ITEMID: 001-78792
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BARTIK v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (victim);Violation of P4-2;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides
TEXT: 6. The applicant was born in 1954 and at the material time lived in the Moscow Region. He now lives in the United States of America.
7. In 1977 the applicant started working for a construction and design agency, “Raduga” (GMKB “Raduga”), a State corporation that developed rocket and space devices. He signed an undertaking not to disclose classified information.
8. On 16 May 1989 the applicant signed a new undertaking, the relevant part of which reads as follows:
“I, [the applicant], undertake:
(a) not to disclose information containing State and professional secrets that are entrusted to me or that I learn by virtue of my service (work) duties ...
...
(c) not to visit embassies, missions, consulates or other representative offices of foreign States, and not to contact – directly or through others – foreigners without the consent of the management of the agency I work for or the relevant Soviet authorities ...
I have been informed of the prohibition on travel abroad, except as permitted by relevant laws and regulations ...”
9. On 31 January 1994 the applicant signed a new undertaking which read as follows:
“I, [the applicant], on assuming my work duties at the Raduga design agency, undertake:
(a) not to disclose information containing State and professional secrets entrusted to me or coming to my attention by virtue of my service (work) duties;
(b) to abide by the applicable requirements laid down in the orders, instructions and regulations concerning the secrecy of the studies conducted, of which I have taken cognisance;
(c) to notify the department of the enterprise responsible for secrecy arrangements or the competent authorities of any attempts by outsiders to obtain secret information from me;
(d) to inform the human resources department in a comprehensive and timely fashion of any change in my personal circumstances; and to inform the department responsible for secrecy arrangements of any contacts with my relatives permanently living abroad or planning to take up permanent residence abroad, or of any non-professional contacts with foreigners.
In the event of my dismissal I undertake to abide strictly by requirements (a) and (c) above ...”
10. On 20 August 1996 the applicant resigned.
11. In early 1997 the applicant’s father, who lived in Germany, fell ill. Wishing to visit his father, the applicant applied to the Passports and Visas Service of the Department of the Interior of Dubna for a travel passport, the identity document which entitles Russian citizens to leave the country and travel abroad.
12. On 17 March 1997 the Head of the Passports and Visas Service refused the applicant’s request. The entire text of the decision reads as follows:
“As there exist grounds for a temporary restriction on your right to leave the Russian Federation as set out in section 15 of the Law on the procedure for entering and leaving the Russian Federation, your application for a travel passport has been declined until 2001 further to a recommendation by the Raduga design agency of 20 February 1997 (registration number 6/209/23324).”
13. The applicant contested the refusal before the Inter-agency Commission for the examination of Russian citizens’ complaints in connection with restrictions on their right to leave the Russian Federation (“the Commission”). On 24 February 1998 the Commission informed the applicant that it had unanimously upheld the imposition of a five-year restriction. The letter did not indicate the reasons for the decision.
14. The applicant appealed against the decision of the Commission to the Moscow City Court.
15. On 24 September 1999 the Moscow City Court gave judgment. It found that on 22 April 1977, 16 May 1989 and 31 January 1994 the applicant had signed undertakings not to disclose State secrets; the 1989 undertaking also contained a clause restricting the applicant’s right to leave the country. Having examined a report on the applicant’s knowledge of State secrets of 20 February 1997, drawn up by the applicant’s former employer and confirmed by the Aviation and Space Industry Department and the State Secrets Protection Department of the Ministry of Economy at the request of the Passports and Visas Service, the court found as follows:
“According to the report ... [the applicant] in his work used workbooks bearing inventory nos. 5301 and 4447 that contained extracts from top secret documents (nos. ...). In respect of some inventory numbers, requests were sent to the design enterprises [in order] to verify whether the information contained therein was still sensitive. However, no response was received. Moreover, the Court questioned a witness, Mr K., the Deputy General Director responsible for the regime and for security at the Raduga agency, who confirmed that the information contained in the documents that had been drawn up in the Raduga agency had retained its top secret classification and was still sensitive ... As the witness Mr K. clarified to the Court, there are no grounds for changing the secrecy classification of this information ...”
On these grounds the court determined that the restriction on the applicant’s right to leave the Russian Federation until 14 August 2001 was lawful and justified.
16. On 9 November 1999 the Supreme Court of the Russian Federation upheld the City Court’s judgment, finding that it had been properly justified and reasoned.
17. The restriction on the applicant’s right to leave the country expired on 14 August 2001.
18. On 25 October 2001 the applicant was issued with a travel passport and subsequently took up residence in the United States of America.
19. The USSR Act provided that USSR citizens could only leave the country with a travel passport issued by a competent body (section 1). A travel passport could be refused, in particular, if the person had knowledge of State secrets or was subject to other contractual obligations prohibiting his departure from the USSR (section 7(1)). An appeal lay against a refusal to a special commission of the Cabinet of Ministers and from there to a court (section 8).
20. Pursuant to section 12, “restrictions [concerning international travel] [were to be] brought to citizens’ attention by the management of enterprises, institutions, organisations ... on their enrolment for work or study ... that entailed access to State secrets. Before such access [could be] authorised, a written employment contract [had to] be signed on a voluntary basis ...”
21. The USSR Act remained in force until 19 August 1996 when it was replaced by the Russian Act described below.
22. Section 2 provides that the right of a Russian citizen to leave the Russian Federation may only be restricted on the grounds of, and in accordance with, the procedure set out in the Act. Section 15(1) provides that the right of a Russian national to leave the Russian Federation may be temporarily restricted if he or she has had access to especially important or top secret information classified as a State secret and has signed an employment contract providing for a temporary restriction on his or her right to leave the Russian Federation. In such cases the restriction is valid until the date set out in the contract, but for no longer than five years from the date the person last had access to especially important or top secret information. The Inter-agency Commission for the protection of State secrets can extend this period up to a maximum of ten years.
23. The granting of access to State secrets presupposes the consent of the person concerned to partial and temporary restrictions on his or her rights in accordance with section 24 of the Act (section 21).
24. The rights of persons who have been granted access to State secrets may be restricted. The restrictions may affect their right to travel abroad during the period stipulated in the work contract, their right to disseminate information about the State secrets and their right to respect for their private life (section 24).
