ITEMID: 001-60496
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF LANDVREUGD v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: No violation of P4-2;No separate issue under Art. 8
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 10. On 2 December 1994 the Burgomaster (Burgemeester) of Amsterdam, relying on Sections 172 and 175 of the Municipality Act (Gemeentewet) as amended on 1 January 1994, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed for a period of fourteen days to enter a particular area, i.e. the “Ganzenhoef” area, one of the emergency areas designated by the Burgomaster. The following events were referred to in the Burgomaster’s decision as having led to this order being issued:
– It appeared from police reports that on 9 and 12 September, 3 October, 14 and 16 November 1994 the applicant had either overtly used hard drugs, had had utensils for the use of hard drugs in his possession or had had hard drugs in his possession in the Ganzenhoef area and that on four of those occasions the applicant had been ordered to leave the area for eight hours.
– On 16 November 1994 the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from acts which disturbed the public order (openbare orde) or have to stay away from the area. The applicant had further been informed that if he committed such acts again in the near future, the Burgomaster would be requested to impose a prohibition order for fourteen days on him. On that occasion the applicant did not wish to state anything as to the reasons for his presence in that area.
– On 25 November 1994 the applicant had nevertheless overtly used hard drugs in the Ganzenhoef area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a prohibition order for fourteen days on the applicant.
11. In the opinion of the Burgomaster the applicant would again commit acts disturbing public order within the near future. In this respect the Burgomaster took account of the kind of conduct involved, i.e. acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant’s home nor his place of work were situated in the area concerned.
12. On 12 December 1994 the applicant submitted an objection (bezwaarschrift) against the prohibition order to the Burgomaster. He submitted, inter alia, that the Burgomaster had failed to take into account the fact that he was residing in the Ganzenhoef area, that he needed to be present there in person twice a week in order to collect his social security benefits and that he received social counselling there. The applicant stated that the police knew this, but had failed to mention it in the police report on the applicant’s hearing of 16 November 1994.
13. The applicant further submitted that the prohibition order could not be considered as having a legal basis in that the emergency powers granted to the Burgomaster under the Municipality Act were intended for emergency situations. According to the applicant, the legislature had never intended structural nuisance caused by drug abusers to be considered as creating an emergency situation. Moreover, the applicant’s absence from the Ganzenhoef area would not make any difference in this respect since he was only one of many drug abusers in that area. The applicant also complained that the order was contrary to Article 6 of the Convention in that it constituted a sanction and could therefore only be imposed by a judge. He further complained that the order restricted his freedom of movement and was contrary to his right to respect for his private life, family life, home and correspondence.
14. On 10 January 1995 a hearing took place before an advisory committee. During this hearing the representative of the Burgomaster stated that already on 19 April 1994 a prohibition order for fourteen days had been imposed on the applicant and that on 16 November 1994 the applicant had not wished to make any statement to the police as to the reasons for his presence in the Ganzenhoef area. Despite the previous orders, the applicant had continued his undesirable conduct and on this ground the imposition of a new prohibition order had been sought. The Burgomaster’s representative further stated that the address where the applicant had stated that he resided and where he collected his mail and social security benefits was in fact the address of the Streetcornerwork Foundation. It was not possible to reside at that address. This Foundation had a procedure under which social-security benefits for persons subject to a prohibition order could be collected by an authorised third party and it was possible for the applicant to avail himself of that procedure.
15. On 29 June 1995 the committee advised the Burgomaster to reject the objection and to maintain the prohibition order. It considered, inter alia, having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disrupted public order and that the prohibition orders for eight hours which had been issued had not prevented him from behaving in that manner, that the imposition of the prohibition order had not been unreasonable. It further found that the order was in conformity with Section 172 (3) of the Municipality Act, that therefore it was not necessary to examine the question whether or not the conditions set out in Section 175 of the Municipality Act had been fulfilled, and that the Burgomaster had not exceeded his competence under the Municipality Act. It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued in order to maintain public order. The committee finally found that the interference with the applicant’s right to liberty of movement had been justified and that the prohibition order could not be regarded as disproportionate.
16. By decision of 6 July 1995 the Burgomaster rejected the applicant’s objection, adopting as his own the reasoning applied by the advisory committee.
17. The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of Amsterdam.
18. By judgment of 19 January 1996, following adversarial proceedings in the course of which a hearing was held on 8 December 1995, the Regional Court declared the applicant’s appeal well-founded and quashed the prohibition order.
19. The Regional Court accepted that the overt use of hard drugs in public places and the presence of a concentration of drug abusers and dealers disrupted public order and acknowledged the necessity to end such nuisance, in particular when this occurred continuously at specific locations in the city. The Regional Court noted that the Burgomaster availed himself of two means to that end, namely prohibition orders of either eight hours or fourteen days. It considered the procedure established as regards the imposition of prohibition orders for a duration of fourteen days and noted that this procedure had not been fully complied with in that the applicant’s prohibition order had not been sought by the competent police officer. However, as it was not established that this had harmed the applicant’s interests, it did not find that this flaw should result in the quashing of the order. It did, however, find that the order should be quashed on other grounds.
