ITEMID: 001-23210
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CHANDRA AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The first applicant, Ms Roslina Chandra, is a Netherlands national of Indonesian origin, born in 1958 and living in Eindhoven. The second, third, fourth and fifth applicants, Henry, Willian, Ayreen and Nivula Tjonadi – the first applicant’s children – are Indonesian nationals, born in 1979, 1980, 1983 and 1985 respectively. They currently live in Eindhoven with their mother. The applicants are represented before the Court by Mr I.K. Kolev, a lawyer practising in Hapert.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1992 the first applicant (“the mother”) was in the process of getting a divorce from her Indonesian husband, father of the other applicants (“the children”). She submitted that her husband did not meet his responsibilities as head of the family, was frequently inebriated, abused her and the children, did not provide for basic daily needs and repeatedly forced her out of the house at knifepoint. On 10 September 1992, while the divorce proceedings were still ongoing, the mother left Indonesia and came to the Netherlands where she met and settled with a Netherlands national. On 2 April 1993 she was granted a residence permit for the specific purpose of living with her partner. The father retained custody of the children who remained with him in Indonesia. The mother pursued legal proceedings from the Netherlands in order to obtain a divorce as well as custody of the children.
In October 1993 the mother was granted custody of the children, but this decision was appealed by the father. In a final decision of 29 April 1995 she was granted custody. According to the mother’s submissions, she subsequently started preparations for the children to join her in the Netherlands. Her partner, however, was reluctant to have the four children coming to live with them.
On 22 July 1996 the mother obtained Netherlands nationality. In January 1997 the relationship between the mother and her partner ended and she settled in a place of her own.
In February 1997 the children were granted permission by their father to leave Indonesia in order to join their mother. On 20 March 1997 they entered the Netherlands on a short stay visa (visum voor kort verblijf), granted for the purpose of visiting their mother and valid for 90 days. They have been living with their mother since that time. On 12 May 1997 the children lodged a formal application for a residence permit (vergunning tot verblijf) in order to stay with their mother.
On 13 August 1997 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the children’s request considering that the criteria for family reunion had not been met given that, firstly, the close family ties (gezinsband) between mother and children must be considered to have been severed and, secondly, the mother had insufficient means of subsistence. The Deputy Minister also found that this decision did not entail a breach of Article 8 of the Convention, since it did not prevent the applicants from continuing to exercise their family life as they had done prior to the children’s arrival in the Netherlands. Furthermore, there were no impediments for the mother to follow her children to a place outside the Netherlands.
On 2 September 1997 the children filed an objection (bezwaar) against this decision. On 26 September 1997 the Deputy Minister informed the children that they were not allowed to await the outcome of their objection in the Netherlands. On 30 September 1997 the children filed a request with the Hague Regional Court (arrondissementsrechtbank) for a provisional measure (voorlopige voorziening) that would allow them to remain in the Netherlands pending the proceedings on their objection.
On 15 October 1997 the Deputy Minister rejected the objection. The children subsequently filed an appeal against that decision with the Hague Regional Court, amending their request for a provisional measure in that they now wished to be allowed to await the outcome of the appeal proceedings in the Netherlands.
On 10 March 1999 the Regional Court rejected the appeal, as well as the request for a provisional measure. It confirmed the Deputy Minister’s assessment that the close family ties between the mother and the children had been severed. The Regional Court held in this respect that the mother had failed to show that close family ties with her children had been maintained either through parental decisions or through financial support, even after she had obtained custody of them. The Regional Court attached particular importance to the fact that it was only in 1997 that the mother had taken concrete steps to have her children join her in the Netherlands and not already in 1993 and 1995 when she had obtained custody of them.
The Regional Court saw no merit in the arguments that refusing the children residence would amount to a violation of Article 8 of the Convention. In this context it had regard to the fact that the proceedings concerned a request for a first admission (eerste toelating) to the Netherlands, rather than a refusal to extend existing residence. It further held that there were no objective obstacles to the applicants’ family life being exercised elsewhere – the mother was free to develop family life with her children in Indonesia. The Regional Court concluded that a proper balance had been struck between the interests of the applicants and those of society as a whole, the latter interest being served by a restrictive immigration policy.
As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa (machtiging tot voorlopig verblijf). Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.
At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1994 (“the Act” - Vreemdelingenwet 1994). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case.
Under Article 11 paragraph 5 of the Act, a residence permit may be refused on public interest grounds (gronden aan het algemeen belang ontleend).
In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined at the time in the Aliens Circular 1994 (“the Circular” - Vreemdelingencirculaire 1994) – is aimed at restricting the number of aliens admitted to the Netherlands. In general, an application for a residence permit in the Netherlands is granted only if the individual’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so (Chapter A4/5.3 of the Circular).
The admission policy for family reunion purposes was laid down in Chapter B1 of the Circular. It provided that the following persons, where relevant, may qualify for family reunion if certain conditions (relating to matters such as public policy and means of subsistence) are met:
– a person’s spouse,
– a minor child born of the marriage who actually belongs to the family unit (gezin), and
– a minor child born outside the marriage who actually belongs to the family unit (e.g. a child of one of the spouses from a previous marriage or a foster child).
The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to send for the child as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent. Living together in the Netherlands without a permanent residence permit is not seen as restoring severed family ties.


ITEMID: 001-90426
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ALEKSEYENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 8;Preliminary objections dismissed (non-exhaustion of domestic remedies);Violations of Art. 8;Preliminary objection allowed (non-exhaustion of domestic remedies);Remainder inadmissible;No violation of Art. 34;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1966 and lives in the village of Trudovoy, the Rostov Region.
7. In 1996 the applicant was arrested and charged with a number of serious offences, including possession of explosives, death threats, attempted murder and murder.
8. The Rostov Regional Court examined the applicant’s case and gave judgment on 18 February 1997 acquitting him on all charges.
9. On 30 April 1997 the Supreme Court of Russia examined the first-instance judgment on appeal. The court decided that the trial court had committed serious breaches of procedure, quashed the judgment of 18 February 1997 and remitted the case for a fresh examination at first instance.
10. On 23 July 1997 the Rostov Regional Court re-examined the applicant’s case and found him guilty on all charges. He was sentenced to fifteen years’ imprisonment. The court also ordered the forfeiture of the applicant’s property.
11. An appeal by the applicant against the judgment of 23 July 1997 was dismissed by the Supreme Court of Russia on 25 December 1997.
12. On an unspecified date the Deputy Prosecutor General of the Russian Federation lodged a special appeal against the judgment of 23 July and the decision of 25 December 1997.
13. On 18 October 2000 the Presidium of the Supreme Court of Russia examined the prosecutor’s appeal. The court reopened the proceedings and partly changed the decisions in the case. In particular, the court declared the prosecution in respect of the death threats to be time-barred and changed the legal characterisation of the applicant’s criminal conduct in relation to one of the other charges. The applicant’s sentence remained unchanged.
14. The applicant and his counsel were neither notified of the hearing nor summoned to it. The prosecution was present and made submissions.
15. In letters dated 13 April 2001, 1 December 2001, 25 November 2002, 15 April 2004 and 18 May 2004 the applicant complained that he had been unable to correspond freely with the Court, other domestic authorities and his lawyers; that the authorities had not accepted sealed envelopes for dispatch; and that there had been considerable delays in forwarding correspondence to him after its receipt by the prison and in actually sending letters out after their acceptance for dispatch.
