ITEMID: 001-70930
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WIESZCZEK AND STOWARZYSZENIE MIESZKANCOW v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, Ms Barbara Wieszczek, a Polish national, is also a statutory representative of the second applicant, an Association of Inhabitants of Municipal Housing (Stowarzyszenie Mieszkańców Domów Komunalnych) with headquarters in Stalowa Wola. She also represents the second applicant before the Court.
At a meeting held on 8 September 2002 the applicant association distributed among its members 90 copies of an election leaflet of which it had printed 100 copies. The leaflet exhorted the members of the association to vote in the municipal elections scheduled for October 2002. It was further stressed that no votes should be cast in favour of these representatives of the local parties who had been using their position in various municipal authorities to enrich themselves by being involved in dubious business deals, to the detriment of the public interest and municipal finances.
In this context name of one of the local councillors, J.P., who also was a candidate to the council in the coming elections, was mentioned. It was alleged that she had, contrary to applicable laws regulating the status of local councillors, been combining her function of councillor with a paid post on the governing board of one of public companies owned by the municipality, obtaining a “nice salary” (“pensyjka”).
Subsequently J.P. instituted proceedings on the basis of the 1998 Act on Elections to Municipality, District Councils and Regional Assemblies. This Act made it possible for the election candidates to institute proceedings in which to claim that untrue information published about them during the election campaign be rectified and that apologies be published (see Relevant domestic law). The plaintiff argued that she had indeed been a member of the governing board of one company owned by the municipality, but only from June 1997 until December 1997, before she had become a councillor. Afterwards, she had stepped down. As it transpired from the leaflet concerned that she remained on the board, contrary to the applicable anti-corruption provisions of the 1998 Local Government (County) Act, the leaflet was disseminating false information, detrimental to her reputation and to her prospects of being elected.
On 19 September 2002 the Tarnobrzeg Regional Court held a hearing during which it questioned the parties. It had also regard to the evidence submitted by the plaintiff, including a letter of the Municipal Office dated 16 September 2002, from which it transpired that J.P. had been on the board of M.K.Z. company owned by the Stalowa Wola Municipality from 4 June to 29 December 1997. It further took evidence from the documents of the company, from which it transpired that J.P. had ceased to be on its governing board on that date.
On the same day the court gave a ruling, in which it ordered the applicant association and the applicant to cease dissemination of information concerning J.P.’s alleged involvement in the governing board of that company. It also ordered forfeiture of the remaining copies of the leaflet, ordered the applicant association to publish apologies in a local newspaper and to pay the plaintiff’s costs in the amount of PLN 2,045. The court dismissed the plaintiff’s request that the association be ordered to pay PLN 5,000 to the local children’s home.
The court established that it was not in dispute that the leaflet had been authored and distributed by the bodies of the applicant association and that it contained an allegation that J.P. had at the time of its distribution been a member of the governing board of M.Z.K. company, owned by the municipality of Stalowa Wola. The court noted that if this had been true, it would have been in breach of the anticorruption provisions of the 1998 Local Government (County) Act.
Having regard to the documents of the company and to the letter of the Municipal Office of Stalowa Wola submitted by J.P., the court found that it indeed had been the case, but only from June until December 1997. On 29 December 1997 she had ceased to serve on the board, Hence, the allegations that she retained this post afterwards and continued to receive a salary were untrue. Therefore, under Article 72 of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies, this information had to be rectified. Consequently, the court ordered that the remaining copies of the leaflet should be forfeited and that the applicant association should publish in a local newspaper apologies for disseminating untrue information during the election campaign.
As for the plaintiff’s demand of payment of PLN 5,000 by the association, the court found that such payment would constitute a serious blow to its finances, which in any event were in a quite precarious position, given the relative newness of the association. The association had had no time in which to find any serious source of income, other than the membership fees. The court further observed that if it had ordered the association to make this payment, this might seriously impair its ability to act and also constitute an interference in the democratic process of election, unduly improving the plaintiff’s chances to be elected.
The court further noted that such an order would not serve any useful purpose for the protection of the plaintiff’s interests and reputation, which were sufficiently ensured by the forfeiture of the remaining copies of the leaflet and by the order to publish apologies by the association.
The applicant association appealed, arguing essentially that in the light of document it had at its disposal, the information contained in the leaflet was true and that the judgment was generally wrong.
On 8 October 2002 the Rzeszów Court of Appeal dismissed the appeal, considering that the findings of fact made by the lower court that J.P. had ceased to be on the governing board of the company in 1997 were correct. The use of the present tense in the impugned leaflet clearly suggested that, in contravention of laws governing the status and obligations of municipal councillors, she still remained on the board and had been obtaining emoluments for her work. This was obviously untrue, and therefore the first-instance judgment was correct.
Article 72 of the Law of 16 July 1998 on Elections to Municipality, District Councils and Regional Assemblies provided, in so far as relevant:
“§ 1. If posters, slogans, leaflets, statements or other forms of propaganda and campaigning contain untrue data and information, a candidate standing for local election or a representative of an electoral committee has the right to make an application asking the Regional Court to:
1) order the confiscation of such materials,
2) issue an injunction restraining [the defendant] from publishing such data and information,
3) order rectification of the information,
4) order [the defendant] to apologise to the aggrieved party,
5) order [the defendant] to pay to a charity up to PLN 10,000,
6) order [the defendant] to pay to the claimant up to PLN 10,000 in damages.
§ 2. The Regional Court, sitting as a single judge, shall examine the application referred to in § 1 within 24 hours in [civil] non-contentious proceedings. [...]. The court shall serve on the interested party referred to in § 1, the relevant regional electoral commissioner and the person obligated to execute the court’s decision, without undue delay, a decision terminating the proceedings in the case.
§ 3. The decision of the Regional Court may be appealed to the Court of Appeal within 24 hours from the moment it was pronounced. The Court of Appeal, sitting as a panel of three judges, shall examine the appeal in [civil] non-contentious proceedings, according to the same procedure and within the time-limit referred to in § 2. No appeal shall lie against the decision of the Court of Appeal and such decision shall be enforceable with immediate effect.”


ITEMID: 001-109530
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MANASCURTA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Ion Mânăscurtă, is a Moldovan national who was born in 1959 and lives in Talmaza. He was represented before the Court by Mr Grigore Botezat, a lawyer practising in Ştefan-Vodă. The Government was represented by their Agent, Mr Vladimir Grosu.
2. The facts of the case may be summarised as follows.
3. The applicant, a farmer, registered with the Talmaza local council a private company, set up to operate a sheep farm, which the applicant subsequently acquired. The plot of land next to the farm, of a total surface of 15 hectares, was used by L.C. under the terms of a 20-year lease contract which he had signed with the local council on 30 January 2003. On 12 August 2003, the applicant agreed with L.C. that he would replace the latter in the lease contract with the local council. The applicant intended to use the plot of land as a pasture for his farm.
4. On 28 May 2006, the local council adopted a decision annulling the lease contract of 30 January 2003 and its own decision of 18 May 2006.
5. The applicant filed a court action against the local council, seeking an order obliging the latter to annul the decision adopted on 28 May 2006.