20. The Regional Court held that, unlike the situation in which an eighthour prohibition order has been imposed, Section 172 (3) of the Municipality Act offered no basis for the imposition of a prohibition order for a duration of fourteen days. It held on this point that the competence established by this provision aimed to create a possibility for direct reaction to an expected disturbance of public order and might serve to prohibit someone’s presence for a limited period of time in the area where the disturbance of public order was expected. It held that the eight-hour prohibition order was such as to meet this need, but not the fourteen days prohibition order, the latter measure being disproportionate in relation to the expected disruption of public order and thus going beyond what could be considered necessary for maintaining public order.
21. The Regional Court added that in the present case this was all the more so as the applicant had no permanent place of residence and used the address of the Streetcornerwork Foundation as his postal address. The prohibition order implied that the applicant’s freedom of movement was limited for fourteen days in a manner which prevented him from collecting his mail and from receiving his social security benefits. It rejected the argument advanced by the Burgomaster’s representative that the police would not undertake any formal action against the applicant for acting contrary to Article 184 of the Criminal Code (Wetboek van Strafrecht), i.e. the offence of failure to comply with an official order (ambtelijk bevel), when collecting his social security benefits at the address of the Streetcornerwork Foundation, considering that the applicant’s freedom of movement could not be made dependent on the willingness of the police officer on duty to tolerate intrinsically punishable conduct.
22. The Regional Court further found that the situation at issue, i.e. nuisance caused by drug abuse, did not constitute a situation within the meaning of Section 175 of the Municipality Act and accordingly held that the Burgomaster could not have based the prohibition order on this provision. As it had already found the prohibition order to be incompatible with national law, the Regional Court did not find it necessary to determine whether or not the order was compatible with Article 6 of the Convention.
23. On 7 February 1996, the Burgomaster lodged an appeal against the Regional Court’s judgment with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).
24. In its judgment of 19 December 1996, following adversarial proceedings, the Administrative Jurisdiction Division quashed the Regional Court’s judgment of 19 January 1996 and rejected the applicant’s appeal to the Regional Court as ill-founded. Its reasoning included the following:
“The prohibition order issued against Landvreugd is based on a decision of the appellant, dated 28 October 1993 and addressed to the Chief Superintendent of Police, which contains an instruction to the police relating to the preparation and issuing of a fourteen-day prohibition order. This instruction designates the Ganzenhoef area as an “emergency area” and indicates the behaviour which the appellant considers to be constitutive of serious breaches of public order, including the overt possession or use on or near the public highway of addictive substances within the meaning of Section 2 of the Opium Act.
The Regional Court held, among other things, that the appellant was not competent to act on the basis of Section 175 of the Municipality Act, because a situation within the meaning of that Section was lacking. The Administrative Jurisdiction Division does not share this opinion. Its reasons are the following.
It is laid down in Section 175, first paragraph, of the Municipality Act that in case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution.
The Administrative Jurisdiction Division notes at the outset that giving orders in the situations described in Section 175 of the Municipality Act is not contrary to the right to freedom of movement as guaranteed by Article 12 of the International Covenant on Civil and Political Rights and Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, since provision has been made for the possibility to limit this right by law – which also includes an order given by the Burgomaster pursuant to the law – for the protection of public order.
Section 175 of the Municipality Act replaced Section 219 of the Municipality Act which was repealed as of 1 January 1994. As did Section 219, Section 175 grants the Burgomaster emergency powers which should only be used in exceptional situations. Thus provision has been made by law for circumstances in which ordinary means are insufficient to restore and maintain public order. The Administrative Jurisdiction Division notes in this connection that the wording of Section 175 does not lead to the conclusion that that provision, as compared with Section 219, is intended to introduce any changes as regards the circumstances in which emergency powers may be used. Its drafting history does not justify holding otherwise.
In the opinion of the Administrative Jurisdiction Division, ordinary means may be considered insufficient in the present case and there was, at the time of the decision on the objection, an exceptional situation of the kind referred to above. The Administrative Jurisdiction Division finds in this regard that the facts relating to the situation in the Ganzenhoef area, based on which the appellant decided to issue the fourteen-day prohibition order, are established. In light of the decision of 28 October 1993 the situation there was characterised by the presence of a large number of drug addicts and the attendant nuisance, inconvenience, insecurity and threats to other citizens. This factual situation is so serious that the personnel and means available to the appellant were insufficient to counter the disruptions of public order thereby caused.