16. In their observations, the Government submitted the register of correspondence which stated that the applicant had sent out letters to various destinations on various dates. There was a short description of the content of the letters dated between 1999 and March 2000. In respect of the letters dated March 2000, it was recorded that they had been “sealed”.
17. In a letter of 25 April 2005 the applicant informed the Court that its letters of 1 February, 8 and 9 March 2005 had been forwarded to him with considerable delay. In particular, the letter of 1 February had been received by the prison on 16 February 2005, registered under the incoming number 620, and had not been forwarded to him until 3 March 2005.
18. In a letter of 20 November 2005 the applicant informed the Court that the Court’s letter of 20 June 2005 had been received by the prison on 1 July 2005 and had not been served on him until 24 July 2005. He also stated that his understanding was that his letters dated 13 January 2005 and 1, 9 and 24 February 2005 (outgoing no. A-11 dated 19 January 2005, outgoing A19 dated 2 February 2005 and outgoing A-26 dated 16 February 2005) had not been received by the Court.
19. In reply, in a letter of 18 January 2006, the Government submitted that the competent authorities had carried out an additional verification and had established one occurrence of delayed forwarding of mail from the Court to the applicant. As a result, some officials had been reprimanded. The Government denied, however, that any letters had been sent by the applicant to the Court on 13 January, 9 February and 24 February 2005.
20. In their further observations, the parties responded to the Court’s factual questions concerning the applicant’s claims in this respect and provided the following information.
21. The Government submitted that between 23 September 1998 and 1 February 2003 the applicant had served his sentence of imprisonment in penitentiary establishment UCh-398/9, the Rostov Region. As of 11 February 2003 the applicant had been serving his sentence in penitentiary establishment UCh-398-1, the Rostov Region.
22. The applicant did not contest these dates.
23. In respect of the question concerning the total number of letters received by the applicant from the Court through the prison services, the Government submitted that between 22 January 2001 and 4 September 2007 the applicant had received ten letters. These letters had been received by the prison and served on the applicant on the following respective dates: 9 and 10 July and 15 and 16 December 2004, 13 and 14 (two letters) and 29 January, 3, 16 and 17 February, 26 and 27 March (two letters), 22 and 23 April and 1 and 24 July 2005.
24. They also submitted that all the letters had been handed to the applicant in sealed envelopes and had not been censored.
25. In his further observations, the applicant submitted that during this time he had received eleven letters from the Court through the prison authority. He also alleged that all of these letters had been served on him with substantial delays. He did not submit any concrete evidence in support of the latter point.
26. The Court’s database indicates that between 22 January 2001 and 4 September 2007 it dispatched a total of twenty-three letters to the applicant’s prison addresses, dated respectively 20 April, 2 August and 26 September 2001, 18 March, 6 September and 18 November 2002, 24 and 27 February, 19 March and 7 April 2003, 28 June and 5 July 2004, 2 September, 24 November and 1, 21 and 22 December 2004 and 18 January, 1 February, 8 and 9 March, 12 April and 20 June 2005.
27. In respect of the question concerning the total number of letters sent by the applicant to the Court through the prison services, the Government submitted that between 22 January 2001 and 4 September 2007 the applicant had sent out eleven letters. These letters had been sent by the applicant on the following dates: 7 September 2001, 20 August 2002, 14 January 2003, 30 September and 11 May 2004, and 15 and 19 January, 2 and 16 February, 12 May and 13 July 2005.
28. The Government admitted that the applicant’s letters sent out on 7 September 2001, 20 August 2002 and 14 January 2003 had been censored by the prison authorities under Article 91 of the Code of Execution of Sentences then in force. They stated, further, that there had been no censorship of the remaining letters as the relevant applicable legislation had been amended and the European Court of Human Rights had been added to the list of bodies with which a prisoner could correspond without censorship.
29. The applicant submitted that, contrary to the Government’s submission, during that period he had sent out 29 letters to the Court through the prison administration and that the prison administration had required him to hand these letters to them unsealed for censorship. The dates of dispatch were as follows: 22 January, 15 and 28 May, 26 June, 31 August, 6 October, 1 and 10 December 2001; 20 May, 15 August, 25 November 2002; 6 and 14 January, 3 March, 25 May, 20 October 2003; 13 and 23 April, 18 May, 30 September, 20 November and 29 December 2004; 15 January, 2 and 9 February, 26 July and 20 November 2005; 20 February 2006; and 15 March 2007.
30. The Court’s database indicates that between 22 January 2001 and 4 September 2007 it received a total of eighteen letters from the applicant, dated respectively 22 January, 15 May, 31 August, 1 and 10 December 2001; 15 August, 14 October and 25 November 2002; 6 January and 20 November 2003; 15 April, 28 May, 30 September, 20 November and 21 and 30 December 2004; 25 April, 10 May and 20 November 2005; and 20 August and 1 September 2007. It is unclear whether the applicant sent these letters out directly from his prisons or through his relatives or a lawyer.
31. On 28 August 2004 the Court gave notice of the application to the respondent Government.
32. On 21 December 2004 the Court received the applicant’s letter of 20 November 2004. The letter stated that in September 2004 some officials from the Prosecutor’s Office and the Main Directorate for the Execution of Sentences of the Ministry of Justice had visited him and had forced him to sign some papers. They had allegedly wanted the applicant to withdraw his application and had told him that he would not prove anything and only make things worse.
33. In their observations, the Government included the statement by the applicant dated 12 October 2004 and addressed to the Head of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, V.I. Khizhnyak, in which he stated that he had “no complaints, claims against the prison administration” and that he had no “claims concerning the receipt and dispatch of correspondence to and from the European Court of Human Rights”. The statement was written in the applicant’s own hand. In it the applicant also said that he had made his statement without physical or psychological coercion. The statement was collected and signed on the same date by two officials: the Assistant to the Head of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, Ch., and the Head of the Registry of the Main Directorate of Execution of Sentences of the Ministry of Justice in charge of the Rostov Region, B.
34. In respect of this letter the Government submitted that on 12 October 2004 the Assistant Chief of the Correctional Department of the Ministry of Justice, Mr Ch., had had an interview with the applicant. According to the Government, the purpose of the interview had been the “clarification of some facts with a view to submitting the position of the Russian Federation Ministry of Justice on the application lodged by Mr Alekseyenko”. Mr Ch.’s explanatory note to the interview stated that he had not requested the applicant to withdraw his application to the European Court of Human Rights, and that the interview had been conducted in the correct form, without any rough, rude or degrading treatment on his part. The applicant’s explanatory note stated that he had not made any complaints or critical remarks in respect of the prison administration and that he had not been subjected to any psychological or physical pressure.
35. The Government submitted a letter from the Rostov Regional Court dated 13 October 2004 in which the Deputy President of that court had certified that neither the applicant nor his counsel had made any complaints to the competent lower courts in respect of alleged interference with correspondence.
