ITEMID: 001-111664
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SULEJMANI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Petrit Sulejmani, is an Albanian national, who was born in and is currently serving a prison sentence in Lushnjë, Albania. He was represented before the Court by Mr I. Thiée, a lawyer practising in Bonn, Germany.
2. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro, and, subsequently, by Ms L. Mandia of the State Advocate’s Office.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 31 October 2005 the Fier District Court (“the District Court”) convicted the applicant in absentia of aggravated offences relating to procurement of prostitution (Article 114/a § 4 of the Criminal Code). He was sentenced to ten years’ imprisonment and fined. He was represented by a lawyer (Z.), who had been appointed by his family.
5. On 4 April 2006 and 19 September 2007, following Z.’s appeals, the applicant’s conviction was upheld by the Vlora Court of Appeal (“the Court of Appeal”) and, later, by the Supreme Court.
6. On 23 October 2007 the applicant was arrested in Cologne by the German police on the strength of an Albanian arrest warrant. On 21 November 2007 the Albanian authorities requested his extradition.
7. In the course of the extradition proceedings, the Cologne Court of Appeal requested the Albanian authorities to give an assurance that the applicant would be re-tried if extradition were to take place.
8. On 25 January 2008 the Albanian Minister of Justice (“the Minister”) informed the German authorities that the applicant could lodge a request to appeal out of time. The relevant parts of the Minister’s letter read:
“With reference to the request made concerning a right to retrial on behalf of Petrit Sulejmani given his trial in absentia, we hereby inform you that the person in question may effectively exercise his right to request an appeal out of time in accordance with Article 147 § 3 of the Code of Criminal Procedure within ten days of his hand-over in Albania.”
9. On the basis of that assurance the applicant was handed over to the Albanian authorities on 17 March 2008.
10. On 24 March 2008 the applicant lodged a request for leave to appeal out of time against his conviction. On 22 April 2008 the District Court dismissed the request on the ground that his conviction in absentia had become final and had acquired the force of res judicata. It found that the applicant had effectively exercised his right of appeal, since his representative, who had been appointed by the applicant’s family, had appealed against the judgment of 31 October 2005.
11. On 11 November 2008, 19 January and 8 October 2009 the applicant’s appeals were dismissed by the Court of Appeal, by the Supreme Court and by the Constitutional Court, respectively.
12. The relevant provisions of the CCP concerning an application for leave to appeal out of time are as follows:
Article 48 – Counsel appointed by the defendant
“1. The defendant has the right to appoint no more than two counsel.
2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel.
3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”.
Article 147 – Leave to appeal out of time
“1. The prosecutor, the defendant, the private parties and the defence counsel may request the reopening of the time if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure.
2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge.
3. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure [in respect of paragraph 1], and in respect of paragraph 2 [within ten days] of the date on which the defendant effectively acquires knowledge of the decision. (...)
...
5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case.
6. An appeal may be lodged with the Court of Appeal against the decision refusing an application for leave to appeal out of time”.
Article 410 – The defendant’s appeal
“...
2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law.
...”
13. In its unifying decision no. 2 of 14 October 2002 the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the defendant or a lawyer appointed by him, within ten days of the date on which the defendant was effectively informed of the decision given in absentia. This right could not be exercised by the defendant’s family members if the defendant was not realistically aware of the decision in absentia. The application for leave to appeal out of time should be examined by the District Court, sitting in a three-judge formation. The District Court’s decision could be appealed to the Court of Appeal and, thereafter, to the Supreme Court.
14. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, by way of decision no. 30 of 17 June 2010, the Constitutional Court decided that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the defendant’s intention not to attend the proceedings. The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant’s family. The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family.


ITEMID: 001-105277
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ISAYEV AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 7. The applicants are:
Mr Lecha Isayev, born in 1967;
Mr Khamzat Isayev, born in 1975;
Ms Madina Alkhanova (subsequently changed her name to Isayeva), born in 1981; and
Ms Lipa Dudusheva, born in 1981.
8. The applicants are Russian nationals and residents of the village of Goi-Chu, the Chechen Republic.
9. The first and second applicants are brothers of Mr Zelimkhan Isayev, who was born in 1979. The third and fourth applicants are his sisters-in-law.
10. At the time of the events described below the second to fourth applicants resided together with Zelimkhan Isayev at 24 Sverdlova Street in Goi-Chu. The first applicant resided at 17 Sverdlova Street in Goi-Chu.
11. The account of the events described below is based on the information contained in the application form, a written statement by the first applicant made on 28 October 2004, a written statement by the second applicant dated 30 October 2004, a written statement by the fourth applicant dated 23 October 2004 and a written statement by Mr Zelimkhan Isayev’s other brother, T.I., made on 25 October 2004.
12. In the evening of 9 May 2004 Zelimkhan Isayev and the fourth applicant and her child were at home at 24 Sverdlova Street.
13. At about 8.30 p.m. two UAZ vehicles arrived at 24 Sverdlova Street. A group of armed men wearing masks emerged from the vehicles and burst into the courtyard. Zelimkhan Isayev and the fourth applicant inferred that they belonged to the Russian security forces.
14. Zelimkhan Isayev stepped out of the house into the courtyard and the servicemen apprehended and handcuffed him. According to the fourth applicant, Zelimkhan Isayev showed no signs of resistance. Later on the servicemen took the handcuffed man back into the house.
15. According to the written statement of the fourth applicant, two armed men levelled their guns at her and asked her where the weapons were. They searched the room where the fourth applicant was. One of them tore down a carpet from the wall and checked everything in the room but found nothing.
16. The servicemen also searched the house and courtyard premises without producing any warrant but found no arms. Then they took Zelimkhan Isayev outside, forced him into one of the UAZ vehicles and drove away.
17. Immediately after Zelimkhan Isayev’s arrest the first and second applicants pursued the UAZ vehicles in a car, but in vain. They then visited the head of the local administration and told him that Zelimkhan Isayev had been apprehended. The first and second applicants also went to the department of the interior of the Urus-Martan District (“the ROVD”). The ROVD policemen told them that they had no information on Zelimkhan Isayev’s whereabouts.
18. In the afternoon of 10 May 2004 a group of servicemen from the Federal Security Service (“the FSB”) under the command of D.Ch., an investigator of the FSB Department of the Chechen Republic, arrived at 24 Sverdlova Street and showed the second applicant a search warrant. They searched the house in the presence of two servicemen of the military commander’s office of the Urus-Martan District (“the military commander’s office”) acting as attesting witnesses. D.Ch. asked the second applicant and Zelimkhan Isayev’s other brother, T.I., whether there were any arms in the house; they replied in the negative.
19. Having searched the rest of the house, the servicemen went to Zelimkhan Isayev’s room. According to the second applicant, he observed one of the servicemen stealthily place a grenade in his brother’s bed. Later the servicemen noted in the search report that they had found an explosive device in Zelimkhan Isayev’s room. The report was signed by the aforementioned attesting witnesses; when signing it, the second applicant and T.I. added that they had seen that the grenade had been planted by the servicemen.
20. On 10 May 2004 Zelimkhan Isayev was placed in the temporary detention facility of the ROVD. Later that day Mr A., a police officer of the ROVD, informed the applicants that Zelimkhan Isayev had been transferred from the Urus-Martan Division of the Federal Security Service (“the UrusMartan FSB”) to the ROVD and that he was in very poor health.
21. The applicants went to the ROVD, where they met D.Ch., the investigator who had commanded the FSB officers during the search of 10 May 2004. D.Ch. told them that Zelimkhan Isayev was unwell, that he had been injured during his detention and had a broken rib because he had resisted the servicemen when being arrested.
22. On 11 May 2004 ROVD officers invited a doctor to examine Zelimkhan Isayev because his state of health was growing worse, but they did not allow his transfer to a hospital.
23. On 12 May 2004 the applicants retained a lawyer, who visited Zelimkhan Isayev at the ROVD. The lawyer considered that her client needed urgent medical assistance.
24. On 12 May 2004 (in some of the documents enclosed by the applicants this date is also given as 13 May 2004) the Urus-Martan Town Court held a hearing on the investigators’ request to extend the term of Zelimkhan Isayev’s detention. The judge authorised the extension with reference to Zelimkhan Isayev’s confession and the testimony of his coaccused A.M. Zelimkhan Isayev argued that he had incriminated himself under torture and showed the injuries on his body in the court room. However, that fact did not prompt any reaction on the part of the judge.
