ITEMID: 001-104567
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KHRYKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1934 and lives in Elektrostal, the Moscow Region.
6. He had been receiving a retirement pension since 1984. In November 2005 he asked a pension authority to up-rate his pension on the basis of the fact that he had worked in hazardous industries. The latter disagreed and the applicant appealed to the Elektrostal Town Court (“Town Court”).
7. By judgment of 20 July 2006 the Town Court chaired by Judge T. ordered the pension authority to up-rate the applicant's pension starting from 1 December 2005. The court based its findings on the Law on Labour Pensions of 2001 (“Pension Law”). The judgment was not appealed against and on 5 August 2006 became final.
8. On 4 June 2007 the Chief Department of the Pension Fund no. 19 of Moscow and Moscow Region (“Pension Fund”) lodged with the Moscow Regional Court (“Regional Court”) an application for supervisory review of the judgment of 20 July 2006. This application was never examined. However, on 14 August 2007 the President of the Regional Court wrote a letter to the first-instance court which stated as follows:
“The Moscow Regional Court sends a statement of complaint by the GU UPF RF no. 19 of Moscow and Moscow Region against the judgment of the Elektrostal Town Court of 20 July 2006 in the case of Khrykin I.S. v. GU GUPF RF no. 19 of Moscow and Moscow Region...
[The Town] Court examined the scope of the pension rights of the plaintiff...
[The principles] of the examination of the scope of the pension rights ... have been set out in the Ruling of the Plenum of the Supreme Court of the Russian Federation no. 25 of 20 December 2005 ... and the Judgment of the Supreme Court of the Russian Federation of 2 March 2007 in the case of Nitsievskaya v. State Agency - Chief Department of the Pension Fund no. 5 of Moscow and the Moscow Region.
Delivering a judgment ... at variance with the Ruling of the Plenum of the Supreme Court of the Russian Federation no. 25 of 20 December 2005 and the Judgment of the Supreme Court of the Russian Federation of 2 March 2007 discloses a judicial error, such judgment cannot be regarded lawful. With the purpose of securing consistency in the case-law ... the statement of complaint by the GU UPF RF no. 19 of Moscow and Moscow Region ... against the above said judgment in the case of Khrykin I.S. v. GU GUPF RF no. 19 of Moscow and Moscow Region is being sent for reconsideration on the ground of newly discovered circumstances.”
9. On 27 September 2007 the Pension Fund lodged with the Town Court an application for quashing of the judgment of 20 July 2006 and re-opening of the applicant's case on the ground of newly discovered circumstances. It stated that the Supreme Court's judgment of 2 March 2007 in the Nitsievskaya case, which gave a different interpretation of the Pension Law, had been a circumstance warranting the re-opening of the Khrykin case. The applicant argued that the application had been introduced outside the three-month time-limit.
10. By decision (определение) of 23 October 2007, the Town Court presided over by the same judge who examined the applicant's case in 2006 granted the application. It held as follows:
“[T]he method of the assessment of pension rights ... has been set out in paragraph 13 of the Ruling of the Plenum of the Supreme Court of the Russian Federation no. 25 of 20 December 2005... and in the Judgment of the Supreme Court of the Russian Federation of 2 March 2007 in the case of Nitsievskaya v. State Agency - Chief Department of the Pension Fund no. 5 of Moscow and the Moscow Region...
...
[T]he court finds that reconsideration of such a judgment [as in the applicant's case] can be done by way of additional proceedings on the ground of newly discovered circumstances... which allow to remedy a judicial error...that resulted in a violation of the rights of the defendant [the Pension Fund]...
[T]he arguments by the applicant and his representative that the reconsideration ... of the judgment of 20 July 2006 is impossible and that the time-limit for lodging such a request was missed are to be dismissed on the ground that the Judgment of the Supreme Court ..., which entails legal consequences, was rendered on 2 March 2007 and became known [to the Pension Fund] in April 2007. The defendant had applied, to the competent judicial authorities, for reconsideration of the judgment [of 20 June 2006] on 4 June 2007, that is to say before the three-month time-limit ... expired.
In the light of the foregoing ... the court
DECIDED:
The judgment of 20 July 2006 ... is to be quashed.
The re-examination of the merits of the dispute is to be scheduled on 23 October 2007 at 12.30 p.m.”
11. By judgment (решение) of the same day, the Town Court held that the applicant's claim for a higher pension was to be dismissed in full. Its findings were based on the Law on Labour Pensions and the Ruling of the Plenum of the Supreme Court no. 25 of 20 December 2005. On 6 December 2007, the Moscow Regional Court upheld the first-instance court's judgment on appeal.
12. The Constitution of the Russian Federation provides:
Article 120
“1. In the administration of justice, judges shall be independent and subject only to the Constitution of the Russian Federation and the federal law...”
Article 121
“...2. A judge cannot be transferred, suspended or removed from office unless it is provided for by the federal law.”
13. The Code of Civil Procedure provides:
Article 8. Independence of judges
“...2. Judges shall examine civil disputes in the conditions that exclude outside influence. Any interference with the exercise of their judicial powers shall be forbidden and shall be punishable under the law...”
14. Law of 26 June 1992 “On the Status of Judges in the Russian Federation” provides that the independence of a judge is to be secured, in particular by the prohibition of interference with the administration of justice, the manner of their appointment and termination of their office, judges' inviolability and by the system of judicial self-government (Section 9). A judge is not obliged to give any comments on a decided, or a pending, case (Section 10).
15. Law “On the Status of Judges in the Russian Federation” provides:
Section 12.1 Judges' liability for disciplinary offences
“1. A judge who has committed a disciplinary offence (a breach of this Law and of the Code of Judicial Ethics to be adopted by the All-Russian Judicial Congress) may, with the exception of the judges of the Constitutional Court of the Russian Federation, receive a disciplinary penalty in the form of:
– a warning; [or]
– early termination of judicial office.
The decision to impose a disciplinary penalty must be taken by the judicial qualification board that has competence to examine the question of termination of office of a particular judge at the time of that decision...”
16. Law of 4 July 2003 “On Bodies of the Judicial Society” provides that a body which is empowered to impose a disciplinary penalty on judges (including presidents of district courts) are, in particular, regional judicial qualification boards (Section 19 § 2 (7)). An application for holding a judge liable for having committed a disciplinary offence can be lodged by the president of the relevant court or the president of a higher court (Section 22 § 1).
17. The Constitutional Court of the Russian Federation in its Ruling No.3-П of 28 February 2008 held that the power of the presidents of the relevant, or higher, courts to apply for holding a judge liable, as well as the powers of the presidents to examine complaints against judges and to participate in hearings of judicial qualification boards and to make their submissions, were not incompatible with the Constitution of the Russian Federation.
18. The Code of Civil Procedure provides:
Article 376. Right to apply to a court exercising supervisory review
“1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
Article 380-1. Actions of the supervisory review court after an application for supervisory review is submitted
“An application for supervisory review proceedings shall be examined:
(1) by the President of the Court, or [his/her] Deputy, or, at their request, by a judge of this court...”
Article 381. Examination of an application for supervisory review
“2. Having examined an application for supervisory review, the judge issues a decision on –
(1) refusal to remit the application for examination on merits by a supervisory court in a court hearing if the grounds for [quashing or altering judicial decisions] do not exist...
(2). remitting the application for examination on merits by a supervisory court in a court hearing...”
Article 387. Grounds for quashing or altering judicial decisions by way of supervisory review
“Judicial decisions [of lower courts] may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review court
“1. Having examined the case by way of supervisory review, the court may...
(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination;...
(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”
19. The Code of Civil Procedure provides:
“1. [Judgments] which have become final may be re-considered on the basis of newly discovered circumstances.
2. The grounds for reconsideration ... shall be:
1) significant circumstances which were not and could not have been known to the party who applies for reconsideration; ...”
“... [An application for reconsideration of a [judgment] due to the discovery of new circumstances] shall be lodged within three months after the discovery of the circumstances.”
“The time-limit for lodging an application for reconsideration of a [judgment] due to the discovery of new circumstances shall be calculated from the day of the discovery of such circumstances ...”
“1. Following the examination of an application for reconsideration of a [judgment] due to the discovery of new circumstances, the court may either grant the application and quash the [judgment], or dismiss the application.
2. The court decision by which an application for reconsideration of a [judgment] due to the discovery of new circumstances is granted shall not be subject to appeal.
3. Provided that a [judgment] is quashed, the case shall be examined in accordance with the rules of this Code.”
20. By a judgment of 8 February 2006, the Supreme Court upheld the decision of the judicial qualification board of the Sverdlovsk Region to terminate office of judge V. for a breach of the procedural law. She argued that her actions had not constituted a disciplinary offence but to no avail.
Ms V. had been a president of a district court.
21. By a judgment of 14 May 2008, the Supreme Court upheld the decision of the judicial qualification board of the Rostov Region to terminate office of judge S. for a “blatantly erroneous breach of the procedural law”. The Judge S.'s arguments that it had been an erroneous interpretation of the legislation rather than “an intentional breach of law” were dismissed.
