23057/03, 22 January 2009).
28. The victim of a tort which is also a privately prosecutable criminal offence has the choice of bringing a claim against the alleged tortfeasor in the civil courts, or of making a civilparty claim in the context of criminal proceedings (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure).
29. Under Article 64 § 2 of the 1974 Code (superseded by Article 88 § 2 of the 2005 Code), the examination of a civilparty claim should not lead to an adjournment of the criminal case. If the proceedings are discontinued the claim is not examined, but may be brought separately in a civil court (Article 64 § 3 of the 1974 Code, superseded by Article 88 § 3 of the 2005 Code). The criminal court rules on the claim only when giving judgment on the merits of the criminal case, even if in that judgment it finds that the accused's criminal liability has been extinguished (Article 305 of the 1974 Code, superseded by Article 307 of the 2005 Code; and реш. № 225 от 20 септември 2004 г. по н.д. № 849/2003, ВКС, II н.о.).
VIOLATED_ARTICLES: 6
NON_VIOLATED_ARTICLES: 3
8