6. On 11 December 2006, the Ştefan-Vodă District Court found in the applicant’s favour and ordered the local council to mark the boundaries of the plot of land of 15 hectares used by the applicant under the terms of the lease contract and to refrain from any measures which could prevent the applicant from using it, and to issue the applicant with the documents necessary for carrying out the farm’s reconstruction. The decision was upheld on appeal by the Bender Court of Appeal on 16 January 2007. Despite attempts by the applicant to obtain the enforcement of the final judgment in his favour, it has not been enforced to date.
7. On 28 July 2009 the Court delivered the Olaru and others pilot judgment (see Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found, inter alia, that the problem of non-enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “systemic problem”. The Court ordered, inter alia, that the respondent State set up an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments (see Olaru and others, cited above, § 58 and point 4 of the operative part).
8. On 20 September 2011 the Moldovan Government informed the Court that on 1 July 2011 a new law (Law no. 87) entered into force, instituting a remedy against the problem of non-enforcement of final domestic judgments and against the problem of unreasonable length of proceedings.
9. On 29 September 2011 the Registry of the Court informed the applicant and all other applicants in the same position of the new remedy, asking whether they intended to make use of it within the six-month time-limit set by Law No. 87 (see paragraph 11 below). The applicants’ attention was drawn to the fact that according to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible.
10. By a letter of 6 November 2011 the applicant informed the Court that he intended to make use of the new remedy and that he had already initiated proceedings in accordance with Law no. 87. He did not dispute the effectiveness of the new remedy.
11. According to Law no. 87 anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation. Under section 1 of the law, the provisions of the law should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law. Section 4 of the law states that the courts are obliged to deal with applications lodged under the law within three months. Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant. Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants. Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint.
12. At the same time the Code of Civil Procedure was modified in such a manner as to reduce the number of instances of appeal from two to one and to waive court fees for such proceedings.


ITEMID: 001-57710
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF TOTH v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Preliminary objection rejected (six month period);Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 8. Mr Stefan Toth, an Austrian national residing in Graz, works washing dishes in a restaurant.
9. On 1 June 1984 the Salzburg Regional Court (Landesgericht) issued a warrant for his arrest (Haftbefehl). He was suspected of aggravated fraud (schwerer Betrug), aided and abetted by a certain J. M.; he had in particular made out a number of bad cheques drawn on bank accounts opened by J. M., then cashed in different banks. The warrant stated that there was a risk of his absconding (Fluchtgefahr), because his address was unknown, and of repetition of the offences (Wiederholungsgefahr), as Mr Toth had several previous convictions.
10. On 24 August 1984 the same court issued an international arrest warrant (Steckbrief) concerning the applicant. It referred to eleven cases of attempted fraud or aggravated fraud involving more than one million Austrian schillings and affecting financial establishments of various towns in the Federal Republic of Germany and Austria. It mentioned a certain B. as the third co-accused.
11. On 11 January 1985 at 11 p.m. the police arrested Mr Toth at the airport of Graz, the town where he was living, although not duly registered there as a resident; he had been waiting for a friend. He was then taken to Feldkirchen.
12. An investigating judge of the Graz Regional Court interviewed the applicant the following day at 10.40 a.m. According to the document entitled "Examination of the accused" (Vernehmung des Beschuldigten), the judge informed him that the arrest warrants were based on suspicion of several offences of aggravated fraud and that the police custody (Verwahrungshaft) was intended to guard against the risk of his absconding and the risk of collusion (Verabredungsgefahr).
On 17 January 1985 Mr Toth was transferred to Vienna and then on 22 January to Salzburg.
13. On 23 January 1985 he was examined by an investigating judge of the Salzburg Regional Court. He signed the document "Examination of the accused", which indicated that a preliminary investigation (vorläufige Untersuchung) had been opened and that he had been placed in detention on remand because of the risk of his absconding and that of repetition of the offences (Article 180 paras. 1 and 2 of the Code of Criminal Procedure).
14. The same day the Regional Court ordered his detention pending trial, for the reasons invoked by the investigating judge. Previously Mr Toth had tried to evade prosecution by changing his place of residence so that if released he was liable to evade trial or to go into hiding to forestall his future conviction. In addition, he was not socially integrated and was unemployed, which gave grounds for fearing new offences, likely to have serious consequences, of the type of those which had already brought him two convictions.
15. The investigating judge questioned Mr Toth on 25, 28, 29, 30 and 31 January and on 1 February.
16. On 7 February the Swiss authorities indicated by telex message that they were contemplating asking Austria to prosecute the applicant for offences committed in Switzerland.
17. On 15 February 1985 Mr Toth applied for his release. He maintained that he could provide proof both of a permanent place of residence at his sister’s home and of prospects of employment.
18. The same day the investigating judge took cognisance of a further complaint. On 19 February he ordered the police to make inquiries in connection with the offences that the applicant had allegedly committed in Switzerland and asked the Vienna Regional Criminal Court to send him a file. The Government did not provide any details on these various points.
19. On 27 February the Ratskammer (Review Chamber) of the Regional Court of Salzburg dismissed his application for release, following a hearing at which the applicant appeared with his lawyer. It reiterated the grounds given in the decision of 23 January and added that other measures less stringent than detention would not be sufficient to attain the aims pursued thereby.
20. On 1 March 1985 the file was again returned to the investigating judge. Between 6 and 19 March it was handed over to the Salzburg public prosecutor’s office and to the Linz Court of Appeal in connection with the extension of the detention on remand of the co-accused J. M., before being sent back to the Salzburg court.
The investigating judge, who was away on leave from 20 March to 15 April, questioned Mr Toth on 30 April about J. M. On 15 May he requested documents from two Munich banks.
21. From 26 April to 1 May the applicant served a prison sentence, imposed by the Salzburg District Court for a customs offence.
22. On an application by the investigating judge, made on 7 June 1985, the Linz Court of Appeal (Oberlandesgericht) decided on 19 June 1985, in private session, to extend the maximum duration of the detention on remand to eight months from 23 January 1985. The aggravated fraud of which the accused was strongly suspected had resulted in a loss of more than 2,000,000 Austrian schillings. The file had become exceptionally voluminous on account of the large number of facts and of the contradictions in Mr Toth’s statements and those of his co-accused. The most recent findings of the investigation, and the scope and complexity of the case, made it necessary to leave the prosecuting authorities sufficient time to prepare the indictment and, if necessary, the subsequent proceedings in the assize court. There were grounds for fearing that the accused would evade the trial and commit new offences. Finally, less stringent measures than detention were held to be inadequate.
23. On 24 June the investigating judge wrote again to one of the two Munich banks.
24. On 9 July 1985 Mr Toth challenged the decision of the Court of Appeal in the Supreme Court (Oberster Gerichtshof), arguing that he had a permanent place of residence in Austria, prospects of employment and that he was greatly attached to his girlfriend. On 16 July he insisted that his file be forwarded, although the judge had pointed out to him the futility of this step. On 22 August 1985 the Supreme Court found the appeal inadmissible. The file was returned to the investigating judge on 11 September 1985.
25. On 12 September 1985 Mr Toth asked the Salzburg Regional Court to order his release as the period of eight months set by the Linz Court of Appeal had expired. The European Court is not aware of how this application was dealt with.
