ITEMID: 001-22645
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ALUJER FERNANDEZ and CABALLERO GARCIA v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Spanish nationals who were born in 1948 and 1949 and live at Albalat dels Sorells (Valencia). They were represented before the Court by Mr Miguel Ramón Mancebo Monge, a lawyer practising in Valencia.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are Protestants and members of the Baptist Evangelical Church in Valencia, which is on the official register of religious institutions kept by the Ministry of Justice, and a member of the Federation of Evangelical Churches of Spain (FEREDE).
In their income-tax returns for 1988, the applicants were given a choice between allocating part of their income tax to financial support for the Catholic Church or for other charitable purposes.
Since it was not legally possible for them to allot part of their income tax to financial support for their own Church, the applicants used a remedy afforded by Law no. 62/1978 on Judicial Protection of the Fundamental Rights of the Person and lodged an administrative appeal with the Valencia High of Justice challenging the Law on the State Budget 1988 on the ground that it contravened Articles 14 (principle of equality) and 16 (right to freedom of conscience and religion) of the Constitution. In their appeal, they sought a declaration that the system implemented through the income-tax returns for 1988 was invalid, as it denied them a right enjoyed by Spaniards of the Catholic faith.
The Valencia High Court of Justice dismissed that appeal in a judgment of 22 April 1990, notably on the following grounds:
“Three: The issue to be resolved in the present appeal ultimately amounts to deciding whether or not the difference in tax treatment complained of is based on unjustified discrimination prohibited by the Constitution that invalidates the impugned acts...
Four: As the Constitutional Court has said many times, a finding of discrimination contrary to the principle of equality will be made only if in normative cases that are identical in substance a difference in legal treatment has no objective or reasonable justification, since it lacks a rational basis...
Five: In the present case, the Court finds no violation of the principle of equality as, in accordance with Article 133.3 of the Constitution, any fiscal privilege concerning State taxes must be provided for by statute. In the instant case, section 7(2) of Institutional Law no. 7/1980 of 5 July 1980 on Religious Freedom, which implements the said Article 16 of the Spanish Constitution, makes legal recognition of tax privileges laid down by general legislation in favour of non-profit making associations and other charitable bodies conditional on entry into agreements or conventions that must not only abide by the principle of equality but also, by virtue of sub-paragraph 1 of that Article, take religious beliefs existing in Spanish society into account. That provision complies with the content of Article 16.3 of the Constitution.
However, in practice the situation of the Catholic Church, which has entered into a subsisting convention with the Spanish State and has the largest number of practising members and responsibility for a vast historical and cultural heritage, is different to that of the Baptist Evangelical Church, which has no convention or cooperation agreement with the Spanish State and does not satisfy the other condition.
Naturally, under no circumstances should that be taken to mean that this Division entertains any doubts as to the constitutionality of any agreement implementing the right sought by the appellants and, while it is not for this Division to decide issues that are within the sole discretion of the legislature, it is obvious that it would be more consistent with the principle of religious freedom and equality for such a right to be made available...
Six: As to the alleged violation of the right not to reveal one’s religious convictions, it is obvious that there has been no such violation in the instant case as no declaration was made in the impugned document. Furthermore, the fact that tax is allocated to the Catholic faith, which in any event will in principle only be the case with Catholics, does not infringe the right concerned either since, as with all fundamental rights, it is subject to limitations. In the instant case, the declaration predetermining expenditure is both justified and reasonable... Furthermore, opting to predetermine expenditure does not necessarily mean that the taxpayer adheres to that religion, as the possibility that he or she has so opted for other reasons such, for instance, ... as the exercise of an adequate social activity, cannot be excluded.”
The applicants appealed against that judgment to the Supreme Court, which declared their appeal inadmissible in a decision of 26 March 1992. The applicants lodged an amparo appeal with the Constitutional Court, which on 20 June 1994 ordered the Supreme Court to declare the appeal admissible and to rule on the merits. On 20 October 1997 the Supreme Court examined the appeal and dismissed it on the merits, upholding the judgment appealed against.
Relying on Articles 14, 16 and 24 of the Constitution, the applicants lodged an amparo appeal with the Constitutional Court, which in a decision of 13 May 1992, dismissed it for the following reasons:
“There has been no violation in the instant case of the constitutional rights to equality before the law without discrimination based on religion (Article 14 of the Spanish Constitution), not to be required to reveal one’s religion or beliefs (Article 16.2 of the Constitution) and to the effective protection of the courts (Article 24.1 of the Constitution)...
A decision by a taxpayer not to complete the section of the income-tax return for the fixed statutory percentage of tax that may be allocated to religious ends or other charitable interests in the absence of an alternative allowing an allocation in favour of the taxpayer’s own Church does not entail even an indirect violation of the constitutional guarantee of the right not to reveal one’s religion or beliefs (Article 16.2 of the Constitution).
Furthermore, the court cannot find any discrimination based on religion violating the right to equality of treatment before the law (Article 14 of the Constitution), since a rational and objective basis exists for setting up a specific scheme of financial support for the Catholic Church through additional clause 5(4) of Law no. 33/97... and the principle that the State is non-denominational is supplemented by the mandate which Article 16. 3 of the Constitution gives the public authorities to establish “appropriate cooperation with the Catholic Church and the other denominations”, having regard to the religious beliefs of Spanish society. It is within that institutional framework that the cooperation agreements have been entered into. These include... an agreement on financial questions entered into with the Holy See by which the State undertakes to assist with the financial support of the Catholic Church. Thus, in the absence of any similar undertaking in favour of other denominations, the proposed basis for comparison is not adequate and the difference in treatment made by the legislature is neither arbitrary nor unjustified. Furthermore, Article 16.3 of the Constitution does not establish any directly enforceable fundamental right to compel the public authorities to set up a system enabling the alleged right to allocate a percentage of one’s income tax to the support of one’s own Church and the constitutional remedy of amparo is not the appropriate remedy for calling into question the constitutionality of the (alleged deficiencies) in the law.
Lastly, the judgments appealed against provided a reasoned and legally founded answer to the issues raised by the applicants...”
“Spanish nationals shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.”
“1. Freedom of ideology, religion and worship is guaranteed for private individuals and communities without any limitation on its expression other than as shall be necessary to maintain public order protected by law.
2. No one may be required to reveal their ideology, religion or beliefs.
3. No denomination shall be treated as the religion of the State. Public authorities shall take into account the religious beliefs of the Spanish society and shall accordingly seek to cooperate with the Catholic Church and the other denominations.”
Under Institutional Law no. 7/1980 on Freedom of Religion, the State may enter into cooperation agreements – providing, inter alia, tax exemptions – with Churches. The arrangements will depend on the number of members the Church has, the extent to which it is established in Spanish society and the beliefs of the majority of Spaniards.
“Pursuant to the provision set out in Article II of the Agreement on Financial Matters entered into by the Spanish State and the Holy See on 3 January 1979..., from 1988 onwards a percentage of the income tax paid by private individuals will be allocated to religious ends or other ends in the interest of society.
2. The said percentage shall be determined in each annual budget and shall apply to the tax levied on the basis of the annual returns made by taxpayers.
...
4. Taxpayers may indicate in their tax return their wish for a percentage of their income tax to be allocated to:
(a) providing financial support for the Catholic Church; or
(b) other ends set out in subparagraph 1 of this provision.
Anyone who does not expressly state their preference shall be deemed to have opted for the ends referred to in subparagraph (b).”
The Law of 10 November 1992, which was published in the State Official Gazette of 12 November 1992, governs the following matters:
(i) the status of ministers of the evangelical church;
(ii) legal protection for places of worship;
(iii) recognition under the civil law of marriages celebrated according to Evangelical rite;
(iv) religious assistance in public centres or institutions;
(v) Evangelical religious teaching in schools;
(vi) tax privileges applicable to certain assets and activities of Churches that are members of the FEREDE.
Further, supplemental provision no. 2 of the Law provides that the agreement may be varied in whole or in part on the initiative of either party. Supplemental provision no. 3 establishes a joint committee comprising representatives of the State and of the FEREDE.
According to information provided in February 2001 by the Director of Religious Affairs at the Ministry of Justice, a meeting of the joint committee (State-FEREDE) was held on 15 April 1999. During the course of the committee’s examination of the problem of financial cooperation with the State regarding certain activities of the Evangelical Churches, the State representative asked FEREDE for its view on the system of allocation of income tax. In reply to that question, the executive secretary of the FEREDE replied: “after various consultations, it was discovered that the opinion of the Churches within the Federation is divided, such that a final view has yet to be reached; it will be announced once it has been determined by negotiation”. Consequently, the 1992 agreement has not been amended and, to date, the FEREDE has not requested any amendment to it.


