ITEMID: 001-115207
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TIMOFEJEVI v. LATVIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1984 and 1958 respectively and live in Drabeši parish, Amata municipality.
6. According to the applicants, they have been involved in various disputes with the local police in their area, that is, with officers of the Cēsis District Police Department (Cēsu rajona policijas pārvalde). As established by an internal investigation, on 14 March 2004 there was an incident involving police officer J.M. of the Cēsis District Police Department and both applicants. The police officer and the second applicant had a discussion in a car. The first applicant approached the car and the police officer fired a shot. It hit the roof of the car. Following an internal investigation into the incident, police officer J.M. was discharged from the Cēsis District Police Department for having committed a serious breach of the rules of discipline by carrying firearms while under the influence of alcohol. The police officer stood trial; there is no information concerning the outcome of those proceedings.
7. The Government disagreed with the applicants’ account but provided no further information as regards the criminal proceedings against police officer J.M.
8. On 30 June 2004, at 1 p.m., police inspector J.S. and police cadet V.D. of the Cēsis District Police Department were patrolling in the Amata parish of the Cēsis District when J.S. saw the first applicant driving a car. The officers knew that the first applicant’s driving licence had been suspended after several violations of the traffic rules. J.S. approached the first applicant and informed him that he was committing a violation of the traffic rules by driving without a valid driving licence. The first applicant did not reply. Instead, he got out of the car and went into the mechanic’s workshop Ģikši, which belonged to his father, the second applicant. Although J.S. continued to shout towards the first applicant, requesting him to stop and come back, the latter did not pay any attention. Accordingly, J.S. and V.D. decided to apprehend him in order to draw up an administrative offence report. They followed him, took hold of his hands and attempted to walk him towards the police car. However, the first applicant resisted by pulling his hands away, pushing the police officers away and falling on the ground in order to drag J.S. down with his weight. In addition, the workshop employees actively obstructed the officers’ arrest of the first applicant by dragging him away, as well as by grabbing the police officers’ uniforms. At some point, the first applicant managed to break free and ran off.
9. J.S. started to pursue him, while V.D. drove the police car in order to intercept the first applicant and call for support. The officers caught the first applicant in the courtyard of the Jaunģikši country house and, after a short struggle, the first applicant was apprehended by J.S., V.D. and a second police patrol, which had arrived as reinforcement. In addition, the officers apprehended the second applicant, who had arrived at Jaunģikši and attempted to obstruct the first applicant’s arrest.
10. Both applicants were taken to the Cēsis District Police Department, where they were placed in the short-term detention facility.
11. On the same date the first applicant was given an administrative fine for a violation of the traffic rules.
12. In addition, criminal proceedings were instituted against both applicants for assault on a representative of public authority.
13. The applicants contested the Government’s version of events, which was largely based on the testimony of the police officers during the first applicant’s trial, to which they objected. The applicants alleged that the police officers had assaulted the first applicant and detained the second applicant for no reason. The first applicant claimed that the police officers had forcibly held his arms behind his back, pushed him to the ground, tried to break his ribs with their knees, and dragged him to the ground on the premises of the workshop Ģikši, where he had first been stopped. They had also taken his mobile phone. When he had managed to break free of the police officers’ grip, he had fled.
14. V.D. had caught up with the first applicant in the courtyard of Jaunģikši. He had pushed him to the ground and dealt him numerous blows, including to his face. The second applicant and a witness, K.R., had arrived at the scene. The second applicant had seen V.D. dragging the first applicant along the ground by his hands; the first applicant’s face had been red and swollen, covered in sand and with blood round his lips. Then J.S. had arrived, pointed a gun and threatened to use it. After twenty minutes another police car arrived. The applicants and the witness K.R. had been taken into custody and placed in the short-term detention facility in Cēsis.
15. The record relating to the administrative fine had been drawn up on 30 June 2004 at about 7.30 p.m.
16. According to the first applicant, following the events of 30 June 2004 he requested on several occasions to be examined by a forensic medical expert to determine if he had any bodily injuries. An expert examination was ordered on 2 July 2004 but was not carried out until much later. The results of this examination have not been made available to the Court.
17. While the first applicant was in the Cēsis short-term detention facility an ambulance was called on several occasions at his request because he felt ill. On 1 July 2004, at 2.37 p.m., an ambulance arrived at the detention facility. The first applicant complained about bruises on his body and a headache and a note was made of the first applicant’s statement that on the previous day police officers had beaten him and he had felt sick. He was diagnosed with cephalgia (headache). He was examined by an ambulance doctor, who did not find any bruises on his body and concluded that the first applicant’s account was not consistent with his objective state of health.
18. At 4.46 p.m. on 3 July 2004 an ambulance arrived at the first applicant’s request as he felt ill and had pains in his stomach. He was diagnosed with trauma to the head, “susp.” concussion and hyperthermia. The notes again recorded him as stating that he had been placed in custody following a fight with police officers. He complained of a headache, feeling ill, lack of alertness and not being able to sleep at night. He requested a forensic medical examination. This time the ambulance doctor concluded that the first applicant’s account did correspond to his objective state of health.
19. According to a report drawn up by the first applicant’s family doctor on 30 May 2005, following the events of 30 June 2004 he had regularly visited doctors in Rīga and Cēsis to minimise the effects of concussion. He had been examined on several occasions and diagnosed with post-traumatic symptoms, including post-traumatic pulsating cephalgia, post-traumatic astheno-depressive symptoms and an unexplained increase in body weight of 20 kilograms over a nine-month period, plus post-traumatic problems in the cerebral cortex and possible post-traumatic hypertonic disease.
20. The Government disagreed but provided no further information concerning the first applicant’s state of health at the material time.
21. After the applicants’ arrest on 30 June 2004, they were held at the short-term detention facility in Cēsis, which was located in a police department.
22. According to the applicants, the conditions therein were degrading – the cell was cold and had a foul smell. There were no toilets, instead two buckets were provided. There were no mattresses and they had to sleep on a bare wooden platform; no blankets were provided and the police did not allow them to use the blankets supplied by the applicants’ mother and wife.
23. The Government did not agree with the applicants’ description of the detention conditions.
24. On 11 July 2004 the second applicant was released.
25. On 13 July 2004 the first applicant was transferred to Valmiera Prison, where he remained until his release pending trial on 11 August 2004.
26. On 13 December 2004 the Chief of the Cēsis District Police Department replied to various enquiries by the first applicant. He mentioned, among other things, that under the internal prison regulations they were not allowed to hand over blankets supplied by relatives to detainees; that there were no rules regarding smells in the cells; and that the use of buckets as toilets was temporary (since 1999) and due to financial problems. Works were in progress to rectify this.
27. It appears that the second applicant’s complaint to the Cēsis District Police Department of 2 November 2004 about, among other things, the fact that he had had to sleep on a bare wooden platform for eleven days, received no reply.
28. On 30 June 2004 an inspector of the Cēsis District Police Department, D.B., instituted a criminal inquiry against the applicants in connection with the events of 30 June 2004. She initially classified the events as “assault on a representative of public authority” under section 269, paragraph 1, of the Criminal Law. At about 4.50 p.m. on the same day, the applicants were detained at the police station on the basis of section 120, paragraph 1, of the former Code of Criminal Procedure.
29. On 2 July 2004 the applicants’ detention was authorised by a judge of the Cēsis District Court and this was confirmed on appeal on 7 July 2004.
30. On 9 July 2004 inspector D.B. sent the case to the prosecutor’s office attached to the Cēsis District Court for the purpose of bringing charges against the applicants. She classified the offence as “resisting a representative of public authority” (section 270 of the Criminal Law). On the same date a prosecutor brought charges against the first applicant under section 270, paragraph 1, of the Criminal Law.
