ITEMID: 001-57998
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF HAMER v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: N. Valticos
TEXT: 6. On 17 August 1978 four yachts were moored in Palma Cove in the eastern part of the island of Cavallo, one of the Lavezzi Islands, which lie off the coast of southern Corsica. Three of these yachts - the Cocke, the Master and the Mapagia - were moored alongside each other; the fourth, the Aniram, was the property of Prince Victor-Emmanuel of Savoy, who lived in Geneva.
7. In the night of 17 to 18 August 1978, on leaving a restaurant where he had spent the evening, Prince Victor-Emmanuel noticed that a rubber dinghy belonging to him was moored, for no reason that he knew of, to the stern of the Cocke. Having armed himself with a rifle classified as a military weapon and fitted with a cartridge clip containing thirty-one cartridges, he brought his boat alongside the Cocke to try to recover his property. Confronting a passenger who had been woken by the manoeuvre, Prince Victor-Emmanuel fired twice. The Cocke’s passenger, avoiding the shots, threw himself on his assailant and both men fell into the water.
8. However, one of the bullets very seriously wounded a nineteen-year-old German youth, Mr Dirk Hamer, who had been asleep on the deck of the Mapagia. Prince Victor-Emmanuel called for the emergency services and Mr Hamer was admitted to Porto-Vecchio Hospital at about 6 a.m., in a deep coma, with no measurable pulse or blood pressure, the accident having occurred about four hours before. On 19 August 1978 he was transferred to Marseilles Northern Hospital in a very alarming condition. On 30 August 1978, against the advice of the doctors at that hospital, Mr Hamer, whose parents were also doctors, was taken to Heidelberg University Hospital.
9. Intensive care was of no avail, and Mr Hamer died on 7 December 1978 without ever being able to give evidence. An autopsy carried out on 11 December 1978 showed that the bullet wound had been the cause of death.
10. Ms Birgit Hamer, a German national, is the sister of the deceased. At the time of the above events she was living with her family in Rome; she later moved to Germany.
11. On 18 August 1978 at 7 a.m. Prince Victor-Emmanuel was taken into police custody.
12. On 19 August 1978 Mr Breton, an investigating judge at the Ajaccio tribunal de grande instance, charged him with assault occasioning actual bodily harm and possessing and carrying a category I weapon; at the end of this first examination he remanded Prince Victor-Emmanuel in custody.
13. Between 20 and 29 August 1978 the investigating judge questioned the accused twice, took statements from witnesses and appointed experts to conduct a medical examination of the victim and produce a technical report on the gun. He also issued warrants authorising the police to take statements from witnesses and the victim.
14. In a letter of 28 August 1978 Prince Victor-Emmanuel admitted civil liability for the accident in which Mr Hamer had been injured on 18 August 1978. On 5 September 1978 the accused paid 500,000 French francs (FRF) to the victim’s family.
15. On 6 September 1978 the Ajaccio public prosecutor filed a supplementary application requesting further investigative measures.
16. On 8 September and 12 December 1978 the investigating judge ordered experts to produce a medical and psychological report on the accused and an analysis of the bullet extracted from the victim. On 11 September, 10 November and 7 and 8 December 1978 he issued letters of request, including two international ones. In these he asked for a statement to be taken from the victim and for the bullet extracted from him to be handed over; and then, after Mr Hamer’s death on 7 December 1978, he asked for an autopsy of his body to be carried out.
17. On 4 October 1978 the investigating judge again questioned the accused, who was released under judicial supervision on the following day. Further interviews took place on 12 October and 4 December 1979. On 10 January, 14 February and 1 and 11 June 1979 the investigating judge instructed experts to translate documents in German and Italian.
18. Prince Victor-Emmanuel was questioned again on 26 February 1979.
19. On 17 May and 25 June 1979 the investigating judge issued international letters of request; in the first of these he asked for a copy of an application in which Mr Hamer’s family had sought to commence civilparty proceedings and in the other he asked for witnesses to be questioned. On 20 June and 10 July 1979 he questioned witnesses.
20. On 25 June 1979, in the light of the victim’s death certificate, he sent the file to the public prosecutor. On 29 June the investigating judge questioned the accused.
21. On 20 July and 12 December 1979 the investigating judge instructed experts to translate documents in German and Italian. On 26 October 1979 he ordered the appointment of new experts to produce an additional ballistic report that had been sought by the defence on 28 September 1979; on the same day he issued an international letter of request asking for a copy of the autopsy report, which had been requested by the defence.
22. On 26 November 1979 Ms Hamer, her father, her mother and her sister joined the proceedings as civil parties by applying to the investigating judge.
23. On 1 February 1980 Prince Victor-Emmanuel’s lawyer asked Mr Breton to order the ballistic experts to carry out a further investigation. On 21 February 1980 the investigating judge asked the experts already instructed how the further investigation requested by the defence could be carried out. In a report of 28 February 1980 the judge noted the failure of the applicant and her family to appear as civil parties.
24. On 20 March 1980 Mr Breton questioned the victim’s father, and on 15 April and 10 September 1980 he instructed experts to translate documents in Italian and English.
25. On 3 June 1980 the public prosecutor wrote to the German judicial authorities reminding them of the international letter of request of 26 October 1979.
26. On 22 September 1980 the investigating judge notified the public prosecutor of the defence’s request for an additional expert opinion. On 8 November 1980 the public prosecutor filed submissions in favour of granting that request.
27. On 19 and 25 November 1980 and 21 January 1981 Mr Breton wrote to the accused’s lawyer, the director of the forensic laboratory and experts who might be capable of authenticating a boat part lodged as an exhibit by the defence. On 29 January and 4 February 1981 the experts wrote back stating that they were not competent to do this.
28. On 6 March 1981 the public prosecutor filed a supplementary application. On 10 March 1981 the investigating judge charged Prince Victor-Emmanuel with fatal wounding. A report of 11 March 1981 recorded the fact that the applicant and her family had failed to appear as civil parties.
29. On 31 March 1981 the accused’s lawyer filed an opinion criticising the autopsy report and requested that three new experts be appointed in order to determine the causes of Mr Hamer’s death.
30. On 15 May and 2 June 1981 the investigating judge issued letters of request asking for the victim’s medical file to be handed over and for witnesses to be questioned. On 12 October he made two orders refusing an additional ballistic report and a fresh expert opinion in connection with the autopsy report as sought by the defence on 1 February 1980 and 31 March 1981 respectively.
31. On 14 October 1981 the accused appealed against the above orders, which the Indictment Division of the Bastia Court of Appeal upheld on 17 December 1981.
On 18 May 1982 the Criminal Division of the Court of Cassation dismissed an appeal on points of law lodged by Prince Victor-Emmanuel.
32. On 5 April 1982 the investigating judge appointed experts to translate documents in German. He questioned a new witness on 27 September 1982. On 27 December 1982 he made an order rejecting both an application by the accused for an order that there was no case to answer and an application of 8 October 1982 for a new ballistic report.
33. On an appeal by the accused, the Indictment Division held a hearing on 24 February 1983. On 28 April 1983 it ordered that the proceedings should be recommenced because one of the judges had been replaced. In a judgment of 30 June 1983 it upheld the impugned order.
On 17 October 1983 the President of the Court of Cassation made an order in which he ruled that, as the file stood, an appeal on points of law by the applicant against the above judgment was inadmissible and directed that the proceedings should continue.
34. On 6 August 1983 the public prosecutor filed submissions requesting further investigative measures.
35. The investigating judge questioned the accused on 6 October 1983 and, at the defence’s request, ordered a further medical report on 7 October 1983. On 25 and 29 November 1983 he issued letters of request asking for the accused’s curriculum vitae to be established and his sister questioned.
36. On 2 July 1984 the case was assigned to a new investigating judge, Mrs de Valon. In a report of 18 July 1984 the judge noted the failure of the applicant and her family to appear as civil parties.
37. The investigating judge questioned the accused on 16 August 1984. On 21 November 1984 she made an order rejecting an application by the defence for a fresh expert report. On 15 January 1985 she sent the file to the public prosecutor.
38. On 27 March, 25 June, 7 and 27 November 1985 and 22 April 1986 the investigating judge issued letters of request, including an international one, asking for witnesses to be questioned and various inquiries made. On 23 March 1986 the letter of request of 27 November 1985 was executed in Italy and a reconstruction of the events by means of diagrams and sketches took place on the same day.