25. The relevant part of Opinion no. 193 (1996) on Russia’s request for membership of the Council of Europe, adopted by the Parliamentary Assembly on 25 January 1996 (7th Sitting), reads as follows:
“10. The Parliamentary Assembly notes that the Russian Federation shares fully its understanding and interpretation of commitments entered into ... and intends:
...
xv. to cease to restrict – with immediate effect – international travel of persons aware of State secrets, with the exception of those restrictions which are generally accepted in Council of Europe member States ...”
26. The Explanatory Report on Protocol No. 4 to the Convention (ETS no. 46) indicates that the Committee of Experts on Human Rights set up by the Committee of Ministers of the Council of Europe endorsed the changes bringing the text of Article 2 of Protocol No. 4 in conformity with that of Article 12 of the International Covenant on Civil and Political Rights, cited below (see, in particular, points 7 and 12 of the Report).
27. The laws of the founding members of the Council of Europe have not restricted the right of their nationals to go abroad for private purposes since the inception of the organisation. The Schengen Agreement, which was originally signed on 14 June 1985 by five States and has to date been implemented by fifteen States, has removed border posts and checks in much of the western part of Europe and abolished any outstanding restrictions on international travel.
28. Many other Contracting States, including, in particular, the former Socialist countries, repealed restrictions on international travel by persons having knowledge of “State secrets”, a common legacy of the Socialist regime, during the process of democratic transition (for example, Estonia, Georgia, Hungary, Latvia, Lithuania and Poland). At present certain restrictions on persons who were aware of “State secrets” but wished to go abroad have endured in only a few States that were once part of the Soviet Union. Of those, two member States (Armenia and Ukraine) provide for temporary restrictions on permanent emigration – but not on international travel for private purposes – by persons who had access to “State secrets”, and one member State (Azerbaijan) also restricts private international travel by such individuals.
29. Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”), to which the Russian Federation is a party, defines the right to freedom of movement in the following terms:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
...”
30. General Comment no. 27: Freedom of movement (Article 12), adopted by the Human Rights Committee under Article 40 § 4 of the ICCPR on 2 November 1999 (CCPR/C/21/Rev.1/Add.9), reads as follows:
“1. Liberty of movement is an indispensable condition for the free development of a person ...
2. The permissible limitations which may be imposed on the rights protected under Article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in Article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant.
...
8. Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered, as well as departure for permanent emigration ...
...
9. ... Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere ...
...
11. Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted ...
...
14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
...
16. States have often failed to show that the application of their laws restricting the rights enshrined in Article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in Article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of ‘State secrets’ ...”


ITEMID: 001-86022
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SULEJMANOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych
TEXT: 6. On 13 March 1998, the applicant and his friend S. D., both of Roma ethnic origin, were stopped by two police officers near the village of Balvan on suspicion of having stolen two sheep. The police officers, without asking any questions, immediately started to beat him and his friend on their heads and bodies with their truncheons, which caused bleeding from the applicant’s mouth and nose. They were then put into the police car and driven to the village of Tarinci, where the theft had allegedly occurred. One of the police officers called over the owner of the sheep in order to confront him with the applicant. The police officer started to swear at him and said: “All gypsies will remember me forever. I can sacrifice you all.” The applicant was handcuffed and beaten by police officers with truncheons and by the owner of the sheep, who was using the branch of a tree.
7. Around 9 p.m. the applicant and his friend were taken to the police station, where they were made to lie on the ground in front of the door and beaten by five police officers. Once inside the police station, they were tied to a bench in the hall and beaten up again. As the applicant was terribly thirsty, he asked for some water, but the reply was “there is no water for gypsies!” They remained tied to a bench all night; they were released in the morning.
8. After his release on 14 March 1998, the applicant went the same date to the Emergency Aid Unit of Štip Hospital (the “hospital”), where a plaster cast was put on his broken left arm. As he had no money to pay for the medical assistance, he used his cousin’s medical identity card and therefore his name, instead of the applicant’s name, appeared in the hospital’s register. In the hospital’s register, the injuries were described as “fracturae”.
9. On 11 March 1998, after 9 p.m., the applicant and his two friends, S. D. and D. R., hired a taxi in Štip and went to the village of Tarinci with the intention of stealing sheep from K. P. They told the taxi driver that they were going to collect two sheep from a relative and sell them in Vinica.
10. On arrival in the village, the applicant and his friends broke into the cellar of K. P.’s house, stole two sheep, put them in the taxi and then headed for Vinica. In Vinica, they went to the Roma quarter and tried to sell the sheep for 8,000 denars. They refused an offer of 6,000 denars and headed back towards Štip with the sheep in the taxi.
11. At about 11 p.m. the police stopped the taxi in the vicinity of the village of Dolni Balvan in a routine check. Their suspicions were aroused by contradictory explanations given by the occupants of the car about the sheep. The police requested information on the radio as to any reported theft.
12. At about 10.50 p.m. K. P. had reported the theft of his two sheep. A police van arrived and the taxi driver was instructed to follow it to Tarinci. At about 11.30 p.m., they arrived in Tarinci. The applicant and his friends were instructed to unload the sheep. K. P. arrived at the scene and began to swear; he hit the applicant with a stick several times on the upper body and claimed that the applicant had stolen livestock and property from him before. The police ordered K. P. to stand back and prevented any further blows to the applicant.
13. At 11.45 p.m. the police took the applicant and his friends back in the police van to Štip. The applicant, his friends and the taxi driver were interviewed. The applicant complained of pain in his arm and stated that K. P. had hit him with a stick. This was allegedly corroborated by the taxi driver.
14. At 2 a.m. on 12 March 1998 the applicant and the others were released. The same day, K. P. lodged a criminal complaint with the police.
15. The taxi driver confirmed that it had been on 11 March 1998 that three persons of Roma origin, including the applicant, had loaded the sheep into his car in the village of Tarinci and taken them to Vinica. After being stopped by the police, he had been instructed to follow the police van to the village of Tarinci, where the sheep had been returned to K. P. No mention was made that K. P had hit the applicant.
16. The applicant, D. R. and S. D. described the circumstances concerning the sheep theft which had happened on 11 March 1998. None of them indicated that the applicant had been hit by K. P.
17. On 8 April 1998 the police lodged criminal charges of aggravated theft with the public prosecutor against the applicant and his two friends. It was noted that the incident had occurred on 11 March 1998. No mention was made of any injuries having been sustained by the applicant.
18. On 20 January 1999 the applicant was convicted by the Štip Court of First Instance on six counts of theft (verdict K. No. 237/98) including the one relevant to the present case. According to the judgment, the offence had been committed on 11 March 1998. The applicant was sentenced to one year and one month’s imprisonment. On 30 March 1999 the Štip Court of Appeal upheld the trial court’s decision and confirmed the sentence.