Ms S. had been Justice of the Peace of a Court Circuit. The proceedings before the judicial qualification board had been brought by the president of the town court.
22. By a judgment of 3 June 2009, the Supreme Court upheld the decision of a regional judicial qualification board to terminate office of judge Z. for “blatant and repeated breaches of the procedural law”. Judge S. 'unsuccessfully argued that she had misinterpreted the law and that she could not be held liable given that her judicial decisions had not been quashed by a higher court and had become final.
Ms Z. had been a judge of a district court. The proceedings before the judicial qualification board had been brought by the president of the town court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22425
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BLAND v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Nicolas Bratza
TEXT: The applicant, John Bland, is a United Kingdom national, who was born on 12 April 1940 and lives in Cowling, North Yorkshire.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant applied to the Benefits Agency for a retirement pension, but was informed, by a letter dated 17 May 2000, that the Agency would not consider his claim until four months before his sixty-fifth birthday. At present, women in the United Kingdom become eligible for a State pension at the age of sixty, whereas men are not eligible until sixty five.
In their Observations, the Government submitted that the applicant received a total of GBP 236.15 per week in State benefits, including income support, disability living allowance and invalid care allowance. They claimed that the applicant would be in an identical financial position if he were a woman, the only difference being that part of the money paid to him by the State would be paid in the form of retirement pension rather than income support.
The applicant has not denied the Government’s account of his income. He claims, however, that if he were in receipt of State pension he would in addition be entitled to other financial benefits, such as a bus pass and discounts in shops, restaurants and hairdressers.


ITEMID: 001-110174
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FRANCESCO SESSA v. ITALY [Extracts]
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1955 and lives in Naples.
6. The applicant is Jewish and a lawyer by profession. On 7 June 2005 he appeared before the Forli investigating judge at a hearing concerning a request for the immediate production of evidence (“incidente probatorio”) in his capacity as representative of one of the two complainants in criminal proceedings against several banks. The investigating judge in charge of the case was prevented from sitting and his replacement invited the parties to choose between two dates for the adjourned hearing – either 13 or 18 October 2005 – already identified by the investigating judge.
7. The applicant pointed out that both dates coincided with Jewish religious holidays (Yom Kippur and Sukkot respectively) and stated that he would be unable to attend the adjourned hearing because of his religious obligations. He explained that he was a member of the Naples Jewish community, and alleged a breach of sections 4 and 5 of Law no. 101 of 8 March 1989 governing relations between the State and the Union of Italian Jewish communities.
8. The investigating judge set the hearing down for 13 October 2005.
9. The same day the applicant lodged an application with the investigating judge in charge of the case to have the hearing adjourned. On 20 June 2005, after examining the application, the judge decided to add it to the case file without ruling on it.
10. On 11 July 2005 the applicant lodged a criminal complaint against the investigating judge in charge of the case and his replacement, alleging that they had breached section 2 of Law no. 101 of 1989. The same day he informed the Supreme Council of the Judiciary about the complaint.
11. At the hearing of 13 October 2005, the investigating judge noted that the applicant was absent for “personal reasons” and asked the parties to express their views on the application for an adjournment made on 7 June. The prosecution and counsel for the defendants objected to the application, arguing in particular that it was not based on any of the statutory grounds for adjournment. However, counsel for the other complainant supported the applicant’s request.
12. In an order issued the same day the investigating judge rejected the application for an adjournment. He noted at the outset that, under Article 401 of the Code of Criminal Procedure, only the prosecution and counsel for the defendant were required to be present at hearings concerning the immediate production of evidence; the presence of counsel for the complainant was optional. He went on to observe that the Code of Criminal Procedure did not oblige the judge to adjourn a hearing where counsel for the complainant had legitimate reasons for being unable to appear. Lastly, he stressed that a large number of individuals were involved in the proceedings (the defendants, the complainants, court-appointed experts and experts appointed by the parties) and that, “in view of the heavy workload of the office, which would [have meant] adjourning the hearing until 2006, the application, submitted by an individual with no legitimate reason to request an adjournment, ha[d] to be rejected in accordance with the principle that cases should be heard within a reasonable time”.
13. On 23 January 2006 the Supreme Council of the Judiciary informed the applicant that it was not competent to examine the matter since the applicant’s complaints related to the exercise of judicial activity.
14. In the meantime, on 9 January 2006, the Ancona public prosecutor’s office had requested that no further action be taken on the applicant’s complaint. The applicant objected to this request on 28 January 2006.
15. On 21 September 2006 the Ancona investigating judge made an order discontinuing the proceedings concerning the applicant’s complaint, noting that the applicant had not objected to the request for no further action submitted by the public prosecutor’s office.
16. On 19 January 2007 the applicant lodged an appeal on points of law, complaining of the investigating judge’s failure to take account of the objection he had lodged on 28 January 2006. The Court of Cassation, observing that the failure to take the applicant’s objection into account had probably been due to a registry error, set aside the order of 21 September 2006 and referred the case back to the Ancona District Court.
17. On 12 February 2008 the applicant and the prosecution attended a hearing before the Ancona investigating judge. On 15 February 2008 the latter issued an order discontinuing the proceedings. He noted that there was nothing in the case file to suggest that the investigating judge in charge of the case or the judge who had replaced him at the hearing of 7 June 2005 had had any intention of infringing the applicant’s right to practise his Jewish faith freely or of offending the applicant’s dignity on account of his religious faith.
18. Law no. 101 of 8 March 1989 contains provisions governing relations between the State and the Union of Italian Jewish communities. Section 2 recognises the right to practise and manifest the Jewish religion freely. Under section 4, Italy grants persons of Jewish faith who so request the right to observe the Sabbath, in the context of flexible working arrangements and without prejudice to the requirements of the essential services provided for by the State legal system.
Section 5 of Law no. 101 states that Yom Kippur, Sukkot and other Jewish religious holidays are to be treated in the same way as the Sabbath.
19. According to the fifth paragraph of section 2 of the Law, manifestations of religious intolerance and prejudice are punishable by the penalties provided for in section 3 of Law no. 654 of 1975, which is the Law ratifying the International Convention on the Elimination of all Forms of Racial Discrimination. Under the latter provision, anyone who disseminates ideas based on superiority or on racial or ethnic hatred, or incites others to commit acts of racial, ethnic, national or religious discrimination, is liable to a prison sentence of up to eighteen months.
20. The first paragraph of Article 401 of the Code of Criminal Procedure, which governs the procedure for the immediate production of evidence (“incidente probatorio”) reads as follows:
“The hearing shall take place in private. The public prosecutor and counsel for the defendant shall be required to attend. Counsel for the injured party shall also have the option of attending.”
NON_VIOLATED_ARTICLES: 9
NON_VIOLATED_PARAGRAPHS: 9-1


ITEMID: 001-61944
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SLIMANI v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 13;Violation of Art. 2 concerning the effectiveness of the investigation;Not necessary to examine Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 6. The applicant was born in 1969 and lives in Marseilles. Her late partner, Mr Sliti, born in 1958, was a Tunisian national.
7. Mr Sliti had been committed to a psychiatric hospital several times both in Tunisia and in France.
8. Mr Sliti had been sentenced to four years’ imprisonment and permanently excluded from French territory by a judgment of the Marseilles Criminal Court of 2 October 1990. The order permanently excluding him from French territory was not enforced immediately after he had served his prison sentence.
9. In 1998 Mr Sliti set fire to the applicant’s house and threatened to throw himself out of the window with their eighteen-month-old son. He was sentenced to one year’s imprisonment for this by a judgment of the Marseilles Criminal Court of 21 September 1998.
After being compulsorily detained in Edouard Toulouse Hospital in Marseilles (Centre Hospitalier Edouard Toulouse – “the CHET”) between 29 July and 25 August 1998 (psychiatric department), Mr Sliti had later been transferred to Beaumettes Prison to serve the above-mentioned sentence.
10. A psychiatrist’s report ordered by the President of the Marseilles tribunal de grande instance, dated 1 September 1998 and prepared by Dr Goujon of the CHET, concluded, among other things, that Mr Sliti should undergo “long-term psychiatric treatment, or even [hospitalisation] in a psychiatric ward”.
There was also a letter (dated 4 May 1999) from Dr Chabannes, a psychiatrist at the CHET, saying that Mr Sliti’s “depressive and anxious” condition had made it necessary to keep him in hospital for some twenty days in September 1998, his “suicide threats suggest[ing] that he might harm himself”.
A medical certificate dated 9 February 1999 and issued by the same doctor contained the following observations:
“ ... [Mr Sliti], whose condition is currently stable ... is being treated with a combination of anti-depressants, tranquillizers and neuroleptics. It is in [his] best interests to continue receiving psychiatric care once he is released especially [as he] has himself requested psychiatric support. One of the practitioners at Edouard Toulouse Hospital will continue to act as his responsible medical officer”.
