ITEMID: 001-107565
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PYROBATYS, A.S. V RESTRUKTURALIZACII v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, PYROBATYS, a.s. v reštrukturalizácii (“the applicant company”), is a joint-stock company established under the laws of Slovakia with its head office in Batizovce.
The applicant company was represented before the Court by Mr Š. Kseňák, a lawyer practising in Košice.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant company was established in 1995 in the legal form of a limited-liability company with the name of PYROBATYS, s.r.o. It later changed its legal status to that of a joint-stock company under the name of PYROBATYS, a.s. It then entered the process of restructuring, which is reflected in its name, as indicated in paragraph 1 above. The restructuring was concluded in April 2011.
4. On 7 December 1994 two separate contracts were entered into between a joint-stock company, A., and, respectively, the applicant company and a limited-liability company B. (“the contract”).
5. Under the contract A. let property to the applicant company and B. in return for payment of rent. The property consisted of an administration building, factory premises and garages. Leases were concluded for fifty years.
6. On 26 May 1999 the Košice Regional Court (Krajský súd) declared A., which had meanwhile changed its name, insolvent and appointed a receiver.
7. Later in 1999 B. was merged with the applicant company.
8. The applicant company and company A. had the same address, which was formerly also the address of company B. It appears from a publicly available official source (http://www.orsr.sk) that there were also ownership and personal connections between these companies.
9. By a letter of 6 June 2001 A., acting through the intermediary of its receiver, unsuccessfully requested an amicable settlement with the applicant company in respect of an amount of money that was allegedly owed by the latter by way of outstanding rent under the contract.
10. On 1 August 2001 A., acting through its receiver, sued the applicant company before the Poprad District Court (Okresný súd) for payment of rent under the contract.
11. The claimant sought an order for the payment of the equivalent of some 620,000 euros (EUR) and a ruling to the effect that neither party be awarded costs.
12. Despite the claimant’s failure to pay the court fees, the District Court went on to examine the action, inter alia by seeking the applicant company’s written observations in reply to the action and in respect of expert evidence, as well as by twice hearing the action on its merits.
13. To defend the action the applicant company appointed an advocate, for whose services up to 2005 it paid him the equivalent of some EUR 3,840.
14. Meanwhile, on 24 July 2003, the District Court had ordered that the claimant pay the court fees, amounting to the equivalent of some EUR 2,360.
15. On 22 August 2003 the claimant requested an exemption from the obligation to pay the court fees on the ground that, being insolvent, it had no means to pay.
16. On 30 January 2004 the District Court refused the request of 22 August 2003. No copy of the decision was served on the applicant company. Despite a specific written request, to which they have responded, the respondent Government have failed to provide the Court with a copy of this decision and of any other documents or information enabling the Court to ascertain the decision’s content.
17. The decision of 30 January 2004 could have been challenged by way of an appeal on the part of the claimant, in the absence of which it became final and binding on 2 March 2004.
18. By way of an order that was served on the claimant on 10 February 2005, it was again asked to pay the court fees. No payment was made.
19. On 7 March 2005, following a hearing of the action held on the same day, the District Court discontinued the proceedings and ruled that no party was entitled to have its costs reimbursed. The ruling has the procedural form of a decision (uznesenie).
20. The District Court observed that the claimant had neither been granted an exemption from the obligation to pay the court fees nor had it paid the court fees, despite having been ordered to do so. The District Court held that, in such circumstances, pursuant to section 10(1) of the Court Fees Act (Law no. 71/1992 Coll., as amended), the action could not be examined.
21. As to the ruling on costs, the District Court observed that:
- the action had not been withdrawn,
- the situation was not such as to call for an examination of procedural responsibility for the discontinuation of the proceedings (Article 146 § 2 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended - “the CCP”) and for the application of the criterion of success in the proceedings (Article 142 of the CCP),
- Article 150 of the CCP was to be applied, which allowed for moderation of the repercussions of the rules on costs,
- the case was “exceptional and worthy of particular consideration” in terms of Article 150 of the CCP, in view of the circumstances in which the contract had been concluded and the fact that the validity of the contract was being examined in another set of proceedings before the District Court, which had the aim of securing vacant possession of the premises in question.
22. The applicant company appealed against the ruling on costs, claiming compensation in an amount equivalent to some EUR 10,500 in respect of legal representation and costs reimbursable under the applicable statutory rules, plus the costs of the appeal.
23. The applicant company contended that the District Court’s findings of fact were erroneous and that its conclusions were not susceptible of review on account of lack of reasoning.
24. Furthermore, the applicant company submitted that its costs were the responsibility of the claimant, who had provoked them. Article 150 of the CCP could only be applied in situations which fell within the purview of one or more of the remaining rules on costs, if all conditions for their application had been met, but their application would produce an intolerable outcome. In so far as the District Court had referred to the other set of proceedings, in which the validity of the contract was to be examined, their subject matter was in fact not the validity of the contract but the amount of the rent set out in it.
25. On 9 February 2006 the Prešov Regional Court upheld the relevant part of the District Court’s decision. The ruling has the procedural form of a decision (uznesenie), in which the Regional Court found that:
- the District Court had erred in making reference to the criterion of success in the proceedings (Article 142 of the CCP);
- the rule that would normally have had to be applied was that costs are to be borne by the party which had caused the discontinuation of the proceedings (Article 146 § 2 of the CCP);
- the District Court had been right in taking account of the financial standing of both parties;
- in view of the circumstances the question of the validity of the contract, which was being examined in another set of proceedings, could be considered a ground “worthy of particular consideration”;
- by applying Article 150 of the CCP the first-instance court had rightly moderated the repercussions of the application of Article 146 § 2 of the CCP for the claimant, whose only objective was to realise and distribute fairly its estate in insolvency;
- the Court of Appeal was also of the opinion that “the amount of the costs would not have existential consequences for [the applicant company] and would not jeopardise its property holdings”.
26. On 19 May 2006 the applicant company lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution.
27. The complaint was directed against the Regional Court’s decision of 9 February 2006, the applicant company arguing that that decision had violated its rights to a fair hearing, procedural equality and protection of property, as well as prohibition of discrimination.
28. In particular, the applicant company contended that the amount at stake in the proceedings was rather significant from its perspective and that it had accordingly needed to acquire legal representation. It also advanced the following arguments.
29. The Court of Appeal’s conclusion concerning the lack of dramatic effects of the costs ruling on the applicant company was without any foundation in fact and evidence whatsoever and, as such, plainly arbitrary.
30. The claim for reimbursement of costs was independent of the financial standing of the party making it. In so far as financial standing of a party was to be taken into account, it was only the standing of the party that would otherwise be liable to reimburse another party’s costs.
31. As regards the claimant, at the relevant time it had been the owner of real property.
32. There was no statutory provision for exemption of an insolvent claimant from obligation to pay court fees and neither was there any provision exempting it from reimbursement of procedural costs it had itself provoked.
33. In the present case the claimant had been liberated from responsibility for the consequences of its actions and the burden of this responsibility had arbitrarily been placed on the applicant company.
34. In other words, the applicant company’s property holdings had been interfered with, in that it had been denied a proprietary claim without any legal basis.
35. On 14 December 2006 the Constitutional Court declared the complaint admissible.
36. On 29 March 2007 the Constitutional Court found that there had been no violation of the applicant company’s rights in issue.
37. The Constitutional Court observed that the applicant company had no right to a favourable outcome of the litigation it had been a party to. The reasons given by the Regional Court for its decision were such that any arbitrariness was ruled out. On the one hand, it had upheld the reasons given by the District Court, and on the other it had reinforced those reasons by adding further reasons of its own, in particular the reasons related to the financial standing of both parties to the proceedings.
38. In addition, the Constitutional Court observed that the decision not to exempt the claimant from the obligation to pay the court fees was not the subject matter of the present proceedings and that the relevant circumstances might have changed between that decision and the contested decision not to award the applicant company reimbursement of its costs.
39. In so far as the applicant company had contended that the Regional Court had drawn conclusions concerning its financial standing without actually examining that standing, the Constitutional Court reiterated that, as a matter of principle, it had no power to examine whether the ordinary courts had adequately established and assessed the facts. It emphasised, in particular, that “[t]he fact that the applicant company disagreed with the Regional Court’s view could not give rise to a conclusion that the latter was manifestly ill-founded or arbitrary, nor did it provide for a basis for the Constitutional Court to substitute its own legal opinion for that of the Regional Court.”
40. In accordance with its existing doctrine, the Constitutional Court held that since there had been no violation of the applicable procedural rights of the applicant company, by definition there could not have been any violation of the applicant company’s substantive proprietary rights. In those circumstances, there was no basis for the prohibition of discrimination to be applied either.
41. Article 127 provides that:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.”
42. Under Article 138 § 1, at the request of the party concerned, the party to the proceedings may be fully or partly exempt from the obligation to pay court fees where it is justified by the situation of that party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success.
43. A party which has been entirely successful is to be awarded costs necessary for purposeful assertion or defence of its rights against the unsuccessful party (Article 142 § 1). In the event of success in part, the costs are normally to be split proportionally (Article 142 § 2). However, even in the event of success in part, full award of costs may be granted if the party was unsuccessful in merely a negligible proportion or if the scope of the substantive claim depended on expert evidence or judicial discretion (Article 142 § 3).
44. A party which is liable for the necessity of discontinuing proceedings is obliged to reimburse the costs of such proceedings (Article 146 § 2).
45. Article 150, as in force at the relevant time, provides that:
“If there are reasons worthy of particular consideration, the court exceptionally does not need to award reimbursement of costs or their part.”
46. In a commentary on Article 150, with reference to a previous yearbook of judicial decisions, the view was expressed that, when assessing “reasons worthy of particular consideration”, regard should be had to personal, proprietary, income and other circumstances applying to all parties to the proceedings, and also the circumstances which caused the parties to assert their rights before the court, as well as to their attitude in the proceedings (see Občiansky súdny poriadok, Jaroslav Krajčo a kolektív, Eurounion, spol.s r.o., Bratislava 2004, p. 294).
47. The position described in the preceding paragraph forms part of settled case-law (see, for example, judgment (rozsudok) of the Supreme Court in case file no. M Cdo 14/99, judgment of the Constitutional Court of 23 August 2006 in case file no. III. ÚS 53/06, decision (uznesenie) of the Supreme Court of 30 November 2009 in case file no. 4 MCdo 18/2008 and decision of the Supreme Court of 28 January 2010 in case file no. 2 M Cdo 17/2009).
In the decisions quoted, the courts also opined that the application of Article 150 must be rather exceptional and adequately reasoned. The existence of the special circumstances has to be established on the basis of the situation of all parties to the proceedings. It is necessary to take into account not only the situation of the person liable to pay the costs but also the impact of the decision refusing the reimbursement of costs on the property of the party who is entitled to reimbursement under normal circumstances.
48. Court fees are collected, inter alia, for individual procedural steps or for proceedings before the courts, provided that these have to be initiated by an application (section 1(1)).
49. The fee payer (poplatník) is the person making the application for a procedural step which is subject to court fees if the tariff scale provides that the fee is payable on the making of the application (section 2(1)(a)).
50. The duty to pay the court fees arises when the application is made, if made by the fee payer (section 5(1)(a)). In such a case, the court fees become payable at the same time (section 8(1)).
51. If the court fees payable on the making of an application have not been paid, the first-instance court is to order the fee payer to pay the fees within a given period, usually ten days. If the fees have not been paid within this period, the court is to discontinue the proceedings (section 10(1)).


ITEMID: 001-98132
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FRODL v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1957 and is currently detained in Garsten Prison.
7. On 22 December 1993 the applicant was convicted of murder by the Vienna Regional Criminal Court, sitting as an assize court, and sentenced to life imprisonment.
8. On 18 October 2002 the applicant filed an objection (Einspruch) against the local electoral register (Wählerverzeichnis) with the Local Electoral Authority (Gemeindewahlbehörde), complaining that his name had not been entered in the register although he met the general conditions such as minimum age, citizenship and residence in the community. He alleged that his exclusion from the electoral register under section 22 of the National Assembly Election Act (Nationalratswahlordnung) was unlawful as this provision was unconstitutional. He invoked, inter alia, Article 3 of Protocol No. 1 to the Convention.
9. The Local Electoral Authority dismissed the applicant's objection on 30 October 2002 and, referring to section 22 of the National Assembly Election Act, refused to enter the applicant's name in the electoral register. On the same day the applicant appealed.
10. On 7 November 2002 the District Electoral Authority (Bezirkswahl-behörde) dismissed the appeal. It found that the Local Electoral Authority had acted correctly in refusing to enter the applicant's name in the electoral register and that it was not the task of these authorities to express a position on the alleged unconstitutionality of the law applied.
11. On an unspecified date the applicant requested the Constitutional Court to grant him legal aid to lodge a complaint with that court against the District Electoral Authority's decision.
12. On 3 December 2003 the Constitutional Court refused to grant legal aid as it found that the applicant's complaint lacked any prospect of success. It referred in that connection to a previous decision of 27 November 2003 in which it had found that section 22 of the National Assembly Election Act was not unconstitutional.
13. Article 26 of the Federal Constitutional Act, as in force at the time of the events and in so far as relevant, reads as follows:
“(1) The National Council is elected by the nation in accordance with the principles of proportional representation on the basis of an equal, direct, secret and personal vote for men and women who by the date of the election have completed their eighteenth year.
...
(4) All men and women who on the date of the election are in possession of Austrian nationality and have completed their nineteenth year shall be eligible for election.
(5) Forfeiture of the right to vote and to stand for election can only ensue from a court sentence.
...
(7) The electoral register shall be drawn up by the municipalities as part of their assigned sphere of competence.”
14. Section 22 of the National Assembly Election Act reads as follows:
“(1) Anyone who has been convicted by a domestic court of one or more criminal offences committed with intent and sentenced with final effect to a term of imprisonment of more than one year shall forfeit the right to vote. Disenfranchisement shall end six months later. Time shall start to run once the sentence has been enforced and any preventive [detention] measure combined with the deprivation of liberty has been enforced or dropped; if the sentence is enforced with the period of detention on remand being counted towards the sentence, time shall start to run when the judgment becomes final.
(2) If the legal consequences [of a conviction] are suspended under other legal provisions or have lapsed or if all legal consequences or the forfeiture of the right to vote have been pardoned, the convicted person shall not forfeit the right to vote; nor shall he or she forfeit the right to vote if the court has imposed a conditional sentence. If the condition is revoked, disenfranchisement shall take effect from the day that decision becomes operative.”
Section 44 of the Criminal Code, entitled “conditional suspension of concurrent sanctions” (Bedingte Nachsicht bei Zusammentreffen mehrerer Strafen), as in force until 31 December 1996, read as follows:
“(1) If a term of imprisonment and a fine are imposed concurrently, both sanctions shall be conditionally suspended if the relevant requirements are met. If it can be expected that enforcement of one sanction alone or of part of one sanction will suffice, sections 43 [conditional remission of sentence] and 43a [conditional remission of part of a sentence] may be applied.
(2) Confiscation cannot be the subject of conditional remission. If another subsidiary sanction is imposed it shall be conditionally suspended if the main sanction is also conditionally suspended and independent enforcement of the subsidiary sanction is not necessary. The same shall apply in respect of the legal consequences of a conviction.”
By the Criminal Law Amendment Act 1996, Federal Law Gazette no. 1996/762 (Strafrechtsänderungsgesetz 1996, BGBl. Nr. 1996/762), paragraph 2 of Section 44 was replaced by the following wording:
“(2) Subsidiary sanctions and the legal consequences of a conviction may be the subject of conditional remission of a sentence independently from the main sanction.”
15. In its decision of 27 November 2003 (B669/02 Slgnr. 17058) the Constitutional Court examined the constitutionality of the conditions of the disenfranchisement under section 22 of the National Assembly Election Act of a person convicted of aggravated fraud and serving a six-year prison term.