39. On 24 June 1986 the investigating judge questioned three witnesses. On 30 June 1986 she appointed an expert to translate documents relating to the execution of the international letter of request of 27 November 1985.
40. On 7 January 1987 the case was assigned to a third investigating judge, Mrs Tissot. On 28 January 1987 she sent the file to the public prosecutor.
41. On 30 January 1987 the Ajaccio public prosecutor submitted his final application, in which he asked for the file to be transmitted to the Principal Public Prosecutor at the Bastia Court of Appeal.
42. On 2 February 1987 the investigating judge made an order transmitting the file to the Principal Public Prosecutor.
43. On 30 September 1988 the Principal Public Prosecutor at the Bastia Court of Appeal sent his counterpart at the Rome Court of Appeal a notice informing the civil parties of the date of the hearing before the Indictment Division of the Bastia Court of Appeal, set down for 30 November 1988. The accused’s lawyers were also notified.
44. On 21 and 29 November 1988 respectively the defence and the civil parties requested that the hearing set down for 30 November 1988 be put back, as the accused had not received the file and the applicant and her family, who lived in Germany, had not been notified of the hearing. On 30 November 1988 the Indictment Division adjourned the case to a hearing on 25 January 1989.
45. On 23 January 1989 the civil parties informed the President of the Indictment Division that they had not been notified of the hearing on 25 January 1989, which was accordingly adjourned until 19 April 1989. On 19 April 1989 the case was adjourned to a later date on account of a general strike by the administrative services in Corsica.
46. On 28 June 1989 the Indictment Division of the Bastia Court of Appeal delivered an interlocutory judgment dismissing procedural objections raised by the defence.
47. On 11 October 1989 it indicted Prince Victor-Emmanuel on charges of fatal wounding and offences relating to offensive weapons, and committed him for trial in the Corse-du-Sud Assize Court.
48. On 23 January 1990 the Criminal Division of the Court of Cassation upheld an appeal on points of law lodged by the accused on 9 November 1989, giving the following reasons:
"But in the light of those findings, which do not make out thedeliberate intent to assault or use violence against anyperson, the Indictment Division could not, withoutcontradicting itself, hold that there was sufficient evidenceto prove Victor-Emmanuel of Savoy guilty of the offence definedin Article 311 para. 1 of the Criminal Code; accordingly, itgave no legal basis for its decision, which falls to bequashed."
It remitted the case to the Indictment Division of the Paris Court of Appeal.
49. On 8 June 1990 the Indictment Division of the Paris Court of Appeal adjourned the case until 26 September 1990; in the event, the hearing set down for that date took place on 25 September 1990.
50. On 12 October 1990 the Paris Indictment Division committed Prince Victor-Emmanuel for trial at the Paris Assize Court on the same charges.
51. On 23 October and 14 November 1990 the Principal Public Prosecutor at the Paris Court of Appeal instructed experts to translate into German the judgment and the notice of service on the civil parties.
52. On 5 February 1991 the Criminal Division of the Court of Cassation dismissed an appeal on points of law lodged by the accused against the Paris Indictment Division’s judgment of 12 October 1990, on the following grounds:
"The Indictment Division deduced from those findings that theassault allegedly made by the accused on Nicolas Pende [theCocke’s passenger] was intentional and that there was a causalconnection between that assault and the death of Dirk Hamer.
That being the case, the Indictment Division, which replied insufficient detail to the main arguments in the pleading filed,assessed the weight of the evidence set before it. Itestablished that there was sufficient evidence to proveVictor-Emmanuel of Savoy guilty, if the facts were made out,of the offence defined both in the last paragraph of the formerArticle 309 of the Criminal Code, which was applicable at thematerial time, and in the first paragraph of Article 311 ofthat Code, as amended by the Law of 2 February 1981."
53. Between 3 June and 4 November 1991 ten experts, twenty-eight witnesses and the four members of the victim’s family, as civil parties, were summoned.
54. On 18 November 1991 the Paris Assize Court sentenced Prince Victor-Emmanuel to six months’ imprisonment, suspended, for unauthorised possession and carrying of a US30MI rifle, a category I military weapon, and ordered its confiscation. It also found that there were extenuating circumstances. It acquitted Prince Victor-Emmanuel of fatal wounding and unintentional homicide, ruling that he had not "by clumsiness, carelessness, inattention or negligence, unintentionally caused the death of Mr Dirk Hamer".
55. After giving judgment in the criminal proceedings, the Assize Court judges did not hold a hearing on the civil issues.
The applicant’s lawyer maintains that the termination of the trial prevented her from filing the submissions she had prepared on the award of damages; she thereupon telephoned the Advocate-General, who informed her that she could not raise the issue of the accused’s civil liability.
According to the Government, the fact that there was no hearing on the civil issues was due to the lack of any application to that effect, which should have been lodged with the Assize Court’s registry.
56. On 2 July 1992 the Criminal Division of the Court of Cassation ruled that an appeal on points of law lodged by the civil parties, with the exception of the applicant, was inadmissible on the following grounds:
"The notice of appeal is directed at ‘all the civil provisions’of the criminal judgment delivered in the proceedings againstVictor-Emmanuel of Savoy. The judgment concerned does notcontain any provision relating to civil matters. That beingthe case, and no other judgment having been given on thesubmissions of the civil parties, the latter, under Article 567of the Code of Criminal Procedure, have no standing to contestthe decision on the criminal proceedings and the costs payableto the State."
On 10 July 1992 the judgment was served on the civil parties and Prince Victor-Emmanuel.
57. Article 2 of the Code of Criminal Procedure ("CCP") provides:
"All those who have personally suffered from the damagedirectly caused by a serious offence [crime], less seriousoffence [délit] or petty offence [contravention] may bringcivil-party proceedings [action civile] to seek compensationfor such damage.
Discontinuance of such proceedings can neither terminate norstay the criminal proceedings, without prejudice to the casesprovided for in paragraph 3 of Article 6 [CCP]."
However, in the case of petty offences, only the prosecuting authority may set in motion the criminal proceedings.
Article 6 para. 3 CCP provides:
"[Criminal proceedings] may, in addition, be discontinued bysettlement where express provision is made for thispossibility. They may likewise be discontinued in the eventof withdrawal of the complaint where the complaint was anessential condition for the proceedings to be brought."
58. In French law the victim of an offence can bring civil-party proceedings either by intervention, that is by applying to the investigating judge, the Indictment Division or the trial court for leave to join pending criminal proceedings, or as private prosecutor, that is by directly summoning the alleged offender to appear in the trial court or by laying an information with the investigating judge together with an application to join the proceedings as a civil party, where no criminal proceedings have yet been instituted.
59. A civil-party application, which has the effect of suspending proceedings in the civil courts, may be opposed by the prosecution, by the person placed under investigation (Law no. 93-2 of 4 January 1993 reforming criminal procedure substituted the expression "placing under investigation" for "charging") or by another civil party, or the investigating judge may, of his own motion, declare it inadmissible in an order which must state reasons and which is open to appeal (Article 87 CCP). A decision by the judicial authority investigating an offence to allow an application to join the proceedings as a civil party does not in any way bind the trial court as to the admissibility of that application.
60. Intervention by a civil party may be grounded on nothing more than a concern to support the prosecution case and to secure a declaration of the accused’s guilt. Accordingly, it is accepted in case-law that a civil-party application is admissible even where no claim for damages will lie. The right to seek reparation for damage is merely a possibility afforded to the victim, who is free to decide not to make use of it (Court of Cassation, Criminal Division ("Cass. crim."), 10 October 1968, Bulletin ("Bull.") no. 249; Cass. crim. 15 October 1970, Dalloz (D.) 1970).
"In modern legal analysis, derived from both statute and case-law, a distinction is drawn between the lodging of a civil-party application and civil-party proceedings, or rather,to avoid all ambiguity, an action for reparation. When dealing with the admissibility of a civil-party application and theadmissibility and merits of an action for reparation, it is no longer possible, without risk of confusion, to refer to both as civil-party proceedings, unless that term is understood inthe broad sense of participation by the civil party in thecriminal proceedings.
For how can it be maintained that the injured party brings anykind of ‘civil proceedings’ when he merely calls, as he isexpressly authorised to do, for the offender to be punished or,if not punished, at least declared guilty. He may later,perhaps, in other courts, take advantage of the criminaljudgment, but in the criminal court he has made no claim whichcan be characterised as civil.
