ITEMID: 001-102252
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MILANOVIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 14+3;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: 6. The applicant, Mr Života Milanović, was born in 1961 and lives in the village of Belica, Jagodina Municipality, Serbia. Occasionally, however, he stays in his relative's vacant flat in Jagodina, a town comprised of some 35,000 inhabitants.
7. The applicant has been a leading member of the Vaishnava Hindu religious community in Serbia, otherwise known as Hare Krishna, since 1984.
8. In 2000 and 2001 the applicant, apparently, began receiving anonymous telephone threats. On one such occasion, he was allegedly told that he would be “burned for spreading his Gypsy faith”.
9. Later in 2001 the applicant informed the Jagodina Police Department (SUP Jagodina, hereinafter “the police”) about these threats and expressed his impression that they were made by members of an organisation called Srpski vitezovi, a local branch of a better known far-right organisation called Obraz.
10. On an unspecified date in September 2001, in the evening hours, the applicant was attacked from behind by an unknown man, in front of his relative's flat in Jagodina, and was hit over the head by what seemed like some sort of a wooden bat.
11. On 24 September 2001, at approximately 12.30 a.m., the applicant was assaulted once again by one of three unidentified men present. The assailant inflicted several cuts to the applicant's head and chest and cut off his pigtail. The attack, once more, occurred in front of his relative's flat in Jagodina.
12. On the same day, after having received medical assistance, the applicant reported the latter incident to the police. He stated, inter alia, that his attackers probably belonged to an extremist organisation called Srpski vitezovi.
13. Later that day, the police conducted an on-site investigation, and unsuccessfully attempted to contact the applicant. The neighbours apparently said that the applicant rarely stayed in his relative's flat.
14. On 25 September 2001 the police re-interviewed the applicant, who stated that the men who had attacked him on 24 September 2001 had been “big and strong”, but that it had been too dark for him to see anything else. He also recounted the earlier attack, but explained that he had not reported it to the police since he had “not seen his attacker”.
15. On the same day the police issued an internal document wherein they outlined a “plan of action”. As part of that plan, the police apparently questioned three members of a local skinhead group, but these persons provided them with “no useful information”.
16. On 30 September 2001 and 5 October 2001 the police interviewed all local school headmasters in an attempt to gather information about the organisations referred to by the applicant. Once again, however, “no useful information” was obtained.
17. On the evening of 11 July 2005 the applicant suffered another attack. In the proximity of his relative's flat in Jagodina, one of three unknown youths present stabbed the applicant in his abdomen. The incident was reported to the police by the local hospital which had provided the applicant with urgent medical care.
18. The police thereafter arrived at the hospital and interviewed the applicant, who described the attack and insisted that it had been religiously motivated.
19. On five separate occasions between 13 July 2005 and 27 July 2005 the police attempted to contact the applicant at his relative's address in Jagodina, but to no avail. They learned from the neighbours that the applicant mostly lived with his parents in the village of Belica and only rarely spent time in Jagodina. The neighbours also informed the police that they had not seen the incident in question.
20. In his note of 13 July 2005 a police officer stated that the applicant, when interviewed on 11 July 2005, had failed to give the necessary details concerning the incident. Moreover, despite having had a mobile phone on his person during and after the attack he had not immediately called the police, which would have greatly facilitated the investigation.
21. On 20 July 2005 the police apparently visited several locations in an attempt to “identify” the organisation called “Srpski vitezovi”, but “no useful information was obtained”.
22. On 31 July 2005 the police briefly talked to the applicant in the village of Belica. In their report of the same date they stated that the applicant, however, “wanted no further contact” and noted his well-known religious affiliation, as well as his “rather strange appearance”.
23. On 4 August 2005 the police again attempted to contact the applicant in the village of Belica. As it transpired, the applicant was not to be found there and the police were told by the neighbours that he stayed in the village mostly during the winter months.
24. On 25 August 2005 the police informed the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) that they had found no evidence that organisations called Srpski vitezovi and Obraz, respectively, had ever existed in the Municipality of Jagodina. The police further noted that the applicant was a member of a “religious sect” called Hare Krishna.
25. On 26 August 2005 and 29 August 2005 the police attempted to contact the applicant at various locations, but to no avail.
26. On 15 September 2005 the police filed a criminal complaint against unknown perpetrators with the Municipal Public Prosecutor's Office (Opštinsko javno tužilaštvo) in Jagodina. The complaint concerned the attack of 11 July 2005 and classified the incident as “a minor bodily injury inflicted by means of a dangerous weapon”.
27. On 19 September 2005 the applicant was re-interviewed by the police.
28. Later that month the applicant provided the officers with a copy of the “The Serbian Front” (Srpski front), alleging that the said magazine was published by the nationalist organisations whose members had probably attacked him.
29. On an unspecified date thereafter, the Lawyers' Committee for Human Rights (Komitet pravnika za ljudska prava) addressed the Ministry of Internal Affairs on behalf of the applicant.
30. On 19 October 2005 the Ministry stated that the local police had indeed failed in their duty to identify the applicant's assailants. The Ministry, however, promised to do so shortly, and to press charges against the individuals responsible.
31. On 15 March 2006 the applicant and the Youth Initiative for Human Rights (Inicijativa mladih za ljudska parva) jointly filed a criminal complaint with the District Public Prosecutor's Office (Okružno javno tužilaštvo) in Jagodina. The complaint referred to the incident of 11 July 2005 and alleged that the applicant had been a victim of a crime called “incitement to ethnic, racial and religious hatred and intolerance” (izazivanje nacionalne, rasne i verske mržnje i netrpeljivosti, hereinafter “hate crime”), which crime had been committed by means of ill-treatment. The criminal complaint was supplemented by a medical certificate documenting the applicant's injuries.
32. On 12 April 2006 the District Public Prosecutor's Office informed the police about this criminal complaint and requested that “necessary measures be undertaken”.
33. On 11 June 2006 the police attempted to contact the applicant, but to no avail.
34. On 18 June 2006, at approximately 2.30 a.m., the applicant was attacked yet again on the doorstep of his relative's flat in Jagodina, this time by a lone, unknown assailant, who stabbed him in his abdomen and scratched a crucifix on his head. The applicant stated that his attacker was hooded, some 180 cm tall, wore a dark sweater, and was accompanied by another man. The applicant was taken by taxi to a hospital, where he was promptly provided with medical assistance, and the doctors reported the incident to the police, who immediately took the applicant's statement and conducted an on-site investigation. However, no material evidence was found and no persons fitting the applicant's description of the attackers were identified.
35. On 23 June 2006 the police re-visited the scene of the crime, and talked to a neighbour whose balcony overlooked the street. The neighbour apparently stated that he had not seen the incident and had also never seen the applicant in the company of others.