The medical treatment prescribed to Mr Sliti before his placement in administrative detention was composed of the following anti-depressants, neuroleptics and tranquillizers: Lysanxia - 40 mg (two tablets every 24 hours), Deroxat - 20 mg (one tablet every 24 hours), Phenergan (four tablets every 24 hours) and Risperdal - 2 mg (two tablets every 24 hours).
11. On 22 May 1999 the Bouches-du-Rhône Prefect decided to enforce the order that had been made on 2 October 1990 permanently excluding Mr Sliti from France and ordered him to be deported to Tunisia. To that end he ordered Mr Sliti to be held in Marseilles-Arenc Administrative Detention Centre until 24 May 1999.
Mr Sliti was still receiving medical treatment, as evidenced by a prescription made out by Dr Chabannes on 21 May 1999.
At Marseilles-Arenc Detention Centre the police took responsibility for fetching the medicine prescribed to Mr Sliti and giving it to him.
12. In an order of 24 May 1999 the President of the Marseilles tribunal de grande instance extended the detention order in Arenc to 10 p.m. on 26 May 1999 pending issue of a cross-border pass. An appeal lodged on 25 May 1999 was dismissed on 26 May 1999 by an order of the President of the Court of Appeal on the grounds that the procedure had been lawful and that “Mr Sliti [had] been removed that day [so that] the administrative detention measure had been lifted and the appeal therefore [had to be] declared devoid of purpose”.
13. In the morning of 26 May 1999 Mr Sliti twice refused to take his medicine. He was not examined by a doctor despite – according to the Government’s memorial – having been in a state of extreme agitation. At about 10.30 a.m. he was taken ill and collapsed. After being alerted by other detainees, police officers on duty at Arenc quickly arrived on the premises and turned him onto his side in the recovery position before alerting the Navy firefighters (marins-pompiers). At about 10.45 a.m. the Navy firefighters doctor gave him first aid. He observed that he had fallen into a coma and administered medical treatment on the premises. A 12.15 p.m. Mr Sliti was taken to Conception Hospital in Marseilles where he was admitted to the intensive care unit at approximately 12.50 p.m. He died there at 2.50 p.m.
14. On 26 May 1999 an inquest was commenced in accordance with Article 74 of the Code of Criminal Procedure (CCP) “to determine the causes of the death” of Mr Sliti.
On 27 May 1999 the investigating judge sent instructions to Marseilles Central Police Station to pursue the inquiry and, to that end “take evidence from any relevant witnesses capable of providing information, make all necessary findings, investigations, lawful searches wherever necessary, and seize any items necessary for establishing the truth” and “send ... any necessary requests to any public authorities or private bodies, any civil servants and public or ministerial officers, and more generally any persons capable of providing information or documents that will assist in establishing the truth”.
An autopsy was carried out on 27 May 1999. The autopsy report, of the same date, made the following conclusions:
“The examination and autopsy of Mr Moshen Sliti’s body show:
– signs of resuscitation.
The mark observed in the left abdominal region may have been left by cardiopuncture. This needs to be confirmed by an anatomicopathological examination of the heart and an examination of the medical file.
– no suspicious signs suggesting violence.
– diffused polyvisceral hyperaemia.
– the presence of abundant spume in the trachea and bronchi and of macroscopic heart transformations that may indicate acute cardiorespiratory failure, subject to confirmation by expert anatomicopathological and toxicological opinion”.
On 27 May 1999, on the basis of the above-mentioned instructions, a senior police officer heard evidence from two police officers who had been on duty at Arenc during the morning of 26 May 1999. On 28 May 1999 he heard evidence from the deceased’s uncle and on 3 June 1999 the Navy firefighters doctor who had treated Mr Sliti after he had been taken ill.
On 31 May 1999 another police officer heard evidence from two persons who had been detained at Arenc at the time of the events (Mr T.S. Smain and Mr E. Louis) and were eyewitnesses to them. The records of these interviews show that about ten people had been in the vicinity of the place where Mr Sliti had been taken ill and had been present during the events. They also show that Mr Sliti had already been in a state of agitation the day before the events in question occurred.
Further medical samples were taken from the victim’s body on 15 June 1999.
15. An anatomicopathological examination of swabs taken from Mr Sliti’s body was carried out on 15 October 1999 by Dr H.P. Bonneau, who had been appointed for the purpose by the investigating judge. He made the following conclusions in his report:
“Anatomicopathological examination of the autopsy swabs (treated with formalin) showing an acute pulmonary oedema, the cause of Mr Sliti’s death.
The aetiology of this acute pulmonary oedema must be compared with the facts in the expert toxicological report.
The other organs are histologically normal.”
The investigating judge ordered a toxicologist’s report (orders of 31 May and 15 June 1999) and appointed Dr M. Fornaris to prepare it. She carried out her examination on 20 June 2000 and made the following conclusions in her report, dated 19 July 2000:
“... the toxics found all result from medication; they are present in various pathologies (anxiety, pain, convulsions...).
They do not appear likely, either inherently or by their association or level in the blood (at the time of death, or even when the first disorders were felt) to have been the direct cause of the death or to have contributed to its occurrence.”
16. The applicant unsuccessfully requested access to the autopsy and toxicology reports. She was never interviewed by the investigating judge and was excluded from the investigation.
On 22 April 2000 she asked the investigating judge to send the investigation file to the public prosecutor for a supplementary application to be made extending the investigation to include a count of manslaughter. As the investigating judge did not reply within one month, on 24 May 2000 she addressed her request to the President of the Indictment Division of the Aix-en-Provence Court of Appeal under Article 81 of the CCP. Her request was declared inadmissible by an order of 29 May 2000 on the ground, inter alia, that “in the proceedings to investigate the causes of death, Ms Slimani does not have standing to request investigative measures”.
17. In orders of 6 and 20 November 2000 the investigating judge appointed Doctor Boudouresques and Doctor Romano to carry out the following instructions:
“Consult Mr Sliti’s medical file at Conception Hospital and the attached copies of the procedural documents.
(i) Determine the cause of Sliti Moshen’s death and establish, inter alia, whether the treatment administered was in conformity with current medical knowledge.
(ii) Describe the medical infrastructure of the Marseilles Arenc Centre and state whether it complies with the laws and regulations in force.
In the event that you find deficiencies or anomalies, give details of these in your report and indicate the persons or persons who may be deemed responsible from a medical point of view.
You may question anyone whose evidence you consider helpful and request from any public or private establishment any documents that you consider it necessary to consult.
You are asked to make any observations that may assist in establishing the truth.”
The report, dated 2 May 2001, described the medical infrastructure of the Arenc Centre as it was on 17 March 2001. It stated that “prior to September 2000, no medical structure existed[;] medicines were distributed to detainees by police officers”. Regarding the cause of death, it made the following observations among others:
“ ...
The various evidence suggests that the treatment given to Mr Sliti was administered between 15 and 20 minutes after he was taken ill.
The description of the clinical disorders presented by Mr Sliti corresponds to generalised and recurring epileptic fits, thus an epileptic condition.
This epileptic condition can be regarded as inaugural in so far as Mr Sliti had no known epileptic history.
It is possible that the refusal to take his medicine (we are thinking in particular of the Benzodiazepines: 80 mg of Lysanxia) contributed to the onset of this epileptic condition.
Regarding the results of the toxicological analysis, no toxic substance other than a medicinal one has been found. Moreover, according to the toxicology report these medicinal substances do not appear, inherently, by their association or level in the blood, to have caused the death or to have contributed to its occurrence.
The treatment administered by the Navy firefighters doctor at Arenc Centre is that habitually given in cases of epilepsy.
The treatment included the prescription of anticonvulsive drugs and then, when these proved ineffective, barbiturates.
A tube was inserted into the trachea.
The patient was given medical treatment at Arenc Centre for one and a half hours before being taken to Conception Hospital in Marseilles at approximately 12.15 p.m.
After being treated with barbiturates he stopped having convulsions, whereupon it was possible to transfer him.
According to Dr F. Topin, there was no sign of heart failure. The treatment administered first by the Navy firefighters doctor and then in the multi-purpose intensive care unit at Conception Hospital is that habitually proposed in this type of medical emergency.
Despite being resuscitated very quickly and efficiently by means of intubation, artificial respiration, drip, external heart massage, with alkalinisation, Mr Sliti suffered a cardiac arrest resulting in his death at approximately 2.50 p.m.
The treatment administered at Arenc Detention Centre on 26 May 1999 and the immediate intervention of the officers at approximately 10.30 a.m., the rapid intervention of the SAMU [Mobile Emergency Medical Service] owing to the efficiency of the police officers present on the premises[,] at approximately 10.45 a.m. the provision of emergency medical treatment (full clinical examination, an electrocardiogram, insertion of a catheter, with the use of medication appropriate to an epileptic condition, insertion of tube in trachea), the conditions of transfer to Conception Hospital in Marseilles, the treatment administered by the intensive care unit at Conception Hospital were in conformity with current medical knowledge.