ITEMID: 001-23957
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: RAIPOLA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Tapani Raipola, is a Finnish national, who was born in 1952 and lives in Oulu. He is represented before the Court by Mr Jorma Herttuainen, a lawyer practising in Oulu. The respondent Government are represented by their Agent Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
In 1989, the applicant set up a limited liability company, Pohjolan Tavarapörssi Oy, with another person. He purchased 50 per cent of the shares. He also became the chairman of its Board of Directors. The company's business activities ended in September 1992.
On 23 April 1993, the applicant applied for an income-related unemployment benefit. The Unemployment Fund (työttömyyskassa, arbetslöshetskassan) rejected his application on 18 August 1993, as he was not assessed as being unemployed. The decision was based on the Labour Commission's (työvoimatoimikunta, arbetskraftskommissionen) written statement, according to which, taking into account the applicant's position and partnership in the company, he was regarded as being employed by his own company. The applicant's appeals were subsequently rejected.
In 1998, the applicant instituted proceedings before the District Court of Oulu (käräjäoikeus, tingsrätten) against the Employment and Economic Development Centre (työvoima- ja elinkeinokeskus, arbetskrafts- och näringslivscentralen), i.e. formally against the State of Finland, claiming compensation for his financial loss. He argued that before setting up the company, he had called his local Labour Office (työvoimatoimisto, arbetskraftsbyrån), enquiring about the possibilities of receiving unemployment benefits as a shareholder of a company. An official at the Labour Office, X, had allegedly told him that he could receive unemployment benefits, provided he owned less than 51 per cent of the company's shares.
Before the District Court, the applicant argued that as his application for an unemployment benefit had been rejected, it meant that X had provided him with incorrect information.
The Employment and Economic Development Centre contested the action, arguing that X had not said that the applicant could own less than 51 per cent of a company's shares, which information was incorrect. Moreover, the applicant had failed to make reference to his position in the company during his discussion with X.
The applicant and two witnesses, who had overheard the conversation between the applicant and X as the telephone had been switched to the “hands-free” system, gave testimony in the District Court. The witnesses verified that X had said that the applicant would still be entitled to unemployment benefits, provided he owned less than 51 per cent of the shares.
On 11 August 1998, the District Court rejected the action, finding that the Unemployment Fund's decision was based both on the applicant's ownership in the company and on his membership of its Board of Directors. The District Court also found that the applicant and X had not discussed whether the membership of the Board of Directors had any effect on the grant of the benefit. Thus, there was no causal link between the incorrect information given by X and the rejection of the application for an unemployment benefit.
The applicant appealed to the Rovaniemi Court of Appeal (hovioikeus, hovrätten), requesting an oral hearing and that he and his two witnesses be reheard. He also invoked as new evidence the Unemployment Fund's decision, arguing that the District Court had drawn the wrong conclusions from the wording of the decision. He claimed that his application had not been rejected due to the fact that he was a member of the Board of Directors, but solely on grounds of ownership. Due to this misinterpretation by the District Court, it was essential that the Court of Appeal hold an oral hearing.
On 3 December 1998, the Court of Appeal upheld the District Court's judgment. As to the request for an oral hearing, it noted that the applicant admitted not having informed X about his membership of the Board of Directors. Thus, the Court of Appeal found that it was not necessary to evaluate the testimonies concerning the telephone conversation between the applicant and X. Insofar as the applicant argued that the District Court had drawn the wrong conclusions from the Unemployment Fund's decision, it noted that the issue concerned interpretation of and drawing conclusions from written evidence and that the applicant had not proposed any oral evidence on this point. The Court of Appeal rejected the request for an oral hearing as being manifestly unnecessary, as the examination of the case did not depend on the credibility of oral evidence.
The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), requesting an oral hearing with a view to hearing all three witnesses that had been heard before the District Court, including the opposing party's witness, and a new witness. He also wanted to be heard in person. He argued that the Court of Appeal had wrongly evaluated the evidence and refused his request to rehear his witnesses. On 27 September 1999 the Supreme Court refused him leave to appeal.
Under chapter 26 (165/1998), section 14 (1) of the Code of Judicial Procedure, the applicant was in principle entitled to a hearing once he had requested one, but this request could be refused, if a hearing would have been manifestly unnecessary.
According to subsection 4, if the Court of Appeal rejects the appellant's request for an oral hearing, he or she shall, where necessary, be reserved an opportunity to supplement the appeal.
According to chapter 26, section 15 (1), the Court of Appeal shall hold an oral hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court, or the findings of the District Court in an inspection, or on new testimony to be admitted in the Court of Appeal.


ITEMID: 001-110314
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF STUBING v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1976 and lives in Leipzig.
6. At the age of three, the applicant was placed in a children’s home and later in the care of foster parents. At the age of seven, he was adopted by his foster parents and was given their family name. After that, he did not have any contact with his family of origin.
7. In 1984, the applicant’s biological sister, S. K., was born. The applicant was unaware of his sister’s existence until he re-established contact with his family of origin in 2000. Following their mother’s death in December 2000, the relationship between the siblings intensified. As from January 2001, the applicant and his sister had consensual sexual intercourse. They lived together for several years.
8. In 2001, 2003, 2004 and 2005 four children were born to the couple. Following the birth of the fourth child, the applicant underwent a vasectomy. The three older children were placed in the care of foster families. The youngest daughter lives with her mother.
9. On 23 April 2002 the Borna District Court (Amtsgericht) convicted the applicant of sixteen counts of incest (Section 173 § 2 (2) of the Criminal Code, see “Relevant domestic law”, below), gave him a suspended sentence of one year’s imprisonment and put him on probation.
10. On 6 April 2004 the Borna District Court convicted the applicant of another count of the same offence and sentenced him to ten months’ imprisonment.
11. On 10 November 2005 the Leipzig District Court convicted the applicant of two counts of incest and sentenced him to one year and two months’ imprisonment. Including the sentence of 6 April 2004 and one further previous criminal conviction, the District Court imposed a summary sentence of one year and four months’ imprisonment. The court considered the fact that the applicant had suffered physical abuse by his father during the decisive first three years of his childhood to be a mitigating factor. Furthermore, he had made a confession and had been affected by the media coverage of his case. Lastly, he had previously been attacked during detention. On the other hand, the court considered as aggravating factors the fact that the applicant had reoffended in spite of his previous convictions and that he had had unprotected intercourse with his sister even though he had to have been aware of the risk of further pregnancies.
12. With regard to the applicant’s sister, S. K., who had been charged with the same offence, the Leipzig District Court, relying on an expert opinion, found as follows:
“The accused, K., has a very timid, withdrawn and dependant personality structure. This personality structure, taken together with [an] unsatisfying family situation, led to her being considerably dependant on the applicant. In particular, after the death of their mother, she experienced this dependency to an extent that she felt that she could not live without him.”
The District Court concluded that this serious personality disorder, seen in conjunction with established mild learning disabilities, had led to her being only partially liable for her actions. Accordingly, the court did not impose a sentence on her.
13. On 30 January 2007 the Dresden Court of Appeal rejected the applicant’s appeal on points of law. The court considered that there were certain doubts as to the constitutionality of the relevant provision. However, it determined that these were not sufficient to call the validity of the law into question.
14. On 22 February 2007 the applicant lodged a constitutional complaint, arguing, in particular, that Section 173 § 2 (2) of the Criminal Code had violated his right to sexual self-determination, had discriminated against him and was disproportionate. In addition, it interfered with the relationship between parents and their children born out of incestuous relationships.
15. On 26 February 2008 the Federal Constitutional Court, by seven votes to one, rejected the complaint as being unfounded. The decision was based on the following considerations. With the criminal provision of Section 173 § 2 (2) of the Criminal Code, the legislature had restricted the right to sexual self-determination of biological siblings by making sexual intercourse between them a punishable offence. This limited the conduct of one’s private life by penalising certain forms of expressions of sexuality between persons close to one another. However, the provision did not infringe the core area of private life. Sexual intercourse between siblings could have effects on the family and society and carry consequences for children resulting from the relationship. As the criminal law prohibited only a narrowly defined scope of behaviour and only selectively curtailed opportunities for intimate contact, the parties concerned had not been placed in a position which would be incompatible with respect for human dignity.