19. On or about 21 October 1998, Mr Madjunarov, as the applicant’s representative, brought a civil action before the Štip Court of First Instance (Основен суд Штип) against the respondent State and the Ministry of the Interior for compensation for non-pecuniary damage sustained as a result of police brutality inflicted on him.
20. On 5 March 2001 the Štip Court of First Instance dismissed the applicant’s claim as ill-founded. It found insufficient evidence to establish that the applicant had been injured by the police officers on duty. It accepted the testimony given by the police officers, who said that the applicant had been hit with a stick by K. P., the owner of the sheep. It found that the applicant had not been beaten by the police officers and that no force had been inflicted on him while he was detained in the police station. The court established 13 March 1998 as the date of the incident. It stated, inter alia,
“... when K. P. [the owner of the sheep] saw the persons who had stolen the sheep, he started to hit [the applicant] with a stick, as he had stolen sheep from him before. The officers on duty intervened to protect the complainant (the applicant) from K. P. without hitting him ... During the arrest, they (the applicant and his friend) did not resist and the police officers did not use any force ... the court established that the complainant had been beaten by K. P. when the sheep were returned to him ... these witnesses (the police officers who were on duty on 13 March 1998 in the police station when the applicant was taken into police custody) stated that they had questioned him and had not used force against him, as he had not resisted ... during the questioning, he had not complained that he was injured or felt any pain. He only complained that he had been taken to K. P., who had hit him. They (the police officers on duty on the decisive date) stated that they had not noticed any injuries on [the applicant’s] body.”
21. The applicant asked the court to hear S. D., as an eyewitness to the incident, the cousin who had lent him his medical card and the doctor who had examined him. The court did not hear S. D. or the applicant’s cousin, as they had been imprisoned in Idrizovo and were therefore considered “unreachable” by the court. It ruled that their examination would be irrelevant, as other evidence did not show that he had had any injuries during the police investigation. It accepted as possible that the applicant had visited a doctor with another person’s medical identity card, but that it had not been in relation to injuries inflicted by police officers.
22. On 17 September 2001 the Štip Court of Appeal dismissed an appeal by the applicant and upheld the lower court’s decision. The court found that the lower court had reasonably established that K. P., the owner of the sheep, had inflicted the injuries on the applicant by hitting him with a stick. The police officers had intervened to protect the applicant from further attacks. It endorsed the lower court’s reasoning that the applicant had not been beaten in the police station while in custody. It established that even if the lower court had heard the witnesses proposed by the applicant, they would not have altered its findings, as it had found that the police officers who had arrested him had not used any force and had not inflicted any injuries on him.
23. On or about 29 October 2001 the applicant requested the public prosecutor to lodge with the Supreme Court an application for protection of legality (барање за заштита на законитоста). Referring to the outcome of the civil proceedings, he did not provide the public prosecutor with the identity of the police officers concerned.
24. On 13 December 2001, the public prosecutor notified the applicant that there were no grounds for lodging that remedy with the Supreme Court.
25. On 3 November 1998, Mr Madjunarov, as the applicant’s representative, lodged a criminal complaint (кривична пријава) with the Štip Public Prosecutor’s Office (Основно Јавно Обвинителство Штип) against an unidentified police officer. In the complaint, the applicant set out an account of the incident which had allegedly occurred on 13 March 1998. As evidence, the applicant offered his own testimony, that of his friend S. D. and that of the doctor who had examined him and put a plaster cast on his hand, and proposed consulting the hospital’s register. He stated, inter alia,
“... around 8 a.m. a police officer, who I don’t know, hit me with a truncheon, breaking my left arm. The police took me to the Štip Medical Centre where a plaster cast was put on, which I kept on for two months ... “
26. On 28 May 1999, the applicant’s legal representative wrote a letter to the public prosecutor, stating that a criminal complaint had been lodged about seven months before and that since then he had received no information as to whether any steps had been taken to identify the offenders and initiate a formal investigation.
27. As there was again no reply, on 25 October 1999 the applicant’s lawyer sent another letter to the public prosecutor, requesting to be provided with information about any action taken concerning the applicant’s complaint and about the identity of the offender(s).
28. In a letter addressed to the applicant on 11 November 1999, the public prosecutor responded that his office had acted with regard to the criminal complaint at issue by officially requesting additional inquiries from the Ministry of the Interior (“the Ministry”). However, as of that date his office had received no information from the said ministry.
29. On 13 February 2006 the public prosecutor issued a “written conclusion” (писмена констатација) concerning the applicant’s criminal complaint. It was based on a statement by the taxi driver given on 10 February 2006 and on the criminal case file against the applicant. As stated therein, the taxi driver attested that K. P. had hit the applicant and S. D. with a stick and that the police officers involved had not had recourse to any physical force when arresting them. There were, accordingly, no grounds for the public prosecutor’s intervention. That decision was served on the applicant’s representative on 10 October 2006, after the Court’s admissibility decision given in the present case.
30. The statutory provisions relevant for the present case were described in the Jasar case (see Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 31-40, 15 February 2007).
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-59535
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF VgT VEREIN GEGEN TIERFABRIKEN v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (abuse of right of petition);Violation of Art. 10;No violation of Art. 13;No violation of Art. 14;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 8. The aim of the applicant association is the protection of animals, with particular emphasis on animal experiments and industrial animal production.
9. As a reaction to various television commercials of the meat industry, the applicant association prepared a television commercial lasting fifty-five seconds and consisting of two scenes.
10. The first scene of the film showed a sow building a shelter for her piglets in the forest. Soft orchestrated music was played in the background, and the accompanying voice referred, inter alia, to the sense of family which sows had. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The accompanying voice stated, inter alia, that the rearing of pigs in such circumstances resembled concentration camps, and that the animals were pumped full of medicaments. The film concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!”
11. On 3 January 1994 the applicant association, wishing this film to be broadcast in the programmes of the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft), sent a videocassette to the then Commercial Television Company (AG für das Werbefernsehen, now called Publisuisse) responsible for television advertising.
12. On 10 January 1994 the Commercial Television Company informed the applicant association that it would not broadcast the commercial in view of its “clear political character”. The company pointed out that an alternative solution would be a film showing the merits of a decent rearing of animals and informing viewers that they were free to enquire into the origin of the meat which they were buying.
