ITEMID: 001-104925
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SUPUT v. CROATIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
TEXT: 4. The applicant was born in 1971 and lives in Korenica.
5. In July 2005 the police, at the request of the State Attorney, commenced an inquiry into allegations that during 1991, at the beginning of the Homeland War in Croatia, a large number of civilians were tortured and killed or detained in Korenica, Croatia by members of the so-called “Krajina Autonomous Region Militia” (Milicija “Autonomne Oblasti Krajina”), where they were allegedly tortured and some of them killed. A large number of survivors and other individuals who witnessed these events were interviewed by the police. A voluminous case file was produced and the inquiry resulted in the supposed perpetrators being identified, among whom was the applicant.
6. The applicant was arrested on 4 December 2006 on suspicion that he had committed war crimes against the civilian population and prisoners of war. On the same day the investigation judge of the Gospić County Court (istražni sudac Županijskog suda u Gospiću) heard evidence from the applicant in the presence of a defence counsel. The applicant denied the charges. On the same day the investigation judge heard evidence from two other suspects.
7. On 5 December 2006 an investigation was opened in respect of the applicant and two other suspects in the Gospić County Court in connection with suspected war crimes against the civilian population and prisoners of war in 1991 in Korenica, Croatia.
8. On 7 and 11 December 2006 the police interviewed two newly discovered potential witnesses.
9. On 14 December 2006 the investigation judge requested a report from the Korenica Social Welfare Centre (Centar za socijalnu skrb Korenica) on the suspects’ personal circumstances. On the same day the investigation judge scheduled a hearing, with an identification parade, for 21 December 2006, and ordered the Gospić Police Station to ensure the presence of twelve other individuals of an appropriate age and physical appearance at the identification parade.
10. At a hearing held on 21 December 2006 the investigation judge heard evidence from nine witnesses and held an identification parade. Two of the witnesses were asked to identify the applicant and both of them recognised the applicant as a person named Željko Šuput who they alleged had ill-treated prisoners in Korenica in 1991.
11. On the same day the Gospić State Attorney’s Office asked for evidence from eighteen witnesses to be heard by the investigation judge.
12. On 27 December 2006 the Korenica Social Welfare Centre submitted their report to the Gospić County Court on the applicant’s personal circumstances. The report stated that the applicant and his family, who had left Croatia during the Homeland War, had returned to Croatia in 2001 and since then had lived in their own house in Korenica. Before his arrest the applicant had been employed as a driver in Rijeka, Croatia. On the same day the Ministry of Justice informed the Gospić County Court that the applicant had been fined twice for minor offences related to road safety and customs regulations. He had no criminal record.
13. On 3 and 17 January 2007 the investigation judge heard evidence from four and fifteen witnesses respectively. A voluminous case file was compiled containing evidence from witnesses and a large amount of documentary evidence.
14. On 31 January 2007 the applicant and another defendant were indicted before the Gospić County Court for war crimes against prisoners of war, an offence under section 122 of the Croatian Criminal Code. The applicant was accused of inflicting exceptionally brutal treatment on prisoners of war on several occasions, consisting of beatings with wooden rods and chains, kicking, administering electric shocks, death threats and forcing schoolchildren to urinate on the prisoners.
15. On 15 February 2007 the applicant lodged an objection to the indictment (prigovor protiv optužnice). His co-defendant also lodged an objection.
16. On 1 March 2007 the President of the Gospić County Court asked the Supreme Court to transfer jurisdiction to another court. This was refused on 8 March 2007.
17. On 19 March 2007 the objections to the indictment were dismissed by the Gospić County Court and the indictment became final.
18. On 4 April 2007 the President of the Gospić County Court again asked the Supreme Court to transfer jurisdiction to another court. On 26 April 2007 the Supreme Court transferred jurisdiction to the Rijeka County Court (Županijski sud u Rijeci) and the proceedings continued before that court.
19. A hearing scheduled for 12 July 2007 was adjourned owing to the absence of the parties.
20. On 18 July 2007 the applicant appointed new counsel, who asked the County Court to adjourn the trial in order to allow him sufficient time to consult the case file and prepare the applicant’s defence. For that reason on 20 July 2007 the Rijeka County Court adjourned the hearings already scheduled for 24, 25, 26 and 27 July 2007. The hearings were scheduled for 3, 4, 5 and 6 September 2007.
21. At a hearing held on 3 September 2007 the County Court dismissed a number of procedural objections put forward by the defence and heard evidence from one witness. A hearing scheduled for 4 September 2007 was adjourned because the defence counsel of both defendants refused to continue to represent them. On 5 September 2007 the County Court appointed legal-aid counsel for the applicant. On 7 September 2007 the appointed counsel asked to be relieved of his duties. On 10 September 2007 the County Court accepted this request and on 12 September 2007 it appointed new legal-aid counsel for the applicant. On 21 September 2007 that lawyer also sought to be relieved of her duties. On 25 September 2007 the County Court refused this request. On 10 and 11 October counsel again sought to be relieved of her duties, on different grounds from those given in her previous request. This request was accepted on 11 October 2007 and on 15 October 2007 new legal-aid defence counsel was appointed.
22. A hearing scheduled for 22 October 2007 was adjourned because the applicant’s counsel did not appear. A hearing scheduled for 10 December 2007 was adjourned because the case file had been forwarded to the Supreme Court upon the applicant’s appeal against a decision extending his detention (see below, § 39).
23. At a hearing held on 8 January 2008 the County Court heard evidence from eight witnesses, on 9 January 2008 three witnesses and on 10 January 2008 also three witnesses. On the latter date the County Court commissioned an expert report from a medical expert. On 3 March 2008 the expert submitted her report.
24. At a hearing held on 10 March 2008 the County Court heard evidence from the medical expert and at a hearing held on 11 March 2008 it heard evidence from seven witnesses.
25. A hearing scheduled for 8 May 2008 was adjourned on account of the applicant’s inability to attend owing to his post-surgery state of health (see below, §§ 60 and 61).
26. At a hearing held on 30 June 2008 the Rijeka County Court heard the applicant’s evidence as to his health and decided to commission a report by a medical expert concerning the applicant’s health. The report was submitted on 14 July 2008. The expert stated that the applicant’s health was not incompatible with his ability to attend and follow the criminal trial against him (see below, § 63).
27. At a hearing held on 16 September 2008 the records of the identification parade (see above, § 10) were read and three witnesses gave evidence.
28. At a hearing held on 19 September 2008 the Rijeka County Court decided on a number of procedural objections put forward by the defence. At a hearing on 2 October 2008 two witnesses and both defendants gave evidence and the parties gave their closing arguments.
29. On 3 October 2008 the Rijeka County Court found the applicant guilty of war crimes against prisoners of war and sentenced him to four years’ imprisonment. At the same time it lifted the applicant’s detention.
30. On 11 and 19 February 2009 respectively the applicant and the other defendant lodged their appeals. The appeal proceedings are currently pending before the Supreme Court.
31. On 4 December 2006 the investigation judge of the Gospić County Court remanded the applicant in custody for forty-eight hours. On the same day the investigation judge heard evidence from the applicant in the presence of a defence counsel. The applicant denied the charges against him. On the same day the investigation judge heard evidence from two other suspects.
32. On 5 December 2006 the investigation judge remanded the applicant in custody for one month on the grounds that there was a danger of absconding and that the offences allegedly committed by the applicant were serious ones. The relevant part of the decision reads:
“This court finds that the grounds for detention under Article 102 § 1(1 and 4) of the Code of Criminal Procedure apply ...
The case file shows that the first, second and third suspects lived in Serbia for a long time and therefore the circumstances indicated a danger of absconding because they might leave the territory of Croatia and thus impede the conduct of these criminal proceedings.
Also, what is at issue is a crime against humanity and international law – a war crime against prisoners of war, liable to twenty years’ imprisonment, which was committed under particularly grave circumstances shown by a reasonable suspicion that the suspects brutally tortured the prisoners, and the injuries thus inflicted caused grave bodily impairments to the majority of the victims, resulting in their permanent grave disability.”
This decision was upheld by a three-judge panel of the Gospić County Court on 13 December 2006 which endorsed the reasoning of the investigation judge.
33. On 3 January 2007 the investigation judge extended the applicant’s detention for a further two months on the same grounds as before. The applicant did not lodge an appeal.
34. On 14 February 2007 a three-judge panel of the Gospić County Court extended the applicant’s detention on the same grounds (danger of absconding and gravity of offences). This decision was upheld by the Supreme Court on 26 February 2007. The relevant part of the decision reads:
“This court finds that the fact that the defendants lived abroad for a long time and are charged with a grave criminal offence liable to a lengthy prison term show that if released, they might abscond. Thus, the extension of their detention on the ground under Article 102 § 1(1) of the Code of Criminal Procedure is justified.
The Supreme Court ... accepts the first-instance court’s findings that the conduct of the defendants amounted to an offence committed under particularly grave circumstances, which necessitate their further detention on the ground under Article 102 § 1(4) of the Code of Criminal Procedure. The defendants are charged with particularly brutal conduct consisting of beatings with wooden sticks, rods and chains, administering electric shocks, throwing cold water over and psychologically torturing war prisoners N.N., M.L. and P.B. on many occasions in cells, halls and the courtyard of the building where they were detained, which caused grave bodily injuries to the victims.”
35. On 12 April 2007 the Gospić County Court extended the applicant’s detention on the same grounds.
36. On 7 May 2007 the Supreme Court quashed the decision of 12 April 2007 on formal grounds, namely the absence of the applicant’s defence counsel from a panel meeting concerning his detention.
37. On 11 May 2007 the Gospić County Court extended the applicant’s detention on the same grounds. The applicant did not lodge an appeal.
38. On 12 July and 19 September 2007 the Rijeka County Court extended the applicant’s detention on the same grounds. The applicant did not lodge appeals.
39. On 23 November 2007 the Rijeka County Court extended the applicant’s detention solely on account of the gravity of the offences. The relevant part of the decision reads:
“This panel finds that the grounds for detention under Article 102 § 1(4) of the Code of Criminal Procedure in respect of the first defendant Željko Šuput still apply on account of the manner in which he had allegedly committed the criminal offences held against him. The factual basis of the criminal offence shows exceptional cruelty and brutality which, in the opinion of this panel, represent an offence committed under exceptionally grave circumstances and that therefore detention is necessary under Article 102 § 1(4) of the Code of Criminal Procedure.
The record of the hearing held on 3 September 2007 shows that the first defendant Željko Šuput is a citizen of Croatia, that he was employed as a driver before his arrest, that he owns half a house in Korenica, and that he is married and the father of two children. These circumstances show that he has a connection with the Republic of Croatia and that, despite these criminal proceedings and a risk of imprisonment, the grounds for detention under Article 102 § 1(1) of the Code of Criminal Procedure have not been fulfilled, namely that there are no circumstances indicating a danger of absconding.”
On 10 December 2007 the Supreme Court upheld this decision, endorsing the County Court’s reasons. The applicant lodged a constitutional complaint.
40. On 29 January 2008 the applicant asked for his detention to be lifted.
41. On 8 February 2008 the Rijeka County Court dismissed the applicant’s request and extended the applicant’s detention on account of the gravity of the charges. On 27 February 2008 the Supreme Court upheld this decision, endorsing the County Court’s reasoning.
42. At the hearing held on 11 March 2008 the applicant’s counsel asked for the detention to be lifted on the ground that he needed medical assistance outside prison, including surgery on his spine. The Rijeka County Court dismissed the request, finding that it was premature, since no surgery had yet been performed on the applicant. On 29 March 2008 the applicant was admitted to Zagreb Prison Hospital (Bolnica za osobe lišene slobode, “the ZPH”). On 9 April 2008 he was transferred to a civil hospital, where surgery on his spine was carried out on 14 April 2008.
43. On 15 April 2008 the applicant again asked for his detention to be lifted on health grounds. This was refused by the Rijeka County Court on 25 May 2008 and the applicant’s detention was extended for a further two months. The relevant part of that decision reads as follows:
“This court finds that the ground for ordering the applicant’s detention under Article 102 paragraph 1(4) of the Code of Criminal Procedure still exists because of ... a suspicion that in the period between 15 October 1991 and the end of April 1992 the first defendant, Željko Šuput, as a member of the intervention brigade of the Militia of the so-called Krajina Autonomous Region, on several occasions brutally ill-treated prisoners of war in the cells, corridor and courtyard of the Korenica Militia building by beating them with wooden sticks, rods and chains, kicking them and administering electric shocks until they lost consciousness.
These circumstances indicate utterly cruel and inhuman treatment of the prisoners of war, which significantly exceeded the basic features of the crime in question ... which represent an offence committed under particularly grave circumstances, which clearly warrant that the defendant remain in custody on the grounds under Article 102 paragraph 1(4) of the Code of Criminal Procedure.”
44. As to the applicant’s request that his detention be lifted, the County Court held:
“This court finds the first defendant’s request for his detention to be lifted unfounded. The purpose of placing the first defendant Željko Šuput in Zagreb Prison Hospital is precisely to be able to administer adequate medical care appropriate to his needs and state of health. [The Hospital] is able to provide continuous monitoring and urgent medical interventions. There it is possible to administer the medical assistance the defendant needs, identical to that which he would receive in any other situation, irrespective of whether or not he is in detention.”
This decision was upheld by the Supreme Court on 21 May 2008. The relevant part of the decision reads:
“... the finding of the first-instance court that the ground for further detention of the defendant Željko Šuput under 102 paragraph 1(4) of the Code of Criminal Procedure still applied is correct.
The indictment shows a relevant degree of reasonable suspicion that the defendant Željko Šuput committed the criminal offence under Article 122 of the Criminal Code, by which a general statutory condition under Article 102 paragraph 1 of the Code of Criminal Procedure for extending detention has been fulfilled.
The factual background of the indictment shows that the defendant Željko Šuput, in his capacity as a member of the intervention squad of the so-called Krajina A[utonomous] R[egion] Militia, in the period from 15 October 1991 to the end of April 1992, together with other members of that militia, on many occasions, in cells, hall and courtyard of the building [where they were detained] kicked prisoners and beat them with wooden sticks, rods and chains on the head and body and administered electric shocks until they lost consciousness, all of which resulted in numerous and grave injuries.
The above-described manner in which the offences were committed shows an exceptionally high degree of brutality, ruthlessness, unscrupulousness and cruelty, which surpasses by far the usual manner of committing such crimes and represents an offence committed under particularly grave circumstances which necessitates the defendants’ remaining in custody under Article 102 paragraph 1(4) of the Code of Criminal Procedure, as correctly found and explained by the first-instance court in the decision referred to.
The defendant’s arguments that there was no proof that he had committed the criminal offences at issue are not decisive for deciding on his further detention, because for such a decision the relevant degree of reasonable suspicion suffices, and that suspicion is shown in the indictment.
In considering [the reasons for] detention, this panel does not assess evidence and its probative value – that assessment is made by the trial court at the end of the trial.
Contrary to the allegations of the appeal, the extension of his detention on the grounds under Article 102 paragraph 1(4) of the Code of Criminal Procedure contravenes neither the Croatian Constitution nor the Convention. Unlike the aim of the grounds for detention under Article 102 paragraph 1(1,2 and 3) of the Code of Criminal Procedure, the aim of the ground for detention under Article 102 paragraph 1(4) of the Code of Criminal Procedure is not to remove threats to the efficient and unobstructed conduct of the criminal proceedings but is preventive, intended to prevent the release of individuals who have committed criminal offences such that their release would diminish the reputation of and trust in the justice system by the public. Article 5 of the Convention gives only examples of the grounds for detention (exempli gratia) and these grounds are not exclusive (numerus clausus). Therefore, Article 102 paragraph 1(4) does not contravene the said provision of the Convention. Other security measures under Article 90 of the Code of Criminal Procedure, in view of their essence and character, could not fulfil the same purpose as detention.
The applicant’s needs as regards medical care may be satisfied with medical treatment in prison, in view of the nature of his illness, and exceptionally by out-patient treatment.”
45. On 27 May 2008 the applicant again asked for his detention to be lifted on health grounds.
46. On 29 May 2008 the Constitutional Court declared the applicant’s constitutional complaint against the Supreme Court’s decision of 10 December 2007 inadmissible on the grounds that meanwhile a fresh decision extending the applicant’s detention had been adopted by the Rijeka County Court on 8 February 2008 and that therefore the original decision was no longer in effect.
47. On 10 June 2008 the applicant’s request of 27 May 2008 was dismissed by the Rijeka County Court on the grounds that the applicant’s health did not require treatment outside prison. The relevant part of the decision reads:
“As regards the health of the first defendant Željko Šuput ... this panel finds that for now the treatment it requires is not incompatible with his detention. The medical documentation of 29 May 2007 shows that a haematoma which developed ... in the brain, is slowly diminishing. The neurosurgeons did not recommend surgery but only further supervision and rest. The next examination ... is scheduled for the end of June. His health is expected to become stable.”
48. On 18 July 2008 the Rijeka County Court extended the applicant’s detention on the grounds of the gravity of the charges.
49. On 3 October 2008, after finding the applicant guilty of war crimes against prisoners of war, the Rijeka County Court lifted his detention. The applicant was released the same day. A security measure of withdrawal of his passport and prohibition on leaving his place of residence was applied. The relevant part of the decision lifting the applicant’s detention reads:
“ ... there is no ground for further detention of the defendant because the same purpose may be achieved by the use of a preventive measure of prohibition on leaving his place of residence and obligation to report periodically to the Korenica Police Station as well as temporary seizure of his passport.”
50. The applicant’s medical record shows that before his arrest he was suffering from discopathy of the lumbar spinal area.
51. He was seen by the prison doctor on 10 August 2007 for severe pain in the lumbar area of the spine and the left leg. He was diagnosed with lumboischialgia (chronic neck pain), and prescribed painkillers and rest. At his next examination on 27 August 2007 the doctor noted that the pain was decreasing and the same therapy was prescribed. On further examinations by the prison doctor on 30 August, 18, 19, 20, 21 24 and 28 September 2007 it was noted that the applicant was still suffering pain and he was prescribed various painkillers.
