ITEMID: 001-4630
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SKORKIEWICZ v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, a Polish citizen born in 1928, is retired and resides in Sosnowiec.
The facts of the case as submitted by the applicant may be summarised as follows:
In May 1993 the Veterans and Persecuted Persons Office (Urząd do Spraw Kombatantów i Osób Represjonowanych) informed the applicant that the Office had instituted ex officio proceedings pursuant to the February 1991 Act on Veterans and Persecuted Persons (“the 1991 Act”) during the post-war period in order to verify whether under this legislation the applicant was entitled to retain his veteran status. The applicant was requested to furnish information relating to the grounds on which he had acquired this status in accordance with the provisions of the 1982 Veterans Act (“the 1982 Act”).
By a letter of 7 June 1993 the applicant informed the Office that during the Second World War he had participated in the activities of the Polish underground Home Army (Armia Krajowa), that during his service in the Civil Militia (Milicja Obywatelska) in Sosnowiec in 1945 he had been carrying out normal police duties such as maintaining public order, and that he had participated in combating the Werwolf, the post-war Nazi underground paramilitary organisation.

By a decision of 2 July 1993 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status. It was established that the applicant had served from 1 February to 30 March 1945 in the former Civil Militia. In his application for admission to the Union of Fighters for Freedom and Democracy, which the applicant had submitted in 1979, he had stated that during his service he had actively participated in the armed struggle by the reactionary underground resistance. In his curriculum vitae which had been attached to this application, the applicant had stated that “immediately after the liberation of Sosnowiec ... I had started my service in the Station III of the Civil Militia in Sosnowiec from where I had been sent to participate in the armed struggle with bands and with the reactionary underground resistance (“natychmiast po wyzwoleniu Sosnowca ... rozpocząłem pracę w III Komisariacie w Sosnowcu, skąd byłem włączony do walk z bandami i reakcyjnym podziemiem”). The applicant had subsequently acquired his veteran status by virtue of a decision of the Union of 7 May 1979, made on the basis of a certificate issued by the Katowice Regional Headquarters of the Civil Militia. This certificate had confirmed that he had been serving therein from 1 February to 30 March 1945 and that throughout this period he had participated in the armed struggle by the reactionary underground resistance forces. The Director considered that the applicant fell within the scope of Article 25 read together with Article 21 of the 1991 Act which provided, inter alia, that persons who had served in the former internal security services were to be divested of their veteran status. As the applicant belonged to the category of persons who, under the applicable legal provisions, were to be deprived of veteran status, the decision was justified and in accordance with the law.
The applicant lodged an appeal against this decision. He argued that the decision was unlawful. He emphasised that he had been serving in the Civil Militia for two months and that his participation in fighting armed Nazi groups during the war could not be regarded as a struggle to consolidate people’s power.
On 22 April 1994 the Supreme Administrative Court quashed the decision under appeal. The Court considered that the administrative authority had failed to establish all facts relevant for the legal assessment of the applicant’s case in that it had entirely disregarded the contents of the applicant’s letter of 7 June 1993 in which he had stated that he had been involved in the clandestine fight of the Home Army against the German troops occupying Poland and that his service in the Civil Militia had consisted of fighting the Werwolf and of ordinary police functions such as maintaining public order. The Court observed that, under Article 1 item 2 of the 1991 Act, combating the Werwolf was to be regarded as giving rise to veteran status. Thus, the administrative authority had to establish what armed forces had been active near Sosnowiec during the applicant’s service and what had been the armed formations in which the applicant had fought.
On 31 May 1995 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status.
The administrative authority took into consideration a reply of the Katowice Regional Police Headquarters to its request of 12 April 1995 for detailed information concerning the applicant’s service in the Civil Militia. It had been stated in this reply of 4 May 1995 that it had not transpired from the applicant’s personal file that during his service he had participated in the armed combat of any organisation’s fight for the independence of Poland. Therefore, as the applicant’s veteran status had been awarded to him on the basis of his participation in the struggle to consolidate people’s power (“utrwalanie władzy ludowej”), he had to be divested of this status pursuant to Article 25 item 2 (2) of the 1991 Act.
On the same day, 31 May 1995, the Director of the Veterans and Persecuted Persons Office refused to grant the applicant veteran status on the basis of his service in the Home Army (Armia Krajowa) during the Second World War, considering that the documents submitted in support of his claim were wholly inadequate to establish the relevant facts and, consequently, to grant such status (“nie dają absolutnie podstaw do przyznania uprawnień kombatanckich”).
The applicant again appealed to the Supreme Administrative Court against both decisions. He submitted that both decisions were unlawful. He argued that he could not reasonably be expected to submit any new evidence relating to his service in the Home Army, and in particular any testimony of living witnesses, given the lapse of time since the relevant events.
On 2 December 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the withdrawal of his veteran status on the basis of his service in the Civil Militia.
The Court had regard to the fact that the administrative authority, following the Court’s judgment of 22 April 1994, had held an enquiry as to the nature of the applicant’s activities during his service in the Militia in 1945. In the light of the letter of the Katowice Regional Headquarters of 4 May 1994, it could not be established that the applicant had in fact participated in “consolidating the people’s power”. Therefore, the original decision of 1979 bestowing veteran status on the applicant had lacked any sound factual basis. Consequently, the Court concluded that the contested decision divesting the applicant of this status was in conformity with the law.
The Court further set aside the decision concerning the refusal to grant veteran status to the applicant in respect of his service in the Home Army and remitted the case for reconsideration by the first-instance authority. The Court considered that the administrative authority, when considering that the evidence submitted by the applicant was “wholly inadequate” for a finding that he had in fact served therein, had significantly overstepped the margin of appreciation applicable in the assessment of evidence, as set out in the relevant provisions of the Code of Administrative Procedure. These proceedings are apparently still pending.
Relevant domestic law
1. Veteran status
The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans. Under the 1982 Act, participation in the armed struggle against the reactionary underground resistance (“walka o utrwalenie władzy ludowej”) gave rise to the entitlement to veteran status.
The 1991 Act enacted new criteria on which veteran status can be granted. Pursuant to Article 1 of the 1991 Act, the following persons, inter alia, are entitled to acquire veteran status:
a) those having served in the Polish Army (Wojsko Polskie) and in the Polish military formations organised during the Second World War within the Allied armies;
b) those having served in the Polish underground resistance organisations, including military formations organised in the framework of these organisations from 1939 to 1945;
c) those having served in the Allied armies and in the underground resistance organisations operating in the territories of the Allies in 1939-1945, with the exception of the NKVD and other special organisations acting to the detriment of the Polish nation;
d) those having served in the Polish underground military formations and organisations fighting for the independence of Poland within the borders of Poland before 1 September 1939 and within the Polish post-war borders, in the period from the arrival of the Army of the Union of the Socialist Soviet Republics (USSR) on Polish territory until 1956;
e) those having served in the armed struggle against the formations of the Ukrainian Uprising Army (UPA) and against the Werwolf.
The 1991 Act took away the entitlement to veteran status accorded by virtue of the 1982 Act from certain categories of persons who had served in the 1940s and 1950s in various organisations and State organs whose purpose was to combat the political opponents of the
communist regime. In particular, Article 25 of the Act provides, inter alia, that a person who had served in the Internal Public Security Service ("aparat bezpieczeństwa publicznego") was not entitled to acquire veteran status, and those persons who had acquired it, were to be divested of it.
The Internal Public Security Service is defined as being the State organs, partly comprising special armed forces and political police, modelled on the NKVD and the KGB, established on 21 July 1944 with a view to combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism. These organs were also competent to conduct criminal investigations under the rules of criminal procedure. They were, depending on political circumstances, called variously: the "Department of Public Security" (Resort Bezpieczeństwa Publicznego) (July 1944 - January 1945), the "Ministry of Public Security" (Ministerstwo Bezpieczeństwa Publicznego) (January 1945 - December 1954), the "Committee for Public Security" (Komitet do Spraw Bezpieczeństwa Publicznego) (1954-1956) and the "Security Service" (Służba Bezpieczeństwa), i.e. a special department of the Ministry of the Interior (1956-1990).
Under the 1982 Act, which was subsequently replaced by the 1991 Act, veteran status gives rise to various special employment and social insurance entitlements. The periods of veteran service are taken into account in calculating the periods giving rise to seniority. The same periods are multiplied by two in calculating periods giving rise to a retirement pension. Veterans who remain in employment are entitled to ten days' additional paid leave per year. They are entitled to retire earlier than other employees: women at the age of 55, and men at the age of 60, if they have satisfied another requirement for the acquisition of a retirement pension, i.e. if they have worked for periods set out in the Retirement Pensions Act. The retired veterans are further entitled to the special veterans' benefit, paid together with their retirement pension as a certain fixed sum.
Article 26 of the 1991 Act provides that persons who have lost their veteran status which was granted to them on the basis of the 1982 Act, retain the social insurance benefits to which they are entitled pursuant to the generally applicable social insurance laws, in particular the laws governing retirement pensions. Pursuant to Article 25 § 4 of the 1991 Act, if a decision is appealed to the Supreme Administrative Court, the rights stemming from the veteran status are suspended until a final judgment is given.