25. At some point on 12 May 2004 (in some of the documents enclosed by the applicants the date is referred to as 13 May 2004) Zelimkhan Isayev was transferred to the Urus-Martan district hospital (“the Urus-Martan hospital”). The ROVD policemen guarded his ward. His brothers visited him and, unbeknown to the guards, took photographs of Zelimkhan Isayev’s body.
26. The three pictures submitted by the applicants to the Court represent a man sitting on a bed, his tee-shirt pulled up. Numerous abrasions and bruises can be seen on the man’s body, including his neck, wrists, arms, nipples, navel and a large bruise is visible on the right side of his lower back.
27. In the applicants’ submission, during their visits Zelimkhan Isayev told his brothers what had happened to him after his arrest (see below).
28. On 16 May 2004 Zelimkhan Isayev’s health deteriorated severely. He was spitting blood. The doctors said that they could not do anything for him and that he needed an artificial kidney. The applicants asked D.Ch. to authorise Zelimkhan Isayev’s transfer to a hospital in Nazran, Ingushetia, which, apparently, was better equipped than that of the Urus-Martan District. D.Ch. refused, but sent military doctors from the military commander’s office to examine the detainee. The military doctors measured Zelimkhan Isayev’s blood pressure and examined the X-ray pictures. After the check-up D.Ch. authorised Zelimkhan Isayev’s transfer to the Nazran Hospital. However, Zelimkhan Isayev’s relatives were not provided with an ambulance and had to pay 2,000 Russian roubles to hire one. D.Ch. told the ROVD policemen to accompany Zelimkhan Isayev, but they refused. The detainee was transported to Nazran unguarded.
29. At about 11.30 p.m. on 16 May 2004, shortly after his arrival at the Nazran Hospital, Zelimkhan Isayev died.
30. On an unspecified date Zelimkhan Isayev was buried by his relatives.
31. In the applicants’ submission, Zelimkhan Isayev described to his brothers the events between 9 and 13 May 2004 as follows.
32. When the servicemen apprehended Zelimkhan Isayev on 9 May 2004, they put a plastic bag over his head and forced him down on the floor of the UAZ vehicle. They drove for a while and arrived at the military commander’s office. They took the detainee to the third floor where, according to the applicants, the FSB headquarters were located.
33. Without taking the plastic bag off his head, the FSB officers ordered Zelimkhan Isayev to tell them “everything he knew”. He said that he had nothing to tell. They then gave him several documents to sign, which he refused to do. After that the officers turned on a tape recorder and some of them left the room. Those who remained kicked and beat Zelimkhan Isayev with truncheons and tortured him with electric shocks and cigarette burns. Among other things, they applied electric wires to his genitals and passed the current through them.
34. The servicemen asked Zelimkhan Isayev to disclose his sources of income. He replied that he was buying and reselling scrap. They beat him again and ordered him to sign the documents. Zelimkhan Isayev asked what the documents were. After that the servicemen put another plastic bag over his head and continued to torture him. At some point they filled his mouth with a foul-smelling liquid and forced him to drink it. The torture of Zelinkhan Isayev continued throughout the whole night.
35. On 10 May 2004 Zelimkhan Isayev agreed to sign the documents and did so without reading them. He was then transferred to the temporary detention facility of the ROVD.
36. An excerpt from Zelimkhan Isayev’s medical record issued by the Urus-Martan Town hospital and dated 12 May 2004 mentioned the following injuries:
“...numerous bruises, abrasions and electrical burns to the body, upper and lower limbs, peritonitis
...
Blunt trauma of the chest [and] the abdominal cavity. Injuries to the lungs and internal organs; major bruising of the thorax, the front abdominal wall and the upper limbs. First-degree burns of the nipples. Contusion of the internal organs? Broken ribs on the left side.”
37. According to the death certificate issued by the Nazran civil registry office and dated 27 June 2004, Zelimkhan Isayev’s death was caused by acute renal insufficiency, anuria and pulmonary oedema, as well as by blunt injuries to the abdomen and chest and broken ribs on the left-hand side.
38. On 8 May 2004 the Chechen Department of the FSB instituted criminal proceedings against A.M. on suspicion of participation in illegal armed groups and terrorist activities. The investigation established that a group including A.M., Zelimkhan Isayev and other members had on several occasions blown up vehicles of the Russian federal forces. It appears that the case file was assigned the number 37045. In some of the documents it is also referred to as no. 94/22.
39. At 4.55 p.m. on 10 May 2004 Zelimkhan Isayev was arrested on suspicion of having participated in illegal armed groups and carried out terrorist activities.
40. On the same day he was interviewed in the presence of counsel and stated that he was unable to testify owing to his bad state of health.
41. On 10 May 2004 the investigator in charge of the case applied to the Urus-Martan Town Court, seeking authorisation to search Zelimkhan Isayev’s home. The request was granted on the same day, following which the authorities searched Zelimkhan Isayev’s house and found a hand grenade there.
42. On 12 May 2004 the Urus-Martan Town Court granted the investigators’ request and ordered Zelimkhan Isayev’s placement in custody. In the Government’s submission, he did not complain about illtreatment at the hearing on his detention.
43. On 12 May 2004 Zelimkhan Isayev was admitted for in-patient treatment to the surgery department of the Urus-Martan Town hospital.
44. On 16 May 2004, following a decision of an investigator of the Chechen Department of the FSB and the recommendations of the doctors of the Urus-Martan Town hospital, Zelimkhan Isayev was transferred to the Nazran hospital where he died on the same day.
45. According to the death certificate of 16 May 2004, Zelimkhan Isayev was admitted to the intensive care unit of the Nazran Hospital from the Urus-Martan Town hospital with the diagnosis: blunt trauma of the chest and the abdomen, broken ribs on the left-hand side, major bruising of the body, oedema of the lungs, acute renal insufficiency. The death was recorded at 11.30 p.m. on 16 May 2004.
46. By a decision of 12 June 2004 D.Ch. discontinued criminal proceedings against Zelimkhan Isayev in view of his death. The decision stated that on 8 May 2004 a criminal investigation had been opened in respect of A.M., who was suspected of terrorist activities and participation in illegal armed groups. The case was assigned the number 94/22. The investigation established that in October 2000 A.M., together with several persons, including Zelimkhan Isayev, had blown up several vehicles of the Russian military. On 10 May 2004 Zelimkhan Isayev was arrested and placed in the temporary detention facility of the department of the interior of the Urus-Martan District. At some point Zelimkhan Isayev confirmed his involvement in the explosions and A.M. testified against him. On 16 May 2004 Zelimkhan Isayev was transferred to hospital and died.
47. On 20 July 2004 the first applicant requested the Prosecutor General’s Office of the Russian Federation and the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) to institute criminal proceedings against the servicemen of the Urus-Martan FSB in relation to the torture which had caused Zelimkhan Isayev’s death. The first applicant described in detail the circumstances of his brother’s arrest and detention and the treatment to which he had been subjected while in custody. He insisted that Zelimkhan Isayev had been arrested on 9 and not 10 May 2004, as stated in the official documents, and that a number of witnesses, including the neighbours of the Isayevs and the deputy head of the local administration, Z.D., could confirm that fact. In support of his submissions he enclosed the death certificate dated 16 May 2004, mentioning numerous injuries sustained by his brother, and the pictures of his body bearing marks of torture, taken during his visit to the hospital. He averred that although at the hearing on 10 May 2004 his brother had complained about the torture and shown the judge the marks of ill-treatment on his body, the Urus-Martan Town Court had disregarded his complaints and ordered his placement in custody. The first applicant stressed that, despite Zelimkhan Isayev’s grave condition, the authorities had not authorised his transfer to a proper hospital until 16 May 2004.
48. The first applicant further stated that on 9 May 2004 the FSB officers had unlawfully searched Zelimkhan Isayev’s home, without providing any further details. He also submitted that during a sweeping operation in Goi-Chu carried out on 11 June 2004, servicemen of the federal forces had harassed Zelimkhan Isayev’s other brothers by taking them to the outskirts of the village, interviewing them about ball bearings they had at home and making a video recording of the interview. The first applicant stated that the FSB servicemen who had tortured his brother were still working in the Urus-Martan FSB and that he considered that Zelimkhan Isayev’s relatives, as witnesses to the crime committed by the FSB officers, were in danger. Accordingly, he requested that the authorities provide for their protection. The first applicant also stressed that although the authorities had been made aware of the torture by 10 May 2004, Zelimkhan Isayev’s relatives had no information as to whether this fact had prompted the opening of an investigation into the torture. Lastly, he requested that he be admitted to any subsequent criminal proceedings as a victim.