It is important to note in this context that at the time the objection was decided on, it was not possible to solve the problem there by means of a regulation adopted by the municipality (gemeentelijke regeling). At that time there was no relevant provision in any municipality bye-law, nor were any other adequate administrative-law means available. Given that the decision dismissing the objection was given before the Administrative Jurisdiction Division delivered its decision of 14 May 1996 ..., the absence of such a provision cannot be held against the appellant. Apart from that, by a decision of 26 June 1996, Section 2.6 A has been added to the General Municipal Bye-law of Amsterdam, which contains a regulation governing prohibition orders in relation to hard drugs. Against this background, the Administrative Jurisdiction Division is of the opinion that it cannot be maintained that the appellant was not entitled to use the powers granted him by Section 175 of the Municipality Act.
... The position taken by the appellant, that the risk of repetition of behaviour constituting a breach of the peace was so great that a fourteen-day prohibition order was necessary, is not unreasonable.
The Administrative Jurisdiction Division further notes that Landvreugd is not resident in the Ganzenhoef area, is not dependent on that area for work, and that he was offered the possibility to collect his social-security benefits from the Streetcornerwork Foundation.”
25. Apart from the proceedings described above, the applicant was arrested and placed in detention on 4 December 1994 for failure to comply with the prohibition order of 2 December 1994. On 20 December 1994 the single-judge chamber (politierechter) of the Amsterdam Regional Court (arrondissementsrechtbank) suspended the applicant’s pre-trial detention in order to allow the applicant to be admitted to the Crisis Observation and Detoxification Department of the J. clinic and adjourned the criminal proceedings against the applicant sine die.
26. By judgment of 22 May 1995, the single-judge chamber of the Regional Court convicted the applicant of having failed to respect a prohibition order on two occasions and sentenced him to four months’ imprisonment with deduction of the time spent in pre-trial detention. The applicant appealed to the Court of Appeal (gerechtshof) of Amsterdam.
27. In its judgment of 4 February 1997, the Court of Appeal quashed the judgment of 22 May 1995 and convicted the applicant of having failed to respect a prohibition order on one occasion. However, as the applicant had also amassed other convictions which the law required to be taken into account for sentencing purposes, the Court of Appeal was prevented from imposing any sentence as the maximum aggregate penalty had already been attained. The applicant’s subsequent appeal on points of law was rejected on 16 June 1998 by the Supreme Court (Hoge Raad).
28. The criminal proceedings against the applicant do not form part of the case before the Court.
29. Section 219 of the former Municipality Act, in force until 31 December 1993, provided as follows:
“1. In case of a riotous movement, gathering or other disturbance of public order or of serious calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger.
...”
30. A new Municipality Act entered into force on 1 January 1994. Section 172 of the new Municipality Act provides as follows:
“1. The Burgomaster is responsible for maintaining public order.
2. The Burgomaster is empowered to prevent or to end offences against statutory provisions relating to public order. In doing so he avails himself of the police under his authority.
3. In case of disruption of public order or a well-founded fear of the development thereof, the Burgomaster is empowered to issue orders deemed necessary for the maintenance of public order.”
31. Section 175 of the new Municipality Act reads:
“1. In case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution.
2. The Burgomaster shall not have recourse to measures of violence without having issued the necessary warning.”
32. Article 184 of the Criminal Code (Wetboek van Strafrecht), in so far as relevant, reads:
“1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a secondcategory fine.
2. ...
3. ...
4. If the offender commits the indictable offence within two years of a previous conviction for such an offence having become final, the term of imprisonment may be increased by a third.”
33. In the Netherlands, a Burgomaster of a town or city is appointed by the Queen (Section 61 of the Municipality Act). Municipal regulations, such as general municipal bye-laws, are adopted by the Municipal Council (Section 147 of the Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution).
34. By letter of 4 July 1983 the Burgomaster of Amsterdam informed the Chief Superintendent (Hoofdcommissaris) of the Amsterdam police that, in view of the situation in the city centre, the Chief Superintendent and police officers acting on the Burgomaster’s behalf would be able to give orders, based on Section 219 of the Municipality Act, as in force at the time, to people to leave a particular area within the city centre and not to return to it for eight hours.
35. The Burgomaster extended the area of the city centre where these orders could be issued by letter of 25 July 1988. Subsequently, by letter of 8 March 1989, the Burgomaster also empowered the Chief Superintendent and his officers to order people to leave the designated city centre area for fourteen days.
36. By letter of 17 October 1989 the Burgomaster changed this instruction replacing the discretion of the police officers to issue eight-hour prohibition orders by a strict order to do so in specified circumstances. This letter contains the following passage:
“In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to, dealers in, and addicts dealing in, hard drugs. The attending behaviour disrupts public order, causes considerable nuisance and constitutes an incessant threat to public life. In these circumstances (in dit verband) I judge the situation to constitute an exceptional situation within the meaning of Section 219 of the Municipality Act.”
37. The Burgomaster’s instructions were further changed by letter of 13 November 1989 pursuant to which prohibition orders for fourteen days could no longer be issued by the police on behalf of the Burgomaster but only by the Burgomaster himself.