The Constitutional Court held in particular as follows:
“The enactment of legislation providing for disenfranchisement under section 22(1) of the [National Assembly Election Act] on the basis of a final sentence (imposed by a domestic court for one or more offences committed with intent) carrying a term of imprisonment of more than one year lies, in the Constitutional Court's view, within the margin of appreciation afforded to the legislature in matters of election of the legislature. The fact that as a consequence of this rule citizens who are sentenced to just over a year's imprisonment for an offence committed with intent are stripped of their right to vote, whereas citizens who are sentenced to just under one year's imprisonment (for an intentionally committed offence) are not, does not make the legal provision in question unconstitutional (cf. VfSlg. 13.822/1994 mwH). Nor do the factual submissions advanced by the complainant in this connection (for instance with reference to the Youth Courts Act) alter this conclusion in any way.”
In its decision of 27 September 2007 (B1842/06) the Constitutional Court again examined the constitutionality of section 22 of the National Assembly Election Act. The complainant had been convicted of aggravated robbery and kidnapping and sentenced to nineteen and twelve years' imprisonment respectively. In its decision, after referring at length to the judgment of the European Court of Human Rights in the case of Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR 2005IX), it held that in view of that judgment it maintained the findings adopted in its decision of 27 November 2003. It stated in particular as follows:
“In respect of the present complaint it is established that the legal position in the United Kingdom at issue in the judgment in the Hirst case differs decisively from the one in Austria that is relevant here: section 22 of the National Assembly Election Act does not provide for blanket forfeiture of the right to vote in respect of all convicted prisoners, irrespective of the type or seriousness of the offence they have committed or their individual circumstances. The precondition for imposing forfeiture of the right to vote is a final sentence for one or more intentionally committed offences carrying a prison sentence of more than one year; sentences to a fine, sentences to less than one year's imprisonment and conditional prison sentences do not result in forfeiture of the right to vote. Moreover, section 44(2) allows the judge to conditionally suspend the legal consequences of the conviction, including therefore disenfranchisement; in this respect the Austrian legal system also makes legal provision for consideration to be given to the individual circumstances of the person concerned.”


ITEMID: 001-4729
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: D.C., H.S. AND A.D. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are United Kingdom citizens, born in 1947, 1948 and 1955 respectively. The first and third applicants live in London, the second applicant lives in Gloucester. They were each directors of D Limited (“ D Ltd”), a company which traded as a members' agent in the Lloyd's insurance market.
They are represented before the Court by Messrs Titmuss, Sainer Dechert, solicitors, London.
A.
s, may be summarised as follows.
On 29 March 1995 the Secretary of State for the Department of Trade and Industry (“the Secretary of State”) issued an originating summons seeking orders under Section 6 of the Company Directors (Disqualification) Act 1986 (“CDDA”). The affidavit which was filed in support of the summons made a number of allegations: that all three applicants had breached Section 151 of the Companies Act 1985 (“the 1985 Act”), which prohibits a company from giving financial assistance in relation to the purchase of its own shares; that they had acted to the detriment of D Ltd's creditors by permitting an unsecured, interest-free loan which conferred no benefit on D Ltd; that they had knowingly caused and permitted the production of accounts of D Ltd which did not give a true and fair position of the company's financial position, and that they gave security to a bank over payments of Advance Corporation Tax in preference to other creditors.
The applicants filed affidavits in reply, as they were required to do if they wished to challenge the affidavit in support of the Secretary of State's position. They also filed a number of affidavits from third parties who were well-known and respected in the insurance industry, and who deposed to the applicants' fitness to be company directors, their standing in Lloyd's and their good character. The Secretary of State applied to strike out the character evidence under Order 41 rule 6 of the Rules of the Supreme Court, which empowers the court to strike out of any affidavit “any matter which is scandalous, irrelevant or otherwise oppressive”.
The Secretary of State's application for the character evidence to be struck out was granted on 1 July 1996 by Blackburne J. The judge recalled that character evidence was not ordinarily admissible in civil proceedings because it was not probative of any issue. He rejected the applicants' submissions that the evidence was relevant even though there were allegations of dishonesty, and he did not accept that the CDDA proceedings were akin to criminal proceedings by reference to the case of Re Southbourne Meals Ltd [1992] BCC 797. The judge also struck out certain parts of the applicants' own affidavits as conflicting with the rule against hearsay evidence.
A Statement of Undisputed Facts was agreed between the applicants and the Secretary of State so that the CDDA proceedings could be decided under the so-called Carecraft procedure (after the case of Re Carecraft Construction Co. Ltd [1994] 1 WLR 172, in which the procedure was described). The parties agreed that, if the Court did not approve summary disposal of the proceedings, no further reference would be made to the Statement. The applicants accepted, by reference to the undisputed facts set out in the Statement, that a disqualification order against each of them was appropriate for the period contended for by the Secretary of State, namely five years for the first applicant, six years for the second applicant, and four years for the third applicant.
The Statement set out the three remaining matters, with the charge in each case. The first charge was that the applicants did not know that the loans to one company were unlawful as in breach of Section 151 of the Companies Act 1985, but that they ought to have known. The applicants did not dispute the allegation. The second charge was that a series of unsecured, interest-free loans to that company were potentially to the detriment of D Ltd and its creditors. Again, the applicants did not dispute the allegation. The third charge was that the second applicant had caused D Ltd to prefer a bank over other creditors on one specific occasion. The allegation was not disputed.
There followed a statement of mitigation on behalf of each applicant.
The substantive hearing was held before the Vice-Chancellor on 4 February 1997. In his judgment, the Vice-Chancellor held as follows:
“My function, [...], is to consider the contents of the agreed statement of facts and decide, first, whether a disqualification order ought to be made and, second, what the length of the disqualification period should be. It is of course relevant that the [applicants] do not contest that disqualification orders can properly be made. [...] I am not bound by the agreement between the parties that the facts warrant a disqualification order nor am I bound by their agreement as to the length of the disqualification periods. It is open to me if so advised, having regard to the contents of the agreed statement of facts, to form a different view. It would I think be unlikely for a judge to do so but the judicial function requires me to direct my mind to the facts in the agreed statement and to consider what the right order to be made should be.
(...)
[The] Section 151 matter is in my view the most important of the three. The facts which constitute the breach of Section 151 were facts known to each of the three [applicants]. I accept that none was aware at the time that what was being done in advancing moneys to H Ltd. [the related company] did constitute a breach of Section 151, but I would conclude without difficulty, and it is indeed accepted by each of the [applicants], that each ought to have known that that was so. It is important however that I should record that the making of the loans was not done for any personal gain which it was thought might thereby be obtained by any of the directors. It was not accompanied by any want of probity or dishonesty.

(...)
Section 151 is part of the statutory scheme imposed in order to protect the public from the conduct of limited companies carrying on business with the protection of limited liability. It is a provision which is sometimes overlooked and treated as of little account. It never should be so but where that does happen and where, as is often the case, no point resulting from it ever emerges into the public view, no adverse consequences will follow. In the present case it may be a misfortune for the three directors that the Lloyd's litigation drew them into its clutches, brought about the need for the companies to go into insolvent liquidation, brought an independent mind to bear upon the manner in which the company's affairs had been conducted in the past and led to the Section 151 breaches becoming known to the Secretary of State. That is a misfortune for the directors but it does not in itself reduce the seriousness of the Section 151 breaches. I am of the opinion that those breaches justify disqualification orders. This is, of course, an easier conclusion for me to reach than it would have been had that been disputed by the [applicants], which it is not.
The question, therefore, is what length of disqualification period would be appropriate. I repeat that in approaching this question I regard the breaches of Section 151 as serious. I regard the conclusion that disqualification orders are appropriate as a result of these breaches as being a conclusion impelled by a serious misfeasance on the part of the directors in managing the affairs of the company that the Section 151 breaches represent.
(...)
For my part, first because I think that the agreed periods were on the stiff side so far as the [applicants] were concerned, second because I do not regard the post-31st May 1992 loans as constituting a matter which should have any real weight in the balance and, third, because of the invidious comparison that there might appear to be with the treatment of Mr Lines [in a recent case], I think it right that the periods of disqualification should be five years for [the second applicant], four years for [the first applicant] and three years for [the third applicant]. That is one year less than the Secretary of State was contending for but I do not imagine that that will be a reason why the Secretary of State would wish a full trial.”