2. The appeal procedure against administrative decisions
Article 196 § 1 of the Code of Administrative Procedure, as applicable at the material time, provided that an appeal could be lodged against an administrative decision with the Supreme Administrative Court on the ground that it was not in conformity with the law. Article 207 § 2 stated that the Court could set the decision aside wholly or in part if it established that the decision had been in breach of substantive law, that the proceedings leading to the decision had been flawed with such procedural errors that the decision should be null and void, or if such procedural shortcomings had occurred which would justify a reopening of the proceedings.


ITEMID: 001-59522
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF ZWIERZYNSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Just satisfaction partially reserved;Costs and expenses partial award
JUDGES: Wilhelmina Thomassen
TEXT: 7. In 1937 the applicant’s father purchased from S. a property located in Łomża.
8. In 1950 the Białystok Regional Office (Urząd Wojewódzki) asked the Land Registry Division of Łomża Municipal Court (Sąd Grodzki) to insert a notice in the register stating that an expropriation procedure had begun in respect of the property, the registered owner of which was Mr B. Zwierzyński, the applicant’s father. On 26 June 1950 the Municipal Court decided to file the application with the Land Registry Division and notify the interested parties.
On 24 July 1952 the Białystok Regional Executive of the National Council (Prezydium Wojewódzkiej Rady Narodowej) expropriated B. Zwierzyński’s property in the public interest in accordance with the decree of 7 April 1948. Compensation was awarded to the former owner by a decision of 10 July 1961, upheld on 10 February 1962. The payment in compensation was credited to the State deposit account but neither the former owner nor his heirs claimed it.
9. On 2 December 1980 the Minister for Economic Affairs (Minister Gospodarki) dismissed an application by the applicant’s father for the expropriation decision to be set aside.
10. On 10 August 1990, after B. Zwierzyński’s death, the applicant’s mother lodged an application to set aside the decision of 2 December 1980. On 18 July 1991 the Minister for Economic Affairs declared the entirety of the proceedings since the 1952 expropriation decision null and void on account of a manifest mistake in law. In 1945 the owner had entered into a leasing contract with the State authorities and so it could not legitimately be stated that the land and the building had been occupied unilaterally by the administrative authorities. Consequently, the situation did not fall within the scope of the 1948 expropriation decree.
11. The Łomża regional police authority (Komenda Wojewódzka Policji), which currently occupies the premises, appealed against the Minister’s decision to the Supreme Administrative Court (Naczelny Sąd Administracyjny) in Warsaw.
12. On 19 December 1992 that court set aside the decision and remitted the case to the Minister for reconsideration.
13. In a decision of 24 July 1992, upheld by the Supreme Administrative Court on 23 November 1993, the Minister reiterated his finding that the proceedings since 1952 were null and void.
14. On 21 June 1994 the Olsztyn District Court decided that the applicant and his sister should each inherit half of their deceased parents’ estate.
15. The tax authorities asked the applicant to pay inheritance tax. The applicant asked for the deadline for payment to be extended because negotiations with a view to the sale or rent of the building were under way with the regional police authority, which was occupying the premises. On 4 November 1994, having received confirmation from the regional police authority that negotiations were indeed taking place, the Chairman of Olsztyn Municipal Council extended the deadline. On 20 June 1995 the Olsztyn Tax Office (Urząd Skarbowy) extended the deadline to a date which has not been specified.
16. On 12 September 1994 the Land Registry Division of the District Court (Sąd Rejonowy Wydział Ksiąg Wieczystych) entered the property in the Land Register, identifying the applicant and his sister as the owners. However, they have never obtained its return.
17. The negotiations on the sale of the property foundered and, moreover, the occupier never paid the rent fixed by the owners. Since 1995 the applicant has been paying property tax.
18. On 28 September 1992 the Treasury (Skarb Państwa), assisted by the Łomża District Office Director (Kierownik Urzędu Rejonowego), acting on behalf of the regional police authority (the current occupier), brought an action before the civil courts asserting acquisition of title to the property through adverse possession (stwierdzenie nabycia własności nieruchomosci przez zasiedzenie). On 25 November 1992 the Łomża District Court stayed the proceedings at the request of the Łomża District Office Director, taking the view that the outcome of the administrative proceedings pending before the Supreme Administrative Court on the application to set aside the 1952 expropriation decision would have a decisive impact on the action for acquisition of title to the property through adverse possession. On 18 January 1995 it lifted the stay at the Director’s request.
19. On 6 October 1995 the District Court granted the Treasury’s application, taking the view that the public authority had occupied the premises in good faith for the period of twenty years required under Article 172 of the Civil Code. The decision was upheld on 1 February 1996 by the Łomża Regional Court (Sąd Wojewódzki).
20. On 3 October 1996 the Minister of Justice lodged an appeal on points of law with the Supreme Court (Sąd Najwyższy) on the applicant’s behalf. He submitted that in the light of the Supreme Court’s case-law, there could be no possession in good faith where an expropriation decision had been set aside. Consequently, in view of the decision of 1993 setting aside the expropriation decision of 1952, the applicant had retrospectively recovered title to the property for the entire period during which the premises had been occupied by the State.
21. On 29 October 1996 the Supreme Court set aside the lower courts’ decisions and remitted the case to the District Court for reconsideration. It pointed out that it had had to rule on the same question on a number of occasions. It had consistently held that if the Treasury’s right to dispose of a property “like a property owner” was based on an administrative decision which was subsequently set aside with retrospective effect on account of a manifest mistake of law, the period of occupation could not be taken into account when calculating the period of possession giving title to property through adverse possession for the purposes of Article 172 of the Civil Code.
22. The case was remitted to the Łomża District Court. On 11 February 1997 the District Office Director, who is a representative of the State, applied for the proceedings to be stayed on the ground that the District Office had asked the Minister of Justice to lodge an appeal on points of law against the decision of 21 June 1994 in which the Olsztyn District Court had ruled that the applicant and his sister should each inherit half of their parents’ estate.
23. On 24 February 1997 the Land Registry Division of the Łomża District Court informed the applicant that the Treasury had been listed in the register as the owner of the property. It specified, however, that it had added of its own motion a notice referring to the proceedings brought for the acquisition of title to the property through adverse possession in order to protect the applicant’s and his sister’s claims.
24. On 2 April 1997 the Minister of Justice lodged the requested appeal with the Supreme Court and on 24 June 1997 the Łomża District Court stayed the proceedings.
25. On 9 September 1997 the Supreme Court granted the appeal on points of law, set aside the decision of 21 June 1994 and remitted the case to the District Court. It pointed out that the first issue to be decided was whether the heirs’ parents were indeed the owners of the property in question. When the property had been purchased by the applicant’s parents, the law had required that a notarial deed be drawn up for the purchase to be valid. In the absence of such a deed, and where no one had been in possession of the property long enough to acquire title to it by adverse possession, the assets of the estate were deemed to comprise only the possession (posiadanie) of the property, not the title to it.
The Supreme Court also noted that the appeal had been lodged after the expiry of the time-limit (six months after the disputed decision) set by Article 421 § 2 of the Code of Civil Procedure, but considered that questions relating to property law required special protection and that it would have been detrimental to the Republic of Poland’s interests to dismiss the application for being out of time because to do so would have infringed a right which was actually vested in another person.
26. On 8 July 1998 the Olsztyn District Court, to which the case had been remitted, ruled that the applicant’s parents’ estate should be shared equally between the applicant and his sister. The assets of the estate comprised the disputed property. The decision was identical in substance to the one of 21 June 1994.
27. On 23 September 1998 the Łomża District Court lifted the stay ordered on 24 June 1997 on the proceedings for acquisition of title to the property through adverse possession.
28. On 17 September 1998 the applicant lodged an application with the Land Registry Division of the Łomża District Court to have the entry in the register rectified so that he was listed as the owner. The ground for his application was that on 8 July 1998 the Olsztyn District Court had named him and his sister as the inheritors of their parents’ property. On 6 November 1998 the District Court asked the applicant to produce a decision proving that the entry in the register was not consistent with the legal status of the property, failing which his application would be dismissed. On 14 January 1999 the applicant complained about that requirement to the Łomża Regional Court, but without success. On 3 February 1999 the Land Registry Division of the District Court rejected his application to have the entry in the register rectified.
29. In December 1998 the applicant was summoned to the Olsztyn District Court, which had decided the matter of the division of the estate. He was told that the heirs of S., who had sold the property in issue to the applicant’s father in 1937, had brought an action to have the proceedings concerning the division of the estate reopened. They said that they had been informed of the outcome of the proceedings by the regional police authority’s legal adviser and argued that they had rights over the property. On 14 December 1998 the District Court to which the Treasury had applied for acquisition of title to the property through adverse possession suspended its consideration of that case pending the outcome of the action to reopen the proceedings concerning the division of the estate.
30. After hearings held on 28 January, 9 March, 26 April and 13 May 1999, the Olsztyn District Court rejected the application by S.’s heirs. Its decision was upheld on appeal by the Olsztyn Regional Court on 27 October 1999. On 17 December 1999 S.’s heirs lodged an appeal on points of law with the Supreme Court.
31. On 17 October 2000 the Supreme Court allowed the appeal and remitted the case to the Olsztyn Regional Court for reconsideration. It observed that the Regional Court should have satisfied itself not only that the appellant had locus standi, which it had done, but also that the decision taken by the District Court on 8 July 1998 at the end of the proceedings which S. had applied to have reopened had related to his rights.