16. The legislator had pursued objectives that were not constitutionally objectionable and that, in any event, in their totality legitimised the limitation on the right to sexual self-determination. The primary ground for punishment was the protection of marriage and the family. Empirical studies had showed that the legislature was not overstepping its margin of appreciation when assuming that incestuous relationships between siblings could seriously damage the family and society as a whole. Incestuous relationships resulted in overlapping familial relationships and social roles and, thus, could damage the structural system of family life. The overlapping of roles did not correspond with the image of a family as defined by the Basic Law. It seemed clear, and did not appear to be farfetched to assume, that the children of an incestuous relationship might have significant difficulties in finding their place within the family structure and in building a trusting relationship with their closest caregivers. The function of the family, which was of primary importance for the community, would be decisively damaged if the required family structures were shaken by incestuous relationships.
17. Insofar as the criminal provision was justified by reference to the protection of sexual self-determination, this objective was also relevant between siblings. The objection that this right was sufficiently protected by the specific provisions on offences against sexual self-determination overlooked the fact that Section 173 of the Criminal Code addressed specific situations arising from the interdependence and closeness of family relationships, as well as difficulties in the classification of, and defence against, transgressions of sexual self-determination in that context.
18. The legislature had additionally based its decision on eugenic grounds and had assumed that the risk of significant damage to children who were the product of an incestuous relationship could not be excluded. In both medical and anthropological literature, which was supported by empirical studies, reference had been made to the particular risk of the occurrence of genetic defects.
19. The impugned criminal provision was justified by the sum of the above-mentioned objectives against the background of a common conviction that incest should be subject to criminal liability. This conviction was also evident on the international level. As an instrument for protecting self-determination, public health, and especially the family, the criminal provision fulfilled a signalling, norm-reinforcing and, thus, a general preventive function, which illustrated the values set by the legislature and, therefore, contributed to their maintenance.
20. The impugned provision complied with the principle of proportionality. The criminalisation of sibling incest was suitable for promoting the desired objective. This was not put into question by the exemption of minors from criminal liability (Art. 173 § 3), as the prohibition of acts of sexual intercourse encompassed a central aspect of sexual relations between siblings which contravened the traditional picture of the family and which was further justified by its potential to produce descendants. Neither was this assessment put into question by the fact that acts similar to sexual intercourse and sexual intercourse between same-sex siblings were not subject to criminal liability, while sexual intercourse between natural siblings was punishable even in cases were conception was excluded. The same applied to the objection that the criminal provision was unsuitable for protecting the structure of the family because it first impacted on siblings when they typically left the family circle upon reaching the age of majority.
21. The provision was also necessary. It was true that in cases of sibling incest guardianship and youth welfare measures came into consideration. However, these measures did not achieve the same objectives, as they were aimed at preventing and redressing violations in specific cases, but did not have any general preventive effect or reinforce societal norms in the manner achieved through the law.
22. Lastly, the Federal Constitutional Court considered that the criminal sanction had not been disproportionate, as the provision had also allowed the courts to refrain from imposing punishment in cases in which an accused’s share of the guilt was slight.
23. Judge Hassemer attached a dissenting opinion which was based on the following considerations. Section 173 § 2 (2) of the Criminal Code was incompatible with the principle of proportionality. The provision did not pursue a legitimate aim. From the outset, considerations of eugenic aspects were not a valid objective for a criminal law provision. Likewise, neither the wording of the provision nor the statutory context indicated that the provision was aimed at protecting sexual self-determination. Lastly, the prohibition on sibling incest was not justified by the protection of marriage and the family, as it only prohibited the act of sexual intercourse, but did not prohibit any other sexual acts between siblings or sexual intercourse between siblings of the same sex or between relatives who were not bloodrelated. If the criminal provision were actually aimed at protecting the family from sexual acts, it would also extend to these acts that were likewise damaging to the family. The evidence seemed to indicate that the provision as set out did not protect any specific rights, but was solely aimed at moral conceptions. However, it was not a legitimate aim for a criminal provision to build or maintain common moral standards.
24. Furthermore, the provision was not suited to attain the objectives pursued. As regards the protection of the family from the damaging effects of incestuous sexual acts, it was not far-reaching enough, as it did not encompass similarly damaging behaviour and, moreover, acts committed by non-blood-related siblings. It was too far-reaching because it encompassed behaviour that could not (any longer) have damaging effects on the family because of children having reached the age of majority and being about to leave the family circle.
25. In addition, there were other measures available that could have similarly or even more effectively guaranteed the protection of the family, such as youth welfare measures and measures taken by the family courts. Finally, the impugned provision was excessive, at it did not provide for a limitation of criminal liability resulting from behaviour which did not endanger any of the possible objects of protection.
26. This decision was served on the applicant’s counsel on 13 March 2008. On 4 June 2008 the applicant started serving his prison sentence. He was released on probation on 3 June 2009.
27. Section 173 of the German Criminal Code reads as follows:
“(1) Whoever performs an act of sexual intercourse with a consanguine descendant shall be punished with imprisonment for no more than three years or a fine.
(2) Whoever performs an act of sexual intercourse with a consanguine relative in an ascending line shall be punished with imprisonment for no more than two years or a fine; this shall also apply if the relationship as a relative has ceased to exist. Consanguine siblings who perform an act of sexual intercourse with each other shall be similarly punished.
(3) Descendants and siblings shall not be punished pursuant to this provision if they were not yet eighteen years of age at the time of the act.”
Section 153 of the Code of Criminal Procedure reads as follows:
“(1) If a less serious criminal offence is the subject of the proceedings, the public prosecution office may dispense with prosecution with the consent of the ... court if the perpetrator’s guilt is considered to be minor and [if] there is no public interest in prosecution ...
(2) If charges have already been preferred, the court, with the consent of the public prosecution office and the accused, may terminate the proceedings at any stage thereof subject to the requirements of subsection (1) ...”
28. Out of thirty-one Council of Europe Member States, sixteen States (Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, Greece, Iceland, Ireland, Liechtenstein, Macedonia, Moldova, San Marino and Slovakia) the performance of consensual sexual acts between adult siblings is considered a criminal offence, while in fifteen of them (Armenia, Azerbaijan, Belgium, Estonia, Georgia, Latvia, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Portugal, Serbia, Slovenia and Ukraine) it is not punishable under criminal law. The fact that one of the siblings was adopted or raised in another household does not in general seem to have any impact on criminal liability as long as the siblings share at least one biological parent. In a few countries (notably Iceland, Moldova and Slovenia) the ban on incest extends also to adoptive siblings.
29. It would appear that there are no plans to abolish the ban in the countries concerned where the laws have generally been in force for decades. In several countries there is even a tendency to widen the existing notion of incest or to increase the penalties (e. g. Belgium, Croatia and the Czech Republic). Conversely, incest between adult siblings has been decriminalised in Portugal in 1983 and in Serbia in 2006.
30. According to an expert report prepared by the Max Planck Institute for Foreign and International Criminal Law in November 2007 in the course of the domestic proceedings, consensual sexual acts between siblings were criminalised in eight further countries (Denmark, Italy, Poland, Romania, Sweden, Switzerland, Hungary and the United Kingdom); and were not subject to criminal liability in five further countries (France, the Netherlands, the Russian Federation, Spain and Turkey). The international political discussion on this issue was characterised by a tendency to decriminalise the commitment of such acts. The Max Planck Institute further observed that, even in those countries in which consensual acts between siblings were not subject to criminal liability, siblings were not allowed to marry.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-70965
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SCHELLING v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine remaining complaints under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant is a farmer and lives in Langenegg.
9. On 16 August 1988 the applicant requested permissions under the Water Act (Wasserrechtsgesetz) and the Landscape Protection Act (Landschaftsschutzgesetz) which were necessary for putting a culvert through a drain on agricultural land owned by him.
10. Thereupon, on 14 September 1988 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) conducted an oral hearing on the applicant’s requests and inspected his land.
11. On 21 June 1990 the District Administrative Authority refused the requested permissions. The applicant appealed.
12. On 12 December 1990 the Vorarlberg Regional Governor (Landeshauptmann) granted the requested permission under the Water Act.
13. The Vorarlberg Regional Government (Landesregierung), on 2 April 1991, dismissed the applicant’s appeal insofar as it concerned the request for permission under the Landscape Protection Act.
14. On 28 May 1991 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Regional Government’s decision.
15. The Administrative Court quashed the Regional Government’s decision on the ground of procedural deficiencies on 6 May 1996 and remitted the case to the latter. It found that the authorities had failed to obtain detailed information concerning nature conservancy issues which were raised by the applicant’s project.
16. On 16 January 1997 the Regional Government invited the applicant to comment on the additional expert opinion on nature conservancy issues of the expert A. On 31 January 1997 the applicant submitted his comments, following which A. amended the expert opinion on 5 May 1997.
