ITEMID: 001-80209
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF V. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits;Not necessary to examine the preliminary objection;Violation of Art. 6-1;Not necessary to examine Art. 6-1 and 6-3;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1976 and lives in Helsinki.
9. At 6.14 p.m. on Friday 6 September 1996 the applicant received a telephone call from H., who inquired whether he had any cannabis in his possession. The applicant replied in the negative but added that in a couple of days, after having made some inquiries, he might know better.
10. At 8.04 a.m. on Sunday 8 September 1996 R. and K. entered Finland in a car in which a quantity of drugs had been hidden. They drove through customs in Turku, south-west Finland, and left for Helsinki. At 8.37 a.m. M. called the applicant and requested him to go and get the drugs because he was unable to do so himself. The applicant accepted.
11. At 1.48 p.m. and 8.11 p.m. H. called the applicant again. In the first call H. asked the applicant whether he now had any cannabis. The applicant answered that he could provide it later that day. In the second call it was agreed that H. would call the applicant again in order to arrange a meeting later the same evening. At 10.25 p.m. H. called the applicant and they agreed to meet in front of a restaurant twenty minutes after the call.
12. At the material time, the applicant did not know that H. had been in detention on remand from 3 September 1996.
13. The parties disagree as to the time of the initial call and as to when the order for narcotics was made. According to the applicant, the first call from H. could have taken place either on Wednesday 4 or Thursday 5 September 1996. That call was the start of the applicant's involvement in the relevant events and the order was placed on 6 September 1996. According to the Government, the order was placed at 8.11 p.m. on 8 September 1996, but the applicant had become involved earlier, during the importation of the drugs into Finland. They did not specify the exact nature or the time of his involvement.
14. At 11.10 p.m. on 8 September 1996 the applicant was arrested in front of the restaurant while in possession of 986 grams of cannabis. In a later search of his apartment, a further 13.2 grams of cannabis were found.
15. When questioned by the police, the applicant stated that he had earlier that day met two women at a petrol station, in accordance with the instructions of M., a drug dealer. The women had given him the car. He and M. together had unloaded some ten kilograms of cannabis. The applicant had received about one kilogram and had gone to the restaurant, where he had been arrested.
16. On 9 September 1996 the Espoo District Court (käräjäoikeus, tingsrätten) authorised the police to obtain telephone metering information concerning the applicant's telephone. On 11 September 1996 the court ordered his detention pending trial.
17. During the criminal investigation the applicant told the police about his earlier drug deals, namely the sale of cannabis purchased from M. in 1996, two incidents of exporting cash to the Netherlands in early 1996, the purchase of three mobile telephone connections to be used by M., the introduction of a third party to M. to purchase another mobile telephone connection and for the export of cash to the Netherlands, and giving M. a key to his apartment.
18. On 8 October 1996 the applicant was charged with the following offences:
“I) aiding and abetting on two occasions the importing of narcotic substances in January and February 1996 [delivering cash to Holland on the order of M.];
II) promoting the importation of narcotic substances on three occasions in February-March and July 1996 [acquiring mobile phone connections for M.];
III) an aggravated narcotics offence on 8 September 1996 [possession and handling of 10 kilograms of cannabis together with M. and taking about one kilogram for himself];
IV) two narcotics offences in July 1996 [sale of 200-300 and 100 grams of cannabis on the order of M.]; and
V) an aggravated narcotics offence in 1996 [sale of five kilograms of cannabis purchased from M.].”
He admitted all the events on which the charges were based.
19. At the hearing on 22 October 1996 the applicant gave evidence against one of his co-defendants. The applicant's counsel clarified that on 8 September 1996 his client had taken delivery of the car in order to obtain one kilogram of cannabis without knowing how much cannabis the car contained. The case was adjourned and the applicant was ordered to remain in custody as the police investigation concerning some of the events had not yet come to an end.
20. At the hearing on 5 November 1996 the prosecution presented alternative charges against the applicant in so far as he had been charged on count II with promoting the importation of narcotic substances. He was now charged in the alternative with aiding and abetting a narcotics offence on three occasions. The prosecution also made a change to count V to the following effect. As he had earlier been accused of possessing and selling some five kilograms of cannabis in 1996, the altered charge concerned twenty-one kilograms of cannabis of which he had allegedly sold about twenty kilograms to three different persons during the period from 1 April 1996 until 8 September 1996. Also two new charges were added, namely:
“VI) aiding and abetting narcotics offences in the spring of 1996 [giving M. keys to his apartment knowing that it was going to be used for the sale of narcotics]; and
VII) aiding and abetting an aggravated narcotics offence in May 1996 [introducing a person to M. in order to have him deliver cash to Holland].”
21. At the hearing on 19 November 1996 the applicant's counsel pointed out as newly acquired information that H. had been in police custody when he had placed the order and he had been released as a reward for his favours to the police. Therefore, counsel argued that no offence had been committed under count III as the events had taken place under police control. The police had set a trap by having the agent provocateur order cannabis from the applicant, who would not have committed the offence had he not been explicitly asked to do so. Counsel had requested the police to produce the telephone metering information about calls made from and to the applicant's mobile telephone, but this had not yet been disclosed.
The applicant gave oral evidence that H. had ordered a kilogram of cannabis on Wednesday or Thursday, whereupon the applicant had contacted M., who the same day had confirmed that there would be a shipment that weekend. When H. called again on Saturday, the applicant had told him that the deal might go through on Sunday or Monday.
22. On 25 November 1996 the police applied to the Espoo District Court for permission not to disclose to the applicant that his mobile telephone had been under surveillance. The same day the court granted permission, relying on Chapter 5a, section 11(2) of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen). The next day the police informed the applicant of the decision, declining to divulge the requested information. The same day the applicant requested the police to issue a formal decision which could be appealed. On 29 November 1996 the police issued a decision in which it was maintained, inter alia, that the information was not to be disclosed even to a party to criminal proceedings. On the same day the applicant requested the Helsinki District Court to order the police officer in charge of the investigations, Superintendent J.M., to produce the telephone metering information at the next hearing. The applicant had received several telephone calls from H. during the period 3 to 8 September 1996 and the observance of the equality of arms principle required the production of the telephone records.
23. On 3 December 1996 the District Court held its final hearing. As the criminal investigations had been continuing throughout, at this stage twelve people had already been accused of various narcotics offences.
24. The applicant's counsel submitted that on 2 December 1996 he had tried to summon Superintendent J.M. to appear before the court, without success. He renewed his request to the court to summon J.M. and to order the disclosure of the telephone metering information.
25. The prosecutor submitted that the allegation about the calls made by H. while in police custody appeared to be true. He produced a fax from Superintendent J.M. (a memorandum dated 26 November 1996) in which it was maintained that, given the date of H.'s arrest, it was impossible that the police could have incited the applicant and M. to smuggle narcotics, as plans to import the drugs had already been in place. There was no mention in the memorandum as to when H. had called the applicant. The prosecution also produced another fax from J.M. dated 2 December 1996 in which he reiterated that the detailed telephone metering information was classified. He nevertheless maintained that there had been one call on 6 September and three calls on 8 September 1996 from the police to the applicant. No further details were provided.
26. The applicant submitted that the former of the above faxes gave the court sufficient information to rule on the matter of incitement. It showed that the only reason for his actions under count III was the telephone call from H. The public prosecutor accepted that he did not rule out this possibility and submitted that the calls could be taken into account so as to reduce the applicant's sentence, but not to absolve him of all criminal liability. The applicant's counsel pointed out that the prosecution did not dispute the agent provocateur claim. He withdrew his request to examine Superintendent J.M., who was in any event likely to rely on his right not to testify. He also withdrew the request to the court to order the disclosure of the telephone metering information.
