ITEMID: 001-111652
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GJURASIN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 1. The applicant, Mr Davor Gjurašin, is a Croatian national who was born in 1957 and lives in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 28 July 2004 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted the applicant in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of failing to pay child maintenance for his two children.
4. At a hearing on 30 November 2004 the applicant pleaded not guilty and decided to remain silent and to not give any evidence. The judge conducting the proceedings informed the applicant of his obligation to inform the court if he were to move or change his place of residence. She also informed the applicant of the legal consequences if he failed to comply with this obligation, one of which was that the judgment could be placed on the court’s public noticeboard.
5. On 25 May 2006 the Zagreb Municipal Criminal Court issued a judgment by which it found the applicant guilty of failing to pay child maintenance for one child but acquitted him of the same charge in respect of the other child. The applicant was sentenced to ten months’ imprisonment, suspended for three years on the condition that he compensate the injured party by paying the maintenance due within six months. The judge conducting the proceedings publicly pronounced the judgment and informed the applicant of his right to appeal within eight days after he received a written copy of the judgment.
6. On 4 January 2007 the Zagreb Municipal Criminal Court ordered that the judgment be served on the parties.
7. On 24 January 2007 the Zagreb Municipal Criminal Court received a notice from the post office informing that court that the service of the judgment on the applicant had been unsuccessful. Service had been attempted on 10 January, 11 January and 12 January 2007 but nobody had answered at the applicant’s address. Two notices of attempted delivery had also been left for the applicant but he had never contacted the post office.
8. On 25 January 2007 the Zagreb Municipal Criminal Court ordered that service of the judgment was to be executed through the court’s delivery service.
9. On 13 February 2007 the applicant’s children lodged an appeal with the Zagreb County Court (Županijski sud u Zagrebu) against the first-instance judgment.
10. On 7 March 2007 a notice from the court’s delivery service was submitted to the judge conducting the proceedings informing her that service of the judgment on the applicant had remained unsuccessful. Service had been attempted on 1 February, 13 February, 23 February and 1 March 2007 but without success. The applicant’s address had been visited in the morning and the evening and notices of attempted delivery had also been left for him but it had been impossible to serve the judgment on him.
11. The judge conducting the proceedings ordered that the judgment be placed on the court’s public noticeboard. On an unspecified date in mid-March 2007 the judgment was placed on the public noticeboard and after the expiry of fifteen days it was presumed that the judgment had been served on the applicant.
12. On 10 April 2007 the applicant was served with the appeal lodged by his children against the judgment of the Zagreb Municipal Criminal Court.
13. On 20 April 2007 the applicant submitted written observations in respect of the appeal.
14. On 17 September 2007 the Zagreb County Court dismissed the appeal by the applicant’s children and upheld the first-instance judgment, as a result of which it became final.
15. On 5 October 2007 the judgment of the Zagreb County Court was served on the applicant. On the same date the applicant consulted and copied the case file of the Zagreb Municipal Criminal Court.
16. On 3 December 2008 the Zagreb Municipal Criminal Court opened proceedings for revocation of the applicant’s suspended sentence because he had failed to comply with the conditions set out in the judgment.
17. On 2 March 2009 the applicant lodged a request with the Zagreb Municipal Criminal Court asking that the stamped certificate stating that the judgment had become final be revoked on the grounds that the judgment had never been served on him. On an unspecified date he also lodged a request for the reopening of the proceedings, which was rejected by the Zagreb Municipal Criminal Court on 18 March 2009.
18. On 19 March 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that the Zagreb Municipal Criminal Court had never decided on his request for the stamped certificate stating that the judgment had become final to be revoked. On 23 February 2012 the Constitutional Court declared the applicant’s complaint inadmissible on the ground that the impugned decisions were not susceptible for the constitutional review.