32. The case is still pending before the Olsztyn Regional Court.
33. Article 172 of the Civil Code provides:
“§ 1. Everyone in possession of property although he is not the owner shall acquire title thereto if he has been in continuous and independent possession thereof for twenty years, save where he came into such possession in bad faith.
§ 2. After thirty years, persons in possession of property shall acquire title thereto even if they came into possession thereof in bad faith.”
34. According to the Supreme Court’s established case-law, if the Treasury’s right to dispose of a property “like a property owner” is based on an administrative decision which is subsequently set aside with retrospective effect on account of a manifest mistake of law, the period of occupation may not be taken into account when calculating the period of possession giving title to property through adverse possession for the purposes of Article 172 of the Civil Code (see, in particular, OSP 1993/7-8/153 and OSNCP 1994/3/49).
35. Article 156 of the Code of Administrative Procedure vests State administrative bodies with authority to set aside administrative decisions under certain conditions. Article 160 provides that anyone who suffers damage as a result of an administrative decision that may be set aside under Article 156 may bring an action in damages for actual harm done, directed, in principle, against the administrative body which took the decision. The procedure for compensation claims is set out in the Civil Code.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113741
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MIKIASHVILI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in Tbilisi in 1984. According to the relevant police reports, the applicant was slightly inebriated when he was arrested on 29 October 2005 and had physically resisted police officers. As a result, he had sustained slightly swollen lips and a small bruise on his forehead.
6. Following his arrest the applicant underwent an external visual examination upon his being taken to the temporary detention centre. A report drawn up thereafter by a doctor on duty recorded a large bruise on the left part of the applicant’s forehead, a large bruise on the right temple, a large bruise near the left eye and cheekbone, a bruise and evidence of an injury that had bled on his lips, and large bruises on his neck and all over his back (the report of 29 October 2005).
7. On 30 October 2005, the applicant was charged with the offence of resisting police officers with the intention of obstructing them in the course of their duties, committed as part of a group in a premeditated manner (Article 353 § 2 of the Criminal Code of Georgia). According to the decision to bring charges, two police officers, N.J. and G.A., had seen a young man running down the street at around 2:15 a.m. with a mobile phone in his hand, being “chased” by two women (who turned out to be his wife and a friend). Before the young man could get into a car parked at the end of the road, the two police officers had stopped and questioned him to find out why he was running and to whom the mobile phone belonged. At that point the applicant had got out of the car and, together with another young man, B., his friend, had begun to verbally and physically attack the police officers. The police had been unable to calm them down and the applicant and his friend had torn the police officers’ shirts and jumpers during the struggle. The police had called for backup and, after several colleagues had arrived as reinforcements, had managed to arrest the offenders. Once placed in custody in a temporary detention centre, the offenders had continued to verbally and physically attack the police. In particular, the applicant had delivered a punch to the left eye of a police officer, A.Ts., who had accompanied him to the investigation room to take care of some procedural matters.
8. According to three medical reports concerning the examination of the three police officers who had allegedly been attacked by the applicant and his friend B., A.Ts. had a closed head injury and a bruise on his left eye, G.A. had a closed head injury and a graze on his right knee, and N.J had a superficial lesion on his lips and cheek. All three police officers were discharged from the hospital on the same day.
9. On 30 October 2005 the investigator, with the consent of the supervising prosecutor, sought an order from the Tbilisi City Court that the applicant be remanded in custody pending trial. The reasons given for the request were the risks that the applicant might abscond and that he might impede the investigation.
10. On 31 October 2005 the Tbilisi City Court, refusing the applicant’s application for a non-custodial measure, ordered his pre-trial detention for three months. Having reviewed the criminal case materials and heard the parties’ oral pleadings, the court confirmed the existence of a reasonable suspicion that the offence had been committed. The imposition of pretrial detention was found to be further justified by the assumption that if the applicant was freed he might influence the eyewitnesses, which would prevent the truth of the matter from being established. Moreover, because of the severity of the penalty for such a serious crime, the applicant might evade trial.
11. Photographs of the applicant taken at the hearing on 31 October 2005 showed bruising around his eyes and an injury to the left hand side of his forehead. On the same date he was transferred to Tbilisi no.1 Prison, where following his external inspection by a doctor on duty, a medical certificate was drawn up reporting an injury to the left hand side of the applicant’s forehead (medical certificate of 31 October 2005). According to the certificate, the injury – which the applicant claimed to have sustained before his arrest – was healing.
12. On 2 November 2005 the investigator responsible for the case rejected the defence’s application to have a medical examination carried out. According to the investigator, it had not been established that the applicant had been injured during his arrest, as the medical certificate issued by the doctor in Tbilisi no. 1 Prison showed that the injury had predated his arrest. Moreover, the investigator considered that, had the applicant been injured during his arrest, he would have raised the complaint at the hearing of 31 October 2005.
13. On the same date, 2 November 2005, the applicant appealed against the detention order, claiming, inter alia, that the assumptions that he would abscond from the trial and influence the investigation were wholly unsubstantiated.
14. On 7 November 2005, whilst holding an oral hearing, the Tbilisi Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal, concluding that his remand in custody was necessary in view of the seriousness of the crime and the facts and arguments contained in the court decision of 31 October 2005. With regard to the defence’s complaint that the authorities had refused to allow the applicant to undergo a medical examination, the Court of Appeal noted that the defence had never requested such an examination under Article 73 § 1 (g) of the Code of Criminal Procedure (“the CCP”).
15. On 9 November 2005 the applicant appealed against the refusal to allow a medical examination, complaining that the investigator had been acting as a medical expert in determining when he might have received the various injuries. In his opinion, the refusal to allow a medical examination had amounted to a violation of his rights under Article 73 § 1 (g) of the CCP.
16. On 28 December 2005 a judge ordered the investigating authorities to have the applicant examined by a medical expert. The examination was carried out between 5 January and 1 February 2006. The medical expert had a copy of the medical report of 29 October 2005. In addition he himself noticed a scar measuring 1 cm by 1 cm on the right temple, corresponding to an injury classified as slight, and caused by a hard blunt object. The expert concluded that all the applicant’s injuries could possibly date back to the day of the arrest, as the applicant was contending.
17. On 25 January 2006, the applicant’s detention had been extended by a month. This decision had been upheld on 29 January 2006 by the Court of Appeal which, in a separate decision, drew the investigator’s attention to the fact that no investigative actions had been taken for a month and that the proceedings had therefore been prolonged without reason.
18. On 21 June 2006 the applicant was allegedly again beaten, this incident occurring on the premises of the court of first instance, before which he had been brought for trial.
19. On 22 June 2006 the applicant was convicted of having committed the offence defined in Article 353 § 2 of the Criminal Code and sentenced to one year and six months’ imprisonment. Before the court, N.J. confirmed that he had been hit by the applicant while the other young man had insulted him. Around fifteen people had come out of a nearby bar to back up the young men and insult the police officers. It had therefore been difficult to arrest the offenders and the officers had had to call for backup. Once the two men had been arrested, N.J. and his colleague G.A. had gone to the hospital to be treated. Their clothes had been torn. According to N.J., the applicant had had blood on his lip and the possibility that he had sustained other injuries to his body could not be excluded.
20. G.A. claimed that he had been hit by both young men and that the applicant had already had an injury to his face prior to the arrest.
21. A.Ts. submitted that he had arrived at the scene when the arrest operation was almost over and had seen that the two young men had been taken to the temporary detention centre. He had encountered the applicant in the investigation room, where the latter had punched him in the eye. A.Ts. stated that he had not physically attacked the applicant.
22. The applicant’s friend who, according to the police officers, had been running down the street with a mobile phone, stated that he had been drunk, had felt unwell and had been walking quickly down the street, followed by his wife and a friend. When the police had stopped him to find out who the telephone belonged to, he had handed the phone to his wife and had run into the bushes because he had felt sick. On his return, he had seen that the two women were screaming and that the police were trying to hit the applicant and another of his friends, B. He had helped the applicant, who had been on the ground, to get up. He claimed that the police officers’ clothes had not been ripped and that his two friends had not had any visible injuries on their bodies before being arrested.
23. Two other policemen who had arrived as backup stated in evidence that they had seen the two young men beating G.A., who had fallen to the ground. The offenders had been swearing and refusing to get into the police car.
24. The applicant lodged an appeal against conviction, complaining that the court had agreed with the police officers’ contention that they had been beaten, without examining his complaint that he had been mistreated by those same police officers during his arrest, as well as later on in the police station. He also alleged that during his arrest he had fallen to the ground and had been kicked in the head, stomach and back. His friend had helped him up. He alleged that in the temporary detention centre a glass had been smashed over his head and the police had beaten him violently. During the following two weeks he had not slept, had suffered from headaches and had been behaving strangely. The applicant further complained that the first-instance court had ignored the medical report which had proved that he had been beaten. Requiring medical care as a result of the treatment he had endured, the applicant submitted that he had been the victim of a violation of Article 3 of the Convention and requested that the Court of Appeal attribute the same importance to that aspect of the case as to the other facts.
25. On 12 April 2007 the Court of Appeal held that, in the light of the facts established by the first-instance court, it could not be found that the applicant had been subjected to ill-treatment at the hands of the police. The first-instance judgment was upheld.
26. On 14 December 2007 an appeal on points of law lodged by the applicant, in which he reiterated his complaint under Article 3 of the Convention, was declared inadmissible by the Supreme Court of Georgia. This decision was served on the applicant on 19 December 2007.