13. By a letter of 10 January 1994 the applicant association requested a decision against which it could file an appeal. On 13 January 1994 the Commercial Television Company replied that it was not an official authority giving decisions which could be contested. Nevertheless, it would be willing to convene a meeting to discuss other possibilities in the presence of a legal adviser.
14. By a letter of 14 January 1994 the applicant association stated that it was not prepared to accept changes to its commercial. It requested a statement of the reasons for the decision and information as to the supervisory authority with which an appeal could be filed.
15. By a letter of 24 January 1994 the Commercial Television Company declined the applicant association’s requests as follows:
“As you have refused the discussion which we have proposed, we see no reason to enter into your propositions as set out in your letters of 14 and 20 January 1994. We regret this development as it serves neither you nor us. We confirm that we cannot broadcast your commercial in the proposed form as it breaches section 14 of the Radio and Television Ordinance [Radio- und Fernsehverordnung] as well as our general conditions of business [Allgemeine Geschäftsbedingungen]. In addition, the Commercial Television Company cannot be obliged to broadcast commercials which damage its business interests and involve its editorial rights.”
16. On 4 February 1994 the applicant association filed a complaint with the Independent Radio and Television Appeal Board (Unabhängige Beschwerdeinstanz für Radio und Fernsehen), complaining of the refusal to broadcast the commercial. The latter informed the applicant association on 10 February 1994 that it could only deal with appeals complaining about programmes which had already been broadcast, but that it would transmit the complaint to the Federal Office of Communication (Bundesamt für Kommunikation). The Federal Office informed the applicant association on 25 April 1994 that within the framework of the broadcasting provisions the Commercial Television Company was free to purchase commercials and choose its contractual partners as it wished. It further stated that it considered the complaint to be a disciplinary report, and that it saw no reason to take proceedings against the Swiss Radio and Television Company.
17. On 6 July 1994 the applicant association filed a complaint with the Federal Department of Transport, Communications and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement), which was dismissed on 22 May 1996. In its decision, it found, inter alia, that the Swiss Radio and Television Company was the sole institution to provide information in respect of home news (Inlandsberichterstattung). In respect of commercial broadcasts, however, the company was in competition with local, regional and foreign broadcasters, and the applicant association was not obliged to have its commercial broadcast over the channels of the company. Moreover, the company acted in matters of advertising as a private entity and did not fulfil a duty of public law when it broadcast commercials. The Federal Department concluded that the Swiss Radio and Television Company could not be ordered to broadcast the commercial at issue.
18. The applicant association’s administrative-law appeal (Verwaltungsgerichtsbeschwerde), filed by a lawyer and dated 18 June 1996, was dismissed by the Federal Court (Bundesgericht) on 20 August 1997. The court noted, with reference to Article 13 of the Convention, that the Federal Office of Communication should have formally afforded the applicant association the opportunity to institute complaints proceedings which, if necessary, could have remedied the matter. As the case was ready for decision, the Federal Court undertook the decision itself. It then balanced the various issues at stake.
19. The judgment proceeded to explain the position of the Swiss Radio and Television Company in Swiss law. The company no longer enjoyed a monopoly and was increasingly subject to foreign competition. However, this did not alter the fact that, according to the applicable law, the Swiss Radio and Television Company continued to operate in the area of programming within the framework of public-law duties with which it was entrusted. The law itself granted it a licence for the broadcasting of national and linguistic regional programmes.
20. The Federal Court further considered that Article 55 bis § 3 of the Federal Constitution (Bundesverfassung); in the version applicable at the relevant time, ensured the independence of radio and television broadcasting as well as autonomy in programming. However, advertising fell outside the programming obligations of the Swiss Radio and Television Company, the programming activity presupposing an assessment of the informative content by an editor. Only programming activities were covered by Article 55 bis of the Federal Constitution and section 4 of the Federal Radio and Television Act (Bundesgesetz über Radio und Fernsehen). Viewers should not be influenced in their opinions by one-sided, unobjective or insufficiently varied contributions which disregarded journalistic obligations. Commercials, on the other hand, were by their very nature one-sided as they were in the interest of the advertiser, and were by definition excluded from a critical assessment. For this reason, pursuant to section 18(1) of the Federal Radio and Television Act, they had to be clearly separated from programmes and recognisable as such. Indeed, the Federal Radio and Television Act dealt with advertising and financing, rather than with programming. Furthermore, no right to broadcast a commercial could be derived from the principle of the diversity of programmes or the fact that a competitor’s commercial had already been authorised. The judgment continued:
“Until 1964 [advertising] was completely prohibited on radio and television. Subsequently, it was allowed on television, although it was subject to restrictions in the interests of an optimal implementation of programming duties and to protect other important public interests (youth, health, diversity of the press). Section 18 of the Federal Radio and Television Act today assumes in principle that advertising is admissible but subject to certain limitations. Thus, section 18(5) of the Federal Radio and Television Act prohibits religious and political advertising as well as advertising for alcoholic beverages, tobacco and medicaments. The Federal Council may enact further advertising prohibitions for the protection of juveniles and the environment ... On this basis, section 18 of the Federal Radio and Television Act was given a more concrete form in sections 10 et seq. of the Radio and Television Ordinance. These provisions contain no obligation whatsoever to broadcast commercials, and do not declare that advertising is a public-law duty of the broadcaster.”
21. In respect of the applicant association’s complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act served various purposes:
“It should prevent financially powerful groups from obtaining a competitive political advantage. In the interest of the democratic process it is designed to protect the formation of public opinion from undue commercial influence and to bring about a certain equality of opportunity among the different forces of society. The prohibition contributes towards the independence of the radio and television broadcasters in editorial matters, which could be endangered by powerful political advertising sponsors. According to the Swiss law on communication the press remains the most important means for paid political advertising. Already, financially powerful groups are in a position to secure themselves more space; admitting political advertising on radio and television would reinforce this tendency and substantially influence the democratic process of opinion-forming – all the more so as it is established that with its dissemination and its immediacy television will have a stronger effect on the public than the other means of communication ... Reserving political advertising to the print media secures for them a certain part of the advertising market and thereby contributes to their financing; this in turn counteracts an undesirable concentration of the press and thus indirectly contributes to the pluralistic system of media required under Article 10 of the Convention ...”
22. The Federal Court observed that the applicant association had other means of disseminating its political ideas, for instance in foreign programmes which were broadcast in Switzerland, or in the cinema and the press. The Commercial Television Company had offered the applicant association other possibilities and was also willing to convene a meeting to discuss them with it in the presence of a legal adviser.