38. A prohibition order for fourteen days could be imposed on a person if in the preceding six months five procès-verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order, such as, inter alia:
– the possession and use of addictive substances appearing in Annex 1 to the Opium Act (Opiumwet; i.e. hard drugs) on the public highway;
– dealing in addictive substances appearing in Annex 1 to the Opium Act on the public highway;
– overt possession of knives or other banned objects in so far as this constituted a criminal offence pursuant to the general municipal bye-law or the Arms and Ammunition Act (Wet Wapens en Munitie);
– committing the offence of Article 184 of the Criminal Code where the order not complied with was a prohibition order for eight hours;
– acts of violence, thefts from cars on or along the public highway, overt selling of stolen goods on or along the public highway, in so far as there was a connection between these offences and hard drugs.
39. On the occasion of a fourth procès-verbal being drawn up against him, the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his (continued) presence in the emergency area. The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order, the police would request the Burgomaster to impose a prohibition order for fourteen days.
40. It is undisputed that the Burgomaster’s letters aforementioned were neither published nor laid open to public inspection and that the Burgomaster’s instructions were not otherwise made public.
41. In a decision of 11 January 1989, Administratiefrechtelijke Beslissingen (Administrative Law Reports) 1989, no. 424, given under former Section 219 of the Municipality Act and relating to a part of the old city centre of Amsterdam where the situation was similar to that in the Ganzenhoef area, the President of the Judicial Division of the Council of State held as follows:
“As the Judicial Division has held in previous decisions, Section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order.
It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned Section 219, first paragraph.
In so doing, we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the (old) city centre of Amsterdam:
‘The old city centre of Amsterdam is known internationally and nationally as a centre for the trade in hard drugs. It continues to attract large numbers of addicts. The doings and dealings of addicts and dealers generally cause serious nuisance: overt use and dealing, intimidating group behaviour, threats to passers-by (frequently with knives), shouting, raving, fights, robberies (frequently with knives), thefts, receiving stolen property, etc. The old city centre has many functions; an important one is as a residential and commercial area. However, the situation threatens all the time to become unliveable.
The extent to which matters have deteriorated for the residents yet again is apparent from the desperate protests which took place at the beginning of November last year. These protests ended, for the time being, at a meeting of the Police Affairs Committee which was attended by a crowd of people.
The Damstraat, Oude Doelenstraat, Nieuwe and Oude Hoogstraat are part of the crisis area. The Damstraat (the Oude Doelenstraat, the Nieuwe and Oude Hoogstraat are the prolongation of the Damstraat) constitutes the entrance to the old city centre. In this part of the town all manner of soft drugs, but especially hard drugs, are for sale, in small or large amounts: hashish, cocaine, amphetamine, LSD, heroin and other mindaltering substances. In this area especially street traders go about more than elsewhere in the city centre peddling fake hard drugs.
The presence of the dealers and large numbers of addicts with the attending criminality seriously affect the area.
Because of, amongst other things, the strong protests of local residents a special project team of the police was active in the Damstraat area for six weeks from 14 November 1988 onwards. Their actions were directed in particular towards the bridge between the Oude Doelenstraat and the Oude Hoogstraat, the so-called pills bridge. This bridge was occupied by representatives of a new phenomenon, namely multiple drugs use.
The project team set itself the primary task of restoring public order. During the action there were 600! arrests, hundreds of knives were seized and hundreds of prohibition orders were issued.’
Noting all this, we are of the provisional opinion that an emergency situation of the kind referred to in Section 219, first paragraph, of the Municipality Act was rightly found to exist. The respondent was therefore entitled to issue the disputed orders.”
Similarly, in a decision of 31 July 1989, Kort Geding (Summary Proceedings Law Reports) 1989, no. 314, the President of the Judicial Division held:
“As the Judicial Division has held in previous decisions, Section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order.
It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned Section 219, first paragraph.
As was held in the decision of 11 January 1989 (...) in relation to the situation in the (old) city centre, the respondent rightly found that an emergency situation of the kind referred to in Section 219, first paragraph, of the Municipality Act existed.”
42. In a judgment of 23 April 1996, Nederlandse Jurisprudentie 1996, no. 514, which related to a criminal prosecution under Article 184 of the Criminal Code for failure to comply with an eight-hour prohibition order, the Supreme Court (Hoge Raad) accepted that the Burgomaster’s powers under Section 219 of the former Municipality Act (for present purposes, the predecessor to Sections 172 and 175 of the present Municipality Act) were intended only for exceptional situations. It held, however, that the mere fact that two and a half years had passed since the Burgomaster had declared an emergency situation – the case related to the Burgomaster’s instruction of 17 October 1989 – was not sufficient per se to justify the conclusion that an exceptional situation no longer existed. It also held, in the same judgment, that Article 6 of the Convention did not apply to eight-hour prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order. Nor did such orders violate Article 2 of the Fourth Protocol, since they were “in accordance with law” and “necessary in a democratic society” for “the maintenance of ordre public”. The judgment of the Supreme Court left in force a judgment of the Amsterdam Court of Appeal sentencing the defendant in that case to two weeks’ imprisonment.