27. According to medical certificates issued by different psychiatric clinics in Tbilisi, they had never treated the applicant before his arrest.
28. Shortly after his arrest, on 11 November 2005 the applicant had to be placed in the psychiatric ward of the prison hospital because of his psychiatric instability. On 14 November 2005 he was examined by experts from the Empathy Rehabilitation Centre for Victims of Torture (“Empathy Centre”). The preliminary results of the examination showed that the applicant was suffering from a head injury and concussion and was delirious. The experts also noted, on the basis of the applicant’s account, that the latter had suffered from head injuries several times in the past and that he had had a history of aggressive behaviour related to inebriation. The experts recommended that he undergo an in-patient psychiatric examination and a tomography scan of his brain and that he receive treatment with drugs and appropriate medical supervision.
29. On 26 December 2005 the applicant’s lawyer lodged a request with the Tbilisi City Prosecutor for a psychiatric examination of his client to be carried out in order to determine whether he required to be admitted to a specialised institution, whether his condition was a result of the way he had been treated during his arrest and whether he could be held accountable for his actions at the time of the offence of which he was accused.
30. On 6 February 2006 the Tbilisi Public Prosecutor’s Office ordered an out-patient psychiatric examination, which resulted in a medical report of 27 March 2006. According to the report, the applicant was not suffering from any chronic psychiatric illness, temporary psychological disorder, or mental illness. He was suffering from mild depression and was responsible for his actions.
31. On 30 March and 19 April 2006 the director of the Empathy Centre approached the prison authorities, drawing their attention to the applicant’s psychiatric problems and the suicidal tendencies which his sister and the chaplain had reported to her. She requested that the applicant be kept in the prison hospital in order to receive appropriate treatment and to undergo an in-patient psychiatric examination.
32. The case file shows that the applicant was kept in the psychiatric ward of the prison hospital until 22 April 2006. Between 22 April and 27 May 2006, he remained in the same institution, but on a different ward. On the latter date he was sent to Tbilisi no. 5 Prison, and was once again admitted to the psychiatric ward of the prison hospital on 29 May 2006. On 16 August 2006 he was sent to Rustavi no. 6 Prison and placed in solitary confinement in the hospital wing.
33. On 22 December 2006, an in-patient psychiatric examination of the applicant took place. According to the report, the applicant had not been mentally ill before or at the time of the acts with which he was charged. He had therefore been responsible for his actions. However, at the time of the examination the applicant was suffering from a temporary psychological disorder in the form of brief reactive psychosis. He could not control his actions and needed intensive compulsory psychiatric treatment under increased medical supervision. On 31 January 2007 the Court of Appeal decided to order the applicant’s admission to Khoni Psychiatric Clinic, where he remained until his release. As it appears from the relevant medical files, the applicant received various treatments there and was monitored by medical specialists.
34. According to a report by the experts from the Empathy Centre dated 10 June 2008 containing the results of their monitoring of the applicant between 8 November 2005 and 27 May 2008, the applicant’s psychotic state had been triggered a few days after his arrest and he had been cured only after appropriate treatment had been administered by the doctors at the clinic in Khoni and by other doctors during the four months following his release.
35. On 20 December 2005, in response to a complaint filed by the applicant’s lawyer, the Tbilisi prosecuting authorities decided to separate the aspects of the case potentially relating to the alleged abuse of authority by the police officers during the arrest (Article 333 § 3 (b) of the Criminal Code) from the criminal case brought against the applicant and his friend. A separate investigation was therefore opened in that regard.
36. When questioned as a witness during that investigation on 26 January 2006, the applicant affirmed that he had been subjected to ill-treatment during his arrest. Notably, he alleged that he had first been pushed by the police officers, as a result of which he had fallen to the ground, and then the police officers had kicked him and beaten him with truncheons, causing particularly serious blows to his head. He also explained that he had been beaten at the temporary detention centre by seven or eight police officers who had also insulted him. He had fought back in order to defend himself. When he had been in Tbilisi no. 1 Prison, a visual medical examination had been carried out, during which he had deliberately misled the doctor by telling him that he had suffered the injury to his forehead prior to his arrest. He had in fact been afraid of being subjected to further ill-treatment.
37. The police officers who had stopped the applicant’s friend as he ran down the road with his phone and the officers who had arrived on the scene later to help with the arrest were also questioned. Their statements were the same as those they had made in the criminal case against the applicant. N.J. added that force had been used during the arrest and that the applicant had shown signs of it on his body. However, he claimed that the force used had been proportionate, in view of the fact that the applicant had been physically resisting the police officers.
38. A.Ts. also confirmed his previous statement (see paragraph 21 above). He added that his injured eye had bled and that since then he had almost completely lost his sight. The police officers who had been present in the temporary detention centre confirmed that A.Ts.’s eye had been injured by the applicant and also explained that breakable objects were not allowed inside the investigation room of the detention centre, which meant that the applicant could not have had a glass smashed over his head.
39. The applicant’s friend, who was arrested at the same time, confirmed that the applicant had been ill-treated during the arrest. His wife, who had been present at the scene, stated in her deposition that all she had seen was a quarrel, which had turned into a fight. Another of their friends stated in her deposition that the applicant had insulted the police officers first. However, she had not seen who had dealt the first blow.
40. On 7 April 2006 the applicant’s lawyer lodged a complaint with the Prosecutor General about the refusal of the Tbilisi Prosecutor’s Office to grant his client the status of civil party in the new case and the fact that, despite the requirements of Article 3 of the Convention, the investigation was not moving forward.
41. On 30 June 2006 the prosecuting authorities, relying on the witness depositions and the medical examinations carried out on the police officers, decided to discontinue the proceedings. They considered that the police had acted in accordance with the law during the applicant’s arrest and that there was no evidence to substantiate the applicant’s allegations of ill-treatment during his arrest and at the temporary detention centre.
42. The applicant lodged an appeal against that decision, arguing that no explanation had been provided for the injuries and the health problems he had experienced following his arrest. He repeated that those problems were the direct consequence of the ill-treatment he had suffered at the hands of the police, who had abused their authority.
43. On 9 August 2006 the Tbilisi City Court examined the case without the participation of the parties, relying solely on the evidence in the case file. It upheld the decision of 30 June 2006 to discontinue the proceedings on the grounds that the applicant had not raised the complaint of illtreatment either during questioning when he had been charged or when he had been questioned as an accused, despite being assisted by a lawyer during all the procedural steps concerning him. Furthermore, he had not availed himself of his right to request a medical examination or a medical opinion. The Tbilisi City Court concluded that, at the time of the applicant’s arrest, the police officers had not committed any acts which were contrary to the law and that the ill-treatment of the applicant at the police station had not been proved.
44. On 20 September 2006 the Tbilisi Court of Appeal, ruling without the parties present and as the court of last instance, held that the previous decisions were well-founded.
45. On 15 August 2006 between 11.20 a.m. and 11.45 a.m., representatives of the Public Defender’s Office (“PDO”) visited the applicant in the prison hospital and found that he had traces of blows and injuries to the head, loin and back. The applicant explained that, during the night of 14-15 August 2006, he had been beaten by the deputy director of the prison hospital, G.B., and six other members of the prison hospital staff, among whom he could identify I. and D. He alleged that he had been kicked, insulted and spat on. The applicant, who stated that he had insulted his attackers in return, had been placed in solitary confinement where, venting his aggression, he had smashed up everything. At the time of the representatives’ visit, he claimed to be hungry and complained of the prison authorities’ refusal to allow him to eat, drink or go to the toilet. He asked the representatives to help him obtain a transfer to a safe place and said that he feared being killed.
46. On 16 August 2006 the Department of Investigations of the Ministry of Justice commenced an investigation under Article 118 § 1 of the Criminal Code (intentionally causing less serious harm to the health of another).
47. When questioned as a witness by an investigator on 17 August 2006, the applicant changed his initial testimony. He asserted that he could not recall the details of the incident of 14-15 August 2006, as he had been taking psychotropic medication at the material time. All he could remember was that he had not had a fight with the representatives of the prison administration. He further claimed that he had frequent quarrels with other prisoners, whom he could not name because of the risk posed to his life.
48. The deputy director of the prison hospital, G.B., implicated by the applicant in his initial statement as having been involved in his ill-treatment, maintained that a fight had broken out between the applicant and another prisoner, A.A., in the prison hospital yard on 14 August 2006 and that prison officers had had to intervene in order to stop it. He claimed that he had not witnessed the incident personally and had only arrived at the prison hospital yard after the fight was over. The applicant had then been placed in solitary confinement. According to G.B., neither he nor any of the prison officers had either psychically or verbally insulted the applicant during this incident.
49. The prison officers who had been in the prison hospital yard during the incident were also questioned. They maintained that prisoner A.A. and the applicant, who they asserted was always aggressive towards prison hospital staff and other prisoners, had had a fight on 14 August 2006 and that due to the applicant’s aggressive behaviour he had been subsequently placed in solitary confinement. They claimed that on the next day the applicant had burnt his shirt, smashed up the cell and continued verbally assaulting prison officers. They also stated that the incident had lasted for a short period of time and that they had noticed no injuries on either A.A. or the applicant afterwards.
