ITEMID: 001-84959
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOVACH v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 4. The applicant stood as a candidate in the parliamentary elections of 31 March 2002 in the single-seat electoral constituency no. 72 in the Zakarpattya (Transcarpathia) region (Одномандатний виборчий округ № 72).
5. Among the candidates registered in that constituency was Mr G., who, at the material time, occupied the post of Head of the Beregovo District State Administration (Zakarpattya Oblast) (Берегівська державна адміністрація Закарпатської області).
6. On 13 and 28 March 2002 the local Hungarian-language newspapers Bereginfo and Karpati Igaz Szo published the following appeal to voters:
“We firmly believe that anyone who honours [Mr G.] with their support on Sunday can do so with a clear conscience, placing their faith and trust in him to ensure the best possible future for our country. He is the only candidate who respects all our interests and is capable of representing and defending those interests at the highest level. He is a man of action who will never abuse your trust in him and who will do his utmost to retain the full support of voters in the future.”
7. The appeal was followed by a large number of signatures, including those of Mrs D., secretary of the Electoral Commission of constituency no. 72 (Окружна виборча комісія), and Mr O., the Chairman of the same electoral commission.
8. On 31 March 2002 the parliamentary elections were held. During the elections an observer, acting on behalf of Mr G. in electoral division no. 14 of constituency no. 72, drew up a report (акт) stating that she had witnessed an unknown person depositing several (she believed there were seven) ballots in the ballot box. The report was signed by two voters. The observers sent by Mr G. to electoral divisions nos. 45 and 58 drew up similar reports of such breaches of electoral law, stating that they had seen respectively five and ten ballots being cast in the ballot box unlawfully.
9. According to the first results generated by the computerised system, the applicant had obtained 33,567 votes, compared with 33,524 for his main opponent, Mr G. In electoral division no. 14 the applicant had obtained 537 and Mr G. 291 votes out of 1,570 votes cast. In division no. 45, out of 1,244 voters 711 had voted for the applicant and 372 for his opponent. In division no. 58 there had been 830 votes, of which 475 had been cast for the applicant and 219 for Mr G. In division no. 67, of 1,480 voters 765 cast their ballots for the applicant and 387 for his opponent. In total, in the four above-mentioned electoral divisions the applicant had obtained 2,488 votes, against 1,269 for Mr G.
10. By decision no. 36 of 2 April 2002, the Electoral Commission of constituency no. 72, on the basis of the above-mentioned observers’ reports, declared the results in electoral divisions nos. 14, 45 and 58 invalid on the grounds of serious breaches of electoral law. It was also established that on the night of 1 April 2002, after the close of polls and the count, the members of the Electoral Commission of division no. 67 had unlawfully opened the sealed polling station and retrieved the original voting records and several invalid ballots. The next day the Chairman of that division’s Electoral Commission had brought those voting records and ballots to the Electoral Commission of constituency no. 72. No reason had been given for these actions. Therefore, the results of the elections in division no. 67 were also declared invalid. On the same date the applicant appealed against this decision to the Central Electoral Commission (Центральна виборча комісія – “the CEC”).
11. By decision no. 37, the Electoral Commission of constituency no. 72 announced the final results of the ballot, according to which the applicant had obtained 31,079 votes compared with 32,255 for Mr G. This result corresponded to that set out in the first voting record, referred to above, after deduction of the votes in divisions nos. 14, 45, 58 and 67. Mr G., therefore, was declared elected as a member of parliament for the constituency.
12. On 3 April 2002 the chairmen and members of the Electoral Commissions of divisions nos. 14, 45, 58 and 67 sent statements to the Chairman of the CEC to the effect that none of the official observers had drawn their attention to any breach of electoral law during the voting or the count, and that the documents submitted by the observers complaining of irregularities had been drawn up after the count, “the results of which did not suit one of the candidates”.
13. By decision no. 750 of 5 April 2002, the CEC, following the applicant’s complaint of 2 April 2002, set aside decision no. 36 and instructed the Electoral Commission of constituency no. 72 to give a reasoned decision on the results of the vote in the four divisions in question. Referring to the first paragraph of section 70 of the Parliamentary Elections Act, the CEC observed that the impugned decision had not been duly reasoned and that there was no conclusive evidence of the alleged irregularities or the allegation that the number of ballots deposited unlawfully had exceeded 10% of the votes cast in each electoral division.
14. At a meeting of 6 April 2002, the Electoral Commission of constituency no. 72, by a majority of nine votes to two with three abstaining, adopted decisions nos. 40 and 41, whereby the vote in electoral divisions nos. 14, 45, 58 and 67 was declared invalid for the same reasons as before. In these decisions the Commission noted that the twelfth paragraph of section 72 of the Parliamentary Elections Act allowed a vote to be declared invalid on account of “other circumstances making it impossible to establish the results of the expression of the electorate’s wishes”, in addition to those enumerated in section 70 of the Act. The Commission further noted that since section 72 did not list these “other circumstances”, the matter fell within its exclusive competence. Lastly, the Electoral Commission of constituency no. 72 concluded that the irregularities which it had established and those noted by the observers could be considered as “other circumstances”, making it impossible to establish the electorate’s wishes.
15. On 9 April 2002 the applicant lodged a complaint challenging decisions nos. 40 and 41 of 6 April 2002. He submitted that the Electoral Commission of constituency no. 72 had not followed the instructions given by the CEC in its decision of 5 April 2002 concerning the need to give sufficient reasons.
16. By decision no. 858 of 12 April 2002, the CEC rejected the applicant’s complaint of 9 April 2002 on the ground that, in accordance with section 72 of the Parliamentary Elections Act, the task of establishing the existence of “other circumstances” causing the vote to be declared invalid fell to the constituency electoral commission.
17. The applicant appealed against this decision to the Supreme Court, which, in a judgment of 24 April 2002, upheld the findings of the CEC, including that concerning the exclusive competence of the constituency Electoral Commissions to establish the “other circumstances” provided for in section 72 of the 2001 Parliamentary Elections Act.
18. On 3 April 2002 Mr V., the applicant’s observer, in the presence of the observers of other candidates and the Chairman and two members of the Electoral Commission of constituency no. 72, drew up a report alleging a breach of electoral law. According to the authors, the conditions in the office of the electoral commission located in the basement of the State Administration building in Beregovo were not adequate to ensure that the ballots were kept secure and intact; in particular, they alleged that the doors and filing cabinets had not been sealed, and that one of the doors did not even have a lock on it.
19. On 5 April 2002 the applicant lodged a complaint with the CEC, challenging decision no. 37 of 2 April 2002 whereby Mr G. had been announced the winner of the elections in constituency no. 72
20. On 7 April 2002, after the CEC’s decision no. 750 (see paragraph 13 above), a recount of the votes in the electoral divisions nos. 14, 45, 58 and 67 was held. After the recount, the Electoral Commission of constituency no. 72 issued a detailed voting record dated 7 April 2002 setting out the results of the ballot in the constituency, which were the same as those stated in its decision no. 37.
21. On the same day a member of the constituency Electoral Commission, together with two observers of two of the unsuccessful candidates, prepared a memorandum, addressed to the CEC, alleging that the packages containing the ballot papers had not been sealed by the Electoral Commission of division no. 67, that some of the ballot papers had been damaged and that, in view of these factors, access to the ballots by third parties before the recount could not be ruled out.
22. On 14 April 2002 the Electoral Commission of constituency no. 72 drew up the corrected voting record (see paragraph 27 below) setting out the results of the vote.
23. On the same date the deputy chairman and three members of the Electoral Commission of division no. 67 drew up a memorandum, addressed to the CEC, in which they stated that, in breach of the law, the deputy chairman and secretary of the constituency Electoral Commission, accompanied by four officials of the municipal council and the State Administration acting as observers appointed by Mr G., had come to their homes asking them to sign the corrected voting record. The signatories of the document expressed doubts as to the accuracy of the figures given in the record of 14 April 2002.
24. On 15 April 2002 the corrected voting records were sent to the CEC.
25. On 16 April 2002 the applicant lodged a complaint with the CEC seeking to have the record of 14 April 2002 declared invalid. Referring to the appeal to voters published on 13 and 28 March 2002 in the newspapers Bereginfo and Karpati Igaz Szo, he criticised the fact that the chairman and the secretary of the commission had engaged in election campaigning for his opponent. He also noted that the conditions in which the ballot materials had been kept and the new voting record produced cast doubt on the accuracy of the results of the vote obtained after the recount on 7 April 2002.
26. In a letter of 18 April 2002, the Electoral Commission of constituency no. 72 informed the CEC that, in accordance with the instructions of the Zakarpattya Oblast Police Department (ГУ МВС України в Закарпатський області), the commission’s office had been properly protected and that no illegal entry had been found to have occurred.
27. By a decision of 18 April 2002, the CEC examined and rejected the applicant’s complaints of 5 and 16 April 2002. It noted that the voting record drawn up after the recount of 7 April 2002 did not contain certain data, namely the number of invalid ballots, and that the amended record of 14 April 2002 had corrected that error. The CEC further noted that decision no. 37 of 2 April 2002 had been lawful and valid given that, according to the corrected voting record, Mr G. had obtained the highest number of votes. Moreover, no indication was found that the way in which the recount had been organised had affected the accuracy of the results of the vote. The CEC referred in this regard to the letter of 18 April 2002 of the Electoral Commission of constituency no. 72 concerning the security of its office. Lastly, the CEC found that the applicant had failed to indicate any ground provided by the Parliamentary Elections Act for the dismissal of the Chairman and the secretary of the Electoral Commission of constituency no. 72.
