ITEMID: 001-76778
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KARIM v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Fazlul Karim, is a Bangladeshi national who was born in 1975 and is currently in Sweden. He is represented before the Court by Ms A. Enochsson, a lawyer practising in Stockholm.
The respondent Government are represented by their Agent Mr C.H. Ehrenkrona of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 May 2003 the applicant arrived in Sweden and, on the following day, he applied to the Migration Board (Migrationsverket) for asylum and a residence permit. On 28 May 2003 an initial interview was held with the applicant and, on 15 July 2003, the Migration Board conducted a second interview. During these interviews, the applicant stated that he had been active within the Jatiya Party [Ershad] in the district of Rajshahi where he lived. He had commenced his political activities in 1997 and, in 2000, he became the organisation’s secretary within the district. He had been responsible for organising meetings and demonstrations and for recruiting new members to the party.
On 1 July 2002 he had been arrested during a demonstration and had been beaten by the police while being taken to the police station. During his detention, he had been tortured two to three times per day. He had, inter alia, been beaten all over his body with sticks, suspended with his hands and feet tied from a pipe, burnt with cigarettes and had had water mixed with chilli thrown in his face. He had been told that the ill-treatment would continue until he stopped his political activities. After he had been detained for 26 days, one of the leaders of the Jatiya Party [Ershad] had managed to get him out.
He had been arrested a second time, on 10 January 2003, in connection with a meeting in one of the party’s offices. He had been detained for 30 days before his father had managed to bribe the police, paying 500,000 Bangladeshi Taka (around EUR 6,500), to get him released. Also this time he had been badly tortured and had had to stay at a private hospital for one week following his release to get treatment for his injuries. He had not reported the torture to the authorities since it was the police and supporters of the governing party who had carried it out. The police had also ordered him to present himself at the police station twice a month but he had only done so on one occasion. However, he had continued his political activities and, on 5 March 2003, the police and some supporters of the governing party had come to his home, looking for him. As he had not been at home, they had destroyed his belongings and had harassed his father, saying that they would kill the applicant should they find him. Following this, the applicant had gone into hiding.
On 10 March 2003 a supporter of the governing party had been murdered in his neighbourhood and the applicant claimed that he had been accused of the murder as yet another means of persecuting him because of his political affiliation. Due to these incidents, he had travelled to some relatives in Dhaka who had arranged for him to leave the country with the help of smugglers, to whom the applicant’s father had paid 800,000 Taka (around EUR 10,500).
The applicant alleged before the Migration Board that he would be arrested and tortured if he was returned to Bangladesh and that the political persecution of him would continue. To support his claims, he submitted a medical certificate from Bangladesh made by Dr. Serajul Islam at the Raj Clinic in Rajshahi. It stated that the applicant had been cared for at the hospital between 11 and 18 February 2003 as he had scars and wounds after receiving blows to his body. He had been given antibiotics and painkillers, as well as medication to subdue his anxiety. The applicant also relied on a certificate from the District Secretary, Mr Muklesur Rahman, of the Jatiya Party [Ershad] in Rajshahi which stated that he had been very active within the party and had been arrested and tortured on two occasions.
The applicant further invoked medical certificates from Sweden from which it appeared that he had been admitted to psychiatric care between 26 June and 8 August 2003, and thereafter had been in regular contact with the psychiatric service for asylum seekers in Stockholm. He had been diagnosed as suffering from post traumatic stress disorder (PTSD) and depression.
In a submission of 18 September 2003, the applicant claimed that he had been raped and subjected to serious sexual abuse while in detention in Bangladesh and that he had repeated flashbacks and nightmares from the abuses. He stated that he had been too ashamed and afraid to recount these events during the interviews with the Migration Board.
On 8 December 2003 the Migration Board rejected the application. It first noted that the general situation in Bangladesh was not good but that it was not such that it could grant the applicant asylum solely on this basis. The Migration Board did not question that the applicant had been involved in the Jatyia Party [Ershad] in the Rajshahi district or that he had been the victim of abuse and torture, which it regarded as serious. However, the Migration Board considered that the applicant’s political involvement had been on a local level and that he had not held a prominent position within the party. Moreover, the harassment and abuse of which he had been the victim seemed to be personal aggressions from supporters of the governing party and police officers who had acted on their own initiative. Thus, it found that the abuses were not sanctioned by the Bangladeshi authorities and that the applicant would not be of interest to the authorities because of his political involvement. Consequently, he would not face a real risk of torture or ill-treatment if returned to his home country. Furthermore, with regard to the applicant’s claim that he had been accused of murder, the Migration Board considered that he would have the opportunity to defend himself in a court of law and that the legal system in Bangladesh worked relatively well. Even if he were to be convicted in the first instance, he could appeal to the higher courts in Bangladesh which were considered to be independent and fair. In these circumstances, the applicant could not be granted asylum in Sweden.
As concerned the applicant’s mental health, the Migration Board noted that, in October 2003, he had requested to be exempt from having a working permit in order to be able to work in Sweden. The Board considered this as a sign of improvement of the applicant’s health. Moreover, it observed that there was psychiatric care available in Bangladesh where the applicant should be able to get adequate treatment. The Board further found that the applicant was not suffering from a serious mental disorder or any other disorder of such a serious nature that he could be granted leave to stay in Sweden based on humanitarian grounds.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that, although torture was prohibited by Bangladeshi law, it was widespread. Moreover, the Bangladeshi authorities sanctioned persecution of political opponents and, if he was prosecuted for murder, he would risk being kept in detention for a very long time before the case was heard by the courts. The applicant further stated that he had continuous nightmares about the torture and the sexual abuse of which he had been a victim, and had serious thoughts of suicide. According to him, his friends had to keep an eye on him all the time. He relied on medical certificates which supported his statements concerning his poor mental health.
On 22 April 2004 the Aliens Appeals Board rejected the appeal. It shared the Migration Board’s reasoning and conclusion that the applicant could not be granted asylum. With regard to his poor mental health, the Aliens Appeals Board noted that he was not undergoing regular treatment except that he met with a nurse for counselling. Thus, it found that the applicant was not in such poor health that he could be granted a residence permit on humanitarian grounds.
In October 2004 the applicant lodged a new application for a residence permit on humanitarian grounds, invoking his continuously deteriorating mental health. He relied on medical certificates from the Crisis and Trauma Centre which confirmed that he had been subjected to grave and systematic torture, and that it had caused him to develop PTSD with a psychotic strain. He was considered to be in need of extensive treatment. Moreover, between April and September 2004, he had been admitted to psychiatric care on several occasions (6-11 May 2004, 19 May-7 June 2004, 5-12 July 2004, 10-12 August 2004 and 28-30 September 2004) because he had been considered to be suicidal.
On 19 October 2004 the Aliens Appeals Board decided to stay the enforcement of the deportation of the applicant until further notice. It further requested an independent physician (förtroendeläkare) to examine the applicant and to submit her observations and conclusions to the Board.
On 19 November 2004 the physician, Dr A. Voltaire Carlsson, a specialist in psychiatry, submitted her findings which were based on a personal examination of the applicant and access to all his medical journals and certificates. She observed that the applicant suffered from flashbacks from the torture and rape, and that he blamed himself for the abuses. Moreover, he was constantly anxious and depressed but the psychiatrist found no sign of psychotic symptoms or paranoia. However, his health had not improved and, although he had never injured himself, he had expressed suicidal thoughts and plans. Thus, she considered that a risk of suicide in the future could not be excluded and she concluded that there existed certain impediments against the enforcement of the deportation order.
In response to the independent physician’s conclusion, two of the applicant’s regular physicians, Dr G. Roth and Dr H.P. Søndergaard, replied that they considered that there were clear and absolute impediments against the enforcement of the deportation order since the applicant suffered from grave PTSD and depression, and because there was a real risk that he would try to commit suicide.
On 31 January 2005 the Aliens Appeals Board rejected the new application. It first noted that the applicant had only invoked humanitarian grounds based on his poor mental health and that it was only in exceptional cases that leave to stay could be granted on that basis. The Aliens Appeals Board found that the medical certificates and the independent physician’s report did not show that the applicant had a serious mental disorder for which a residence permit should be granted on medical grounds. It considered that the applicant could receive proper treatment in his home country and noted that his relatives remained there. Thus it concluded that it would not violate the standards of humanity to deport him to Bangladesh.
