ITEMID: 001-5161
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CAMILLERI v. MALTA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Maltese national, born in 1953 and living in Valletta, Malta. He is represented before the Court by Dr J. Herrera and Dr J. Giglio, lawyers practising in Malta.
The applicant was charged before the Court of Magistrates with possession of and trafficking in heroin while in prison.
The prosecution case relied on a signed statement which one of the prisoners, G.F., made under caution to a police inspector on 30 November 1991 accusing the applicant of having supplied him with drugs in the confines of the prison. G. F. confirmed his statement under oath before an investigating magistrate who came to the prison to interview him on 1 December 1991.
G.F. later retracted the incriminating statement in an affidavit sworn in prison before a notary and in the presence of the applicant on 7 January 1992. Part of the affidavit was made in reply to questions put to him by the applicant’s lawyer.
At the applicant’s trial G.F. confirmed that he had revoked the statement made to the investigating magistrate. He stated that he was under the influence of drugs at the time and could not reason properly. G.F. was cross-examined as to his statement by the applicant’s counsel. A copy of the impugned statement was produced in court.
Counsel for the applicant requested the Court of Magistrates to rule G.F.’s statement inadmissible. The request was rejected. With reference to the provisions of the Criminal Code, the Court of Magistrates decided that G.F.’s statement to the investigating magistrate could be admitted in evidence given that it took the form of a properly drawn up procès verbal containing the deponent’s allegations against the applicant. With respect to G.F.’s testimony in court, the Court of Magistrates found:
“[That] the presence of the accused when the affidavit was drawn up indicates that [the applicant] wanted to feel assured that what [G.F.] had previously declared in his absence was going to be revoked by [G.F.] by means of the affidavit. The words of [G.F.’s] companions: ‘What have you done to [the applicant]’ were indicative of what is considered among prison circles as lack of ‘camaraderie’ on the part of [G.F.] who had revealed what was going on in prison. By his testimony in court, by his willingness to revoke his original testimony, [G.F.] continued to reveal that his only interest lay in trying to repair the harm he had caused. He maintains that on the day he made the statement he was not conscious of what he was saying; he said that he did not even remember that he testified before the Inquiring Magistrate and that he was under the influence of pills he was taking. This Court cannot believe him in any way: the testimony which he made before the Inquiring Magistrate was very detailed. A person who is not conscious of what he says, who does not know what he says, would not provide all the details which [G.F.] gave when he testified. The Court can understand [G.F.’s] preoccupation since it is well-known that it is very difficult to testify in the presence of the person who has supplied him with certain illicit drugs regarding some fact. And what had originally prompted him to denounce the [applicant] was the fact that he had gone to hospital and left [G.F.] without heroin.”
In its judgment of 7 April 1994 the Court of Magistrates found the applicant guilty as charged and sentenced him to a term of imprisonment of 5 years and a fine of 2000 Maltese Liras.
The applicant appealed to the Court of Criminal Appeal. Before the Court of Criminal Appeal the applicant’s counsel contended that G.F. was not a credible witness since he had been found guilty of perjury on two occasions back in 1991 and was barred from giving evidence, as prescribed by the Civil Code. Counsel further asserted that G.F.’s statement to the investigating magistrate should not have been admitted in evidence at the trial on account of the fact that G.F. had testified before the investigating magistrate in the applicant’s absence. In counsel’s submission, and with reference to section 646(1) of the Criminal Code, a witness’ statement must be given orally to the trial court as a condition of its admissibility.
On 2 February 1996 the Court of Criminal Appeal dismissed the applicant’s appeal. The court observed that G.F. had in fact appeared before the Court of Magistrates and was cross-examined as to the content of the impugned statement which he had confirmed before the investigating magistrate. The court further observed that G.F.’s evidence was properly ruled admissible since it was a declaration within the meaning of the Dangerous Drugs Act. In addition, the bar on G.F. giving testimony did not extend to the giving of testimony before a court of law including before an investigating magistrate.
The applicant appealed to the First Hall of the Civil Court, which rejected his appeal in a judgment dated 27 June 1997. According to the First Hall of the Civil Court, and with reference to Convention case-law, the criminal proceedings against the applicant and in the way in which the testimony of G.F. were given were fair.
The applicant subsequently appealed to the Constitutional Court, arguing that his right to be present throughout the whole of the criminal proceedings against him had been violated on account of his absence at the time when G.F. deposed before the investigating magistrate. Counsel for the applicant referred the court to Article 39 of the Maltese Constitution and to the case-law pertaining to the Strasbourg’s Court’s interpretation of Article 6 of the Convention.
In its judgment of 31 May 1999 the Constitutional Court dismissed the applicant’s appeal. The court ruled that G.F.’s statement to the investigating magistrate had been legally obtained and was admissible in evidence against the applicant. Moreover, G.F. had appeared before the trial judge and his evidence was open to challenge by the defence. The Court of Magistrates properly exercised its discretion to admit G.F.’s statement in evidence, it being noted that the court had weighed in the balance the fact that G.F. has retracted the incriminating statement before a notary. In the opinion of the Constitutional Court:
“It is not within [its] competence to interfere in the appreciation of the evidence as long as it is satisfied that the proceedings were carried out correctly and that they respected the principle of ‘equality of arms’ and granted [the applicant] the right to an ‘adversarial trial’ during which , at every moment, prosecution and defence would have every opportunity to control all the evidence produced and the submissions made during the proceedings ... In the case under examination the Court does not perceive anything which might counter its conviction that [the applicant] had every opportunity to verify every piece of evidence adduced against him and in particular to cross-examine the person who had made his depositions elsewhere .... .


ITEMID: 001-76321
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STORK v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicants are German nationals and live in Hamminkeln.
5. They are owners of a real estate in Hamminkeln. On 22 October 1985 the Municipality ordered the applicants to pay a contribution amounting to DEM 4,470.52 (approximately 2,285 €) for the construction of a street adjacent to their land. The contribution was based on the Municipality’s decree on contributions for the construction of local public infrastructure (Erschließungsbeitragssatzung). The Municipality repeatedly amended this decree (in 1986, 1889 and 1994 respectively).
6. On 7 November 1985 the applicants lodged an administrative appeal (Widerspruch). They contested the amount to be paid and alleged that the street had not been duly constructed. The Municipality should have requested the company which had been commissioned to construct the street to reduce the price on account of the defective construction. Furthermore the applicants referred to Section 133 of the Federal Building Act (Baugesetzbuch) pursuant to which the contribution for a local public infrastructure facility was only due after its final construction (endgültige Herstellung). The street had not been finally constructed because it did not meet the conditions for the final construction of a facility as laid down in the Municipality’s decree on contributions for the construction of local public infrastructure.
7. The applicants moreover accused the employees of the Municipality of having acted for their own unjustified enrichment as they commissioned a firm which had evidently offered its service for speculative prices (Spekulationspreise). These allegations led to criminal investigations of the Duisburg Public Prosecutor during which two expert opinions were furnished concerning the construction of the impugned road. The criminal investigations, instituted in 1986, were discontinued in May and August 1989.
8. On 13 November 1985 the applicants requested that the execution of the order be stayed (Aussetzung der Vollziehung). The Municipality rejected their motion on the same day. On 19 November 1985 the applicants filed a motion for an interim injunction to stay the execution. On 11 June 1986 the Düsseldorf Administrative Court ordered the stay of the execution. On 20 September 1988 the Münster Administrative Court of Appeal rejected the Municipality’s appeal.
9. On 27 October 1988 the applicants lodged a complaint for failure to act (Untätigkeitsklage) with the Düsseldorf Administrative Court pursuant to Section 75 of the Code of Administrative Court Procedures (Verwaltungsgerichtsordnung – see “Relevant domestic law” § 20 below) because the Municipality had not yet decided upon their administrative appeal of 7 November 1985. The Administrative Court asked the Duisburg Public Prosecutor to submit the two expert opinions prepared in the course of the criminal investigations against the employees of the Municipality. In February 1989 at the latest the Duisburg Public Prosecutor submitted the expert opinions to the Administrative Court.
10. In 1989 the Municipality instituted proceedings to preserve evidence (Beweissicherungsverfahren) before the Wesel District Court. On 12 May 1989 the court ordered an expert opinion on the defects of the road construction. Upon the inquiry of the Düsseldorf Administrative Court on 12 February 1992 the District Court announced that the expert opinion was to be furnished at the end of that year. On 23 November 1992 the expert opinion dated 28 October 1992 was submitted to the Administrative Court.
11. On 11 May 1993 the Düsseldorf Administrative Court quashed the order of the Municipality dated 22 October 1985 inter alia because the street had not been constructed in conformity with the Municipality’s decree. The Court based its decision on one of the expert opinions prepared in the course of the criminal investigations, on the expert opinion prepared in the proceedings before the Wesel District Court and on two expert opinions prepared in the context of the proceedings before it. The court also heard two of the experts as expert witnesses.
12. On the Municipality’s appeal, the Münster Administrative Court of Appeal quashed the judgment on 29 November 1996, rejected the applicants’ complaint and refused leave to appeal on points of law (Nichtzulassung der Revision). At the oral hearing on the appeal, the applicants filed fourteen requests for the taking of evidence.
