ITEMID: 001-110924
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LABSI v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Algeria);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi
TEXT: 5. The applicant was born in 1969. At present he is detained in El Harrach prison in Algeria.
6. The applicant left Algeria for Italy in 1991. He subsequently spent time in Spain, Switzerland, Canada, Pakistan and Afghanistan. In 1999 the applicant arrived in the United Kingdom where he applied for asylum. His request was dismissed.
7. On 13 January 2001 the applicant was placed in custody in the United Kingdom as a result of several accusations made against him in different countries. The only one that was pursued was that of “association de malfaiteurs”. It was imputed to the applicant that, when living in Montreal, he had been involved in the supply of false documents which had been used by individuals in France when they had fled arrest for offences committed there.
8. The United Kingdom extradited the applicant to France. On 7 April 2006 he was found guilty by a French court of involvement, as a member of an organised group, in the preparation, between 1996 and 1998, of a terrorist act in France and several other countries and of forging identity documents. He received a five-year sentence and was excluded from the territory of France. The applicant did not appeal and was released immediately upon conviction on the ground that he had served the sentence in the context of his prior detention while awaiting extradition. On 11 April 2006 the applicant arrived in Slovakia.
9. In the meantime, on 1 June 2005, an Algerian court had convicted the applicant, in absentia, of membership of a terrorist organisation acting both in Algeria and abroad, and of forgery. He was sentenced to life imprisonment.
10. In January 2001 the applicant married a Slovakian national in London. A child was born to the couple on 2 August 2001.
11. With effect from 25 October 2007 the applicant’s wife was deprived of legal capacity to act. The child was entrusted to the care and custody of the applicant’s wife’s mother. On 29 May 2008 the latter, acting as guardian of her daughter, petitioned for divorce. The divorce proceedings are pending before the Bratislava IV District Court; it is not clear from the parties’ submissions whether a final decision has been given.
12. On 18 July 2006 the Migration Office dismissed the applicant’s first asylum request. The Bratislava Regional Court dismissed the applicant’s action challenging that decision.
13. On 24 September 2007 the Migration Office dismissed his second request for asylum. It held that there were no obstacles to the administrative expulsion of the applicant to Algeria. On 30 October 2007 the applicant’s lawyer waived the right to challenge that administrative decision. It thus became final on that date.
14. On 6 October 2008 the Migration Office dismissed the applicant’s third request for asylum. It further decided not to afford the applicant the status of “subsidiary protection” (doplnková ochrana) under the Asylum Act 2002.
15. On 4 February 2009 the Bratislava Regional Court quashed that decision. It ordered the administrative authority to establish all the relevant facts and to give comprehensive reasons for its conclusion.
16. On 5 June 2009 the Migration Office again decided not to grant asylum to the applicant and not to provide him with subsidiary protection under the Asylum Act 2002.
17. It was found that the applicant’s fears were subjective in nature and unsubstantiated by objective facts, that he had failed to show that he was subjected to persecution and that such persecution was politically motivated. If returned to Algeria, the applicant could seek a retrial on the ground that he had already been convicted in France and had served the sentence imposed in that context. Moreover, the applicant represented a security risk to the Slovak Republic and to society. His arguments under Article 3 of the Convention could not be taken into account because the matter under review concerned his asylum status and not his extradition.
18. On 28 October 2009 the Bratislava Regional Court upheld the Migration Office’s decision on the applicant’s third asylum request.
19. The applicant appealed. He argued that he risked being subjected to torture and inhuman and degrading treatment and being sentenced to death if returned to Algeria. The applicant also argued that he had family ties in Slovakia and that he wished to take care of his wife, who suffered from an illness, and their son.
20. On 30 March 2010 the Supreme Court upheld the Regional Court’s judgment of 28 October 2009. The Supreme Court held, in particular, that the applicant’s wish to maintain ties with his wife and child, who were Slovakian nationals, was not a relevant ground for granting him asylum. Furthermore, the applicant had been convicted in Algeria of criminal offences linked to the activities of the Salafist Group for Preaching and Combat, the aim of which was to establish, by violent means, a fundamentalist Islamic State in Algeria. Armed attacks carried out by the group could not be considered as a means of political struggle justifying the applicant’s protection from persecution for political opinions within the meaning of the Asylum Act 2002.
21. As to the alleged risk of the applicant’s ill-treatment in Algeria, the Supreme Court held that the Court’s case-law under Article 3 of the Convention concerned cases of expulsion or extradition but not those relating to requests for asylum.
22. The applicant had not shown that justified reasons existed to believe that he could be persecuted for any of the reasons laid down in section 8 of the Asylum Act 2002, namely on the ground of his race, ethnic origin, belonging to a social group, for religious reasons or because of his political opinion.
23. In the Supreme Court’s view, the purpose of granting subsidiary protection was to avoid unsuccessful asylum seekers being removed from Slovakia in certain justified cases. However, such subsidiary protection was excluded, inter alia, where there were serious reasons to believe that an asylum seeker represented a risk to society or the safety of the State in which he or she applied for asylum. Reference was made to Articles 12 and 17 of the Council of the European Union Directive 2004/83/EC and subsections 2(d) and (e) of section 13c of the Asylum Act 2002.
24. The applicant’s conviction in France, on 7 April 2006, of involvement in a terrorist organisation and his admission that he had been trained in Afghanistan in handling weapons and explosives, as well as other information gathered by the Office for the Fight Against Organised Crime, justified the conclusion that the applicant could provide assistance to persons suspected of involvement in terrorist groups operating worldwide. The decision not to grant subsidiary protection to the applicant was therefore lawful. That conclusion could not be affected by the express admission by the Migration Office, in the context of the asylum proceedings, that the applicant could be exposed to a real risk of inhuman treatment if returned to Algeria.
25. Finally, the Supreme Court noted that the applicant had unlawfully left for Austria while proceedings concerning his asylum request in Slovakia had been pending and that he had lodged an asylum request in Austria. It concluded that the applicant was not genuinely interested in protection by the Slovakian authorities.
26. The Supreme Court’s judgment was served on the applicant and became final on 16 April 2010.
27. On 20 July 2006, the Border and Foreigners Police Department in Bratislava ordered the applicant’s expulsion and banned him from entering Slovakia for ten years. The decision became final and binding on 12 October 2006. The applicant was expelled to Austria on the basis of the decision.
28. In May 2007 the Austrian authorities returned the applicant to Slovakia where he was placed under provisional arrest. On 20 June 2007 he was remanded in custody pending his extradition on a warrant in connection with the above-mentioned Algerian court’s judgment of 1 June 2005.
29. On 30 November 2007 the Bratislava Regional Court gave its consent to the applicant’s extradition to Algeria. On 22 January 2008 the Supreme Court approved that decision. On 13 March 2008 the Constitutional Court suspended the effect of the Supreme Court’s decision pending its decision on the applicant’s complaint that he would run the risk of ill-treatment if he were extradited to his country of origin.
30. On 26 June 2008 the Constitutional Court quashed the Supreme Court’s decision of 22 January 2008. It instructed the latter to re-examine the case with particular emphasis on the alleged threat of the applicant being subjected to treatment contrary to Article 3 of the Convention in the event of his extradition.
31. On 7 August 2008 the Supreme Court found that the applicant’s extradition to Algeria was not permissible. On the same date the applicant was released.
32. In its judgment the Supreme Court relied on a number of international documents, such as reports of the UN Human Rights Committee of 2007 and the UN Committee against Torture of 2008, a document prepared by the UNHCR, documents issued by Amnesty International, the United States Department of State, the British Foreign and Commonwealth Office, Human Rights Watch and the Court’s judgment in Saadi v. Italy [GC], no. 37201/06, ECHR 2008).
33. In particular, the Supreme Court referred to the broad powers of investigation of the Department of Intelligence and Security (DRS), documented reports on detention of suspects incommunicado in secret DRS centres, and numerous reports of torture and inhuman or degrading treatment of people at the hands of the DRS. The information available indicated that the DRS had systematically used torture and other forms of ill-treatment in respect of individuals deemed to have information about terrorist activities.
34. Furthermore, the law and practice in Algeria did not exclude the use in judicial proceedings of evidence which had been extracted under torture. The Algerian authorities had refused to co-operate with special rapporteurs or working groups established within the UN system and with non-governmental organisations with a view to clarifying the position. Similarly, the Algerian authorities had refused to allow monitoring the situation of people who had been returned to that country.
35. The Supreme Court noted that the relevant regulation did not list Algeria as a safe country of origin. It concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to Article 3 of the Convention in the event of his extradition to Algeria.
36. Subsequently the applicant was apprehended and placed in a detention centre for foreigners in Medveďov on the basis of the Border and Foreigners Police decision of 7 August 2008. Reference was made to the above-mentioned decision of 20 July 2006 to expel the applicant and to exclude him from the territory of Slovakia for ten years. The decision stated that proceedings concerning the applicant’s expulsion were still under way.
37. On 17 October 2008 the applicant requested leave to stay in Slovakia (tolerovaný pobyt). The police dismissed the request.
