ITEMID: 001-61827
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ZDANOKA v. LATVIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of P1-3;Violation of Art. 11;Not necessary to examine Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. In 1971 the applicant, who at the material time was a mathematics student at the University of Latvia, joined the Communist Party of Latvia (hereafter “the CPL”). This organisation was in reality a regional branch of the Communist Party of the Soviet Union (hereafter “the CPSU”), the USSR’s single ruling party.
From 1972 to 1990 the applicant worked as a lecturer at the University of Latvia. Throughout this period she was a member of the CPL’s university branch.
8. From 1988 onwards there was considerable social pressure in Latvia, as in several other countries of central and eastern Europe, for democratisation of political life and restoration of state independence, which in Latvia’s case had been lost in 1940.
9. In March 1990 the applicant was elected to the Supreme Council (Augstākā Padome) of the “Soviet Socialist Republic of Latvia” (hereafter “the Latvian SSR”) as a representative for the Pļavnieki constituency in Riga. She subsequently joined the CPL’s local branch. In April 1990 this branch selected her to attend the CPL’s 25th Congress, where she was elected to the party’s Central Committee for Supervision and Audit. According to copies of that Committee’s minutes, the applicant was a member of a sub-committee responsible for supervising the implementation of decisions and activities arising from the CPL’s programme.
10. At the same congress, a group of delegates expressed their disagreement with the CPL’s general policy, which remained loyal to the Soviet Union and the CPSU, was opposed to any democratisation of public life and sought to maintain the status quo. These delegates publicly announced their withdrawal from the CPL and established a new party, the “Independent Communist Party”, which immediately declared its support for Latvian independence and for a multi-party political system. The applicant did not join the dissident delegates and remained within the CPL.
11. On 4 May 1990 the Supreme Council adopted a Declaration on the Restoration of the Independence of the Republic of Latvia, which declared Latvia’s incorporation into the USSR unlawful and void and restored legal force to the fundamental provisions of the Latvian Constitution (Satversme) of 1922. However, paragraph 5 of the Declaration introduced a transition period, aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the USSR was severed. During that transition period, various provisions of the Constitution of the Latvian SSR would remain in force. A special governmental commission was given responsibility for negotiating with the Soviet Union on the basis of the Russo-Latvian Peace Treaty of 11 August 1920.
The above-mentioned Declaration was adopted by 139 out of a total of 201 Supreme Council members, with one abstention. 57 members of the “Līdztiesība” parliamentary bloc (“Equal Rights”, in reality the CPL group), including the applicant, did not vote. On the same day, 4 May 1990, the Central Committee of the CPL adopted a resolution strongly criticising the Declaration and calling on the President of the Soviet Union to intervene.
12. On 7 May 1990 the Supreme Council selected the government of the Independent Republic of Latvia.
13. The parties dispute the events of January and March 1991. According to the Government, on 12 January 1991 the Soviet army launched military operations against the government of independent Lithuania, which had been formed in the same way as the Latvian government. Several persons were killed in the course of those events. Against this background, an attempted coup was also launched in Latvia. On 13 January 1991 the Plenum of the CPL Central Committee called for the resignation of the Latvian government, the dissolution of the Supreme Council and the assumption of full powers by the Latvian Committee of Public Safety (Vislatvijas Sabiedriskās glābšanas komiteja), set up on the same date by several organisations, including the CPL. On 15 January 1991 this committee announced that the Supreme Council and the government were stripped of their respective powers and declared that it was assuming full powers. After causing the loss of several lives during armed confrontations in Riga, this attempted coup failed.
14. The applicant contested the version of events put forward by the Government. In her opinion, the Soviet army’s aggression against the Lithuanian government and people was not a proven fact; in this connection, she submitted a copy of a Russian newspaper article which claimed that it had been the Lithuanian independence supporters themselves, rather than Soviet soldiers, who fired into the crowd, with the aim of discrediting the Soviet army. The applicant also claimed that, at the material time, a series of public demonstrations had been held in Latvia to protest against the increase in food prices ordered by the government; those demonstrations were thus the main reason for the events of January 1991. Finally, the applicant argued that, in their respective statements of 13 and 15 January 1991, the Plenum of the CPL’s Central Committee and the Committee of Public Safety had not only called for or announced the removal of the Latvian authorities, but had also stated that early elections would be held for the Supreme Council.
15. On 3 March 1991 a national vote was held on Latvian territory. According to the Government, this was a genuine national referendum; the applicant argues that it was a simple consultative vote. Electors had to reply to a question worded as follows: “Do you support a democratic and politically independent Republic of Latvia?” According to figures supplied by the Government, 87.5 % of all residents registered on the electoral roll voted: 73.6 % of them responded in the affirmative to the question posed. The applicant contests the above-mentioned turnout rate and thus the very legitimacy of the plebiscite.
16. On 19 August 1991 there was an attempted coup in Moscow. The self-proclaimed “National State of Emergency Committee” declared that Mr Gorbachev, President of the USSR, was suspended from his duties, declared itself the sole ruling authority and imposed a state of emergency “in certain regions of the USSR”.
17. On the same day, 19 August 1991, the Central Committee and the Riga Committee of the CPL declared their support for the National State of Emergency Committee and set up an “operational group” to provide assistance to it. According to the Government, on 20 August 1991 the CPL, the “Līdztiesība” parliamentary bloc and various other organisations signed and disseminated an appeal called “Godājamie Latvijas iedzīvotāji!” (“Honourable residents of Latvia!”), urging the population to comply with the requirements of the state of emergency and not to oppose the measures imposed by the National State of Emergency Committee in Moscow. According to the applicant, the CPL’s participation in all those events has not been proved; in particular, the members of the “Līdztiesība” bloc were taking part in parliamentary debates over two consecutive days and were not even aware that such an appeal was to be issued.
18. This coup also ended in failure. On 21 August 1991, the Latvian Supreme Council enacted a constitutional law on the state status of the Republic of Latvia and proclaimed the country’s immediate and absolute independence. Paragraph 5 of the Declaration of 4 May 1990, concerning the transition period, was repealed.
19. By a decision of 23 August 1991 the Supreme Council declared the CPL unconstitutional. The following day, the party’s activities were suspended and the Minister of Justice was instructed “to investigate the unlawful activities of the CPL and to put forward ... a motion on the possibility of authorising its continued operations”. On the basis of the Minister of Justice’s proposal, the Supreme Council ordered the party’s dissolution on 10 September 1991.
20. In the meantime, on 22 August 1991, the Supreme Council set up a parliamentary committee to investigate the involvement of members of the “Līdztiesība” bloc in the coup. On the basis of that committee’s final report, the Supreme Council revoked fifteen members’ right to sit in parliament on 9 July 1992; the applicant was not one of those concerned.
21. In February 1993 the applicant became chairperson of the “Movement for Social Justice and Equal Rights in Latvia” (“Kustība par sociālo taisnīgumu un līdztiesību Latvijā”), which later became a political party, “Līdztiesība” (“Equal rights”).
22. On 5 and 6 June 1993 parliamentary elections were held in accordance with the restored Constitution of 1922. For the first time since Latvian independence had been regained, the population elected the Parliament (Saeima), which took over from the Supreme Council. It was at that point that the applicant’s term of office as a member of parliament expired. As a result of the Latvian authorities’ refusal to include her on the residents’ register as a Latvian citizen, she was unable to take part in those elections, in the following parliamentary elections, held in 1995, or in the municipal elections of 1994. Following an appeal lodged by the applicant, the courts recognised her Latvian nationality in January 1996, instructing the authorities to register her as such and to supply her with the appropriate documents.
23. On 25 January 1997 the “Movement for Social Justice and Equal Rights in Latvia” submitted to the Riga Electoral Commission a list of ten candidates for the forthcoming municipal elections of 9 March 1997. The applicant was one of those candidates. In line with the requirements of the Municipal Elections Act, she signed the list and attached a written statement confirming that she was not one of the persons referred to in section 9 of that Act. Under the terms of the Act, individuals who had “actively participated” (darbojušās) in the CPSU, the CPL and several other named organisations after 13 January 1991 were not entitled to stand for office.
In a letter sent on the same day, 25 January 1997, the applicant informed the Electoral Commission that she had been a member of the CPL’s Pļavnieki branch and of its Central Committee for Supervision and Audit until 10 September 1991, date of the CPL’s official dissolution. However, she argued that the restrictions mentioned above were not applicable to her, since they were contrary to Articles 2 and 25 of the International Covenant on Civil and Political Rights.
24. By a decision of 11 February 1997 the Riga Electoral Commission registered the list submitted by the applicant. At the elections of 9 March 1997 this list obtained four of the sixty seats on Riga City Council (Rīgas Dome). The applicant was one of those elected.
25. With a view to participating in the parliamentary elections of 3 October 1998, the “Movement for Social Justice and Equal Rights in Latvia” formed a coalition with the Party of National Harmony (Tautas Saskaņas partija), the Latvian Socialist Party (Latvijas Sociālistiskā partija) and the Russian Party (Krievu partija). The four parties formed a united list entitled “Party of National Harmony”. The applicant appeared on this list as a candidate for the constituencies of Riga and Vidzeme.