52. On 3 October 2007 the doctor recommended that the applicant be seen by an orthopedic specialist. On 10 October 2007 the applicant stated that he wanted to see a specialist at his own expense at a hospital of his choice. On 11 October 2007 a trial judge in the applicant’s case before the Rijeka County Court allowed the request and a visit to a clinic was scheduled for 16 October 2007.
53. At the beginning of November 2007 the applicant was sent for an Xray examination of his spine.
54. On 21 January 2008 the applicant asked permission to undergo a computer tomography of his spine in a private clinic. The request was allowed on 21 January 2008 by the trial judge and the visit to the clinic was scheduled for 25 January 2008.
55. On 8 February 2008 the trial judge allowed the applicant a specialist examination at the expense of the Rijeka County Court.
56. On 11 February 2008 the trial judge allowed the applicant’s treatment in the Zagreb Prison Hospital (ZPH) at the expense of the Rijeka County Court. The applicant stayed in the ZPH from 22 February to 6 March 2002. He was diagnosed with disc protrusion and surgery on his spine was scheduled for 28 March 2008.
57. On 10 March 2008 the Rijeka Prison doctor submitted a report on the applicant’s health to the Rijeka County Court. She stated that he was suffering from disc protrusion and that surgery was scheduled for 2 April 2008 at a civilian hospital - the Dubrava Hospital in Zagreb (Klinički bolnički centar Dubrava). She further noted that he had been taking painkillers for a long time and recommended that he rest every hour because he was not able to sit for a long period in the same position.
58. At a hearing held in the Rijeka County Court on 10 March 2008 an independent medical expert recommended that a fifteen-minute break be taken every hour during the hearing on account of the applicant’s health problems.
59. On 26 March 2008 the trial judge allowed the applicant’s hospitalisation in the Dubrava Hospital in Zagreb for him to undergo surgery on his spine on 1 April 2008.
60. On 29 March 2008 the applicant was admitted to the ZPH. On 9 April 2008 he was transferred to Dubrava Hospital where he underwent surgery on his spine on 14 April 2008. On 17 April he was returned to the ZPH.
61. After the surgery the applicant developed a haematoma in the cerebellum. He underwent physiotherapy. A number of laboratory tests were carried out as well as several brain nuclear magnetic resonances, computer tomography of his spine and head, X-ray of his mouth cavity and electrocardiography. He was seen by an oral surgeon, neurologist, physiologist, ophthalmologist and a psychologist. A neurosurgeon examined him on 19 and 23 May 10 and 11 June 2008.
62. On 27 June 2008 he was returned to Rijeka Prison.
63. At a hearing held on 30 June 2008 in the Rijeka County Court, the trial judge asked for an opinion from a medical expert. On 14 July 2008 an independent medical expert, who saw the applicant on 10 July 2008, submitted his opinion, stating that the applicant’s health was not incompatible with his ability to attend and follow the criminal trial against him. He further recommended a brain examination at the end of July or beginning of August, an examination by a neurosurgeon and physiotherapy.
64. Section 122 of the Basic Criminal Code (Osnovni krivični zakon, Official Gazette no. 31/1993) reads as follows:
Whoever, in violation of the rules of international law, orders the killing, torture or inhuman treatment of prisoners of war, including biological, medical or other scientific experiments, the removal of tissue or organs for transplantation, or the causing of great suffering or injury to their physical integrity or health; or compels a prisoner of war to serve in the forces of a hostile power, or deprives a prisoner of war of the right to a fair trial; or commits any of the foregoing acts, shall be sentenced to not less than five years’ imprisonment or up to twenty years’ imprisonment.
65. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:
“(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ...
(2) Preventive measures are:
1) prohibition on leaving one’s place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to a certain person or a State body;
4) prohibition on access to a certain person or on establishing or maintaining contact with a certain person;
5) prohibition on undertaking a certain business activity;
6) temporary seizure of a passport or other document necessary for crossing the State border;
7) temporary seizure of a driving licence.
...”
“(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, a court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) Judicial authorities conducting criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review ex officio whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall immediately be lifted.”
“(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
1. where there are circumstances which show that there is a risk hat [the defendant] will abscond [is in hiding or his or her identity cannot be established etc.);
...
4. where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.”
66. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) 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) Inmates shall be provided with medical treatment and proper care of their physical and mental health...”
“...
(2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate’s health.”
“(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor.
...”
...
(2) Temporary release may be allowed on the following grounds:
1) to an inmate suffering from a serious acute illness or whose chronic illness worsens and where his or her medical treatment is not possible in prison.
...”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-4692
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DEMIR v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Turkish national, born in 1960 and living in Langenthal, Switzerland.
He is represented before the Court by Mr B. Habegger, a lawyer practising in Langenthal, Switzerland.
A.
The applicant arrived in Greece in 1985 where he remained in a camp for refugees until 1987. Then he was transferred with the aid of the UNHCR to Switzerland, where he was granted asylum.
On 6 July 1997 the applicant was arrested in Greece for a series of larceny allegedly committed in that country in 1993. He was detained on remand until 28 July 1997, when he was released on bail by the indictment chamber of the Court of Appeal (simvulio Efeton) of Athens, which was competent to hear the case at first instance because of the nature of the offences. However, the court ordered that the applicant should remain in Greece until his trial.
On 24 October 1997 the indictment chamber of the Court of Appeal considered that there could be no serious suspicion that the applicant had committed the offences he had been charged with because at the relevant time he was in Switzerland, as it transpired from a series of official documents produced by him. It authorised the applicant to leave Greece.
On 3 December 1997 the applicant was acquitted by the Court of Appeal (Efetio) of Athens.
B. Relevant domestic law
The Code of Criminal Procedure provides as follows:
Article 533 § 2
“Persons who have been detained on remand and subsequently acquitted ... shall be entitled to request compensation ... if it has been established in the proceedings that they did not commit the criminal offence for which they were detained.”
Article 535 § 1
“The State shall have no obligation to compensate a person who ... has been detained on remand if, whether intentionally or by gross negligence, he was responsible for his own detention.”
Article 536
“1. Upon an oral application by a person who has been acquitted, the court which heard the case shall rule on the State's obligation to pay compensation in a separate decision delivered at the same time as the verdict. However, the court may also make such a ruling proprio motu. ...