50. A.A. confirmed in a statement that on 14 August 2006 at around 6:00 p.m. while exercising in the prison hospital courtyard he had had an argument with the applicant and had kicked him once, after which prison officers had intervened and restrained them. A.A. noted that neither the prison officers nor the prisoners who were in the prison hospital courtyard during the incident had engaged in the fighting or had assaulted the applicant.
51. Another six prisoners, eyewitnesses to the incident, were additionally questioned in the course of the investigation. They confirmed that a fight had broken out between the applicant and A.A. on 14 August 2006 and that the prison officers had only intervened to stop it.
52. An independent medical report drawn up on 29 August 2006 at the request of the defence found that the applicant had two haematomas on his back, measuring 2 cm by 1.5 cm and 6.5 cm by 2.5 cm, and a 3.5 cm by 1 cm haematoma in the area of his loin. These injuries had been inflicted by a hard, blunt object and could have been inflicted at the time and in the circumstances referred to in the report of the visit of the PDO representatives.
53. On 7 July 2008 the prosecutor discontinued the proceedings for lack of evidence of a crime. Whilst omitting the medical evidence concerning the applicant’s injuries, he based his findings primarily on the deposition of the applicant given to the investigator on 17 August 2006, as well as on the statements of the Governor of the prison hospital, his two deputies, the prison officers and the applicant’s fellow prisoners questioned in the course of the investigation. The prosecutor concluded that it could not be established that the applicant had been physically assaulted by the staff of the prison hospital.
54. Article 28 § 1 (a) of the CCP stated that a preliminary investigation shall be discontinued if the act or omission concerned is not an offence under the Criminal Code.
Pursuant to Article 62 §§ 1 and 2 of the CCP, whilst criminal investigations were normally carried out by the Ministry of the Interior, an investigation into an offence implicating a police officer, an investigator, or a senior military or special law-enforcement officer was to be entrusted to the Public Prosecutor’s Office.
The other relevant provisions of the CCP read as follows:
“1. A suspect has the right ...
(f) when detained or issued with a decision on his/her recognition as a suspect, to request a free medical examination and relevant written conclusion, and to call for a forensic medical examination, which request should be immediately met. A refusal to order [such] an examination is subject to appeal in the district (city) court ..., which shall deal with the matter within 24 hours.”
“1. A measure of restraint shall be applied to ensure that the accused cannot avoid the investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in a given criminal case, or [in order] that a court’s verdict is implemented. Pre-trial detention or [any] other measure of restraint shall not be imposed on the accused if a less restrictive measure meets the objectives provided for in this paragraph.
2. The grounds for the imposition of a measure of restraint are a reasonable suspicion that the person might abscond or fail to appear in court, destroy evidence, threaten the parties to the proceedings or commit a new crime. ...
4. A court shall impose pre-trial detention as a measure of restraint only when the objectives set out in the first paragraph of this Article can not possibly be achieved by applying a less restrictive measure.”
“Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...”
“1. The preliminary investigation shall be opened on the basis of the information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation ...”
55. The relevant parts of the report read as follows:
“... Ill-treatment of detainees has increased since December 2005. Some detainees reported being beaten regularly and severely or being subject to other ill-treatment and inhuman punishment. In some cases, the beatings and other inhuman treatment constituted torture. There is widespread impunity for such ill-treatment. Detainees have no access to an effective complaint mechanism and in some facilities have limited ability to communicate confidentially with their lawyers. Investigations into abuse are rare and those responsible for abuse are seldom held accountable.
There are numerous obstacles to effective investigation and prosecution of perpetrators of abuse against detainees, including direct interference by prison authorities and the lack of identifying insignia among prison staff and special forces. ...
The lack of investigations into the deaths, injuries, and other ill-treatment and possible torture inflicted by law enforcement agents acting in the Georgian penitentiary facilities in early 2006, also suggests that the government is not fully committed to guaranteeing justice for victims and eliminating the climate of impunity.”
“... In 2005 the large majority of injuries alleged to have been sustained through police ill-treatment were reportedly inflicted during the arrest. In the same period Amnesty International also continued to receive information about some cases in which detainees were reportedly tortured or otherwise ill-treated in cars while being taken to a place of detention, in police stations, and in the Ministry of Internal Affairs. ...
Impunity for torture or other ill-treatment is still a big problem. Amnesty International is concerned that procurators do not open investigations into all potential torture or other ill-treatment cases in a systematic manner. In dozens of cases where the procuracy has opened investigations the perpetrators have not been brought to justice. Investigations into allegations of torture or other ill-treatment have often not been conducted in a prompt, impartial and independent manner.”
“2. Ill-treatment
10. In general, the CPT’s delegation gained the impression that the situation as regards the treatment of persons detained by the police in Georgia had considerably improved since the Committee’s second periodic visit. The great majority of the persons interviewed during the 2007 visit, who were or had recently been in police custody, indicated that they had been treated in a correct manner. The delegation received only a few isolated allegations of physical ill-treatment, all but one of which referred to the excessive use of force at the time of apprehension (i.e. kicks and punches after the person concerned had been brought under control). ...
15. ... [T]he CPT reiterates its long-standing recommendation that whenever persons brought before a judge at the end of police custody allege ill-treatment by the police, the judge record the allegations in writing, order immediately a forensic medical examination and take the necessary steps to ensure that the allegations are properly investigated. Such an approach should be followed whether or not the person concerned bears visible external injuries. Further, even in the absence of an express allegation of ill-treatment, the judge should request a forensic medical examination whenever there are other grounds (e.g. visible injuries, a person’s general appearance or demeanour) to believe that ill-treatment may have occurred. If necessary, the relevant legal provisions should be amended.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-78785
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PILIPOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Branko Pilipović, who is of Serbian origin and whose nationality is unknown, was born in 1956 and lives in Johova, Bosnia and Herzegovina. He was represented before the Court by Mrs B. Isailović, a lawyer practising in Paris. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 March 1990 the Sisak Employment Tribunal (Osnovni sud udruženog rada u Sisku) gave judgment ordering company A. (“the company”) to pay the applicant the amount of 801.80 Yugoslav dinars (“YUD”) together with the pertaining statutory interest and the litigation costs. The judgment became final on 7 November 1990 when it was upheld by the Employment Tribunal of Croatia (Sud udruženog rada Hrvatske).
On 21 March 1991 the applicant applied to the Sisak Municipal Court (Općinski sud u Sisku) for enforcement of the above judgment.
On 27 March 1991 the Municipal Court issued a writ of execution (rješenje o izvršenju) ordering the financial institution operating the company’s account (Služba društvenog knjigovodstva, subsequently Zavod za platni promet and eventually Financijska agencija) (“the FINA”) to collect the amount corresponding to the applicant’s claim, i.e. 333,724.54 YUD, and transfer it to his account.
On 11 April 1991 the company filed an objection (prigovor) to the writ. The applicant replied on 23 April 1991.
On 2 December 1991 the Municipal Court dismissed the company’s objection and the writ thereby became final. It appears that on 4 February 1993 the writ was sent to the FINA in order to be carried out.
The Government submitted that the proceedings had ended on 4 February 1993. However, since the case-file had been closed and, eventually, destroyed on 1 December 1998 pursuant to section 248 of the Courts’ Rules (see below under the Relevant domestic law), the Government were unable to specify whether the proceedings had been terminated because the applicant’s claim had been satisfied or for some other reason.
The applicant submitted that in July 1991 he had gone to stay with his parents in Bosnia and Herzegovina. He further submitted that due to the escalation of the war in Croatia in October 1991, he had been unable to return. Thus, he had decided to stay in Bosnia and Herzegovina where he had later on been granted refugee status.
The applicant also submitted that since April 1991 he had not received any information from the Sisak Municipal Court concerning his case.
On 3 December 1999 he wrote to the Sisak Municipal Court asking it to continue the enforcement proceedings. He received no reply.
On 3 May 2001 the applicant, through his advocate R.B., repeated his request. The court replied on 2 August 2001 informing the applicant’s advocate that the enforcement proceedings at issue had been discontinued and the case-file destroyed.
On 15 May and 31 July 2002 the applicant again requested the Sisak Municipal Court to continue the enforcement proceedings.
On 25 April 2003 he wrote to the President of the Sisak Municipal Court complaining that he had received no reply to his previous letters. The President replied on 29 May 2003 informing the applicant that the proceedings had ended on 4 December 1993, and the case-file had been destroyed on 1 December 1998.
Meanwhile, following the applicant’s enquiry about the writ of execution, on 10 March 2003 the FINA – Sisak Office informed him that it had never received the writ from the Sisak Municipal Court.
The 1991 Enforcement Proceedings Act (Zakon o izvršnom postupku, Official Gazette nos. 53/1991 and 91/1992), in force at the material time, did not provide for a possibility to continue enforcement proceedings that had already ended but only those that had been stayed or postponed (section 67). Moreover, the Act provided that a petition for reopening of a case (prijedlog za ponavljanje postupka) was not allowed as a remedy in the enforcement proceedings (section 9).
The 1996 Enforcement Act (Ovršni zakon, Official Gazette nos. 57/1996), which entered into force on 11 September 1996, contains the same rules on continuation of the proceedings (sections 9 and 66) and reopening of a case (section 12).
The Courts’ Rules (Sudski poslovnik, Official Gazette nos. 80/1997 and 20/98), as in force at the material time, regulated, inter alia, time-limits for keeping case-files in archives of the courts. They provided that the case-files concerning enforcement proceedings had to be kept for five years following the discontinuation or termination of such proceedings, unless they concerned rights in rem, in which case the files had to be kept for thirty years (section 248). After the expiry of those time-limits the case-files had to either be delivered to the institution keeping historical archives or be destroyed (section 247).