13. On 1 September 1997 the Federal Administrative Court granted the applicants’ request for leave to appeal, quashed the decision of the Administrative Court of Appeal and remitted the matter to it, without deciding separately upon the admissibility of the appeal on points of law in order to expedite the proceedings. It held that the Administrative Court of Appeal had not provided sufficient reasons for its decision, in particular it had failed to expose why it had not considered the applicants’ submissions.
14. On 30 December 1997 the Münster Administrative Court of Appeal rejected the applicants’ appeal without holding a hearing.
15. On 19 April 1999 the Federal Administrative Court quashed this decision and remitted the case again to the Münster Administrative Court of Appeal. It held inter alia that the latter had not sufficiently justified why it had not examined the applicants’ offers of proof, even it might have been troublesome to deal with each of the offers of proof (“auch wenn es mühselig ist (...), sich mit jedem einzelnen Beweisantrag auseinanderzusetzen”). It observed moreover that the decision of the Administrative Court of Appeal not to hold a hearing without informing the parties was not in conformity with the procedural requirements.
16. On 11 January 2001 a hearing was held in the resumed proceedings before the Münster Administrative Court of Appeal during which the applicants filed forty-four requests for the taking of evidence. The Municipality reduced the amount to be paid by the applicants to DEM 3,951.54 and the parties declared the case settled in respect of the amount in excess (Erledigung des Rechtsstreits). On 23 January 2001 the Münster Administrative Court of Appeal discontinued the proceedings as to the amount exceeding DEM 3,951.54 and dismissed the applicants’ complaint as to the remainder.
17. On 6 August 2001 the Federal Administrative Court rejected the applicants’ request for leave to appeal on points of law.
18. On 25 September 2001 the applicants lodged a constitutional complaint and argued inter alia that the length of proceedings had been excessive.
19. On 10 April 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the constitutional complaint without giving any reasons. The decision was served on the applicants’ representative on 19 April 2002.
20. Section 75 of the Code of Administrative Court Procedures (Verwaltungsgerichtsordnung) provides inter alia that an application to set aside an order (Anfechtungsklage) can be lodged with the Administrative Court if the administrative authorities fail without sufficient justification to decide upon the administrative appeal against this order within a reasonable time-limit, in general three months.
21. The Federal Building Act (Baugesetzbuch) establishes inter alia that infrastructure development shall be the task of the Municipality (Section 123) but that the latter may assign the infrastructure development to a third party by agreement (Section 124). Furthermore, the Municipality shall charge an infrastructure contribution to cover the costs for the infrastructure facilities not otherwise covered (Section 127) but it shall assume at least 10 % of the infrastructure expenditures subject to contribution (Section 129).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59931
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF YAGTZILAR AND OTHERS v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 regarding the right of access to court;Violation of Art. 6-1 regarding the length of proceedings;Violation of P1-1
JUDGES: András Baka
TEXT: 7. In 1925 the Greek State occupied an olive grove of a total area of 3,877,000 sq. m in Chalkidiki (northern Greece) and assigned it to the Refugees’ Relief Committee (Επιτροπή Περιθάλψεως Προσφύγων) with a view to settling refugees from Asia Minor there following the mandatory exchange of populations with Turkey under the 1923 Treaty of Lausanne. The land was occupied without any compensation being paid to the owners of the olive grove, of whom the applicants are the heirs. The basis for the occupation was a government ordinance of 14 February 1923 authorising the expropriation and occupation of land before any compensation was paid to its owners. The ordinance was subsequently ratified by a constitutional resolution of 15 September 1924; its content was also incorporated into Article 119 of the 1927 Constitution.
8. On 21 August 1933, by decision no. 81/1933 of the Expropriations Committee of Chalkidiki (Επιτροπή Απαλλοτριώσεων Χαλκιδικής), the Greek State expropriated the land in question.
9. On 8 December 1933 the applicants lodged an application with the appropriate courts for compensation owed them by the State, which had in the meantime taken over from the Refugees’ Relief Committee. Following that application the following judgments, among others, were delivered:
(i) interlocutory decision (προδικαστική) no. 28/1934 of the Chalkidiki Court of First Instance ordering a number of expert assessments;
(ii) final decision no. 28/1936 of the Chalkidiki Court of First Instance assessing the final unit amount of compensation at 2,008 drachmas (GRD) per square metre; the parties appealed against that decision;
(iii) interlocutory judgment no. 54/1938 of the Salonika Court of Appeal setting aside the decision and ordering the parties to produce supplementary evidence;
(iv) decision no. 4/1939 of the President of the Chalkidiki Court of First Instance recognising that the applicants were entitled to the compensation assessed;
(v) judgment no. 155/1939 of the Salonika Court of Appeal quashing judgment no. 54/1938 and ordering the case to be remitted to the Chalkidiki Court of First Instance;
(vi) decision no. 89/1940 of the Chalkidiki Court of First Instance assessing the final unit amount of compensation at GRD 2,720 per square metre; the parties appealed against that decision, but the hearing was not held until 23 January 1961; in the meantime, on 29 April 1959, the applicants had lodged a further application with the Court of Appeal for an assessment of the compensation amount;
(vii) judgment no. 96/1961 of the Salonika Court of Appeal ordering a fresh expert assessment, which was begun in 1971 and completed in 1977; at a hearing on 13 February 1979 the applicants claimed GRD 110,000 per square metre and the State raised an objection on the ground that their right to compensation had lapsed;
(viii) interlocutory judgment no. 654/1979 of the Salonika Court of Appeal dismissing the objection raised by the State and ordering the applicants to justify their assessment of the value of their land;
(ix) judgment no. 1718/1981 of the Salonika Court of Appeal dismissing a further objection raised by the State that the right to compensation had lapsed and assessing the final unit amount of compensation at GRD 50,000 to GRD 180,000 per square metre; the State lodged an appeal on points of law against that judgment, raising the same objection again;
(x) judgment no. 1305/1983 of the Third Division of the Court of Cassation, setting aside the Court of Appeal’s judgment on procedural grounds and remitting the case to the Fourth Division; subsequently, on 12 December 1983, the applicants lodged a fresh application with that court for a compensation amount to be assessed;
(xi) judgment no. 1684/1984 of the Fourth Division of the Court of Cassation ordering the case to be remitted to the Chalkidiki Court of First Instance to determine the merits of the applications lodged by the applicants on 29 April 1959 and 12 December 1983.
10. On 29 June 1988 the applicants resumed the proceedings before the Chalkidiki Court of First Instance. They also lodged a further application for a final unit amount of compensation to be assessed. They sought GRD 400 per square metre. In its observations in reply of 20 March 1989, the State pleaded again that the applicants’ right to compensation had lapsed.
11. A hearing was held on 22 March 1989. On 22 May 1989 the court ordered the applicants to justify their assessment of the value of their land. On 21 November 1991 the applicants requested the judge rapporteur to set a date for the hearing of witnesses. An expert assessment was also carried out.
12. On 28 February 1992 the applicants asked the court to set a hearing date. The hearing was held on 7 October 1992.
13. On 4 December 1992 the court decided to adjourn its examination of the case on the ground that an investigative measure (αυτοψία) had not been carried out (decision no. 239/1992).
14. On 16 June 1994 the applicants asked the court to fix a hearing date. The hearing was held on 1 September 1994.
15. On 24 October 1994 the Chalkidiki Court of First Instance dismissed as unfounded the objection raised by the State that the applicants’ right to compensation had lapsed and determined the final unit amount of compensation at GRD 395 per square metre (decision no. 233/1994).
16. On 4 January 1995 the State lodged an appeal against that decision. It again raised the same objection.
17. On 17 July 1995 the Salonika Court of Appeal set aside decision no. 233/1994 on the ground that the lower court had incorrectly dismissed the objection raised by the State that the applicants’ claim was statute-barred. Indeed, the Court of Appeal considered that the applicants’ right to compensation had lapsed since at least 1971. Giving judgment on the merits, it dismissed the applicants’ application of 29 June 1988 on the ground that as their claim was statute-barred, they no longer had locus standi (judgment no. 3156/1995).
18. On 6 December 1995 the applicants lodged an appeal on points of law. In their statement of grounds of appeal they submitted that the Court of Appeal had misinterpreted the facts and the constitutional and legislative provisions relating to the limitation of actions, and had wrongly assessed the evidence. They added that, in any event, the objection had already been dismissed by judgments nos. 654/1979 and 1718/1981 of the Salonika Court of Appeal. The applicants stressed, lastly, that they had never received any compensation for the expropriation of their land and that the objection now raised against them contravened the principle of good faith and infringed in particular their right to peaceful enjoyment of their possessions.
19. On 15 July 1997 the Court of Cassation, after examining all the grounds of appeal on points of law submitted by the applicants, dismissed their appeal on the ground that it was ill-founded (judgment no. 1302/1997).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103251
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MICHALAK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 5-4;Violation of Art. 5-5;Violation of Art. 13+8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1977 and lives in Poprad.
6. On 14 August 2002 the Prešov Regional Investigation Office commenced a criminal investigation into a suspicious money transfer between two bank accounts.
7. On 9 October 2002 the Prosecutor General ruled that the investigation should be supervised by the Trenčín Regional Prosecutor. It was observed that the suspected offence had been committed in the region of Prešov and that the Prešov Regional Prosecutor would normally have had jurisdiction to deal with it. It was, however, presumed that the offence had been part of a larger criminal transaction involving several individuals in various places and requiring extensive investigation. In order to ensure the effectiveness and expeditious determination of the proceedings, it was necessary to transfer jurisdiction to the Trenčín Regional Prosecutor.