49. On 3 August 2004 the republican prosecutor’s office forwarded the first applicant’s request to the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and ordered that the request be included in the investigation file in case no. 94/22 and that the applicants’ submissions be examined and they be informed of any decisions taken by 9 August 2004.
50. By a letter dated 18 August 2004 the district prosecutor’s office informed the first applicant that it had examined his complaint and had decided not to institute criminal proceedings against the FSB officers. The refusal to institute criminal proceedings was enclosed in the letter and, in so far as relevant, stated as follows:
“...
On 6 August 2004 the district prosecutor’s office received the [first applicant’s] request to institute criminal proceedings against FSB officers ... The complaint alleges that upon admission to the district FSB Zelimkhan Isayev was tortured with electric wires, beaten up and made to sign unspecified documents ...
Following the examination of the submissions contained in the complaint it has been established:
On 10 May 2004 ... Zelimkhan Isayev was arrested in the village of Goi-Chu ... in connection with the proceedings in criminal case no. 37045 ... During his arrest Zelimkhan Isayev offered resistance and the officers of the district division of the FSB had to apply physical force. According to statements of servicemen of the 13th military commander’s office of the Urus-Martan District ... E.L. and A.Sh., on 10 May 2004 they were invited to participate as attesting witnesses in a search of the Isayevs’ home in the village of Goi-Chu .... The investigator conducted the search in accordance with all requirements of the Code of Criminal Procedure. When it was established that Zelimkhan Isayev felt unwell, he was provided with medical assistance and on 16 May 2004 he was transferred for in-patient treatment to a medical institution.
The fact of torture in respect of Zelimkhan Isayev is not confirmed by the materials in the criminal file. From the materials of criminal case no. 37045 ... it appears that suspect Zelimkhan Isayev offered resistance to the law-enforcement officers during his transfer, as a result of which physical force was applied to him and he sustained numerous injuries.
Under Article 38 § 1 of the Criminal Code of Russia, inflicting of harm on a person who has committed a crime while arresting him with a view to having him brought before law-enforcement authorities and in order to prevent him from committing further offences, if there are no other means of arresting such person and if the use of force is not excessive, does not constitute a crime.
Accordingly, the actions of the officers of the Urus-Martan Division of the FSB, who arrested Zelimkhan Isayev ... did not constitute a crime under Article 286 of the Criminal Code...”
51. The decision stated that it was open to appeal to a higher-ranking prosecutor or a court under Articles 124 and 125 of the Code of Criminal Procedure.
52. By a letter of 7 September 2004 the republican prosecutor’s office informed the first applicant, in reply to his complaint of 20 July 2004, that the military prosecutor’s office of military unit no. 20102 had refused to institute criminal proceedings against the FSB officers on 13 June 2004. The letter stated that on 12 May 2004 the Urus-Martan Town Court had authorised Zelimkhan Isayev’s detention on remand on suspicion of terrorist activities and participation in illegal armed groups. At the time of the arrest Zelimkhan Isayev had hit the FSB servicemen in attempting to escape and, in return, the servicemen had used force and injured him. Accordingly, their actions could be classified as use of force in excess of their powers within the meaning of Article 286 of the Russian Criminal Code. Nevertheless Article 21 of the Russian Federal Law on the Suppression of Terrorism authorised the injuring or killing of terrorists if necessary. The letter concluded that there had been no grounds for prosecuting the FSB servicemen. The letter did not mention that it contained any enclosures, including the decision of 13 June 2004, and there is no indication that the applicants were provided with a copy of the decision of 13 June 2004.
53. On 19 May 2004 the district prosecutor’s office forwarded the materials concerning the death of Zelimkhan Isayev to the military prosecutor of military unit no. 20102 for examination.
54. On 12 June 2004 criminal proceedings against Zelimkhan Isayev were discontinued owing to his death and on 8 July 2004 the deputy prosecutor of the Chechen Republic forwarded the materials of file no. 94/22 to the district prosecutor’s office for further investigation. There the case file was assigned the number 37045.
55. On 13 June 2004 the deputy military prosecutor of military unit no. 20102 decided not to institute criminal proceedings against the officers of the Urus-Martan FSB, finding no evidence of crime. The decision stated that the head of the Urus-Martan FSB and his subordinates had been in charge of Zelimkhan Isayev’s arrest. During his arrest he had attempted to escape and had offered resistance, hitting unspecified FSB officers. The latter had applied physical force to restrain him, as a result of which he had sustained bodily injuries. The above account of events was confirmed by the explanations of FSB officers N. and Ch.
56. On 21 January 2005 the acting prosecutor of the Urus-Martan district set aside the refusal to institute criminal proceedings against the FSB officers and ordered that an additional inquiry be conducted. The Government failed to specify which refusal to institute criminal proceedings had been quashed on that date but it appears that they referred to the decision by the military prosecutor issued on 13 June 2004.
57. On the same date an unspecified authority (apparently the district prosecutor’s office) refused to institute criminal proceedings against the officials of the temporary detention facility of the ROVD on suspicion of abuse of authority (Article 286 of the Criminal Code), finding no evidence of crime. On the same day the materials concerning the use of force by the officers of the Urus-Martan FSB against Zelimkhan Isayev were transferred for examination to the military prosecutor’s office.
58. On 17 February 2005 the deputy military prosecutor of military unit no. 20102 refused to institute criminal proceedings against the FSB officers, finding no evidence of crime in their actions. The related decision stated that during his arrest Zelimkhan Isayev had offered resistance to the FSB officers, following which they had had to apply physical force to restrain him.
59. On 16 November 2007 the deputy Main Military Prosecutor set aside the decision of 17 February 2005 and forwarded the relevant materials for examination to the investigative department of the Investigating Committee with the Prosecutor General’s Office of the Russian Federation.
60. On an unspecified date the relevant materials, as well as a report on the discovery of evidence of crime (“рапорт об обнаружении признаков преступления”) were forwarded to the head of the military investigating department of the United Group Alignment (“the investigating department of the UGA”) for examination.
61. On 21 November 2007 the investigating department of the UGA instituted criminal proceedings against the FSB officers under Article 286 § 3 (a) and (c) (abuse of office associated with the use of violence and entailing serious consequences). The case was assigned the number 34/00/0022-07.
62. In the Government’s submission, the investigation in case no. 34/00/0022-07 is pending.
63. Despite the Court’s repeated requests, the Government refused to produce any documents from the case file concerning the investigation of the death of Zelimkhan Isayev or the case files related to the inquiries into his death conducted by the district prosecutor’s office or the prosecutor of military unit no. 20102. They referred to Article 161 of the Russian Code of Criminal Procedure.
64. In the applicants’ submission, on several occasions D.Ch. invited the Isayev brothers to his office for questioning. They did not specify the dates of those interviews or their subject matter.
65. On 12 June 2004 the Russian military carried out a sweeping operation in the village of Goy-Chu. T.I. and the second applicant were seized and taken to a military base where the servicemen questioned them about ball bearings found in their house. Timur and Khamzat Isayev explained that they used the ball bearings in their work and denied any involvement in illegal activities. They recognised a serviceman who was filming the interrogation as one who had searched their house on 10 May 2004.
66. On an unspecified date D.Ch. questioned the second applicant as a witness. In the second applicant’s submission, the FSB officer pressured him in the course of the questioning. The second applicant provided no further details concerning the alleged pressure put on him.
67. On 12 August 2004 the head of the Goy-Chu village local administration, A.A., allegedly called the first applicant to his office and asked him whether he had complained about his brother’s death to the Prosecutor General. When the first applicant replied in the affirmative, A.A. told him that his complaint to the Prosecutor General might lead to dangerous consequences and advised him to turn for help to A.K., an official of the administration of the Urus-Martan District.
68. On an unspecified date the first applicant talked to A.K. and the latter advised him to withdraw the complaint, implying that the FSB servicemen might take revenge against the first applicant and other relatives of Zelimkhan Isayev. The first applicant replied that it was not possible to withdraw the complaint, which had been sent to Moscow and Grozny. A.K. told him that if the Isayevs stopped complaining about Zelimkhan’s death they would have no further problems with the FSB; the first applicant promised not to file any more complaints or appeals.
69. In the applicants’ submission, when they received the refusal to institute criminal proceedings of 18 August 2004 and the letter of 7 September 2004, they did not dare to take any further steps to challenge those decisions in view of the facts described above.