19. At the time, the relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provided:
“(1) A court shall grant reinstatement to the prior state of affairs in order to file an appeal to a defendant who, for justifiable reasons, fails within a prescribed term to file an appeal against a judgment or a ruling on security or educational measures or on the confiscation of a monetary benefit, provided that the defendant submits a petition for reinstatement to the prior state of affairs within eight days following the removal of the cause of his failure to act within the term and that, at the same time as the petition, he lodges an appeal ...
(2) After a lapse of three months from the date of failure, no petition for reinstatement to the prior state of affairs may be submitted.”
“(1) Decisions and other documents shall as a rule be served by mail. Service may also be effected by an official of the authority which has rendered the decision or directly by such authority.
...
(6) If a party has not reported a change of address to a court or if the party cannot be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment, the court shall put the decision on the court’s public notice board. After the lapse of the term of appeal the decision shall become final.”
“ ...
(2) An indictment and a judgment or other decision for which the term of appeal begins to run when service occurs shall be served in person on a defendant who does not have defence counsel. Upon the defendant’s request, a judgment or other decision shall be served on a person designated by him.
(3) If, with the exception of a judgment referred to in paragraph 4 of this Article, a decision or an appeal by the adverse party which is served for reply cannot be served on a defendant because he has not reported a change of address or if it is evident that he is evading receipt of the decision, the court shall put the decision or the appeal on the court’s public noticeboard and after the lapse of fifteen days it shall be deemed duly served.
(4) If a defendant who does not have defence counsel is served with a judgment imposing a sentence of imprisonment and this judgment cannot be served at his present address, the court shall assign defence counsel to the defendant, who shall perform this duty until the new address of the defendant is determined. ...”
“(1) When a defendant is examined for the first time, he shall be asked for his first name and surname ... The defendant shall be instructed that he is bound to appear upon a summons and to notify the court immediately of changes of his address, as well as of any intention to change his place of residence, and shall be warned of the consequences of failure to comply.”


ITEMID: 001-90535
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SAPEYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1954 and lives in Ashtarak, Armenia. He is the chairman of a regional branch of the Republic Party («Հանրապետություն» կուսակցություն).
5. In 2003 a presidential election was held in Armenia with its first and second rounds taking place on 19 February and 5 March respectively. Following the first and second rounds, a series of protest rallies were organised in Yerevan by the opposition parties.
6. On 20 February 2003 the applicant participated in a demonstration held in Yerevan which was apparently followed by a march.
7. On 26 February 2003, when another demonstration was apparently supposed to take place in Yerevan, the applicant and two other members of his party set off by car from Ashnak village to Yerevan.
8. The applicant alleged that on the road to Yerevan their car was stopped by several individuals in civilian clothes who introduced themselves as officers of the Aragatsotn Regional Police Department. The applicant and his colleagues were taken to the Regional Police Department. From there the applicant was transferred to the Central District Police Department of Yerevan where an administrative case was initiated against him on account of his participation in the demonstration of 20 February 2003.
9. On the same date, several hours later, the applicant was taken to the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքներկ առաջին ատյանի դատարան). There he was brought before Judge A. who, having heard the applicant and his lawyer, after a brief hearing sentenced the applicant under Article 180.1 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) to ten days of administrative detention, finding that:
“On 20 February 2003 [the applicant] participated in an unauthorised march, thus violating the prescribed rules for organising and holding street marches and demonstrations.
For this act [the applicant] was brought to the Central District Police Department on 26 February 2003.
The fact of [the applicant’s] participation in an unauthorised march was confirmed by the explanation given by [the applicant] in court and the examination of the materials of the administrative case file.”
10. The decision stated that it was not subject to appeal and could be protested against only by the prosecutor.
11. On 27 February 2003 the applicant’s lawyer lodged both an appeal with the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) and an application with the General Prosecutor (ՀՀ գլխավոր դատախազ) requesting him to initiate an appeal against the decision of the District Court. The lawyer argued at the outset, relying on various domestic provisions, that he was entitled to lodge an appeal against the decision of the District Court. As to the merits, he submitted that the interference with the applicant’s right to freedom of peaceful assembly was in violation of the Constitution and was not prescribed by law, and the penalty imposed was excessive. The lawyer attached a copy of the contested decision to the appeal.