Costs were ordered against the applicants, and the Vice-Chancellor refused an application by the first and second applicants for an extension of the statutory period of three weeks allowed to the applicants to divest themselves of their directorships. He did, however, indicate that it would be open to them towards the end of that period to return to him with more specific reasons which called for an extension. The first applicant's request to be permitted to continue as director of the trading company of the group for twelve months was granted on 24 February 1997, subject to conditions.
B. Relevant domestic law
Section 1 of the Company Directors Disqualification Act 1986 ("the 1986 Act") reads as follows:
"(1) ... a court may, and under Section 6 shall, make against a person a disqualification order, that is to say an order that he shall not, without leave of the court
(a) be a director of a company, or
(b) be a liquidator or administrator of a company, or
(c) be a receiver or manager of a company's property, or
(d) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company,
for a specified period beginning with the date of the order."
Section 6 of the 1986 Act reads:
"(1) The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied -
(a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and
(b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company."
Section 151 of the Companies Act 1985 reads as follows:
“(1) Subject to the following provisions of this Chapter, where a person is acquiring or is proposing to acquire shares in a company, it is not lawful for the company or any of its subsidiaries to give financial assistance directly or indirectly for the purpose of that acquisition before or at the same time as the acquisition takes place.
(2) Subject to those provisions, where a person has acquired shares in a company and any liability has been incurred (by that or any other person), for the purpose of that acquisition, it is not lawful for the company or any of its subsidiaries to give financial assistance directly or indirectly for the purpose of reducing or discharging the liability so incurred.
(3) If a company acts in contravention of this section, it is liable to a fine, and every officer of it who is in default is liable to imprisonment or a fine, or both.”
Rule 3 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 reads as follows:
“(1) There shall, at the time when the summons is issued, be filed in court evidence in support of the application for a disqualification order, and copies of the evidence shall be served with the summons on the respondent.
(2) The evidence shall be by one or more affidavits, except where the applicant is the official receiver, in which case it may be in the form of a written report (with or without affidavits by other persons) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it.
(3) There shall in the affidavit or affidavits or (as the case may be) the official receiver's report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company.”


ITEMID: 001-70756
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF FEDOTOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Josep Casadevall
TEXT: 8. The applicant was born in 1957 and lives in the town of Borovichi in the Novgorod Region.
9. On 7 May 1999 the prosecutor’s office of the Borovichi District began an investigation into the applicant’s dealings, as it suspected him of using his position as the president of a non-governmental organisation for personal gain. It was alleged, in particular, that he had used a grant of 5,000 US dollars (USD) to purchase computer equipment which he had kept at his home or, in the alternative, unlawfully given to a local law office.
10. On 13 October 1999 the prosecutor charged the applicant and issued an arrest warrant when he failed to attend the prosecutor’s office to countersign the charge sheet.
11. On 1 February 2000 a supervising prosecutor of the Novgorod Region quashed the decision to charge the applicant and cancelled the warrant. She found that the investigation was incomplete because pertinent facts had not been sufficiently examined.
12. On 9 February 2000 the Borovichi Criminal Police put the applicant’s name on the federal list of wanted persons.
13. On 20 March 2000 the applicant was charged again.
14. On 10 April 2000 a senior investigator from the Investigations Division of the Novgorod Regional Police dropped the charges against the applicant because there was no evidence that a criminal offence had been committed. On 4 May 2000 that decision was notified to the applicant’s lawyer.
15. At 9.50 p.m. on 14 June 2000 the applicant was detained in the Izmaylovo Hotel in Moscow on the basis of the arrest warrant issued on 13 October 1999 because his name was still on the federal list of wanted persons.
16. The applicant remained at the police station for twelve hours, until 10 a.m. on 15 June 2000. He was interrogated, searched and allegedly verbally abused by police officers. He was released only after the Novgorod Regional Police had confirmed, by a faxed letter, that the arrest warrant had been cancelled.
17. The officer in command at the police station refused to issue the applicant with a document confirming that he had been detained for twelve hours.
18. At 8.30 p.m. on 6 July 2000 the applicant was detained in Moscow on the basis of the same arrest warrant. He was handcuffed and escorted to the “Rostokino” Police Station of the North-Western Administrative District of Moscow.
19. According to the applicant, he was verbally abused by three police officers, one of whom also hit him in the chest. His requests for permission to make a phone call and to meet the officer in charge were ignored.
20. The applicant was not released until 6.15 p.m. on 7 July 2000, after confirmation had been received that the warrant had been cancelled. According to the applicant, during the entire period he spent in detention he received no water or food and was given no access to toilet facilities.
21. On 18 June 2000 the applicant complained to the Head of the Moscow Police and the Izmaylovskiy District Prosecutor’s Office. On 5 July 2000 the applicant complained to the Moscow City Prosecutor that he had been unlawfully detained and that the district prosecutor had failed to respond to his complaints. On 15 August 2000 he complained to the Prosecutor General about his unlawful detention in July 2000.
22. On 17 August 2000 a deputy director of the Operative Investigations Division of the Moscow Police informed the applicant that his detention on 14 June 2000 was considered lawful as he had been on the federal list of wanted persons. Since the applicant had not had any documents on him to show that the charges had been dropped, the police officers “had taken all appropriate measures to confirm or refute [his] statement about the unlawfulness of [his] detention”.
23. On 18 September 2000 a deputy director of the Public Security Division of the Moscow Police confirmed to the applicant that he had been detained because his name was on the federal list of wanted persons. He maintained that the Moscow police officers had acted lawfully and that on both occasions responsibility for his detention lay with the Novgorod Regional Police as they had failed to update the database of wanted persons in time.
24. On 4 September 2000 the director of the Operative Investigations Division of the Moscow Police advised the applicant that the Borovichi Police Department was responsible for placing people’s names on, and removing them from, the wanted persons’ list.
25. On 25 September 2000 a deputy prosecutor of the Izmaylovskiy District of Moscow wrote to the applicant to say that the blame for his detention lay with the Novgorod Regional police officers who had failed to remove his name from the wanted persons’ list. He added that the Moscow Police had acted lawfully on the basis of the information available.
26. On 31 October 2000 a deputy prosecutor of the Novgorod Region informed the applicant that his name had been deleted from the wanted persons’ list on 5 May 2000 and that notice thereof had been sent to the central database of the Ministry of the Interior on 16 May 2000. However, an investigator, Ms Romanova, had failed to notify the Borovichi Police Department that the arrest warrant had been cancelled on 1 February 2000, and it was that which had led to the applicant’s detention in Moscow and Lipetsk and the violations of his constitutional rights. The deputy prosecutor said that he had requested the director of the Investigations Department of the Novgorod Regional Police to examine the matter and to discipline those responsible for the violations of the applicant’s rights.
27. On 20 October 2000 a deputy director of the Internal Investigations Department of the Novgorod Regional Police wrote to inform the applicant that disciplinary proceedings were pending against the investigator who had failed to notify those concerned in time that the arrest warrant had been cancelled.
28. On 7 December 2000 an acting prosecutor of the Novgorod Region informed the applicant that Ms Romanova had been reprimanded for unspecified violations of the rules of criminal procedure.
29. After the application had been communicated to the respondent Government, the Ostankinskiy Interdistrict Prosecutor’s Office carried out an inquiry into the applicant’s complaints of 2000. On 29 March 2004 it issued a decision not to initiate criminal proceedings in connection with his allegations of ill-treatment because there was no evidence of criminal conduct by any of the police officers. On 20 April 2004 the Moscow City Prosecutor quashed that decision and ordered a further inquiry.
30. According to the Government, further to a recommendation (представление) issued on 20 August 2004 by the Ostankinskiy Interdistrict Prosecutor’s Office, the Information Centre of the Ministry of the Interior reinforced the procedures for ensuring that the federal list of wanted persons was regularly updated.
31. In early 2001 the applicant sued the Ministry of Finance, the Prosecutor General’s Office and the Ministry of the Interior. He claimed compensation for pecuniary and non-pecuniary damage in connection with the unlawful criminal proceedings and arrest.
32. On 29 August 2001 the Basmanniy District Court of Moscow requested the “Rostokino” police station to provide the papers relating to the applicant’s detention on 6-7 July 2000, including the records of his arrest and body search and an extract from the custody record. It does not appear that the requested documents were provided.
33. On 18 September 2001 the Basmanniy District Court delivered judgment. It found that the criminal proceedings against the applicant had been unlawful because they were ultimately discontinued for lack of evidence of a criminal offence. Having regard to the fact that “[the applicant] had given an undertaking not to leave the town and had not actually been taken into custody”, the District Court awarded him 3,000 Russian roubles (RUR, 110 euros (EUR)) in compensation for non-pecuniary damage. It further awarded him RUR 14,976 for legal costs incurred in the criminal proceedings and RUR 462.14 for costs in the civil proceedings. The total amount came to RUR 18,438.14 (approximately EUR 675). The remainder of the applicant’s claims were dismissed.
34
35. On 16 January 2002 the Moscow City Court upheld the judgment of 18 September 2001. It held that the applicant had not advanced any new arguments other than those that had been already examined by the District Court.
36. On 20 January 2002 the applicant applied to the Basmanniy District Court for a writ of execution. Having received no reply, he wrote to the president of the court and to the Moscow City Prosecutor on 7 March, 15 May and 19 June 2002 to complain about the delay.
37. On 27 May 2002 the President of the Basmanniy District Court replied to the applicant, advising him that the writ had been sent to the court bailiffs on 18 March 2002 for enforcement.
38. On 19 June 2002 the applicant received a writ of execution for RUR 17,976. On 26 and 27 June 2002 he complained to the Presidents of the Basmanniy District Court and the Moscow City Court that the amount in the writ was less than the award in the judgment.
39. On 26 June 2002 the applicant requested the President of the Basmanniy District Court to rectify the error in the writ. He repeated his request on 29 July 2002, but to no avail, and so on 2 September 2002 sent a complaint to the Moscow City Court.
40. On 16 July 2002 the applicant sent the writ of execution for RUR 17,976 to the court bailiffs.
41. By a letter of 24 September 2002, the President of the Basmanniy District Court confirmed that the writ had been sent to the court bailiffs on 18 March 2002.
42. On 22 November 2002 the bailiffs’ service of Interdistrict Office no. 2 of Moscow returned the writ for RUR 17,976 to the applicant, advising him to submit it directly to the Ministry of Finance.
43. Having received no response to his requests for rectification of the amount stated in the writ, the applicant renewed his request to the Basmanniy District Court to that effect on 19 September 2003 and returned the writ containing the error.
44. On 9, 10 and 15 February and 3 and 20 March 2004 the applicant wrote to the President of the Supreme Court, the Moscow City Prosecutor and the Basmanniy District Prosecutor to complain about the Basmanniy District Court’s persistent refusal to rectify the writ.
45. On 10 April 2004 the applicant received by post a writ of execution for RUR 18,446.54 dated 30 March 2004. On 16 April 2004 he submitted it to the Ministry of Finance for execution.
46. In a letter of 14 April 2004, the Supreme Court claimed that on 15 October 2003 a corrected writ of execution had been sent to the court bailiffs’ service.
47. By a letter of 6 May 2004, the Moscow Main Directorate of the Ministry of Justice informed the applicant that the bailiffs’ service had searched its records since 1 January 2002 and had no trace of receiving a writ of execution for RUR 18,446.54.
48. On 15 March 2004 the applicant requested the Basmanniy District Court to adjust the award in the judgment of 18 September 2001 in line with inflation. On 24 November 2004 the court granted his claim in part, awarding him RUR 6,269 on account of inflation and RUR 6,000 in legal costs.
49. On 25 November 2004 the Ministry of Finance returned the writ to the applicant, saying that it was defective.
50. On 16 December 2004 the Basmanniy District Court issued a new writ and submitted it directly to the Ministry of Finance. In his letter to the applicant, the court president acknowledged that the previously issued writs had not conformed to the law on enforcement proceedings.
51. At the date of the last communication from the applicant of 27 February 2005, the judgment of 18 September 2001, as supplemented by the judgment of 24 November 2004, had not yet been enforced.
52. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
Under the RSFSR Code of Criminal Procedure (in force until 1 July 2002), a decision ordering placement in custody could be taken by a prosecutor or a court (Articles 11, 89 and 96).
53. The Russian Civil Code provides for strict liability (ответственность независимо от вины) of the State treasury for damage incurred through being unlawfully held in custody (Article 1070 § 1).
54. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as follows:
“42. Custody by the police is in principle of relatively short duration ...However, certain elementary material requirements should be met.
All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”
The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47).
55. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) read, in so far as it concerned the conditions of detention in administrative-detention cells located within police stations, as follows:
“25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic.
The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service.
Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”
VIOLATED_ARTICLES: 5
6
P1
VIOLATED_PARAGRAPHS: 5-1
5-5
6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-23334
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SAN JUAN v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Daniel San Juan] is a French national who was born in 1947 and lives in Drancy, in the département of Seine-Saint-Denis (France). He was represented before the Court by Mr Olivier de Nervo, of the Conseil d’Etat and Court of Cassation Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has worked as an accountant for various accountancy firms since 1 July 1965. In 1995 he applied to be registered as a chartered accountant (a member of the ordre des experts-comptables, the Association of Chartered Accountants) on the basis of his professional experience, under section 7 bis of Ordinance no. 45-2138 of 19 September 1945.
The procedure laid down in the Ordinance provides for the possibility of becoming a chartered accountant on the basis of professional experience; candidates must demonstrate that they have fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities. Applications are considered by a regional committee, and unsuccessful candidates may appeal to the National Committee set up to implement section 7 bis of the Ordinance of 19 September 1945 (“the National Committee”).
On 14 May 1996 the Ile-de-France regional committee refused the applicant’s application on the ground that he had not produced certificates attesting that he had five years’ experience in posts or on assignments entailing substantial administrative, financial and accounting responsibilities. It held that, as a result, the applicant did not “fully satisfy the requirements laid down in the relevant provisions” and could not “be regarded as having acquired experience comparable to that of a well-qualified chartered accountant, as is required by section 7 bis of the Ordinance of 19 September 1945”.
The applicant appealed against that decision to the National Committee, arguing that the assessment of his professional experience had been incorrect and that the regional committee had infringed the principle of equality of opportunity in prematurely refusing his application. On 18 November 1996 the National Committee dismissed the applicant’s appeal, giving the following reasons for its decision:
“The candidate was considered on the basis of the application he submitted.
As a consequence of an appeal, the National Committee rehears the case as a whole. At that stage, the candidate had the opportunity to produce additional information in support of his appeal. Consequently, the procedure followed did not give rise to any discrimination against him.
In order to satisfy the first requirement laid down in the Decree cited above, candidates must have discharged accounting or auditing duties on a regular basis for fifteen years.
From an examination of the candidate’s application it appears that he satisfies that requirement.
In order to satisfy the second requirement, candidates must have assumed substantial responsibilities in three fields – administrative, financial and accounting – for five years. To qualify as substantial, such responsibilities must be exercised within large institutions that raise complex problems, and must be accompanied by decision-making powers enabling the person in whom they are vested to commit the firm by which he is employed and to influence its future.
As evidence of the responsibilities he has assumed, the candidate has produced various certificates.
Only those from SA LSVO and Socofam are signed by authorised persons.
The certificate issued by Mr Le Petit, the chairman of SA LSVO, states that the candidate performed the duties of a management auditor and did not have any real decision-making powers.
The candidate performed the duties of a managing director for two years and seven months, as is attested by Mr P. Bouquet, the current managing director of SA Socofam.
With regard to the duties performed within the Ile-de-France group ... and subsequently within the Sigafrance company ... and the Socofam company ..., the documents submitted do not give a sufficiently clear indication of the extent of the powers enjoyed by the candidate in administrative and financial matters; in that respect, there is no proof of such powers having been delegated to him. Moreover, the documents and organisation charts giving details of those duties have been drawn up by the candidate himself and, in some cases, are signed by persons outside the companies or by former managers and cannot be treated as employers’ certificates.