ITEMID: 001-66631
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HOFBAUER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Alois Hofbauer, is an Austrian national who was born in 1935 and lives in Gföhl. He was represented before the Court by Mr H. Malek, a lawyer practising in Krems. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Departement at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 May 1985 the mayor of Gföhl granted the applicant’s neighbours a building permit for a house and a garage, whereby the latter was to be situated on the border of the applicant’s property. The applicant’s appeals were to no avail and the proceedings were terminated by the Administrative Court’s decision of 17 January 1989.
Further proceedings in which the applicant had contested his obligation to allow his neighbours to enter upon his land in order to enable them to construct the garage remained unsuccessful and were terminated by the Administrative Court’s decision of 19 January 1993. Subsequently, proceedings to enforce the applicant’s obligation were conducted.
On 11 July 1993 the applicant requested the Gföhl municipality to issue a demolition order for his neighbours’ garage. He submitted, in particular, that the garage had not been constructed in accordance with the requirements of the building permit as regards fire protection measures.
On 4 August 1993 the mayor of Gföhl dismissed the applicant’s request.
On 22 June 1994 the applicant’s appeal was dismissed by the Municipal Council.
On 2 January 1995 the Lower Austria Regional Government, upon the applicant’s objection, quashed the Municipal Council’s decision and referred the case back to it, finding that it had failed to establish the relevant facts as regards the question whether deviations from the building permit impeded the fire resistance of the garage at issue.
On 2 February 1995 the applicant lodged a complaint against the Regional Government’s decision, alleging in particular that the reasons given indicated that his request was unfounded.
On 21 February 1995 the Administrative Court, without holding a hearing, dismissed the applicant’s complaint against the Regional Government’s decision. It noted that, in any case, the reasons given for a decision were not binding.
On 3 July 1995 the Municipal Council carried out an inspection of the garage in presence of an expert for building matters but in absence of the applicant. A report was drawn up by the expert, finding that the garage’s outer wall was fire resistant. Subsequently, on 21 December 1995, the Municipal Council again dismissed the applicant’s appeal against the decision of 4 August 1993.
On 13 March 1996 the Lower Austria Regional Government, upon the applicant’s objection, quashed the Municipal Council’s decision and referred the case back to it, finding that it had failed to give the applicant an opportunity to comment on the report of the inspection carried out on 3 July 1995.
On 1 April 1996 the applicant’s counsel, on whom the Municipal Council had served the report of 3 July 1995, submitted written observations. He submitted in particular that the expert’s submissions contained in the report did not meet the basic requirements of an expert opinion.
On 25 April 1996 the applicant lodged a complaint with the Constitutional Court, claiming that the decision of 13 March 1996 was arbitrary and that the reasons given for it showed that the Regional Government considered his request to be unfounded.
On 8 October 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success and transferred the case to the Administrative Court.
On 24 March 1998 the Administrative Court, without holding a hearing, dismissed the applicant’s complaint against the Regional Government’s decision of 13 March 1996.
On 21 December 1998 the Municipal Council again dismissed the applicant’s appeal against the decision of 4 August 1993.
On 9 March 1999 the Lower Austria Regional Government dismissed the applicant’s objection. It found in essence that the outer wall of the garage was fire-resistant. As it had not been constructed in contravention of the building permit, there was no basis for issuing a demolition order.
On 8 June 1999 the Constitutional Court dismissed the applicant’s complaint for lack of prospects of success and transferred the case to the Administrative Court.
On 8 September the applicant supplemented his complaint to the Administrative Court and requested that an oral hearing be held. He complained about the duration of the proceedings. As to their merits, he maintained that his neighbours’ garage did not comply with the relevant provisions on fire-resistance. Further, he complained that he had not been present at the inspection of the garage on 3 July 1995 and that the expert opinion was not conclusive. Moreover, he challenged all members of the competent chamber of the Administrative Court for bias.
On 18 October 1999 the Administrative Court dismissed the applicant’s motion for bias.
On 29 August 2000 the Administrative Court dismissed the applicant’s complaint as being unfounded. Furthermore, the Administrative Court refused the applicant’s request for an oral hearing, relying on section 39 § 2 (6) of the Administrative Court Act which allows it to forego a hearing if it is not likely to contribute to the clarification of the case.
The court noted that the applicant’s neighbours had a final building permit, which he could no longer challenge. As regards the applicant’s complaint about the duration of the proceedings it noted that the proceedings concerning the issuing of the building permit and the proceedings concerning his request for a demolition order were to be regarded separately. The latter proceedings had not yet lasted unreasonably long.
As to the applicant’s request for a demolition order, the court noted that the report of the inspection of 3 July 1995 had been duly served on the applicant who had commented thereon. Consequently, the fact that he had not been summoned to participate in the inspection did not constitute a procedural defect. Furthermore, the authority’s finding that the garage’s outer wall was fire-resistant was based on a conclusive expert opinion. Consequently, the Administrative Court confirmed the Regional Government’s view that the garage complied with the building permit. The Administrative Court’s decision was served on 5 October 2000.
In connection with the above proceedings, the applicant conducted two sets of proceedings under the Official Liability Act.
On 9 October 1998 the applicant filed an action with the Krems Regional Court, claiming that the Gföhl municipality had acted unlawfully in that it had failed to summon him to the inspection of 3 July 1995 and requesting lawyer’s costs incurred for the appeal against the ensuing decision. The court held a hearing on 12 January 1999. A further hearing was postponed once on the defendant’s request and once on the applicant’s request and was finally held on 26 November 1999. On 19 June 2000 the Krems Regional Court granted the applicant’s action on the merits but reduced the amount claimed by some 65 Euros. The decision was served on 26 June 2000.
In a further set of proceedings started on 2 February 1999 the applicant claimed costs incurred on account of the allegedly unlawful decisions of the Lower Austria Regional Government. On 11 June 1999 the Krems Regional Court found that it did not have jurisdiction to deal with the case and transferred it to the St. Pölten Regional Court. The latter, after having received submissions from both parties, held a hearing on 18 January 2000. On 25 August 2000 the St. Pölten Regional Court dismissed the applicant’s claim. On 9 January 2001 the Vienna Court of Appeal dismissed the applicant’s appeal. The decision was served on 5 February 2001.
In June 1999, proceedings concerning the possible appointment of a guardian for the applicant were instituted by the Krems District Court. They were discontinued on 12 December 1999 after the court had established that the applicant did not need the assistance of a guardian.


ITEMID: 001-23387
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: EMSENHUBER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Christiana Emsenhuber, is an Austrian national, who was born in 1954 and lives in Herzogenburg (Austria). She is represented before the Court by Mr Urbanek, a lawyer practising in St. Pölten (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a house in Weißenkirchen (Austria). In 1985 the applicant’s neighbour, A. K., applied for a building permit for a new barn. On 16 August 1985 the Mayor (Bürgermeister) of Weißenkirchen granted the building permit. In the following following years A. K. built the barn.
On 26 June 1991, after a hearing, the Mayor granted both a retroactive permit for certain modifications of A. K’s project and the permit to use the building (Benützungsbewilligung).
On 9 June 1992 the applicant, who had not been summoned to this hearing, appealed against the permit to use the building and submitted that the new building did not comply with the building permit. In particular she submitted that, because the barn was too close to her land, more rainwater and snow than before was deposited on her land which had adversely affected the soil and her house.
On 31 January 1994 the Municipal Council (Gemeinderat) dismissed the applicant’s appeal. The applicant filed a further appeal (Vorstellung) against this decision.
On 15 May 1995 the District Authority quashed the decision for procedural reasons.
On 17 June 1996 the Municipal Council again dismissed the applicant’s appeal. It found that the applicant had no locus standi in the proceedings concerning the permit to use the building.
On 7 October 1996 the Lower Austria Regional Government (Landesregierung) allowed the applicant’s further appeal, quashed the decision and remitted the case to the Municipal Council. It found that the applicant had locus standi as the proceedings were also related to a modification of the building permit. Furthermore, it found that the neighbour’s building did not comply with the building permit and that the permit to use the building was therefore unlawful. Finally, it stated that A.K. had to apply for a new building permit as regards the parts of the barn which had not been built in conformity with the building permit granted.
On 7 November 1996 the Municipal Council, implementing the Regional Government’s decision, allowed the applicant’s appeal of 9 June 1992.
On 29 March 1997 A. K. applied for a new building permit. The applicant lodged objections against this project.
On 18 November 1997 the Mayor held a hearing.
On 19 December 1997 the Mayor granted the building permit. On 5 January 1998 the applicant appealed against this decision. She submitted that the building permit was unlawful and that the legal adviser, who had assisted the Mayor during the hearing, had been biased.
On 2 July 1998 the Municipal Council dismissed the applicant’s appeal. It found that there was no indication that the legal adviser had been biased.
On 17 July 1998 the applicant filed a further appeal.