70. The Government furnished copies of two written statements by A.K. dated 21 November 2007 and 24 January 2008.
71. According to those documents, A.K. stated that he had been working in the local administration of Urus-Martan since 2000 and that he remembered Zelimkhan Isayev’s arrest in 2004 on suspicion of participation in illegal armed groups. However, A.K. had no information on his fate. Zelimkhan Isayev’s relatives had not applied to him in that connection and thus he could not have brought pressure to bear on them or forced them to refrain from lodging complaints against law-enforcement officials. At the material time, owing to a complicated situation in the region, there were many similar cases and A.K. always assisted the residents of the UrusMartan district in obtaining information on the fate of their relatives and the reasons for their detention. According to A.K., A.A. could not have influenced the applicants either, because he was not a law-enforcement officer and thus had no reason to do so.
72. Abuse of office associated with the use of violence and entailing serious consequences carries a punishment of three to ten years’ imprisonment and a ban on occupying certain positions for up to three years (Article 286 § 3 (a, c) of the Criminal Code of the Russian Federation (“the Criminal Code”)).
73. Article 21 of the Suppression of Terrorism Act (Law 130-FZ of 25 July 1998, with further amendments), as in force at the material time, provided that, in accordance with the legislation and within the limits established by it, damage could be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of an anti-terrorist operation. Servicemen, experts and other persons engaged in the suppression of terrorism were exempted from liability for such damage under Russian law. Law 130-FZ was abolished in 2006.
74. Under Article 124 of the Code of Criminal Procedure of the Russian Federation (“the CCP”), a prosecutor can examine a complaint concerning actions or omissions of various officials in charge of a criminal investigation. Once a complaint is examined, the complainant should be informed of its outcome and of possible avenues of appeal against the prosecutor’s decision.
75. Article 125 of the CCP provides that a decision of an investigator or a prosecutor refusing to institute criminal proceedings, as well as other decisions, acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice are open to appeal before a district court. The district court can examine the lawfulness and well-foundedness of the impugned decision, act or omission. Following the examination of the complaint, the district court is empowered to declare the decision, act or omission unlawful or unfounded and order the authority to rectify the shortcomings (Article 125 § 5).
76. Article 161 § 1 of the CCP prohibits the disclosure of details of the preliminary investigation. Such information can be disclosed only with the permission of a prosecutor or investigator and in the amount determined by them, and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings and does not prejudice the investigation (Article 161 § 3).
77. Under Article 1069 of the Civil Code of the Russian Federation, a State agency or a State official is liable towards a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury.
VIOLATED_ARTICLES: 13
2
3


ITEMID: 001-98099
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ELOMAA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Kimmo Elomaa, is a Finnish national who was born in 1953 and lives in Sweden. He was represented before the Court by Mr Jarkko Tamminen, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 December 1990 a Swedish District Court convicted the applicant of, inter alia, aggravated tax fraud and sentenced him to five years’ imprisonment. In an administrative procedure he was ordered to pay outstanding taxes, which he failed to do. Therefore, the Swedish authorities requested judicial assistance in the enforcement of those claims.
On 2 July 1996 the applicant was apprehended for the purpose of an enforcement inquiry (ulosottoselvitys, utsökningsutredning) conducted within the framework of a debt recovery procedure in Finland.
The applicant was cautioned by the Bailiff (ulosottomies, utmätningsmannen) to the effect that he was under an obligation to give truthful information under penalty of a fine and that giving incorrect information or withholding information could constitute fraud. A policeman who had brought in the applicant was present during the inquiry.
The applicant stated that he owned a Rolex watch and a Mercedes car. He also owned a Harley Davidson motorcycle, which was in Spain. He maintained that he had no other assets in Finland or elsewhere. The Bailiff seized the watch and the car.
On 26 May 1998 the applicant was detained as a suspect in an aggravated debtor’s fraud as it was alleged that he had concealed assets in the enforcement inquiry on 2 July 1996. He was also suspected of having made erroneous register entries concerning a number of vehicles other than those mentioned above.
A summary part of a pre-trial investigation report relating to the case indicated the following:
“This investigation is based on an information notice made on 3 October 1994 by the Financial Supervision Agency (rahoitustarkastus, finansinspektionen) to the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) concerning suspected money laundering. According to the notice the [bank O.] had, on 22 September 1994, received from abroad a payment of 94,514 Finnish marks (FIM) to be transferred to a person called [M.M.]. The sender of the money had been a person called [the applicant], who resides in Spain.
During the examination into the matter it came to light that on 14 July 1994 [M.M.] appeared to have lent from his cash funds a sum of FIM 720,000 to [company Ä] for the purchase of real estate owned by [company H.]. [M.M.] had concealed that claim in an enforcement inquiry conducted on 8 September 1995. A criminal report no. 7000/R/580/96 concerning that matter was registered by the National Bureau of Investigation on 3 September 1996 in respect of [M.M.] on suspicion of debtor’s fraud and other offences. In the course of that investigation, it was discovered that the above payment of FIM 720,000 had not been genuine and that, de facto, the receipt confirming that payment had been drawn up to conceal from [the applicant’s] creditors the financial arrangements concerning and the true ownership of his possessions. On that account, [investigator A.] of the Turku unit of the National Bureau of Investigation decided to institute pre-trial investigations into, firstly, a suspected receiving offence, report no. 2511/R/621/97 (251/R/396/98), and later a suspected debtor’s fraud, report no. 2511/R/386/98. The basis for these suspicions has been [the applicant’s] conviction in 1990 of tax fraud in Sweden and [his] concealing from the Swedish State assets acquired through business activities for the purpose of avoiding tax and [other] payments. This had formed the basis of a claim for FIM 20,345,159.30 by the Swedish State in respect of [the applicant]. The assets thus gained, and concealed, have subsequently been transferred to Finland by partly using moneys to purchase property, in appearance, for [the applicant’s] immediate circle. The initial offence relating to the possible receiving offence [in this connection] was the aggravated tax fraud of which [the applicant] was convicted in 1990.
The Swedish State (Kronofogdemyndigheten) has, as a creditor, requested the Finnish authorities to undertake enforcement measures to recover its claim of FIM 20,345,159.30. In the pre-trial investigation, conducted for the above reasons, it has emerged [circumstances], to be specified hereafter, giving probable cause to suspect that, de facto, property acquired under the name of other persons is controlled by [the applicant] and purchased with his moneys and that, at the time of the enforcement measures conducted on 2 July 1996 and 28 May 1998, he has had in his possession abroad moneys which have been concealed in the enforcement proceedings.”
On 12 May 2000 and 11 January 2001 charges were brought against the applicant for aggravated debtor’s fraud, five registration offences and four counts of instigation to commit registration offences. As to the fraud charge, the prosecutor alleged that the applicant had failed on 2 July 1996 to account for moneys on two foreign bank accounts, a property in Spain, shares in a Finnish limited liability company, shares in two Finnish housing companies and two cars. One of those cars, an Opel, was also the object of one of the alleged registration offences. According to the prosecutor the applicant had on 14 May 1996 registered that car as belonging to another person X. although he had been its true owner.
The applicant denied having concealed any possessions in the enforcement inquiry held on 2 July 1996, arguing that he was not the owner of the property mentioned in the bills of indictment. The applicant submitted that the prosecutor was wrong in assuming that he was in the possession of proceeds of the tax fraud, for which he had been convicted in Sweden. Even if that were the case, it would not constitute a separate offence. Nor could a person be punished for not giving information concerning such property in subsequent enforcement proceedings. As to the alleged registration offences and instigation thereto the applicant contended that all the information given to the registration authorities had been accurate.
Further, the applicant contended that in the enforcement inquiry of 2 July 1996 he had been forced, under pain of a fine and in the presence of a police officer, to divulge self-incriminating information. As he, at the material time, had been suspected of at least money laundering, the procedure had been in breach of Article 6 § 1 of the Convention.
On 18 January 2002 the Turku District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated debtor’s fraud and sentenced him to one year and seven months’ imprisonment having found that he had concealed in the enforcement inquiry the moneys in one of the foreign bank accounts, the property in Spain, the shares in Finnish companies and the Opel car. As to the moneys in the other foreign bank account and the other car, the court found that it had not been established that they had belonged to the applicant at the time of the enforcement inquiry. The court ordered the applicant to pay the Swedish State some EUR 304,000 in damages. The charges concerning registration offences and instigation thereto were dismissed.
As to the applicant’s argument concerning the alleged self-incrimination, the District Court stated as follows:
“[The applicant] is facing charges for concealing property in an enforcement inquiry carried out on 2 July 1996. [He] has on that occasion informed [the Bailiff] that he had no other property, either in Finland or abroad, than what transpired from the enforcement protocol.
...