26. On 18 September 1985 the Linz Court of Appeal, sitting in private session, extended the maximum duration of the detention on remand to eleven months, as it had been requested to do by the investigating judge on 9 September. On the matter of the danger of the applicant’s absconding and of repetition of the offences, it found that the circumstances had remained unchanged and therefore referred to the grounds of the decisions of 27 February and 19 June 1985. It also considered that the reasons given ruled out other measures less stringent than detention.
27. On 24 September the Salzburg Regional Court extended the investigation to cover a charge of arson in Switzerland. Mr Toth filed an appeal (Beschwerde) against this decision, which was dismissed by the Ratskammer on 2 October 1985, inter alia, because no supporting grounds were submitted.
28. When the investigating judge considered that the preliminary investigation was terminated, he sent the file on 2 October 1985 to the Salzburg public prosecutor’s office (Staatsanwaltschaft). On 31 October that office requested further investigative measures, which were ordered on 7, 15 and 19 November.
On 3 December the file was forwarded to the Linz Court of Appeal for its decision on Mr Toth’s detention.
29. On 26 September 1985 Mr Toth submitted an application for release to the Constitutional Court (Verfassungsgerichtshof), which declared it inadmissible on 28 February 1986.
30. On 11 December 1985 at the request of the investigating judge and the public prosecutor’s office, the Linz Court of Appeal, sitting in private session, extended the maximum duration of the detention to fifteen months. In addition to the reasons given in the previous decisions, it noted that the accused was also suspected of having incited another person to burn down a restaurant in Switzerland, causing damage of 300,000 Swiss francs. It noted further that the investigation was not yet completed because of the amount of the evidence.
31. On 13 December 1985 the applicant again applied for his release. On 20 December the file was transmitted to the Ratskammer of the Salzburg Regional Court, which dismissed the application on 2 January 1986 at the end of a hearing attended by Mr Toth and his lawyer. The investigation, at the stage which it had reached, gave credence to the allegations of fraud and of issuing bad cheques for 2,000,000 Austrian schillings levelled at Mr Toth. As to the risks of his absconding and of repetition of the offences, the position had not changed since the decision of 11 December 1985.
32. The same day the investigating judge questioned the applicant in connection with the statements of S. R., another co-accused who had implicated him, and organised a confrontation between them.
33. On 16 January 1986 Mr Toth challenged the decision of 2 January in the Linz Court of Appeal. That court dismissed the appeal on 22 January in private session, "after hearing the submissions of the principal public prosecutor’s office" ("nach Anhörung der Oberstaatsanwaltschaft"), but without having summoned or heard the accused and his lawyer. It feared that the applicant would abscond and cross the frontier clandestinely; it was immaterial whether it was true, as the applicant claimed, that he did not have identity papers allowing him to go to Germany, that he was banned from entering that country and that he faced prosecution in Switzerland. There was also a risk of repetition of the offences as the applicant had five previous convictions, including a sentence to twenty months’ imprisonment, imposed by the Stuttgart Regional Court, for fraud and forgery. The Court of Appeal did not consider that the duration of the detention was excessive at that stage, having regard to the likely sentence in the event of conviction, and deemed the grounds for the detention sufficiently well-founded to rule out other less stringent measures.
34. The investigating judge questioned the applicant for the last time on 22 January 1986. He then went on leave from 1 to 14 February. On 19 February he wrote to an Austrian bank asking for various documents.
35. By decision of 26 February 1986, the investigating judge concluded the preliminary investigation.
36. On 12 March 1986 the Salzburg public prosecutor’s office indicted Mr Toth for various instances of attempted aggravated fraud and of aggravated fraud, as well as forgery of a "specially protected document" (besonders geschützte Urkunde). According to the indictment, which was seventeen pages long, the applicant had drawn cheques on various banks in Germany, Austria and Switzerland and had instructed B. and J. M. to cash them in other banks in these countries; the resulting loss amounted to 950,000 Austrian schillings for the offences of aggravated fraud, and to 1,250,000 schillings for those of attempted fraud; the accused already had two convictions for fraud and receiving stolen goods and he was facing prosecution in Germany for nineteen offences of cheque fraud. The prosecuting authorities stated that further investigations were envisaged because the applicant was suspected of arson as well as other instances of aggravated fraud.
37. On 19 March 1986 the indictment was communicated to Mr Toth, who challenged it on 4 April, but to no avail. On 11 April the Linz Court of Appeal took the view that the conclusions of the investigation were sufficient to support the charges pending against him; it therefore committed him for trial.
38. The same day, but by a separate decision, the Court of Appeal ruled in private session on a request from the investigating judge of 4 April; it extended to seventeen months the maximum duration of the detention on remand, having regard to the scope and the complexity of the investigation. In its view, no new evidence in Mr Toth’s favour had come to light since 22 January 1986.
39. On 30 April the file was transmitted to the trial court, the Salzburg Regional Court, which, on 23 May, set down the trial for 11 June 1986.
40. On 5 June the applicant’s lawyer indicated that he no longer wished to represent Mr Toth. However, he was urged not to withdraw before 11 June.
41. Mr Toth’s trial opened on the appointed day, but the court adjourned it sine die at the end of the first hearing, for further inquiries to be undertaken, and appointed a lawyer to act for him. The transcript of the hearing ran to 116 pages.
42. On 16 June 1986 the applicant again applied for his release, claiming that he had a permanent place of residence in Austria and confirmation of steady employment.
43. His application was dismissed on 25 June by the Ratskammer of the Salzburg Regional Court, then on 9 July by the Linz Court of Appeal where the file had been sent on 3 July. The two courts gave the same reasons as previously. The second gave its decision in private session, "after hearing the submissions of the principal public prosecutor’s office".
44. On 24 July, ten days after the return of the file, the Salzburg Regional Court sought information from the Vienna Regional Court on the matter of the proposed date for B.’s release. On 29 July it requested a German court to communicate to it a decision, which was received on 18 August.
45. Claiming that he was financially and socially integrated and that he lacked the necessary funds to flee, Mr Toth filed a further application for release on 25 July 1986.
The Ratskammer of the Salzburg Regional Court dismissed it on 30 July and the Linz Court of Appeal on 20 August, the latter "after hearing the submissions of the principal public prosecutor’s office". The two courts reiterated the grounds given in their previous decisions.
46. On 22 September the Regional Court contacted the Hirtenberg detention centre for information concerning the date of B.’s probable release and his address thereafter. On the same day it sent letters rogatory to the Swiss Federal Police Department and to the District Court of Aschaffenburg (Germany) for information in respect of the witness D. On 15 October the Aschaffenburg District Court replied that it did not know D.’s address. On 20 October the Salzburg Regional Court obtained the address by telephoning Frankfurt prison and requested the District Court of that town to question D.
On 25 September the file had been communicated to a court expert, who had lodged his report on J. M. on 8 October.
47. Ruling in private session on 12 November 1986 and giving the same reasons as in its previous decisions, the Ratskammer of the Salzburg Regional Court refused to allow Mr Toth’s application for release of 28 October.