17. Subsequently, on 26 May 1997, the applicant lodged an application with the Administrative Court against the administrative authorities’ failure to decide (Säumnisbeschwerde).
18. On 10 July 1997 the Administrative Court ordered the Regional Government to issue a decision within three months. Subsequently, the Regional Government appointed an expert on agriculture and forestry issues, who, after inspecting the applicant’s land on 19 August 1997, delivered his opinion on 22 August 1997.
19. On 4 November 1998 the Administrative Court requested the Regional Government to order expert A. to submit an additional expert opinion on nature conservancy issues, which A. delivered on 12 January 1999.
20. Subsequently, on 25 January 1999, the Regional Government invited the applicant to submit comments on the expert opinions on nature conservancy issues and on agriculture and forestry issues within two weeks.
21. On 24 February 1999 the applicant submitted comments on these opinions and requested an oral hearing. He also requested that the experts be summoned to the hearing and that the land be inspected by the court. He stressed that the project would improve the productivity of the agricultural land and that therefore public interest existed in the realisation of his project as required under the applicable law. He also challenged the expert A. for bias as he had already delivered an opinion upon a request by the Regional Government and that his independence was doubtful as he was a civil servant bound by instructions.
22. On 6 July 1999 the Administrative Court dismissed the applicant’s appeal against the District Authority’s decision of 21 June 1990 concerning the request for permission under the Landscape Protection Act. It found that the competence to decide on the merits had passed over to it as the Regional Government had failed to decide within the three-month time-limit set.
23. Further it found, in view of the expert opinions, that the applicant’s project interfered with the objects of the Landscape Protection Act as it would spoil the character of the landscape and that there existed no public interest which would justify the measure. Moreover, the applicant had not disproved the expert’s conclusion.
24. As regards the alleged bias of A., it found that the mere fact that the expert had already delivered an opinion at an earlier stage of the proceedings and that he was a civil servant was not in itself sufficient to raise doubts as to his independence and impartiality and that the applicant had failed to put forward any specific argument to cast doubt upon A.’s independence or impartiality.
25. Finally, the court held that it could abstain from an oral hearing and an inspection of the applicant’s land since the proceedings had been carried out correctly and the facts, insofar as relevant in view of the applicable law, were undisputed. This decision was served on the applicant’s counsel on 12 August 1999.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95933
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BLADH v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 1. The applicant, Mr Peter Bladh, is a Swedish national who was born in 1956 and lives in Eskilstuna. He was represented before the Court by Mr J. Södergren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Since the 1980s the applicant has been a member of the Graphic Workers Unemployment Fund (Grafikernas arbetslöshetskassa).
4. In the summer of the year 2000, for some unknown reason, the applicant either did not qualify for unemployment benefit or ceased to qualify for it. Accordingly, in order to discuss different employment programmes, the applicant had a meeting with his unemployment officer at the Public Employment Agency (Arbetsförmedlingen). The unemployment officer informed the applicant that by virtue of a “re-qualification” option set out in sections 12 and 19 of the Unemployment Insurance Act (Lagen om arbetslöshetsförsäkring, 1997:238; hereinafter “the 1997 Act”), the applicant could re-qualify for another three hundred days of unemployment benefit if he worked as a trainee for the municipality for seventy hours per month for “six calendar months”.
5. Accordingly, the applicant signed a contract and on 7 August 2000 began work as a trainee for the municipality at a plant for recycling electronic devices. The contract stipulated that the training programme was to end on 6 February 2001. During this period it appears that the applicant was paid by the Graphic Workers Unemployment Fund.
6. On 21 December 2000 Parliament passed a law (no. 2000:1460) which amended section 19 of the 1997 Act, thereby abolishing the re-qualification option through trainee work. The law entered into force on 5 February 2001, that is, the day before the applicant’s training programme was scheduled to end, and had the effect that in future only conventional employment could re-qualify for a further unemployment benefit period.
7. The applicant maintained that during the winter of 2000, when he became aware of the amendment to the 1997 Act, he tried several times in vain to contact his officer at the Public Employment Agency and the Graphic Workers Unemployment Fund, because if the amendment were applied strictly and formally, he would be disqualified from a further period of unemployment benefit. Thus he wanted the finishing date of his trainee work contract, namely 6 February 2001, to be brought forward, since in his view, in accordance with the provisions of the original section 19 of the 1997 Act, he would have fulfilled the requirement of working seventy hours per month for “six calendar months” by the end of January 2001.
8. After the applicant had concluded the training programme, he requested a further period of unemployment benefit. His request was refused by the Graphic Workers Unemployment Fund on 14 March 2001, and again on 2 July 2001, because he did not fulfil the criteria set out in section 12 of the 1997 Act.
9. The applicant appealed to the County Administrative Court (länsrätten) in Stockholm. On 21 August 2002 his request for an oral hearing in order to hear evidence from the officials at the Public Employment Agency and the Graphic Workers Unemployment Fund was refused.
10. By a judgment of 18 December 2002 the County Administrative Court found against the applicant. It reiterated that, under the transitional provisions of the amendment to the 1997 Act, only a training programme completed by 5 February 2001 could qualify for a further unemployment benefit period. The applicant had completed his trainee work on 6 February 2001, thus his situation was not covered by the transitional provisions.
11. On 11 May 2004, following a further appeal, the Administrative Court of Appeal (kammarrätten) in Stockholm granted the applicant leave to appeal against the first-instance judgment. The appellate court also requested an opinion from the Inspection for Unemployment Insurance (Inspektionen för arbetslöshetsförsäkring)
12. The applicant requested an oral hearing before the Administrative Court of Appeal. He stated that he wanted to hear the head of the Graphic Workers Unemployment Fund as regards the date on which the Fund had become aware of the amendment to the 1997 Act and its implications. He also wanted to ask him certain questions of a complex nature, for instance whether it would be considered a breach of official duty if an official of the Fund had advance knowledge of legislative amendments but refused to inform a member of the Fund thereof. By a decision of 11 November 2004, the court found an oral hearing unnecessary and refused the applicant’s request.
13. On 18 November 2004 the applicant made further submissions in writing, including a request for compensation for loss of income caused by the unpredictable decision of Parliament to amend the legislation.
14. By a judgment of 17 December 2004 the Administrative Court of Appeal upheld the judgment of the County Administrative Court, stating as follows:
“Firstly, [the applicant’s] request for compensation for loss of income must be considered as a claim for damages. As it is not for the Administrative Court of Appeal to examine such a claim, the applicant’s request in this respect is refused.
The question in the case is how section 19, subsection 1 of the Unemployment Insurance Act – [the requirement] that the individual must have participated in and, unless hindered by special reasons, completed vocational training mentioned therein – should be understood. Due to the ambiguity of the notion carried out previously used, the notion completed was chosen to clarify that, in addition to having participated in a training programme, it was a condition that such programme be finished. The purpose of the provision was to prevent that an insured person, when he had participated for a sufficiently long period of time, would be able to cut short the programme in order to obtain unemployment benefit instead (Government Bill 1988/89:100, annex 12, p. 94). In these circumstances, and since the transitional provision of the amendment which entered into force on 5 February 2001 unambiguously states that the conditions in section 19 of the Unemployment Insurance Act must have been fulfilled at the date of the entry into force, the Administrative Court of Appeal finds that the appeal must be rejected.”
15. A request by the applicant for leave to appeal to the Supreme Administrative Court (Regeringsrätten) was refused on 17 May 2006.
16. Before the amendments introduced by law no. 2000:1460, section 12 of the Unemployment Insurance Act stipulated that, in order to become eligible for unemployment benefit, the insured had to “have had gainful employment for at least 6 months and carried out work for at least 70 hours per calendar month” over a period of twelve months immediately prior to the date of unemployment. Section 19 of the Act, entitled “re-qualification requirement”, stipulated that time during which the insured had participated in and completed – unless hindered by special reasons – vocational training was equal to “gainful employment” (as set out in section 12 of the Act).
17. The amendments introduced by law no. 2000:1460 abolished the re-qualification option set out in section 19, which had the effect that trainee work could no longer be considered equal to “gainful employment” unless completed by 5 February 2001.
18. Under the transitional provisions, employment programmes which previously re-qualified for a further unemployment benefit period would continue to qualify, if they had been completed by the time the amending law entered into force, and if a request for unemployment benefit had been submitted no later than 31 March 2001.


ITEMID: 001-104357
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NELISSEN v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant is a Netherlands national who was born in 1968 and lives in Maastricht.
6. On 4 November 2003, the applicant went to the home of one Ms E. and demanded that she give him an obituary card of her sister who had recently died. On being met with a refusal, he forced his way into Ms E.'s home, causing her to fall, and hit her over the head several times. He then made his way over to the sideboard, where he had noticed a stack of documents; of these, he took several – a magazine and some giro form stubs – before leaving.