On 28 July 1998 the list was submitted to the Central Electoral Commission for registration. In accordance with the requirements of the Parliamentary Elections Act, the applicant signed and attached to the list a written statement identical to the one she had submitted prior to the municipal elections. As she had done for the 1997 elections, she likewise sent a letter to the Central Electoral Commission explaining her situation and arguing that the restrictions in question were incompatible with the International Covenant on Civil and Political Rights and with Article 3 of Protocol No. 1 to the Convention.
26. On 29 July 1998 the Central Electoral Commission suspended registration of the list on the ground that the applicant’s candidacy did not meet the requirements of the Parliamentary Elections Act. Not wishing to jeopardise the entire list’s prospects of being registered, the applicant withdrew her candidacy, after which the list was immediately registered.
27. By a letter of 7 August 1998 the President of the Central Electoral Commission asked the State Procurator General to examine the legitimacy of the applicant’s election to the Riga City Council.
28. By a decision of 31 August 1998, a copy of which was sent to the Central Electoral Commission, the Procurator General’s Office (Ģenerālprokuratūra) noted that the applicant had not committed any action defined as an offence in the Criminal Code. The decision stated that, although the applicant had provided false information to the Riga Electoral Commission regarding her participation in the CPL, there was nothing to prove that she had done so with the specific objective of misleading the Commission. In that connection, the Procurator’s Office considered that the statement by the applicant, appended to the list of candidates for the elections of 9 March 1997, was to be read in conjunction with her explanatory letter of 25 January 1997.
On 14 January 1999 the General Procurator’s Office applied to the Riga Regional Court for a finding that the applicant had participated in the CPL after 13 January 1991. The Procurator’s Office attached the following documents to its submission: the applicant’s letter of 25 January 1997; the minutes of the meeting of 26 January 1991 of the CPL’s Central Committee for Supervision and Audit; the minutes of the joint meeting of 27 March 1991 of the Central Committee for Supervision and Audit and the municipal and regional committees for supervision and audit; the appendices to those minutes, indicating the structure and composition of the said committee and a list of the members of the Audit Committee at 1 July 1991.
29. Following adversarial proceedings, the Riga Regional Court allowed the request by the Procurator’s Office in a judgment of 15 February 1999. It considered that the submitted documents clearly attested to the applicant’s participation in the party’s activities after the critical date, and that the evidence provided by the applicant was insufficient to refute this finding. Consequently, the court dismissed the applicant’s arguments to the effect that she was only formally a member of the CPL and that she did not participate in the meetings of its Central Committee for Supervision and Audit, and that accordingly she could not be held to have “acted”, “been a militant” or “actively participated” (darboties) in the party’s activities.
30. The applicant appealed against this judgment to the Civil Division of the Supreme Court. On 12 November 1999 the Civil Division began examining the appeal. At the oral hearing, the applicant submitted that the content of the above-mentioned minutes of 26 January and 27 March 1991, referring to her by name, could not be held against her since on both those dates she had been carrying out her duties in the Latvian Supreme Council and not in the CPL. After hearing evidence from two witnesses who stated that the applicant had indeed been present at the Supreme Council, the Division suspended examination of the case in order to enable the applicant to submit more cogent evidence in support of her statements, such as a record of parliamentary debates or minutes of the “Līdztiesība” parliamentary bloc’s meetings. However, as the above-mentioned minutes had not been preserved by the Parliamentary Record Office, the applicant was never able to produce such evidence.
By a judgment of 15 December 1999 the Civil Division dismissed the applicant’s appeal. It stated that the evidence gathered by the Procurator’s Office was sufficient to conclude that the applicant had taken part in the CPL’s activities after 13 January 1991. The Division further noted that the CPL’s dissolution had been ordered “in accordance with the interests of the Latvian State in a specific historical and political situation” and that the international conventions relied on by the applicant allowed for justified limitations on the exercise of electoral rights.
31. Following the Civil Division’s judgment, enforceable from the date of its delivery, the applicant was disqualified from electoral office and lost her seat as a member of Riga City Council.
32. The applicant applied to the Senate of the Supreme Court to have the Civil Division’s judgment quashed. She stressed, inter alia, the disputed restriction’s incompatibility with Article 11 of the Convention. By a final order of 7 February 2000 the Senate declared the appeal inadmissible. In the Senate’s opinion, the proceedings in question were limited to a single strictly-defined objective, namely a finding as to whether or not the applicant had taken part in the CPL’s activities after 13 January 1991. The Senate concluded that it did not have jurisdiction to analyse the legal consequences of this finding, on the ground that this was irrelevant to the finding itself. In addition, the Senate noted that any such analysis would involve an examination of the Latvian legislation’s compatibility with constitutional and international law, which did not come within the final appeal court’s jurisdiction.
33. The next parliamentary elections took place on 5 October 2002. With a view to taking part in those elections, the “Līdztiesība” party, chaired by the applicant, formed an alliance entitled “For Human Rights in a United Latvia” (“Par cilvēka tiesībām vienotā Latvijā”, abbreviated to PCTVL) with two other parties, the Party of National Harmony and the Socialist Party. The alliance’s electoral manifesto expressly referred to the need to abolish the restrictions on the electoral rights of persons who had been actively involved in the CPL after 13 January 1991.
34. In spring 2002 the Executive Council of the “Līdztiesība” party put forward the applicant as a candidate in the 2002 elections; the Council of the PCTVL alliance approved this nomination. Shortly afterwards, however, on 16 May 2002, the outgoing Parliament dismissed a motion to repeal section 5(6) of the Parliamentary Elections Act (see paragraph 47 below). The alliance’s council, which was fully aware of the applicant’s situation and feared that her candidacy would prevent registration of the PCTVL’s entire list, changed its opinion and decided not to include her name on the list of candidates. The applicant then decided to submit a separate list containing only one name, her own, entitled “Party of National Harmony”.
35. On 23 July 2002 the PCTVL electoral alliance submitted its list to the Central Electoral Commission. In all, it contained the names of 77 candidates for Latvia’s five constituencies. On the same date the applicant asked the Commission to register her own list, for the constituency of Kurzeme alone. As she had done for the 1998 elections, she attached to her list a written statement to the effect that the disputed restrictions were incompatible with the Constitution and with Latvia’s international undertakings. On 25 July 2002 the Commission registered both lists.
36. By a decision of 7 August 2002 the Central Electoral Commission, referring to the Civil Division’s judgment of 15 December 1999, removed the applicant from its list. In addition, having noted that the applicant had been the only candidate on the “Party of National Harmony” list and that, following her removal, there were no other names, the Commission decided to cancel the registration of that list.
37. At the elections of 5 October 2002 the PCTVL alliance’s list obtained 18.94 % of the vote and won twenty-five seats in Parliament.
38. The operative provisions of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia read as follows:
“The Supreme Council of the Latvian SSR decides:
(1) in recognition of the supremacy of international law over the provisions of national law, to consider illegal the Pact of 23 August 1939 between the USSR and Germany and the subsequent liquidation of the sovereignty of the Republic of Latvia through the USSR’s military aggression on 17 June 1940;
(2) to declare null and void the Declaration by the Parliament [Saeima] of Latvia, adopted on 21 July 1940, on Latvia’s integration into the Union of Soviet Socialist Republics;
(3) to restore the legal effect of the Constitution [Satversme] of the Republic of Latvia, adopted on 15 February 1922 by the Constituent Assembly [Satversmes sapulce], throughout the entire territory of Latvia. The official name of the Latvian state shall be the REPUBLIC of LATVIA, abbreviated to LATVIA;
(4) to suspend the Constitution of the Republic of Latvia pending the adoption of a new version of the Constitution, with the exception of those articles which define the constitutional and legal foundation of the Latvian State and which, in accordance with Article 77 of the same Constitution, may only be amended by referendum, namely:
Article 1– Latvia is an independent and democratic republic.
Article 2 – The sovereign power of the State of Latvia is vested in the Latvian people.
Article 3 – The territory of the State of Latvia, as established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale.
Article 6 – The Parliament (Saeima) shall be elected in general, equal, direct and secret elections, based on proportional representation.
Article 6 of the Constitution shall be applied after the restoration of the state and administrative structures of the independent Republic of Latvia, which will guarantee free elections;
(5) to introduce a transition period for the re-establishment of the Republic of Latvia’s de facto sovereignty, which will end with the convening of the Parliament of the Republic of Latvia. During the transition period, supreme power shall be exercised by the Supreme Council of the Republic of Latvia;
(6) during the transition period, to accept the application of those constitutional and other legal provisions of the Latvian SSR which are in force in the territory of the Latvian SSR when the present Declaration is adopted, in so far as those provisions do not contradict Articles 1, 2, 3 and 6 of the Constitution of the Republic of Latvia.
Disputes on matters relating to the application of legislative texts will be referred to the Constitutional Court of the Republic of Latvia.
