ITEMID: 001-87693
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MENELAOU v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Costas Menelaou, is a Cypriot national who lives in Limassol, Cyprus. He had been granted legal aid covering part of his costs for the proceedings before this Court and was represented by Professor M. Shaw QC, a barrister practising in London. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested on 20 April 1999 and was remanded in custody until 12 May 1999. On 15 February 2000 he was committed for trial before the Assize Court of Limassol sitting on 30 March 2000. On the latter date, he was formally charged with a series of offences dating from 15 July 1997 to 4 January 1999. He pleaded not guilty.
A lengthy series of adjournments of the proceedings followed. On 26 June 2000 the court adjourned the case to 3 October 2000, and then to 27 November 2000 as another case which was pending before it had been assigned priority. On the same ground the hearing was adjourned twice more. On 28 May 2001, the applicant’s request for an adjournment was granted and the case fixed for 5 November 2001. On that date, the case was further adjourned on the basis of a request submitted by the prosecution and was fixed for hearing on 28 January 2002. On the latter date, the applicant requested an adjournment. This was granted by the court which noted that it was, in any event, unable to proceed because it was engaged in the trial of another case. It fixed the case for 29 April 2002 when it adjourned it to 23 September 2002 due to lack of time as it had three ongoing trials. On that date, the hearing was again adjourned to 17 March 2003 and it was further adjourned at the applicant’s request because in fact the court had two other hearings. On 12 September 2003, the applicant requested a further adjournment due to the deterioration of his health following a road accident. The case was accordingly adjourned to 14 October 2003.
On that date the applicant applied for a stay of the proceedings on the ground that the excessive delay violated Article 30 of the Constitution guaranteeing the right to a fair trial within a reasonable time and Article 6 of the Convention. The Assize Court granted the application. Reference was made to a period of three and a half years when “there was complete inactivity in the case” and for which “the excessive workload of the Assize Court” was responsible. It observed that the trial had been adjourned ten times without the applicant being responsible, and that even on the three occasions when he had himself requested an adjournment, this was granted because of the court’s inability to pursue the case. It therefore concluded that three and a half years’ delay, from the filing of the case until 12 September 2003, constituted a breach of the reasonable time requirement. It noted that while the European Court of Human Rights had never found that a violation of Article 6 of the Convention required the quashing of a conviction, this was one of the remedies offered by the common law in appropriate circumstances. For instance, where the delay took place after the lodging of an appeal against conviction, the appropriate remedy would be a reduction of a sentence, whereas if the delay had arisen before the trial began, as in the present case, one of the available remedies would be to uphold an accused’s plea in bar of the trial. Reference was made to the House of Lords’ judgment in Attorney General’s Reference no.2 of 2001 (J) (2001) EWCA Crim. 1568 where it had been stated with regard to stay of proceedings that although it was a remedy which the court could grant, it should be confined to situations which in general terms amounted to an abuse of process. It was noted, however, that Cyprus case-law on this point was clear: where the shortcomings in the fairness of the proceedings could be remedied by a retrial, a retrial should be ordered where possible; but if the constitutional rights of an accused had been infringed by a failure to put him on trial within a reasonable time, he should not be obliged to prepare for a trial which would necessarily take place after an unreasonable length of time. In the view of the Assize Court, the only appropriate remedy for the unreasonable length of the proceedings under examination was to stay the proceedings and order the applicant’s discharge.
The Supreme Court in its judgment of 14 April 2004 criticised the Assize Court’s assessment of the delay since it had only relied on the length of the period and had not considered other relevant factors, such as the complexity of the case and the applicant’s own conduct. Moreover, it found that the Assize Court’s account of the relevant adjournments had been inaccurate: while the court itself had been responsible for a number of them, the applicant had not objected and he had himself requested the adjournment of the case on a number of occasions. It observed that according to its case-law unreasonable delay could be remedied by taking it into account in the reduction of sentence. For all the above reasons it considered the decision of the Assize Court erroneous and held that it should be set aside and the case sent for retrial by the Assize Court.
On 20 May 2005 judgement was delivered by the Assize Court which found the applicant guilty of the offences of falsification of accounts and stealing by an employee. The applicant was acquitted of ten other charges of steeling by an employee and more serious charges of falsification of documents.
On 24 May 2005 the same court proceeded to sentence the applicant. It considered that given the seriousness of the offences of which he had been convicted, involving breach of confidence and elements of fraud, the only appropriate sentence would be that of imprisonment. The maximum sentence provided for by the relevant provisions of the Criminal Code at the time of commission of the relevant offences was seven years’ imprisonment. The Assize Court referred to the previous decision of the Supreme Court in the case, noting that a finding that a trial had not been concluded within reasonable time could be remedied by taking the delay into account as a mitigating factor. It stated that:
“It is a fact that the lapse of six years from the date of the applicant’s arrest and more than seven years (almost eight) from the commission of the offences for which he has been found guilty, constitutes in itself a period of time that should be taken into account in the determination of an appropriate sentence. The uncertainty of the pending proceedings leading to understandable anxiety about one’s guilt or innocence is in itself harrowing, but this is aggravated by the circumstances of this case, which we will attempt to summarise in the context of our duty to impose a sentence:
(a) the accused has been acquitted after a lengthy hearing of most of the charges brought against him;
(b) Despite the fact that certain requests for an adjournment were made on behalf of the defence, responsibility for the length of the proceedings could not be attributed to them given the conduct of the proceedings as a whole...
(c) During this period of time... the accused’s [personal] circumstances had deteriorated. In addition to the anguish he went through due to the pending proceedings, he had lost his employment in the bank and was unable to find a new job.... Moreover, [it was asserted on behalf of the accused that] because of the proceedings he could not get married.
....
We have carefully examined the circumstances of the present case knowing that they lasted for such a long period that their duration must have a substantial impact on the sentence as a primary mitigating factor.
Having examined the seriousness of the offences and balanced every other relevant factor, we find that the appropriate sentence cannot be other than that of imprisonment. The length of the proceedings in combination with the accused’s lack of criminal record, the devastating effects that the proceedings had on his life (and, in particular, his loss of employment and career prospects) must have a significant impact on the prison sentence that is to be passed.”
Accordingly, the applicant was sentenced to eight months’ imprisonment on each of the two counts of falsification of accounts and ten months’ imprisonment on each of the counts of stealing in respect of which he had been convicted. All the sentences were to run concurrently. The applicant’s request for suspension of the sentence of imprisonment was rejected.
Article 30 (2) of the Cyprus Constitution provides as follows, in so far as relevant:
“In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by an independent, impartial and competent court...”.
In the case of Eustathiou v. the Police (1990) 2 S.C.J. 294 it was stated:
“This case had been repeatedly adjourned without a valid reason and without the accused’s culpability. Hence, the accused’s criminal liability had not been determined within reasonable time in breach of his right guaranteed by Article 30 (2) of the Constitution. This finding leads to the quashing of the conviction as well as the proceedings in their entirety including the arrest order and confiscation of the applicant’s surety.”
In the case of Christopoulos v. the Police (2001) 2 C.L.R. the Supreme Court stated that:
“A violation of the rights guaranteed by Article 30 (2) of the Constitution ... renders the proceedings void in their entirety.”
However, in the recent case of Theocharous v. The Republic, Criminal Appeals 185/2006 and 210/2006 of 21 January 2008, the Supreme Court observed that the case-law of the European Court of Human Rights concerning the consequences of a violation of the fair trial guarantee due to the excessive length of the proceedings was not as strict as the position adopted by the Cyprus Supreme Court in its judgment in Eustathiou v. the Police (cited above) and subsequent cases. It concluded that the consequences ought to be determined in accordance with the extent of the violation at issue and the possible prejudice to an accused’s defence. Where a violation is demonstrated it should be taken seriously into account as a mitigating factor in sentence.


ITEMID: 001-68732
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KARALEVICIUS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5-1 in respect of two periods of detention;No violation of Art. 5-1 in respect of one period of detention;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 9. The applicant was born in 1952 and lives in Vilnius.
10. The applicant was suspected of having committed various fraudulent offences between October 1992 and October 1993. In 1994 criminal proceedings on three counts of cheating, suppression of documents and false accounting were instituted against him. As the applicant had absconded from the investigation, on 21 November 1994 the prosecutors declared him a wanted person.
11. On 24 September 1996 the applicant was arrested in Moscow on an extradition request by the Lithuanian authorities. He was extradited to Lithuania on 30 December 1996.
