ITEMID: 001-98460
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SPAMPINATO v. ITALY
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Carlo Spampinato, is an Italian national, who was born in 1978 and lives in Rome. He was represented before the Court by Mr N. Paoletti and Mrs A. Mari, lawyers practising in Rome. The Italian Government (“the Government”) were represented by their Agent Mr I. M. Braguglia and their Co-Agent Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
From April 2003 onwards the applicant worked as a trainee lawyer.
On 15 June 2004 he filed his income tax return in respect of the previous year.
On the tax return he opted to allocate to the State an amount representing eight thousandths of the income tax due.
Under section 47(2) of Law no. 222 of 1985, eight thousandths of income tax is allocated to the State, to the Catholic church, or to one of the representative institutions of five other religions (Union of Seventh-Day Adventist Churches, Assemblies of God of Italy, Union of Methodist and Waldensian Churches, Evangelical Lutheran Church and Union of Jewish Communities of Italy), which receive such contributions under an agreement (intesa) governing their relations with the State (see Laws no. 516 of 1988, no. 637 of 1996, no. 517 of 1988, no. 449 of 1984, no. 409 of 1993, no. 520 of 1995, no. 101 of 1989 and no. 638 of 1996).
Those Laws are based on Articles 7 and 8 of the Constitution, which read as follows:
“The State and the Catholic Church are independent and sovereign, each within its own sphere. Their relations are governed by the Lateran Covenants. Amendments to these Covenants which are accepted by both parties shall not require the procedure of constitutional amendment.”
“All religious denominations are equally free before the law. Denominations other than Catholicism have the right to self-organisation according to their own constitutions, provided these do not conflict with Italian law. Their relations with the State are regulated by law, based on agreements with their respective representatives.”
Under section 47(3) of Law no. 222 of 1985, taxpayers are required to indicate their choice for the allocation of the relevant percentage of income tax when they fill in their tax return. If no option is indicated, the sum is divided between the State, the Catholic church and the institutions representing the other religions, in proportion to the choices made by all taxpayers.
As regards the income tax portion allocated to the State, it must be earmarked for the financing of activities with a social purpose, in accordance with the relevant principles laid down by Presidential Decree no. 76 of 10 March 1998. However, under section 2(69) of Law no. 350 of 2003, the sum of 80,000,000 euros (EUR) is deducted every year from the total amount of this portion and can be used by the State freely according to its needs.


ITEMID: 001-83386
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FLUX v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 19 July 2001 the Parliament of Moldova amended the 2001 Budget Act to allow the Customs Department to postpone by up to three months the levying of taxes on fuel imported into Moldova. In the evening of the same day, the leader of the communist majority in Parliament (Mr V. Stepaniuc) met with the deputy Speaker of Parliament (Mr V. Mişin) for a meal in the restaurant of a luxury hotel in Chişinău. According to the applicant newspaper, sources which preferred to remain anonymous confirmed that the meal had been paid for by “L.”, a major importer of fuel into Moldova.
7. On 24 July 2001 the applicant newspaper published an article entitled “On L.'s money, communists V. Stepaniuc and V. Mişin had a big-time party (chiolhan) at 'Jolly Allon'”. The article, which included pictures of the two MPs next to the text, informed readers about the changes to the Budget Act and about the profits which those changes would bring to a few big fuel importers who had links with the Customs Department, thus allowing unfair competition. The article claimed that the postponement of tax payments constituted a form of credit by the State without interest or guarantees and rejected the explanation for the amendment given by a member of Parliament.
One paragraph in the article read:
“One needs to note that, in the evening of the same day, at the 'Jolly Allon' (...) hotel, the communists V. Stepaniuc and V. Mişin, putting aside all proletarian decency [pudoare], had a big-time party on the money of the sharks from 'L.'. Could this party be a simple coincidence? We do not know.”
The article went on to expose the legislative plans of the communist party and the resulting benefits to big fuel importers at the expense of ordinary workers.
8. On 8 July 2002 Mr Stepaniuc, the leader of the Communist parliamentary faction which had, at the time, 71 votes out of a total of 101 in Parliament, lodged an action against the applicant newspaper, identifying the paragraph cited above as defamatory. He did not pay any court fee when lodging his complaint, nor did he appear in court at any stage of the proceedings or delegate any person to represent him.
9. On 1 August 2002 Judge I.M., the then President of the Buiucani District Court, found that the applicant had essentially stated that Mr Stepaniuc “had voted for laws in the interest of some private companies and then had a party on their money”. It denounced the use of pure rumour as a basis for journalism and found that the applicant newspaper had acted in bad faith. The court took note of the “vehement attack” on Mr Stepaniuc, the large readership of the newspaper and the “degree of moral and psychological suffering” caused. In addition, the court found that Mr Stepaniuc's position as a member of Parliament and leader of a parliamentary faction “increased the degree of moral damage” which led to the imposition of maximum liability.
10. The court accepted Mr Stepaniuc's claim and ordered the applicant newspaper, pursuant to Articles 7 and 7 § 1 of the Civil Code, to publish an apology and to pay the plaintiff the maximum damages allowed by law and the court fees (a total of 3,690 Moldovan lei (MDL), equal to 278 euros (EUR) at the time). According to the applicant newspaper, the court had conducted one hearing which lasted less than 15 minutes and no questions had been put to the applicant newspaper.
11. In its appeal the applicant newspaper submitted that the impugned phrases had amounted to value-judgments which could not be proved and that these opinions had been based on facts, namely the party which had taken place at the hotel in question on the date mentioned in the article, which was not disputed, and the modifications to the law adopted by Parliament. Moreover, in view of the length of time that had passed after the publication of the article, it had been impossible for the applicant to prove that the persons had been seen at the hotel restaurant, where they had had a party, or verify the source of payment for it. The applicant newspaper also argued that Judge I.M. lacked independence and impartiality because he was a friend of Mr Stepaniuc and had been appointed President of the Buiucani District Court by the Communist Party parliamentary group. The majority of the defamation cases between Flux and Mr Stepaniuc had been examined by him personally and his decisions were stereotyped and did not give sufficient reasons. In other defamation cases between Flux and representatives of the Government, Judge I.M. had always ruled in favour of the latter and had awarded them the maximum amount provided for by law.
12. On 30 January 2003 the Chişinău Regional Court found that the applicant newspaper had missed the time-limit for lodging its appeal against that judgment but went on to examine the substance of the case. It upheld the lower court's judgment, finding that its decision had been lawful and reasoned. The court did not respond to the applicant's complaint about the alleged lack of impartiality of Judge I.M. The hearing lasted less than 10 minutes and the applicant newspaper was not asked any questions.
13. In an appeal in cassation the applicant newspaper relied on Article 10 of the Convention and on the distinction which the lower courts had failed to make between value-judgments and factual statements. Moreover, the courts had never heard evidence from the plaintiff, and had not taken into account his public-figure status, which should have limited the scope of interference with the applicant's freedom of expression, or the special role played by the press in a democratic society. Finally, the lower courts had failed to respond to most of the points raised by the applicant.
14. On 1 April 2003 the Court of Appeal upheld the judgments of the lower courts, finding that they had been lawful and corresponded to the evidence in the case. No comment was made about Judge I.M.'s alleged lack of impartiality.
15. The relevant provisions of the domestic law have been set out in this Court's judgment in the case of Busuioc v. Moldova (no. 61513/00, §§ 39-40, 21 December 2004).
VIOLATED_ARTICLES: 10


ITEMID: 001-79926
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: REMMO AND UZUNKAYA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The first applicant, Mr Mousbach Remmo, is a Lebanese national who was born in 1973. The second applicant, Ms Sapha Uzunkaya, is a Turkish national who was born in 1969. The applicants live in Senden, Germany. They were represented before the Court by Mr F. Münsterkötter, a lawyer practising in Münster.
The applicants, who both lived in Lebanon before moving to Germany, are married in accordance with the Muslim rituals since 1994 but did not have a civil marriage in Germany. They are the parents of M. who was born on 15 September 1999. They have another four children born in 1997, 1998, 2000 and 2002.
On 29 August 2001 the first applicant brought M. to a hospital in Münster on the advice of a child doctor. According to the first applicant, M. had fallen three days before, without his parents having observed this, and had been injured. He had a swollen forehead and a glasses haematoma, with his eyes being swollen following massive blood intrusions. When examining the child, the hospital doctors discovered further injuries. Considering these symptoms to be the result of M.’s maltreatment, they informed the police thereof.
On 31 August 2001 two experts of the Münster Institute of Forensic Medicine submitted a report on the motion of the Münster Public Prosecutor’s Office. Having examined M. on 29 August 2001, they found that the child had numerous older haematoma all over his body, mostly at parts on which he was unlikely to fall, and several smaller scars stemming from injuries inflicted at different moments in time. These findings indicated that he had been ill-treated over a longer period of time and suffered from a so-called battered child syndrome.
In the course of further examinations carried out in hospital, M. was found to have also suffered a fracture of the skull at an earlier date which his parents had not noticed.
On 31 August 2001 the Lüdinghausen District Court, by way of an interim injunction and without having previously heard the applicants, provisionally withdrew the applicants’ right to determine M.’s place of residence and transferred it to the Coesfeld Youth Office. It found that, having regard to M.’s multiple injuries, the applicants were suspected of having ill-treated him. It ordered that the applicants’ other children be equally examined by the Institute of Forensic Medicine.
In their report dated 3 September 2001 the two experts of the Münster Institute of Forensic Medicine, having examined M.’s three brothers, found that they did not show any signs of exposure to violent acts.
On 7 September 2001 the applicants, who were from then on represented by counsel in the proceedings before the domestic courts, lodged an appeal against the order of 31 August 2001. They claimed that at no point in time they ill-treated M.
On 17 September 2001 the Lüdinghausen District Court, having heard the applicants in person, confirmed the withdrawal of the applicants’ right to determine M.’s place of residence, provisionally withdrew the right of custody of the second applicant, who, in the court’s view, had sole custody pursuant to section 1626a § 2 of the Civil Code (see ‘Relevant domestic law’ below), and transferred it to the Youth Office. It further ordered an expert report on the question of whether there were signs that M. had been ill-treated by his mother and possibly also by his father from a psychological point of view.
On 18 September 2001 M. was released from hospital. Since then, he has been living in a foster family. His parents visit him every two weeks.
On 14 September 2002 the Münster Public Prosecutor’s Office discontinued the criminal proceedings against the applicants as there was no sufficient evidence that it had been them who had injured M.
On 25 September 2002 the Lüdinghausen District Court withdrew the applicants’ parental custody of M. pursuant to section 1666 of the Civil Code (see ‘Relevant domestic law’ below) and conferred it to the Coesfeld Youth Office.
The District Court had heard the applicants in person without appointing an interpreter for the second applicant, who hardly spoke German and whose submissions in Arabic were translated by the first applicant. It had further consulted a psychological expert and a representative of the Youth Office.
The District Court was convinced that M. had repeatedly experienced violence. It noted that the applicants had stressed that M. had not been deliberately injured by them, but had injured himself while romping around. However, there were no innocent explanations for his numerous injuries inflicted at different points in time. Even assuming that some of them were caused by M.’s own inadvertence, there were several signs, such as the fact that he ducked when someone approached him or that he strongly resisted being undressed, which indicated that he had been ill-treated by others.
The court, having regard to the report of the psychological expert, found that it could not be ascertained whether the injuries of the two-year-old M., who was not able to make any concrete statement, had been inflicted by his parents. However, it was clear that they had been unable to protect M. from such injuries.
Moreover, relying on the report of the psychological expert, the District Court found that also M.’s mental development was jeopardized. Mere language problems were inevitable in a family in which one of the parents did not speak German and were no reason to separate a child from his parents. However, M. lived isolated in the family’s apartment with his mother, who spoke Arabic, hardly knew any German and showed no interest in his education, including his learning German.
According to the psychological expert and the representative of the Youth Office M. had settled well in his foster family. The District Court found that there were no milder measures, such as aids by public authorities, which were suitable to avert risks to M.’s welfare. The first applicant was busy with two jobs and the second applicant, whom both applicants considered responsible for their children’s education, did not speak German and was unwilling to change this by starting to learn German. It conceded that the applicants had declared to be willing to cooperate with the authorities, if necessary with the help of a neighbour who was ready to interpret for them. However, as confirmed by a representative of the Youth Office, social pedagogic family support, which was based on a relationship of trust between the pedagogue and the parent, was not possible in the permanent presence of an interpreter.
On 8 October 2002 the applicants lodged an appeal against the District Court’s decision of 25 September 2002.
On 3 December 2002 the Court of Appeal appointed M. a curator ad litem who subsequently submitted two reports to the Court of Appeal.
On 13 February 2003 the Hamm Court of Appeal heard the parties and the psychological expert.
On 8 April 2003 the Hamm Court of Appeal, following another hearing in which it also consulted M.’s foster parents, dismissed the applicants’ appeal. Agreeing with the District Court, it found that the applicants, by their failure, had jeopardized M.’s welfare and that there were no milder means of averting danger to the child’s best interest. The applicants were unable to educate M. in a way which safeguarded his physical and mental integrity.
The Court of Appeal found that M. had been considerably injured on several occasions in the applicants’ household. It could not be ascertained whether it had been M.’s parents or third persons who had injured the child so that the criminal investigations against the applicants had been discontinued. Despite this, there were several indications, notably M.’s repeated statements that his mother was mean, his aggressive behaviour and the fact that his parents had given different and contradictory explanations for his injuries, that M. had been ill-treated within his family. This could, however, be left open. Even assuming that M. (then aged two) had injured himself while romping around, his parents, despite his serious injuries, had failed to guarantee his full and prompt medical treatment. The applicants were indifferent towards physical injuries of their children. This was not least demonstrated by the fact that during the expert’s presence, their children were romping around with dangerous objects like turned chairs and forks without their parents interfering. Therefore, the need to protect M.’s physical integrity was already in itself a sufficient reason to withdraw his parents’ custody.
The Court of Appeal, agreeing with the findings of the psychological expert, further found that the child’s mental welfare would be jeopardized if he returned to his family. M. had made traumatising experiences within his family which he had started to overcome as he had settled well in his foster family and, as confirmed by the Youth Office, had developed intensive bonds with them. On the contrary, he had never developed any relationship with his father and had told his mother that she should leave him alone. Visits of his parents had shown that there was hardly any relationship between them and M. any longer.
The Court of Appeal stressed that it was irrelevant that M.’s foster parents could further M. considerably more from an intellectual and linguistic perspective than his parents. It was the child’s welfare which was decisive for the measures to be taken.
The Court of Appeal observed that pursuant to section 1666a of the Civil Code (see ‘Relevant domestic law’ below), measures resulting in the separation of a child from his family were only permitted if the danger to the child’s welfare could not be averted by other means, notably aids by public authorities. However, the Youth Office had submitted that it had no pedagogues speaking Arabic and that a direct communication between the pedagogue and the parents was indispensable for a social pedagogic measure to have prospects of success. The parents had not changed their attitude towards physical injuries of their children so that support would be necessary day and night which was impossible to furnish. Even if this was possible, M.’s mental welfare would still be jeopardized for the reasons already set out.
The Court of Appeal observed that, the applicants not having had a civil marriage in Germany, it was probably only the second applicant who had custody of M. It had nevertheless dismissed also the first applicant’s appeal for reasons of precaution.
On 26 June 2003 the Hamm Court of Appeal dismissed the applicants’ remonstrance. Referring to the reasons given in its decision of 8 April 2003, it argued in particular that, even assuming delays in the proceedings, these did as such not warrant returning M. to his family.
On 29 July 2003 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicants’ constitutional complaint. The decision was served on the applicants’ lawyer on 4 August 2003.
Pursuant to section 1626a of the Civil Code a child’s mother has sole custody if the child’s parents are not married and have not deposited a declaration of joint custody recorded by a notary with the authorities.
Section 1666 § 1 of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers.
Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including aids by public authorities. The right of personal custody may only be withdrawn in its entirety if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger.


ITEMID: 001-57874
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF STANFORD v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: John Freeland;R. Pekkanen
TEXT: 7. On 30 March 1988 the applicant, Mr Bryan Stanford, was committed for trial by jury at the Crown Court in Norwich on seven counts arising out of his relationship with a young girl: indecent assault, two counts of rape, unlawful sexual intercourse, kidnapping and two counts of making a threat to kill. The trial, before a High Court judge and a jury, lasted six working days between 8 June and 15 June 1988. Throughout the trial the applicant, who sat in a glass- fronted dock, was represented by solicitor and counsel. His counsel had been in practice for thirteen years and specialised in criminal work.
8. On 15 June 1988, having been found guilty of indecent assault, one count of rape, kidnapping and one count of making a threat to kill, the applicant was sentenced to a total of ten years imprisonment. He is currently serving this sentence in Her Majesty’s Prison Long Lartin, in Worcestershire.
9. During the trial evidence was given by, among others, Miss M., the alleged victim of the offences who was then fifteen years of age, as well as her mother and sister. When M. gave evidence the judge directed that she be moved nearer to himself and the jury since it was difficult to hear what she was saying.
10. On 27 July 1988 the applicant sought leave to appeal against his conviction to a single judge of the Court of Appeal (Criminal Division) ("the Court of Appeal") on the ground, inter alia, that at his trial he could not hear the proceedings. This was refused on 13 September 1988 as there was found to be no merit in any of his proposed grounds.
11. On 6 October 1988 the applicant renewed his application for leave to appeal to a full court of the Court of Appeal. He claimed, inter alia, that he had been unable to hear the original proceedings as the acoustics in the court had been inadequate. He also submitted a letter in which the prison officer who had guarded him in the dock during the trial confirmed that the applicant had on a number of occasions complained to him of his inability to hear the witnesses. The letter stated inter alia:
"On at least three occasions I called his solicitor and he was told the problem. On one of these occasions he told the [applicant] not to worry as his barrister was doing a good job. I have to say that I could not hear what the witnesses were saying."
12. It is not disputed that the applicant was unable to hear some of the evidence nor that this was communicated to his solicitor, counsel and the prison officer guarding him. The trial transcript reveals that the applicant was, however, able to hear the indictment read out at the beginning of the trial and pleaded "not guilty" to each of the seven counts put to him.
At no time during the trial was any complaint or representation made to the court or to any of its officials by the applicant or his lawyers concerning the claim that he could not hear the proceedings.
13. The applicant complained to the Solicitors’ Complaints Bureau about, inter alia, the solicitor’s failure to take action in respect of his difficulties in hearing the evidence. In a letter dated 19 December 1988 to the Bureau, the applicant’s solicitor commented as follows on the applicant’s claims:
"Mr Stanford’s trial was apparently the first case to be heard at the new Norwich Crown Court building. Throughout the trial Mr Stanford sat silently in the dock. He told me that he is someone who has a hearing problem. I assume that his failure to hear what was said relates mainly to the evidence given against him by the complainant (M.). The prosecution allegation was that Mr Stanford had abused, raped, kidnapped and threatened to kill [the complainant] and that this conduct had been going on for about two years. She claimed to have told no one because of her fear of violence from Mr Stanford and because of threats he allegedly made to harm her and her family. She spoke in a soft voice and the judge directed that she should give her evidence sitting at a table positioned between counsel and the judge. This meant that she was closer to the jury and her upper body was therefore visible to the jury rather than obscured by the witness box. Notwithstanding this she gave her evidence with her head bowed answering questions often with one word answers in a soft voice. I was nearer to her than the defendant. I could hear what she was saying. It is clear that the jury, the judge and counsel could also hear. Because of the court layout it would have been difficult for the defendant to have heard but not impossible if his hearing had been unimpaired. I had taken full instructions from Mr Stanford upon the committal papers in the form of a 22 page statement. Counsel was in my view very well acquainted with the detail of that statement and put to the complainant all matters which should have been put. I agree that Mr Stanford told me and counsel that he could not hear everything that was being said. Counsel took the view (which I shared) that as she and the jury could hear and as she would no doubt have had the opportunity of taking instructions upon any matters arising which were not contained in her brief, then there was nothing which needed to be done. It is my view that if Mr Stanford had been placed close to the complainant and facing her at the time that she was giving her evidence, then this would have been viewed by the jury as an indication of the intimidating behaviour of Mr Stanford about which [M.] was complaining."
14. On 6 October 1989 the full Court of Appeal refused the applicant’s renewed application for leave to appeal against conviction.
It held, inter alia, as follows:
"We have read the grounds of appeal against conviction upon which he would seek to rely. There is no substance in any one of them. We make reference specifically to one, however, because his complaint is that he did not receive a fair trial on account, so he puts it, of ‘poor acoustics’ which prevented him from hearing the proceedings and the failure of his representative, that is to say his solicitor, to remedy that. We have seen a letter from a prison officer relating to this matter. There would appear to be something in the complaint of the applicant, namely that he could not hear properly at all times what was going on. There is no doubt in our minds, however, that his solicitor and his counsel had not the slightest difficulty in following the proceedings and in representing him in a way which could not possibly be complained about."
15. On 10 November 1989, the applicant was informed by the Registrar of Criminal Appeals that he could not appeal to the House of Lords, since he had not had a substantive appeal dismissed by the Court of Appeal.
16. A similar complaint concerning acoustics in the courtroom in which the applicant had been tried, and which was in constant use from the time of its opening in 1988, was made in one other case over a year after the applicant’s conviction. As a result, the landlords of the court building commissioned a report from a company specialising in acoustics. This report, dated 8 February 1990, noted that in 1988, before the building came into use as a court, tests showed that acoustic design targets had been met. It concluded that a person speaking from the Bench was intelligible in the front seat of the dock with the glass screen in position. The report also stated that the effect of the glass screens upon audibility was not considered to involve a significant drop in sound level.
Notwithstanding these findings, it was subsequently decided to instal a reflector panel above the dock to overcome the very small sound loss which was due to the glass screen.
17. In England and Wales, the right of an accused to be present in court at his trial is a matter of common law. The general rule was stated by Lord Reading CJ in R. v. Lee Kun (1916) 1 Kings Bench Reports 337, at 341, as follows:
"There must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity ... of answering it. The presence of the accused means not only that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings."
18. A trial judge may, if he considers that the accused in the dock may intimidate a witness, remove the accused from the presence of the witness, though not out of hearing (R. v. Smellie (1919) 14 Criminal Appeal Reports 128).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81641
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TESTA v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1965 and is presently serving a prison sentence in Požega Penitentiary.
5. On 24 April 2001 the Požega Municipal Court (Općinski sud u Požegi) convicted the applicant of fraud and sentenced her to eight months' imprisonment. The court also ordered her to pay 44,000 Croatian kunas (HRK) in damages to the injured party. The first-instance judgment was upheld by the Požega County Court (Županijski sud u Požegi) on 21 November 2001.
6. The applicant served the sentence in Požega Penitentiary from 10 January until 29 August 2003, when she was conditionally released. Her conditional release expired on 10 September 2003.
7. On 22 November 2001 the Zagreb Municipal Court (Općinski sud u Zagrebu) convicted the applicant on eight counts of fraud, sentenced her to four years' imprisonment and confiscated HRK 210,782 from her, which it attributed to the proceeds from her criminal activity. The court also ordered her to pay HRK 359,416.17 in damages to various injured parties. The sixth count of the applicant's conviction was identical to the offence for which the applicant had been sentenced by the Požega Municipal Court on 24 April 2001. The judgment was upheld on 8 July 2003 by the Zagreb County Court (Županijski sud u Zagrebu), sitting as an appellate court.
8. On 6 April 2005 the applicant started to serve her sentence.
9. On 21 October 2005 the applicant lodged an application for a retrial, claiming that she had been sentenced twice for the same offence. On 15 February 2006 the Zagreb Municipal Court granted the application. On 12 April 2006 the Zagreb Municipal Court acquitted the applicant on the charge of fraud in respect of which she had already been convicted by the Požega Municipal Court and upheld her other convictions of 22 November 2001 the court sentenced her to three years' imprisonment and confiscated HRK 166,782 from her on account of her criminal activity.
10. The medical documentation submitted by the applicant shows that since 1996 she has been suffering from chronic hepatitis (Hepatitis C) with a very high level of viremia (presence of viruses in the blood). She has unsuccessfully undergone interferon treatment. Due to the effects of that disease her liver is damaged and her general health condition is very bad. People with hepatitis C usually suffer from constant exhaustion; pain in the abdomen, joints and muscles; general sickness and weakness; and often depression. A low-fat diet is required in order to reduce liver damage. The disease is potentially fatal. On an unspecified date the applicant also contracted hepatitis A. In addition to that, she suffers from endometriosis.
11. During her first stay in Požega Penitentiary, from 10 January to 29 August 2003, the applicant was put on a low-calorie diet as a punishment for her attempts to complain about the conditions in the prison. She was first given the job of handling dissolvent without any protection and later made to work full time on shovelling pebbles. As a consequence, she collapsed and was transferred to the prison hospital (Bolnica za osobe lišene slobode, hereafter “the hospital”) where she spent about two and half months. She was transferred in a van, accompanied by a driver, a nurse and a policewoman. The transfer took several hours and they had several coffee breaks and a lunch break, during which they left the applicant in a closed van, without food or water and with the windows shut.
12. In the hospital the applicant shared a hospital room with five other inmates, most of whom were suffering from various mental disorders or epilepsy. The room had no sanitary facilities. The common sanitary facilities were shared by male and female inmates of the same floor. There were six female and fifteen male inmates on the applicant's floor. Access to toilets was allowed only in the company of a prison warden. The prison wardens were all male. Requests to be accompanied to the toilet were often ignored for prolonged periods of time. There was no access to the toilet during the night and the inmates had to use a common chamber pot (one for six inmates). The rooms were unlocked for an hour per day when the inmates were allowed to go out into the corridor, take a shower or wash their clothes. If an inmate urinated or threw up in the room, it had to be cleaned by the other inmates.
13. After her return to Požega Penitentiary, the applicant was again given the job of handling dissolvent, without any protection. After she had collapsed again, she was assigned another job.
14. The applicant was discharged on 29 August 2003. Her conditional release expired on 10 September 2003.
15. Following a fresh criminal conviction, on 6 April 2005 the applicant was taken by police to Remetinec Centre for Psychosocial Diagnostics (Centar za psihosocijalnu dijagnostku Remetinec), a detention centre in Zagreb, where she stayed for two weeks.
16. According to the applicant, she had not been allowed to write to the Court. The prison authorities had repeatedly questioned her as to what she had written to the Court about her previous stay in Požega Penitentiary and the hospital. After she had refused to reply she had been transferred to Požega Penitentiary and placed in the high-security unit where she had been ever since.
17. Požega Penitentiary consisted of four buildings that were old and in a bad state of repair. The walls were damp, windows broken and the heating facilities old and insufficient. As a result, it was often very cold in the cells and in the other prison areas. On rainy days the water leaked through the roof into the bedrooms. The sewage and water installations often broke down and when this happened the inmates were deprived of running water for days.
18. Požega Penitentiary was divided into three sections: an open section with the lowest security regime, a semi-open section with a medium security regime and a closed section with the highest security regime. The applicant had been assigned to the latter one. She had been put in a cell measuring twelve square metres with five other inmates. The beds were old and partly broken, and the mattresses were torn and soiled. There were approximately two toilets on average for thirty inmates. The inmates were not allowed to use the toilets at night. The applicant had been put in the same cell as an inmate who took heavy sedatives and therefore soiled her bed almost every night, which created an unbearable smell in the cell. The penitentiary lacked sufficient sanitary facilities, so inmates were occasionally sent to take showers in the basement. The showers there were mouldy and there were often mice, cockroaches, rats and cats running around. The inmates were not allowed to wash their civilian clothes in the penitentiary laundry room but had to wash them by hand and dry them in a very small room, which created an unbearable smell.
19. Before every meal the inmates were lined up in the courtyard where, regardless of the weather conditions and often for a prolonged period of time, they waited to be allowed access to the canteen. The applicant found it increasingly difficult to bear such line-ups on account of her illness.
20. Inmates were made to work about fifteen hours per day. From 12 May to 25 November 2005 the applicant had not worked because of her health condition, but later on she had volunteered to work in order to earn at least some money to buy vitamins and some food. The applicant earned between HRK 300 and 400 per month, HRK 100 of which she was obliged to save. She worked as a seamstress. She was allowed one hour's rest in her bed per day. The bedrooms were locked for the rest of the day. If she needed more rest she had to seek the doctor's permission each time. The applicant found it almost unbearable not to be able to stay in her bed for longer periods during the day since she suffered from tiredness associated with hepatitis C.
21. Although a low-fat diet for her liver disease had been prescribed, the applicant was served food cooked in pig fat. In general the food served to the inmates was insufficient and of poor quality. The bread was often stale and the food had often gone off. Breakfast often consisted of a spoon of bare pig fat.
22. She had seen a doctor once, on 21 February 2006. The medical documentation stated only that the test for hepatitis C was positive and that her viremia was 2.556.220 units/ml of serum. Apart from that, the applicant had not been sent for any other medical check-ups despite having a serious disease which required regular tests and check-ups. Since her arrival at Požega Penitentiary the applicant had not been seen by a hepatologist. She stated that she had not asked to be sent to the prison hospital because the conditions there were even worse than in Požega Penitentiary.
23. All letters sent and received by the inmates were subject to censorship. On several occasions the applicant was told to shorten her letters addressed to her family and not to write about the conditions in the prison. Mail was received with up to twenty days' delay. Mail sent without a request for acknowledgment of receipt often did not reach its destination at all. The inmates had to bear all the postage costs. All telephone calls were screened. The inmates apparently had to bear the costs of the telephone calls they made. The applicant stated that she had not been informed that she was entitled to any visits.
24. According to the Government, the penitentiary had been built in 1915 and had been adapted to the life and accommodation of inmates so as to comply with the conditions set out in the relevant legislation. It was able to accommodate 157 inmates, yet on 5 October 2006 there had been 72 inmates. Each section comprised bedrooms, sanitary premises, a living room, a tea-kitchen, a smoking area, an area for leisure activities, a library with computer equipment and premises for religious worship. The inmates were allowed to use the toilet and other sanitary facilities at any time and for an unlimited period. Each living room was equipped with a television set and a DVD or video recorder. Inmates were allowed to watch television until 11 p.m. on working days and until midnight on Saturdays and Sundays.
25. As to the applicant's personal circumstances, the Government submitted that after her initial one-week stay at the Reception Unit, she had been placed in the high-security unit and assigned to a non-working group on account of her health condition. The applicant had been qualified as having minor adaptability problems as most of the time she had been without any obvious occupation, just listening to music. Occasionally she had got into arguments with other inmates. She had lacked the motivation for more active participation in her individual programme, remaining passive and inert, with no insight into her own behaviour and uncritical in respect of her criminal conviction. However, with time the applicant's attitude had altered for the better. She had expressed a higher level of motivation for completing her daily duties and had satisfactorily participated in her counselling sessions, distancing herself from negative events in the section, and concentrating on herself. She had also expressed a wish to work and, as of 23 November 2005, had been working in the laundry service where she had been given less demanding tasks.
26. As of 1 June 2006 the applicant had been labelled “successful”, which had resulted in her removal to a semi-open section from 2 August 2006. Ever since then she had benefited from the following privileges: unsupervised use of telephone in her free time; unlimited correspondence at her own expense; the right to receive a package once a month and during public holidays; an additional package once every two months; the right to supervised one-hour visits twice a month and during public holidays; and an unsupervised three-hour monthly visit.
27. As to the medical care provided to the applicant, they submitted that one doctor and three nurses were employed in the penitentiary. During her second stay in the penitentiary the applicant had been allowed to stop work until she herself had asked to work again. She was also prescribed a liver and vitamin diet and offered fresh cheese and dairy products. On 4 January 2006 she underwent a qualitative and quantitative test for chronic hepatitis virus and was informed of the results. Since 5 May 2005 she had seen the prison doctor on 43 occasions.
28. As to the applicant's right to respect for her correspondence, they submitted that she had been able to send and receive letters at her own expense without any limitation. During her stay in the high-security section she had had to hand over her letters – opened – while the letters addressed to a legal representative, State authorities and international organisations for the protection of human rights had to be handed over sealed. Packages could be sent any day.
29. It appears that the applicant complained to the prison authorities, the Ministry of Justice and the President of Croatia. She did not submit copies of the letters she had sent to these authorities, stating that she had not made any. However, she submitted a letter of 5 September 2005 sent to her by the Ministry of Justice, Central Prison Administration, the relevant part of which read as follows:
“The Ministry of Justice, Central Prison Administration, has received your complaint of 17 August 2005 in which you expressed your dissatisfaction with the accommodation arrangements with other inmates, the approach of the prison officials, the health care and the manner of using your free time.”
The applicant's complaints were declared unfounded.
30. Furthermore, the Government submitted a complaint lodged by the applicant in a letter of 28 September 2005, lodged with the Požega County Court judge responsible for the execution of sentences (Županijski sud u Požegi), alleging, inter alia, that she suffered from chronic hepatitis and that, on account of her illness, she was not able to comply with the prison regime. Although the judge held an interview with the applicant on 19 October 2005, he did not adopt a formal decision on her complaints. The interview and subsequent action had concentrated solely on giving advice to the applicant about applying for a retrial (see paragraph 9 above).
31. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides:
“No one shall be subjected to any form of ill-treatment...”
The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) - “the Act”) came into force on 1 July 2001, and the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:
“(1) Inmates shall have the right to complain about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...”
“(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
“(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.
(2) Inmates shall as a general rule be accommodated in separate rooms...
(3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room.
(4) Every room ... must have daylight and artificial light...
(5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.
(6) Inmates shall have drinking water at their disposal at all times.”
“1. The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.”
“3. Inmates shall be served at least three meals daily with a caloric value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.”
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”
“(1) Inmates shall have the right to unlimited correspondence at their own expense.
...
(4) Inmates shall have the right to correspond with their lawyer, the State authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters...”
32. The relevant part of the Report on the Minister of Justice's visit to Požega Penitentiary on 7 April 2006, published on the Ministry of Justice official internet page, reads as follows:
“...Minister of Justice was informed about the situation in the Požega Penitentiary by its director Slavko Orešković. 'Our needs are fairly high as the roof, outer walls and installations are in need of repair as well as the other things, for which we would need about two million kunas' said Orešković.”
33. The relevant part of the Government's Report on the State and Operation of Prisons, Penitentiaries and Correctional Institutions in 2005 submitted to Parliament on 21 December 2006 (Izvješće o stanju i radu kaznionica, zatvora i odgojnih zavoda za 2005. godinu, koji je predsjedniku Hrvatskoga sabora dostavila Vlada Republike Hrvatske, aktom od 21. prosinca 2006. godine) reads as follows:
“... state of repair of the buildings of the Zagreb Prison Hospital and the Požega Women's Penitentiary is highly unsatisfactory as regards the mains installations (gas, water, electricity, canalisation/sewage), construction of buildings (unsafe static, woodwork falling apart, the state of repair of the roof) ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-80953
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SMIRNOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of P1-1;Violation of Art. 13
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1956 and lives in St Petersburg. The applicant is a lawyer; at the material time he was a member of the St Petersburg United Bar Association (Санкт-Петербургская объединенная коллегия адвокатов).
6. On 20 January 1999 the St Petersburg City Prosecutor opened criminal case no. 7806 against Mr Sh., Mr G. and fifteen other persons who were suspected of forming and participating in an organised criminal enterprise and of other serious offences.
7. On 7 March 2000 Mr D., an investigator with the Serious Crimes Department in the prosecutor's office, issued a search warrant which read in its entirety as follows:
“Taking into account that at the [applicant's] place of residence at the address [the applicant's home address] there might be objects and documents that are of interest for the investigation of criminal case [no. 7806], I order a search of the premises at the address [the applicant's home address] where [the applicant] permanently resides and the seizure of objects and documents found during the search.”
8. On the same day a St Petersburg deputy prosecutor approved the search and countersigned the warrant.
9. The Government claimed that the applicant had not been a party to criminal case no. 7806 and had not represented anyone involved. The applicant maintained that he had been a representative of:
(a) Mr S., who had been first a suspect and later a witness in criminal case no. 7806. On 21 February 2000 the applicant had represented Mr S. before the Oktyabrskiy Court of St Petersburg in proceedings concerning a complaint about a decision by the investigator D. The applicant had also been S.'s representative in unrelated civil proceedings on the basis of an authority form of 25 May 1999;
(b) Mr Yu., who had been a defendant in criminal case no. 7806 and whom the applicant had represented from 10 July to 25 December 1998;
(c) Mr B., who had been the victim in a criminal case concerning the murder of his son. Subsequently that case had been joined to criminal case no. 7806. The applicant had represented Mr B. from 11 February to 23 March 2000;
(d) Mr Sh., who had been a defendant in criminal case no. 7806 and whom the applicant had represented before the Court (application no. 29392/02).
10. On 9 March 2000 the investigator D., in the presence of the applicant, assisted by police officers from the Organised Crime District Directorate (РУБОП) and two attesting witnesses (понятые), searched the applicant's flat. According to the record of the search, the applicant was invited to “voluntarily hand over... documents relating to the public company T. and the federal industrial group R.”. The applicant responded that he had no such documents and countersigned under that statement.
11. The investigator found and seized over twenty documents which the applicant declared to be his own and the central unit of the applicant's computer. According to the record of the search, the applicant had no complaints about the way the search was carried out, yet he objected to the seizure of the central unit because it contained two hard disks and was worth 1,000 United States dollars. The seized documents included, in particular, Mr S.'s power of attorney of 25 May 1999 and extracts of a memorandum in Mr B.'s case.
12. On the same date the investigator D. held a formal interview with the applicant in connection with criminal case no. 7806.
13. On 17 March 2000 the investigator L. issued an order for the attachment of the documents seized at the applicant's flat and the central unit of his computer as “physical evidence” in criminal case no. 7806.
14. The applicant complained to a court. He sought to have the search and seizure of the documents declared unlawful. He claimed, in particular, that the central unit of the computer, his personal notebook and his clients' files and records were not related to the criminal case and could not be attached as evidence because the seizure had impaired his clients' defence rights.
15. On 19 April 2000 the Oktyabrskiy Court of the Admiralteyskiy District of St Petersburg heard the applicant's complaint. The court found that the search had been approved and carried out in accordance with the applicable provisions of the domestic law and had therefore been lawful. As to the attachment of the computer, the court ruled as follows:
“...the purpose of the search was to find objects and documents in connection with a criminal case. During the search a number of documents and a computer central unit were seized; they were thoroughly examined by the investigator, as is evident from the record of the examination of the seized items and printouts of the files contained in the central unit.
Accordingly, the above shows that the aim of the search has been achieved; however, the order to attach the seized objects and documents as evidence in the criminal case amounts to the forfeiture of the [applicant's] property which was taken from him and never returned, whereas [the applicant] was neither a suspect nor a defendant in the criminal case and was interviewed as a witness.
Under such circumstances, the constitutional rights of the applicant, who was deprived of his property, were violated. Having achieved the purpose of the search and recorded the results received, the investigator, without any valid and lawful grounds, declared [the applicant's property] to be physical evidence...”
16. The District Court ordered that the applicant's documents, his notebook and the central unit be returned to him.
17. On 25 May 2000 the St Petersburg City Court quashed the judgment of 19 April 2000 and remitted the case for a fresh examination by a differently composed court. The City Court pointed out that the first-instance court had erroneously considered that the order for the attachment of objects as evidence amounted to the forfeiture of the applicant's property.
18. On 6 June 2000 the investigator returned the notebook and certain documents, but not the computer, to the applicant.
19. On 2 August 2000 the applicant brought a civil action against the St Petersburg City Prosecutor's Office and the Ministry of Finance, seeking compensation for the non-pecuniary damage incurred as a result of the seizure of his belongings.
20. On 17 August 2000 the Oktyabrskiy Court of St Petersburg held a new hearing on the applicant's complaint. The court ruled that the search of the applicant's flat had been justified and lawful and that the remainder of the applicant's complaints were not amenable to judicial review.
21. On 12 September 2000 the St Petersburg City Court quashed the judgment of 17 August 2000 and remitted the case for a fresh examination by a differently composed court. The City Court found that the first-instance court had failed to examine, in a sufficiently thorough manner, whether the investigator had had sufficient grounds to search the flat of a person who had not been charged with any criminal offence.
22. On 17 November 2000 the Oktyabrskiy Court of St Petersburg delivered the final judgment on the applicant's complaint. As regards the lawfulness of the search, the court found as follows:
“The search warrant was issued because there were sufficient reasons [to believe] that [at the applicant's home address] where [the applicant] lived there could be objects and documents that could be used as evidence in connection with one of the counts in criminal case no. 7806. This fact was established by the court and confirmed by the materials in the case file, in particular, a statement by the investigator D[.] of 16 November 2000, the decision to bring charges of 22 February 1999, the decision to lodge an application for an extension of detention on remand of 10 July [? - unclear] 2000, letter no. 200409 of 22 September 1998 and other materials; therefore, the court comes to the conclusion that the search in [the applicant's] flat was justified under Article 168 of the RSFSR Code of Criminal Procedure...”
23. The court further established that the search had been carried out in strict compliance with the laws on criminal procedure. As regards the remainder of the applicant's claims, the court decided that it was not competent to examine them, but that it was open to the applicant to complain about the investigator's decisions to a supervising prosecutor.
24. On 19 December 2000 the St Petersburg City Court dismissed an appeal by the applicant. It upheld the District Court's finding that the search at the applicant's flat had been justified and procedurally correct and that the order to attach objects as evidence was not amenable to judicial review because such an avenue of appeal was not provided for in domestic law.
25. The applicant's civil claim for damages has not been examined to date.
26. Article 25 of the Constitution establishes that the home is inviolable. No one may penetrate into the home against the wishes of those who live there unless otherwise provided for in a federal law or a judicial decision.
27. The RSFSR Code of Criminal Procedure, in force at the material time, provided in Article 168 (“Grounds for carrying out a search”) that an investigator could carry out a search to find objects and documents that were of relevance to the case, provided that he had sufficient grounds to believe that such objects and documents could be found in a specific place or on a specific person. The search could be carried out on the basis of a reasoned warrant issued by an investigator and approved by a prosecutor.
28. Searches and seizures were to be carried out in the presence of the person whose premises were being searched or adult members of his family. Two attesting witnesses were to be present as well (Article 169). Any person having no interest in the case could be an attesting witness. Attesting witnesses were required to certify the scope and results of the search, and could make comments which were to be entered into the search record (Article 135).
29. A complaint against the actions of an investigator could be submitted either directly to a prosecutor or through the person against whom the complaint was lodged. In the latter case the person concerned was to forward the complaint to the prosecutor within twenty-four hours, together with his explanations (Article 218). The prosecutor was to examine the complaint within three days and give a reasoned decision to the complainant (Article 219).
30. On 23 March 1999, the Constitutional Court determined that decisions and actions of investigators and prosecutors relating to searches, seizure of property, suspension of proceedings and extension of time-limits for preliminary investigations should be amenable to judicial review on an application by the person whose rights had been violated.
31. Article 83 of the Code of Criminal Procedure defined physical evidence as “any objects that... carried traces of a criminal offence... and any other objects that could be instrumental for detecting a crime, establishing the factual circumstances of a case, identifying perpetrators or rebutting the charges or extenuating punishment”.
32. Physical evidence was to be retained until the conviction had entered into force or the time-limit for appeal had expired. However, it could be returned to the owner before that if such return would not harm ongoing criminal proceedings (Article 85). The court was to order the return of physical evidence to its legal owner in the final decision closing the criminal proceedings (Article 86).
33. Recommendation (2000) 21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:
“Principle I - General principles on the freedom of exercise of the profession of lawyer
... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”
VIOLATED_ARTICLES: 13
8


ITEMID: 001-5893
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: STEFANOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Stefan Donchev Stefanov, is a Bulgarian national, born in 1947 and living in Kazanlak, Bulgaria.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 November 1992 two employees of the Electricity Board, a state-owned company, appeared on the applicant’s doorstep and asked his wife to let them in without giving any precise explanation. The applicant was not at home and his wife refused to let them in.
On 12 November 1992, when the applicant was again absent from home, two other employees of the Electricity Board asked the applicant’s wife to let them in the apartment so that they could check the electricity meter. She allegedly refused and told them that she would call the applicant on the phone. At that moment one of them allegedly pushed the door, they went into the apartment and checked the electricity meter in the presence of the applicant’s wife.
On the following day, the applicant accompanied by Mr D., a friend of his, went to see the manager of the Kazanlak Electricity Board. As soon as they entered his office the manager allegedly started calling the applicant “a thief” and “a trouble-maker”.
Upon the applicant’s complaint, on an unspecified date he received a letter by which he was informed that on 19 January 1993 the Kazanlak District Public Prosecutor’s Office had refused to open criminal proceedings against the manager and the two employees of the Electricity Board.
The applicant appealed. On 3 September 1993 the Kazanlak Regional Public Prosecutor’s Office instructed the lower prosecutors to prepare a reasoned decision regarding its refusal to investigate into the matter and to serve it to the applicant.
It appears that on an unspecified date the District Public Prosecutor prepared a decision stating that the two employees of the Electricity Board who had entered the applicant’s apartment had been authorised to do so under Section 68 of the Rules Implementing the Law on the Electricity Supply in order to check on the applicant’s electricity meter. Moreover, according to the available evidence they had been allowed to enter the applicant’s apartment by his wife. The prosecution authorities also dismissed the applicant’s complaint for slander on the ground that there was no evidence that the alleged offence was made out. The applicant has not provided a copy of the decision.
On 12 November 1993 the Regional Public Prosecutor quashed the lower prosecution authorities’ decision and instructed them to investigate the matters in view of the applicant’s statement that the employees had entered the apartment without his wife’s permission. The decision also noted, in respect of the applicant’s other grievance - concerning the alleged slander -that the manager had denied having used offensive words.
On 12 December 1994 the District Public Prosecutor terminated the criminal proceedings against the manager, holding that the alleged offence of slander had not been made out since the Electricity Board found that the applicant had stolen electricity. It appears that administrative proceedings in that respect had been instituted against the applicant. He has not provided further details in this respect.
On 18 January 1995 the applicant complained to the Regional Public Prosecutor through the District Public Prosecutor’s Office that the latter by its decision of 12 December 1994 had only dealt with the slander complaint and had not examined his complaint regarding the inviolability of his home.
On 13 April 1995 the applicant was heard by the District Public Prosecutor. On 18 July 1995 he found that the two employees of the Electricity Board had only performed their duties when they had entered the applicant’s home, as their sole purpose had been to check the electricity meter.
On 4 August 1995 the applicant appealed against the above decision to the Regional Public Prosecutor. On 12 August 1996 and 25 February 1997 the applicant complained to the Chief Public Prosecutor about the inactivity of the lower prosecutors.
On 7 May 1997 the Regional Public Prosecutor informed the Chief Public Prosecutor and the applicant that on 11 April 1996 the Regional Public Prosecutor had upheld the District Public Prosecutor’s decision which had thereby become final.
On 22 May 1997 the applicant complained to the Chief Public Prosecutor that he had never been informed of, or served with, the decisions of 18 July 1995 and 11 April 1996. He requested that the investigation proceedings be re-opened.
On 24 June 1997 the Chief Public Prosecutor rejected the applicant’s complaint as it found that copies of the relevant decisions had been sent to him by mail.
On 29 September and 6 October 1997 the applicant complained to the Chief Public Prosecutor that he had never received the Regional Public Prosecutor’s decision of 11 April 1996. He further complained that the lower prosecution authorities had never examined his complaint regarding the forced entry in his home by the two employees of the Electricity Board and that the prosecution had disregarded the statement of Mr D. who had confirmed that he had been called “a thief” and “a trouble-maker” by the manager.
On 27 October 1997 the applicant’s appeal was rejected. The Chief Public Prosecutor found that the check carried out by the employees of the Electricity Board had been lawful and justified as the applicant’s electricity meter had been tampered with. Moreover, they had been allowed to enter the applicant’s apartment by his wife. In respect of the applicant’s allegations about being slandered, the prosecutor found that the manager’s statement had not been intended to humiliate the applicant, and that therefore the alleged offence had not been made out.
On several occasions, the applicant complained to the Chief Public Prosecutor about the termination of the investigation proceedings.
On 5 November 1997 the Chief Public Prosecutor rejected the applicant’s appeals on the ground that there was no evidence that the privacy of his home had been violated by the Electricity Board employees or that the offence of slander was made out.
Article 148, as applicable at the material time, provides that an official who has committed slander against another person in the performance of his official duties shall be sentenced to up to two years’ imprisonment.
Article 170, as applicable at the material time, provides that a person who has entered the home of another by use of force shall be sentenced to up to one-year imprisonment or six-month pro bono work.
Rule 68 as applicable at the material time, provides that the authorised controllers of the Electricity Board may enter consumers apartments in their presence in order to check on the electricity meters.


ITEMID: 001-95252
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LACEN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Ms Silva Marija Lačen, is a Slovenian national who was born in 1944 and lives in Ptuj. She was represented before the Court by Mr B. Resnik and Mr T. Alič, lawyers practising in Ptuj. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. On 6 December 1993 the applicant, a teacher, was injured at work while accompanying a group of schoolchildren on a skiing excursion to the Pohorje mountain plateau.
2. On 27 June 1994 she submitted a claim to the Z.M. insurance company (“the insurance company”), with which her employer had taken out liability insurance, for payment of compensation for non-pecuniary damage. The insurance company refused the payment.
3. On 8 December 1994 the applicant instituted compensation proceedings in the Maribor Basic Court, Ptuj Unit (Temeljno sodišče v Mariboru, Enota na Ptuju), claiming a total amount of 4,700,000 Slovenian tolars (SIT – approximately 55,230 euros (EUR)) for the non-pecuniary damage sustained, and default interest with effect from the date of the judgment.
4. On 1 January 1995 the Ptuj District Court (Okrožno sodišče na Ptuju) gained jurisdiction in the present case further to the reform of the Slovenian judicial system.
5. On 6 June 1995 a hearing was held in the absence of the defendant, who had been properly summoned, and the applicant gave evidence. At the hearing the applicant reduced the amount of her claim to SIT 2,160,000 (approximately 25,380 EUR) since the insurance did not provide for a higher cover.
6. On 5 September 1995 the first-instance court upheld the applicant’s reduced claim in the amount of SIT 2,160,000. It also awarded the applicant default interest with the effect from the date of its judgment. The insurance company appealed.
7. On 17 May 1996 the Maribor Higher Court (Višje sodišče v Mariboru) upheld the appeal and remitted the case to the first-instance court for re-examination.
8. On 6 February 1997 the court held a hearing, at which the applicant modified her claim and requested the payment of default interest with effect from the day the damage had occurred, more precisely from 12 July 1994, the date of the expiry of the deadline within which the applicant considered that the insurance company was required to fulfil its obligations under the insurance contract.
9. On 24 April 1997 the court allowed the claim in the amount of SIT 2,160,000 for non-pecuniary damage and default interest from the day of the judgment, but rejected the part of the claim concerning the payment of default interest from 12 July 1994 to 24 April 1997. Both parties appealed.
10. On 3 April 1998 the second-instance court dismissed both appeals. The applicant lodged an appeal on points of law with the Supreme Court.
11. On 31 March 1999 the Supreme Court partly allowed the appeal and awarded the applicant default interest also for the period from 5 September 1995 until 24 April 1997, that is, with effect from the date on which the first-instance court had delivered its first judgment in the case. However, it rejected the claim for default interest from 12 July 1994 to 5 September 1995.
In this connection it referred to well-established jurisprudence, which in the case of compensation for non-pecuniary damage did not allow default interest to be calculated from the date on which the damage had occurred, but only from the date of the first-instance court judgment. The court also referred to the Statutory Default and Basic Interest Rate Act, which was in force at the material time and which, in the opinion of the court, formed the current legal basis for this practice. Furthermore, the Supreme Court recapitulated the reasons for adopting such an approach. It argued that it had been adopted since 1987 owing to the unstable economic situation in the country and the high inflation rate and monetary depreciation in particular. In order to preserve the real value of a pecuniary obligation, default interest had also included interest for adjustment of a debt. However, since in the case of claims for compensation for non-pecuniary damage the preservation of the real value of the debt had already been ensured by determining the amount of compensation only on the date of the judgment, the compensation due to the applicant would have been adjusted twice if she were also awarded default interest for this period of time, which in the opinion of the court was unacceptable. Finally, the Supreme Court concluded that the current economic circumstances did not yet warrant a change in the case-law in question (see also “Relevant domestic law and practice” below). The applicant lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče).
12. On 7 May 2001 the Constitutional Court declared the appeal by the applicant inadmissible as being of a fourth-instance nature. It held that the Supreme Court had given a sound and detailed explanation of why the contested jurisprudence had been adopted and followed up to the present day, and that there was no appearance of arbitrariness whatsoever in the Supreme Court’s decision or in the decisions of the lower courts. Since it did not find any violation of human rights, it dismissed the constitutional appeal.
13. On 29 May 2001 the Constitutional Court’s decision was served on the applicant.
14. A description of the relevant domestic law can be found in the Grušovnik v. Slovenia decision (no. 75201/01, 9 June 2009).


ITEMID: 001-89271
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF WILKOWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. By a decision of 25 August 1995 the Social Insurance Authority in Kraków awarded a pension to the applicant. It was to be paid to him for a period beginning on 1 May 1993.
6. Under the applicable provisions of domestic law, the Military Pensions Office was competent to make payments to the applicant, but it failed to do so. In a letter to the Office dated 16 October 1995, the Director of the Social Insurance Authority confirmed the applicant’s entitlement to a military pension.
7. As the Military Pensions Office still refused to make payments, apparently considering that the 1995 decision was not in conformity with the law, the applicant lodged an action with the Kraków Regional Court on 8 November 1995, complaining about the Office’s failure to pay. In its pleadings, the Office argued that the decision had been given in breach of substantive provisions of the applicable social insurance laws. It further indicated that it had informed the Social Insurance Authority about its doubts as to the lawfulness of the decision. Subsequently, the Authority had summoned the applicant to undergo an additional medical examination. As the applicant had failed to comply with the summons, payment of a part of his pension had been stayed with effect from 1 May 1996.
8. By a judgment of 4 March 1999 the court allowed the applicant’s action. It ordered the Military Pensions Office to pay the amount of pension due for the period from 1 May 1993 to 1 May 1996. It noted the decision staying payment of the applicant’s pension. However, it stressed that the decision given on 25 August 1995 had not been appealed against and, as a result, had become final. The Office was therefore bound by it. There were no grounds for not paying the applicant the amounts due for the years 19931996. The court was not competent to reexamine the lawfulness of the 1995 decision in the proceedings before it.
9. The Military Pensions Office appealed. It reiterated that, in its view, the 1995 decision had not been in compliance with the substantive law.
10. On 28 November 2000 the Kraków Court of Appeal upheld the judgment, finding that the first-instance court had correctly found that it had not been empowered to re-examine the lawfulness of the 1995 decision. It further reiterated that this decision had to be complied with by the Office.
11. On 29 November 2000 the applicant reiterated his request to have the amounts due paid to him, but to no avail. Subsequently, the Military Pensions Office lodged a cassation appeal against this judgment with the Supreme Court.
12. On 1 and 22 March 2001 the applicant complained to the Ministry of Defence and to the Prime Minister about the Office’s failure to pay him the pension.
13. By a decision of 16 May 2002 the Supreme Court dismissed the appeal lodged by the Office, finding that it had failed to comply with the relevant procedural requirements.
14. In December 2002 the Military Pensions Office paid the applicant the amounts in arrears together with statutory interest.
15. Under Article 388 § 1 of the Code of Civil Procedure, as applicable at the material time, judgments of the second-instance courts were immediately enforceable.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-4781
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LERCHEGGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian citizen, born in 1952 and living in Stein (Austria).
The applicant previously filed an application with the European Commission of Human Rights (no. 25049/94) concerning his detention on remand. On 26 June 1996 the Commission declared that application inadmissible.
The facts of the present case, as submitted by the applicant, may be summarised as follows.
On 5 August 1992 the Graz Public Prosecutor’s Office (Staatsanwaltschaft) filed a bill of indictment against the applicant charging him with various counts of fraud committed between 23 May 1992 and 29 June 1992 (“indictment no. 1”). Subsequently the applicant was arrested and taken into detention on remand on suspicion of having committed further fraud offences between 20 June and 20 November 1992.
On 17 December 1992 a trial was held by the Graz Regional Court (Landesgericht) with Judge B.G. sitting as a single judge on the charges contained in the indictment of 5 August 1992. Upon request by the public prosecutor, the trial was adjourned since additional charges were not ready for adjudication.
On 29 December 1992 the investigating judge, upon request by the public prosecutor, decided to separate the additional charges - concerning the offences the applicant had allegedly committed after June 1992 - from those contained in indictment no. 1 and to conduct these latter proceedings independently. On the basis of these offences a further bill of indictment was drawn up on 6 July 1993 (“indictment no. 2”).
