ITEMID: 001-121990
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: FESIUC v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Ms Rodica Fesiuc, is a Romanian national, who was born in 1940 and lives in Bucharest. She was represented before the Court by Mr Ion Gheorghișan, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms Irina Cambrea, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the relevant time, the applicant was a judge at the Bucharest Court of Appeal.
5. On 11 September 2000 the Romanian Intelligence Service (“the RIS”) informed the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor”) that the lawyer L.P. (the applicant in case no. 25333/03) had given bribes to several judges, including the applicant, in order to obtain decisions favourable to her clients. It based the accusation on information obtained through intercepting L.P.’s telephone, measure taken because one of her clients was suspected of crimes against national security. The surveillance activity was carried out under Law no. 51/1991 on national security. The RIS handed over the audio tapes and their transcription to the prosecutor’s office. The prosecutor then continued the surveillance of L.P.’s activities, including through telephone tapping. Several conversations between L.P. and other individuals (but not the applicant) had been recorded; the applicant’s alleged involvement in the suspected criminal acts had been mentioned by the participants in those conversations.
6. On 4 May 2001 the prosecutor obtained the Ministry of Justice’s approval to start criminal investigations in respect of the judges involved that is the applicant and V.A. On the same day he started criminal proceedings against the applicant (începerea urmăririi penale).
7. On 7 May 2001 the prosecutor invited the applicant to his office, informed her of the accusations against her and ordered her not to leave town for thirty days.
8. On 8 May 2001 the applicant retired from office. Her request was accepted by the Superior Council of magistrates on 18 September 2001.
9. Throughout the proceedings, the applicant denied having committed the crimes.
10. On 12 December 2001 the prosecutor indicted the applicant and committed her and several other persons to trial. In particular, he accused her of having received through V.A.’s intermediary, 500 US dollars (USD) in bribes from L.P., in order to release one of her clients pending trial.
11. The case was heard by the Criminal Division of the Supreme Court of Justice.
12. On 31 January 2002 the Supreme Court heard testimony from each defendant separately and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations.
The defendants complained that the time between hearings was too short and that they could not properly prepare their defence. The Supreme Court allowed their complaint and decided to extend the period from two to three weeks while nevertheless reiterating that where defendants were in detention pending trial (as in the case of L.P.) the case had to be examined promptly.
13. The applicant again denied having committed any crime. She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench. She declared that she did not know L.P., had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate.
14. L.P. and V.A. also denied committing any crime.
15. At the same hearing on 31 January 2002, the co-defendants alleged that there were procedural defects. They argued that as the prosecutor had failed to request the necessary authorisation for intercepting magistrates’ conversations, the audio recordings were illegal.
The court gave detailed answers to their complaints. Concerning the telephone tapping, it noted that one of L.P.’s clients had been indicted for weapons and ammunition smuggling, which, under the National Security Act, constituted a threat to national security and thus allowed the RIS, under procedure regulated by the Code of Criminal Procedure, to seek authorisation from the prosecutor to intercept the suspect’s conversations. The fact that during the surveillance activity the authorities came across telephone discussions among the codefendants which led them to believe that L.P. was trying to corrupt the defendant judges constituted preliminary investigation (acte premergătoare).
The Supreme Court reiterated that so long as the recordings had been obtained during the preliminary investigation phase, they did not constitute evidence. Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file.
16. On 21 February 2002 the declarations given by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their codefendants.
17. The applicant’s counsel opposed hearing testimony from an informer, arguing that “the prosecutor is using [him] even though he is an offender” (“infractor”), to which the prosecutor, I.K., replied “an offender who is giving statements about other offenders”. The applicant and V.A. asked for the prosecutor to withdraw from the case for having breached the presumption of innocence.
18. At the same hearing of 21 February 2002 the Supreme Court heard testimony from witnesses for the prosecution.
19. On 27 February and 25 March 2002 the Supreme Court dismissed the objections raised concerning the prosecutor’s withdrawal. I.K. continued to represent the prosecutor’s office throughout the first-instance and appeal proceedings.
20. On 14 March 2002, at the defendants’ request, the Supreme Court ordered an expert examination of the audio tapes, in accordance with Article 915 of the Code of Criminal Procedure (“CCP”).
21. At a hearing on 4 April 2002 the Supreme Court dismissed a request by the applicant and V.A. for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the RIS and the prosecutor’s office. The Supreme Court considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations.
22. On 4 April, 25 April, 9 May and 6 June 2002 the Supreme Court heard eight witnesses for the defence.
23. On 3 June 2002 the two experts rendered their report, as requested by the Supreme Court. They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial.
24. On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. It unanimously convicted the applicant for receiving bribe and sentenced her to three years’ imprisonment and two additional years of suspension of certain rights. V.A. was also convicted by a majority of two votes.
25. The Supreme Court considered that the statements made by the defendants and the witnesses both before the prosecutor and in open court corroborated the theory that some of L.P.’s clients had been released from prison because she had bribed the judges, including to the co-defendants. The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted, either before the prosecutor or in court that they had been pressured by the defendants into changing their declarations. The court also considered that the testimonies given by the witnesses corroborated the transcripts of the telephone conversations.
26. The Supreme Court also made a lengthy analysis of the transcripts thus responding to the defendants’ allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage. The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court. It noted that the experts had not questioned that aspect either.
As for the authenticity and originality of the tapes, which the experts contested, the court pointed out that, in the sense of Article 224 of the Code of Criminal Procedure, the report concerning the transcripts, drafted by the prosecutor after the opening of the criminal proceedings, represented the evidence and not the tapes themselves (which were attached to the prosecutor’s report, as the law required); nor did the original harddisk onto which the recording had been done. In his report, the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected. The court confirmed those aspects. The defendants had had ample opportunity to challenge it, as provided for by the CCP.
Moreover, the court observed that the original recording had been digital, done straight onto the hard-disk of the equipment used by the RIS for telephone tapping; the tapes attached to the prosecutor’s report were consequently copies of the original recordings. Because of its nature and purpose, the hard-disk could not be attached to the prosecutor’s report; furthermore, it did not need to be attached as it did not constitute evidence. The court concluded that the absence of the hard-disk did not automatically disqualify the transcripts from being used as evidence.
Furthermore, the court noted that, for obvious reasons related to respect for the private life of those involved, it had not listened to all the conversations recorded by the RIS, but only to those relevant to the charges brought before it. However, the parts presented to it and to the defendants by the prosecutor represented full conversations. The dialogues were coherent; the sentences were not truncated and no words were missing or had been inserted into the dialogues. It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified.
27. The court was therefore satisfied that the prosecutor’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file.
28. All parties appealed against the judgment. In particular, the applicant argued that the indictment was illegal, in so far as the prosecutor lacked the credentials for working on the case (years of experience) and because the indictment had not been signed by the Prosecutor General; that the criminal proceedings were illegal in so far as she had not been informed of the accusation. She also alleged a breach of the right to defence during the investigations.
Furthermore, she argued that the judgment had not been signed by the dissenting judge and that the operative part of the decision did not correspond to the one delivered in public. She complained about the court’s interpretation of the evidence in the file, in particular that the audio tapes had been taken into account despite the expert opinion and the defendants’ opposition to their admission to the file.
She lastly complained about the fact that the prosecutor did not withdraw from the case after having breached her presumption of innocence with his statements.
29. The case was heard by a nine-judge bench of the Supreme Court who rendered a final decision on 8 October 2003. The Supreme Court dismissed the applicant’s appeal and maintained the sentence. The Supreme Court gave a detailed answer to all arguments raised by the defence concerning both the procedural and the substantive aspects of the case before the prosecutor and the first-instance court.
30. The Supreme Court also considered that the prosecutor was right not to withdraw from the case after having called the defendants “offenders”, as those remarks had been uttered in the course of debates, where prosecutor and defendants were in positions of equality and had been provoked by the offensive statements of the applicant’s counsel concerning the witness.