38. On 3 February 2009 the applicant was released from the detention centre for foreigners in Medveďov. He was placed in an accommodation facility for asylum seekers in Opatovská Nová Ves and, later, in a similar facility in Rohanovce. During his stay in those facilities the applicant’s freedom of movement was restricted. He unsuccessfully sought redress before the Supreme Court and the Constitutional Court, which decided on his claim on 3 March 2009 and 16 December 2009 respectively.
39. On 19 December 2009 the applicant left the facility in Rohanovce and arrived in a centre for refugees in Austria. The Austrian authorities returned him to Slovakia on 11 March 2010.
40. On 22 April 2010 the Minister of the Interior informed the media that the applicant had been expelled from Slovakia and escorted to Algeria in accordance with the decision of the Border and Foreigners Police Department in Bratislava of 20 July 2006. The applicant’s representative learned about his expulsion from press articles.
41. A letter from the Algerian Ministry of Justice of 2 July 2007 indicated that the Algiers Criminal Court had convicted the applicant in absentia, on 1 June 2005, of belonging to a terrorist organisation acting both in Algeria and abroad and of forgery under Articles 87bis, 87bis §§ 3 and 6 and Article 222 of the Criminal Code. His extradition was requested with a view to re-trying him for the same offences. His previous conviction in absentia would lose effect upon his return to Algeria pursuant to Article 326 of the Criminal Code. In the event of his extradition the applicant would have an adversarial trial before the criminal court, the judgment of which could be appealed against to the Supreme Court. Assistance by legal counsel was mandatory in such proceedings. Under the Criminal Code the offences imputed to the applicant were not punishable by capital penalty.
42. In a letter of 25 September 2007 a representative of the Algerian Ministry of Justice indicated that his country had not yet ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless, the law in force established a system of control permitting detained persons to seek redress in the event of a breach of their rights. Furthermore, the collaborators of the International Committee of the Red Cross had the possibility of visiting detained persons in private. Torture and other forms of ill-treatment were subject to heavy penalties under the Algerian Criminal Code.
43. In a letter of 22 September 2010 the Algerian Ministry of Justice indicated that the applicant’s conviction by the judgment of 1 June 2005 had lost effect following his return to Algeria. He was being detained in El Harrach prison under an order issued by the indictment chamber of the Algiers Criminal Court. The applicant had the right to meet an advocate in private, to receive visits by members of his family, to file complaints and to medical care. The applicant’s trial was scheduled for October 2010. He had the right to assistance by counsel and could avail himself of a variety of procedural rights incorporated in the Code of Criminal Procedure. Finally, the letter indicated that several persons suspected of terrorism had been extradited or expelled to Algeria from the United Kingdom, Spain or the United States and that all those persons had been treated in accordance with the law.
44. On 13 December 2010 the Slovakian Ministry of the Interior asked the Algerian Embassy in Vienna for a visit of the former’s State Secretary to be arranged during which he could discuss the applicant’s situation with the Algerian penitentiary administration. The Government submitted no further information as regards that initiative.
45. In a verbal note of 5 April 2011 the Algerian Embassy in Vienna informed the Slovakian Ministry of Foreign Affairs that the Algiers Criminal Court had convicted the applicant, on 12 January 2011, of having belonged to a terrorist group acting abroad. The trial had been public and covered by the media and the applicant had been defended by counsel of his choice. He had been sentenced to a three-year prison term with twelve months suspended and to a fine of 500,000 Algerian dinars. The applicant had also been prohibited from exercising public functions after his release and from exercising his property rights.
46. The verbal note further stated that the charges of having belonged to a terrorist group acting within Algeria and of complicity in forgery and use of forgeries had not been upheld by the tribunal. Both the prosecution and the applicant’s counsel had appealed against the judgment on 17 January 2011.
47. No further information has been provided.
48. On 18 July 2008 the Acting President of the Court’s Chamber decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Algeria.
49. On 13 August 2008 the Acting President of the Chamber again decided to indicate to the respondent Government under Rule 39 that the applicant should not be expelled to Algeria. The measure was to remain in force “for a period of two weeks following the outcome of the asylum proceedings, the ensuing expulsion proceedings as the case [might] be and, as appropriate, of any complaint which [the applicant] lodge[d] with the Constitutional Court in respect of those proceedings.”
50. On 15 April 2010 the applicant’s legal representative requested the Court to clarify the conditions of the interim measure of 13 August 2008. The advocate explained that the applicant’s asylum case had been dismissed by the Supreme Court two weeks before and, in the absence of the written version of the judgment with reasons, the applicant had not had an opportunity to challenge it before the Constitutional Court.
51. On 16 April 2010 the Section Registrar informed the applicant that, in applying Rule 39, the Acting President had wished to ensure that the applicant would not be expelled before he had exhausted domestic remedies. The relevant part of the letter reads:
“The Rule 39 measure remains in force until the Constitutional Court has pronounced on the applicant’s constitutional complaint.
It is clear that the applicant needs the reasons given by the Supreme Court for refusing his asylum case to enable him to lodge a complaint under Article 127 of the Constitution with the Constitutional Court.
The two-week period referred to in the Registry’s letter of 13 August 2008 runs from the date on which the final decision is given with reasons and is intended to allow the Court, in the light of the reasons given by the Constitutional Court, to decide whether to lift or continue to apply Rule 39.”
52. A copy of the letter was sent to the Government with specific mention that the Rule 39 measure was still in force.
53. On 22 April 2010 the applicant’s representative informed the Court that it was impossible to contact the applicant and that, according to media reports, he had been expelled to Algeria earlier that week.
54. On 22 April 2010, on instruction by the President of the Section, the Section Registrar requested the Government to confirm or deny the reports of the applicant’s expulsion.
55. On 26 April 2010 the Government informed the Court that the applicant had been expelled on 19 April 2010. The expulsion had been carried out on the basis of the final and binding decision of the Border and Foreigners Police Department of 20 July 2006. Since the Supreme Court’s judgment in the asylum proceedings had become final on 16 April 2010, on the national level the applicant was considered to be a foreigner without permission to stay in Slovakia.
56. On 28 April 2010 the Registrar of the Court sent the following letter to the Government:
“The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Mustapha Labsi to Algeria in disrespect of the Court’s interim measure adopted under Rule 39 of the Rules of Court.
The President has noted in this connection that on 16 April 2010 your authorities were reminded in clear terms by the Registrar of Section IV of the Court that the Rule 39 measure, first applied on 13 August 2008, continued to remain in force. Nevertheless, the Government extradited the applicant to Algeria on 19 April.
The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately.
The President also notes that notwithstanding the Court’s request of 22 April 2010 for clarification of the circumstances surrounding Mr Labsi’s extradition, your letter of 26 April failed to explain why the Rule 39 measure was not complied with. The President expects your authorities to provide an explanation. He would in particular request your authorities to confirm or deny reports that the spokesperson of the Ministry of the Interior declared that his authorities were prepared to run the risk of being found to be in breach of the Convention and that other States which had failed to comply with a Rule 39 measure only had to pay ‘a few thousand euros’”.
57. In a reply dated 10 May 2010 the Vice-Prime Minister holding the post of the Minister of the Interior stated that all the relevant facts and legal issues had been taken into account prior to the applicant’s expulsion to Algeria, which had been carried out in accordance with the police decision of 20 July 2006.
58. The letter indicated, inter alia, that the offences of which the applicant had been convicted in absentia did not carry a capital penalty. The Algerian authorities had confirmed that the applicant would receive a new trial in which his defence rights would be respected and that all forms of violence against individuals were punishable under Algerian law.
59. The applicant had been convicted and sentenced to five years’ imprisonment in France; he had also been banned from the territory of that State. Information about the applicant, including his involvement in the activities of terrorist groups and the fact that an international arrest warrant had been issued by Algerian authorities, was entered in the Schengen information system. The Slovakian police’s decision to expel the applicant was also based on the obligation resulting from Council Directive 2001/40/EC of 28 May 2001, which requires the police in Slovakia to ensure the enforcement of an expulsion decision issued in one of the States within the European Economic Area where a foreigner was sentenced to a prison term of at least one year.
60. On the basis of all the information available the Slovakian police had concluded that the applicant represented a real risk to the security of the Slovak Republic and to society. The Supreme Court, in its decision concerning the applicant’s third request for asylum, had reached the same conclusion.
61. The Ministry of the Interior believed that the need to protect society from a person who had been convicted of involvement in a terrorist group prevailed in the present case and that the applicant’s expulsion had not been contrary to Slovakia’s undertakings under the Convention. The statements which the spokesperson of the Ministry of the Interior had made about the applicant’s case and the Court’s practice were to be interpreted in that context.
62. At the time of lodging the application the applicant was represented by Ms M. Kolíková, a lawyer practising in Bratislava. In a letter of 9 July 2010 Ms Kolíková informed the Court that her right to practice as an advocate had been suspended as of that date following her appointment as Secretary of State at the Ministry of Justice. The letter further stated that Mr M. Hrbáň, a lawyer practising in Bratislava, was prepared to take over the applicant’s representation before the Court. It was impossible to contact the applicant for practical reasons, but the necessary steps would be taken with a view to ensuring his proper representation.