As regards the remainder of the candidate’s career, there is no evidence in his application that the posts or assignments concerned have entailed responsibilities of the kind required by the statutory provisions.
Accordingly, he is unable to show that he has at least five years’ experience in posts entailing substantial administrative, financial and accounting responsibilities.
It follows from the foregoing that Mr San Juan does not satisfy the second requirement laid down in Article 2 § 3 of the Decree of 19 February 1970.”
The applicant applied to the Conseil d’Etat to have the National Committee’s decision set aside. He argued, in particular, that the proceedings before the National Committee did not satisfy the requirements of Article 6 § 1 on account of their secret and anonymous nature. He submitted in that connection that the committee’s decision did not contain any indication of its composition, so that its members remained anonymous. He also observed that the committee had given its decision without holding a public hearing and without hearing evidence from him.
In a judgment of 6 March 1998 the Conseil d’Etat dismissed the application on the following grounds:
“Outward legality
... No provision of a statute or of regulations has conferred the status of a court on the National Committee set up to implement section 7 bis of the Ordinance of 19 September 1945. The provisions cited above are therefore not applicable to it.
Internal legality
By Article 2, paragraph 3, of the Decree of 19 February 1970, as amended, registration as a chartered accountant is conditional on the candidate’s having ‘fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities’.
It does not appear from the documents in the file that the National Committee erred in law or made a manifest error of assessment in holding that Mr San Juan, who has practised in various companies and accounting firms since 1965 and satisfies the above-mentioned requirement of having fifteen years’ experience, did not have at least five years’ experience in exercising substantial responsibilities of the kind referred to in the Decree of 19 February 1970 cited above. Mr San Juan accordingly has no grounds for seeking the setting aside of the decision of 28 November 1996 in which the National Committee refused him leave to apply to be registered as a chartered accountant.”
Section 7 bis of the Ordinance of 19 September 1945 provides:
“Persons who have carried on an occupation entailing accounting or auditing duties and who have consequently acquired experience comparable to that of a well-qualified chartered accountant, may be granted leave to apply ... to be registered as a member of the ordre with the status of chartered accountant. ...”
Article 2 of the Decree of 19 February 1970, as amended by Decree no. 85-927 of 30 August 1985, provides:
“Persons who are covered by section 7 bis of Ordinance no. 45-2138 of 19 September 1945, cited above, and are at least forty years of age may apply to be registered as a member of the ordre with the status of chartered accountant if they satisfy one of the following conditions:
1. they are certified accountants registered either on a list of company auditors or on a list of court experts in accountancy;
2. they are certified accountants with fifteen years’ experience in an occupation entailing the frequent exercise of substantial responsibilities in each of the following three fields:
(a) accounting;
(b) verifying accounts prepared by staff under their responsibility; and
(c) analysing the position and functioning of firms from an economic, legal and financial standpoint; or
3. they have fifteen years’ experience in accounting or auditing, including at least five years in posts or on assignments entailing substantial administrative, financial and accounting responsibilities.”


ITEMID: 001-72291
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MUHARREM ASLAN YILDIZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 4. The applicant was born in 1954 and lives in Mersin.
The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicant in İçel in order to build a motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to him when the expropriation took place.
5. Following the applicant’s request for increased compensation, on 22 February 1995 the Mersin Civil Court of First Instance awarded him additional compensation of 204,787,320 Turkish liras (TRL) (approximately 3,900 euros (EUR)), plus interest at the statutory rate applicable at the date of the court’s decision, running from 14 December 1993.
6. On 16 December 1997 the Court of Cassation upheld the judgment of 22 February 1995.
7. On 16 April 1998 the administration paid the applicant TRL 545,269,000 (approximately EUR 2,020) in additional compensation, together with interest.
8. On 21 January 1998 the decision of the Court of Cassation was served on the applicant.
9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).


ITEMID: 001-108014
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VENIOSOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1-c;Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 5. The applicant was born in 1968 and lives in Stary Krym.
6. In February 2005 the Prosecutor’s Office of the Autonomous Republic of Crimea (ARC) instituted criminal proceedings against several police officers, including the applicant, on charges of abuse of position.
7. On 28 February 2005 the applicant was arrested in connection with these proceedings. In the course of the proceedings the applicant was detained in various detention facilities, including the Feodosiya Temporary Detention Centre (“the Feodosiya ITT”), where he was held from 25 August 2005 to 5 January 2006 and from 25 January to 5 February 2006.
8. On 3 March 2005 the applicant was brought before the Central District Court of Simferopol (the “District Court”) which ordered that more information on the applicant be obtained to decide on his further detention. The District Court also decided that, pending the collection of this information, the applicant’s detention should be extended until 10 March 2005.
9. On 10 March 2005 the District Court extended the applicant’s detention for two months. It noted, in particular, that the applicant had been charged with numerous counts of abuse of position, connected to illtreatment of individuals and unlawful entry into residential premises. Regard being had to the nature of the charges and to the applicant’s official status, there was a high risk that he would engage in new criminal acts, put pressure on witnesses or obstruct the investigation in other ways.
10. On 22 March 2005 the Court of Appeal of the ARC (“the Court of Appeal”) upheld this decision.
11. On 26 April 2005, following a request by the prosecutors’ office, the District Court extended the applicant’s detention for another two months, noting that the investigation had still been unable to collect all the evidence, and that the applicant’s personal situation had not changed.
12. On 17 May 2005 the Court of Appeal upheld this decision.
13. By 24 June 2005 the investigation had been completed and the prosecutors’ office referred the case to the Chairman of the Court of Appeal to determine which trial court would consider the applicant’s case.
14. On 26 June 2005 the applicant requested the governor of the detention facility to release him in view of the fact that the court order for his detention had expired. His request was refused, with reference to the fact that the pre-trial investigation was finished and the bill of indictment had been transferred to the judicial authorities.
15. On 4 July 2005 the Chairman of the Court of Appeal referred the case to the Feodosiya Town Court (hereafter “the Town Court”) for trial.
16. On 10 August 2005 the Town Court committed the applicant for trial. According to the Government, on the same date the court upheld the applicant’s detention, having found no reasons to release him. According to the applicant, the court did not decide on the issue of extension of his detention on that date. The parties did not provide a copy of the relevant Town Court decision.
17. On 4 January 2006 the Town Court, having examined the case in the course of adversarial proceedings, in which the applicant was represented by an advocate of his choice, found the applicant guilty of several counts of abuse of authority and sentenced him to three years and six months’ imprisonment. The court also prohibited the applicant from occupying a law-enforcement post for three years.
18. On 25 May 2006 the Court of Appeal upheld the judgment of 4 January 2006.
19. On 30 November 2006 the Supreme Court dismissed a cassation appeal by the applicant as unsubstantiated.
20. From 25 August 2005 to 5 January 2006 and from 25 January to 5 February 2006 the applicant was held in the Feodosiya ITT (Temporary Detention Centre).
21. According to the applicant, during his stay in the Feodosiya ITT he shared a five-square-metre cell with four to seven other detainees. The toilet and washstand in the cell were not separated from the living quarters. The cell had no windows, no table and no chairs, and the ventilation was unsatisfactory. For sleeping arrangements the cell had a wooden platform. Once every ten to twelve days the detainees were taken out for half an hour’s exercise. At all other times they remained confined to their cells. Before he was detained, the applicant had been suffering from hypertension. While he was in detention his health worsened to the point that on two occasions an ambulance had to be called.
22. On 18 July 2006 the Prosecutors’ Office of the ARC notified the applicant, in response to his complaints about the conditions of his detention, that disciplinary action had been taken against the Feodosiya ITT governor and three officers for unspecified breaches of the law.
23. On 19 July 2006 the ARC Department of the Ministry of Interior acknowledged to the applicant that the Feodosiya ITT had not been properly equipped and that the detainees had been taken out for exercise only once every ten to twelve days because of the overcrowding of the ITT facilities. They noted that the ITT building had been constructed in 1944 and had not undergone any capital renovations since that time. They also noted that the overcrowding of the ITT had been due to restrictions on the admission of detainees by the Simferopol no. 15 Pre-Trial Detention Facility (SIZO).