36. The Government submitted that on 14 October 2004 Mr K. from the Regional Prosecutor’s Office had had an interview with the applicant. The applicant had made the following statement to Mr K.:
“... My correspondence with the European Court of Human Rights started in January 2001 during my detention in establishment UCh-398/9 in the town of Shakhty. From that prison I sent out eight letters (22 January 2001, 15 May 2001, 28 May 2001, 31 August 2001, 1 December 2001, 10 December 2001, 20 May 2002, 15 August 2002). All the above letters were received by the addressee and I retain proof of that. There were no instances of refusal to dispatch letters from prison IK-9. However, all letters were only accepted by the administration in an unsealed form and were dispatched with considerable delay. I made attempts to send out sealed envelopes but the head of the special department returned them to me with reference to the corresponding instructions from higher authorities.
Since 11 February 2003 I have been serving my sentence in UCh 398/1 of the Main Directorate for the Execution of Sentences of the Ministry of Justice. From this correctional establishment I dispatched five letters to the European Court of Human Rights (3 March 2003, 25 May 2003, 20 October 2003, 13 April 2004 and 30 September 2004). I only know that my letter of 13 April 2004 was dispatched on 11 May 2004, whilst three previous letters never reached the Court. As to the letter of 30 September 2004, I am unaware of its fate. All these letters were not accepted from me in sealed form. The authority forced me to present them unsealed. As regards the answers from the European Court, I received three whilst serving the sentence in IK1, and all were sealed. The incoming numbers of IK-1 were: 5727 of 3 August 2004, 1751 of 6 April 2004. I do not know the number of the third answer, because I did not keep it. But I remember the date of receipt – 28 June 2004.
With all confidence I can state that I signed the receipt in respect of one of the answers and don’t remember in respect of the others. Whilst serving the sentence in IK-1 I received copies of three answers from the European Court. They had been forwarded from IK-9 since I had not received them there.
Apart from the foregoing, I don’t have any other complaints in respect of the conditions of detention ...”
37. On 20 January 2005 the applicant was interviewed by Mr Zh., the head of the Department responsible for supervising the lawfulness of the execution of sentences at the Regional Prosecutor’s Office. The applicant confirmed that on 12 October 2004 he had had a word with Mr Ch. from the Ministry of Justice and on 14 October with Mr K. from the Prosecutor’s Office. The applicant submitted that they had not put any pressure on him whatsoever and that all explanations had been given by him voluntarily.
38. On 21 January 2005 the applicant made the following statement to Mr Zh.:
“In a supplementary application form I mentioned that I had been forced to sign some papers and this was formulated in such a way that it could be understood that I had signed the documents under pressure from the representative of the prosecutor’s office and the Main Directorate for the Execution of Sentences. In fact, this did not correspond to reality because in that case I was referring to the relations that I had previously had with the prison administration, when correspondence had been dispatched with delays and the administration had requested me to withdraw the complaints and had refused to send them out.
At present the administration has been replaced and many officials fired, which is why I have normal relations with the administration and have no complaints. ... I have given no explanations against my will.”
39. In their statements of 20 January 2005, Mr Ch. and Mr K. explained that they had visited the applicant to check the facts outlined in his complaints to the European Court of Human Rights and interview the persons allegedly involved and that no coercion whatsoever had been put on the applicant in connection with his application to the Court.
40. In their further observations, the Government said that the above-mentioned interviews had taken place during the check carried out by the competent bodies of the Russian Federation in connection with the request of the European Court of Human Rights dated 2 September 2004 to the Representative of the Government to clarify the applicant’s allegations. They also submitted that the difference in the applicant’s position in his statements of 12 and 14 October 2004 did not prove the alleged coercion as the applicant could have changed his position for other reasons.
41. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, (Уголовно-процессуальный кодекс РСФСР), as in force at the material time, allowed certain officials to challenge a judgment which had become operative and to have the case reviewed.
42. Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment became operative and was subject to execution as of the day when the appeal (cassation) instance pronounced its judgment or, if it had not been appealed against, when the time-limit for appeal had expired.
“The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not become operative on cassation appeals].”
“The grounds for quashing or changing a judgment on appeal are as follows:
(i) prejudicial or incomplete inquest, investigation or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) inadequacy of the sentence in relation to the gravity of the offence and the convicted person’s personality.”
43. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review.
44. Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960 provided that a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, or remit the case for a new investigation or fresh court examination at any instance, or uphold a first-instance judgment reversed on appeal, or amend and uphold any of the earlier judgments.
45. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification too lenient, it had to remit the case for a new examination.
46. In accordance with Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in hearings before a supervisory review instance. A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing.
47. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that Article 377 § 3 of the Code was unconstitutional in so far as it allowed supervisory review proceedings to be conducted in the absence of the defence where a special appeal against the previous decisions would, if successful, result in the worsening of the convicted person’s situation.
48. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to that effect.
49. Article 91(2) of the Code of Execution of Sentences of 8 January 1997 (Уголовно-исполнительный кодекс) provided for censorship of prisoners’ correspondence.
50. Law no. 26-FZ of 20 March 2001 amended this Article to provide for an exception from the rule in respect of correspondence with a court, a prosecutor’s office, higher officials of the penitentiary system and the Ombudsman of the Russian Federation. A prisoner’s correspondence with his lawyer or representative could be censored in certain cases upon a reasoned decision of the director or deputy director of the prison authority.
51. Law no. 161-FZ of 8 December 2003 introduced further amendments to the Article. The European Court of Human Rights was added to the list of bodies with which the prisoner could correspond without censorship. The Law entered into force as of the date of its first official publication on 16 December 2003.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 34
8


ITEMID: 001-86008
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ZBOROWSKI v. POLAND (N° 3)
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1958 and lives in Poznań.
5. The applicant was detained pending trial from 18 January 2001 to 18 January 2005. During this period he corresponded with his lawyer.
6. The following envelopes sent to the applicant by his lawyer were marked “censored” in handwriting, stamped with the stamp of the Gorzów Wielkopolski Regional Prosecutor’s Office and signed in an illegible manner:
the envelope bearing a post office stamp of 5 February 2001, “censored” on 2 February 2001,
the envelope bearing no post office stamp, “censored” on 23 March 2001,
the envelope bearing no post office stamp, “censored” on 19 April 2001,
the envelope bearing no post office stamp, “censored” on 26 April 2001,
the envelope bearing no post office stamp, “censored” on 10 May 2001,
the envelope bearing no post office stamp, “censored” on 31 May 2001,
the envelope bearing no post office stamp, “censored” on 26 June 2001,
the envelope bearing no post office stamp, “censored” on 8 June 2001,
the envelope bearing no post office stamp, “censored” on 8 August 2001,
the envelope bearing no post office stamp, “censored” on 31 May 2001,
the envelope bearing a post office stamp of 10 August 2001 “censored” on 16 August 2001,
the envelope bearing a post office stamp of 16 August 2001 “censored” on 21 August 2001,
the envelope bearing no post office stamp, “censored” on 7 September 2001,
the envelope bearing no post office stamp, “censored” on 27 September 2001,
the envelope bearing no post office stamp, “censored” on 5 October 2001,
the envelope bearing no post office stamp, “censored” on 11 October 2001,
the envelope bearing no post office stamp, “censored” on 17 October 2001.