27. It cannot be concluded from the records of the hearings that any of the co-defendants testified as regards the charges brought against the applicant. According to the Government, both R. and K. were heard at the hearings on 22 October and 19 November 1996.
28. On 3 December 1996 the applicant was convicted on all counts and sentenced to three years and six months' imprisonment. On count III he was convicted on the basis that on 8 September 1996 he had been in possession of at least ten kilograms of cannabis, having taken delivery of a car in which R. and K. had illegally imported the drugs, and having later removed them from the car and weighed them together with M. The judgment did not mention any police involvement.
29. On 4 December 1996 the applicant lodged a criminal complaint against Superintendent J.M. and Senior Constable J.O., alleging, inter alia, incitement to commit an offence (see paragraph 39).
30. On 26 December 1996 the applicant complained to the Uusimaa County Administrative Board (lääninhallitus, länsstyrelsen), arguing that the District Court's decision of 25 November 1996 not to disclose to him that his telephone had been under surveillance did not mean that the information gathered should not now be accessible to him.
31. On 2 January 1997 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), requesting an oral hearing on count III. He also requested, relying on Edwards v. the United Kingdom (judgment of 16 December 1992, Series A no. 247B, § 36), that the police officer in charge of the criminal investigation, Superintendent J.M, be ordered under Chapter 17, Article 12, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) to produce the telephone metering information. As to the request for an oral hearing, he stated that, following the District Court's judgment, he had received more exact information about the persons involved in the agent provocateur operation. The National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) had proceeded with the investigation into the suspected offences. The public prosecutor did not submit any written reply to the appeal.
32. On 20 February 1997 the applicant submitted a pre-trial investigation report of 3 February 1997 which concluded that J.M. and J.O. were suspected of abuse of public office, breach of official duty and incitement to commit an aggravated narcotics offence. He also produced a subsequent indictment by the County Prosecutor (lääninsyyttäjä, länsåklagaren). Lastly, he renewed his request for disclosure of the telephone metering information.
33. On 26 February 1997 the County Administrative Board, finding that the applicant in his capacity as a party to the proceedings against him should have access to the telephone metering information, annulled the police decision regarding the non-disclosure and ordered the information to be given to the applicant's counsel. On 11 March 1997 the applicant renewed his request to the Court of Appeal for disclosure of the information. At that time, he had apparently still not received the requested information as the decision had not become final.
34. Meanwhile, on 10 March 1997, the Court of Appeal delivered its judgment, upholding the applicant's conviction. It rejected the requests for a hearing and disclosure of the telephone metering information as ill-founded. It stated that it had admitted to the file the applicant's written submission of 20 February 1997 with annexes, despite the fact that it had arrived after the time-limit for the appeal had expired. The court confirmed the substance of the District Court's judgment but amended some of the reasoning. It found it established that there had been one telephone call to the applicant on 6 September and three calls on 8 September 1996 from a mobile telephone owned by the police. Relying on the pre-trial statements of two of the applicant's co-defendants, R. and K., the court found that “there [had been] an arrangement that the applicant receive the cannabis prior to the order made by H.” and thus found him guilty as charged. It did not specify whether it was making reference to the call of 6 September or to one of the three calls of 8 September. Nor did it specify the date of the applicant's initial involvement with the narcotics. The case file does not disclose that R. and K.'s statements touched upon the chronology of the events as regards the applicant's involvement.
35. On 5 May 1997 the applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), requesting an oral hearing. He emphasised that charges had been brought against the police officers. Further, the Court of Appeal had based his conviction in part on R. and K.'s pre-trial statements, although neither the prosecution nor the District Court had relied on them. Had the applicant known that those statements, which he had not seen, would be used as evidence against him, he would have cross-examined R. and K. in the District Court. The Court of Appeal had not held an oral hearing and had assumed the functions of the prosecution, thereby violating the applicant's right to examine the witnesses against him. The Court of Appeal had also breached Chapter 26, Article 11a, of the Code of Judicial Procedure as it had not identified the special reasons justifying an examination beyond the arguments and facts adduced in the writ of appeal. The Court of Appeal had reached its conclusion regarding the timing of H.'s call on the basis of the pre-trial investigation report in the proceedings against J.M. and J.O., and thus on material relating to another case.
36. On 18 June 1997 the applicant submitted the judgment of the District Court in which J.M. and J.O. had been convicted and fined. The incitement charge had however been dismissed (see paragraph 45 below).
37. On 20 August 1997 the applicant filed a written submission, maintaining that the only differences between his case and that of Teixeira de Castro v. Portugal (no. 25829/94, Commission's report of 25 February 1997, Decisions and Reports) were that he had been deprived of information about the agent provocateur operation and of an opportunity to examine J.M. and J.O. Further, the lower courts' judgments had not been properly reasoned.
38. On 14 October 1997 the Supreme Court refused him leave to appeal.
39. As mentioned above, on 4 December 1996 the applicant made a criminal complaint about Superintendent J.M. and Senior Constable J.O.
40. The applicant's request that the police interview the prosecutor in the criminal proceedings against him about, inter alia, whether the police report in his case had contained sufficient information, was rejected, as was his request that M. be interviewed about whether the applicant had participated in the smuggling of the narcotics prior to 8 September 1996.
41. During the pre-trial investigation J.M. maintained that H. had agreed to disclose the identity of his drugs supplier only if it was not written down in the report. The applicant's identity had been established from the telephone number produced by H. The purpose of the first call had been to establish whether he had any narcotics in his possession. He had been under surveillance from the afternoon of 8 September 1996 and he had become a suspect as he had been sighted in a rented car together with M. on that afternoon. The police had received information from independent sources that a drugs shipment was going to be smuggled into the country on that day in a rented car. The police had planned on stopping the vehicle but had failed. The only way to find the cannabis had been to call the applicant and place an order.
42. In the pre-trial investigation the applicant and H. testified that an order had been made in code language in the call of 6 September 1996.
43. In February and March 1997 the then County Prosecutor brought charges against J.M. and J.O. for abuse of public office, incitement to commit an aggravated narcotics offence and breach of official duty. The indictment alleged:
“From 6 to 8 September 1996 J.M. in his capacity as Superintendent and J.O. in his capacity as Senior Constable acted in the following manner when carrying out a pre-trial investigation into a suspected narcotics offence in which H. was a suspect:
1. [J.M. and J.O.] abused their office in relation to [H.], who was under their direct supervision as a detainee on remand, by ... persuading H., who hoped that it would bring him relief as regards his own situation, to make a deal over the telephone to the effect that [the applicant] sell to him one kilogram of cannabis to enable the police to arrest [the applicant] and confiscate the drugs as the deal was about to take place. They thereby restricted his right to liberty to a greater extent than the aim of his arrest required.
2. [J.M. and J.O.], in the manner explained above, through [H.] on 6 September 1996, deliberately incited [the applicant] to obtain cannabis unlawfully to deliver it to [H.] together with another person receiving at least ten kilograms of narcotics from the persons who imported the narcotics unlawfully. Of this amount [the applicant] took over 986 grams. When [the applicant] arrived at the location agreed on the telephone with [H.] the police arrested [the applicant] and confiscated the cannabis from his possession. [The applicant] was subsequently convicted of an aggravated narcotics offence. ... They have thereby also breached their official duty.”
The applicant associated himself with the prosecution. He also brought an alternative private prosecution to the following effect:
“3. [J.M.] breached his official duty in that he did not, by making an annotation in the pre-trial investigation records or by any other means, inform [the applicant], the District Prosecutor or the Helsinki District Court of the circumstances in which [the applicant's] offence had taken place. ... These circumstances had become clear at the end of the trial as the District Prosecutor upon [the applicant's] request had requested a clarification of the facts in issue.”
44. The defence relied, inter alia, on the Court of Appeal's judgment of 10 March 1997 in the applicant's case, in which it was held that there had been an arrangement that the applicant receive the drugs prior to the order made by H. The defence argued that the order had not been made before 8.11 p.m. on 8 September 1996. The applicant gave oral evidence, maintaining that H. had placed the order in his first call, on Wednesday 4 or Thursday 5 September, whereupon the applicant had contacted M. At 8.37 a.m. on 8 September 1996 M. had called the applicant and requested him to take delivery of the narcotics from R. and K. The court also heard oral evidence from H., the defendant police officers and some other officers.
45. On 5 June 1997 the District Court convicted J.M. and J.O. of abuse of public office and sentenced them to a fine. It held that the facts regarding the telephone calls as described in the indictment were established and stated that it did not believe that H. would have called the applicant solely on his own initiative. It noted that the telephone metering information disclosed that H. had called the applicant at 6.14 p.m. on 6 September and at 1.48 p.m., 8.11 p.m. and 10.25 p.m. on 8 September 1996. It however rejected the incitement charge as the applicant had not been convicted of delivering the kilogram of cannabis to H. Further, J.M. and J.O. had lacked intent to incite the applicant to obtain the remaining drugs. Also the charge concerning breach of official duty was rejected.
46. The applicant submitted, inter alia, that the Court of Appeal had been wrong to find in its judgment of 10 March 1997 that there had been an arrangement that he receive the narcotics prior to H.'s order.
47. On 8 December 1998 the Helsinki Court of Appeal quashed the convictions of the two police officers for abuse of public office, holding:
“On 10 March 1997 [the applicant] was convicted by the Helsinki Court of Appeal ... of several narcotics offences committed from the beginning of the year 1996 ... In that judgment it was established that prior to the police officer's order made by telephone there had been an arrangement that he would receive a ten kilo drugs shipment. During the present proceedings, no such grounds have emerged for concluding otherwise. Accordingly, the order for the narcotics in issue did not affect [the applicant's] guilt as to the possession of the ten kilograms of narcotics of which he has been convicted as mentioned above. The guilt of [J.M. and J.O.] as regards a prohibited entrapment operation has not therefore been established. ...”
48. In his writ of appeal, the State Prosecutor (valtiosyyttäjä, statsåklagaren; who replaced the County Prosecutor) submitted that it could not be concluded from the Court of Appeal judgment of 10 March 1997 that prior to the police order there had been an arrangement for the applicant to receive the narcotics. Further, he pointed out that the applicant had been charged and convicted of an offence committed on 8 September 1996, and not before, and no evidence had even been produced to show that the applicant had been involved in the shipment prior to 8 September 1996. In any event, it had not even been alleged that the shipment had arrived in Finland on 6 September 1996, or earlier.
49. In its judgment of 22 November 2000 the Supreme Court found that H., who had been in detention on remand, had co-operated with the police. It considered that there was no reason to depart from the lower courts' establishment of the facts, although it remained unclear how the co-operation had been induced. The court found that on 6 and 8 September 1996 H. had discussed with the applicant in general terms whether it would be possible to buy cannabis from him. At 8.11 p.m. on 8 September 1996 H. had placed an order. According to J.M.'s confession, on the evening of 8 September 1996 he had encouraged H. through J.O. to place an order with the applicant for one kilogram of cannabis. H. had therefore called the applicant at 8.11 p.m. The court found it established that J.M. and J.O. at 8.11 p.m. had incited the applicant to commit a new offence by selling narcotics to H.
50. The Supreme Court noted that in their judgments of 3 December 1996 and 10 March 1997 the District Court and the Court of Appeal respectively had found the applicant guilty of an aggravated narcotics offence in that on 8 September 1996 he had been unlawfully in possession of at least ten kilograms of cannabis having unlawfully taken delivery of a car from persons who had unlawfully imported the narcotics in it and by participating in the unloading and the weighing of the cannabis. It had been established that the applicant had been involved in the importing of these ten kilograms of cannabis long before 6 September 1996. According to the Supreme Court, the telephone conversations between H. and the applicant had not therefore had any impact on the receipt by the applicant of the imported narcotics. Thus, the involvement by J.M. and J.O. could not be regarded as having had any causal relation with the offence of which the applicant had been convicted. In order to convict someone of incitement to commit an offence it was a pre-condition that the offence had actually been committed. That had not been the case here, because the police intervention had prevented the applicant from selling the one kilogram to H. Accordingly, J.M. and J.O. were not guilty of incitement to commit an aggravated narcotics offence.
51. The Supreme Court found however that J.M. and J.O. had used prohibited methods and were thus guilty of a breach of official duty.
52. As to the sentence, the Supreme Court noted that the police officers had been tipped off by a third party that a rented car containing narcotics was going to enter the country during the weekend. On the evening of 8 September 1996 the police had sighted the applicant in a rented car, but had not been able to follow it. In order to prevent the narcotics from entering the market, J.M. had decided that it was necessary to encourage H. to place an order and agree on a meeting. This had resulted in the applicant's arrest and the confiscation of a large amount of narcotics. The court concluded that, considering the seriousness of the situation, resorting to the prohibited method was excusable. It therefore decided not to impose a sentence.
53. On 29 September 1998 the applicant requested a re-opening of the case against him, based on the fact that the District Court had convicted J.M. and J.O. of a breach of official duty. He made reference to the case of Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998IV).
54. On 22 November 2000, thus on the same day judgment in the case against Superintendent J.M. and Senior Constable J.O. was delivered, the Supreme Court refused the request.
55. Section 44, subsection 1, of the Police Act (poliisilaki, polislagen; Act no. 493/1995) provides that when being heard as a witness or otherwise, police personnel are not obliged to reveal the identity of any person who has provided them with confidential information in their official capacity or to reveal any confidential tactical or technical methods.
56. At the material time, national legislation did not contain any provisions on the use of undercover transactions or on the use of undercover agents.
On 29 November 2000 Parliament adopted an amendment to the Police Act whereby explicit provisions on certain unconventional preventive methods and investigative techniques, including undercover operations and induced deals, were added to the Act (21/2001).
57. Chapter 26, Article 11a, of the Code of Judicial Procedure (Act no. 4/1734, as in force at the relevant time), provided that the Court of Appeal should not without special reason examine the authenticity of the lower court's judgment beyond the arguments and facts adduced in the writ of appeal and the reply to the appeal. In the relevant Government Bill (no. 79/1993) the interests of justice were mentioned as a possible ground dispensing a Court of Appeal from the restriction as regards the scope of its examination. It was also proposed that should the Court of Appeal examine arguments other than those put forward by the parties, it should invite the other party's observations on the matter.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78894
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MOĞUL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
TEXT: 4. The applicants were born in 1945 and 1949, respectively, and live in Seferihisar, İzmir.
5. The applicants’ father, Ali Moğul, sold his two houses which were situated in the Seferihisar district to his sons in 1972 and 1973, respectively, by a notary deed. He transferred the possession of the land on which the houses were located to the applicants; however, this land was not registered in the title deeds at that time. The applicants requested that the land be divided into two parts by the Seferihisar Municipality. Subsequently, the Municipality acceded to their request on 25 April 1979.
6. On 12 October 1981 the applicants were issued with title deeds for the plots of land numbered 3 and 4 in Seferihisar, following a cadastral survey conducted in the region.
7. In 1999, a general survey of coastal districts carried out by the National Property Supervisor defined the applicants’ plots of land and houses as falling within the coastline area.
8. On 18 May 2000 the Treasury brought an action against the applicants before the Seferihisar Civil Court of First Instance for the annulment of their title deeds on the ground that their land was located within the coastline area. They claimed that, according to the Coastal Law of 1990, the land in question could not be owned by an individual, but could only be used in the public interest.
9. On 29 June 2001 a group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that it was located within the coastline area.
10. On 19 July 2001 the first-instance court upheld the request of the Treasury and annulled the applicants’ ownership in the title deed registry.