12. On 31 December 1996 the Šiauliai City District Court ordered the applicant's detention on remand until 31 January 1997 on suspicion of his suppressing documents. The court referred to the dangers of the applicant absconding and committing further offences. On 24 January 1997 the court extended the term to 31 March 1997, on 28 March to 31 May 1997 and on 30 May to 13 June 1997.
13. On 5 June 1997 the case was transmitted to the Šiauliai City District Court. On 6 August 1997 the court committed the applicant for trial. On the same date the court also authorised the applicant's detention, stating that his remand must remain unchanged. No term of the detention was specified.
14. On 10 September 1998 the Šiauliai City District Court convicted the applicant of cheating and suppressing documents but acquitted him of false accounting. He was sentenced to five years' imprisonment and his property was confiscated. The court ordered him to pay 615,264 Lithuanian litai (LTL) of damages in favour of a bank.
15. On 2 March 1999 the Šiauliai Regional Court amended the first instance judgment insofar as it concerned the damages against the applicant, reducing the amount to 476,000 LTL.
16. Upon the applicant's cassation appeal, on 29 June 1999 the Supreme Court quashed the above decisions and returned the case for a new first instance examination. No question relating to the applicant's remand in custody was mentioned by the Supreme Court in the decision.
17. On 30 July 1999 the Šiauliai City District Court ordered the applicant's detention on remand until 1 September 1999 on suspicion of his having cheated and suppressed documents. The court referred to the danger of the applicant absconding. The District Court also noted that on 29 June 1999 the Supreme Court had not ruled on the applicant's remand. On 31 August 1999 the term of the applicant's detention was extended until 15 November 1999. On 15 November 1999 the term was extended until 31 December 1999. On 30 December 1999 the Šiauliai District Court extended the term of the applicant's remand in custody “until a court judgment would be taken in the case”.
18. On 6 March 2000 the Šiauliai District Court convicted the applicant of suppressing documents and acquitted him of cheating. 476,000 LTL were awarded against the applicant in damages in favour of a bank. The sentence of five years' imprisonment was reduced by one third due to an amnesty law. The applicant was released in the courtroom as he was deemed to have already completed his sentence because of the time he had spent on remand. The court also ordered his release on bail, with home arrest, until the entry into force of the judgment. The applicant and his lawyer were present during the hearing.
19. On 4 May 2000 the Šiauliai Regional Court rejected the applicant's appeal. On that date the conviction took effect for the purposes of domestic law and the bail constraints ceased. The applicant and his representative were present at the appeal hearing.
20. On 24 October 2000 the Supreme Court examined the applicant's cassation appeal. The court amended the lower decisions, reducing the applicant's sentence to three years' imprisonment. The applicant and his defence counsel were present before the Supreme Court. That decision was final.
21. From 2 January 1997 until 22 September 1999 the applicant was held at the Šiauliai Remand Prison (Šiaulių tardymo izoliatorius). From 22 to 28 September 1999 he was held at a Kaunas police custody centre. On 28 September 1999 he was again detained at the Šiauliai Remand Prison until his release on 6 March 2000.
22. The applicant gave the following account of the detention conditions at the Šiauliai Remand Prison:
Living space for one prisoner amounted to 1.5 square metres. The applicant states that he lived and slept in cells of less than 20 square metres where from 10 to 15 inmates were held. There was an open toilet in each cell. They lacked ventilation and had a strong smell due to the inmates' smoking and toilet use. The cells were very humid and cold, particularly during the winter. The insufficiency of the living space was aggravated by the scarce time for strolling in the prison yard (one hour daily). Prison bedding was in an awful and dirty condition. All washing had to be done by hand in a sink in the cell. There was a constant lack of hot and cold water. The applicant had access to a shower only once in 15 days. Food was prepared and served in awful conditions. Only 6 LTL per day were allocated for an inmate's catering.
23. The Government provided the following account of the applicant's detention conditions at the Šiauliai Remand Prison:
From 2 January 1997 until 24 August 1998 the applicant was held at the cell no. 11 of the prison which accommodated 11 detainees at the time. The overall capacity of the cell was 16.65 square metres, i.e. 1.51 m² per detainee.
From 24 August 1998 until 22 June 1999 he was held in the cell no. 86 which accommodated 9 inmates. The cell's capacity was 17.78 m², i.e. 1.98 m² per detainee.
From 22 June 1999 until 28 December 1999 the applicant was held in the cell no. 87 which accommodated 10 inmates. The capacity of cell was 19.7 m², i.e. 1.97 m² per detainee.
From 7 January 2000 until 12 January 2000 he was held in the cell no. 37 which had 4 inmates, including the applicant. The cell's capacity was 7.68 m², i.e. 1.92 m² per detainee.
From 12 January 2000 until 3 March 2000 the applicant was held in the cell no. 34 which accommodated 2 inmates. The capacity of the cell was 7.9 m², i.e. 3.95 m² per inmate.
The cells had toilets separated by 1.2 metres-high partitions. The cells also had windows, and the ventilation and lighting were adequate. Inmates were allowed to smoke, but persons could apply to the prison administration to be transferred to a no-smoking cell upon request. In 1997 the sanitation facilities were renovated. In 1998 a new heating system was installed. After the renovation in 1999-2000 of the prison bath, possibilities were afforded for each detainee to use the bath once a week. In 2000 industrial laundry facilities were procured, therefore allowing for adequate washing of inmates' clothes and bedding.
24. The applicant alleged that his letters to the European Commission of Human Rights of 12 and 13 October 1998, and to the European Court of Human Rights of 28 March, 13 July, 26 August, 5, 8 and 17 November, 26 December 1999, 15 and 30 January, 2, 7, 9, 13, 21, 25 and 29 February, 2 and 5 March 2000 had been censored by the administration of the Šiauliai Remand Prison.
25. The applicant also alleged that the letters addressed to him by the Registry of the European Court of Human Rights of 17 November 1998, 21 April, 9 and 10 August, 8 October, 14 December 1999, 17 January 2000, 1, 21 and 23 February, 3 and 9 March 2000 had been opened up and read in his absence by the administration of the Šiauliai Remand Prison.
26. Article 21 of the Constitution prohibits inhuman and degrading treatment. Conditions of detention of remanded persons are regulated by the Detention on Remand Act 1996. Article 18 of the Act provides that conditions of detention in remand centres shall not be inhuman or degrading, and that these conditions shall correspond to the relevant requirements and norms established by the Ministry of Health and other authorities.
27. The following is the summary of the provisions of the Code of Criminal Procedure applicable at the material time in relation to detention on remand. All these provisions have now been repealed as a result of the entry into force on 1 May 2003 of the new Code of Criminal Procedure.
Article 10:
“No one shall be arrested save by virtue of a decision of a court, or an order of a judge ...”
Article 104:
“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged. ... .
The grounds for detention on remand shall be the reasoned suspicion that the accused will:
(1) abscond from the investigation and trial;
(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];
(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ...”
Article 104-1 (in force from 21 June 1996 to 24 June 1998):
“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ...
After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.”
The amended Article 104-1 (in force from 24 June 1998 until 1 May 2003) provided that the prosecutor and defence counsel must have taken part in the first judicial inquiry of the arrested person, unless the judge decided otherwise. The amended provision also permitted the court to extend the detention on remand before its expiry.
Article 106 § 3 (in force from 21 June 1996 to 24 June 1998):
“For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.”
The Code in force from 24 June 1998 to 1 May 2003 made obligatory the attendance of the detainee at the remand hearings.
Article 109-1 (in force from 21 June 1996 to 24 June 1998):
“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.
A further appeal shall be determined when examining the extension of the term of the detention on remand.”
Article 109-1 (as in force from 24 June 1998 to 1 May 2003) provided for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.
Article 226 § 6 (in force until 24 June 1998):
“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”
From 24 June 1998 to 1 May 2003 that period was no longer relevant for remand decisions.
Article 372 § 4 (in force until 1 January 1999):
“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ...”
Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. Article 104-3 § 3 as amended on 21 December 1999 specified that all decisions of detention on remand became effective and were executed on the date when they were taken, regardless of the fact that an appeal was possible against any such decision under the amended Article 109-1 (in force from 24 June 1998 to 1 May 2003, see above).
Article 250 § 1:
“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ...
(2) of the remand measure in respect of the accused ...”
Article 277:
“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”
28. Article 22 of the Constitution guarantees the right to respect for one's private life, family life and correspondence.
According to Article 15 of the Detention on Remand Act 1996 and Rule 72 of the Remand Prisons Internal Rules 1996, which were applicable at the material time, remanded persons' letters could be subject to censorship.