23. In respect of the applicant association’s complaint about discrimination, the Federal Court found that it was complaining of two situations which were not comparable with each other. Promotions by the meat industry were economic in nature in that they aimed at increasing turnover and were not related to animal protection. On the other hand, the applicant association’s commercial, exhorting reduced meat consumption and containing shocking pictures, was directed against industrial animal production. The applicant association was frequently active in the media in order to pursue its aims. In 1992 it had filed a disciplinary complaint in this respect with the Swiss Federal Parliament. The matter became a political issue early in 1994 when the Swiss Federal Council commented on the matter.
24. Article 55 bis of the Swiss Federal Constitution, in the version applicable at the relevant time, provided:
“1. Legislation on radio and television ... comes within the jurisdiction of the Confederation.
2. Radio and television shall contribute to cultural development and the free expression of opinions as well as to the entertainment of the audience. They shall consider the particularities of the country and the requirements of the cantons. They shall describe facts objectively and fairly reflect the variety of views.
3. Within the framework of paragraph 2, the impartiality of radio and television as well as autonomy in the creation of programmes shall be guaranteed. ...”
25. These provisions have been enshrined in Article 93 of the Federal Constitution currently in force.
26. The Federal Radio and Television Act, referring to Article 55 bis, in principle requires a licence to broadcast radio and television programmes. Section 26 of the Act grants the licence for national and linguistic regional programmes to the Swiss Radio and Television Company. Section 4 stipulates that the programmes shall be objective and fairly reflect the plurality of events and opinions.
27. The Swiss Radio and Television Company has transferred all aspects of the acquisition and organisation of television advertising to the Commercial Television Company (now called Publisuisse), which is a company established under private law whose activities do not depend on a licence.
28. Commercials are broadcast between programmes at various times of the day. In respect of advertising, the Federal Radio and Television Act provides as follows:
“Section 18 Advertising
1. Advertising shall be clearly separated from the rest of the programme and shall be clearly recognisable as such. The permanent programme staff of the broadcaster shall not participate in the broadcasting of commercials ...
5. Religious and political advertising is prohibited, as is advertising for alcoholic beverages, tobacco and medicaments. To protect juveniles and the environment, the Federal Council may ban other advertisements.”
29. In its message (Botschaft) of 28 September 1987 to the Swiss Parliament, the Federal Council explained that the prohibition of political advertising “should prevent financially powerful groups from obtaining a competitive political advantage” (Bundesblatt 1987, vol. III, p. 734).
30. Section 15 of the Radio and Television Ordinance provides as follows:
“Section 15 Prohibited advertising
The following shall be prohibited:
(a) religious and political advertising;
(b) advertising for alcoholic beverages and tobacco;
(c) advertising for medicaments in respect of which public advertising is not authorised by medical law;
(d) untrue or misleading advertising or advertising which constitutes unfair competition;
(e) advertising which profits from the natural credulity of children or the lack of experience of youth or abuses their feelings of attachment;
(f) subliminal advertising ...”
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 13
14


ITEMID: 001-102147
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF SOKOR  v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1955 and lives in Kyiv.
5. Between September 1999 and November 2000 she was a director of a local branch of the U. private company (“the branch”). On 24 November 2000 the branch was liquidated. However, according to the applicant, the local tax authorities continued referring to her as “the director of the branch” in their fiscal documents, obliged her to provide and sign certain documents on behalf of the branch and to provide comments on the fiscal documents related to its activities.
6. On 21 March 2001 the applicant lodged an administrative law complaint with the Kagarlyk Court challenging the lawfulness of the actions of the tax authorities. In the course of the proceedings, she also asked the court to declare that the statements made by the respondent’s officials at the court hearings concerning her involvement in the activities of the branch after its liquidation were untruthful.
7. On 26 April 2001 the court suspended the proceedings pending the outcome of a commercial dispute concerning the lawfulness of the liquidation of the branch. On 28 December 2001 the Kyiv City Commercial Court discontinued the proceedings concerning the latter matter.
8. On 12 November 2001 and 14 January 2002 the applicant requested the Kagarlyk Court to resume the proceedings in her case.
9. On 6 October 2003 the court resumed the proceedings.
10. On 25 December 2003 the court discontinued the proceedings on the ground that the dispute had already been determined by the courts. On 23 March 2004 the Kyiv Regional Court of Appeal quashed that decision and remitted the case for fresh consideration. On 9 November 2006 the Higher Administrative Court upheld the decision of 23 March 2004.
11. On 20 April 2007 the Kagarlyk Court partly allowed the applicant’s complaint and found that the tax authorities had unlawfully required her to act as the director of the branch in the course of an audit of its activities in February 2001. As regards the statements made by the respondent’s officials at the court hearings, the court found that those statements had not been “dissemination of information” within the meaning of the civil legislation.
12. On 12 February and 17 December 2009 respectively, the Kyiv Administrative Court of Appeal and the Higher Administrative Court upheld the judgment of the Kagarlyk Court.
13. In the course of the proceedings the applicant amended her complaint on three occasions. According to the Government, she lodged a request for the adjournment of the proceedings for an unspecified period. The applicant stated that she had not sought adjournment of the proceedings.
14. In February 2001 M., a tax officer, instituted criminal proceedings against the applicant for tax evasion. On 17 March 2004 the Kagarlyk Court discontinued those proceedings for lack of corpus delicti in the applicant’s actions.
15. In 2001 the applicant lodged with the prosecutors a criminal complaint against M. about his allegedly unlawful actions in the course of the criminal proceedings. There has been no final decision given on the applicant’s complaint so far.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4627
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KIISKINEN AND KOVALAINEN v. FINLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The application was originally submitted by Esa Kiiskinen (hereinafter “the applicant”) and Mikko Kovalainen. The latter’s complaints were declared inadmissible by the European Commission of Human Rights (“the Commission”) on 28 May 1997. The present applicant is a Finnish national who was born in 1948. He is a businessman resident in Villala. Before the Court he is represented by Mr Mikko Kovalainen, a lawyer practising in Joensuu.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
In March 1989 the applicant sued two companies, a limited partnership company P (hereinafter “P Company”) and a finance company I (hereinafter “I Company”), for damages resulting from a breach of contract relating to his hire-purchase of a forestry vehicle and related equipment. He argued, inter alia, that the relevant vehicle model had not been officially approved by the authorities for the purpose and could therefore not be used. In a further suit of July 1989 he requested that the hire-purchase contract be dissolved.