24. According to the Government, the Feodosiya ITT had seventeen cells, capable of accommodating thirty-seven inmates. All the cells were located in the basement and had no windows. However, the cells were well lit by electric light, enabling the detainees to read, equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platforms, tables, toilets and wash-stands. The detainees were provided with pillows and mattresses. While he was in detention, the applicant was provided with meals, time for outdoor exercise and access to washing facilities. On two occasions (15 and 16 November 2005) an ambulance was called to examine the applicant at his request. He was diagnosed with a respiratory infection and hyperthermia and found not to need in-patient treatment. During his entire stay in the Feodosiya ITT, the applicant was examined regularly by medical professionals and made no other health complaints except those mentioned above.
25. The relevant domestic law concerning pre-conviction detention can be found in the judgment in the case of Molodorych v. Ukraine, no. 2161/02, §§ 57-58, 28 October 2010).
26. The relevant international material concerning the conditions of detention is summarised in the judgment in the case of Melnik v. Ukraine (no. 72286/01, § 47-49, 28 March 2006).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-70306
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ZABOR v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Stanisław Zabor, is a Polish national who was born in 1954 and lives in Wrocław.
On an unspecified date the applicant’s mother was granted, by way of an administrative decision, a protected tenancy of an apartment located in a house owned by the municipality and subject to the compulsory management of the local housing administration. The applicant lived in this apartment since he his birth .
In 1999 his brother and father, who apparently had been in conflict with the applicant, instituted proceedings to have the applicant’s name deleted from the local register of inhabitants on the ground that he did not live in the apartment. On an unspecified date the housing administration refused their request.
On 13 January 2001 the applicant’s mother died. The applicant requested that the housing administration conclude a tenancy agreement with him as her mother’s legal successor in respect of the tenancy contract, as provided for by law. This was refused by a letter of 10 July 2001 on the ground that the applicant did not comply with the requirement for such a succession set out by Article 8 of the 2001 Law, since he did not live in the apartment. At the same time the housing administration instituted proceedings to delete the applicant’s registration from the list of inhabitants of the building. On 27 February 2001 the administration reiterated their refusal to conclude a tenancy agreement with him.
On 17 April 2002 the Mayor of Wrocław gave a decision striking the applicant’s name from the register of inhabitants of the building concerned, considering that it transpired from the evidence that he had not been living there. On 10 June 2002 this decision was upheld.
On 24 July 2002 the applicant brought a civil action against the municipality under Article 691 of the Civil Code, regulating conditions of succession to the right of lease of apartments, including protected tenancies, claiming a declaration that he was a legal successor of the former tenant of the apartment, his mother.
On 6 November 2002 the Wrocław District Court, by way of a judgment in default, allowed his claim. The housing administration lodged an objection against this judgment.
On 7 March 2003 the Wrocław Regional Court, having reconsidered the case, upheld the judgment and confirmed that the applicant was a successor in respect of the tenancy contract.
On 5 May 2003 the applicant requested the Wrocław Municipal Office to take steps to make the judgment operational by concluding a tenancy agreement with him.
In a letter of 18 July 2003 the municipality stated the following:
“In reply to your letter and with reference to the attached judgment of 7 March 2003, I should inform you that under that judgment you became your mother’s successor in respect of the tenancy contract, but that it is impossible to conclude such a contract with you.
This is so because an internal enquiry showed that you had not been living in that apartment on a permanent basis. This has already resulted in the decision of the Mayor striking your name out of the list of inhabitants of the building.
Consequently, pursuant to Article 11 (3) 1. of the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code, the municipal office hereby gives six-months notice in respect of the contract which you obtained under the judgment referred to above, the contract expiring on 29 February 2004. The factual basis for the termination of contract is the fact that you have not been living in this apartment for a period longer then twelve months. “
The applicant appealed against this letter, the legal status of which was uncertain, in that it was not clear whether it was an administrative decision; he complained that the municipality had refused to comply with the final judgment of the civil court.
On 2 September 2003 the Local Government Board of Appeal of the Wrocław Region informed the applicant that it was not competent in housing matters, and that the letter complained of was not an administrative decision in any event, against which an appeal to a higher authority would lie.
On 9 December 2003 the applicant lodged an action with the Wrocław District Court in which he sought a declaration under Article 189 of the Code of Civil Procedure that a contractual tenancy relationship existed between him and the municipal office. These proceedings are pending.
From 1945 on, housing matters were subject to a high degree of state control under successive provisions of housing legislation. The most important characteristic of this system, a so called “special lease scheme”, was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid controlled rent and the owners could not terminate lease by giving notice to the tenant. The special lease scheme was also applicable to houses owned, until 1990, by the State Treasury, and after the reform of the local administration, by the municipalities.
Although “the special lease scheme” was abolished under the 1994 Act, the system of protected tenancy is still applicable to tenants who were allocated their apartments on the basis of previous administrative decisions.
Under transitional provisions of the 1994 Law, protected tenancies which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for an indefinite period and governed by the provisions of the 1994 Law. The 1994 Act maintained, albeit with slight modifications of wording, the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease.
Until the entry into force of the 1994 Act the right to succession of a protected tenancy was regulated by Article 691 of the Civil Code, which provided that in case of the death of a tenant, his descendants had a right of succession in respect of the tenancy, if they lived in the same apartment at the time of the original tenant’s death.
The 1994 Act repealed this provision and replaced it by Article 8 of the Act, which read:
“1. In case of the death of a tenant and on condition that they lived in the household of a tenant until his death, his descendants, ascendants, adult siblings, adoptive parents or adopted children and a person who has lived with a tenant in de facto marital cohabitation, shall succeed to the tenancy agreement and acquire the tenant’s rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision does not apply to persons who, when the [original] tenant died, had title to another residential dwelling.
2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.”
In 2001 parliament adopted a new law governing housing matters and relations between landlords and tenants. The Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”) entered into force on 10 July 2001. It repealed the 1994 Act and reinserted Article 691 into the Civil Code.
Under Article 11 (3) 1 of that Act, the owner of apartment can give six-months notice on the tenancy contract if the tenant has not been living in that apartment for more than twelve months.
The obligation for Polish citizens residing in Poland to register their permanent address in a municipality’s register of inhabitants is stipulated in Article 5 of the National Identity Cards and Registration of Persons Act 1974 (Ustawa o ewidencji ludności i dowodach osobistych z 10.04.1974).
Under Article 6 of the 1974 Act, the notion of “living permanently” implies residing at a given address with the intention of making it the principal centre of one’s vital interests. Article 9 (2) of the 1974 Act provided that: “a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment (or other dwelling premises) concerned.” On 27 May 2002 the Polish Constitutional Court declared Article 9 (2) of the 1974 Act unconstitutional and, subsequently, this provision was repealed with effect from 19 June 2002. As a result of the judgment of the Constitutional Court, a certificate to the effect that a person is entitled – within the civil law sense of the term - to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered.


ITEMID: 001-100424
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PREHN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger
TEXT: The applicant, Mr Heiko Prehn, is a German national who was born in 1962 and is currently in preventive detention in Berlin Tegel Prison. He was represented before the Court by Mr C. Tümmler, a lawyer practising in Berlin.
On 12 September 1996 the Berlin Regional Court convicted the applicant of two counts of rape. It sentenced him to ten years' imprisonment and ordered his preventive detention (Article 66 of the Criminal Code, see Relevant domestic law below).
On 13 April 2005 the applicant requested the Berlin Regional Court to suspend the remainder of his sentence, which he would have served fully on 12 March 2006, and his preventive detention on probation.
The applicant was initially represented by counsel K.-B. By letter of 17 January 2006 he requested the Regional Court to appoint counsel B., practising in Bremen, to represent him in the proceedings, arguing that K.-B. was not qualified in respect of the subject-matter of the proceedings whereas counsel B. was specialised in execution of sentences and sexual offences.
On 16 February 2006 the presiding judge of the Regional Court dismissed that request, arguing that the applicant was already represented by counsel and that there was no reason to appoint counsel who was not practising within the court's judicial district.