[The applicant] has submitted that a policeman was present at the enforcement inquiry. [The applicant] was then required, under threat of a fine and in the presence of the policeman, to give information concerning an offence. In the light of the material submitted [to the court] it is possible that, in addition to the enforcement authorities, a policeman was present at the inquiry. However, [the applicant] had not at that time been suspected of any offence concerning which evidence could have been obtained through [that] inquiry. [The Bailiff] has submitted that he had been informed by the police that [the applicant] had been driving a [Mercedes car]. Relying on that information, he had decided to carry out an enforcement inquiry and seize the car. ...
No evidence has been presented [to the court] that obtaining information about an offence had been even the subsidiary goal of the enforcement inquiry. The only function of that inquiry had been to gain information about [the applicant’s] property. By submitting information in the enforcement inquiry about his property abroad [the applicant] would not have incriminated himself on account of any offence. [He] would not have been obliged to provide information concerning the origin of the assets. As a matter of fact, he had already been sentenced to a punishment regarding those assets in [the Swedish court]. Concealing these assets in the enforcement proceedings was not a part of the offence of which [the applicant] had already been convicted in Sweden. Nor did the matter concern moneys illegally in the possession of [the applicant] or [a co-defendant]. A policeman had been present at the enforcement inquiry because he had escorted the applicant thereto. [The applicant’s] rights under Article 6 of the Convention had thus not been breached in that occasion.”
On 30 September 2003 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the applicant’s conviction, endorsing the lower court’s reasoning in the main part. In addition, it convicted the applicant of four registration offences and four counts of instigation to registration offences. One of the erroneous register entries on the basis of which the applicant was convicted concerned the Opel, the same car which the applicant, according to the courts, ought to have accounted for in the enforcement inquiry. The court increased the applicant’s sentence to two years and two months’ imprisonment. His liability in damages was also increased to some EUR 2,594,000. The court accepted the District Court’s view regarding the applicant’s allegation concerning the alleged self-incrimination.
On 1 July 2004 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
An enforcement inquiry is resorted to if it has not been possible to establish otherwise the debtor’s financial situation in a reliable manner. A more detailed description of the domestic law regarding such an inquiry may be found in the Court’s judgment of Marttinen v. Finland (no. 19235/03, §§ 27, 33-36, 21 April 2009).
Concealment of property and provision of incorrect information in an enforcement inquiry are punishable as a debtor’s fraud under the Penal Code (rikoslaki, strafflagen; Acts no. 769/1990 and 610/1993).
At the material time (that is, at the time of the enforcement inquiry), money laundering was punishable as a receiving offence. The relevant provisions of Chapter 32 of the Penal Code were the following:
Article 1 - Receiving offence
(1) A person who hides, procures, takes into his or her possession or conveys property obtained from another person through theft, embezzlement, robbery, fraud, extortion, means of payment fraud or through fraud by a debtor, aggravated fraud by a debtor or intentional deceitfulness by a debtor, or who otherwise engages him or herself with such property, knowing that the property has been obtained in this way, shall be convicted of a receiving offence and sentenced to a fine or an imprisonment for a maximum period of one year and six months (Act no. 317/1994).
(2) A person shall be convicted of a receiving offence also if he or she
1) receives, transforms, conveys or transfers assets or other property which he or she knows to have been acquired through an offence or which has come to replace it, in order to conceal or obliterate its illicit origin or to assist the offender in avoiding the lawful sanctions provided for the offence; or
2) covers up or obliterates the true nature, origin or location of the property referred to in point 1, or disposition thereof or rights thereto, or conceals information concerning those circumstances if he or she is obliged to report it by law (Act no. 1304/1993).
Articles 2 – 5 of Chapter 32 set out the punishment for aggravated receiving offence, professional receiving offence, negligent receiving offence and petty receiving offence. Article 6 read:
Article 6 – Restrictions
(1) A person who has committed the offence by which the property was obtained, shall not be convicted of an offence referred to in Articles 1 – 5 of this Chapter.
(2) The provisions of this Chapter do not apply to a person living in the same household as the offender and who only uses or consumes property obtained by the offender for ordinary household needs.
By Act no. 61/2003, which came into force on 1 April 2003, separate provisions concerning money laundering were added to Chapter 32 of the Penal Code. The provision concerning restrictions (now Article 11) was also amended in that connection to cover all the offences referred to in that Chapter. It now stated specifically that a person who had committed the offence by which the property was obtained or profit was gained, was not to be convicted pursuant to Chapter 32 of the Penal Code. According to the relevant Government Bill (HE 53/2002), the latter amendment only served to clarify the wording of the provision.
Section 96 of the Act on Credit Institutions (laki luottolaitostoiminnasta, kreditsinstitutslag; Act no. 1607/1993), in force at the material time, placed credit and financial institutions under an obligation to report to the Financial Supervision Agency if they had reasons to suspect that assets subject to a transaction were of illicit origin. Subsection 4 of the provision read in relevant parts:
“If, based on the information reported to it or other information acquired by it, the Financial Supervision Agency considers that there are reasons to suspect that the matter concerns the concealing or obliterating of the true nature, origin or location of assets acquired through an offence, or disposition thereof or rights thereto, it shall report the matter for examination to the relevant investigating authority. ...”
Section 96 of the Act on Credit Institutions was subsequently repealed in 1998 when a new Act on Preventing and Clearing Money Laundering (laki rahanpesun estämisestä ja selvittämisestä, lag om förhindrande och utredning av penningtvätt; Act no. 68/1998) came into effect. The latter statute contained a similar obligation for credit and financial institutions, among others, to report a suspicion of illicit origin of assets or property. The report was to be made to the Money Laundering Clearing House (rahanpesun selvittelykeskus, central för utredning av penningtvätt) within the National Bureau of Investigation.
At the material time, making an erroneous register entry was sanctioned under Chapter 16, Article 21 of the Penal Code (Act no. 769/1990). Paragraph 1 of that provision stipulated that a person who, in order to cause a legally relevant error in a public register kept by an authority provided false information to that authority, or in order to gain benefit for himself or another person took advantage of an error caused in that manner, was to be convicted of a registration offence and sentenced to a fine or imprisonment for up to three years.
Section 21 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 1/1999), currently in force, provides:
“Protection under the law - Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.”
There are no explicit provisions of law concerning the right to silence and the right not to incriminate oneself. It has been left to the authorities applying the law to respect those rights. The Government Bill for the enactment of the act amending the previous Constitution Act (HE 309/1993) noted that the right to legal protection also included the right of the accused not to testify against himself under the United Nations Covenant on Civil and Political Rights and the Convention.


ITEMID: 001-86087
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GURZHYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Ms Galina Ivanovna Gurzhyy, is a Ukrainian national who was born in 1940 and lives in Energodar, the Zaporizhzha region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The applicant is a pensioner. She has no home telephone line.
In 1999 Mr D. fatally injured the applicant’s son in a car accident in the town of Zaporizhzha, 130 kilometres away from the applicant’s home town.
On 7 August 2001 the applicant instituted civil proceedings against Mr D., seeking non-pecuniary damages and funeral expenses.
On 4 December 2001 the Leninsky District Court of Zaporizhzha (Ленінський районний суд м. Запоріжжя – hereafter “the Leninsky Court”) awarded the applicant 3,105 hryvnyas (UAH) in respect of the funeral expenses and dismissed the remainder of her claims. On 13 May 2003 the Zaporizhzha Regional Court of Appeal (Апеляційний суд Запоріжської області – hereafter “the Court of Appeal”) upheld that judgment on an appeal by the applicant.
In June 2003 the applicant, acting without legal representation, appealed in cassation to the Supreme Court. In accordance with the procedural rules applicable at the material time, the cassation appeal was lodged with the first-instance court, which was to rule on its compliance with the procedural formalities.
On 18 August 2003 the Leninsky Court found numerous procedural shortcomings in the applicant’s cassation appeal and gave her a time-limit by which to rectify them. The applicant provided a corrected version of the cassation appeal; however, on 10 October 2003 the Leninsky Court decided to return her submissions as “not lodged,” having found that the applicant had not rectified the shortcomings properly.
On 25 October 2003 the applicant appealed against the decision of 10 October 2003. On 9 December 2003 the Court of Appeal dismissed her appeal.
On 19 December 2003 the applicant requested the Court of Appeal to mail her a copy of the decision of 9 December 2003. On 15 January, 27 April, 17 May and 31 July 2004 the applicant addressed the same request to the Leninsky Court. She sent her requests by registered mail, enclosing with each one an empty stamped envelope for a reply. Having received no response, the applicant complained to the Human Rights Ombudsman (Уповноважений Верховної Ради України з прав людини). On 19 August 2004 the Office of the Ombudsman informed the applicant that her complaint had been transferred to the Zaprorizhzha Regional Council of Judges (Рада Суддів Запорізької області – hereafter “the Council of Judges”) for consideration. On 13 September 2004 the Council of Judges informed the applicant that on 3 September 2004 the Leninsky Court had mailed her a copy of the requested decision.