63. On 30 July 2010 Mr M. Hrbáň confirmed that, upon agreement with Ms Kolíková, he undertook to protect the applicant’s rights and to submit a power of attorney from the applicant as soon as he could obtain one.
64. On 31 March 2011 and 5 September 2011 Mr Hrbáň informed the Court that he had sent three letters to the applicant in El Harrach prison in Algeria to which he had received no reply. The Ministry of the Interior of the Slovak Republic had refused to inform Mr Hrbáň of the applicant’s address on the ground that he had not produced a power of attorney to represent the applicant. Efforts were being made, in co-operation with Amnesty International, to obtain more information about the applicant’s whereabouts.
65. Mr Hrbáň stated, with reference to section 17 of the Bar Act 2003, that Ms Kolíková had appointed him as her substitute on the basis of their mutual agreement. The client’s consent and submission of a new power of attorney were not required in such circumstances.
66. In a letter of 11 April 2011 Mr Hrbáň submitted information about the applicant’s fresh trial and conviction in Algeria which he had obtained from representatives of Amnesty International, one of whom had talked to the applicant’s brother. That information corresponds to that which the Algerian Ministry of Justice had furnished to the respondent Government (see paragraph 45 above).
67. On 5 September 2011 Mr Hrbáň informed the Court that he had been unable to establish contact with the applicant. He maintained that he acted in good faith with a view to defending the applicant’s interests and that he had not modified the subject-matter of the application as submitted by the representative whom the applicant had appointed. He would continue in his efforts to contact the applicant in Algeria and asked the Court to consider his submissions as an amicus curiae intervention.
68. Section 13a entitles the Ministry of the Interior to grant subsidiary protection to unsuccessful asylum seekers. Except for cases where the Asylum Act 2002 provides otherwise, such subsidiary protection is to be granted where there are serious grounds to believe that an asylum seeker would be exposed to a real threat of serious lawlessness in the event of his or her return to the country of origin.
69. Pursuant to sub-sections (2)(e) and (d) of section 13c, the Ministry of the Interior should not grant subsidiary protection to an unsuccessful asylum seeker who represents a security threat to the Slovak Republic or a danger to society.
70. Pursuant to section 16(1) and (3), within the framework of a power of attorney issued by a client, a lawyer may ask a different lawyer to represent him or her. However, such substitution of lawyers is not permissible contrary to the client’s will.
71. Pursuant to section 17(1), an individually practising lawyer who encounters an obstacle preventing him or her from carrying out his or her duties is obliged, unless other steps are taken with a view to protecting the client’s rights and interests, to appoint a different lawyer as his or her substitute, based on an agreement with the latter and within one month at the latest. The client is to be informed of the arrangement without delay. Where an advocate fails to comply with that obligation, the Bar Association is to appoint a substitute lawyer to represent the client.
72. Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support.
73. Pursuant to section 50(2), a plaintiff has to enclose to his or her complaint a copy of the final decision, measure or the evidence of any other interference in issue.
74. Section 52(1) provides that the filing of a complaint has no automatic suspensive effect. Under subsection 2 the Constitutional Court can issue an interim measure, at the request of the plaintiff, suspending the enforceability of a final decision, measure or other interference.
75. Section 53(3) provides that a complaint to the Constitutional Court can be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the plaintiff’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a practical possibility of becoming aware of them.
76. In a statement published on 29 April 2010 the Secretary General of the Council of Europe expressed his regret that the Slovak authorities had extradited the applicant in disregard of the interim measure ordered by the Court.
77. In a separate statement published on the same day the chairpersons of two committees of the Parliamentary Assembly of the Council of Europe expressed their shock and concern at the decision taken by the Slovak authorities to extradite the applicant to Algeria.
78. The Human Rights Committee considered the third periodic report of Algeria submitted under Article 40 of the International Covenant on Civil and Political Rights and adopted its concluding observations on 1 November 2007. The relevant parts read as follows:
“11. While noting the assurances given by the State party’s delegation on the periodic and unannounced inspections that the authorities and the International Committee of the Red Cross conduct in prisons, the Committee is concerned about the numerous reports from non-governmental sources pointing to the existence of secret detention centres located, allegedly, at Houch Chnou, Oued Namous, Reggane, El Harrach and Ouargla, among others, where persons deprived of their liberty are allegedly being held. (...)
15. The Committee takes note with concern of the information regarding cases of torture and cruel, inhuman or degrading treatment in the State party, for which the Intelligence and Security Department reportedly has responsibility. (...)
19. The Committee is concerned that confessions obtained under torture are not explicitly prohibited and excluded as evidence under the State party’s legislation.”
79. On 13 May 2008 the Committee against Torture adopted its concluding observations in respect of the third periodic report submitted by Algeria under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They comprise the following parts:
“6. The Committee takes note of the State party’s assurances that Intelligence and Security Department officers are placed under the control of the Public Prosecutor’s Office, and that secure detention centres no longer exist as of November 1996. The Committee nevertheless remains concerned about reports of the existence of secret detention centres run by the Department in its military barracks in Antar, in the Hydra district of Algiers, which are outside the control of the courts. The Committee is also concerned about the lack of information showing that the competent judicial authority has taken steps to look into these allegations. (...)
10. While taking note of the information provided by the delegation of the State party concerning its efforts to provide human rights training for law enforcement personnel, the Committee nevertheless remains concerned at the many serious allegations which it has received of cases of torture and abuse inflicted on detainees by law enforcement officers, including officers of the Intelligence and Security Department. (...)
18. While noting the Algerian delegation’s assurances that confessions are used only for information purposes in legal proceedings, in accordance with article 215 of the Code of Criminal Procedure, the Committee remains concerned about the lack of a provision in the State party’s legislation clearly specifying that any statement that is proved to have been obtained as a result of torture may not be cited as evidence in any proceedings, in accordance with article 15 of the Convention. In addition, the Committee is concerned that article 213 of the Code of Criminal Procedure specifies that, ‘as with any evidence, the evaluation of confessions is a matter for the judge’, as well as information received that confessions obtained as a result of torture have been admitted in legal proceedings.”
80. The Working Group on the Universal Periodic Review, established in accordance with Human Rights Council resolution 5/1 of 18 June 2007, held the review of Algeria on 14 April 2008.
81. While presenting the national report the Minister of Foreign Affairs of Algeria stated that torture and similar practices were prohibited by the fundamental law in all places and circumstances. He also firmly denied the existence of secret detention centres in the country.
82. In the ensuing interactive dialogue it was acknowledged that progress had been made in respect of the criminalisation of torture, human rights training for police officers and improving standards in prisons, but reference was also made to information concerning cases of suspects detained for months or years without notification to the judiciary and without any possibility to communicate with their family or lawyers.
83. The recommendations included, among others, that Algeria should implement measures to protect detainees from torture, cruel, inhuman or degrading treatment, ensure that all cases of persons detained are brought to the attention of the judiciary without delay, and consider facilitating visits by the UN human rights mandate holders.
84. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment solicited an invitation to visit Algeria for the first time in 1997. The visit request is still pending.
85. The request by Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to visit Algeria has been pending since 2006.
86. On 21 July 2010, those two Special Rapporteurs issued a press statement in which they expressed concern about, inter alia, transfer of Guantánamo Base detainees to Algeria without a proper assessment of the risks they could face in their country of origin.
87. A press release on the applicant’s case issued on 30 November 2007 (EUR 72/012/2007) contains the following background information:
“Anyone in Algeria suspected of involvement in terrorist activities, or who is believed to possess information about terrorist activities, whether in Algeria or abroad, faces a real risk of secret detention and torture. Amnesty International has received dozens of reports of detainees treated in this way, among them people who had returned to Algeria from overseas, either voluntarily or at the hands of foreign governments.
Under Article 51 of the Algerian Criminal Procedures Code, detainees suspected of “terrorist or subversive acts” may be held without charge for a maximum of 12 days. The arresting authorities must immediately give them the opportunity to communicate with their families and to receive visits from them. In addition, any detention beyond four days has to be authorized in writing by the public prosecutor. These requirements are routinely violated in the cases of people held by the Department for Information and Security (...) which specializes in interrogating those thought to have information about terrorist activities.
Before they are either brought before the judicial authorities or released without charge, those arrested are systematically held incommunicado for up to 12 days, and sometimes longer. It is while they are in secret detention in barracks operated by the DRS that detainees are most at risk of torture and other ill-treatment.
Amnesty International has received information on several cases where detainees were held by the DRS for months without contact with the outside world in violation of Algerian and international law, during which time they were reportedly subjected to torture and other ill-treatment. Algeria’s civilian authorities have no effective control over the activities of the DRS.”
88. In a briefing to the UN Committee Against Torture in respect of Spain, in November 2009, Amnesty International referred to the case of M.S., who had been returned to Algeria from Spain in November 2008. According to information received by Amnesty International, upon arrival in Algeria M.S. was arrested by the Department for Information and Security military intelligence agency and held incommunicado for approximately two weeks. He was subsequently released without charge.