11. The applicants’ requests for an appeal and rectification of this judgment were rejected by the Court of Cassation on 20 February, 22 May and 5 June 2002.
12. On unspecified dates, the Treasury brought further actions against the applicants, for injunctions to prevent any intervention (müdahelenin men-i ve kal davası) by the applicants on the disputed land and the destruction of the adjoining houses. On 15 June 2004 the Seferihisar Civil Court of First Instance accepted this request in relation to the first applicant. This decision has not yet been finalised. The action against the second applicant is still pending before the same court.
13. The relevant domestic law is set out in the Court’s judgments in the similar cases of N.A. and Others v Turkey (no. 37451/97, § 30, 11 October 2005), and Doğrusöz and Aslan v. Turkey (no. 1262/02, § 16, 30 May 2006).


ITEMID: 001-88639
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ZEMLYANSKIKH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Vitaliy Ivanovich Zemlyanskikh, is a Russian national who was born in 1957 and lives in Khabarovsk. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1996 the Frunzenskiy District Prosecutor’s office of Saratov opened criminal investigations against the applicant who was suspected of having committed an act of hooliganism. In the course of the criminal investigations the applicant’s Ford vehicle was impounded. On 14 October 1999 the applicant was informed by a letter from the same prosecutor’s office that the criminal proceedings were discontinued because no facts had been established that would constitute a criminal offence. The letter stated that the applicant could access the official text of that decision at the prosecutor’s office and that he could challenge it before the prosecutor or the court.
On 17 July 2000 the applicant requested the prosecutor’s office to return him the impounded vehicle. In reply, he was informed on 26 July 2000 that all material evidence seized in the course of criminal proceedings were in charge of the Saratov Town Department of the Interior and he could claim his belongings there. It is not clear whether the applicant attempted to do so.
On 2 August 2000 the applicant seized the Leninskiy District Court of Saratov with a claim for compensation of damage caused by the unlawful prosecution. Among other complaints, he alleged that he did not get back the impounded vehicle.
On 4 August 2000 the court issued a resolution to stay the proceedings on the ground that the applicant had failed to comply with the formal requirements for lodging a claim. In particular he did not provide the court with copies of the procedural decision that he intended to challenge, i.e., the investigators’ decision to institute the criminal proceedings. The applicant was allowed 10 days for supplementing his submissions.
On 14 August 2000 the applicant appealed against the stay of proceedings claiming that the court could request the missing documents under its own powers. On 21 August 2000 he was informed by the same court that the stay of proceedings was not amenable to appeal.
The applicant did not take any steps to comply with the court order of 4 August 2000. Neither did he request an extension of the time-limit for supplementing his submissions, which, accordingly, expired on 14 August 2000.
On 26 October 2000 the court returned the applicant’s claim by posting it to him by ordinary mail.
The applicant did not attempt to lodge his claims again. In 2000-2001 he brought several requests for supervisory review complaining about the court’s refusal to accept his claim for examination, but these were refused on the ground that every time he failed to attach a copy of the court order of 4 August 2000.
The RSFSR Code on Civil Procedure, in force at the material time, provided as follows:
“Having established that the claim does not conform to the formal requirements of ... this Code ... the judge issues a resolution to stay the claim and notifies the plaintiff and sets a time-limit for rectification of the shortfalls.
If the plaintiff complies ... within the time-limit ... the claim is considered lodged on the date when it was originally filed with the court. Otherwise, the claim is considered as not having been lodged and is to be returned to the plaintiff.”
“Resolutions of the courts of first instance may be appealed before the court of cassation separately from the courts’ judgements by the parties and other persons taking part in the proceedings, or by a prosecutor’s protest:
1) when it is specifically provided for by this Code;
2) whenever the resolution bars the continuation of the proceedings.
Other resolutions of the first instance courts may not be appealed by way of a separate appeal or a protest, but the objections against them may appear in the points of appeal or a protest before the cassation instance.”


ITEMID: 001-87935
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DONOHUE  v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr John Donohue, is a British national who was born in 1943 and lives in Stockport. He was represented before the Court by Mr R. Jenkins, a welfare rights officer in Stockport. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died in 1984. In September 2000, the applicant made his claim for widows’ benefits. On 19 September 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-83425
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHECHA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1964 and lives in the city of Dniprodzerzhynsk.
5. On 29 January 2003 the Pavlograd Court awarded the applicant UAH 19,381.50 in industrial disease benefits arrears against the State-owned mining company “Geroyiv Kosmosu”, which on 3 March 2003 was joined to the State-owned Holding Company “Pavlogradvugillya”.
6. On 2 April 2003 the Pavlograd Bailiffs' Service (hereinafter “the Bailiffs”) instituted the enforcement proceedings.
7. On 29 April 2004 the Pavlograd Court assigned the “Pavlogradvugillya” as the debtor in the enforcement proceedings.
8. On 23 September 2004 the Pavlograd City Court rejected the applicant's complaint against the Bailiffs. The court indicated, inter alia, that the award could not be paid due to the debtor's lack of funds. The scope of action for the Bailiffs was also limited by the funds allocated from the State Budget to the Ministry of Fuel and Energy for payment of the industrial benefits.
9. On 25 October 2004 the debtor company was privatised.
10. On 27 December 2004 the judgment debt was paid to the applicant and the Bailiffs terminated the enforcement proceedings.
11. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58608
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF KRCMAR AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicants are successors in title to “František Otta”, a company in Rakovník (“the Company”) which belonged to members of their family until it was nationalised by the former communist regime.
9. Pursuant to Article 1 § 1 (5) of Presidential Decree no. 101/1945 (dekret presidenta republiky) (“the Decree”), which entered into force on 27 October 1945, companies producing margarine which had more than 150 employees1 were nationalised as from that date. The former Minister of Food (ministr výživy) was authorised to declare, with reference to Article 1 § 4 of the Decree, which companies had been nationalised, as recorded in the Official Register (Úřední list). On 2 June 1948 Act no. 115/1948, which amended the Decree, was published in the Official Gazette (Sbírka zákonů a nařízení). According to this Act, all enterprises nationalised before 22 February 1948, pursuant to Article 1 § 4 of the Decree, were considered nationalised as from 27 October 1945. The Act did not specify the number of employees in the nationalised enterprises.
10. By Decree (vyhláška) no. 26 of 9 January 1946, published in the Official Gazette, the former Minister of Food declared the Company nationalised. The nationalisation procedure was closed by an order (výměr) of the former Minister of Food on 11 January 1949 which determined the final extent of the nationalisation. The order was based on section 1(1)(6) of Act no. 115/1948.
11. On 25 March 1991 the Company was transformed into Rakona a.s. (akciová společnost) with the 100% property participation of the State. On 19 June 1991 Procter & Gamble, a foreign company, concluded a purchase contract with the National Property Foundation (Fond národního majetku), and on 22 July 1991 the Czech Government approved a privatisation plan (privatizační projekt) to sell the Company to Procter & Gamble.
12. In November 1991, pursuant to the Extra-Judicial Rehabilitations Act no. 87/1991 (zákon o mimosoudních rehabilitacích) (“the Restitution Act”) and the Transfer of the State’s Property to Other Persons Act no. 92/1991 (zákon o převodu majetku státu na jiné osoby) (“the Privatisation Act”), the applicants commenced an action for restitution of the Company against the Ministry for Administration of National Property and its Privatisation (Ministerstvo pro správu národního majetku a jeho privatizaci). They claimed that they were Czech nationals and successors in title to the original owners of the Company and, therefore, persons entitled to restitution under section 3(2)(c) of the Restitution Act. They also claimed that the Company had been nationalised in a way which violated generally recognised human rights and freedoms within the meaning of section 2(3) of the Act. They further submitted that the Decree had been wrongly applied to their family’s Company because the nationalisation conditions laid down in the Decree, in particular the condition that the company should have more than 150 employees, were not satisfied. The applicants argued that the Company had therefore been nationalised pursuant to Act no. 115/1948, that is after 25 February 1948, the decisive date for restitution under the Restitution Act.