The parties appeared twelve times before the then City Court (raastuvanoikeus, rådstuvurätten) of Helsinki. The presiding judge apparently changed on a number of occasions.
The court heard thirteen witnesses called by the applicant and ten witnesses called by the companies. The parties did not call any further witnesses.
The applicant objected to the hearing of two witnesses called by the companies. Firstly, he objected to the examination of witness K on the grounds that K was a limited partner in P Company. The court dismissed the applicant’s objection and heard evidence from K. Secondly, the applicant objected to the examination of PP, a lawyer employed by I Company, stating that PP had sat among the audience at least during the first three court sessions. The City Court asked PP whether he had participated in the previous pleadings. PP having answered in the negative, the City Court dismissed the objection. According to the minutes of the case, the applicant asked PP whether he had been present in the courtroom during the three first court sessions. PP replied that he had been among the audience. Furthermore, the City Court heard evidence, among others, from KK, who was the Head of Service Department of P Company.
In November 1989 I Company countersued the applicant for breach of the hire-purchase contract. On 7 December 1989 the applicant objected to the countersuit, claiming that the summons had not been duly served on him since he had only been given copies of the annexes to the writ of summons. The City Court rejected the objection, noting that the applicant had acknowledged that, although he had received only copies of certain annexes, the relevant original documents had nevertheless been shown to him.
The City Court's last session on 28 October 1991 was presided over by Judge T. On that day the City Court rejected the applicant's action. The judgment comprises three pages. The minutes of the last court session state, inter alia, as follows:
"... After judgment had been pronounced [the applicant’s counsel] stated that the lack of an official approval of the ... vehicle model had been one of the grounds for the action and today ... the principal issue. Counsel ... therefore requested that the City Court pronounce itself on the question of the model approval. The parties having stepped out, the City Court inserted a finding on this point in its judgment and pronounced it to the parties. ..."
On this point the City Court found that it had not been shown that the vehicle required a model approval and that, in any case, the applicant had inspected and accepted the vehicle before concluding the hire-purchase contract.
In November 1991 the applicant appealed against the City Court's judgment. He stated, inter alia, that witness KK should not have been heard and that his testimony should therefore be ignored. In addition, he criticised the proficiency of the judges of the City Court.
On 20 October 1993, the Court of Appeal (hovioikeus, hovrätten) approved the City Court’s decision as regards the two procedural objections concerning witnesses K and PP. Furthermore, it found no indication that KK had been prevented from testifying on account of his position in P Company. The Court of Appeal went on to reject the appeal as a whole.
In December 1993 the applicant requested leave to appeal. He stated, inter alia, that during the hearings one of the judges of the City Court had made improper eye contact with the companies’ counsels.
In a document signed by the applicant's wife on 11 January 1994 she confirmed that prior to being heard as a witness before the City Court a lawyer named PP, employed by I Company, had sat among the audience during at least two or three court sessions. At the beginning of the oral hearings, the applicant’s counsel had already objected to PP's presence. The document was submitted to the Commission as an annex to the application.
On 13 May 1994, the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. It does not appear whether the above-mentioned document of 11 January 1994 was submitted to the Supreme Court.
In a document signed by the applicant and his wife on 13 June 1994 they stated, among other things, that while the case was pending before the City Court, I Company's counsel and the lawyer PP employed by it repeatedly stated that because of their contacts with the judiciary the applicant's action was bound to fail.
In a later civil case, completely unrelated to the applicant’s case, one of the parties requested that the above-mentioned Judge T step down on account of his being a member of the Freemasons (vapaamuurarit, frimurarna) as were some of the directors of the other party. The Helsinki District Court (the former City Court), were the case was pending, rejected this request on 21 August 1995. Thereafter, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) was filed with a petition. On 4 September 1995 Judge T excluded himself from the case on his own initiative.
The applicant became aware of Judge T’s membership of the Freemasons through a newspaper report of 9 September 1995. It does not, however, appear when he started to believe that some of the members belonging to the management of I Company were, or might be, Freemasons.
It does not appear which members belonging to I Company’s management, if any, were Freemasons at the relevant time.
The applicant did not request the case be reopened.
B. Relevant domestic law and practice
According to chapter 31, section 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångs balk), a judgment which has acquired legal force may be nullified (poistaa, undanröja) by a court of appeal or the Supreme Court on account of a procedural error if, for instance, the case was examined even though the court lacked quorum or should of its own motion have declined to examine the case for a particular reason (1); or if another procedural error has occurred which is found to have or can be presumed to have essentially influenced the outcome of the case (4). If nullification is sought on these grounds, the application shall be lodged within six months from the date when the judgment sought to be annulled acquired legal force (section 2).
According to chapter 31, section 7, of the Code of Judicial Procedure, a judgment in a civil case which has acquired legal force may be annulled (purkaa, återbryta) by the Supreme Court if, for instance, a member or an official of the court has committed a criminal act which can be presumed to have influenced the outcome of the case (1); if a circumstance or piece of evidence, which was not introduced previously, is referred to and its introducing would probably have led to a different outcome of the case (3); or if the judgment is based on manifestly incorrect application of the law (4). Such an application shall be lodged within one year from the date when the applicant became aware of the circumstance on which the application is based (3), or judgment concerning the criminal act (1), or the judgment sought to be annulled (4) acquired legal force. In the two first-mentioned cases the application shall at any rate be made within five years from the date when the judgment sought to be annulled acquired legal force, unless weighty reasons are put forward for a later application (section 10 and the Supreme Court's precedent No. 1994:111).
In a judgment of 28 March 1997, the Supreme Court nullified, by virtue of chapter 31, section 1, of the Code of Judicial Procedure, a decision of its own for a reason relating to the disqualification of a judge who had participated in the taking of that decision.


ITEMID: 001-78157
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF APOSTOL v. GEORGIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible
JUDGES: András Baka;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze
TEXT: 6. The applicant was born in 1939 and lives in Batumi, Georgia.
7. The applicant brought a civil action against a private person. On 21 November 2001 the Batumi City Court allowed his claim and ordered the debtor to pay him arrears in the amount of 2,000 United States dollars (1,595 euros (EUR)) plus 100 Georgian laris ((GEL) – EUR 43.75) for the costs and expenses associated with the court proceedings. The judgment was never appealed against and became binding.