7. In the course of the subsequent criminal proceedings it emerged that the applicant was a pathological collector of devotional obituary cards for the recently deceased. Whenever possible – on the applicant's own admission, whenever he was not detained under civil or criminal law – the applicant would gatecrash funerals in the Maastricht area. He had met Ms E. at her sister's funeral, from which he had been turned away by the undertaker. At the time of his visit to Ms E.'s home, he had been under the mistaken impression that he had propitiated Ms E. by sending her a blessed candle beforehand.
8. The applicant was taken into police custody the same day on suspicion of having committed a criminal offence. He remained in pre-trial detention pending the criminal proceedings that were subsequently brought against him and the order for his pre-trial detention was duly prolonged.
9. Examinations of the applicant's mental state by two psychiatrists and a psychologist showed that the applicant was, at the time of the crime, suffering from a mental impairment. The report of the psychiatrists diagnosed it as “a paranoid form of schizophrenia in which autistiform characteristics are unusually prominent and ... an obsessive compulsive personality disorder”. Both the psychiatrists' report and that of the psychologist considered it very likely that the applicant would reoffend if given the chance. Both reports mentioned the applicant's lack of awareness of his condition, which made him difficult to treat. They concurred in recommending that the applicant undergo compulsory treatment in a closed setting. In addition, a psychologist attached to a mental hospital where the applicant had been held previously, under the Psychiatric Hospitals (Compulsory Admission) Act (Wet bijzondere opnemingen in psychiatrische ziekenhuizen; see paragraph 20 below), gave evidence in open court to the effect that the applicant had absconded before and would resist “all possible forms of interference in his personal life” if he could.
10. On 18 May 2004 the criminal law section of the Maastricht Regional Court (rechtbank), following adversarial proceedings, convicted the applicant of theft preceded by violence and sentenced him to seven months' imprisonment with deduction of the time spent in pre-trial detention. Having found that the applicant was able to understand the unlawful nature of his acts but that on account of the limited development of his mental faculties he could only be held responsible for this offence to a limited degree whereas there was considerable danger of his reoffending, it further imposed a TBS order with confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege; “TBS order”). Referring to Article 72 § 4 of the Code of Criminal Procedure (Wetboek van Strafvordering), it further ordered the termination of the applicant's pre-trial detention as from the moment on which the duration of the pre-trial detention would be equal to the prison sentence imposed. Both the prosecution and the applicant appealed to the Court of Appeal (gerechtshof).
11. The applicant's lawyer further applied to the Court of Appeal for the applicant's immediate release from pre-trial detention on the ground that – as the applicant had already served the sentence imposed with deduction of the time spent in pre-trial detention – there was no legal basis for his further detention. The prosecution opposed this application, arguing that Article 72 § 2 of the Code of Criminal Procedure ruled out the termination of pre-trial detention in a case like the applicant's where a prison sentence is combined with a TBS order.
12. On 3 June 2004, the 's-Hertogenbosch Court of Appeal held a hearing in camera and ordered the applicant's immediate release. On the same day, at the request of the public prosecutor, the civil law section of the Maastricht Regional Court issued an interim admission order (voorlopige machtiging) within the meaning of Article 2 of the Psychiatric Hospitals (Compulsory Admission) Act under the procedure set out in this Act. Consequently, after the applicant was released from pre-trial detention on 3 June 2004, he was compulsorily admitted to a psychiatric hospital in Vijverdal under the judicial interim admission order. He stayed there until 13 December 2004.
13. On 1 December 2004 the applicant's appeal against the judgment of 18 May 2004 was heard by the 's-Hertogenbosch Court of Appeal, which on the same day issued a warrant for the applicant to be taken into pre-trial detention (gevangenneming) within the meaning of Article 75 § 3 of the Code of Criminal Procedure. Pursuant to Article 75 § 5 of the Code of Criminal Procedure, this order remained in force pending the total further duration of the criminal proceedings against the applicant.
14. By judgment of 15 December 2004, the 's-Hertogenbosch Court of Appeal quashed the judgment of 18 May 2004 on technical grounds, convicted the applicant of theft preceded by violence, sentenced him to seven months' imprisonment with deduction of the time spent in pre-trial detention and imposed a TBS order with confinement in a custodial clinic.
15. The applicant lodged an appeal on points of law (cassation) with the Supreme Court (Hoge Raad), which was dismissed on summary reasoning on 14 February 2006. Accordingly, the applicant's TBS order took effect on this date, replacing the pre-trial detention order of 1 December 2004 as the legal basis for the applicant's detention. However, the applicant was not directly transferred to a custodial clinic but was held in pre-placement detention until a suitable place would become available for him.
16. By letter of 16 August 2006, the Minister of Justice informed the applicant that, given the Court's conclusion in the case of Brand v. the Netherlands, no. 49902/99, 11 May 2004, the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) had found that financial compensation was appropriate in all cases where pre-placement detention after the end of a prison sentence had exceeded six months. Starting on the seventh month, this compensation amounted to 350 euros (EUR) per month and this amount was to be increased by EUR 125 every further trimester. The applicant was further informed that the total amount of compensation would be calculated and paid once he had been admitted to a custodial clinic. The applicant was invited to confirm within seven days whether he wished to avail himself of this compensation offer. This letter has remained unanswered by the applicant.
17. On 20 March 2007 the applicant was admitted to a custodial clinic. On 30 August 2007, he was informed by the Deputy Minister of Justice (Staatssecretaris van Justitie) that, as his pre-placement detention had exceeded six months on 13 August 2006, he was offered compensation in a total amount of EUR 3,075 for the time spent in pre-placement detention between 13 August 2006 and 20 March 2007.
18. On 5 September 2007, the applicant's parents informed the Minister of Justice – in reply to the letter of 30 August 2007 – that they disagreed with the manner of calculation and the amount of compensation. On 19 September 2007, the Deputy Minister of Justice replied that there were no reasons for her to reconsider her position in the matter.
19. On 21 April 2008, the applicant's representatives informed the Court that the applicant's TBS order had been extended by two years.
20. The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the Code of Criminal Procedure. An order for pre-trial detention can only be issued against persons suspected of an offence carrying a maximum prison sentence of four years or more or certain other specific criminal acts (Article 67 § 1 of the Code of Criminal Procedure).
21. A pre-trial detention order issued by the Regional Court remains in force for 60 days after the final judgment (einduitspraak) at that instance has been given (Article 66 § 2 of the Code of Criminal Procedure). The public prosecutor may file, within 60 days after the date of the final judgment of the first-instance court, a request for the prolongation of the pre-trial detention order by 60 days with the appeal court, which will determine that request. Pre-trial detention between a final judgment of a first-instance court against which an appeal has been filed, and the first hearing on that appeal, is limited to a maximum of 180 days (Article 75 § 3 of the Code of Criminal Procedure). If, however, the total duration of the detention on remand becomes equal to the prison sentence imposed, the highest competent trial court shall lift the remand order (Article 75 § 6 of the Code of Criminal Procedure) unless – in addition to a prison sentence – a measure entailing deprivation of liberty (such as, for instance, a TBS order) has been imposed (Article 72 § 4 of the Code of Criminal Procedure). A more detailed overview of the relevant domestic law and practice on pre-trial detention is given in Saez v. the Netherlands (dec.), no. 51197/99, 25 May 2004.
22. At the request of the public prosecutor or relatives of the person concerned (Article 2 § 1 and Article 4 § 1 of the Psychiatric Hospitals (Compulsory Admission) Act), the Regional Court can – after having heard the person concerned (Article 8) and after having considered a report by a psychiatrist who has examined the person concerned shortly before (Article 5) – issue an interim order for compulsory admission to a mental hospital. This order can only be issued where the judge finds that the person concerned is suffering from a mental disorder which gives rise to danger which cannot be averted by the intervention of persons or institutions outside a mental hospital (Article 2 § 2). An interim order is immediately enforceable (bij voorraad uitvoerbaar) and valid for a maximum period of six months, which period starts to run on the day the order is given (Article 10). At the request of the public prosecutor, the Regional Court can prolong the validity of an interim order.
23. Article 37a of the Netherlands Criminal Code (Wetboek van Strafrecht) enables courts, when dealing with certain serious crimes, to impose a TBS order on a defendant whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence. If the safety of others or the general safety of persons or goods so requires, the court may further direct that such a person be confined to a custodial clinic in accordance with Article 37b of the Criminal Code. A TBS order with confinement to a custodial clinic can be imposed in conjunction with a prison sentence if the convicted person's responsibility was merely diminished at the time of the commission of the offence. In such a situation, the TBS order will take effect after the convicted person has served the prison sentence imposed. A TBS order cannot take effect before the judgment concerned has become final (Article 38d § 1 of the Criminal Code). Pending admission to a custodial clinic, the person concerned is not released but held in pre-placement detention.