The analysis of the toxicologist’s report made by Mrs M. Fornaris on 20 July 2000 does not allow identification of any toxic substance that might have caused the death.
The autopsy of Mr Mohsen (sic) Sliti’s body showed both signs of resuscitation, and in particular cardiopuncture, and the presence of large quantities of spume in the trachea of the bronchi and macroscopic heart transformations suggestive of acute cardiorespiratory failure.
Lastly, the anatomicopathological examination performed by Dr H.P. Bonneau on 15 October 1999 showed an acute pulmonary oedema as the cause of Mr Sliti’s death.
Conclusion:
The cause of Mr Sliti Mohsen’s (sic) death was a cardiac arrest following an acute pulmonary oedema (acute failure of left auricle) after an inaugural epileptic condition (possibly induced by Mr Sliti’s refusal to take his usual treatment).
The treatment administered was done so in accordance with current medical knowledge (at Arenc Detention Centre by the SAMU and then at Conception Hospital)”.
18. On 26 June 2001 the public prosecutor discontinued the proceedings “in the light of the conclusions of the medical experts” and “the lack of any evidence of a crime or major offence as the cause of death”.
19. On 21 February 2003 the applicant, acting on behalf of herself and her children, applied to the Minister of the Interior for compensation. She based her claim on the documents produced by the Government in the proceedings before the Court, stating that she had not previously had access to them. In her submission, they showed that “the death of Mr Sliti [was] the consequence of a serious breakdown in the operation of the service at Arenc Detention Centre”. She complained, in particular, of insufficient medical facilities and staff at the material time.
20. Article 74 of the CCP provides:
“On discovery of a dead body, regardless of whether the deceased suffered a violent death, but wherever the cause of death is unknown or suspicious, the senior police officer who is advised thereof shall immediately notify the public prosecutor, promptly visit the place of discovery and make initial observations.
The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death occurred. He may, however, delegate those tasks to a senior police officer of his choice.
Except where their names appear in one of the lists provided for in Article 157, persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience.
The public prosecutor may also call for an inquest to determine the causes of death.”
Article 80-4 CCP, which was added to the Code of Criminal Procedure by Law no. 2002-1138 of 9 September 2002 (Official Journal of 10 September 2002), is worded as follows:
“...
The members of the family or the close relatives of the deceased or missing person may apply to join the criminal proceedings as a civil party seeking damages. However, if the missing person is found, the latter’s address and other matters that would lead to the direct or indirect disclosure of this address may not be revealed to the civil party without the consent of the party concerned if he is an adult or with the consent of the investigating judge in the case of minors or of adults under a guardianship order.”
21. Article 85 of the CCP provides:
“Anyone who claims to have suffered damage as a result of a serious crime or serious offence may, by lodging a criminal complaint, join the criminal proceedings as a civil party on application to the relevant investigating judge.”
22. Part of the report is devoted to “administrative detention centres for foreign nationals”. Paragraph 202 is worded as follows:
(Unofficial translation)
“..., the holding conditions at Marseilles-Arenc Administrative Detention Centre left a lot to be desired. The material conditions were mediocre and the foreign nationals were given no opportunity to take any walks outside throughout the entire duration of their stay. Furthermore, there was no provision for any specific medical attention or nursing cover. In addition to the difficulties in seeing a doctor, the situation inevitably gave rise to unacceptable consequences from a medical-ethics standpoint. Lastly, the delegation found that the detainees were insufficiently informed about their rights and obligations and that the procedure for placing detainees in isolation needed to be clarified.
The delegation expressed its serious concerns about Marseilles-Arenc Administrative Detention Centre at the end-of-visit interview. Subsequently, the French authorities informed the CPT of a series of measures designed to improve health and safety at Marseilles-Arenc Administrative Detention Centre and the medical care of detainees; measures were also taken with regard to informing detainees about their rights and the applicable procedure in the event of placing a detainee in isolation. That being said, the French authorities indicated that it was undeniable that the building was ill-adapted to the needs of the centre.
The CPT expressed its satisfaction with the speed at which the authorities reacted to the delegation’s observations. The Committee pointed out, however, that it was unacceptable for detainees to be deprived of any opportunity to take exercise outside during prolonged periods and that a day nurse should be present inside the centre. It accordingly recommended that the French authorities take appropriate measures immediately in those two respects. More generally, the CPT asked the French authorities to reconsider setting up a new detention centre in Marseilles”.
23. The relevant paragraphs of this report are the following:
(Unofficial translation)
“59. With the exception of the Marseilles-Arenc Administrative Detention Centre, access to a doctor and medical care in the places visited in May 2000 could be deemed satisfactory. In particular, in all these establishments access to a doctor and medicines was free of charge for the foreign nationals concerned.
...
60. As in 1996, the situation at Marseilles-Arenc was still unacceptable, however, from the medical-ethics and – it has to be added – human standpoint. In July 1998 the organisation Médecins du Monde terminated the Mutual Assistance Agreement for the Medical Care of Detainees. The organisation SOS Médecins, for its part, agreed to visit the Centre only in exceptional circumstances. The delegation heard widespread complaints from detainees who, on asking to see a doctor, were told by police officers that they had to be able to pay. Some also complained that their medicine supplies (for example, maintenance or medicine for asthma sufferers) were about to run out.
In addition, since the ad hoc agreement has still not been signed, no nurse was present. Nor did the centre have a single first-aid kit (not even dressings) and medicines, kept in a cardboard box, were distributed by surveillance staff in accordance with the needs expressed by the detainees.
In response to the delegation’s immediate observation, the French authorities have informed the CPT that an agreement on the provision of health services was signed on 14 June 2000 between the Bouches-du-Rhône Prefect and the Marseilles public hospitals authority. From 1 September 2000 there will be nursing cover at the centre seven days a week and a doctor in attendance half time. The CPT wishes to express its satisfaction with the measures taken.”
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-57525
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1968
DOCNAME: CASE "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM" v. BELGIUM (MERITS)
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+P1-2;No violation of Art. 8;Just satisfaction reserved
TEXT: 1. The object of the Commission's request is to submit the case to the Court, so that the Court may decide whether or not certain provisions of the Belgian linguistic legislation relating to education are in conformity with the requirements of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol of 20th March 1952 (hereinafter referred to as "the Protocol") (P1-2).
2. The Applicants, who are parents of families of Belgian nationality, applied to the Commission both on their own behalf and on behalf of their children under age, of whom there are more than 800. Pointing out that they are French-speaking or that they express themselves most frequently in French, they want their children to be educated in that language.
Alsemberg, Beersel, Antwerp, Ghent, Louvain and Vilvorde, where the signatories of five of the six applications (Nos. 1474/62, 1691/62, 1769/63, 1994/63 and 2126/64) live, belong to the region considered by law as Dutch-speaking, whereas Kraainem (Application No. 1677/62) has since 1963 formed part of a separate administrative district with a "special status". In all of these districts ("communes"), part of the population - in some cases a large part - is French-speaking.
3. Though the six applications differ on a number of points, they are similar in many respects. For the time being it is sufficient to note that in substance they complain that the Belgian State:
- does not provide any French-language education in the municipalities where the Applicants live or, in the case of Kraainem, that the provision made for such education is, in their opinion, inadequate;
- withholds grants from any institutions in the said municipalities which may fail to comply with the linguistic provisions of the legislation for schools;
- refuses to homologate leaving certificates issued by such institutions;
- does not allow the Applicants' children to attend the French classes which exist in certain places;
- thereby obliges the Applicants either to enrol their children in local schools, a solution which they consider contrary to their aspirations, or to send them to school in the "Greater Brussels district", where the language of instruction is Dutch or French according to the child's mother-tongue or usual language or in the "French-speaking region" (Walloon area). Such "scholastic emigration" is said to entail serious risks and hardships.
4. The Applications in so far as they have been declared admissible by the Commission, allege that Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol (P1-2) have been violated. The violation is said to be a result of the Applicants and their children being subjected to various provisions of the Act of 14th July 1932 "on language regulations in primary and intermediate education", the Act of 15th July 1932 "on the conferring of academic degrees", the Acts of 27th July 1955 and 29th May 1959, the Act of 30th July 1963 "relating to the use of languages in education" and the Act of 2nd August 1963 "on the use of languages in administrative matters", etc. The Acts of 14th and 15th July 1932 were repealed by the Act of 30th July 1963, but were still in force when the Alsemberg, Beersel, Kraainem, Antwerp and Ghent Applicants brought their cases before the Commission, and those Applicants still challenge these Acts while at the same time attacking the present legislation.