7. The applicant also submitted three other envelopes. Two of them bear a note “no censorship” (“bez cenzury”) followed by the stamp of the Office of the Prosecutor and an illegible signature. They also bear post office stamps of 22 March 2001 and 6 June 2001, respectively. The third one bears a stamp of the Office of the Prosecutor, a hand-written date of 15 March 2001 and an illegible signature with no information as to whether the contents had been censored.
8. The applicant submitted one of the “censored” envelopes to the District Court. On 24 February 2003 the District Court informed the Regional Prosecutor’s Office about the incident. On 14 March 2003 the Regional Prosecutor’s Office issued an explanatory note (“notatka służbowa”) stating that in spite of the word “censored” written on the envelope, the applicant’s correspondence had not been censored and a note “censored” on the envelope had probably been made by mistake.
9. The applicant continued to inform the authorities about the alleged censorship of his correspondence.
10. On 16 January 2004 the Regional Prosecutor who had put her signature on the envelopes (J.W.) made a declaration (“oświadczenie”) stating that she had never censored the applicant’s correspondence.
11. On 17 November 2003 the applicant requested that criminal proceedings be instituted against the Regional Prosecutor (J.W.) alleging censorship of his correspondence with his lawyer.
12. By a letter of 23 January 2004 the Regional Prosecutor informed the applicant that his request had been treated as a hierarchical complaint and that it had been found unsubstantiated.
13. On 18 February 2004 the applicant notified the police authorities of the offence committed by the Regional Prosecutor J.W.
14. On 6 March 2004, in reply to the letter of 23 January 2004, the applicant stated that he had not intended to lodge a complaint but had requested the institution of criminal proceedings.
15. On 2 April 2004 the Regional Prosecutor again informed the applicant that all the applicant’s requests for the institution of criminal proceedings against J.W. were to be treated as hierarchical complaints.
16. On 15 February 2005 the applicant again requested the institution of criminal proceedings against the Regional Prosecutor J.W.
17. On 16 March 2005 the Regional Prosecutor refused to institute criminal proceedings against J.W. stating that no offence had been found as the “censored” note had been probably written by mistake. On 27 March 2005 the applicant appealed.
18. On 17 August 2005 the Gorzów Wielkopolski District Court upheld the contested decision. In its reasons for its decision the court stressed that the “censored” note had been written only on envelopes and not on letters and thus no evidence had been adduced that the applicant’s correspondence had been censored. In consequence, it found that J.W. had not committed an offence of unlawful access to confidential information.
19. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgments in the cases of Michta v. Poland, no 13425/02, §§ 33-39, 4 May 2006 and Kwiek v. Poland, no 51895/99, § 21-24, 30 May 2006.
VIOLATED_ARTICLES: 8


ITEMID: 001-98016
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOROLEV v. RUSSIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1954 and lives in the town of Orenburg.
5. The applicant was in active military service between 1972 and 1998. In February 1998 while he was on leave he was refused a free plane ticket on account of the debt accrued by the Federal Ministry of Defence to the air carriers. The applicant purchased a ticket for himself expecting to be reimbursed by the employer later.
6. After his retirement from active service, the applicant took paid leave in September 1998.
7. Apparently, in March 1999 the military authority informed the applicant that he would not be reimbursed for the ticket he had bought in February 1998 because he was entitled to only one period of paid leave per year.
8. It appears that in May 2001 the applicant brought civil proceedings in the Leninskiy District Court of Yekaterinburg claiming compensation in respect of pecuniary and non-pecuniary damage caused by the above refusal. Apparently, the District Court dismissed his claim.
9. In June 2001 the applicant brought proceedings in the Military Court of the Yekaterinburg Garrison against two military authorities: the Urals-Tyumen regional department of the Federal Air Service and the financial department of the Privolzhsko-Uralskiy military command. He claimed annulment of a 1996 contract between the Ministry of Defence and an air company, as well as a compensation in respect of pecuniary damage (426 Russian roubles, RUB) and non-pecuniary damage in the amount of RUB 300,000 in relation to the refusal of the ticket in February 1998.
10. By a judgment of 15 March 2002 the Military Court of the Yekaterinburg Garrison dismissed the applicant's claims for failure to comply with the statutory time-limit (see paragraph 13 below). The court heard the applicant, the first defendant's representative and the second defendant's lawyer.
11. The applicant lodged an appeal before the Military Court of the Urals Command. The court heard the applicant, a representative of the Privolzhsko-Uralskiy military commander. A prosecutor was also present. At the end of the hearing, he made a statement, exercising a right conferred on him by the Civil Procedure Code 1964, in force at the material time (see paragraph 14 below). The applicant was not afforded an opportunity to comment on the above statement. On 25 April 2002 the Military Court of the Urals Command upheld the judgment on appeal. It considered that, as confirmed by the applicant, he had first learnt about the violation of his right on 27 February 1998; that his references to the contracts concluded by the State authorities had been irrelevant for his claim.
12. Under Articles 195 and 196 of the Civil Code, the general limitation period for claiming protection of a violated right amounted to three years.
13. Under Article 239-5 § 1 of the RSFSR Code of Civil Procedure a complaint against unlawful actions by a public official should be lodged with the competent court no later than three months from the date on which the person concerned became aware of the violation of his or her rights or freedoms. By a ruling of 14 February 2000 the Plenary Session of the Supreme Court of Russia held that if a military officer's complaint against unlawful actions of military authorities contained a claim for the redress in respect of the alleged violation of his or her right, the three-month time-limit should not apply (§ 12).
14. Both in first-instance and appeal proceedings, a party could challenge the prosecutor participating in the proceedings on account of his or her previous participation in the case in a different capacity, his next-of-kin status in relation to a party or other persons involved in the case, or if the prosecutor had an interest in the outcome of the case or if other circumstances indicated his partiality (Articles 18, 20 and 297 of the RSFSR Code of Civil Procedure).
15. After the oral pleading by the parties but before the court's deliberations, the prosecutor was allowed to give his conclusions as to the lawfulness and reasonableness of the court decision (Articles 303 and 304). The parties could not comment on the above conclusions.
16. The relevant part of the Parliamentary Assembly's Resolution 1604 (2003) On the Role of the Public Prosecutor's Office in a Democratic Society Governed by the Rule of Law reads as follows:
“it is essential:
a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights;
b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors, with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government; and
c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system, with separate, appropriately located and effective bodies established to discharge any other functions...”
17. The European Commission for Democracy through Law (the Venice Commission) at its 63rd plenary session (10-11 June 2005) adopted an Opinion on the Prosecutor's Offices Act (see above). Its relevant provisions provide as follows:
“...57...It is, of course, clear that the Russian Office of the Prosecutor General is among those Offices which does not conform to the model which the Parliamentary Assembly considered to be essential. Moreover, in respect of the Prosecutor's predominant role in the Russian administration, which can hardly be described as limited or exceptional, the Prosecutor's Office does not seem to conform to the tests...which are as follows:
1. In addition to the essential role played by prosecutors in the criminal justice system, some member states of the Council of Europe provide for the participation of the prosecutor in the civil and administrative sectors for historical, efficiency and economic reasons but their role should always be exceptional (principle of exceptionality).
2. The role of the prosecutor in civil and administrative procedures should not be predominant; the intervention of the prosecutor can only be accepted when the objective of this procedure cannot, or hardly be ensured otherwise (principle of subsidiarity).