On 10 February 1999 the Regional Government allowed the applicants further appeal, quashed the decision and remitted the case to the Municipal Council. It found that the Lower Austrian Building Act 1996 (Bauordnung) would be applicable to A. K.’s application for a building permit and not the previous version of the building act. Moreover, it found that A.K.’s application was insufficient and, therefore, the building permit unlawful. On that basis the Municipal Council had to dismiss A.K.’s application. If A.K. would not properly apply for a building permit, proceedings for a demolition order had to be considered. Moreover, it stated that it was not necessary to deal with the complaint about the unfairness of the proceedings as the Municipal Council’s decision should be quashed following this decision.
On 24 March 1999 the applicant lodged a complaint with the Administrative Court against this decision. She complained, inter alia, that the Regional Government had wrongly interpreted the transitional provision of the Lower Austrian Building Act 1996. Since the proceedings had already been pending when this Act came into force, the former Building Act should have been applicable. This complaint had no suspensive effect.
On 11 November 1999 the Municipal Council, implementing the Regional Governments decision of 10 February 1999, quashed the Mayor’s decision of 19 December 1997.
The applicant filed a further appeal against this decision, as she considered that the Municipal Council had misinterpreted the decision of the Regional Government.
On 5 May 2000 the Regional Government allowed the applicant’s appeal, quashed the decision of 11 November 1999 and remitted the case to the Municipal Council. It found that the latter had to take a decision on the merits and was not allowed to remit the case to the Mayor. Further it repeated its finding that the Lower Austrian Building Act 1996 was applicable in the proceedings at issue. The applicant filed a complaint with the Administrative Court against this decision.
On 20 April 2001 the Administrative Court dismissed the applicant’s complaints against the Regional Government’s decisions of 10 February 1999 and 5 May 2000.
On 5 November 2001 A.K. withdraw the application of 29 March 1997 for the building permit and informed the Municipal authorities that he would file a new application for a retroactive building permit for the barn.
The Government submits that A.K. has, at an unspecified date, filed a new request for a building permit. The applicant submits that she was not aware of such proceedings.
Article 132 of the Federal Constitution, in its relevant part, reads as follows:
“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.”


ITEMID: 001-89790
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LOZINSCHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Victor Lozinschi and Ms Maria Rujavniţa, are Moldovan nationals who were born in 1957 and 1954, respectively. They are represented before the Court by Mr Ivan Moscal, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 February 2000 the applicants entrusted their merchandise to a third party for transportation from Turkey to Moldova. On the same date, the third party was arrested at the Moldovan customs on charges of smuggling and the applicants’ merchandise was seized by police as evidence.
By a final judgment of 26 September 2000 the Supreme Court of Justice acquitted the third party and ordered the restitution of the applicants’ merchandise. Since a part of the seized merchandise had been stolen from the police station the applicants brought an action against the Ministry of Interior (“the Ministry”) seeking compensation for the stolen goods.
By a final judgment of 9 October 2002 the Centru District Court ruled in favour of the applicants and ordered the Ministry to pay Mr Lozinschi 1,715 United States dollars (USD) (23,287.52 Moldovan lei (MDL) at the time) in compensation for the stolen merchandise and MDL 6,500 (488 euros (EUR) at the time) in respect of legal costs. It also ordered the Ministry to pay Ms Rujavniţa the equivalent in the national currency of USD 1,445 (MDL 19,617.03) in compensation for the stolen merchandise and MDL 5,000 (EUR 376) in respect of legal costs.
On 12 November 2002 the bailiff received the enforcement warrant.
On 10 April 2003 a bailiff instituted administrative proceedings against the competent administration of the Ministry which had failed to comply with the final judgment in favour of the applicants.
Following the communication of the applications, on 5 December 2007 the Government informed the Court that on 5 December 2005 and on 2 March 2006 Mr Lozinschi had been paid MDL 2,000 (EUR 133) and MDL 26,079.70 (EUR 1,684), respectively, representing the amounts awarded by the judgment of 9 October 2002. They also informed that on 11 November 2005 and on 2 March 2006 Ms Rujavniţa had been paid MDL 2,000 (EUR 134) and MDL 21,187.20 (EUR 1,368), respectively, representing the amounts awarded by the judgment of 9 October 2002. The Government also attached copies of receipts signed by the applicants.
The Government further informed the Court that after having received those amounts the applicants brought separate actions against the Ministry, seeking compensation for pecuniary damage suffered as a result of their impossibility to use their money between October 2002 and March 2006. By a final judgment of 6 April 2007 the Centru District Court ruled in favour of Mr Lozinschi and ordered the Ministry to pay him MDL 10,889.88 (EUR 652) in compensation for pecuniary damage suffered as a result of his impossibility to use his money. On 12 December 2006 the Chişinău Court of Appeal ruled in favour of Ms Rujavniţa and awarded her compensation in the sum of MDL 8,976 (EUR 519). In May and March 2007 a bailiff received the enforcement warrants in respect of the judgments of 6 April 2007 and 12 December 2006, respectively, and on 21 August 2007 the applicants have been paid the amounts due. The Government also submitted copies of the relevant documents.


ITEMID: 001-5888
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: DE BRUIJN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Dutch national, born in 1936 and living in Oudewater. He is represented before the Court by Mr G.H.J. Dolk, a lawyer practising in Rotterdam.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is director and sole shareholder of the company with limited liability “J.F.A.M. De Bruijn Holding B.V.”, which in turn is the sole shareholder of two other companies; “Arcom B.V.” and “Injection Nederland B.V.”. These three companies form one unit for the purposes of the determination of turnover tax (omzetbelasting) and corporation tax (vennootschapsbelasting).
In 1988, the Governmental Audit Department (Rijksaccountantsdienst) carried out an inspection of the business administration of the above three companies. This inspection was closed after possible fiscal offences had been found. The Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen- en Opsporingsdienst; “FIOD”) then started a fiscal criminal investigation. At some unspecified point in time, a declaration of discontinuance of criminal proceedings within the meaning of Article 36 of the Code of Criminal Procedure (Wetboek van Strafvordering) was issued, i.e. a statement to the effect that the case had ended without the institution of any further criminal proceedings.
In the fall of 1994, the fiscal authorities - apparently on the basis of information received that Injection Nederland B.V. would pay out overtime in the form of travel allowances - announced a fiscal inspection of the business administration of this and the affiliated companies. Mr S., an official of the fiscal authorities, inspected these administrations at the premises of the companies’ accountancy firm. This inspection took place during some weeks in November and December 1994 as well as on 20, 21 and 22 March 1995. During the inspection of the administration, Mr A. of the companies accountancy firm asked Mr S. on several occasions whether he had found any particularities, which Mr S. denied.
On 30 March 1995, the FIOD entered the premises of Injection Nederland B.V. and the three companies’ accountancy firm, where they searched for and seized the business administration of Injection Nederland B.V.
At some unspecified point in time, the applicant was summoned to appear on 5 October 1995 before the Dordrecht Regional Court (Arrondissementsrechtbank) on charges of, inter alia, tax evasion and forgery.
In its judgment of 19 October 1995, following adversarial proceedings, the Regional Court convicted the applicant of tax evasion and forgery and sentenced him to 240 hours of community service. It further imposed a six months’ prison sentence, suspended pending a probation period of two years and payment of a fine in the amount of 200,000 Dutch guilders (NLG). Both the applicant and the prosecution filed an appeal with the Hague Court of Appeal (Gerechtshof).
On 19 March 1997, in the presence of the applicant and his lawyer, a hearing was held before the Court of Appeal in the course of which the Court of Appeal heard the applicant and, at the request of the defence, two experts. At having heard the parties’ final pleas, the Court of Appeal closed the trial proceedings and informed the parties that it would pronounce its judgment on 2 April 1997 at 9.30 am.
On 2 April 1997, the Court of Appeal gave judgment in public. The applicant himself was not present at the reading out of the Court of Appeal’s judgment in abridged form, i.e. not containing a statement of the contents of the means of evidence on which it had based the applicant’s conviction.
In its judgment, the Court of Appeal quashed the judgment of 19 October 1995, convicted the applicant of tax evasion and forgery and sentenced him to 240 hours of community service. The Court of Appeal further imposed a six months’ prison sentence, suspended pending a probation period of two years and payment of a fine of NLG 150,000.
The Court of Appeal rejected the argument raised by the defence that the prosecution should be declared inadmissible on the ground that the fiscal authorities had abused their authority (“détournement de pouvoir”) in that the fiscal authorities’ powers of inspection had been exercised for obtaining evidence for use in criminal proceedings thus denying the applicant guarantees under criminal law. According to the text of the abridged judgment, it held on this point:
“It has been argued by the defence that the information obtained from Mr De Bruijn and others was not preceded by a cautioning <i.e. a warning that such information could be used in criminal proceedings>. However, it has not been established during the trial proceedings that, in the context of the inspection <of the business administration>, either a <cautioning> declaration within the meaning of Article 29 of the Code of Criminal Procedure has been made or that Mr De Bruijn and others were summoned to provide information in writing. Therefore it cannot be said that the accused has been denied any guarantees (under criminal law). The short delay, as pointed out by the defence, between the closure of the inspection of the administration and the searches do not lead to another conclusion. With this, and unlike the situation in other cases where a <fiscal> inspection runs simultaneously with a criminal investigation, a clear distinction has been made for the accused of <fiscal> inspection activities and criminal investigation activities entailing the application of coercive measures.”
On 9 April 1997, the prosecution filed an appeal in cassation with the Supreme Court (Hoge Raad).