The applicant then lodged another new application with the Aliens Appeals Board. He stated that, since the last rejection, he had been admitted to psychiatric care on three occasions (4-8 February 2005, 11-23 February 2005 and 17-21 March 2005) due to a high risk of suicide. His treating physicians considered that he suffered from a serious and complicated psychiatric disorder due to his traumas in his home country and that there was an absolute impediment to the enforcement of his deportation order.
On 13 April 2005 the Aliens Appeals Board rejected the new application on the grounds that the applicant had invoked no new circumstances of relevance.
As the applicant refused to leave Sweden voluntarily and went into hiding to avoid deportation, the Migration Board, on 10 June 2005, transferred the responsibility for implementing the deportation order to the police authority.
On 1 July 2005 the applicant lodged yet another new application with the Aliens Appeals Board because he had, once again, been admitted to psychiatric care.
On 4 July 2005 the Aliens Appeals Board decided not to stay the enforcement of the deportation order.
However, on 6 July 2005, following the Court’s indication under Rule 39 of the Rules of Court, the Migration Board decided to stay the deportation of the applicant until further notice. The Migration Board’s decision is still in force.
On 5 January 2006 the Court adjourned the case at the request of the Swedish Government following the enactment of an interim amendment to the Swedish Aliens Act, on the basis of which the applicant’s case would be reviewed.
On 6 April 2006 the applicant informed the Court that, on 27 March 2006, the Migration Board had decided not to grant him a residence permit in Sweden on the basis of the interim amendment to the Aliens Act. The Migration Board had concluded that the applicant could not be granted leave to stay on medical grounds and that he could get adequate care in his home country.
According to a medico-legal protocol, dated 26 August 2004, and a medico-legal certificate, dated 8 September 2004, both by Dr E. Edston, a specialist in forensic medicine at the Crisis and Trauma Centre, the applicant had a large number of scars on his body, some of which were typical after burning and severe violence (skarpt våld). It was considered very unlikely that the applicant could have caused these injuries himself or that they were the result of accidents. Instead, the findings confirmed that he had been tortured as he had claimed.
With regard to the applicant’s mental health, he has submitted several medical reports from the aforementioned psychiatrists (Drs Søndergaard, Roth and Voltaire Carlsson) dating from September 2004 to February 2006, as well a report dated 30 June 2005 from Dr J. Guterstam, assistant physician, and Dr O. Broström, chief physician at the Karolinska Hospital. According to these reports, the applicant was admitted for psychiatric care for the first time between 26 June and 8 August 2003, just one month after his arrival in Sweden on 25 May 2003. Subsequently, he has been admitted to psychiatric care on repeated occasions but for shorter periods, the last time between 30 June and the beginning of July 2005, due to the risk of suicide. However, on no occasion has he been committed to compulsory psychiatric care (tvångsvård), i.e. taken into care against his will. He has had continuous contact with psychiatric services and has had a positive attitude to treatment all along.
All the physicians agreed that the applicant suffered from serious PTSD and depression, and that his health had not improved despite the treatment. Dr Roth and Dr Søndergaard also considered that he had a serious and complicated psychiatric disorder, with which diagnosis, however, Dr Voltaire Carlsson disagreed as she had found no signs of psychotic symptoms when examining the applicant. Nevertheless, she considered that a risk of suicide could not be excluded, although the applicant had never injured himself. Drs Roth and Søndergaard maintained in their reports that there was a real risk of suicide as the applicant was constantly struggling with self-destructive thoughts, and had suicidal impulses and clear flashbacks from torture. Thus, in the view of Dr Voltaire Carlsson, there were certain impediments against the enforcement of the deportation order because of the applicant’s mental health condition, whereas Drs Roth and Søndergaard insisted that there was an absolute impediment against the deportation as the applicant was in such poor mental health that he could act in desperation if he were to be deported. These two physicians also stated that the applicant’s poor health had been caused by the traumas of which he had been the victim in Bangladesh and by the prolonged insecurity in Sweden. They estimated that he would need extensive treatment, both medical and psychiatric, for a long time and in a secure environment.
In the last certificate, dated 22 February 2006, Dr Roth wrote that the applicant’s condition had not improved but rather worsened because he was very frustrated over his uncertain situation in Sweden. He had continuous contact with a psychologist at the clinic and got his medication in doses for one week at a time to prevent a suicide by overdose. He was medicated with the anti-psychotic drug, Zyprexa, the anti-depressive drug, Clomipramine, as well as with anxiety reducing medication and sleeping pills.
The Bangladeshi government is the main provider of health services in the country, with the private sector playing an increasingly larger role. Moreover, non-governmental organisations (NGOs) are involved in the provision of primary health care and in rehabilitation. The country has a national mental health programme and there are budget allocations for mental health. However, both the budget and the number of mental health professionals are largely inadequate. Medicines, including antidepressants, are available and commonly used in Bangladesh for the treatment of mental illness. Different types of psychotherapy are also used in treatment.
Formal care and treatment of mentally ill persons started in 1957 when the Pabna Mental Hospital was opened and, in 1969, the first outdoor clinic started functioning in Dhaka Medical College. Since the 1970s, more institutes were opened and, in 2002, the National Mental Health Institute opened as a fully operational hospital and educational centre. Moreover, each military hospital has a mental health department and there are mental health sections in hospitals in several cities around the country. Several smaller, private clinics have also been established, in particularly in and around Dhaka, such as the Bidyut Mental Clinic.
Furthermore, the Bangladesh Association of Psychiatrics, the Bangladesh Psychological Association and the Bangladesh Clinical Psychology Association have their seats in Dhaka and are affiliated to the Dhaka Medical College, the Department of Psychology and the Department of Clinical Psychology at the University of Dhaka, respectively. Also, in 1992, an NGO, the Bangladeshi Mental Health Association, was created with the mission to provide community-based mental health service to the people in Bangladesh. It has its base at the Monorog Clinic in Dhaka.
The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was replaced, on 31 March 2006, by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 Act and the 2005 Act define the conditions under which an alien can be expelled from the country, as well as the procedures relating to the enforcement of decisions under the Acts.
Chapter 1, Section 4 of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country.
Further, according to the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 3, Section 3).
An alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he or she filed a so-called new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7).
When it came to enforcing a decision on refusal of entry or expulsion, account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1).
In essence, there have not been any major changes to the provisions referred to above in the 2005 Act, with the exception of the following:
Through the enactment of the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to lodge so called new applications but, instead, the Migration Board shall, on its own initiative, determine whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18).
Furthermore, between 15 November 2005 and 30 March 2006, some interim amendments to the 1989 Act were in force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children.


ITEMID: 001-71117
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TOLOKONNIKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1966 and lives in Voronezh.
5. The applicant receives welfare payments for her child. In 2000 she brought civil proceedings against a local welfare authority, claiming arrears in those payments for 1998 – 1999.
6. On 25 February 2000 the Kominternovskiy District Court of Voronezh awarded the applicant 3,952.66 Russian roubles (RUR). This judgment entered into force on 6 March 2000.
7. On 19 April 2000 a writ of execution was issued and sent to the bailiffs.
8. On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 25 February 2000 and returned the writ of execution to the applicant, as the debtor had insufficient funds.
9. In January – February 2004 the applicant was paid the amount due pursuant to the writ of execution.
10. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
11. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91343
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: STATE HOLDING COMPANY LUGANSKVUGILLYA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: The applicant is a legal entity, a state holding company, Luganksvugillya (Державна холдингова компанія «Луганськвугілля»), registered in Lugansk, Ukraine. It is represented before the Court by Mr Viktor Bilyk, a practicing lawyer.
On 12 August 2004 the local department of the State Securities and Stock Market Commission imposed a fine on the applicant company for failure to comply with the legislation on market circulation of shares.
In August 2004 the applicant company lodged a complaint with the Lugansk Regional Commercial Court against the aforementioned resolution of the Commission to impose a fine on it.
On 5 October 2004 the court rejected this complaint as it was unsubstantiated. On 23 December 2004 the Lugansk Commercial Court of Appeal upheld that judgment.
The applicant lodged an appeal in cassation with the Higher Commercial Court, which on 11 March 2005 refused to examine it for the applicant’s failure to comply with the formal requirements envisaged in the Code of Commercial Procedure for lodging such appeals.
On 28 April 2005 the Supreme Court refused to institute cassation proceedings upon the applicant’s appeal in cassation lodged against the resolution of 11 March 2005.