2. The ruling on the State's obligation to pay compensation cannot be challenged separately; it shall, however, be quashed if the decision on the principal issue of the criminal trial is reversed.”
Article 540 § 1
“Persons who have been unfairly ... detained on remand must be compensated for any pecuniary loss they have suffered as a result of their ... detention. They must also be compensated for non-pecuniary loss...”


ITEMID: 001-106918
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FEXLER v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert
TEXT: 6. The applicant was born in 1949 and lives in Hallabro.
7. Since June 2000, the applicant has been on 100% sick leave due to various health problems. She has, inter alia, been operated on for cancer as the consequence of which she suffers from recurrent Erysipelas (a bacterial infection of the skin, which typically involves the lymphatic system) and lymphatic oedema in both legs.
8. Hence, on 18 June 2001, the applicant applied for disability benefits (handikappersättning) retroactively from June 1999. She claimed that, due to her health problems, she had incurred, and still incurred, extra costs for, inter alia, medication, doctors’ visits, treatment, travel expenses, special clothes and shoes, special soap and creams, and for supplementary vitamins and minerals. She had calculated that these extra costs amounted, in total, to SEK 75,314 (approximately EUR 8,150) per year.
9. On 3 May 2002 the Social Insurance Office (försäkringskassan –hereinafter “the Office”) of the County of Blekinge rejected the request. It accepted certain extra costs for medication, medical treatment and support material as well as for certain travel up to a specific amount. However, in the Office’s view, the total of the applicant’s extra costs per year amounted to no more than SEK 7,300 from September 1999, SEK 8,900 from January 2000 and SEK 6,800 from January 2001. Thus, the Office concluded that the applicant’s extra costs did not reach the minimum level established for each year to be granted disability benefits (namely SEK 10,374 for 1999, SEK 10,431 for 2000 and SEK 10,517 for 2001, which was equal to 28.5% of the basic amount in line with the price index [basbelopp]). It further noted that the applicant had claimed that she needed help with shopping and some cleaning and driving but that she had not stated that she had a daily need for assistance. In this respect, the Office took into account that the applicant was married and could rely on some help from her husband. Therefore, it considered that she had failed to show that she had a substantial need of assistance in her daily life (minimum two hours per day). Finally, it found that the total need of support was not sufficient for disability benefits to be granted. The decision was based on Sections 5 and 6 of the Act on Disability Benefits and Care Allowance (Lagen om handikappersättning och vårdbidrag, Act no. 1998:703) and the Office also had two medical certificates at its disposal from different doctors who had treated the applicant.
10. By letter dated 23 May 2002 the applicant appealed against the decision to the County Administrative Court (länsrätten) of the County of Blekinge, requesting that the decision be set aside and that the case be remitted to the Office for further action. In the alternative, she requested that the court declare her entitled to disability benefits as from June 1999. She maintained her claims and developed her reasons for why the various extra costs were essential. She further added that the Office had failed to investigate her actual need for assistance, which she alleged amounted to one hour per day, in order to estimate the total cost of extra needs due to the disability. Moreover, the applicant stated that she needed manual lymphatic drainage which the County Council of Blekinge lacked resources to provide. Since her need was medically documented, she had to travel to a neighbouring county for treatment at her own expense. In this connection, she alleged that she was unable, due to her illness, to use public transport for which reason her travel expenses were higher than calculated by the Office. All these extra costs should, in her view, be included in the calculation to grant her disability benefits.
11. On 26 February 2003 the County Administrative Court rejected the appeal. As concerned the applicant’s need of assistance in her daily life, the court considered that it was the common responsibility of a couple to clean and shop, for which reason the applicant was not found to be in need of assistance from a third person in her daily life. The applicant was not considered to be in need of assistance on a daily basis to such an extent that this alone could constitute a basis for granting disability benefits. Turning to the extra costs, the court shared the Office’s conclusions and calculations but added some additional costs for special soap. It also observed that the County Council was responsible for the costs related to the treatment for lymphatic drainage and that these costs thus could not be included in the calculation of disability benefits. Furthermore, it found that the medical certificates invoked before it did not show that the applicant was unable to use public transport. The court concluded, in an overall assessment of the applicant’s need of assistance and of her extra costs, that the conditions for granting disability benefits were not fulfilled and, thus, that the applicant was not eligible for a disability allowance.
12. By letter dated 1 March 2003 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Jönköping, maintaining her earlier claims and insisting that she was in need of assistance for one hour per day. She further noted that according to the calculation based on the lower court’s judgment, the total amount of extra costs acknowledged by the court was only SEK 41 (approximately EUR 4.50) below the limit to be granted disability benefits for the year 2000. Moreover, the applicant alleged that she had to buy custom-made clothes and special shoes due to her deformities caused by the lymphatic oedema and hip problems. These costs, and the costs for the lymphatic drainage, should be included. She requested that the court order the Office to submit information about how it had calculated her total need for assistance.
13. On 29 March 2004 the Administrative Court of Appeal rejected the applicant’s request for further investigation of the case as it considered that the case had been clarified to the extent that was demanded. The applicant was given one month to submit, in writing, any further information that she wished to add.
14. On 8 June 2004 the Administrative Court of Appeal granted leave to appeal and, by letter dated 21 September 2004, the applicant requested that the court hold an oral hearing because she considered the investigation to be incomplete and, for that reason, points about the matter to be decided remained unclear.
15. In a decision of 27 September 2004, the Administrative Court of Appeal declared its intention to obtain supplementary information from the Office, as it found it necessary to investigate the case further. On 30 September 2004 the Administrative Court of Appeal ordered the Office to submit supplementary information about lymphatic drainage treatment.
16. In a supplementary submission by the applicant, dated 24 November 2004, she stated that she had been in contact with Blekinge hospital to clarify whether it was now possible to carry out manual lymphatic drainage there. She had received various replies but, according to the latest reply, it was not possible although some private therapist within the county apparently could do it. She demanded that an oral hearing be held by telephone to clarify certain unclear points of the case. During the oral hearing, the Administrative Court of Appeal ought to establish that the hospital lacked resources to provide continuous manual lymphatic drainage treatment, that the frequency of the treatments, as stated in the application for disability benefits, was medically motivated and that costs incurred for treatment performed by private providers were extra costs in the present circumstances. Furthermore, the court ought to clarify contradictions in the Office’s submission and calculate the time needed for assistance as well as the total need for support.