31. On 11 July 2004 the prosecutor lifted the second applicant’s detention order because there was not sufficient evidence to bring charges against him. On 10 August 2004 the prosecutor discontinued the criminal proceedings against the second applicant for lack of evidence that he had committed an offence under either section 269 or section 270 of the Criminal Law.
32. On 13 July 2004 the first applicant was placed in Valmiera Prison. On 11 August 2004 he was released. On 17 August 2004 the preliminary investigation was completed and the case materials were sent to the Cēsis District Court.
33. The hearings in the first applicant’s trial before the Cēsis District Court took place between 8 and 11 November 2004 and between 14 and 20 December 2004. A verdict was pronounced on 20 December 2004 whereby the first applicant was convicted of resisting a representative of public authority using violence, as defined in section 270, paragraph 1, of the Criminal Law. He was given a suspended sentence of one and a half years’ imprisonment. The court heard the testimony of the police officers, the applicants and several direct and indirect witnesses, and examined circumstantial evidence.
In particular, witness K.B. testified during the trial that when the applicant had been arrested at Ģikši he had not resisted. Rather, the police officers had used force against him and pushed him to the ground in order to handcuff him. The court did not believe K.B. because in his testimony at the pre-trial stage he had testified to the contrary: that the first applicant had resisted and the police officers had not used force. The court gave more credence to the two statements K.B. had given at the pre-trial stage. Witnesses R.M. and A.S. testified that the first applicant had resisted the police officers, but had not struck them. Witnesses A.O., V.T. and I.T. testified that the applicant had not resisted as he had been on the ground, although he had tried to run away. In addition, witnesses V.T. and I.T testified that police officer V.D. had confiscated V.T.’s mobile phone when the latter had tried to call the police. Witness [X].B. testified that when running away from Ģikši the first applicant had asked him for a mobile phone to call the second applicant.
None of the witnesses testified that they had heard the first applicant or the police officers swearing or threatening each other. The testimony of all the witnesses in fact related to the events at Ģikši and not to the events at the Jaunģikši country house.
Further, the court gave credence to the testimony of the police officers, who claimed that the first applicant, before entering the premises of Ģikši, had made violent threats against them. There was no other evidence in support of the testimony of the police officers. The court did not give credence to the first applicant’s submissions that the police officers had used force against him at Ģikši, and thus rejected that testimony as his defence position.
All in all, the court concluded as follows:
“[The first applicant] actively resisted the police officers. He tried to break free of the officers’ grip, pushed the police officers, did not allow them to lead him away; while being restrained he fell to the ground, using his body weight in an attempt to escape from their grip, did not allow them to lead him away and tried to break free of their grip using one and then the other hand; he wriggled on the ground and would not follow the police officers, who were thus obliged to struggle with him in order to get him into the police vehicle, whereupon he broke free and fled”.
During the trial the prosecutor dropped the charges against the first applicant in relation to his resistance at Jaunģikši. The court found that there was no evidence of it and did not give credence to the testimony of the police officers in that respect. The court also held that there was no evidence that the police officers had kicked and pushed the first applicant. It did not give credence to the testimony of the first and second applicants in that respect. The court also found that there was insufficient evidence to conclude that the first applicant had struck the police officers at Ģikši. He was not found responsible for inflicting minor bodily injuries on the police officers, and their civil claims in that regard were rejected.
34. On 7 July 2005, following an appeal by the first applicant, the Vidzeme Regional Court set aside the district court’s judgment and acquitted him. The court heard evidence from his mother and the family doctor. The police officers were not present. The first applicant’s mother testified that in her opinion the actions of the police officers could have been motivated by revenge since the first applicant had previously dated V.D.’s sister.
The regional court concluded that the actions for which the first applicant had been convicted were to be classified as an administrative offence under section 175 of the Code of Administrative Violations. The court noted that the district court had agreed with the prosecutor’s recommendation to withdraw the charges concerning resistance by the first applicant at Jaunģikši. Similarly, the district court had dismissed the charges of active violence against the police officers at Ģikši causing them minor bodily injuries, and the applicant was not held responsible in that regard.
The regional court did not agree with the district court that the police officers’ testimony had greater credence. It did not agree that the first applicant’s testimony and the supporting testimony of the witnesses ought to be dismissed as lacking credence. The court considered that the statements of the police officers and of the first applicant were to be evaluated equally critically. These persons had an equal interest in giving testimony to justify their actions, the police officers in respect of the arrest of the first applicant and his bodily injuries, and the first applicant in relation to driving a car without a valid driving licence and resisting the police officers.
The court dismissed as incorrect the district court’s conclusion that the testimony of the police officers had been consistent. It highlighted various inconsistencies between the testimony they had given at different times. It also dismissed their claims that they had acted politely towards the first applicant and had complied with the rules on discipline. The court also took into account the apparent conflict between the applicants and the Cēsis District Police Department. In particular, the events of 14 March 2004 were noted. The court expressed doubts about the objectivity of the police officers of that police department towards the applicants. Concerns about their objectivity were evident from the preliminary investigation procedure as a whole. First of all, no bodily injuries had been recorded in the first applicant’s detention order even though the police officers had used force against the applicant. Second, even though the first applicant had been examined by an ambulance doctor twice and a diagnosis established, no mention of it had been contained in the forensic report. The court noted that it had been impossible for the first applicant to prove that he had sustained concussion because he was being held in custody, whereas it had been a duty incumbent on the investigating authorities to examine his physical condition and on the forensic expert to take it into account. Third, the same officer (D.B.) had taken decisions in both the first applicant’s case and that of the police officers; in such circumstances her impartiality was questionable. The court also concluded that the prosecutor dealing with the case had been keen to send the first applicant’s case for trial as soon as possible.
35. On 20 September 2005, upon appeals on points of law submitted by the prosecutor and the police officers, the Senate of the Supreme Court set aside the judgment of the Vidzeme Regional Court and sent the case to a regional court for fresh consideration.
The Senate ruled that the appellate court had erred in its conclusion that the actions for which the first applicant had been convicted by the first-instance court were not of a criminal nature within the meaning of section 270, paragraph 1, of the Criminal Law. His actions had not been passive and had thus been wrongly classified by the appellate court as an administrative offence under section 175 of the Code of Administrative Violations. The Senate concluded that the appellate court had not adequately evaluated the facts of the case and the actions of the police officers from the perspective of their lawfulness.
In reply to the first applicant’s request for criminal proceedings to be instituted against the police officers and D.B., the Senate noted that it did not have competence to comply with such a request.
36. On 5 December 2006 the Latgale Regional Court examined the first applicant’s appeal against the district court’s judgment anew, and upheld the ruling. A prosecutor, both police officers, the first applicant and his counsels attended the hearing.
The Latgale Regional Court established that the first applicant had actively resisted the police officers and thus committed a criminal offence under section 270, paragraph 1, of the Criminal Law. The court found no evidence that the police officers had struck or kicked the first applicant at Ģikši.
The Latgale Regional Court did not give credence to the testimony of the first applicant’s mother before the Vidzeme Regional Court regarding a possible revenge motive, since the case materials did not support it.
37. On 19 January 2007 a senator of the Supreme Court informed the first applicant that his appeal on points of law against the judgment of the Latgale District Court had been dismissed without a review on the merits since it disputed the assessment of the evidence and such a complaint did not fall within the competence of the cassation court.
38. On 12 July 2004 inspector D.B. of the Cēsis District Police Department adopted a decision refusing to institute the criminal proceedings against police officers J.S and V.D. in response to the first applicant’s complaint. She noted:
“A review of the case materials does not bear out the allegation that the police officers abused their official position in relation to [the first applicant]; they acted in compliance with the powers vested in them to prevent and stop [the first applicant’s] misdemeanours.
Having fully reviewed the case materials, I consider that inspector J.S. and cadet V.D. of the Cēsis District Police Department did not abuse their official position within the meaning of section 318, paragraph 1, of the Criminal Law, therefore it is refused to institute the criminal proceedings.”