On 21 February 2006 the presiding judge of the Berlin Regional Court informed the applicant that counsel K.-B. had withdrawn from the case and that it intended to appoint counsel K., practising in Berlin and specialised in criminal law, to represent him (Article 140 § 2 of the Code of Criminal Procedure, applied by analogy; see Relevant domestic law below). The applicant was invited to either give grounds if he objected to that appointment, to propose a different counsel practising in Berlin as officially appointed counsel or to mandate a new counsel.
By letter dated 20 February 2006, counsel B. submitted a power of attorney and applied for access to the case-file and to be officially appointed as the applicant had insufficient means to afford a lawyer.
Having received that letter, the presiding judge of the Regional Court asked counsel B. by letter dated 23 February 2006 whether he intended to act as the applicant's mandated counsel; otherwise, the court would appoint a lawyer practising in Berlin. The presiding judge further refused B. access to the case-file because it was not sure whether the files would be available for the hearing scheduled on 13 March 2006 if they were sent to Bremen after having been returned by the expert.
By a decision of the same day, the presiding judge of the Regional Court dismissed the applicant's fresh request to appoint counsel B. to represent him. He found that there was nothing to indicate that a firm relationship of trust had developed between them which would justify appointing B. despite the considerable additional costs involved.
On 28 February 2006 the presiding judge of the Berlin Regional Court, having received no objections by counsel B., appointed counsel K. to act for the applicant.
On 7 March 2006 the Public Prosecutor General, in his submissions on the applicant's appeal against the decision of 23 February 2006, took the view that the applicant's appeal was well-founded as the Regional Court should have appointed him counsel B. as he had requested. The Public Prosecutor General considered that in cases in which the detainee, as in the present case, had proposed to appoint him defence counsel who met the professional requirements and was able to guarantee a proper conduct of the proceedings, the court had to appoint him the counsel he had chosen. This equally applied in cases in which the defendant had chosen a counsel who was not practising within the court's judicial district. Weighing the interests involved, the interest in proximity was outweighed by the defendant's interest in being defended by a counsel he particularly trusted in. The distance between Berlin and Bremen, having regard to the good traffic connections and modern means of communication, did not jeopardize a proper defence and conduct of the proceedings.
On 13 March 2006 the Berlin Court of Appeal dismissed the applicant's appeal against the Regional Court's decision of 23 February 2006 refusing to appoint him a counsel not practising within the court's judicial district as ill-founded.
It agreed with the Public Prosecutor General's view that the applicant had to be represented by counsel in the proceedings at issue pursuant to Article 140 § 2 of the Code of Criminal Procedure, applied by analogy, as the proceedings were complex, as the decision on the applicant's preventive detention was of importance and as the applicant could not defend himself in person in the hearing in which an expert report on him had to be examined.
However, unlike the Public Prosecutor General, the Court of Appeal considered that the Regional Court had not been obliged to appoint the applicant counsel B., who was not practising within its judicial district. The appointment of defence counsel named by the detainee required, as a rule, that he proposed a lawyer admitted to practise within the court's judicial district (Article 142 § 1 of the Code of Criminal Procedure; see Relevant domestic law below). This rule was adequate because defence counsel's proximity to the court was essential in order to conduct a proper defence.
It facilitated the conduct of the proceedings and counsel's communication with his client in detention – for which modern methods of communication did not make a difference – and with the other parties to the proceedings. The lack of proximity was a significant ground not to appoint a lawyer chosen by the detainee for the purposes of Article 142 § 1 of the Code of Criminal Procedure. Counsel B. resided more than 100 kilometres away from the court and from the prison in which the applicant was detained.
The Court of Appeal further found that an external counsel could only be appointed in exceptional cases, in which there was a particular relationship of trust between him and the detainee. However, there was nothing to indicate and the applicant failed to substantiate that there was a firm relationship of confidence between him and counsel B. The applicant had never met in person counsel B. who had never previously defended him. The fact that counsel B. had applied for access to the case-file did not suffice to demonstrate such a relationship of trust. There was also nothing to indicate that counsel B. was more experienced in execution matters than counsel K. who had been appointed to represent the applicant.
On 4 April 2006 the presiding judge of the Berlin Regional Court dismissed the applicant's fresh request dated 24 March 2006, made in person, to appoint counsel B. to represent him in the proceedings concerning the execution of his sentence. Relying on Article 140 § 2 of the Code of Criminal Procedure, applied by analogy, the court found that the applicant had already been appointed counsel K. for the proceedings at issue and that there were no apparent grounds to appoint him another counsel.
On 18 May 2006 the Berlin Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant's appeal.
The Berlin Court of Appeal disagreed with the applicant's view that he was not represented by counsel in accordance with the requirements of a fair trial. It further rejected counsel B.'s argument that the court's appointment of counsel K. was arbitrary in view of what was at stake in the proceedings, the applicant's preventive detention.
The Court of Appeal expressly endorsed the reasons it had given in its decision of 13 March 2006 (see above), in which it had already dismissed the applicant's request to appoint counsel B. by a final decision. These reasons also applied if the applicant had to be understood now to have requested the appointment of counsel B. to a more limited extent, namely only in order to appeal against a decision taken on his challenges for bias. Having regard to the complexity of the proceedings, the applicant had been appointed counsel K. for the entire proceedings concerning his preventive detention. As the Court of Appeal had dismissed the applicant's request to be appointed counsel B. by its final decision of 13 March 2006, the applicant's new request to be appointed counsel B. for the proceedings or for parts thereof was inadmissible.
On 5 June 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Berlin Court of Appeal of 18 May 2006. He complained about the failure to appoint him the counsel of his choice, B., and argued that this had deprived him of an effective defence and had led to his prolonged detention beyond 12 March 2006 when he had fully served his sentence.
On 27 June 2006 the Federal Constitutional Court declined to consider the applicant's constitutional complaint as it lacked prospects of success (file no. 2 BvR 1203/06).
The Federal Constitutional Court reiterated that the right of a defendant to a fair trial comprised the right, aimed at ensuring equality of arms, to defend himself by counsel of his own choosing. Therefore, if the requirements of Article 140 of the Code of Criminal Procedure were met, the defendant should be appointed the lawyer he or she trusted in unless there were important grounds not to do so. However, a defendant could not claim to be represented by a counsel proposed by him in all circumstances.
The Federal Constitutional Court found that the impugned decision of the Berlin Court of Appeal of 18 May 2006 complied with these constitutional requirements. In its thoroughly reasoned decision of 13 March 2006, to which the impugned decision had referred, the Court of Appeal considered that a lawyer who did not practise within the court's judicial district could only be appointed by the court if there was a special relationship of trust between that counsel and the applicant. It had not been arbitrary for the Court of Appeal to refuse to appoint the lawyer not practising within the court'
On 18 September 2006 the Regional Court, having regard to the report submitted by a psychiatric expert it had consulted, ordered that the applicant be placed in preventive detention pursuant to Article 67c § 1 of the Criminal Code (see Relevant domestic law below).
Article 140 of the Code of Criminal Procedure lays down the circumstances in which a defendant must be represented by defence counsel. Pursuant to paragraph 2 of Article 140, the presiding judge shall appoint defence counsel on request or ex officio if the assistance of defence counsel appears necessary in view of the seriousness of the offence or in view of the factual or legal complexity of the proceedings or if it is evident that the defendant cannot defend himself in person. The latter provision is applied by analogy, in particular, to proceedings under Article 67c § 1 of the Criminal Code for review, before completion of the offender's prison term, of whether the execution of a preventive detention order against him or her is still necessary in view of its objective to protect the public from a dangerous offender (see Article 66 of the Criminal Code) or shall be suspended on probation.
Article 142 § 1 of the Code of Criminal Procedure, in its version in force at the relevant time, provided that defence counsel to be appointed shall be chosen by the presiding judge, if possible, from the group of lawyers admitted to practice before a court within the court's judicial district. The defendant is to be given the opportunity of naming an attorney-at-law within a time-limit to be specified. The presiding judge shall appoint defence counsel named by the defendant unless there are significant grounds for not doing so.