During the transition period, only the Supreme Council of the Republic of Latvia shall adopt new legislation or amend existing legislation;
(7) to set up a commission to draft a new version of the Constitution of the Republic of Latvia that will correspond to the current political, economic and social situation in Latvia;
(8) to guarantee social, economic and cultural rights, as well as universally recognised political freedoms compatible with international instruments of human rights, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality;
(9) to base relations between the Republic of Latvia and the USSR on the Peace Treaty of 11 August 1920 between Latvia and Russia, which is still in force and which recognises the independence of the Latvian State for all time. A governmental commission shall be set up to conduct the negotiations with the USSR.”
39. The operative provisions of the Constitutional Law of 21 August 1991 on the State Status of the Republic of Latvia (Konstitucionālais likums “Par Latvijas Republikas valstisko statusu”) state:
“The Supreme Council of the Republic of Latvia decides:
(1) to declare that Latvia is an independent and democratic republic in which the sovereign power of the State of Latvia belongs to the Latvian people, the state status of which is defined by the Constitution of 15 February 1922;
(2) to repeal paragraph 5 of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia, establishing a transition period for the de facto restoration of the Republic of Latvia’s state sovereignty;
(3) until such time as the occupation and annexation is ended and Parliament is convened, supreme state power in the Republic of Latvia shall be fully exercised by the Supreme Council of the Republic of Latvia. Only those laws and decrees enacted by the supreme governing and administrative authorities of the Republic of Latvia shall be in force in its territory;
(4) this constitutional law shall enter into force on the date of its enactment.”
40. The role of the CPSU in the former Soviet Union was defined in Article 6 of the Constitution of the USSR (1977) and in Article 6 of the Constitution of the Latvian SSR (1978), which were worded along identical lines. Those provisions stated:
“The leading and guiding force of Soviet society and the nucleus of its political system and of all state organizations and public organisations is the Communist Party of the Soviet Union. The CPSU exists for the people and serves the people.
The Communist Party, armed with Marxism-Leninism, determines the general perspectives of the development of society and the course of the USSR’s domestic and foreign policy, directs the great constructive work of the Soviet people, and imparts a planned, systematic and theoretically-substantiated character to their struggle for the victory of communism.
All party organisations shall function within the framework of the Constitution of the USSR.”
41. The Supreme Council’s decision of 24 August 1991 on the suspension of the activities of certain non-governmental and political organisations was worded as follows:
“On 20 August 1991 the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Republican Council of War and Labour Veterans, the Central Committee of the Communist Party of Latvia and the Central Committee of the Latvian Union of Communist Youth issued a proclamation informing the Republic’s population that a state of emergency had been decreed in Latvia and encouraging all private individuals to oppose those who did not submit to the orders of the National State of Emergency Committee. In so doing, the above-mentioned organisations ... declared their support for the organisers of the coup d’état and encouraged other individuals to do the same.
The actions of those organisations are contrary to Articles 4, 6 and 49 of the Latvian Constitution, which state that Latvian citizens are entitled to form parties and other associations only if their objectives and practical activities are not aimed at the violent transformation or overturn of the existing constitutional order... and that associations must observe the Constitution and legislation and act in accordance with their provisions.
The Supreme Council of the Republic of Latvia decrees:
1. The activities of the Communist Party of Latvia [and of the other above-mentioned organisations] are hereby suspended...”
42. The relevant parts of the Supreme Council’s decision of 10 September 1991 on the dissolution of the above-mentioned organisations read as follows:
“... In May 1990 the Communist Party of Latvia, the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives and the Republican Council of War and Labour Veterans set up the Committee for the Defence of the Constitution of the USSR and the Latvian SSR and the Rights of Citizens, which was renamed the Latvian Committee of Public Safety on 25 November 1990...
On 15 January 1991 the Latvian Committee of Public Safety declared that it was seizing power and dissolving the Supreme Council and the Government of the Republic of Latvia.
In August 1991 the Central Committee of the Communist Party of Latvia [and the other above-mentioned organisations] supported the coup...
Having regard to the preceding, the Supreme Council of the Republic of Latvia decrees:
1. The Communist Party of Latvia [and the other above-mentioned organisations], together with the coalition of these organisations, the Latvian Committee of Public Safety, are hereby dissolved on the ground that they have acted against the Constitution;...
2. Former members of the Communist Party of Latvia [and of the other above-mentioned organisations] are informed that they are entitled to associate within parties and other associations whose objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order, and which are not otherwise contrary to the Constitution and the laws of the Republic of Latvia ...”
43. The relevant provisions of the Constitution (Satversme) of the Republic of Latvia, adopted in 1922 and amended by the Law of 15 October 1998, are worded as follows:
Article 9
“All citizens of Latvia who enjoy full civic rights and who have reached the age of 21 on the day of the elections may be elected to Parliament.
Article 64
Legislative power lies with the Parliament [Saeima] and with the people, in the conditions and to the extent provided for by this Constitution.
Article 91
All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.
Article 101
All citizens of Latvia are entitled to participate, in accordance with the law, in the activities of the State and of local government...”
44. The relevant provisions of the Parliamentary Elections Act (Saeimas vēlēšanu likums) of 25 May 1995 provide:
Section 4
“All Latvian citizens who have reached the age of 21 on the date of the elections may be elected to Parliament, on condition that they are not concerned by one of the restrictions provided for in section 5 of the present law.
Section 5
The following may not stand as candidates in elections or be elected to Parliament: ...
(6) persons who actively participated [darbojušās] after 13 January 1991 in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Committee of Public Safety, or in their regional committees; ...
section 11
The following documents must be appended to the list of candidates: ...
(3) a signed declaration by each candidate on the list confirming that he or she meets the requirements of section 4 of this Act and that he or she is not concerned by section 5(1) – (6) of the present Act; ...
section 13
“... 2. Once registered, the candidate lists are definitive, and the Central Electoral Commission may make only the following corrections:
1) removal of a candidate from the list, where: ...
(a) the candidate is not a citizen enjoying full civic rights (sections 4 and 5 above); ...
3. ... [A] candidate shall be removed from the list on the basis of a statement from the relevant authority or of a court decision. The fact that the candidate: ...
(6) actively participated after 13 January 1991 in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Committee of Public Safety, or in their regional committees, shall be attested by a judgment of the relevant court; ...”
45. The Law of 13 January 1994 on elections to municipal councils and city councils (Pilsētas domes un pagasta padomes vēlēšanu likums) contains similar provisions to the provisions of the Parliamentary Elections Act cited above. In particular, section 9(5) is identical to section 5(6) of that Act.
46. The procedure for obtaining a judicial statement attesting to an individual’s participation or non-participation in the above-mentioned organisations is governed by Chapter 23-A of the Code of Civil Procedure (Civilprocesa kodekss), which was inserted by a Law of 3 September 1998 and is entitled “Examination of cases concerning the attestation of restrictions on electoral rights”. The provisions of that chapter read as follows:
Article 233-1
“A request for a statement of restriction on electoral rights may be submitted by the prosecutor...
The request must be submitted to the court in whose territorial jurisdiction is situated the home of the person in respect of whom the attestation of a restriction on electoral rights is requested.
The request may be submitted where an electoral commission has registered a list of candidates which includes ... a citizen in respect of whom there is evidence that, subsequent to 13 January 1991, he or she actively participated in the CPSU (in the CPL).... A request concerning a person included in the list of candidates may also be submitted once the elections have already taken place.
The request must be accompanied by a statement from the electoral commission confirming that the person in question has stood as a candidate in elections and that the list in question has been registered, as well as by evidence confirming the allegations made in the request.”
Article 233-3
After examining the request, the court shall give its judgment:
(1) finding that, after 13 January 1991, the person concerned did actively participate in the CPSU (in the CPL) ...;
(2) declaring the request ill-founded and dismissing it ...”
47. The Parliamentary Elections Act was enacted on 25 May 1995 by the first Parliament elected after the restoration of Latvia’s independence, otherwise known as the “Fifth Legislature” (the first four legislatures having operated between 1922 and 1934). The following legislature (the Sixth), elected in October 1995, examined three different proposals seeking to repeal section 5(6) of the above-mentioned Act. At the plenary session of 9 October 1997, the three proposals were rejected by large majorities after lengthy debates. Likewise, on 18 December 1997, during a debate on a proposal to restrict section 5(6), the provision’s current wording was confirmed. Elected in October 1998, the following legislature (the Seventh) examined a proposal to repeal section 5(6) at a plenary session on 16 May 2002. After lengthy discussions, the majority of members of parliament refused to accept the proposal.
Finally, the Eighth Legislature, elected in October 2002, examined a similar proposal on 15 January 2004. It was also rejected.
48. In a judgment of 30 August 2000 in case no. 2000-03-01, the Constitutional Court (Satversmes tiesa) found that the restrictions imposed by section 5(6) of the Parliamentary Elections Act and section 9(5) of the Municipal Elections Act were compatible with the Latvian Constitution and with Article 14 of the Convention, taken in conjunction with Article 3 of Protocol No. 1.
In that judgment, adopted by four votes to three, the Constitutional Court first reiterated the general principles laid down in the settled case-law of the Convention institutions in applying Article 14 of the Convention and Article 3 of Protocol No. 1. It further held:
“... 4. The argument that the provisions complained of, forbidding certain Latvian citizens from standing as candidates or being elected to Parliament and municipal councils, discriminate against them on the basis of their political allegiance, is without foundation.... The impugned provisions do not provide for a difference in treatment on the basis of an individual’s political convictions (opinions) but for a restriction on electoral rights for having acted against the re-established democratic order after 13 January 1991...
Accordingly, Parliament limited the restrictions to the degree of each individual’s personal responsibility [individuālās atbildības pakāpe] in carrying out those organisations’ objectives and programmes, and the restriction on the right to be elected to Parliament or to a municipal council ... is related to the specific individual’s activities in the respective ... associations.
In itself, formal membership of the above-mentioned organisations cannot serve as a basis for preventing an individual from standing as candidate or being elected to Parliament....
Consequently, the impugned provisions are directed only against those who attempted, subsequent to 13 January 1991 and in the presence of the army of occupation, to re-establish the former regime through active participation [ar aktīvu darbību]; on the other hand, they do not affect persons who have differing political convictions (opinions). The tendency of certain courts to concentrate solely on the finding of the fact of formal membership and not to evaluate the person’s behaviour is inconsistent with the objectives sought by Parliament in enacting the provision in issue...
6. ...Given that those organisations’ objectives were linked to the overthrow of the existing state regime [pastāvošās valsts iekārtas graušana], they were essentially unconstitutional...
Consequently, the aim of the restrictions on passive electoral rights is to protect the democratic state order, national security and territorial integrity of Latvia. The impugned provisions are not directed against pluralism of ideas in Latvia or against a person’s political opinions, but against those who, through their active participation, have attempted to overthrow the democratic state order.... The exercise of human rights may not be directed against democracy as such...
The substance and effectiveness of law is demonstrated in its ethical nature [ētiskums]. A democratic society has a legitimate interest in requiring loyalty to democracy from its political representatives. In establishing restrictions, the candidates’ honour and reputation is not challenged, in the sense of personal legal protection [personisks tiesisks labums]; what is challenged is the worthiness of the persons in question to represent the people in Parliament or in the relevant municipal council. These restrictions concern persons who were permanent agents of the occupying power’s repressive regime, or who, after 13 January 1991, participated in the organisations mentioned in the impugned provisions and actively fought against the re-established Latvian Constitution and State...
The argument ... that democratic state order must be protected against individuals who are not ethically qualified to become representatives of a democratic state at political or administrative level ... is well-founded...
...The removal from the list of a candidate who was involved in the above-mentioned organisations is not an arbitrary administrative decision; it is based on an individual judgment by a court. In accordance with the law, evaluation of individual responsibility comes under the jurisdiction of the courts....
7. ...In order to determine whether the measure applied, namely the restrictions on passive electoral rights, is proportionate to the objectives being pursued, namely the protection, firstly, of democratic state order and, secondly, of the national security and integrity of the Latvian State, it is necessary to assess the political situation in the country and other related circumstances. Parliament having evaluated the historical and political circumstances of the development of democracy on several occasions ... the Court does not consider that at this stage there would be grounds for challenging the proportionality between the measure applied and its aim.
However, Parliament, by periodically examining the political situation in the State and the necessity and merits of the restrictions, should decide to establish a time-limit on these restrictions ... since such limitations on passive electoral rights may exist only for a specific period.”
49. Three of the Constitutional Court’s seven judges who examined the above-mentioned case issued a dissenting opinion in which they expressed their disagreement with the majority’s conclusions. Referring, inter alia, to the judgments in Vogt v. Germany of 26 September 1995 (Series A no. 323) and Rekvényi v. Hungary (GC, no. 25390/94, ECHR 1999-III), they argued that the disputed restrictions could be more extensive with regard to civil servants than to elected representatives. According to those judges, Latvia’s democratic regime and institutional system had become sufficiently stable in the years since 1991 for individuals who had campaigned against the system ten years previously no longer to represent a real threat to the State. Consequently, the restriction on those persons’ electoral rights was not proportionate to the legitimate aim pursued.
VIOLATED_ARTICLES: 11


ITEMID: 001-57446
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF BOYLE AND RICE v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No violation of Art. 13;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 9. The applicants, James and Sarah Boyle, are British citizens born in 1944 and 1950 respectively. In 1967, the first applicant was sentenced in Scotland to life imprisonment for murder. He received a number of subsequent prison sentences in 1968 and 1973 for prison breaking, attempted murder of a prison officer and assault on prison staff. The second applicant is the first applicant’s wife and a doctor by profession.
10. In March 1973, Mr. Boyle was removed from Peterhead Prison to a Special Unit in Barlinnie Prison. This Unit had been set up on an experimental basis to treat selected long-term prisoners and prisoners with violent propensities (see paragraph 32 below). The Unit had a maximum of eight prisoners and was characterised by a more liberal regime. Mr. Boyle played a prominent role in facilitating the success of the Special Unit. In particular, he discovered that he had special abilities in working with people and in sculpture, writing and other areas of artistic activity.
While in the Special Unit, Mr. Boyle was allowed, amongst other things, to write and receive uncensored mail, to have daily access to visitors and to use a telephone. He was thereby able to meet his wife, talk to her on the telephone and correspond with her without being subject to the normal restrictions. He also had the opportunity to go out of the prison without escort.
11. In September 1980, Mr. Boyle was advised by the Parole Board that he was to be released on licence in November 1982 and that he was to be transferred to Saughton Prison, Edinburgh, to undergo a pre-release programme. He was informed that he would serve his time there on the same terms and conditions as other prisoners. It was considered that, although the regime there was on traditional lines, Saughton Prison would be more beneficial to Mr. Boyle during the period leading to his eventual release than other alternatives, for example Penninghame Open Prison (see paragraph 31 below). The factors governing the choice included the desirability of his occupying a single cell rather than being in a dormitory; the availability of suitable day-time work for him and of facilities for continuing his studies and his artistic work; and access to suitable educational and vocational opportunities for his pre-release training. Mr. Boyle himself had in fact stated in written submissions in December 1979 that, if he could not remain at Barlinnie for his pre-release programme, he would prefer training from Edinburgh rather than Penninghame.
In November 1981, he was transferred to a Training for Freedom Hostel within the prison (see paragraph 33 below). He was released on 1 November 1982.
As from October 1980 until his release, he was in the lowest security category (Category D).
12. The applicants’ complaints to the Commission in so far as relevant to the present proceedings all related to the period between September 1980 and November 1981 when Mr. Boyle was subject to the ordinary prison regime at Saughton Prison. The facts surrounding those grievances are briefly set out in the following paragraphs.
13. During the relevant period the normal rules regarding the sending and payment of correspondence were applied to Mr. Boyle (see paragraphs 22 and 23 below). The postage of only one three-page letter per week was paid for out of public funds. He was able to pay for other letters out of his prison earnings of £1.60 per week but not out of his general financial resources. In a letter of 31 July 1981 from his solicitors to the Secretary of State for Scotland, a complaint was made that because he found it necessary to spend 80 pence per week out of his earnings to supplement his (mainly) vegetarian diet by buying oatmeal cakes as the prison service provided only white bread, the number of letters he was able to send was restricted. A full vegetarian diet was available at Saughton Prison and no complaint was made by Mr. Boyle to the Governor or to the Secretary of State as to its adequacy.
14. Mr. Boyle’s incoming and outgoing mail was controlled by the prison authorities in accordance with the normal practice followed at the prison (see paragraph 24 below). The applicants also asserted before the Commission that on occasions the prison censorship officer read out aloud in front of other inmates letters from Mrs. Boyle, laughing or making comments about their contents. However, Mr. Boyle did not make any complaint to the Governor of the Prison or the Secretary of State regarding the manner in which his mail was read, in particular about its being read aloud, although the fact of his mail being screened was the subject of complaint in his solicitors’ letter of 31 July 1981.
15. In July 1981, a letter to a friend of his, Mr. Peter McDougall, was stopped by the Prison Governor on the ground that Mr. McDougall was a "media personality". Mr. Boyle petitioned the Secretary of State regarding this matter, but his petition was rejected on the basis that there was a general prohibition of the passing on by a prisoner of material intended for publication or for use on wireless or television (see paragraph 25 below). The Government have subsequently acknowledged that in fact this rule was applied in error, since, although the letter in question was addressed to a person connected with the public media, it was a personal one which Mr. Boyle should have been allowed to send.
16. Mr. Boyle was entitled to receive visits in accordance with the normal rules applied in Saughton Prison (see paragraph 26 below). Consequently, as pointed out in his solicitors’ letter of 31 July 1981, he was permitted only one hour’s visiting time a month under close supervision in a crowded visiting hall. He used this time to meet his wife, with the result that he was not able to see the other members of his family.
He was able to benefit from the special escorted leave scheme and visited his home on two occasions, albeit under the constant supervision of an officer in accordance with the scheme (see paragraph 28 below).
As from November 1980, he was given a special licence to do unescorted community work outside the prison, initially for two days and subsequently for five days a week.
17. The solicitors for Mr. and Mrs. Boyle also raised with the Secretary of State a general objection that Mr. Boyle’s treatment at Saughton Prison was markedly less favourable than his treatment at Barlinnie Special Unit and also in comparison with other Category D prisoners elsewhere under the penal system.
By reply dated 28 August 1981, the Secretary of State rejected this and the other complaints made in the solicitors’ letter of 31 July 1981.
Mr. Boyle also complained through his Member of Parliament to the Parliamentary Commissioner for Administration (the Ombudsman - see paragraph 39 below) about various aspects of his treatment at Saughton Prison. In a letter of 17 September 1981, the Ombudsman stated that he could not uphold Mr. Boyle’s complaints. He stated, inter alia:
"From the details that Mr. Boyle has given, his correspondence, special escorted leave, and visits appear to have been dealt with correctly in accordance with current rules, however dissatisfied he may be with those rules. I think it is fair to say that much of Mr. Boyle’s complaint reflects his disagreement with those rules and with their application to him at this stage of his sentence. The rules are of course a matter for Parliament and in the absence of evidence of maladministration I am precluded by the Parliamentary Commissioner Act from questioning the Department’s discretion in applying them."
18. The applicants, Brian and John Rice, are British citizens born in 1947 and 1920 respectively.
Brian Rice was sentenced to life imprisonment for murder in 1967. He served his sentence in Peterhead and Perth Prisons until August 1979. From August 1979 onwards, he was detained as a Category D prisoner (that is, the lowest security category) at Saughton Prison. He was moved to the Training for Freedom Hostel within the prison (see paragraph 33 below) on 11 September 1981 and was released on licence on 1 June 1982. He had requested to serve the latter part of his sentence in Edinburgh rather than, for example, in Penninghame Open Prison (see paragraph 31 below) because he wanted, prior to his release, to have the benefit of further education courses which were not available from Penninghame.
John Rice is the first-named applicant’s father and lives at Dundee, some sixty miles from Edinburgh. At the relevant time he was seriously ill - having been in bad health for some years - and unable to walk or travel.
19. During his period in Saughton Prison, Brian Rice enjoyed the normal entitlement to visits applicable at the prison.
He petitioned the Secretary of State for Scotland on 8 May 1981 requesting a home visit to his father. The petition indicated that his father had been "ill for a considerable period", but not that he was dangerously ill, which would have made him eligible for compassionate leave (see paragraph 27 below). His request was therefore refused on 27 May 1981. The decision recommended him to make the effort to get a member of staff to take him out of prison under the special escorted leave scheme (see paragraph 28 below). It appears, however, that he experienced difficulty in finding a prison officer to accompany him on special escorted leave. Although Brian Rice was not able to visit his father during the relevant period, he was permitted to attend, without an escort, a college to follow an educational course two days a week and also a centre where he was doing community work. He had previously been granted a home visit in August 1980 and prior to the commencement of the Training for Freedom programme he spent five days on home leave in September 1981.
In a letter dated 23 July 1981 in reply to a letter of 18 June from Mr. Rice’s Member of Parliament, the Under Secretary of State at the Scottish Office explained the reasons for the refusal of compassionate leave:
"... Each application is considered on its merits and on the basis of medical and social work reports. Mr. Rice’s application for a special visit was considered in the usual way but it was decided that it did not meet the required conditions. Mr. Rice was advised that if his father’s condition deteriorated he should make a further request. It is necessary, to prevent abuse of the arrangements, to maintain a strict and entirely consistent approach to applications for compassionate visits from all prisoners and the fact that a prisoner is being released for educational or other purposes does not affect consideration of the merits of his application or remove the need for the normal criteria to be met. ... Mr. Rice is expected to transfer to the formal Training for Freedom (TFF) in September. Prior to that he will have a five-day home leave and while on TFF he will have weekends which he may spend at home. I feel that it would be quite wrong, before that stage is reached, to make a special exception in Mr. Rice’s case and circumvent the rules in relation to either a compassionate visit or a special escorted leave."
20. On 28 July 1981, the solicitors acting for Brian Rice wrote to the Secretary of State complaining about
- the alleged stopping by the prison authorities of a number of letters addressed to themselves, his Member of Parliament, his former counsel and his family;
- his limited prison visiting entitlement, which, as regards maintenance of family contacts, was said to discriminate against him in comparison with other prisoners who were in Category D but detained in open conditions; and
- the refusal to grant compassionate leave.
The reply of 2 September 1981 sent on behalf of the Secretary of State rejected all the various complaints raised. In particular, it was pointed out that all his mail had been posted.
21. The prison system in Scotland is governed by the Prisons (Scotland) Act 1952 ("the 1952 Act"). Under sections 1 and 3 of the 1952 Act, general control and superintendance over prisons in Scotland are vested in the Secretary of State for Scotland.
Section 35(1) of the 1952 Act empowers the Secretary of State to "make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein". This power is exercisable by statutory instrument. A draft of any statutory instrument made under section 35 has to be laid before Parliament (section 40). Statutory instruments are categorised by domestic law as subordinate legislation (section 1 of the Statutory Instruments Act 1946). Subordinate legislation is recognised at common law to have the full force and effect of legislation made by the Sovereign in Parliament (see Halsbury’s Laws of England, 4th ed., vol. 44, para. 981). Statutory instruments such as the Prison Rules are made public.
In exercise of his powers under section 35 of the 1952 Act, the Secretary of State has made the Prison (Scotland) Rules 1952 (Statutory Instrument 1952/565) ("the Prison Rules"), which have been amended periodically.
In supplement of the Prison Rules, the Secretary of State, in the exercise of his general jurisdiction over prisons and of various powers conferred in the Prison Rules themselves, issues instructions to the Governors of prisons by way of administrative orders referred to as "Standing Orders". At the relevant time, the text of the Standing Orders themselves was not made public. However, an Abstract of Rules and Regulations for Convicted Prisoners ("the Abstract") containing information about the content of the Prison Rules and Standing Orders was made available to convicted prisoners.
22. Rule 74 of the Prison Rules provides, inter alia:
"(2) Every prisoner shall be allowed to write and to receive a letter on his admission, and shall thereafter be allowed to write and to receive letters and to receive visits at intervals laid down by the Secretary of State. The intervals so prescribed may be extended as a punishment for misconduct, but shall not be extended so as to preclude a prisoner from writing and receiving a letter, and receiving a visit, every eight weeks.
...
(4) Subject to the provisions of Rule 50(4) every letter to or from a prisoner shall be read by the Governor or by an officer deputed by him for that purpose and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable."
At the relevant time, these provisions were supplemented by Standing Orders Ic.1 to 4.
23. Thus, Standing Order Ic.2(3) specified:
"Prisoners will be granted the privilege of writing letters on the following scale:
(a) All convicted prisoners ... are allowed to write one letter each week to their relatives and friends, the postage of which will be paid out of public funds. ...
...
(d) Postage of additional letters may be met from earnings; the use of private cash from sources other than earnings should not be allowed for this purpose. Before an inmate is allowed to write extra letters he should submit for the Governor’s approval a list of persons with whom he intends to correspond. Additions to or deletions from the list will be at the Governor’s discretion.
..."
No limit was placed on the number of additional letters that might be sent. The content of the relevant provisions of the Standing Orders was made known to prisoners in paragraph 23 of the Abstract.
24. Standing Order Ic.1(1)(a) dealt with the reading of correspondence under Prison Rule 74(4) (see paragraph 22 above):
"In the case of the great majority of letters, where neither the prisoner nor his offence is of notoriety, and the correspondent is a wife or near relative, it is not necessary that every letter should be read through. It will usually suffice to glance at the contents and see they are of usual domestic and personal nature. There will, however, always be certain prisoners whose correspondence requires to be thoroughly examined, and it will be for the Governor to settle who these are and to instruct the officer who deals with the letters accordingly."
Standing Order Ic.4(9) further provided (as regards incoming mail):
"In no circumstances should the contents of a letter to a prisoner or inmate be referred to in the hearing of another inmate."
25. Standing Order Ic.1(3) dealt with the exercise of the Governor’s discretion under Rule 74(4) to stop "objectionable" letters. It stated:
"All ordinary matter, including news of public events, should be passed. Comment by a prisoner on his own conviction and sentence is not objectionable if expressed in proper terms. Objectionable matter falls within narrow limits, viz.
...
(c) Matter intended for insertion in the Press, for publication or for use on wireless or television (with the exception of the magazine ‘Linkup’).
..."
Since the relevant time, new Standing Orders on prisoners’ correspondence have been introduced in Scotland in light of the European Court of Human Rights’ judgment of 25 March 1983 in the case of Silver and Others (Series A no. 61). The restrictions on correspondence formerly applicable have been considerably relaxed, including in particular the prohibition on letters intended for publication. These new provisions relating to correspondence (Standing Order M, which also concerns visits) are available to prisoners.