39. On 5 July 2004 the first applicant’s counsel complained to the Cēsis District Prosecutor’s Office and to the Prosecutor General that the investigation by officer D.B., as supervised by prosecutor A.S., had been biased. He mentioned that they had repeatedly made requests for a forensic examination to be carried out to establish whether the first applicant had any bodily injuries, and that it had not been carried out until that date. In his complaint to the Prosecutor General, the first applicant’s counsel requested that the investigation be handed over to another investigative authority.
40. On 12 July 2004 a prosecutor of the Cēsis District Prosecutor’s Office replied that there was no evidence that the forensic examination had been delayed. She noted that such an examination had been requested on 2 July 2004. She did not consider that the investigation had not been objective.
41. On 14 July 2004 a prosecutor of the Prosecutor’s Office attached to the Vidzeme Regional Court replied to another complaint, noting that after an examination of the case materials there was no evidence that the Cēsis District Police Department and the Cēsis District Prosecutor’s Office were not interested in carrying out an objective and detailed investigation. The request to hand over the investigation to another investigative authority was therefore refused.
42. On 10 August 2004 the Chief of the Cēsis District Police stated, in reply to a complain by the first applicant’s mother, that with regard to the events of 30 June 2004 at the mechanic’s workshop Ģikši and the Jaunģikši country house, criminal proceedings had been instituted for assault on the police officers. The actions of J.S. and V.D. had been reviewed in these proceedings and it had been concluded that they had not exceeded their official authority within the meaning of section 317 of the Criminal Law. The first applicant’s mother was informed that on 9 July 2004 the case had been sent to the prosecutor’s office and that charges had been brought against the first applicant in this connection.
43. On 31 August 2004 the Chief of the State Police wrote to the first applicant’s mother informing her that he had reviewed her complaints about the police officers of the Cēsis District Police Department and their actions on 30 June 2004. He also noted that the information provided by her was of significant importance for the criminal proceedings against the first applicant and thus she should address all her complaints to the Cēsis District Court in that regard.
44. On 13 September 2004, in reply to a complaint by the first applicant’s mother, a prosecutor of the Cēsis District Prosecutor’s Office stated that the decision to refuse to institute the criminal proceedings against the police officers had been left unchanged as she did “not see any reason to overturn that decision”.
45. According to a note by an inspector at the Cēsis District Police Department dated 21 October 2004, the first applicant had been transported from the short-term detention facility in Cēsis:
46. On 13 December 2004 the Chief of the Cēsis District Police Department replied to various enquiries by the first applicant. He noted that during the course of reviewing the possible criminal case materials against the police officers, inspector D.B. had questioned them. She had also added transcripts of the first applicant’s testimony during the criminal proceedings against him to the case materials, as well as the testimony of witnesses I.T. and A.S. She had not, however, held a confrontation between the police officers and the first applicant, because a confrontation between the first applicant and J.S. and the second applicant and V.D. had taken place during the preliminary investigation in the criminal case against the first applicant. The first applicant was seen by the following persons in the short-term detention facility in Cēsis:
1 July 2004 from 9.00 a.m. to 9.20 a.m. – inspector J.V. for questioning;
1 July 2004 from 12.10 to 2.40 p.m. – inspector D. B. for questioning with counsel;
2 July 2004 from 4.15 p.m. to 5.30 p.m. – inspector S.G. for the detention hearing;
3 July 2004 from 4.55 p.m. to 5.00 p.m. – ambulance doctor to check the first applicant’s state of health;
5 July 2004 from 12.40 to 12:50 – inspection by a forensic medical expert;
8 July 2004 from 3.00 p.m. to 5.30 p.m. – inspector D.B. for confrontation, with counsel;
9 July 2004 from 7.45 a.m. to 12.05 – to the Vidzeme Regional Court as regards the detention measure;
9 July 2004 from 1.25 p.m. to 3.15 p.m. – prosecutor A.S. for bringing charges, with counsel;
4 August 2004 from 10.30 a.m. to 12.00 – prosecutor J.R. for questioning, with counsel;
9 August 2004 from 3.45 p.m. to 4.10 p.m. – prosecutor A.S. for a conversation;
11 August 2004 from 2.00 pm to 5.25 p.m. – prosecutor A.S. for questioning, with counsel.
47. On 16 December 2004 a prosecutor of the Prosecutor’s Office attached to the Vidzeme Regional Court, following a complaint by the first applicant, quashed the 12 July 2004 decision on the ground that the review had been deficient: a forensic report on the first applicant’s medical examination had not been included in the case-file materials; the second applicant had not been questioned about the events of 30 June 2004; and the applicable regulations regarding the criteria for the use of force had not been mentioned.
48. On 5 January 2005 a second decision refusing to institute the criminal proceedings was adopted by the Cēsis District Police Department. The first applicant did not receive a copy of that decision. No copy has been made available to the Court.
49. On 1 March 2005 a prosecutor of the Prosecutor’s Office attached to the Vidzeme Regional Court, upon another complaint by the first applicant, informed him of the decision of 5 January 2005 and of his right to lodge a complaint against that decision, even if he had not received a copy, with the Cēsis District Prosecutor’s Office. Mention was also made of the judgment of 20 December 2004, whereby the first applicant was “found guilty under section 270, paragraph 1, of the Criminal Law and therefore [his] suggestions about the fabrication of that criminal case by the Cēsis District Police Department and [his] complaint that officer D.B. of the Cēsis District Police Department had reviewed the case materials [were] groundless”.
50. On 1 March 2005 a prosecutor of the Cēsis District Prosecutor’s Office, upon a complaint by the first applicant, informed him that he did not see any grounds to overturn the decision of 5 January 2005 because the first applicant mentioned no new facts and because there was no evidence that the police officers had struck the applicant with their fists or legs as stated in the judgment of 20 December 2004. The prosecutor’s letter contained a reference to the fact that the applicant had been informed about the decision of 5 January 2005.
51. On 20 June 2005 a prosecutor of the Office of the Prosecutor General, upon a complaint by the first applicant’s mother, reviewed the case materials and upheld the decision of 5 January 2005.
52. On 15 September 2005 the Chief of the Cēsis District Police Department, upon a request by the first applicant, replied that the material under no. 834/04, which included the decision of 5 January 2005, had been sent to the Vidzeme Regional Court.
53. On 21 October 2004 the first applicant applied to the Cēsis District Court with a view to instituting criminal proceedings against J.S and V.D. In his application he gave his version of the events that had taken place at the mechanic’s workshop Ģikši and the Jaunģikši country house, and asked that the relevant material be sent to an impartial authority for a preliminary investigation. On 5 November 2004 the court forwarded the material to the Cēsis District Prosecutor’s Office.
54. During his trial before the Cēsis District Court, the first applicant testified, in particular, that the events at Jaunģikši had been as follows.
“V.D. jumped out of his car, ran towards me, twisted my arms behind my back, pushed me to the ground, held me on the ground with his knees, twisted my arms and dealt several blows to my sides and my head. I did not see, but I think that the blows were made with his legs. While I was lying on the ground my father and K.R. drove up”.
55. In the 20 December 2004 judgment the Cēsis District Court did not examine this episode because the prosecutor had withdrawn the charges against the first applicant in relation to his resistance at Jaunģikši. The district court accepted the withdrawal, noting: “the victims’ testimony that at Jaunģikši Z. Timofejevs continued to resist has not been confirmed; nor has the testimony of both [the applicants] that the police officers punched and kicked Z. Timofejevs”.
56. During his trial before the Vidzeme Regional Court on 7 July 2005, the first applicant testified in connection with the events at Jaunģikši as follows: “...the police officers caught up with me, they started delivering blows to my body, kicked me in the head, and twisted my arms. Then my father and K.R. arrived”. In the hearings the first applicant’s counsel requested that a decision be made with a view to instituting criminal proceedings against J.S. and V.D.