Lastly, from the theoretical point of view, the above analysisrenders obsolete the controversy about the nature ofcivil-party proceedings, which some commentators have held tobe two-fold ... while others say their nature is unmixed ...The truth is that a civil-party application is vindictive incharacter, whereas the purpose of an action for reparation isto obtain compensation." (Extraits des Juris-Classeurs deprocédure pénale 1990, vol. 10, paras. 25-27)
61. Lodging a civil-party application gives the victim the status of party to the criminal proceedings. He is informed about the investigative measures taken and has access to the file under the same conditions as the person under investigation. He may appeal against orders of the investigating judge that are adverse to him and against judicial decisions concerning his civil interests.
62. The CCP contains the following relevant provisions:
"Once the Assize Court has given judgment in the criminalproceedings, it shall rule, in the jury’s absence, on theclaims for damages lodged either by a civil party against theaccused or by an acquitted defendant against the civil party,after the parties and the prosecution have been heard.
The court may delegate one of its members to hear the parties,inspect the file and submit his report at a hearing, when theparties may still submit observations, after which theprosecution shall be heard."
"Where the trial ends in acquittal or discharge, the civilparty may seek compensation for damage resulting from thedefendant’s fault, as made out by the acts which gave rise tothe prosecution."
The Assize Court has jurisdiction under Article 372 CCP to rule on a claim for damages lodged by a civil party against a defendant who has been acquitted on both the main charge of fatal wounding and the alternative charge of causing death by negligence. The not-guilty verdict of the court and the jury, for which no reasons are given, does not exclude either the existence of the acts which gave rise to the prosecution or the possibility that the victim’s death may have been caused by a non-intentional tort (Cass. crim. 3 December 1959, Bull. 531).
The Assize Court must, after acquitting the accused, respond to any submissions made by the civil party, where the latter maintains his claim for damages, by ascertaining whether, on account of the acts which gave rise to the prosecution, divested of all their criminal attributes, the accused has committed a fault distinct from the alleged criminal offence for which he has been tried (Cass. crim. 14 January 1981, Bull. 24).
The Assize Court may, after acquitting the accused, order him to pay damages, provided that its decision is based on the acts which have given rise to the prosecution, that it is consistent with the not-guilty verdict and that it specifies the fault on which its order is grounded, which must be distinct from the serious criminal offence of which he has been finally acquitted (Cass. crim. 26 February 1969, Bull. 97; Cass. crim. 11 March 1987, Bull. 121).
A not-guilty verdict and acquittal do not prevent the Assize Court from considering whether the same act, divested of all the circumstances which gave it a criminal character, does not at least constitute prejudice such as to engage the accused’s civil liability if the court finds that he has committed a fault (Cass. crim. 15 December 1982, Bull. 293; Cass. crim. 7 October 1987, Bull. 341).
When dealing with an application by the civil party after the accused’s acquittal, the Assize Court is under no obligation to ascertain whether the latter has committed a fault distinct from the serious criminal offence of which he has been finally acquitted if the civil party has not asked it to do so (Cass. crim. 13 April 1988, Bull. 157).
63. The Court of Cassation has held that submissions quantifying claims for damages filed after judgment has been given in criminal proceedings are admissible if the civil party has joined those proceedings before judgment (Cass. crim. 19 October 1950, Bull. 50 no. 238; Cass. crim. 24 October 1952, Bull. 52 no. 232).
64. The Civil Code contains the following relevant provisions:
"Any act committed by a person that causes damages to anothershall render the person through whose fault the damage wascaused liable to make reparation for it."
"Liability is incurred not only for the damage caused by one’sown act but also for that caused by persons for whom one isresponsible or by things one has in one’s keeping."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22932
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: VOROBYEVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Lyudmila Grigoryevna Vorobyeva, is a Ukrainian national who was born in 1937 and resides in Kharkov.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In May 2001 the applicant instituted civil proceedings in the Dzerzhinsky District Court, Kharkov, against her former employer seeking reinstatement, unpaid salary and compensation. On 12 September 2001 the court found in part for the applicant. On 17 January 2002, the Kharkov Appellate Court dismissed an appeal by the applicant.
The applicant did not appeal in cassation against the decisions to the Supreme Court of Ukraine.
A third level of jurisdiction, to be part of the ordinary judicial procedure, was introduced into the Ukrainian legal system by the Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure of Ukraine, which came into force on 29 June 2001. Under the new provisions, the parties are entitled to appeal against the decision of the first instance court and the appellate court to the Supreme Court of Ukraine, acting as a court of cassation.
Under the second paragraph of Article 320 of the Code of Civil Procedure (hereafter the “CCP”), the basis for a cassation appeal is the incorrect application of the norms of substantive law or the infringement of the norms of procedural law.
Article 329 of the CCP provides for the filter of cassation appeals by a panel of three judges of the Civil Chamber of the Supreme Court who decide whether or not leave to appeal should be granted. No participation of the parties is foreseen at this stage of proceedings. Leave to appeal is granted unless the panel unanimously decides otherwise.
Under Article 334 of the CCP, the Supreme Court, acting as the court of cassation, has the power to:
1) reject the cassation appeal;
2) fully or partly annul the judicial decision at issue and remit the case for a re-hearing to the court of first instance or appellate court;
3) annul the decision at issue and leave in force a judgment that was quashed by an appeal court in error;
4) annul the decision at issue, terminating the proceedings in a civil case and refusing to allow an applicant’s claims;
5) change the decision on the merits of the case and not remit it for further consideration.
The system became effective as of 29 June 2001 and concerned cases pending before first and second instance courts.
Under the transitional provisions of the same law, any final decision in a civil case could be appealed under the new cassation procedure within three months of the new law coming into force, that was from 29 June to 29 September 2001.


ITEMID: 001-60995
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF C. SPA v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant is a company based in Lainate.
9. In 1987, it became the owner of several flats in Milan, which had all been leased by the previous owner.
10. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
11. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
12. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
13. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
14. Between 8 June 1990 and 8 November 1999, the bailiff made thirty-five attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
15. On 19 May 2000, the applicant recovered possession of the flat.
16. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
17. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1989.
18. On 20 November 1990, the applicant served notice on the tenant requiring him to vacate the premises.
19. On 10 December 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 4 January 1991.
20. Between 4 January 1991 and 11 November 1997, the bailiff made twenty-seven attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
21. In March 1998, the tenant vacated the premises.
22. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
23. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
24. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
25. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
26. Between 8 June 1990 and 11 April 2000, the bailiff made thirty-eight attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
27. On an unspecified date, the applicant recovered possession of the flat.
28. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
29. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
30. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
31. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
32. Between 8 June 1990 and 8 November 1999, the bailiff made thirty-four attempts to recover possession. Each attempt proved unsuccessful, as under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
33. In June 1998, the tenant vacated the premises.
34. In a writ served on the tenant on 2 October 1987, the applicant communicated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
35. By a decision of 13 October 1987, which was made enforceable on 20 October 1987, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1990.
36. On 21 April 1990, the applicant served notice on the tenant requiring him to vacate the premises.
37. On 11 May 1990, it served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1990.
38. Between 8 June 1990 and 1 February 2000, the bailiff made thirty-eight attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
39. On an unspecified date, the applicant recovered possession of the flat.
40. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61687
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TAKAK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 9. The applicant was born in 1966 and lives in Izmir, Turkey.
10. On 11 March 1994 the applicant was taken into custody by the officers from the Izmir Security Directorate Anti-Terror branch on suspicion of aiding and abetting an illegal terrorist organisation, the PKK.
11. On 17 March 1994 the applicant was brought before the judge at the Izmir State Security Court. Before the court she pleaded not guilty and maintained that she did not accept the statements that she had made at the Security Directorate. She further denied the testimony of a witness, A.A., against her. Subsequently, the court ordered her release on account of insufficient evidence to remand her in custody.
12. On 7 April 1994 the public prosecutor at the Izmir State Security Court filed an indictment with the court charging the applicant under Article 169 of the Criminal Code and Article 5 of Law no. 3713 (the Prevention of Terrorism Act 1991 as amended) with aiding and abetting the PKK.
13. On 24 November 1994 the Izmir State Security Court convicted the applicant as charged and sentenced her to three years and nine months' imprisonment. She was further debarred from public service for three years. The court based its judgment on the following evidence: some ammunition found by the police, various weapons and the ballistics reports confirming the applicant's use thereof, invoices, a notebook used for recording expenditures of the PKK, photos of the applicant taken with some PKK militants, the statements made by the applicant at the Security Directorate, the statements made by S.A., A.A., M.T. and F.A. at the Security Directorate, the Public Prosecutor's office and before the court and finally the testimonies of T.T., N.F., A.O., H.K. and B.O., who were being tried by the same court for charges with other offences.