26. Under the terms of Rule 74(2) of the Prison Rules (see paragraph 22 above), every prisoner is allowed to receive visits at intervals laid down by the Secretary of State. At the relevant time, Standing Order Ic.7 provided, inter alia:
"(1) Every prisoner shall be allowed to receive a visit at least once in every eight weeks and no prisoner shall be deprived of this privilege by a disciplinary award.
(2) Prisoners will be granted the privilege of receiving visits as follows: -
...
(b) In the first period of two months following admission under sentence every prisoner will be eligible to receive two visits from relatives or friends. In each subsequent period of two months he will be eligible to receive three visits."
Paragraph 23 of the Abstract informed prisoners of these provisions regarding the frequency of visits.
The normal duration of a visit was specified under the Standing Orders as being thirty minutes, or twenty minutes during the first ten months of imprisonment (Standing Order Ic.8(3)).
Governors were given discretion to vary the duration and frequency of visits laid down in the Standing Orders provided the total visiting hours were not less than specified in the Standing Orders. The arrangement at Saughton Prison differed from that laid down in the Standing Orders in that one visit of one hour’s duration per month was permitted in place of the allowance in the Standing Orders of three visits of half an hour every two months.
In addition to the ordinary entitlement, the Visiting Committee was empowered to allow an extra or longer visit in exceptional circumstances (Rule 199 of the Prison Rules - see paragraph 37 below).
27. By virtue of Rule 28(1) of the Prison Rules, "the Secretary of State may authorise the temporary release of prisoners undergoing imprisonment ... for a stated length of time and under conditions and for reasons approved by him".
Standing Order Jc.3 sets out the circumstances in which permission may be granted for temporary release on compassionate grounds. Compassionate leave will only be given to visit a near relative who is dangerously ill or to attend the funeral of a near relative. An escort is not normally required for such leave where the prisoner is in Security Category D but is required for other higher security categories.
28. A special escorted leave scheme has been operated at Saughton Prison for many years. It is not dealt with in the Standing Orders but a Notice, dated 20 November 1978, was issued by the Governor of the Prison explaining the purposes, qualifying conditions and means of operation of the scheme.
The objectives of the scheme are to relieve tension associated with long sentences, to help maintain contact with the home setting, to encourage good relationships between prisoners and staff and to prepare prisoners for eventual release. Only prisoners serving sentences of over three years are eligible. One third of the net sentence must have been completed (or four years served in the case of a life prisoner) and the prisoner must have been of satisfactory conduct for a reasonable period. When granted, leave may be taken only if the prisoner is able to obtain the voluntary assistance of a member of staff or an allocated prison visitor (a voluntary helper) to act as escorting supervisor. For the first two leaves the escort must be a member of staff. Leave is granted on the understanding "that the prisoner places himself under direct supervision throughout the entire period of his absence from prison". Before going on leave, the prisoner must sign a parole licence acknowledging that he understands the conditions applicable to his period of leave.
29. Under the "Training for Freedom" scheme at Saughton Prison, prior to release prisoners are eligible for the leave entitlement described at paragraph 33 below.
30. Under Rule 6 of the Prison Rules,
"(1) The Secretary of State may set aside particular prisons or parts of prisons for particular classes of prisoners or particular purposes, including:
(i) the special observation of either unconvicted or convicted prisoners for the purpose of classification, making reports to courts, or otherwise;
(ii) the training of such classes of prisoners sentenced to imprisonment ... as the Secretary of State may from time to time determine.
(2) The Secretary of State may establish or set aside prisons for the treatment in open conditions of selected prisoners or classes of prisoners who have been sentenced to imprisonment or corrective training."
31. An open prison has been established at Penninghame, which houses some 47 prisoners. These prisoners have been individually selected as suitable to serve their sentence in an open prison. Only Category D prisoners can be considered for transfer to Penninghame, but the great majority of Category D prisoners are housed, like Mr. Boyle and Mr. Rice, in closed prisons. The regime at Penninghame Open Prison is more liberal than the ordinary regime in closed prisons. In particular:
(i) prisoners’ mail is not generally read, although the Governor retains discretion to do so;
(ii) visits by friends and relatives, though only allowed once a month, can last for an afternoon between 1.00 p.m. and 3.45 p.m. and can be taken in the grounds at the Governor’s discretion;
(iii) prisoners may be granted occasional leave for the purpose of making visits to local residents at their homes.
In other respects, visits and correspondence are subject to the same rules as in other prisons.
32. A "special unit" was set up in Barlinnie Prison in March 1973 to treat prisoners who were known to be violent, prisoners considered potentially violent and selected long-term prisoners. It was sought to modify the traditional officer/inmate relationship by sharing responsibility between prisoners and staff and encouraging them to regard themselves as a single community. The regime in the Special Unit is substantially different from that in other prisons. In particular, mail is not normally censored, although prisoners are expected to observe the normal rules regarding the content of mail and the Governor retains a discretion to read mail. Visiting is not subject to the normal restrictions as regards time, number or duration of visits. There are opportunities for prisoners to go out of the prison. Those in Security Category D may be allowed to do so without escort. The Special Unit has a maximum of eight prisoners and a four-to-one ratio of staff to prisoners, as opposed to the ratio of one member of staff to four prisoners which is more normal elsewhere.
33. Both Mr. Boyle and Mr. Brian Rice were subject to a "Training for Freedom" scheme during the latter stage of their pre-release programme at Saughton Prison. Prisoners undergoing such training live in a special hostel within the prison and are given regular temporary release for the purpose of working, community service or attending courses in the Edinburgh area. They are also eligible for twelve hours’ unescorted local leave per week and receive one full weekend’s unescorted leave every three weeks during which they may visit their home.
34. The principal remedies available to prisoners in Scotland in respect of complaints concerning their treatment in prison are
- a complaint to the Governor of the prison;
- a complaint to the Visiting Committee;
- a petition to the Secretary of State;
- a complaint to the Parliamentary Commissioner for Administration;
- an application to the courts for judicial review.
35. By virtue of Rule 50(1) of the Prison Rules, any request by a prisoner to see, inter alia, the Governor or a member of the Visiting Committee must be recorded by the officer to whom it is made and conveyed without delay to the Governor. Under Rule 50(2), the Governor is obliged at a fixed time every day other than Sundays and public holidays to see all prisoners who have requested to see him.
36. Section 7 of the 1952 Act lays down that the Prison Rules shall provide for the constitution of Visiting Committees. The relevant provision is made in Rule 187 of the Prison Rules. Members of the Visiting Committee for each prison are appointed by the regional, district and island councils - which are composed of elected representatives - in the area served by the prison (section 7(1) of the Act and Rule 187(1)). Visiting Committees and their members are independent of the prison administration. Section 7(3) of the Act specifies that the Prison Rules shall prescribe the functions of Visiting Committees and furthermore that
"[the Rules] shall among other things require the members to pay frequent visits to the prison and hear any complaints which may be made by the prisoners and report to the Secretary of State any matter which they consider it expedient to report; and any member of a Visiting Committee may at any time enter the prison and shall have free access to every part thereof and to every prisoner".
37. Rules 187 to 205 of the Prison Rules deal with the procedures and functions of the Visiting Committees. In particular, Rule 194 reads:
"(1) The Visiting Committee shall hear and investigate any application or complaint which any prisoner may desire to make to them; and, if necessary, report the same, with their opinion, to the Secretary of State. They shall have free access to all parts of the prison and to all prisoners, and may see any such prisoners as they desire, either in their cells or in a room out of sight and hearing of prison officers.
(2) The Visiting Committee shall record in their Minute Book their findings on all such applications or complaints investigated by them, and the result of all visits to, and inspections of, the prison."
Rule 50(4) (see paragraph 38 below) entitles prisoners to write in confidence to the Visiting Committee. Rule 192 lays down the general requirement that the Visiting Committee "shall immediately bring to the notice of the Secretary of State any circumstances connected with the administration of the prison which appear to them to require his consideration".
Rule 199 empowers the Visiting Committee "in any case of special importance or urgency" to "allow a prisoner an additional visit or letter or prolong the period of a visit". By virtue of Rule 203, the Visiting Committee must, before granting any permission (such as leave for an additional visit), consult the prison Governor in order to satisfy themselves that it can be granted without interfering with the security, good order, and government of the prison.
38. Inmates have the right to submit petitions to the Secretary of State about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment. There is no restriction on the number or frequency of petitions which a prisoner may make to the Secretary of State on the same or different matters. On a petition being made by a prisoner, complaining of a decision of the prison authorities, the Secretary of State would, if he concluded that the relevant Rules or Standing Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Standing Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice.
Rule 50(4) of the Prison Rules provides:
"Every prisoner intimating to an officer his desire to write a letter of request or complaint to the Secretary of State or the Visiting Committee shall be supplied with paper for the purpose, and the Governor shall see that every such letter is posted without delay. If the prisoner has elected to close the envelope it shall not be opened by the Governor."