57. In the judgement of 7 July 2005, the Vidzeme Regional Court noted that the prosecution had withdrawn the charges against the first applicant in respect of his resistance at Jaunģikši. The regional court also noted as follows:
“... taking into account the witness statements before the first-instance court, the expert report and information provided by the ambulance medics, on 30 June 2004 bodily injuries were inflicted on Z. Timofejevs during his arrest; however, the issue of the lawfulness of the police officers’ actions does not relate to the charges brought against Z. Timofejevs since the appellate court under section 255 of the Code of Criminal Procedure has to comply with its limitations on adjudication. The issue of the criminal liability of J.S. and V.D. has already been decided, as evidenced by the added material under no. 834/04. The court notes that on the ground of the illnesses discovered, Z. Timofejevs and his counsel may apply to the prosecutor’s office requesting that the decisions included in the material under 834/04 be reconsidered, and asking for the appropriate forensic examination”.
58. On 19 September 2005, in his comments on the appeals of J.S. and V.D. on points of law, the first applicant once more asked the Senate of the Supreme Court to send the material to institute a criminal investigation into the actions of J.S., V.D. and D.B., referring to various criminal offences, and that the preliminary investigation be carried out by the Internal Security Department of the State Police, since the officials of the Cēsis District Police Department were not impartial. The first applicant mentioned, among other things, that in the courtyard of Jaunģikši, near the corner of a farm building (saimniecības ēka), V.D. had delivered blows to his body with his legs while he was on the ground.
59. In the decision of 20 September 2005 the Senate of the Supreme Court noted that it was not competent to decide on the alleged criminal responsibility of police officers J.S. and V.D. in respect of the first applicant’s bodily injuries during his arrest.
60. The relevant provisions of the former Code of Criminal Procedure (Kriminālprocesa kodekss), in force until 1 October 2005, read:
“A court, prosecutor or investigating authority, in so far as it is within its powers, shall institute criminal proceedings whenever signs of a criminal offence (noziedzīga nodarījuma pazīmes) are discovered, using all means laid down in law with a view to discovering any incidence of a criminal offence and the persons responsible for the criminal offence in order to punish them.”
“An investigating authority, prosecutor, judge or court shall accept material, applications and declarations concerning a criminal offence that has been committed or planned, including in cases which do not fall under its jurisdiction.
In response to the material, applications or declarations received, one of the following decisions shall be adopted:
to institute criminal proceedings,
to refuse to institute criminal proceedings,
to forward the application or declaration to the competent authority.
...
Applications and declarations concerning crimes shall be examined immediately, but at the latest within ten days of their receipt. If an expert or audit report or specialist’s consultation is necessary for such examination, applications and declarations shall be examined at the latest within 30 days. ”
“A copy of the decision to refuse to institute criminal proceedings ... shall be sent to the applicant and those concerned with an explanation of their right to complain about the decision: a decision adopted by an investigating authority to a corresponding prosecutor, by a prosecutor to a higher-ranking prosecutor, by a prosecutor of the Office of the Prosecutor General to the Prosecutor General, and by a judge to a higher-instance court.”
“In the hearings the court shall examine the case only as against the persons charged with the criminal offence and only in relation to the charges brought against them.”
61. The relevant provisions of the Law of Criminal Procedure (Kriminālprocesa likums), effective from 1 October 2005, as in force at the material time, read:
“... A judge or court shall send, without deciding on it, an application, material, or information acquired in adjudication to an investigating authority or, in the cases specified by law, to the prosecutor’s office.”
62. The relevant provisions of the Criminal Law (Krimināllikums) read as follows:
“A person who commits an assault on a representative of public authority or other State official, in connection with that representative’s lawful official activities, or commits an assault on a person who is participating in preventing or interrupting a criminal or otherwise illegal offence shall be
- imprisoned for a term not exceeding seven years, or subject to a custodial arrest.”
“A person who resists a representative of public authority or other State official in the course of his or her official duties, or resists a person who is participating in preventing or interrupting a criminal or otherwise illegal offence, or compels such a person to perform manifestly unlawful acts by resistance or compulsion involving violence or threats of violence shall be
- imprisoned for a term not exceeding three years, or subject to a custodial arrest, or a fine not exceeding sixty times the minimum monthly wage shall be imposed.”
“1. A State official who commits an intentional act which manifestly exceeds the limits of the statutory rights and authority granted to the State official or pursuant to his or her assigned duties, and if substantial harm is caused thereby to State authority, administrative order or a person’s rights and interests protected by law, shall be
- imprisoned for a term not exceeding five years, or sentenced to community service or a fine not exceeding one hundred times the minimum monthly wage, with or without deprivation of the right to occupy specified positions for a term of not less than one and not exceeding three years.
2. A person who commits such acts and thereby causes serious consequences, or uses violence or threats of violence for the purpose of acquiring property shall be
- imprisoned for a term not exceeding ten years, or sentenced to community service or a fine not exceeding two hundred times the minimum monthly wage, with or without deprivation of the right to occupy specified positions for a term of not less than one and not exceeding five years.”
63. The relevant provision of the Code of Administrative Violations (Administratīvo pārkāpumu kodekss) reads as follows:
“In the case of malicious non-compliance with a police officer’s, national guard’s or soldier’s lawful order or requirement issued in accordance with their duties to maintain order and protect the public,
- a fine shall be imposed in an amount of up to 200 lati (LVL), or administrative detention shall be applied for a period of up to fifteen days.”
VIOLATED_ARTICLES: 3


ITEMID: 001-5149
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SASSEN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Dutch national, born in 1944 and living in Nijmegen, the Netherlands. He is represented before the Court by Mr M.P.H. Winters, a lawyer practising in Arnhem, the Netherlands.
A.

The applicant is the author of a computer programme for the calculation of amounts of maintenance to be used by national courts. The programme was published by the Kluwer publishing company. The applicant’s programme tested best in a trial in which two other programmes participated but the authors of one of the other programmes, Messrs F. and W., obtained an injunction when Kluwer started advertising the applicant’s programme in legal journals - the test results had allegedly been ‘frozen’ at the instigation of the authors of the third programme who were attached to a regional court. Kluwer then attempted to get the applicant and Messrs F. and W. to work together but the applicant refused. Subsequently, Kluwer decided to publish the programme of Messrs F. and W.
The applicant started proceedings for damages against both Kluwer and Messrs F. and W., arguing that their actions had caused him to lose his advantage which the test results had given him from a marketing point of view. In the proceedings against Kluwer, the Court of Appeal (Gerechtshof) of Arnhem decided on 3 March 1992 that Kluwer’s actions had indeed caused prejudice to the applicant and in a separate procedure the amount of damages to be paid by Kluwer to the applicant should be calculated.
In a judgment of 9 February 1995 the Regional Court (Arrondissementsrechtbank) of Zutphen ordered Kluwer to pay a certain amount of damages (about 10% of what the applicant had demanded), rejected the applicant’s other demands in respect of Kluwer (namely that Kluwer halt its publication of Messrs F. and W.’s programme) and declared the applicant’s claims on Messrs F. and W. inadmissible as it held that these claims covered the same damage as the applicant claimed from Kluwer. On 4 March 1997 the Court of Appeal of Arnhem quashed this decision, but only insofar as the amount of damages was concerned (the Court of Appeal lowered this amount). It held that the applicant’s claim on Messrs F. and W. was admissible, but rejected this claim because Messrs F. and W. had not acted unlawfully towards the applicant and the Court of Appeal also agreed with the Regional Court that the applicant’s claims on Messrs F. and W. were the same as those on Kluwer.