Rule 75 of the Remand Prisons Internal Rules provides that the remand centre administration cannot open letters of detainees addressed to the European Court of Human Rights if those letters were given to the administration to be sent in a closed envelope.
Rule 83 provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within three days following receipt of the letter addressed to the detainee. Therefore, as a rule, all letters received by the detainees are not given to them and are kept in their files by the remand centre administration.
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-85354
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PLAZONIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1936 and lives in Koška.
5. On 8 October 1996 the applicant brought a civil action against a certain artisan B.P. in the Pula Municipal Court (Općinski sud u Puli) seeking payment.
6. The court held hearings on 12 November (in the applicant's absence) and 19 December 1997, 28 January 1998, 3 September and 4 October 1999, 3 February, 3 March and 5 December 2000 and 9 January and 7 May 2001.
7. The hearings scheduled for 15 July 1998 and 16 November 1999 were adjourned on the applicant's request. Those scheduled for 14 December 1999 and 14 March 2001 were also adjourned.
8. The hearing scheduled for 31 October 2000 was adjourned since the parties attempted to reach an in-court settlement (sudska nagodba).
9. At the hearing held on 7 May 2001 the Municipal Court gave judgment accepting the applicant's claim in part. The respondent appealed on 24 December 2001 and on 1 February 2002 his appeal was together with the case-file forwarded to the Pula County Court (Županijski sud u Puli).
10. On 13 October 2003 the Pula County Court quashed the first-instance judgment and remitted the case.
11. In the resumed proceedings, the Pula Municipal Court held hearings on 2 March and 22 November 2004 and 21 February 2005.
12. At the hearing held on 7 March 2005 the court gave new judgment accepting the applicant's claim in part.
13. On 16 January 2006 the Pula County Court dismissed the respondent's appeal and upheld the first-instance judgment.
14. On 24 March 2006 the applicant applied to the Pula Municipal Court for enforcement of the above judgment by garnishment of funds from the debtor's bank accounts. On 29 March 2006 the court issued a writ of execution (rješenje o ovrsi) garnishing temporarily the funds on all debtor's bank accounts. After having received the relevant information from the banks, on 9 May 2006 the court invited the applicant to specify, within eight days, from which savings account the funds should be seized. Since the applicant did not do so within the prescribed period, on 3 July 2006 the court issued a decision discontinuing the enforcement proceedings. The decision became final on 16 July 2006.
15. Meanwhile, on 7 June 2006 the applicant instituted new enforcement proceedings before the same court seeking execution of the same judgment. However, in these proceedings he sought to satisfy his claim, alternatively, by garnishment of funds from the debtor's bank account or by seizure and sale of his movable property. On 9 June 2006 the court issued a writ of execution. On 27 November 2006 the court scheduled the intervention of the bailiff (sudski ovršitelj) for 17 January 2007. A day before the intervention the applicant asked for postponement of enforcement. The request was granted and the enforcement postponed until 8 May 2007. Afterwards the court continued the proceedings and on 15 June 2007 served the writ of execution to the debtor's bank with a view to seizing the funds and transferring them to the applicant's account. Following the applicant's request of 19 July 2007 to continue with the seizure of the debtor's movables, the court scheduled the bailiff's intervention for 19 November 2007. The bailiff effected the in situ inspection as scheduled but found no movable property susceptible to seizure.
It appears that the proceedings are still pending.
16. On 30 December 1996 the applicant brought a civil action against his former employer the company P. in the Pula Municipal Court seeking payment of salary arrears.
17. Following a change in legislation governing territorial jurisdiction in October 1997, on 14 May 1998 the case was transferred to the Pazin Municipal Court (Općinski sud u Pazinu).
18. The court held hearings on 4 April, 4 and 20 May and 14 September 1999. The hearings scheduled for 4 March and 24 August 1999 were postponed because the applicant had not received the summons whereas the one scheduled for 7 October 1999 was postponed at his request. The hearing scheduled for 2 November 1999 was postponed because the summoned witness failed to attend.
19. As the applicant did not attend two successive hearings held on 2 December 1999 and 2 May 2000, the court issued a decision declaring that his action was considered withdrawn. The applicant then filed a request for restoring the proceedings to the status quo ante (prijedlog za povrat u prijašnje stanje), which the court granted on 20 June 2000.
20. At the hearing held on 26 September 2000 the Pazin Municipal Court adopted a judgment ruling in part for the applicant.
21. On appeal, on 16 September 2002 the Pula County Court quashed the first-instance decision and remitted the case.
22. In the resumed proceedings, the Pazin Municipal Court held hearings on 23 December 2002 and 24 January 2003.
23. On the last-mentioned date, the Municipal Court again gave judgment ruling for the applicant in part. In the absence of appeals, the judgment became final and enforceable shortly afterwards.
24. In January 2003 the applicant applied for enforcement. The enforcement was completed on 4 March 2003 by garnishment of funds from the debtor company's bank account.
25. On 21 May 1997 the applicant brought a civil action against the company L. in the Pula Municipal Court seeking payment. As the Pula Municipal Court had no territorial jurisdiction, on 8 October 1997 the case was transferred to Rijeka Municipal Court (Općinski sud u Rijeci).
26. The first hearing was held on 18 June 1998. As neither party attended the hearing scheduled for 12 July 1999, the court temporarily suspended the proceedings (mirovanje postupka) for a period of three months.
27. On 26 October 1999 the applicant requested the court to resume the proceedings.
28. The court held hearings on 19 April, 5 July, 9 October and 12 December 2001 as well as on 5 June, 17 September and 13 November 2002.
29. At the hearing held on 23 January 2003 the court gave judgment for the applicant.
30. On 20 October 2004 the Rijeka County Court (Županijski sud u Rijeci) dismissed the respondent's appeal and upheld the first-instance judgment.
31. On 25 May 2005 the applicant applied to the Rijeka Municipal Court for enforcement of the above judgment. On 21 July 2005 the court issued a writ of execution by garnishment of funds from the debtor company's bank account. The writ was served on the debtor company's bank on 11 October 2005.
32. On 28 March 2006 the applicant requested the court to continue the enforcement by seizure and sale of the debtor company's movable property in satisfaction of his claim. On 18 April 2006 the court accepted the applicant's request and issued new writ of execution.
33. On 6 July 2006 the bailiff effected an in situ inspection at the address provided by the applicant only to find that the debtor company was no longer doing business at that address. Accordingly, on 6 July 2006 the court issued an instruction inviting the applicant to submit another address within the following three months in the absence of which it would discontinue the enforcement proceedings. The instruction was served on the applicant on 18 October 2006.
34. On 15 January 2007 the applicant requested the court to summon the debtor company's director with a view to disclosing the company's assets (prokazni popis imovine). The court granted the request and scheduled a hearing for 25 April 2007, which the summoned director failed to attend. After the director had failed to appear at the next hearing scheduled for 13 July 2007, the court requested the police authorities to inquire about his address. The next hearing was scheduled for 6 November 2007.
It appears that the proceedings are still pending.
35. On 3 June 1996 the competent tax authority issued a decision ordering the applicant to pay 19,427 Croatian kunas of taxes.
36. On 27 March 1997 the Ministry of Finance (Ministarstvo financija) upheld the first-instance decision. The applicant subsequently brought an administrative action.
37. On 2 March 2000 the Administrative Court (Upravni sud Republike Hrvatske) quashed the decision of 27 March 1997 and remitted the case.
38. In the resumed proceedings, on 23 October 2000 the competent tax authority issued a new decision ordering the applicant to pay a lower amount of taxes.
39. The applicant claimed that he had paid the requested sum, but that the tax authority had nevertheless continued sending him warning letters and had refused to unblock his bank account.
40. Meanwhile, on 4 December 2002 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the first and the second set of the above proceedings. On 3 May 2004 he lodged a second constitutional complaint complaining about the length of the third set of proceedings.
41. On 23 December 2004 the Constitutional Court dismissed the applicant's first complaint in respect of the first set of proceedings. Having regard in particular to the applicant's conduct (who failed to attend one hearing and asked for adjournment of another two hearings), it held that the first proceedings had not exceeded a reasonable time.
42. However, it would appear that the Constitutional Court is still examining the applicant's first complaint in respect of the second set of proceedings.
43. On 7 April 2005 the Constitutional Court also dismissed the applicant's second constitutional complaint. Taking into account particularly the applicant's conduct (who brought his action in the first-instance court having no territorial jurisdiction), it held that the length of the proceedings complained of had not been excessive.
44. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 6


ITEMID: 001-80382
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GÜLŞEN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicants were born in 1927, 1947, 1952, 1965 and 1950 respectively and live in Kocaeli and Istanbul.