31. The Supreme Court noted that the telephone tapping had not observed the stricter requirements relating to magistrates. It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping; on this point it reiterated that the information concerning the magistrates’ alleged involvement had been obtained incidentally by the prosecutor. It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations. The court also reiterated that as the tapes had disclosed information on the commission of crimes, they could not have been ignored by the authorities. Furthermore, the tapes had been made with the prosecutor’s prior approval, as the law had required at the time, and had not contravened public order. The Supreme Court attached great importance to the fact that the defendants had not denied having had the recorded conversations. It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file. It therefore concluded that the tapes could be used as evidence.
The Supreme Court also decided that the evidence had to be interpreted in its entirety and in context, and reiterated that the law did not give precedence to any type of evidence to the detriment of others.
32. The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by L.P. from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting L.P. to give bribes to several individual crimes of trading in influence and aiding and abetting L.P. to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification given by it to the crimes committed by V.A. However, it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification as the consequences in law for both situations were identical.
33. On 13 October 2003 the applicant started serving her sentence. She was released from prison on 25 October 2004.
34. The legislation in force at the relevant time concerning telephone tapping, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).
35. The relevant provisions of the Code of Criminal Procedure concerning the preliminary investigation read as follows:
“1. The criminal investigation authorities may conduct any preliminary investigation measures.
...
3. The report of execution of any preliminary investigation measure shall constitute evidence.”
“The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting, as provided for in Article 10, with the exception of the ground set out in subparagraph (b)1.”
36. Concerning the telephone tapping at the preliminary investigation stage, the High Court of Cassation and Justice considered, in a decision rendered in an appeal on points of law (decision no. 10 of 7 January 2008) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure, an omission which the High Court found reasonable, given the purpose of the telephone tapping and its secrecy. However, the person concerned had subsequently had an opportunity to listen to the recordings and contest their content. The High Court also reiterated that there was no prior value attached to the report drafted by the prosecutor, as the courts were free to assess the evidence in the context of the files under examination.
By its decision no. 962 of 25 June 2009, the Constitutional Court confirmed that Article 911 of the CCP did not allow for evidence to be gathered during the preliminary investigations; any such evidence would fall under the courts’ scrutiny.


ITEMID: 001-80742
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ORTNER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1942 and lives in Tristach.
5. On 27 February 1968 the Agricultural Authority (Agrarbezirksbehörde) instituted land consolidation proceedings (Zusammenlegungsverfahren) involving the applicant's property. The applicant did not appeal.
6. On 26 April 1974 the Agricultural Authority issued the occupation and valuation schedule (Besitzstandsausweis und Bewertungsplan).
7. By letter of 26 May 1995 the applicant requested that his property be excluded from the consolidation proceedings.
8. By decision of 13 January 1999 the Agricultural Authority notified the parties to the land consolidation proceedings that a valuation plan concerning the electric installations was held at their disposal at the office of the Tristach municipality and could be consulted during two weeks. The applicant appealed on 23 February 1999 against this notification to the Provincial Land Reform Board (Landesagrarsenat). He submitted in particular that the occupation and valuation schedule had not been duly served on him. Moreover, he noted that his request to exclude his land from the consolidation proceedings had still not been dealt with. He repeated this request and claimed, in general terms, that he did not have any interest in the land consolidation at issue.
9. On 1 March 1999 the Agricultural Authority dismissed the applicant's request of 26 May 1995 to exclude his property from the consolidation proceedings. It noted that an exclusion of property was not admissible, once the occupation and valuation schedule had become final. The applicant appealed against this decision, alleging that the occupation and valuation schedule had neither been served on him nor had it been duly published. Moreover, a new valuation would be required in the circumstances.
10. On 29 April 1999 the Provincial Land Reform Board dismissed the applicant's appeal. It found that the occupation and valuation schedule had been served in accordance with the relevant procedural rules.
11. On 27 May 1999 the Provincial Land Reform Board dismissed the applicant's appeal against the notification of 13 January 1999. It noted that the occupation and valuation schedule had become final. The additional valuation of electric installations had become necessary by a change in law and had been carried out correctly. Further it noted that the question whether a revision of the original occupation and valuation scheme was required was not the subject of the present appeal proceedings.
12. The applicant filed complaints with the Administrative Court (Verwaltungsgerichtshof) against both decisions of the Provincial Land Reform Board. He repeated in essence the arguments he had raised before that Board. The Administrative Court received his complaints on 4 June and 21 July 1999, respectively. Upon the Administrative Court's request the applicant amended his complaint against the Provincial Land Reform Board's decision concerning the electric installations.
13. The Provincial Land Reform Board filed observations with the Administrative Court on 18 August and 28 October 1999, respectively.
14. On 3 July 2003 the Administrative Court, having joined the applicant's complaints, dismissed them. It confirmed the Provincial Land Reform Board's legal assessment.
15. On 13 April 2005 the Agricultural Authority held a hearing concerning the additional valuation of electric installations. It issued a decision on this subject on 19 April 2005.
16. On 3 January 2006 the applicant filed an application under Section 73 of the General Administrative Proceedings Act (Allgemeines Verwaltungsverfahrensgesetz) complaining that the proceedings, which were pending since 1968 were still not terminated and that the Agricultural Authority had only held one hearing since mid 2003.
17. The Provincial Land Reform Board, on 2 March 2006, dismissed the application under Section 73 of the GAPA as being inadmissible. It noted that such an application was only available where the authority had failed to decide on a specific application or on an appeal of a party. The applicant had not filed any specific application.
18. No consolidation scheme has been issued to date. Therefore, the proceedings are still pending.
19. Section 73 of the General Administrative Proceedings Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities' duty to decide. So far as relevant, it reads as follows:
“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay, and at the latest six months after the application or appeal has been lodged.
(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party's written request (Devolutionsantrag). ...This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority.
(3) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72878
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOSS v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 13;Not necessary to examine under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1936 and lives in Konstancin Jeziorna, Poland.
5. The applicant’s grandfather (“J.O.”) owned a plot of land and a house situated in the centre of Warsaw. During the Second World War the house was demolished. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw (Dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) all land in Warsaw was nationalised. In 1948 J.O. asked the administrative authorities to grant him a right of temporary ownership (własność czasowa) of his plot. On 24 December 1951 the Board of the Warsaw National Council (Prezydium Rady Narodowej) dismissed his application.
6. On 6 August 1993 the applicant and other J.O.’s heirs filed with the Minister of Town and Country Planning (Ministerstwo Gospodarki Przestrzennej i Budownictwa) an application for the annulment of the decision of 1951. They also asked for a right of perpetual use (użytkowanie wieczyste) of the plot in question to be granted to them. On 27 February 1995 the Minister quashed the 1951 decision and remitted the case to the Mayor of Warsaw (Prezydent Miasta Warszawy) for re-examination.
7. By June 1996 the Mayor had not delivered any decision. On 4 June 1996 the applicant lodged with the Warsaw Self-Governmental Board of Appeal (Samorządowe Kolegium Odwoławcze) a complaint alleging inactivity on the part of the Mayor of Warsaw.
8. On 31 July 1996 the Mayor stayed the proceedings until the applicant had submitted certain documents. On 13 August 1996, upon a further appeal by the applicant, the Board of Appeal quashed that decision. On 14 August 1996 the Board of Appeal ordered the Mayor to give a decision within 30 days. The Mayor failed to comply with this order.
9. On 13 September 1996 the Mayor of Warsaw asked the Board of Appeal to extend the time-limit as he needed to obtain some additional documents. On 30 September 1996 the Mayor asked for an extension of the time-limit until 30 November 1996.
10. On 15 November 1996 the Mayor again stayed the proceedings, this time until the conclusion of other administrative proceedings. On 13 February 1997, upon the applicant’s appeal, the Board of Appeal quashed that decision and ordered the Mayor to proceed with the case.
11. On 11 March 1997 the Mayor refused the application for the grant of the right of perpetual use of the plot concerned. The applicant appealed. On 2 July 1997 the Board of Appeal set aside the first-instance decision and remitted the case.
12. On 27 October 1997 the Mayor of Warsaw for the second time refused the application for the grant of the right of perpetual use. On 25 February 1998 the Board of Appeal again quashed this decision and remitted the case.
13. Meanwhile, on 5 August 1997 the applicant lodged a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging inactivity on the part of the Mayor of Warsaw. On 12 October 1998 the Supreme Administrative Court delivered a judgment in which it ordered the Mayor to issue a decision within 30 days and awarded the applicant 5 PLN for costs and expenses.
14. On 14 December 1998 the Mayor stayed the proceedings until the conclusion of the administrative proceedings concerning the transfer of ownership to the Warsaw Municipality and the adoption of a local master plan (Miejscowy plan zagospodarowania przestrzennego). Upon the applicant’s appeal, the Board of Appeal upheld this decision on 23 April 1999. On 14 March 2000 the Supreme Administrative Court confirmed the decision of 14 December 1998 and dismissed the applicant’s further appeal.
15. Subsequently, the applicant asked the Supreme Administrative Court to impose a fine on the Mayor of Warsaw. In its judgment of 6 December 1999 the Supreme Administrative Court dismissed his application. The court held that the Mayor had failed to comply with the judgment of 12 October 1998 for objectively justified reasons. The Mayor’s decision had depended on the conclusion of other administrative proceedings concerning the transfer of ownership to the Warsaw Municipality and the adoption of a local master plan. In addition, the court pointed out that, according to Section 31 § 4 of the 1995 Act, a party to proceedings who sustained damage as a result of a failure of the administrative body to act was entitled to claim compensation from the administrative authority concerned, according to principles of civil liability.
16. The proceedings were stayed and are thus pending before the Mayor of Warsaw.
17. The Decree on the Ownership and Use of Land in Warsaw of 26 October 1945 expropriated owners of real property located in Warsaw and transferred the ownership of land to the municipality of Warsaw. The 1945 Decree provided, in so far as relevant:
“Section 7. (1) The owner of a plot of land ... can within six months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ...
(2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ...
(4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land.
5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9.
Section 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated.
Section 9.
...
(2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...”
18. Pursuant to Article 33 § 2 of the Act on Local State Administration of 20 March 1950, the ownership of land located in Warsaw was assigned to the State Treasury. According to the Section 5 § 1 of the Law of 10 May 1990 the ownership of the land which had previously been held by the State Treasury and which was within the administrative territory of municipalities, was transferred to the latter.
19. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (Ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste).
20. The right of perpetual use is defined in Articles 232 et seq. of the Civil Code (Kodeks Cywilny). It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of its being void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question.
21. Article 35 of the Code of Administrative Procedure (“the code”) of 1960 lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future.
22. On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force. According to the provisions of Article 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision.
Article 26 of the Law provides:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
23. Pursuant to Article 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under Section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.
24. Under the same provision, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this time-limit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court.
25. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to Section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under Section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-111976
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MELERO ECHAURI AND OSTIZ MELERO v. SPAIN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants, Ms María Elena Melero Echauri and Ms Elena Ostiz Melero, are Spanish nationals who were born in Pamplona (Navarra) in 1953 and 1972 respectively and live in Pamplona. They are mother and daughter and work as associate lawyers in their law firm in Pamplona. They are represented before the Court by Ms Melero Echauri, the first applicant.
3. On 15 January 2005, as the result of disciplinary and criminal proceedings brought by Pamplona civil judge no. 3 against the first applicant for defamation, the applicant was admonished by the Ruling Board of the Pamplona Law Bar for a minor infraction, of lack of respect to a judge and a fellow lawyer. In fact, the applicant, acting in her capacity as counsel in separation proceedings, had submitted a brief in which she had accused the judge in the case of general malfeasance in favouring a lawyer with whom the judge appeared to be friendly, to the detriment of the rights to defence and to a fair hearing of her clients and of other lawyers’ clients.
4. On 9 November 2006 the first applicant requested the Pamplona judge responsible for the allocation of cases (“the Pamplona judge”) to have the case allocation rules of the courts of Pamplona altered so as to guarantee her clients the right to defence and to a fair hearing. In her view, these rights would be seriously jeopardised if her cases and those of her daughter were allocated to Pamplona civil judge no. 3.
5. On 20 November 2006 the Pamplona judge refused the applicant’s request and invited her to make use, whenever she found it appropriate, of a request for withdrawal. This decision was upheld by the General Council of the Judiciary on 14 March 2007.
6. On 29 January 2007, on the occasion of a civil action against one of her clients, the first applicant submitted a request for withdrawal of Pamplona civil judge no. 3. That request was refused by the judge on 16 February 2007 on the ground that, pursuant to Article 218 of the Organic Law on the Judiciary, in civil, social and adversarial administrative proceedings only the parties and the public prosecutor had standing to request that a judge withdraw from a case.
7. The first applicant introduced an appeal against that decision before the same civil judge no. 3, arguing that the fact that that judge had introduced criminal and disciplinary proceedings against her in the past disqualified the judge from deciding in cases in which the first applicant acted as counsel, and that it was a legal absurdity to request that her clients submit a request for withdrawal since, according to the legislation in force, the request would not be successful, in so far as no enmity could be said to exist, in principle, between the judge and her clients. The appeal was orally dismissed on 5 March 2007, the judge insisting that if there were to be such a request it could only be submitted by the applicant’s client.
8. The applicant introduced an amparo appeal that was declared inadmissible on 2 July 2008 by the Constitutional Court on the ground that the applicant lacked standing. That decision was served on 8 July 2008.
9. Article 24 of the Constitution reads as follows:
“1. Everyone has the right to obtain the effective protection of judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended.
2. Likewise, everyone has the right of access to the ordinary courts as predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent.”
10. Section 218 of Organic Law 6/1985 of 1st July 1985, on the Judiciary identifies those who have standing to request the withdrawal of a judge. It reads as follows:
“The withdrawal of a judge can only be requested:
1. In civil, social and adversarial administrative proceedings by the parties; the public prosecutor shall have also standing to request the withdrawal of a judge in those cases in which, by the character of the rights in dispute, he could or should intervene”.
Article 219 of the Organic Law on the Judiciary enumerates the reasons for abstention and withdrawal of judges. The relevant part of Article 219 for the purposes of this case reads as follows:
“Grounds for abstention and, if appropriate, for withdrawal are...
7. A close friendship with or a manifest enmity towards any of the parties...”


ITEMID: 001-80312
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KONSTATINOV v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant, who is of Roma origin, was born in 1964 in Rgotina (Serbia) and is currently living in 's-Hertogenbosch. She is also known to the Netherlands authorities under the names of Arenka Sarkevic, Violetta Sarof, Harenka Sarof and Harenka Sharkevits.
6. As a young child and after the death of her mother, the applicant left Serbia with her father to travel. In 1986, the applicant contracted a traditional Roma marriage with Mr G., who was born in Rome in 1967 and who was living in the Netherlands where he had been granted a residence permit in 1977. His nationality, if any, is unknown.
7. On 16 February 1987, the applicant – under the name Arenka Sarkevic – was expelled from the Netherlands to Germany for unspecified reasons.
8. On 25 October 1988, Mr G. was granted a Netherlands permanent residence permit (vestigingsvergunning) which he holds to date. On 26 October 1988, the applicant – under the name Arenka Sarkevic – applied for a Netherlands residence permit for the purposes of stay with her partner Mr G. in the Netherlands. In April 1989, the applicant and Mr G. had a son named L.G.
9. On 13 February 1990, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's request for a residence permit, as Mr G. did not meet the minimum income requirement under the applicable immigration rules, and as it had not been demonstrated that he was actually cohabiting with the applicant. After a request for reconsideration (herzieningsverzoek) filed on 13 March 1990 was denied suspensive effect as regards the applicant's removal from the Netherlands, the applicant left the Netherlands for an unknown destination on or around 6 December 1990.
10. On 1 June 1991, the applicant returned to the Netherlands where, on 10 September 1991, she married Mr G. under Netherlands civil law. On 1 November 1991, submitting a passport in the name of Jadranka Konstatinov – issued on 18 June 1991 in Pančevo (Serbia) by the authorities of the Socialist Federal Republic of Yugoslavia and valid until 18 June 1996 –, the applicant filed a request for a Netherlands residence permit for the purpose of stay with her spouse in the Netherlands. However, this application for a residence permit was not considered for seven years.
11. Between 4 September 1992 and 23 March 1998, the applicant was convicted on six occasions of (aggravated) theft and/or robbery and sentenced to terms of imprisonment varying from six weeks to twelve months.
12. On 19 August 1998, the applicant was heard by the police in connection with the intention to impose an exclusion order on her by declaring her an undesirable alien (ongewenst vreemdeling).
13. In a letter of 5 November 1998, in which he referred to previous letters sent on 8 May 1998 and 27 July 1998, the applicant's lawyer complained to the Deputy Minister of Justice about the failure to determine the applicant's request for a residence permit.
14. By letter of 18 November 1998, the Deputy Minister informed the applicant's lawyer that no letters dated 8 May 1998 and 27 July 1998 had been received, that the applicant's request of 1 November 1991 had been mislaid due to an internal office removal, that the applicant had been invited on 5 February 1998 to report to the Aliens Police (Vreemdelingendienst) to provide fresh information concerning her request for admission to the Netherlands, and that on 19 August 1998 she had been heard in connection with the intention to impose an exclusion order. The Deputy Minister admitted that the determination of the applicant's request for admission had lasted considerably longer than desirable and apologised for this delay. The applicant's case would now be determined within two weeks.
15. On 27 November 1998, the Deputy Minister gave a decision rejecting the applicant's request for a residence permit. The Deputy Minister noted at the outset that the applicant did not hold the required, valid provisional residence visa (machtiging tot voorlopig verblijf) issued by a Netherlands diplomatic or consular mission in the applicant's country of origin. Further noting that Mr G.'s sole income consisted of benefits under the General Welfare Act (Algemene Bijstandswet), the Deputy Minister held that Mr G. did not comply with the minimum income requirement under the applicable immigration rules whereas he was not dispensed of this requirement. Noting that the applicant had been convicted and sentenced to imprisonment on several occasions, the Deputy Minister also found that public-order considerations opposed granting her request for a residence permit. In so far as the applicant had relied on the so-called “three years policy” (driejarenbeleid), according to which a residence title could be granted if a request for a residence permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record, the Deputy Minister held that the applicant was not eligible for a residence permit under this policy given her criminal record which comprised various offences committed between 1991 and 1994, i.e. pending the running of the three year period. In the same decision, the Deputy Minister declared the applicant an undesirable alien, entailing a five year exclusion order, on account of her criminal record in the Netherlands. As regards Article 8 of the Convention, the Deputy Minister considered that the applicant's personal interests in exercising her family life in the Netherlands were outweighed by those of the Netherlands authorities in protecting public order and preventing crime.
16. On 30 November 1998, the applicant lodged an objection (bezwaar) against this decision. On the same day, she applied to the Regional Court (arrondissementsrechtbank) of The Hague for a stay of expulsion pending the final outcome of the proceedings.
17. On 3 March 1999, after a hearing held on 6 January 1999, the Regional Court of The Hague sitting in 's-Hertogenbosch accepted the applicant's request for a provisional measure and ordered the applicant's expulsion stayed until four weeks after the Deputy Minister had given a decision on the objection. Having noted the seven years that had elapsed between the filing of the applicant's request for a residence permit and the first decision taken on that request, the Regional Court failed to see what interest the Deputy Minister had in not allowing the applicant to await the outcome of her objection in the Netherlands.
18. On 10 August 2000 the applicant appealed to the Regional Court of The Hague against the notional dismissal (fictieve weigering) of her objection, the Deputy Minister not having given a decision by that date. On 10 January 2001 the Regional Court accepted the applicant's appeal and ordered the Deputy Minister to give a decision within six weeks or within ten weeks if there was to be a hearing before an advisory board.
19. On 29 May 2001 the applicant was heard on her objection before the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken). She stated, among other things, that her son L.G. had been suffering from asthma since his birth, and that since her last conviction in 1995 she no longer had had any dealings with the Netherlands criminal justice authorities. Her lawyer referred to a policy, set out in a letter dated 10 January 1984 from the Deputy Minister of Justice and which had still been in force in 1991, under which requests for residence permits lodged by Roma for marriage purposes were given favourable consideration.
20. The Deputy Minister gave a decision on 12 July 2001. The objection was dismissed on the ground that Mr G. (still) did not comply with the minimum income requirement under the applicable immigration rules whereas he was not dispensed of this requirement. In addition, when heard on 29 May 2001, the applicant had denied that she had had recent dealings with the Netherlands criminal justice system, whereas in reality she had amassed further convictions of theft since 1998 and had been arrested for shoplifting in May 2001; from this it could be concluded that the applicant was a danger to public order. The applicant's criminal record also rendered her ineligible for a residence permit under the three years policy. The Deputy Minister further rejected the applicant's argument that – given the uncertainty about her actual citizenship – she should be regarded as a stateless person, as well as her arguments under Article 8 of the Convention.
21. The applicant lodged an appeal against this decision to the Regional Court of The Hague, together with an application for a provisional measure, i.e. a stay of deportation. On 18 November 2002, following a hearing held on 10 October 2002, the Regional Court endorsed the decision of the Deputy Minister and dismissed the appeal. As regards Article 8 of the Convention, it held:
“It is not in dispute that there is 'family life' between the appellant, her husband and child. There is no question of an interference with this family life within the meaning of the second paragraph of Article 8 of the Convention as the impugned decision does not entail the withdrawal of a residence title that enabled her to exercise that family life. The remaining question is whether [the Netherlands authorities] are under a positive obligation under Article 8 to enable the appellant to exercise her family life in the Netherlands. In order to determine the existence of such a positive obligation, a balancing exercise must be carried out – on the basis of reasonableness – between the interests of the person concerned and those of society as a whole. The Regional Court accepts the finding of [the Deputy Minister] that the appellant's interests are outweighed by the public interests pursued by [the Netherlands authorities]. In this balancing exercise, the Regional Court puts first that the countless, ever recurring antecedents of both the appellant and her husband weigh very heavily. The Regional Court further considers it of importance that the family's subsistence needs are met by public funds and that none of the family members holds Netherlands citizenship. As to the alleged statelessness of the appellant, the Regional Court notes that she stated at the outset of the present proceedings that she was holding Yugoslav citizenship and submitted a Yugoslav passport. It was only later that she declared to be stateless. It appears from the fax message of 28 June 2001 of the 's-Hertogenbosch Aliens Police that the appellant presented herself in order to obtain the return of her Yugoslav passport for the purpose of having her son registered in this passport. It is further relevant that the appellant and her son are registered under the above-cited citizenship in the Municipal Personal Records Database (Gemeentelijke Basisadministratie). For the above reasons, the Regional Court is of the opinion that the alleged statelessness of the appellant and her son has not been established and that it has not been demonstrated that the appellant's son could not follow her to the country of origin.
According to the data from the Municipal Personal Records Database, the citizenship of the appellant's husband is unknown. [Pursuant to the relevant immigration rules], where it is registered in respect of an alien that the citizenship cannot be determined, or where – such as in the instant case – in the category citizenship the standard value 0000 ('unknown') is recorded, statelessness has not been established. Noting this as well as the fact that also the alleged statelessness of the appellant has by no means been established, the Regional Court does not find it demonstrated that the appellant's husband is stateless. As it has neither appeared that he is a recognised refugee, no objective obstacles have appeared for exercising family life in the Federal Republic of Yugoslavia or at least outside of the Netherlands.
As an exclusion order has also been imposed on the appellant, the impugned decision does to that extent entail interference with the family life between the appellant, her husband and son. In order to determine whether that interference is justified under the second paragraph of Article 8 of the Convention, [the Deputy Minister] must strike a reasonable balance between the interests of the individual and of society as a whole. In this, the Regional Court refers to the weighty arguments which it has found decisive in the above balancing of [competing] interests. The Regional Court finds that these also justify the interference with the family life [at issue].”
Also the applicant's request for a provisional measure was rejected. No further appeal lay against this ruling.
22. As of 13 February 2004, and as the applicant was apparently no longer living at the address she had given to the Netherlands authorities who were unaware of her whereabouts, the applicant was registered as having left for an unknown destination. On 2 September 2005, the applicant's son L.G. was granted a Netherlands residence permit for the purpose of stay with his father, valid from 28 March 2001 until 28 March 2006. This residence permit was subsequently prolonged until 28 March 2011.
23. The applicant and her family are reportedly living in very reduced circumstances. Mr G. is still unemployed, and receives non-contributory general welfare benefits as a single parent, the applicant's residence in the Netherlands not being recognised as legal.
24. The admission, residence and expulsion of aliens were regulated at the material time by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were set out in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire; a body of directives drawn up and published by the Ministry of Justice).
25. On 1 April 2001, the Aliens Act 2000 entered into force – replacing the Aliens Act 1965 – along with a new Aliens Decree, a new Regulation on Aliens and new Implementation Guidelines.
26. 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. 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.
27. The Government pursue a restrictive immigration policy owing to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.
28. The admission policy for family reunion purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines. A spouse is in principle eligible for family reunion, if certain further conditions (relating to matters such as public policy and means of subsistence) are met. General welfare benefits are not accepted as constituting (a part of the) means of subsistence within the meaning of the immigration rules.
29. According to a letter dated 10 January 1984 by the Deputy Minister of Justice, the admission to the Netherlands of foreign marital partners of persons of Roma origin living in the Netherlands was subject to the same conditions as for other foreign marital partners seeking admission for family formation (gezinsvorming), namely:
“a. it concerns a marriage on the basis of which residence can be granted. This requirement entails, inter alia, that it should concern a marriage valid under Netherlands (international) private law. Marriages concluded by partners younger than 16 years are not recognised in the Netherlands;
b. the partner living in the Netherlands must hold a valid Netherlands residence title, have sufficient means of subsistence and suitable housing;
c. the foreign marital partner must not represent a danger for public peace, public order or national security.”
This letter further specifies that admission is refused when one or more of these conditions are not met unless special facts or circumstances constitute a compelling reason of a humanitarian nature warranting admission nevertheless.
30. Under Section 21 of the 1965 Aliens Act, replaced on 1 April 2001 by Section 67 of the Aliens Act 2000, an exclusion order may be imposed on an alien when he or she has been convicted of an offence punishable by a prison sentence of three years or more.
31. According to Chapter A5/6.4 of the 1965 Aliens Act Implementation Guidelines and Chapter A3/4.2.2 of the 2000 Aliens Act Implementation Guidelines, an exclusion order shall – upon a request thereto from the person concerned – be lifted after a defined number of years, depending on the grounds on which basis the decision was taken.
32. Section 197 of the Criminal Code (Wetboek van Strafrecht) provides that staying in the Netherlands while knowing that an exclusion order has been imposed constitutes a criminal offence punishable by up to six months' imprisonment or a fine of up to 4,500 euros (EUR).
33. Under the relevant provisions of the Criminal Code, theft attracts a prison sentence of up to four years (Section 310), aggravated theft and depending on the circumstances in which it was committed, a prison sentence of up to six or nine years (Section 311), and robbery a prison sentence of up to nine, twelve or fifteen years, depending on the circumstances in which it was committed and whether it had resulted in death (Section 312).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-91796
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MOJSIEJEW v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1951 and lives in Bojszowy, Poland.
6. On 28 August 1999 the applicant’s elder son, Hubert Mojsiejew, died at the age of twenty-five in the Tychy SoberingUp Centre (Izba Wytrzeźwień), where he had been detained at 4.50 a.m. that day.
7. On the same day the Tychy District Prosecutor and a forensic expert examined Hubert Mojsiejew’s body. The prosecutor ordered an autopsy to be carried out by experts from the Śląska Medical Academy.
8. After an autopsy had been carried out on 30 August 1999 an opinion was submitted to the prosecutor on 3 September 1999. The expert established that a possible cause of death was asphyxiation resulting from pressure on the victim’s neck and that Mr Mojsiejew had a blood alcohol level of 1.70 per mille.
9. The death certificate (karta zgonu) signed by Dr J.S., a forensic expert from the Śląska Medical Academy in Katowice, gave the following cause for Hubert Mojsiejew’s death:
“Numerous effusions of blood in the soft tissue of the neck.”
10. On 30 August 1999 the Tychy District Prosecutor opened an investigation in order to establish whether an offence prohibited by Article 155 of the Criminal Code (unintentional homicide) had been committed. The prosecutor interviewed several witnesses and ordered an examination of blood and other samples and the preparation of an expert opinion.
11. On 30 December 1999 the Tychy District Prosecutor discontinued the investigation. The prosecutor observed that Hubert Mojsiejew had been examined by a doctor at the time of his admission to the soberingup centre. The examination showed that he had been intoxicated and that he had no injuries to his body. As Hubert Mojsiejew had uttered threats and had been aggressive, he had been tied up to a bed with belts. The room in which he had been detained had been inspected by an employee of the soberingup centre at 7 a.m. and 7.45 a.m. When the same employee had come to the room at 8.45 a.m. he had noticed spots on Hubert Mojsiejew’s skin and had called the doctor on duty. The doctor had examined Hubert Mojsiejew and had called an ambulance. The doctor who had arrived in the ambulance had examined Hubert Mojsiejew and had declared him dead. Furthermore, the prosecutor referred to an expert opinion prepared by the Śląska Medical Academy, which stated that Hubert Mojsiejew had died of asphyxiation. The prosecutor concluded that the evidence collected in the course of the investigation did not show that third persons had caused the death of Hubert Mojsiejew.
12. On 18 January 2000 the applicant lodged an appeal with the Tychy District Prosecutor against the decision to discontinue the investigation. She also requested that the prosecution service carry out a reconstruction of the crime scene, with the assistance of a medical expert. On 20 January 2000 the Tychy District Prosecutor informed the applicant that her request had been granted.
13. On 14 March 2000 a medical expert opinion was prepared by the Silesian Medical Academy in Katowice. The expert established that the possible cause of Hubert Mojsiejew’s death had been asphyxiation due to immobilisation of his chest by belts which might have obstructed his breathing. However, the expert was unable to establish the origin of the injuries to Hubert Mojsiejew’s neck.
14. On 14 March 2000 the Tychy District Prosecutor allowed the applicant’s appeal of 18 January 2000 and resumed the investigation.
15. In May 2000 the prosecutor charged Z.K., an employee of the Centre, with the unintentional homicide of Hubert Mojsiejew. Three other employees of the centre were charged by the prosecutor in July 2000. On 14 July 2000 Z.K. was suspended from his duties at the Tychy Sobering-Up Centre.
16. On 28 September 2000 the prosecutor ordered the preparation of another expert medical opinion by the Śląska Medical Academy in Katowice. The opinion was inconclusive and did not rule out either the exertion of pressure on Hubert Mojsiejew’s neck or his incorrect immobilisation by belts as possible causes of his death. The expert was also unable to establish precisely the time of his death.
17. In a supplementary expert opinion prepared in November 2000 the expert established that Mr Mojsiejew should have been released from the belts after an hour since he had ceased to be aggressive. Moreover, the staff had failed to supervise his state of health. The expert concluded that the death could have been caused by strong pressure on his chest and his lack of direct supervision for many hours.
18. On 11 December 2000 the Tychy District Prosecutor indicted four employees of the sobering-up centre before the Tychy District Court. They were indicted under Article 155 of the Criminal Code for the unintentional homicide of Hubert Mojsiejew. In particular, Mr Z.K. was accused of having incorrectly immobilised Hubert Mojsiejew on the bed and, in doing so, having exerted pressure on his neck. In consequence the respiratory movements of his chest had been limited to a large extent, which had led to his death by asphyxiation. Three other employees of the sobering-up centre were charged with unintentional homicide by failing in their duty to care for and supervise Mr Mojsiejew.
19. The applicant requested to join the proceedings as an auxiliary prosecutor.
20. The hearing scheduled for 24 July 2001 was adjourned as the parties had not been properly summoned to it. Afterwards, the trial could not start as on three occasions new reporting judges had to be assigned to the case. In consequence, the Tychy District Court held the first hearing on 17 April 2003. Subsequently, two hearings were scheduled for 9 June 2003 and 24 February 2004 but they were adjourned.
21. The trial court held a hearing on 10 May 2004, at which it examined the accused. Some hearings scheduled afterwards were adjourned for various procedural reasons. On 16 August 2004 an attempt by the applicant to challenge judges trying the case was dismissed.
22. The Tychy District Court held its next hearing on 10 December 2004 and examined some witnesses.
23. In 2005 the trial court held eleven hearings in total and scheduled them at regular intervals.
24. In 2006 the court held only two hearings, on 23 January and 4 April. On 28 April 2006 the court requested a new expert medical opinion from the Wrocław Medical Academy. The experts submitted their opinon on 15 November 2006. The opinion reads as follows:
“The above observations [from photographs and an inspection of the room in which Hubert Mojsiejew died] lead to a conclusion that the injuries to the deceased’s neck most probably did not occur prior to his arrival at the sobering-up centre, or as a result of his being tied to the bed by belts. In consequence, another means by which these injuries occurred needed to be examined.
The absence of external skin injuries and the presence of extensive internal injuries in the soft tissue of the neck indicate that a large amount of direct pressure had been applied with a blunt object of a substantial surface area. Such an object could have been, for example, an arm, or alternatively the elbow area between the forearm and arm, if somebody had applied the immobilisation technique called a headlock (krawat). In this hold the person applying it normally stands behind the person to be immobilised and forcefully puts his arm around the neck [... simultaneously pushing the head with the other hand ...]. This hold blocks breathing and hinders the access of blood to the brain, which in a short time leads to fainting. At the same time, if [the headlock] lasts long enough it may lead to death by strangulation or cardiac arrest. ... Cardiac arrest or respiratory failure occurs either immediately after [the headlock] has been applied or it can occur some time afterwards if the hold was applied for a long enough time to cause brain damage ...
It appears from medical and forensic practice that the [headlock] is sometimes used on intoxicated and aggressive patients at sobering-up centres. Such actions, where they do not cause death, expose the person to a direct danger of loss of life or serious bodily injury within the meaning of Article 160 of the Criminal Code.
The absence of any external signs of injuries on the chest which could indicate that strong pressure had been applied by narrow belts limiting the respiratory movements of the chest ..., taking into account the above considerations, makes it very doubtful that the immobilisation of the chest was the cause of [Hubert Mojsiejew’s] death.
While the cause of death advanced by the Śląska Medical Academy cannot be totally ruled out, it is much more probable that the cause of the sudden death of [Hubert Mojsiejew] was strangulation (uduszenie przez zadławienie) by applying strong pressure with a blunt object to the neck, in the manner and circumstances described above.
It should be added that such extensive injuries to the front side of his neck could not have happened if [Hubert Mojsiejew] was trying to free himself from the belts while lying on his stomach. It is also impossible that such injuries occurred during convulsions...
A forensic examination of the body (obdukcja sądowo-lekarska), in the place in which it had been found, was not conducted, which makes it impossible to establish the exact time of death. Analysing livor mortis (plamy pośmiertne) [and other factors], one can only advance the hypothesis that about one to two hours had elapsed between his death and the time at which his body was found.”
25. The Tychy District Court held a hearing on 23 January 2007 and on 30 January 2007 it gave its judgment. The court changed the classification of the offence and found all the accused guilty of having exposed Hubert Mojsiejew to an immediate danger of loss of life within the meaning of Article 160 § 2 of the Criminal Code. They were sentenced to two years’ imprisonment, suspended for a probationary period of three years.
26. As regards the course of the events of 28 August 1999, the court established that during his arrest by the police, his transfer to the soberingup centre and his stay in the centre, Hubert Mojsiejew had been calm and had not shown aggression. In the sobering-up centre, however, he refused to undress and became verbally abusive, which led the centre’s staff to decide to put him in the special room with immobilising belts. At 4.55 a.m. Hubert Mojsiejew was put on the bed, on his stomach, and Z.K. tied his hands, legs and chest with the belts. During this, Mr Mojsiejew was calm and did not put up a struggle; he was mumbling incomprehensibly. After having been tied to the bed and examined by a doctor, Hubert Mojsiejew was left in his room. He was examined 20 minutes later but afterwards no employee from the shift that finished at 7 a.m., or from the following shift, came into the room in which Mr Mojsiejew had been immobilised and examined him. The employees occasionally observed him, looking mostly through a spy-hole in the door without entering the room, and were able to see his sides moving, from which they had concluded that he was still breathing.
At 8.45 a.m. one employee of the centre noticed through the glass in the door that the skin on Hubert Mojsiejew’s hands was of an unnatural colour. He called a doctor on duty and together they came into the room. They untied Mr Mojsiejew. At 9.06 an ambulance came and the doctor established that Hubert Mojsiejew was dead.
27. As regards the cause of his death, the court noted that all medical opinions had found that Hubert Mojsiejew had died of asphyxiation. The court considered that the experts from the Śląska Medical Academy had avoided answering the question of the origin of the injuries to Mr Mojsiejew’s neck. Thus, the court accepted the conclusions reached by the experts from the Wrocław Medical Academy, who dismissed as highly improbable the hypothesis that the belts had been tied too tight and had obstructed the movement of his chest, since Mr Mojsiejew had not had any marks on his body indicating that pressure had been exerted by the chest belt. The court thus concluded that his death had been caused by strangulation (zadławienie) as pressure had been applied to Hubert Mojsiejew’s neck. It had most probably happened when someone had put Mr Mojsiejew in a headlock. This immobilisation technique, if applied for a longer time, could lead directly to death, but if applied for a shorter period of time could cause brain damage, which affected breathing and after a certain time could also lead to death.
28. The court also considered that the failure to conduct a forensic examination of the body narrowed the evidence concerning the state of the body, its temperature and the state of livor mortis. Thus, the precise time of death could not be established.
29. Although the court was unable to establish beyond doubt who had applied the headlock on the applicant’s son, it considered that all the accused had failed in their duty of care for Hubert Mojsiejew by having exposed him to an immediate danger of loss of life. In particular, the employees of the centre had been obliged to carry out constant supervision of the rooms in which intoxicated persons were detained. Under domestic law, patients immobilised by belts should be examined and checked every 15 minutes. If patients stayed calm and there were no other indications for the use of belts, they should be released; it should also be ensured that the patient did not need to use the toilet. However, Hubert Mojsiejew had not been examined every 15 minutes. He had been properly examined only once, about 20 minutes after he had been immobilised by the belts. Moreover, immobilisation by belts should not have been applied to him in the first place. The accused had thus deliberately failed in their obligation to protect Hubert Mojsiejew’s life. Moreover, they had been completely unaware of the rules governing the manner in which care was to be provided to immobilised patients. In particular one of the accused, who was a doctor, had believed that a patient could be kept immobilised for 24 hours without being released.
30. The accused and the applicant appealed against the judgment.
31. On 13 November 2007 the Katowice Regional Court quashed the judgment and remitted the case to the lower court. The court considered premature the first-instance court’s conclusions relating to the manner in which Mr Mojsiejew’s death had occurred. It found that the accused had been correct in submitting that the exact time of the events and Mr Mojsiejew’s death should have been specified since the accused had been responsible for providing care to him at different times. It also indicated that other evidence needed to be taken, in particular from the expert witnesses from the Wrocław Medical Academy who had prepared the most recent opinion.
32. The case was transferred to the Tychy District Court which held a first hearing on 10 December 2007. In May 2008 the case was still pending before that court.
33. The relevant provisions of the Criminal Code provide as follows:
Article 155
“Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
Article 160
“1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.
2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
34. Section 16 of the Ordinance of the Minister for Health and Social Welfare of 23 October 1996 on the procedure for dealing with intoxicated persons, the organisation of sobering-up centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in sobering-up centres (Rozporządzenie Ministra Zdrowia i Opieki Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień) states that direct coercion may be applied in accordance with the rules laid down in section 18 of the 1994 Protection of Mental Health Act, which provides in particular that direct coercion can consist of immobilisation, among other methods. Section 16 of the above-mentioned Act further refers to the Ordinance of the Minister for Health and Social Welfare of 23 August 1995 on the form of application of direct coercion (w sprawie sposobu stosowania przymusu bezpośredniego), which determines the manner in which direct coercion may be applied.
The latter ordinance provides, in so far as relevant:
“9 (2) A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours.
13 A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient’s] card without delay.”
VIOLATED_ARTICLES: 2


ITEMID: 001-106525
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CANBAZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
TEXT: The applicant, Mr Sadettin Canbaz, was a Turkish national and lived in Sakarya.
On 8 May 2011 the Court was informed of his death on 1 August 2007 and that his successors, Mrs Cevriye Canbaz, Mr Sertan Canbaz, Mrs Mehtap Cepoğlu and Mr Erdinç Canbaz stated their wish to pursue the application.
For practical reasons, Mr Sadettin Canbaz will continue to be called “the applicant”, although his successors are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and also Ahmet Sadık v. Greece, 15 November 1996, § 3, Reports of Judgments and Decisions 1996V).
On 26 September 1995 the applicant underwent a hernia repair operation at the Sakarya Social Security Hospital.
On 18 March 1999 the applicant initiated legal proceedings against the doctor in charge and the hospital administration, claiming 500,000,000 Turkish liras (TRL) in compensation. He alleged that he had lost two thirds of his earning capacity as a result of the medical negligence of the doctor. In particular, he contended that, following the surgery, a disc had become infected due to the doctor’s malpractice.
On 14 July 2004 Law No. 5219, according to which the jurisdictional limits imposed in appeals and rectification requests were increased, entered into force.
On 22 December 2004 the Sakarya Civil Court of General Jurisdiction dismissed the case, relying on expert reports provided by the Supreme Health Council and the Istanbul Forensic Institute. It held that disc infection was a foreseeable complication of hernia operations, which had been treated appropriately in the applicant’s case by his doctor. It concluded that the applicant’s current health problems had not arisen from the surgery in question and therefore determined that no fault could be attributed to the doctor or the hospital.
On 5 May 2005 the Court of Cassation rejected the applicant’s request for leave to appeal on the grounds that the amount in dispute was less than the minimum amount (TRL 1,000,000,000,000) required under the recently amended legislation for an appeal to be lodged with the Court of Cassation. That being so, the applicant’s request for leave to appeal had to be declared inadmissible in accordance with Article 427 of the Code of Civil Procedure as amended by Law No. 5219.
On 24 October 2005 the Court of Cassation rejected a request for rectification brought by the applicant, as the sum in dispute in the matter also did not exceed the required threshold (TRL 6,000,000,000,000) for rectification pursuant to the aforementioned law.


ITEMID: 001-112136
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TAYLOR v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pavel Gontšarov;Peer Lorenzen
TEXT: 1. The application was lodged by Mr Marko Rudi. On 21 October 2011 he submitted evidence showing that he had changed his name to Marko Taylor. He is an Estonian national, who was born in 1975 and lives in Mõra, Tartu County. He is represented before the Court by Mr L. Glikman, a lawyer practising in Tallinn.
2. The Estonian Government (“the Government”) are represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 26 November 2007 a criminal indictment was issued by the authorities of the United States of America against the applicant. He was charged with several offences, including wire fraud (use of electronic communication for fraudulent purposes), bribery, major fraud against the United States and money laundering. The charges concerned a period between April 2003 and August 2005 and related to the applicant’s employment in an organisation which received funds from the United States government for the performance of certain services in Iraq. On 27 November 2007 an arrest warrant was issued by the authorities of the United States.
5. On 11 September 2008 the authorities of the United States requested that the Estonian authorities place the applicant under provisional arrest with a view to his extradition.
6. On 17 September 2008 the applicant was arrested. On 18 September 2008 the Harju County Court, having heard the public prosecutor and the applicant, assisted by a lawyer, remanded him in custody for two months. In the County Court’s decision the charges brought against the applicant by the United States authorities as well as the legal grounds for his extradition were set out in detail. In respect of the applicant’s detention, the court considered that there were sufficient grounds to believe that if at liberty, he could evade the proceedings and abscond. Therefore, the applicant was to be remanded in custody. On 8 October 2008 the Tallinn Court of Appeal dismissed the applicant’s appeal against that order.
7. On 20 October 2008 the Ministry of Foreign Affairs sent a request to the Public Prosecutor’s Office from the United States authorities, dated 6 October 2008, for the applicant’s extradition. The Ministry noted that the Embassy of the United States had requested that the applicant be kept in custody until his extradition. On 3 November 2008 the extradition papers were forwarded to the Harju County Court.
8. On 13 November 2008 the Harju County Court found that the applicant’s extradition to the United States was legally admissible in respect of the charges of wire fraud and major fraud against the United States. These offences carried maximum sentences of twenty and ten years in prison respectively. The court established that the offences in question were listed in the Extradition Treaty between the United States and Estonia, signed in 1923, and were also punishable in Estonia under the Penal Code. In respect of the charges of bribery and money laundering extradition was not admissible, as these offences were not listed in the Extradition Treaty. The County Court found that the applicant’s detention was justified and noted that he had been taken into custody in accordance with its decision of 18 September 2008. It extended the applicant’s detention until his extradition or until a decision to refuse to extradite him was made. It also noted that there was nothing to rule out the applicant’s extradition, that the general conditions for his extradition were fulfilled and that an arrest warrant had been issued in respect of the applicant whereas the court had no reason to doubt its validity.
9. Although according to the Code of Criminal Procedure (Kriminaalmenetluse seadustik) no appeal lay against the County Court’s decision, the applicant lodged an appeal with the Tallinn Court of Appeal. He complained, inter alia, that the County Court’s decision had contained no reasons for his detention in breach of Article 451 § 2 (5) of the Code of Criminal Procedure. On 29 December 2008 the Court of Appeal refused to examine it. On 15 May 2009 the Supreme Court dismissed an appeal against the appellate court’s decision. It agreed with the Court of Appeal that the County Court’s decision concerning the legal admissibility of the applicant’s extradition was not subject to appeal and rejected the applicant’s argument that the lack of an opportunity to appeal against the first-instance court’s decision was unconstitutional.
10. In the meantime, on 20 November 2008, the Government decided to extradite the applicant.
11. On 1 December 2008 the Tallinn Administrative Court quashed the Government’s decision, mainly because of insufficient reasoning and failure to consider all relevant circumstances.
12. On 12 December 2008 the Government took a new decision to extradite the applicant in respect of the charges of major fraud against the United States and wire fraud. The extradition was refused in respect of the remaining charges. The Government, in taking their decision, considered the applicant’s written objections, records of his three meetings with officials of the Ministry of Justice, and the applicant’s and his lawyers’ submissions made before the Tallinn Administrative Court, as well as a medical expert opinion.