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), raising a number of complaints relating to the reasoning applied by the Court of Appeal and also arguing that there was a contradiction between the Court of Appeal’s judgments of 3 March 1992 and that of 4 March 1997. According to the applicant, these circumstances created at least the impression that the lower courts, most of whose judges where also contractually connected to the Kluwer company, had not been impartial. The applicant requested the Supreme Court in writing to appoint judges to this case who had no ties with Kluwer.
In the proceedings before the Supreme Court the Advocate-General at that court submitted an advisory opinion to which the applicant was able to reply. In his response he pointed out that this particular Advocate-General had had a number of written works published by Kluwer in the time before he became Advocate-General.
On 6 November 1998 the Supreme Court rejected the appeal in cassation. Four of the five Supreme Court judges have had written works published by Kluwer or companies part of the Kluwer conglomerate.
B. Relevant domestic law
Pursuant to Article 29 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) a party may challenge any of the judges assigned to examine a case on the grounds of facts or circumstances which might prejudice the judicial impartiality. A request to challenge a judge should be made as soon as the person concerned has become familiar with these facts or circumstances (Article 30 § 1 of the Code of Civil Procedure).
Article XIII § 2 of the Rules of Court of the Supreme Court (Reglement van Orde van de Hoge Raad der Nederlanden) provides that at the request of one of the parties to the proceedings the Registrar will notify to that party the names of the members of the Supreme Court who will render judgment in a particular case.
The duties and position of the Procurator-General’s department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutor’s of the regional and district courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1).
The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (Article 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.


ITEMID: 001-68317
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: FISCHLER v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Max Fischler, is a Swedish national, who was born in 1929 and lives in Enskede. He is represented before the Court by Mr B. Leidhammar, a lawyer practising in Stockholm.
In their tax returns for the tax assessment years 1993 and 1994, a substantial number of persons, including the applicant, made deductions for capital losses, after having bought and sold interest options (ränteoptioner), and for paid interest on a promissory note loan (reverslån). All transactions were made with the same opposite party, Nordisk Fondkommission AB (the Nordic Fund Commission, hereinafter referred to as the “NF”) which had also granted the loans.
Because of the substantial number of persons who had made deductions for capital losses following transactions with the NF, the Tax Authority (skattemyndigheten) of the County of Stockholm decided to make an audit of the NF. However, due to the very complex and intricate nature of the transactions and the lack of co-operation by the NF, the investigation proved difficult to carry out, for which reason the Tax Authority hired an independent expert body to carry out a part of the audit.
According to the findings of the audit, as set forth in the Tax Authority's audit report (granskningspromemorian) on 21 June 1995, the transactions made between the individuals and the NF had been based on an agreement entered into by the parties beforehand who had followed a procedure set forth therein. The transactions had included buying and selling specific interest options which the NF claimed were adjusted to conditions on the market. However, the Tax Authority found through the audit that the options had not been noted on the market nor adjusted to the market conditions, since the market price of the options had not been decisive for the determination of the price at the time of selling. Instead, the price of the options had been fixed in advance already in the agreement. Moreover, the size of the loss during the first year and the subsequent recovery the following year had also been decided beforehand. Thus, in fact, the parties had not dealt with real options, as defined in the law.
As concerned the promissory note loan, the same type of agreement had been followed. The first year, the individuals had paid a very high interest on the loan and then, at the beginning of the second year, they had paid the loan in advance, following which a part of the interest was repaid. The audit report revealed that both the cost of the interest paid the first year and the repayment of part of the interest made the second year had been predetermined in the agreement.
The audit report concluded that the individuals had been offered by the NF an agreement in which everything was predetermined and where the purpose had been to obtain tax benefits. The idea had been that, tax wise, the high interest on the loans paid the first year, and the repayment the following year, should finance the capital losses of the transactions with the options.
On 21 June 1995, the same day that the above-mentioned audit report was finalised, the Tax Authority transmitted it to the applicant and informed him of its intention to revise the assessment of the arrears (eftertaxering) for his 1993 tax assessment and to impose tax surcharges on him. On 12 March 1997 it sent a preliminary consideration (övervägande) to the applicant, informing him that it was considering making a revised assessment for arrears and disallowing the deduction for paid interest on the promissory note loan in the amount of SEK 272,108. Further, it was considering imposing tax surcharges (skattetillägg) amounting to 40% of the increased tax liability on the sum (apparently amounting to around SEK 35,000). The applicant was requested to submit any comments he might have within two weeks.
On 10 April 1997 the Tax Authority decided to follow its preliminary consideration. With regard to the imposition of tax surcharges, it found that the applicant had submitted incorrect information by failing to provide it with information about the true conditions of the interest rates of the loan. Further, it considered that no grounds for remission had been shown and that, due to the character of the matter and the way in which it had been carried out, it could not be assumed that any such grounds existed.
On 11 June 1997 the applicant appealed against the decision, disputing the Tax Authority's findings. He maintained that there were no grounds for revising the assessment of the arrears or for imposing tax surcharges.
On 20 November 1997 the Tax Authority made the obligatory re-assessment of its decision of 10 April 1997 but decided not to change it. Following this, it forwarded the appeal to the County Administrative Court (länsrätten) in Stockholm which received it on 28 November 1997.
On 21 June 1995, when the above-mentioned audit report was transmitted to the applicant, the Tax Authority also informed him of its intention to alter his tax assessment for the year 1994 and to impose tax surcharges on him. On 30 November 1995 the Tax Authority sent a preliminary consideration to him and, on 27 December 1995, it decided, on the basis of the findings of the audit, to decrease his income from capital gain by SEK 100,645 for capital losses but, at the same time, to increase his income from capital gain by SEK 178,040 for non-deductible interest. It further imposed tax surcharges amounting to 40% of the increased tax liability on the latter sum (apparently amounting to around SEK 22,000) since it considered that the applicant had submitted incorrect information and that no grounds for remission existed.
On 29 March 1996 the applicant appealed against the decision and requested that he be taxed in accordance with his tax return and that the tax surcharges be removed. He further stated that he would develop his grounds of appeal in a later submission.
However, the Tax Authority did not receive any further communication from the applicant. On 18 February 1997 it made its obligatory re-assessment of its original decision and decided not to change it. It noted that, even though nothing had been heard from the applicant, it was necessary to take a decision in order not to prolong the process further. The appeal was then forwarded to the County Administrative Court, which received it on 20 February 1997.
The parties made further submissions before the County Administrative Court and, in a partial judgment of 8 October 1999, the court rejected the applicant's appeal concerning the question of deduction for capital losses on the options for the tax assessment year 1993.
On 17 February 2000 an oral hearing was held in the case and, on 29 February 2000, the County Administrative Court rejected the applicant's appeal. It found that the applicant had failed to provide the Tax Authority with information about the conditions for the promissory note loan in his tax assessment for 1993, for which reason the Tax Authority had been justified in making a revised assessment for that year's arrears.
With regard to the tax surcharges, the court first considered that the imposition of tax surcharges did not violate the Convention. It then found that the applicant had submitted incorrect information and that there was reason to impose tax surcharges since it was clear that he had not furnished the Tax Authority with the conditions for the promissory note loan and the interest rates. Therefore the Tax Authority had not been able to examine whether the declared deductions for interest were correct. It further found that no reasons for remission had been shown.
On 4 May 2000 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. He maintained his claims, invoking and expanding the grounds he had presented before the lower court. Inter alia, he claimed that the imposition of tax surcharges violated the presumption of innocence contained in Article 6 § 2 of the Convention since the Tax Authority had failed to prove that he had given incorrect information intentionally or by neglect.
On 22 March 2001, the Administrative Court of Appeal held an oral hearing in the case where several witnesses were heard at the applicant's request.
In a judgment of 18 June 2001, the Administrative Court of Appeal rejected the applicant's appeal on the same grounds as the County Administrative Court, and stated that, although the imposition of tax surcharges fell within the ambit of Article 6 of the Convention, it did not violate the presumption of innocence contained therein.
On 3 September 2001 the applicant appealed to the Supreme Administrative Court (Regeringsrätten) and requested a respite until 31 October 2001 to supplement his submissions. It is not clear, however, whether he did so.
On 25 April 2002 the Supreme Administrative Court refused leave to appeal.
Taxpayers submit yearly tax returns to the local tax authorities. To secure that timely, sufficient and correct information is provided, the tax authorities may, under certain circumstances, impose special charges on the taxpayer in the form of tax surcharges.
The rules on tax surcharges relevant to the present case were laid down in the Taxation Act (Taxeringslagen, 1990:324). According to Chapter 5, section 1 of the Act, a tax surcharge is imposed on the taxpayer if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect. It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. However, incorrect claims are not penalised; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof, no surcharge is imposed. The burden of proving that the information is incorrect lies with the tax authority. The surcharge amounts to 40% of the income tax which the tax authority would have failed to levy if it had accepted the incorrect information.
In certain circumstances, a tax surcharge will be remitted. Thus, Chapter 5, section 6, of the Act states that taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age, illness, lack of experience or comparable circumstances. The surcharge should also be remitted where the failure appears excusable by reason of the nature of the information in question or other special circumstances, or where it would be manifestly unreasonable to impose a surcharge.
Chapter 5, section 7, of the Act stipulates that, if the facts of the case so require, the tax authorities must have regard to the provisions on remission, even in the absence of a specific claim to that effect by the taxpayer. In principle, however, it is up to the taxpayer to show due cause for the remission of a surcharge.


ITEMID: 001-57454
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF CAMPBELL AND COSANS v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
TEXT: 1. The present case was referred to the Court in October 1980 by both the European Commission of Human Rights ("the Commission") and the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government"). The case originated in two applications (nos. 7511/76 and 7743/76) against the United Kingdom lodged with the Commission in 1976 by Mrs. Grace Campbell and by Mrs. Jane Cosans on behalf of herself and her son Jeffrey, the latter also being hereinafter referred to as an "applicant".
2. By judgment of 25 February 1982, the Court held that the existence of corporal punishment as a disciplinary measure in the schools attended by the applicants’ sons did not constitute, as regards those children, a violation of Article 3 (art. 3) of the Convention but did constitute, as regards their parents, a breach of the second sentence of Article 2 of Protocol No. 1 (P1-2) . It also held that, as regards Jeffrey Cosans, his suspension from school following his refusal to accept such punishment had given rise to a breach of the first sentence of the last-mentioned Article (P1-2) (Series A no. 48, points 1-3 of the operative provisions and paragraphs 24-41 of the reasons, pp. 12-20).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8-19 of the above-mentioned judgment (ibid., pp. 6-10).
3. At the hearings on 25 September 1981, counsel for Mrs. Cosans had stated that, should the Court find a violation, his client would seek just satisfaction under Article 50 (art. 50) in respect of moral damage and legal costs. The Government had not taken a stand on the matter, nor had counsel for Mrs. Campbell.
In its judgment of 25 February 1982, the Court reserved the whole of this question. The Commission was invited to submit to the Court, within the coming two months, written observations thereon and, in particular, to notify the Court of any friendly settlement at which the Government and the applicants might have arrived (point 4 of the operative provisions and paragraph 42 of the reasons, ibid., pp. 19 and 20).
4. Following several extensions of the aforesaid time-limit by the President of the Chamber and in accordance with his Orders and directions, the registry received:
These documents revealed that no friendly settlement had been arrived at. For ease of reference, further particulars of the applicants’ claims and of the Government’s and the Commission’s position relative thereto are set out below in the section "As to the law".
5. Mr. F. Gölcüklü and Mr. B. Walsh, substitute judges, took the place of Mr. J. Cremona and Mr. L.-E. Pettiti, who were prevented from taking part in the further consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).
6. Having consulted, through the Registrar, the Agent of the Government and the Delegates of the Commission, the Court decided on 21 February 1983 that there was no call to hold hearings.


ITEMID: 001-61835
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PAVLETIC v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1962 and lives in Marčana (Croatia).
9. On 26 January 1995 a police investigator in Banská Bystrica (Slovakia) apprehended the applicant on the ground that he had been accused, together with another person, of trafficking in women. Subsequently the following relevant facts occurred and decisions were taken.
10. On 27 January 1995 the Banská Bystrica District Court remanded the applicant in custody with effect from 26 January 1995. The decision stated that the applicant had brought two women from Slovakia to Spain and that he had forced one of them to carry out prostitution under the threat of shooting her. The judge considered the detention necessary with a view to preventing the accused from absconding and from committing further offences within the meaning of Article 67(1)(a) and (c) of the Code of Criminal Procedure. On 31 January 1995 the applicant challenged this decision through his lawyer.
11. On 15 February 1995 the Banská Bystrica Regional Court quashed the District Court’s decision of 27 January 1995 on the ground that the reasons for it were not sufficient. The Regional Court noted that the applicant was a foreign national without a permanent address in Slovakia. It therefore considered his detention necessary, within the meaning of Article 67(1)(a) of the Code of Criminal Procedure, and remanded him in custody as from 26 January 1995.
12. On 21 July 1995 a judge of the Banská Bystrica District Court extended the applicant’s detention on remand until 26 August 1995 on the ground that the public prosecutor had decided to re-examine a witness who was staying abroad. The court considered that there was a risk of the applicant’s absconding in case of his release.
13. On 11 August 1995 the Banská Bystrica District Court extended, at the public prosecutor’s request, the applicant’s detention on remand until 26 December 1995. The decision stated that a witness staying abroad could not be re-examined and that it was also necessary to establish whether the accused persons had tried to benefit from the prostitution of other persons. The court considered the applicant’s detention necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. Reference was made to the fact that the applicant was a foreign national and that he did not have permanent residence in Slovakia.
14. On 15 December 1995 the Banská Bystrica District Court extended the applicant’s detention on remand until 25 January 1996. The decision stated that the lawyer appointed to represent the applicant on 20 November 1995 needed more time to study the case file. Furthermore, the lawyer was ill and because of her absence the applicant had refused, on 6 December 1995, to acquaint himself with the outcome of the investigation.
15. On 19 April 1996 the applicant lodged a constitutional petition. He alleged, inter alia, that he was discriminated against as the Regional Court had refused to release him, referring to his nationality and to the fact that he had no permanent residence in Slovakia.
16. On 22 January 1997 the Supreme Court refused to grant a further extension of the applicant’s detention on remand. It found that the requirements laid down in Article 71(2) of the Code of Criminal Procedure were not met. In particular, the Supreme Court noted that the case was not complex and that the period of almost one year during which the case had been pending at the preliminary stage was excessive given the scope of evidence that had to be taken. Furthermore, the first instance court had scheduled the main hearing for 30 September 1996, that is more than eight months after the case had been submitted to it on 22 January 1996. The Supreme Court found no relevant reasons for such delays. The decision stated that the applicant’s two stays in hospital had not been of long duration and that they had not prevented the main hearing from being held. The Supreme Court’s decision was transmitted to the Regional Court on 7 February 1997.
17. On 23 January 1997 the Supreme Court ordered the prison administration to release the applicant. The applicant was released on 26 January 1997.
18. On 26 March 1997 the Constitutional Court declared manifestly illfounded the applicant’s petition of 19 April 1996. The decision stated, with reference to the criminal file, that the applicant’s detention had been necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure as there had existed a risk that he would abscond in case of his release.
19. On 16 May 1995 the applicant lodged an application for release. It was dismissed by the Banská Bystrica District Court on 31 May 1995 on the ground that his detention was still necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. The applicant filed a complaint. He argued that the fact that he was a foreign national did not justify the fear that he might abscond.