3. The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well-founded, recognisable aim (principle of speciality).
4. States can entitle prosecutors to defend the interest of the state (principle of protection of state interest).
5. Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality (principle of legality).
6. In case it is required for reasons of public interest and/or the legality of decisions (e.g in cases of protection of the environment, insolvency etc.) the participation of the prosecutor can be justified (principle of public interest).
7. Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor (principle of protection of human rights)...
13. Prosecutors should have no decision-making powers outside the criminal field or be given more rights than other parties before courts (principle of equality of arms).
14. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non-discrimination)...
74. There have been undoubted reforms in the Russian system of Procuracy, notably the limitations on the prosecutor's powers of supervisory review of court decisions... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned”.
18. Opinion no. 3 (2008) adopted by the Consultative Council of European Prosecutors, an advisory body set up by the Council of Europe Committee of Ministers by its decision of 13 July 2005, contains the following comparative analysis [internal footnotes omitted]:
“22. Court actions – irrespective of the procedural rules governing them (rules of civil proceedings or special administrative law rules) – are bound to court proceedings: prosecutors act as parties therein. Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners, they have the same powers as other parties. Their position is not exclusive, the proceedings may be started by other interested persons as well. In such cases prosecutors have definitely no decision-making powers regarding the merit of cases, their decisions concern only initiation of a case: submitting a petition to the civil law court.
23. Almost in all countries where prosecutors have competences in the non criminal field, prosecutors are empowered to launch new court-actions, to use ordinary and extraordinary remedies (appeals) as parties of proceedings. However some rules could be identified (prohibition of extraordinary appeal or proposal for reopening of proceedings; prohibition of settlement in the name of the party)...
25. The aims of non penal activities of prosecutors, irrespective of their substantive or procedural differences, are much more concordant: ensuring rule of law (integrity of democratic decisions, legality, observance of law, remedy against violation of law), protection of rights and liberties of persons (mostly of those incapable to protect their rights – minors, persons with unknown domicile, mentally incapables), protection of assets and interests of State, protection of public interest (or of public order), harmonisation of jurisdiction of courts (special remedies against final court decisions in the best interest of law, action as parties in such proceedings of the highest court levels)...
27. ...[T]he CCPE is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the Court or by certain Constitutional Courts or criticised by other bodies of the Council of Europe. The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions; intervention in court proceedings without reasonable interest (of State, of public interest or based on protection of rights) violating the principle of equality of arms; quashing of final judgment of courts violating the principle of legal certainty (res judicata) ; participation of prosecutors in panels of supreme courts confusing the decision-making role of judges with prosecutors tasks; unlimited right to start litigation.
28. The contribution of prosecutors to the consolidation of the case-law of the courts is a fact in many member States. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision-taking process by judges.”
The Opinion referred to the following principles applicable in the relevant field:
“a. the principle of separation of powers should be respected in connection with the prosecutors' tasks and activities outside the criminal law field and the role of courts to protect human rights;
b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well;
c. these functions are carried out “on behalf of society and in the public interest”, to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court;
d. such competencies of prosecutors should be regulated by law as precisely as possible;
e. there should be no undue intervention in the activities of prosecution services;
f. when acting outside the criminal law field, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms);
g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court;
h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law;
i. the right of persons or institutions, involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured;
j. the developments in the case-law of the Court concerning prosecution services' activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78242
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PROKHOROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 6-1;Violation of Art. 13;Damage - financial award;Costs and expenses award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1942 and lives in Krasnyy Luch, the Lugansk region.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 3 December 1999 and 6 February 2002 the Krasnyy Luch Court (Краснолуцький міський суд Луганської області) awarded the applicant UAH 1,380.34 and UAH 397.35 respectively in salary arrears and other payments against his former employer, the State Open Joint Stock Company “Krasnolutska Avtobaza” (ДВАТ “Краснолуцька автобаза” ДХК „Донбасантрацит”). These judgments became final and the enforcement writs were transferred to the Krasnyy Luch Bailiffs' Service (Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) for enforcement.
7. The applicant received the debt due to him by the judgment of 3 December 1999 on 1 November 2004 and on 14 February 2005 - by the judgment of 6 February 2002.
8. On 14 February 2005 the Bailiffs' Service explained to the applicant that the delays in the enforcement of the judgments in his favour had been caused by the debtor's reorganization, the holding of its assets in a tax lien and the statutory moratorium on the forced sale of State property.
9. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57852
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF IMBRIOSCIA v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1+6-3-c
JUDGES: R. Pekkanen
TEXT: 7. Mr Franco Imbrioscia, a commercial traveller of Italian nationality, resided at Barletta (Italy) at the material time.
8. On 2 February 1985 the applicant arrived at Zürich airport from Bangkok. The customs officers found 1.385 kg of heroin in the suitcase of another passenger on the same flight, M. When asked whether he had been travelling with someone else, the latter pointed out the applicant. Mr Imbrioscia explained that they were both part of a group; he was searched and, when nothing was found, released.
9. After further investigations, he was none the less suspected of being linked to M., as a result of which he was arrested on the same day at Lugano, on the train on which he was returning to Italy.
10. Mr Imbrioscia immediately sought the help of Mrs S. C., who contacted a lawyer, Ms B. G.
11. On Sunday 3 February the applicant was questioned by the Zürich district prosecutor (Bezirksanwalt) with the assistance of an interpreter. He stated that he had caught the plane at Zürich because it was the cheapest way of travelling to Bangkok. By pure coincidence another person had also bought a ticket at Barletta for the same flight, but they had never sat next to each other during the trip. In addition, he denied that he had been involved in importing drugs into Switzerland. When he was advised that he was being remanded in custody, he requested that a lawyer be assigned to him as he did not know any lawyers in Zürich.
He remained in custody in the building of the Bülach district prosecutor’s department.
12. On 8 February Ms B. G. wrote to Mr Imbrioscia offering to represent him. He returned the necessary authority to act to her after signing it.
13. On 13 and 15 February the police interrogated him without his lawyer being present.
On 18 February 1985 he was questioned by a Bülach district prosecutor and he asked to be confronted with M., in order to prove his innocence.
14. On 25 February Ms B.G. withdrew as the applicant’s lawyer. The available documents do not show to what extent she had participated in his defence, but it is apparent from the prison register that she never visited him.
On the same day Mr Fischer was officially assigned to act for Mr Imbrioscia and on 27 February was given permission to visit him, which he did for the first time on 1 March 1985. On 4 March 1985 the case file that had been sent to him for inspection on 27 February was returned by him to the district prosecutor’s office .
15. Mr Imbrioscia was questioned again by the district prosecutor on 8 March. Mr Fischer had not been invited to attend the interview and does not seem to have asked to be present, but he received a transcript of it. On 15 March he visited the applicant.
16. On 2 and 3 April 1985 the district prosecutor and two police officers went to Barletta to examine several witnesses, including two travel agents.
17. On 9 April 1985 Mr Imbrioscia’s lawyer had a conversation with the district prosecutor, the subject of which is a matter of dispute. According to the judgment delivered by the Zürich Court of Appeal (Obergericht) on 17 January 1986 (see paragraphs 23-24 below), the district prosecutor told the lawyer that his client would be questioned again on 11 April. Mr Fischer denies this and claims that the discussion centred on the applicant’s detention.