24. A TBS order with confinement to a custodial clinic is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned and enable the latter's re-socialisation. Custodial clinics, of which there were twelve in the Netherlands at the material time, are top-security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves. The treatment provided in a custodial clinic is geared to individual disorders and personalities. It is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society.
25. According to Article 38d of the Criminal Code, the TBS order is valid for an initial period of two years which may be prolonged by the court, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons, or such further extension is necessary for the protection of other persons (Article 38e).
26. In a judgment of 23 September 2005 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number], “LJN”) AU9742, the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of Breda held the following:
“Section 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden) provides that a person in pre-placement detention shall be placed [in an appropriate institution] before the TBS order has run for six months. ... In view of the judgments of the European Court of Human Rights in the cases of Brand (no. 49902/99) and Morsink (no. 48865/99) and the decisions of the Council for the Application of Criminal Law and the Protection of Juveniles it may be assumed that a time lapse of six months or more for persons subject to a TBS order is, in principle, wrongful in the light of Article 5 § 1 of the Convention.
...
3.7 The structural capacity shortage that has existed since more than twenty years is not a special circumstance in the above-mentioned sense which would justify (further) delay in placing [the plaintiff] in a TBS clinic. This shortage must remain the responsibility of the Government. The fact that there are visible causes for the lack of capacity and that measures are being taken to reduce or alleviate this shortage does not make any difference in this regard.
...”
The Provisional Measures Judge went on to order the plaintiff placed in a TBS clinic no later than nine months after 1 February 2005 (the date on which the waiting period had started), that is to say by 1 October 2005, after which, if the order was not carried out, the plaintiff was to be released immediately.
27. In its judgment of 30 August 2005, LJN AU1686, the Court of Appeal of Arnhem held that it was reasonable in principle that the order in which persons subject to a TBS order were placed in a custodial clinic should depend on their place on a waiting list unless, owing to special circumstances, they were unsuited to detention elsewhere. However, in the particular case the period of pre-placement detention was no longer in proportion to the length of time spent by the person concerned in the execution of his prison sentence. The State was therefore ordered to place the person concerned (the defendant in appeal) in a custodial clinic within three months, which time-limit was considered long enough for all practical objections (including the lack of adequate facilities) to have lost their force.
28. In a judgment given on 13 December 2005, the Provisional Measures Judge of the Regional Court of 's-Hertogenbosch on similar reasoning, the State was ordered to place the plaintiff in a custodial clinic by 1 April 2006, that is a time-limit of just over three and a half months.
29. In a judgment given on 21 June 2006, the Provisional Measures Judge of the Arnhem Regional Court found that special circumstances obtained which justified ordering the plaintiff to be given priority placement in a custodial institution. The special circumstances consisted of his having been given a TBS order without a prior prison sentence and his being considered unsuited to detention in a penal rather than a clinical setting.
30. In a judgment given on 22 June 2006, the Court of Appeal of The Hague found that the mental condition of the person concerned (the appellant) was serious, but not more so than that of others on the waiting list for placement in a custodial clinic, so that there was no justification for giving this person priority over others.
31. In a judgment given on 21 September 2006, the Regional Court of Alkmaar declined to order the plaintiff given priority over others on the waiting list absent special circumstances. In so doing the Regional Court had regard to the efforts being made to create more places for persons subject to a TBS order with confinement in a custodial clinic and the fact, as stated by the defendant, that the plaintiff could expect to be placed in such an institution by the end of the year.
32. In a judgment given on 21 September 2007, the Regional Court of The Hague found special circumstances justifying priority placement to exist in that the plaintiff had spent twenty months in detention after serving a one-month prison sentence and in that only two custodial clinics existed that were capable of treating him. The defendant was ordered to place the plaintiff in one of the two clinics no later than 1 December 2007.
33. In a judgment given on 21 December 2007 in civil proceedings on a compensation claim arising from a wrongful act on the part of the government (onrechtmatige overheidsdaad), the Supreme Court (Hoge Raad) held that pre-placement detention lasting longer than four months was unlawful. In reaching this finding, the Supreme Court referred, inter alia, to the Court's judgments in the cases of Morsink v. the Netherlands (no. 48865/99, §§ 26-37, 11 May 2004) and Brand v. the Netherlands (cited above, §§ 23-33).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-84271
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JAKUBIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 4. The applicant was born in 1967 and lives in Łowicz.
5. The applicant was charged with armed robbery and, on an unspecified date, remanded in custody.
6. On 10 November 2005 the Rawa Mazowiecka District Court sentenced the applicant to eight years and six months’ imprisonment.
7. The applicant lodged an appeal.
8. On 5 May 2006 the Łódź Regional Court upheld the first-instance judgment and dismissed the appeal as manifestly ill-founded.
9. The applicant did not lodge a cassation appeal.
10. On 30 September 2005 the Court received a letter from the applicant. The envelope bore the stamp “Censored on 19 September 2005” (Ocenzurowano dnia 19.09.2005), an illegible signature and the stamp of the Rawa Mazowiecka District Court (Sąd Rejonowy Rawa Mazowiecka). The envelope was sealed with adhesive tape. The letter of 11 September 2005 which was in the envelope likewise bore the stamp: “Censored on 19 September 2005” and an illegible signature.
11. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.
VIOLATED_ARTICLES: 8


ITEMID: 001-58849
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MAUER v. AUSTRIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. On 23 March 1988, the applicant was instructed to inform the police who had parked a car belonging to the applicant in the Schlossgasse in Vienna on 18 March 1988 at 5.30pm. He failed to provide the information, and on 11 October 1988 was fined 2,000 Austrian schillings (ATS) for the failure, pursuant to sections 134 (1) and 103 (2) of the Motor Vehicles Act 1967 (Kraftfahrgesetz). The penal notice (Straferkenntnis) was confirmed by the Vienna Regional Government (Amt der Wiener Landesregierung) on 18 May 1989. On 24 November 1989 a minor error in the penal order was corrected.
9. The applicant's administrative complaint to the Administrative Court (Verwaltungsgerichtshof) was ultimately dismissed on 24 January 1990. The Administrative Court found that the correct provisions of the Motor Vehicles Act had been applied, and further confirmed that the reasons given by the applicant for not having supplied the required information were inadequate.
10. Section 103 (2) of the Motor Vehicles Act 1967 entitles the competent authority, inter alia, to require the registered owner of a motor vehicle to communicate the name and address of a person who has used the vehicle at a specific time.
11. Under section 134 (1) it is an administrative offence (Verwaltungsübertretung) not to comply with the above-mentioned provision, punishable by a fine of up to ATS 30,000 or up to six weeks’ imprisonment in case of default.
12. For a description of the relevant domestic procedure, reference is made to the Umlauft v. Austria judgment of 23 October 1995 (Series A no. 328-B, pp. 34-36, §§ 14-23).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95460
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: PANJEHEIGHALEHEI v. DENMARK
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Ashkan Panjeheighalehei, is an Iranian national who was born in 1981 and lives in Kastrup. He is represented by Mr Bjørn Elmquist, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 July 1997 the applicant, who was sixteen years old at the time, and his sister entered Denmark with their mother. The mother had a valid passport and a visa for ninety days to visit the applicant’s sister and brotherin-law, who had been granted permanent residence permits in Denmark in 1992 and 1996 respectively.
Shortly thereafter, the applicant’s mother requested asylum. Her request also applied to the applicant and his sister who were minors at the relevant time. According to a registration report of 12 July 1997, the applicant’s mother submitted that she had been an active member of a monarchist organisation called Iran Javid. She had printed leaflets about the king and distributed them in her home town. In so far as her statement involved the applicant it concerned a demonstration in which she and the applicant had participated on 27 March 1995. The applicant, who at the relevant time was fourteen years old, had been arrested, detained and subjected to torture for two days. The applicant’s mother had never been convicted but feared being persecuted by the authorities because of the said activities. Allegedly, she had recently learned that all members of the organisation had been arrested.
The following day, the applicant’s mother explained that she had been a member of Iran Javid since 1992. On 27 March 1995, due to their participation in the demonstration, the applicant was arrested, tortured and detained for two days. The applicant’s mother’s home was seized approximately one month after the demonstration, but thereafter the authorities had not made further contact with the family. When the applicant’s mother left Iran, the organisation had still been active, but subsequent to her entry into Denmark she had learnt that it had been uncovered, that its members had been arrested and that she was wanted by the authorities.