8. On 29 November 2002 the Prosecutor General took a similar measure in respect of an investigation into irregularities in insolvency proceedings concerning bank A.
9. On 9 December 2002 the applicant and seven other individuals were charged with conspiracy and embezzlement on suspicion of having fraudulently and in an organised fashion drained money from the insolvency estate of A.
The applicant for his part was suspected of having organised a bank transfer of the money in question. The decision was based on “previously obtained testimonies and documentary evidence”.
10. On 14 December 2002 the applicant was placed in detention pending trial. He remained detained until his release on 22 January 2004. The circumstances and decisions relating to his detention are described in paragraphs 19 to 80 below.
11. On 24 April 2003 the investigation in question was joined to inquiries in two other cases concerning murders which had connections with the insolvency proceedings in respect of bank A.
12. After the investigation had been completed, the applicant was invited to inspect the investigation file. He did so on 21 June and 30 July 2004. He discovered, inter alia, that the file contained information which had been obtained by monitoring his telephone calls. This information comprised the transcript of a specific phone call from the applicant’s mobile telephone and a list of outgoing and incoming calls in a specific period.
13. The applicant unsuccessfully complained to the prosecution service and the Constitutional Court that the monitoring of his telephone communications had been unlawful and unjustified. The details concerning his constitutional complaint are set out in paragraphs 81 and 82 below.
14. On 10 September 2004 the Trenčín Regional Prosecutor indicted the applicant and committed him to stand trial before the Prešov Regional Court (Krajský súd) on charges of conspiracy and embezzlement. The indictment was also directed against 13 other individuals, including two lawyers, and included charges of money laundering, murder and illegal possession of firearms.
15. On 14 October 2004 the Prešov Regional Court ruled that the case fell within the jurisdiction of the Special Court (Špeciálny súd), which had been established a short time before in order to try cases involving corruption, organised crime and other serious offences. Both the applicant and the prosecution service challenged this ruling.
16. On 19 January 2005 the Supreme Court (Najvyšší súd) upheld the jurisdiction of the Special Court. The applicant then unsuccessfully challenged this decision before the Constitutional Court, which rejected his constitutional complaint on 5 May 2005, and before the Prosecutor General.
17. On 1 July 2005 the case was transferred to the Special Court, which decided, on 12 December 2005, to hive off the applicant’s trial to a separate set of proceedings.
18. Following a judgment of the Constitutional Court of 20 May 2009 finding that the legislation establishing the Special Court was contrary to the Constitution and the subsequent replacement of that court by a newly established Specialised Criminal Court (Špecializovaný trestný súd) (for details see Fruni v. Slovakia, no. 8014/07), the applicant’s trial was transferred to the latter court and it is still pending there.
19. On 12 December 2002, at 6 a.m., the applicant was arrested on charges which had been brought on 9 December 2002.
20. On 13 December 2002, at 7 p.m., the regional prosecutor lodged a request with the Trenčín District Court (Okresný súd) that the applicant and the other suspects be placed in detention pending trial.
21. On the evening of 13 December 2002 the applicant’s brother appointed a lawyer to represent the applicant. At 10 p.m. the Trenčín District Investigation Office, in whose custody the applicant was at that time, refused the lawyer access to the applicant.
22. On the morning of 14 December 2002 the lawyer and the applicant met for about ten minutes.
23. On 14 December 2002, at 10 a.m., the District Court opened a hearing on the prosecutor’s request. One by one, the suspects were questioned. The applicant was questioned in the presence of his lawyer. Neither of them had access to the case file. At 7 p.m. the District Court ordered the detention of the applicant and the other suspects pending trial.
24. The District Court found that there was a well-founded suspicion against the accused. The investigation was in its initial stages and there was still much evidence to be gathered. This, together with the “character and circumstances of the offence”, gave rise to fears that the suspects would collude within the meaning of Article 67 § 1 (b) of the Code of Criminal Procedure (“the CCP”). Furthermore, the information available indicated that other criminal offences had been committed in connection with the insolvency of bank A. The accused were suspected of having been involved in those offences. This prompted fears that the accused would continue criminal activities within the meaning of Article 67 § 1 (c) of the CCP.
25. On 19 December 2002 the applicant lodged an interlocutory appeal (sťažnosť) against his detention and on 30 December 2002 he adduced further grounds of appeal.
He argued first of all that the Trenčín District Court had no territorial jurisdiction to decide on his detention. The court competent to do so had been the court in the judicial district where the offence had purportedly been committed.
The applicant further argued that he had not had adequate time and facilities to confer with his lawyer and to prepare his defence. Both the prosecutor’s proposal and the decision on detention had been so vague that it had been impossible to mount any meaningful defence.
The applicant went on to argue that the suspicion against him had been ill-founded and that there had been no admissible evidence in support of it. There had been no reasons for detaining him and the decision had lacked adequate reasoning.
26. On 16 January 2003 the Trenčín Regional Court, sitting in private (neverejné zasadnutie), dismissed the applicant’s appeal. In summary reasoning, it simply referred to and fully concurred with the District Court’s reasons for detention. The decision was served on the applicant on 3 February 2003.
27. In the meantime, the applicant’s lawyer had unsuccessfully requested access to the case file on several occasions.
28. On 7 March 2003 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd).
He challenged the above-mentioned decisions concerning his detention and claimed a violation of a number of his procedural rights. The applicant complained that: (i) the court which had issued the detention order had had no territorial jurisdiction in the matter; (ii) he had not had adequate time and facilities to confer with his lawyer and prepare his defence; (iii) he and his lawyers had been refused access to the case file; (iv) there had been no reasonable suspicion against him and no reason for detaining him; (v) the decisions had lacked adequate reasoning; and (vi) the proceedings had been too lengthy.
The applicant sought a ruling setting aside the impugned decisions, releasing him and awarding him damages.
29. On 26 March 2003 the Constitutional Court declared admissible the complaint concerning the refusal of access to the case file, and the remaining complaints inadmissible.
30. As to the inadmissible complaints, the Constitutional Court observed that the territorial jurisdiction of the Trenčín District Court had been based on Article 26 of the CCP, pursuant to which territorial jurisdiction in matters concerning the preparatory stage of proceedings was vested in the court in the judicial district in which the prosecutor acted. The offences of which the applicant was suspected and the reasons for his detention had been stated and had been adequately explained.
The applicant had known as far back as December 2002 how much time he had had to consult his lawyer. His constitutional complaint alleging that the time had been insufficient had been made in March 2003 – that is to say, outside the statutory two-month time-limit.
The length of the proceedings in respect of the applicant’s detention had been acceptable, given that the applicant had not fully specified his appeal until 30 December 2002.
31. On 11 March 2004 the Constitutional Court delivered a judgment (nález) on the merits of the admissible complaint. It held that the absolute refusal of access to the case file had been incompatible with Article 5 § 4 of the Convention. However, this had had no material impact on the lawfulness and constitutionality of the detention as such. That finding was therefore sufficient compensation for any non-pecuniary damage the applicant might have sustained.
32. On 19 May 2003 the applicant applied for release or, alternatively, for his detention to be replaced by a pledge under Article 73 of the CCP that he would live in accordance with the law.
33. By law the requests fell to be determined first by the regional prosecutor, who dismissed them, and, on 21 May 2003, forwarded them ex officio to the District Court for judicial determination.
34. On 22 May 2003 the District Court, sitting in a private session, rejected the request for release. “Having examined the applicant’s request and the case file”, the District Court “established that the reasons for the applicant’s detention persisted”. The offences under investigation were very serious. The investigation had been carried out on a large scale and with due diligence, and given that it was in its early stages there was a well-founded fear that the applicant would collude with the other suspects and continue criminal activities.
The District Court made no formal ruling in respect of the alternative proposal to replace the applicant’s detention with a pledge of lawful conduct. It merely observed in its reasoning that such a move was not possible if a person stood accused of such offences as the applicant did. The applicant lodged an interlocutory appeal.
35. On 7 August 2003 the Trenčín Regional Court, sitting in private, dismissed the applicant’s appeal. In summary reasoning it simply referred to and fully concurred with the reasons given by the District Court.
36. On 7 October 2003 the applicant challenged the decisions of 22 May and 7 August 2003 and the proceedings leading to them by means of a constitutional complaint. He alleged a violation of several of his procedural rights.
37. As in his previous complaint, the applicant objected that: (i) the court deciding on his detention had had no territorial jurisdiction in the matter; (ii) there had been an irregularity in the assignment of his appeal for determination by a specific chamber at the Regional Court; (iii) the decision-making process had been conducted in private and the applicant had had no opportunity to state his case orally; (iv) neither he nor his lawyer had been granted access to the case file; (v) the decisions had been arbitrary, (vi) had lacked proper reasoning and (vii) had been the outcome of proceedings that had not been speedy; (viii) finally, the total duration of the applicant’s detention had been excessive and (ix) the courts had failed to take a formal decision in respect of his petition for his detention to be replaced by a pledge of lawful conduct.
The applicant sought a ruling that the challenged decisions be set aside and claimed 210,000 Slovakian korunas (SKK) in damages.
38. On 26 May 2004 the applicant supplemented his constitutional complaint by arguing that his detention was unlawful on the ground that, when it had begun, he had not been brought before a judge within the period of twenty-four hours required by Article 8 § 3 of the Charter of Fundamental Rights and Freedoms (Constitutional Law no. 23/1991 Coll.) (Listina základných práv a slobôd – “the Charter”).