5. Summarising the opinion expressed in its Report of 24th June 1965 (hereinafter referred to as "the Report"), the Commission recalled in paragraph 7 of its memorial of 17th December 1965 that it took the view:
"- by 9 votes to 3, that the legislation complained of was not incompatible with the first sentence of Article 2 of the Protocol (P1-2), considered in isolation;
- unanimously, that the legislation was not incompatible with the second sentence of the said Article (P1-2), considered in isolation or in conjunction with Article 14 (art. 14+P1-2) of the Convention;
- by 10 votes to 2, that the legislation was not incompatible, in the case of the Applicants, with Article 8 (art. 8) of the Convention, considered in isolation or in conjunction with Article 14 (art. 14+8);
- by 9 votes to 3, that the general system of education in the areas which are unilingual by law was not incompatible with the first sentence of Article 2 of the Protocol, considered in conjunction with Article 14 (art. 14+P1-2) of the Convention;
- by 11 votes to 1, that the same was true of the "special status" conferred by Section 7 of the Act of 2nd August 1963 on six bilingual communes, of which Kraainem is one, on the periphery of Brussels;
- by 7 votes to 5, that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the total withdrawal of subsidies from provincial, commune and private schools providing, in the form of non-subsidised classes and in addition to instruction given in the language prescribed by the language legislation, complete or partial education in another language; - unanimously, that the conditions on which children whose parents live outside the Greater Brussels district may be enrolled in schools in that district (Section 17 of the Act of 30th July 1963) were not, in the case of the Applicants, incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention;
- that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they prevent certain children, solely on the basis of their parents' place of residence, from attending French-language schools at Louvain (8 votes to 4) and in the above-mentioned six communes on the periphery of Brussels (7 votes to 5);
- by 8 votes to 4, that the legislation complained of was also incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as it has resulted, since 1932, in a refusal to homologate certificates relating to secondary schooling not in accordance with the language requirements."
6. In the course of the written proceedings the following submissions were made on the merits of the case:
- by the Belgian Government in its memorial of 9th May 1967:
"The Belgian Government submits the following conclusions:
(1) The Belgian legislation attacked in the Applications is incompatible neither with Article 2 of the Protocol (P1-2) nor with Article 8 (art. 8) of the Convention if those provisions are considered in isolation.
(2) Nor is it contrary to the first and second sentence of Article 2 of the Protocol or Article 8 of the Convention even if read in conjunction with Article 14 (art. 14+P1-2, art. 14+8) of the Convention.
(3) Neither the 1963 Acts nor those of 1932 are incompatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they forbid the establishment or subsidising by the State of any schools which do not comply with the language legislation.
(4) The 1963 Acts are not contrary to Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the total withdrawal of subsidies from schools that, while they have sections in which tuition is given in the regional language, also provide complete or partial education in another language.
(5) The system introduced by the Act of 2nd August 1963 in the communes on the periphery of Brussels, including Kraainem, is not incompatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention.
(6) The residence conditions laid down in the 1963 Acts for admission to the French-language schools at Louvain and in the communes on the periphery of Brussels, including Kraainem, are compatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention.
(7) The provisions of the 1932 and 1963 Acts are compatible with Article 2, first sentence, of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the refusal of homologation of secondary school leaving certificates for the sole reason that the schooling covered by them has not been in accordance with the requirements of the language legislation.
The Belgian Government reserves the right to add to or modify these conclusions in the course of the proceedings".
- by the Commission in its memorial of 12th July 1967 and, in almost identical terms, in that of 17th December 1965, prior to the judgment of 9th February 1967:
"As it recalled in its memorial of 17th December 1965, the Commission acts in the general interest and not, strictly speaking, as plaintiff vis-à-vis the High Contracting Party against which the Applications submitted to it for appraisal are directed.
It therefore once more formulates its conclusions interrogatively and invites the Court to decide whether or not the legislation of which the Applicants complain satisfies the requirements of:
(a) the first sentence of Article 2 of the Protocol (P1-2), considered in isolation;
(b) the second sentence of that Article (P1-2), considered in isolation;
(c) Article 8 (art. 8) of the Convention, considered in isolation;
(d) the first sentence of Article 2 of the Protocol read in conjunction with Article 14 (art. 14+P1-2) of the Convention;
(e) the second sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention;
(f) Article 8 of the Convention, read in conjunction with Article 14 (art. 14+8).
In particular the Commission requests the Court to decide whether or not, in the case of the Applicants, there is violation of all or some of the above-mentioned articles, inter alia:
(a) in so far as the Acts of 1932 prevented, and those of 1963 prevent:
- the establishment, or
- the subsidisation
by the State, of schools not in conformity with the general linguistic requirements;
(b) in so far as the Acts of 1963 result in the complete withdrawal of subsidies from provincial, commune or private schools providing, in the form of non-subsidised classes and in addition to the instruction given in the language prescribed by the linguistic Acts, full or partial instruction in another language;
(c) with regard to the special status conferred by Section 7, third paragraph, of the Act of 2nd August 1963 on six communes, of which Kraainem is one, on the periphery of Brussels;
(d) with regard to the conditions on which children whose parents reside outside the Greater Brussels district may be enrolled in the schools of that district (Section 17 of the Act of 30th July 1963);
(e) in so far as Section 7, last paragraph, of the Act of 30th July 1963 and Section 7, third paragraph, of the Act of 2nd August 1963 prevent certain children, solely on the basis of their parents' place of residence, from attending French-language schools at Louvain and in the six communes mentioned under (c) above;
(f) in so far as the Acts of 1932 resulted, and those of 1963 result, in absolute refusal to homologate certificates relating to secondary schooling not in conformity with the language requirements in education.
For the reasons stated at the end of its report (...), the Commission still refrains for the time being from putting forward conclusions on the claims for damages submitted by the Applicants of Alsemberg and Beersel, Kraainem and Louvain."
- by the Belgian Government in its memorial of 2nd October 1967:
"Subsidiary, in case the Court should feel obliged to adopt the Commission's viewpoint, the Belgian State points out the legitimate grounds that justify the legislation attacked.
The Belgian Government maintains however as its main argument the conclusions set down in its first memorial on the merits and reserves its final conclusions.
The Government wishes to point out:
- first of all, that the distinctions of which the Applicants complain do not affect the rights laid down in Article 8 (art. 8) of the Convention, since the rights of parents and children with regard to education are defined not in that Article (art. 8) but in Article 2 of the Protocol (P1-2);
- that these distinctions do not affect the negative right and the freedom laid down in Article 2 of the Protocol (P1-2) but relate to positive benefits and favours, which the State may, of course, grant in order to facilitate the exercise of that right and freedom but concerning which the High Contracting Parties have expressly declared that they did not intend to enter into any obligation;
- that the distinctions in question do not interfere with any desire of the Applicants simply to have their children educated but concern their wish to have them educated in accordance with their linguistic preferences, and that any such preferences held in educational matters were deliberately not included by the High Contracting Parties in the enumeration of rights and freedoms safeguarded by the Convention;
- that the rule of non-discrimination in Article 14 (art. 14) of the Convention cannot apply to the distinctions of which the Applicants complain, since it relates only to rights and freedoms laid down in the Convention;
- that the Applicants' complaints are unfounded."
7. The following submissions were made during the oral proceedings:
- by the Commission, on 25th November 1967:
"The Commission maintains the submissions it made to the Court at the end of its memorial on the merits of the case, while reserving the right to modify them or add to them in the light of subsequent proceedings."
- by the Belgian Government, on 27th November 1967:
"I have the honour to read to the Court the submissions made by the Belgian Government at the present stage of proceedings, while reserving the right to make any necessary additions or amendments during subsequent proceedings.
Principal submissions
May it please the Court,
To find that the measures of which the Applicants complain, whether the provisions invoked by the Applicants concerning them are considered in isolation or in conjunction, do not interfere with the rights or freedoms set forth in the European Convention on Human Rights and Protocol and, replying in greater detail to the questions submitted by the Commission:
To rule that Belgian legislation is not incompatible with:
(a) the first sentence of Article 2 of the Protocol (P1-2), considered in isolation;
(b) the second sentence of that Article (P1-2), considered in isolation;
(c) Article 8 (art. 8) of the Convention, considered in isolation;
(d) the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention;
(e) the second sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention;
(f) Article 8 of the Convention, read in conjunction with Article 14 (art. 14+8).
In particular the Belgian Government requests the Court to find that in the case of the Applicants none of those Articles, whether considered in conjunction or in isolation, has been violated, inter alia:
(a) in so far as the Acts of 1932 prevented, and those of 1963 prevent: the establishment, or the subsidisation by the State, of schools not in conformity with the general linguistic requirements;
(b) in so far as the Acts of 1963 result in the total withdrawal of subsidies from provincial, commune or private schools providing, in the form of non-subsidised classes and in addition to the instruction given in the language prescribed by the linguistic Acts, full or partial instruction in another language;
(c) with regard to the special status conferred by Section 7 (1) and (3) of the Act of 2nd August 1963 on six communes, of which Kraainem is one, on the periphery of Brussels;
(d) with regard to the conditions on which children whose parents reside outside the Greater Brussels district may be enrolled in the schools of that district (Section 17 of the Act of 30th July 1963);
(e) in so far as the last paragraph of Section 7 of the Act of 30th July 1963 and Section 7 (1) and (3) of the Act of 2nd August 1963 prevent certain children, solely on the basis of their parents' place of residence, from attending French-language schools at Louvain and in the six communes mentioned under (c) above;
(f) in so far as the Acts of 1932 resulted, and those of 1963 result, in refusal to homologate certificates relating to secondary schooling not in conformity with the language requirements in education.
Auxiliary submission
If the Court accepts the Commission's opinion that the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, lays down an obligation not to discriminate, then
May it please the Court:
To rule that the Belgian legislation complained of is in accordance with that requirement as it provides for no unlawful or arbitrary discrimination against the Applicants within the meaning of Article 14 (art. 14) of the Convention:
May it please the Court:
To rule that the Applicants' complaints are without foundation."
- by the Commission, on 29th November 1967:
"It only remains for me to confirm the submissions made by the Commission in its memorial of 11th July 1967."
- by the Belgian Government on 30th November 1967:
"The submissions we had the honour to make to the Court (on 27th November 1967) may be considered as final ones."
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-2
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-85250
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: K.S. AND M.S. v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicants, K.S. and M.S., are Czech nationals who were born in 1953 and 1958 respectively and live in Toronto. They were represented before the Court by Ms R. Snidr, a lawyer practising in Toronto (Canada). The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 September 1994 a certain K. brought an action before the Karviná District Court (okresní soud) against the applicants seeking the payment of CZK 229,798.20 (EUR 8,782) regarding construction works he had carried out for them.
On 13 March 2003 the applicants filed a counterclaim for the payment of CZK 193,000 (EUR 7,376). At a hearing of 24 April 2003, the District Court decided to exclude the counterclaim for a separate examination. A written decision in this respect was adopted on 9 December 2003.
In a judgment of 1 April 2004 the District Court partly granted K.’s action and ordered the applicants to pay him CZK 202,838.60 (EUR 7,752) with interest on late payment.
On 20 June 2006 the Ostrava Regional Court (krajský soud), upon the applicants’ appeal, modified the District Court’s judgment in that it dismissed K.’s action.
In the meantime, on 9 January 2006, the District Court had partly stayed the proceedings on the applicants’ counterclaim and ordered K. to pay them CZK 152,866 (EUR 5,842).
On 31 January 2007 the Regional Court quashed this judgment in respect of the court’s order that K. had to pay the applicants the sum requested and reimburse them incurred costs and expenses, and sent this part of the case to the District Court.
It appears that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-59868
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PANNULLO AND FORTE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 2 February 1994 the applicants’ two-year-old daughter, Erika, underwent heart surgery at Marie-Lannelongue Hospital in Le Plessis-Robinson (France).
9. On 17 June 1996 Erika was admitted to the same hospital for a postoperative check-up.
10. On 18 June 1996 she became feverish and vomited blood. The doctors diagnosed rhinopharyngitis and prescribed antibiotics. On 20 June 1996 the doctors decided to allow the child to leave the hospital.
11. In the evening of the same day the applicants telephoned the hospital because Erika was feverish again.
12. On 22 June 1996 the applicants took the child to a doctor, who diagnosed pneumonia, telephoned the hospital and requested that Erika be admitted to hospital immediately. On arriving at the hospital Erika was initially taken to the cardiology unit. When she fell into a coma she was transferred to the intensive care unit. The doctors said that she had a serious infection in the left lung, which had weakened her heart.
13. On 24 June 1996 Erika died.
14. On 28 June 1996 the applicants lodged a complaint with the Nanterre public prosecutor. On 1 July 1996 an inquiry into the causes of death was opened.
15. On 3 July 1996 the investigating judge, Miss M., instructed the Sceaux Gendarmerie Investigation Squad to seize Erika’s medical file and question the members of the medical staff who had looked after Erika. On 14 August 1996 the Sceaux Investigation Squad reported back to the judge with its incomplete findings.
16. On 5 July 1996 the investigating judge ordered an autopsy, which was carried out on 9 July. Several tissue samples were taken in case a further examination was needed. The autopsy report, dated 25 July 1996, concluded that at the time of Erika’s death she had been suffering from an acute respiratory infection.
17. On 16 September 1996 the investigating judge commissioned a further anatomopathological report from Professor L., an expert in forensic medicine, and Dr D., a heart specialist, giving them until 15 December 1996 to submit their report.
18. On 13 January 1997 the investigating judge asked them to send her their report by the “absolute deadline of 20 January 1997”.
19. From the date of the autopsy onwards the applicants sent numerous letters to the Italian consulate-general in Paris, the Ministry of Foreign Affairs in Rome and Italian members of Parliament with the aim of securing the return of Erika’s body.
20. In Italy a number of MPs put parliamentary questions to the government and held press conferences on the case. Several newspaper articles were published on the subject.
21. The Italian consul-general made repeated representations to the investigating judge, including letters sent on 26 September, 26 November and 12 December 1996, and forwarded the information he had obtained to the applicants.
22. In January 1997 the consul-general made a formal complaint to the public prosecutor, who demanded an explanation from Professor L. In a letter of 12 February 1997, Professor L. replied as follows:
“The autopsy was carried out on 9 July 1996 and the investigating judge was immediately notified of the results by telephone. She was told that all the necessary samples of tissue from the internal organs had been taken and that the body could be returned to the family as from 9 July 1996.
The internal organs were to be studied subsequently from an anatomopathological viewpoint and this was done on 20 January and 4 February 1997, but I had also been instructed to examine the medical file and seek the opinion of another expert, which was done on 3 February 1997. When the seals were removed it was discovered that the intensive-care file was missing, and so we contacted our colleagues, who sent us a copy of it which we are currently examining.
The medical file is complex and it is essential that we have a certain amount of time to study it, but there is no reason to keep the body at the Institute of Forensic Medicine.
The administrative authorities of the Institute of Forensic Medicine have repeatedly expressed concern at the length of time the body has been kept in storage. On 2 June, 12 August and 18 August 1996 and on 15 January 1997 they contacted Miss M., the investigating judge at the Nanterre Court, who is in charge of the case. She said that she was awaiting the outcome of the anatomopathological examination, but the latter is part of a longer task of investigation and analysis which has not yet been completed.
Miss M. is therefore completely free to release the body from the Institute of Forensic Medicine and hence to sign the burial certificate, leaving the doctors the necessary time to carry out their work.”
23. On 14 February 1997, on receiving the above letter, the public prosecutor asked the investigating judge to order that Erika’s body be returned to her family.
24. On the same day investigating judge B., standing in for Miss M., issued a burial certificate.
25. On 19 February 1997 Erika was buried at Terracina Cemetery.
26. On 12 March 1997 Miss M. wrote to Professor L., expressing surprise that after more than six months the report had not yet been filed and asking him to inform her of any difficulties or obstacles that might explain the failure to do so.
27. On 18 March 1997 Professor L. replied that there had been “a problem with a discrepancy between the anatomical observations and the information in the medical file”, which meant that the experts had had to organise interviews with the doctors who had looked after the child, scheduled for 8 April 1997.
28. The experts’ report was filed on 29 April 1997. They concluded that “there was no possibility of life-saving surgery” and there were no signs of “any mistaken treatment”.
29. In a letter of 8 September 1997 a deputy public prosecutor informed the applicants that their case had been dropped because none of the expert reports ordered by the investigating judge had revealed any medical negligence, error of diagnosis or mistaken treatment that could possibly amount to a criminal offence.
30. Article 74 of the Code of Criminal Procedure provides:
“On discovery of a dead body, regardless of whether the deceased suffered a violent death, but wherever the cause of death is unknown or suspicious, the senior police officer who is advised thereof shall immediately notify the public prosecutor, promptly visit the place of discovery and make initial observations.
The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death took place. He may, however, delegate those tasks to a senior police officer of his choice.
Except where their names appear in one of the lists provided for in Article 157, persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience.
The public prosecutor may also call for an inquiry to investigate the causes of death.”
VIOLATED_ARTICLES: 8


ITEMID: 001-5468
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LARSEN v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Norwegian citizen, born in 1940. He is an inventor, resident in Stokke. In the proceedings before the Convention institutions he has been represented by Mr Trygve Fjeld, a lawyer practising in Drammen. The respondent Government are represented by their Agent, Mr Tolle Stabell, Attorney, Office of the Attorney General (Civil Matters).
The facts of the case, as submitted by the parties, may be summarised as follows.
While seeking to earn his living from his own inventions, the applicant encountered financial problems. He ceased to pay taxes in 1990 and by October 1995 his tax debt amounted to approximately NOK 152,476.
In view of the applicant’s financial problems, the local social security authorities issued a guarantee for a NOK 300,000 loan contracted by the applicant. Later, as the applicant defaulted on the loan, the municipality paid the bank in full and took over the loan and mortgage.
As of 24 October 1995, the applicant’s real property in Stokke was mortgaged for NOK 1,165,997. According to a valuation of 21 May 1990 acquired by the applicant, the property’s sales value was estimated at NOK 750,000 and its technical value at NOK 1.2 million.
On 30 October 1995 the tax authorities lodged a petition with the Tønsberg Probate Court (skifterett) for the opening of bankruptcy proceedings against the applicant. Under Norwegian law such a decision would be followed by the appointment of administrators entrusted mainly with the tasks of taking over the control of the debtor’s property, verifying the claims made in the estate and ensuring its fair distribution among the creditors, in accordance with specific rules. The administrators’ actions may be challenged separately by the debtor in ordinary judicial proceedings, if need be, at three instances, the first two with oral hearing.
At an oral hearing on 9 November 1995, the applicant, unassisted by counsel, declared that his debts amounted to NOK 1,050,000 and that his real assets amounted to NOK 1,350,000. By a decision (kjennelse) of the same date, the Probate Court dismissed the request for the opening of bankruptcy proceedings concerning the applicant’s estate, finding that, “because of uncertainty (usikkerhet) attached to the value of the applicant’s real estate, the issue of insolvency was uncertain (usikkert).”
The authorities appealed against the Probate Court’s decision to the Agder High Court (lagmannsrett), arguing that the sales value of the applicant’s real estate amounted to NOK 620,000670,000 according to an evaluation of 16 November 1995 carried out by a bank. Consequently, the applicant's debts exceeded his possessions by more than NOK 300,000.
In his rejoinder to the High Court dated 2 December 1995 the applicant, still unrepresented, requested that the appeal be dismissed “already at this preparatory stage of the proceedings”. He argued that at a meeting on 25 October 1994 the municipal social security office had undertaken to draw up a proposal for clearing his debts, implying an understanding that the municipality would not lodge bankruptcy proceedings. In an alternative submission, the applicant asked the High Court to hold a “main hearing” (“hovedforhandling”) in order to examine certain witnesses. Mrs S.B. could testify that the record of the meeting on 24 October 1994 erroneously concluded that he should give priority to paying his debts as she had attended as his witness and representative at the said meeting. Should the High Court wish to do so, it could also take evidence from one of his clients, who could testify about the applicant’s prospective future earnings, though the applicant considered it would not serve his commercial interest to call a client to testify. He moreover questioned the honesty and professionalism of the expert who had failed to visit the inside of his house before making the assessment of 16 November 1995. The applicant emphasised that since the earlier expertise made by another expert on 21 May 1990, he had invested work and money in the house, bringing the estimated “technical” value of NOK 1.2 million (as of 21 May 1990) up to NOK 1.4 million. In the applicant’s submission, it was the technical value (as opposed to the sales value) that had to be taken into account in determining the issue of insolvency.
In its decision (kjennelse) of 14 December 1995, the High Court overturned the Probate Court’s decision. The High Court observed at the outset that there was no ground for dismissing the case. Nor did it find any basis in Article 403 (1) of the Code of Civil Procedure (tvistemålsloven) for holding a hearing. As to the merits it concluded that the conditions for declaring the applicant bankrupt were fulfilled. It considered inter alia, that his total debts amounted to at least NOK 983,445. His only asset of importance was his real estate in Stokke. Having regard to the assessments of its value of 21 May 1990 and 16 November 1995 and to the investments allegedly made by the applicant, the High Court fixed the property’s sales value, which was decisive for the assessment of insolvency, at a maximum of NOK 800,000. There was thus a deficit of approximately NOK 183,000. His capacity for future earnings were most uncertain and could in any event only accrue in the distant future.
The applicant was notified of the High Court's decision on 23 December 1995. An annex to the decision informed him of the possibility to appeal to the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) within 2 weeks from the notification and subject to advance payment of the procedural costs. By letter of 27 December 1995 to the High Court, the applicant protested against the procedure and the date of notification, so close to the Christmas and New Year holidays, making it impossible to consult a lawyer. He also stated his intention to lodge an appeal.
By letter of 4 January 1996, the High Court informed the applicant that his submissions of 27 December 1995 did not fulfil the legal requirements for lodging an appeal and offered its assistance in drawing up an appeal, as provided for in the law on cases of unrepresented petitioners. The applicant did not take any further steps in this connection.
Under Article 403 (1) of the Code of Civil Procedure, an appeal to the High Court of the kind lodged in the present case - interlocutory appeal (kjæremål) - should as a rule be decided by the High Court without an oral hearing. A hearing was only to be held in exceptional cases, in order to avoid an excessive burden on the judiciary. Such hearings were not limited to certain types of cases and were to be held essentially in the same manner as ordinary appeals. No appeal lay against the court’s decision to hold a hearing. According to case-law and legal doctrine this applied also, in principle, to a decision not to hold a hearing. Where the High Court had taken a decision on whether or not to hold a hearing, the procedure by which it was reached could be challenged but not the decision itself (pp. 354-355 of Mr Tore Schei’s commentary to the Code of Civil Procedure (Tvistemålsloven, Tano, Oslo, 1990). Under Article 404 (1) no. 2 of the Code, an appeal could be lodged with the Appeals Selection Committee of the Supreme Court on the ground that the High Court had made a procedural error in relation to its decision.


ITEMID: 001-5192
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ZDEBSKI, ZDEBSKA AND ZDEBSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicants are Polish citizens. The first applicant was born in 1946. He died of cancer on 31 December 1995. The second applicant, born in 1953, was the first applicant's former wife who subsequently returned to live with him. The third applicant is the daughter of the first and second applicants. The applicants are represented before the Court by Mr Adam Włoch, a lawyer practising in Kraków.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 February 1994 the second applicant, who is a teacher, requested the Kraków educational authorities to issue her a licence to run an adoption agency ("agencja adopcyjna"). In reply, she was informed by an undated letter that centres dealing with adoption and custody matters could only be run by associations governed by the Associations Act, whose statutory purposes so provided.
On 19 September 1994 the Kraków Regional Prosecutor charged the first applicant with trading in children, an offence provided for by Article IX of the Transitory Provisions of the Criminal Code of 19 April 1969, applicable at the material time. On 20 September 1994 the first applicant was arrested. On the same day the applicant was examined by a psychiatrist from the Department of Psychiatry of the Jagiellonian University, since at the time of his arrest he had submitted that he had been suffering from depression for the last ten years. The medical opinion stated that, having regard to the first applicant’s state of mental health, he should be detained in the psychiatric ward of the Kraków Detention Centre.
On 21 September 1994 the Kraków Regional Prosecutor remanded him in custody for a period of three months on suspicion of trading in children. On the same day the prosecutor asked the Kraków Detention Centre to place the applicant in the psychiatric ward.

On 22 September 1994 the applicant was examined by a physician from the detention centre hospital. The medical examination did not show any pathological changes in the applicant’s thorax, skeleton, nervous system, urinary system or abdominal cavity. The physician recommended that the applicant should be seen by a psychiatrist and a specialist in internal medicine and should have an X-ray. An X-ray taken afterwards showed a shadow at the top of his right lung. On 11 October 1994 therefore the X-ray was repeated. It showed a shadow of 4 cm in his lung.
On 30 September 1994 written grounds of a decision of 19 September 1994 were served on the first applicant. The prosecutor considered that there was a strong suspicion that in September 1993 he had contacted Mr and Ms C. and, taking advantage of their difficult financial situation, convinced them to give for adoption their child which was soon to be born. At the beginning of October 1993, upon discharge of the mother from the hospital where the child had been born, he had placed it with third parties. The biological parents had not had any further contact with the child. Later, a week before a court hearing in the adoption proceedings, the first applicant had organised a meeting at the law firm of A.W. attended by Mr and Ms C. and an American couple, the Ks. On the day of the hearing and after a favourable decision as to adoption by Mr and Ms K. had been rendered by the court, the first applicant had given 8,500,000 old zlotys (PLZ) to the Cs. and had retained PLZ 1,500,000 for himself, apparently as reimbursement of costs which he had borne for the maintenance of the child. It had further been established that in November 1993 the first applicant had had contacts with K.B., who had been pregnant at that time. After her child had been born, he had taken it from K.B. upon her discharge from hospital and had placed the child with third parties. The mother had not had any further contact with the child. From June 1993 to November 1993 the first applicant had paid to K.B. PLZ 9,000,000 in monthly instalments of PLZ 1,500,000. The child had apparently later been adopted by another American family.
On 28 and 30 September 1994, the prosecutor consulted doctors from the detention centre hospital in order to establish whether the applicant could take part in the criminal proceedings conducted against him. They informed him that the applicant’s health did not prevent him from participating in the proceedings.
On 1 October 1994 the Office of Kraków Municipal Council registered the first applicant's company. In accordance with the terms of the registration certificate he was allowed to run a legal advice company, providing, inter alia, legal counselling concerning adoption proceedings and "cooperation with agencies dealing with adoption matters" ("współpraca z agencjami adopcyjnymi").
On 13 October 1994 the first applicant was examined by a lung specialist who ordered that he should undergo a new X-ray or tomographical examination, and bronchoscopy. On 17 October 1994 the detention centre established that the applicant could have a bronchoscopy at the Jan Paweł II Hospital in Kraków on 21 October 1994.
On 21 October 1994 the Kraków Regional Public Prosecutor had a phone conversation with doctors from the detention centre in order to establish whether the applicant could participate in the criminal proceedings. He was informed that the applicant was undergoing diagnostic tests since suspect shadows had been found in his right lung. By a letter of the same date the prosecutor requested the prison hospital to provide information in writing about the applicant’s health as soon as possible.
The tomography of the applicant’s lungs was carried out on 18 November 1994. Its interpretation, given on 23 November 1994, confirmed the presence of suspect changes in his lungs.
On 18 November 1994 the applicant’s defence counsel filed with the Regional Public Prosecutor’s Office a request for release based on Article 218 of the Code of Criminal Procedure, submitting that the applicant should be released as there was a suspicion that he was suffering from lung cancer.
On 21 November 1994 the Kraków Regional Prosecutor refused to release the applicant, having regard to the fact that information obtained from the detention centre hospital regarding the applicant’s health was insufficient to establish whether he was suffering from cancer.

On 30 November 1994 the applicant underwent a bronchoscopy.

On 6 December 1994 a panel of physicians of the Kraków detention centre hospital stated that the applicant should be released as he was suffering from lung cancer. The prosecutor requested that a further medical report be prepared concerning the compatibility of the applicant’s health with his continued detention. On 14 December 1994 two specialists from the Institute of Forensic Medicine of Kraków University confirmed that there was a strong likelihood that the applicant was suffering from lung cancer.
On 19 December 1994 the applicant was released. A medical certificate issued on the day of his discharge from the prison hospital stated that cytological tests had shown the presence of suspect cells in his lungs. There was a strong likelihood that he was suffering from lung cancer. An examination by a lung specialist was urgently necessary. The applicant's condition also necessitated a tomographical examination of his lungs as well as a bronchoscopy. The applicant was also suffering from depression. While hospitalised, he had been receiving various drugs.
On 29 December 1994 the applicant was admitted to a hospital in Kraków. He subsequently underwent a course of radiation therapy.
On 11 January 1994 the Kraków Court of Appeal refused the public prosecutor's request for prolongation of detention on remand of another suspect detained in the same case, A.W., who was an advocate. The court stated that the acts with which A.W. had been charged could not reasonably be qualified as trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code. This was so because, in the assessment of what could constitute the offence of "trading in children", regard had necessarily to be had to the fact that adoption was in a child's best interest, whereas the notion of trading in human beings inherently involved acts to the detriment of the victims of such trade. Whereas it was true, the court continued, that adoption did, to a certain extent, limit the liberty of a person to be adopted, its purpose was to improve a child's conditions of life and to enhance its prospects of well-being. Therefore, adoption in itself had to be perceived as being beneficial for a child. In the case under examination, it had not been established by the investigating authorities that the acts with which A.W. had been charged had caused any harm to any children, or to other persons. The court attached importance to the fact that Section IX of the Transitional Provisions of the Criminal Code which penalised trading in human beings was to be replaced, following a proposal by a committee charged with drafting a new Code, by a separate offence of organising adoptions for commercial purposes. It indicated, the court emphasised, that it was impossible to charge A.W. with the offence defined in Section IX of the Transitional Provisions, as the offence of trading in human beings was considered by an unanimous opinion of eminent legal scholars, members of the drafting committee, to constitute an offence separate from the one of organising adoptions for commercial purposes. The court concluded that the mere fact that A.W. had acted as a lawyer and as an intermediary in numerous adoption proceedings and had received fees for it, was not sufficient for a reasonable suspicion that an offence punishable under Section IX had been committed.
On 21 February 1995 the first applicant underwent an operation. A part of his lungs was removed. During the operation the presence of metastases in his lymph nodes was established.
He was discharged from hospital on 23 March 1995.

On 31 December 1995 the applicant died of lung cancer.
On 31 January 1996 the second applicant requested that criminal proceedings be instituted concerning the causes of the first applicant's death. She submitted that, after his admission to the prison hospital, an X-ray had showed possible symptoms of cancer. At the beginning of October 1994 the prison medical services had accordingly notified the prosecutor and had pointed out the possibility of a quick and violent progress of the cancer. They had emphasised the necessity of the applicant's further examination by specialists and, possibly, of an operation. The second applicant further submitted that, throughout the first applicant's stay in the prison hospital, the prosecutor I. K.-B. had been informed on an ongoing basis by the applicant's lawyers of the fact that his continued detention entailed an immediate danger to his life. She had entirely disregarded this information. Likewise, she had disregarded the results of the first applicant's medical examinations. She had also ignored the medical opinions of the prison hospital and of the Forensic Medicine Institute indicating that the applicant's condition had been incompatible with his continued detention. She had kept refusing to release him, considering that the applicant had been prevaricating. The second applicant further stated that the first applicant's treatment after his release had been ineffective, mainly owing to the fact that the illness had already been in an advanced stage. The first applicant had received a course of radiation therapy and had subsequently undergone the operation. The second applicant stated that the evidence to prove the accuracy of her assertions was to be found in the first applicant's medical records at the prison hospital and the Kraków Pulmonological Hospital, and in the applicant's medical records kept by the Kraków Forensic Medicine Institute.
The second applicant asserted that the first applicant's death had been caused by his detention from September to December 1994 and by the lack of any adequate treatment against cancer throughout that time. She submitted in particular that had the first applicant been released earlier to receive adequate treatment, he would have had a chance to be saved. The fact that during his detention he had been deprived of treatment, amounted, in the second applicant's opinion, to manslaughter within the meaning of the relevant provisions of the Criminal Code.
On 12 January 1996 the Ministry of Justice ordered that the investigation of the second applicant's allegations should be conducted by a prosecutor from a prosecutor's office outside of Kraków.

On 25 March 1996 the Kraków Regional Prosecutor, in view of the first applicant's death, discontinued the criminal proceedings against him.
On 8 March 1996 the Tarnów Regional District Prosecutor refused to institute criminal proceedings concerning the first applicant's death.
On 29 April 1996 the Appellate Prosecutor in Kraków quashed this decision and ordered that the investigations be resumed.
On 30 July 1996 the investigations were discontinued as the Public Prosecutor found that no criminal offence had been committed. Two copies of this decision were sent to the second applicant’s addresses in Kraków and in Nowy Targ. It is not contested that the first one was served on the applicant on 6 August 1996, and the second one on 12 August 1996.
The applicant lodged an appeal against this decision on 19 August 1996. On 22 August 1996 the Tarnów Regional Prosecutor refused to accept her appeal, considering that the seven-day time-limit should have been calculated from the date of the effective service of the decision on the second applicant, i.e. from 6 August 1996 and that, therefore, the applicant had submitted her appeal out of the statutory time-limit.
B. Relevant domestic law
1. Detention on remand

Under Chapter 23 of the Code of Criminal Procedure, as applicable at the material time, the lawfulness of the Public Prosecutor's detention order could be challenged before a court. The authorities competent to decide in relation to detention on remand were specified in Articles 210 and 212 of the Polish Code of Criminal Procedure, which at the material time read as follows:
Article 210:
"1. Preventive measures [including detention on remand] are imposed by the court; before a bill of indictment is sent to the court, they are imposed by the prosecutor (...)."
Article 212:
"1. The decision concerning preventive measures may be appealed [to the higher court] (...).
2. The prosecutor's order on detention on remand may be appealed to the court competent to consider the criminal proceedings at issue. (...)"
2. Proceedings for compensation for unjustified detention

Chapter 50 of the Code of Criminal Procedure, as applicable at the material time, provided for compensation regarding damages arising out of imprisonment resulting from conviction which has subsequently been quashed and the convicted person acquitted, for obviously unjustified detention on remand and for arrest and detention up to 48 hours. The Regional Court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation had been met. The decision of the Regional Court could be appealed to the Court of Appeal.
According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention under Article 487 of the Code of Criminal Procedure could not be lodged until the criminal proceedings against the person concerned were terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. ialia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7).
The proceedings relating to a request under Article 487 of the Code of Criminal Procedure were to be regarded as independent of the original criminal proceedings in which the detention was imposed. They were not designed to secure release from detention but financial reparation for damage arising from unjustified detention on remand. The person concerned, by instituting such proceedings, could retrospectively seek a ruling as to whether his or her detention was justified. He or she could, however, challenge the lawfulness of continuing detention on remand and obtain his or her release.
3. Civil liability in tort of the State Treasury
Under Article 417 of the Civil Code, the State Treasury is liable for damage caused by an agent of the State in the exercise of his or her duties.