In any event, he was not present on 11 April when Mr Imbrioscia was questioned about the inconsistencies in his statements and disputed the findings of the inquiries made in Italy.
18. By a letter of 17 April 1985 Mr Fischer acknowledged receipt of the transcripts of the witnesses’ statements in Barletta and of the questioning on 11 April (see paragraphs 16 and 17 above), and complained that he had not been invited to attend. He visited Mr Imbrioscia the next day.
19. Mr Fischer was, on the other hand, present on 6 June 1985 when the applicant was informed that the preliminary investigation had been concluded and that he faced possible charges of heroin smuggling and forgery. Mr Imbrioscia stated that he had had nothing to do with the matters of which he was accused under the first head and that he had acted in good faith as regards the second. His lawyer remained silent.
20. On 10 June 1985 the district prosecutor’s office committed Mr Imbrioscia and M. for trial in the Bülach District Court (Bezirksgericht) for drug trafficking.
On 13 June Mr Fischer visited his client in prison.
21. At the hearing on 26 June 1985 the two accused were again questioned about the facts, and their counsel made their submissions. Mr Fischer also examined M.
The court convicted the applicant and his co-defendant of offences against the dangerous drugs legislation (Betäubungsmittelgesetz). It sentenced Mr Imbrioscia to seven years’ imprisonment and banned him from residing in Switzerland for fifteen years; his co-defendant was given a six-year prison sentence. The defendants were each ordered to pay half the costs of the proceedings.
22. The court noted that the applicant had contradicted himself on several occasions - as to whether he knew M.’s first name and surname, whether he had sat next to him in the aeroplane and so on. Having regard to these inconsistencies, it considered that the accused’s claim that he was innocent could no longer be taken seriously (nicht mehr ernstgenommen werden kann).
M., who was illiterate, had also made such contradictory statements that there were doubts as to his mental capacity; he could not therefore be regarded as having been the organiser of the drug smuggling. On the last occasion he was questioned, on 15 May 1985, he had moreover stated that his co-defendant had been with him continuously and had told him when he should take delivery of the suitcase. Mr Imbrioscia’s role had therefore been to assist and supervise M.
The court found that the applicant had knowingly and willingly participated in committing the offence.
23. On 17 January 1986, after a hearing during which Mr Imbrioscia was again questioned by the judges, in Mr Fischer’s presence, the Zürich Court of Appeal (Obergericht) dismissed his appeal (Berufung). It upheld the sentence imposed by the District Court (see paragraph 21 above) and in addition ordered the applicant to pay the costs of the appeal proceedings.
24. As regards his lawyer’s absence during the interviews it observed that the lawyer had been informed of the date of the one on 11 April 1985 but had not attended, and that he had not put any questions at the last interview on 6 June 1985, which he had attended (see paragraph 19 above). Nor had the appellant shown how his defence had been adversely affected.
On the merits, the court followed the trial court’s reasoning; it considered it scarcely plausible that two people who did not know each other should have travelled together from Barletta to Bangkok and back via Zürich and have stayed in Thailand in the same hotel.
25. An application by Mr Imbrioscia to the Zürich Court of Cassation (Kassationsgericht) for a declaration of nullity (Nichtigkeitsbeschwerde) was dismissed on 8 October 1986.
With regard to the complaint based on the fact that no lawyer was present at the interviews, the Court of Cassation referred to the case-law of the Federal Court (see paragraph 27 below). The applicant had not alleged that he had asked to have his lawyer present and that his request had been rejected on irrelevant grounds (unsachliche Gründe); his lawyer had, moreover, attended the interview on 6 June 1985 and the hearing on 26 June (see paragraphs 19 and 21 above).
26. On 5 November 1987 the Federal Court dismissed a public-law appeal by the applicant against the judgments of 17 January 1986 and 8 October 1986 (see paragraphs 23-25 above).
The Federal Court referred to its case-law concerning Article 17 para. 2 of the Code of Criminal Procedure of the Canton of Zürich (see paragraph 27 below). It stressed that Mr Imbrioscia had not complained that a request to have his lawyer present had been arbitrarily rejected; the lawyer had attended the last questioning and had been sent the transcripts of the previous ones. There had therefore been no infringement of the defence rights guaranteed to Mr Imbrioscia under the Swiss Federal Constitution and the Convention.
27. At the material time Article 17 of the Code of Criminal Procedure of the Canton of Zürich was worded as follows:
"During the investigation counsel for the defence must be granted access to the file in so far as the purposes of the investigation are not thereby jeopardised. He cannot be refused the right to inspect reports by experts or transcripts of interviews at which he is entitled to be present.
The investigating law officer may give counsel leave to attend personal interviews with the person charged.
Once the investigation is concluded, counsel for the defence shall have unrestricted access to the file."
According to the Federal Court’s case-law, the second paragraph of this provision permits the prosecuting authorities to refuse to allow a lawyer to be present on the first occasion when a suspect is questioned without giving reasons, but requires them to give reasons if they intend to exclude the lawyer from subsequent interviews.
The practice in Zürich is that the lawyer does not generally attend when his client is interrogated by the police, but he is usually sent the transcripts.
28. The first two paragraphs of the Article cited above were amended on 1 September 1991 and now provide:
"During the investigation access to the file must be granted to the person charged and to his defence counsel on request, if and in so far as the purposes of the investigation are in no way thereby jeopardised. The right to inspect documents already communicated to the person charged as well as experts’ reports and the transcripts of investigation interviews which counsel for the defence has been given leave to attend cannot be refused.
The investigating law officer must give counsel for the defence an opportunity to attend examinations of the person charged if the latter so wishes and if the purposes of the investigation are not likely to be jeopardised. Members of the cantonal Bar must be admitted to examinations once the person charged has made his first statement to the investigating law officer or if he has been in custody for fourteen days. A defence counsel who attends an examination must be able to put questions to the person charged that are likely to throw light on the case."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-100500
LANGUAGEISOCODE: ENG
RESPONDENT: MNE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GARZICIC v. MONTENEGRO
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1924 and lives in Podgorica. She is also a paraplegic.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 4 October 2000 the applicant lodged a property-related claim with the Court of First Instance (Osnovni sud) in Podgorica, seeking declaratory relief. In so doing, she failed to specify the exact value of the claim in question (vrijednost spora). However, on 2 November 2000 she paid court fees of approximately 10 euros (EUR), which corresponded to the value of claims ranging between EUR 50 and EUR 150.
8. On 29 April 2004, at the end of the main hearing (glavna rasprava) and after additional evidence had been examined, the applicant specified that the value of the claim was EUR 37,000.
9. On the same day the Court of First Instance ruled in favour of the applicant. The judgment stated, inter alia, that the value of the claim was EUR 37,000 and noted that “[an expert witness had assessed that] on 10 October 1984 ... the total value of ... the property ... [at issue had been] ... EUR 72,877.79”.
10. On 22 October 2004 the High Court (Viši sud) in Podgorica quashed that judgment and ordered a re-trial.
11. On 15 June 2005 the applicant, after the main hearing had ended and on the court's request, specified that the value of the claim was EUR 9,900. On the same day the respondent's representative submitted his claim for costs based on the value of the claim being EUR 11,637.