28. The applicant challenged this decision before the Supreme Court, which, in a judgment given on 22 April 2002, rejected his complaint. It held that the decision of 18 April 2002 had been taken within the CEC’s competence and in a manner prescribed by the applicable domestic law.
29. The relevant Article of the Constitution provides:
“... A citizen of Ukraine who has reached the age of 21 on the date of the elections has the right to vote and, if that citizen has resided on the territory of Ukraine for the past five years, is eligible to be elected a member of parliament ...”
30. At the material time the Ukrainian electoral system was governed by section 1 of this Act. It was based on a mixed-member proportional system, where 225 of the 450 members of the Verkhovna Rada (the Ukrainian unicameral parliament) were elected from the single-seat constituencies by simple plurality (“first past the post”) (see Sukhovetskyy v. Ukraine, no. 13716/02, ECHR 2006VI) and another 225 seats were reserved for candidates from party lists (see Melnychenko v. Ukraine, no. 17707/02, ECHR 2004X).
31. In accordance with section 18 of the Act, the system of electoral commissions included the CEC, commissions of electoral constituencies and electoral divisions. Each electoral constituency consisted of several divisions.
32. Section 29 of the Act provided that the candidates for election were entitled to challenge the decisions, actions and omissions of the electoral commissions before the higher electoral commissions or the courts. The higher electoral commission, following such an application, the decision of the court or of its own motion, could set aside the decision of the lower commission and either take a new decision or oblige the commission concerned to reconsider the matter. Decisions, actions and omissions of the CEC could be challenged before the Supreme Court.
33. Section 70 of the Act determined the procedure for having the vote in an electoral division declared invalid by the electoral commission of that division.
Paragraph 1 of this section stipulated:
“An electoral commission of a division may declare the vote in the division invalid in the event of a breach of this Act making it impossible to establish the results of the expression of the electorate’s wishes. The electoral commission of a division may declare the vote invalid only in the following circumstances:
1. if actual unlawful voting has been established (depositing of a ballot in the ballot box by a person other than the one to whom it has been issued; voting by persons who have no right to vote; voting by persons who are not included in the electoral lists of the relevant electoral division or by persons who have been wrongly included in the lists; multiple voting by one voter) if the number of fraudulent votes exceeds 10% of the total votes cast;
2. if a ballot box has been damaged or destroyed so that it is impossible to establish the content of the ballots deposited, and if the number of damaged ballots exceeds 10% of the total votes cast;
3. if the number of ballots deposited exceeds the number of voters who voted by 10% or more.”
34. Section 72 of the Act regulated the procedure for examination by the constituency commissions of voting records issued by the division commissions.
Paragraph 12 of this section provided:
“If the electoral commission of a constituency establishes the existence of the circumstances enumerated in paragraph 1 of section 70 or of other circumstances which make it impossible to establish the wishes of the voters in the division, it may declare the vote in the division concerned invalid.”
35. The 2004 Parliamentary Elections Act (as amended on 7 July 2005) provides for proportional representation in elections. Section 90 of the 2004 Act retains the power for commissions of electoral divisions to declare a ballot inadmissible if the number of fraudulent votes exceeds 10% of the total votes cast. Section 92 provides that, after a recount, commissions of electoral constituencies are entitled to annul the vote in an electoral division if the circumstances set out in section 90 have been established, or if intentional acts have wrongfully interfered with the work of the members of the electoral commissions or the candidates’ observers.


ITEMID: 001-88583
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MARKON v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1975 and lives in Gdańsk. He is currently serving a prison sentence in Gdańsk Prison.
6. On 6 May 2000 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody until 5 August 2000 in view of the reasonable suspicion that he had committed the offences with which he was charged and the risk that he would obstruct the investigation. The applicant was suspected of acting in an organised criminal group, illegal possession of weapons and several offences of armed robbery. The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might induce witnesses to give false testimony The court also stressed the severity of the likely sentence and that the applicant had been wanted by the police since 1999.
7. The applicant’s detention was repeatedly extended by decisions of the Gdańsk Regional Court (Sąd Okręgowy) and the Gdańsk Court of Appeal (Sąd Apelacyjny). Appeals and applications by the applicant for release and for the preventive measure to be varied were unsuccessful. In their decisions the courts relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, on their serious nature and the complexity of the case.
8. Once the length of the applicant’s detention had reached the statutory two-year maximum laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks Postępowania Karnego), the first-instance court no longer had jurisdiction to extend it. Consequently, it was the Gdańsk Court of Appeal which issued further extensions. In its first extension decision, on 24 April 2002, the Gdańsk Court of Appeal relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the considerable complexity of the case. The court also held that the risk that the applicant and other co-accused would obstruct the investigation was justified. It did not however refer to any reasons justifying its allegations.
9. On 31 October 2002 the Gdańsk Regional Court gave judgment. The applicant was convicted as charged and sentenced to ten years’ imprisonment.
10. The applicant and several other co-accused appealed. The applicant was kept in detention pending appeal for thirteen months.
11. On 1 December 2003 the Gdańsk Court of Appeal quashed the first-instance judgment and remitted the case for re-examination to the first-instance court.
12. On 16 December 2003 the Gdańsk Court of Appeal extended the applicant’s detention until 30 March 2004. The applicant remained in detention until his further conviction.
13. On 10 April 2006 the Gdańsk Regional Court again convicted the applicant and sentenced him to ten years’ imprisonment.
14. On an unspecified date the applicant appealed against this judgment.
15. On 20 November 2007 the Gdańsk Court of Appeal gave judgment apparently upholding the applicant’s conviction.
16. The applicant twice lodged a complaint that his right to a trial within a reasonable time had been breached 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”).
17. On 16 March 2005 the Gdańsk Court of Appeal left the complaint unexamined because the applicant had failed to pay court fees. On 14 February 2006 the same court rejected the applicant’s second complaint for a procedural mistake (the applicant had failed to specify the circumstances justifying his claim as required by section 6 of the 2004 Act).
18. The applicant produced an envelope in which he had received an application form from the Court. The envelope had been sealed with sticky tape but there was no “censored” stamp on it or any other mark that could mean that the applicant’s correspondence had been interfered with.
19. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5


ITEMID: 001-5073
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SCOTT v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1953 and living in Reading.
She is represented before the Court by Mr L. Clements, a solicitor practising in Hereford.
The facts of the case, as submitted by the parties, may be summarised as follows.


ITEMID: 001-112102
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VIDGEN v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses)
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1958 and, as far as the Court is aware, lives in London.
7. On 5 September 2003 the Utrecht Regional Court (rechtbank) found the applicant guilty of being a co-perpetrator of the offence of transporting a shipment of tablets containing a psychotropic substance the trade of which is illegal in all countries concerned, namely 3,4-methylenedioxy-N-methylamphetamine (“MDMA” for short, known in its street pill form as “ecstasy” or “XTC” – the latter designation will be used in this judgment hereafter) from the Netherlands to Germany with the intention of ultimately shipping it to Australia. According to the judgment, the XTC was to be hidden in the cylinders and crankcases of motor car engines that would then be shipped to a business, H. Autosport, in Sydney, New South Wales, which company had been set up by the applicant with a view to importing engine parts from Europe. The applicant was sentenced to five years’ imprisonment.
8. The proceedings against the applicant were held separately from the proceedings against his co-accused, amongst whom were A., M. and the applicant’s father, Mr K. Vidgen. The suspects A. and M. were in fact put on trial in Germany. On 13 November 2002 they were convicted and given prison sentences by the Regional Court (Landgericht) of Aachen in Germany for their part in the crimes. They had both made full confessions and given detailed statements to the German prosecutors, a fact that was taken into account in sentencing.
9. At no point throughout the criminal proceedings against him did the applicant deny that he had been involved in shipping motor car engines to his business in Sydney. However, he denied all knowledge of the use of those engines to smuggle XTC and hence any criminal intent directed towards that end. His defence was focused on this point.
10. Virtually all the evidence presented before the Utrecht Regional Court to prove the applicant’s intent and participation in committing the offence was taken from the statements given by M. to the German prosecutors and later on to Netherlands police investigators during the pre-trial stage of the proceedings against the applicant. Particular weight was given to statements M. had made with regard to a handwritten note, found in his dwelling, which contained the address of H. Autosport in Australia.
11. The applicant had repeatedly requested to be allowed to question M. since neither he nor his counsel had been present when M. had given these statements. At a hearing on 14 May 2003 the Regional Court noted that both parties had, in the meantime, been to Germany to question the witnesses A. and M. The applicant however specified that the German investigating judge had done all the questioning and that he himself had not been able to put any questions to the witnesses. It also appeared that M. had refused to answer questions or repeat the statements he had made previously. Furthermore, the prosecutor stated that there had appeared to be a problem with the interpreter assisting the witness M. The applicant requested further questioning of the witnesses so that he would actually be able to put his own questions to them.
12. At the same hearing the Regional Court decided that the statements given to the German prosecutor by A. and M. would be added to the case file together with the records of their German trial.