43. Section 7:1 of the General Administrative Law Act (Algemene wet bestuursrecht) provides, in relevant part, that a person entitled to appeal to an administrative tribunal against a decision of an administrative organ (see the following paragraph) should first submit an objection to the administrative organ in question. The objector and any other interested party are entitled to be heard (Section 7:2). The administrative organ can delegate the hearing to an advisory committee (Section 7:13).
44. A person directly affected by a decision of an administrative organ (certain categories of decisions, not relevant to the present case, excepted) is entitled to appeal against that decision to the Regional Court (Section 8:1 of the General Administrative Law Act). Except in certain exceptional cases not relevant to the present case, a further appeal lay to the Administrative Jurisdiction Division of the Council of State (Section 37 of the Council of State Act – Wet op de Raad van State).


ITEMID: 001-82305
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SERDYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1986 and lives in Dzhankoy, Ukraine.
5. On 24 July 1997, when the applicant, a minor at the time, was playing in the yard near home and climbed the concrete wall surrounding the Dzhankoy State Boarding School (the “School”; Джанкойська республіканська загальноосвітня школа-інтернат), a concrete slab from the wall, weighing 1,500 kg, fell on him. The applicant survived, but became permanently and severely disabled.
6. According to the applicant, between 1997 and 1999 his parents lodged numerous unsuccessful requests for investigation into the accident, however, he did not submit any relevant documents predating 7 June 1999.
7. On 7 June 1999 the Dzhankoy Prosecutors' Office refused to initiate criminal proceedings into the accident, which decision was subsequently quashed by the Dzhankoy Court (Джанкойський міський суд). Between June 1999 and May 2001 the criminal proceedings were terminated and resumed on several occasions. The last decision terminating the proceedings was given by the Prosecutors' Office on 15 May 2001. The applicant did not challenge this decision before the domestic courts.
8. According to an expert assessment ordered in the course of the investigation, the wall had been designed in breach of relevant technical standards, which fact, augmented by lack of regular renovations, caused the fall of the slab. The investigation further established that the wall had been built in 1980s without a planning permission or other relevant documents and that the School's staff performed some ad hoc renovation works on it. However, the investigation was terminated on the ground that it was not possible to establish either the constructor or the owner of the wall, since the wall did not feature in either the School's or the city records. These records listed, instead, a non-existent fence of wood and wire-net belonging to the School. Furthermore, a criminal investigation against the constructor would have been time-barred.
9. In October 2000 the applicant instituted civil proceedings in the Zhankoy Court against the School and the Ministry of Education of the Autonomous Republic of the Crimea, seeking compensation for damages caused by his injury.
10. On 25 January 2001 the Court suspended the proceedings at the request of one of the parties in view of the re-opening of the criminal proceedings. In May 2001, after the criminal proceedings were terminated, the court resumed the hearings.
11. Between December 2000 and November 2001 the court scheduled some eleven hearings, three of them being adjourned on account of the absence of a School representative, and one in view of the judge's sickness.
12. On 20 November 2001 the Dzhankoy Court rejected the applicant's claims as being unsubstantiated. In particular, it confirmed that the wall surrounding the School did not belong to it and therefore the defendants bore no liability for its maintenance.
13. On 13 February 2002 the Court of Appeal of the Autonomous Republic of the Crimea (the “Court of Appeal”; Апеляційний суд Автономної Республіки Крим) quashed this judgment and remitted the case for a fresh consideration to the first instance court. The court ordered to take additional measures for establishing the parties responsible for the construction and maintenance of the wall.
14. Between June and December 2002 the City Court scheduled some six hearings, two of them being adjourned on account of the defendant's absence, and one – on account of absence of an expert.
15. On 12 December 2002 the City Court rejected the applicant's complaints, having noted that all its efforts to establish a party responsible for the construction or maintenance had been to no avail.
16. On 26 March 2003 the Court of Appeal quashed the judgment of 12 December 2002 and remitted the case for a fresh consideration on essentially the same grounds as before.
17. Between June and October 2003 the court scheduled four hearings, all adjourned on account of the defendants' conduct (absences and requests for adjournments).
18. On 22 October 2003 the City Court allowed the School's request for leave to appeal in cassation out of time against the ruling of 26 March 2003, having found that the School had not been duly informed of this ruling.
19. On 6 June 2005 the Supreme Court rejected the School's cassation appeal.
20. Since then the proceedings have been pending before the first instance court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103598
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LALMAHOMED v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-c
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1962 and lives in Delft.
6. On 7 June 2006 a person was stopped for questioning in connection with an offence against the General Municipality Bye-laws (Algemene Plaatselijke Verordening) of The Hague. He had no proof of his identity on his person.