The immigration authorities held further interviews with the applicant’s mother on 6 August 1997 and 3 July 1998, during which she elaborated on her personal situation. As to the applicant, she explained that he had been detained for ten days in connection with the demonstration in March 1995. The applicant’s mother also submitted various documents in support of her request for asylum.
On 9 October 1998 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicant, his mother and sister asylum, finding that the applicant’s mother lacked credibility and that the family did not fulfil the requirements for obtaining asylum.
The applicant, his mother and sister appealed against the decision to the Refugee Board (Flygtningenævnet), before which the applicant confirmed that he had been arrested in March 1995 for ten days.
On 11 January 1999 the Refugee Board upheld the refusal to grant the family asylum. It noted that the applicant’s mother had provided various divergent and unreliable versions of events and considered that she had failed to substantiate that the family had fulfilled the criteria to be granted asylum.
On 22 January 1999, a representative for the applicant’s mother requested a re-opening of the proceedings which was refused by the Refugee Board on 29 January 1999.
On 22 April 1999, having reached the age of majority, the applicant requested that the proceedings be re-opened. He alleged that he had been politically active in Iran and recently learnt that he was wanted by the authorities. By decision of 27 April 1999 the Refugee Board refused the applicant’s request finding that he had failed to add significant new information or viewpoints to the case. The applicant was deported the following day.
By letter of 20 May 1999 a representative for the applicant informed the Refugee Board that the applicant had been picked up by two men in civilian clothing in Iran on 1 May 1999 and that nobody had heard from him since. Accordingly, the representative requested a re-opening of the proceedings, which was refused by the Refugee Board on 18 June 1999.
Another request for a re-opening of the proceedings was lodged with the Refugee Board on 9 August 1999 and refused by the latter on 25 February 2000.
A third request for a re-opening of the proceedings was lodged with the Refugee Board on 4 November 2002 and refused by the latter on 18 December 2002.
On 20 March 2003 the applicant re-entered Denmark and applied for asylum. He maintained that, due to his previous political activities and asylum request, upon return to Iran he had been detained and subjected to torture for almost two years. According to medical statements, inter alia by the Rehabilitation and Research Centre for Torture Victims dated 25 June 2003, the applicant suffered from post-traumatic stress disorder (PTSD) and depression which, it was assessed, was consistent with his claim that he had been subjected to torture.
By letters of 12 January and 23 February 2004 the applicant requested that the Refugee Board acknowledge liability in damages for the suffering inflicted on him as a consequence of the Refugee Board’s decision of 11 January 1999. By letter of 5 March 2004 the Refugee Board informed the applicant that it could not acknowledge such liability.
On 2 December 2004, the Refugee Board granted the applicant asylum. It found that, although the applicant could not be considered to have been persecuted when he left Iran together with his mother and sister in July 1997, it could be considered a fact that the applicant had been arrested by the Iranian authorities shortly after his return to Iran at the end of April 1999 and that he had been detained for a long time. In addition, the applicant had left Iran illegally. Accordingly, the Refugee Board found that if returned again to Iran the applicant would have a well-founded fear of persecution because the Iranian authorities would incorrectly consider him to be involved in extensive political activities aimed at the regime.
On 6 April 2005 the applicant brought an action for damages against the Refugee Board before the High Court of Eastern Denmark (Østre Landsret), requesting that the former be ordered to acknowledge that it was liable to pay compensation for pain and suffering in the amount of 450,000 Danish kroner (DKK) equal to approximately 60,800 Euros (EUR) since by decisions of 11 January and 27 April 1999 the Refugee Board had refused to grant the applicant asylum, although allegedly at the relevant time he had amply demonstrated the risk he would face upon return to Iran of being subjected to arrest and torture, which subsequently happened.
Referring to section 56, subsection 8 of the Aliens Act (Udlændingeloven), according to which no appeal lay against decisions taken by the Refugee Board, the Refugee Board pleaded as a preliminary issue that the High Court should dismiss the case.
The High Court decided to determine the preliminary issue separately and decided on 15 December 2005 that, despite the invoked provision of the Aliens Act, it had authority to examine the applicant’s compensation claim on the merits. The reasoning was as follows:
“As established, most recently by the Supreme Court’s decision published in the Weekly Law Review (Ugeskrift for Retsvæsen 2004, p. 727), as a result of section 56, subsection 8 of the Aliens Act, according to which the Refugee Board’s decisions are final, the courts’ review of the Refugee Board’s decisions is limited to a review of legal questions, including shortcomings in the basis for the decision and illegal discretion. Consequently, the courts cannot determine claims for compensation in so far as the claim in reality is based solely on the assumption that the Refugee Board made a mistake in its concrete assessment of the evidence and its discretion.
[The applicant’s] compensation claim concerns the treatment to which he was subjected in Iran upon his return in April 1999, and thus relates to the Refugee Board’s decisions of 11 January and 27 April 1999. [The applicant] has maintained, among other things, that the Refugee Board failed to decide on the [the applicant’s] risk of ill-treatment by the authorities resulting from his being returned [to his country of origin] after such a long period of absence.
Consequently, [the applicant] has invoked arguments which do not relate to the Refugee Board’s concrete assessment of the evidence and discretion.”
The Refugee Board appealed to the Supreme Court (Højesteret), submitting anew that the case should be dismissed.
By judgment of 12 January 2007 the Supreme Court dismissed the applicant’s claim for compensation in its entirety with the following reasoning:
“The circumstances which [the applicant] has submitted in support of his argument that the Refugee Board were liable and therefore must grant him compensation, presuppose a review of the Refugee Board’s decisions of 11 January and 27 April 1999. The Supreme Court agrees that such a review is limited to an assessment of the legality of the administrative decision in question, including shortcomings in the basis for the decision and illegal assessments, also in a case like the present [concerning a compensation claim]. In its decision to refuse to grant the applicant asylum, the Refugee Board took a stand on the main claim [submitted by the applicant, his mother and sister], namely years of alleged membership of an illegal organisation, its being uncovered and the applicant’s participation therein. Although not expressly stated in the decision, the Supreme Court finds no reason to assume that the Refugee Board did not make an assessment of [the applicant’s] personal conditions including his participation in a demonstration in March 1995 and his subsequent short term detention, which was clearly mentioned in the facts part of the decision. It must also be assumed that the Refugee Board did take into account whether [the applicant] and his mother and sister personally were at risk upon entry and stay in Iran due to the long absence from their country since 1997. Against this background, the Supreme Court finds that the applicant’s objections to the Refugee Board’s decisions in reality amount to a disagreement with the Refugee Board’s assessment of the evidence and its conclusive decision as to whether the facts of the case could justify asylum.”
Under section 26 § 1 of the Tort Liability Act (Erstatningsansvarsloven), a person who is responsible for an unlawful infringement of another’s freedom, privacy, honour or person, is liable to pay damages to the injured party. An action for damages in this respect may be instituted before the ordinary courts in accordance with the rules set out in the Administration of Justice Act (Retsplejeloven).
By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is not subject to any instructions from the Danish Government.
Pursuant to section 53 of the Aliens Act, the Refugee Board comprises a chairman, deputy chairmen (the Executive Committee) and other members. The chairman and the deputy chairmen must be judges and the other members must be attorneys or serve with the Ministry for Refugee, Immigration and Integration Affairs. The judges are appointed upon nomination by the Court Administration (Domstolsstyrelsen). The other members of the Refugee Board are appointed by the Executive Committee. The attorneys are appointed upon nomination by the Council of the Danish Bar and Law Society (Advokatrådet) and the other members are appointed upon nomination by the Minister for Refugee, Immigration and Integration Affairs. The members of the Refugee Board are independent and cannot accept or seek directions from the appointing or nominating authority or organization. The term of appointment is for four years. The members are eligible for re-appointment and the member will be re-appointed if he or she requests re-appointment. The office as member ceases when the member resigns by own wish; when the member no longer has the organizational affiliation on which the original appointment was based; or at the end of the month of the member’s 70th birthday. The members of the Refugee Board can only be removed by judgment under the rules applying to the removal of judges. The jurisdiction of the Special Court of Indictment and Revision (Den Særlige Klageret) relating to judges applies equally to members of the Refugee Board. Cases tried by the Refugee Board are heard by the chairman or a deputy chairman, an attorney and a member serving with the Department for the Ministry of Refugee, Immigration and Integration Affairs.