36. Between 1 July 2006 and 8 July 2006 the police canvassed the other neighbours, but again to no avail.
37. On 3 July 2006 the applicant and the Youth Initiative for Human Rights jointly filed a criminal complaint with the District Public Prosecutor's Office concerning the incident of 18 June 2006. The complaint alleged that the applicant had been a victim of a hate crime, as well as the crime of serious bodily injury (teška telesna povreda). The applicant attached a medical certificate documenting his injuries and a number of photographs to the same effect.
38. On 7 July 2006 the police interviewed the taxi driver who, however, offered no additional insight as regards the incident.
39. On 20 July 2006 the applicant gave a statement to the police, maintaining that the attack against him had been carried out by a “clero-fascist” organisation. In this respect, the applicant invited the police to question the regional head of a political party in Serbia as to whether any of his party's members were skinheads, as well as to visit a local church where, allegedly, the organisation called Obraz “had its premises”.
40. On 21 July 2006 the District Public Prosecutor's Office informed the police of the criminal complaint filed on 3 July 2006.
41. By August 2006 the police filed a criminal complaint against unknown perpetrators with the Municipal Public Prosecutor's Office (Opštinsko javno tužilaštvo) in Jagodina. The complaint concerned the attack of 18 June 2006 and classified the applicant's injuries as minor in character.
42. On 22 August 2006 the police interviewed the local priest, who dismissed the assertion that any extremist organisation or informal group had ever had its seat in the church or any of its premises. He further stressed that he had only heard of an organisation called Obraz from the media.
43. By 25 August 2006 two senior members of the local and regional branch of the political party in question told the police that their membership did not include any skinheads or members of Obraz. They further emphasised that the applicant may have been manipulated by other political parties.
44. On 29 June 2007, at approximately 4.20 a.m., the applicant was assaulted once again. Having opened the door of his relative's flat in Jagodina to a man who had said that he was from the police, the applicant was stabbed in his chest, hands and legs. The incident was reported to the police by the local hospital which had provided the applicant with urgent medical care.
45. The police thereafter arrived at the hospital and interviewed the applicant, who recounted the attack, adding that his assailant had been a big man with a shaved head and had been dressed in dark clothes.
46. The police subsequently conducted an on-site investigation and searched for the applicant's attacker but could not find anyone fitting the description. The police noted that the applicant's clothes had not been slashed or torn and discovered “no material evidence”.
47. On 2 July 2007 the applicant filed a criminal complaint with the police.
48. On 5 July 2007 the applicant and the Youth Initiative for Human Rights jointly filed an additional criminal complaint with the District Public Prosecutor's Office. The complaint concerned the incident of 29 June 2007 and alleged that the applicant had been a victim of a hate crime, as well as the crime of serious bodily injury. Again, the applicant attached a medical certificate documenting his injuries and a number of photographs to the same effect.
49. On 11 July 2007 the District Public Prosecutor's Office informed the police of this criminal complaint and requested that all necessary steps be taken to identify the perpetrator.
50. On 13 July 2007 the same office repeated this request.
51. The knives used to attack the applicant had apparently had shortened blades and were designed so as not to inflict fatal injuries.
52. In his report of 27 September 2001 a police officer noted that on 26 September 2001 the applicant had gone to the premises of a local television station to protest against its earlier programme in which the Hare Krishna had been depicted as a dangerous sect. The officer noted that the applicant had apparently been verbally abusive towards the station's chief editor, as well as a journalist, and ultimately had had to be removed from the building by the security staff.
53. In response to a complaint sent on behalf of the applicant by the Lawyers' Committee for Human Rights, on 28 September 2005 the Inspector General of the Ministry of Internal Affairs stated that, as regards the attacks of September 2001 and July 2005, the police had not acted with the necessary diligence. Based on this conclusion, on 7 November 2005 one of the officers involved in the investigation was sanctioned with a 10% salary reduction.
54. It would appear, from numerous media reports, that in December 2005 the Ministry of Internal Affairs declared several organisations as extremist, including Obraz, which was described as clero-fascist.
55. On 19 October 2006 the lawyer acting on behalf of the applicant and the Youth Initiative for Human Rights (“the lawyer”) requested an update from the District Public Prosecutor's Office as regards the status of the two criminal complaints filed in respect of the attacks of 11 July 2005 and 18 June 2006. On 31 October 2006 the said office informed the lawyer that the criminal complaints had been forwarded to the police, but that the latter had failed to provide it with any information whatsoever. On 6 March 2007 the lawyer requested another update from the District Public Prosecutor's Office and on 9 March 2007 this office informed her that it was yet to receive any information from the police.
56. On 19 July 2007 the District Public Prosecutor's Office informed the applicant that the police had failed to provide it with any information in respect of the three criminal complaints filed as of July 2005.
57. On 7 March 2008 the investigating judge, as part of a preliminary investigation aimed at identifying the perpetrators, heard the applicant in respect of all of the attacks committed against him. The applicant recounted the incidents adding, inter alia, that he believed that he had seen his attacker of 29 June 2007 at some point later that year. The young man in question had been walking down the street with another closely shaved youth, and both had been wearing shirts with the year 1389 printed on them (it would appear that the said year referred to the medieval battle of Kosovo between the Serbs and the Turks, and possibly to a far-right organisation bearing this year as a part of its name, Srpski narodni pokret 1389).
58. On 23 April 2008 a medical expert diagnosed the physical harm suffered by the applicant as amounting to minor bodily injuries (lake telesne povrede) inflicted with a dangerous weapon.
59. On 7 May 2008 the District Public Prosecutor's Office informed the police of this finding and requested action.
60. Between 10 October 2008 and 20 January 2009 the police apparently conducted interviews with six persons suspected of committing knife-related crimes, but “no useful information was obtained”.
61. On 25 November 2008 the police interviewed a certain B.M. whom they had come to suspect as one of the applicant's possible attackers. B.M., however, maintained that he had no knowledge of any of the incidents.
62. The applicant maintained that on one occasion the police had advised him not to go out in the evenings since this “clearly provoked” others, and had repeatedly seemed more interested in discussing his religious beliefs rather than the incidents in question. The Government submitted that the applicant had provided no substantiation for these particular allegations.
63. In September 2009 the Chief Public Prosecutor (Republički javni tužilac) petitioned the Constitutional Court (Ustavni sud) to ban both Obraz and Srpski narodni pokret 1389, because of, inter alia, their incitement to racial and religious hatred throughout Serbia.