13. In its judgment of 5 September 2003, the Regional Court, finding that the applicant had been able to put questions to M. twice (though without specifying when or where), considered that the use in evidence of the statements given by M. in Germany did not violate the provisions of Article 6 of the Convention. The fact that M. had chosen to avail himself of his right not to testify did not alter this situation. The Regional Court also found that M.’s statements were sufficiently supported by other evidence to be allowed to serve as the basis for the applicant’s conviction.
14. On 15 September 2003 the applicant lodged an appeal against the judgment of the Regional Court with the Amsterdam Court of Appeal (gerechtshof). At a hearing on 20 February 2004, the Court of Appeal granted the applicant’s request for A. and M. to be summoned to appear before the court so that they could be heard, given the importance of their statements.
15. On 6 August 2004 A. and M. were both questioned as witnesses at a hearing before the Court of Appeal. A. stated that he knew the applicant but in general denied ever having talked to him about the XTC. On more specific questions he invoked his right not to testify (verschoningsrecht). A. also declared that everything M. had stated was a lie.
16. M. acknowledged that he had been questioned by Netherlands police investigators and admitted that he had been convicted of perjury some years earlier. He refused however to answer any substantive questions, invoking his right not to testify in connection with pending proceedings for his extradition to the Netherlands to stand trial on a charge of participation in a criminal organisation.
17. In his closing argument the applicant’s counsel submitted that none of the evidence presented disclosed the applicant’s intention to commit or participate in the commission of the criminal offence, save only the statement made by M. The applicant’s counsel argued, with reference to the Court’s case-law (including Lucà v. Italy, no. 33354/96, ECHR 2001II), that the Regional Court had based its judgment solely or to a decisive extent on statements made by a witness whom the applicant had not been able to question, thus violating his right to a fair trial under Article 6.
18. On 13 December 2004 the Court of Appeal dismissed the applicant’s appeal. It considered that the mere fact of M.’s refusal at the hearing to answer any substantive questions did not constitute a violation of the applicant’s right to have witnesses against him examined. The court noted that M. had initially made a confession to the Netherlands police investigators and had given a full account of events, including about the involvement and extent of participation of his fellow perpetrators. In the course of interviews held at a later stage and at the hearing before the Court of Appeal on 6 August 2004, M. had invoked his right not to testify. The court noted, however, that M. had not invoked this right in respect of all questions put to him. Thus, he had in any event confirmed that he had indeed said what had been noted down by the Netherlands police investigators. The question nevertheless arose whether in these circumstances M.’s confessions could be used as evidence in the criminal proceedings against the applicant. For that to be the case, it was required that these statements be largely corroborated by other items of evidence relating to elements which were disputed by the applicant and in respect of which he had wanted to put questions to the witness M.
19. The Court of Appeal’s reasoning included the following:
“The defence has argued – in substance – that M.’s initial statements to the police cannot be admitted as evidence because he subsequently withdrew them and because the defence has had insufficient opportunity to question M. as a witness because – in connection with criminal proceedings pending against him in the Netherlands ... he had, at the hearing of 6 August 2004, repeatedly invoked the right not to testify.
The court finds as follows as regards the reliability of the witness and fellow suspect M. and the right of the defence to question him. Initially, M. made a confession and gave a complete description of the facts, also relating to the involvement and participation of his fellow suspects. Later, questioned under letters rogatory and at the hearing of this court on 6 August 2004, M. invoked his right not to testify. M.’s refusal to testify at the hearing does not, in itself, violate the right of the defence to question him. In any case, M. has not invoked his right not to testify in response to all the questions put and he has at least confirmed that he has made to the Netherlands investigators the statement which they set down on paper. The question remains, however, to what extent in these circumstances the earlier confessions made by M. can and may be admitted as evidence in the present criminal case. For that, it will be required that these statements be largely corroborated (in belangrijke mate worden bevestigd) by other evidence on those aspects which [the applicant] contests and about which he would have wished to question the witness.
The court notes that the suspects A. and M. were sentenced to imprisonment for 7 years and 4 years and 6 months, respectively, for the illegal import and the illegal trade in psychotropic substances by the Landgericht of Aachen. In arriving at a conviction, the German court has, in its judgment of 13 November 2002 ..., held as follows concerning A.:
‘... In this connection ... it has to be noted in the suspect’s favour that he made a complete confession at the trial, which made it easier especially for the suspect M. to repeat at the hearing the confession which he had already made already following his arrest, which moreover was thus confirmed. This chamber holds in favour of the suspect A. that he has made his confession in spite of a concrete threat to his person and his family by the people in the background of this drugs deal. A.’s confession additionally has the effect of section 31 of the [German] Narcotics Act, ... The statement of the suspect M., which has already led to considerable success in clearing up this case and also in the Netherlands investigation, is strengthened (bekrachtigd) by the additional and confirming statement of the suspect A. ...’
In sentencing M., the German court has held as follows:
‘Because, as in the case of the suspect A., the primary standard sentence of two to 15 years’ imprisonment ... must be mitigated ... pursuant to section 31 of the [German] Narcotics Act. It must, however, be counted considerably in favour of the suspect M. that he has made a complete confession at an early stage of the investigation, although his family and he himself have received specific threats. This confession is also inspired by contrition and insight ...”
At this court’s hearing of 6 August 2004 M. first stated that there had been a deal in his case and afterwards that there had never been any mention of a deal. On this ground, the court finds – contrary to what the defence has argued – that it is not established that there was a deal agreed between M. as suspect and the German prosecution service to make statements incriminating (also) his fellow suspects in exchange for a reduction of sentence. Conversely, the German court gave reasons for applying the mitigating factor contained in section 31 of the [German] Narcotics Act. M.’s confessions are also corroborated by the statement of A. and even extended despite threats to his person and family. This reinforces the credibility of M.’s confessions. The court does not give credence to the suggestion that A. had no choice, in view of the procedural attitude adopted by M., but to make a confession of his own, the less so since in so doing he has broadened M.’s statements.
At the court’s hearing of 6 August 2004, M. stated that he had not felt at liberty to make [his own] statements before the German court and that the statements which he had made before the Netherlands investigators had been put into his mouth after they had driven him crazy by raising the case of B., whom he had known well. The court does not, however, consider it likely that M. did not make his confessions in complete freedom and in so doing takes into account what the German court found in its criminal judgment concerning the way in which M. had made his statements at the hearing in Germany and the fact that this statement confirmed what M. had earlier stated before the Netherlands investigators. In contrast, this court’s own observation at the hearing has given it the impression that M. did not feel at liberty to make a true statement or in any case to confirm what he had earlier stated before the Netherlands investigators and the German criminal judge without further incriminating himself in view of the prosecution for which the Netherlands public prosecutor has requested his extradition. The court sees no circumstances on the basis of which it should be doubted that the statements initially taken from M. by the Netherlands investigators had lawfully come about; nor has the defence asked for the Netherlands investigators concerned who questioned M. to be called as witnesses. Finally, the statements of both M. and A. are supported in various stake-outs and the recordings of private communication (opnemen van vertrouwelijke communicatie, ‘OVC’s’).
Considering the connection with A.’s confession before the German court and the other items of evidence the court concludes that M.’s statement about the involvement of [the applicant] in the facts charged ... is sufficiently corroborated by other evidence and can therefore be admitted as evidence by the court.”
20. The evidence used by the Court of Appeal to ground the applicant’s conviction was the following:
an official police record reflecting, among other things, a tipoff to the effect that A., the proprietor of a snack bar, dealt in XTC and maintained contacts with M. and “Grandpa” (K. Vidgen);
an intercepted telephone conversation in which M. tells a co-conspirator to send “the goods” to H. Autosport in Sydney, New South Wales;
an official police record to the effect that the applicant had arrived in Australia (the Court of Appeal linked this with item b);
an intercepted private conversation between A., M. and K. Vidgen in which they discuss the preparation of the motor car engines for shipping;
an intercepted private conversation between A., M., K. Vidgen and one W. in which they discuss how to disguise the smell of the XTC so as to foil sniffer dogs;
an intercepted private conversation between A., M. and K. Vidgen, apparently in a motor car, from which it appears that they are in a car park waiting for a police car to leave;
an official record reflecting the positive identification of one of the voices involved in the conversation listed above under e. as that of W.;
a translation from German into Dutch of an official German police record describing the finding of fifteen packages containing small tablets in the crankcase of a motor car engine found in a car breaker’s yard in Germany;
a translation from German into Dutch of an official German police record describing the finding of XTC in nine other engines in the same car breaker’s yard and the seizure of approximately 100 kilogrammes of tablets identified provisionally as XTC;
a translation from German into Dutch of an official German police record positively identifying a sample of the tablets as XTC after testing;
an official record drawn up by a Netherlands police officer covering a list of objects seized by the German police and the handing over by the latter of a small quantity of pills;
an official police record describing the provisional identification of two small sample of the above pills as XTC;
an official police record in which the first of the two small samples is positively identified as XTC;
an official police record in which the second of the two small samples is positively identified as XTC;
an official record of a search of M.’s dwelling, where a handwritten note was found giving the address of H. Autosport in Australia;
a translation from German into Dutch of an interview of M. conducted by a German police officer on 19 February 2002, containing the following:
“Question: You are now being shown a copy of the back of a page reading EXA03-02-01/003 and the text ‘H.’. Who wrote that?