12. On 2 March 2003 the President of the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ) reviewed the applicant’s conviction, finding that:
“[The applicant, according to the decision of the District Court, was subjected to administrative detention] ... for violating the prescribed rules for organising and holding assemblies, demonstrations, street marches and rallies, by participating in an unauthorised demonstration and street march on 20 February 2003.
Having familiarised myself with [the applicant’s] appeal and the materials concerning the administrative offence, I find that the penalty imposed on [the applicant] must be changed.”
13. The President changed the penalty to an administrative fine of 1,000 Armenian drams (AMD) (approximately 1.5 euros (EUR) at the material time) and ordered the applicant’s release. On the same date the applicant was released from detention, after he had served about four days of his sentence.
14. By a letter of 4 March 2003 the applicant’s lawyer was informed by the General Prosecutor’s Office (ՀՀ գլխավոր դատախազություն) that, on the basis of the applicant’s appeal, the penalty had been changed and the applicant had been released by decision of the Court of Appeal.
15. On 3 December 2003 the applicant supplemented his initial application, complaining about the following events.
16. On 14 May 2003 he participated in a demonstration held in Yerevan.
17. On 21 May 2003 he was taken to a police station and then transported to the Kentron and Nork-Marash District Court of Yerevan where an administrative fine of AMD 1,000 was imposed on him for having organised the participation of a group of people from his region in an unauthorised demonstration on 14 May 2003.
18. For a summary of the relevant provisions concerning administrative proceedings see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007).
19. For a summary of the relevant legislation invoked by the parties in connection with Article 180.1 of the CAO (see paragraphs 33 and 34 below) see the judgment in the case of Mkrtchyan v. Armenia (no. 6562/03, §§ 20-28, 11 January 2007).
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-92508
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FERENC ROZSA AND ISTVAN ROZSA v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicants were born in 1951 and 1949, respectively, and live in Budapest.
7. The applicants are respectively 50% and 10% shareholders in D. Ltd. By decisions of the Budapest Regional Court and the Supreme Court, in 1998 the liquidation of D. Ltd was ordered and M. Ltd. appointed liquidator.
8. In 2001 the applicants brought an official liability action against the two courts involved, claiming damages for the liquidation, which in their view had been ordered unlawfully.
9. On 6 December 2002 the Pest County Regional Court dismissed the action, holding that, although the liquidation had indeed been ordered unlawfully, the two courts’ culpability was not so extensive as to justify the establishment of their tort liability.
10. On appeal, on 11 December 2003 the Budapest Court of Appeal upheld the first-instance decision but changed its reasoning. It held that the applicants had no locus standi in the case, since their company was in liquidation and only the liquidator had the capacity to conduct legal proceedings in its name.
11. The applicants filed a petition for review with the Supreme Court. They pleaded that their claim did not concern any loss suffered by the company itself. Rather, they personally sought compensation for the loss in value of their own shares which they had suffered on account of the unlawfully ordered liquidation.
12. On 10 February 2005 the Supreme Court dismissed the applicants’ petition, reiterating the position that they had no locus standi in the case. This decision was served after 11 March 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106894
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KONCZELSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Ms Katarzyna Konczelska, is a Polish national who was born in 1979 and lives in Gliwice. She is represented before the Court by Mr J. Gałkowski, a lawyer practising in Bielsko-Biala. The Polish Government (“the Government”) are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In December 2002 the applicant visited Dr J.R. at his private practice and was registered as a pregnant patient. During her pregnancy she visited J.R. fourteen times and had four ultrasound scans which demonstrated that the foetus was developing normally.