5. In 1996 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel Idare Müdürlüğü) expropriated plots of land belonging to the applicants. A committee of experts assessed the value of the plots and the relevant amount was paid to the applicants.
6. Following the applicants' request for increased compensation, on 9 October and 16 October 1998 the Gebze Civil Court of First Instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court's decision in respect of each of the applicants.
7. On 3 May, 21 June, 22 June, and 25 October 1999 the Court of Cassation upheld the Gebze Civil Court of First Instance's judgments in respect of Aziz Yıldırım, Aykut Kocaman, Kamil Dağlı and Ahmet Güzel, Bedaettin Bahattin Gülşen, Hüsnü Aksoy and Sinan Erbil, respectively.
8. By decisions of 30 June 1999, 1 July 1999, 10 September 1999, 25 October 1999 and 26 October 1999, the Court of Cassation rejected the applicants' requests for the rectification of its decisions.
9. On 23 March 2000, 22 January and 24 January 2001 the Kocaeli Provincial Private Administration paid the amounts due to Kamil Dağlı and Ahmet Güzel, Bedaettin Bahattin Gülşen1, Sinan Erbil, Hüsnü Aksoy, Aykut Kocaman and Aziz Yıldırım respectively. Details are indicated in the table below:
10. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-83957
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DAĞTEKİN AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicants were born in 1960, 1955, 1948, 1942 and 1958 respectively and live in Şanlıurfa.
5. On 22 November 1984 Law no. 3083 came into force. Article 5 of this law provided the possibility of leasing State land to farmers who were in need and who fulfilled certain eligibility criteria (“right holders”). In particular, Article 24 § 1 of Law no. 3083 provided that those who had been convicted of certain offences were not entitled to benefit from this law (see paragraph 16 below).
6. Following the promulgation of Law no. 3083, the applicants applied to the Commission that was responsible for the determination of farmers who were eligible to be right holders under the Law in question and requested to be provided with land in Ceylanpınar in the south-east of Turkey. They were subsequently identified as right holders and leased land from the Directorate General for Agricultural Reform (Tarım Reformu Genel Müdürlüğü) (“the Directorate General”) for an indefinite period on payment of a rent. The applicants earned their living by cultivating these fields.
7. On 25 March 1997, after conducting a “security investigation”, the Directorate General annulled the right holder status of the applicants.
8. On 2 May 1997 the applicants lodged separate cases with the Gaziantep Administrative Court and requested that the decision of 25 March 1997 be annulled. They maintained that they had paid their rent periodically until 1997. They also contended that there was no valid reason to terminate their lease contract. They maintained in this connection that although criminal proceedings had been initiated against them in the eighties for being members of an illegal organisation, namely the PKK (the Kurdistan Workers' Party), they had all been acquitted of the charges against them.
9. On 29 May 1997 the Gaziantep Administrative Court requested the Directorate General to submit the documents in respect of the decision dated 25 March 1997.
10. On 5 September 1997 the Gaziantep Administrative Court ordered the Directorate General once again to submit further information and the documents in relation to the security considerations of the administration.
11. On 4 November 1997 the Directorate General replied that the Minister of Agriculture had refrained from submitting these documents as they concerned the security of the State. In this respect, they relied on Article 20 § 3 of the Law on Administrative Procedure. The observations of the Directorate General were communicated to the applicants on 13 October 1997, 10 December 1997, 15 December 1997 and 19 December 1997 respectively. According to the Government, the applicants did not submit any observations in reply.
12. On 24 February 1998 the Gaziantep Administrative Court dismissed the applicants' cases. The court held that the decision dated 25 March 1997 which annulled the applicants' right holder status and the refusal of the Directorate General to submit the relevant documents had been in accordance with the domestic legislation. A member of the Gaziantep Administrative Court dissented from the judgments of the court, arguing that the administrative authorities had failed to demonstrate the reason for the annulment of the right holder status of the applicants.
13. The applicants appealed.
14. On 10 November 2000, 14 September 2000, 26 October 2000, 10 November 2000 and 16 November 2000 respectively the Supreme Administrative Court upheld the judgments of the Gaziantep Administrative Court.
15. The first applicant was notified of the decision of the Supreme Administrative Court on 25 January 2001, the second applicant on 1 November 2000, and the remaining applicants on 22 December 2000.
16. According to Article 24 § 1 of Law no. 3083, persons who are convicted of the offences defined in the first Section of the second Part of the Criminal Code and in Articles 312 § 2, 536 and 537 of the Criminal Code cannot benefit from the distribution of land. Article 24 § 2 of the same Law provides that land shall be taken back, had the right holder been convicted of one of the offences mentioned in the first paragraph subsequent to the acquisition of land.
Article 38 § 3 of the Regulations on the Application of Law no. 3083 provides that, in view of the particularities and security of a region and subsequent to obtaining the opinion of the security institutions, the Directorate General is authorised to make amendments in the right holders list prepared by the Commission.
Article 20 § 3 of the Law on Administrative Procedure provides that the Prime Minister or a Minister may refrain from submitting information or documents to an administrative court if the information or documents in question pertain to the security or vital interests of the State.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67243
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HENWORTH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 7. The applicant is currently serving a sentence of life imprisonment in HM Prison Long Lartin.
8. On 15 June 1995, Patrick 'Nobby' Clarke was murdered in the flat he had shared with the applicant for the preceding eighteen months. He had been clubbed over the head with what was probably a hammerhead in a sock and possibly another weapon. The applicant was arrested and charged with murder on 16 June 1995.
9. On 10 July 1996, the applicant was tried for the murder of Mr Clarke, the issue for the jury being whether it was the applicant who was responsible for the murder. He was convicted on 26 July 1996 and on 26 September 1996 appealed against the conviction. On 26 February 1998, the conviction was quashed by the Court of Appeal on the basis that the judge had misdirected the jury. A retrial was ordered which took place between 20 July and 5 August 1998, when the jury was unable to reach a verdict and was discharged.
10. The Crown elected to proceed with a second retrial which began on 22 July 1999. At the outset counsel had unsuccessfully submitted that it was oppressive and an abuse of process to try the applicant again, after two unsuccessful trials. During the trial the applicant dispensed with the services of his counsel and solicitor and proceeded to defend himself, with assistance from a new solicitor. There came a point where he no longer felt able to do so and requested an adjournment. On 2 August 1999, the jury was duly discharged, and a further retrial began on 13 September 1999. The applicant did not give evidence at that trial. On 21 September 1999, he was convicted, by a majority of 10 to 2, and was sentenced to life imprisonment.
11. At each of the trials the Crown's case was essentially the same, except that a witness called Crittenden, to whom the applicant allegedly made a confession whilst they shared a prison cell, was not relied upon after the first trial, the Crown being of the view that they were not able to present him as a witness of truth. In addition, from the 84 prosecution witnesses called to give evidence at the first trial, only 33 were later called.
12. On 29 October 1999, the applicant appealed against the conviction. He argued inter alia that the second retrial (in July 1999) was an abuse of process, in that it flouted the convention in English law that if the prosecution has failed to secure a conviction on two occasions it does not then seek a further trial. Although the circumstances were different from those usually relied upon (namely the failure of the jury to reach a verdict on two occasions), it was argued on the applicant's behalf that the first conviction was found not to be safe and so could not be relied upon and on the second occasion the jury could not agree. The discharge of the jury in July 1998 should have been the end of the matter.
13. On 19 January 2001, the Court of Appeal found that there was no reason to conclude that the practice was applicable in the particular circumstances of the applicant's case. The court noted that there was a practice but not a rule of law for the prosecution not to offer evidence where two juries have disagreed and found no general principle existed barring further retrial where the prosecution had failed twice to secure a conviction. It said:
“25. ...Where a serious crime has been committed and it is shown that there is a case to answer as far as a defendant is concerned, there is a clear public interest in having a jury decide positively one way or another, whether that case is established.
26. Having said that, we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the seriousness of the offence or offences under consideration; and fourthly, possibly, the extent to which the case now to be met has changed from that which was considered in previous trials.
27. Here the prosecution case did change in that reliance ceased to be placed on the evidence of a man called Crittenden, a prisoner who had given evidence in the first trial as to what had allegedly been said by the [applicant]. But the changes in the prosecution case cannot, in our judgment, have rendered it impossible for the [applicant] to have a fair trial. The reality was he no longer had to face evidence which was adduced in the previous trial as to what he himself had said when attempting to deal with the evidence of Crittenden. ...
29. ... For the reasons we have given we are satisfied that the abuse of process argument was rightly rejected here.”
14. The Court of Appeal refused leave to appeal to the House of Lords, but certified two questions of law of general public importance, namely,
“1. Whether a defendant having been tried twice without a safe verdict being returned it is oppressive to try him a third time and hence an abuse of the court's process.
2. Whether it is oppressive for the Crown to depart from its established practice of not trying a defendant for a third time, absent compelling fresh evidence or conduct by the defendant causing the retrials.”
15. On 17 June 2001, the House of Lords refused the petition for leave.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107998
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF STANCIULESCU v. ROMANIA (N° 2)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Marin Stănciulescu, is a Romanian national who was born in 1952 and lives in Piteşti.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant worked as a legal advisor to a private company, T. On 7 December 2001 his employer terminated his work contract on disciplinary grounds. Before being signed by the general director, the dismissal decision was also endorsed by another legal advisor, namely M.N.
4. The applicant lodged a judicial complaint against the dismissal decision, which he eventually won. During these proceedings, his former employer was represented by M.N.
5. When the applicant found out that M.N. had acquired a criminal conviction in 1996 for taking bribes while she was working as a public servant, he started bringing up this issue on every available occasion, mainly by making handwritten additions to various documents, such as his employer’s register of visitors, copies of the decision to terminate his employment contract, and so on, in which he wrote “no convicted persons”, “convicted of taking bribes”, “practising corruption”, “unworthy convict” and other similar remarks. In the various submissions made by him in the proceedings against his employer, he constantly referred to M.N. in terms which included “notorious accused”, “notorious criminal”, “convicted of taking bribes”, “deported by citizens for corruption”, “not knowing anything”, “citizen of doubtful morality”.
6. On 1 October 2003, M.N. lodged a criminal complaint against the applicant for defamation, also submitting a civil claim for compensation for non-pecuniary damage. The case was referred to the Piteşti District Court.
7. In his defence, the applicant argued that his employment contract had been unlawfully terminated by the plaintiff and that he had been forced to go to trial against a person not holding a law degree. He further submitted that he had a legitimate interest in referring to M.N. in this way and that in any event he could prove that the statements he made were true.
8. In a first-instance judgment of 24 June 2004, the Piteşti District Court found the applicant guilty of defamation and fined him 10,000,000 Romanian lei (ROL), approximately 246 euros (EUR). He was also ordered to pay M.N. ROL 25,000,000, approximately EUR 615, in compensation for non-pecuniary damage. The district court indicated that it was applying the minimum sentence for defamation to the applicant, considering that this sentence represented a sufficient warning for him to cease making such remarks about the plaintiff.
9. The district court found that the applicant had transferred the work litigation to a personal level and attempted to discredit M.N. on every available occasion. It looked at the various documents submitted by the parties, in which he made the references to M.N. It also noted that in the proceedings before it the applicant continued to use the same expressions and words about M.N.
10. As regards the applicant’s claims that he had provided proof that the statements were true, the district court noted that the applicant had failed to show what was the legitimate interest in obsessively repeating the statements, his only purpose being to cause distress to M.N every time they met: at her workplace, in court, in the street and even when she was with her family.
11. The applicant lodged an appeal, arguing that his statements were true and that M.N. by her own conduct had subjected herself to public contempt. The appeal was assigned to Hunedoara County Court. In a hearing of 22 November 2005, the applicant raised a constitutional challenge to Articles 206 and 207 of the Romanian Criminal Code (CC). The county court postponed its ruling on whether to refer the case to the Constitutional Court to 20 December 2005.
12. The Hunedoara County Court, in a decision of 20 December 2005 (drafted on 31 January 2006) dismissed his appeal. The county court concluded that the facts were correctly determined by the district court and that his argument that his statements were true was not valid, taking into account that he failed to show a legitimate interest in making those statements. It also took note that the applicant continued to make the same remarks about M.N. even when in court for the review of the criminal case against him.
13. Article 206 of the CC, as in force at the time of events, was worded as follows:
“Anyone who makes any statement or allegation in public, by any means, concerning a particular person, which if true would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public contempt shall be liable to shall be imprisonment for between three months and three years or to the payment of a fine ....”
14. Article 207 of the CC read as follows:
“Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.”
15. The Constitutional Court, in a decision of 7 February 2002, dismissed a plea of unconstitutionality of Articles 205-207 of the CC. In so ruling, it decided that the possibility of providing evidence that the impugned statements or allegations were true represented a special circumstance for removing criminal liability. It concluded that subjecting this test of truth to the condition that the statements or allegations were made with a legitimate interest was perfectly consistent with the Romanian Constitution, which provided in its Article 30 § 6 that freedom of expression shall not cause prejudice to the dignity, honour and private life of a person.
16. Section 11 § 3 of Law no 47/1992 on the Organisation and Functioning of the Constitutional Court (“the Constitutional Court Act”) provides that decisions delivered by the Constitutional Court are generally binding and effective for the future.


ITEMID: 001-58853
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GRAUSLYS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1 with regard to the intitial period;No violation of Art. 5-1 with regard to the subsequent period;No violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant, the commercial director of a private company (“the company”), was suspected of fraud. On 4 October 1995 a criminal case was instituted against him.
9. The applicant was arrested on 25 March 1996. His detention on remand was authorised by a prosecutor on 26 March 1996.
10. On 1 April 1996 the applicant was charged with suppressing documents. On 16 May 1996 the applicant was charged with unlawfully obtaining the property of another.
11. On 24 May 1996, by the authorisation of the Deputy Prosecutor General, the term of the applicant’s detention on remand was extended to 30 July 1996.
12. The Klaipėda District Court extended the term of the applicant’s detention on remand twice: on 24 July 1996 to 25 August 1996 and on 19 August 1996 to 25 September 1996. On 23 September 1996 the Klaipėda Regional Court extended the term of the applicant’s detention on remand to 9 October 1996.
13. The pre-trial investigation in the case was concluded on 27 September 1996. The applicant had access to the case-file from 3 to 31 October 1996, while the other three co-accused were given access from 27 September to 7 November 1996.
14. In a communication of 27 September 1996, the prosecution informed the prison administration that the pre-trial investigation had been concluded and access to the case-file had commenced.
15. On 30 October 1996 the applicant applied to the prosecution for bail, contesting the lawfulness of his detention after 9 October 1996. On 8 November 1996 a prosecutor informed the applicant that there were no reasons to vary the remand. The prosecutor stated inter alia, “the access by the accused and their counsel to the case-file was completed on 7 November 1996. On 8 November 1996 the criminal case was transmitted for the confirmation of the bill of indictment. The validity of the term of the applicant’s detention was not breached”. No remand decision was taken.
16. On 12 November 1996 a prosecutor informed the prison administration that access to the case-file had been completed on 7 November 1996, and that the case had been transmitted to the Klaipėda Chief Regional Prosecutor to confirm the bill of indictment. On the same date a prosecutor informed the prison administration that the bill of indictment had been confirmed, and that the case had been transmitted to the Klaipėda Regional Court. No remand decision was taken.
17. On 19 November 1996 the Klaipėda Regional Court forwarded the case to the Kretinga District Court. No formal decision on the applicant’s detention was taken. On the same date the applicant applied to the Minister of Justice, claiming that his detention had been unlawful since 9 October 1996.
18. On 4 December 1996 the applicant applied to the Kretinga District Court for bail. On 5 December 1996 a judge of the Klaipėda District Court committed the applicant to trial. In his decision the judge also decided that the applicant’s “remand shall remain unchanged”. The decision did not refer to other aspects regarding the lawfulness of the applicant’s detention. The judge also set 13 January 1997 as the date of the first trial hearing.
19. The hearing took place on 13 January 1997. On the same date the applicant again applied for bail.
20. On 15 January 1997 the judge of the Kretinga District Court, in the presence of the applicant’s counsel, ordered further investigations in the case. The judge noted inter alia that the prosecution had alleged that financial damage to the company and its shareholders had been caused by the applicant and the co-accused. However, no victims had been established and questioned. In addition, the company’s audit had not been properly carried out. The judge held that the trial could not continue until these procedural requirements were met.
21. By the same decision the judge also dismissed the applicant’s request for bail and extended the term of his detention on remand for three months. The dangers of the applicant absconding and “obstructing the establishment of the truth” in the case were mentioned as reasons for this decision. The judge did not mention the applicant’s allegations about the unlawfulness of his detention since 9 October 1996.
22. On the same date the applicant appealed to the Klaipėda Regional Court, claiming that he had been unlawfully kept in detention after 9 October 1996. On 20 January 1997 the applicant lodged with the Klaipėda Regional Court a further appeal against the decisions of the Kretinga District Court of 5 December 1996 and 15 January 1997. He stated inter alia that Article 5 of the Convention had been breached to his detriment.
23. On 28 January 1997 the applicant submitted a complaint to the Ombudsman, alleging that the term of his detention had expired on 9 October 1996, and that thereafter the prison administration had kept him in custody unlawfully.
24. On 17 February 1997 the Klaipėda Regional Court held an appeal hearing in the presence of the applicant’s counsel. The Regional Court dismissed the appeal insofar as it concerned “the substance of the decision of the Kretinga District Court of 15 January 1997”, pursuant to Article 372 § 4 of the Code of Criminal Procedure as then in force. No aspects concerning the alleged unlawfulness of the applicant’s detention were mentioned in the appellate decision. The Regional Court nonetheless ordered the applicant’s release on bail, without giving reasons. He was immediately released from prison.
25. On 20 February 1997 the Ombudsman drew the attention of the Minister of Interior and the prison authorities to the fact that from 7 November to 5 December 1996 the applicant had been remanded in custody in breach of Article 5 § 1 (c) of the Convention.
26. On 23 June 1997 the additional investigation was concluded. On 17 July 1997 the case was again transmitted to the Kretinga District Court. On 21 July 1997 a judge of the Kretinga District Court committed the applicant to trial.
27. On 6 October 1997 the judge again decided to order further investigations. He noted that the investigating authorities had breached domestic criminal procedure in its conduct of the pre-trial investigation and the collection of additional evidence. The judge held inter alia that the company’s audit had been defective and that the prosecution had not established or questioned victims in connection with the damage suffered by the company.
28. Upon the prosecution’s appeal against the above decision, on 17 November 1997 the Klaipėda Regional Court quashed the decision of 6 October 1997. The Regional Court held that no breaches of domestic criminal procedure had been specified by the District Court, which might warrant the collection of additional evidence. The appellate court stated inter alia that the District Court could itself establish and summon victims in connection with the company’s losses, without returning the case back to the prosecution for further investigations.
29. On 17 December 1997 a judge of the Kretinga District Court joined the case against the applicant and the three co-accused with a case against another defendant. The judge withdrew from the case on the ground inter alia that he had taken decisions on the applicant’s detention on 5 December 1996 and 15 January 1997.
30. On an unspecified date, jurisdiction was transferred from the Kretinga District Court to the Skuodas District Court. On 2 April 1998 a judge of the Skuodas District Court committed the applicant to trial. On 12 June 1998 the judge adjourned the case until 12 September 1998 and ordered further investigations, particularly on the ground that the company’s audit had been defective. In this respect, the court requested the Ministry of Finance to carry out a fresh audit.
31. On an unspecified date, the applicant’s trial was resumed. To date no first instance judgment has been pronounced.
<Translations are given>
32. Relevant provisions of the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija):
Article 20 § 3:
“A person arrested when committing an offence must, within 48 hours, be brought to court for the purpose of determining, in the presence of the detainee, whether detention is appropriate. If the court does not order the detention of the arrested person, he shall be released immediately.”
Article 30 § 1:
“A person whose constitutional rights or freedoms are violated shall have the right to apply to court.”
33. Relevant provisions of the previous Code of Criminal Procedure (Baudžiamojo proceso kodeksas):
Article 10 (in force until 21 June 1996):
“No one shall be arrested save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor … .”
Since 21 June 1996 arrest may only be ordered by a court or judge.
Article 104 (under the law No. I-551 of 19 July 1994, in force until 21 June 1996):
“Detention as a remand measure shall be used only where based on the decision of a court, order of a judge, or the authorisation of a prosecutor in cases where a statutory penalty of at least one year of imprisonment is envisaged … .
In cases pertaining to offences provided in Articles … 105 [murder in aggravating circumstances] … of the Criminal Code, detention as a remand measure may be used on the ground of the gravity of the offence alone. … .
In deciding whether to authorise the detention, a prosecutor … shall personally hear the suspect or defendant when necessary ... .”
Article 104-1 (in force from 21 June 1996 to 24 June 1998):

“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. …
After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.”
The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry.
Article 106 § 3 (in force from 21 June 1996 to 24 June 1998):
“For the purpose of extending the term of detention on remand [at the stage of pre-trial investigation] a judge must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.”
The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.
Article 109-1 (in force from 21 June 1996 to 24 June 1998):
“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.
A further appeal shall be determined when examining the extension of the term of the detention on remand.”
The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing in the presence of the detainee and his counsel, or only his counsel.
Article 226 § 6 (in force until 24 June 1998):
“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”
Since 24 June 1998 this period is no longer relevant for remand decisions.
Article 372 § 4 (in force until 1 January 1999):
“Decisions of courts … ordering, varying or revoking a remand measure … cannot be the subject of appeal … .”
34. Other relevant provisions of the present Code of Criminal Procedure:
Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”
Article 249 § 1:
“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ...
11) whether the remand measure has been selected appropriately.”
Article 250 § 1:
“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ...
2) of the remand measure in respect of the accused ... .”
Article 267 § 1:
“The defendant has the right to ... 3) submit requests; ...
11) appeal against the judgment and decisions of a court.”
Article 277:
“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”
35. The law amending and supplementing the Code of Criminal Procedure (Baudžiamojo proceso kodekso pakeitimų ir papildymų įstatymas) of 21 June 1996 stated that detention authorised by a prosecutor prior to 21 June 1996 could thereafter be extended by a court in accordance with the new procedure governing remand in custody.
III. LITHUANIAN RESERVATION
36. The Lithuanian reservation to Article 5 § 3 of the Convention was in force until 21 June 1996 and provided as follows:
“The provisions of Article 5, paragraph 3, of the Convention shall not affect the operation of Article 104 of the Code of Criminal Procedure of the Republic of Lithuania (amended version No. I-551, July 19 1994) which provides that a decision to detain in custody any persons suspected of having committed a crime may also, by decision of a prosecutor, be so detained. This reservation shall be effective for one year after the Convention comes into force in respect of the Republic of Lithuania.”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-92215
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF HANZEVACKI v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-c;Remainder inadmissible;Non-pecuniary damage - finding of a violation sufficient
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1968 and lives in Daruvar.
5. On 11 December 2002 the Daruvar State Attorney’s Office (Općinsko državno odvjetništvo u Daruvaru) filed a bill of indictment against the applicant in the Daruvar Municipal Court (Općinksi sud u Daruvaru) charging him with violation of copyrights in that he had used various items of computer software without the consent of the holders of the relevant licence. In the proceedings the applicant was represented by legal counsel of his own choosing. At a hearing held on 10 March 2003 the applicant gave his evidence. At a hearing held on 28 April 2003 the Municipal Court heard evidence from the witnesses nominated by the defence and gave a judgment acquitting the applicant of all charges. However, this judgment was quashed on 10 July 2003 by the Daruvar County Court, upon an appeal lodged by the prosecution.
6. In the resumed proceedings before the Daruvar Municipal Court an expert opinion was obtained. At the first hearing held on 6 October 2003 the applicant again gave his evidence, in the presence of his chosen counsel. The next hearing, scheduled for 29 December 2003, was adjourned on a request by the applicant’s counsel who explained, in a submission filed on 24 December 2003, that he had already planned a journey on that date. The hearing scheduled for 4 February 2004 was adjourned on account of the illness of the presiding judge.
7. According to the applicant, before a hearing scheduled for 9 March 2004 his counsel contacted the Municipal Court by telephone and asked for an adjournment on account of his sudden illness.
8. At the beginning of the hearing the applicant asked that the hearing be adjourned and informed the court that he did not wish to defend himself in the absence of his counsel. The presiding judge, however, decided to hold the hearing. A counsel for the prosecution was also absent. The applicant, who had already given evidence at the previous hearings, gave additional evidence. The applicant’s request that further witnesses be heard was dismissed. The applicant then gave his closing arguments. The hearing was concluded and a judgment was pronounced. The applicant was found guilty of using various items of computer software without the consent of the holder of the relevant licence. He was given a suspended sentence of three months’ imprisonment with a one-year probation period.
9. In an appeal lodged on 21 April 2004 the applicant complained, inter alia, that the hearing of 9 March 2004 had been held in the absence of his counsel although there had been a good reason for the latter’s absence. He asserted that on the morning of 9 March 2004 his counsel had contacted the Daruvar Municipal Court by telephone. His call had been answered by an usher and the counsel had asked to speak to the presiding judge. However, the judge had not answered the call. Therefore, the counsel had asked the usher, M.R., to inform the presiding judge about his inability to attend the hearing owing to his sudden illness. The usher had done so. The counsel’s request that the hearing be adjourned on account of his sudden illness had not been noted in the minutes of the hearing. The applicant enclosed a medical certificate for his counsel, of 8 March 2004, indicating that he had been given sick leave as of that date.
10. On 24 June 2004 the Bjelovar County Court (Županijski sud u Bjelovaru) upheld the first-instance judgment. It found that the presence of the applicant’s counsel at the hearing held on 9 March 2004 had not been necessary. The relevant part of the appellate judgment reads as follows:
“The ground for appeal raised by the defendant that the first-instance court had made a grave breach of the rules of the Code of Criminal Procedure, Article 367(3), when it held a hearing in the absence of the defendant’s counsel, this court finds unfounded. The facts established in the minutes of the hearing held on 9 March 2004 lead to the conclusion that, although the defendant requested the adjournment of the hearing on account of the justified absence of his counsel, the first-instance court assessed that the counsel’s absence was not detrimental to the defence and therefore held a hearing and on the same day adopted a first-instance judgment. The conduct of the first-instance court has to be viewed in the light of a [possible] violation of the defence rights and an assessment of its effect on the judgment adopted [by the first-instance court] has to be made. The new facts presented by the defendant at that hearing, on account of which he asked for an adjournment claiming that his counsel was in possession of fresh evidence in connection with the purchase and the price of the “Autocad” software, could not have been of decisive importance for the crime [at issue] as such. That is because the [first-instance] court found the defendant guilty of the principal criminal offence under Article 230(1) of the Criminal Code in respect of which it is not relevant whether it resulted in significant financial gain or significant damage. Exactly for that reason the absence of the defence counsel at the hearing could not have been of influence for the adoption of the impugned judgment and its legality.”
11. The applicant’s subsequent constitutional complaint was dismissed on 28 September 2006 by the Constitutional Court (Ustavni sud Republike Hrvatske) as being ill-founded.
12. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:
“(1) The defendant has the right to defend himself or herself in person or through a legal counsel of his or her own choosing among the members of the Bar ...
...”
“After the evidence has been heard the president of the chamber shall allow the parties, the victim and defence counsel to present their closing arguments ...”
“(1) Defence counsel or the defendant personally shall present in their closing arguments the [main points of] the defence and may reply to the arguments of the [prosecution] and the victim.
...”
13. Pursuant to Article 430 of the Code of Criminal Procedure, where the defendant requests an amendment of a final judgment following a finding of a violation of, inter alia, the right to a fair trial, by the European Court of Human Rights, the rules governing a retrial shall apply.
14. Article 230(1) of the Criminal Code (Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003 and 105/2004) proscribes the criminal offence of unauthorised use of an authorship, carrying a punishment of a fine or imprisonment for a term not exceeding three years.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-97017
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KULAGA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Ms Janina and Mr Ryszard Kułaga, are Polish nationals who were born in 1927 and 1956 respectively and both live in Tuczępy. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 June 1998 a certain A. P. applied for permission to build a shed for his agricultural tools on his farm.
Earlier, on 7 September 1996 the Tuczępy Village Mayor had given planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu) for A. P.’s land. In accordance with a local master plan (miejscowy plan zagospodarowania przestrzennego) the permit provided for a shed to be built.
On 6 July 1998 the Tuczępy Village Mayor informed the applicants that he had instituted the proceedings.
On 9 July 1998 the applicants raised an objection against the proceedings.
On 24 July 1998 the Tuczępy Village Mayor informed the parties that he had obtained the evidentiary material in the case.
On 3 August 1998 the applicants raised an objection against the proceedings.
On 31 December 1998 the Tuczępy Village Mayor gave permission for the construction.
On 19 January 1999 the applicants appealed, alleging that as A. P.’s farm bordered theirs, the shed would inevitably block their access to a road. They requested to have the decision of 31 December 1998 declared null and void.
On 22 April 1999 the Świętokrzyski Regional Office (urząd wojewódzki) quashed the decision and remitted the case.
On 18 May 1999 A. P. filed a cassation complaint with the Supreme Administrative Court.
On 6 March 2003 A. P.’s complaint was admitted for examination. The court ruled that the case should be remitted to the first-instance authority for reconsideration.
On 4 February 2004 the applicants lodged a complaint under Article 37 § 1 of the Code of Administrative Procedure, alleging inactivity on the part of the administrative authorities and that they had not had their case examined within the prescribed time-limits.
On 26 February 2004 the Świętokrzyski Governor (wojewoda) found the applicants’ complaint to be well-founded and fixed a one-month time-limit for the Busko District Municipality (which had taken over the functions of the Tuczępy Village Mayor) to examine their case.
On 31 March 2004 the Busko District Municipality refused to give permission for the construction.
On 24 April 2004 the applicants filed an appeal with the Świętokrzyski Governor against the decision of 31 March 2004.
On 17 May 2004 the applicants withdrew their appeal. In consequence on 26 May 2004 the Świętokrzyski Governor discontinued the appeal proceedings.
For a presentation of the relevant domestic law see the cases of Kaniewski v. Poland, no. 38049/02, 8 February 2006, and Koss v. Poland, no. 52495/99, 28 March 2006.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


ITEMID: 001-107561
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZAGORODNIY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1 and 6-3;Pecuniary and non-pecuniary damage - finding of violation sufficient
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
TEXT: 5. The applicant was born in 1962 and lives in the town of Dimitrov, Ukraine.
6. Prior to November 2000 the legal representation of defendants in criminal proceedings could be conducted only by a licensed advocate. The advocate’s rights and obligations, and the required standards of professional competence and conduct were set forth in a separate Act of Parliament (see paragraphs 39 to 42 below). Other persons, including those holding a university law degree, were excluded from providing legal representation in criminal cases.
7. On 16 November 2000 the Constitutional Court found the relevant provisions of the Code of Criminal Procedure unconstitutional and the parliament introduced relevant amendments to the Code in June 2001 (see paragraphs 37 and 38 below).
8. On 4 August 2004 the applicant was involved in a traffic accident, in which his car collided with another car. On the next day, criminal proceedings concerning the accident were instituted against the applicant.
9. On 9 November 2004 the applicant signed an agreement with Mr M. for legal representation in the above-mentioned criminal proceedings. The latter was a lawyer, who held a university degree in law and who had a private legal practice, but who was not a licensed advocate.
10. On 16 November 2004 the investigator allowed Mr M. to act as defence counsel.
11. On 5 August 2005 the Dimitrov Local Court (“the Dimitrov Court”) held a committal hearing in the case and decided to remit the case for additional investigation on the grounds that the applicant’s right to mount a defence had been breached during the pre-trial investigation. The court noted that, in accordance with Article 44 of the Code of Criminal Procedure, the right to provide legal assistance is conferred upon advocates and other legal specialists (the term used to describe degree-educated practicing lawyers who have not been called to the Bar), but the right of the latter to act as defence counsel required to be defined by a specific piece of legislation. As there was no such law authorising a legal specialist with a private practice, such as Mr M., to provide legal assistance in criminal matters, the decision of the investigator to allow such a specialist to take part in the case had been unlawful and therefore the applicant’s right to mount a defence had been violated. The court ordered additional investigation with the participation of an advocate.
12. On 10 August 2005 the applicant appealed against the decision of 5 August 2005, claiming that limiting his right to a free choice of defence counsel was contrary to the Constitution and the decision of the Constitutional Court of 16 November 2000 (see paragraph 37 below).
13. On 13 January 2006 the court rejected his appeal.
14. On 24 March 2006 the investigator decided to allow Mr O., who was a licensed advocate, to take part in the criminal case as the applicant’s defence counsel.
15. On 26 April 2006 the applicant appealed in cassation against the decisions of 5 August 2005 and 13 January 2006.
16. By letter of 3 May 2006, in reply to a request by the applicant that criminal proceedings be instituted against the relevant judge of the Dimitrov Court for alleged deliberate failure to comply with the decision of the Constitutional Court concerning the right to a free choice of defence counsel, the Donetsk Regional Prosecutor’s Office informed the applicant that the court had rightly decided to remove Mr M. from the applicant’s case because he was not a licensed advocate.
17. On 11 May 2006 the applicant asked the Dimitrov Court to remit his case for further investigation on the grounds that his right to mount a defence had been violated.
18. On the same date the court rejected his request. The court established that the applicant’s right to mount a defence had been complied with as a result of the participation of Mr O. in the additional investigation.