8. Since the debtor refused to abide by the judgment, the applicant applied to the Ministry of Justice of the Ajarian Autonomous Republic (“the AAR”), requesting the initiation of enforcement proceedings.
9. In a letter of 27 November 2002, the Ministry informed the applicant that, pursuant to section 26 of the Enforcement Proceedings Act, he was to bear the “preliminary expenses associated with enforcement measures”. The letter, however, did not specify which measures were envisaged and what their costs were.
10. Being in receipt of only a monthly pension of GEL 45 (EUR 19) at the material time, the applicant was unable to pay for the initiation of enforcement proceedings. He appealed instead to the Ministry of Internal Affairs and the Prosecutor’s Office of the AAR, requesting the initiation of criminal proceedings against the debtor (Article 381 of the Criminal Code) and the enforcement of the judgment, but to no avail. The authorities in question replied that it was beyond their competence to interfere with the judicial process.
11. Three years later, on 20 January 2004, the applicant applied to the Ajarian Council of Ministers (the executive of the AAR). Explaining that, owing to his lack of means, he could not bear the expenses in advance, the applicant expressed his willingness to pay an enforcement fee after receiving the judgment debt.
12. In its reply of 12 March 2004, the Ajarian Ministry of Justice noted that the debtor’s whereabouts were unknown. The Ministry reiterated that the non-payment of the preliminary expenses constituted “an impediment to the enforcement of the judgment”; provided that the applicant had covered the necessary expenses in advance, the bailiff would identify the debtor’s assets, seize them and put them up for auction. As to the enforcement fee of 7% of the judgment debt, the Ministry stated that this could be paid by the applicant after enforcement (section 113 (1) of the Enforcement Proceedings Act).
13. As a result of the non-payment of the preliminary expenses, the judgment of 21 November 2001 still remains unenforced.
14. The applicant was to inherit the apartment of his deceased brother, where relatives of his brother’s wife were dwelling. Before establishing his rights as an heir, the court satisfied the applicant’s request for interim measures by ordering the appropriate bailiff to attach the impugned apartment and make an inventory of the movable assets inside.
15. After being recognised as the heir, the applicant brought a civil action against the relatives, claiming that they had misappropriated household belongings. After a series of remittals, on 3 September 2002 the Batumi City Court partly satisfied the applicant’s claim by ordering the respondents to return some of the belongings thus claimed.
16. According to the case file, the judgment of 3 September 2002 was received by the applicant on 24 September 2002 (the receipt form being written in Georgian, a language not understood by the applicant). However, the applicant contends that he received the judgment on 3 October 2002, along with the relevant receipt form in Russian.
17. On 28 October 2002 the applicant appealed against the judgment, and on 3 December 2002 he paid GEL 50 (EUR 21.88) in court fees. On 15 November 2002, taking into consideration the receipt form of 24 September 2002, the appellate court dismissed the appeal as time-barred. On an unspecified date the court fees were returned to the applicant.
18. The applicant applied to different judicial and administrative authorities, requesting an expert report on the authenticity of the receipt form dated 24 September 2002, but to no avail.
19. In the course of divorce proceedings, the Batumi City Court established on 8 June 2001 that the two-room apartment where the applicant and his wife had been residing during their marriage was their common matrimonial property. Following the divorce, the court entitled the applicant’s former wife to a room in the disputed apartment. The applicant appealed against this decision, complaining, among other issues, that the case had been examined in his absence. On 16 August 2001 the appellate court, noting that the applicant’s representative had attended the hearing before the City Court, dismissed his appeal. The Supreme Court of Georgia upheld the appellate court’s judgment on 1 February 2002.
20. In the course of the enforcement of the decision of 8 June 2001, the applicant’s aunt was evicted from the room to which the applicant’s former spouse was entitled.
21. In a decision of 28 October 1998, the Batumi City Court recognised the applicant as a victim of political repression and ordered his judicial rehabilitation. By virtue of a decree of the President of Georgia dated 1 January 1998, rehabilitated citizens of Georgia are entitled to certain welfare benefits. The applicant applied to different administrative authorities, claiming those benefits, but to no avail.
22. The relevant provisions of the Georgian Constitution read:
“Every person has the right to apply to a court for protection of his or her rights and freedoms.”
“The Constitutional Court of Georgia shall, ... on the basis of a citizen’s complaint, examine the compatibility of normative acts with Chapter II of the Constitution.”
The Second Chapter, consisting of Articles 12 to 47, lists human rights and freedoms.
23. The Constitutional Court Act of 31 January 1996, as in force at the material time, provides, in so far as relevant:
“The Constitutional Court of Georgia (hereinafter the Constitutional Court) is the body of constitutional supervision, which shall guarantee the supremacy of the Constitution of Georgia, constitutional justice, and the protection of the constitutional rights and freedoms of individuals.”
“On the basis of a constitutional complaint or application, the Constitutional Court shall be competent to examine and decide ... upon the issue of the constitutionality of normative acts with respect to Chapter II of the Constitution.”
“The declaration of a statute or another normative act as unconstitutional shall not result in the quashing of judicial decisions and judgments already given on the basis of the impugned act. It shall only suspend enforcement proceedings in accordance with procedural legislation.”
“The right to lodge a constitutional complaint with the Constitutional Court in order to challenge the constitutionality of a normative act or the provisions thereof ... shall be vested in:
(a) Georgian nationals, other physical persons residing in Georgia and Georgian legal entities, if they consider that their rights as envisaged by Chapter II of the Constitution have been or might be directly breached;
(b) the Public Defender, if the latter considers that there has been a violation of the human rights and freedoms set forth in Chapter II of the Constitution.”
24. The Constitutional Proceedings Act of 21 March 1996, as in force at the material time, provides, in so far as relevant:
“A constitutional complaint or application shall be deemed inadmissible if:
...
(e) the disputed issue is not governed by the Constitution.”
25. The Enforcement Proceedings Act of 16 April 1999 (“the Enforcement Act”), as in force at the material time, reads, in so far as relevant:
“Bailiffs at enforcement offices [of the Ministry of Justice] shall be responsible for the enforcement of the decisions provided for hereunder.”
“The amount of the expenses relating to enforcement shall be calculated by the bailiff, and may be reviewed during the enforcement process.”
“Bailiffs are entitled to use funds allocated from the State budget ... in order to enforce urgent judgments as listed in Article 268 § 1 (a) to (d) of the Code of Civil Procedure ...”