14. On 25 September 1995 the Court of Cassation upheld the Izmir State Security Court's judgment of 24 November 1994.
15. On 1 November 1995 the Izmir chief public prosecutor suspended the execution of the applicant's sentence until 28 April 1996 as she had given birth.
16. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4513
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KELLING v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a German citizen, born in 1965. He resides at Malente, Germany. Before the Court he is represented by Anders Boelskifte, a lawyer practising in Copenhagen, Denmark.
On 7 August 1994 the applicant was arrested in Copenhagen and charged with smuggling a large quantity of drugs, including approximately 1 kg of cocaine and 29 kg of hashish, which was found in the car used for the purpose when he was arrested by the police.
On 8 August 1994 the applicant and three other presumed accomplices were heard by the City Court of Copenhagen (Københavns Byret). The applicant admitted having participated in two incidents of smuggling hashish and was detained pursuant to Section 762, subsection 1, of the Administration of Justice Act (retsplejeloven) on the basis of a fear that he would otherwise impede the investigation or evade prosecution.
On 28 October 1994 during a remand hearing the applicant confessed to having participated in the smuggling of hashish into Denmark on four occasions. He denied all knowledge of the cocaine found in the car on 7 August 1994.
On 6 July 1995 yet another accomplice to the applicant was heard by a court in Berlin in order to obtain evidence to be used in the case before the Danish courts involving the applicant.
Despite the applicant’s protests on 21 July and 18 August 1995 before the City Court and on 20 November and 6 and 18 December 1995 before the High Court of Eastern Denmark (Østre Landsret) the courts decided to prolong his detention on remand. Whereas the first three of these decisions were based on the fear that the applicant would impede the investigation as well as on the fear that he would evade prosecution, the two last decisions were based solely on the latter. The applicant appealed against the High Court decisions of 6 and 18 December 1995 to the Supreme Court (Højesteret), invoking inter alia Articles 5 and 6 of the Convention. On 12 January 1996, however, the Supreme Court upheld the High Court’s decisions.
In the meantime, on 3 October 1995, an indictment was served on the applicant. Following an amendment on 21 May 1996 he was charged with drug trafficking, having participated on five occasions from the end of June until 7 August 1994 in the smuggling of a total of approximately 120 kg of hashish into Denmark, and having participated, on the latter date, in the smuggling of approximately 1 kg of cocaine into Denmark.
From 20 to 23 May 1996 the applicant and two accomplices were heard by the High Court, sitting with a jury. The applicant pleaded guilty as regards the smuggling of what he had believed amounted to a total of approximately 30 kg of hashish. He denied, however, all knowledge of the cocaine found in the car. On 23 May 1996 the jury found the applicant guilty only to the extent to which he had pleaded guilty. He was convicted in accordance with the jury’s verdict and sentenced to one year’s imprisonment. The following day, 24 May 1996, the applicant was expelled to Germany as he was considered as having served his sentence in detention on remand.
The applicant did not appeal against the High Court judgment but subsequently, he brought a claim for compensation before the City Court of Copenhagen against the prosecution authorities, pursuant to Section 1018a of the Administration of Justice Act, for the time spent in detention on remand in excess of the sentence ultimately imposed on him. He claimed primarily 272,006.98 Danish Crowns (DKK) based on an assumption that he would have been released on parole after a certain period in accordance with usual practice. Alternatively, he claimed 211,817.42 DKK for the time spent in detention on remand in excess of his one year prison sentence without deduction. He invoked inter alia Articles 5 and 6 of the Convention.
On 5 September 1997 the City Court, sitting with a professional judge and two lay judges, decided as follows:
(Translation)
“The Court finds, as argued by the prosecution, that the plaintiff has shown a considerable degree of contributory negligence by having smuggled several times without assuring himself of which drugs and quantities [of drugs] he smuggled. The plaintiff ought to have assured himself thereof in the light of his kingpin’s remark that he risked being charged for more than [the smuggling of] hashish and in the light of the fact that the car used the last time could contain more drugs than the car used the first times...
The Court finds, furthermore, that in calculating a possible amount of compensation a fictitious date for release on parole cannot be taken into consideration.
Two judges find that the proceedings before the prosecution authorities and the courts have been of such length that it would be unreasonable to refuse totally the plaintiff’s claim for compensation by reason of the contributory negligence which he has shown. These judges vote in favour of awarding [the applicant] 70,000 DKK in compensation plus interest, which is equivalent to approximately one third of his alternative claim.
One judge finds that [the applicant’s] claim for compensation be refused by reason of his contributory negligence.
Judgment will be pronounced in accordance with the opinion of the majority.
It is held:
Within 14 days the State must pay 70,000 DKK to [the applicant].
...”
The applicant did not appeal against this judgment.


ITEMID: 001-58913
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF HOOD v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-5;Not necessary to examine Art. 13;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 7. The applicant, David Hood, is a British national born in 1970. He resides in the United Kingdom. At the relevant time, he was a soldier with the regular forces of the British army.
8. Prior to the events in question, the applicant went absent without leave from his unit in Germany three times. Prior to his third absence, he had been remanded for trial by court martial on an assault charge (later abandoned), he remained absent for almost two and a half years and he gave himself up to the civilian police in December 1993.
9. On 11 May 1994 the applicant did not return after two weeks’ leave (his fourth absence without leave). On 27 November 1994 he was arrested at his home by the civilian police and on 28 November 1994 he was taken by army escort to Brompton Barracks. Before the Court, the parties disputed whether the applicant was then brought before his commanding officer on 29 November 1994 pursuant to Rule 4 of the Rules of Procedure (Army) 1972 (see paragraph 29 below).
10. The applicant remained in close arrest until his court martial. He was detained in a cell in a guardroom under the supervision of a guard apart from certain occasions when he was taken to hospital for psychiatric care.
11. In or about December 1994 the applicant was informed that he would have to appear before the unit adjutant after Christmas. He retained a solicitor prior to Christmas, who advised him until 17 January 1995. On 4 January 1995 the applicant appeared before the unit adjutant and was given the abstract of evidence. He was told that he should read the abstract and check that it was accurate. The applicant was cautioned pursuant to Rule 10 of the Rules of Procedure (Army) 1972 (see paragraph 32 below).
12. Acting on his original solicitor’s advice, the applicant prepared his own statement and obtained a statement from his girlfriend, which statements were completed on 4 and 19 January 1995 respectively. The applicant submitted both statements to the adjutant on 20 January 1995, which statements were then attached to the abstract of evidence. The applicant was then remanded for trial by court martial by his commanding officer and he applied for legal aid from the military authorities. The charge sheet, dated 25 January 1995 and signed by his commanding officer and on behalf of the convening officer, recorded two charges of absence without leave and two of desertion contrary to the Army Act 1955.
13. Although the applicant instructed his present solicitor in early February, the latter did not commence work for the applicant until legal aid was granted by the Ministry of Defence by letter dated 14 February 1995.
14. By notice dated 17 March 1995 a district court martial was convened to try the applicant on the charges. The court martial took place on 3 and 4 April 1995. The assistant prosecuting officer was the unit adjutant. The applicant, who was legally represented, pleaded not guilty.
15. During the court-martial hearing, the applicant’s solicitor challenged (under section 78 of the Police and Criminal Evidence Act 1984) the admission into evidence of the statements of the applicant and his girlfriend. The judge advocate (having heard evidence from the unit adjutant and the applicant’s representative) found that Rule 10 of the Rules of Procedure (Army) 1972 had been followed. Given the applicant’s legal representation at the relevant time and the procedures followed, the judge advocate could not see “how a fairer situation could have arisen” and, accordingly, he rejected the applicant’s challenge. The judge advocate also clarified during the court martial that “we can take it as an agreed fact that the adjutant or the assistant adjutant will either be the prosecuting or assistant prosecuting officer in any court martial”. The applicant was convicted on the two charges of absence without leave and on one of the charges of desertion, and the remaining charge of desertion was reduced to one of “absent without leave”. He was sentenced to be imprisoned for eight months and to be dismissed from the service, the sentence expressly taking account of the period of close arrest immediately preceding the court martial.