4. During a visit on 23 July 2003 J.R. found that the delivery was imminent. At midnight the pains started. On 24 July 2003 the applicant was admitted to Zabrze District Hospital. The birth did not progress normally. After 11 hours of labour the applicant and her husband asked J.R. to proceed to a caesarean section. He refused.
5. The applicant’s daughter, A., was born after 35 hours. She showed no signs of life and had to be resuscitated, which took over ten minutes. The child suffered from serious health problems (cerebral palsy), mostly of a neurological character and required permanent supervision and medical attention. She could not speak, see or walk.
6. The applicant believed that J.R. was responsible for her daughter’s condition. On 10 October 2003 a criminal investigation was instituted at her request by the Zabrze District Prosecutor.
7. A medical expert opinion submitted to the prosecuting authorities on 21 March 2005 by specialists from the Warsaw Medical Academy established that there had been serious shortcomings in the manner in which the delivery had been handled. However, the experts concluded that there was insufficient evidence for a finding that the child’s problems had been caused solely by the manner in which she was delivered.
8. On an unspecified date the Regional Medical Tribunal in Katowice found J.R. guilty of a breach of his professional obligations in that he had failed to monitor the child’s condition properly during the second period of the delivery.
9. On 30 June 2005 the Zabrze District Prosecutor, referring to this opinion, discontinued the proceedings on the ground that no criminal offence of exposing the child to serious danger to life or limb, punishable under Article 160 of the Criminal Code, had been committed.
10. The applicant appealed, indicating shortcomings in the investigation. She submitted, in particular, that the prosecution had failed to take into consideration the case file relating to the professional liability proceedings conducted before the authorities of the Silesian Medical Board, and that the criminal proceedings had been conducted superficially. She requested that a number of witnesses be questioned. As a result, the facts of the case had not been established properly.
11. On 3 November 2005 the Regional Prosecutor allowed her appeal, quashed the decision and remitted the case. He observed that the evidence had to be completed by the questioning of the three witnesses requested by the applicant, and who had not been questioned so far; that complete and uptodate medical records of the child had to be included in the file and examined; that the file from the medical liability proceedings had to be joined to the prosecutor’s file; and that an additional medical opinion should be sought to complement the findings of the opinion referred to above.
12. By a decision of 3 April 2006 the Zabrze District Prosecutor asked the Department of Forensic Medicine of the Warsaw Medical Academy to complete its earlier expert opinion. It was submitted on 14 July 2006. In their opinion the experts stated that there was a causal link between the medical error committed by J.R. in his handling of the applicant’s delivery and her daughter’s condition.
13. On 29 December 2006 the Zabrze District Prosecutor filed an indictment against J.R. with the Zabrze District Court. He was charged with an offence punishable under Article 156 § 1 (i) and 2 of the Criminal Code by failing to monitor the labour properly.
14. On 11 January 2007 the applicant and her daughter declared their intention to become auxiliary prosecutors in the proceedings.
15. On 28 February 2007 the court held a session with a view to organising a hearing (the Zabrze District Court, II Criminal Division, II K 25/07). Subsequently, hearings were scheduled for 15 March, 13 April and 18 May 2007. Because J.R. failed to attend any of the hearings and none of them was actually held because of his absence, on 13 April and 18 May 2007 the court ordered that he be brought to the courtroom. However, apparently no steps were taken to do so. On one occasion J.R. was admitted to a psychiatric hospital one day before the date of the hearing.
16. The hearing scheduled for 5 June 2007 was adjourned, also because of his absence.
17. At a hearing held on 20 June 2007, the court read a letter from a psychiatric hospital in T. Having regard to the doubts which had arisen as to whether J.R. was able to participate in the proceedings, it ordered that an additional expert opinion be prepared in this respect. An opinion was submitted to the court on 13 July 2007. The experts found that J.R. suffered from reactive depression accompanied by alcohol abuse and, as a result, was unable to participate in the judicial proceedings for a period of three months.