7. The police officer identified the person as the applicant from a police photograph. The applicant was fined 50 euros (EUR) for not being able to show proof of identity. The fine was not paid, and the applicant was summoned to appear before the District Court judge (kantonrechter) of The Hague to answer a charge of failing to present an official identity document (see paragraph 16 below).
8. On 15 January 2007 the applicant appeared before the District Court judge. He claimed to be innocent, suggesting that the culprit might have been his brother. He stated that he had been acquitted of similar charges several times before. The District Court judge then adjourned the hearing in order to enable the reporting police officer and the applicant to check an identity photograph together. The applicant gave a mobile telephone number so that an appointment could be made.
9. On 9 May 2007 instructions were sent on the public prosecutor's behalf to the police for the applicant to be shown the police identity photograph, a new official record to be made and a photograph of the applicant and if possible his brother also to be attached thereto.
10. On 27 June 2007 a police officer drew up an official record of his various attempts to contact the applicant by telephone; he had been met with a recording of the voice of a man asking callers not to leave any messages because he had insufficient prepaid credit to listen to them and call back. The Government state that the police officer who had first identified the applicant (paragraph 7 above) wished to persist in his statement that he had recognised the accused as the applicant from the photograph in the possession of the police. Clear police photographs of the applicant and his brother, which the Government state show that there was little resemblance between them, were dispatched in addition.
11. The hearing was resumed on 11 October 2007 at 12 noon. The applicant had been summoned in writing but failed to turn up in time to take part. The District Court judge then tried him in absentia, convicted him and sentenced him to a fine of EUR 60 or one day's detention in lieu. Judgment was given orally. The official record of delivery reads as follows:
“OFFICIAL RECORD OF DELIVERY OF ORAL JUDGMENT (AANTEKENING MONDELING VONNIS)
Judgment given by District Court judge C. on 11 October 2007 in the case against the accused
Name: Lalmahomed
First names: Goelzeer
Born on: 30 October 1962 in District Suriname (Suriname)
Address: [etc.]
Place of residence: Delft
Defended case, [accused] failed to turn up after adjournment
QUALIFICATION:
Minor offence defined in Article 447e of the Criminal Code (Wetboek van Strafrecht), section 2 of the Compulsory Identification Act (Wet op de identificatieplicht)
COMMITTED:
on 7 June 2006
DECISION:
Fine of EUR 60,00 or 1 day's detention in lieu
The judge states that for lodging an appeal this case is subject to a special procedure, the so-called leave-to-appeal system.
(signed) the District Court judge”
12. The applicant lodged an appeal the same day by filling in a form at the registry. He stated his reasons for wishing to appeal as follows:
“I did not attend the hearing because:
I was mistaken about the time. I thought it was at 1 p.m. ...
I would have wished to put forward the following:
I am not the person who committed the offences. I have been acquitted 8 or 9 times already because someone else is misusing my identity.”
13. On 3 December 2007 a single-judge chamber of the Court of Appeal (gerechtshof) of The Hague sitting as President gave a decision refusing the applicant leave to appeal. It contains the following reasoning:
“In view of the case file, which includes an extract from the criminal register (justitiële documentatie), the President does not consider plausible the applicant's statement that his identity details are systematically misused by someone else and that he has been acquitted by the courts several times already because of that.
The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal.”
The judgment of the District Court judge thus became final.
14. The extract from the criminal register as contained in the case file of the single-judge chamber of the Court of Appeal shows that the applicant has been convicted of crimes from his early adulthood until recently. He has also submitted authentic copies of official records of oral delivery of recent summary judgments of the District Court of The Hague. These are dated 19 January 2006, 2 May 2006, 19 June 2006, 8 March 2007 and 8 January 2008. They give no details of the cases other than that they ended in acquittals.
15. In its relevant part, Article 410a of the Code of Criminal Procedure provides as follows:
“1. If an appeal is possible and has been lodged against a judgment concerning only one or more minor offences (overtredingen) or indictable offences (misdrijven) which, according to the statutory description, carry a sentence of imprisonment not exceeding four years, and no other sentence or measure has been imposed than a fine not exceeding – or, if two or more fines have been imposed in a single judgment, not exceeding a combined maximum – of EUR 500, the appeal lodged shall only be heard and considered if, in the considered opinion of the President, such is required in the interests of the proper administration of justice. ...”
This provision entered into force on 1 July 2007.
16. Section 2 of the Compulsory Identification Act (Wet op de identificatieplicht) requires every person aged fourteen or over to present an official identity document to a police officer upon first demand. Article 447e of the Criminal Code (Wetboek van Strafrecht) makes failure to do so a minor offence punishable by a second-category fine (i.e. not exceeding, at the relevant time, EUR 3,350).