64. In their report of 12 April 2010, inter alia, the police noted that: (a) most of the attacks against the applicant had been reported around Vidovdan, a major orthodox religious holiday; (b) the applicant had subsequently publicised these incidents through the mass media and, whilst so doing, “emphasised” his own religious affiliation; (c) the nature of the applicant's injuries had been such that their self-infliction could not be excluded; and (d) the injuries had all been very shallow, which could be considered peculiar and would imply great skill on the part of the applicant's attackers who had never managed to hold him down but had “assailed him from a distance”. In the same report, however, the police then went on to recall that the District Public Prosecutor's Office had urged them to explore the hate crime aspect of the attacks and stated that the investigation would continue. More recently, the police apparently questioned several known offenders, informants and drug addicts, as well as a few of the applicant's neighbours, but obtained no useful information.
65. Relevant domestic provisions are contained in Articles 19, 20, 46, 61, 223, 235, 241, 242, 433 and 437 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as the Official Gazette of the Republic of Serbia – OG RS – nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09 and 72/09) and Article 317 § 2 of the Criminal Code (Krivični zakonik, published in OG RS nos. 85/05, 88/05 and 107/05).
66. In accordance with these provisions, formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, such as the crime of “incitement to ethnic, racial and religious hatred and intolerance” perpetrated by means of ill-treatment, a felony punishable by up to eight years' imprisonment, the authorised prosecutor is the public prosecutor personally.
67. The public prosecutor's authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. It makes no difference whether the public prosecutor has learned of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect.
68. The public prosecutor shall undertake measures necessary for the preliminary investigation of the crimes subject to prosecution ex officio and the identification of the alleged perpetrators. To that end he is vested with the power to co-ordinate the work of various law enforcement agencies and other government bodies.
69. If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to prosecution ex officio, he will request the competent court to institute a formal criminal procedure.
70. If, however, the public prosecutor decides that there is no basis for the institution of such a procedure, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his or her own behalf, in the capacity of a “subsidiary prosecutor”.
71. There is no time-limit within which the public prosecutor, following the submission of a criminal complaint by the victim, must decide on whether to bring formal criminal proceedings. Also, as regards crimes punishable by more than five years' imprisonment, without a prosecutorial decision to dismiss a criminal complaint filed by the victim, the victim cannot personally take over the prosecution of the case. In any event, neither a public prosecutor nor a victim acting in the capacity of a subsidiary prosecutor may request the institution of a formal criminal procedure in the absence of information as to the identity of the alleged perpetrator.
72. It is noted, however, that domestic courts have held in the past that as regards the crime of incitement to ethnic, racial or religious hatred and intolerance society as a whole had to be deemed a victim, not the aggrieved individual personally, meaning that the latter could only, following a possible prosecutorial dismissal, take over the prosecution of the case for another, lesser crime (opinion adopted at the joint session of the Federal Court, the Supreme Courts, and the Supreme Military Court of the Socialist Federal Republic of Yugoslavia on 22 June 1989).
73. The relevant paragraphs of this report read as follows:
“45. ECRI is concerned to note that ... there is a climate of hostility against religious minorities [in Serbia]. This climate is partly created by certain media outlets and politicians. Members of these groups are also attacked, sometimes by members of neo-Nazi or far-right groups, and their places of worship are vandalised and/or deliberately set on fire. Despite a decrease in the number of these attacks over the past few years, NGOs, some of which have counted between 100 and 150 attacks per year, note that they have become more violent. Religious communities appear reluctant to report these attacks or talk about them publicly. This might be because the police and the judicial apparatus do not always respond appropriately to this problem. Religious communities deplore the fact that few persons are brought to justice for perpetrating these acts and that those found guilty are often only sentenced to a fine.
...
52. There is currently a certain climate of hostility in Serbia against ... religious groups[,] which is fuelled by a number of media outlets and politicians. Far-right groups also help to generate negative feelings towards these communities ... NGOs condemn a certain tendency on the authorities' part to downplay this climate of intolerance against ... religious minorities and the fact that they have taken few steps to remedy it.”
74. Forum 18 is a Christian, Norwegian-Danish, charitable web and e-mail initiative. It provides “original reporting and analysis on violations of the freedom of thought, conscience and belief of all people, whatever their religious affiliation, in an objective, truthful and timely manner”.
“... The number of attacks on Serbia's religious communities appears to continue to be declining ... However, the attacks themselves seem to be becoming more violent and, as in previous years, members of religious minorities are especially likely to be attacked. The police continue to be apparently unwilling to protect members of religious minorities or religious sites at risk of attack – even if they have already been attacked. Members of religious minorities have in the past year been beaten and stabbed, and places of worship have been the targets of arson attacks. Places of worship of the Orthodox Church have occasionally been robbed, but the vast majority of attacks have been on ... religious minority individuals and property ...”
“Despite continuing attacks on religious communities over a number of years, Forum 18 News Service has found that Serbian authorities appear to be taking few steps to protect their citizens. An extreme illustration of the unwillingness of the authorities to provide justice to religious minority victims is the case of Života Milanović, the only Hare Krishna devotee in Jagodina ...”
“...The most serious problem affecting religion or belief in Serbia has been violent attacks, along with the problem of the authorities having shown a lack of willingness to catch and convict the attackers. However, annual surveys by Forum 18 News Service have shown that the numbers of attacks are declining, with fewer attacks in 2007 and 2008 compared to previous years. Serbia's desire to join the European Union, along with politicians placing greater weight on Serbia becoming a more open country, appears to be influencing popular attitudes, and hence the possibility of attacks. Many of the attacks and threats against 'non-traditional' religious communities appear to be by extreme nationalists who think that the communities are in some sense traitors to the nation ... There is a lack of consistency in whether attackers are arrested and court proceedings brought against them. The 2006 Serbian Constitution guarantees freedom of religion, and bars the fomenting of religious intolerance and hatred. However, members of religious minorities have told Forum 18 that these ideals have yet to become reality in their daily experience.”
VIOLATED_ARTICLES: 14
3


ITEMID: 001-98329
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BIK v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1972 and lives in Moscow.
7. On 27 May 2002 the applicant's mother requested Psychiatric Outpatient Clinic No. 21 (Психоневрологический диспансер N 21) (the “Clinic”) to examine her son, expressing concern about a change in his behaviour. He was afraid to leave the flat where he lived, had cut out all social contacts and was frightened by noises or the sound of the telephone ringing.
8. The applicant refused to be examined by the doctors at the Clinic and on 29 May 2002 Dr N., a psychiatrist from the Clinic, applied for a court order authorising the applicant's psychiatric assessment without his consent. She noted, on the basis of the information submitted by the applicant's mother, that the applicant might be suffering from a severe mental disorder that impaired his ability to meet the ordinary demands of life, and that his condition might deteriorate should he be left without psychiatric treatment.
9. On 31 May 2002 the Cheremushkinskiy District Court of Moscow authorised the psychiatric assessment. According to the applicant, he was informed of that decision at a later date.