13. On 29 June 1993 the Prague 1 District Court (obvodní soud) found against the applicants. The court held that ownership of the applicants’ property had passed to the State by the ministerial decree of 9 January 1946, i.e. before the decisive date of 25 February 1948 specified in the Restitution Act. Accordingly, this Act as well as the Privatisation Act did not apply to the applicants’ case. The court noted that the order of the Minister of Food of 11 January 1949 had only a declaratory character. It stated that the fact that the Decree had been applied to the applicants’ property contra legem, as the Company had less than 150 employees, could not influence its finding as to the decisive date of the nationalisation. The court considered in this regard certain documentary evidence, in particular a statement from the former owners of the Company, made in response to a request from the former Ministry of Food (Ministerstvo výživy), dated 24 November 1945, that the average number of employees between 1 January 1938 and 1 January 1940 was 117.3, and heard the husband of the fourth applicant (who died before the end of the restitution proceedings on 7 September 1995). He stated, inter alia, that the trade union council (závodní rada) had wrongly calculated the number of employees, having erroneously determined the ratio of administrative staff to workers: according to the trade union council’s calculation, there had been 1.8 administrative staff members per 1 worker.
14. The applicants appealed to the Prague Municipal Court (městský soud). On 24 November 1993 the court dismissed their appeal stating that the Company had been nationalised under the Decree on the day of its entry into force, i.e. 27 October 1945. On 28 July 1995 the High Court (Vrchní soud), upon the applicants’ appeal on points of law (dovolání), upheld this decision.
15. On 22 October 1995 the applicants lodged a constitutional appeal (ústavní stížnost). They alleged a violation of Articles 11 § 1 and 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and challenged the legal opinion of the ordinary courts.
16. On 2 October 1996 the Constitutional Court, after a public hearing, dismissed the applicants’ appeal, finding no violation of the applicants’ rights. The Constitutional Court recalled that, according to its case-law, nationalisation of property takes place by operation of law under a particular presidential decree if the conditions prescribed by the decree are complied with. Considering the question of the number of employees in the Company at the time of the nationalisation as a crucial point in order to establish whether the Decree had been applied lege artis, the Constitutional Court decided to complete the taking of evidence and asked the Rakovník District Records Office (státní okresní archiv), the Prague District Records Office (státní oblastní archiv), the Prague Central Records Office (státní ústřední archiv), the Ministry of Employment and Social Affairs (Ministerstvo práce a sociálních věcí) and the Ministry of Finance (Ministerstvo financí) to submit further documentary evidence.
The documents submitted to the Constitutional Court contained, in particular, information about the number of employees in the Company between 1936 and 1940 in different categories of production.
These documents included a letter from the former Ministry of Food, dated 24 November 1945, to the former owners of the Company and to the trade union council, asking them, inter alia, to specify the number of people employed in different sections of the Company. In answer to this letter, the former owners indicated that the average number of employees working in the production of margarine between 1938 and 1940 was 117.3. The trade union council and the national administration (národní správa) informed the former Ministry of Food that the average number of employees was 217.7, and, by letter of 8 December 1945, they specified that between 1938 and 1940 the average number of employees was 204.3.
17. The Constitutional Court, basing its finding particularly on these documents which had not been shown to the parties during the hearing, stated, contrary to the opinion of the lower courts, that the nationalisation had been effected in compliance with the nationalisation conditions established in the Decree, i.e. before 25 February 1948. Accordingly, the applicants were not entitled to the restitution of the Company under the Restitution Act.
18. In the preamble to the Restitution Act, the Federal Assembly of the Czech and Slovak Federal Republic affirmed its intention to redress the consequences of certain infringements of property and other rights which occurred between 1948 and 1989.
19. Section 1(1) of the Act provides that its aim is to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens, as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights.
20. According to section 2(1)(c) and (3), such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms, that is, an act in contradiction with the principles referred to in section 1(1) of the Act. When an entitled person was deprived of his or her property rights under nationalisation laws adopted between 1945 and 1949 without appropriate compensation, the entitled person has a claim under this Act, which he or she can raise under the Privatisation Act.
21. Section 3(1) provides that, in order to be entitled to restitution of his or her property, a claimant must be a natural person and a citizen of the Czech and Slovak Federal Republic whose property was ceded to the State in the circumstances listed in section 6 of the Act. According to section 3(2)(e), if the person whose property has been transferred to the State in cases specified in section 6 died before the expiry of the period specified in section 5(2), the entitled persons, provided they are citizens of the Czech and Slovak Federal Republic, are his or her spouse and children, or in the case of the latter’s death, their children.
22. Article 11 § 1 of the Charter provides, inter alia, that everybody has the right to own property. The property rights of every owner are equal in the eyes of the law and benefit from the same legal protection.
23. According to Article 36 § 1, everybody may defend, in a way prescribed by law, his or her right before an independent and impartial tribunal and, in specified cases, before another authority.
24. According section 48 of the Act, the Constitutional Court must consider all the evidence necessary to establish the facts of the case. It decides what evidence submitted by the parties should be considered and may take into account other evidence which has not been proposed. It may assign a judge to consider evidence obtained otherwise than at an oral hearing or request another court to consider such evidence. At the request of the Constitutional Court, courts, public administrative authorities and other State institutions must assist it in its decision-making by procuring documentary evidence. A record is drawn up of all evidence which is obtained otherwise than at an oral hearing, this record being signed by a judge, a clerk and other persons taking part. The resulting evaluation of that evidence must always be communicated at the oral hearing.
25. Section 63 stipulates that the provisions of the Code of Civil Procedure apply to proceedings before the Constitutional Court, unless the Constitutional Court Act provides otherwise.
26. According to section 81, the Constitutional Court is not bound by the statements of fact established in the earlier proceedings.
27. According to Article 121 of the Code, it is not necessary to prove facts which are generally known, or known to a court through the exercise of its functions. Nor is it necessary to prove generally binding legislative or regulatory instruments published or announced in the Official Gazette.
28. According to Article 129, the evaluation of documentary evidence is carried out by the President of the Chamber during the hearing. The President reads out the whole or part of the document, or informs the Chamber of its contents. He may also invite the holder of the document to submit the document to the court, or he may obtain it by himself from another court, authority or legal person.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94533
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TARNOWSKI v. POLAND (No. 2)
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicants, Mr Juliusz Tarnowski, Mr Marek Tarnowski and Mr Aleksander Tarnowski are brothers. They are Polish nationals who were born in 1929, 1932 and 1934 respectively and live in Kraków and Sopot.
5. The applicants are heirs of the owner of 27 plots of land and buildings, which constituted a property called “Końskie - Kolonie Fabryczne”. The property was de facto expropriated by the State by virtue of the 1944 Decree on Agrarian Reform in January 1945.
6. However, in this particular case the relevant authorities failed to issue an appropriate administrative decision, declaring that the property had been subject to expropriation within the framework of the agrarian reform.
7. In 1965 the State Treasury’s title to the property was entered in the land and mortgage register.
8. In respect of plots nos. 1310 and 1314/1, the right of perpetual use of these plots was granted by the State Treasury to the Końskie Municipality. The plots were leased to certain individuals.
9. On 23 July 1996 the applicants requested the Kielce Governor to issue a decision stating that the property “Końskie - Kolonie Fabryczne” should not have been subject to expropriation under section 2 § 1 (e) of the 1944 Decree on Agrarian Reform.