17. Section 3 of the Criminal Records (Information) Ordinance provides as follows:
“In relation to minor offences, the following shall be information for the record:
a. the information mentioned in sections 6 and 7(1) of cases in which the public prosecution service has taken a decision to settle the case, with the exception of a decision to hand out a penal order (strafbeschikking) in which only a fine is imposed to an amount of less than EUR 100 and a decision not to pursue the prosecution, unless the latter decision is made subject to conditions;
b. the information mentioned in sections 6 and 7(1) of cases in which a court has given a decision, whether final or not, in so far as a penal community service order (taakstraf) or a custodial sentence other than in lieu of a sentence of another kind (vrijheidsstraf anders dan vervangende) has been imposed, or a fine of at least EUR 100, and in those cases in which an additional penal measure (bijkomende straf) has been imposed.”
Section 6 of the ordinance sets out the information identifying the convicted person that is to be recorded; section 7(1) sets out the information required to record the criminal act concerned, the decision of the public prosecution service or the court as the case may be and the execution of the sentence or other penal measure.
18. Article 14 of the International Covenant on Civil and Political Rights of 1966, in its relevant part, provides as follows:
“5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”
19. On 27 July 2010 the Human Rights Committee of the United Nations adopted Views under Article 5 § 4 of the Optional Protocol to the International Covenant on Civil and Political Rights on Communication No. 1797/2008 (Thomas Wilhelmus Henricus Mennen v. The Netherlands). These Views included the following (footnote references omitted):
“Consideration of the merits
8.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it, as provided under article 5, paragraph 1, of the Optional Protocol.
8.2 As to the author's claim that he has not been able to exercise his right to appeal under article 14, paragraph 5, in an effective and meaningful way, since he did not have access to a duly reasoned, written judgment of the trial court and to other documents such as trial transcripts, the Committee notes that the State party confirmed that in the present case no such document had been produced. The Committee notes the State party's submission that the author's counsel was provided with a number of official police reports on the case prior to his application for leave to appeal, without specifying their content and relevance to the verdict. The Committee, however, observes that these reports could not have provided guidance as to the motivation of the first instance court in convicting the author of a criminal offence, nor indication on what particular evidence the court had relied. The Committee recalls its established practice that in appellate proceedings guarantees of a fair trial are to be observed, including the right to have adequate facilities for the preparation of his defence. In the circumstances of the instant case, the Committee does not consider that the reports provided, in the absence of a motivated judgment, a trial transcript or even a list of the evidence used, constituted adequate facilities for the preparation of the author's defence.
8.3 The Committee further notes that, according to the State party, the President of the Court of Appeal denied leave to appeal with the motivation that a hearing of the appeal was not in the interests of the proper administration of justice and that counsel's contentions were not supported in law. The Committee considers this motivation inadequate and insufficient in order to satisfy the conditions of article 14, paragraph 5, of the Covenant, which require a review by a higher tribunal of the conviction and the sentence. Such review, in the frame of a decision regarding a leave to appeal, must be examined on its merits, taking into consideration on the one hand the evidence presented before the first instance judge, and on the other hand the conduct of the trial on the basis of the legal provisions applicable to the case in question.
8.4 Accordingly, in these specific circumstances, the Committee finds that the right to appeal of the author under article 14, paragraph 5, of the Covenant has been violated, due to failure of the State party to provide adequate facilities for the preparation of his defence and conditions for a genuine review of his case by a higher tribunal.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal violation of article 14, paragraph 5, of the Covenant.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-5352
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: STEPOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, a Polish citizen born in 1939, is an engineer residing in Warsaw.
A.
1. The custody proceedings
On 29 November 1988 the Warszawa-Praga District Court dissolved the applicant’s marriage, awarded custody of one of their sons to the applicant, and that of the other to his former wife.
On 4 September 1989 the applicant lodged an action with the Warszawa-Praga District Court, claiming that the parental rights of his former wife be restricted and that the custody of both children be awarded to him. The court held hearings on 13 October 1989, 27 October 1989, 21 November 1989, 20 March 1990, 26 April 1990, 30 April 1990, 23 October 1990 and 27 November 1990.
On 8 January 1991 the applicant complained to the President of the District Court, alleging that the presiding judge lacked impartiality, that she had been conducting the proceedings in a chaotic manner, and that she had been distorting his oral submissions to the court when dictating them for the record. In a reply of 21 January 1991, he was informed that it was open to him to submit at any time written objections to the case-file as regards the manner in which the minutes of the hearings were being taken. It was further acknowledged that certain complaints were well-founded and that the attention of the judge concerned would be drawn to them.
The court held further hearings on 12 March 1991 and 28 May 1991. On the latter date the applicant requested that the judge step down, alleging her bias. Apparently this request was later dismissed. The court held the next hearing on 22 January 1992.