17. On 21 April 2005 the Administrative Court of Appeal rejected the applicant’s request for an oral hearing “per telephone” as it found that it was not necessary. The applicant was given three weeks to finalise her submissions in writing and she was informed that, after that time, the case could be decided on the basis of the case file as it stood.
18. By a judgment of 14 June 2005, the Administrative Court of Appeal upheld the lower court’s judgment in full. The court, consisting of five judges including two lay judges, found it established that lymphatic drainage treatment of the kind the applicant needed was to be regarded as medical treatment and that the County Council was responsible for costs of such treatment to the extent that it could be considered medically motivated. Accordingly, when assessing the application for disability benefits, the applicant was not entitled to include extra costs for lymphatic drainage treatment. In the light of this and as the court also shared the County Administrative Court’s assessment concerning the remainder of the subjectmatter the appeal was to be rejected. The judgment was unanimous.
19. By letter dated 19 July 2005 the applicant made a further appeal to the Supreme Administrative Court (Regeringsrätten), requesting that the Administrative Court of Appeal’s judgment be repealed and the case returned for renewed examination since it had failed to hold an oral hearing. She referred to Article 6 of the Convention and claimed that an oral hearing was necessary in order to clarify the case, in particular her need for assistance. In the alternative, the applicant requested that the court grant her disability benefits.
20. On 17 May 2006 the Supreme Administrative Court refused leave to appeal.
21. The 1998 Act on Disability Benefits and Care Allowance (Lagen om handikappersättning och vårdbidrag, Act no. 1998:703, as in force at the relevant time), provides that a person who has reached the age of 16 and who, before reaching the age of 65, has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person on a daily basis or needs continuing assistance from another person in order to be gainfully employed or otherwise has considerable extra expenses, may receive disability benefits (section 5, first paragraph). If the disabled person needs assistance either on a daily basis or in order to be gainfully employed and, in addition to this, has extra expenses, the issue of whether he or she is entitled to disability benefits and the amount of compensation shall be decided on basis of the total need of support (section 5, second paragraph). Thus, when making this assessment, it is necessary to look into the person’s whole situation and to add together the need for different types of assistance and the extra expenses incurred.
22. It follows from section 6 of the 1998 Act that disability benefits are granted on a yearly basis at a level of 69%, 53% or 36% of the basic amount for social security purposes (prisbasbelopp) depending on the extent to which the person in question is in need of assistance and the amount of extra expenses caused by the disability. The basic amount was SEK 36,400 for 1999, SEK 36,600 for 2000 and SEK 36,900 for 2001.
23. A medical report is required when it comes to the assessment of the functional impairment itself. As to the disabled person’s need of support, regard must be had to the fact that support may be provided naturally to a certain extent by the person’s husband or wife or another person with whom the person is living. If the support amounts to two hours per day, the need for assistance is considered time-consuming and may, for that reason, constitute a basis for granting disability benefits amounting to 36% of the basic amount, even if there are no extra expenses (see Guidelines of the National Social Insurance Board, Riksförsäkringsverket, AR 1998:5, applicable at the time of the Office’s decision). As far as the assessment of extra costs is concerned, account has to be taken of whether and to what extent the disabled person has access to assistance provided by the municipal social services, such as having his or her own personal assistant or having the possibility of using municipal transport services for the disabled. According to the above-mentioned Guidelines, considerable extra expenses incurred as a consequence of the functional impairment may in themselves result in a right to disability benefits amounting to 36% of the basic amount, provided the extra expenses come to at least 28.5% of the basic amount. It is necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the Guidelines, the total cost of all extra needs due to the disability should attain at least 28.5% of the basic amount in order to make the individual eligible for disability benefit. Thus, if a person needs support for only one hour per day but also extra expenses amounting to 15% of the basic amount, he or she is entitled to 36% of the basic amount in disability benefits (see Guidelines of the National Social Insurance Board, cited above, p. 24).
24. In order to be granted disability benefits, the individual has to file an application with a social insurance office (section 11). The benefits are paid as from the beginning of the month when the entitlement to the benefits arose. Disability benefits may be paid for a certain period of time before the insured person filed the application. Such retroactive payment may refer at most to a period of two years preceding the application (section 13). The purpose of the latter regulation is to avoid situations where the individual would lose his or her right to the benefits owing to lack of information (see Government Bill 1988/89:42, p. 9). Since 1 July 2004, retroactive payment of disability benefits may at most refer to a period of six months preceding the application.
25. Section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, Act no. 1971:291, as in force at the relevant time) was worded as follows:
“The procedure shall be in writing.
Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
26. The travaux préparatoires to the Administrative Court Procedure Act emphasise that an oral procedure can be advantageous for the investigation of a case in two respects in particular. Firstly, such a hearing may be needed in order to examine a witness, expert or party or in cases where a party has difficulty expounding his or her claim in writing. Secondly, an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute. In the latter case, the procedure is typically of a preparatory nature. Moreover, the oral form of procedure envisaged in the 1971 Act is not to be seen as an alternative to the written form, but rather as a complement to that form (see the Government Bill 1971:30, p. 535).
27. The possibility of holding an oral hearing in order to promote an expeditious determination of the case, which was first introduced in 1983, was a clarification of a practice that already applied (see the Government Bill 1982/83:134, Parliamentary Committee on Justice JuU 36, Parliamentary Communication 378, SFS 1983:461). The purpose of the legislative amendment was to make it clearer that an oral hearing can and should be used for preparatory purposes in certain cases, to make for speedier and more effective proceedings. The amendment was primarily intended for tax cases associated with tax offence cases before courts of general jurisdiction.
28. Furthermore, the travaux préparatoires to the 1971 Act underlined, in connection with the provision in section 9 of the Act concerning the right of a party to an oral hearing in certain cases, that while serious consideration should be given to the wishes of a party for such a hearing, the party could hardly be allowed to have a decisive influence in the matter. The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case, but it should also be possible to accord significance to other factors, for example, if the case is very important for the party and a hearing would give him a better understanding of the import of the decision to be given in the case. One particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute (see Government Bill 1971:30, p. 537).