Pursuant to section 56, subsection 8 of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board’s decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
Article 63 of the Constitution read as follows:
“1. The courts of justice shall be empowered to decide any question relating to the scope of the executives’ authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.”
The courts will normally confine the review to the question of deciding on the legality of the administrative decision, including shortcomings of the basis for the decision and illegal assessments, but will generally refrain from adjudging on the administrative discretion exercised.
The question of the scope of the finality rule set out in section 56(8) of the Aliens Act has been brought before the courts several times (see, inter alia, the Supreme Court judgments of 16 June 1997, published in the Weekly Law Review (Ugeskrift for Retsvæsen), (UfR 1997, p. 1157), 29 April 1999 (UfR 1999, p. 1243), 26 January 2001 (UfR 2001. p 861), 28 November 2001 (UfR 2002, p. 406), 29 August 2003 (UfR 2003, p. 2405) and 2 December 2003 (UfR 2004, p. 727). Reference was also made to more recent Supreme Court judgments of 24 March 2006 (UfR 2006, p. 1831), four judgments of 15 February 2007 (UfR 2007, p. 1277; UfR 2007, p. 1286; UfR 2007, p. 1291/1; and UfR 2007, p. 1291/2), a judgment of 28 November 2007 (Supreme Court case No. 349/2005) and five judgments of 30 November 2007 (Supreme Court cases Nos. 576/2006, 5/2007, 6/2007, 7/2007 and 8/2007)). According to those judgments, judicial review of decisions issued by the Refugee Board is limited to a review of issues of law, including an inadequate basis for a decision, procedural errors and unlawful exercise of discretion.
The Government have also referred to a judgment of 31 October 2006 from the Supreme Court, published in the Weekly Law Reports (UfR 2007, p. 262), which in their view illustrated that the Supreme Court does not interpret section 56, subsection 8 of the Aliens Act narrowly. In that case, the Supreme Court held that the Refugee Board was not entitled to make the granting of asylum status conditional upon the plaintiff being able to render probable that he was at a specific risk of having to carry out or assist in actions that might entail exclusion under international rules pursuant to Article 1F of the Geneva Convention relating to the Status of Refugees. The Supreme Court noted that:
“the question of whether it is justified to set up these conditions, which relate to the disputed fact and the burden of proof as well as other issues, is an issue of law subject to judicial review regardless of the finality rule laid down in section 56, subsection 8 of the Aliens Act.”
Thus, the Government pointed out, the national courts cannot substitute their own decision on the merits of a case embraced by section 56, subsection 8 of the Aliens Act for that of the Refugee Board. However, if a decision issued by the Refugee Board is appealed against to a national court, and if that court finds that the Refugee Board’s decision suffers from material defects of law, including an inadequate basis for the decision, procedural errors or unlawful exercise of discretion, the court may remit the case to the Refugee Board for reconsideration. This was done by the Supreme Court in the above-mentioned judgment (UfR 2007, p. 262.).


ITEMID: 001-105116
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF SKURAT v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Lech Garlicki;Nebojša Vučinić
TEXT: 6. The applicant was born in 1977 and lives in Gdańsk.
7. On 16 May 2005 the applicant was arrested.
8. On 17 May 2005 he was charged with having assisted in counterfeiting a secondary education diploma (udzielenie pomocy w podrobieniu świadectwa maturalnego). The applicant was released on the same day, after having paid a bail of 6,000 Polish zlotys (PLN).
9. On 30 August 2005 a bill of indictment against the applicant and two other persons was lodged with the Gdańsk District Court (Sąd Rejonowy).
10. On an unspecified date, one of the co-accused, A.D., requested the court to sentence her without carrying out the whole proceedings and her case was severed for separate examination. A judgment against A.D. was given on 5 October 2005.
11. A first hearing, scheduled on 30 November 2005, was adjourned. No reasons for this decision were provided.
12. The trial started on 22 December 2005.
13. On one occasion a hearing was adjourned, as the applicant’s coaccused failed to appear.
14. Two hearings were adjourned, as the applicant and his co-accused have not been transferred to the court from prison.
15. On five occasions the applicant’s lawyer failed to attend the hearings. It appears that on two of those occasions he has not been properly summoned.
16. Two hearings, scheduled on 9 October and 6 November 2007, were adjourned, as the case-file concerning another set of criminal proceedings has not been delivered to the trial court.
17. Two hearings, scheduled on 11 December 2007 and 18 January 2008, were adjourned, without any reasons being provided.
18. A hearing scheduled on 27 February 2008 was cancelled due to the judge-rapporteur’s illness.
19. On 11 April 2008 the District Prosecutor (Prokurator Prokuratury Rejonowej) requested the trial court to exclude judge J.M., to whom the applicant’s case was assigned, from the proceedings. The prosecutor relied on the fact that J.M. had given a judgment against A.D. and that, according to the recent case-law of the Supreme Court, in circumstances like those of the present case, the same judge could not examine a case against several co-accused on the basis of the same evidentiary material.
20. On 21 April 2008 the Gdańsk District Court granted the prosecutor’s request and excluded J.M. from the proceedings. The trial has recommenced.
21. On 9 October 2008 the Gdańs Distirct Court quashed the preventive measure imposed on the applicant (see paragraph 8 above). The amount paid as bail was returned to the applicant.
22. The proceedings are still pending before the first-instance court.
23. On 10 April 2008 the applicant lodged a complaint about a breach of his right to a trial within a reasonable time with respect to the first set of criminal proceedings against him. He relied on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought PLN 10,000 in just-satisfaction.
24. On 1 July 2008 the Gdańsk Regional Court (Sąd Okręgowy) acknowledged that the proceedings have indeed been lengthy and awarded PLN 1,000 to the applicant. It underlined that the trial court has failed to ensure that the hearings were adequately prepared and organised. It also noted that the applicant’s lawyer has partly contributed to the overall length of the proceedings. In that respect the trial court was criticised for not having taken disciplinary measures against the applicant’s lawyer at an earlier stage of the proceedings, by informing the Gdańsk Regional Bar about the advocate’s failure to perform his duties.
25. On 21 November 2006 the applicant was arrested on suspicion of drug trafficking.
26. On 22 November 2006 the Gdańsk Distirct Court remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that if released, the applicant might tamper with evidence. In that respect the court underlined the fact that the applicant has not admitted to having committed the offence he had been charged with. The court also stressed the severity of the anticipated sentence.
27. The applicant’s appeal against the detention order, likewise his further appeals against decisions prolonging his detention and all his subsequent applications for release were unsuccessful.
28. On 12 January 2007 a bill of indictment was lodged with the Gdańsk District Court. It comprised forty-seven charges of drug trafficking brought against six defendants.
29. On an unspecified date charges against four of the co-accused, A.S., M.S., D.G. and M.K., were severed, as they requested the court to sentence them without carrying out the whole proceedings. A judgment in their case was delivered on 4 July 2007.
30. On 11 April 2007 the trial court held its first hearing.
31. During the court proceedings, the applicant’s detention was further prolonged on 17 January, 21 May, 10 August and 16 November 2007 and on 16 February and 16 May 2008.
In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offence in question, which was supported by evidence from witnesses. They attached importance to the grave nature of that offence and the likelihood of a severe sentence of imprisonment being imposed on the applicant. They further considered that the need to secure the proper conduct of the proceedings, especially the need to obtain evidence from witnesses, justified holding him in custody.
32. On 16 May 2008 the applicant requested the trial court to exclude judge J.M. from the proceedings. He relied on the fact that J.M. had given a judgment against A.S., M.S., D.G. and M.K. and that consequently, he could not examine a case against him, on the basis of the same evidentiary material (see also paragraph 19 above).
33. On 2 June 2008 the judge was excluded from the proceedings. The trial had to restart.
34. On 25 July 2008 the Gdańsk District Court lifted the applicant’s detention. The court found that the applicant’s detention was already approaching a two-year period and that, taking into consideration that the trial had to be repeated, he could no longer be held in detention. According to the court, the risk that the applicant would obstruct the proceedings has no longer been a relevant factor, in view of the lapse of time.
35. From 20 November 2007 to 23 September 2008 the applicant served a prison sentence ordered in another set of criminal proceedings against him.
36. The proceedings are still pending before the District Court.
37. On 14 April 2008 the applicant received a letter from his lawyer. In that respect the applicant presented a copy of an envelope which bears a stamp “censored (“ocenzurowano”). The stamp is crossed out. The envelope also contains a handwritten note which says “censorship abandoned” (“odstąpiono od cenzury”), date and illegible signature.
38. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
39. The relevant statistical data, recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35, 3 February 2009).
40. 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 presented in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005VIII, and its judgment s in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 2331, 20 April 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1