48. On 17 November Mr Toth filed an appeal which was dismissed by the Linz Court of Appeal on 26 November, "after hearing the submissions of the principal public prosecutor’s office". It noted that J. M. had implicated the applicant, who had not succeeded in allaying the suspicions concerning him. For the rest, it reiterated in substance the reasons given in its previous decisions. The file was returned to the Salzburg Regional Court on 1 December.
49. In the meantime, on 12 November, Mr Toth had stated that he wished to dispense with the services of the lawyer appointed to act for him. On 16 December the Bar declared that it saw no reason to appoint another defence lawyer.
50. On 17 November the applicant complained that no date had been set down for the trial hearing. He was informed that the court was waiting for the examination of D. which was to take place on 27 November in the Frankfurt District Court.
On 3 December the latter court communicated to the Austrian authorities the transcript of the examination of D.
51. On 12 and 16 December 1986, the trial court requested the police of Dornbirn and Bregenz to provide it with the addresses of B. and S. R.; on 22 January 1987 it sought information on the former from the headquarters of the Salzburg federal police.
52. On 31 December 1986 Mr Toth once again sought his release. The Ratskammer of the Salzburg Regional Court rejected his application on 21 January 1987.
53. A further application for release was submitted to the Ratskammer of the Salzburg Regional Court on 21 January 1987; it was dismissed on 28 January.
On 18 February the Linz Court of Appeal allowed the appeal which Mr Toth had filed on 3 February. It took the view that nearly twenty-five months’ detention had significantly reduced the risk of the applicant’s absconding and of repetition of the offences and made it possible to impose more lenient measures. It attached several conditions to the release: an undertaking not to evade the trial and not to go into hiding before the conclusion of the trial or to impede the investigation; it imposed an obligation to choose a permanent place of residence in Austria and to communicate it to the court and to report every two days to the police; his identity papers were provisionally confiscated.
The applicant was released on the same day.
54. On 9 July 1987 the Salzburg prosecuting authorities drew up an additional indictment, nine pages long. In it Mr Toth was charged with having, being aided and abetted by S. R., committed other offences of fraud by seeking to cash fraudulently in Germany, Austria and Switzerland bad cheques, which had allegedly caused a loss of approximately 800,000 Austrian schillings. These offences were therefore offences punishable by a term of imprisonment of from one to ten years (Article 147 para. 3 of the Criminal Code).
The applicant appealed against this new indictment, but his appeal was dismissed by the Linz Court of Appeal on 30 September.
55. The same day an application by Mr Toth to the Salzburg Regional Court concerning the conditions imposed on him was allowed, but only in part. He was authorised to report to the police only once a week. The applicant appealed to the Linz Court of Appeal, but his appeal was dismissed on 4 November 1987.
56. On 22 February 1988 the Regional Court set down the trial for 25 and 26 May. On that last date, it found the accused guilty of aggravated fraud and sentenced him to four and a half years’ imprisonment, the pre-trial detention being automatically deducted from the sentence. The text of the judgment comprised sixty-nine pages.
By a judgment of 23 February 1989 the Linz Court of Appeal reduced the sentence to four years. On 6 May 1990 the Salzburg Regional Court stayed enforcement of that sentence.
57. Under Article 180 paras. 1 and 2 of the Code of Criminal Procedure, as amended on 2 March 1983, a person may be held in detention on remand - where there are serious grounds for suspecting him of having committed a criminal offence - if there is a risk of his absconding, of collusion or of repetition of the offences.
58. A risk of absconding may not be presumed if the sentence for which the accused is liable does not exceed five years’ imprisonment, if he leads a normal life and if he has a permanent residence in Austria, unless he has already attempted to evade trial (para. 3).
59. According to Article 193, detention may not last more than two months if it is based only on the danger of collusion, or more than six months if it is based on the other reasons.
The second-instance court may however, if the investigating judge or the prosecuting authorities so request and if the complexity or scope of the investigation makes it necessary, extend the detention up to a maximum of three months in the case of suspected collusion, and one year where the other grounds are relied on, or even two if the sentence risked exceeds five years (paras. 3 and 4). In exercising this power the appellate court sits in private session in the absence of the detainee and his lawyer; it gives the principal public prosecutor’s office the opportunity to make submissions (para. 2).
Detention founded on a reason other than the risk of collusion alone is subject to no time-limit as soon as the trial has begun (para. 5).
60. The accused may lodge an application for release at any time (Article 194 para. 2). Under Articles 194 and 195, such an application is to be examined by the Ratskammer of the Regional Court in a private hearing, in the presence of the accused and his lawyer; in the appeal court - whether on appeal by the detainee or the prosecuting authorities - the oral proceedings are also conducted in private, in the presence of an official from the principal public prosecutor’s office, but without the accused and his lawyer.
Where no such application is lodged, the Ratskammer automatically reviews the detention when it has lasted two months or when three months have elapsed since the last hearing and the accused does not have a lawyer (Article 194 para. 3).
The fact that an indictment has become final or that the date for the opening of the trial has been fixed means that no further review hearings are conducted. Decisions concerning the continuation of the accused’s detention are thereafter taken by the Ratskammer in private session (Article 194 para. 4).
61. Detention on remand comes to an end, at the latest, when the accused begins to serve his sentence, from which the time spent on remand is automatically deducted (Article 38 of the Criminal Code).
62. Article 180 para. 4 of the Code of Criminal Procedure requires that detention on remand be not extended where its aims may be attained by one or more more lenient measures. The main measures envisaged in this respect are the following (Article 180 para. 5): undertaking not to abscond, to hide or to leave the place of residence without the authorisation of the investigating judge; promise not to impede the inquiry; obligation to reside in a specific place or to refrain from frequenting a given locality or from consuming alcoholic beverages; duty to inform the police of changes of address; temporary withdrawal of passport or driving licence; lodging of security; provisional appointment of a probation officer.
Article 190 makes provision for the possibility of release on bail when the offence in question is punishable by a term of imprisonment of not more than ten years and where detention on remand has been ordered to counter the danger of the accused’s absconding.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-68053
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GAYEVSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Viktor Vasilyevich Gayevskiy, is a Ukrainian national, who was born in 1958 and lives in the city of Dnepropetrovsk, Ukraine. The respondent Government were represented by their Agents – Mrs V. Lutkovska, succeeded by Mrs Z. Bortnovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1989 the applicant's employer - the Southern Machinery Construction Factory (hereinafter – the “SMCF”) put the applicant's name on a priority housing list (position no. 336 at the material time) for obtaining a dwelling to which he was entitled according to the relevant law after having been appointed as a “young specialist”. This priority list was designated for persons who were entitled to receive a dwelling without waiting their turn in the general housing list. The applicant was provided with a room in a hostel (where he is currently residing) as temporary accommodation in the meantime.
By a judgment of 18 November 1997, the Krasnogvardeyskiy District Court of Dnepropetrovsk found that the applicant had a right to obtain a dwelling from his employer without waiting his turn (позачергово), and obliged the SMCF to provide him with such accommodation. The court stated in particular:
“Having heard the claimant and the representative of the SMCF, and having examined the case-file, the court considers that the claims of Mr. Gayevskiy are well-founded since, as a young specialist who arrived for work at the enterprise after graduation, he was entitled to receive an individual dwelling without waiting his turn, as indicated in certificate no. 189-1728. However, after his name was put on the priority housing list ... under no. 336, Mr. Gayevskiy [now holds] ... priority ... under no. 86, and the SMCF does not [yet] have the possibility to provide him with a dwelling. Since the applicant continues his labour relations with SMCF, which did not fulfil its obligations to the applicant, the SMCF [must] fulfil its obligation to provide the applicant with a separate dwelling. ...