From extensive domestic law, including the acts of Parliament, normative acts of the Cabinet of Ministers and various ministerial decisions and orders it ensues that the applicant company is managed and fully controlled by the Government of Ukraine, through its various institutional structures, including formerly through the Ministry of Fuel and Energy of Ukraine and currently the Ministry of Coal Industry of Ukraine. The company exercised certain public functions in administration of funds allocated by the State for restructuring of the coal industry.
On 8 July 2008 the Ministry of Coal Industry of Ukraine by an order no. 326, acting in accordance with the Civil and Commercial Codes of Ukraine, the State Registration of Legal Entities and Entrepreneurs Act and the Management of State Property Act, ordered the liquidation of the state holding company Luganskvugillia. The liquidation proceedings are still pending.


ITEMID: 001-57475
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF ECKLE v. GERMANY (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 1. The Eckle case was referred to the Court on 18 May 1981 by the European Commission of Human Rights ("the Commission"). The case originated in an application (no. 8130/78) against the Federal Republic of Germany lodged with the Commission on 27 September 1977 by two German nationals, Mr. Hans Eckle and his wife Marianne.
2. By a judgment of 15 July 1982, the Court found a breach of Article 6 § 1 (art. 6-1) of the Convention in that the applicants had not received a hearing within a reasonable time (Series A no. 51, point 2 of the operative provisions and paragraphs 71-95 of the reasons, pp. 32-40).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 9 to 60 of the above-mentioned judgment (ibid., pp. 8-28).
3. At the hearings on 22 March 1982, counsel for the applicants stated that, should the Court find a violation of the Convention, his clients would be claiming just satisfaction under Article 50 (art. 50) for the prejudice suffered as a result of the unreasonable length of the proceedings and possibly for legal costs; he did not, however, quantify their claims. The Government of the Federal Republic of Germany ("the Government") did not take a stand on the matter.
In its judgment of 15 July 1982, the Court reserved the whole of this question. The Commission was invited to submit to the Court, within the coming two months, its written observations and, in particular, to notify the Court of any friendly settlement at which the Government and the applicants might have arrived (see point 3 of the operative provisions and paragraph 96 of the reasons, ibid., p. 40).
4. After one extension of the above-mentioned time-limit by the President of the Chamber and in accordance with his Orders and directions, the registry received:
- on 15 October 1982, 19 November 1982 and 17 January 1983, through the Secretary to the Commission, the Delegate’s and the applicants’ respective observations;
- on 28 October 1982, 14 December 1982 and 14 February 1983, the Government’s comments.
These documents revealed that no friendly settlement had been reached.
5. By letter dated 6 October 1982, which was received at the registry six days later, the lawyer for Mr. and Mrs. Eckle informed the Registrar that he was no longer representing them; on 12 October, they instructed Mr. von Stackelberg as their lawyer.
6. Mr. L. Liesch, substitute judge, took the place of Mr. D. Evrigenis, who was prevented from taking further part in the consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).
7. After consulting, through the Deputy Registrar, the Agent of the Government and the Delegate of the Commission, the Court decided on 25 May 1983 that there was no call to hold hearings.


ITEMID: 001-22060
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ZAKLANAC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Teodor Zaklanac, is a Croatian citizen, born in 1948 and living in Sisak, Croatia. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in Croatia, at that time part of the Socialist Federal Republic of Yugoslavia (hereinafter “SFRY”), where he had lived until 1991 when, together with his family, he allegedly left for Switzerland. As he did not obtain permission to stay in Switzerland, in 1992 he moved to the Federal Republic of Yugoslavia. Some months later he returned to Croatia and lived in different parts of the then occupied territories.
In September 1995 Parliament passed a law governing temporary use of the property of persons who left Croatia - Temporary Takeover and Managing of Certain Property Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom - hereinafter the “Takeover Act”), which allowed municipalities to give such property for the use of other persons.
It appears that, pursuant to that Act, the Sisak Municipality temporarily accommodated M. I. in the applicant’s house in Sisak.
On 17 January 1997 the applicant instituted civil proceedings with the Sisak Municipal Court seeking re-possession of his house.
On 21 April 1997 the court pronounced judgment by default in the applicant’s favour.
Subsequently, M. I. filed an application to return the proceedings to the status quo ante and at the same time lodged an appeal against the judgment. On 11 March 1998 the Sisak Municipal Court dismissed the application to return the proceedings to the status quo ante.
In June 1998 Parliament adopted the Programme for the Return of Refugees and Displaced Persons (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba - hereinafter the “Programme for Return”), regulating the principles for their return and the re-possession of their property.
In July 1998 Parliament passed the Act on Termination of the Takeover Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom).
The applicant sought, and on 7 December 1998 obtained, an eviction order from the Sisak Municipal Court. The eviction with the assistance of the court organs was scheduled for 22 December 1998, but was not enforced due to M. I.’s above mentioned appeal against the judgment by default of 21 April 1997.
On 18 February 1999 the Sisak County Court quashed the first instance judgment, and remitted the case to the Sisak Municipal Court for re-examination. It found that the Sisak Municipal Court had failed to assess whether M. I. was given a permission to use the applicant’s property according to the Takeover Act, or without any legal basis, as that was a decisive fact concerning the application of the Programme for Return.
On 27 March 2000 the Sisak Municipal Court dismissed the applicant’s claim. It found that the applicant wrongly filed his action with a municipal court. Instead, he should have filed a request for re-possession of his property with a housing commission, as provided by the Act on Termination of the Takeover Act. The court also stated that that Act was a lex specialis in relation to the Property Act (Zakon o vlasništvu i drugim stvarnim pravima), which regulates property rights. As neither party appealed against that decision, it became final on 20 April 2000.
According to the documents submitted by the applicant, it appears that in the meantime he had lodged a request for re-possession of his property with the Sisak Municipality Housing Commission (Stambena Komisija Općine Sisak). On 4 November 1999 the Sisak Municipality Housing Commission decided to annul the previous decision by which M. I. had obtained the right of use of the applicant’s property.
Subsequently, upon M. I.’s appeal, on 17 January 2000 the Sisak Municipality Housing Commission upheld its previous decision. It found that M. I. was the illegal possessor of the applicant’s property.
On 15 January 2001 the Sisak Municipality Housing Commission ordered M. I. to vacate the premises within a period of 15 days. It appears that he failed to comply with that order.
On 13 September 2001 the Sisak Housing Commission filed an action for eviction of M. I. from the applicant’s property with the Sisak Municipal Court. It appears that these proceedings are currently pending.
Section 2 §§ 3 and 4 of the Act on Termination of the Temporary Takeover and Control of Certain Property Act (Official Gazette no. 73/1995) provide that the proceedings concerning temporary use, management and control of the property of persons who left Croatia are to be conducted by the housing commissions in the first instance and by the municipal courts in the second instance. They shall apply provisions of the Administrative Proceedings Act.
Section 9 of the Programme of Return of Refugees and Displaced Persons (Official Gazette no. 92/1998) provide as follows:
“Persons with Croatian documents, who are the owners of property in Croatia where other persons are temporarily accommodated, may apply to the municipal housing commissions and seek re-possession of their property. The commission shall inform the owner within five days about the status of his property. Relying on the proof of the ownership, the commission shall annul previous decision allowing temporary accommodation of other persons and order the persons accommodated to vacate the premises. The commission shall serve a written decision to the owner and the temporary occupier within seven days. The decision shall contain a time limit for eviction and an offer of an alternative lodging for a temporary occupier in a house or a flat in the state ownership.
...
“In case that a temporary occupier does not vacate the premises within the fixed time, the commission shall institute eviction proceedings with a competent municipal court within seven days. The court shall apply provisions concerning the civil summary proceedings. The court’s decision is immediately enforceable. An appeal does not interfere with the enforcement proceedings or the re-possession of the property by the owner."


ITEMID: 001-79032
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BUJNITA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1973 and lives in Chişinău.
7. On 26 June 2001 the applicant was acquitted of rape by the Râşcani District Court. The District Court examined the parties’ statements, witnesses’ declarations and medical reports. It found, in particular, that the applicant had not had sexual intercourse with the victim without the latter’s consent, since on numerous occasions the victim could have refused intercourse with the applicant and could have alerted a police patrol which had stopped them on the way to the applicant’s apartment. The victim could also have alerted the applicant’s flatmates, who had been in the apartment during the alleged rape, as well as other persons. The District Court also found that the medical reports did not provide a clear answer to the question as to whether the applicant had had intercourse with the victim.
8. The prosecutor and the victim appealed. Their appeals merely stated that the verdict of the Râşcani District Court was unlawful and unreasoned.
9. On 14 August 2001 the Chişinău Regional Court upheld their appeal, quashed the judgment of the Râşcani District Court and found the applicant guilty of rape. The Regional Court found that the victim’s statements, the witnesses’ declarations and the medical reports indicated that there had been forced intercourse with the victim. It found that the victim had been depressed and forcibly taken to the applicant’s apartment. The court sentenced him to five years’ imprisonment. However, the Chişinău Regional Court applied an amnesty law of 10 August 2001 and relieved the applicant from the obligation to serve his sentence. The applicant lodged an appeal in cassation.
10. By a final judgment of 30 October 2001, relying on section 335/5 § 2 of the Code of Criminal Procedure (CCP) in force at the time (see paragraph 13 below), the Court of Appeal upheld the applicant’s appeal in cassation and quashed the judgment of the Chişinău Regional Court. The Court of Appeal found that the Regional Court had not objectively assessed the evidence and had taken into consideration only the victim’’s statements that she had been forcibly brought to the applicant’s apartment were contradicted by the witnesses’ declarations. The Court of Appeal concluded that the Râşcani District Court had objectively assessed the evidence and reached the conclusion that the applicant was innocent. It also stated that any doubts should be interpreted in favour of the accused. The Court of Appeal upheld the judgment of the Râşcani District Court of 26 June 2001.
11. On 20 December 2001 the Deputy Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the judgments of the Râşcani District Court and the Court of Appeal. He argued that the Râşcani District Court and the Court of Appeal had unlawfully assessed the evidence and asked the Supreme Court to uphold the judgment of the Chişinău Regional Court of 14 August 2001.
12. On 26 February 2002 the Supreme Court of Justice upheld the Deputy Prosecutor General’s request for annulment, quashed the above-mentioned judgments and upheld the judgment of the Chişinău Regional Court of 14 August 2001. The Supreme Court gave the same reasons for finding the applicant guilty of committing the rape as the Chişinău Regional Court had used in its judgment of 14 August 2001.
13. The following are relevant extracts from the Code of Criminal Procedure of 1961 repealed on 12 June 2003.
When ruling on an appeal in cassation, the cassation instance shall provide one of the following judgments:
...
2) it shall uphold the appeal in cassation and quash the appealed judgment and:
a) maintain the judgment of the first-instance court, if the appeal had been wrongly upheld.
The General Prosecutor and his or her deputies may, on their own initiative or at the request of the parties, file a request for annulment with the Supreme Court of Justice in respect of any judgment which has become final after all the ordinary means of appeal have been exhausted.
Final judgments in criminal cases shall be subject to requests for annulment through cassation procedure in the following instances:
...
2. Instances where a request for annulment is made only in favour of a convicted person:
a. the provisions governing jurisdiction ratione materiae or jurisdiction ratione personae had not been observed;
b. the composition of the court did not correspond to the legal requirements, or if the provisions of sections 19, 20 and 22 of the present Code were violated;
c. the judicial hearing was not public, with the exception of those cases where the law provides otherwise;
d. examination of the case took place without the participation of the prosecution service, the defendant, the counsel for the defence and an interpreter, where their participation was compulsory under the law;
e. examination of the case took place without due notification of the parties;
f. no forensic-psychiatric examination of the defendant was conducted, in cases provided for in section 66 (3) of the present Code;
g. the court permitted procedures for appeal or for annulment which were not in accordance with the law, and permitted a request for annulment or an appeal where the prescribed time-limit had expired;
...
i. an international court found that there has been a breach of human rights and fundamental freedoms, which could be remedied by a re-hearing.
Other judgments which have become final shall be subject to a request for annulment only in instances where they contradict the legislation.
A request for annulment in favour of the convicted person or a person in respect of whom criminal proceedings have been closed may be submitted at any time, including after that person’s death, in respect of the part concerning the criminal case as a whole and, in respect of the part concerning the civil action, only where its resolution affects the criminal case as a whole.
In remaining cases a request for annulment may be submitted only within one year of the date on which that judgment becomes final, if some significant error in the previous procedure has influenced the impugned decision.
...
A request for annulment of a judgment shall be lodged with the court in written form, with an indication of the grounds for annulment and inclusion of as many copies as there are participants in the proceedings.
From the beginning of the proceedings, the General Prosecutor shall be entitled to withdraw the request for annulment, indicating the reasons for that withdrawal.
Requests for annulment with regard to judgments of the Criminal Division and the Enlarged Division of the Supreme Court of Justice shall be examined by the Plenum of the Supreme Court of Justice, and requests for annulment of other judgments shall be examined by the Criminal Division of the Supreme Court of Justice.
A request for annulment shall be examined and dealt with in accordance with the provisions of Chapter 30 of the present Code, which shall be applied in the appropriate manner and completed by the provisions of the present chapter.
A request for annulment which is to the detriment of the convicted person, an acquitted person or a person in respect of whom the proceedings have been closed, shall be examined following the summoning of the parties. Where a request for annulment is submitted in the convicted person’s favour, the Supreme Court of Justice shall have discretion in deciding whether to summon the parties.
Where the request for annulment is granted in respect of a convicted person who is serving a sentence, and where a judgment is quashed and the case is remitted to the courts for re-examination, the Supreme Court of Justice shall also decide on any preventive restrictions that should be imposed.
...
14. The following are relevant extracts from the Code of Criminal Procedure of 12 June 2003.
The General Prosecutor, his or her deputies or the parties mentioned in section 401 & 2)-4) [the applicant] may lodge a request for annulment with the Supreme Court of Justice in respect of any judgment which has become final after all the ordinary means of appeal have been exhausted.
Final judgments in criminal cases shall be subject to requests for annulment (...) in the following instances:
...
d. an international court found that there has been a breach of human rights and fundamental freedoms, which could be remedied by a re-hearing.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57530
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1978
DOCNAME: CASE OF LUEDICKE, BELKACEM AND KOÇ v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (disappearance of object of proceedings);Violation of Art. 6-3-e;Not necessary to examine Art. 14;Pecuniary damage - financial award;Just satisfaction partially reserved
TEXT: 10. At the time when they introduced their applications with the Commission, Mr. Gerhard W. Luedicke, Mr. Mohammed Belkacem and Mr. Arif Koç were resident in the Federal Republic of Germany.
The three applicants were charged before the German courts with the commission of various criminal offences. Since they were not sufficiently familiar with the language of the country, they were assisted by an interpreter in accordance with German law. After conviction, they were ordered, amongst other things, to pay the costs of the proceedings, including the interpretation costs. They consider that the inclusion of this latter item is contrary to, inter alia, Article 6 para. 3 (e) (art. 6-3-e) of the Convention.
11. In criminal proceedings, the courts must use the services of an interpreter whenever the accused is not conversant with German. The first sentence of section 185 para. 1 of the Constitution of the Courts Act (Gerichtsverfassungsgesetz) provides as follows:
"If the proceedings before the court involve the participation of persons who do not have command of the German language, an interpreter shall be employed."
Pursuant to this provision, the assistance of an interpreter is made available as a matter of course to an accused - whatever his nationality - who does not understand or speak the German language. The same rule is applicable to the examination of witnesses who do not have command of the German language.
The obligation to employ an interpreter is, however, subject to one exception, namely when all the participants are familiar with the foreign language (section 185 para. 2 of the Constitution of the Courts Act).
12. Interpretation costs are part of the costs of the proceedings which, according to Article 464 (a) para. 1, first sentence, of the Code of Criminal Procedure (Strafprozeßordnung), are made up of "the fees (Gebühren) and expenses of the Treasury". The latter are listed in the Court Costs Act (Gerichtskostengesetz) which in turn refers to the Witnesses and Experts (Expenses) Act (Gesetz über die Entschädigung von Zeugen und Sachverständigen). Section 17 para. 2 of the last-mentioned Act provides that "for the purposes of compensation, interpreters shall be treated as experts".
According to Article 465 para. 1, first sentence, of the Code of Criminal Procedure:
"The accused shall bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction ..."
Under this provision, the question of payment of the costs of the proceedings arises only after there has been a final ruling on the guilt of the accused; an accused person may never be required to make any advance payment on these costs. In the event of acquittal or of proceedings being discontinued, the Treasury in principle bears the costs. On the other hand, if the individual concerned is convicted, he has to pay the costs, but only such proportion thereof as relates to the criminal charges upheld by the court.
13. As concerns interpretation costs in particular, Article 6 para. 3 (e) (art. 6-3-e) of the Convention, which forms an integral part of the domestic law, specifies that "everyone charged with a criminal offence has the (right) ... to have the free assistance of an interpreter if he cannot understand or speak the language used in court". This text has not been interpreted and applied by the German courts in a uniform way. Certain courts read it as embodying an obligation for the Treasury to bear the costs in question for all time and in all cases; other courts, including some higher courts, consider on the contrary that while Article 6 para. 3 (e) (art. 6-3-e) - like the Code of Criminal Procedure - exempts an accused (that is, a person "charged with a criminal offence") from paying in advance for the expenses incurred by the use of an interpreter, it does not prohibit such expenses being awarded against a convicted person.
14. Interpretation costs are assessed in accordance with a scale fixed by law and not by the interpreters themselves; the assessment is made by a court official (Kostenbeamter) when the overall costs of the proceedings are determined.
15. Mr. Gerhard W. Luedicke is a citizen of the United Kingdom and was, at the time of his application to the Commission, a member of the British Forces stationed in the Federal Republic of Germany.
16. On 5 May 1972, the Bielefeld District Court (Amtsgericht) convicted him of a road traffic offence. He was fined DM 900 and ordered to pay the costs of the proceedings.
On 2 June 1972, after the judgment had become final, the public prosecutor’s department (Staatsanwaltschaft) attached to the Bielefeld Regional Court (Landgericht) served Mr. Luedicke with a notice to pay the sum of DM 1,330.90, made up of the fine of DM 900 and the fees (Gebühren) due in respect of the criminal proceedings (DM 90) and the withdrawal of his driving licence (DM 30), together with police costs (DM 85.50) and interpretation costs (DM 225.40). DM 154.60 of the last item related to the oral hearing.
17. On 30 June 1972, the applicant, represented by the Command Legal Aid Section at Bielefeld, entered an appeal (Erinnerung) against this assessment of costs; he maintained that the assessment was contrary to Article 6 para. 3 (e) (art. 6-3-e) of the Convention in so far as it concerned payment of the interpretation costs.
Following the refusal of the auditor (Bezirksrevisor) attached to the Bielefeld Regional Court to modify the assessment, the matter was referred to the Bielefeld District Court which dismissed the appeal on 31 August 1972. The District Court stated in particular:
"The object of Article 6 (art. 6) of the Convention ... is to guarantee certain fundamental rights to everyone faced with criminal proceedings. In Germany, this Article (art. 6) applies to proceedings brought against foreigners as well as to those brought against German nationals. It is not the aim of the provision to place foreigners in a more favourable position than German nationals. This, however, would be the case if a foreign convicted person was not required to pay the interpretation costs. For example, under the German law of procedure and costs, a deaf-and-dumb convicted person against whom proceedings cannot be taken without a special interpreter must pay the costs of interpretation. So must also a German convicted person in whose trial non-German-speaking witnesses have to be examined with the assistance of an interpreter. Under the rules of German criminal procedure every person finally convicted must himself bear all the costs of the proceedings, including ... the interpretation expenses. This obligation is not contrary to Article 6 (art. 6) ... which does not forbid awarding the costs of the proceedings against a person convicted of an offence.
Under German procedural law, however, no accused person need make advance payment for the costs of interpreters ... This would appear not to be the case in other signatory States of the Convention as otherwise it would be difficult to understand the wording of Article 6 para. 3 (e) (art. 6-3-e).
The Court thus interprets Article 6 para. 3 (e) (art. 6-3-e) ... as a provisional exemption from paying the interpretation costs ..."
18. On 8 February 1973, following an "immediate appeal" (sofortige Beschwerde) by Mr. Luedicke, the Bielefeld Regional Court confirmed the impugned decision, relying, inter alia, on the "correctness of the reasoning" contained in that decision.
On 4 May 1973, the applicant paid the costs of the proceedings, including the interpretation costs.
19. Mr. Mohammed Belkacem is an Algerian citizen, born in 1954. After completing his apprenticeship as a locksmith in Algeria, he rejoined his father in the Federal Republic of Germany where he followed various occupations.
20. In December 1973, he was involved in a dispute in a Berlin night-club during which another client lost his coat. He was charged with robbery and with assault occasioning bodily harm; his case was tried by the Berlin-Tiergarten Juvenile Court (Jugendschöffengericht). On 8 April 1974, the Juvenile Court convicted him of assault occasioning bodily harm. He was sentenced to four weeks’ imprisonment (Dauerarrest) - a sentence deemed to have been served during his detention on remand - and to a fine of DM 500, and he was ordered to pay the costs of the proceedings.
21. On 10 April 1974, Mr. Belkacem filed an "immediate appeal" against the order as to costs insofar as the interpretation costs had been included in the award. He submitted that Article 6 para. 3 (e) (art. 6-3-e) of the Convention granted him exemption from payment of the costs in question.
On 13 June 1974, the Berlin Regional Court dismissed the appeal. The Regional Court reasoned that, since no assessment of costs had yet been made, there had been no decision capable of being challenged on appeal. The Regional Court further stated that the Juvenile Court would have acted improperly if it had omitted the interpretation costs from its decision on the costs of the proceedings - the former costs, according to Article 464 (a) of the Code of Criminal Procedure read in conjunction with the Court Costs Act and the Witnesses and Experts (Expenses) Act, constituting a component of the latter costs. Furthermore, it was added, Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prohibit a convicted person being made to bear interpretation costs.
22. On 11 April 1975, the Berlin-Tiergarten District Court served Mr. Belkacem with a notice to pay costs amounting to DM 665.63, including DM 321.95 for interpretation costs. The latter sum comprised the expenses incurred in respect of Mr. Belkacem’s appearance before the judge on 17 December 1973 (DM 33.25), the review on 14 January 1974 of his detention on remand (Haftprüfungstermin) (DM 67.60), the translation of the indictment (DM 90.20) and the trial hearing on 8 April 1974 (DM 130.90).
The applicant unsuccessfully challenged the inclusion of interpretation costs in this assessment of the costs. On 29 May 1975, his appeal was dismissed by the District Court which held, inter alia, that Article 6 para. 3 (e) (art. 6-3-e) of the Convention did not prevent interpretation costs being awarded against a convicted person. Mr. Belkacem then lodged an "immediate appeal" which was rejected by the Berlin Regional Court on 2 October 1975. As far as Article 6 para. 3 (e) (art. 6-3-e) was concerned, the Regional Court referred to its decision of 13 June 1974 and continued:
"In the light of the context of Article 6 para. 3 (art. 6-3) ..., which lays down fundamental guarantees for a fair trial, the Court ... interprets sub-paragraph (e) (art. 6-3-e) to mean that the assistance of an interpreter must not be made dependent on the accused’s making any advance payment. This sub-paragraph guarantees a court hearing for a foreigner who is ignorant of the language, regardless of his capacity to pay.
Who finally has to bear the costs of interpretation after the proceedings have terminated is a different question. That after conviction this may be the accused is not excluded by Article 6 para. 3 (e) (art. 6-3-e) ..."
23. On 5 May 1977, following a request by Mr. Belkacem, the Berlin Justizkasse allowed him to defer payment "until the decision of the Commission of Human Rights be known". From that time, he has not been required to pay the costs in question since, at the request of the Government, the relevant Berlin authorities (Landesjustizverwaltung) have suspended recovery awaiting the judgment of this Court.
24. Mr. Arif Koç, a Turkish citizen born in 1940, has been employed in the Federal Republic of Germany in various trades, including mining and the construction industry. When he applied to the Commission, he was living at Geilenkirchen-Waurichen. On 12 April 1976, he notified the relevant authorities in Alsdorf, near Aachen, his last place of residence in Germany, of his intention to return to Turkey.
25. On 6 December 1973, the Assize Court attached to the Regional Court (Schwurgericht beim Landgericht) at Aachen convicted Mr. Koç of causing grievous bodily harm. He was sentenced to a year’s imprisonment, but the balance of his sentence remaining after allowance had been made for his detention on remand was commuted to a period of probation. The court ordered the applicant to bear the costs of the proceedings "with the exception, however, of the costs occasioned by the assistance of the Turkish-language interpreter, which costs are to be borne by the Treasury". Although taking notice of the conflicting practice of the German courts in this connection, the Assize Court held that the "free" assistance of an interpreter, as guaranteed by Article 6 para. 3 (e) (art. 6-3-e) to every accused not conversant with the language of the court, is to be understood as being free once and for all time.
26. On an "immediate appeal" by the public prosecutor’s department, the Cologne Court of Appeal (Oberlandesgericht), in a fully reasoned decision delivered on 5 June 1975, set aside the Assize Court’s judgment insofar as it related to the interpretation costs. The Court of Appeal stated:
"On [its] wording, it is controversial whether (Article 6 para. 3 (e)) (art. 6-3-e) forbids a convicted person’s being charged with the costs of interpretation under the above-cited provisions relating to costs or whether - in the case of criminal proceedings in German courts – it merely means that the assistance of an interpreter may not be made dependent on an advance payment by the accused. ...
.....
The object of the Convention is to secure human rights and fundamental freedoms against arbitrary State action and to place them under the protection of supranational law. ... It is not its purpose to go further and alter the national legal systems ... The list of procedural guarantees in Article 6 (art. 6) of the Convention shows that the intention was to enshrine rights of the citizen and duties of the State which ensure a fair trial. This obviously means that the accused (or person charged) should be able to call for the assistance of an interpreter if he does not understand or speak the language used in court and that such assistance should be in no way dependent on the question of costs. But it certainly does not mean that even a convicted person may not have the costs of interpretation awarded against him. A fair trial is guaranteed in this respect insofar as the accused must be assisted by the interpreter he needs. The question whether he may later be required to bear the costs is not of the same order as the problem of guaranteeing human rights and fundamental freedoms but, both in theoretical and practical terms, is of lesser moment. It cannot be assumed that the Convention is intended to provide a piecemeal solution of the question of costs in criminal proceedings. Nor does the consideration that a foreigner should not receive worse treatment in the matter of costs than a national, dictate the conclusion that permanent exemption from costs is necessarily implied by the object of the Convention ... The Convention would not have come appreciably nearer to achieving its aim by prohibiting a financial disadvantage of such a kind."
On 1 July 1975, Mr. Koç applied to the Federal Constitutional Court (Bundesverfassungsgericht) which, eight days later, declined to hear the application on the ground that it did not offer sufficient prospects of success.
27. According to the payment vouchers (Kassenanweisungen), the fees paid to the interpreter amounted to DM 311.50 for the hearing on 4 December 1973, DM 510.50 for the hearing on 5 December and DM 112.50 for the hearing on 6 December - making a total of DM 934.50.
28. Nevertheless, the applicant was not served with a notice to pay the costs for which he was liable, including the interpretation costs, since it was noted that he had a wife and four children to support, that his income was modest and that there was thus no prospect of recovering the costs. For these reasons, the competent court official, acting in pursuance of Article 10 para. 1 of the Service Instructions of 28 February 1969 on Court Costs (Kostenverfügung), had decided of his own motion on 23 October 1975 not to assess the costs. His decision was not notified either to Mr. Koç or to Mr. Koç’s lawyer.
A second decision to this effect was taken by the same official on 20 December 1977. This decision recorded that the applicant was living in Turkey that his address was unknown and that recovery of the costs, being doomed to failure, should be waived. Mr. Koç’s lawyer discovered the existence of the decision in April 1978 when he sought from the court a photocopy of the interpreter’s payment vouchers.
29. Before the Court, the Agent of the Government, with the agreement of the Minister of Justice for the Land of North-Rhine Westphalia made the following declaration:
"... the compulsory collection of costs from the applicant Koç in pursuance of the judgment of 6 December 1973 by the Assize Court attached to the Aachen Regional Court, varied in part by the decision of 5 June 1975 by the Cologne Court of Appeal, will not be carried out in future; for the costs of such compulsory collection and the administrative costs would be out of proportion to the sum owed."
The Agent specified that "the costs ... would not be collected even if the applicant were to return to the Federal Republic of Germany".
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-e


ITEMID: 001-96039
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ROSKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1959 and lives in Trebišov.
5. On 27 August 1991 the applicant filed an action for distribution of matrimonial property with the Spišská Nová Ves District Court.
6. Following the Constitutional Court's finding (see below) the District Court held seven hearings, obtained further evidence and an expert opinion.
7. On 29 November 2006 the District Court delivered a judgment which became final on 30 January 2007.
8. On 13 January 2005 the Constitutional Court found that the District Court had violated the applicant's right under 48 § 2 of the Constitution to a hearing without unjustified delay. The overall length of the proceedings (more than 14 years at a single instance) was clearly inappropriate. The applicant had contributed to the length of the proceedings to a certain extent in that she had failed to appear at hearings on six occasions.
9. The Constitutional Court awarded the equivalent of 1,810 euros (EUR) at that time to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant's legal costs.
VIOLATED_ARTICLES: 6


ITEMID: 001-87628
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOVACS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1951 and lives in Veszprém-Kádárta.
5. In the context of an inquiry, the Bács-Kiskun County Directorate of the Hungarian Tax Authority established that the applicant had failed to pay 2,339,604 Hungarian Forints (approximately 9,167 euros). It ordered him to pay the outstanding tax plus a fine of HUF 1,119,000 (approximately 4,384 euros) and HUF 1,948,000 (approximately 7,771 euros) in accrued interest.
6. The applicant appealed. On 10 August 1998 the National Tax Authority upheld the first-instance administrative decision. It found that the applicant had received, on a regular basis, sums from a private company for his work but he had failed to pay taxes on this income. The Tax Authority relied on documentary evidence.
7. In September 1998 the applicant sought judicial review of the final administrative decision before the Bács-Kiskun County Regional Court.
8. On 28 November 2002 the Regional Court found, after having held seven hearings, that the Tax Authority had acted in compliance with the law and dismissed the applicant’s action. The applicant appealed.
9. The Budapest Court of Appeal, after having held two hearings, upheld the first-instance decision on 22 September 2004. The courts relied on documentary evidence and the testimony of the parties.
VIOLATED_ARTICLES: 6


ITEMID: 001-85615
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOLMAN AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: Mr Jiří Kolman, Ms Dagmar Paterová, Eva Stodolová and Helena Karafiátová are four Czech nationals, born in 1940, 1936, 1933 and 1942, and living in Prague and Dolní Břežany, respectively. They were represented before the Court by Ms A. Moravcová, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 March 1992 the applicants’ father brought an action in the Prague 4 District Court (obvodní soud) for recovery of property pursuant to the Extra-Judicial Rehabilitations Act.
The restitution proceedings terminated in a decision of the Constitutional Court (Ústavní soud) of 30 April 2002 which was notified to the applicants’ representative on 13 May 2002.
On 5* October 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-57863
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF BENDENOUN v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1;Not necessary to examine P1-1
JUDGES: C. Russo
TEXT: 7. Mr Michel Bendenoun is a French citizen who lives in Zürich and is a dealer in coins.
On 1 July 1973 he formed a public limited company under French law, ARTSBY 1881, with its head office in Strasbourg, for the purpose of dealing in old coins, objets d’art and precious stones. He owned the greater part of its capital (993 out of a total of 1,000 shares) and acted as its chairman and managing director.
As a result of his activities, three sets of proceedings - customs, tax and criminal proceedings - were brought against him, and they progressed more or less in parallel.
8. Between 3 June and 26 September 1975 the National Head Office of Customs Investigations (Belfort frontier zone) carried out a check on imports made by ARTSBY 1881; they were acting on information received from an anonymous informer. The main events during the investigation were that Mr Bendenoun was questioned and documents were seized (3-6 June), clients were questioned (6 June), employees and former employees of the company and an expert were interviewed (8-17 September) and Mr Bendenoun himself was arrested in Metz (26 September).
9. On the basis of the evidence thus gathered the applicant was prosecuted for various customs and exchange-control offences. A composition was reached on 6 January 1978, however, whereby Mr Bendenoun admitted the offences and paid a fine of 300,000 French francs (FRF) and the customs returned the seized items to him.
10. During the proceedings the applicant had access to all the documents in the customs file, which contained 24 reports and 353 other documents.
The reports were the following:
no. 73/1: questioning of Mr Bendenoun (Strasbourg, 3 June 1975);
no. 73/2: searches of the premises of ARTSBY 1881 and of Mr Bendenoun’s home, and interviewing of Mr Bendenoun (Strasbourg, 3 June);
no. 73/3: arrest of an employee of ARTSBY 1881 (Strasbourg, 3 June);
no. 73/4: arrest of an employee of ARTSBY 1881 (Strasbourg, 3 June);
no. 73/5: sealing of a bank strongbox (Strasbourg, 3 June);
no. 73/6: arrest of an employee of ARTSBY 1881 (Strasbourg, 3 June);
no. 73/7: opening of the bank strongbox (Strasbourg, 4 June);
no. 73/8: seizure of old coins, cash and a vehicle (Strasbourg, 4 June);
no. 73/9: interviewing of Mr Bendenoun (Strasbourg, 4 June);
no. 73/10: interviewing of Mr Bendenoun (Strasbourg, 6 June);
no. 73/11: interviewing of Mr Bendenoun (Strasbourg, 6 June);
no. 73/12: interviewing of one of ARTSBY 1881’s clients (Pfastatt, 6 June);
no. 73/13: interviewing of one of ARTSBY 1881’s clients (Colmar, 6 June);
no. 73/14: interviewing of an employee of ARTSBY 1881 (Strasbourg, 8 September);
no. 73/15: interviewing of one of ARTSBY 1881’s clients (Strasbourg, 8 September);
no. 73/16: interviewing of a former employee of ARTSBY 1881 (Strasbourg, 10 September);
no. 73/17: interviewing of a former employee of ARTSBY 1881 (Strasbourg, 10 September);
no. 73/18: interviewing of a numismatist (Paris, 15 September);
no. 73/19: interviewing of a former representative of ARTSBY 1881 (Strasbourg, 17 September);
no. 73/20: interviewing of a former chairman of ARTSBY 1881 (Strasbourg, 24 September);
no. 73/21: arrest and interviewing of Mr Bendenoun (Metz, 26 September);
no. 73/22: interviewing of a representative of ARTSBY 1881 (Metz, 26 September);
no. 73/23: interviewing of Mr Bendenoun (Metz, 26 September);
no. 73/24: interviewing of a witness (Metz, 26 September).
Mr Bendenoun received a copy of eight of them (nos. 73/1, 73/2, 73/8, 73/9, 73/10, 73/11, 73/21 and 73/23).
The 353 documents comprised a register bearing the title "Invoice control" (sealed document no. 1), seized on ARTSBY 1881’s premises on 3 June 1975, and invoices and authentication certificates (sealed documents nos. 2 to 353), seized on the same day at the applicant’s home.
11. At some time - according to the Government - before 31 August 1976 and pursuant to Article 1987 of the General Tax Code (which became Article L 83 of the Code of Tax Procedure on 1 January 1982), the customs sent the file to the Revenue.
12. From 31 August to 28 September 1976 the Head Office of the Bas-Rhin Revenue carried out an inspection of ARTSBY 1881’s accounts.
13. On 30 November 1976 the inspector sent two supplementary tax assessments to Mr Bendenoun as chairman and managing director of the company. One of them related to corporation tax and the other to value-added tax. They set out in detail the manner in which the inspector had determined what receipts had not been entered in the accounts and he confirmed them on 4 April 1977 after receiving comments from the applicant.
On the same date he also sent Mr Bendenoun personally a supplementary income-tax assessment, which he confirmed on 11 May 1977.
Under the supplementary assessment the applicant was required to pay an additional FRF 841,366, including FRF 422,534 in penalties. The company was required to pay additional tax and penalties amounting to FRF 157,752 and FRF 309,738 in respect of the value-added tax and FRF 270,312 and FRF 260,660 in respect of corporation tax.
14. The inspector then drew up a nineteen-page report, ending with a request that criminal proceedings should be taken against the applicant, and these were instituted on 30 November 1977 (see paragraph 25 below).
15. On 6 December 1977 ARTSBY 1881, in the person of its chairman and managing director, lodged two appeals with the Regional Commissioner of Revenue in Strasbourg in respect of the corporation tax and the value-added tax. Mr Bendenoun filed a third appeal, in his own name, concerning the income tax.
The Regional Commissioner refused the first two appeals on 20 April 1978 and the third on 3 April 1979.
16. On 16 June 1978 Mr Bendenoun, acting on behalf of ARTSBY 1881, made two applications to the Strasbourg Administrative Court concerning the corporation tax and the value-added tax.
On 7 June 1979 he made a further application to the same court, this time in his own name, challenging the supplementary tax assessment on his income.
17. The Revenue annexed to its two sets of pleadings dated 5 April 1979 four customs reports (nos. 73/9, 73/10, 73/16 and 73/17 - see paragraph 10 above) and two letters from ARTSBY 1881 dated 30 May 1975 and June 1976.
18. On 29 May 1979 Mr Bendenoun’s lawyer sent two identically worded letters to the President of the court. They read as follows:
"On 17 April 1979 you kindly forwarded to me the Regional Commissioner of Revenue’s pleadings of 5 April 1979.
These pleadings refer several times to a file opened on Mr Michel Bendenoun, the chairman and managing director of the ARTSBY company, by the customs authorities.
Six documents from that file are annexed to the Revenue’s pleadings.
It would seem essential for the whole of the file to be sent to the court and the undersigned.
The scale of the customs investigation was very large indeed and a number of reports, whose existence has not been mentioned by the authorities, are directly relevant to the present dispute.
..."
On 29 June 1979 the President of the court wrote to the Strasbourg public prosecutor to this end:
"For the purposes of preparing for trial a case concerning tax files relating to the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the file on Mr Bendenoun, the chairman and managing director of the company. A number of reports are directly relevant to the case, and the National Head Office of Customs Investigations has informed me that the file in question was sent to you on 15 April 1978..."
In a letter of 11 July 1979 the public prosecutor replied as follows:
"... I am unable to send you the file opened on Michel Bendenoun in connection with the criminal investigation on charges of tax evasion.
I would point out that the Revenue is a civil party to the criminal proceedings and therefore may, since it has access to the case file, apply for a copy of it if it sees fit.
..."
19. On 19 July 1979 counsel for the applicant wrote again to the President of the court:
"...
... [my] request was not for production of the tax-evasion file but of a customs file which has not been the subject of any judicial investigation involving the Strasbourg public prosecutor’s office as a composition was reached between Mr Bendenoun and the customs authorities.
...
I would add that production is being sought at my request and not at that of the Revenue, since it is precisely the Revenue that is relying on documents from the customs investigation, and unless he has been able to inspect the customs file in its entirety Mr Bendenoun cannot make any sensible comments."
20. On 9 December 1980 Mr Bendenoun’s lawyer sent another letter to the President of the court:
"...
To date, I have ... not been able to study the customs file.
The Revenue, however, relies on certain reports taken from a large mass of reports.
I should therefore be obliged if you would let me know how I am to be able to study the whole customs file.
I should also be glad if you would kindly extend the time allowed me for submitting comments until the customs file has been made available to me, as requested as early as 1979."
The President of the Administrative Court sent the public prosecutor a letter dated 30 December 1980 in which he said:
"For the purposes of preparing for trial a case concerning tax files on the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the documents relating to the customs file on the criminal investigation into Mr Bendenoun, the chairman and managing director of the company.
This customs file is directly relevant to the tax case, which is before the Administrative Court also."
The request went unanswered.
21. On 30 November 1981 the Administrative Court delivered three judgments in which it dismissed ARTSBY 1881’s and Mr Bendenoun’s applications.
It did not mention the decisions given in the case by the criminal courts (see paragraphs 28 and 30 below).
22. On 1 March 1982 Mr Bendenoun, acting on his own behalf and on behalf of ARTSBY 1881, appealed to the Conseil d’État against the three Administrative Court judgments.
23. In supplementary pleadings filed on 1 July 1982 he set out the following ground of appeal:
"Although the tax authorities made ample use of items in the customs file which in their view showed that the supplementary assessments in issue were justified, while ignoring those which clearly would have provided grounds for setting them aside, they deliberately decided not to meet the appellant’s requests to inspect that customs file in its entirety.
...
Compliance with the adversary principle precludes accepting an argument which the opposing side cannot be aware of and which thus cannot be sensibly challenged by them."
24. The Conseil d’État dismissed the appeals in three judgments on 28 May 1986.
The reasons given for the one concerning value-added tax for the period from 1 July 1973 to 31 December 1975 (no. 40482) were worded as follows:
"The lawfulness of the judgment appealed against
It appears from the pre-trial preparations that the applicant company was put in a position to inspect all the documents in the file that were likely to have a bearing on the resolution of the dispute, including the customs reports establishing the existence of concealed receipts. That being so, the ground of appeal alleging that the judgment at first instance was unlawful because the ‘ARTSBY 1881’ company was unable, during the course of the proceedings at first instance, to inspect all the documents in the customs file must be rejected.
The lawfulness of the assessment procedure and the burden of proof
It appears from the pre-trial preparations that in June 1975 the customs seized invoices for a total of FRF 1,676,710 at the home of Mr Bendenoun, the chairman and managing director of the public limited company ‘ARTSBY 1881’, which trades in old coins and nearly all of whose capital was owned by Mr Bendenoun from 1974 onwards. It appears from the findings of fact made by the Colmar Court of Appeal in a judgment that was given in criminal proceedings on 13 May 1981 and has become final (findings which are binding erga omnes) that Mr Bendenoun, ‘who did not have sufficient financial resources personally to carry out’ the transactions recorded in the invoices seized at his home, ‘deliberately decided, with the aim of evading tax on part of the company’s receipts, to conceal about 25% of the company’s turnover by not entering it in the company’s books and taking care to keep the copies of the relevant invoices at home...’. These findings establish that the bookkeeping of the ‘ARTSBY 1881’ company was not reliable. That being so, the Revenue was legally entitled to rectify of its own motion the figure of the company’s turnover for the period from 1 July 1973 to 31 December 1974. It is consequently for the company to show that the basis taken by the Revenue for making the disputed assessments was too high.
The amount of the assessments
...
The penalties
The applicant company intended, by means of a systematic process of concealment, to evade payment of value-added tax on transactions made in 1974 and 1975. The authorities were therefore entitled to regard it as having been guilty of deception and subsequently to increase the tax due by 200% as provided in Articles 1729 and 1731 of the General Tax Code taken together."
The same reasoning was adopted in the other two judgments (nos. 40480 and 40481).
25. By means of two applications made on 30 November 1977 the Head Office of the Bas-Rhin Revenue lodged a complaint against Mr Bendenoun with the Strasbourg public prosecutor’s office. The applications were accompanied by a series of supporting documents.
26. On 3 March 1978 the investigating judge instructed the police to obtain the customs file. This was received on 19 April 1978 and contained copies of the 24 reports, sealed document no. 1 drawn up by officials of the National Head Office of Customs Investigations and the 352 other sealed documents in a hardback file. The whole customs file remained at the court throughout the judicial investigation and counsel for the accused had access to it on each occasion that his client was questioned (12 January 1978, 8 February 1978 and 12 February 1980) and again before the trial.
27. On 21 May 1980 the public prosecutor applied for Mr Bendenoun to be committed for trial.
28. On 21 November 1980 the Strasbourg Criminal Court delivered two judgments (nos. 6776/80 and 6780a/80) concerning the accused, the first in his capacity as chairman and managing director of ARTSBY 1881 (corporation tax and value-added tax), the second in his personal capacity (income tax). In each judgment he was given a suspended sentence of fifteen months’ imprisonment for tax evasion, both sentences to run concurrently, and was ordered to be imprisoned for one year in the event of non-payment of the sums owed.
29. Mr Bendenoun appealed against these judgments to the Colmar Court of Appeal. In his submissions he complained that the documents relating to the customs proceedings were no longer in the file.
30. In two judgments on 13 May 1981 (nos. 615/81 and 616/81) the Criminal Division of the Court of Appeal upheld the decisions of the trial court and also sentenced Mr Bendenoun to a fine of FRF 30,000.
In the first judgment it dismissed the ground of appeal based on the fact that documents were missing from the file:
"...
(d) knowledge of [the documents in the customs file] is in no way necessary or even helpful for the discovery of the truth, since the statements lawfully obtained from the accused during the present proceedings and the documents that he himself submitted at the trial provided ample evidence in respect of the sole difficulty on which his guilt depends; and
(e) the rights of the defence have thus not been prejudiced in any way."
31. Mr Bendenoun appealed on points of law against the two judgments. In particular, he alleged that the rights of the defence had been infringed in that the customs file had not been put before the Court of Appeal.
32. The Court of Cassation dismissed his appeals in two judgments on 24 May 1982. It rejected the ground of appeal just referred to in the following terms, identical in both judgments:
"...
In finding Bendenoun guilty of fraudulently evading assessment or payment of taxes, the Court of Appeal stated that the defendant did not ‘dispute the existence of the invoices discovered’; that it was thus ‘unnecessary to be acquainted with all the documents in the customs proceedings’; that it was apparent from the facts established in the judicial investigation that Bendenoun had evaded the payment of corporation tax by the ARTSBY 1881 company by concealing taxable sums exceeding the statutory allowances; and that the defendant’s explanation that the transactions in question had been effected in the course of a private, unregistered business as a dealer in coins were unacceptable owing to the circumstances set out and analysed by the court below.
Given these findings and statements, which adequately and consistently show that all the ingredients of tax evasion - as regards both the actus reus and the mens rea - have been made out against Bendenoun, and seeing also that it is apparent from this that the court below based its decision solely on evidence which was put before it during the trial and was the subject of adversarial argument before it in accordance with the provisions of Article 427 of the Code of Criminal Procedure and did not in any way infringe the rights of the defence, the grounds of appeal, which merely attempt to call in question the unfettered discretion of the courts below to assess this evidence, must fail."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22963
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: PRYSTAVSKA v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Danyila Semenivna Prystavska, is a Ukrainian national who was born in the L’viv region on 19 April 1948 and currently resides in L’viv, Ukraine.
In December 1998 the applicant instituted proceedings in the local court of the Shevchenkivsky district of L’viv against the local accommodation office and the Shevchenkivska local authority, seeking an order for repairs to be carried out to her apartment. She also sought compensation for moral damage, since her living conditions were unsatisfactory. On 3 December 1998 the Shevchenkivsky District Court of L’viv allowed her claims in part. On 6 December 2000 the applicant’s claims for compensation for moral damage were rejected by the Shevchenkivsky District Court of L’viv. On 12 March 2001 the L’viv Regional Court upheld this decision.
On 16 July 2001 the applicant lodged complaints with the Supreme Court of Ukraine in accordance with the procedure prescribed by the Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure. On 28 November 2001 a panel of three judges of the Supreme Court of Ukraine refused to transfer the applicant’s appeal for consideration on the merits to a chamber of the Supreme Court of Ukraine.
“The Court of Cassation is the Supreme Court of Ukraine.”
“Parties and other persons who participate in court proceedings, and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations, may lodge a cassation appeal against judgments and rulings adopted by the court of first instance, only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court.
The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law.”
“The deadline for lodging an application by the prosecutor is three months from the date of delivery of the ruling or judgment of the Court of Appeal, or one year from the date of delivery of the ruling or judgment of the court of first instance, if these rulings or decisions have not been appealed against.”
“The issue of the transfer of the case for consideration by a judicial chamber is to be considered by a panel of three judges, in camera, without the participation of the parties to the proceedings.
The case shall be transferred for a hearing by a judicial chamber if one of the judges of the court reaches that conclusion. ...
If the grounds for transfer of the case for consideration by the chamber are not satisfied, the court shall adopt a ruling refusing to allow the applicant’s claims.”
“The Court of Cassation has the power to:
1) adopt a ruling rejecting the application for annulment;
2) adopt a ruling fully or partly annulling a judicial decision at issue and remitting the case for a re-hearing to the court of first instance or appellate court;
3) adopt a ruling annulling the decision at issue and leaving in force a judgment that was quashed by an appeal court in error;
4) adopt a ruling annulling a decisions at issue, terminating the proceedings in a civil case and refusing to allow an applicant’s claims;
5) change the decision on the merits of the case and not remit it for further consideration.”
“1. This Law shall enter into force as from 29 June 2001.
2. Laws and other normative acts adopted before this Law entered into force are effective in so far as their provisions do not conflict with the Constitution of Ukraine and this Law.
3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local courts’ decisions.
4. Protests against judicial decisions lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the procedure for consideration of cassation appeals (касаційних скарг).
5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).”