89. In its briefing to the UN Committee Against Torture in respect of France, in April 2010, Amnesty International mentioned the case of Rabah Kadri who, upon his arrival in Algiers on 16 April 2008, was detained by plain-clothes security officers and held incommunicado for twelve days. He was released without charge on 27 April 2008. After his release he said that he had been interrogated about the activities which had led to his conviction and prison sentence in France. He also said that he had signed a statement saying that he had been treated well in detention before his release. Amnesty International noted that, in its experience, the fact that someone had just been released from DRS custody would weigh heavily on their mind when they spoke about their treatment in detention, in case this exposed them to possible reprisals.
90. In a public statement of 28 April 2010 Amnesty International condemned the actions of the Slovak authorities in forcibly returning the applicant from Slovakia to Algeria despite an order for the application of an interim measure from the European Court of Human Rights and the ruling of the Constitutional Court of June 2008. Amnesty International expressed a fear that, upon his arrival in Algeria, the applicant might have been arrested by the DRS. Reference was made to documented cases where suspects detained by the DRS had been held in unrecognised places of detention, usually military barracks, and denied any contact with the outside world, often for prolonged periods, in violation of Algeria’s international obligations as well as the Algerian Code of Criminal Procedure. Amnesty International was further concerned that Algerian courts continued to accept “confessions” extracted under torture or duress.
91. In a public statement of 17 May 2010 Amnesty International urged the Algerian authorities to immediately open an investigation into allegations that detainees in El Harrach Prison in Algiers had been subjected to ill-treatment. Reference was made to the lack of proper investigations into previous reports of abuse of detainees. The statement drew attention to the hunger strike of four detainees in El Harrach Prison. According to information obtained by Amnesty International, the strike had been provoked by actions of the prison guards, including routine verbal abuse of the detainees, all of whom were awaiting trial on terrorism-related charges, such as calling them “terrorists”, stripping them naked in front of other detainees and a large number of guards, seemingly to humiliate them, and occasionally slapping them.
92. The statement further indicated that there existed persistent reports of torture or other ill-treatment in Algeria, particularly at the hands of the Department for Information and Security but also at El Harrach Prison. One of the detainees concerned had reported being tied up, drenched in water and beaten with wooden sticks all over his body, including the soles of his feet, by prison guards in the office of the Director of the First Department of the El Harrach Prison on 30 March 2008. After the beating, he had been reportedly placed in solidarity confinement without water or access to the toilet for two days. Even though his lawyer had filed a complaint, no independent, full or impartial investigation had been conducted.
93. The Amnesty International Report 2011, in its relevant part, reads:
“Officers of the Department of Information and Security (DRS), military intelligence, continued to arrest security suspects and detain them incommunicado, in some cases for more than the 12 days permitted by law, at unrecognized detention centres where they were at risk of torture or other ill-treatment. Impunity for torturing or otherwise abusing security suspects remained entrenched. (...)
Mustapha Labsi was detained for 12 days by the DRS after he was forcibly returned to Algeria from Slovakia on 19 April [2010]. He was then transferred to El Harrach prison. At the end of 2010, he was awaiting trial on charges of belonging to a ‘terrorist group abroad’. (...)
In April, security suspects held in El Harrach prison went on hunger strike to protest against alleged ill-treatment by guards who, they said, had insulted, slapped and humiliated them. No official investigation into their allegations was held.
Suspects in terrorism-related cases faced unfair trials. Some were convicted on the basis of ‘confessions’ that they alleged were extracted under torture or other duress, including some who were sentenced to death by military courts. Some were denied access to lawyers of their choice. Other security suspects were detained without trial. (...)
Hasan Zumiri and Adil Hadi Bin Hamlili were transferred to Algeria from US custody in Guantánamo By in January; Abdelaziz Naji was transferred in July. All three remained at liberty while investigations continued to determine whether they would face charges of belonging to a ‘terrorist group abroad’. Two former Guantánamo detainees, Mustafa Ahmed Hamlily and Abdul Rahman Houari, were acquitted of similar charges in February and November, respectively. Another former Guantánamo detainee, Bachir Ghalaab, was sentenced to a suspended prison term.”
VIOLATED_ARTICLES: 13
3
34


ITEMID: 001-95753
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: HOLLY v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicant, Mr František Hollý, is a Slovak national who was born in 1946 and lives in Bratislava. He was represented before the Court by Mr M. Benedik, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991 the applicant concluded a contract with nine persons by which he bought their 9/10 ownership share in an immovable property. The remaining 1/10 share was owned by two individuals whose whereabouts were unknown.
On 24 January 1992 the applicant lodged a civil action requesting the Bratislava II District Court to dissolve the joint ownership of the abovementioned property and to recognise him as the sole owner. The District Court found in the applicant’s favour by a decision which became final on 2 March 1992.
On 3 July 1992 an heir of one of the two co-owners, whose whereabouts had been unknown, requested the reopening of the proceedings.
On 27 January 1994 the District Court stayed the proceedings on the request for reopening pending the outcome of another action concerning the validity of the purchase contract of 1991 (see point C below).
On 18 January 2000 the District Court resumed the proceedings on the request for reopening and decided to reopen the original proceedings.
On 11 December 2001, on the applicant’s petition (podnet) under Article 130 § 3 of the Constitution, the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay under Article 48 § 2 of the Constitution in the reopened proceedings. It found no delays in the period of the proceedings on the request for reopening.
On 4 June 2002 the District Court stayed the reopened proceedings pending the outcome of the applicant’s request to reopen the proceedings on the validity of the 1991 purchase contract (see point C below).
On 3 April 2003, on the applicant’s complaint (sťažnosť) under Article 127 of the Constitution, the Constitutional Court found that the District Court had violated the applicant’s right to a hearing within a reasonable time and its constitutional equivalent in the period after the Constitutional Court’s earlier judgment of 11 December 2001. The Constitutional Court ordered the District Court to proceed with the case and, having regard to its earlier finding of a violation of the constitutional equivalent of Article 6 § 1 of the Convention, it awarded the applicant 60,000 Slovakian korunas (SKK) (the equivalent of 1,463 euros (EUR) at that time) as just satisfaction for nonpecuniary damage suffered.
The reopened proceedings were resumed in the context of the Supreme Court’s decision of 11 June 2004 (see point C below).
On 3 October 2005 the proceedings were again stayed on the ground that the Prosecutor General had lodged an extraordinary appeal on points of law in the proceedings concerning the request to reopen the proceedings on the validity of the 1991 purchase contract.
After the proceedings had been resumed, the District Court found against the applicant on 6 October 2008.
The applicant appealed and the proceedings are pending before the court of appeal.
This related set of proceedings concerning the validity of the purchase contract of 1991 is the subject-matter of another application lodged by the applicant, which is pending before the Court under number 50755/08.
On 3 July 1992 an individual (the heir of one of the two remaining coowners mentioned above) requested the District Court to declare the purchase contract of 1991 null and void.
On 2 October 1998 the District Court granted the action and on 22 June 1999 the Regional Court upheld the judgment. After having been served on the applicant, the judgment became final on 17 September 1999.
On 20 December 2000 the applicant requested that the proceedings be reopened. His request was dismissed, on appeal, on 31 October 2003. On 11 June 2004 the Supreme Court declared the applicant’s appeal on points of law inadmissible.
On 25 October 2005 the Supreme Court dismissed the extraordinary appeal on points of law lodged by the Prosecutor General.
On 30 October 2007, on the applicant’s complaint under Article 127 of the Constitution, the Constitutional Court quashed the above Supreme Court’s decision and remitted the case to the latter.
On 25 June 2008 the Supreme Court again rejected the Prosecutor General’s extraordinary appeal on points of law. On 17 October 2008 the applicant challenged that decision before the Constitutional Court. The constitutional proceedings are still pending.


ITEMID: 001-23408
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BALAZ v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Vincent Baláž, is a Slovakian national, who was born in 1931 and lives in Leopoldov. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his wife are retired and receive an old age pension 5,800 Slovak korunas (SKK) per month, which forms their main source of income. On 30 January 1997 the applicant acquired a trade licence for inter alia operating a merrygoround for children. The licence became operative on 1 April 1997. Since then, the applicant has operated a merry-go-round in the summer season, that is between May and October. According to the applicant, he earns about SKK 500 per month of operation.
A holder of a trade license is considered as a selfemployed person for the purposes of the Social Security Administration Act no. 274/1994 Coll. (Zákon o Sociálnej poisťovni - “the 274/1994 Act”) and is obliged to register with the health insurance fund and the pension fund, and to pay monthly contributions to both funds.
Under Section 14 § 7 (e) of the 274/1994 Act as in force until 1 January 2000, holders of a trade licence who where receiving an old age pension were exempted from the obligation to contribute to the pension fund.
As the applicant was receiving an oldage pension, he was exempted from the obligation to pay premiums to the pension fund. He did, however, remain obliged to register with the health insurance fund and to pay the monthly contributions to this fund, none of which he in fact did. The applicant did declare his income earned from the exploitation of the merry-go-round to the fiscal authorities. According to his income tax declarations, this taxable income was SKK 0 in 1997, SKK 31 in 1998 and SKK 3,179 in 1999.
On 1 January 2000 an amendment no. 345/1999 Coll. of the 274/1994 Act entered into force. It repealed the exemption set forth in Section 14 § 7 (e) of the 274/1994 Act. Consequently, in addition to his obligation to pay contributions to the health insurance fund, the applicant became liable to contribute to the pension fund as well.
In February 2000 the applicant registered with the health insurance fund and with the pension fund at the Social Security Administration (Sociálna poisťovňa). He indicated 1 January 2000 as the starting date of his participation in the social security scheme on grounds of his selfemployment activity.
On 22 February 2000 the applicant complained to the Constitutional Court (Ústavný súd) that his monthly income from exploiting the merrygoround amounted to SKK 529 whilst his mandatory contributions payable to the Social Security Administration were calculated on the minimum assessment basis of SKK 4,000 thus amounting to SKK 1,292 (i.e. 4.8 % for the health insurance scheme plus 27.5 % for the pension scheme) per month. The applicant alleged that the relevant provisions of the Social Insurance Act violated his property rights.
The applicant complained numerous times, including by letters of 4 April, 5 April, 10 April and 14 April 2000, to various bodies of the Social Security Administration that the level of contributions that he was required to pay was excessive in relation to his actual income and that he was required to pay contributions even for the months in which he did not operate his business.
On various occasions in April and May 2000, including in a letter of 27 April and during a meeting held on 17 May, the Social Security Administration informed the applicant of the legal rules that applied to his selfemployment activity. It informed him in particular that since 1 April 1997, when he had started the operation of the merrygoround, he had been obliged to contribute to the health insurance fund in an amount equivalent to 4.8 % of the above minimum assessment basis. It further informed the applicant that, as from 1 January 2000, he had further become obliged to contribute to the pension fund by 27.5 % of that basis. The Social Security Administration asked the applicant to pay the contributions due, including the arrears.
On 4 May 2000 the Constitutional Court rejected the applicant’s complaint on the ground that the applicant had no standing to bring proceedings challenging the constitutionality of legislation.
By letters of 20 December 2000 and 3 January 2001 the Social Security Administration reminded the applicant of his obligation to pay the outstanding contributions.
On 8 January 2001 the applicant and the Social Security Administration agreed on a schedule for payment of the outstanding contributions.
Under Section 14 §§ 1 and 2 of this Act, selfemployed persons are liable to pay contributions to the health insurance fund and the pension fund.
Section 14 § 7 (e) of the Act, as in force until 31 December 1999, provided that selfemployed persons in receipt of an oldage pension were exempted from the obligation to contribute to the pension fund. This exemption was abolished on 1 January 2000 when the amendment no. 345/1999 Coll. entered into force.
According to Section 15 § 1 of the Act the contributions are a percentage of the “assessment basis” (vymeriavací základ). The percentages applicable to selfemployed persons are 4.8 % for the health insurance fund and 27.5 % for the pension fund (Section 15 § 3 of the Act).
The “assessment basis” is 50% of the average monthly taxable income gained by a self-employed person during the previous fiscal year (Section 16 § 4 in conjunction with Section 17 § 2 of the Act). However, regardless of income actually earned during the previous fiscal year, a personal “assessment basis” for a selfemployed person cannot be lower than the statutory defined “minimum assessment basis”, that is SKK 2700 until 31 December 1997, SKK 3000 from 1 January 1998 to 31 December 1999 and SKK 4000 since 1 January 2000.
Pursuant to Section 18 of the Act, selfemployed persons are inter alia obliged to register themselves with the local branch of the Social Security Administration within eight days from the date on which their licence for their selfemployment activity takes effect.


ITEMID: 001-77255
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VOLOVICH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1950 and lives in Yekaterinburg. He suffers from an occupational disease.
5. On 15 May 1997 the applicant sued his former employers, private companies, for compensation for health damage. The Zheleznodorozhniy District Court of Yekaterinburg registered his statement of claim and listed the first preliminary hearing for 9 July 1997. Another preliminary hearing was held on 4 September 1997.
6. Of six hearings listed between 5 February 1998 and 13 June 2000 two hearings were adjourned because the judge was ill or involved in other proceedings and two hearings were postponed for provision of additional evidence and obtaining statements by witnesses.
7. In June 1999 and January 2000 the applicant asked the District Court to order expert medical examinations. The examinations were not ordered because the applicant withdrew his requests.
8. On 13 June 2000 the Zheleznodorozhniy District Court dismissed the applicant's action as unsubstantiated.
9. That judgment was quashed on appeal by the Sverdlovsk Regional Court on 1 August 2000. The case was remitted for a fresh examination to the District Court.
10. It appears that the District Court received the case-file on 3 October 2000 and listed a hearing for 30 November 2000. At that hearing the applicant amended his claims and requested the District Court not to perform a medical examination.
11. Between 16 January and 5 June 2001 the District Court listed three hearings. All of the hearings were adjourned because the judge was ill or involved in other unrelated proceedings.
12. On 5 June 2001 the Zheleznodorozhniy District Court ordered a medical examination of the applicant. The court noted that the defendants should bear the expenses of the examination and stayed the proceedings pending completion. The applicant appealed against that decision, claiming that the examination was not necessary.
13. The Sverdlovsk Regional Court upheld the decision of 5 June 2001 on 7 August 2001.
14. On 9 July 2002 the Zheleznodorozhniy District Court sent the case-file and the applicant's medical records to the Moscow-based Federal expert council on occupational diseases (Федеральный экспертный совет по профзаболеваниям).
15. In November 2002 the council informed the applicant that the examination had not been carried out because it had not been paid for.
16. The examination was performed on 10 April 2003 by the Russian Academy of the medical sciences. The expert report was sent to the District Court on 16 April 2003. A month later the District Court received the case-file.
17. On 23 May 2003 the case was assigned to another judge and a hearing was fixed for 18 June 2003. Between 18 June and 4 August 2003 the District Court fixed two hearings which were adjourned because the defendants defaulted and the judge was ill.
18. On 4 August 2003 the Zheleznodorozhniy District Court dismissed the applicant's claims.
19. That judgment was upheld on 2 October 2003 by the Sverdlovsk Regional Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-6028
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KALLIOLA AND OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Messrs Jouko Kalliola , Harri Nääppä, Vesa Repo, Riku Roimu and Timo Mäkinen are Finnish nationals, born in 1967, 1963, 1963, 1964 and 1959 respectively. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 March 1993 early in the morning, the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), reinforced by a special Karhu group of the Helsinki Police and in co-operation with armed forces and the Border Guards, made a search in a clubhouse of the motorcycle club Overkill MC. The search was intended to apprehend certain persons suspected of aggravated assault. Five members were caught during the search. The president of the club was apprehended later. The police also seized several weapons at the clubhouse. It proved later that they all were permissible and legal, except one which was useless and not a gun at all.
Officer P. from the National Bureau of Investigation was in charge of the investigation. After the search P. gave interviews. His statements were widely spread in the media by the press and a TV channel. P. had also been assigned to be responsible for making any announcements to the media.
In the evening of 3 March 1993 a Finnish TV channel had a report about the search, in which P. was interviewed. To a reporter’s question as to what type of offences members of the club had been found guilty of, P. stated that the police had earlier registered to their records the members in question and that they had been convicted of aggravated drug offences and assaults.
Between 4 and 9 March 1993 several newspaper articles were published, where a similar statement was quoted.
The applicants have made several complaints to various authorities. On 10 March 1993 they complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). In its statement of 31 May 1993 to the Deputy Parliamentary Ombudsman the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) observed, inter alia, the following:
“The search carried out by the police on the premises of the motorcycle club received a lot of public attention. Soon after the search the National Bureau of Investigation informed the mass media of the criminal background of the members, and of the activities of the club.
An article published in Helsingin Sanomat on 5 March 1993 (under the heading ‘Two motorcycle club members arrested’) directly quoted an interview with P. According to the newspaper, P. had said that ‘the members of the club had been convicted of narcotics offences and assaults, including robberies’.
According to [the applicants], the information given by the police was incorrect. [The applicants] attached extracts from their criminal records, of which only one contained an indication of an offence, to their complaint to the Deputy Parliamentary Ombudsman.
According to P., the police did not tell the mass media that the applicants had been convicted of narcotics offences, but it was mentioned that another motorcycle club, Hell’s Angels, had been involved in selling narcotics. The information was given from an international point of view, with reference to public information given by the Interpol.
The police shall be prudent in giving information to the public on the background of persons suspected of an offence. Any labelling of suspects shall be avoided. In the Ministry’s opinion, the information given by the National Bureau of Investigation indeed gave the public an image that the said members of the motorcycle club had committed various offences. In this respect the public information was not appropriate, as far as the criminal background was concerned.”
On 2 July 1993 the applicants made a request of pre-trial investigation to the Deputy Parliamentary Ombudsman and on 31 August 1993 to the Police Department of the Ministry of the Interior. On 18 November 1993 the applicants complained to the Parliamentary Ombudsman, arguing that the police neglected their duty as they did not respond as required in Sections 2 and 6 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag)
The applicants made a complaint also to the Council for Mass Media (julkisen sanan neuvosto, opinionsnämnden för massmedier) which, on 10 November 1993, found that the TV channel and one of the newspapers had failed to comply with good journalistic practice when reporting on the events concerning the motorcycle club.
On 14 January 1994 the Deputy Parliamentary Ombudsman stated that, on the basis of the documents, she did not find anything that would require her measures. She noted, however, the following in respect of the treatment of the suspects during the pre-trial investigation:
“It was mentioned by the mass media that the relevant members of Overkill MC had been convicted of narcotics offences and assaults. According to [the applicants], the police had given incorrect information on those members of the motorcycle club.
There is no evidence that the police had deliberately given incorrect information on the members of the motorcycle club. However, it is worth observing that the telephone interview with P. on 4 March 1993 easily gave the impression that members of Overkill MC had been convicted of narcotics offences and assaults.”
The Deputy Parliamentary Ombudsman concluded in this respect that authorities and public officials must be especially careful when informing the public for example of matters relating to criminal investigations and suspects. P. had been careless when giving information on the search of the premises of Overkill MC and on related matters.” P. was informed of her opinion.
On 23 March 1994 the applicants instituted criminal proceedings against P. who was charged with libel and violation of his official duty on account of his statements. The applicants requested that P. and the Finnish Government be ordered to pay compensation in the amount of FIM 100,000 with interest to each applicant. They argued that they had been subjected to public interest since the search. The applicants had been labelled as having committed offences they had never committed. According to the applicants, P. had been the most active one to give statements to the media and had specially named Mr Mäkinen to the journalists.
P. denied all the charges as well as the applicants’ claim for compensation. He stated that he had not been active but only answered questions presented by reporters. Before the search he had prepared a press release in which the name of the club or names of its members were not mentioned. According to P., he or the police had not had any advance information about the members of the club. The police had monitored the clubhouse and assumed, on the basis of the number of people visiting the house, that the number of the members was greater than that established later.
On 5 October 1994 after four hearings at which several witnesses were heard, the District Court (käräjäoikeus, tingsrätten) of Helsinki rejected all the applicants’ claims and acquitted P., basing itself on P.’s statements and on statements given by several witnesses heard during the hearings. The District Court found as follows:
“The District Court finds that P., by acting in the way described above, has not deliberately or of carelessness or lack of caution made himself guilty of a violation of official duties, when informing the public of the pre-trial investigation, so that his statements would have subjected [the applicants] to suspicion or that he would have unnecessarily caused them damage and harm.”
It appears from the judgment that P. had mentioned the name of applicant Mäkinen when asked by a journalist about persons whose detention on remand would be requested.
The applicants appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki and requested an oral hearing. On 27 June 1996 the Court of Appeal refused the applicants’ appeal, without a hearing, and upheld the District Court’s judgement, finding as follows:
“[The applicants] have considered that P. clearly identified Overkill MC in his statements concerning the present case, and thus his allegations included in the statements directly referred to this club. According to [the applicants], Overkill MC, which was a non-registered association, had 13 members at the relevant time. However, the police had reason to believe that the club consisted of a considerably larger number of persons, inter alia, because there had been large numbers of people on the club premises and in events organised by the club. The statements given by P. reveal that he meant a considerably wider circle of people than [the applicants] or other members of Overkill MC named as such by the club. Nor did P. name any persons in his statements. The identification of club members has only been possible on the basis of distinctive marks. Those distinctive marks were not widely known among the public at the relevant time.
The Court of Appeal considers that P. did not deliberately allege that [the applicants], in particular, had committed the offence in question or other despicable acts. Nor did the articles clearly indicate which parts of the text were directly based on the statements of P. and which parts were based on the reporter’s own interpretations of those statements or on information received from other sources.
On these grounds and for the reasons given by the District Court, the Court of Appeal finds that there is no reason to alter the judgment of the District Court as to the merits.”
The Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal on 9 December 1996.
According to Section 7 (2) of the Criminal Investigations Act (449/1987), the suspect must be presumed not guilty in a criminal investigation.
According to Section 8 (1) of the Criminal Investigations Act, in a criminal investigation, the rights of no one must be infringed more than what is necessary for the achievement of the purpose of the criminal investigation. Furthermore, according to Section 8 (2), a criminal investigation must be carried out so that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience.
According to Section 49 of the Criminal Investigations Act, any public information on a criminal investigation must be given in a manner which does not subject anyone to undue suspicion or cause unnecessary harm or inconvenience to anyone.
Under Section 9 of the Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; 575/1998), the person in charge of the investigations and his superior, or another official ordered by the superior, must have the right to make information concerning the investigation public.
Section 21 of the Constitution of Finland (731/1999), under the heading Protection under the law, provides the following:
“Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.
Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.”
According to Chapter 17 (571/1948), Section 1 (2) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), the plaintiff in a criminal law case must prove the facts that support his/her claim. The defendant must be presumed innocent until proved guilty. Although it may be in the interests of the defendant to submit counter-evidence in support of his or her innocence, he/ she has no obligation to do so. The prosecutor bears the burden of proof. In case there is reasonable doubt as to the guilt, the case must be decided in favour of the defendant. An important way of obtaining evidence in a criminal law case, apart from hearing outsiders as witnesses, is to freely examine the defendant and the plaintiff for the purpose of establishing the facts of the case.
According to Chapter 17, Section 2 of the Code of Judicial Procedure, after having carefully evaluated all the facts that have been presented, the court must decide what is to be regarded as the truth in the case.
According to Chapter 11, Section 4 of the Criminal Proceedings Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; 689/1997) a judgment must be reasoned. The statement of reasons must indicate on what facts and legal arguments the judgment is based. It must further be indicated on what grounds a fact has been proved or has failed to be proved.


ITEMID: 001-61381
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CREDIT AND INDUSTRIAL BANK v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant is a bank, a joint stock company with its registered office in Prague.
9. On 27 September 1993 the Czech National Bank (Česká národní banka) (“the CNB”), pursuant to section 26(1)(a) of the Banks Act (no. 21/1992) (zákon o bankách) (“the Act”), placed the applicant bank in compulsory administration with effect from 30 September 1993 to 31 March 1994, on the grounds that the financial situation and liquidity of the applicant bank had repeatedly been unsatisfactory and that the previous measures had not remedied the situation. A compulsory administrator (nucený správce) was appointed to replace the applicant bank's statutory body. The decision (rozhodnutí) contained a notice to the effect that the provisions of administrative procedure did not apply to it and that no appeal lay against it.
10. On 29 September 1993 the compulsory administration decision was published in the Commercial Bulletin (obchodní vĕstník).
11. In a ruling (usnesení) of 30 September 1993 the Prague 1 District Court (obvodní soud) (“the District Court”), upon the CNB's proposal, decided to allow an entry concerning the compulsory administration and the appointment of the compulsory administrator to be made in the Companies Register (obchodní rejstřík). The ruling fixed the date of 30 September 1993 as the date of the entry in the Companies Register and stated that the compulsory administrator represented the applicant bank. The ruling was not served on the applicant bank. On the same date, the compulsory administrator and a representative of the CNB came to the bank and informed all employees that the applicant bank had been placed in compulsory administration. The representative of the CNB served the CNB's decision of 27 September 1993 on Mr Moravec, the chairman of the bank's Board of Directors and its majority shareholder. On 4 October 1993 the District Court confirmed its ruling of 30 September 1993 by issuing a certificate of legal validity (právní moc).
12. On 18 March 1994 the CNB extended the compulsory administration until 30 June 1994.
13. On 22 March 1994 the applicant bank's legal representative, Mr Choděra, sent his power of attorney to the District Court, and requested that the proposal for an entry concerning the compulsory administration and the District Court's decision delivered in this regard be sent to his office. He noted that under Article 200(a) of the Code of Civil Procedure, the applicant bank was a party to the proceedings.
14. On 30 March 1994 notice of the extension was published in the Commercial Bulletin. In a ruling of 30 March 1994 the District Court, upon a proposal of the CNB, approved an entry concerning the extension in the Companies Register. The court did not hold a public hearing. On the same day it confirmed the ruling by a certificate of legal validity. The ruling was not served on the applicant bank.
15. On 1 and 6 April 1994 respectively, the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, its legal representative, having become aware of the existence of the rulings of 30 September 1993 and 30 March 1994, appealed against them to the Prague Municipal Court (městský soud) (“the Municipal Court”). It claimed that it should have been treated as a party to the proceedings in which the court had approved the entries concerning the compulsory administration and its extension in the Companies Register, and contended that the rulings had not been served on it. The applicant bank also claimed that the CNB's decision of 27 September 1993 had not been sufficiently reasoned and that it was therefore not able to say whether the compulsory administration had been imposed in accordance with the law or not, and that the decision contained an incorrect notice to the effect that no appeal lay against it. It added that when the rulings of the District Court were served on it, it would make more complete submissions.
16. In a ruling of 17 May 1994, rejecting the appeals against the rulings of 30 September 1993 and 30 March 1994 without holding a public hearing, the Municipal Court stated, inter alia:
“... the decisions of the [CNB] concerning the imposition of compulsory administration and its extension were fully within its competence under section 25 of [the Act]. ... In the light of the decision of 27 September 1993, compulsory administration was imposed because of the repeatedly unsatisfactory financial situation ... of the bank. Section 26(4) of [the Act] expressly states that administrative law applies to the procedure concerning the imposition of penalties ... Administrative law does not, therefore, apply to other decisions taken under section 26 of this Act ... It is true that the court of first instance acted incorrectly when it did not notify both rulings to the appellant. However, it is apparent from the appeals which the appellate court considered to have been lodged in time that [the appellant] has become familiar with both of them ... [Moreover], the entries in the Companies Register were made [by the court of first instance] in accordance with section 29 [of the Act].”
17. On 21 June 1994 the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, filed an appeal on points of law (dovolání) with the Prague High Court (Vrchní soud) against the Municipal Court's ruling of 17 May 1994, pursuant to Articles 237(f) and 241 § 2(d) of the Code of Civil Procedure.
18. On 22 June 1994 the bank lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the District Court's rulings of 30 September 1993 and 30 March 1994 and the Municipal Court's ruling of 17 May 1994, with a proposal to repeal sections 26(4) and 41(2) of the Act.
19. On 23 June 1994 the CNB extended the compulsory administration until 31 December 1994. On 29 June 1994 notice of the extension was published in the Commercial Bulletin. In a ruling of 30 June 1994 the District Court, upon a proposal by the CNB, approved an entry concerning the extension in the Companies Register. The court did not hold a public hearing. On the same day, it approved the ruling by issuing a certificate of legal validity. The ruling was sent to the office of Mr Choděra. On 21 July and 15 August 1994 the applicant bank, represented by Mr Choděra, appealed against the ruling to the Municipal Court.
20. In the meantime, on 29 June 1994, the Constitutional Court had declared the applicant bank's constitutional appeal inadmissible, finding, inter alia, that the ruling of 17 May 1994 had not been served on the parties to the proceedings and, therefore, had not become final.
21. On 29 July 1994 Act No. 156/1994, which amended the Act as regards, inter alia, the procedure on compulsory administration, came into force. Section IV provided that the Act was applicable in all cases where compulsory administration had been imposed before that date.
22. On 30 August 1994 the ruling of the Municipal Court of 17 May 1994 was served on the applicant bank and thereby became final.
23. On 31 August 1994 the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, renewed its appeal on points of law against the Municipal Court's ruling of 17 May 1994. The appeal contained the same arguments as in the previous appeal, which appeal had, however, been lodged before the notification of the ruling.
24. On the same day the applicant bank, represented by the chairman of its Board of Directors and Mr Choděra, lodged a second constitutional appeal against the Municipal Court's ruling of 17 May 1994. It pointed out that the ruling had become final by its notification and that, therefore, an appeal lay against it to the Constitutional Court. It submitted that it should have been a party to the proceedings on entries in the Companies Register and that all decisions relating to these proceedings should have been served on it. It further challenged an allegedly wrong interpretation of section 26(4) of the Act by the Municipal Court and suggested that this provision, together with section 41(2) of the Act, should be repealed.
25. On 13 October 1994 the Municipal Court dismissed the applicant bank's appeal against the District Court's ruling of 30 June 1994 as being lodged by an unauthorised person. The court found that the applicant bank's statutory body had, pursuant to section 29(2) of the Act as amended, been replaced by the compulsory administrator, who alone could represent the bank or authorise a legal representative, but who had not granted such authorisation to Mr Choděra.
26. On 1 December 1994 the CNB decided that the compulsory administration would not finish on 31 December 1994, but would be terminated for one of the reasons indicated in section 33 of the Act as amended. On 7 December 1994 that decision was entered in the Companies Register.
27. In the meantime, on 6 December 1994, the applicant bank, represented by the chairman of its Board of Directors and by Mr Choděra, had lodged a third constitutional appeal, this time against the Municipal Court's ruling of 13 October 1994. It complained, in particular, that the Municipal Court had violated the applicant bank's right to be protected by a court considering that its appeal had been lodged by an unauthorised person. It further suggested that section IV(3) of Act No. 156/1994 should be repealed.
28. On 13 December 1994 the Constitutional Court declared inadmissible the applicant bank's second constitutional appeal against the Municipal Court's ruling of 17 May 1994, holding in particular that when the constitutional appeal had been lodged, the Municipal Court had been dealing with the applicant bank's appeal and the appeal on points of law filed in the meantime had still been pending. Accordingly, no final decision had been given at that stage.
29. On 31 January 1995 the Constitutional Court dismissed the applicant bank's third constitutional appeal as being unsubstantiated and as being lodged by an unauthorised person. The court stated, in particular:
“... the Prague Municipal Court founded its decision expressly on section 29(2) of [the Act] ... according to which a compulsory administrator replaces the statutory body of a bank during compulsory administration. ... [The applicant bank's legal representative] was not authorised by the compulsory administrator of the bank to make an appeal or lodge a constitutional appeal.
... The Constitutional Court found from the case file of the Prague 1 District Court that the decision imposing compulsory administration ... was ordered by the [CNB] on 27 September 1993 ... The compulsory administration became effective, in accordance with section 29(1) of [the Act], by its registration in the Companies Register, pursuant to the Prague 1 District Court's ruling of 30 September 1993 which became final on 4 October 1993. ...
Moreover, according to [the Act], administrative law was not applicable to proceedings concerning compulsory administration, with the exception of cases explicitly referred to in this Act (sections 26(4) and 41). Administrative law became applicable only after the entry into force of Act No. 156/1994 (section 26(4)). To that end, an administrative complaint could be lodged against a decision given by the [CNB] (section 26(8)). An administrative complaint could also be made under section 41(1) of [the Act]. However, only by section 26(7) of the [Act] as amended did the [CNB] become obliged to notify its decision on compulsory administration to [the bank]. In addition the administrative complaint does not have suspensive effect (section 8) ...”
30. On 15 June 1995, pursuant to section 33(1) of the Act as amended, the CNB withdrew the applicant bank's banking licence (povolení působit jako banka) and on 15 August 1995, on an appeal of the applicant bank, it confirmed that decision.
31. On 2 October 1995 the Commercial Court instituted bankruptcy proceedings against the applicant bank.
32. On 6 January 1997 the District Court stayed the proceedings instituted on 6 October 1995 by the applicant bank, represented by Mr Choděra, against the CNB and the compulsory administrator, requesting the latter to fulfil his obligation (o splnění povinnosti nuceného správce). It stated that the applicant bank had not submitted a power of attorney.
33. On 7 January 1997 the Commercial Court, to which the appeal on points of law against the Municipal Court's ruling of 17 May 1994 had been referred, stayed the proceedings on the ground that Mr Moravec had not paid the court fees despite having been ordered to do so by the court's ruling of 22 May 1995, which was modified on 10 July 1996 and served on him on 12 August 1996.
34. On 2 April 1998 the Municipal Court quashed the District Court's ruling of 6 January 1997, stating, inter alia:
“There is no doubt that the claim was made on 6 October 1995 and that a power of attorney issued by the applicant bank's statutory body was attached to it. There is also no doubt that on 2 October 1995 bankruptcy proceedings were instituted against the bank ... (By that date) the company that had been declared bankrupt had not lost its capacity to act in legal proceedings but only the right to dispose of property forming part of the estate of the company. By section 14(1)(h) of Bankruptcy and Equalisation Act No. 328/1991 [(zákon o konkurzu a vyrovnání)], powers of attorney relating to the property forming part of the estate of a company declared bankrupt lose their validity. However, that was not so in the present case ...”.
35. On 30 November 2000 the Supreme Court declared inadmissible the applicant bank's appeal on points of law against the Municipal Court's ruling of 17 May 1994. It held that pursuant to Article 237(f) of the Code of Civil Procedure, an appeal on points of law was admissible if a party to the proceedings could not act as a result of a procedural step taken by the court. According to the law then in force, compulsory administration became effective on the date on which the relevant entry was made in the Companies Register; the applicant bank's own statutory body was therefore empowered to act on its behalf until that date and to appeal against the ruling of the District Court on the registration of the compulsory administration in the Companies Register. The District Court had then to notify its ruling to the applicant bank. However, in the present case the applicant bank had validly appealed against the ruling concerned to the Municipal Court, which had considered it on the merits. Seeing that the ruling was not reasoned, notification of it could not improve the procedural position of the applicant bank. The Supreme Court added that the fact that the applicant bank had not received the text of the CNB's proposal for the entry concerning the compulsory administration in the Companies Register did not remove the applicant bank's right to act in proceedings before the court as provided for in Article 237(f) of the Code of Civil Procedure.