It was true that the time-limit for bringing an arrested person before a judge under Article 17 § 3 of the Constitution (Constitutional Law no. 460/1992 Coll.), as amended with effect from 1 July 2001 (Constitutional Law no. 90/2001 Coll.), was forty-eight hours. However, neither the Constitution nor any other legislation had repealed the Charter expressly and implicit repeal was not permissible. The Charter guaranteed him a broader extent of legal protection and had to be applied in his case.
39. On 16 December 2004 the Constitutional Court declared admissible the complaints listed under (ii), (iv) and (vi) - (ix) above. The remaining complaints were declared inadmissible for the following reasons.
40. The issue of the territorial jurisdiction of the Trenčín District Court had already been examined and determined in the Constitutional Court’s decision of 26 March 2003 (see paragraphs 29 and 30 above).
The applicant had had ample opportunity to present his case in writing and with the assistance of a lawyer, and had in fact done so at length. The lack of an oral hearing therefore raised no issue under Article 5 § 4 of the Convention.
The applicant’s continued detention was, as such, justified and lawful. As to the discrepancy between the time-limits for bringing an arrested person before a judge under the Charter (twenty-four hours) and the Constitution (forty-eight hours), the Constitutional Court held that, pursuant to Article 152 § 4 of the Constitution, the constitutional provision prevailed.
41. On 26 October 2005 the Constitutional Court delivered a judgment on the merits of the admissible complaints.
The Constitutional Court found that there had been a violation of the applicant’s right under Article 5 § 3 of the Convention to a trial within a reasonable time or release pending trial, in that the courts had failed to take a formal decision on his request for his detention to be replaced by a pledge of lawful conduct.
The Constitutional Court also found that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention, in that: the applicant’s appeal had been determined by the wrong chamber of the Regional Court; the applicant had been refused access to the case file; and the proceedings had not been speedy.
The applicant was awarded SKK 80,000 by way of compensation for non-pecuniary damage, and had his legal costs reimbursed.
42. The complaint that the impugned decisions lacked proper reasoning was dismissed as unfounded.
43. On 26 May 2003 the regional prosecutor requested that the Trenčín District Court authorise an extension of the detention of the applicant and all his co-defendants until 30 November 2003. Neither the applicant nor his lawyer was informed of the request.
44. On 2 June 2003, in a private session, the District Court acceded to the prosecutor’s request. Neither the applicant nor his lawyer was informed of the session.
45. “Having examined the prosecutor’s request and the case file”, the District Court “established that the request was well founded”. Although the investigation had been carried out with due diligence, it had not been possible to complete it within the period of six months which had elapsed from the start of the applicant’s detention. The reasons for keeping the defendants in detention, as established at the time of the detention order, still persisted. Their release might render the investigation and the whole proceedings difficult or even impossible. No appeal lay against the decision.
46. On 5 June 2003 the applicant’s lawyer phoned the Regional Prosecutor’s Office and was informed that, on 26 May 2003, the regional prosecutor had requested an extension of the applicant’s detention. On the same day the lawyer requested in writing that the District Court provide him with a copy of the request.
47. Copies of the decision of 2 June 2003 and of the prosecutor’s request were served on the applicant’s lawyer on 27 June 2003.
48. On 4 August 2003 the applicant challenged the decision of 2 June 2003 by means of a constitutional complaint.
He argued in the main (i) that the court deciding on the extension of his detention had had no territorial jurisdiction in the matter; (ii) that the prosecutor’s request had not been made available to him in good time; (iii) that he had consequently had no opportunity to comment on it and to state his case orally (the decision had been made in private); and (iv) that the decision had been arbitrary and unjustified.
49. On 4 October 2003 the applicant supplemented his complaint by submitting substantially the same arguments as in his submission of 26 May 2004 (see paragraph 38 above).
50. On 30 June 2004 the Constitutional Court declared admissible the complaint that the extension of the applicant’s detention had been arbitrary and unjustified and declared the remaining complaints inadmissible. The decision was served on the applicant on 2 August 2004.
51. As to the inadmissible complaints, the Constitutional Court observed that the issue of territorial jurisdiction of the Trenčín District Court had already been examined and determined in the Constitutional Court’s decision of 26 March 2003 (see paragraphs 29 and 30 above).
Under applicable law, there had been no legal duty to communicate a copy of the prosecutor’s request for extension of detention to the person concerned. The applicant’s lawyer ought to have known that, pursuant to Article 71 § 4 of the CCP, a request for an extension of a person’s detention had to be submitted to the competent court no later than ten days before the expiry of their detention. In the present case the deadline had been 2 June 2003.
However, the applicant’s lawyer had not contacted the prosecution service until 5 June 2003 and his failure to do so at an earlier date could not be imputed to the authorities.
The fact that the decision had been made in a private session was irrelevant because the prosecution service had also not been able to take part in that session. As to the discrepancy between the time-limits for bringing an arrested person before a judge under the Charter and the Constitution, the court found that it had had no relevance to the decision in question and, moreover, had been raised as an issue outside the statutory two-month timelimit.
52. On 11 January 2005 the Constitutional Court found that there had been a violation of the applicant’s rights under Article 5 §§ 3 and 4 of the Convention, in that the decision of 2 June 2003 had lacked adequate reasoning. The decision in question had contained a detailed description of the charges, the nature of which had themselves constituted a part of the reason for the applicant’s detention. However, the charges had concerned a group of suspects and it had not been clear from the charges which reasons for detention pertained to which suspects. Although such reasoning had been sufficient to detain the applicant in the initial stage of the proceedings, it had not been sufficiently detailed six months into the proceedings.
The Constitutional Court remarked that this conclusion had no impact on whether the applicant’s detention after 2 June 2003 had or had not been justified in substance.
It quashed the decision of 2 June 2003 and awarded the applicant SKK 20,000 in compensation for non-pecuniary damage. It also reimbursed his legal costs.
As the applicant had been released in the meantime, there was no question of ordering the District Court to determine the matter anew.
53. On 27 August 2003 the applicant applied for release or, alternatively, for his detention to be replaced by a pledge of lawful conduct. He argued that most of the relevant evidence had already been taken and examined and that it had shown that he was innocent and that there were no reasons for detaining him.
54. The regional prosecutor dismissed the applicant’s requests and, on 12 September 2003, forwarded them to the District Court for judicial determination.
55. The applicant challenged the handling of the proceedings by the regional prosecutor – in particular, the length of such examination – by means of a constitutional complaint (for the outcome see paragraphs 60 and 62 below).
56. On 9 October 2003, in a private session, the District Court rejected the application for release. “Having examined the applicant’s request and the relevant files”, the District Court “established that the reasons for the applicant’s detention persisted”. It held specifically that there were a number of pieces of evidence which had been secured in the preparatory stage of the proceedings and which still had to be examined by the court. The way in which the suspected offence had supposedly been committed had prompted fears that the applicant would tamper with that evidence.
57. The District Court again made no ruling in respect of the alternative proposal to replace the applicant’s detention with a pledge of lawful conduct, observing that such a replacement could only be considered in connection with detention to prevent escape (Article 67 § 1 (c) of the CCP), which was not applicable to the applicant’s case. The applicant appealed.
58. On 29 October 2003, in a private session, the Trenčín Regional Court upheld the above-mentioned decision rejecting the applicant’s request for release.
At the same time, it ruled that his detention was no longer justified by fears that he would continue criminal activities but merely by the fear that he would collude with other defendants. That concern stemmed from the “manner in which the offence had been committed and covered up and from the status of the accused”. The decision was served on the applicant on 11 November 2003.
59. On 11 January 2004 the applicant lodged another constitutional complaint, directed in the main against the actions and decisions of the District Court and the Regional Court.
He again argued that the courts deciding on his detention had had no territorial jurisdiction in the matter.
Furthermore, he complained that the assignment of his request for release to a District Court judge had not followed the procedure prescribed by law. In particular, the request had not been treated as an independent matter, which should have been randomly assigned to a judge through electronic means, but rather had been assigned to a specific judge who had been administratively designated by the President of the District Court to deal with all matters concerning the applicant.
Moreover, the courts had not held a hearing and had thus deprived the applicant of the chance to plead his case. The decisions had been arbitrary and had lacked proper reasoning. The length of his detention had been excessive.
60. On 25 November 2004, by way of two separate decisions, the Constitutional Court declared admissible the complaint against the Trenčín Regional Prosecutor and inadmissible the complaint against the District Court and the Regional Court. The latter decision was served on the applicant on 24 January 2005.
61. As to the inadmissible complaint, the Constitutional Court observed that under the applicable procedural rules, the decision of the Regional Court of 29 October 2003 had become final and binding on that day. Notwithstanding that the decision had not been served until 11 November 2003, the relevant date for commencement of the statutory two-month period for lodging a constitutional complaint had been 29 October 2003. The complaint against the District Court and the Regional Court had been submitted on 11 January 2004, and had therefore been out of time.
62. On 25 May 2005 the Constitutional Court found that the Trenčín Regional Prosecutor had violated the applicant’s right under Article 5 § 4 of the Convention to a speedy decision concerning his detention, in that it had taken sixteen days for the prosecutor to take a decision in relation to the applicant’s requests of 27 August 2003 and to forward them to the District Court.