16. After confirmation and promulgation of the conviction and sentence, the applicant petitioned the Army. By letter dated 13 July 1995 the applicant was informed that his petition to the Army Board had been rejected. His leave application to the single judge of the Courts-Martial Appeal Court was rejected on 13 September 1995 and his further appeal to the full Courts-Martial Appeal Court was also refused on 18 March 1996.
17. The seventy-second day of the applicant’s detention fell on or around 7 February 1995. Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army) 1972 and paragraph 6.045(c) of the Queen’s Regulations (see paragraphs 31 and 38 below), a direction from the convening officer was completed on 3 February 1995 attaching an authorisation from the Commander in Chief, the latter of whom directed the applicant’s continued detention “to prevent him absconding” before trial (“the delay report”).
18. Having requested a copy of the delay report and informed the authorities of his intention to apply for a writ of habeas corpus, the applicant’s solicitor issued those proceedings on 17 February 1995 challenging mainly the regularity of the delay report. That report was received by the applicant’s solicitor on 20 February 1995, following which further submissions were made to the High Court.
19. On 21 February 1995 the High Court rejected the application. The court found, inter alia, that the delay report had been properly completed in a timely fashion. It noted that the expressed reason for the applicant’s continued detention was to prevent his absconding and found that “perfectly understandable” given the charges against him.
20. At the relevant time the provisions governing the detention and trial of members of the army were contained in the Army Act 1955 (“the 1955 Act”), in the Rules of Procedure (Army) 1972 (“the 1972 Rules”) and in the Queen’s Regulations for the Army 1975 (“the Queen’s Regulations”).
21. Since the applicant’s court martial, the law has been amended by, inter alia, the Armed Forces Act 1996 (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 276, §§ 52-57) and by the Investigation and Summary Dealing (Army) Regulations 1997 (“the 1997 Regulations”). The provisions detailed below are those applicable at the time of the applicant’s arrest, detention and court martial.
22. A warrant for the arrest of a person subject to military law and considered to have deserted or to be absent without leave may be issued by the commanding officer and any such warrant must be addressed to the civilian police. A person arrested pursuant to that warrant must be handed over as soon as is practicable to the military (section 190A of the 1955 Act).
23. The relevant rules vary depending on whether the accused is a non-commissioned officer or soldier or, on the other hand, an officer or warrant officer. In the former case (described below), the commanding officer’s powers are generally broader as regards the investigation and pursuit of charges against an accused.
24. Desertion and absence without leave constitute offences under the 1955 Act. The punishment for the offence of desertion is imprisonment for an unlimited term (subject to the sentencing power of the court martial in question) and that for absence without leave is imprisonment for a maximum of two years.
25. Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and that as soon as may be, either proceedings shall be taken for punishing the offence or he shall be released from arrest. In addition, should that detention last longer than eight days without a court martial being convened, a report (a “delay report”) on the necessity for further delay shall be made by the person’s commanding officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner every eight days until a court martial is assembled or the offence is dealt with summarily or the accused is released from detention.
26. Any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person’s commanding officer and, before any action is taken, the commanding officer must investigate the charge (section 76).
27. After investigation, a charge (which cannot be dealt with summarily) may be dismissed by a commanding officer if he is of the opinion that it ought not to be proceeded with. Moreover, if it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice ought to be, taken against the accused otherwise than under the 1955 Act, the commanding officer may stay further proceedings (sections 77 and 77A).
28. If the commanding officer has not stayed the charge and if the charge is not one which can be dealt with summarily and it has not been dismissed or if it is a charge which can be dealt with summarily but the commanding officer is of the opinion that it should not be so dealt with, he shall take the “prescribed steps” with a view to the charge being tried by court martial (section 78(1) and (2)). Dealing summarily with a charge includes taking evidence, reducing it to writing, deciding as to the guilt or innocence of the accused and rendering sentence (section 78(3)). However, where the commanding officer has taken steps to have the charge tried by court martial, any higher authority to whom the case is forwarded may refer the charge back to the commanding officer to be tried summarily if the charge is one that can be dealt with summarily (section 78(6)) or with a direction to dismiss the charge or to stay all further proceedings therein.
29. Rule 4 of the 1972 Rules provides that when a person is detained by a military authority, his commanding officer shall, unless it is impracticable, within forty-eight hours of becoming aware that he is so detained have such person brought before him, inform him of the charge against him and begin to investigate it. If the investigation has not begun within the forty-eight hours, the commanding officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation (Rule 4(2)).
30. The report to which section 75 of the 1955 Act refers shall be signed by the commanding officer of the person detained and shall be sent to the person who would be responsible for convening the court martial (Rule 5). According to Schedule 1 to the 1972 Rules the report must, inter alia, specify whether the accused is in close or open arrest, the reasons for his detention, certain details about the progress of the investigations and of the preparation for trial together with the reasons for the delay since the last report.
31. The accused shall not be held in arrest for more than seventy-two consecutive days without a court martial having been convened unless the convening officer directs in writing, citing reasons, that the accused shall not be released from detention (Rule 6).
32. Rule 10(1) provides that an abstract of evidence shall be made by the commanding officer or by another officer on the direction of the commanding officer. The accused shall not be present while the abstract of evidence is being made and it shall consist of a signed statement by, or a précis of the evidence of, each witness whose evidence is necessary to prove the charge. Once compiled, the accused is given (normally by the officer who compiled the abstract) a copy and the accused is cautioned as follows:
“This is a copy of the abstract of evidence in your case; you are not obliged to say anything with regard to it unless you wish to do so, but you should read it and, when you have read it, if you wish to say anything, what you say will be taken down in writing and may be given in evidence.” (Rule 10(2) of the 1972 Rules)
33. Statements submitted by the accused (including those of witnesses which he wishes to be included in the abstract) shall be attached to the abstract of evidence and shall thereafter form part of it (Rule 10(4)). The pamphlet entitled “Rights of a Soldier” (which is given to accused persons and which is available in the cells in the guardroom) describes the purpose of the extract of evidence as, inter alia, to “provide a brief for the prosecutor at trial” and to inform the accused of the evidence which will be given at trial.
34. The prescribed steps to be taken by a commanding officer for sending a case for trial by court martial include, in accordance with Rule 13, sending to higher authority a draft charge sheet (signed by the commanding officer), the abstract of evidence, a statement of character together with the service record of the accused and a recommendation as to how the charge should be proceeded with (for example, by district or general court martial). It is the convening officer who finally decides on the charges to be retained against an accused and he generally does so by countersigning the draft charge sheet submitted by the commanding officer.
35. Paragraph 6.005 of the Queen's Regulations states that the mere allegation that a person subject to military law has committed an offence does not, of itself, necessarily warrant placing that person under arrest of any description. If the offence is trivial, the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time. If arrest is necessary, the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline.
36. The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others or is likely to suborn witnesses; where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself; and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades (also paragraph 6.005).
37. Paragraph 6.007 provides that (subject to, inter alia, the general principle that the accused is not to be unnecessarily held under arrest) commanding officers are responsible for ensuring that in each case the need to keep an accused under arrest, together with the form of that arrest, is kept under constant review. As necessary, the form of arrest may be changed or the accused released.
38. Paragraph 6.045(c) provides that the person into whose custody the accused is committed is to inform the accused of the rank, name and unit of the person by whom he is alleged to have committed the offence and the nature of the allegation. Paragraph 6.047 provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity. Accordingly, it is provided, inter alia, that on the receipt of every delay report the convening officer is to satisfy himself (if the accused is in detention) as to the necessity of the ongoing detention (subsections (a) and (b)). On receipt of the fourth delay report, or, in any event, after forty days’ detention, the convening officer is to make a special report to his/her superior officer outlining the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (subsection (c)). If an accused is not brought to trial by the seventy-second day, the latter superior officer must, in turn, make a special report to the Commander in Chief by that day (subsection (d)). On receipt of such special reports, the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused (subsection (e)).
39. Where an accused has been in detention for seventy-two consecutive days without a court martial being convened, a direction in accordance with Rule 6 of the 1972 Rules not to release the accused can only be given with the prior approval of the Commander in Chief. This report is to contain the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (paragraph 6.047(f)). Delay reports are not, as a rule, copied to the accused or his representative.
40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. Jurisdiction is normally exercised by the Divisional Court of the Queen’s Bench Division of the High Court and habeas corpus is available to persons in military custody (R. v. Royal Army Service Corp. Colchester, ex parte Elliott [1949] 1 All England Law Reports at p. 373).