Meanwhile, on 11 March 1993 the Regional Court, being Judge B.G. sitting as a single judge, convicted the applicant of two counts of fraud set out in indictment no. 1 and sentenced him to four months’ imprisonment.
On 25 August 1993 the president of the Graz Regional Court rejected the applicant’s motion of 13 August 1993 challenging Judge B.G. for bias. The president noted that the applicant had accused this judge of suppression of evidence, manipulation of proceedings, defamation and intimidation. The president found that the applicant’s submissions were polemical and unsubstantiated. As regards the applicant’s reference to procedural measures, such as the obtaining of files from parallel proceedings, or making enquiries with certain banks and insurance companies whether persons employed there and named as witnesses had information on the subject of the criminal proceedings, such preparatory measures did not indicate a lack of impartiality on the part of a judge.
On 26 August 1993 the trial concerning indictment no. 2 commenced before a Chamber of the Graz Regional Court, presided by Judge B.G. The applicant, assisted by an ex-officio defence counsel, filed numerous requests for the taking of further evidence. The Court granted this request and, in view of the complexity of the investigations, decided to remit the case to the investigating judge.
On 25 October 1993 the Graz Public Prosecutor’s Office filed a third bill of indictment against the applicant charging him with a further count of fraud and two counts of fraudulent conversion (“indictment no. 3”).
On 27 December 1993 the applicant challenged all judges of the Graz Regional Court for bias. This motion was dismissed by the Graz Court of Appeal (Oberlandesgericht) on 31 January 1994. The Court of Appeal noted the applicant’s allegations that the investigating judge had manipulated evidence, that the psychiatric court expert had drawn up an erroneous report, that witnesses heard had given false testimony and that the public prosecutor’s office had refused to institute criminal proceedings against the investigating judge, the court expert and the witnesses. The Court of Appeal found that the applicant’s allegations concerned single members of the court and were not sufficient to cast doubt on the impartiality of all members of the court. Whether or not single members of the Regional Court were biased was a matter which the president of that court had to decide, should the applicant file such motions with him.
On 10 February 1994 the trial against the applicant before the Regional Court resumed. At the beginning the public prosecutor again read out indictment no. 2, extending the charges to indictment no. 3. The applicant, assisted by defence counsel, did not oppose this extension. However, he challenged the psychiatric court expert for bias and stated that he had in the meantime laid a criminal information against the expert for defamation. He also challenged the presiding judge for bias. The court rejected both motions. Subsequently the applicant was questioned on the charges against him and several witnesses were heard. As regards the charges contained in the indictment of 25 October 1993, two employees of the C. bank were heard as witnesses. The applicant asked the witnesses several questions and explained his version of the events.
At the end of the trial the applicant made numerous further requests for the taking of evidence, which were rejected by the court. The Regional Court found, inter alia, that the applicant himself had admitted receiving 100,000 ATS from the K. bank and that it was therefore unnecessary to obtain the report of an expert in graphology as to whether the signature on the receipt was the applicant’s. As regards a further charge of fraud, the Regional Court found that the witness, A., whom the applicant had requested to be heard, was not available as he had meanwhile emigrated to South Africa.
On the same day the Court convicted the applicant on eight counts of fraud, fraudulent conversion and deceit, and acquitted him of further charges of fraud and defamation. It sentenced him to four and half a years’ imprisonment. The Regional Court found that the applicant was an impostor who usually pretended to be a business consultant or a pilot having substantial income and considerable private means. In reality, however, he had no income and no means and, since his release from prison in May 1992, earned his living from fraudulent acts and transactions.
As to a count of deceit, the Court found that the applicant had approached a Hungarian airline and had pretended to be the managing director of a company and a member of the Diet of Styria wishing to establish, in co-operation with them, a regular flight connection between Graz and Budapest. However, the company named by the applicant did not exist. In order to reassure his Hungarian business partners, the applicant had shown a falsified paper, allegedly established by an Austrian bank, according to which he had paid 25 million ATS for the foundation of a joint venture between his company and the Hungarian one. Expecting future co-operation, the Hungarian company had incurred expenses and thus suffered prejudice.
As to the assessment of evidence, the court noted that in the first hearing on 26 August 1993 the applicant had requested the taking of further evidence which had been so extensive that the case had to be remitted to the investigating judge. The result of the taking of evidence had not been in the applicant’s favour. Witnesses named by the applicant did not know him; others confirmed the accusations against him. As regards the count of fraud to the detriment of the K. bank, the applicant’s defence that the amount paid to him by the K. bank had been commission for services rendered, and not a loan granted to him, was implausible as he could not name any service for which he could have charged such commission.
On 3 May 1994 the applicant filed a plea of nullity and an appeal against sentence with the Supreme Court (Oberster Gerichtshof). He complained, inter alia, that the indictment of 25 October 1993 had not been served on him prior to the trial on 10 February 1994, and that his right to prepare his defence had therefore been infringed. He further complained that the Regional Court had failed to take the evidence requested by him, and that his motion challenging the presiding judge for bias had been rejected.
On 7 September 1994 the Supreme Court examined the plea of nullity. It quashed the applicant’s conviction and sentence regarding one of the counts of fraud which involved car rentals, as it found that the Regional Court should have made further efforts to obtain the evidence sought by the applicant. It confirmed the other convictions. As a result of quashing one of the convictions the whole sentence had to be re-examined.
As to the complaint of a failure to serve indictment no. 3 prior to the trial on 10 February 1994, the Supreme Court acknowledged its veracity. However, the public prosecutor had read out the contents of this indictment at the beginning of the trial and had thereby brought the charges mentioned therein to the notice of the applicant. The applicant had been questioned in detail by the investigating judge on these charges and had therefore been familiar with them beforehand. Moreover, the applicant had failed to show in what way the inclusion of these offences concerning facts he had known for a considerable time would have hindered his defence.
As regards the applicant’s complaint that the Regional Court had failed to take certain evidence requested by him, the Supreme Court found that the Regional Court had in general acted correctly in rejecting these requests, giving detailed explanations. However it did not accept the Regional Court’s decision regarding witness A. In the Supreme Court’s view, the Regional Court should have tried to obtain this witness’ new address in South Africa, and summoned or heard him on letters rogatory, before concluding that he was unavailable.
As regards the applicant’s submissions that the Austrian courts lacked jurisdiction concerning the count of deceit to the detriment of the Hungarian airline, the Supreme Court found that the Austrian courts were competent since the applicant had also acted in Austria.
On 30 December 1994 the Regional Court, upon a request by the public prosecutor’s office, discontinued the criminal proceedings concerning the charge quashed by the Supreme Court.
On 11 January 1995 the Regional Court, after an oral hearing, sentenced the applicant to four years’ imprisonment.
On 26 April 1995 the Supreme Court rejected the applicant’s further plea of nullity.
On 21 June 1995 the Graz Court of Appeal dismissed the applicant’s appeal against sentence.


ITEMID: 001-102848
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SIMONČIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicants were born in 1956 and 1982 and live in Maribor.
6. On 10 March 1997 the applicants instituted civil proceedings before the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 8,202.697 Slovenian tolars (SIT, approximately 34,000 euros) for the death of a family member in a car accident.
7. Between 25 August 1997 and 6 March 2000 the applicants lodged fourteen preliminary written submissions and requests that a date be set for a hearing.
8. On 7 April 2000 a hearing was held and the first-instance court delivered a partial judgement. All three defending parties appealed.
9. On 27 September 2001 the Celje Higher Court (Višje sodišče v Celju) delivered a judgment upholding the appeal in part. An appeal on points of law was lodged against the rejected part of the appeal by one of the defending parties.
10. On 16 December 2004 the Supreme Court (Vrhovno sodišče) rejected the appeal on points of law and the proceedings continued before the first-instance court.
11. On 19 September 2005 the Celje District Court delivered a judgment upholding the applicants' claim in part. An appeal was lodged.
12. On 7 February 2007 the Celje Higher Court issued a judgment upholding the appeal in part. An appeal on points of law was lodged.
13. On 7 June 2007 the Supreme Court upheld the appeal on points of law in part and changed the second-instance judgment. The judgment was served on the applicants on 29 June 2007.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1