Answer: It is not my handwriting.
Question: What does H. mean?
Answer: H. refers to H. Autosport. That is the address to which the engines seized in E. [where the car breakers’ yard was located] were going to be shipped.
Question: Where is H. Autosport located?
Answer: It is in Sydney in Australia.
Question: Who wrote this note?
Answer: I suspect that Grandpa [the applicant’s father’s nickname] or Grandpa’s son [i.e. the applicant] wrote the note. The first name of his son is Nick. Vidgen is Grandpa’s last name.”
Question: How long have you had the note with the text H. Autosport?
Answer: I reckon that I was given that note four months before my arrest. Four of us, that is to say A., Grandpa, his son Nick, and I, went for dinner at a Chinese restaurant in North Amsterdam. I don’t know whether Grandpa or Nick wrote the note with the address, but at any rate A. then gave the note to me.
Question: What did you do with the Australian address ‘H. Autosport’?
Answer: I phoned it through to H.
Question: What was the real intention of shipping engines to Australia in shipping containers?
Answer: To transport XTC pills to Australia in the engines.”
a translation from German into Dutch of an interview of M. conducted by the same German police officer on 20 February 2002, from which it appears that a recording of a conversation held inside a motor car is played back to M., after which the following is said:
“Question: Where were you going when you held the conversation to which we have just listened?
Answer: We were on our way to a Greek restaurant.
Question: Who attended the meeting?
Answer: I, A., W. and the aforementioned Grandpa. Later on we were joined in the restaurant by H.
Question: What did you discuss there?
Answer: We discussed the engines.
Question: What is the relationship between these people?
Answer: I will now describe it as follows: A. is in touch with Grandpa. A. is also in touch with W. A. needs M. because M. can supply the pills. Grandpa has the address where the pills have to be delivered. Grandpa’s son then knows where to pick up the stuff. Grandpa and his son are in this together.
Question: Did Grandpa’s son know what was in the engines?
Answer: Yes, he just did not know how much was in them. Neither did I.
Question: Whose idea was it to organise the transport in this way?
Answer: A. had the contact and the address in Australia. W. knows K., who has a car breaker’s yard. I believe it was their idea.
Question: Who were you going to meet on 3 December 2001?
Answer: A. had an appointment that day with Grandpa and H. Earlier Ma. had asked Ba. whether Q. could drive a white van. A. had asked me to phone L. L. was to drive along in his black car. He was to drive in front of the van. We had all arranged to meet in front of the W. Hotel. Q. was there already with the van. A. and I had already gone to the W. Hotel with the white Volkswagen Bora. A. and I got into L.’s car. The white van was meant to follow us. Next we went to the V. Hotel near the town of H. [in the Netherlands]. There we parked the cars. Grandpa was already there. A. and Q. joined Grandpa at his table. They were later joined by H. H. then went outside and drove off with the white van. It was his job to load the engines into the van. I don’t know where he wanted to collect the engines, that kept changing all the time. Sometimes from Ka., then from He., Ka.’s brother. Q. had to go with him.
The next meeting was in the industrial area of the town of H. It was about an hour before H. arrived with the white van. The engines were on board. I reckon that there were eight. The XTC tablets were inside the engines. After H. had come back with the van, Q. got into it. H. and Grandpa got into the Mercedes and L., A. and I got into the black Opel. We followed Grandpa and H. Then H. and Grandpa drove into the breaker’s yard. I later understood from the file that the yard was called R. and was located in E. (a location in Germany). After Grandpa and H. had driven into the yard, A. and I turned back and retraced our route and drove past the yard one more time. We then drove back to the Netherlands.
I later overheard H. talking with A. in a low voice and I heard them say that it had all gone well.
A. and I then took the Volkswagen Bora to drive back to the town of H. A. was adamant that he wanted to go back to the town of H., because there were three more things to transport to E. the following day and he wanted to make the arrangements. It was agreed with L. that he would come to the V. Hotel in H. towards 11 or 12 p.m. We then got into the car with W. and went with him to H. It was agreed that Q. would drive the van to E. at least once more. There was a question whether H. might perhaps come along. W. L., A. and I drove to K. [the proprietor of the breaker’s yard]. I seem to remember that Q. would be paid 1,000 Netherlands guilders (NLG) for the trip to E.
Grandpa wanted 2.50 Netherlands Guilders (NLG) in total (the court understands this to be the price per pill), that is NLG 1 for himself and NLG 1.50 for his son. A. was going to get NLG 2 for each pill. When I say ‘Grandpa’ I mean K. Vidgen.”
a translation from German into Dutch of an interview of M. again conducted by the same German police officer, this time on 21 February 2002, in which M. describes how the engines were bought in Belgium to be prepared by K. for shipping from Germany;
a translation from German into Dutch of an interview of M. conducted by the same German police officer on 5 March 2002, describing the transport of the engines to K.’s breaker’s yard to be cleaned;
a translation of an official record of an interview of the witness M.M.S., conducted in Australia under letters rogatory, describing how, with his father’s assistance, the applicant set up H. Autosports in Sydney, New South Wales, Australia with financial support from his father and how the applicant intended to receive a shipment of motor car engines from Germany;
finally, a statement made by the applicant at the hearing of the Regional Court of Utrecht to the effect that he had met A. in the Netherlands; that he had financed his business in Australia with his wife’s money and a loan from his father; and that the address on the note was that of his business in Australia.
21. On 23 August 2005 the applicant lodged an appeal in on points of law (cassatie) with the Supreme Court. He submitted one ground of appeal (cassatiemiddel) raising two complaints: firstly, that the Court of Appeal had failed to present proper reasoning as to why it relied on one particular statement by M.; and secondly, that it had mistakenly concluded that the statements given by M. were sufficiently supported by other evidence to prove the applicant’s intent to commit and participate in the commission of the crime.
22. On 7 February 2006 the Procurator General (Procureur Generaal) to the Supreme Court expressed as his advisory opinion that the second leg of the applicant’s ground of appeal should be upheld. He considered that the evidence that had led to the applicant’s conviction had been based solely or to a decisive extent on the statements made by M. at the pre-trial stage, thus leading to a violation of Article 6 § 3 (d) of the Convention. In particular, the Procurator General found that the Court of Appeal had merely sought to determine whether M.’s statements could be relied upon in the face of corroborating evidence; it had not, however, determined whether the applicant’s conviction was based solely or to a decisive extent on M.’s statements.
23. On 6 June 2006 the Supreme Court dismissed the applicant’s appeal on points of law and confirmed the judgment of the Court of Appeal. In its reasoning the Supreme Court did not deal directly with the first leg of the applicant’s ground for appeal. As relevant to the case before this Court, the Supreme Court considered that the Court of Appeal had been entitled to rely on the statements made by M. since that witness had appeared at the hearing and the applicant had been able to put questions to him as well as present arguments relating to the validity of M.’s statements. The fact that M. had invoked his right not to testify did not lead to a violation of Article 6 § 3 (d) of the Convention. Ex proprio motu, the Supreme Court held that the cassation proceedings had lasted too long, for which it compensated the applicant by reducing his prison sentence by six months. The judgment was published in Netherlands Law Reports (Nederlandse Jurisprudentie, “NJ”) 2006, no. 332.
24. Articles of the Code of Criminal Procedure relevant to the case are the following:
“A witness shall be excused the duty to answer a question put to him if in so doing he would expose himself or one of his relatives in the ascending or the descending line ex transverso [i.e. siblings, uncles, aunts, nieces and nephews, etc.], whether connected by blood or by marriage, in the second or third degree of kinship, or his spouse or former spouse, or registered partner or former registered partner, to the risk of criminal prosecution.”
“1. The following only shall be recognised as legal evidence:
1 . the court’s own observation;
2o. statements made by the defendant;
3o. statements made by witnesses;
4o. statements made by experts;
5o. written documents.
2. No proof is required of generally known facts or circumstances.”
“1. ...
2. The court shall not hold it proven on the evidence of only one witness that the suspect has committed the act with which he is charged.”
“The expression ‘written documents’ means:
...
3. documents drawn up by public bodies or civil servants concerning matters coming within the competence entrusted to them, including documents drawn up by a person in the public service of a foreign state or an international intergovernmental organisation;
...
5. all other documents; but these shall only be valid in connection with the content of other items of evidence. ...”
25. In its judgment of 1 February 1994, NJ 1994, no. 427, the Supreme Court held that the use in evidence of an official report containing an incriminating statement not made at the trial hearing was not ipso facto impermissible, and in particular not incompatible with Article 6 §§ 1 and 3 (d). There would in any case be no incompatibility if the defence had had the opportunity to test the reliability of the statement and challenge it by questioning the person who had made it as a witness. Moreover, even if such an opportunity was lacking, the use in evidence of such a report was permissible if there was “considerable support” for the statement in other items of evidence (die verklaring in belangrijke mate steun vindt in andere bewijsmiddelen).