29. In recent years the Supreme Administrative Court has set aside a number of decisions on appeal and referred the case back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts (see, for example, RA 2002 ref. 23, BA 2003 note 68, RA 2004 note 65 and RA 2007 note 171; as more specifically regards work injuries, see RA 2004 note 66 and RA 2006 note 207). In the last mentioned case, an administrative court of appeal had changed the lower court’s judgment to the applicant’s disadvantage without holding an oral hearing. Furthermore, the applicant had requested that a medical doctor be heard as a witness.
30. In a judgment of 9 June 2005 concerning a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention on account of the excessive length of the criminal proceedings, the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damages. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard.
31. In a decision of 4 May 2007, the Supreme Court held that the principle concerning a right to damages established in the above-mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act (Skadeståndslagen, Act no. 1972:207) and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, Act no. 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.
32. In a judgment of 21 September 2007, the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the abovementioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damage for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking, these levels should, however, be compatible with the case-law of the Court. In the same case, Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005.
33. A further Supreme Court judgment of 28 November 2007 concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty, which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court thus referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001III).
34. Finally, in a decision of 11 October 2007 concerning a claim for damages against the Swedish State, the Chancellor of Justice held that the right of one of the plaintiffs under Article 6 of the Convention had been violated on account of the excessive length of the civil proceedings. Based on this finding, and with reference to the above-mentioned Supreme Court judgments of 9 June 2005 and 21 September 2007, the Chancellor of Justice concluded that the individual was entitled to compensation from the State for non-pecuniary damage. With respect to the level of compensation, the Chancellor of Justice took note of the Court’s case-law, in particular the case of Ernestina Zullo v. Italy ([GC], no. 64897/01, 29 March 2006).
35. In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damage arising from disregard of the Convention, and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69136
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SILDEDZIS v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 9. On 11 March 1997 the applicant acquired a car – a Renault 21 Nevada - at an auction organised by the Białystok Tax Office. Having subsequently had certain technical defects of the car repaired, the applicant applied to the Białystok Municipal Office for registration. On an unspecified date the Director of the Office refused to do so on the ground that the car was unfit for use and could therefore be used only as scrap-metal. After numerous entreaties of the applicant, the Director orally agreed to register the car on condition that the applicant replaced the engine and a part of the chassis. On 17 March 1997 the applicant requested the Białystok Tax Office to reimburse the costs involved in the acquisition of the new engine and chassis. On 15 April 1997 the Białystok Tax Office declined the applicant’s request on unspecified grounds. Subsequently, the applicant ordered a new engine and chassis and made an advance payment in the amount of PLN 3000.
10. On 20 March 1997 the applicant was served with a decision of the Director of the Białystok Municipal Office refusing his request to register the car. The Director referred to the fact that the identification numbers of the engine and chassis had been forged and that that it was therefore impossible to find out who had owned car before its acquisition by the applicant. Therefore, the car could not be considered as a “recovered stolen car” within the meaning of the Annex No. 7 to the ministerial Order of 12 October 1995 (§ 28 below), which was a prerequisite for obtaining new identification numbers. On 23 April 1997 the Białystok Governor upheld the contested decision on the same grounds.
11. In a letter of 5 May 1997 the Warsaw-Śródmieście District Prosecutor expressed regret for the administrative authority’s refusal to register the applicant’s car and remarked on the lack of consistency in the interpretation of the relevant provisions by the authorities handling the applicant’s case. He also suggested that the applicant request the prosecuting authorities, in their capacity as guardians of legal order, to join administrative proceedings on his behalf.
On 7 May 1997 the Białystok Municipal Office informed the applicant that pursuant to the relevant regulations a car of unknown origin could not be registered.
12. On 3 July 1997 the Białystok District Prosecutor refused to institute proceedings against the public servants who had issued the administrative decisions in the applicant’s case, finding that they had no case to answer.
13. In reply to the applicant’s request, on 27 August 1997 the Ombudsman refused to act on his behalf, considering that the law only allowed new identification numbers to be engraved and the registration to be obtained on conditions which were not met in the applicant’s case.
14. On 8 September 1997 the Warszawa-Śródmieście District Prosecutor informed the applicant that the car in question, being “the subject of a criminal offence”, had been handed over to the Białystok Tax Office on the basis of a decision concerning exhibits, with a view to selling it at an auction under §§ 1 and 4 of the Regulation of the Council of Ministers of 6 March 1971 (§ 27 below).
15. On 2 October 1997 the Supreme Administrative Court quashed the decisions of 20 March 1997 and 23 April 1997. It found that the administrative authorities had failed to provide any reasons for their refusal of registration. In respect of the new chassis and engine identification numbers, the court noted that a conclusion as to whether “the stolen car has been recovered” had to be based on the final decision given either in the investigative or in the judicial proceedings.
16. By a decision of 13 February 1998 the Białystok Municipal Office stayed the proceedings concerning the permit to engrave new car identification numbers until the question whether the car had been “recovered” within the meaning of the applicable law was settled.
17. By a letter of 17 March 1998 to the Białystok Municipal Office, the Warsaw-Śródmieście District Prosecutor expressed the opinion that, in view of the fact that the Białystok Tax Office had been the legitimate vendor and the applicant, who had purchased the car in good faith, was its legitimate owner, there was no reason for a further delay in registering the car. In reply, the Białystok Municipal Office informed the prosecutor on 31 March 1998 that there was no possibility of registering a vehicle of unknown origin, that is, one lacking original factory numbers.
18. In a letter to the applicant dated 7 May 1998 the Białystok Appellate Prosecutor considered that there were no grounds on which disciplinary proceedings could be instituted against the Białystok prosecutors. All the same, he acknowledged that the case was “a complex one.” It could not be denied that the applicant was a legitimate owner of the car which he had purchased from a legitimate vendor. In the prosecutor’s view, the difficulty in registering the car stemmed from deficiencies in the legal provisions in specifying the necessary conditions that had to be fulfilled for a car to be registered. These conditions were defined by the Regulation of the Minister of Transport and Maritime Economy of 1 February 1993 (§ 27 below). He further observed that, according to the Supreme Administrative Court’s opinion expressed in the judgment of 2 October 1997, a final decision given either in the investigative or in the judicial proceedings, stating that the car had been stolen, should provide a sufficient basis for its registration (§ 15 above).