On 2 April 1992 the Family Diagnostics Centre submitted its expert opinion to the court. On 8 May 1992 the applicant lodged objections to the report. On 11 May 1992, 15 June 1992, 29 June 1992 and 29 July 1992 further hearings were held. Apparently, at the last of these hearings, the court ordered that a further expert opinion be prepared on the parties’ parental skills. This opinion was submitted to the court on 5 November 1992. On 20 November 1992 the applicant lodged his pleadings with the court, arguing that this opinion was also ill-founded. He submitted that the report contained serious discrepancies and errors. He stressed that the experts had had particular regard to the previous report of 2 April 1992, and that they had failed to address adequately the questions put by the court.
On 30 November 1992 the court dismissed the applicant’s request to have the parental rights of his former wife restricted, and ordered that one of the sons should reside with his mother. The court apparently relied, inter alia, on an expert opinion of the Family Diagnostics Centre of 5 November 1992.
The applicant appealed. On 15 March 1993 the Warsaw Regional Court granted the appeal after a hearing and remitted the case to the lower court.
On 7 June 1993 a hearing was held. On 15 June 1993 the District Court refused to order as an interim measure that both boys immediately move to the applicant’s apartment, considering that they felt safe with their mother and that there were no reasons justifying such a measure. The court further noted that the children were spending each weekend with their father.
On 21 July 1993 the applicant complained to the President of the court about the alleged bias of the presiding judge. He alleged that there were differences between the version of the decision of 15 June 1993 kept in the case-file and that which had been served on him. He further complained that the proceedings were unfair. In the President’s reply of 23 August 1993, it was explained that the difference, an omission of one word in the written grounds of the decision, had been caused by a clerical error, and that otherwise the texts had been identical. Apologies were presented to the applicant.
In a letter of 7 September 1993, the applicant again complained about discrepancies between two versions of the same decision. In a reply of 22 September 1993, the Deputy President of the Regional Court acknowledged that there were minor discrepancies between various copies of the decision, but stressed that they were devoid of any legal significance, in that they did not affect the essence of the decision.
On 3 December 1993 the applicant complained again about these errors.
On 29 December 1993 the Regional Court dismissed the applicant’s appeal against the refusal to order interim measures on 15 June 1993.
On 15 March 1994 the applicant again complained about the errors in the text of the decision of 15 June 1993.
On 5 September 1994 the applicant objected to a new expert report prepared by the Family Diagnostics Centre, complaining that the relevant examinations had been cursory and that the conclusions of the specialists were erroneous. He requested that the experts, who had prepared the opinion, be questioned by the court. He further requested the court to take evidence from the tape recording made during the examination of the children by the experts.
On 8 September 1994, 10 October 1994 and 10 November 1994 hearings were held. On 10 October 1994 the applicant lodged a request that the judge step down, alleging her lack of impartiality. Apparently this request was later dismissed.
The next hearing was held on 18 October 1995. On 13 December 1995 the District Court discontinued the proceedings as the applicant had withdrawn his request, in view of the fact that his son M. had moved into his apartment.
2. Labour law proceedings
On 31 May 1996 the applicant lodged an action against his employer with the Warsaw District Court, claiming payment of certain parts of his salary. On 23 September 1996 the District Court apparently allowed his claim in part.
On 21 October 1997 the applicant requested retroactive leave to lodge an appeal outside the statutory time-limit. His request was dismissed on 10 February 1998 by the Warsaw District Court. The court noted that the applicant had failed to comply with the statutory time-limit of fourteen days for lodging an appeal. The court established that the final hearing in the case had been fixed for 23 September 1996. Four summonses for this hearing had been sent to the applicant: on 10 June 1996, 10 July 1996, 30 July 1996 and 8 September 1996. The applicant had failed to fetch any of them from the post office. The court considered them to have been duly served on him. The court further noted that the applicant had been on holiday from 30 June to 18 July 1996, and later from 4 to 26 August 1996. From May to November 1996 he had not lived in his apartment, as he had been taking care of his mother. However, the court considered that the applicant, by failing to take any measures in order to ensure that the court documents be duly served on him, had failed to show the diligence which could reasonably be expected from a person engaged in judicial proceedings.
The applicant appealed against this decision. On 16 April 1998 the Warsaw Regional Court upheld the contested decision, considering that the applicant had failed to adduce any circumstances capable of showing that he had shown due diligence, particularly as he had left on holiday without informing the court thereof. The court further considered that he had not shown that there had been objective and insurmountable obstacles to the effective service of the four summonses to the hearing of 23 September 1996 on him.
B. Relevant domestic law
Article 168 § 1 of the Code of Civil Procedure, insofar as relevant, provides that if a party to proceedings fails to comply with the prescribed time-limit through no fault of its own, the court shall, on that party’s request, grant leave to appeal out of time.
Article 136 of the Code of Civil Procedure provides that the parties to proceedings are under an obligation to inform the court about any change of address. Under § 2 of this provision, if they fail to do so, a decision to be served on the party shall be filed in the case-file and shall be regarded as having been duly served, unless the court knows the new address of that party.