10. On 30 June 1997 the Kielce Governor partly dismissed the applicants’ request, finding that a part of the property had met the criteria for expropriation set out in the 1944 Decree. However, the Governor declared that several plots of land with an overall area of 12.03 hectares should not have been subject to expropriation. This decision concerned, among others, plots nos. 1310 and 1314/1.
11. On 19 November 1997 the Minister of Agriculture dismissed the applicants’ appeal in respect of the remainder of the decision.
12. On 8 June 2001 the Supreme Administrative Court dismissed the applicants’ further appeal, finding that the contested administrative decisions of the Kielce Governor and the Minister of Agriculture had been lawful.
13. On 25 July 1996 the applicants instituted civil proceedings for rectification of an entry in the land and mortgage register. They requested the court to enter their ownership title to plots nos. 1310 and 1314/1 in the land and mortgage register. Hearings were held on 8 January and 9 April 1997.
14. On 16 April 1997 the Kielce Regional Court gave a decision, securing the applicants’ claims by entering a caveat in the land and mortgage register. Subsequently, the court stayed the proceedings pending the outcome of the above administrative proceedings.
15. On 7 December 1998, following the delivery of the Kielce Governor’s decision of 30 June 1997 (see paragraph 10 above), the applicants requested that the proceedings be resumed in the part concerning the following plots: 1) nos. 1299/2, 1303, 1306/3 and 1307/7; 2) nos. 1310 and 1314/1; 3) no. 6271.
16. On 23 June 1999 the Kielce Regional Court delivered a partial judgment in respect of the plots listed under 1) nos. 1299/2, 1303, 1306/3 and 1307/7 and 2) nos. 1310 and 1314/1. On 22 February 2000, after the judgment in this part became final, the Końskie District Court entered the applicants’ ownership title in the relevant land register.
17. On 8 February one of the parties to the proceedings applied for the proceedings in respect of plots nos. 1310 and 1314/1 to be re-opened, arguing that new facts had arisen which showed that the applicants’ father had not owned the plots in question.
18. On 9 November 2000 the Kielce Regional Court re-opened the proceedings in respect of plots nos. 1310 and 1314/1.
19. On 21 November 2000 the court stayed the re-opening proceedings pending the outcome of civil proceedings concerning the ownership title to these plots before the Końskie District Court, and subsequently, before the Kielce Regional Court. On 29 December 2005 the Kielce Regional Court, following an appeal by the applicants, dismissed the State’s Treasury claim and discontinued the proceedings.
20. On 21 February 2007 the Kielce Regional Court resumed the proceedings for re-opening the proceedings terminated by the judgment of 23 June 1999 (see paragraph 16 above).
21. On 1 March 2007 the Kielce Regional Court gave judgment in the case. It dismissed the motion for re-opening the proceedings.
22. On 15 April 1999 the applicants lodged an action for recovery of plots nos. 1310 and 1314/1.
23. At the first hearing, on 6 July 1999, the Końskie District Court stayed the proceedings pending the outcome of the proceedings for rectification of an entry in the land and mortgage register (see paragraphs 13-21 above).
24. On 14 July 1999 the applicants appealed against that decision. On 20 October 1999 the Kielce Regional Court dismissed the applicants’ interlocutory appeal.
25. On 25 November 1999 the applicants requested that the proceedings be resumed.
26. On 14 January 2000 the Końskie District Court resumed the proceedings.
27. On 27 January 2000 a third party asked the court to allow her to participate in the proceedings as intervenor. She alleged that the applicants’ father had not been the owner of the plots in question since she and her husband had been in possession of the disputed plots since 1948.
28. On 16 May 2000 the Końskie District Court stayed the proceedings, indicating that the proceedings for rectification of an entry in the land register had been re-opened in their part concerning the applicants’ claim. On 1 December 2000 the Kielce Regional Court dismissed the applicants’ interlocutory appeal, finding that the lower court’s decision was correct.
29. On 26 January 2006 the applicants requested the court to resume the proceedings. On 5 October 2007 the Court resumed the proceedings and discontinued them since the applicants had withdrawn their action.
30. On 1 March 1999 the applicants instituted civil proceedings for compensation for the use of their property by the State Treasury without valid legal title. They claimed compensation for the period from 29 September 1990 to November 2000.
31. On 6 December 2001 the Kielce Regional Court gave judgment in the case. On 12 July 2002 the Cracow Court of Appeal upheld the first-instance judgment. Following a cassation appeal lodged by the State Treasury, on 11 February 2004 the Supreme Court quashed the second-instance judgment and remitted the case.
32. On 17 December 2004 the Court of Appeal held a hearing in the case. At the hearing the applicants withdrew their claim in respect of plots nos. 1310 and 1314/1.
33. On 29 December 2004 the Cracow Court of Appeal discontinued the proceedings in respect of the abovementioned plots since the applicants had withdrawn their claims.
34. On 5 May 2006 the applicants sold plots nos. 1310 and 1314/1 to a third party.
35. On 7 February 2005 the applicants lodged a complaint with the Kielce Regional Court under the Act of 17 June 2004 on complaints about a breach of the right to trial within a reasonable time (“the 2004 Act”). The applicants claimed just satisfaction in the amount of PLN 10,000 (approx. EUR 2,700). They also requested the court to take action to resume and expedite the proceedings for recovery of the property (see paragraphs 2229 above).
36. On 4 May 2005 the Kielce Regional Court dismissed the applicants’ complaint. The court referred to the fact that there had been no undue delay in the proceedings on and after the date of entry into force of the Act on 17 September 2004. The court pointed out that the proceedings had been stayed pending the outcome of other proceedings (see paragraphs 19 and 13-21 above) in which the ownership of the property was in issue. Therefore, there had been no delays in dealing with the case.
37. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
38. The relevant domestic law and practice concerning Article 1 of Protocol No. 1 is set out in the Court’s judgments in the cases of Zwierzyński v. Poland, no. 34049/96, § 63-74, ECHR 2001-VI, and Bennich-Zalewski v. Poland, no. 59857/00, judgment of 22 April 2008.
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-88510
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF AHTINEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1949 and lives in Rovaniemi.
7. He was employed by the Evangelical Lutheran Church as a parish priest in the parish of Rovaniemi from 1 January 1988 until 31 October 1998. On 12 May 1998 the Cathedral Chapter (tuomiokapituli, domkapitlet) issued him with a warning, which was upheld by the Supreme Administrative Court on an unspecified date.
8. On 15 September 1998 the Cathedral Chapter decided to transfer the applicant to the parish of Keminmaa, which is situated more than 100 kilometres from his home in Rovaniemi. He did not consent to the transfer. In its decision, the Cathedral Chapter reasoned as follows (translation from Finnish):
“The post of parish priest in the parish of Keminmaa is open ... and therefore it is for the Cathedral Chapter to find a suitable person for the post. It has come to the Cathedral Chapter’s knowledge that the parish priest of the parish of Rovaniemi, Seppo Ahtinen, has stated that he considers himself unable to discharge all his duties. Therefore, the Cathedral Chapter has decided to discontinue Seppo Ahtinen’s assignment to his current post and give him a new assignment as parish priest in the parish of Keminmaa.
The Cathedral Chapter has heard the Keminmaa Church Council (kirkkoneuvosto, kyrkorådet) and Seppo Ahtinen. The Church Council has given a positive statement, whereas Seppo Ahtinen has announced that he will not accept a transfer and that he considers that there are no legal grounds for a transfer.
However, considering the need to find a parish priest for the parish of Keminmaa and the difficulties that Seppo Ahtinen has had in discharging all his functions in his current post, there is a justified reason as required by law for transferring him from the parish of Rovaniemi to the parish of Keminmaa.
Therefore, the Cathedral Chapter appoints Seppo Ahtinen to the post of parish priest in the parish of Keminmaa from 1 November 1998 until further notice and terminates his assigment as parish priest in the parish of Rovaniemi on 31 October 1998.