On 30 September 2004 the applicant received the decision of 9 December 2003 and on 26 October 2004 lodged a cassation appeal against it with the Supreme Court. On 10 November 2004 the Supreme Court informed the applicant that it had mailed her cassation appeal to the Leninsky Court for a ruling on its compliance with the procedural formalities.
According to the Government, on 16 November 2004 the Leninsky Court found that the applicant’s cassation appeal had procedural shortcomings: she had, in particular, failed to indicate the scope of the appeal and to provide proper references to the decision appealed against or the law allegedly misinterpreted by the lower courts. The court gave the applicant a time-limit of 10 December 2004 by which to rectify these shortcomings. This decision was despatched to the applicant on 17 November 2004. On 20 December 2004 the Leninsky Court decided to return the applicant’s cassation appeal as “not lodged” as she had failed to rectify the shortcomings in issue. This decision was despatched to her on 21 December 2004. The Government presented copies of the aforementioned decisions and of the covering letters, dated 17 November 2004 and 21 December 2004, in which the Leninsky Court had informed the applicant that it was enclosing them for her information.
According to the applicant, she never received these letters.
On 28 April 2006 the applicant requested the Leninsky Court to inform her of the status of her cassation appeal, sending her request by registered mail with an envelope for a reply. She has not received a reply.
In accordance with Article 323 of the Code, cassation appeals were to be lodged with the first-instance court that had dealt with the case. Should the judge to whom the case had been allocated determine that the appeal had procedural shortcomings, he or she was to grant a time-limit by which to rectify them. The appeal was to be declared inadmissible and sent back to the appellant if the latter had not followed the instructions of the judge. The Code did not provide for any specific form of service of the respective decisions.


ITEMID: 001-59590
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF MALHOUS v. THE CZECH REPUBLIC
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. In June 1949 plots of agricultural land owned by the applicant’s father were expropriated by the former Doksy District National Council (okresní národní výbor) under the Czechoslovak New Land Reform Act No. 46/1948 (“the 1948 Act”). The applicant’s father had never obtained any compensation. In 1957 some of these plots were transferred to the ownership of natural persons in an assignment procedure under the 1948 Act. In 1977 the applicant’s father died and the applicant’s rights over his estate were confirmed.
10. After the fall of the communist regime in Czechoslovakia, the Act No. 229/1991 on Adjustment of Ownership Rights in respect of Land and Other Agricultural Property (“zákon o půdě”, the “Land Ownership Act”) entered into force on 24 June 1991. The Act provided that the 1948 Act was no longer applicable and that under certain conditions property confiscated pursuant to that Act without compensation could be returned to its former owners or their heirs if it was still in the possession of the State or of a legal person. However, if such property had been transferred into the possession of natural persons, the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation.
11. On the basis of the Land Ownership Act, the applicant entered into restitution agreements with two legal persons (the Hradec Králové State Forest Enterprise and the Líny – Krásná Ves Agricultural Cooperative) on 10 December 1993 and 4 May 1994 respectively. By two decisions of 12 October 1994 the Mladá Boleslav Land Office (pozemkový úřad, “the Land Office”) refused to approve the restitution agreements. Referring to section 32(3) of the Land Ownership Act, it found that some of the plots had been assigned to different owners pursuant to the 1948 Act, and that these owners, being natural persons, had proved their property rights by showing their deeds of assignment. The Land Office based its decisions on the following documents: the decision of the former Mladá Boleslav State Notary (státní notářství) of 26 May 1977 on the applicant’s father’s inheritance, the decision of the former Doksy District National Council of 7 June 1949 on the expropriation of the applicant’s father’s property, the record of the former Líny Local National Council (místní národní výbor) of 7 November 1949 on the proceedings on the applicant’s father’s appeal against the expropriation, the decision of the former Liberec Regional National Council (krajský národní výbor) of 29 November 1949 by which the decision of expropriation had been modified, and an extract (výpis) from the land register (pozemková kniha) relating to the Líny and Krásná Ves Districts. The Land Office had also at its disposal copies of the deeds of assignment made out by the Mladá Boleslav Land Register Office (katastrální úřad) on 23 September 1994.
12. It appears from the text of the invitation issued by the Land Office on 28 September 1994 that the latter scheduled a hearing for 12 October 1994 to which the applicant and his lawyer were invited, together with the representatives of the State Forest Enterprise, the agricultural cooperative and representatives of the Mladá Boleslav Land Fund (Pozemkový fond). According to the record of the hearing, only the applicant and the representatives of the State Forest Enterprise and of the agricultural cooperative attended the hearing. The applicant refused to make any comments on the issue of the administrative proceedings and did not sign the record. The representatives of both legal persons left the hearing before the end.
13. On 11 November 1994 the applicant lodged appeals with the Prague Municipal Court (městský soud, “the Municipal Court”) against the two administrative decisions. He claimed the restitution of the entire property, contesting that the acquisition of part thereof had been proven by the natural persons concerned and requesting access to the respective deeds of assignment.
14. On 31 May 1995 the Municipal Court joined both appeals and upheld the administrative decisions of 12 October 1994. It held that the Land Office had correctly refused to approve the restitution agreements as a whole as they also covered property whose ownership had been transferred to natural persons and thus could not be returned to the original owner. This had been established on the basis of all relevant documents including the deeds of assignment, which were included in the administrative files. The applicant could have consulted them at any time during the administrative proceedings if he had wished to do so as provided for in section 23(1) of the Code of Administrative Procedure. The Municipal Court considered that no hearing was necessary in the applicant’s case, as the facts had been correctly established by the administrative authority and only points of law were in issue before it. In this respect, it referred to section 250(f) of the Code of Civil Procedure.
15. The case was referred back to the Land Office pursuant to section 9(3) of the Land Ownership Act (see paragraph 25 below) which gave a new decision on 25 July 1995. In accordance with the opinion of the Municipal Court, by which it was bound by virtue of section 250(r) of the Code of Civil Procedure, the Land Office confirmed the applicant’s property rights in respect of those plots which had not been transferred to natural persons under the 1948 Act. At the same time, it informed the applicant that he could seek compensation under section 11 or 16 of the Land Ownership Act for the plots which could not be returned to him.
16. On 14 September and 15 October 1995 the applicant lodged a constitutional appeal (ústavní stížnost) claiming inter alia that his property rights had been violated, that he had not been able to put forward further evidence and that the Municipal Court had not informed him about its decision to join both cases. He invoked inter alia Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).
17. On 29 November 1995 the Constitutional Court (Ústavní soud) rejected the applicant’s appeal as manifestly ill-founded. It considered that the applicant’s constitutional rights to a proper court procedure had not been violated by the manner in which the Municipal Court had dealt with his appeal. Having regard to the special nature of the judicial review of administrative decisions, the court’s function was limited to a legal reassessment of the case on the basis of the facts established by the administrative authority. The applicant had not invoked evidence disregarded by the Land Office and, by merely articulating his discontent with the latter’s decision, had not raised any valid objection to the facts as established by it. Furthermore, according to the Constitutional Court, the Municipal Court had not infringed constitutional law by deciding the case without a hearing as this was lawful under section 250(f) of the Code of Civil Procedure when the case involved only the assessment of points of law.
18. On 1 May 1998 the applicant died. Nevertheless, his lawyer introduced before the Land Office a request for compensation by the assignment of other plots pursuant to section 11(2) of the Land Ownership Act. According to the Government, this request is still pending before the Land Office.
19. On 29 October 1998 the judicial proceedings regarding the applicant’s inheritance were terminated by a finding of the Prague 2 District Court that the applicant had not left any estate. Apparently, the court was not aware of the Land Office’s decision of 25 July 1995.
20. On 22 February 2000 the applicant’s nephew, Mr Bouček, requested the district court to re-open the inheritance proceedings. He produced his uncle’s last will of 22 March 1998 in which he was designated as a universal heir of the applicant’s estate, while the applicant’s two adult children were disinherited. The re-opening of the judicial proceedings concerning the inheritance was eventually granted on 21 August 2000. On 28 March 2001 the Prague 2 District Court approved an agreement concluded between Mr Bouček and the applicant’s two children concerning the division of the applicant’s estate on an equal basis.