41. The scope of this review will depend on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. However, the court will examine the legal validity of an accused’s detention and whether there is sufficient evidence to detain him, and, if the power to detain depends on the prior establishment of an objective fact, the court will decide whether that fact exists (Khawaja v. Secretary of State for the Home Department [1984] Appeal Cases at p. 74).
42. Legal aid is not available from the military authorities for applications to the civilian courts, including applications for writs of habeas corpus. However, legal aid from the civilian authorities is available for such proceedings. A person will not be granted representation for the purposes of any such proceedings unless it is considered that there are reasonable grounds for taking, defending or being a party to proceedings (section 15(2) of the Legal Aid Act 1988). Such an application for legal aid will only be approved after all the questions of fact or law arising in the action, cause or matter to which the application relates, and all the circumstances in which the application was made, have been considered (Civil Legal Aid (General) Regulations 1989).
43. An application for an emergency legal aid certificate can be made pursuant to the Civil Legal Aid (General) Regulations 1989. The information furnished must be such as to allow the area director to decide the nature of the relevant proceedings, the circumstances in which it is required, whether the application is likely to fulfil the conditions under which legal aid may be granted and whether it is in the interests of justice that the applicant should as a matter of urgency be granted legal aid.
44. The relevant provisions of the 1955 Act relating to general courts martial are set out in the above-mentioned Findlay judgment (at pp. 272-75, §§ 32-51). These provisions (summarised at paragraph 45 below) apply equally to a district court martial with certain relevant differences. A district court martial comprises a president and a minimum of two other officers and the minimum rank of those members is lower than for a general court martial.
45. Central to the court-martial system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court martial. That officer had the final decision on the nature and detail of the charges to be brought and the type of court martial required, and was responsible for convening the court martial.
The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.
Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence.
The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.
The convening officer usually acted as confirming officer also. The findings of a court martial were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-5
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-77753
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KLEIN v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1947 and lives in Bratislava. He is a journalist and film critic.
8. On 27 February 1997 Miloš Forman’s film “The People vs. Larry Flynt” was released to cinemas in Slovakia. Prior to that, the film was promoted, inter alia, by means of a poster placed in the streets. In the poster the main character had the flag of the U.S.A. around his hips and he was depicted as crucified on a woman’s pubic area dressed in a bikini.
9. On 26 February 1997 the “Common Declaration of Ecumenical Council of Churches and of the Slovak Bishops’ Conference” was published. The declaration protested against the display of the poster as being a profanation of God. The Movement of Christian Associations of Children subsequently associated itself with the declaration.
10. On 11 March 1997 Archbishop Mons. Ján Sokol made the following declaration on the Slovak Television:
“In these days we are witnessing ‘the humiliation of the crucifix’. In spite of all protests of the Slovak Bishops’ Conference and the Ecumenical Council of Churches aimed at stopping the production and distribution of the poster promoting the film of Miloš Forman: ‘The People versus Larry Flynt’ this poster is present in the streets of our capital Bratislava. It is a defamation of the symbol of the Christian religion. The American Film Association did not allow this blasphemy. It was not allowed in France and Belgium either. How is it possible that it was allowed in Slovakia which professes the tradition of Cyril and Methodius, that is the Christian religion, even in the Constitution? ... Therefore we request the Government, the Parliament, our public officials within the legislature and judiciary to examine the entire issue and take appropriate measures for withdrawal of the posters and the film and to hold accountable those who violated the laws... We hope that our protest will be viewed favourably by the responsible officials and that redress will be made. To all those who endeavour to do so we express our sincere thanks in advance.”
11. On 28 March 1997 the weekly Domino Efekt published an article written by the applicant. The weekly was at that time published in 8,000 copies and it mainly concentrated on political commentary and specialised articles on economy, philosophy, natural sciences and culture. It was aimed at intellectually-oriented readers.
12. The article was entitled “The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite”. In it the applicant criticised Archbishop Ján Sokol. It did not mention that it had been written in reaction to the above TV broadcast of the Archbishop. The article reads as follows:
“I. As is generally known, the Earth is a flat board. Even if it is not a flat board, the Sun turns around it. Even if it does not turn, the church dignitary made love to his mother.
II. The text may go on as follows: ‘Even if he did not make love...’ He did. Proves: (a) Larry Flynt won a Supreme Court trial in the USA. (b) The church dignitary is a ’trtko’. This all will acknowledge who saw him at least on TV.
III. I profoundly hate using the word ‘trtkať’. The indispensable exceptions can be counted on the fingers of Eltsin’s left hand:
1. ’Trtkaj’ is the nickname of a former professor at the Chair of Journalism at the Faculty of Philosophy of the Comenius University during the period of ‘normalisation’.
2. ’Trt’ is a rarely used acclamation for [negating something] or the equivalent of the negation term ‘shit’ used in the Haná region.
3. ’Trtko’ is – as from a certain age – the same as the perhaps more colourful and euphemistic ‘trotkoš’. Such a person does not make love, nor does he ... At the utmost – oh – [the verb ‘trtkať’ is used]; poor mother.
IV. Slovakia is not a Christian State. (When French church dignitaries requested the prohibition of the Flynt poster, they had not even thought, fearful ones, of requesting prohibition of the film. They also alleged that France was a Christian State. Alas, a glimpse at the first articles of the constitution shows that the French people live in liberty, democracy and that it is their private affair whether of not they believe. Not a single word about a Christian State.)
A Christian State would be equally as intolerable as an Islamic State, for example Iran. It indirectly follows that none of the western States is Christian. The long-lasting separation of church from the State is to be considered as a major victory of spirit over matter. (I now disregard the fact that your neighbours in an Austrian or Bavarian village will make your life difficult if you leave the church).
The continuation of certain ceremonials is no proof that a State is ‘Christian’. For example, the American President ends the oath with the ritual words: ‘So help me God’. However, Larry Flynt refused to swear on the Bible with the explanation that he did not believe in God. Of course, the judge was satisfied with his statement that he would tell the truth. The American President could act likewise, but he would complicate his political life. The number of political struggles which we are able to fight in our life is limited. It is thus more important that Bill Clinton should send soldiers to Bosnia than the fact that he finally did not send there soldiers who were openly homosexual.
V. Given that the archbishop apparently lacks any sex-appeal it is entirely irrelevant whether in the inside of his body he is homosexual or bisexual (as Courtney Love in the film) or whatever. What matters, however, is his positive lustration finding. This principal representative of the first Christian church has not even as much honour as the leader of the last gypsy band in his bow!
I do not understand at all why decent Catholics do not leave the organisation which is headed by such an ogre. Are they waiting until he dies? That is too weak. No member of the Communist Party of Czechoslovakia maintains in his or her defence: ‘I waited until Husák and Jakeš had died. Then I would make an effort to ensure redress’. Otherwise we would still live in the trees.
VI. As we actually do – in the figurative sense. The success of ‘Kolja’ (there is not a jot of paedophilia, not a single fellatio in that film) shows how pale the world has become. Salman Rushdie is the hunted one. It is true that the French President received him, but it is unthinkable that the Slovakian President would do the same. The latter preferred joining the archbishop in his effusions. Which ‘–ko’ advised him to do so: Štefko, Zemko?
VII. The real Larry Flynt published and continues publishing materials that are scurrilous. Their degree of effrontery exceeded the threshold accepted up to then. So what? The real Larry Flynt acted in the film as a judge and in his role he made unacceptable statements. That was however foreseen in the script. The Slovak archbishop makes unacceptable statements without being ordered to do so by anyone. And nothing?! Vanity, all is vanity.
At the request of the editorial office I leave it to the kind readers to pronounce a judgment as to the degree of scurrility of the Slovak archbishop.”
13. Subsequently two associations complained that the religious feelings of their members had been offended by the article. Criminal proceedings were brought against the applicant. Archbishop J. Sokol first joined the proceedings as an aggrieved person. He later withdrew from the case and waived his right to claim compensation.
14. On 15 June 2000 the Košice I District Court convicted the applicant of an offence under Article 198(1)(b) of the Criminal Code. The relevant operational part of the judgment reads as follows:
“... as author of the article ‘The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite’ ... stating inter alia: ‘This principal representative of the first Christian church has not even as much honour as the leader of the last gypsy band in his bow! I do not understand at all why decent Catholics do not leave the organisation which is headed by such an ogre ...’, to which the local association of the Cyril and Methodius Community in Prievidza and the Bernolák Society in Bratislava reacted independently of each other as offending their religious feelings, the applicant publicly defamed a group of citizens for their faith.”