In so far as the appeal on points of law concerned the entry of the first extension of the compulsory administration in the Companies Register, the Supreme Court pointed out that section 29 of the Act as in force at the time when compulsory administration had been imposed provided that compulsory administration became effective on the date on which the relevant entry was made in the Companies Register, the functions of the statutory body of the bank being suspended by the appointment of a compulsory administrator until the compulsory administration ended. In the present case, on 30 September 1993 the statutory body of the applicant bank had been replaced by the compulsory administrator, who alone was entitled to appeal in the proceedings concerning the proposal for an entry concerning the extension of compulsory administration to be made in the Companies Register. However, the appeal against the District Court's ruling of 30 March 1994 had been lodged by Mr Choděra who had acted on the basis of a power of attorney issued by Mr Moravec, chairman of the applicant bank's Board of Directors, on 9 February 1994.
36. On 30 November 2000 the Supreme Court likewise declared inadmissible the applicant bank's appeal on points of law against the Municipal Court's ruling of 13 October 1994. It stated, inter alia, that Article 237(b) of the Code of Civil Procedure provided that an appeal on points of law was admissible if the person who acted as a party to the proceedings lacked the capacity to be the party to those proceedings. The applicant bank claimed that the compulsory administrator had not had the capacity to be the party to the proceedings. The Supreme Court stated that in the present case the applicant bank had the capacity to be a party to the proceedings; another question was who could act on its behalf before the court.
The Supreme Court then examined the conditions of admissibility of the applicant bank's appeal on points of law under Article 237(f) of the Code of Civil Procedure. It stated that according to the law then in force, compulsory administration became effective on the date on which the relevant entry was made in the Companies Register; on that date the statutory body of the bank was replaced by the compulsory administrator. Article 200(b) § 2 of the Code of Civil Procedure provided that the court decided on the contents of the entry in the Companies Register without holding a hearing. It specified the date of the entry in its decision. The entry had to be effected within one month after the decision had been taken. The Supreme Court underlined that the date of the entry in the Companies Register was not to be confused with the date on which the decision authorising the entry was delivered, with the date of its notification, or with the date on which the court approved the decision by issuing the certificate of legal validity. The court concluded that the compulsory administrator alone was entitled to appeal in the proceedings concerning the proposal to make an entry in the Companies Register of the second extension of the period of compulsory administration. However, the appeal against the District Court's ruling of 30 June 1994 had been lodged by Mr Choděra who had acted on the basis of a power of attorney issued by Mr Moravec, chairman of the applicant bank's Board of Directors, on 9 February 1994. Consequently, the applicant bank had not had the right to have its appeal examined on the merits by the appellate court.
37. On 19 March 2001 the applicant bank, represented by Mr Choděra, lodged a fourth constitutional appeal, this time against two decisions of the Supreme Court, alleging a violation of Article 6 § 1 of the Convention.
38. Until 29 July 1994 compulsory administration proceedings were governed by the Banks Act (No. 21/1992) (“the Act”). Section 26(1)(a) of the Act provided that compulsory administration was a measure which the Czech National Bank (“the CNB”), as an administrative authority under section 1(3) of the Czech National Bank Act (No. 6/1993), could impose upon a bank if it did not comply with the conditions laid down in its banking licence and/or if it infringed the law. Under section 27, the CNB was empowered to impose compulsory administration on a bank if the bank's financial situation and liquidity failed considerably or repeatedly to satisfy the conditions laid down in the Act, and previous measures or sanctions had not remedied the situation. Under section 29(1), compulsory administration became effective on the date of the relevant entry in the Companies Register, the CNB not being required to notify the bank of its decision to place it in compulsory administration. Before registration, the decision to impose compulsory administration was published in the Commercial Bulletin. Section 29(2) provided that the functions of the bank's statutory body were suspended by the appointment of a compulsory administrator until the end of the compulsory administration. Under section 30, the compulsory administrator was entitled to take measures necessary to restore the stability and liquidity of the bank concerned, including closure of its branches or other administrative units. Under section 33, compulsory administration could be terminated by: (a) revocation, if there were no longer any reasons for its continuance; (b) expiry of the period originally fixed by the CNB, if that period had not been extended; and (c) withdrawal of the bank's banking licence.
The Banks Act did not oblige the CNB to notify its decision concerning the imposition of compulsory administration to the bank concerned. It did not specify the maximum period of compulsory administration, did not contain any reference to the application of administrative law to compulsory administration proceedings, did not specify the parties to the proceedings and did not indicate any remedy against a decision imposing compulsory administration.
39. Compulsory administration proceedings were modified by Act No. 156/1994 (“the Act as amended”) which entered into force on 29 July 1994. It was applied to all cases in which compulsory administration had been imposed before that date. Pursuant to the new section 26(4), administrative law applies, inter alia, to proceedings concerning the imposition and withdrawal of compulsory administration, unless the Banks Act provides otherwise. The bank is the sole party to the proceedings (section 26(5)) which can also be institute by the notification of the decision (section 26(6)). Pursuant to the new section 26(7), the CNB shall notify a member of the bank's Board of Directors (představenstvo) or a member of its Supervisory Board (dozorčí rada) or a person empowered to direct the bank of its decision imposing compulsory administration on the bank. The bank can lodge an administrative complaint (rozklad) against such a decision. The complaint does not have suspensive effect (section 26(8)). Pursuant to section 29(1), the functions of all organs of the bank are suspended upon the notification of the compulsory administration decision. The compulsory administrator assumes the functions of the statutory organ. Section 33(c) limits the maximum period of compulsory administration to twenty-four months.
40. Article 14 of the Code of Administrative Procedure (Act No. 71/1967) recognises as a party to proceedings any person whose rights, obligations or interests protected by law are to be dealt with, or whose rights, obligations or interests protected by law may be directly affected by an administrative decision. Article 61 provides that any administrative decision taken by a central State administrative authority at first instance may be contested by an administrative complaint lodged within 15 days from the date on which the administrative decision was served.
41. Certain provisions of the Code of Civil Procedure were also applied in the present case.
Article 167 provides, inter alia, that “unless otherwise provided by law, the court shall decide in the form of a ruling (usnesení)”.
Article 168 § 2 provides, inter alia, that “the court shall serve a ruling on the parties if such ruling may be appealed against or an appeal on points of law is filed ...”
Article 171 § 2 provides, inter alia, that “if the ruling does not impose a duty of performance, it becomes enforceable (vykonatelný) as soon as it is served”.
Article 200(b) provides that
“(1) In proceedings concerning an entry in the Companies Register, the court shall examine whether all the conditions required by the statutory provisions for making such entry are met.
(2) The court decides on the content of a particular entry by a ruling without holding a hearing. The verdict in the ruling shall state the date of the entry. The entry is to be made within one month of issuing the decision on the content of such entry.
(3) The provisions on disciplinary fines shall apply if a company fails to comply with the court's request to notify the court of the facts, or to submit the documents, required for making an entry under Article 200(a) § 2.”
Article 237 provides that
“An appeal on points of law (dovolání) is admissible against a decision of an appellate court if:
...
(b) a person who acted as a party in the proceedings lacked the capacity to be such party;
...
(f) a party to the proceedings was deprived from acting before the court through a faulty procedure applied by the court.”
Article 241 § 2(d) provides that an appeal on points of law may be filed “if a decision was based on incorrect legal consideration of the case.”
Chapter II of the Code governs the conditions for the review of decisions of administrative authorities (správní žaloba).
Article 247 provides:
“(1) The provisions of this Chapter shall apply to cases when an individual or a legal entity claims that his or its rights were curtailed by a decision of an administrative authority and a request for review is filed with the court seeking a review of that decision from the viewpoint of its legality.
(2) Regarding a decision issued as part of administrative proceedings by an administrative organ, the provisions of this Chapter shall only apply to a review of that decision in respect of which all ordinary legal remedies admitted by law have been made use of and the decision in question has become final.
Article 250(b) § 1 provides that the request for review shall be filed within two months of the notification of the decision of the administrative authority in the last instance, unless the law provides otherwise.
Under Article 250(i) § 1, the facts at the time when the decision in question was given are decisive. No examination of evidence takes place.
Article 250(j) § 1 provides, inter alia, that the court, upon finding that the decision in question has been made in accordance with law, shall reject the request for review.
Article 250(j) § 2 provides, inter alia, that the court, upon finding that the administrative authority did not consider the matter correctly from the legal point of view or that the facts on which it founded its decision were contrary to the content of the file, shall quash the decision and may return the matter to the indicated administrative authority for further proceedings. The court shall also quash a decision when it emerges during a hearing that the decision cannot be reviewed because it is incomprehensible or because of lack of reasons.
42. Finally, Article 27 § 2 of the Commercial Code (Act No. 513/1991) provides that the facts entered in the Companies Register become effective with respect to everyone from the date on which the entry is made.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1