21. The Land Ownership Act regulates, inter alia, the restitution of certain agricultural and other properties (defined in section 1), which have been ceded or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim including, in sub-paragraph (b), confiscation without compensation pursuant to the 1948 Act.
22. According to section 5, those obliged to make restitution are, in principle, the State or any legal person possessing the real property at the date when the Act entered into force. Natural persons can be obliged to return real property to a rightful claimant only in the circumstances set out in section 8, that is if they or their relatives acquired it from the State or another legal person contrary to any law in force at the relevant time or for a price inferior to that specified in any applicable price regulations or on the basis of unlawful advantage. In such cases the restitution is ordered by a judicial decision upon the application of the rightful claimant which must be filed before 31 December 1992 or within six months from the date when the decision of the land office refusing the restitution of the real property in question has become final. In any other case, a plot assigned to a natural person who has established his property rights by producing his deed of assignment is not available for restitution (section 32(3), which was, however, repealed by a judgment of the Czech Constitutional Court (No. 166/1995) with effect from 15 August 1995).
23. Furthermore, no restitution shall take place in the cases listed in section 11(1) of the Act which include, inter alia, cases where a right of personal use of the property has been created for a natural person except in the circumstances mentioned in section 8. In such cases, the land office shall transfer other equivalent State property, preferably located in the same area and determined according to the principles of the agricultural land reallocation legislation, to the rightful claimant if the latter consents (section 11(2)).
24. If no restitution is provided for and the person entitled to restitution cannot be compensated by the assignment of other real property, he has a right to financial compensation according to specified conditions (section 16).
25. As regards the procedure to be followed, section 9(1) of the Act provides that a rightful claimant must lodge his claim with the appropriate land office and at the same time request restitution from the person or entity possessing the real property at issue. The latter is required to conclude, within 60 days, an agreement on the transfer of the property with the claimant (restituční dohoda, “restitution agreement”). According to section 9(2), any restitution agreement must be confirmed by the appropriate land office. If the land office does not approve the restitution agreement, the entitled person can appeal to the court. If the court, too, refuses to approve the agreement, it refers the case back to the land office for a decision on the merits of the case (section 9(3)). This decision is again subject to judicial review (section 9(6)).
26. The proceedings before land offices are governed by Act No. 71/1967 (Code of Administrative Procedure).
27. Sections 3 and 4 regulate the basic principles of the proceedings before administrative authorities. The proceedings must be conducted in accordance with the law, and parties must always be given the opportunity to defend effectively their rights and interests, to challenge the facts of the case and to make proposals as to the proceedings. Furthermore, the parties enjoy equal rights and have the same obligations. The decisions of administrative authorities must be based on facts that have been established in a reliable manner.
28. Pursuant to section 21, the administrative authority shall order an oral hearing if this is required by the nature of the case, in particular where such a hearing will contribute to the clarification of the matter at issue. The parties to the proceedings must be summoned to attend the oral hearing and invited to express their comments and proposals in the course of the hearing. Oral hearings are not public unless a special legal rule provides otherwise or the administrative authority decides that the hearing shall be public.
29. According to section 23(1), the parties to the administrative proceedings and their representatives have the right to have access to documents and to make extracts therefrom, except for the records of voting.
30. According to section 32(1), administrative authorities are under the obligation to establish all facts accurately and comprehensively. For that purpose they have to obtain all necessary supporting documents and data.
31. The lawfulness of decisions of the administrative authorities can be reviewed by the courts in accordance with Part V of the Code of Civil Procedure.
32. At the relevant time section 250(f) (repealed by a judgment of the Czech Constitutional Court No. 269/96 with effect from 1 May 1997) entitled the courts to deliver a judgment without an oral hearing in simple cases, in particular when there was no doubt as to whether the administrative authority had established the facts correctly, and only points of law were at issue.
33. Pursuant to section 250(i)(1), the courts, when reviewing administrative authorities’ decisions, take into consideration the facts as they existed at the moment when the administrative decision was taken.
34. In accordance with section 250(m)(3), the parties to the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority whose decision is to be reviewed.
35. Pursuant to section 250(q), when the court reviewing an administrative authority’s decision does not decide without an oral hearing pursuant to section 250(f), it may take such evidence as is necessary for reviewing the decision at issue.
36. Pursuant to section 250(r), if the court quashes the decision of the administrative authority, the latter, when taking a new decision, is bound by the legal opinion expressed by the court.
37. In accordance with section 250(s), a court decision reviewing an administrative decision is not subject to a remedy except in the cases listed in sub-paragraph 2 (which are not pertinent in the present case).
38. According to section 156, a judgment must be pronounced publicly. In accordance with the established practice, the public delivery of the judgment must be recorded in the minutes also in those cases where the judgment was delivered without an oral hearing.
39. According to section 11(1), district land offices are autonomous departments (samostatné referáty) of district offices.
40. At the relevant time, the status and competence of district offices was governed by Act No. 425/1990. This Act was repealed on 12 November 2000 when a new Act on District Offices (No. 147/2000) entered into force.
41. Section 2 describes district offices as administrative organs, which carry out local state administration on their respective territories. The law can empower district offices to carry out local state administration on other territories. According to section 14, the exercise of the activities of district offices is directed and controlled by the Government.
42. Pursuant to section 8(1), the head (přednosta) of a district office is appointed and dismissed by the Government on the proposal of the Minister of the Interior.
43. According to section 8(5), the officers of district offices are subordinated to the heads of those offices.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5990
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: OWEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1951. He is currently serving a prison sentence in the United Kingdom. He is represented before the Court by Ms Nuala Mole, a lawyer attached to the London-based Aire Centre.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 29 January 1996 and 20 February 1996 the applicant and two other co-defendants, B. and G., were tried before a jury at Bristol Crown Court on two counts of conspiracy to produce and possess with intent to supply cannabis. B. pleaded guilty to two fire-arms charges.
The charges against the applicant arose out of a police raid on a house of which he had previously been a tenant. The police found that cannabis was being cultivated on the premises using hydroponic equipment. According to the prosecution the applicant had used his scientific expertise to set up a cannabis-making factory in the house and had bought hydroponic equipment for this purpose between 1992 and 1994 while living in the house. He had then moved out in order to distance himself from the operation.
The applicant did not answer questions when interviewed by the police following his arrest.
At the close of the prosecution’s arguments, the applicant’s counsel advised him that he need not give evidence since he considered that there was no real evidence against him. The applicant did not testify.
In his summing up to the jury at the close of the trial, the trial judge, Judge Bursell QC, with reference to section 34 of the Criminal Justice and Public Order Act 1994, directed the jury on the manner in which they were to deal with the applicant’s failure to give evidence. The judge’s direction was based on the Judicial Studies Board specimen directions. Specifically, he said:
“[The applicant], of course, has not given evidence, and that is, as [the applicant’s] counsel] quite properly reminded you, [the applicant’s] legal right. The burden of proving the case still remains on the Prosecution throughout, and [the applicant] is quite entitled to say, as he has through [his counsel], ‘The Prosecution has failed to prove its case, and I stand on that’. Moreover, failure to give evidence on its own cannot prove guilt. On the other hand, if, and only if, you are satisfied that the evidence relied on by the Prosecution established that there is a case to answer, then in those circumstances you may consider [the applicant’s] failure to give evidence. If, and only if, the sole sensible explanation for [the applicant’s] decision not to give evidence is that he has no answer to the case against him, or none that could stand up to cross-examination, then it would be open to you, if you think fit, to hold against him his failure to give evidence. It is for you and you alone to decide whether it is fair to do in the circumstances of this case.”
The jury retired to consider their verdict. A note was subsequently sent through to the judge from the jury stating that:
“Regarding the evidence relating to [the applicant] we are unable to find definitive evidence to show guilt. However we do feel that there is a ‘case to answer’. Are we able to infer that there is no defence because [the applicant] failed to give evidence?
Ultimately we believe that [the applicant] was involved but we are experiencing difficulty in finding facts. Would your Honour please clarify his comments relating to the exercise of defendant’s right not to give evidence.”
In the absence of the jury, the trial judge addressed the applicant’s counsel as follows:
“I take the view, subject of course to anything that you say, that the correct course would be for me to remind the jury of that which I said firstly about circumstantial evidence, but then in relation to the failure to give evidence...”
The applicant’s counsel agreed and also proposed that the jury be reminded again that the prosecution bore the burden of proving the applicant’s guilt beyond reasonable doubt. The judge agreed.