15. The applicant was sentenced to a fine of 15,000 Slovakian korunas, to be converted into one month’s imprisonment in the event that he deliberately attempted to avoid payment of the sum.
16. In the proceedings before the District Court the applicant explained that his article had been a reaction to statements by Archbishop J. Sokol broadcast in the main evening news bulletin of the Slovak Television in March 1997. The applicant considered the Archbishop’s proposal to prohibit the distribution of both the poster and the film to be contrary to the principles of a democratic society and, in particular, the freedom of expression. The applicant considered it appropriate to express his view openly as in the TV broadcast no one had been given the opportunity to express a different view from that of the Archbishop. He did not consider the Archbishop to be morally spotless as he had learned that he had been registered in the files of the former communist secret police. The applicant underlined that he had not intended to offend the feelings of members of the Catholic Church.
17. As to his article, the applicant stated that it was not a commentary but a literary joke with ideas and associations which, admittedly, might be appreciated only by a couple of intellectuals. The applicant stressed that it had not been his intention to accuse the Archbishop of incest as the relevant passage related to the film in question in which a preacher had allegedly committed incest with his mother. His statement concerning the alleged scurrility of the Slovakian Archbishop had no erotic connotation, the applicant had in mind exclusively the moral failings of the person criticised.
18. The applicant also explained that he had not been able to publish any articles for three years and that Radio Free Europe had stopped co-operating with him following the publication of the above article.
19. In the course of the criminal proceedings the Archbishop stated that he did not understand the purpose of the applicant’s attack against his person, his mother and the church which he represented. He further stated that he had pardoned the applicant.
20. The court heard the representatives of the two associations which had filed a criminal complaint against the applicant. They stated that the applicant had offended and scandalised Roman Catholic worshippers in that, inter alia, he had invited them to leave their church if they considered themselves to be decent and alleged that the representative of the church was an ogre.
21. On the basis of the evidence taken the District Court found that the applicant had committed an offence under Article 198(1) of the Criminal Code in that in his article as a whole, and in particular by the words quoted in the operative part of its judgment, he had defamed the highest representative of the Roman Catholic Church in Slovakia and thereby offended the members of that church. In particular, the applicant’s statement in which he wondered why decent members of the church did not leave it had blatantly discredited and disparaged a group of citizens for their Catholic faith. In doing so the applicant had placed the Catholic Church at the level of an organisation to which decent Catholics should not belong and which they should leave. The applicant should have been aware that his article was capable of offending the interests of other persons protected by law. Given that a high proportion of citizens of Slovakia were Catholic, the applicant through his article harmed the religious feelings of a considerable number of persons.
22. Both the applicant and the associations which had filed the criminal complaint against him appealed.
23. The applicant argued that he had committed no offence and that his conviction violated his right to freedom of expression. He referred to constitutional provisions, international instruments and the practice of the European Court of Human Rights under Article 10 of the Convention.
24. The representatives of the complaining associations expressed the view that the sentence imposed on the applicant was too lenient.
25. On 10 January 2001 the Košice Regional Court dismissed both appeals. It held that the first-instance court had established the relevant facts with sufficient certainty and that it had correctly applied the relevant law. As to the applicant’s arguments relating to his right to freedom of expression, the Regional Court held:
“It is true that Article 26 (1) and (2) of the Constitution of the Slovak Republic as well as Article 10 of the European Convention on Human Rights and Article 19 of the Universal Declaration of Human Rights guarantee the freedom of expression and the right to information.
Thus it is not disputed that, under the Constitution of the Slovak Republic, each citizen has the right to receive, seek and impart any information, however only to the extent that the constitutional rights and freedoms of others are not thereby violated. This conclusion can be indirectly deduced from Constitutional Court’s finding PL ÚS 7/96 in which the Constitutional Court held that ‘All fundamental rights and freedoms are protected only to the extent that availing oneself of a right or freedom does not disproportionately restrict or even negate a different right or freedom’.
The article ‘The falcon is sitting in the maple tree; Larry Flynt and seven slaps to the hypocrite’ is not of a common journalistic standard; the accused admitted this at the main hearing and the Regional Court considers that it goes beyond the principles of journalistic ethics. [The Regional Court] is also aware that Article 10 of the Convention protects the freedom of expression not only in cases of ‘information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb or worry the State or any part of population’. The members of the appellate court’s chamber believe that even in such cases certain limits exist which should not be exceeded. The article in question is vulgar and it ridicules and offends. In the view of the Regional Court it therefore enjoys no protection. Otherwise media could easily become distributors of, inter alia, various malevolent expressions which diminish human dignity. That would certainly not correspond to the spirit and principles of democracy. By the contents of the published article the accused violated the rights, guaranteed by the Constitution of the Slovak Republic, of other persons – namely a group of inhabitants with Christian faith. He thereby offended their religious feelings.”
26. As to the qualification of the applicant’s action under the Slovak criminal law and the penalty imposed, the Regional Court upheld the reasoning of the first-instance court. Finally, the Regional Court pointed out that the associations concerned lacked standing to challenge by means of an appeal the sentence imposed on the applicant.
27. On 2 April 2001 the applicant complied with the order to reimburse to the District Court the costs of the proceedings amounting to SKK 800.
On 10 December 2002 the company VMV a.s. paid, on behalf of the applicant, SKK 15,000 to the Košice I District Court with reference to the pecuniary penalty which had been imposed on him. The Companies’ Register available on the web indicates that that company has been in liquidation since 15 January 2005.
28. The Preamble to the Constitution provides, inter alia, as follows:
“... Mindful of the spiritual bequest of Cyril and Methodius, ...
We, the citizens of the Slovak Republic, have, herewith and through our representatives, adopted this Constitution:” ...
29. Pursuant to Article 1, the Slovak Republic is a sovereign, democratic State governed by the rule of law. It is not bound by any ideology or religion.
30. Article 24 reads as follows:
“1. Freedom of thought, conscience, religion and faith shall be guaranteed. This right shall include the right to change religion or faith and the right to refrain from a religious affiliation. Every person shall be entitled to express his or her opinion publicly...
4. The rights under paragraphs 1 to 3 of this Article can be restricted only in accordance with a law where it is necessary in a democratic society for the protection of the public order, health, morals or the rights and freedoms of others.”
31. Article 26 provides:
“1. Freedom of expression and the right to information shall be guaranteed.
2. Every person has the right to express his or her opinion in ... writing, ... and also to seek, receive and disseminate ideas and information ...
4. Freedom of expression and the right to receive and disseminate information may be limited by law where it is necessary in a democratic society to protect rights and freedoms of others, state security, public order, health and morals.” ...
32. Article 198 of the Criminal Code is entitled “Defamation of nation, race and belief”. At the relevant time paragraph 1 of Article 198 read as follows:
“A person who publicly defames
a) a nation, its language or a race or
b) a group of inhabitants of the republic for their political belief, faith or because they have no religion,
shall be punished by up to one year’s imprisonment or by a pecuniary penalty.”
VIOLATED_ARTICLES: 10


ITEMID: 001-70096
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SALOV v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Antonella Mularoni
TEXT: 10. The applicant is a Ukrainian national who was born in 1958 and currently resides in Donetsk. He is a lawyer practising in Ukraine.
11. On 31 July 1999 the Central Electoral Commission registered the applicant as the representative of a candidate for the presidency of Ukraine, Mr Olexander O. Moroz. The latter was the leader of the Socialist Party of Ukraine at the time.
12. On 31 October 1999 the Kyivsky District Prosecution Service of Donetsk (the “Kyivsky Prosecution Service”) conducted a criminal investigation into allegations that the applicant had interfered with the citizens' right to vote (Article 127 § 2 of the Criminal Code of Ukraine – “the CC”).
13. On 1 November 1999 the applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate, the incumbent President Mr Leonid D. Kuchma. The applicant had allegedly disseminated this information on 30 and 31 October 1999 in the form of a statement by the Speaker of the Verkhovna Rada (Parliament) published in a special nationwide issue of the Verkhovna Rada newspaper Holos Ukrayiny (газета “Голос України”). The text of the article disseminated by the applicant reads as follows:
14. Following the applicant's arrest, the Kyivsky Prosecution Service carried out a formal criminal investigation into the allegations made against him.