18. By a letter of 27 July 2007 the applicant’s lawyer drew the court’s attention to the fact that the experts had failed to address the issue of whether J.R. had himself contributed to his inability to participate in the proceedings. He further submitted that the provisions on criminal procedure allowed for a hearing to be held in the defendant’s absence when it had been shown that he or she had made himself or herself unable to participate in hearings. In the present case the accused had failed to comply with all the summonses and had thereby effectively boycotted the proceedings. On one occasion he had been admitted to a psychiatric hospital just one day before the date of the last hearing, which cast doubt on the credibility of the medical certificates he had submitted so far in the case. The applicant’s lawyer further requested that the defendant’s ability to participate be examined by doctors from outside the Silesia region. This would, in the applicant’s view, ensure their impartiality.
19. The court allowed his request on 15 October 2007 and appointed new experts, tasking them with establishing the defendant’s ability to participate in the proceedings.
20. On 21 October 2007 J.R. died.
21. On 30 November 2007 the court discontinued the criminal proceedings. The applicant appealed against this decision in so far as it concerned costs. The court dismissed the appeal by a decision of 4 February 2008, served on the applicant on 14 February 2008.
22. On 16 May 2008 the applicant’s child died.
23. On 5 September 2003 the applicant lodged a complaint against J.R. with the Regional Officer for Disciplinary Matters (Okręgowy Rzecznik Odpowiedzialności Zawodowej) at the Katowice Medical Board. On 27 April 2005 the Agent, having completed the investigation, transferred the complaint for examination to the Katowice Regional Medical Tribunal.
24. On 30 January 2006 that court found J.R. guilty of a breach of his professional obligations in that he had failed to monitor the child’s condition properly during the second period of the delivery and had failed to notice that the applicant had had an infection during her pregnancy. The court confirmed the fact that largescale damage to the child’s brain had been caused during the labour.
25. On 27 March 2007 the Supreme Medical Tribunal in Warsaw upheld the firstinstance judgment in so far as it concerned the inappropriate monitoring of the child’s condition during the second period of the delivery. The court further concluded that there was insufficient evidence to hold that J.R. had failed to diagnose the infection.
26. On 6 December 2004 the applicant, acting on her own behalf and on behalf of her daughter A., sued Zabrze District Hospital for damage and suffering caused as a result of medical malpractice during A.’s birth. The applicant claimed 20,000 Polish zlotys (PLN) for nonpecuniary damage and a monthly pension of PLN 1,800 for her inability to work caused by the fact that she had to take care of her daughter. In respect of her daughter the applicant claimed PLN 200,000 for nonpecuniary damage and a monthly pension in the same amount.
27. On 21 January 2009 the Gliwice Regional Court found the legal successor of the Zabrze District Hospital, which had in the meantime changed hands, civilly liable for the applicant’s child’s condition as a result of medical malpractice during the applicant’s labour. It established that the child was totally and permanently incapacitated, required roundtheclock attention and care. It awarded the applicant and her daughter, jointly, compensation in the amount of PLN 258,847.
28. On 20 January 2010 the Katowice Court of Appeal, having examined the applicant’s appeal, increased the amount of compensation to PLN 408,847, plus interest. The court observed that the child had been totally physically incapacitated as a result of cerebral palsy resulting from brain damage caused by the negligent handling of her birth. However, her mental faculties had most likely been intact. She had therefore been locked within her own body which could not but be seen as causing her acute and continuous suffering for not being able to either express herself or to attend to her simplest needs. Her condition necessitated constant care and attention. She had been fragile and often suffered from additional ailments. The court was of the view that the enormity of the child’s infirmity and the applicant’s suffering it caused justified increasing the compensation to be paid by the defendant to PLN 408,847. The court held that while compensation for damage to one’s health could not be unduly high so as to cause unfair enrichment, the respect for priceless values such as life and physical integrity dictated that it should be sufficiently elevated so as to offset the negative psychological consequences of medical malpractice.
29. Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment.