ITEMID: 001-79725
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RADOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Zbigniew Radowski, is a Polish national who was born in 1967 and lives in Poznań. He is represented before the Court by Mr L. Cyrson, a lawyer practising in Poznań. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In April 2000 the applicant and his wife divorced. In a divorce judgment, the Poznan Regional Court awarded custody of the parties’ two-year-old son M. to the mother and granted the applicant access to the child three times per month.
On 26 April 2000 the applicant instituted proceedings for denial of paternity. In the light of DNA analysis, it was established that M. was the applicant’s biological child. The applicant subsequently recognised his paternity.
On 10 July 2003 the applicant obtained a decision of the Głogów District Court concerning his access to M. and modifying the access arrangements determined by the divorce judgment. He was granted access to the child by visiting him at the mother’s address, indicated in the decision, once a month, on the first Saturday of every other month, from 10 a.m. to 1 p.m., as from 2 August 2003.
On 4 December 2003 the Głogów District Court gave a judgment by which the applicant was divested of his parental authority. The court found that the applicant had not made any efforts to maintain close emotional ties with his child during the first years of his life. The court also observed that the applicant had been evading parental responsibilities and his behaviour had not seemed to have been motivated by the child’s best interests.
This judgment was upheld by the Legnica District Court on 18 March 2004.
On an unspecified later date the mother moved to Germany with M. and married again.
The applicant repeatedly requested the police to accompany him during his visits to the child’s grandparents’ house to exercise his rights of access to M. as provided in the July 2003 decision. The police officers on every occasion verified whether M. was at home, but invariably found that both M. and his mother were absent.
The applicant instituted enforcement proceedings under the provisions of the Code of Civil Procedure governing enforcement of judgments imposing non-pecuniary obligations.
On 17 August 2004 the Głogów Regional Court gave a decision by which it refused to institute enforcement proceedings in respect of the access decision of 10 July 2003. It observed that it provided only for the applicant’s right to have access to his son and specified the access arrangements, but did not determine the mother’s corresponding obligations. Thus, it could not be enforced.
Following the applicant’s appeal against this decision, on 30 September 2004 the Legnica Regional Court upheld the decision, sharing the first-instance court’s conclusion that the judgment could not be enforced.
The applicant subsequently requested the Głogów District Court to give an interpretation of its July 2003 decision. On 20 August 2004 the court refused to do so, considering that the applicant wished in fact to have original decision amended by setting out the mother’s obligations. This, the court declared, could be done in a new set of access proceedings in which the access arrangements would be reviewed and amended so as to specify the mother’s obligations.
On 30 September 2004 the Legnica Regional Court dismissed the applicant’s appeal against this decision. The court observed that the applicant’s dissatisfaction with the fact that he could not exercise his access rights determined by the judicial decision had been legitimate and justified. Nevertheless, the court agreed with the conclusion of the decision of 17 August 2004 that the original access decision had not imposed any obligations on the mother and therefore could not be subject to enforcement proceedings. The Regional Court also observed that the Głogów District Court had, in its decision of 20 August 2004, indicated a way of clarifying the applicant’s situation, i.e. by applying for a modification of the decision of 10 July 2003.
The applicant did not apply to have this decision modified by the court.
Article 58 § 1 of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides:
“In a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties’ minor children should be carried out (...). The court may grant custody rights to one parent and limit the custody rights of the other one.”
Article 577 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides:
“The custody court can change its decision if the best interests of the person whom it concerns so require. “
According to the Supreme Court’s resolution, if a parent called upon by a court decision to respect the other parents’ access rights refuses to comply therewith, that decision is liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights (30 January 1976, III CZP 94/75, OSNCP 1976 78).


ITEMID: 001-57677
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF QUARANTA v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 7. Mr Quaranta, who is an Italian national, was born in 1962 at Scorrano (Lecce). He arrived in Switzerland at a very young age, with his parents. He resides at Vevey in the Canton of Vaud, where he pursues the occupation of assistant plumber.
8. Between 1975 and 1978 he was placed in various homes for juveniles. In December 1978 he was made the subject of an educational assistance order by decision of the President of the Lausanne Juvenile Court. On his return to his parents’ home, he began, in August 1979, a plumber’s apprenticeship but failed to complete it. He subsequently worked for a number of local companies.
On 5 March 1982 the Vevey District Criminal Court gave him a suspended sentence of ten months’ imprisonment, with three years probation, for aggravated theft, robbery, criminal damage and taking and driving away a motor vehicle without a driving licence. The court decided to treat him on the same footing as his accomplice and accepted his plea of diminished responsibility (Article 11 of the Swiss Penal Code), but without ordering an expert psychiatric opinion; it also took into consideration his youth, the short duration of his criminal activity, his personal situation at the time of the offences, particularly as regards his emotional insecurity, and the lasting improvement observed in his behaviour. This decision is not here in issue.
9. The applicant, who was suspected of an offence under the Federal Misuse of Drugs Act of 3 October 1951 ("the 1951 Act"), appeared on 10 March 1985 before the investigating judge ("juge informateur") of the Vevey-Lavaux district. In the course of this sole examination, he requested free legal assistance (Article 104 of the Vaud Code of Criminal Procedure - see paragraph 18 below).
On 23 May 1985 the investigating judge communicated the application to the President of the Criminal Court who rejected it (Article 107 of the Vaud Code of Criminal Procedure - see paragraph 18 below) on 31 May on the grounds that "the needs of the defence [did] not require ... the provision of free legal assistance" and that "the case [did] not give rise to particular difficulties". Mr Quaranta was informed of this decision on 3 June and, although advised of his right to appeal against it within ten days to the indictments tribunal, he did not do so.
On 5 June 1985 he went to the Criminal Court to reiterate his request. By a letter of 7 June the registrar informed him that he could not lodge such a request until his file had reached the court.
10. On 23 August 1985 the investigating judge committed the applicant for trial in the Vevey Criminal Court, charged with offences under Articles 19 para. 1, 3rd, 4th and 5th indents, and 19 (a) para. 1 of the 1951 Act (see paragraph 19 below).
11. On 17 October 1985 the applicant repeated his request for free legal assistance, but on 30 October the President of the Criminal Court refused it for the same reasons as on 31 May (see paragraph 9 above).
12. The hearing began on 12 November 1985 at 2.30 p.m.; it lasted only twenty-five minutes. The applicant appeared in person without the assistance of a lawyer. No representative of the public prosecutor’s office participated in the court proceedings. The main documents in the file were read out, including the committal order. Mr Quaranta answered the President’s questions and added a few words in his defence.
The same day, after having deliberated, the court found the applicant guilty of taking drugs and drug trafficking and on this account sentenced him to six months’ imprisonment; the sentence was not suspended. In addition, having stressed the relative seriousness of the offences, committed while on probation under the 1982 decision, it revoked the suspension order (Article 41 para. 3 of the Swiss Criminal Code) and ordered the activation of the previous sentence (see paragraph 8 above), from which the five days that the accused had spent in detention on remand were to be deducted.
In the grounds of the judgment the court noted that the applicant had taken hashish daily since 1975 and that from the summer of 1983 to spring 1985 he had bought, in small quantities, 2 kg of this drug, most of which he had sold. It considered that a heavy penalty was called for because of the large quantity of hashish involved and the applicant’s profit-making intention. However, in mitigation, it took into account his "very precarious" financial position during the period in question; he was unemployed and he lived, together with his family, on social security benefit.
13. Through a lawyer, whose services he paid for himself, Mr Quaranta appealed to the Court of Criminal Cassation of the Vaud Cantonal Court.
He pleaded primarily that the court should quash the judgment of 12 November 1985. In his view, his youth, his lack of vocational training and his two previous convictions (see paragraph 8 above) had made the presence of a lawyer necessary for his defence. Furthermore, the contested decision was, he claimed, flawed by reason of the criminal court’s failure to state why it had considered that the subjective conditions for suspending the sentence were not satisfied.
In the alternative the applicant asked the Court of Cassation to vary the decision. He argued that the trial court had misapplied Article 41 of the Swiss Criminal Code inasmuch as, on account of his age and the improvement observed in his behaviour, he should have been left a last chance and been given a further suspended sentence.
14. On 27 January 1986 the Criminal Court of Cassation dismissed the appeal on the following grounds:
"Application to have the decision quashed (recours en nullité)
...
In a judgment, Coindet, of 11 November 1983 ... the First Public-Law Chamber of the Federal Court laid down the following principles:
The conditions set forth in Article 104 para. 2 CCP [Code of Criminal Procedure] - the needs of the defence in a criminal prosecution - are the same as those laid down in the case-law concerning the right to free legal assistance as it may be inferred from Article 4 of the Constitution. The accused must be provided with defence counsel where the sentence which he may expect on conviction cannot be suspended because of its length, or where there is a likelihood of an order confining him to a non-penal institution [mesure privative de liberté]; in other cases such a right may be recognised under Article 4 of the Constitution only where, in addition to the relative seriousness of the case, there are special difficulties from the point of view of the establishment of the facts or the legal issues raised; it is then necessary to take account of the accused’s capacities, his experience in the legal field and the measures which appear necessary, in the specific case, to provide for his defence, in particular as regards the evidence which he will have to produce.
...
In this instance, the length of the term of imprisonment did not in itself rule out the possibility of a suspended sentence. Moreover, the appellant does not claim that free legal assistance was necessary because he expected to receive a sentence which could not be suspended by reason of its length; there was no difficulty in the establishment of the facts, which, as the appellant states in his memorial, ‘are admitted in their large majority’; nor does the appellant rely on legal difficulties, and he is correct in not doing so; as regards the reasons relating to the accused’s personal situation, the fact that he is a young adult within the meaning of Articles 100-100 ter of the Criminal Code, and has already been convicted, cannot be regarded as constituting a particular difficulty.
The submission is therefore unfounded and must fail.
...
In so far as the appellant seeks to show that the decision was flawed with regard to points of fact which constituted the basis of the reasoning of the first-instance court in its refusal to suspend the sentence, it may be accepted that this submission raises a question of nullity. But it is unfounded. In fact, in order to establish whether the subjective conditions for suspending a sentence are satisfied, the trial judge must determine whether there are prospects for the defendant’s lasting improvement, having regard to his past history and his character (Arrêts du Tribunal fédéral, [ATF, official reports of the judgments of the Swiss Federal Court] 101 IV 258, ground 1; Federal Court: Meyer, 29.11.1983, ad Cass. : 7.10.1983). In this instance the trial court noted the appellant’s past history and found that he took and trafficked in drugs. As regards his character, it described his curriculum vitae, his family situation, his reputation and his financial position. The trial court therefore gathered together all the necessary information to make a prognosis. Consequently, the complaint that the decision was flawed in this respect is unfounded and the application to have the decision quashed must fail.
...
3. Application to have the decision varied (recours en réforme)
...
Tribunaux [JT, Courts’ Gazette] 1980 I 460 no. 58, and the judgments mentioned therein). The same principles have been laid down by this Court: the appellate body should intervene only where the trial court misuses its power of assessment or where it has failed to give expressly or impliedly the grounds for its decision (see CCP with annotations, Article 415, p. 285).
In this instance, the grounds for refusing to suspend the sentence were stated by implication and did not constitute misuse of the power of assessment. The quantity of drugs involved was large and the appellant’s criminal activity continued over a long period, while he was on probation under another sentence. The profit-making purpose is clear. Not even his precarious financial position excuses engaging in such traffic. The information obtained regarding the appellant is not wholly positive. The refusal to suspend the sentence is therefore justified and the application to have the decision varied must therefore also fail."
15. The applicant then lodged a public-law appeal with the Federal Court, complaining of the arbitrary application of Article 104 of the Vaud Code of Criminal Procedure and of violations of Article 4 of the Constitution and Article 6 para. 3 (c) (art. 6-3-c) of the Convention. He also sought free legal assistance in the proceedings before the Federal Court.
On 5 December 1986 the Federal Court allowed his request for free legal assistance, but dismissed the appeal in the following terms:
"1. The appellant states that the submissions on which he relies ... overlap for the most part and he gives no specific grounds, as required under Article 90 para. 1 (b) OJ [Federal Act on the organisation of the courts of 16 December 1943], concerning the complaint of a violation of the European Convention on Human Rights. Moreover, the guarantees secured by the provisions of Article 6 (art. 6) of the European Convention are in part already contained in Article 4 of the Constitution. They do not therefore in this case have separate effect (ATF 105 Ia 305, ground f, 103 Ia 5, ground 2). The present appeal can consequently be examined only from the point of view of domestic law.
...
... In other words provision of free legal assistance is indispensable where the case in question is of some gravity and gives rise to difficulties as to the facts or to the law of a kind that the accused is not in a position to deal with (ATF 111 Ia 82 s., ground 2 c, 102 Ia 89 et seq.). In order to ascertain whether the minimum requirements of Article 4 of the Constitution are satisfied, it is necessary in each case to assess all the specific circumstances (ATF 102 Ia 90).
4. (a) As far as the length of the likely sentence is concerned (an order of confinement in a non-penal institution not being relevant to the present case), the appellant does not claim that he risked, in the given circumstances and for the only offences of which he was accused, a sentence whose length was in excess of a sentence which might be suspended. Clearly the risk of the activation of the previous suspended sentence (which was here for a term of ten months’ imprisonment) has to be taken into account (see the Coindet judgment, cited above, ground 2 b). But the appellant does not maintain that, in view of this possibility, he in fact risked a custodial sentence of more than eighteen months. On the contrary, he relied on the total of sixteen months’ imprisonment imposed on him in order to argue that free legal assistance might have made it possible for him to obtain a more lenient sentence. It must therefore be recognised that the overall sentence which he actually risked did not exceed eighteen months and therefore did not entail the obligation to grant him free legal assistance.
(b) Evidently, the appellant’s case must be regarded in itself as relatively serious, for the reasons set out in the judgments of the Cantonal Court and the Criminal Court. However, various considerations which the case-law has identified as militating in favour of according free legal assistance did not apply: Quaranta was not in detention on remand for a long time, which would have been an impediment to his defence; he was released on the very day on which he had been arrested (ATF 101 Ia 91, ground 3 e, 100 Ia 187/188); the prosecution case was not argued, at the trial hearing on 12 November 1985, by a representative of the public prosecutor’s office (ATF 106 Ia 183, ground 2 b, 103 Ia 5 i. f.); despite a certain instability, the appellant did not appear to be a man of diminished capacity either physically or mentally, as can be inferred from the attestation and the statements of his employer, as well as those of the social worker questioned by the police. In addition, his case did not give rise to any difficulty as to the facts, since the investigation concerning him consisted merely of a single interview by the investigating judge. Moreover, he immediately admitted the facts in respect of which he was accused, and which are not in any case contested in the appeal (ATF 111 Ia 85/86, 101 Ia 92).
...
(aa) As regards the possibility of diminished criminal responsibility, the appellant relies, in the first place, on the extract from the contested judgment in which it is stated that ‘from 1975 until spring 1985, and with greater frequency since 1983, the accused has taken hashish on a daily basis’, an extract reproduced verbatim from the first-instance judgment of 12 November 1985. Secondly, he relies on the Conconi judgment (ATF 102 IV 74 et seq.). It appears, however, from the file of the investigating judge of the Vevey-Lavaux district that the above-mentioned statement of fact is not accurate. Questioned on 10 March 1985 by the police, the appellant stated: ‘I have been smoking hash for about ten years. For two years I have smoked every day’. The same day, he answered the investigating judge as follows: ‘I first came into contact with hashish at the age of thirteen ... . Since then I have smoked it from time to time; it is really only over the last two years that I have been smoking hashish almost daily’. The police report of 10 April 1985 notes that Quaranta ‘stated that he had been smoking hashish for about ten years and more regularly for two years’. There is no evidence to the effect that, contrary to his statements, the appellant smoked hashish on a daily basis ‘from 1975 onwards’, or indeed that he has in fact smoked every day since 1983. Moreover, the same evidence makes clear that he only used hashish, and not ‘hard’ drugs. In any event the committal order and the criminal court’s judgment of 12 November 1985 concerned solely hashish.
On issues of law it was unnecessary to appoint a lawyer to act for the appellant in order to draw the Court’s attention to the fact that, in accordance with the Conconi judgment, ‘the court has a duty, where consumption of narcotics is involved, to consider whether the circumstances cast doubt on the accused’s responsibility’. Quaranta appeared in no way disturbed and, unlike Conconi, he had never used ‘hard’ drugs. The cantonal courts, which inquired into the accused’s character and expressed their views in this respect, therefore clearly considered that there were no grounds for doubting his mental state. Whether or not they were under an obligation to say so expressly in their judgments, as would seem to be a possible inference from the Conconi judgment, is immaterial in relation to an alleged obligation to accord free legal assistance.
(bb) The question whether the reason for the refusal to suspend the new sentence also necessarily entailed the activation of the previous suspended sentence (cf. ATF 107 IV 92/93) was not in itself a complex legal issue which required the granting of free legal assistance. Given the appellant’s previous history and the nature and the dates of the new offences, there is no evidence that the provision of legal assistance - which Quaranta moreover received for his appeal to the Criminal Court of Cassation - would have been necessary for the protection of his rights.
... ."
16. On 21 July 1987 Mr Quaranta went to the prison of Bellechasse (Fribourg) to serve his sentence, but the High Council of the Canton of Vaud accorded him a partial pardon by a decree of 18 November 1987 which was worded as follows:
"The enforcement of the sentences of ten months’ imprisonment, less five days of detention on remand, and six months’ imprisonment to which Quaranta was sentenced by the Vevey District Criminal Court respectively on 5 March 1982 and 12 November 1985 shall be suspended as from 24 December 1987 for a probationary period of three years from the date of suspension."
17. According to the first paragraph of Article 4 of the Federal Constitution,
"All Swiss nationals shall be equal before the law. In Switzerland there shall be no vassals; and there shall be no privileges attaching to a place, birth, persons or families."
18. The two provisions of the Vaud Code of Criminal Procedure relied on or applied in the present case are as follows:
"The accused must be provided with defence counsel in all cases in which a representative of the public prosecutor’s office participates in the court proceedings.
In other cases, he may be provided with defence counsel, even against his will, when the needs of the defence so require, in particular for reasons relating to his personality or because of the particular difficulties of the case."
"At any time until the opening of the trial, the accused may request free legal assistance. He shall make such a request to the investigating judge, who shall transmit it forthwith, with his preliminary opinion, to the President of the competent court; when the case has already been referred to the court, the accused shall submit his request directly to the President.
The President shall take his decision promptly; ... ."
19. Sections 19 para. 1 and 19 (a) para. 1 provide inter alia:
"Any person who unlawfully cultivates alkaloid or hemp plants with a view to producing narcotics,
any person who unlawfully manufactures, extracts, transforms or prepares narcotics,
any person who unlawfully stocks, dispatches, transports, imports, exports or carries them in transit,
any person who unlawfully offers, distributes, sells, deals in, procures, prescribes, markets or transfers them,
any person who unlawfully possesses, holds, purchases or otherwise acquires them,
any person who takes steps to pursue these ends,
any person who finances illegal traffic in narcotics or who serves as intermediary for such financing, and
any person who publicly encourages the consumption of drugs or reveals how to obtain or consume them,
shall be liable, if he has acted intentionally, to imprisonment or a fine. In serious cases the sentence may be imprisonment (réclusion or emprisonnement) for at least one year; such a sentence may be accompanied by the imposition of a fine of up to one million Swiss francs.
... ."
"Any person who unlawfully and intentionally consumes narcotics or any person committing an infringement of Article 19 in order to provide for his own consumption shall be liable to detention or a fine.
... ."
20. The term of imprisonment (emprisonnement) is laid down in Article 36 of the Criminal Code:
"The term of imprisonment (emprisonnement) shall be not less than three days and, except as expressly provided to the contrary by statute, shall not exceed three years."
21. The rules governing the suspension of sentence are set out in Article 41, which is worded as follows:
"1. Where a custodial sentence of not more than eighteen months or an accessory penalty is imposed, the court may suspend the enforcement of the sentence, if the record and character of the convicted person suggest that this measure will deter him from committing further offences and if he has made reparations, to the extent which might reasonably be expected of him, for damage as assessed by the court or by agreement with the injured party.
The sentence may not be suspended where the convicted person has undergone, in respect of an intentional offence (crime or délit), more than three months’ imprisonment (réclusion or emprisonnement) within the five years preceding the commission of the offence. Foreign convictions are to be taken into account in so far as they are not contrary to Swiss public policy.
In suspending the sentence, the court shall accord the convicted person a probationary period of from two to five years.
Where more than one sentence is involved, the judge may limit the effect of the suspension to certain of them.
... ."
22. In the case of abnormal offenders, alcoholics and drug addicts, the court may order the following measures and treatment:
"Where the mental state of an offender who has committed, by reason of this state, an offence punishable by imprisonment (réclusion or emprisonnement) under the present Code requires medical treatment or special care intended to remove or reduce the danger of the offender’s committing other such offences, the court may order that he be sent to a hospital or an asylum. It may order out-patient treatment if the offender does not represent a danger for other persons."
...
Where out-patient treatment is ordered, the court may suspend the sentence imposed if that sentence is not compatible with the treatment. In such circumstances, it may order the convicted person to comply with rules of conduct under Article 41 (2) and, if necessary, place him under court supervision.
... ."
"1. If the offender is an alcoholic and he has committed the offence in question by reason of this state, the court may commit him to an establishment for alcoholics or if necessary to a hospital in order to prevent new offences. The court may also order out-patient treatment. Article 43 (2) is applicable by analogy.
The court shall order if necessary an expert opinion on the physical and mental state of the offender and on the appropriateness of the treatment.
...
6. This Article applies by analogy to drug addicts.
... ."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-60857
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KOPECKÝ v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 9. On 12 February 1959 the applicant’s father was convicted of an offence on the ground that he had kept, contrary to the regulations then in force, 131 gold coins and 2,151 silver coins of numismatic value. He was sentenced to one year’s imprisonment. He was also fined and the coins were confiscated.
10. On 1 April 1992 the Supreme Court of the Slovak Republic (Najvyšší súd) quashed, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act of 1990, the judgment of 12 February 1959 including all consequential decisions and discharged the applicant’s late father.
11. On 30 September 1992 the applicant claimed the restitution of his father’s coins under the Extra-Judicial Rehabilitations Act of 1991.
12. On 19 September 1995 the Senica District Court (Okresný súd) granted the action and ordered the Ministry of the Interior to restore the coins to the applicant. The court established, with reference to the relevant records, that the coins had been taken away from the applicant’s father on 21 November 1958 and that they had been transmitted to the Regional Administration of the Ministry of the Interior in Bratislava on 12 December 1958. On 19 December 1958 the coins were examined by an expert and inventoried in the premises of the Regional Administration in Bratislava.
13. The relevant part of the District Court’s judgment reads as follows:
“It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is. However, in the present case the plaintiff undoubtedly has no possibility of inspecting the premises or safes of the former Public Security Regional Administration in Bratislava as he is not allowed to enter those premises. By insisting that the applicant should show that the coins are at the last known place the court would impose a burden of proof on him which it is practically impossible to fulfil. On the contrary ... the Ministry of the Interior neither showed that the former Public Security Regional Administration in Bratislava had transferred the coins to a different authority nor did it propose to take evidence to that effect...
The court established that the last time the coins ... had been held in the premises of the Public Security Regional Administration in Bratislava to which the Ministry of the Interior is a successor, and it has not been shown that the coins were not in those premises when the Extra-Judicial Rehabilitations Act became operative, i.e. by 1 April 1991.”
14. On 1 December 1995 the Ministry of the Interior appealed. Its representative argued that all relevant documents had been destroyed and that the onus of proof as regards the deposit of the coins lay on the applicant.
15. On 29 January 1997 the Bratislava Regional Court (Krajský súd) dismissed the applicant’s action. It found, with reference to Sections 4 (1), 5 (1) and 20 (1) of the Extra-Judicial Rehabilitations Act of 1991, that the applicant had failed to show where the coins had been deposited when that Act had become operative on 1 April 1991.
16. In the judgment the Regional Court admitted that the applicant had limited possibilities of locating his father’s property. It therefore took further evidence of its own initiative. In particular, the Regional Court noted that in accordance with the relevant practice the confiscated property should have been handed over to the public prosecutor and, after the relevant judgment had became final, to the financial department of the competent local government authority. The Regional Court therefore examined the criminal file concerning the case of the applicant’s father. It further established that the archives of the Senica District Office, of the Ministry of the Interior, of the National Bank of Slovakia and of the State Regional Archive in Bratislava contained no document relating to the coins in question. The Regional Court also heard a witness who had worked at the Myjava District Department of the Ministry of the Interior in 1958. However, the latter had no knowledge of the case.
17. On 27 January 1998 the Supreme Court (Najvyšší súd) dismissed the applicant’s appeal on points of law. It shared the Regional Court’s view according to which the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins as required by Section 5 (1) of the Extra-Judicial Rehabilitations Act of 1991.
18. In the judgment the Supreme Court further stated:
“The allegation that the movable property in question had been taken over by an employee of the Public Security Regional Administration in Bratislava on 12 December 1958 and that ... it had been examined there by an expert on 19 December 1958 cannot suffice. Since then a considerable period lapsed during which the golden and silver coins in question could have been alienated, destroyed or lost. The legislator, however, explicitly included in Section 5 (1) of the Extra-Judicial Rehabilitations Act the obligation to show where the movable in question is at the moment of the entry into force of that law.
... it follows from logical and systematic interpretation of Section 5 (1) of the Extra-Judicial Rehabilitations Act that a restitution claim can only concern the same property which was taken over by the State and not a different object of the same kind. Only movable property which can be individually identified by its specific features thanks to which it cannnot be interchanged with other objects is therefore liable to restitution...”
19. Act No. 119/1990 on Judicial Rehabilitation (Zákon o súdnej rehabilitácii) entered into force on 1 July 1990. The relevant provisions read as follows:
“The aim of the Act is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and set out in the international documents, ... to ensure social rehabilitation and adequate material compensation for the persons [so] convicted...”
...
“2. The conditions under which the provisions of this Act shall apply to claims resulting from quashed confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law.”
20. Act No. 87/1991 on Extra-Judicial Rehabilitations (Zákon o mimosúdnych rehabilitáciách) became operative on 1 April 1991. Its preamble stipulates that it was adopted with the aim of mitigating the consequences of certain infringements of property rights as well as of other rights which occurred between 25 February 1948 and 1 January 1990. The relevant provisions of the Extra-Judicial Rehabilitations Act read as follows:
“1. This Act relates to the mitigation of the consequences of certain infringements ... which arose between 25 February 1948 and 1 January 1990 ... and which are incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights and the ensuing international pacts on civil, political, economic, social and cultural rights.
2. This Act also lays down the conditions for submitting claims resulting from quashed sentences by which property was confiscated as well as the manner of redress and the scope of such claims.”
“1. Persons obliged [to restore the property] comprise the State or legal persons having confiscated property in their possession at the date when this Act becomes operative...
2. Any natural person who [unlawfully] acquired property from the State is also obliged to restore such property...”
“1. A person obliged [to make restitution] shall restore the property upon a written request provided that the person [claiming the property] proves that he or she is entitled to have the property restored and shows in which way it was taken away by the State. When claiming restitution of movable property [the person concerned] is further required to show where the property is...”
“1. Financial compensation may be granted to the person concerned only in respect of real property which cannot be restored...
2. When the State acquired, on the basis of a judicial decision which was quashed under Act no. 119/1990 on Judicial Rehabilitation..., the entire property of a citizen and when such property did not comprise real property, the person concerned is entitled to compensation in the amount of 60,000 Czechoslovak korunas...”
“1. The persons obliged [to restore confiscated property] shall comprise any legal person referred to in Section 4 (1), any natural person referred to in Section 4 (2) who acquired such property from the State where the State itself obtained it as a result of a judicial decision, and the competent central government authority.
2. The persons obliged to restore confiscated property shall do so in accordance with Sections 5, ... of the Act. When it is impossible to restore the property the persons concerned are entitled to claim compensation pursuant to Section 13 of [this] Act.”


ITEMID: 001-61745
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KANSAL v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 7. The applicant was born in 1947 and lives in Oldham.
8. From 1977, the applicant ran a company which operated 20 chemist shops. Following financial problems, the company went into liquidation in February 1987. On 20 May 1987, a bankruptcy petition was presented against the applicant and on 11 March 1988, a bankruptcy order was made.
9. On 29 July 1988, the applicant was publicly examined by the official receiver. Under section 291 of the Insolvency Act 1986, the applicant was obliged to answer the questions put to him by the official receiver and if he failed to comply without reasonable excuse, he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment.
10. On 16 March and 23 March 1988, a building society advanced 150,000 pounds sterling (GBP) and GBP 116,250 respectively to the applicant. On 23 March 1988, the applicant's wife collected part of the advance, GBP 104,000, and took it to India in a bin liner.
11. The applicant was subsequently charged with two offences of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 on the grounds that he had misled the building society into advancing money by false representations regarding his income, his debts and the bankruptcy proceedings against him. He was also charged with two offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt contrary to section 354(2) and (3) of the Insolvency Act 1986.
12. At the applicant's trial in February 1992, the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings. The applicant submitted that the transcript was inadmissible under section 31 of the Theft Act 1968 which provides that a statement or admission made by a person answering questions in proceedings for the administration of any property or for an account of any property or dealings with property is not admissible in evidence against that person. However, the trial judge ruled the evidence admissible under section 433 of the Insolvency Act 1986 which provided that statements made in pursuance of a requirement imposed by the Act could be used in evidence against the maker of the statement. The full transcript was placed before the jury and in his summing up, the judge stated that the transcript “could be very important”.
13. On 18 February 1992, the applicant was convicted of the four offences charged and was sentenced to 15 months' imprisonment. The applicant appealed against conviction and on 12 May 1992, the Court of Appeal dismissed his appeal deciding, inter alia, that the transcript of the bankruptcy examination was admissible under section 433 of the Insolvency Act 1986 which abrogated the privilege against self-incrimination. Leave to appeal was refused by the Court of Appeal and by the House of Lords.
14. On 27 June 1995, the Royal Pharmaceutical Society of Great Britain decided to remove the applicant's licence to practise as a pharmacist on the grounds of unfitness due to his involvement in the deception connected with his bankruptcy proceedings and a previous reprimand relating to the cleanliness of his premises.
15. On 27 April 1998, the Criminal Cases Review Commission (“CCRC”) referred the applicant's case back to the Court of Appeal due to changes in the domestic law on obtaining mortgage advances by false statements. On 20 June 2000, the Commission added the ground that, following the decision of the European Court of Human Rights in Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI) and the introduction of the Human Rights Act 1998, the admission of answers given under compulsion during the bankruptcy examination may have been in breach of Article 6 of the Convention and rendered the applicant's conviction unsafe.
16. On 24 May 2001, the Court of Appeal overturned the applicant's conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial and in breach of Article 6 of the Convention. The court found that the Human Rights Act 1998 could apply retrospectively. It certified a point of law to the House of Lords as to whether the Human Rights Act 1998 could apply retrospectively in appeals arising from a reference by the CCRC.
17. The Crown appealed to the House of Lords against the decision of the Court of Appeal. On 29 November 2001, the House of Lords allowed the appeal, holding that they were bound to follow the earlier decision of the House in R v. Lambert [2001] 3 WLR 206, which had decided that the Human Rights Act 1998 could not apply retrospectively to allow a defendant whose trial took place before the Act came into force to rely on a breach of the Convention in a later appeal.
18. Section 291(4) of the Insolvency Act 1986 (“the 1986 Act”) provided as follows:
“The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver may for any of the purposes of this Chapter require; ...”
19. Section 291(6) went on to stipulate that:
“If a bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).”
20. The Divisional Court would deal with such a contempt of court and the sentence could be a fine or imprisonment for a maximum of two years (section 14 of the Supreme Court Act 1981).
21. Section 290(1) of the 1986 Act provided that the official receiver could apply to the court for the public examination of the bankrupt. Cases such as Re Paget (1927) 2 Ch. 85 and R v. Harris (1970) 1 WLR1252 established that the bankrupt was not entitled to refuse to answer questions during the public examination on the grounds of self-incrimination.
22. At the relevant time, section 433 of the 1986 Act provided that:
“In any proceedings (whether or not under this Act) –
(a) a statement of affairs prepared for the purposes of any provision of this Act which is derived from the Insolvency Act 1985 and
(b) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act,
may be used in evidence against any person making or concurring in making the statement.”
23. In contrast, section 31(1) of the Theft Act 1968 stipulated that a statement or admission made by a person answering questions in proceedings for the administration of any property was not admissible in evidence in criminal proceedings relating to an offence under the Act.
24. In R v. Kansal (1993) 95 Cr.App.R. 348 (the decision on the first appeal of this applicant), the Court of Appeal held that the Insolvency Rules 1986 (S.I. 1986 No. 1925) made it clear that the privilege against self-incrimination was abrogated in any public examination of the bankrupt and that, thereafter, section 433 of the 1986 Act rendered the evidence admissible in a criminal trial notwithstanding section 31 of the Theft Act.
25. Following the decision of this Court in Saunders v. United Kingdom (cited above) and the planned introduction of the Human Rights Act 1998, section 59 and Schedule 3 of the Youth Justice and Criminal Evidence Act 1999 amended section 433 of the 1986 Act, inserting section 433(2)):
“(2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies–
(a) no evidence relating to the statement may be adduced, and
(b) no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.”
This provision was not in force at the time of the applicant's trial.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83486
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF URSU v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 5. The applicant, Mr Mihai Ursu, is a Moldovan national who was born in 1970 and lives in Peresecina.
6. On 31 March 2004 the applicant was arrested on suspicion of having murdered, in 1993, Mr I.O., whose mother became Speaker of Parliament in 2001.
7. Between 2 April and 3 August 2004 he was remanded on the basis of monthly detention orders issued by the Buiucani District Court. The detention orders set out as grounds for his detention the fact that he had been suspected of having committed a serious offence punishable by more than two years' imprisonment; moreover, the isolation of the suspect from society was considered necessary because he might abscond and obstruct the criminal investigation by influencing the witnesses.
8. In his appeals against the detention orders, the applicant argued, inter alia, that his detention was not necessary since there were no objective reasons to suspect him, that during his detention no investigation measures had been carried out and that he suffered from epilepsy and needed specialist medical treatment.
9. All his appeals were dismissed on the ground that the circumstances warranting his detention had not changed. On 6 July 2004 the Chişinău Court of Appeal reduced the duration of the detention order from thirty days to twenty days on the ground that “during the previous month no investigation measures were carried out ... the suspect did not have a criminal record, he has a family and minor children, a house, a job and serious health problems.”
10. On 3 August 2004 the Prosecutor's Office submitted the applicant's case file to the competent court. After that date the applicant continued to be detained without any detention order.
11. On 21 December 2004 a habeas corpus request lodged by the applicant was rejected and he continued to be detained in pre-trial detention until 6 July 2006, when he was convicted and sentenced to twelve years' imprisonment.
12. The relevant domestic law has been set out in the Court's judgments in the cases of Sarban v. Moldova (no. 3456/05, § 51, 4 October 2005) and Holomiov v. Moldova (no. 30649/05, §§ 85 and 87, 7 November 2006).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-114635
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KRAJISNIK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Momčilo Krajišnik, is a Bosnia and Herzegovina national who was born in 1945 and is currently detained at HM Prison Belmarsh. He was represented before the Court by Bhatt Murphy Solicitors, a firm of solicitors based in London.
3. In September 1990 the applicant was elected to the Bosnia-Herzegovina Assembly as a member of the Serbian Democratic Party (“SDS”). In December 1990 he became the President of the Assembly pursuant to a power-sharing agreement between the three principal political parties.
4. In October 1991, the Bosnia-Herzegovina Assembly, in the absence of the applicant, adopted a declaration asserting the sovereignty of BosniaHerzegovina. The SDS subsequently established the Assembly of the Serbian People of Bosnia-Herzegovina (“the Bosnian-Serb Assembly”). The applicant was elected President of the Bosnian-Serb Assembly. He remained President of the Bosnian-Serb Assembly until November 1995. He was also a member of the National Security Council and, from 12 May until 17 December 1992, he was an active member of the Presidency of the Bosnian-Serb Republic.
5. On 21 February 2000 an indictment was first issued against the applicant by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the Hague.
6. The applicant was arrested on 3 April 2000 by the Stabilisation Force in Sarajevo and transferred to the Hague on the same day.
7. In an amended indictment dated 7 March 2002 the applicant was charged with eight counts, including genocide and complicity in genocide, persecution, extermination, murder, deportation and inhumane acts. Criminal responsibility was charged under Articles 7(1) and 7(3) of the Statute of the ICTY (see paragraph 30 below). The Prosecutor alleged that the applicant had participated, as a co-perpetrator or aider and abettor, in a joint criminal enterprise which had as its objective the permanent removal, by force or other means, of Bosnian Muslims and Bosnian Croats from large portions of Bosnia-Herzegovina through the commission of the crimes mentioned above. The crimes were alleged to have taken place in all thirty-five municipalities of Bosnia-Herzegovina between 1 July 1991 and 30 December 1992.
8. On 27 September 2006 the Trial Chamber of the ICTY found the applicant responsible, pursuant to Article 7(1) of the ICTY Statute, for participating in a joint criminal enterprise to achieve the permanent removal of Bosnian Muslims and Bosnian Croats from large portions of Bosnia-Herzegovina through the commission of crimes. It convicted the applicant of five counts of crimes against humanity under Article 5 of the ICTY Statute (see paragraph 29 below), namely persecution, extermination, murder, deportation and inhumane acts (forcible transfer). He was sentenced to twenty-seven years’ imprisonment, but granted credit for the time spent in detention, which at the date of judgment amounted to 2,369 days.
9. The prosecution filed an appeal against the applicant’s sentence on 26 October 2006. On 12 February 2007 the applicant filed a notice of appeal arguing that his convictions should be quashed or that a re-trial should be ordered. An amicus curiae was appointed by the Appeals Chamber and, on 8 June 2007, he also filed a notice of appeal arguing for the quashing of the convictions or a retrial. The appeals were heard on 21 August 2008.
10. On 17 March 2009 the Appeals Chamber allowed some of the grounds of appeal lodged by the applicant and by the amicus curiae. It reversed many of the applicant’s convictions for persecution, extermination, murder and deportation. However, it upheld his convictions for crimes against humanity in respect of specific instances of persecution, deportation and inhumane acts (forcible transfer). As to whether a retrial should be ordered, the judgment of the Appeals Chamber noted:
“799. ... [T]he convictions for the majority of crimes, of which Krajišnik had been found guilty, have been quashed. However, convictions for persecution, deportation and forcible transfer have been upheld, and the gravity of these crimes requires a severe and proportionate sentence. Therefore, in the circumstances of this particular case, the Appeals Chamber considers that it is not in the interests of justice to remit the case for further proceedings.”
11. The Appeals Chamber considered the various relevant factors set out in Article 24 of the ICTY Statute and Rule 101 of the Rules of Procedure and Evidence (“the Rules”) in determining the appropriate length of sentence (see paragraphs 10-11, 31 and 38 below). It noted inter alia that the crimes of which the applicant had been found guilty were among the most severe crimes known to mankind. It further identified relevant aggravating and mitigating features. The Appeals Chamber imposed a sentence of twenty years’ imprisonment, subject to credit for the time spent in detention, which at the date of the appeal judgment amounted to 3,271 days.
12. The applicant remained in detention in the Hague throughout the trial and appeal proceedings.
13. On 4 September 2009 the applicant was transferred to the United Kingdom to serve his sentence pursuant to an order of the President of the ICTY dated 24 April 2009. His transfer was governed by an agreement between the United Nations and the United Kingdom (“the UN-UK agreement on enforcement of sentences” – see paragraphs 34-37 below).
14. Pursuant to the terms of the agreement, the United Kingdom was bound by the duration of the sentence imposed and the conditions of imprisonment were governed by the law of the United Kingdom, subject to the supervision of the ICTY.
15. The UN-UK agreement on enforcement of sentences and the ICTY Statute provided that the United Kingdom was required to notify the ICTY if, pursuant to its law, the applicant became eligible for early release. The decision on early release would be taken by the President of the ICTY on the basis of the interests of justice and the general principles of law.
16. On 16 March 2010 the ICTY was notified by the United Kingdom authorities that the applicant would be eligible on 2 April 2010 for consideration for release on parole licence, after having served half of his sentence. A Seconded Probation Report dated 24 February 2010, a Sentence Planning and Review Report dated 25 February 2010 and a Prison Assessment for the Parole Board dated 9 February 2010 were attached to the notification. These were forwarded by the ICTY to the applicant for comment.
17. The applicant made submissions in reply, referring to the terms of the ICTY Practice Direction on the procedure for determining applications for pardon, commutation of sentence and early release (see paragraphs 41-42 below). He emphasised that he had been acquitted of charges of extermination, murder, genocide and complicity in murder in breach of the rules and conventions of war. He referred to the sentence imposed on, and time spent in detention by, his co-accused at trial, for the purposes of comparison. He also expressed remorse for the crimes committed and indicated his willingness to co-operate with the ICTY Prosecutor. Finally, he emphasised that his behaviour while in detention had been excellent.
18. The President of the ICTY handed down his decision on the applicant’s early release on 26 July 2010. He noted at the outset that although the applicant had served more than half of his sentence, it was the practice of the ICTY to consider convicted persons to be eligible for early release when they had served at least two thirds of their sentences. In the applicant’s case, this would be on 3 August 2013.
19. The President examined each of the factors set out in the Practice Direction on early release in turn. As regards comparison with similarly-situated prisoners, he rejected the applicant’s suggestion that the case of his co-accused supported his early release, observing that his co-accused had, unlike the applicant, entered into a plea agreement with the prosecution and had served at least two thirds of her sentence when she was released.
20. As regards the gravity of the applicant’s crimes, the President referred to the Appeals Chamber’s finding that the convictions were among the most severe crimes known to mankind and that their gravity required a severe and proportionate sentence. He concluded that the very high gravity of the applicant’s offences was a factor that weighed against his early release.
21. In so far as rehabilitation was concerned, the President reviewed the applicant’s behaviour while in prison, his statements of remorse and the information he had provided regarding his plans post-release. He found that the applicant had demonstrated some rehabilitation, which militated in favour of his early release.
22. Finally, concerning cooperation with the Prosecutor, the President found the applicant’s assertion that he had assisted the Prosecutor by providing documents and encouraging officials to give statements to be unsubstantiated. It could not therefore be considered a positive factor in respect of his early release. The applicant’s willingness to assist post-conviction was, in the absence of any instance where his assistance had been requested, found to be a neutral factor.
23. The President concluded:
“33. While Mr. Krajišnik has displayed some evidence of rehabilitation, I am of the view that there remain significant factors that weigh against granting him early release. Mr. Krajišnik’s crimes are of a very high gravity, involving a widespread displacement of the non-Serb population in Bosnia and Herzegovina, which caused great suffering. Moreover, in respect of the requirement that the President shall take into account the treatment of similarly-situated prisoners, the practice of the Tribunal is to consider the eligibility of a convicted person only after he has served two-thirds of his sentence; therefore, the fact that Mr. Krajišnik has only recently completed serving half of his sentence does not weigh in favour of his early release.
34. Taking all of the foregoing into account and having considered those factors identified in Rule 125 of the Rules [see paragraph 40 below], I am of the view that Mr. Krajišnik should not be granted early release.
35. I note that my colleagues unanimously share my view that Mr. Krajišnik should be denied early release.”
24. No appeal was possible against the President’s decision.
25. At the relevant time, section 33(2) of the Criminal Justice Act 1991 provided that as soon as a long-term prisoner had served two thirds of his sentence, it would be the duty of the Secretary of State to release him on licence. Section 33(5) defined “long-term” prisoner as a person serving a sentence of imprisonment for a term of four years or more.
26. Section 35 provided to the Secretary of State an additional discretionary power to release long-term prisoners before the two-thirds point of their sentence and provided that:
“(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence.”
27. Under the Parole Board (Transfer of Functions) Order 1998 the Secretary of State transformed his section 35 discretion to release longterm prisoners serving a sentence of imprisonment for a term of less than fifteen years into a duty. For those serving sentences of fifteen years or more, the Secretary of State retained his discretion to order early release after the halfway point and before two thirds of the sentence had been served.
28. Article 1 of the Statute provides that the ICTY has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.
29. Article 5 provides:
“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.”
30. Pursuant to Article 7(1), a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in, inter alia, Article 5 is to be considered individually responsible for the crime. Article 7(3) provides that the fact that any of the relevant acts were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts, or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.
31. Article 24 sets out factors relevant to determining the appropriate length of sentence. It provides that the ICTY must have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia and should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.
32. Article 27 addresses enforcement of sentences and provides that imprisonment will be served in a State designated by the ICTY from a list of States which have indicated their willingness to accept convicted persons. It further provides that such imprisonment will be in accordance with the applicable law of the State concerned, subject to the supervision of the ICTY.
33. Article 28 deals with pardon or commutation of sentences. It provides:
“If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.”
34. The UN-UK agreement on enforcement of sentences was adopted following the United Kingdom’s confirmation of its willingness, pursuant to Article 27 of the ICTY Statute, to enforce sentences imposed by the ICTY.
35. Article 3 of the Agreement provides:
“1. In enforcing the sentence pronounced by the International Tribunal, the competent national authorities of the United Kingdom shall be bound by the duration of the sentence.
2. The conditions of imprisonment shall be governed by the law of the United Kingdom, subject to the supervision of the International Tribunal ...
3. The conditions of imprisonment shall be equivalent to those applicable to prisoners serving sentences under the law of the United Kingdom and shall be in accordance with relevant human rights standards.”
36. Pursuant to Article 7(1)(d) the United Kingdom is required to notify the registrar of the ICTY six months prior to the point at which early release would be considered for an equivalent domestic sentence in the jurisdiction of the United Kingdom.
37. Article 8 of the agreement, which deals with early release, pardon or commutation of sentence, provides:
“1. If, pursuant to the applicable national law of the United Kingdom, the sentenced person is eligible for early release, pardon or commutation of the sentence, the United Kingdom shall notify this to the Registrar, in advance of such eligibility, and shall include in any such notification all the circumstances pertaining to the eligibility for early release, pardon or commutation of the sentence.
2. The President of the International Tribunal shall determine, in consultation with the Judges of the International Tribunal, whether any early release, pardon or commutation of the sentence is appropriate ... If the President determines that an early release, pardon or commutation of the sentence is not appropriate, the United Kingdom shall act accordingly.”
38. Rule 101 sets out the factors relevant to determining the appropriate length of sentence, namely the factors to which Article 24 of the State refers; any aggravating or mitigating circumstances, including substantial cooperation with the Prosecutor before or after conviction; the general practice regarding prison sentences in the courts of the former Yugoslavia; and the extent to which any penalty imposed by a court of any State for the same act has already been served. Credit must be given for time spent in pre-trial detention.
39. Part nine of the Rules makes provision for pardon and commutation of sentences. Rule 123 requires the State of imprisonment to notify the ICTY, in accordance with Article 28 of the ICTY Statute, if a convicted person is eligible for pardon or commutation of sentence. Pursuant to Rule 124, the President shall determine whether pardon or commutation is appropriate.
40. Rule 125 provides:
“In determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor.”
41. The President of the ICTY, after consultation with other judges, the prosecutor and the registrar, issued the Practice Direction on early release in order to establish an internal procedure for the determination of applications for pardon, commutation of sentence, and early release of persons convicted by the tribunal.
42. The Practice Direction provides that the State of imprisonment is required, where practicable, to notify the ICTY at least forty-five days prior to the date on which a convicted person becomes eligible for early release. The Practice Direction also sets out the applicable procedure and includes guidance on requests for reports, participation of the convicted person and consultation with other judges.
43. Paragraph 8 of the Practice Direction explains that the President shall determine whether to grant early release having regard to the criteria specified in Rule 125 of the Rules and any other relevant information, and after consultation with other judges.
44. The appendix to the Council of Europe’s Recommendation on conditional release contains principles intended to guide States in their legislation, policies and practice on conditional release.
45. Principle 18 provides:
“The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes.”
46. Principle 20 provides:
“The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law abiding citizens. It should be incumbent on the authorities to show that a prisoner has not reached that level.”
47. Paragraph 18 of the Explanatory Memorandum accompanying the Recommendation notes:
“In a discretionary release system the most important decision to be made is which criteria will be used to determine whether a prisoner can or cannot be granted release. The primary aim of these criteria should be to identify those prisoners who can be released without posing an unbearable risk to safety in the community. Whether and which of these criteria have been fulfilled will also be a relevant consideration in deciding on the conditions or supervision measures to be imposed. The personality and socio-economic circumstances of the prisoner should always be taken into account.
The criteria should be clear and explicit so as to avoid erratic decisions or disparities in decision-making. This requirement is also in the interest of the prisoners and the staff involved in the preparation of release. The lack of clear and explicit criteria might lead to reduced confidence in the system and less motivation on the part of prisoners to participate actively in the preparation for conditional release.
A similar lack of confidence or motivation would be produced if the criteria were felt to be unrealistic, in other words, impossible to fulfil given the prisoner’s personal and social circumstances (such as age, family situation, health, professional qualifications etc) and the unavailability of resettlement programmes
Care should also be taken to avoid criteria that are too closely related to the type of the offence committed, or the dangerousness of the offender at the start of his/her prison sentence. It has to be recalled that such criteria have already been used to decide on the length of the sentence and the classification and sentence plan of the prisoner. The decision to grant conditional release should be based on realistic criteria related to the present situation and prospects of the prisoner.”


ITEMID: 001-58994
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF SOTIRIS AND NIKOS KOUTRAS ATTEE v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings
JUDGES: András Baka
TEXT: 7. On 11 February 1992 the applicant company applied to the Ministry of the National Economy under the provisions of Law no. 1892/1990 for a subsidy to build a hotel. That statute provided that companies satisfying certain conditions were entitled to a State subsidy for their investments.
8. The applicant company's request was rejected in a decision of 29 June 1992.
9. On 30 September 1992 the applicant company lodged an application with the Supreme Administrative Court for judicial review of the above-mentioned decision. Its lawyer delivered the application by hand to two police officers at Athens police station no. 4. The police officers affixed the police station's seal to the first page of the application and wrote the registration number and date on it. They did not, however, note the registration number on the record of deposit stamped onto the application itself.
10. On 6 February 1996 the Supreme Administrative Court ruled the application inadmissible on the following grounds:
“Article 19 §§ 1 and 2 of Presidential Decree no. 18/1989 provide that in order for an application for judicial review to be validly lodged with a public authority, it must be registered in the said authority's register and stamped with a record of deposit. This record must mention the registration number and the date and must be signed by the official receiving the application and by the applicant ... There can be no substitute formalities for compliance with that procedure, to which the applicant himself is a party, because it is a legal requirement for the valid registration of an application. Accordingly, if an application lodged with a public authority other than the Supreme Administrative Court is incorrectly stamped, this will affect the validity of the application.
In the present case the notice of application was lodged with Athens police station no. 4 and stamped with a record of deposit which was signed by the lawyer depositing the application, the two police officers receiving it and the senior officer at the station. However, this stamp did not bear a registration number. Admittedly, the registration number and date of deposit are indicated both on the seal next to the stamp and the first page of the application, but they do not appear on the stamp recording the deposit of the application itself and are signed neither by the lawyer who lodged the application nor by the police officers who took delivery of it. Accordingly, they do not satisfy the statutory conditions of admissibility of applications.”
11. That judgment was finalised (καθαρογραφή) on 16 May 1997 and the applicant company obtained a copy on 13 June 1997.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89064
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GODLEVSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1958 and lives in Oryol. At the material time the applicant was a journalist and editor-in-chief of the Orlovskiy Meridian newspaper, published by the Mir Novostey limited company.
7. On 21 March 2001 the applicant’s newspaper published his article “Tied in the system, or, Why are the generals waiting for the appointed hour?” (“В путах системы, или Почему генералы ждут часа «Ч»?”). The article was signed by his pen name Sergey Smirnov. The article told the readers about a criminal investigation opened by the regional prosecutor’s office into the activities of six (out of fourteen) officers from the regional anti-narcotics unit (ОБНОН УВД Орловской области). It was alleged that on several occasions the officers of the unit had unlawfully discontinued the criminal prosecution of drug-dealers who had agreed to “co-operate” with them and to share the profits from drug sales.
8. The article featured an interview with a former drug dealer, Ms V., who sold drugs under the unidentified officers’ “cover” for several years, until they “betrayed” her and she was arrested:
“They apprehended me at a market when I was purchasing opium, [they] wrote down my contact details... Like many others, I had been paying them, and, ‘as a gesture of thanks’, they at first overlooked my buying and consuming drugs, [and] later my selling them... They said: here is a new drug, try it and describe the effect to us. It was heroin... I assure you that the police know every single [sale-purchase] point and every single dealer – in this sense they work very well [because] it brings them profit... I had to remember all of their birthdays – theirs, their wives’ and children’s. All of them expected presents. Also, they needed money all the time: once [they asked for money] to buy petrol for the police car... They set me up... Now I am in prison. There are only my kind here, because we cannot pay them off – our income from drug-dealing is barely sufficient for a ‘pay-off’ and our own dose. As to the dealers... I bear witness that all of them left the pre-trial detention facility...”
9. The article described the alleged wrongdoings of the anti-narcotics unit in general terms, without identifying any officers by name or rank:
“The persons who are charged today do not admit their guilt. They claim that they have been slandered by drug addicts and are being avenged by the regional prosecutor’s office for the drug-related arrest of the prosecutor’s son in the past... Nevertheless, it is for the court to determine the matter – this is why I do not name any of the police officers. But one fact is indisputable: the extent to which drugs have spread in the Oryol Region is such that there is probably no way out. Taking into account that the duties of various state authorities are clearly demarcated, no matter what subterfuges you use, it is the police in particular who are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year by overdose and for the easy access to drugs of each school student in Oryol. And also for the fact that drug-dealers are still at liberty.”