The Constitutional Court took into account the fact that the proceedings concerning those requests had lasted a total of seventy-six days before the final decision was served. It granted the applicant reimbursement of his legal costs but no compensation in respect of non-pecuniary damage. The Constitutional Court held that it was not appropriate to order the prosecution service to compensate the applicant for any non-pecuniary damage, as the prosecution service’s share of responsibility for the overall duration of those proceedings was minor compared to that of the ordinary courts.
63. On 11 November 2003 the regional prosecutor requested that the Trenčín District Court authorise an extension of the detention of the applicant and all his co-defendants until 30 May 2004. No copy of the request was served on the applicant or his lawyer.
64. The applicant’s lawyer obtained a copy of the prosecutor’s request on his own initiative and, on 20 November 2003, the applicant filed his observations in reply. On the same day, in a separate submission, the applicant challenged the District Court for bias.
The applicant complained, inter alia, that the prosecutor’s request had not been lawfully and randomly assigned to a judge through electronic means but rather had been assigned administratively by the President of the District Court to another judge following the departure of the judge electronically assigned from that court.
65. On 21 November 2003, in a private session, the District Court dismissed the challenge of bias and authorised an extension of the detention of all the defendants until 29 February 2004. It held that there were still a number of pieces of evidence to be examined by the court and that, if released, the applicant would pose a risk of interfering with such evidence. However, the time frame demanded by the prosecution was excessive and an extension until 29 February 2004 had to suffice.
66. The decision of 21 November 2003 stated that no appeal lay against it. The applicant nevertheless appealed and his appeal was dismissed by the Regional Court on 9 January 2004. That decision was served on him on 29 January 2004.
The Regional Court acknowledged, inter alia, that assignment of cases to judges at District Courts was in principle to be carried out randomly through electronic means. In the applicant’s case, the judge electronically assigned had been appointed to the Regional Court. It had consequently been the responsibility of the President of the District Court to reassign the applicant’s case to another judge, which she had lawfully done.
67. On 22 March 2004 the applicant lodged a constitutional complaint, to which he added further grounds of complaint on 20 April and 28 May 2004. He argued: (i) that the twenty-four-hour period under the Charter for bringing him before a judge had not been observed; (ii) that the court deciding on the extension of his detention had had no territorial jurisdiction in the matter; (iii) that it had not been impartial; (iv) that the prosecutor’s request of 11 November 2003 had not been served on him and that he had been obliged to procure a copy of it himself; (v) that there had been no public hearing of his case and that he had been unable to plead his case; (vi) that the extension of his detention had been arbitrary and (vii) had lacked proper reasoning; (viii) that the proceedings in respect of his detention had not been speedy; and (ix) that the total duration of his detention had been excessive.
The applicant claimed SKK 410,000 in compensation for nonpecuniary damage.
68. On 25 August 2004 the Constitutional Court declared admissible the complaints listed under (iv), (v), (vii); (viii) and (ix) above. The remaining complaints were declared inadmissible.
69. As to the inadmissible complaints, the Constitutional Court observed that the applicant had learned in November 2003 that the extension of his detention would be determined by the District Court. He had raised his complaint in that respect before the Constitutional Court in March 2004 – that is to say, outside the statutory twomonth time-limit.
The complaint concerning delays in dealing with the prosecutor’s request before the District Court had also been submitted out of time.
The proceedings before the District Court had ended with its decision of 21 November 2003, which the applicant had learned of no later than 1 December 2003 – that is, more than two months before he had lodged his complaint.
The scope of the Constitutional Court’s review of the factual and legal conclusions of the ordinary courts was limited to constitutionally relevant errors, and the decisions concerning the impartiality of the District Court judges and the extension of the applicant’s detention fell outside the scope of that review.
70. On 26 January 2005 the Constitutional Court found that the fact that the prosecutor’s request of 11 November 2003 had not been served on the applicant had violated his rights under Article 5 § 4 of the Convention.
The Constitutional Court allowed a small part of the applicant’s claim for reimbursement of his legal costs and dismissed his claim for compensation in respect of non-pecuniary damage. The Constitutional Court considered that such an award was not appropriate because the ordinary courts had conducted the proceedings in accordance with the existing statutory rules.
71. The remaining admissible complaints were also dismissed. The Constitutional Court found the reasons which had been given by the courts for extending the detention to be adequate and that the extended detention had been justified. The length of the proceedings concerning the extension of the applicant’s detention had been acceptable, in particular, in view of the factual and legal complexity of the case.
72. On 21 November 2003 the applicant applied for release and, alternatively, for his detention to be replaced by a pledge of lawful conduct.
73. On 24 November 2003 the Regional Prosecutor rejected the applicant’s requests and forwarded them, with a comment, to the Trenčín District Court for judicial determination.
It was later established that, in his comment, the prosecutor opposed the applicant’s request “with reference to [his] arguments in the [second] request for extension of the applicant’s detention”. The comment had not been made available to the applicant.
74. On 4 December 2003 the applicant challenged the District Court for lack of territorial jurisdiction in the matter and the District Court judges involved in his case for bias.
75. On 9 December 2003 and 9 January 2004 respectively, the District Court and, on appeal, the Regional Court, dismissed the request for release. Both decisions were made in private, the latter being served on the applicant on 29 January 2004. The courts made no separate ruling concerning the applicant’s alternative request, merely observing in their reasoning that, in the circumstances, the request was not legally permissible.
The courts concluded that the territorial jurisdiction of the District Court to deal with the case had been based on Article 26 § 1 of the CCP, and observed that the applicant’s challenge on the ground of bias had already been examined and dismissed in connection with the second extension of his detention (see paragraph 65 above).
The courts held that the available evidence had borne out the suspicion against the applicant. The manner in which the offence had been committed and covered up, combined with the fact that some additional evidence still had to be examined by the trial court, gave rise to a fear that the applicant would collude with other defendants. His continued detention was therefore justified.
76. On 22 March 2004 the applicant lodged a constitutional complaint, which he fully specified on 26 May 2004. He contended: (i) that his detention had been illegal ab initio, in that the time-limit of twenty-four hours for bringing him before a judge under the Charter had not been complied with; (ii) that the courts deciding on his detention had had no territorial jurisdiction in the matter and had been biased; (iii) that the observations by the prosecution service in reply to his request for release had not been communicated to him; (iv) that the courts had held no hearing in relation to his application and that he had not been heard in person; (v) that the courts had failed to take a decision in relation to his alternative proposal and that his continued detention was unjustified; (vi) that the courts’ decisions had lacked adequate reasoning; and (vii) that the proceedings had not been speedy.
77. On 9 June 2004 the Constitutional Court declared admissible the complaints under points (iii) – (vii). The remaining complaints were declared inadmissible.
78. As to the inadmissible complaints, the Constitutional Court observed that the applicant had learned in December 2003 that the extension of his detention would be determined by the District Court. He had raised his complaint before the Constitutional Court in March 2004 – that is, outside the statutory two-month time-limit.
The complaint concerning delays in dealing with the prosecutor’s request before the District Court had also been submitted out of time. The proceedings before the District Court had ended with its decision on 9 December 2003, which the applicant had learned of no later than 16 December 2003 – that is, more than two months before he had lodged the constitutional complaint. In any event, the complaints concerning the territorial jurisdiction and impartiality of the courts had been repetitive of earlier complaints and had warranted no fresh examination.
Lastly, as to the twenty-four-hour time-limit under the Charter, the Constitutional Court observed that the Constitution took precedence over all other legislation and that the time-limit of forty-eight hours under the Constitution had been observed.
79. On 8 October 2004 the Constitutional Court found that the courts’ failure to take a decision in relation to the applicant’s alternative proposal to replace his detention by a pledge of lawful conduct had violated his rights under Article 5 § 3 of the Convention. Furthermore, the Constitutional Court found that the courts’ failure to ensure that a copy of the prosecutor’s comment in reply to the applicant’s requests of 21 November 2003 had been served on the applicant had violated his rights under Article 5 § 4 of the Convention. The applicant was granted a small part of his claim for reimbursement of his legal costs, but no compensation in respect of nonpecuniary damage. The Constitutional Court considered that such an award was not appropriate because, inter alia, the ordinary courts had conducted the proceedings in accordance with the applicable statutory rules.
80. The remaining admissible complaints were dismissed. The applicant had had, and in fact had made full use of, the chance to present his case in writing and with legal assistance. In the light of this fact, the lack of a hearing had entailed no substantial ramifications for his rights. The suspicion against the applicant and the danger of collusion had been established; the investigation was ongoing and expeditious; the applicant’s continued detention had been justified. As to the length of the proceedings concerning the applicant’s request for release, in line with its decision on the admissibility of the present complaint, the Constitutional Court reviewed only that part of the proceedings which had taken place before the Regional Court. It found no lack of speed in relation to their determination.
81. On 21 August 2004 the applicant lodged a constitutional complaint alleging that the monitoring of his telephone calls had been unlawful, arbitrary and unjustified. He relied, inter alia, on Article 8 of the Convention.
82. On 16 March 2005 the Constitutional Court declared the complaint inadmissible for non-exhaustion of ordinary remedies.
It came to the conclusion that the applicant was entitled to raise an objection against the evidence obtained from the monitoring in the course of the ongoing criminal proceedings against him.
If the applicant did so, the courts would have to examine whether that evidence had been obtained lawfully. The ordinary courts’ power of review excluded a review by the Constitutional Court.
The Constitutional Court further concluded that the applicant could seek redress under civil law.
83. On 12 January 2006 the applicant lodged a request under section 9 of the State Liability Act 1969 with the Ministry of Justice for payment of SKK 1,358,907.80 by way of compensation in respect of unlawful detention. He relied on the Constitutional Court’s judgment of 11 January 2005 (see paragraph 52 above).
84. As the Ministry had failed to respond, on 11 July 2006 the applicant lodged the claim with the Trenčín District Court.
85. In observations of 18 May 2007 the Ministry submitted that, under section 5(1) of the Act, any compensation for wrongful detention only came into question where the prosecution had been dropped or the person concerned had been acquitted, none of which was the case as regards the applicant. As the charges against the applicant had not been dropped, neither could he be compensated under section 4(1) of the Act for wrongful prosecution.
86. On 9 November 2007 the action was stayed pending the outcome of the applicant’s criminal trial.
87. The relevant provisions and judicial practice are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (nos. 20271/06 and 17517/07, §§ 31 to 33, 40 and 47, 23 November 2010); Gál v. Slovakia (no. 45426/06, §§ 19 to 22 and 27, 30 November 2010); Michalko v. Slovakia (no. 35377/05, §§ 39 to 41, 65 and 77, 21 December 2010).
88. The relevant provisions are summarised in the Court’s judgments in the cases of Štetiar and Šutek v. Slovakia (cited above, §§ 34 to 37); Gál v. Slovakia (cited above, §§ 23 to 26); Michalko v. Slovakia (cited above, §§ 42 to 45).
89. The relevant provisions are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (cited above, §§ 44 to 46); Gál v. Slovakia (cited above, §§ 28 to 30); Michalko v. Slovakia (cited above, §§ 70 to 75).
90. The applicable rules are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (cited above, §§ 48 to 51); Gál v. Slovakia (cited above, §§ 31 to 34); Michalko v. Slovakia (cited above, §§ 78 to 81).
91. The relevant provisions and judicial practice are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (cited above, §§ 38, 39 and 41 to 43); Michalko v. Slovakia (cited above, §§ 46, 47 and 66 to 69).
92. By its judgment of 31 May 2007 in an appeal on points of law (no. 4 Cdo 177/2005) concerning an action for damages under the State Liability Act 1969, the Supreme Court upheld the view that neither that Act nor an action for protection of personal integrity provided a legal basis for awarding compensation in respect of non-pecuniary damage caused by unlawful detention.
The State Liability Act 1969 was, however, to be interpreted in line with Article 5 § 5 of the Convention which presupposed compensation for nonpecuniary damage and which, pursuant to Article 154c § 1 of the Constitution, prevailed over the statutory text.
93. The relevant statutory provisions and further judicial practice are summarised in Michalko v. Slovakia (cited above, §§ 48 to 64); Osváthová v. Slovakia (no. 15684/05, §§ 37 to 46, 21 December 2010); Pavletić v. Slovakia (no. 39359/98, §§ 50 to 52, 22 June 2004) and Havala v. Slovakia ((dec.), no. 47804/99, 13 September 2001).
94. The relevant statutory provisions and judicial practice are summarised in Furdík v. Slovakia ((dec.), no. 42994/05, 2 December 2008), Kontrová v. Slovakia (no. 7510/04, §§ 33 to 35, ECHR 2007VI (extracts)), Nešťák v. Slovakia (no. 65559/01, §§ 48-52, 27 February 2007), Pavlík v. Slovakia (no. 74827/01, §§ 62 to 66, 30 January 2007), Kvasnica v. Slovakia ((dec.) no. 72094/01, 26 September 2006), Babylonová v. Slovakia (no. 69146/01, § 21, ECHR 2006VIII), Kontrová v. Slovakia (cited above (dec.), 13 June 2006) and Varga v. Slovakia ((dec.), no. 47811/99, 22 June 2004).
95. The Constitutional Court has dealt with monitoring of telephone communications in cases nos. IV. ÚS 76/05, I. ÚS 274/05, I. ÚS 117/07, III. ÚS 80/08, IV. ÚS 121/09, II. ÚS 280/09 and III. ÚS 180/2010.
96. The Constitutional Court declared inadmissible cases no. IV. ÚS 76/05 (on 16 March 2005), no. IV. ÚS 121/09 (on 9 April 2009), no. II. ÚS 280/09 (on 10 September 2009) and no. III. ÚS 180/2010 (on 4 May 2010) because the complainants had had, but had not used, the chance to challenge in their criminal trials evidence obtained by monitoring telephone communications and/or because the complaints were manifestly ill-founded.
In none of those cases did the Constitutional Court require the complainants to seek protection of their rights and interests by way of an action for protection of personal integrity for the purposes of exhaustion of ordinary remedies under section 53(3) of the Constitutional Court Act.
97. In cases nos. I. ÚS 274/05 (on 14 July 2006), I. ÚS 117/07 (on 4 February 2009), and III. ÚS 80/08 (on 27 May 2008), the Constitutional Court found a violation of the complainants’ rights and freedoms under the Constitution and the Convention on account of monitoring their telephone communications and awarded them compensation in respect of nonpecuniary damage.
In none of those cases is there any indication that the complainants had sought protection of their rights and interests by way of an action for protection of personal integrity, nor that the Constitutional Court had required them to do so for the purposes of exhaustion of ordinary remedies under section 53(3) of the Constitutional Court Act.
98. In the judgments mentioned in the preceding paragraph, the Constitutional Court held that a judicial warrant for monitoring telephone communications was not subject to appeal. It was not reviewable by the ordinary courts, upon which the warrant was binding.
The individuals concerned nevertheless had to have a remedy against the warrant – both in relation to the evidence obtained by the monitoring and the fact of the monitoring itself.
However, the individuals concerned could not seek a court order in respect of the fact of the monitoring itself before the ordinary courts, be they criminal or civil, in the context of protection of personal integrity.
VIOLATED_ARTICLES: 13
5
8
VIOLATED_PARAGRAPHS: 5-4
5-5


ITEMID: 001-79484
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KARATAY AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation od Art. 5-3;Violation of Art. 5-4
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicants were born in 1975, 1973 and 1949 respectively and live in Mardin.
6. On 5 December 2000, a textile company in Çukurova filed a petition with the office of the Bornova Public Prosecutor, complaining about the fraudulent acts of Fırat Karatay, the first applicant.
7. On 4 February 2001 the Bornova Public Prosecutor requested the Bornova Criminal Court of First Instance to issue an arrest warrant, for all three applicants, on suspicion of having committed fraud. On 8 February 2001 the public prosecutor filed an indictment with the same court, charging the applicants and four others with embezzlement under Articles 510 of the Criminal Code.
8. On 25 April 2001 the third applicant was arrested and placed in detention at the Kızıltepe Prison, by the judge at the Kızıltepe Criminal Court. The judge did not take his statements, but merely informed the applicant of the charges against him and noted his personal data.
9. On 14 May 2001, considering the state of the evidence and the nature of the offence, the Bornova Criminal Court ordered the continuation of the third applicant's detention on remand in his absence and demanded his presence for the following hearing.
10. In a letter dated 28 May 2001, addressed to the Bornova Criminal Court the third applicant requested to be released pending trial.
11. At the hearings of 11 June 2001 and 9 July 2001 the applicant was not brought before the court. The court ordered the third applicant's continued detention on remand reiterating the same reasoning. It further requested his transfer from the Kızıltepe Prison to Buca Prison in order to facilitate his presence before the court. In the meantime, the Kızıltepe Public Prosecutor informed the Bornova Criminal Court that the first and second applicants had been arrested and detained on remand on 7 July 2001 and 1 May 2001, respectively.
12. In a letter dated 9 July 2001, addressed to the Bornova Criminal Court the first applicant confessed to his guilt.
13. On 25 July 2001 the applicants' lawyer, who was present before the Bornova Criminal Court for the first time, requested the applicants' release pending trial. Taking into consideration the state of the evidence and the nature of the offence, the Bornova Criminal Court dismissed the lawyer's request, and requested the applicants' transfer to Buca Prison.
14. At the same hearing the applicants' lawyer requested the court not to transfer the third applicant from one prison to another due to his health problems. Subsequently, the court sent a letter rogatory to the Kızıltepe Criminal Court of First Instance in order to take the third applicant's statements.
15. At the hearings of 22 August 2001 and 21 September 2001 the court repeated its previous requests concerning the first and second applicants' transfer to the court and ordered, once again, the continuation of all three applicants' detention on remand.
16. On 19 October 2001 the applicants' lawyer complained before the court that although the applicants had been detained on remand for quite some time their statements had still not been taken by the court. He argued that this situation was in breach of the applicants' rights guaranteed under the Convention. Furthermore, in view of the length of their detention and the health problems of the third applicant, he requested the applicants' release pending trial. The court dismissed the lawyer's request in view of the state of the evidence and the nature of the offence. It also reiterated its order to transfer all three applicants to Buca Prison.
17. At the hearing of 21 November 2001 the applicants' lawyer maintained that the reason the prison authorities were not transferring the applicants to the Buca prison was because fuel expenses were not covered by the budget. He maintained that if the applicants are released, he would personally ensure the applicants' presence before the court. The court decided to send a letter rogatory to Kızıltepe Criminal Court to take the applicants' statements and then to release them.
18. On 6 December 2001 the applicants gave their statements before the Kızıltepe Criminal Court. The first applicant confessed to his guilt, while the others refuted the allegations. The court ordered their release pending trial as requested by the Bornova Criminal Court, in its decision dated 21 November 2001.
19. The textile company filed another complaint with the office of the Izmir Public Prosecutor, in relation to the first and the third applicants, regarding the same incident.
20. On 11 April 2001 the Izmir Criminal Court of First Instance filed an indictment against the first and the third applicants for embezzlement. On 28 June 2001 the court decided that it lacked jurisdiction to examine the case and sent the case file to the Karşıyaka Criminal Court of First Instance.
21. On 12 November 2001 the Kızıltepe Criminal Court of First Instance took the applicants' statements by way of rogatory letter issued by the Karşıyaka Criminal Court. The applicants alleged that they were not aware of the fact that a second case had been brought against them, at the time they gave these statements
22. At the hearing of 9 October 2002 the Karşıyaka Criminal Court of First Instance acquitted the third applicant due to lack of evidence and found the first applicant guilty as charged and sentenced him to five years and four months' imprisonment. Both the applicants and their lawyers were informed of the second case when the decision of 9 October 2002 was notified to them.
23. On 31 October 2002 the applicants appealed against the decision of the Karşıyaka Criminal Court.
24. On 24 April 2003 the first applicant was arrested and subsequently imprisoned in accordance with the decision dated 9 October 2002. On 26 January 2004 the Court of Cassation quashed the decision of the first instance court.
25. When the case was resumed before the first instance court, the applicants' lawyer requested to join this case with the one pending before the Bornova Criminal Court, as they concerned the same subject matter. Furthermore, he requested the first applicant's release pending trial. The Karşıyaka Criminal Court refused the lawyer's request to release the applicant in view of the state of the evidence and the nature of the offence.
26. On 1 July 2004 the two cases were joined before the Bornova Criminal Court of First Instance.
27. At the hearings held on 2 July, 27 July and 27 August 2004 the court ordered the continuation of the first applicant's detention on remand on account of the state of evidence and the seriousness of the charges, and taking into account the date of his arrest.
28. On 23 September 2004 the court ordered his release pending trial.
29. On 17 January 2005 the Criminal Court decided to acquit the second and third applicants and convicted the first applicant. It sentenced him to five years and four months' imprisonment.
30. Following the first applicant's appeal, the case is pending before the Court of Cassation.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-4770
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HILDEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national, born in 1955 and living in Helsinki.
He is represented before the Court by Mr Risto Kyytinen, a lawyer practising in Helsinki.
A.
The applicant was arrested on 6 July 1993 and detained on 7 July 1993 under suspicion of complicity in a murder. On 21 July 1993 he was charged, inter alia, with murder before the Vantaa District Court (kihlakunnanoikeus, häradsrätt). He was accused of committing the murder of L together with K. The charge had already been brought against K on 22 April 1993 and there had been seven previous hearings in the case. In these hearings eight witnesses had given evidence in K's presence.
The applicant and K, who both had been on the scene of crime, denied having shot L and accused one another.
In the eleven hearings that followed the applicant's apprehension, the District Court heard evidence from the two accused and from six of the previously heard and twelve new witnesses, some of whom were called by the applicant.
In the hearing on 4 August 1993 the applicant's legal counsel stated that witnesses should be examined in the presence of the accused and the accused should be allowed to put questions to witnesses.
In the hearing on 18 August 1993 the Public Prosecutor called two witnesses ML and KS, among others. ML was the victim's girlfriend and KS an acquaintance of the accused. The Public Prosecutor requested evidence from these witnesses to be heard in the absence of the applicant and K. They had already given evidence in K's presence in the previous hearings. No objection from the applicant's part was entered in the record. Under Chapter 17, Section 34, Subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, see below) the District Court accepted the Public Prosecutor's request. The applicant's legal counsel examined the witnesses. After the testimonies were given, the presiding judge summarised them to the applicant and K, who were then allowed to put further questions to the witnesses.
In the hearing on 25 October 1993 the District Court heard testimony from RS, an acquaintance of the applicant and K, in their absence. RS had earlier given evidence in K's presence. The applicant's legal counsel was able to examine the witness. When asked after the testimony, the applicant did not have further questions to RS. The witness KS gave testimony anew, this time in the presence of the applicant and K. The District Court also heard testimony from HT, who had already given evidence in the hearing on 21 July 1993. This time the Public Prosecutor requested HT to be examined without the applicant and K's presence, but the request was rejected. However, during HT's evidence the applicant and K were removed from the courtroom, as the District Court got the impression that the witness failed to tell what he knew when the accused were present. The applicant's legal counsel continued to examine the witness. After HT's testimony, the presiding judge summarised it briefly to the applicant and K, who were then allowed to put further questions.
Other witnesses' testimonies before the District Court were heard in the presence of the applicant and K.
On 25 March 1994, the District Court convicted the applicant of murder and other offences and sentenced him to life imprisonment. It based the judgement on the testimonies of the two accused and the witnesses. When evaluating the testimony of the applicant, the District Court took into consideration that the applicant had had the opportunity to follow the news reports of the proceedings prior to his arrest.
Immediately after the pronouncement of the District Court's judgment, the applicant gave notice of his intention to appeal and asked for a copy of the reasons of the judgment. On 15 April 1994 the District Court informed the applicant's legal counsel that a copy of the District Court's record, including the judgment, could be fetched after 3 p.m. On the same day the applicant requested three weeks' extension of time for appeal. The District Court rejected the request on 19 April 1994. The time for appeal expired on 25 April 1994.
The applicant appealed against the judgment of 25 March 1994 and the decision of 19 April 1994 to the Helsinki Court of Appeal (hovioikeus, hovrätt). On 7 February 1995, the Court of Appeal rejected the appeals. As regards the murder charge, it stated: (translation from Finnish) “There is no reason to change the District Court's judgment.”
On 21 December 1995, the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
B. Relevant domestic law
The relevant domestic law as in force at the relevant time:
According to Chapter 17, Section 34, Subsection 2, of the Code of Judicial Procedure, the court may decide to hear a witness in the absence of a party, if the witness for fear of the party or for some other reason fails to tell what he knows about the matter, or if the party interferes with the witness's testimony or tries to confuse the witness. The testimony must be read to the absent party and he must be allowed to put further questions to the witness.
According to Chapter 25, Section 5, of the Code of Judicial procedure, a party who wishes to appeal against a District Court's judgment must give notice of his intention to appeal within seven days from the pronouncement of the judgment. Section 12, Subsection 1, of the Chapter provides that the time-limit for filing an appeal is thirty days from the day the judgment was pronounced.
According to Chapter 24, Section 4a, Subsection 2, of the Code of Judicial Procedure, a copy of a District Court's judgment must be available to a party who has given notice of his intention to appeal within three weeks from the pronouncement of the judgment in the registry of the District Court.
According to Chapter 25, Section 13, Subsection 1, of the Code of Judicial Procedure, if a party, who has given notice of his intention to appeal, cannot appeal within the time set due to a legal impediment or some other acceptable reason, the District Court may set a new time limit for appeal.
According to Chapter 24, Section 4, of the Code of Judicial Procedure, an appellate court must not repeat the reasons of the lower court's decision when upholding the decision. When further reasons are found, they may be added.


ITEMID: 001-113601
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: NIKOGHOSYAN v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr Gilvent Nikoghosyan, is an Armenian national, who was born in 1940 and lives in Yerevan. He is represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan.
2. The Armenian Government (“the Government”) are represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1974 the applicant bought a house together with the underlying plot of land which was formally 10 m wide and 40 m long.
5. By a letter of 19 February 2002 the Head of Kanaker-Zeytun District Council, apparently in reply to an inquiry made by a private law firm, informed the person concerned that, following an on-site examination, it had been established that, according to the relevant plan, the applicant’s plot of land measured 400 sq. m, but in reality it measured only 395.3 sq. m, not including the walls, and 397.7 sq. m, if including the walls. The width of the plot at the front was 10 m, while the middle part, about 14 m along, was only 9.67 m wide. It was also established that the owners of the neighbouring houses had seized part of the applicant’s plot of land: 4.8 sq. m, not including the walls, and 2.3 sq. m, if including the walls.
6. On an unspecified date the applicant instituted proceedings before the Arabkir and Kanaker-Zeytun District Court of Yerevan against his neighbours, claiming that they had built certain constructions encroaching on his plot of land, and seeking to recover his property.
7. During the court examination of the claim it was established that the constructions in question were the neighbours’ houses which were owned by them.
8. On 21 March 2002 the Arabkir and Kanaker-Zeytun District Court of Yerevan partially granted his claim.
9. On 11 September 2002 the Civil Court of Appeal dismissed his claim in full.
10. On 25 October 2002 the Court of Cassation quashed this judgment and remitted the case.
11. On 2 December 2002 the Civil Court of Appeal, having re-examined the claim, decided to grant it. The court found that, according to the relevant property certificate and the plot’s plan, the applicant’s plot of land measured 10 x 40 m. However, as stated in the District Council’s letter of 19 February 2002, his neighbours had unlawfully seized part of that plot measuring 4.8 sq. m, not including the walls, and 2.3 sq. m, if including the walls. The court thus obliged the defendants to remove the unauthorised constructions and to return the unlawfully seized part of the plot of land according to the dimensions indicated in the letter of 19 February 2002.
12. No appeal was lodged against this judgment and it became final. A corresponding writ of execution was issued to the applicant on 19 December 2002.
13. On 14 March 2003 the applicant requested the Yerevan Division of the Department for the Enforcement of Judicial Acts (“the DEJA”) to institute enforcement proceedings.
14. On 19 March 2003 the bailiff decided to institute the relevant enforcement proceedings. On the same date the bailiff ordered the applicant’s neighbours to demolish the unauthorised constructions and to return the seized part of the plot of land to the applicant by 1 p.m. on 2 April 2003.
15. On 5 May 2003 the bailiff decided to impose on the neighbours a fine of 150,000 Armenian drams (approx. EUR 225) due to their failure to comply with the judgment.
16. On 16 May 2003 the bailiff instituted court proceedings, seeking to have this fine levied.
17. On 10 July 2003 the Arabkir and Kanaker-Zeytun District Court of Yerevan left the bailiff’s application unexamined due to his failure to appear.
18. On 16 July 2003 the bailiff decided to apply to the Civil Court of Appeal with a request to clarify the execution writ, stating that on 10 July 2003 the defendants had produced ownership certificates and argued that the constructions subject to demolition were not unauthorised. The bailiff decided to stay the enforcement proceedings until clarification was provided.
19. On 24 July 2003 the Court of Appeal dismissed this request, finding that the judgment of 2 December 2002 had clearly stated that, according to the District Council’s letter of 19 February 2002, the neighbours had unlawfully seized part of the applicant’s plot of land measuring 4.8 sq. m, not including the walls, and 2.3 sq. m, if including the walls, on which they had built unauthorised constructions which were to be removed.
20. On 27 October 2003 the bailiff decided to resume the enforcement proceedings.
21. On 19 December 2003 the head bailiff applied to the Kanaker-Zeytun District Council, requesting that the unauthorised constructions built by the defendants be pointed out on the spot.
22. By a letter of 24 December 2003 the Kanaker-Zeytun District Council informed the head bailiff that, in accordance with additional measurements taken by the employees of the District Council with the participation of the bailiff, no unauthorised constructions built by the neighbours were disclosed on the applicant’s plot of land. As to the letter of 19 February 2002, it referred to a land seizure of 2.30 sq. m at the rear of the plot of land which was separated by an uncemented fence that could have been removed.
23. On 25 December 2003 the bailiff decided to discontinue the enforcement proceedings on the ground that, as a result of additional measuring, no unauthorised constructions and land seizure had been disclosed in the disputed area and that the unauthorised constructions referred to in the execution writ were the neighbours’ flats.
24. On an unspecified date the applicant complained about the bailiff’s decision to the courts claiming that the judgment of 2 December 2002 had not been complied with and seeking to annul the bailiff’s decision and to resume the enforcement proceedings.
25. On 1 July 2004 the Ajapnyak and Davtashen District Court of Yerevan granted the complaint, quashed the bailiff’s decision as being in contradiction to Section 41 of the Law on the Enforcement of Judicial Acts (“the Enforcement Law”) and ordered the reopening of the enforcement proceedings.
26. On 26 July 2004 the bailiff reopened the enforcement proceedings.
27. On 29 September 2004 the head bailiff applied to the Real Estate Registry, asking for additional measurements to be taken, with participation of specialists and bailiffs, in order to clarify the existence of unauthorised constructions built by the defendants and the dimensions of the seized land on the spot.
28. By a letter of 13 January 2005 the Head of the Arabkir District Division of the Real Estate Registry informed the bailiff that there were no unauthorised constructions and no unlawful land seizure on the applicant’s plot of land by his neighbours.
29. On 20 January 2005 the bailiff decided, based on the above letter, to discontinue the enforcement proceedings on the ground that there were no unauthorised constructions and no unlawful land seizure at the address in question.
30. On an unspecified date the applicant contested this decision before the courts. On 15 March 2005 the Ajapnyak and Davtashen District Court of Yerevan quashed the bailiff’s decision on the ground that the bailiff had failed to enforce in substance the judgment of 2 December 2002 and that his actions were in violation of Section 41 of the Enforcement Law.
31. On an unspecified date the bailiff lodged an appeal.
32. On 8 July 2005 the Civil Court of Appeal upheld the judgment of the District Court.
33. On 21 March 2006 the bailiff, based on the judgment of the Civil Court of Appeal, reopened the enforcement proceedings.
34. On 3 July 2006 the Head of the Kanaker-Zeytun District Council, upon a request lodged by the bailiff on 22 June 2006, informed the latter that, in accordance with the examination carried out by the Council’s officials, the actual size of the houses built by the applicant’s neighbours on their plots of land corresponded to that indicated in their ownership certificates.
35. On 12 July 2006 the Arabkir and Kanaker-Zeytun District Division of the Real Estate Registry, upon a request lodged by the bailiff on 22 June 2006, informed the latter that its officials had taken measurements of the applicant’s house and plot of land, as a result of which it was found that the actual position and size of the applicant’s house and the plot of land corresponded to the plan as indicated in the ownership certificate.
36. On 16 August 2006 the bailiff again requested the Civil Court of Appeal to provide clarification of the execution writ.
37. On 18 August 2006 the bailiff decided to stay the enforcement proceedings on this ground.
38. On 22 August 2006 the bailiff applied to the Civil Court of Appeal, seeking to clarify whether the enforcement proceedings were to be discontinued or terminated.
39. On 6 February 2007 the Court of Appeal dismissed this application.
40. On 29 March 2007 the bailiff decided to reopen the enforcement proceedings and to terminate them, finding that the uncemented construction (fence) built by the defendants without authorisation at the rear of the plot had been removed.
41. On an unspecified date the applicant contested before the courts the bailiff’s decision of 29 March 2007, claiming that it was in violation of Section 42 § 1 (1) of the Enforcement Law since the final judgment of 2 December 2002 had not actually been enforced.
42. On 18 May 2007 the Ajapnyak and Davtashen District Court of Yerevan dismissed the applicant’s complaint. The applicant lodged an appeal.
43. On 13 August 2007 the Civil Court of Appeal dismissed the applicant’s appeal. In doing so, the Court of Appeal made a reference to the District Council’s letter of 25 December 2003, according to which the land seizure concerned the uncemented fence which was no longer found to be present during a new on-site examination on 24 December 2003. Hence, the judgment of 2 December 2002 had in fact been enforced by that date. The bailiff’s decision to discontinue the enforcement proceedings was quashed on formal grounds, in particular, because the bailiff had not applied the correct legal provision for the termination of the enforcement proceedings, and not because the judgment had not been enforced. It would have been more correct to terminate the proceedings rather than to discontinue them. On 17 December 2007 the applicant lodged an appeal on points of law against the judgment of 13 August 2007.
44. The applicant did not submit any further information concerning the case.
1. The Law on the Enforcement of Judicial Acts
45. According to Section 3 § 1, the enforcement of judicial acts in Armenia is ensured by the Department for the Enforcement of Judicial Acts operating under the Ministry of Justice of Armenia.
46. According to Section 4, an execution writ issued according to a procedure prescribed by this Law shall provide grounds for taking enforcement measures.
47. According to Section 5 (as amended on 16 December 2005), enforcement measures include, inter alia, imposition of a fine for failure to comply with the bailiff’s decisions.
48. According to Section 34 §§ 1 and 2, the enforcement measures shall be executed within two months. This time-limit can be extended by two months by the Supreme Bailiff of Armenia.
49. According to Section 35 § 1, if the requirements contained in the execution writ are unclear the bailiff can apply to obtain clarification from the court which issued the writ.
50. According to Section 38 § 1, the bailiff has the right to stay the enforcement proceedings if he has applied to obtain clarification from the court which issued the execution writ.
51. According to Section 41, the bailiff shall discontinue the enforcement proceedings if (1) the judgment beneficiary requests that the execution writ be withdrawn; (2) it is impossible to locate the debtor or his property while all permissible measures taken by the bailiff and/or the beneficiary have proved vain; (3) the debtor has no property or sources of income which might be confiscated while all the permissible measures undertaken by the bailiff and/or the beneficiary and directed at discovering the debtor’s property have proved vain; and (4) the debtor’s property is not sufficient to meet the demands of the beneficiary; and (5) the enforcement activities, as required by the execution writ, have been concluded (this subparagraph was abolished on 16 December 2005).
52. According to Section 42 § 1, the bailiff shall terminate the enforcement proceedings if the execution writ has in fact been executed.
53. According to Section 62 (as in force at the material time), following the institution of enforcement proceedings the bailiff shall set a time-limit for the execution by the debtor of the execution writ obliging him to take certain actions. If no actions are taken within that time-limit, the bailiff shall impose on the debtor a fine and take other measures envisaged under Section 72 and ensure the enforcement of the execution writ by levying on the debtor three times the enforcement costs.
54. According to Section 72 § 1 and 72.1 § 1 (as amended on 6 October 2001), the deliberate non-compliance with the bailiff’s decision entails liability prescribed by law. Fines imposed by the bailiff shall be levied by a court judgment.
55. According to Article 206.5 (as amended on 11 September 2001), the deliberate non-compliance with the bailiff’s decision shall lead to the imposition of a fine between one hundred and two hundred times the fixed minimum wage.