10. On 5 June 2002 Dr N. examined the applicant at his home. The applicant's mother was present. The applicant was agitated, he shouted at the doctor and his mother and threatened them. He refused to talk and made them both leave. Dr N. concluded that the applicant suffered from paranoid schizophrenia and that his condition warranted committal to a psychiatric hospital for further assessment and treatment. At 7.20 p.m. the applicant was admitted to Psychiatric Hospital No. 15 (Психиатрическая клиническая больница N 15) (the “Hospital”). According to the applicant, he was first taken to a police station and then to the hospital.
11. On 7 June 2002 the applicant consented to treatment in the Hospital until 14 June 2002.
12. On Friday 14 June 2002 the applicant refused to stay in hospital any longer. At noon he was examined by three psychiatrists who provisionally diagnosed him as suffering from depressive syndrome and schizophrenia. They noted that the applicant was solitary and antisocial; he was unaware of his condition and expressed delusional ideas about his mother trying to manipulate him. They concluded that his mental disorder was serious enough to require inpatient treatment.
13. On Monday 17 June 2002 the Hospital administration applied to the court seeking an extension of the applicant's stay there. According to the medical report submitted, the applicant was suffering from a severe mental disorder and might cause serious harm to himself or others. On the same day the Nagatinskiy District Court of Moscow provisionally authorised the applicant's further hospitalisation pending consideration of the case. The court stated no reasons in its decision.
14. On 21 June 2002 the Nagatinskiy District Court of Moscow authorised the extension of the applicant's stay in the Hospital. The hearing was held on the Hospital's premises. The applicant attended the hearing but was not represented. In particular, the court noted:
“After having heard [the applicant], the hospital's representative..., and the prosecutor who considered that the [hospital's] request should be granted, and after having studied the materials [in its possession], the court considers that the [hospital's] request to commit the applicant to the [hospital] against his will is well-substantiated and should be granted.”
15. On 27 June 2002 the applicant consented in writing to further treatment in hospital.
16. Once the applicant's condition improved, he was discharged from hospital on 4 July 2002.
17. On 23 January 2003 the applicant lodged an appeal against the decision of 21 June 2002. He submitted, in particular, that the court had failed to verify the lawfulness of his committal to hospital
18. On 20 March 2003 the Moscow City Court upheld the decision of 21 June 2002. Both the applicant and his lawyer attended the hearing. The court noted that the applicant's hospitalisation had been in accordance with the applicable laws. The court further indicated that the applicant's committal to hospital against his will had been necessary in view of his severe psychiatric disorder which made him dangerous to himself and others. Lastly, the court observed that it had been open to the applicant to ask for legal representation before the court at first level of jurisdiction. However, he had failed to do so and the decision of 21 June 2002 should not be quashed on that ground.
19. A person may be subject to an involuntary psychiatric assessment if his or her behaviour gives reasonable grounds to believe that he or she may be suffering from a serious mental disorder and, because of the mental disorder, he or she (a) is likely to cause serious harm to himself or herself or another person or (b) does not have the capacity to take basic care of himself or herself or (c) is likely to suffer serious physical impairment or mental deterioration in the absence of psychiatric treatment (Article 23 of the Act).
20. In the event of (b) or (c) above, a psychiatrist may decide to conduct psychiatric assessment without the person's consent, subject to prior judicial approval (Article 24 of the Act).
21. In the event of (a), (b), or (c) above, a person may be admitted to a hospital against his or her will if he or she is suffering from a severe mental disorder and requires psychiatric examination and treatment in a psychiatric hospital (Article 29 of the Act).
22. A person admitted against his or her will should be assessed within 48 hours by a psychiatric panel. Should the panel decide to keep the person in hospital, they should file a request to that effect with the judge within 24 hours, together with a supporting medical report (Article 32 of the Act).
23. The judge must then consider the request within 5 days (Article 34 § 1 of the Act). He or she must also authorise the person's continued hospitalisation pending the consideration of the matter by the court (Article 33 § 3 of the Act).
24. The old CCP did not set forth special rules governing committal to a psychiatric hospital.
25. A period of time expressed as a number of years shall expire on the relevant day and month of the last year of that period. A period of time expressed as a number of months shall expire on the relevant day of the last month of that period. If the last day of the period of time falls on a non-working day, the next closest working day shall be considered as the last day of that period (Article 101 of the old CCP and Article 108 §§ 1 and 2 of the new Code of Civil Procedure of 1 February 2003 as amended).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-81108
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SAVENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1937 and lives in Voronezh.
5. In the 1990s the applicant was a co-owner and the head of a private enterprise “Ekolog” (hereafter – the “Ekolog” company).
6. From 1991 to 1994 the “Ekolog” company was a party to several disputes before the commercial courts. The disputes concerned office premises acquired by the “Ekolog” company from a municipal enterprise. On 1 November 1993, 23 May, 11 July and 26 August 1994 the Voronezh Commercial Court, by final judgments, ruled in favour of the “Ekolog” company's adversaries.
7. On 20 December 1994 the Voronezh Town Council leased the office premises to Mr B. In February 1995 bailiffs forced the “Ekolog” company to vacate the premises and six months later Mr B. bought them.
8. On 4 December 1997 the applicant and the “Ekolog” company lodged an action against the Voronezh Town Council seeking invalidation of the lease of 20 December 1994. The Leninskiy District Court of Voronezh received the statement of claim and judge I. was assigned to the case. The applicant subsequently submitted an amended statement of claim, asking the District Court to invite Mr B. to the proceedings in the capacity of a defendant. She sought compensation for pecuniary and non-pecuniary damage.
9. Following the applicant's complaint to the Voronezh Regional Court about the excessive length of the proceedings in the case, on 26 August 1999 the President of the Leninskiy District Court informed the applicant that the first hearing was listed for 28 September 1999. That hearing was adjourned until 6 October 1999 because the Council had not received a copy of the statement of claim.
10. The following two hearings fixed between 6 October 1999 and 2 June 2000 were postponed owing to the absence of the Council's representative.
11. On 23 July 1999 the applicant and the “Ekolog” company sued the Voronezh Town and Leninskiy District Councils for correction of registration logs in respect of the office premises. After the Leninskiy District Court had received the statement of claim, judge I. was assigned to the case.
12. The first hearing was fixed for 28 September 1999. As it appears from the list of events attached to the Government's memorandum, the next hearing was listed for 29 November 2000. On that date judge I. accepted amendments to the applicant's statement of claim.
13. On 6 December 1999 the “Ekolog” company lodged an action against the Voronezh Town Council seeking the transfer of the lease rights in respect of the office premises. On the same day the applicant asked the Leninksiy District Court to confirm that she had lived in the disputed premises. Both cases were received by the Leninskiy District Court and assigned to judge I.
14. On 5 January 2001 the applicant asked the Leninskiy District Court to invalidate certain legal acts issued by the Voronezh Town Council in respect of the office premises.