26. In its judgments of 14 April 1998, NJ 1999, no. 73, and 29 September 1998, NJ 1999, no. 74, the Supreme Court clarified the expression “considerable support” by construing it in the sense that it was already sufficient if the suspect’s involvement in the act charged was sufficiently confirmed by other evidence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-86437
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HOWARTH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr John Mcgillen, is a British national who was born in 1949 and lives in Stoke-on-Trent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 11 October 1989. There were two children of the marriage, born on 13 April 1978 and 2 November 1982. In 1997 the applicant applied for widows’ benefits and was refused. On 23 March 2001 he applied to the Benefits Agency for benefits equivalent to those which would have been received by a widow. He was finally refused such benefits by the Social Security Appeal Tribunal on 2 October 2001.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-66663
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: JOHANSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Birger Johansson, is a Swedish national who was born in 1943 and lives in Vedum. He was represented before the Court by Ms S. Westerberg, a lawyer practising in Göteborg. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In February 1994 the applicant had an accident at work and injured his back. As a consequence thereof, he received a sickness allowance (sjukpenning). On 26 April 1996 the Social Insurance Office (försäkrings-kassan; hereinafter “the Office”) of Skaraborg sent a letter to the applicant informing him that he had been referred to a physician, a psychologist and a physiotherapist for examinations of his health condition and the possibilities for rehabilitation, to be conducted on 2 and 3 May 1996. He was further informed that failure to appear without a valid reason could result in a withdrawal or reduction of his sickness allowance. On 29 April 1996 the applicant, questioning the competence of the persons supposed to examine him and the need for and expediency of those examinations, stated that he refused to appear without his legal counsel and asked for the examinations to be postponed. On 30 April 1996 the Office replied that it considered that the medical material available to it was not sufficient to make an appropriate examination of his right to a continued sickness allowance and that the aim of the requested medical examinations was to remedy those deficiencies.
On 2 May 1996 the applicant appealed against the request for medical examinations. On 3 May 1996 the County Administrative Court (länsrätten) of the County of Skaraborg dismissed the appeal stating that the Office could, under the Social Insurance Act (Lagen om allmän försäkring, 1962:381), request that the applicant undergo an examination of his health situation and the possibilities for rehabilitation. According to the preparatory works to the relevant provisions, measures taken by the Office should be seen as part of the handling of the case and could thus only be subject to appeal when there had been a decision to withdraw or reduce the allowance in question. Since the measure in question had not had any direct consequences for the applicant, the County Administrative Court found that it was prevented from examining the applicant’s appeal and thus dismissed it.
The applicant did not appear for the medical examinations and was given a new appointment, with three chief physicians, for 19 June 1996. In letters to the physicians, he again criticised the examinations. He eventually appeared for the appointment accompanied by his legal counsel. He declared that he was not opposed to being examined but that he was not there of his own free will but under the threat of having his allowance withdrawn. The physicians considered that the applicant was not consenting to the measure and therefore did not proceed with the examination.
Meanwhile, on 14 May 1996 the applicant had appealed against the County Administrative Court’s decision to dismiss the appeal regarding the request for medical examinations. On 19 June 1996 the Administrative Court of Appeal (kammarrätten) in Jönköping remitted the case to the Office for a re-examination as, according to the legal procedure, the Office should have reconsidered (omprövat) its decision before the examination by the County Administrative Court. On 2 July 1996 the Office, upon reconsideration, drew the same conclusion as the County Administrative Court had done on 3 May 1996. On 14 August 1996 the County Administrative Court again dismissed the appeal.
On 6 February 1998 the Administrative Court of Appeal upheld the County Administrative Court’s decision of 14 August 1996. On 29 April 1999 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on this issue.
On 7 November 1996 the Office informed the applicant that it was considering discontinuing payment of his sickness allowance and invited him to submit observations. The applicant availed himself of that opportunity.
By a decision of 4 December 1996 the Office discontinued payment of the applicant’s sickness allowance as from 7 December 1996 as it had not been shown that his ability to work was reduced to such an extent that he was entitled to such an allowance. The Office had regard to complementary medical records and reports which it had obtained concerning the applicant and the opinion of one of its own medical doctors (försäkringsläkare). Upon the applicant’s request, the Office reconsidered its decision on 11 February 1997. It upheld the decision, stating, inter alia, that there had been reasons to request complementary examinations, that the applicant had refused to cooperate and, that, accordingly, his entitlement to an allowance had not been shown.
On 21 March 1997 the applicant lodged an appeal with the County Administrative Court. Observations received by the court from the Office were submitted to the applicant.
The applicant later lodged appeals with the court against other decisions taken by the Office. Thus, on 6 June 1997 he appealed against a decision concerning the level of income on the basis of which his sickness allowance was to be calculated (sjukpenninggrundande inkomst) and on 9 December 1998 he appealed against a decision by which the Office rejected his applications for a disability pension (förtidspension) and a life annuity (livränta). The applicant’s appeals were considered in parallel by the County Administrative Court.
The applicant submitted observations to the County Administrative Court on 14 April, 2 and 5 May and 18 August 1997. On the latter date he requested an extension until 1 November 1997 of a time-limit to submit further observations. This was granted by the court. On 11 November 1997 he submitted observations and requested a further extension until 1 February 1998, noting that there was no opposite party in the proceedings who could be harmed thereby. Also this request was granted by the court. Further submissions were made by the applicant on 20 November 1997 and 22 January 1998.
On 26 January 1998 the applicant’s case file was sent on loan to the Administrative Court of Appeal for use in the proceedings concerning the request that the applicant undergo medical examinations. The file was later forwarded to the Supreme Administrative Court for the same purpose. The file was returned to the County Administrative Court on 3 May 1999.
On 22 May and 15 September 1998 and on 8 June and 8 September 1999 the County Administrative Court received additional observations and documents from the applicant.
On 25 November 1999 the County Administrative Court delivered judgments in all the applicant’s cases. In upholding the Office’s decision to withdraw the applicant’s sickness allowance, it found that the Office had had reasons to request complementary information in order to determine whether his health situation had improved to such an extent that he would be able to go back to work. Although a medical examination could probably not be performed against a person’s will, the refusal to undergo such an examination could, under the provisions of the Social Insurance Act, lead to the loss of the benefits in question. The applicant’s stance in this regard had led the physicians to conclude that it was not possible to conduct an examination and he had consequently prevented the Office from obtaining the necessary medical evidence which, by law, it was competent to request. For these reasons, the applicant’s entitlement to a sickness allowance under the Social Insurance Act could not be properly assessed.
On 23 December 1999 the applicant lodged appeals with the Administrative Court of Appeal against the County Administrative Court’s judgments. He also asked for time until 10 February 2000 to specify the relief sought and the grounds for the appeals. The court granted his request. Observations were received from the applicant on 8 February 2000 and, on the same day, the court asked the Office to comment before 10 April 2000, a time-limit later extended twice, ultimately until 15 May 2000. The Office’s reply was received on the latter date and sent to the applicant for information.
On 16 February, 17 March and 16 May 2000 the applicant submitted observations and medical certificates to the appellate court. On 6 June 2000 he requested time until 1 October 2000 to submit further observations. This was granted by the court. On 30 August 2000 the applicant submitted observations and medical certificates. He also asked for a further extension until 1 September 2001, again noting that this would not cause detriment to any opposing individual party.
By a decision of 30 August 2000 the appellate court ordered the applicant to conclude his case no later than 29 December 2000. The receipt of the order was acknowledged by the applicant on 20 October 2000, following two reminders sent by the court.
On 9 November 2000 the applicant submitted observations and reiterated his request for an extension, at least until 1 April 2001. The Office submitted comments on these observations on 17 November 2000 which were forwarded to the applicant for information. On 29 December 2000 the appellate court granted an extension until 2 March 2001 and informed the applicant that further extensions were unlikely to be granted.
On 31 January 2001 the applicant submitted further observations and again reiterated the request for an extension until 1 April 2001. By a decision of 5 February 2001 the appellate court ordered him to submit any additional material within one month of receiving the order.
On 19 February 2001 the appellate court received observations from the applicant in which he requested an extension until 15 May 2001. He stated that he did not consider it correct to deny him the extension which he had requested and needed, as the opposing party in the case would not be harmed thereby but rather favoured by such a measure. By a decision of 9 March 2001 the appellate court ordered the applicant to submit any additional material by 15 May 2001.
On 9 April 2001 the appellate court received observations from the applicant in which he requested an extension of the time-limit until 1 September 2001. He maintained that the court could not be criticised for having protracted the proceedings, since he had himself asked for the extension and his request was well-founded. On 17 April 2001 the appellate court ordered the applicant to submit any additional material by 1 September 2001. It also stated that it might rule on the question of leave to appeal even if he failed to abide by the order.
By decisions of 29 January 2002 the Administrative Court of Appeal refused the applicant leave to appeal in all cases.
On 19 February 2002 the applicant lodged appeals with the Supreme Administrative Court. He asked, inter alia, that the cases be remanded to the Administrative Court of Appeal for further extensions of the time-limit to submit observations. He also requested an extension before the Supreme Administrative Court until 15 June 2002 in order to submit additional medical evidence. The latter request was granted. On 24 May and 15 August 2002 the applicant requested further extensions until 15 September and 1 November 2002, respectively. Also these requests were granted.
On 3 October 2002 the applicant submitted observations to the Supreme Administrative Court. On 25 October 2002 he requested a further extension of the time-limit until 1 February 2003. The request was granted.
On 30 December 2002 and 15 January 2003 the applicant submitted further observations and a medical certificate. On 17 February 2003 he requested an extension until 5 May 2003. The request was granted.
On 17 March 2003 the applicant submitted further observations. On 28 April 2003 he requested an extension of the time-limit until 15 August 2003, noting that it would not cause detriment to anyone but himself. The request was granted.
On 25 August and 21 October 2003 the applicant requested further extensions until 15 October 2003 and 15 January 2004, respectively. The requests were granted.
On 27 November 2003 the applicant submitted observations to the Supreme Administrative Court and requested that the previously granted extension until 15 January 2004 should continue to apply.
On 12 January 2004 the applicant requested a further extension until 15 April 2004. On the latter date, he submitted his final observations in all cases, including the case concerning the sickness allowance.
The cases are at present pending before the Supreme Administrative Court.
Sickness allowances are, insofar as relevant to the present case, regulated in chapter 3, sections 7 and 8 a and chapter 20, section 3 of the Social Insurance Act. A person is entitled to such an allowance if his or her sickness reduces the ability to work by at least 25%. The Social Insurance Office should, if necessary for the assessment of an application for an allowance, request the person in question to undergo an examination of his medical state and working disability and the need and possibility for rehabilitation. If the person refuses without a valid reason to undergo treatment, examination or rehabilitation, the sickness allowance may be refused, entirely or partially, until further notice, provided that he or she has been notified of this consequence.
According to the preparatory works of chapter 3, section 8 a of the Social Insurance Act, the decision of a local insurance office to request an individual to undergo additional medical examinations is to be regarded as constituting part of the office’s procedure for dealing with the matter of the individual’s entitlement to a continued sickness allowance. The preparatory works therefore conclude that such an action by the office should be subject to appeal only in connection with a subsequent decision to reduce or discontinue payment of the allowance in question (Government Bill 1994/95:147, p. 35).


ITEMID: 001-100095
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF ZOLTANNE KALMAR v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Kristina Pardalos
TEXT: 4. The applicant was born in 1922 and lives in Budapest.
5. On 6 March 1995 the applicant and another plaintiff brought an action before the Pest Central District Court, seeking the invalidation of a contract.
6. On 7 May 1996 the court held a hearing and, on 21 June 1996, appointed an expert who filed an opinion on 24 June 1998.
7. On 20 October 1998, 12 January, 9 March, 11 May and 22 June 1999 hearings were held. Subsequently the proceedings were interrupted on account of the death of the applicant's co-plaintiff. On 28 January 2000 a successor joined the proceedings.
8. On 10 March 2000 the case was suspended pending the termination of criminal proceedings against the respondents which the court considered a preliminary question. This prosecution, conducted on charges of financial fraud, originated in 1997. On 13 May 2005 the plaintiffs informed the court of the termination of the criminal case by the appellate criminal court and requested the continuation of the civil proceedings.
9. On 30 August, 5 and 8 November 2005 the court held hearings. On 15 November 2005 it gave judgment, finding for the plaintiffs. On 29 November 2005 the respondents appealed.
10. On 5 October 2006 the Budapest Regional Court held a hearing and, by judgment of 15 February 2007, upheld the first-instance decision.
11. On 11 May 2007 the respondents filed a petition for review. By its review judgment of 27 November 2007 the Supreme Court upheld the final judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83635
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF AKYÜZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1926 and lives in Ankara.
5. On 23 January 1975 the applicant bought part of a plot of land (plot no. 98) in the Çankaya District of Ankara. In implementation of a reconstruction plan (imar şuyulandırılması), on 21 January 1981 a part of the applicant's plot (173.92 sq. m.) was joined to another plot which had been used by the Ministry of Defence since 1962. This plot was given the number 5965/1 and registered in the applicant's name.
6. Since this land was occupied by the Ministry of Defence, the applicant filed various petitions requesting the Ministry to expropriate it. On 6 September 1989 the Ministry informed the applicant that her land would be expropriated in the coming years.
7. On 10 November 1999, relying on Article 38 of Law no. 2942, the Ministry of Defence lodged an application with the Ankara Civil Court of General Jurisdiction for the annulment of the title deed of the applicant to plot no. 5965/1 and its registration in the Treasury's name. In response, the applicant lodged an application with the same court for compensation for the de facto expropriation. On an unspecified date, the case files were joined.
8. Before the court, the Ministry of Defence submitted that it had occupied the disputed plot of land since 1962 and that, therefore, it should be registered under its name pursuant to Article 38 of Law no. 2942. In reply, the applicant stated that the date of de facto expropriation in respect of her plot of land was 21 January 1981 and that, therefore, Article 38 of Law no. 2942 was not applicable in her case.
9. On 19 December 2000 the Ankara Civil Court of General Jurisdiction annulled the title deed of the applicant and ordered that the land be registered in the name of the Treasury. The court dismissed the applicant's request for compensation on the ground that it was time-barred. It held that the Ministry of Defence had had de facto possession of the property in question since 1962, and that the applicant should have brought a case within twenty years from this date in accordance with Article 38 of Law no. 2942.
10. On 4 June 2001 the Court of Cassation upheld the judgment of the first-instance court. The applicant's request for the reversal of its decision was dismissed by the Court of Cassation on 12 October 2001. The applicant was notified of this decision on 22 November 2001.
11. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006).


ITEMID: 001-57997
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF FERRANTELLI AND SANTANGELO v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (reasonable time, impartial tribunal);No violation of Art. 6-1 (fair trial);No violation of Art. 6-3-d;Just satisfaction rejected (out of time)
JUDGES: C. Russo
TEXT: 7. Mr Vincenzo Ferrantelli and Mr Gaetano Santangelo, who were born respectively in 1958 and 1959 at Alcamo (Trapani) and who currently live in Brazil, have a heavy prison sentence pending against them following their conviction by the Caltanisetta Court of Appeal on 6 April 1991 in a judgment that was upheld by the Court of Cassation on 8 January 1992 (see paragraphs 30 and 32 below).
8. On 26 January 1976 two police officers (carabinieri) were murdered at a barracks in Alcamo Marina. Some clothes, firearms and ammunition were found to be missing.
9. In the night of 11 to 12 February the Alcamo police arrested Mr G.V. who was driving a car with false registration plates. He was found to be unlawfully in possession of firearms. The police concluded on the basis of an initial inspection that one of the two pistols that they had seized had been used to commit the murders and the other had been stolen from the barracks.
10. G.V. was taken to the police station and gave the name of a lawyer, who was not able to come immediately. In the latter’s absence, G.V. agreed to an informal interview in the course of which he stated that he belonged to a revolutionary group. Shortly afterwards he asked to see his father, in whose presence he made other revelations concerning the circumstances of the raid, which had been directed against the Italian State rather than the two police officers. While his father was out of hearing, G.V. told the investigators that the applicants and two other persons, G.M. and G.G., had taken part in the crime. All four were friends of his; Mr Ferrantelli was in fact his cousin. G.V. also gave the police information as to the whereabouts of the articles stolen during the attack.
11. When his lawyer arrived at 3 a.m. on 13 February, G.V. confirmed that he had committed the murders, but retracted his statements concerning the involvement of the other persons. A little later he repeated in writing his first statements indicating what part each of those concerned had played.
12. The applicants and the other suspects were arrested at their homes between 4 and 5 a.m. on 13 February 1976. They were taken to the Alcamo barracks and were immediately questioned by the carabinieri. At first they were questioned on their own and then, after 10 a.m., a lawyer appointed by the authorities to act for them was present. They all admitted having taken part in the attack, but gave accounts that were inconsistent with each other and with that given by G.V.
13. According to the admissions register of Trapani prison, when the applicants arrived at the prison they appeared to be in a state of shock and had bruises and abrasions. Mr Ferrantelli told the staff of the admissions office that he had slipped and injured himself.
14. In the course of the afternoon of 13 February, the Trapani public prosecutor questioned all the suspects. G.V. reaffirmed that he had committed the double murder, but again retracted his statements concerning the involvement of the applicants, maintaining that he had made them under duress. Mr Ferrantelli and Mr Santangelo also retracted their confessions. Mr Ferrantelli likewise referred to pressure brought to bear on him by the investigators and ill-treatment at their hands. Mr Santangelo claimed that the police officers had persuaded him that it was in his interests to make a confession because, in view of the damming accusations made by G.V., he would be sentenced to life imprisonment if he did not. At a later stage he maintained that he too had suffered ill-treatment.
Expert medical examinations established that the applicants had slight injuries to their bodies.
15. After a period during which he refused all communication with the investigators and his family, in July 1977 G.V. wrote a letter to the investigating judge asking to be questioned. During his interview with the judge, which was attended by a lawyer appointed by the authorities to act for him, he indicated that he intended to make new revelations in writing.
On 26 October 1977 he was found hanged from a high window in the prison hospital with a handkerchief in his mouth. G.V had only one arm, but the authorities concluded that he had committed suicide.
16. On 23 January 1978 the applicants, who had not had an opportunity to examine or have examined G.V. in the proceedings prior to his death, were committed for trial with the two other accused.
17. On 18 May 1978 the Trapani Assize Court quashed the committal and ordered further inquiries to establish whether the applicants’ allegations about the pressure to which they had been subjected could be substantiated, to identify the presumed perpetrators of the ill-treatment and to verify whether the statements to the police officers were credible and voluntary.
The prosecuting authority lodged an appeal on points of law, which was dismissed in January 1979.
18. As the maximum period for pre-trial detention had expired, the applicants were released on 19 May 1979.
On 11 March 1980, the new investigation having reached its conclusion, the four accused were committed for trial. The investigating judge found that there was no case to answer in the matter of the alleged ill-treatment as the material facts of the offence had not been established (perché il fatto non sussiste). He took the view that the injuries noted by the medical reports had been caused by blows received by the accused in the struggles which occurred during their transfer from the barracks. Indeed some of the police officers who had been present at the time had similar injuries. The state of shock observed on their arrival at the prison was attributed to a lack of sleep and the lengthy interrogation. As regards the description by the accused of the premises where the alleged ill-treatment had been carried out and the fact that the accused had named the two officers who were said to have perpetrated the violence, the judge concluded that they could have seen the premises in question on a previous occasion and that the two officers were well known in the small town of Alcamo.
19. The proceedings in the Trapani Assize Court began on 25 November 1980 and ended on 10 February 1981 with the acquittal, on the basis of the benefit of the doubt, of the applicants and G.G. G.M. was convicted and sentenced to life imprisonment.
20. The prosecuting authority and the accused appealed. Mr Ferrantelli and Mr Santangelo, in particular, sought their unqualified acquittal.
21. On 23 June 1982 the Palermo Assize Court of Appeal, basing its decision essentially on the statements made to the police officers, also found the applicants and G.G. guilty of the double murder.
22. On 22 December 1984 the Court of Cassation, to which G.M., G.G., Mr Ferrantelli and Mr Santangelo had appealed, on a date that has not been specified, quashed the judgment of 23 June 1982 and remitted the case of G.M. and G.G. to Palermo Assize Court of Appeal and that of the applicants to the Juvenile Section of the Palermo Court of Appeal.
The Court of Cassation noted that even if the pressure described by the appellants had not been as serious as they claimed, the contested confessions had been made without a judicial officer being present. The Trapani judges had not intervened in the first stage of the inquiry except to carry out acts of a purely formal nature. For thirty-six hours the carabinieri had thus been completely free to conduct their inquiries as they wished.
23. On 7 March 1986 the Juvenile Section of the Palermo Court of Appeal acquitted the applicants on the basis of the benefit of the doubt.
The prosecuting authority and the applicants again appealed to the Court of Cassation.
24. On 12 October 1987 the Court of Cassation quashed the decision of the court below on the ground that it had regarded as established the facts found in the judgment of 22 December 1984, whereas those facts ought to have been the subject of a new investigation. The case was remitted to the Juvenile Section of the Caltanisetta Court of Appeal.
At the same time the Court of Cassation set aside the judgment of the Palermo Assize Court of Appeal of 26 November 1985 convicting G.G. and sentencing him to life imprisonment. The case was remitted to the Caltanisetta Assize Court of Appeal for a decision as to whether there were any extenuating circumstances.
25. On 31 May 1988 the Juvenile Section of the Caltanisetta Court of Appeal quashed the judgment of the Trapani Assize Court of 10 February 1981 in so far as it concerned the applicants and transmitted the file to the Palermo public prosecutor’s office. Allowing the objection raised by counsel for Mr Santangelo, the appeal court applied the Constitutional Court’s judgment of 15 July 1983 (no. 222) which had declared Article 9 of the Royal Legislative Decree of 20 July 1934 (no. 1404) unconstitutional. That provision had removed from the jurisdiction of the juvenile court (tribunale per I minorenni) criminal proceedings brought against minors accused of committing a criminal offence in concert with adults.
26. On 2 June 1988 the Assize Court of Appeal, presided over by Judge S.P., accorded G.G. the benefit of general extenuating circumstances. It took the view that the facts had been definitively established by the Palermo Assize Court of Appeal, it referred to the "co-perpetrators" of the double crime and to the "precise statement by G.V. that G.G. together with Santangelo had been responsible for physically carrying out the murders".
27. On 6 October 1989 the Palermo Juvenile Court, which was trying the case at first instance, acquitted the applicants on the basis of the benefit of the doubt. The applicants and the prosecuting authority appealed.
28. By an order of 18 April 1990 the Juvenile Section of the Palermo Court of Appeal raised a question as to the proper jurisdiction and transferred the file to the Court of Cassation. It considered that, in declaring the nullity of the judgment of the Trapani Assize Court of 10 February 1981 - applying retrospectively the decision of the Constitutional Court - the Juvenile Section of the Caltanisetta Court of Appeal had breached Article 544 of the former Code of Criminal Procedure, which was in force at the time and which prohibited raising at a retrial on remittal grounds of nullity allegedly arising out of the conduct of earlier stages in the proceedings or the investigation.
29. On 2 October 1990 the Court of Cassation remitted the case to the Juvenile Section of the Caltanisetta Court of Appeal, having confirmed the validity of the judgment of 10 February 1981.
30. On 6 April 1991 that court, presided over by S.P., who had also presided over the Caltanisetta Assize Court of Appeal in G.G.’s trial (see paragraph 26 above), sentenced Mr Santangelo to twenty-two years and five months’ imprisonment and a fine of 450,000 Italian lire. Mr Ferrantelli was sentenced to fourteen years and ten months. In its judgment the court noted that lawyers had been continuously present throughout the interrogations, which ruled out any possibility of pressure of such a nature as to undermine the credibility of the confessions. Admittedly one of the lawyers appointed by the authorities to act for the applicants maintained that he had found Mr Ferrantelli chained to a radiator, but according to the same person he had been released before the beginning of the interrogation.
Referring to Article 192 para. 3 of the new Code of Criminal Procedure, which provides that statements made by a person accused of the same offence may be relied on only if they are corroborated by other items of evidence which confirm their credibility, the appeal court based its decision, inter alia, on the following considerations:
- the fact that the accused had all made statements implicating each other;
- the fact that it would have taken five people to carry out such an attack;
- the credence that could be attached to the statements of G.V. concerning his responsibility, which was confirmed by other physical evidence;
- a number of items of evidence establishing that those statements were voluntary;
- the fact that the accused were friends;
- the fact that the applicants had helped G.V. to buy or transport the oxygen bottles for the oxyacetylene torch used to cut open the barracks door;
- the fact that on the evening of 12 February 1976 G.V.’s father had been seen by the carabinieri, who were following him, in the applicants’ company, near Mr Santangelo’s home, and on that occasion the latter had appeared worried, while Mr Ferrantelli had sought to reassure him;
- the discovery at Mr Santangelo’s home of a box of matches of a brand that was no longer manufactured, the matches being the same type as those used to light the oxyacetylene torch and found in a garage rented by G.V. The matches had been stolen by G.V. from a tobacconist in January 1976;
- finally the lack of a convincing alibi for any of the accused.
31. On 4 June 1991 the prosecuting authority and the applicants appealed to the Court of Cassation complaining, inter alia, of the inadequacy of the appeal court’s statement of grounds.
32. In a judgment of 8 January 1992, deposited in the registry on 28 February, the Court of Cassation dismissed the applicants’ appeal, finding that the appeal court’s assessment of G.V.’s statements implicating them, their confessions and the corroborating evidence was not open to criticism in terms of the statement of grounds.
33. An application of 18 January 1992 seeking a pardon from the President of the Republic was rejected on a date that has not been specified.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-102102
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ZHUPNIK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6-3-b - Preparation of defence;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1944 and lives in Odessa.
6. In 1993 the applicant was responsible for the privatisation of a State company “A.” by way of a buyout of A. by its employees.
7. On 26 August 1995 criminal proceedings were initiated against the applicant on suspicion of having defrauded A.’s employees in the privatisation process.
8. On several occasions between September 1995 and March 1999 the proceedings were suspended (in particular, between 9 July 1997 and 3 April 1997; 25 March and 1 September 1999; and 5 September and 1 December 1999).
9. On 26 January 1999 the applicant was placed under an obligation not to abscond.
10. On 15 December 1999, in response to a complaint by the applicant’s advocate, the Odessa Prosecutors’ Office acknowledged that the proceedings had suffered unnecessary delays and inactivity on the part of the investigative authorities and informed him that disciplinary measures had been taken against the investigator in charge.
11. In April 2000 the Malinovskiy District Prosecutors’ Office of Odessa approved the final indictment and committed the applicant for trial. According to the indictment, the applicant was accused of fraud and an attempt to misappropriate State property by way of abuse of his position (Articles 17, 84 § 2 and 172 § 1 of the Criminal Code in force at the material time).
12. Between September 2000 and October 2003 the Primorskiy District Court of Odessa scheduled some thirty-three hearings in the applicant’s case. Twenty-four of these hearings were adjourned: nine on account of the absence of the prosecution or at the prosecution’s requests; five on account of the absence of one of the injured parties; six on account of other court business; and four on account of the applicant’s absences.
13. On 3 October 2003 the Primorskiy District Court of Odessa ruled that the applicant’s actions did not fall within the ambit of the provisions of the Criminal Code relied upon by the prosecution. His actions did, however, qualify as abuse of position punishable by Article 165 § 1 of the Criminal Code in force at the material time. Consequently, the court convicted the applicant of abuse of position and sentenced him to one year’s imprisonment, but absolved him from punishment, granting him an amnesty.