Standing Order Jb.1 stipulates that "a prisoner wishing to submit a petition to the Secretary of State shall apply to the Governor. No such application shall be refused".
39. The Parliamentary Commissioner for Administration (commonly known as the Ombudsman) has jurisdiction under the Parliamentary Commissioner Act 1967 to investigate complaints of "maladministration" in Government Departments. Such complaints may be raised with him by any Member of Parliament and, since 1979, the Commissioner has been prepared to refer to a Member of Parliament and consider complaints raised directly with him by members of the public, including prisoners. He must report on investigations he makes both to the Member of Parliament concerned and also to the head of the relevant Department and may make appropriate recommendations. He also reports periodically to Parliament on his activities. Any departure from the statutory or administrative rules governing the regulation of prisons may amount to maladministration. However, his jurisdiction does not extend to restrictions effected pursuant to a correct exercise of a discretion conferred by the Rules or the Secretary of State’s directives. The Parliamentary Commissioner may, where he considers that his investigation shows that injustice has been caused by maladministration and that it has not been or will not be remedied, lay before each House of Parliament a special report on the case. In practice, the Department concerned will normally seek to remedy any injustice found.
40. The exercise by public authorities of statutory powers and duties is subject to review by the courts. The grounds on which judicial review may be open are in substance the same in Scotland as in England and Wales (see Brown v. Hamilton District Council, 1983 Scottish Law Times, 397, per Lord Fraser at p. 414). In particular, an exercise of discretionary power may be challenged on the grounds that the authority concerned has acted arbitrarily, in bad faith, unreasonably, for an improper purpose or otherwise outside its statutory powers (see, for example, the speech of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases 374 at 410 and [1984] 3 All England Law Reports 935 at 950-951, as quoted in the Weeks judgment of 2 March 1987, Series A no. 114, p. 18, § 30).
The Government cited two cases, both subsequent to the facts complained of in the present proceedings, as examples of the courts adjudicating on the lawfulness of prisoners’ treatment in the light of the statutory powers and duties of the prison authorities. In the case of Raymond v. Honey ([1983] Appeal Cases 1 and [1982] 1 All England Law Reports 759), the House of Lords held that the English Prison Rules and the relevant Standing Orders would be ultra vires and invalid in so far as they purported to restrict a prisoner’s right to unimpeded access to the courts since that right could only be taken away by express enactment. In R. v. Deputy Governor of Camphill Prison, ex parte King ([1984] 3 All England Law Reports 897), the Court of Appeal decided that a prison Governor’s decision on disciplinary matters was not open to judicial review. The Court of Appeal explained that if a prisoner has a well-founded complaint that a Governor has misconstrued a Prison Rule the appropriate method to seek redress is to petition the Secretary of State inviting attention to the misconstruction, and then if the Secretary of State rejects the petition he may apply for judicial review of the Secretary of State’s decision in the form of a declaration as to the correct construction (ibid., pp. 902, 904 and 905).
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-101256
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: LAZAREVIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mrs Snježana Lazarević, is a national of Bosnia and Herzegovina of Serbian origin who was born in 1967 and lives in Ugrinovci (Serbia). She was represented before the Court by Mrs S. Petrović, an advocate practising in Beograd. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The Government of Bosnia and Herzegovina, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 November 1991 the applicant's parents were awarded a house in Čeminac (Croatia) for temporary use by the occupying forces who, at that time, controlled Čeminac. The house was owned by Mrs M.G., who had been forced to leave Čeminac in August 1991 shortly before the village was taken by the occupying forces.
The applicant's parents moved out of the house between 13 and 16 March 1997 and went to live in Prijedor (Bosnia and Herzegovina).
On 26 March 1997 M.G. brought a civil action against the applicant's parents in the Beli Manastir Municipal Court (Općinski sud u Belom Manastiru). She claimed that they had looted her house when they moved out of it, and sought 252,000 Croatian kunas (HRK) in compensation, which was her estimate of the value of the household items allegedly stolen by the applicant's parents.
As the defendants' address was unknown, the court appointed Mr M.Š., an advocate from Osijek, to act as their temporary representative (privremeni zastupnik) in the proceedings.
On 21 September 1998 the applicant's mother died.
During the proceedings the court called three witnesses proposed by the plaintiff. At the request of the plaintiff, on 25 March 2002 the court decided to obtain an expert opinion on the value of the household items missing from the plaintiff's house and appointed Mr F.V., an expert witness in economics, for that purpose. On 14 June 2002 the expert witness prepared his opinion and submitted it to the court three days later. He assessed the value of the objects in question at HRK 97,427.
At a hearing held on 2 July 2002 the court called the expert witness.
On the same day, the court issued a judgment in which it found for the plaintiff and ordered the applicant's parents to pay M.G. HRK 97,427 in compensation for the looted property, together with accrued statutory default interest running from 26 March 1997. The relevant part of that judgment reads as follows:
“Having consulted the opinion of expert witness F.V., who was also heard in person, the court has established beyond dispute that the value of the household items appropriated from the plaintiff's house in 1991 amounted to 97,427 kunas.
...
In deciding the amount of pecuniary damages ... on the basis of the expert opinion, which the court accepted because it had been prepared meticulously and competently, the court considers that the plaintiff should be awarded ... the sum of 97,427 kunas ...”
In the absence of any appeal, the judgment became final on 3 October 2002.
On 29 September 2003 the applicant's father, represented by an advocate, lodged a petition to reopen the above-mentioned civil proceedings with the Beli Manastir Municipal Court.
On 13 May 2004 the applicant's father died. On 29 March 2005 the applicant was declared the sole heir of her parents.
On 9 May 2005 the applicant, as her father's heir, took over the proceedings from him. She gave a power of attorney to the same advocate who had represented her father in the proceedings.
On 28 November 2005 the court reopened the proceedings and set aside its previous judgment of 2 July 2002.
At a hearing held on 3 October 2006 in the reopened proceedings, the court provided the applicant's representative with the plaintiff's statement of claim (tužba) dated 26 March 1997, its prior judgment of 2 July 2002 and a transcript of the previous proceedings. At subsequent hearings held on 21 February, 19 March, 16 April, 16 May and 2 July 2007, the court called the defendant, the plaintiff, four witnesses for the defendant, one witness for the plaintiff that it had already heard in the previous proceedings and three new witnesses for the plaintiff. However, in the reopened proceedings, the court did not call the expert witness or two other witnesses for the plaintiff whom it had called in the previous proceedings. Instead, at a hearing held on 7 February 2007, the court read out the transcripts of the testimony given by those witnesses in the previous proceedings.
On 12 July 2007 the Beli Manastir Municipal Court again ruled for the plaintiff. It ordered the applicant to pay HRK 97,427 to M.G. in compensation for the property appropriated from M.G., together with accrued statutory default interest running from 26 March 1997. The relevant part of the judgment reads as follows:
“... The court accepted the opinion of the expert economic witness in its entirety because it considers that it was prepared meticulously and competently.
...
In deciding the amount of the plaintiff's claim, the court considers that on the basis of the expert opinion the plaintiff should be awarded ... the sum of 97,427 kunas ...”
On 4 August 2007 the applicant appealed. In her appeal she argued, inter alia, that the value of the property she had inherited from her parents was less than the amount of the award of damages she had been ordered to pay. The applicant also argued that the first-instance court had merely deferred to the expert opinion of 14 June 2002 without critically examining it. In her appeal the applicant wrote, inter alia:
“The defendant [i.e. the appellant] primarily emphasises that she entered the proceedings as an heir of her deceased parents ... The defendant as an heir is liable for the debts of her parents only up to the value of the inherited property.
It cannot be disputed that the value of the property inherited from the deceased, M.T. and R.M., is significantly less than the sum the defendant was ordered to pay by the [contested] judgment ...
Namely, the defendant Snježana Lazarević, inherited practically worthless plots of land from her parents...
...[A] total of 4.5 hectares of scattered and worthless land is [her] inherited property, whereas the court obliges the defendant to pay a sum, the principal amount of which already exceeds the value of the inherited property by several times.
...
Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable, and the defendant considers that the manner [in which the court of first instance] established the facts is contrary to the principle of free evaluation of evidence provided for in section 8 of the Civil Procedure Act.
The first-instance court's bases its decision on the amount of pecuniary damage exclusively on the expert opinion, whereas it [i.e. the court] did not critically assess that evidence in any way, as it was obliged to do in accordance with the principle of seeking the material truth [i.e. its fact-finding role].
The duty of the expert economic witness was to determine the real market value of the appropriated household items ... in accordance with prices [pertaining] at the time the judicial decision was rendered.
From the expert opinion it cannot be discerned what were the prices used to assess the value of the household items. The expert did not have at his disposal photographs which were subsequently submitted. Had he had them, it is likely that the value of [those] items would have been [assessed] significantly lower. The state of [repair of] [those] objects, their age and quality is significantly below average, let alone better than average as assessed by the expert.