15. On 2 February 2001 judge I. accepted the case file and fixed the first hearing for 24 April 2001.
16. In 2001 judge I. resigned and judge Y. took over her cases. On 27 August 2001 judge Y. joined the five sets of the proceedings initiated by the applicant and the “Ekolog” company and listed the first hearing for 3 December 2001.
17. Of the three hearings fixed between 3 December 2001 and 24 June 2002, two were adjourned because the defendants had defaulted and one was postponed for the purpose of obtaining information from the commercial courts.
18. On 2 October 2002 the Leninskiy District Court discontinued the proceedings because the case was within the subject-matter jurisdiction of a commercial court. That decision was quashed on 27 February 2003 by the Voronezh Regional Court. The case was remitted to the Leninskiy District Court for a fresh examination on the merits.
19. On 19 March 2003 judge Y. received the case file and listed the first hearing for 24 April 2003. That hearing was adjourned because the defendants did not attend.
20. Of the ten hearings fixed between 18 August 2003 and 28 May 2004, four hearings were adjourned owing to the defendants' absence and six hearings were postponed upon the parties' requests for provision of additional evidence.
21. On 28 May 2004 the Leninskiy District Court of Voronezh dismissed the applicant's claims. The District Court held that in 1993 and 1994 the commercial courts had invalidated the sales-purchase agreement between the municipal enterprise and the “Ekolog” company in respect of the premises. Mr B. had lawfully acquired the title to the premises in 1994 and thus he was their legitimate owner. The District Court also noted that the applicant had never lived in the premises.
22. On 23 November 2004 the Voronezh Regional Court upheld the judgment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58898
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF SABEUR BEN ALI v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. On 17 March 1995 the applicant was arrested in Malta for drug-related offences. On 19 March 1995 he was brought before the Court of Magistrates, composed by a single magistrate, to be arraigned. He was charged with possession of drugs that were not intended for personal use, importation of drugs, conspiracy to commit drug-related offences and various breaches of the customs legislation. In accordance with section 27 of the Dangerous Drugs Ordinance, the applicant was remitted to custody pending the conclusion of the criminal inquiry.
8. On conclusion of the inquiry on 4 April 1995, the applicant was committed for trial. On 29 July 1996 he applied to the Court of Magistrates for provisional release relying on the fact that “he ha(d) been under arrest for a considerable time” and that “he (was) in a position to give the guarantees required to appear for any part of the proceedings and the trial, as the Court (might) order”. The application was communicated to the Attorney General who was given twenty-four hours to reply. After the observations of the Attorney General had been obtained, a magistrate heard the parties on 31 July 1996. On 1 August 1996 the magistrate rejected the application because he was not satisfied that, if the applicant was released, there would be no interference with the due administration of justice.
9. The trial commenced on 4 February 1997. On 5 February 1997 the applicant was acquitted of all charges and was released from custody.
10. Section 34 § 3 of the Constitution of Malta provides:
“Any person who is arrested or detained -
(a) for the purpose of bringing him before a Court in execution of the order of a Court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,
and who is not released, shall be brought not later than forty-eight hours before a Court, and if any person arrested or detained in such a case as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.”
11. Section 353 of the Criminal Code provides:
“1. Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him.
2. Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.”
12. In its judgment of 8 January 1991 in the Nicholas Ellul case, the Constitutional Court of Malta upheld a decision taken by the Civil Court, in the exercise of its constitutional jurisdiction, on 31 December 1990 to the effect that Article 5 § 3 of the Convention did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether that person’s arrest had been made on a reasonable suspicion or not. Moreover, according to the judgment of the Civil Court, as upheld by the Constitutional Court, Article 5 § 3 of the Convention did not impose on the prosecution any duty, on presenting the arrested person, to adduce evidence that the police had a reasonable suspicion at the time of the arrest.
13. In its judgment of 13 June 1994 in the Aquilina case, the Constitutional Court followed the same approach.
14. The Criminal Code contains the following sections concerning bail:
“574. (1) Any accused person who is in custody for any crime or contravention may, on application, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place.
…
575. …
(2) The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney-General on the same day, whenever it is made by –
…
(c) persons accused of any crime punishable with more than three years’ imprisonment...
(3) The Attorney-General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition.
…
582. (1) The Court may not ex officio grant bail, unless it is applied for by the person charged or accused.
…”
15. Section 27 of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta) provides:
“Notwithstanding the provisions of the Criminal Code, and saving the extensions by the President of the term of the inquiry as provided in subsection (1) of section 401 of that Code, where the Attorney General has directed that a person charged with selling or dealing in a drug against this Ordinance or charged with promoting, constituting, organising or financing a conspiracy under paragraph (f) of subsection (1) of section 22 or with the offence mentioned in subsection (1C) of the said section 22 is to be tried in the Criminal Court, such person shall be arraigned under arrest and the Court of Judicial Police as a Court of Criminal Inquiry shall conclude the inquiry within the term of twenty days from the arraignment, and until the expiration of that term or, if the inquiry is concluded at an earlier date, until such day, the person accused shall not be granted temporary release from custody, but at the end of those twenty days or such earlier date as aforesaid, the Court may grant temporary release from custody in accordance with the provisions of that Code.
Provided that if the term of the inquiry is held in abeyance for the reason specified in paragraph (c) of subsection (1) of section 402 of the Criminal Code, the Court may nonetheless grant temporary release from custody after the lapse of twenty days from the arraignment.”
16. On 7 March 1999 Godfrey Ellul was arrested for drug-related offences. He applied for release relying on Article 5 § 3 of the Convention and section 137 of the Criminal Code and claiming that section 27 of the Dangerous Drugs Ordinance was in violation of the Convention. The Court of Magistrates refused to order his release. He subsequently lodged a constitutional application in the First Hall of the Civil Court. On 7 May 1999 the Civil Court, relying on the Aquilina v. Malta judgment of 29 April 1999 of the European Court of Human Rights (to be published in Reports of Judgments and Decisions 1999), found section 27 of the ordinance to be in violation of Article 5 § 3 of the Convention. However, it did not order Godfrey Ellul’s release. Godfrey Ellul and the Attorney General appealed to the Constitutional Court. The Constitutional Court is expected to deliver its judgment on 19 June 2000. In the meanwhile Godfrey Ellul was released on bail on 3 November 1999.
17. Section 137 of the Criminal Code provides:
“Any Magistrate who, in a matter with his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours, shall, on conviction, be liable to imprisonment for a term from one to six months.”