The court has therefore decided to oblige the SMCF to provide Mr. Gayevskiy with a separate dwelling.”
On 1 July 1998 the State Bailiffs' Service of the Krasnogvardeyskiy District Department of Justice initiated enforcement proceedings on the basis of a writ of execution dated 18 November 1997.
On 2 February 1999, upon the bailiff's request, the judge who had decided the case provided explanations as to the enforcement of the judgment. The judge held that:
“under the [court] decision, the SMCF, where Mr. Gayevskiy has worked and continues working, “is obliged to provide Mr. Gayevskiy with a separate dwelling” ... There were no grounds during the examination of the case, and there are no grounds now, for providing the claimant with a dwelling immediately or ahead of his turn in the housing list...”
On 29 September 1999 the enforcement proceedings were terminated on the ground that the applicant's name had been put on the priority housing list (no. 63 at the material time).
By a judgment of 18 November 1999 the Krasnogvardeyskiy District Court of Dnepropetrovsk found for the applicant and declared the decision of 29 September 1999, terminating the enforcement proceedings, null and void.
On 3 February and 9 November 2000 the Deputy Head of the State Bailiffs' Service of the Krasnogvardeyskiy District of Dnepropetrovsk informed the applicant that he was now no. 33 on the priority housing list.
In March 2004 the applicant informed the Court that he had lodged a claim against the Bailiffs' Service for failure to enforce the judgment of 18 November 1997. The proceedings are pending before the first instance court.
The relevant extracts of the Constitution of Ukraine read as follows:
“Everyone has the right to housing. The State creates conditions that enable every citizen to build, purchase a property, or to rent housing.
Citizens in need of social protection are provided with housing by the State and bodies of local self-government, free of charge or at a price affordable to them, in accordance with the law.
No one shall be forcibly deprived of housing other than on the basis of the law, pursuant to a court decision.”
“Everyone has the right to a standard of living sufficient for himself or herself and his or her family, which includes adequate nutrition, clothing and housing.”
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
Article 46 of the Code provides for categories of persons entitled to a dwelling in an order of priority, including persons appointed to work outside the area of their habitual residence. The Article further stipulates that the persons concerned shall be included in a priority housing list. However, the Code does not set down any time-limits for the allocation of such dwellings.
Paragraph 3 of the Decree provides that the employees sent for permanent work outside the area of their habitual residence shall be provided by their employer with priority accommodation, without having to wait their turn.


ITEMID: 001-81476
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PROVIDE S.R.L. v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Luigi Ferrari Bravo;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 5. The applicant is a company governed by Italian law with its registered office in Brembate di Sopra (Bergamo).
6. On 10 March 1992 the applicant company brought proceedings against M.R. and the I. company in the Alemmo San Salvatore (Bergamo) Magistrate's Court, seeking damages for the harm sustained in a road traffic accident, which the applicant company assessed at 1,495,090 Italian liras ((ITL) – 772.14 euros (EUR)).
7. Preparation of the case for hearing began on 28 April 1992. On 29 September 1992 the applicant company requested an adjournment and on 19 January 1993 it filed pleadings. Of the eight hearings scheduled between 15 June 1993 and 4 October 1995, six involved the examination of witnesses and the parties, one was adjourned at the applicant company's request and the last was adjourned of the court's own motion. On 24 January 1996 the defendants requested an expert inquiry and the Magistrate's Court reserved its decision. By an order made in camera on the same date the court rejected the request. On 20 March and 6 November 1996 the parties made their submissions. On 5 March 1997 judgment was reserved.
8. By judgment of 30 April 1998, the text of which was deposited with the registry on 29 May 1998, the Magistrate's Court upheld the applicant company's claim.
9. On 6 September 2001 the applicant company brought an action in the Venice Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining that the length of the proceedings described above had been excessive and seeking just satisfaction for the non-pecuniary damage sustained.
10. By decision of 29 November 2001, the text of which was deposited with the registry on 27 December 2001, the Court of Appeal found that a reasonable time had been exceeded but dismissed the claim for compensation since the applicant company had failed to prove that it had sustained any damage.
In respect of pecuniary damage, the Court of Appeal observed that the applicant company had not claimed to have sustained any such harm and that, accordingly, no sum could be awarded under that head.
As to non-pecuniary damage, the Court of Appeal asserted that, although legal entities could sustain damage of that nature as a result of unreasonably lengthy proceedings, such damage could exist only where certain types of loss had been incurred and, in order to be quantified, required specific proof which had not been supplied in this case.
The Venice Court of Appeal ordered the applicant company to pay the State ITL 2,450,000 (EUR 1,265.31) for the costs of the proceedings.
11. The applicant company appealed on points of law, contending that once it had been found that a reasonable time had been exceeded, legal entities were not required to adduce proof of damage which clearly gave rise in itself (in re ipsa) to loss.
12. By judgment of 4 February 2003, the text of which was deposited with the registry on 15 April 2003, the Court of Cassation dismissed the appeal and ordered that the costs be shared between the parties.
According to the Court of Cassation, the Pinto Act did not recognise any damage arising in re ipsa but required that proof be provided in accordance with section 2 of the Act. Such an approach, moreover, was consistent with the Court's case-law under Article 41 of the Convention.
13. By letter of 30 January 2003 the applicant company informed the Court of the outcome of the domestic proceedings and requested it to resume the examination of its application.
14. The relevant domestic law and practice are set out in Cocchiarella v. Italy ([GC], no..64886/01, §§ 23-31, ECHR 2006-V).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-97058
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MAGOCH v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1950 and lives in Łódź.
5. On 27 July 1995 the applicant instituted civil proceedings for payment against the Łódź Municipality.
6. On 8 April 1998 the Łódź Regional Court (Sąd Wojewódzki) gave judgment. The court partly allowed the applicant’s claim. The defendant appealed.
7. On 28 September 1998 the Łódź Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment and remitted the case.
8. On 11 August 2005 the Łódź Regional Court (Sąd Okręgowy) dismissed the applicant’s claim against the Łódź Municipality. The applicant appealed.
9. On 22 March 2006 the Łódź Court of Appeal dismissed her appeal. The applicant lodged a cassation appeal against the appellate court’s judgment.
10. On 12 January 2007 the Supreme Court (Sąd Najwyższy) refused to entertain her cassation appeal.
11. On an unspecified date the applicant lodged with the Łódź Court of Appeal a complaint under section 5 of 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”).
12. On 16 September 2005 the Łódź Court of Appeal acknowledged the excessive length of the proceedings before the Łódź Regional Court finding that there had been several periods of unjustified inactivity for which the Łódź Regional Court had been responsible. It referred to the periods between 29 January and 16 April 2004, 24 June and 27 October 2004, 12 January and 18 May 2005 and qualified them as unjustified delays. The court did not examine, however, the period prior to the entry into force of the 2004 Act.