20. The Banská Bystrica Regional Court dismissed the complaint on 12 July 1995. The decision stated that the fear that the applicant might abscond in case of his release was justified. The typed minutes, a copy of which the applicant received from the Regional Office of Investigation in Banská Bystrica on 29 November 1995, indicate that the Regional Court examined the applicant’s complaint in camera in the presence of J.M., a public prosecutor. According to those minutes, the public prosecutor “proposed to dismiss the applicant’s complaint”. At a later stage of the proceedings J.M. presided over the Regional Court chamber which delivered the judgment of 13 June 1997 (see below).
The applicant submitted to the Court another copy of the same minutes, included in the criminal file, in which the name of another person is handwritten as the public prosecutor who had attended the deliberations.
21. On 16 August 1995 the applicant lodged another application for release. He alleged that there had been undue delays in the proceedings and that the fear that he would abscond in case of his release was unsubstantiated. The applicant further complained that he was discriminated against on the ground of his nationality.
22. The Banská Bystrica District Court dismissed the request on 20 September 1995. The applicant filed a complaint which was dismissed by the Banská Bystrica Regional Court on 18 October 1995. The courts considered it probable that the applicant, a foreign national, would leave Slovakia in case of his release.
23. On 10 January 1996 the applicant requested the public prosecutor to release him. In a letter of 19 January 1996 the Banská Bystrica Regional Prosecutor stated that he had dismissed the application for release and that he would transmit it to the Banská Bystrica Regional Court together with the indictment. The Regional Court did not decide on the applicant’s request.
24. On 25 April 1995 the police investigator accused the applicant of blackmail in addition to the charge of trafficking in women. On 15 May 1995 the Banská Bystrica District Prosecutor dismissed the applicant’s complaint against the investigator’s decision.
25. On 12 October 1995 the police investigator dismissed the applicant’s request for further witnesses to be heard with a view to establishing, in particular, the relevant facts relating to the stay of the two Slovakian women in Spain. On 21 November 1995 the Banská Bystrica Regional Prosecutor dismissed the applicant’s complaint against this decision. Both authorities considered that the taking of further evidence was superfluous.
26. On 18 October 1995 the applicant withdrew the authority of the lawyer who had represented him until then. At the same time he requested the court to appoint a lawyer ex officio. On 20 November 1995 the Banská Bystrica District Court appointed another lawyer to assist the applicant ex officio.
27. On 19 December 1995 and on 10 January 1996 the applicant learned of the outcome of the investigation. On the latter date he requested that further evidence be included in the case file. The police investigator dismissed the request on 11 January 1996.
28. On 17 January 1996 the applicant requested that the authority of the lawyer appointed on 20 November 1995 be withdrawn. He further asked for a time-limit to be set during which he could appoint a lawyer of his own choice. The applicant received no reply.
29. On 22 January 1996 the Banská Bystrica Regional Prosecutor indicted the applicant for trafficking in women and blackmail before the Banská Bystrica Regional Court.
30. After this date the applicant was twice treated as an in-patient in a hospital for prisoners in Trenčín.
31. On 2 February 1996 the Banská Bystrica Regional Prosecutor informed the Regional Court that the applicant had challenged the interpreter. The letter further stated that the interpreter considered herself biased as the applicant’s submissions about her were insulting.
32. The first hearing before the Regional Court was held on 30 September 1996. The applicant challenged the presiding judge I.B. on the ground that he was xenophobic. The case was adjourned. On 4 December 1996 the Supreme Court found that the presiding judge of the Regional Court was not biased.
33. On 13 June 1997 the Banská Bystrica Regional Court convicted the applicant of trafficking in women and sentenced him to three years’ imprisonment. It further ordered the applicant’s expulsion from Slovakia.
34. The court established that, on 13 January 1995, the applicant had brought two women who were sisters from Slovakia to Spain on the false pretext of offering them a job as tourist guides. He threatened to shoot them, took away their passports and plane tickets and forced one of them to stay at night in a club where prostitution was carried out. On 17 January 1995 the applicant left Spain. On 25 January 1995 the women escaped and returned to Slovakia.
35. The court chamber was presided over by judge J.M. who had participated as a public prosecutor, on 12 July 1995, in the examination by the Banská Bystrica Regional Court of the applicant’s complaint against Banská Bystrica District Court’s decision of 31 May 1995 concerning the applicant’s request for release.
36. Upon the delivery of the Regional Court’s judgment the applicant indicated orally that he wished to appeal. Subsequently he left Slovakia. The Slovakian authorities were informed that the applicant had not stayed at his address in Croatia and that an international arrest warrant had been issued against him in Croatia on the ground that he was subject to a prison sentence which had been imposed in 1995. As the applicant’s whereabouts were unknown the public prosecutor proposed, on 24 November 1997, that the case be proceeded with in his absence.
37. On 23 April 1998 the Supreme Court dismissed the appeal. It decided following a public hearing in the applicant’s absence as he was in hiding.
38. The Supreme Court held that the Regional Court had established all relevant facts and had assessed them in accordance with the law while respecting the applicant’s right of defence. The Supreme Court addressed the arguments raised by the applicant in his appeal. The decision stated that the Supreme Court had examined all aspects of the case and had had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by Article 254(1) of the Code of Criminal Procedure.
39. On 28 May 1998 the Banská Bystrica Regional Court decided to include the period during which the applicant had been detained in the period of imprisonment to which he was sentenced. Reference was made to the relevant provisions of criminal law under which such a decision is to be taken in cases where a person sentenced to a prison term has previously been detained in the context of criminal proceedings against him or her.
40. Pursuant to Article 11, as in force at the relevant time, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms.
Article 144(1) provides that judges are independent and bound only by law.
Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide.
41. Article 30(2) provides, inter alia, that a person who earlier acted in a criminal case as a public prosecutor is to be excluded from dealing with the same case as a judge.
42. In accordance with Article 67(1)(a), an accused can only be remanded in custody when there are reasonable grounds for believing that he or she would abscond or hide in order to avoid prosecution or punishment, especially when he or she has no permanent address.
43. Article 67(1)(c) provides for detention on remand of an accused person when there are reasonable grounds for believing that he or she would commit further offences or accomplish an attempted offence.
44. Under Article 71(2), the maximum length of a person’s detention on remand should not exceed two years. The Supreme Court may extend it by another year when the criminal proceedings cannot be concluded, because of the complexity of the case or for other serious reason, within the two years’ period provided that the release of the accused person would jeopardise the proceedings.
45. Article 72(2) entitles the accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she shall submit it immediately to the court. The court shall rule on such an application without delay. In the event that the application is dismissed, the accused may renew it fourteen days after the decision becomes final unless he or she invokes other reasons.
46. Under Article 254(1), unless there are formal shortcomings in an appeal, the appellate court shall review the lawfulness and justification of all conclusions of the first instance court which may be appealed against as well as compliance with the procedural requirements in the proceedings leading to the first instance judgment. In doing so the appellate court shall also have regard to any shortcomings which have not been complained of in the appeal.
47. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
48. Pursuant to Article 13(1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
49. Article 13(2) provides that in cases when the satisfaction obtained under Article 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.
50. Section 1(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of civil, administrative or criminal proceedings with the exception of decisions which concern deprivation of liberty and imposition of a penalty.
51. Section 5(1) provides that a person who is deprived of liberty is entitled to compensation when the criminal proceedings against him or her are dropped or when he or she is acquitted. However, under paragraph 2(a) of Section 5, such compensation is excluded when the person concerned is responsible for his or her detention in that, in particular, he or she tried to abscond or was otherwise responsible for the facts on which the decision concerning the detention was based.
52. Section 18(1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from the erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.
53. Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.
54. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner.
55. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration in a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).
56. In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed, from the Ministry of Justice, compensation for non-pecuniary damage on the ground that he had been acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969.