...”
9. The decision indicated that the Cathedral Chapter had applied Chapter 6, section 8a(6), of the Church Act (kirkkolaki, kyrkolagen; Act no. 1054/1993), which provides that there has to be a justified reason for making a decision such as the above. It also indicated that, as provided by Chapter 24, section 9(1), as in force at the relevant time, no appeal lay against that decision.
10. According to the applicant, the transfer had been orchestrated by the Vicar of the parish of Rovaniemi, who had not been satisfied with the applicant’s contribution to his parish work.
11. The applicant had been consulted in advance in writing about the proposed transfer. On 28 August 1998 the applicant’s counsel had informed the Cathedral Chapter as follows (translation from Finnish):
“As the representative of the parish priest Seppo Ahtinen I would like to inform you that he does not intend to change his place of employment. He declares that he enjoys his present post in the service of the parish of Rovaniemi. There are no legal grounds for transferring him without his consent.”
12. On 30 September 1998 the applicant lodged an extraordinary appeal (kantelu, klagan) with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), alleging procedural errors in the decision. He claimed that the Cathedral Chapter had not been impartial as the Vicar of the parish of Rovaniemi, who was also the chairperson of the Church Council of Rovaniemi, had been present when the decision had been taken. However, he did not allege that the vicar had participated in the decision-making. He also argued that he had not been heard prior to the decision and that his opinion had not been taken into account. In particular, no weight had been given to the fact that his entire family lived in Rovaniemi.
13. The Supreme Administrative Court invited the Cathedral Chapter to make observations and communicated them to the applicant. According to the Cathedral Chapter, it was an old tradition that a parish priest could be transferred to another parish with or without his consent if the transfer was considered to be in the interests of the Church. According to this tradition, which was comparable to a similar tradition in the armed forces, there was no appeal against a transfer decision. If an appeal were to be allowed, it would cause an unreasonable delay in the organisation of parish work. The Cathedral Chapter also reiterated that it was known to all parties in question that the applicant had not been able to discharge all his functions in the parish of Rovaniemi and that he had also faced disciplinary proceedings, resulting in a written warning. As the applicant had not denied this, the Cathedral Chapter found it undisputed that he was incapable of fulfilling his duties in the parish of Rovaniemi. The aim of the transfer was to avoid future disciplinary proceedings. Thus, it was also in the interests of the applicant that he be transferred. Moreover, there was a shortage of parish priests in the parish of Keminmaa. The Cathedral Chapter disputed the applicant’s contention that he had a right to be heard on the reasons discussed when his transfer was being considered. It also contested that the presence of the Vicar of the parish of Rovaniemi had raised any disqualification issue. The vicar had not taken part in the decision-making.
14. In his observations in reply, the applicant maintained that the Cathedral Chapter had not given him an opportunity to be heard about the grounds on which it had subsequently based its decision and according to which there was a shortage of priests in the parish of Keminmaa and the applicant allegedly had difficulties in performing his duties in the parish of Rovaniemi. He pointed out that he could be removed only on grounds provided for by law and that the decision certainly concerned his rights. As to his partiality allegation, he submitted that before the meeting there had been no report on the matter, which meant that the decision had thus been based solely on the discussion in which the Vicar of the parish of Rovaniemi had taken part.
15. On 9 March 1999 the Supreme Administrative Court upheld the Cathedral Chapter’s decision without examining the merits of the case. It reasoned as follows (translation from Finnish):
“Section 59, subsection 1, paragraph 1, of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Act no. 586/1996) provides that a final decision may be set aside following a procedural complaint if a person concerned has not been provided with an opportunity to be heard and the decision violates his or her right. Paragraph 2 provides that a decision may be set aside, if there has been another procedural error which may have likewise affected the decision.
Ahtinen has requested that the Cathedral Chapter’s decision be set aside on the grounds that he was not properly heard. However, Ahtinen had, as noted in the decision, been heard prior to the decision. Having regard to the fact that the case concerns appointment to a position under Chapter 6, section 33 (1), of the Church Rules of Procedure (kirkkojärjestys, kyrkoordningen; Act no. 1055/1993) Ahtinen has been adequately heard.
Ahtinen has also requested that the decision be set aside on the grounds that the Vicar of the parish of Rovaniemi was disqualified from taking part in the examination of the matter before the Cathedral Chapter. As neither the vicar nor the parish of Rovaniemi is a party to the proceedings in issue and as neither can be expected to derive particular benefit or suffer particular loss from the decision, there has not been any procedural error in respect of disqualification in the matter as provided by section 10, subsection 1, paragraph 5, of the Administrative Procedure Act (hallintomenettelylaki, lagen om förvaltningsförfarande; Act no. 598/1982), as in force at the relevant time. On these grounds and having regard to Chapter 19, section 6, of the Church Act, the Supreme Administrative Court rejects the application.
...”
16. It appears that the applicant has been an assistant vicar of the parish of Rovaniemi since 1 April 2002.
17. Article 11 of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides:
“Everyone has the freedom of religion and conscience. Freedom of religion and conscience entails the right to profess and practice a religion, the right to express one’s convictions and the right to be a member of or decline to be a member of a religious community. No one is under the obligation, against his or her conscience, to participate in the practice of a religion.”
Article 76 of the Constitution provides:
“Provisions on the organisation and administration of the Evangelical Lutheran Church are laid down in the Church Act. The legislative procedure for enactment of the Church Act and the right to submit legislative proposals relating to the Church Act are governed by the specific provisions in that Code.”
Section 2(1) of the Church Act provides:
“The Church has the exclusive right to make legislative proposals for the enactment of the Church Act in all matters which concern solely its own affairs. It has the same right to propose amendments and repeal of the Church Act. The proposal of the Church is submitted by the Synod. The task to examine and confirm the proposal of the Synod is vested in the President of the Republic and Parliament. The Synod also has the right to submit proposals for the enactment of other legislation which concerns the Church.”
Although the Church Act is an Act of Parliament, no changes other than technical changes can be made to a legislative proposal once it has been submitted. It is for Parliament to either accept or reject the proposal of the Synod (kirkolliskokous, kyrkomötet).
The Constitution lays down several guarantees against misuse of public powers, in particular in Chapter 2 on fundamental rights and Chapter 1, section 2(3), pursuant to which the law must be strictly observed in all public activity. At the material time, the relevant Articles were Articles 83, 5-16a and 92(1) of the Constitution of 1919, as amended by Act no. 969/1995.
The Government Bill (HE 23/1993) for the enactment of the Church Act noted that the State is religiously uncommitted. One of the purposes for the enactment of the Church Act was to relieve Parliament from the duty to examine provisions concerning the religious doctrine and spiritual activities of the Church and to strengthen the Church’s autonomous power of decision in its own sphere of authority.
It follows from these provisions that the administration of the Church is autonomous.
18. The duties of a parish priest are outlined in the Church Rules of Procedure (kirkkojärjestys, kyrkoordningen; Act no. 1055/1993) adopted by the Synod. Chapter 5, section 1(1), provides that a priest’s specific duty is to hold public services, give holy sacraments, hold other church ceremonies, provide for the care of souls and take confession.
19. Under the Church Act and the Church Rules of Procedure, parish priests have no independent decision-making powers.
20. Chapter 6, section 33(1), of the Church Rules of Procedure provides that the Cathedral Chapter may appoint a qualified member of the diocese (hiippakunta, stiftet) to perform the functions of a parish priest. Prior to an appointment, the Cathedral Chapter provides the Church Council or the Parish Council with an opportunity to submit its opinion, unless the matter is urgent.