13. The court awarded the applicant 1,000 Polish zlotys (PLN) (approx. 285 euros (EUR)) in just satisfaction.
14. 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 stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95065
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ROTAR v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1951 and lives in Oleksandriya.
5. The State owns 26,1% of the share capital in the company Oleksandriyske Avtotransportne Pidpryyemstvo 13506 (“the company”), which is therefore subject to the moratorium on the forced sale of property of entities in which the State holds no less than 25% of the share capital, barring the attachment and sale of its assets.
6. On 17 March 2004 the Kirovograd Regional Commercial Court started insolvency proceedings against the company.
7. On 31 August 2004 the Oleksandriya Court ordered the company to pay the applicant 7,021.29 Ukrainian hryvnas (UAH) in salary arrears and compensation. The amount represented the salary due to the applicant after deduction of income tax. The judgment became final, but remains only partially enforced, the outstanding debt being UAH 6,114.29.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-69212
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF T.K. AND S.E. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicants were born in 1963 and 1951 respectively. They were shareholders in two limited liability companies. It appears that at least S.E. was also in a management position in those companies. Both companies were in the process of being wound up from 1991.
8. W., a lawyer working for the bank which was the main creditor of the companies, was appointed as the official receiver to control the assets of the companies. Having received a special auditor’s reports about the companies W., on 21 October 1992, requested the police to investigate whether offences had been committed in the companies before they went into liquidation. The police interview of the official receiver began on 9 December 1992 and continued in January 1993. S.E. was questioned by the police for the first time on 25 May 1993. That day he was also arrested and a large number of documents were seized from both the applicants. T.K. was questioned by the police on 27 May 1993.
9. On 12 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) revoked the seizure of the documents, as requested by S.E., as the time-limit of four months had passed since they had been seized and no charges had been brought against the applicants during that time. The decision became a precedent (KKO 1994:83).
10. The applicants were questioned several times in the course of the investigations during the period from May 1993 until 1995. It appears that the police investigations concerning the two companies came to an end in November 1993 and April or May 1995 respectively.
11. S.E. petitioned the Deputy Parliamentary Ombudsman, who in her decision of 28 February 1997 took the view that the pre-trial investigations should have been speedier.
12. The applicants were charged with offences as dishonest debtors. Writs of summons were served upon S.E. on 1 November 1994 and on 11 May 1995 and upon T.K. on 8 May 1995. Three oral hearings were held in the Espoo District Court (käräjäoikeus, tingsrätten) on 16 February 1995, 11 May 1995 and 29 June 1995. S.E. was absent from the first hearing due to a lawful impediment. At the second hearing the complainants requested a deferral which was granted.
13. On 29 June 1995 the District Court ruled inadmissible the charges brought against the applicants, without considering their merits, on the grounds of their being in breach of procedural requirements. The District Court found that the complainants, i.e. the meeting of the debtors, had not requested that charges be brought against the applicants. The mere fact that the official receiver had made a request to that effect was not sufficient, as the practice at the time of the alleged offences required that the decision should be made by the meeting of the debtors. The District Court noted, however, that chapter 39, section 9 (3) of the Criminal Code (rikoslaki, strafflagen), which had entered into force after the commission of the alleged offences, allowed for the official receiver to request a prosecution. The District Court concluded that although the provision was of a procedural nature and as such applicable to offences committed prior to its entry into force, applying the provision in this case would lead to an unfavourable outcome for the applicants. Thus, the District Court decided not to apply the new provision, and accordingly, not to consider the merits of the charges.
14. In July 1995 the public prosecutor, the complainants and S.E. appealed. On 28 November 1996 the Helsinki Court of Appeal (hovioikeus, hovrätten) found that the official receiver had been entitled to request criminal proceedings against the applicants under chapter 39, section 9 (3) of the Criminal Code, as the application of that provision in the instant case neither affected the period of limitation nor subjected the applicants to a stricter criminal liability. The Court of Appeal revoked the District Court’s decision and remitted the case.
15. On 27 January 1997 the applicants requested leave to appeal. On 7 May 1997 the Supreme Court granted them leave to appeal and invited the observations of the other parties. On 29 October 1997 the Supreme Court rejected the applicants’ appeal for substantially the same reasons as those given by the Court of Appeal. The decision became a precedent (KKO 1997:171).
16. On 3 November 1997 the applicants lodged an application for an annulment. Further, they requested on 9 December 1997 that the Supreme Court postpone the consideration of the annulment until the European Court of Human Rights had given judgment and as the Supreme Court on 5 April 2001 had informed them that the case would be decided shortly, they requested again that the application be stayed. However, on 15 November 2001 they withdrew the application for an annulment.
17. Meanwhile, on 11 February 1998 the District Court informed the parties that the case would be restored to its case-list. It was, however, adjourned several times as there were settlement negotiations going on between the applicants and the complainants. The time-limit for submission of observations was extended until 31 August 1998 upon request of the public prosecutor.
18. On 21 October 1998 a contract was signed between the complainants and the applicants, agreeing that they had no claims, either civil or criminal, against each other on the basis of the events mentioned above. According to the Government, the parties reached an agreement on compensation, whereas the applicants denied that the agreement concerned any form of compensation.
19. On 14 January 1999 the public prosecutor informed the District Court that he wanted to withdraw all the charges against the applicants, finding that his right to bring charges had ceased to exist as the complainants had withdrawn their claims.
20. However, at the oral hearing held on 8 February 1999 in the District Court S.E. requested notwithstanding the withdrawal that it be examined whether the complainants’ prosecution request had been specific enough for charges to be brought and whether the period of limitation on the right to bring charges had become time-barred. The public prosecutor noted that at least three witnesses had died since the police investigations, and that he might have withdrawn the charges in any event as the proceedings had already lasted an unreasonably long time. It was announced by T.K. and the complainants that the case had been settled as far as they were concerned.
The District Court found on the same day that the public prosecutor could not withdraw the charges if there was an objection and that S.E. had the right to a decision in the matter. The case was adjourned until 15 March 1999 as far as S.E. was concerned. The charges against T.K. were removed from the docket and the decision was not appealed against.
21. On 15 March 1999 the District Court, having held an oral hearing, rejected one of the charges as time-barred and ruled the rest inadmissible, without considering their merits. In so far as the District Court refused to consider the merits, it found that the complainants had not particularised their allegations when reporting the alleged offences to the police in October 1992 or during the questioning of the official receiver in January 1993, and that the time-limit for requesting prosecution, as stipulated by the Decree Implementing the Criminal Code (rikoslain voimaanpanosta annettu asetus, förordningen om införande av strafflagen), had thus been exceeded.
22. The public prosecutor and S.E. appealed against the District Court’s decision not to consider part of the charges. The case became pending before the Court of Appeal in April 1999.
On 15 August 2000 the Court of Appeal, noting that S.E. had a right to have the question of guilt examined and as part of that issue also whether the prosecution procedure had been in accordance with the law, found that the complainants had particularised their allegations sufficiently within the period of limitation, and therefore revoked the District Court’s decision to rule the charges inadmissible. Instead, the Court of Appeal removed the charges from the docket as the applicants and the complainants had reached a settlement. Chapter 39, section 2 of the Criminal Code, as in force until the end of 1990, provided that a debtor could not be convicted if he had satisfied his creditor.