13. In their decision, the Government addressed the legal grounds for the applicant’s extradition (including whether the statutory limitation period had expired and whether the possibly harsher sentence in the United States prevented the applicant’s extradition) and weighed the public and international interests against the applicant’s fundamental rights. They considered, inter alia, that it was not possible to try the applicant in Estonia, but that in the event of his conviction in the United States he could request to be transferred to Estonia to serve his sentence. They were of the opinion that the fact that the applicant had a child and a sick father in Estonia did not prevent his extradition. In respect of the applicant’s health, the Government relied on a medical expert opinion, which stated that he was able to travel to the United States and stand trial, despite the fact that he was suffering from hypertension.
14. The applicant lodged a complaint against the Government’s decision with the Tallinn Administrative Court. He also requested suspension of the proceedings pending the outcome of the proceedings concerning the legal admissibility of his extradition (see paragraphs 8 and 9 above).
15. On 29 December 2008 the Tallinn Administrative Court dismissed the applicant’s complaint against the Government’s extradition decision. In respect of the suspension request it noted that there were no other pending proceedings since the County Court’s decision on legal admissibility of extradition was not subject to appeal.
16. The applicant appealed, and reiterated to the Tallinn Court of Appeal the request he had previously made to the Administrative Court, for the proceedings to be suspended. On 15 January 2009 the Court of Appeal suspended the proceedings as requested by the applicant. After the resumption of the proceedings, on 19 June 2009, the Tallinn Court of Appeal upheld the Administrative Court’s judgment of 29 December 2008. On 5 August 2009 the Supreme Court declined to hear the applicant’s appeal.
17. In the meantime, on 25 May 2009, the applicant requested that the Harju County Court “review the reasons for [his] arrest (vahistuse põhjendatuse kontroll) (and release [him])”. He noted that he had been in custody for more than eight months without having been extradited or his extradition having been refused. He argued that the rules of the Code of Criminal Procedure governing pre-trial detention should be applied. According to these provisions, the maximum duration of pre-trial detention was six months and this could only exceptionally be extended beyond that limit. No such extension had been ordered in his case. He also disputed the existence of a reasonable suspicion that he had committed an offence and argued that there were no grounds for his detention such as a risk that he would abscond or reoffend.
18. On 1 June 2009 a Harju County Court judge replied by letter as follows:
“Chapter 19 of the Code of Criminal Procedure, which governs extradition proceedings, does not provide for review of reasons for remand in custody. By a decision of a preliminary investigation judge of the Harju County Court, dated 13 November 2008, [the applicant’s] extradition to the United States of America was declared legally admissible in part. At the same time [the applicant’s] remand in custody was extended until his extradition to the United States of America or until a decision to refuse extradition; the said decision has become final. I am therefore returning to you the request sent to the Harju County Court.”
19. The applicant appealed, relying upon, inter alia, Article 5 § 4 of the Convention requiring periodic review of the lawfulness of detention in cases where its grounds might change over time.
20. The appeal was dismissed by a decision of the Tallinn Court of Appeal on 25 June 2009. The Court of Appeal agreed with the applicant that the County Court’s letter had to be considered a decision, as it concerned the resolution of a procedural matter, and that a request sent to the court should not have been returned by letter. As to the substance of the complaint, the Court of Appeal endorsed the County Court’s decision to refuse to examine the request because of a lack of procedural grounds for it to do so in Chapter 19 of the Code of Criminal Procedure and, in particular, in Article 447 of the Code, which governs provisional arrest in connection with extradition. The court noted that according to that provision, detention following provisional arrest in connection with extradition proceedings must not be longer than one year.
21. On 22 July 2009 the Supreme Court refused to examine the applicant’s appeal as, under the Code of Criminal Procedure, the Court of Appeal’s decision could not be appealed against.
22. In the meantime, on 10 July 2009, the applicant asked the Harju County Court “to take a decision on the question of [his] release from detention”. He relied on Article 447 § 7 of the Code of Criminal Procedure, which set one year as the maximum length of custody following provisional arrest related to extradition proceedings. The applicant asked the court to issue a ruling explicitly providing in its operative part that he would be released from custody on 17 September 2009.
23. On 20 July 2009 the Harju County Court refused to examine the request. It noted that the applicant’s custody had a legal basis in Article 447 of the Code of Criminal Procedure and was in compliance with Article 20 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) and Article 5 of the European Convention on Human Rights. Furthermore, it noted that Article 447 § 7 prohibited the keeping of a person in custody for more than one year following provisional arrest. In the applicant’s case the one-year period had not yet elapsed.
24. On 10 August 2009 the Tallinn Court of Appeal dismissed an appeal brought by the applicant against the above-mentioned decision. It considered that in its decision of 13 November 2008 the County Court could not have specified the final date of the applicant’s custody, as it would not have been possible to foresee the exact date of his extradition. The Court of Appeal noted that the applicant was to be released if he had not been extradited by 17 September 2009, despite the lack of any explicit order to that effect in the operative provisions of the decision of 13 November 2008.
25. In the meantime, on 4 August 2009, the applicant requested that the Government quash its decision of 12 December 2008 to extradite him. The applicant argued that owing to the five-year limitation period applicable under Estonian law his prosecution had become time-barred on 1 April 2009: his extradition was therefore no longer permissible. In a complaint of 11 August 2009 lodged with the Tallinn Administrative Court, the applicant asked the court to oblige the Government to decide that the decision to extradite him should be quashed. He also applied for a stay of the extradition as an interim measure.
26. On 14 August 2009 the Tallinn Administrative Court stayed the applicant’s extradition until 20 September 2009. On 24 August 2009, on an appeal by the Government, the Tallinn Court of Appeal quashed the Administrative Court’s decision. It considered that the applicant’s indictment on 26 November 2007 and an arrest warrant issued on 27 November 2007 by the authorities of the United States had interrupted the limitation period.
27. In the meantime, by a decision of 18 August 2009, the Government refused the applicant’s request of 4 August 2009 for the decision to extradite him to be quashed. On 24 August 2009 the applicant amended his previous complaint to the Administrative Court (see paragraph 25 above), additionally challenged the Government’s latest decision, and again applied for an interim measure.
28. On 25 August 2009 the applicant was handed over to the authorities of the United States and removed from Estonia.
29. On 11 March 2010 the applicant pleaded guilty to major fraud against the United States in a plea bargain made in the United States District Court for the Middle District of North Carolina. On 17 June 2010 the District Court sentenced him to thirty-three months’ imprisonment
30. According to the Government, in his sentence in the United States, the different periods the applicant had spent under arrest were taken into account, including the time spent under provisional arrest in Estonia.
31. On 8 February 2011 the applicant was released: he returned to Estonia on 4 March 2011.
32. Part 2 of Chapter 19 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) sets out the procedure for extradition. A request for extradition is sent through the Ministry of Justice and the State Prosecutor’s Office to the Harju County Court, which verifies the legal admissibility of the extradition. Thereafter, in the case of an Estonian national, it is for the Government to decide on his or her extradition. That decision can be challenged before the administrative courts.
33. Article 447 of the Code of Criminal Procedure contains rules on the provisional arrest and subsequent detention of a person to be extradited. Paragraph 4 of Article 447 provides that provisional arrest must not be applied if legal impediments to the extradition have become evident. Paragraph 7 of Article 447, as in force at the material time, provided that a person could not be kept in custody for more than one year following provisional arrest.
34. Article 452 § 7 provides that if extradition is refused, the person concerned is released from custody.
35. Article 451 set out rules for the content of a court’s decision concerning the legal admissibility of extradition. Paragraph 2 (5) stipulates that the decision must contain a ruling concerning detention and its reasons.
36. Article 385, as in force at the material time, stipulated that no appeal lay against the decision concerning the legal admissibility of extradition (Article 451).