12. On 19 July 2005 the Court of First Instance ruled against the applicant. The judgment specified, inter alia, that the value of the claim was EUR 11,500 and once again referred to the said expert's findings.
13. On 7 April 2006 the High Court upheld that judgment on appeal.
14. On 10 October 2006 the Supreme Court (Vrhovni sud) in Podgorica rejected the applicant's appeal on points of law (revizija) as inadmissible, stating that the court fees (sudska taksa) paid by the applicant had indirectly set the value of the claim significantly below the statutory threshold (see Article 382 § 3 at paragraph 19 below).
15. Sections 35-40 provide general rules as regards the means of establishing the value of a civil claim.
16. Section 40 § 2 provides that in cases not relating to pecuniary requests the relevant value of the claim shall be the one indicated by the plaintiff in his/her claim.
17. Section 40 § 3 further provides that when the value specified by the plaintiff appears to be obviously incorrect, the competent first-instance court shall “at the latest at the preliminary hearing (pripremno ročište) or, if there was no preliminary hearing, at the main hearing before the examination of merits, speedily and in an adequate manner, check the accuracy” of the specified value.
18. Section 186 § 2 provides that when the right to an appeal on points of law depends on the value of the claim “the plaintiff has a duty to indicate [the value of the claim] in the statement of claim”.
19. Section 382 § 3 provides that an appeal on points of law shall not be admissible in non-pecuniary matters where the value of the claim does not exceed approximately EUR 1,470.
20. Under sections 383 and 394-397, inter alia, the Supreme Court may, should it accept an appeal on points of law lodged by one of the parties concerned, overturn the impugned judgment or quash it and order a re-trial before the lower courts.
21. Sections 8 and 154 of this Act stipulate that legal guardianship shall be provided only to persons not capable of taking care of their “person, rights and interests”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81688
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF JEVREMOVIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13+6-1
TEXT: 6. The first applicant is a child born out of wedlock in 1999.
7. On 9 June 1999 the first applicant and her mother (“the second applicant”) filed a civil suit against D.K. (“the respondent”), a very popular local singer, before the Fourth Municipal Court in Belgrade (“the Municipal Court”) in order to establish paternity and obtain child maintenance.
8. Between 20 September 1999 and 22 January 2002, nine hearings were scheduled, five of which were held and another four adjourned. During that time, though duly summoned, the respondent failed to appear in court on at least two occasions.
9. On 5 November 1999 and in compliance with an order issued by the Municipal Court, the Blood Transfusion Institute conducted blood tests, having taken samples provided by the three parties, and found that the probability that the respondent was the father of the first applicant was 97.14% and, as such, “highly likely”.
10. From 10 January 2001 to 12 February 2002, on six separate occasions, DNA testing was attempted but each time, unlike the applicants, the respondent, though duly summoned, failed to appear at the clinic where the appointment was scheduled.
11. On 26 February 2002 the Municipal Court ruled in favour of the applicants. In so doing, it established the respondent's paternity, partly granted the child maintenance requested and issued an interim maintenance order. In its reasoning, inter alia, the court relied on the findings of the Blood Transfusion Institute, as well as the respondent's failure to appear at the clinic in order to undergo a DNA test. Finally, it noted that the relevant legislation did not provide for a possibility to subject the respondent to a DNA test against his will and held that there was no evidence that would have justified the rejection of the applicants' claims.
12. On 22 October 2002 the Municipal Court adopted a supplementary judgment, granting the applicants' request for statutory interest.
13. On 12 August 2002 the respondent filed an appeal with the District Court in Belgrade (“the District Court”).
14. On 19 November 2002 the District Court quashed the judgments of the Municipal Court and remitted the case for a retrial. In its reasons, inter alia, it stated that the respondent had apparently been unable to attend the scheduled DNA tests but that he would now be willing to do so. The court added that the facts of the case concerning child maintenance also required further clarification.
15. From 12 February 2003 to 26 November 2003, another six hearings were scheduled before the Municipal Court, five of which were adjourned and only one held. During that time, though duly summoned, the respondent failed to appear in court on at least three occasions.
16. From 8 May 2003 to 22 July 2003, on three separate days, DNA testing was attempted but each time, unlike the applicants, the respondent, though twice duly summoned, failed to appear at the clinic where the appointment was scheduled.
17. On 26 September 2003 the applicants complained about the delay to the Ministry of Justice.
18. On 27 October 2003 the President of the Municipal Court informed the applicants that he had instructed the presiding judge in their case to proceed expeditiously.
19. On 26 November 2003 the Municipal Court again ruled in favour of the applicants. In so doing, it established the respondent's paternity, partly granted the child maintenance requested and issued an interim maintenance order. The reasons offered, for the most part, were identical to those contained in its prior ruling.
20. On 11 March 2004 the Municipal Court issued a decision correcting an obvious error contained in its judgment.
21. On 19 April 2004 the respondent filed an appeal with the District Court.
22. On 26 May 2004 the District Court again quashed the decisions of the Municipal Court and remitted the case for a retrial. In its reasoning it held that the civil parties needed to be heard again, that the actual moment of conception of the first applicant needed to be determined precisely in order to find out whether the second applicant had sexual relations with the respondent at that particular time, and that the DNA test needed to be attempted yet again. The court further explained that, should the respondent again fail to be tested, the Municipal Court would need to address the Blood Transfusion Institute in order to find out whether the fact that the first applicant was less than one year old when she was last tested (in 1999) meant that a new blood test might now be warranted. If so, following a new blood test and even in the absence of a DNA test, a new judgment should be rendered, due consideration being given to the respondent's refusal to submit to a DNA test. The court concluded by stating that the facts of the case concerning child maintenance also required additional clarification.
23. The actual case file was not physically returned to the Municipal Court until 15 October 2004.
24. The first hearing thereafter was initially scheduled for 24 February 2005. In January 2005, however, this hearing was cancelled by the Municipal Court itself, apparently without any reasons being specified.
25. On 12 April 2005 the Municipal Court decided to request an expert medical opinion in line with the directions given by the District Court.
26. On 28 April 2005 the same court heard the second applicant as well as the respondent. In his statement, inter alia, the respondent denied being the biological father of the first applicant and expressly said that he would not accept being subjected to a DNA test.
27. On 5 July 2005 the Municipal Court appointed a medical expert and requested an opinion in line with its decision of 12 April 2005.
28. On 2 October 2005 the medical expert invited the parties in the case to attend a meeting scheduled for 7 October 2005. On the said date, the applicants appeared but not the respondent.
29. On 23 November 2005 the medical expert provided his opinion.
30. On 10 March 2006, following the appointment of a new presiding judge in the case, the Municipal Court relieved the second applicant of her obligation to pay for the costs of the proceedings at issue. It stated, inter alia, that she was unemployed and unable to cover these costs without endangering the most basic needs of the first applicant.
31. On 28 March 2006 the Municipal Court, inter alia, heard the parties to the proceedings, ordered them to provide the court with the relevant information concerning the maintenance sought and informed them that the DNA test was to be carried out on 3 April 2006 and 18 April 2006, respectively.
32. Both applicants duly appeared on those dates but the respondent did not.
33. On 11 May 2006 the applicants submitted the maintenance-related information requested. The respondent apparently failed to do so.