23. On 16 October 2000 S.E. applied to the Supreme Court for leave to appeal. The case was still pending before the Supreme Court when the European Court of Human Rights decided to give notice of the application to the respondent State. On 21 January 2002 the Supreme Court refused S.E. leave to appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101803
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF AMUYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 13
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicants are:
(1) Mrs Imani Amuyeva, born in 1972;
(2) Mr Eti Dzhabrailov, born in 1932;
(3) Mr Uvays Israilov, born in 1918; and
(4) Mrs Liza Makhmutmirzayeva, born in 1977.
5. On 6 July 2008 the third applicant died. His son Mr Abdul-Rakhim Israilov, born in 1959, provided a letter of authority expressing his intention to continue the application in his name. For the sake of convenience, he will hereinafter be referred to as “the fifth applicant”.
6. The applicants live in Gekhi-Chu, Urus-Martan district, Chechnya.
7. The first, third, fourth and fifth applicants belong to the same extended family. The third applicant was the father of Adam (also spelled Adlan) Israilov, born in 1965; Turpal Israilov, born in 1972; and Aslambek Israilov, born in 1971. His son, the fifth applicant, is the brother of Adam, Turpal and Aslambek Israilov. The first applicant is Adam Israilov’s wife. The fourth applicant is Aslambek Israilov’s wife.
8. The second applicant is the father of Aslanbek (also spelled Alik) Dzhabrailov, born in 1968.
9. In the autumn of 1999 military operations by the Russian military and security forces started in Chechnya. According to the applicants, the village of Gekhi-Chu in the Urus-Martan district came under full control of the Russian military forces in December 1999. A military unit was stationed at the outskirts of the village, the state authorities were functioning and there were no clashes in the area. For these reasons the residents had considered that their lives were no longer endangered by the hostilities.
10. In the evening of 6 February 2000 the village came under fire by automatic weapons from the position of the Russian forces about fifty metres away from the edge of the village. The residents were aware that a large group of Chechen fighters had entered the village from the direction of Katyr-Yurt and many had taken shelter in the basements of their houses.
11. In the morning on 7 February 2000 two military helicopters fired missiles upon the village. The village then came under shelling by artillery and from planes.
12. The first, third and fourth applicants live at 72 Shkolnaya Street in Gekhi-Chu in a large residential compound comprised of several houses. One house belonged to the third applicant and another one belonged to his elder son, the fifth applicant. A large number of neighbours and relatives took shelter in their compound. According to them, there were about twenty-five people in the basement of only one of the houses.
13. The second applicant lives at 76 Shkolnaya Street. On 6 and 7 February 2000 he, together with his son Aslanbek Dzhabrailov, was also taking shelter in the basement of the first applicant’s house.
14. At about 2 p.m. on 7 February 2000 the shelling stopped. One of the men looked into the courtyard and saw a group of military servicemen. The soldiers ordered everyone to come out and lined up the men, women and children in the courtyard.
15. After the residents came out, one serviceman threw a hand-grenade into the basement of the third applicant’s house. The explosion damaged the house.
16. The servicemen, who behaved in an aggressive manner, took aside four young men: the third applicant’s three sons Aslambek, Adam and Turpal Israilov, and Aslanbek Dzhabrailov, the second applicant’s son. The third applicant approached the group because he feared for his sons. The military servicemen told him that they would check whether the young men had participated in illegal armed groups.
17. The servicemen then ordered some of the residents to descend into the basement of a house situated further down in the Shkolnaya Street. Others remained in the courtyard.
18. The fifth applicant also remained in the courtyard. He and other witnesses saw that the servicemen had checked the passports of the four young men, examined their torsos in order to see if they had signs of wearing weapons and then allowed them to get dressed.
19. At that time, there was an exchange of gunfire from the neighbouring house at 74 Shkolnaya Street. A tank and an armoured personnel carrier drove up to that house. The residents later learned that a fighter had taken shelter in the basement of that house and had shot at a Russian soldier and killed him. He was shot dead in response.
20. The military servicemen separated the men, including the fifth applicant, from the remaining group of residents and led them away towards Centralnaya Street. The four young men remained in the courtyard of the first applicant’s house, under the guard of military servicemen. Before leaving, the fifth applicant saw his three brothers and Aslanbek Dzhabrailov being escorted into the courtyard at 74 Shkolnaya Street where the exchange of gunfire had taken place. In the meantime, the second and third applicants joined the group of women and children who remained in the third applicant’s courtyard. The military assured them that their sons would be released after a check.
21. Ten or fifteen minutes later the people in the courtyard, including the first, third and fourth applicants, heard shots fired in the courtyard of the house at 74 Shkolnaya Street. Some five minutes later the military ordered the residents to go into the fifth applicant’s house and wait there.
22. In the meantime, the group of men who had been taken to Centralnaya Street had been examined, one by one, by the military servicemen. The servicemen had led away two brothers from the T. family and another young man, who were later found shot.
23. The fifth applicant was released after the check and returned to his house. The military ordered him to join the other residents inside the house.
24. Sometime later the soldiers left the village. The second applicant went home but did not find his son, Aslanbek Dzhabrailov, there.
25. The fifth applicant went into the courtyard at 74 Shkolnaya Street. There he saw the four bodies of the young men who had been led away by the soldiers. Under the fence-roof (a roof covering part of the courtyard) there were the bodies of Adam Israilov and Aslanbek Dzhabrailov, and further back in the courtyard, face down, Aslambek and Turpal Israilov. The bodies had gunshot wounds. The bodies of Aslanbek Dzhabrailov and Aslambek Israilov also had knife wounds to the back, in the heart area.
26. The fifth body found in the same courtyard was probably that of the fighter who had been killed there earlier.
27. The applicants submitted written statements about the events produced by the first, second, fourth and fifth applicants, as well as by two neighbours, I. A. and Ch. D.
28. The Government did not challenge the facts as presented by the applicants.
29. Despite a specific request by the Court, the Government did not disclose any documents from criminal case no. 24037 which had been opened in relation to the matter. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, because the file contained personal data concerning the participants in the criminal proceedings. They outlined a number of investigative measures taken so far. The parties’ submissions in this respect could be summarised as follows.
30. The applicants stated that on 8 February 2000 a group of officials from the Urus-Martan district prosecutor’s office (“the district prosecutor’s office”) and district temporary Department of the Interior (VOVD) arrived in Gekhi-Chu. They questioned several witnesses, examined the site of the shooting and drew up a plan. It also appears that they photographed the bodies.
31. On the following day, 9 February 2000, the four bodies were buried in the local cemetery.
32. One week later an investigator from the district prosecutor’s office informed the applicants during a meeting in Gekhi-Chu that a criminal investigation had been opened by that office under Article 105 of the Penal Code (murder). Despite this information, it appears that the criminal investigation was opened only in July 2000 (see below).
33. On 26 February 2000 the Urus-Martan district civil registration office issued death certificates for the four men. The date of death was recorded as 7 February 2000 for all, but the cause of death was noted only for Aslanbek Dzhabrailov - numerous gunshot wounds to the head.