The jury returned and announced a verdict of guilty against one co-defendant, B., and acquitted another, G. However, as regards the applicant, the jury informed the judge that they had not yet reached a verdict. The judge then gave the jury further directions in relation to the evidence against the applicant and his failure to give evidence. He stated:
“May I first of all remind you of that which I have said about circumstantial evidence. It sometimes happens that a jury is asked to find some fact proved by considering direct evidence of it. Direct evidence may take many forms... On the other hand it is often the case that direct evidence of a crime is not available and the jury is required to decide the case on what I call ‘circumstantial evidence’. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and to the defendant in order to demonstrate that some or all of the circumstances, when taken together, establish the defendant’s guilt. Because the only conclusion to be drawn from that evidence is that it was the defendant who committed the crime ... the evidence must lead you to the sure conclusion that the charge that the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is clearly important that you do examine the evidence with care and consider whether the evidence upon which the Prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence, you should consider whether the evidence reveals any other circumstances which are or may be of sufficient reliability or strength to weaken or destroy the Prosecution case...
But may I turn now to the failure of [the applicant] to give evidence, and may I remind you that that is his legal right not to give evidence. In spite of his not giving evidence, the burden of proving the case still remains on the Prosecution throughout. [The applicant] has to prove nothing... Moreover, failure to give evidence on its own cannot prove guilt. On the other hand, if and only if, you are satisfied that the evidence relied on by the Prosecution establishes that there is a case for him to answer, then in those circumstances you may go on to consider [the applicant’s] failure to give evidence. If, and only if, the sole sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or no answer that could have stood up to cross-examination, then it would be open to you, if you thought fit, to hold against him failure to give evidence. It is for you to decide whether it is fair to do in all the circumstances of this case.”
The judge then allowed the jury to reach a majority verdict of ten to one. The jury retired at 3.02 p.m. to consider their verdict. At 3.52 p.m. they returned a verdict of guilty by a majority of ten to one.
On 3 April 1996 the applicant was sentenced to two concurrent terms of imprisonment of eight years.
The applicant sought to have his conviction overturned on the ground, inter alia, that the trial judge had erred in his second summing up to the jury by failing to mention that it was for the prosecution to prove beyond reasonable doubt that the applicant was guilty. The applicant was granted leave by the Single Judge to appeal to the Full Court of the Court of Appeal against conviction and sentence.
On 17 October 1996 the Court of Appeal dismissed the applicant’s appeal against conviction but reduced his sentence. Lord Justice Brooke, delivering the judgment of the court, agreed with the argument put forward by counsel for the Crown that the trial judge was not obliged to repeat a direction on the burden of proof if he had already given one to that effect. Lord Justice Brooke stated:
“The fact that the matter had to be proved to the criminal standard of proof was one on which the Judge had given the jury a very clear and correct direction at the beginning of the summing up and although it is a pity that he forgot to do what he had clearly intended to do, we do not consider that this late direction to the jury can be faulted on those grounds.”
The applicant did not seek leave to appeal to the House of Lords.
Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“1. Where in any proceedings against a person for an offence, evidence is given that the accused –
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
2. Where this subsection applies ...
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.
3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”.
Section 35 (2) and (3) provides:
“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
Section 38 (3) adds that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”
Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1).
The dicta of Lord Taylor CJ are as follows:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
Following the Court of Appeal’s judgments in R. v. Cowan and R. v. Condron, the following specimen direction in respect of section 35 was drawn up by the Judicial Studies Board. It states:
“The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he has not given evidence because, failure to give evidence cannot, on its own prove, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict.
1. In the first place when considering the evidence as it now is you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.
(...)
2. In the second place, if you think that in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to given evidence as you think proper. In simple terms, this means that you may hold this failure against him.
[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. That evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgment provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.]
What inference can you properly draw from the defendant’s decision not to given evidence before you? If you conclude that there is no case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.
If, in your judgment, the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.”
In R. v. Birchall ([1999] Criminal Law Reports) Lord Bingham CJ stated, with reference to section 35 of the 1994 Act:
“Inescapable logic demands that a jury should not start to consider whether they should draw inferences from a defendant’s failure to give oral evidence at his trial until they have concluded that the Crown’s case against him is sufficiently compelling to call for an answer by him. ... There is a clear risk of injustice if the requirements of logic and fairness are not observed (...)”
Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal:
“shall allow an appeal against conviction if it thinks that the conviction is unsafe”.
In R. v. Chalkey and Jeffries ([1998] 2 Criminal Appeal Reports 79) the Court of Appeal recognised that the omission of the word “unsatisfactory” which had been contained in the former section 2 of the 1968 Act had changed the law. A conviction will not be liable to be quashed on account only of procedural irregularity, or abuse of process or a failure of justice to be seen to be done. However in R. v. Mullen


ITEMID: 001-84813
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SHAGA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1951 and lives in the city of Chernigiv, Ukraine.
5. On 21 December 2000 the Novozavodskyy District Court awarded the applicant 5,258 Ukrainian hryvnas (UAH) from the State-owned Atomspetsbud company (Державна будівельно-промислова компанія «Атомспецбуд») in alimonies due to the applicant by her ex-husband who was employed by the company. This judgment remains unenforced.
6. On 29 January 2002 the Pecherskyy District Court of Kyyv rejected the applicant’s claim against the President of Ukraine, the Cabinet of Ministers, the Ministry of Fuel and Energy and the Ministry of Justice for compensation for pecuniary and non-pecuniary damage inflicted by the non-enforcement of the judgment in her favour.
7. By an order of the Ministry of Energy dated 27 June 2002, the debtor company was liquidated and a liquidation commission established. As a result, the State Bailiffs’ Service terminated the enforcement proceedings in the applicant’s case and the writ of enforcement was forwarded to the liquidation commission. The liquidation proceedings are still pending.
8. The relevant domestic law is summarised in the judgment of Mykhaylenky and Others v. Ukraine (nos. 35091/02 and foll., §§ 24-33, ECHR 2004XII).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79576
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MAJDANDZIC AND OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are 41 individuals, whose names, nationalities, residences and years of birth are listed in the attached annex. They are represented before the Court by Mr D. Gjurašin, a lawyer practicing in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Lidija Lukina-Karajković and later on by Ms Štefica Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 January 1993 at a New Year’s party in Zrinski Topolovac, Croatia, a certain V.P., a member of the Croatian Army, shot ten people to death and wounded seven others upon which he committed suicide.
On 27 December 1995 each of the applicants instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) against the State seeking pecuniary and non-pecuniary damages sustained on account of the bodily injury of death of a close relative. They based their claim on Section 180 of the Civil Obligations Act (Zakon o obveznim odnosima). The proceedings were subsequently joined.
On 4 December 1997 the Zagreb Municipal Court issued an interim judgment (međupresuda) whereby it found that the State held liability for the damages sustained by the applicants in half, the other half being V.P.’s personal liability.
Both parties appealed against the judgment.
On 6 November 1999 the Amendments to the Civil Obligations Act (“the 1999 Amendments”) entered into force. The amended legislation provided that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia be stayed.
On 15 May 2000 the Zagreb Municipal Court stayed the proceedings pursuant to the above legislation.
On 7 January 2003 the applicants filed a constitutional complaint concerning the length of the proceedings.
On 31 July 2003 new legislation on the liability of the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War (“the 2003 Liability Act”) entered into force.
On 31 December 2003 the Zagreb Municipal Court resumed the proceedings and the case-file was forwarded to the Zagreb County Court (Županijski sud u Zagrebu), being the appellate court. On 15 February 2005 this court quashed the interim judgment of 4 December 1997 and remitted the case to the Zagreb Municipal Court.
The Municipal Court held a hearing on 20 October 2005.
On 19 September 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) found that the applicants’ right to a determination of their civil claim within a reasonable time and their right of access to a court had been violated and awarded each applicant 15,600 Croatian Kunas (HRK) as just satisfaction. Furthermore, it ordered the Zagreb Municipal Court to adopt its decision in the shortest time possible but no later than six months from the publication of the Constitutional Court’s decision in the Official Gazette.
On 29 November 2005 the Zagreb Municipal Court pronounced judgment rejecting the applicants’ claim.
On 1 March 2006 the applicants appealed against the first instance judgment. The proceedings are currently pending before the Zagreb County Court.
Section 184 (a) of the Amendments to the Civil Obligations Act (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999 of 29 October 1999) provided that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 were to be stayed. The 1999 Amendments also imposed an obligation on the Government to submit special legislation to Parliament regulating liability for such damage within six months of the Act entering into force.
The Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the Homeland war (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) regulates the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. It also provides that all proceedings stayed pursuant to the 1999 Amendments are to be resumed.
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“ In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”