15. On 3 November 1999 the Kyivsky Prosecution Service decided to detain the applicant on suspicion of having committed a crime under Article 127 § 2 of the CC (see paragraph 41 below). The applicant was detained in the Temporary Investigative Isolation Unit of the Donetsk Region. He remained there until 10 November 1999.
16. On 5 November 1999 the applicant was formally charged with having committed an offence under Article 127 § 2 of the CC (see paragraph 41 below). The prosecution service classified his actions as having been committed by an official.
17. On 10 November 1999 the applicant lodged an application (dated 6 November 1999) with the Voroshylovsky District Court of Donetsk to be released from detention. On 17 November 1999 the court dismissed his application.
18. On 11 November 1999 the applicant was transferred to the Donetsk Investigative Detention Centre No. 5.
19. On 16 November 1999 the applicant underwent a medical examination. He was found to be suffering from bronchitis and second-degree hypertension. The medical commission recommended that the applicant be hospitalised.
20. On 22 November 1999 the Kyivsky Prosecution Service completed the pre-trial investigation into the applicant's case and committed him for trial.
21. On 25 November 1999 the case file was transferred to the court. On 10 December 1999 the Kuybyshevsky District Court of Donetsk (the District Court”) committed the applicant to stand trial on charges of interference with the citizens' right to vote, contrary to Article 127 § 2 of the CC (see paragraph 41 below). It also decided not to release him from detention.
22. In the course of the trial Judge T. of the District Court on 7 March 2000 passed a resolution (постанову) ordering He also requested the prosecution to reconsider the preventive measure of detention applied in respect of the applicant and to reclassify the charges against him. In particular, he stated:
23. On 30 March 2000 the deputy prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court (“the Presidium”) against the resolution of 7 March 2000 and requested the initiation of supervisory review proceedings in the applicant's case. He also sought to set aside the resolution of 7 March 2000 in which the case had been remitted for additional investigation. The deputy prosecutor considered that there was sufficient evidence to corroborate the applicant's interference with the citizens' right to vote (Article 127 § 2 of the CC). On the same date the registry of the court acknowledged receipt of the protest.
24. On 5 April 2000 the Presidium, composed of its President, L.V.I., and the judges R.L.P., P.L.V., R.L.I., M.M.I. and B.A.M., in the presence of a prosecutor, quashed the resolution of 7 March 2000 and remitted the case for further judicial consideration. In particular, the Presidium found that the District Court had remitted the case back for additional investigation without a thorough examination of the indictment and of the requisite actus rea and mens rea of the offence with which the applicant had been charged. It had also not mentioned which particular investigative measures the prosecution was required to take. The Presidium decided not to release the applicant from detention. In particular, it stated:
25. On 24 April 2000 the District Court dismissed a petition filed by the applicant's lawyer requesting that the case be remitted for additional investigation. It also dismissed the applicant's application for release from detention.
26. On 1 June 2000 the District Court dismissed a further application for the applicant's release.
27. On 16 June 2000 the District Court changed the preventive measure applied in respect of the applicant to an undertaking not to abscond.
28. On 6 July 2000 the District Court, chaired by Judge T., who had heard the case on 7 March 2000, convicted the applicant of interfering with the citizens' right to vote for the purpose of influencing election results by means of fraudulent behaviour. The District Court sentenced the applicant to five years' imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 Ukrainian hryvnyas (UAH). It held as follows:
29. On 15 September 2000 the Donetsk Regional Court, composed of the judges D.A.D., G.G. and D.A.V., upheld the judgment of 6 July 2000.
30. On 3 November 2000 and 9 February 2001 respectively the Regional Court and the Supreme Court of Ukraine dismissed, as being unsubstantiated, the applicant's complaints and his request for a supervisory review of his conviction.
31. On 22 November 2000 the Donetsk Lawyers' Qualifications and Disciplinary Commission annulled the applicant's licence to practise as a lawyer (no. 1051, issued on 17 December 1997). It based its decision on the applicant's conviction of 6 June 2000.
32. On 23 April 2004 the applicant received a new licence to practise as a lawyer (no. 1572), after passing an examination before the Donetsk Lawyers' Qualifications and Disciplinary Commission and paying the sum of UAH 1,200. He was allowed to sit exams after the legal effects of his conviction were annulled (погашена судимість).
33. In July 2000 the applicant instituted proceedings in the Voroshylovsky District Court of Donetsk against the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior, claiming compensation for the non-pecuniary and pecuniary damage resulting from his unlawful 10-day detention in 1999 in the Temporary Investigative Isolation Unit (Ізолятор Тимчасового Утримання). In particular, it was contended that he should have been held in the Investigative Detention Centre (Слідчий Ізолятор) and not in the Temporary Investigative Isolation Unit, as his status had been that of a suspect in criminal proceedings.
34. On 15 June 2001 the Voroshylovsky District Court of Donetsk allowed his claims in part. It also ordered the prosecution service of Donetsk and the Donetsk Regional Department of the Ministry of the Interior to pay UAH 3,000 (EUR 500) to the applicant.
35. On 22 November 2001 the Donetsk Regional Court of Appeal decided that the State Treasury, and not the prosecution service or the Ministry of the Interior, was liable for compensating the applicant. It therefore ordered the Donetsk Regional State Treasury Department to pay the applicant UAH 3,000 (EUR 500) in compensation for pecuniary and non-pecuniary damage.
36. The applicant alleges that this compensation was not paid to him.
37. The relevant provisions of the Constitution of Ukraine read as follows:
38. The relevant provisions of the Judiciary Act of 5 June 1981, with subsequent changes and amendments, as in force at the material time, read as follows:
39. Section 7 of this Act provides that any citizen of Ukraine who has attained the age of twenty-one and has a minimum of two years' legal experience may become a judge. By section 9(3), judges are appointed for a maximum initial period of five years, following an examination by the judicial qualifications commission and a decision of the relevant local authority. In accordance with sections 33 and 34 of the Act, a judge of the district court may be subject to disciplinary investigation on the basis of a request by the President of the regional court.
40. By sections 6 and 7 of this Act, the qualifications commissions had the power to institute disciplinary proceedings, and to submit conclusions on the feasibility of appointing a candidate for a position as a district-court judge and on the renewal of the judicial term of a judge elected for an initial period of five years. They could also request an attestation for a judge proposed for a promotion in judicial or administrative rank within the court, or an assessment of his legal knowledge. The presidents of the regional courts could request the qualifications commissions to certify or assess judges' knowledge and qualifications. In accordance with sections 32 and 33 of the Act, the presidents of the higher courts were allowed to request the institution of disciplinary proceedings against judges of the district courts.
41. The relevant provisions of Article 127 of the Criminal Code read as follows:
42. The relevant provisions of the Code of Administrative Offences read as follows:
43. The relevant provisions of Section III, Chapter 23, of the Code of Criminal Procedure read as follows:
44. The relevant provisions of Chapter 31 of the Code of Criminal Procedure provide as follows:
45. The relevant provisions of the Presidential Elections Act read as follows:
46. The relevant provisions of the reservation contained in the instrument of ratification are set out in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, § 56, 5 April 2005).
47. The relevant transitional provisions of the Constitution of Ukraine are set out in the Nevmerzhitsky judgment cited above.
48. The relevant resolution of the Plenary Supreme Court of Ukraine reads as follows:
49. In its decision the Constitutional Court found that the Cabinet of Ministers had acted unconstitutionally in passing the resolution of 22 March 1999 (no. 432) that reduced the expenditure of the 1999 State budget on the needs of: the Supreme Court by 40%, the regional courts by 7.5%, the district (and city) courts by 6.8%, the Higher Arbitration Court by 26.4%, the arbitration courts by 19.4%, and the military courts by 15.5%. According to the information issued by the Ministry of Justice (responsible for the courts' administration at the material time), this expenditure covered 51.6% of the needs of the first-instance courts and 62.8% of the needs of the regional courts. The Constitutional Court found that Resolution no. 432 exerted financial influence on the courts and infringed the citizens' right to judicial protection.
50. The Council of Judges, in its Decision no. 13 of 12 December 2000, found that the existing procedure for the selection and appointment of candidates for judicial posts, as established by the Ministry of Justice, Higher Council of Justice and the judicial qualifications commissions, was not compatible with the need to form a highly qualified judiciary able to administer justice effectively and independently.
51. On 12 December 2000 the Council of Judges adopted Resolution no. 10, finding that the decisions of the Cabinet of Ministers to lower judicial salaries were contrary to the principle of the independence of the judiciary.
VIOLATED_ARTICLES: 10
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1