18. On 13 April 1983 the police arrested Anthony Price for a breach of the Immigration Act. During his detention he became suspect of a serious offence concerning the public security of Malta. On 17 June 1983 the applicant applied to the Court of Magistrates requesting that he should be either charged or released. On 20 June 1983 the Court of Magistrates considered that it had the power under section 135 (currently section 137) of the Criminal Code to attend to a lawful complaint touching on unlawful detention. It also found that the police had not brought Price before the Court of Magistrates within 48 hours as required by section 365 (currently section 353) of the Criminal Code. As a result, the court ordered Price’s release.
19. On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under section 1003 of the Code of Organisation and Civil Procedure. The Attorney General, with reference to Cremona having invoked section 137 of the Criminal Code, requested the Court of Magistrates to order the Acting Registrar of the Court and the Commissioner of Police to bring Cremona before the Court and order either of them to set him free at once. According to the Attorney General, Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney General’s request.
20. Ibrahim Hafez Ibrahim Ed Degwej later christened Joseph Leopold invoked section 137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4 July 1995 the Court of Magistrates ordered that the Attorney General be notified and, having heard his views, still on 4 July 1995, decided to reject the application.
21. On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed:
“As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is, where it refers to Article 137 of the Criminal Code.”
22. Section 4 subsection (3) of the Constitution provides as follows:
“If in any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subsection and, subject to the provisions of subsection (4) of this section, the court in which the question arose shall dispose of the question in accordance with that decision.”
23. By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta. Section 4 subsection (3) of the Act provides:
“If in any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the provisions of the said sections 33 to 45 (inclusive), that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subsection and, subject to the provisions of subsection (4) of this section, the court in which the question arose shall dispose of the question in accordance with that decision.”
24. Article 5 § 4 of the Convention has been invoked before or relied on by the domestic courts in the following cases:
Edwin Bartolo u Alfred Desira, decided by the First Hall of the Civil Court on 11 April 1989 and by the Constitutional Court on 15 February 1991;
the above-mentioned Nicholas Ellul case;
Anthony Mallia, decided by the First Hall of the Civil Court on 24 July 1991 and by the Constitutional Court on 9 March 1992;
George Mifsud, decided by the First Hall of the Civil Court on 2 December 1994 and by the Constitutional Court on 11 April 1995;
Joseph Grech, filed on 5 October 1995 and finally decided by the Constitutional Court on 21 February 1996;
Emmanuela Brincat, decided by the First Hall of the Civil Court on 19 December 1994 and by the Constitutional Court on 21 February 1996;
Carmelo Sant, decided by the First Hall of the Civil Court on 13 March 1997 (on 31 December 1997 the case was still pending before the Constitutional Court).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-58031
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF VAN RAALTE v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 6. The applicant is a Netherlands national born in 1924 and resident in Amstelveen. He has never been married and has no children.
7. On 30 September 1987 the Inspector of Direct Taxes sent the applicant an assessment of his contributions for the year 1985 under various social security schemes, including the General Child Care Benefits Act (Algemene kinderbijslagwet, see paragraph 21 below).
8. The applicant filed an objection (bezwaarschrift - see paragraph 27 below) to this assessment on 21 October 1987. He based his argument on section 25 (2) of the General Child Care Benefits Act and on the royal decree of 27 February 1980 (Staatsblad (Official Gazette) no. 89 ("the royal decree") - see paragraph 23 below), by virtue of which unmarried childless women of 45 years or over were exempted from the obligation to pay contributions under the General Child Care Benefits Act; in his view the prohibition of discrimination such as was contained in Article 1 of the Netherlands Constitution (see paragraph 18 below) and Article 26 of the International Covenant on Civil and Political Rights (see paragraph 20 below) implied that this exemption should be extended to men in the same situation.
9. The applicant later received similar assessments for the years 1986, 1987 and 1988, against which he likewise filed objections. The Inspector reserved his decision on these, pending the outcome of the proceedings relating to the 1985 assessment.
10. On 25 November 1987 the Inspector issued a decision declaring the first objection unfounded on the ground that "under national legislation the application of section 25 (2) of the General Child Care Benefits Act is not possible since the person by whom the contributions are due is not female".
11. The applicant appealed to the Amsterdam Court of Appeal (see paragraph 27 below) on 29 December 1987. Relying on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) and Article 26 of the International Covenant on Civil and Political Rights, he claimed that the provisions of the royal decree should be given a "gender neutral" construction. Section 25 (2) of the General Child Care Benefits Act and the royal decree were in his view discriminatory.
The Inspector lodged a written defence. Thereafter the applicant filed a reply, and the Inspector a rejoinder.
12. The exemption enjoyed by unmarried childless women of 45 or over from the obligation to pay contributions under the General Child Care Benefits Act was abolished by the Act of 21 December 1988 (Staatsblad 1988, no. 631), with effect from 1 January 1989.
13. The Amsterdam Court of Appeal gave its judgment on 6 October 1989, dismissing the applicant’s appeal and confirming the Inspector’s decision. Its reasoning included the following:
"5.4. Neither the wording of the impugned provision nor its drafting history indicates that the legislature intended to discriminate or has caused discrimination. In particular, it cannot be said that the legislator wished to discriminate against unmarried men who had reached the age of 45 before the beginning of the calendar year and were not entitled to child care benefits under the General Child Care Benefits Act vis-à-vis comparable women.
5.5. By means of the provision set out in section 25 (2) of the General Child Care Benefits Act, the legislature merely wished to take due account of the difference in factual situation between women over 45 and men over 45 with regard to having (begetting or raising) children.
5.6. The fact, as stated by [the applicant], that it appears from statistical data that older men only rarely beget children makes no difference to what is considered in paragraph 5.5 above. The legislature has assessed the factual situation of the group of women referred to in section 25 (2) of the General Child Care Benefits Act differently on the basis of the possibility of their having children and not on the basis of the reality of their having children.
Older men’s possibilities of procreating are fundamentally different from those of older women, in the sense that this difference is considerable irrespective of these statistical data.
5.7. The difference in treatment opposed by [the applicant] is therefore not based on a difference in sex, but on a difference in factual situation.
This conclusion is not altered by the fact that this difference (partly) coincides with the difference between the sexes. The impugned provision does not therefore contravene the prohibition of discrimination.
5.8. It cannot be excluded in principle that the fairness and acceptability of the General Child Care Benefits Act benefit by taking account of these differences in factual situation.
It not being for the Court of Appeal to rule on the intrinsic value of a statute, the Court cannot consider whether the differences in factual situation entirely justify the exemption in question.
5.9. Even if it were correct, contrary to what is set out above, that the impugned provision contravenes the prohibition of discrimination, this would not benefit [the applicant].
The Court of Appeal would not be at liberty to extend the exemption in question to one or more groups of individuals for whom the legislature definitely did not intend it.
If the argument based on prohibition of discrimination should have to be accepted in principle, this could only lead to a finding that the impugned provision had no binding force.
This would not be in [the applicant’s] interest."