On 25 April 1997, the applicant addressed a letter to the Hague Court of Appeal, which reads:
“On 2 April 1997, your Court of Appeal has pronounced judgment in my case. My lawyer has requested you on the same day to send him a complete version of the judgment (het uitgewerkte arrest), because I consider filing an appeal in cassation against the judgment, but this is dependent on the reasons and contents of the judgment.
To date I have not received the complete version of the judgment.
I had wanted to contact my lawyer about this, but he cannot be reached as he is staying abroad and will only be back in his office on Monday. As from that day I myself will be gone for two weeks to the Far East.
As the complete version of the judgment is still not available, I wish to inform you that I am filing an appeal in cassation against the judgment <of the Court of Appeal>. I herewith refer to the contents of my lawyer’s letter of 2 April 1997 in which he already informed you of my intention to file an appeal in cassation although making this dependent on the reasons and contents.
I reserve myself the right, when I have taken notice of the reasons, to withdraw this appeal in cassation after I have been able to confer further about this with my lawyer upon my return.
May I request you to take good notice of my request and to confirm me at the address given below the institution from my side of an appeal in cassation?”
On 1 May 1997, the applicant was provided with the complete version of the judgment of 2 April 1997. His attention was drawn to the fact that the time-limit for filing an appeal in cassation had expired on 16 April 1997.
The elements that had been added to the abridged version of the judgment of 2 April 1997 were the means of evidence on which the applicant’s conviction was based, i.e. fiscal declarations made by or on behalf of the companies concerned, and statements taken from the applicant, four employees of Injection Nederland B.V., a fiscal investigation officer involved in the investigation at issue, and fiscal officials having processed fiscal declarations made by or on behalf of the companies concerned.
On 14 May 1997, the applicant was notified of the fact that on 9 April 1997 the prosecution had filed an appeal in cassation against the Court of Appeal’s judgment of 2 April 1997
On 26 June 1997, the prosecution withdrew its appeal in cassation.
In its judgment of 6 January 1998, the Supreme Court noted that the applicant’s appeal in cassation had been filed on 1 May 1997 and held that, since the applicant had attended the trial proceedings before the Court of Appeal in person, his appeal in cassation was therefore inadmissible.
Pursuant to Article 359 §§ 1 and 3 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as “CCP”), a judgment must contain the means of evidence as well as the pertinent facts and circumstances on which a conviction is based.
According to Article 345 § 3 CCP, the court must deliver the judgment within fourteen days following the closure of the trial proceedings, but it may confine itself to pronouncing judgment in abridged form, i.e. not containing the means of evidence and the pertinent facts and circumstances on which a conviction is based.
According to Article 365a CCP, a complete version of the judgment has to be prepared where the convicted person or the public prosecutor lodges an appeal against the judgment. In that case the text of the means of evidence and the pertinent facts and circumstances must be included in the judgment within three months when the person concerned is detained in connection with the facts in issue or, if that is not the case, within four months. The case-file, including the complete judgment, must subsequently be transmitted to the appeal court.
According to Article 365 § 1 CCP, a judgment must be signed within 48 hours after its delivery by the judges who have examined the case. A judgment in abridged form is signed in that form and, as soon as this has happened, the accused or his counsel are able, according to Article 365 § 3 CCP, to inspect it as well as the official records of the trial hearings.
A complete version of the judgment may also be made available upon request of the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Article 365c §§ 1 and 2 CCP).
Under Article 427 CCP, both an accused and the prosecution may file an appeal in cassation against a judgment of a Court of Appeal. Such an appeal is limited to procedural conformity and points of law.
Pursuant to Article 432 § 1 CCP, an appeal in cassation must be filed within fourteen days after the delivery of the final decision by a trial court where the trial proceedings have been conducted in the presence of the accused.
If only the prosecution has filed an appeal in cassation, the accused must be notified of this fact (Article 433 § 1 CCP). An accused may file a subsidiary appeal in cassation (incidenteel beroep in cassatie) within fourteen days after receipt of this notification (Article 433 § 2 CCP). Such a subsidiary appeal is limited to the scope of the principal appeal, i.e. the appeal lodged by the prosecution. In case the principal appeal is declared inadmissible or when it is withdrawn, the subsidiary appeal will not be examined.
Upon receipt of the case-file at the Registry of the Supreme Court, the Registrar of the Supreme Court shall notify the appellant in cassation and the adversary party accordingly (Article 435 § 1 CCP). According to Article 437 § 2 CCP, an accused who has filed an appeal in cassation must submit his complaints in cassation (cassatiemiddelen) within a delay of two months after the serving of the notification referred to in Article 435 § 1 CCP.


ITEMID: 001-110497
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BUCKAL v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Zdravko Bučkal, is a Croatian national who was born in 1968 and is currently serving a prison term in Lepoglava State Prison. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
2. The facts of the case as submitted by the parties may be summarised as follows.
3. On an unspecified date criminal proceedings were instituted against the applicant on charges of theft. He was detained in the Zagreb Prison Hospital (Bolnica za osobe lišene slobode; hereinafter “the ZPH”) in the period between 28 September 2009 and 27 November 2009 when he was transferred to the Zagreb Prison (Zatvor u Zagrebu). On 29 December 2009, following several convictions for theft, the applicant was transferred to the Lepoglava State Prison (Kaznionica u Lepoglavi; hereinafter: the “LSP”) where he is serving his prison term and is expected to remain until 30 April 2013.
4. In the period between 28 September 2009 and 27 November 2009 the applicant was placed in the ZPH, in a room measuring 21 square metres, with five other inmates.
5. According to the applicant, there were no sanitary facilities in the room and it was locked during the night. For that reason, to urinate at night the inmates had to use a plastic bottle. When they needed to defecate at night they had to ring for a guard to be able to go to the toilet. However, the guards would not always answer these calls and then the inmates had to use a plastic bag, in full view of the other inmates in the same room. These bags of faeces were then thrown out of the window.
According to the Government, the sanitary conditions in the ZPH were good. The room where the applicant was accommodated did not have sanitary facilities but whenever an inmate had a need for personal hygiene he was able to call the security guards, who then escorted him to the sanitary facilities. Other general conditions of the accommodation were also good. The room had windows which provided fresh air and natural light; the inmates were served regular meals and they had the opportunity to walk around in the hospital hallways and in the fresh air for two hours during the day.
6. On 29 December 2009 the applicant was transferred to the LSP, where he has been an inmate ever since. He was first placed in a cell measuring 16 square metres, with six other inmates, where he remained until 1 February 2010, when he was transferred to another cell, measuring 33 square metres, with eleven other inmates.
7. On 16 June 2010 the applicant complained to the sentence-execution judge of the Varaždin County Court (Županijski sud u Varaždinu) about the conditions of his detention in the LSP. He alleged that his cell was inadequate and contrary to the guarantees offered by the Enforcement of Prison Sentences Act.
8. On 15 March 2011 the sentence-execution judge of the Varaždin County Court found that the conditions of the applicant’s detention in the LSP were inadequate as regards the individual space offered to the applicant in a cell measuring 33 square metres and accommodating twelve inmates, and ordered the LSP to take the necessary measures to remedy the situation.
9. On an unspecified date in March 2011 the LSP lodged an appeal against that decision with a three-judge panel of the Varaždin County Court.
10. On 19 March 2011 a three-judge panel of the Varaždin County Court dismissed the LSP’s appeal and upheld the decision of the sentence-execution judge.
11. On 13 April 2011 the LSP authorities offered the applicant a move to another cell. The applicant informed a security guard that he did not want to move from his current cell. He also provided a handwritten statement in which he reiterated that he did not want to leave his cell, because it had never been locked and he was satisfied with the accommodation there. He asked to be placed in a semi-open prison regime, which was refused.
12. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003), read as follows:
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully refusing him, or limiting, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by a sentence-execution judge.”
(1) A sentence-execution judge protects the rights of prisoners, supervises lawfulness in respect of the execution of a prison term and ensures equality of prisoners before the law.
(2) A sentence-execution judge takes actions and decisions in respect of:
2. judicial protection of those rights by deciding on appeals lodged against a decision by a prison governor in cases prescribed by this Act...
“(1) Proceedings before a sentence-execution judge are initiated in the first instance at the request of a party or a judge and in the second instance upon an appeal.
(2) A sentence-execution judge acts so as to, according to the basic principles, ensure effective protection of the rights and interests of the prisoner concerned. ... The judge shall allow the parties to submit observations about the facts [presented by] and allegations put forward by the opponent, and to present new facts and call for evidence.
(3) Parties to proceedings are a prisoner and a prison or other penal institutions.
(4) A prisoner has the right to a lawyer of his or her own choice. Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings. When a prisoner does not ensure legal representation within twenty-four hours, the proceedings shall continue without legal representation.
(5) A prisoner may ask for a legal-aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests.
(6) A sentence-execution judge may consult all official documents concerning a prisoner, pay a visit to the prison or other penal institution concerned, and establish the relevant facts in any other manner.
(7) A sentence-execution judge may hold a hearing within appropriate and adequate premises in a prison or other penal institution.”
“A prisoner may lodge an appeal to a sentence-execution judge against decisions of a prison governor within eight days ...”
(1) Parties to the proceedings, a representative of a prisoner and persons listed in Article 380 §§ 1 and 2 of the Code on Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted in the first instance ...
(2) The appeal shall be lodged with a sentence-execution judge, who shall immediately forward it to a judicial panel of a county court. That panel shall decide within eight days ...”