57. In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. The decision stated, inter alia, that the first instance court had not explained why the plaintiff should have first sought redress under the State Liability Act. The first instance court was instructed to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case. Reference was made also to Article 11 of the Constitution and to Article 3 of Protocol No. 7.
58. In decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court partially granted an action where a judge claimed protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to protection of his personal rights had been violated.
59. On 30 September 2003 the Banská Bystrica District Court delivered judgment no. 14C 112/02-229. The plaintiffs, a married couple, alleged to have suffered damage of both pecuniary and non-pecuniary nature in the context of criminal proceedings against them in which they had been discharged. One of the plaintiffs, who had been dismissed from the police and detained on remand in the context of the criminal proceedings, also claimed compensation for lost income.
In the above judgment the District Court ordered the Ministry of Justice to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings. The decision to grant compensation for pecuniary damage was based on the relevant provisions of the State Liability Act of 1969.
The District Court further granted the plaintiffs, with reference to Article 11 et seq. of the Civil Code, 7 and 5 million Slovak korunas respectively in compensation for damage of non-pecuniary nature. The relevant part of its judgment reads as follows:
“The right to protection of one’s personal rights is an individual right of any natural person. When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately. It is not even required that an unjustified interference should produce any particular consequences. It suffices that an unjustified interference was capable of affecting or violating one’s personal rights. The fact that plaintiff A cannot exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [who is an advocate] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [with their personal rights]. That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them. There is no doubt that such interference is objectively capable of causing damage. As regards both plaintiffs, it affected their professional life, their position in the society, family life and their relations with neighbours... The interference with the plaintiffs’ [personal rights] is directly linked to the criminal proceedings [against them]...
It follows from the above that there has been an interference with the plaintiffs’ personal rights which, in substance, still persists and that it is related to the criminal proceedings against the plaintiffs. The criminal proceedings were carried out by the Slovak Republic through its competent authorities. The defendant is therefore obliged to compensate for damage of a non-pecuniary nature.
... compensation for damage of a non-pecuniary nature has the character of satisfaction. The purpose of compensation granted in the form of a sum of money is to “purify” the affected person in the eyes of other persons in all spheres of life where harm was caused... The amount of compensation granted should therefore be adequate to the interference and its circumstances... It is beyond any doubt that the plaintiffs were publicly known in the district of Považská Bystrica (in view of their professional positions) and that their reputation was affected in all spheres of life. The case was taken up by the media whereby their esteem in professional life was diminished over the whole country. The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs, but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96673
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ATANASOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1937 and lives in Bitola. He worked for “Aparati za domakinstvo”, a socially-owned company which was later restructured under the Government’s decision of August 1997 allowing its transformation.
6. On 21 February 1997 the applicant was reassigned to the post of technologist with the stated aim of increasing productivity and efficiency and improving operations.
7. On 17 March 1997 the applicant brought a civil action seeking to have the reassignment annulled since, in thirty years with the same employer, he had never worked as a technologist.
8. On 21 May 1997 the Bitola Court of First Instance (“the first-instance court”) dismissed the applicant’s claim. On 29 September 1997 the Bitola Court of Appeal quashed this decision ordering the lower court to examine what had been the applicant’s status with the employer; whether and how had the bankruptcy proceedings, initiated meanwhile against the employer, affected the applicant’s employment and whether the employer had been restructured.
9. On 30 September 1998 the first-instance court annulled the employer’s decision of 27 May 1997 dismissing the applicant (in respect of which the applicant had brought a separate action). According to the Government, in these proceedings the applicant had sought to have the proceedings concerning his reassignment suspended.
10. On 29 March 1999 the applicant’s claim was upheld at first instance. The court held that although the reassignment decision had referred to the relevant provisions of the Labour Act and the General Collective Agreement (see “Relevant domestic laws” below) it had not provided the applicant with concrete reasons for his reassignment. In this connection, it stated that section 27 of the Labour Act had been of a declaratory nature without providing any concrete reason for reassignment. On 29 September 1999 the Bitola Court of Appeal quashed this decision finding that the reassignment decision had provided reasons for the applicant’s reassignment. However, it ordered the first-instance court to determine whether the reassignment had been justified.
11. On 26 March 2001 the first-instance court, deciding the case for the third time, upheld the applicant’s claim and annulled the reassignment decision. The court established that the applicant had worked for the same employer since 1966 in different posts and that no concrete reasons had been given for his reassignment. In this latter respect, it referred to a court annulment, for lack of concrete reasons, of the reassignment of Mr R.V., the applicant’s colleague, which had been based on the same grounds, as the applicant’s (see paragraph 6 above, П.бр. 680/97 of 9 June 1999). Noting that the reassignment decision had been rendered under section 27 of the Labour Act and section 11 of the General Collective Agreement, it stated, inter alia,
“... in case of reassignment, an employee should be provided with a reasoned decision in writing so that he or she can protect his or her rights and the court may review its lawfulness. In the present case, the disputed decision does not set out any reasonable ground, which implies that the employer had not established the need for the [applicant’s] reassignment. If no reasonable grounds are provided, the reassignment of any employee, including the [applicant], is unlawful. [The employer] has only quoted the terms for reassignment, as specified in the Collective Agreement, without providing any reasonable ground ...”
12. The court also concluded that the reassignment had been unjustified given the applicant’s age and lack of experience required for the new post.
13. On 24 May 2001 the Bitola Court of Appeal dismissed the employer’s appeal and upheld the lower court’s decision. It stated, inter alia:
“... the reassignment decision does not set out any reasons. The employer has merely referred to the Collective Agreement’s objectives of increasing the productivity and efficiency of the applicant and for work organisation purposes. It does not mean that by mere reference to these grounds, the employer has established the need for the [applicant’s] reassignment...It means that [the applicant] was reassigned to a post which does not correspond to his work experience ...”
14. On 29 May 2003 the Supreme Court allowed an appeal on points of law submitted by the employer on 9 July 2001 and overturned the lower courts’ decisions. It held that they had wrongly applied national law. Referring to section 27 of the Labour Act and section 11 of the Collective Agreement, it found that the employer had been entitled to assess the need for reassignment - which would be well-founded only if an employee was reassigned to a post commensurate with his or her vocational capacity. It further held that the issue as to whether the employee would be more efficient in the new post went beyond the scope of judicial review. It concluded that:
“Concerning the grounds for reassignment provided in the [disputed] decision, the court considers that it is sufficient to state one of the terms specified in the Collective Agreement. The disputed decision meets this requirement ...”
15. Under Article 101 of the Constitution, the Supreme Court is the highest court providing uniformity in the implementation of laws by the courts.
16. Section 27 (2) of the Labour Act (Закон за работните односи), as in force at the material time, provided that in cases where collective agreements applied, an employee could be reassigned to any post commensurate with his or her vocational capacity.
17. Under section 11 of the Collective Agreement, an employee may be reassigned to a post commensurate with his or her qualifications with a view to, inter alia, improving efficiency.
18. Section 408 provided, inter alia, that the court should take into consideration the need for the urgent settlement of employment disputes.
19. In two decisions of 1997 and 1999, the Supreme Court ruled that employers were required to give concrete reasons for reassignment and that mere reference to section 27 of the Labour Act and section 11 of the collective agreement was insufficient unless concrete facts, circumstances and grounds were provided for the reassignment (the Supreme Court’s decisions of 5 February 1997 (Рев.бр.474/96) and 23 June 1999 (Рев.бр.312/98)).
20. In 2005 and 2006, the Supreme Court ruled that under section 27 of the Labour Act, it was sufficient that the new post corresponded to the qualifications of the person concerned. Only employers, and not the courts, were entitled to assess the need for reassignment and employers were not required to provide concrete reasons (the Supreme Court’s decisions of 7 December 2005 (Рев.бр.768/04) and 22 March 2006 (Рев.бр.285/05)).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1