19. On 29 May 1998 the Białystok District Prosecutor informed the applicant that there were no grounds for instituting criminal proceedings against the public servants at the Białystok Municipal Office, because it had not been shown that when acting in the applicant’s case they had abused their powers. As for the charge of lack of diligence, this could not be proceeded with, given that the applicant had not suffered pecuniary damage which was sufficiently serious, that is in an amount exceeding 50 average salaries.
On the same date the Białystok District Court rejected the applicant’s civil claim against the State Treasury for a declaratory judgment. The court considered that the applicant’s ownership was not in dispute. Nonetheless, the claim to establish that the car met the legal requirements for its registration could not be examined by a civil court. This would constitute an unacceptable way of controlling the lawfulness of an administrative decision, and it was only the Supreme Administrative Court which had jurisdiction to do so.
20. On 15 June 1998 the Białystok Regional Prosecutor requested the Minister of Transport and Maritime Economy to consider the possibility of granting the applicant, by way of exception, a permit for engraving new car identification numbers. It was argued that in all likelihood the car had been stolen by someone in obscure circumstances to the detriment of an unknown person and subsequently handed over to the tax office to be sold. The fact that the applicant could not be granted the permit to have new car identification numbers engraved had adversely affected his property rights in a manner which, give could not be accepted. This request was later refused by a decision of 24 November 1998.
21. By a decision of 6 August 1998 the Białystok Regional Court quashed the decision of 29 May 1998 given by the Białystok District Court (§ 19 above), considering that since the applicant had not specified his claim, the question whether the civil courts had jurisdiction to entertain his case remained open.
By a decision of 14 October 1998 the Białystok District Court rejected the applicant’s civil claim on the same grounds as those relied on in its first decision of 29 May 1998.
22. On 17 December 1998 the Białystok District Court dismissed the applicant’s new claim against the State Treasury for a declaratory judgment, considering that a claimant in declaratory civil proceedings could request the court to determine the existence of a right or of a legal relationship, but that it was not open to the claimant to seek findings of fact in such proceedings.
23. On 23 January 1999 the Warsaw District Prosecutor discontinued the proceedings, instituted at the applicant’s request, concerning the theft of the car and the forging of its identification numbers, on the ground that the perpetrator of the offence was unknown.
By a decision of 8 March 1999 the Białystok Municipal Office refused the Białystok Regional Prosecutor’s request to resume the stayed proceedings concerning the permit for engraving new car identification numbers (§ 16 above), considering that the original factory car numbers had not been conclusively established. On 18 March 1999 the Białystok Regional Prosecutor lodged an appeal against this decision with the Regional Self-government Board of Appeal, submitting that since a preliminary question concerning the theft of the car had already been determined, the administrative authority was obliged to register the car. By a decision of 22 March 1999 the Board allowed the appeal and quashed this decision.
24. On 15 April 1999 the Białystok Municipal Office again refused to grant the applicant a permit for engraving new identification numbers, concluding that the car could not be considered “recovered by the owner or by an insurance company” since its factory numbers and the original owner had not been established in the course of the investigation. The applicant and the Białystok Regional Prosecutor appealed. The Prosecutor, in his appeal of 5 May 1999, referring to the failure to establish the original owner of the car and its factory numbers, expressed the opinion that the Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 did not lay down such a requirement for registration and that therefore the first-instance organ had failed to interpret it correctly.
25. On 3 July 1999 the Białystok Self-government Board of Appeal quashed the impugned decision and referred the case back to the first-instance organ for re-examination, observing that the request should be examined in the light of a new legal situation which had in the meantime changed as a new Regulation had been enacted (see § 29 below).
26. By a decision of 19 July 1999 the Białystok Municipal Office consented to the engraving of new car identification numbers and, as a consequence, registered the applicant’s car.
27. Pursuant to §§ 1 and 4 of the Regulation of the Council of Ministers of 16 March 1971 (Rozporządzenie Rady Ministrów z dnia 27.031971 w sprawie orzekania o przejściu depozytów na własność Państwa) courts, prosecutors, administrative authorities, state authorities, state enterprises and banks are entitled to decide on the seizure of unclaimed objects by the State. Those objects, the prolonged storage of which would create a risk of destruction or a substantial loss in value, or the storage of which would be too costly or whose non-use would be against the public interest, shall be sold.
The relevant part of the Regulation of the Minister of Transport and Maritime Economy of 1 February 1993 on technical conditions and examination of vehicles (Rozporządzenie Ministra Transportu i Gospodarki Morskiej z 1.02.1993 w sprawie warunków technicznych i badań pojazdów) provided:
“§ 10. Every vehicle must be equipped with
1) a plate affixed permanently in a easily accessible place, indicating at least:
....
c) the vehicle identification number (VIN), this number should also be engraved on the chassis (bodywork) of a car, ...”
28. Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 - Instruction on allocating and engraving chassis (bodywork) numbers and car engines numbers and on manufacturing substitute plates (Załącznik nr 7 do zarządzenia Ministra Transportu i Gospodarki Morskiej z 12.10.1995 - Instrukcja w sprawie nadawania i wybijanaia numerów na podwoziach (nadwoziach) i silnikach oraz wykonywania tabliczek zastępczych) reads as follows:
“§ 2.1. New [identification] numbers shall be allocated and engraved with the permission of the relevant registering authorities only in the following cases:
......
4) where the chassis (bodywork) numbers or engine numbers of a recovered stolen car have been obliterated or forged.”
29. The Regulation of the Minister of Transport and Maritime Economy of 19 June 1999 on registration and identification of vehicles (Rozporządzenie Ministra Transportu i Gospodarki Morskiej w sprawie rejestracji i oznaczania pojazdów 19.06.1999) which entered into force on 1 July 1999 provides that the owner of a car to be registered is not required to submit a certificate of registration (of a car that has been already registered) or a vehicle card (if it has been already issued) in a case where the car has been purchased at a public auction or from a person executing an order for forfeiture of the vehicle to the State Treasury.