34. On 14 July 2000 an investigator of the Chechnya Prosecutor’s Office opened a criminal investigation under Article 105 of the Criminal Code into the deaths of the three Israilov brothers, Aslanbek Dzhabrailov and the unidentified member of the illegal armed group (“the IAG”). According to the Government, this action was prompted by a letter of the deputy Minister of Foreign Affairs, and prior to that date the applicants had not submitted any complaints to the authorities.
35. On 15 July 2000 the file was forwarded for investigation to the district prosecutor’s office and assigned number 24037. The decision contained the following passage:
“On 7 February 2000 in Gekhi-Chu... servicemen of the federal forces carried out a special operation with the aim of identifying members of illegal armed groups. At that time [the following] residents of the village, brothers Adlan, Aslambek and Turpal Israilov, Alik Dzhabrailov, and an unidentified member of the IAG stayed in a dugout shelter in the Israilovs’ house. In the course of the special operation the member of the IAG committed the murder of a military serviceman, after which the above-mentioned member of the IAG, Adlan, Aslambek and Turpal Israilov and Alik Dzhabrailov were killed”.
36. The Government submitted that on an unidentified date the investigation had established the number of the military unit which had taken part in the operation in Gekhi-Chu and had obtained information about two servicemen of that unit who had been killed on 7 February 2000.
37. On 6 October 2000 the second applicant was granted victim status in the criminal investigation concerning the murder of his son. On the same day the fifth applicant was granted victim status. According to the Government, both men had been questioned on the same day. They had confirmed the circumstances of their relatives’ deaths, as summarised above.
38. The Government further submitted that on 10 October 2000 the investigator had examined the residential compound of the Israilov family and Z.D.’s neighbouring compound where the bodies had been found. Nothing of relevance to the investigation had been found.
39. The Government submitted that on 10 October 2000 another Israilov brother and Aslanbek Dzhabrailov’s mother had been questioned and had given similar testimonies. The investigator had also collected the clothes which the murdered men had been wearing on 7 February 2000 from the family. It appears from the submitted documents that the jackets were returned to the applicants about one month later but it is unclear if any reports or other steps were taken at that time.
40. On 4 December 2000 the investigation was adjourned due to its failure to identify the culprits. The applicants submit that they had only been informed of this decision in November 2005 when they applied to the district prosecutor’s office for information while collecting documents required in order to obtain compensation for the deaths of their relatives.
41. On 9 October 2001 the second applicant asked the district prosecutor’s office to inform him as to whether a criminal investigation into the murder of his son and the three Israilov brothers by the servicemen had been pending and, if so, who had been in charge of the investigation.
42. On 15 October 2001 the second applicant lodged a request with the district prosecutor’s office that he be granted the status of a civil claimant in the criminal proceedings related to the killing of his son by the military servicemen. It does not appear that any answer has been given to the two aforementioned letters.
43. On 18 November 2005, having learnt of the decision to suspend the investigation, the second applicant wrote to the district prosecutor’s office. He described in detail the events of 7 February 2000 and asked that the investigation be resumed. In particular, he requested that the serviceman who had been killed on that day be identified and the number of the military unit which had been involved in the operation be disclosed, in order to identify and question the servicemen who had killed the four men and to question the other witnesses of the crime. He also asked the district prosecutor’s office to transfer the investigation to the military prosecutor’s office.
44. Per the Government’s observations, the investigation had been resumed at some point after that. On 28 November 2005 the investigator had again questioned the fifth applicant. On the same day the investigator had collected a statement from the head of the village administration, who had confirmed that the four men had been killed on 7 February 2000 during a security operation.
45. According to the Government, between 30 November and 13 December 2005 the investigator had questioned five relatives of the dead men, including the second and fourth applicant. Their submissions had corroborated the statements previously obtained.
46. On 14 February 2006 the first and fourth applicants wrote to the district prosecutor’s office and asked to be granted victim status in the proceedings concerning the murder of their husbands.
47. On 20 February 2006 the first and fourth applicants were granted the status of victims. The Government also submitted that on the same day the first applicant had been questioned. It appears that on 16 March 2006 the investigation was adjourned.
48. Per the Government’s observations, the next round of investigation had started in September 2006. On 8 September 2006 the investigator had requested that the commander of the military unit submit a copy of the internal inquiry into the deaths of their two servicemen in Gekhi-Chu on 7 February 2000, as well as copies of forensic reports. According to the Government, this request had been complied with. However, they did not disclose the content or the conclusions of the relevant documents.
49. On 20 September 2006 the investigation questioned a further five witnesses among local residents, including the second and fifth applicants.
50. On 21 September 2006 the investigator again collected the jackets of the murdered men from the fifth applicant. On 22 September 2006 these items were inspected and attached as pieces of evidence to the criminal investigation file. On 24 September 2006 the investigation was again adjourned.
51. A new round of investigation was opened on 1 February 2007. Per the Government’s submissions, between 25 February and 10 June 2007 the investigation had collected statements from twelve relatives and neighbours of the dead men, including the applicants. The first applicant had given her consent to the exhumation of her husband’s body.
52. On 31 March 2007 the investigator refused to allow the second and fourth applicants to make copies of all the witness statements collected by the investigation. They were allowed to make copies of the decisions to adjourn proceedings.
53. On 20 June 2007 the first and fourth applicants again requested that the district prosecutor’s office identify and question the servicemen and commanders of the military units which had taken part in the special operation.
54. According to the Government, the graves of the Israilov brothers and of Aslanbek Dzhabrailov had been inspected on 6 July 2007.
55. The Government further submitted that the progress of the investigation had been supervised by the Investigative Committee of the General Prosecutor’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation.
56. On 17 May 2006 the first and the fourth applicants complained to the district prosecutor’s office of its failure to effectively investigate the murder of their husbands. They also asked to be granted access to the case file.
57. On 6 July 2006 the first and fourth applicants applied to the UrusMartan District Court (“the district court”), complaining that the district prosecutor’s office had failed to investigate the murder of Adam, Turpal and Aslambek Israilov and Aslanbek Dzhabrailov effectively and had failed to provide a response to their previous complaints. They again asked to be granted access to the case file.
58. On 26 July 2006 the district court partially allowed the complaint against the district prosecutor’s office based on the latter’s failure to take effective steps to investigate the applicants’ relatives’ murder. The district court ordered the district prosecutor’s office to resume the investigation. The district court noted that the investigators had failed to identify the military and security units responsible for the operation, had failed to question the commanders of and participants in the operation and to study the documents related to its execution and results, and had failed to question the commanders of the district military and security authorities about the operation. The court granted the applicants access to the case file, stating that the documents in the file were accessible unless they contained secret information and noted that access to the file was essential in order to realise the applicant’s right to appeal. As to copying of documents from the case file, the court noted that this right was accorded to victims only upon completion of the investigation, and not when the proceedings were adjourned. On 23 August 2006 the Chechnya Supreme Court upheld the district court’s decision.
59. On 19 December 2006 the first and fourth applicants seized the district court with a similar complaint. They noted that the investigation was again adjourned without the necessary steps having been taken. On 2 February 2007 the deputy district prosecutor announced in court that the investigation had been reopened by the district prosecutor’s office on 19 December 2006 in order that it be completed. In such circumstances, the district court found that the applicants’ complaint had been resolved and dismissed it.
60. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
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