14. The applicant filed an appeal on points of law (beroep in cassatie - see paragraph 27 below) to the Supreme Court (Hoge Raad) on 7 December 1989. In so far as is relevant here, he challenged the above reasoning of the Court of Appeal relying on Article 14 of the Convention (art. 14) and Article 26 of the International Covenant on Civil and Political Rights of 1966.
The Inspector responded in writing.
15. The Supreme Court dismissed the appeal on 11 December 1991. Its reasoning included the following:
"3.4. The third ground of appeal [middel] argues that the principle set out in section 25 (2) of the General Child Care Benefits Act violates Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention (art. 14). To the extent that the ground of appeal relies on the latter provision (art. 14), it must fail as the present case does not relate to any of the rights and freedoms enumerated in the Convention.
...
3.6. In view of, inter alia, the drafting history of the provision in question the limitation of the exemption set out in section 25 (2) of the General Child Care Benefits Act to women of 45 and over was inspired by the idea that it would not be reasonable to levy contributions under the General Child Care Benefits Act from these women, since it had to be assumed that a great number of them would never have children and were prevented by social and - unlike men - biological factors from ever bearing children.
The Supreme Court need not consider the question of whether the above-mentioned fact constitutes an objective and reasonable justification for exempting only women of 45 and over from paying contributions under the General Child Care Benefits Act.
Since this difference in treatment between (unmarried) women and men, which in any case, given their biological differences, cannot be said to lack all reasonable ground, has been removed with effect from 1 January 1989 by the abolition of the exemption by the Act of 21 December 1988 (Staatsblad 1988, no. 631) there is no reason for a court to intervene by declaring the exemption applicable, for the year in question, to unmarried men of 45 and over.
..."
16. After the delivery of this judgment the Inspector issued decisions dismissing the applicant’s objections to the assessments for the years 1986, 1987 and 1988 (see paragraph 9 above).
17. According to figures published by the Netherlands Central Bureau for Statistics (Centraal Bureau voor de Statistiek), the number of "legitimate" children born alive in the Netherlands to fathers aged 45 or over in 1985 was 2,341, or approximately 1,43 % of the total number of "legitimate" children born that year (163,370).
The corresponding figure for mothers aged 45 or over was 177, or approximately 1 per thousand.
No figures are available for children born out of wedlock.
18. Article 1 of the 1983 Constitution provides:
"All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed."
19. Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 reads:
"The courts shall not rule on the constitutionality [grondwettigheid] of statutes and treaties."
Delegated legislation, on the other hand, may be examined to determine whether it conforms with the Constitution and even with unwritten general principles of law (see the judgment of the Supreme Court of 1 December 1993, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - "BNB") 1994, no. 64).
20. Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published.
With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the International Covenant on Civil and Political Rights of 1966 ("the Covenant"), Article 26 of which provides as follows:
"All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
21. The General Child Care Benefits Act was enacted in 1962.
Until 1 January 1989 (see paragraph 28 below), section 25 of the General Child Care Benefits Act provided as follows:
"1. Contributions are due by:
(a) every person by whom contributions are due by way of assessment under the General Old Age Pensions Act (Algemene ouderdomswet);
(b) ...
2. The first paragraph, under (a), may be derogated from by royal decree, subject to conditions and limitations if need be, in respect of unmarried women who have reached the age of 45.
3. ..."
Persons referred to in sub-paragraph (a) were all those who had not yet reached the age of 65 and who were either Netherlands residents or, if not Netherlands residents, subject to the Wages (Tax Deduction) Act (Wet op de loonbelasting) in respect of work carried out in the Netherlands under a contract of employment (section 6 (1) of the General Old Age Pensions Act).
22. Any person who was either a Netherlands resident or subject to the Wages (Tax Deduction) Act in respect of work carried out in the Netherlands under a contract of employment was entitled to benefits under the General Child Care Benefits Act for children for whose maintenance he or she was financially responsible, whether they were his or her own by birth or marriage or foster children (sections 6 and 7 of the General Child Care Benefits Act). Such entitlement was not subject to the condition that the person concerned had contributed to the scheme.
23. At the time of the events complained of, the derogation from the general rule made possible by section 25 (2) was provided for by the royal decree of 27 February 1980 (Staatsblad no. 89). Section 1 provided:
"In derogation from section 25 (1) (a) of the General Child Care Benefits Act, no contributions shall be due by an unmarried woman who has reached the age of 45 before the beginning of the calendar year and who is not entitled to child care benefits under that Act."
24. The Supreme Court recognised in its judgment of 2 February 1982 (Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ") 1982, no. 424 (corrected in NJ 1982, no. 475)) that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts (see paragraph 20 above).
However, in a number of judgments it has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women, holding that, where various options were open to the national authorities to remove such discrimination, the choice should be left to the legislature in view of the social and legal implications attending each possible course of action (see the judgments of the Supreme Court of 12 October 1984, NJ 1985, no. 230, and 23 October 1988, NJ 1989, no. 740).
In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the European Court of Human Right’s Kroon and Others v. the Netherlands judgment of 27 October 1994 (Series A no. 297-C), the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (art. 14+8) (loc. cit., p. 50, para. 14).
25. The Central Appeals Tribunal (Centrale Raad van Beroep) - the administrative tribunal competent to decide most types of social-security disputes but not, inter alia, disputes relating to contributions due under the General Child Care Benefits Act - has held that Article 26 of the Covenant is in principle directly applicable in the field of social security.
Thus, in its judgment of 14 May 1987 (Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports - "RSV") 1987, no. 246), the Central Appeals Tribunal considered discriminatory the rule that to qualify for benefits under the Victims of Persecution (1940-1945) Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945) a married woman had to be a "breadwinner" whereas no such requirement applied to married men. In three judgments delivered on 5 January 1988 (Nederlandse Jurisprudentie - Administratiefrechtelijke Beslissingen (Netherlands Administrative Law Reports - "AB") 1988, nos. 252-54), it came to a similar finding with regard to the General Disability Act (Algemene arbeidsongeschiktheidswet), but only with effect from 1 January 1980 - the date on which legislation entered into force that was intended to remove discrimination but which had failed to do so adequately.
Similarly, in its judgments of 7 December 1988 (NJCM-Bulletin 1989, no. 14, p. 71, and AB 1989, no. 10), it recognised the right of a widower to claim a widow’s pension (weduwenpensioen) under the General Widows and Orphans Act (Algemene weduwen- en wezenwet).
26. Contributions under the General Child Care Benefits Act and certain other social-security schemes were levied by the Tax Inspector in the same way as income tax (sections 21 and 22 of the General Exceptional Medical Expenses Act (Algemene wet bijzondere ziektekosten), declared applicable by analogy under section 26 of the General Child Care Benefits Act).