10. The article further stated that the officers charged had used drugs to pay for “information and services”:
“The investigation found that, as a matter of course, some officers in the unit used drugs to pay for services and information. Question: where does a police officer get drugs from? Answer: part [of the drugs] seized from drug addicts and drug dealers was retained, in contravention of all laws and regulations, for the needs of the police. And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal.”
11. The concluding paragraphs of the article explained its headline. A high-ranking general in the Russian security service once allegedly stated that the police knew all criminals and only waited for the appointed hour when the order would come to exterminate them. The article doubted the general’s illusion of omnipotence and expressed concern for the future of the Oryol Region.
12. On an unspecified date all fourteen officers of the Oryol Region anti-narcotics unit, including the six charged with drug-related offences, filed a civil defamation action. Without mentioning specific parts of the article, the officers asserted that the publication had damaged their honour, dignity and professional reputation and claimed compensation for non-pecuniary damage. The statements designated the editor’s office of the Orlovskiy Meridian newspaper and “the author of the article Sergey Smirnov” as co-defendants. One of the plaintiffs subsequently died.
13. On 18 June 2001 the Sovietskiy District Court of Oryol invited the plaintiffs to specify which extracts of the publication they believed to be damaging to their honour and reputation. Between mid-2001 and early 2002 the plaintiffs filed identically worded addenda to their original statements of claim, according to which the following expressions had damaged their reputation:
“...I had been paying them...They said: here is a new drug, try it and describe the effect to us. It was heroin... I had to remember all of their birthdays – theirs, their wives’ and children’s. All of them expected presents...
...it is the police in particular who are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year by overdose and for the easy access to drugs of each school student in Oryol. And also for the fact that drug-dealers are still at liberty...
...part [of the drugs] seized from drug addicts and drug dealers was retained, in contravention of all laws and regulations, for the needs of the police. And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal...”
14. On an unspecified date the staff lawyer of the applicant’s newspaper commissioned a linguistic examination of the publication, which was carried out by a professor from Oryol State University who had a degree in language studies. His report pointed out that the publication had not referred to any police officer by name or otherwise and the blame had been placed on the state authorities as a whole and the Oryol Region anti-narcotics unit in particular. The expert concluded that none of the quoted extracts could be considered as damaging the honour or dignity of any specific person as an individual.
15. On 4 October 2002 the Sovietskiy District Court of Oryol delivered the judgment in the defamation action against the editor’s office of the Orlovskiy Meridian newspaper and the Mir Novostey company. The assessment of the damaging nature of the extracts was solely based on the statements by the plaintiffs and their relatives who claimed that the publication had been a cause of psychological anxiety. The court did not address the issue of whether the publication had targeted the plaintiffs. Nor did it distinguish between the author’s speech and the statements quoted as having been made by Ms V. in an interview. In the court’s opinion, the defendant failed to prove that the published information had been true on the date of its dissemination. Its findings were worded as follows:
“The information designated by the plaintiffs was published in the Orlovskiy Meridian newspaper and contains statements to the effect that the Oryol Regional anti-narcotics unit is to be blamed for the prosperity of drug-dealers in Oryol, for the deaths of 39 individuals by overdose and for the fact that most dealers are still at liberty; that the officers of the anti-narcotics unit made use of drugs seized from drug addicts and drug-dealers and unlawfully retained them to meet the needs of the police in paying for information; that the officers of the anti-narcotics unit were paid off, that drug addicts knew their birthdays and those of their family members because they had to give them presents on these days, that they suggested to her that she test a new drug...
The court considers that this information is damaging to the honour, dignity and professional reputation of [the 13 plaintiffs] as officers of the anti-narcotics unit, whose main duty is the fight against crime and, more specifically, against the unlawful trade in drugs...
The plaintiffs have not been found guilty of any crime or offence in accordance with the legal procedure, and thus the information which is damaging to their honour, dignity and professional reputation is untrue and is subject to a rectification in the same media...”
16. The District Court ordered the newspaper to publish a rectification, the editor’s office to apologise to the plaintiffs and the Mir Novostey company to pay 5,000 Russian roubles (approximately EUR 200) to each of the plaintiffs.
17. In the statement of appeal, counsel for the Mir Novostey company submitted that the District Court had not given proper assessment to the fact that the publication had concerned a structural police unit rather than named individuals, that a criminal case was pending against several police officers, that other officers had been disciplined after the publication and that the director of the regional police had negatively appraised the performance of the anti-narcotics unit.
18. On 27 November 2002 the Oryol Regional Court examined the appeal and heard oral submissions by the applicant as the editor-in-chief, and counsel for the Mir Novostey company. It found as follows:
“The [article in question] was published in March 2001, that is, before the criminal case, including the indictment bill, was submitted for trial. As of today, there has still been no conviction in the criminal case against [six plaintiffs]. The first-instance court has therefore correctly concluded that there was no proof of the truthfulness of the information contained in the publication and contested by the plaintiffs...
The court considers that the negative appraisal of the performance of the anti-narcotics unit by the Oryol Regional police department, which followed publication of the article, cannot be a proof of the truthfulness of the information contested by the plaintiffs because in the present case the only such proof would be a court judgment.
With regard to the foregoing, the court considers that... the appellant’s argument that the contested publication did not contain information on specific individuals, but only referred to a structural unit of the police, is not a valid ground to quash the judgment. Under Article 306 § 2 of the Russian Code of Civil Procedure, a judgment that is correct in substance need not be quashed merely because of formal defects.”
19. The Regional Court upheld the judgment of 4 October 2002 in substance. It also ordered that the newspaper should print the operative part of the judgment as the rectification, but it struck out the requirement to apologise to the plaintiffs on the ground that such a requirement had no basis in domestic law.
20. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
21. Article 152 provides that an individual may apply to a court with a request for the rectification of statements (svedeniya) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.
22. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7).
23. If the defamation claim concerned information printed in a newspaper, the defendants were the author and the editor’s office of the newspaper. If the author’s name was not mentioned (for example, in an editorial), the editor’s office was the defendant. If the editor’s office had no legal personality, the newspaper’s founder was to be brought into the proceedings as the defendant (section 6).
24. On 20 December 2002 a deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review in a defamation action which had been originally granted by the Penza courts. The deputy President noted, in particular:
“However, the courts did not take into account that one of the requirements of Article 152 of the Civil Code is that statements must refer to a particular person or a clearly identifiable group of persons...”
On 7 February 2003 the Presidium of the Penza Regional Court granted the application and quashed the judgments in the defamation claim. The case eventually ended in a friendly settlement.
25. Section 2 defines the “editor’s office” as an organisation, institution, individual or group of individuals that produces and publishes a newspaper. The “editor-in-chief” means the person who is in charge of the editor’s office and who takes final decisions regarding production and publication of the newspaper.
26. The editor’s office is professionally independent. It may be registered as a legal entity, but this is not an obligation. The editor-in-chief acts for the editor’s office before the newspaper founder, publisher, distributor, individuals, groups of individuals, companies, institutions, organisations, State authorities and the courts. The editor-in-chief bears responsibility for compliance with the requirements of the Mass-Media Act and other laws of the Russian Federation (section 19).
27. A journalist has a duty to verify the truthfulness of the information he or she communicates (section 49 § 1 (2)), as well as a duty to inform the editor-in-chief of all potential actions or claims arising out of his or her publications (section 49 § 1 (7)).
28. Founders, editor’s officers, publishers, distributors, journalists and authors bear responsibility for violations of the Mass-Media Act (section 56).
29. Recommendation Rec(2003)13 of the Committee of Ministers to Member States on the provision of information through the media in relation to criminal proceedings reads, in the relevant parts, as follows:
“...Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so;
...
Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system;
Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention...
Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states:
1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions,
2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation...
Principle 1 - Information of the public via the media
The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.
Principle 2 - Presumption of innocence
Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.
...
Principle 8 - Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
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