21. Chapter 6, section 8a(6), of the Church Act provides that a parish may not terminate through dismissal the employment of an office holder appointed or a person assigned to the office of a priest. The Cathedral Chapter may suspend or withdraw an assignment given to a person to perform the functions of a parish priest where there is a justified reason to do so. Section 8b(1), paragraph 4, provides that a prior assignment is considered automatically terminated without notice where the priest in question is appointed, assigned or permanently transferred to another position within the Church or a parish.
22. Chapter 6, section 10 of the Church Rules of Procedure provides that a parish priest belongs to the diocese in which he has been consecrated as a priest. According to the Government, this means that parish priests are considered to serve the entire diocese and the Church, without being bound to a particular parish or position. Further, a priest who is assigned to a parish by the Cathedral Chapter is under an obligation to accept any new assignment. It is also an established principle that, having consecrated someone as a priest, the Cathedral Chapter is under an obligation to ensure that the priest also has a valid assignment in the future.
23. Chapter 19, section 5, of the Church Act, as in force at the relevant time, provided that the Cathedral Chapter examined, in the capacity of a judicial authority, appeals in respect of which it had decision-making competence under the law and complaints made by means of extraordinary appeal. In the capacity of an authority of first instance the Cathedral Chapter examined administrative disputes concerning an obligation or a right based on that Act or the Church Act and any such disputes between the Church or a parish and their office holders concerning employment which could not otherwise be resolved by law.
24. Chapter 19, section 6, as in force at the relevant time, provided that subject to other provisions of the Act the Cathedral Chapter, in its consideration of administrative cases, applied the provisions of the Administrative Procedure Act and, in the administration of justice, the provisions of the Administrative Judicial Procedure Act.
25. Chapter 24, section 3, of the Church Act, as in force at the relevant time, provided that anyone whose interests had been violated by a decision of the Cathedral Chapter had a right of appeal. Section 8, as in force at the relevant time, provided that the Administrative Judicial Procedure Act applied to appeal and decision-making subject to other provisions of the Church Act. The Administrative Judicial Procedure Act is based on the principle of a general right of appeal and it refers, in section 8, to the Church Act stating that the latter contains provisions governing appeals against a decision of the Evangelical Lutheran Church.
26. Chapter 24, section 9(1), of the Church Act, as in force at the relevant time, provided that without prejudice to other restrictions on the right of appeal, no appeal lay against decisions by the Cathedral Chapter on the appointment of office holders, assignment to a given position or related withdrawal of a prior assignment, decisions on the engagement of an office holder on probation, temporarily or as substitute, and decisions on the termination of employment of probationary, temporary or substitute office holders.
27. Section 59(1) of the Administrative Judicial Procedure Act provides that a final decision may be set aside following a procedural complaint if a person concerned has not been provided with an opportunity to be heard and the decision violates his or her right or if another procedural error has occurred which may have likewise affected the decision.
28. Section 10(1) of the Administrative Procedure Act (repealed) provided that a public official was disqualified if he or she was a member of the board of directors, the supervisory board or a comparable body or was the managing director or held a comparable position in a corporation, foundation, institution of a public-law character or public enterprise which was a concerned party or which could be expected to derive particular benefit or suffer particular loss as a result of a decision in the matter. Section 11 provided that a disqualified person could neither consider the matter nor be present at the proceedings, except where the disqualification could not affect the outcome because of the nature of the matter, or where the proceedings could not be deferred.
29. Section 15 provided that a concerned party had to be given an opportunity to comment on the claims made by others and on any evidence that could affect the decision. However, a matter could be decided without hearing a concerned party if the claim was dismissed without prejudice or immediately rejected, if the claim that was approved did not affect another concerned party, if it was obviously superfluous for some other reason, if the matter concerned entry into a service relationship or voluntary training or the granting of a benefit based on an assessment of the qualities of an applicant, if a hearing could jeopardise the achievement of the purpose of the decision, or if a decision in the matter could not be postponed.
30. According to the Government, the prohibition on appealing against a decision concerning assignment to a given position or withdrawal of an assignment was based on the need to ensure that the duties of parish priests were discharged as appropriate, in accordance with the respective needs of different parishes. The Government noted, however, that this purpose was not indicated in the Government Bill (HE 23/1993 vp) for the enactment of the Church Act.
31. The Church Act was amended with effect from 1 January 2004 as regards the restrictions on the right of appeal concerning posts in the National Ecclesiastical Board (kirkkohallitus, kyrkostyrelsen) and the Cathedral Chapter. In 2003, the Constitutional Law Committee gave the following consideration in its opinion (translation from Finnish).
“... In the opinion of the Committee, the autonomy of the administration of the Evangelical Lutheran Church, based on Article 11 of the Constitution, must be taken into account in the assessment of the aforementioned proposed provision. ...
Under existing provisions of law, the Synod and the Bishops’ Conference do not decide on issues that would, in view of the foregoing, affect the rights or obligations of individuals. Therefore, the proposed prohibitions on an appeal (paragraph 1) have no relevance for the application of Article 21 of the Constitution [according to which everyone has the right to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice]. The proposed prohibitions may in this respect be considered to clarify the existing provisions of law. The bishop and the Cathedral Chapter make their decisions on the assignment of a priest on the basis of religious criteria, and decisions made by the bishop alone mainly fall, according to the explanatory report of the Government Bill, within the scope of religious guidance by the bishop. The prohibitions on appealing against such decisions (paragraph 2) do not constitute a problem with regard to Article 21 of the Constitution. The prohibitions on appealing referred to in subsection 1, paragraph 4, relate to such issues concerning the religious workers of the Church and falling within the scope of the autonomy of a religious community as do not directly affect anyone’s subjective rights. Nor do the prohibitions on the right to request review and the right of appeal in any other respect cause problems with regard to the Constitution.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77848
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HASS v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1976 and lives in Toruń, Poland.
5. On 15 November 2001 the applicant was arrested on suspicion of having committed several car thefts.
6. On 17 November 2001 the Toruń District Court (Sąd Rejonowy) remanded the applicant in custody until 15 February 2002. The court considered that his detention was justified by the existence of substantial evidence against him and the gravity of the charges. It also noted that the applicant had attempted to induce one of the witnesses to change her testimony.
7. On 11 February 2002 the court prolonged the applicant’s detention until 15 May 2002. It repeated the reasons previously given and added that the need to obtain additional evidence justified keeping the applicant in custody.
8. The applicant’s detention was subsequently prolonged several times by the District Court and the Gdańsk Court of Appeal (Sąd Apelacyjny) until 30 March 2003.
9. His appeal against the prolongation of his detention was dismissed by the Court of Appeal on 15 January 2003.
10. On 14 March 2003 the applicant and 22 other persons were indicted on charges of being members of an organised criminal group and having committed numerous car thefts.
11. Subsequently, the applicant’s detention was extended several times by the Toruń District Court and the Gdańsk Court of Appeal, for the same reasons as before.
12. On 18 November 2003 the District Court refused the applicant’s application for release.
13. On 3 February 2004 the Court of Appeal granted the District Court’s request to prolong the applicant’s detention until 15 May 2004. The court considered that the case was very complex and that it was necessary to examine voluminous evidence. It also found that the detention was justified by the existence of strong evidence against the applicant and the gravity of the charges. There was also the possibility that the applicant would attempt to tamper with evidence. His appeal against that decision was dismissed on 16 March 2004.
14. On 11 May and 12 July 2004 the Court of Appeal again granted the District Court’s requests and ordered that the applicant be detained until 30 September 2004. It dismissed the applicant’s appeals against those decisions.
15. On 18 August 2004 the District Court released the applicant under police supervision; it also prohibited him from leaving the country. The court considered that the applicant suffered from a personality disorder and depression and that his isolation from the outside world constituted a danger to his life and health. The court based its view on a report by two expert psychiatrists.
16. The proceedings are still pending.
17. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).
18. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
19. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
20. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
21. Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
22. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. The court of appeal within whose jurisdiction the offence in question has been committed may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3