The defendant considers that the main reason for the flaws in the expert opinion is the fact that the decision of the court to obtain an expert opinion was not sufficiently clear and specific. Thus, it did not give the expert clear instructions ..., which in the defendant's view, significantly affected the lawfulness and correctness of the contested judgment.”
On 25 October 2007 the Osijek County Court (Županijski sud u Osijeku) dismissed the applicant's appeal in respect of the part of the first-instance judgment ordering the applicant to pay the plaintiff HRK 97,427. It allowed her appeal and reversed the first-instance judgment only in respect of the award of statutory default interest, finding that interest should run from 12 July 2007 and not from 26 March 1997. The court held that during the course of the proceedings before the court of first instance, the applicant had not submitted any evidence as regards the value of the property inherited by her and that she had never objected to the expert opinion. The relevant part of the County Court's judgment reads as follows:
“The defendant correctly notes that under the Inheritance Act an heir is liable for the debts of the decedent up to the value of the inherited property. It is uncontested that the defendant inherited the immovable property listed in the enclosed decision on inheritance. However, a court in civil proceedings does not determine the value of that immovable property of its own motion, and in the [instant] proceedings the defendant did not indicate the value of the inherited immovable property nor propose evidence to determine that value.
...
The value of household items appropriated from the plaintiff was determined according to the expert opinion ... Following a petition by the defendant, the first-instance court allowed the reopening of the previous civil proceedings... and the final judgment obliging M.T. and R.T. to pay an amount of money was set aside. Therefore, the defendant was aware of [the expert opinion] and she did not object to [it].”
On 8 December 2007 the applicant lodged a constitutional complaint against the County Court's judgment, alleging violations of her constitutional rights to equality before the law and to a fair hearing. She argued, inter alia, that the amount of the award of damages had been established on the basis of the expert opinion of 14 June 2002. However, as she had not been served with the opinion, she had not therefore had a chance to submit her comments on the expert's findings, including those relevant to the value of the plaintiff's claim. In her constitutional complaint the applicant wrote, inter alia:
“The complainant has never received a decision of the court [of first instance] ordering an expert opinion, appointing an expert and instructing him in respect of which circumstances the opinion should be prepared. The expert opinion was obtained in the initial proceedings, it has never been served on the complainant or read out [before the court] at the main hearing [during the reopened proceedings]. Nor did the parties consent that evidence should be taken by reading out the expert opinion at the main hearing.
In this way, the complainant was not given an opportunity to comment on the expert opinion, to object to it or to examine the expert. Nor is she aware in respect of which circumstances the report was prepared, or which household items were the subject of, his report.
...
Furthermore, the manner in which the first-instance court determined the value of the plaintiff's claim is unacceptable. Its decision as to the sum of pecuniary damages the first-instance court bases exclusively on the expert opinion, which was not obtained during the [reopened] proceedings nor read out [in court].
The expert did not have at his disposal photographs which were subsequently submitted [when compiling the report]. Had he had them, it is likely that the value of the household items [in question] would have been [assessed at a] lower [price]. The state of [repair of those] objects, their age and quality is below average, let alone better than average as assessed by the expert.”
On 23 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on her representative on 29 August 2008.
The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provide as follows:
“All shall be equal before the law.”
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“1. The right of ownership shall be guaranteed.
2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.”
“1. Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia, subject to payment of compensation equal to the market value.
2. The exercise ... of the right of ownership may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”
The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution ('constitutional right')...
2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...”
“ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.”
Section 139(3) of the Inheritance Act (Zakon o nasljeđivanju, Official Gazette 48/2003 and 163/2003), which entered into force on 3 March 2003 and was applicable as of 3 October 2003, provides as follows:
“An heir shall be liable for the debts of the decedent up to the value of the inherited property. The court shall take into account the value of the inherited property and the value of the decedent's debts that the heir has already paid only if the heir raises [that issue].”


ITEMID: 001-80998
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FLUX v. MOLDOVA (No. 3)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Nicolas Bratza
TEXT: 5. On 27 March 1999, during a television broadcast, the head of the Department for Combating Organised Crime and Corruption, N. A., accused Valeriu Matei, the then Vice-President of Parliament and President of one of the political parties represented in Parliament, of corruption and, together with a mafia gang, of protecting several companies allegedly involved in criminal activities. He stated, inter alia, that:
“...Mr Matei should have been arrested as he has committed both a criminal offence and a minor administrative offence... A criminal file concerning protecting criminals will be sent to the Prosecutor's Office and to the court... These companies [which were suspected of being involved in criminal activities] are being protected by the criminal gang headed by M. and by Mr Matei from Parliament...”
6. On 30 March 1999 Flux published an article entitled “The anti-corruption war: General N.A. versus President Matei. Nicolae Alexei claims that Valeriu Matei is providing political protection to a mafia clan.”
7. The article contained a word-by-word account of the televised broadcast of 27 March 1999 and the newspaper's commentary.
8. On 30 April 1999 Valeriu Matei brought a civil defamation action against Flux and argued that a large number of N.A.'s statements published by Flux were untrue and defamatory of him. The title of the article was not among those statements.
9. On 20 February 2003, by a final judgment, the Court of Appeal found that the statements complained of by Valeriu Matei were not defamatory of him, inter alia, because Flux had simply reproduced N.A.'s statements. However, it found that the following part of the article's title was defamatory of Valeriu Matei: “N.A. claims that Valeriu Matei is providing political protection to a mafia clan”. The court found that no such sentence had been pronounced by N.A. during the broadcast of 27 March 1999 and that the newspaper had not adduced evidence to prove that Valeriu Matei was a member of a mafia clan. The court ordered the newspaper to pay the plaintiff 3,600 Moldovan Lei (MDL) and to issue an apology within fifteen days. The newspaper was also ordered to pay the court fees.
10. The relevant provisions of the Civil Code in force at the material time read:
Article 7 Protection of honour and dignity
“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality.
(2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.”
Article 7 § 1 Compensation for moral damage
“(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court.
(2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 months' minimum wages if the information has been circulated by a natural person.”
VIOLATED_ARTICLES: 10


ITEMID: 001-90561
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZALUSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1946 and lives in Warszawa.
5. On 31 December 1991 the applicant instituted proceedings for redress for obviously unwarranted pre-trial detention (o odszkodowanie za oczywiście niesłuszne tymczasowe aresztowanie).
6. On 28 November 2000 the Warsaw Regional Court scheduled the first hearing for 9 January 2001.
7. On 9 January 2001 the applicant’s representative requested the court for additional time to specify his claim for redress. The court adjourned the hearing sine die.
8. On 14 June 2004 the applicant’s representative requested the court to grant him additional time to update legal and factual grounds for the applicant’s claim. The court adjourned the hearing.
9. On 22 February 2005 the applicant’s representative requested the court to exclude the presiding judge from the proceedings.
10. On 7 July 2005 the Regional Court dismissed the applicant’s motion.
11. On 6 September 2005 the court scheduled the next hearing for 13 October 2005.
12. On 13 October 2005 the Warsaw Regional Court stayed the proceedings pending the outcome of civil proceedings instituted by the applicant. The applicant lodged an interlocutory appeal against this decision.
13. On 8 November 2005 the Warsaw Court of Appeal quashed the contested decision and resumed the examination of the case.
14. On 28 December 2005, 18 May, 25 September, 17 October and 24 October 2006 the Warsaw Regional Court held hearings.
15. On 5 December 2006 the Warsaw Regional Court again stayed the proceedings pending the outcome of the civil proceedings instituted by the applicant. The applicant lodged an interlocutory appeal against this decision.
16. On 9 February 2007 the Warsaw Court of Appeal quashed the contested decision and resumed the examination of the case.
17. On 30 March 2007 the court, due to a modification in the bench assigned to try the case (zmiana składu sędziowskiego), reopened the proceedings. One witness was heard. The court scheduled the next hearing for 15 June 2007.
18. Eventually, on 27 September 2007 the Warsaw Regional Court awarded the applicant PLN 2,277,838 in compensation for pecuniary damage and PLN 45,000 for non-pecuniary damage. Since this judgment was not appealed against, it became final on 19 October 2007.
19. On 20 April 2007 the applicant filed a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). On 25 May 2007 the Warsaw Court of Appeal confirmed that the proceedings in question had indeed been lengthy and awarded the applicant PLN 3,000 by way of just satisfaction. The court stated, inter alia, that the periods of inactivity between 31 December 1991 and 28 November 2000, as well as between 9 January 2001 and 6 May 2004, only confirmed the fact that the court had contributed to the excessive length of the proceedings. The court further stated that the intervals between the hearings were considerable and contributed to the overall length of proceedings. The court also referred to the fact that the Warsaw Regional Court’s decisions of 13 October 2005 and 5 December 2006 to stay the proceedings were unwarranted and also affected the length of the proceedings. Finally, the court stated that, although the applicant’s representative had lodged several futile motions which affected the pace of the proceedings, the Warsaw Regional Court took no action to discipline him.
20. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6