14. The applicant appealed, contending that the prosecution had never charged him with violating Article 165 § 1 of the Criminal Code. Consequently, the trial court had acted ultra vires in convicting him of the crime punishable by that statute. The applicant next presented various arguments in his appeal against the charge of abuse of position under Article 165 of the Criminal Code.
15. On 19 August 2004 the applicant complained to the Odessa Regional Court of Appeal of unreasonable delays in the proceedings against him, in particular, a protracted failure by the trial court to submit the case file to the Odessa Regional Court of Appeal.
16. On 21 August 2004 the Primorskiy District Court informed the applicant that his case had been transferred to the Odessa Regional Court of Appeal on 27 July 2004.
17. On 9 December 2004 the Odessa Regional Court of Appeal held an oral hearing in the applicant’s presence and upheld the applicant’s conviction. It found, in particular, that by re-qualifying the applicant’s charges under a different Article of the Criminal Code, the first-instance court had correctly assessed the facts and had in no way increased the burden on the applicant. It had therefore not exceeded the scope of its competence.
18. The applicant appealed on points of law, raising essentially the same arguments as in his ordinary appeal.
19. On 25 May 2006 the Supreme Court rejected the applicant’s appeal on points of law.
20. Pertinent provisions of the Criminal Code of 1960 (in force at the material time) read as follows:
“... Misappropriation of State or collective property by an official by way of abuse of his position -
Shall be punishable by deprivation of liberty from three to five years with or without confiscation of property and by deprivation of the right to occupy certain positions or carry out certain activities for a term of up to three years ...”
“Abuse of power or position, i.e. intentional, promiscuous, or based on other personal interests or interests of third parties, use by an officer of his power or position contrary to the interests of the service, which causes significant damage to State or public interests or the rights and interests of certain physical or juridical persons protected by law, -
Shall be punishable by deprivation of liberty from two to five years or correctional labour for up to two years, with deprivation of the right to occupy certain positions or carry out certain activities for up to three years ...”
21. Pertinent provisions of the Criminal Code of 1960 (as worded at the material time) read as follows:
“Examination of a case shall be only in respect of the defendants and within the scope of the indictment announced to them ...”
“Having completed preparatory actions ... the presiding judge shall explain to the participants of the hearing their rights, including the right to give explanations concerning the appeals presented and to speak during judicial deliberations ...
After this, the presiding judge or one of the judges shall report the essence of the conviction or a ruling, shall inform who had appealed against it and to what extent, shall state the main arguments of the appeals and objections by other participants of the proceedings, if they had been submitted. The presiding judge shall verify whether the persons who have lodged the appeals support them.
...
If the court of appeal has not carried out a judicial investigation upon completion of the [above] actions ... the presiding judge shall familiarise the participants of the hearing with any additional materials, if they were submitted, materials that arrived from the first-instance court by way of fulfilment of assignment, shall hear their arguments with respect to the appeal submitted ... and shall proceed to judicial deliberations.
...
Before the court retires to the judges’ deliberation chamber (нарадча кімната) for preparation of the ruling ... the defendant, if he participated in the appeal hearing, shall be given an opportunity to give a final speech.
...”
“As a result of the examination of an appeal ... the court of appeal may:
1) make a ruling upholding the conviction or the decision and reject the appeal; quash the conviction or the decision and return the case to the prosecutor for additional investigation or for a new trial by the first-instance court; quash the conviction or the decision and terminate the proceedings; modify the conviction or the decision;
2) pronounce its own conviction, having quashed the conviction of the first-instance court in full or in part;
3) pronounce its own decision, having quashed the decision of the first-instance court in full or in part.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-a
6-3-b


ITEMID: 001-5970
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: JAVEED v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a British national of Pakistani origin, born in 1934 and living in Rotterdam, the Netherlands. She is represented before the Court by Mr W.A. Venema, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant came to the Netherlands from the United Kingdom in 1984. She moved in with her brother, who had just divorced from his wife, and with his four minor daughters, who were born in 1977, 1979, 1981, and 1982 respectively.
The applicant took up the mother’s role in the children’s life. Various childcare organisations confirmed on a number of occasions that she had a good influence on the children and that she contributed positively to their development. The applicant’s brother remarried in 1987 but his wife was apparently not prepared to take responsibility for the children. After her brother’s marriage, the applicant continued to live in his house in a separate room and continued to take care of his children.
In 1987 the Rotterdam Regional Court (Arrondissementsrechtbank) appointed the applicant’s brother as guardian of the children, particularly in view of the fact that the applicant was taking care of the children as well. As from July 1990 the applicant was granted a subsistence allowance in the Netherlands.
On 5 October 1990 the applicant filed a request with the head of police (korpschef) of the Rotterdam-Rijnmond region for a residence permit (vergunning tot verblijf) for the purpose “to take up activities as an employed person” in the Netherlands (as provided for in Article 48 of the EEC Treaty). This request was rejected on 19 February 1991 by the State Secretary of Justice (Staatssecretaris van Justitie) on the ground that the applicant did not qualify for a residence permit under the EEC rules since she was not in fact employed. Insofar as the applicant relied on Article 8 of the Convention, the State Secretary held that, even assuming that there was family life between the applicant and her brother and his family, the decision not to grant her a residence permit in the Netherlands did not constitute an interference with this family file in that she was not deprived of any residence title.
On 28 March 1991 the applicant filed a request for revision (herziening) with the State Secretary. As this request did not have any suspensive effect as to her expulsion, the applicant requested the President of the Hague Regional Court to issue an injunction on her expulsion pending the proceedings on her revision request.
On 14 June 1991 the President of the Regional Court rejected the request for an injunction. On 23 July 1991 the applicant was expelled to the United Kingdom. She returned shortly after to the Netherlands. On 18 February 1992 the applicant was expelled to the United Kingdom for a second time.
On 21 April 1992 the State Secretary rejected the applicant’s revision request. As regards the applicant’s complaint under Article 8 of the Convention, the State Secretary held that, insofar as the refusal to grant the applicant a residence permit would interfere with her right to respect for her family life with her brother and his children, this interference was justified under Article 8 § 2 of the Convention in that the applicant’s interests were outweighed by those of the Netherlands authorities.
On 4 April 1993 the applicant returned to the Netherlands, this time having found employment with a company in Rotterdam. On that basis she was granted on 16 December 1993 a residence permit, valid until 3 May 1998, pursuant to the EEC Council Directive 98/360/EEC as implemented in the Aliens Ordinance (Vreemdelingenbesluit) and the Aliens Circular (Vreemdelingencirculaire).
In April 1994 the applicant was dismissed from her job for having failed to report to work after a period of leave, thus obliging her employer to hire a person to replace her. The applicant had taken leave to travel to Pakistan in order to visit her husband, who is suffering from a serious mental disorder since 1981 and who had undergone lengthy treatment in a mental institution. The applicant unsuccessfully sought to justify her extended absence from work by arguing that she was urgently required to attend to her husband.
After her dismissal, the applicant was granted unemployment benefits with a punitive reduction as she bore a certain responsibility for her dismissal. At about the same time the applicant also started receiving a pension from the United Kingdom in an amount of about 32 Pounds Sterling weekly. The applicant unsuccessfully tried to find employment in the Netherlands.
On 22 August 1996 the State Secretary withdrew the applicant’s residence permit. On 25 November 1996, the applicant filed an objection (bezwaar) with the State Secretary claiming entitlement to continued residency in the Netherlands under EEC regulations. The applicant further argued, inter alia, that the decision was contrary to Article 8 of the Convention in that it deprived her of the enjoyment of her family life with her brother’s family and particularly his children.
On 13 February 1997, the applicant moved out of her brother’s house and took up residence in her own apartment. She remained in close contact with her brother’s children and his oldest daughter, who was 19 at the time, stayed with her.
On 21 November 1997, after the applicant had been heard on 11 June 1997 before the Advisory Commission for Aliens’ Affairs (Adviescommissie voor vreemdelingenzaken), the State Secretary rejected the applicant’s objection. The State Secretary held that, as the applicant had lost her job on the basis of which she had been granted her residence permit, this permit could be withdrawn. Insofar as she relied on Article 8 of the Convention in relation to her brother and his family, the State Secretary noted that she had moved to own accommodation, whereas, in the absence of any substantiation, it was not established that one of the daughters of her brother was in fact living with her. In these circumstances, the State Secretary did not find that the decision at issue was contrary to the applicant’s rights under Article 8.
On 19 December 1997, the applicant filed an appeal with the Hague Regional Court sitting in Haarlem. On 14 August 1998, after a hearing held on 3 July 1998, the Hague Regional Court rejected the applicant’s appeal. It agreed with the State Secretary’s finding that the applicant could not claim any right to a residence permit under the rules of the EEC. As to the applicant’s arguments under Article 8 of the Convention, the Hague Regional Court noted that the applicant was living on her own and that the applicant had failed to substantiate her claim that one of her brother’s children, who had come of age, was living with her. In these circumstances, the Hague Regional Court considered that the applicant’s family life concerned family life between adult relatives. Referring to a decision taken by the European Commission of Human Rights on 29 June 1992 (Application no. 14852/89), the Hague Regional Court found that there was no evidence of further elements of dependency involving more than normal emotional ties on the basis of which the applicant could invoke the protection afforded by Article 8 of the Convention.
On 10 November 1998, the applicant filed a new request for a residence permit. No further information as to the proceedings on this request has been submitted.