27. It was possible to file an objection against an assessment with the Inspector (section 23 (1) of the State Taxes (General Provisions) Act - Algemene wet inzake rijksbelastingen).
An appeal against the Inspector’s decision lay to the Court of Appeal (sections 2 and 26 (1) of the State Taxes (General Provisions) Act). A further appeal could be filed on points of law to the Supreme Court (section 95 of the Judicial Organisation Act - Wet op de rechterlijke organisatie).
28. As noted above (see paragraph 12), the possibility provided for under section 25 (2) came to an end when the Act of 21 December 1988 (Staatsblad 1988, no. 631) came into effect on 1 January 1989. Accordingly, on that date men and women became equally liable to pay contributions under the General Child Care Benefits Act whatever their age and whether or not they were married or had children.
VIOLATED_ARTICLES: 14


ITEMID: 001-93135
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VDOVINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 13 - Right to an effective remedy;Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1932 and lives in Tula.
5. In 1999 the applicant inherited a flat. On 19 August 1999 Mr L., the grandson of the testator, brought an action against the applicant seeking invalidation of the will and transfer of the title to the flat. Judge A. of the Zarechinskiy District Court of Tula adjourned the examination of the action until 10 October 1999, ordering Mr L. to pay a court fee.
6. After the fee had been paid, the District Court fixed a preliminary hearing for 19 July 2000. At that hearing it ordered a post-mortem forensic psychiatric examination of the testator to establish whether she had been competent to make a will. The proceedings were stayed until 27 September 2000. According to the Government, the examination was not performed as the case file did not contain the materials necessary for the experts to carry out their inquiry.
7. No hearings were held between October 2000 and 27 June 2001.
8. On 27 June 2001 the case was assigned to judge P., who held a preliminary hearing on 16 July 2001. At that hearing the parties asked the District Court to obtain the attendance of certain witnesses. The Government submitted that the next hearing had not been scheduled to take place until 25 October 2001 because the presiding judge had to study the parties’ requests.
9. On 25 October 2001 the District Court, at Mr L.’s request, again ordered a post-mortem psychiatric examination of the testator and stayed the proceedings. The expert examination was performed on 30 December 2002. Three months later the District Court resumed the proceedings.
10. The hearing fixed for 27 March 2003 was postponed until 14 May 2003 to allow the applicant’s representative to lodge requests.
11. On 14 May 2003 the Zarechinskiy District Court adjourned the proceedings because Mr L. had died on 28 April 2003 and it was necessary to identify his heirs or legal successors. The proceedings were resumed on 3 December 2003 and a hearing was scheduled for 18 December 2003.
12. Of the four hearings listed between 18 December 2003 and 1 June 2004, two were adjourned because the applicant’s representatives defaulted, one was rescheduled because the claimant’s lawyer did not attend and one was postponed because a witness did not attend.
13. On 1 June 2004, at the request of the applicant’s lawyer, the District Court authorised an additional post-mortem psychiatric examination of the testator. The experts completed the examination on 17 November 2004. The District Court received the case file with the expert report on 13 January 2005.
14. Due to judge P.’s resignation, the case was assigned to judge D., who fixed the first hearing for 4 March 2005. That hearing and the subsequent hearings on 6 and 11 April 2005 were postponed because the claimant’s lawyer was ill.
15. On 7 June 2005 the District Court once again stayed the proceedings to identify Mr L.’s heirs. In the meantime, judge D. resigned and the case was assigned to judge M., who resumed the proceedings on 1 November 2005 and fixed the first hearing for 15 November 2005. Ms S. joined the proceedings as the claimant.
16. Of the fourteen hearings scheduled between 15 November 2005 and February 2007, five hearings were adjourned either because the applicant and her representatives defaulted or she filed applications for the examination of additional evidence, six hearings were postponed because Ms S. and her lawyer did not attend, two hearings were rescheduled at Ms S.’s request and one hearing was adjourned because the claimant’s witness defaulted.
17. On 7 February 2007 the District Court dismissed the action in full. On 2 August 2007 the Tula Regional Court upheld the judgment.
18. According to the applicant, her numerous complaints to various State bodies about the excessive length of the proceedings were futile. In particular, on 14 November 2005 the applicant received a letter from the acting President of the Tula Regional Judicial Qualification Board. He noted that “no unjustified procrastination in the civil case ha[d] been established”.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-76499
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KLEMENT v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicants were born in 1955, 1934 and 1968 respectively, and live in Miskolc, Hungary.
5. In 1993 criminal proceedings were instituted against the applicants and other suspects. In the context of a series of complicated economic offences, they were charged with several counts of aggravated fraud, tax fraud, forgery of documents, bribery, fraudulent bankruptcy and accounting crimes. In the ensuing proceedings the applicants were assisted by defence counsel of their choice.
6. On 25 November 1996 the first applicant’s bank accounts were frozen in order to secure the eventual confiscation of any criminal profit he might have made. Simultaneously, the applicants’ homes were searched. On 10 June 1997 the Borsod-Abaúj-Zemplén County Regional Court changed the decision of 25 November 1996 and extended the freezing measure to include all of the first applicant’s assets.
7. On 23 June 1995 the Miskolc District Public Prosecutor’s Office preferred a bill of indictment. The charges concerned altogether eight defendants.
8. After having held 30 hearings between 17 June 1997 and 7 July 1998, on 8 July 1998 the Miskolc District Court convicted the applicants of several counts of fraud, tax fraud, fraudulent bankruptcy, forgery of documents as well as accounting crimes, while acquitting them of other charges. The first applicant was sentenced to seven years’ imprisonment and to the confiscation of his frozen property in the value of 300 million Hungarian forints; the second and the third applicants were sentenced to three and a half years’ and three years’ imprisonment respectively. In the reasoning of its 76-page judgment, the District Court relied on evidence given by numerous witnesses, several opinions prepared by expert accountants, tax advisers and engineers, and documentary evidence.
9. In October 1998 the applicants submitted their initial and, on 14 May 1999, their detailed appeal. Meanwhile, on 6 January 1999 the Heves County Regional Court was appointed to hear the case, for reasons of incompatibility, instead of the competent Borsod-Abaúj-Zemplén County Regional Court.
10. After having held a hearing on 22 June 1999, on 20 September 2000 the Heves County Regional Court re-characterised part of the offences committed by the applicants, acquitted them of some charges, and reduced the first applicant’s prison term to five years and six months, and the second applicant’s term to three years. For the remainder, it upheld the first-instance judgment.
11. On 29 December 2000 the second and third applicants filed a petition for review. On 6 March 2002 the Supreme Court acquitted them of the charge of tax fraud and upheld the remainder of the second-instance judgment in their respect.
12. The first applicant’s repeated requests for a retrial were finally refused on 21 May 2002.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1