34. On 12 May 2006 the Municipal Court adjourned the hearing which had been scheduled because it did not have all of the maintenance-related information at its disposal and a forensic expert, who had not been duly summoned, had failed to appear.
35. On 24 May 2006, the Municipal Court accepted the applicants' motion to obtain additional maintenance-related information.
36. On 16 June 2006 the Municipal Court adjourned the hearing scheduled for that day because the forensic expert in question had been “unavailable”.
37. At the hearing held on 20 July 2006 the Municipal Court finally heard this expert.
38. On 28 July 2006 the Municipal Court issued a judgement finding that the respondent was indeed the first applicant's natural father and, as such, obliged to pay 32,000 Serbian dinars (“RSD”), approximately 400 euros (“EUR”), monthly for her maintenance, as of 1 July 1999, together with the legal costs and the applicable statutory interest. In its reasoning, based on the relevant provisions of the Family Act 2005, as well as bearing in mind the views expressed by the District Court in its decision of 26 May 2004, the Municipal Court, inter alia, attached particular weight to the fact that the respondent had refused to be subjected to a DNA test, as the single most reliable way of confirming or refuting his paternity. Finally, the court noted that the second applicant was unemployed and indigent, which is why the respondent was ordered to pay the said child maintenance. The applicants were served with this judgment on 24 August 2006.
39. In September 2006 the respondent filed an appeal with the District Court in Belgrade.
40. On 25 December 2006 the District Court, relying on the Family Act 2005, upheld the impugned judgment but reduced the costs awarded to the applicants.
41. On 14 March 2007 the respondent filed an appeal on points of law (revizija). On 9 May 2007 the Supreme Court confirmed the lower courts' judgments as regards the respondent's paternity and upheld the maintenance ordered in the amount of RSD 15,000 monthly (approximately EUR 190). At the same time, however, it quashed the said judgments in respect of the remainder of the maintenance awarded, as well as the costs, and ordered that these two issues be re-examined by the Municipal Court.
42. In 2000 the first applicant was diagnosed with asthma.
43. On 21 October 2005 the National Employment Agency confirmed that the second applicant was unemployed and secured her an internship at the Agricultural Faculty in Belgrade. The Agency also accepted to pay the second applicant a total of RSD 6,100 per month (approximately EUR 76) for the next six months.
44. The applicants further referred to numerous reports in the Serbian media concerning the above proceedings, as well as their own and the respondent's personal circumstances. Finally, the second applicant stated that the respondent, through his connections, made sure that she could not find work as a songwriter even though she had been successful in this field previously.
45. Article 310b provided that all maintenance-related suits were to be dealt with by the courts urgently.
46. Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be held within 15 days of the date when the claim was filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeals within a period of 30 days.
47. Similarly, Article 280 defines all maintenance suits as “particularly urgent”. The first hearing must be held within 8 days of the date when the claim was filed and the second instance courts must decide on appeals within 15 days.
48. Article 208 provides that an appeal on points of law (revizija) shall always be allowed in family disputes, unless this Act states otherwise.
49. The Family Act 2005 entered into force on 1 July 2005, thereby repealing the Marriage and Family Relations Act 1980. Further, Article 357 of the Family Act 2005 provides that it shall be applied to all ongoing judicial proceedings instituted prior to 1 July 2005, unless the competent court, in the specific proceedings at issue, had already adopted a first instance decision before that date.
50. Article 8 provided that the courts were to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole, and taking into account the results of the overall proceedings.
51. Under Article 221a, the courts could also draw conclusions as to the facts of the case based on the application of the “rules on the burden of proof”.
52. In accordance with Article 269, neither the plaintiff nor the respondent could be “forced” to appear in court or, indeed, give a statement. The court itself, however, could take into account the parties' failure/refusal to do so and draw its own conclusions therefrom.
53. Finally, pursuant to Articles 382-400, parties could file an appeal on points of law (revizija) with the Supreme Court. They could do so under certain very specific conditions only and against a judgment rendered at second instance. This remedy, however, could not provide the parties with compensation for any procedural delay that may have occurred, nor could it have expedited the proceeding which had already been concluded before the lower courts.
54. The language of Articles 8, 223 § 1 and 267 contained in this Act corresponds to Articles 8, 221a and 269 of the Civil Procedure Act 1977 referred to above.
55. Articles 220 and 223 §§ 2 and 3, however, provide that every civil party shall state the facts in its favour and propose the supporting evidence, as well as actively attempt to challenge the other party's factual and/or legal claims.
56. This Act entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 § 4 of the Civil Procedure Act 2004, however, states that an appeal on points of law shall be filed in accordance with the relevant provisions of the Civil Procedure Act 1977 whenever the proceedings at issue were instituted prior to 23 February 2005.
57. The relevant provisions of this Act read as follows:
“A party or another participant in the court proceedings shall have the right to complain about the work of a court when they consider the proceedings delayed, improper, or that there has been an [untoward] influence on their course and outcome.”
“The President of a higher instance court shall have the right to monitor the court administration of a lower instance court, and the President of a directly higher court shall have the authority to adopt an act from within the competence of the President of a lower instance court, if the latter omits to perform his [or her] duty.
The President of a higher instance court may request from the lower instance court information regarding the implementation of existing legislation, information concerning any problems about trials and all information regarding the work of the court.
The President of a higher instance court may order a direct inspection of the work of a lower instance court.”
“When a party to a case or another person taking part in the proceedings files a complaint, the President of the court must, having considered it, inform the complainant about his [or her] views concerning its merits as well as any measures taken in this respect, within 15 days of receipt of the complaint.
If a complaint was filed through the Ministry of Justice or through a higher instance court, the Minister and the President of a higher court shall be informed of the merits of the complaint and of any measures taken in this respect.”
58. Under Article 8, inter alia, the President of a court must ensure that the court's work is carried out in a timely manner. He or she shall also look into every complaint filed by a party to the proceedings in respect of delay and respond within 15 days, giving a decision and, if necessary, ordering that steps be taken to remedy the situation.
59. Article 4, inter alia, provides that the Ministry of Justice shall supervise the work of the courts in terms of their timeliness. Should certain problems be identified, the Ministry shall “propose” specific measures to be undertaken within a period of 15 days.
60. The relevant provisions of this Act read as follows:
“The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”).
This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.”
“In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases.
Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his [or her] unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.”
61. Article 172 § 1 provides that a legal entity (“pravno lice”), which includes the State, is liable for any damage caused by one of “its bodies” (“njegov organ”) to a “third person”.
62. Under Articles 199 and 200 of the Obligations Act, inter alia, anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (“prava ličnosti”) may, depending on their duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.
63. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).
64. In a reservation contained in its instrument of ratification of the Convention and its Protocols, deposited with the Council of Europe on 3 March 2004, the Government stated that “the provisions of Article 13 shall not apply in relation to the legal remedies within the jurisdiction of the Court of Serbia and Montenegro, until the said Court becomes operational in accordance with Articles 46 to 50 of the Constitutional Charter of the State Union of Serbia and Montenegro (Službeni list Srbije i Crne Gore, no. 1/03)”.
65. This reservation was withdrawn by a letter dated 11 July 2005 from the Permanent Representation of the State Union of Serbia and Montenegro, registered at the Secretariat General on 15 July 2005.
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-1