19. On 12 May 2006 the applicant notified the court that Mr O. was not his defence counsel and that he had seen him only once, in April 2006, when he had pointed out to the investigator that he needed defence counsel but did not wish to be represented by Mr O. because he had not been freely chosen by him. Therefore, he contested the court’s conclusion that his right to mount a defence had been complied with.
20. On 22 May 2006 the Supreme Court rejected his appeal on the grounds that decisions as to the remittal of a criminal case were not subject to appeal in cassation.
21. On 17 July 2006 the Dimitrov Court rejected a request by the applicant that Mr M. be allowed to represent him as his defence counsel because the law did not provide that a private practice lawyer could act as defence counsel in a criminal case. At the same time, the court accepted the refusal by the applicant to have Mr O. appointed as his defence counsel.
22. In July 2006 the same court returned the applicant’s appeal against the decision of 17 July 2006 without consideration on the grounds that the contested decision was not subject to a separate appeal.
23. By a decision of 6 September 2006, following another request by the applicant to institute criminal proceedings against the judge of the Dimitrov Court for alleged failure to comply with the decision of the Constitutional Court, the Dimitrov Prosecutor’s Office again refused to institute criminal proceedings.
24. On 12 March 2007 the Krasnoarmeysk Local Court rejected an appeal by the applicant against the prosecutor’s decision of 6 September 2006. The decision of 12 March 2007 was upheld by the Donestk Regional Court of Appeal on 14 August 2007.
25. During a court hearing on 13 March 2007 the Dimitrov Court examined a request from the applicant asking it to accept his dismissal of a lawyer, Mr K., who had been appointed by the court to represent him after the decision of 17 July 2006, and to appoint his wife as his representative. The court allowed his request in part. It allowed the applicant’s wife to be his defence counsel but rejected the applicant’s dismissal of Mr K. on the grounds that the applicant had complained on numerous occasions about a violation of his right to mount a defence and therefore determined that he should be legally represented.
26. On 10 April 2007 the applicant wrote a letter dismissing Mr K. He claimed that the appointed advocates, Mr O. and Mr K., had only formally represented him and had not properly defended him. He noted, however, that he did need defence counsel, although not a formally admitted one.
27. On the same date the court rejected the applicant’s dismissal letter, stating that he had claimed that he needed defence counsel.
28. On 21 March 2008 the court rejected the applicant’s request to remit the case for additional investigation. It also rejected the applicant’s dismissal of Mr K. and the applicant’s request asking that Mr M. be allowed to take part in the case again.
29. On 27 March 2008 the applicant was found guilty of a breach of traffic rules which had caused medium bodily injury and sentenced to three years’ restraint of liberty (обмеження волі). However, he was discharged from serving his sentence owing to the expiry of the statutory time-limit for the prosecution. He was also ordered to pay compensation for pecuniary and non-pecuniary damage caused to the victims.
30. The applicant appealed against that judgment, claiming, inter alia, that his right to a free choice of defence counsel had been violated.
31. On 13 June 2008 the Donetsk Regional Court of Appeal upheld the judgment of 27 March 2008 in part. The court noted that there had been no procedural violations that would require the judgment to be quashed. At the same time, the quantum of damages had not been substantiated and therefore the court remitted this part of the case for fresh consideration in separate civil proceedings.
32. The applicant appealed in cassation to the Supreme Court, claiming, inter alia, that his right to a free choice of defence counsel had been violated.
33. On 24 February 2009 the Supreme Court upheld the decision of the Court of Appeal. In reply to the applicant’s complaint of a violation of his right to mount a defence, the court noted:
“It is not worth paying attention to the arguments [submitted in] the cassation appeal by the convict that his right to mount a defence was violated, because, in rejecting the request of the convict, the court reasonably noted that, in accordance with Article 44 of the Code of Criminal Procedure of Ukraine, only a person who is the bearer of an advocate’s licence for practice in Ukraine is allowed to act as defence counsel and M. is not the bearer of such a licence.”
34. By a judgment of 5 February 2009 of the Dimitrov Court, the applicant was ordered to pay compensation to the victims of the traffic accident for pecuniary and non-pecuniary damage caused to them.
35. On 29 April and 30 June 2009 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the judgment of 5 February 2009.
36. Relevant provisions of the Constitution read as follows:
“Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive.
Constitutional rights and freedoms are guaranteed and shall not be abolished.
The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.”
“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose his or her own defence counsel.
In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation and to provide legal assistance during the determination of cases by the courts and other State bodies.”
“... A suspect, an accused or a defendant has the right to mount a defence ...”
“The following are determined exclusively by the laws of Ukraine:
(1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of a citizen ...
(14) the judicial system, judicial proceedings, the status of judges, the principle of judicial expertise, the organisation and operation of the prosecution service, bodies of inquiry and investigation, the [status of] notaries, bodies and institutions [pertaining to] the execution of punishments, the fundamentals of the organisation and activities of the Bar ...”
37. In this case, the Constitutional Court decided that:
“1. The provisions of Article 59 of the Constitution of Ukraine, that "everyone is free to choose his or her own defence counsel”, in terms of the constitutional application of citizen G.I. S. shall be understood as the constitutional right of a suspect, an accused or a defendant in their defence from an accusation ... in order to obtain legal aid, to choose, as his or her defence counsel, anyone who is a legal specialist and who is entitled by law to provide legal assistance [on his or her own account] or on behalf of a legal person.
2. The provisions of part 2 of Article 59 of the Constitution of Ukraine that "in Ukraine, advocacy acts to ensure the right to mount a defence against an accusation ..." shall be understood as one of the constitutional guarantees, giving a suspect, an accused or a defendant the opportunity to exercise his or her right to freely choose, as defence counsel in criminal proceedings, an advocate, that is, a person who has the right to provide advocacy.
3. The following shall be considered not to be in conformity with the Constitution of Ukraine (unconstitutional):
- a provision of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine which limits the right for a suspect, an accused or a defendant to freely choose as his or her own defence counsel, apart from an advocate, another legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person;
...
4. The provisions of part 1 of Article 44 of the Code of Criminal Procedure of Ukraine ... deemed to be unconstitutional, lose their force from the day that this decision by the Constitutional Court has been rendered.
38. Relevant provisions of the Code read as follows:
“Defence counsel is the person who, in accordance with the procedure prescribed by law, shall be authorised to protect the rights and legitimate interests of a suspect, an accused, a defendant, a convict or an acquitted person, and to provide them with necessary legal assistance in criminal proceedings.
Persons bearing a licence to exercise the right of advocacy in Ukraine and other legal specialists, who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person shall be allowed to act as defence counsel ...
The powers of defence counsel to participate in a case shall be confirmed:
...
(2) for an advocate who is not a member of the Bar Association by an agreement, for other legal specialists who are entitled by law to provide legal assistance [as a sole practitioner] or on behalf of a legal person by an agreement or by the authority of the legal person ...”
39. Section 2 of the Act provides that, in addition to having a university degree in law, an advocate must pass special qualification exams, obtain an advocate’s licence and be sworn in as an advocate of Ukraine.
40. Sections 6 and 7 set forth the professional rights and obligations of the lawyer, including those in respect of evidence gathering and restrictions on representation.
41. Section 9 of the Act sets out the provisions for advocate-client confidentiality and section 10 sets forth the privileges enjoyed by the advocate in carrying out his professional activities, including the prohibition on the search and seizure of the advocate’s professional papers without his consent and the special procedure for instituting criminal proceedings against him.
42. Section 13 of the Act provides for special qualifications and disciplinary boards that assess the professional competence of advocates and deal with any disciplinary matters in the event of a breach of the requirements of the Act or other relevant legislation.
43. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“In order to ensure the correct and uniformed application by the courts of the legislation that ensures the right of a suspect, an accused, a defendant, a convict or an acquitted person to mount a defence, the Plenary Supreme Court decides:
5. The powers of defence counsel to participate in the case should be confirmed: ...
(c) for any other legal specialist, who, in accordance with the law, is entitled to provide legal assistance [as a sole practitioner] or on behalf of a legal person – by the documents specified in the specific legislation which confers on these persons the right to participate in criminal proceedings as defence counsel, as well as by a contract or through the authority of the legal person;
...
In deciding whether a legal specialist has the authority to conduct the defence in a criminal case, it should also be established by exactly what law the right to participate in criminal proceedings as defence counsel was conferred on him or her. This should be recognised as the proper practice of the courts, which, in the absence of a specific piece of legislation, do not allow such specialists to conduct the defence in criminal cases ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1