“Requests by bailiffs in the course of their duties shall be equally binding on any natural person or legal entity, irrespective of their hierarchical or legal and administrative status.
Bailiffs shall resort to any lawful measures available in order to secure the speedy and effective enforcement of decisions, to explain to parties their rights and responsibilities, and to assist in the protection of their rights and legal interests.”
“Bailiffs shall initiate enforcement proceedings upon receipt of the writ of enforcement and a written application from the creditor. Bailiffs are entitled to refuse to enforce a judgment in the event of non-payment by the creditor of the preliminary expenses provided for by this Act.”
“Expenses relating to enforcement shall be borne by the debtor. They shall be recovered along with the debt.”
“Funds may be claimed to cover:
(a) payment ... for services necessarily required for unlocking doors or for unlocking storage facilities;
(b) costs associated with the storage of seized items;
(c) expenses associated with the service of public notices;
(d) expenses resulting from the detention of a debtor;
(e) expenses associated with an auction.
The Minister of Justice of Georgia may provide for other expenses to be paid as well.”
26. Pursuant to Order no. 100 § 1 of the Minister of Justice dated 25 November 1999, apart from the items listed in section 39(1) of the Enforcement Act, the costs resulting from (a) bank services, (b) searching the debtor’s property, (c) auditing, (d) transportation of movable assets and (e) telephone and postal services are treated as enforcement-related expenses.
“Prior to the enactment of the Enforcement Fees Act, a fee for the payment of judgment debts shall be introduced and its amount set at 7% of the judgment debt. The creditor shall pay the fee after receiving the debt ...”
27. The Enforcement Fees Act has not been enacted to date.
28. The Georgian Criminal Code provides, in so far as relevant:
“The non-enforcement of a binding judgment or other judicial decision, or the obstruction of its execution by the State, government or local-government officials or by executives of a corporation or of other organisations [shall be punished] ...”
29. The Georgian Code of Civil Procedure provides:
“Pursuant to a request by a party, the court may deliver the following types of judgment to be immediately enforced in part or in full:
(a) judgments concerning entitlement to alimony;
(b) judgments concerning entitlement to compensation for damage caused by mutilation or other bodily injury or by the death of a carer;
(c) judgments concerning an employee’s entitlement to loss of earnings for no more than three months;
(d) judgments concerning the reinstatement of an unlawfully dismissed person.”
30. A Venice Commission expert’s opinion of 19 April 1999 on proposals for amending the Georgian Constitutional Court Act and the Constitutional Proceedings Act contains the following passage:
“It is to be conceded that decisions by the Constitutional Court may contain some vagueness as regards their execution. The Georgian Legislature, in order to cope with this problem, might take into consideration the solution in the German Law on the Federal Constitutional Court which provides in Article 35: ‘In its decision the Federal Constitutional Court may state by whom it is to be executed; in individual instances it may also specify the method of execution.’”
31. The Opinion of the Venice Commission on Draft Constitutional Amendments concerning the Reform of the Judiciary in Georgia (62nd Plenary Session, Venice, 11-12 March 2005) includes the following passage:
“22. The existing Article 89 § 1 (f) [of the Constitution] already provides for individual access to the Constitutional Court in the form of a so-called ‘non-real’ constitutional complaint (term used in German doctrine) against normative acts. It is welcomed that the draft Article 89 § 1 (f) would give this right not only to citizens but to persons in general.
23. In addition to this, draft Article 89 § 1 (f) would allow the Constitutional Court to consider the ‘constitutionality of decisions of courts with regards to fundamental human rights and freedoms set forth in Chapter II of the Constitution on the basis of a claim of an individual or the application by the Public Defender of Georgia’. The draft thus adds a ‘real’ constitutional complaint also against individual acts – final court decisions.
24. This provision represents a substantial increase in the jurisdiction and powers of the Constitutional Court. The Constitutional Court is given a power of review over the ordinary courts’ decisions where human rights questions are concerned. The fact that the jurisdiction to review can be exercised on the complaint of a citizen creates a powerful new tool for the enforcement of the human rights and fundamental freedoms guaranteed by Chapter II.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61376
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF WYNNE v. THE UNITED KINGDOM (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Violation of Art. 5-5
JUDGES: Georg Ress;Nicolas Bratza
TEXT: 7. The applicant, born in 1939, is currently detained in HM Prison Full Sutton.
8. In 1964, the applicant was convicted of the murder of a woman whom he had violently assaulted. He was sentenced to a mandatory term of life imprisonment. In May 1980 (or November 1979, according to the applicant's submissions), he was released on life licence after a positive recommendation from the Parole Board.
9. In June 1981, the applicant killed a 75 year old woman. His plea of manslaughter on grounds of diminished responsibility was accepted by the court. In January 1982 a discretionary sentence of life imprisonment was imposed by the judge having regard to the extreme danger to the public posed by the applicant. At the same time, the court revoked his life licence concerning his earlier sentence of mandatory life imprisonment.
10. In December 1985, the applicant was transferred to the hospital wing of Parkhurst prison. Since then, he has been transferred into ordinary prison locations as a “Category A” (high security) prisoner.
11. The applicant learned that his “tariff” period fixed by the trial judge on the manslaughter offence expired in June 1991. He was informed by a Home Office Memorandum of 5 June 1992 that his continued detention was based on the risk he represented.
12. According to the applicant's submissions, his only Parole Board review took place in 1999, when, without holding an oral hearing, the Board declined to recommend release. According to the Government's submissions, the Parole Board considered the applicant's case in September 1994 and January 1997. In 1994, it concluded that his behaviour was aggressive and intimidatory and that he represented a high risk to the public. On 10 January 1997, it concluded that he remained far too great a risk to warrant transfer to open conditions. Of the reports before the Parole Board, none recommended early release or early transfer to open conditions.
13. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (for example,. manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside.
14. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Secretary of State will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T., [1998] Appeal Cases 407, at pp. 492G-493A).
15. Under section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After expiry of the tariff, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to release if satisfied that it is no longer necessary to detain him for the protection of the public.
16. A different regime, however, applies under the 1991 Act to persons serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, (Hansard (House of Commons Debates) cols. 861-864).
17. At the relevant time, the Criminal Justice Act 1991 provided in section 35(2):
“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
18. On 27 July 1993, the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State:
“... will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”
19. In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see, for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 WLR 135; R. v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AER 576).
20. Following the judgment in Stafford v. the United Kingdom (no. 46295/99, ECHR 2002-IV), the Secretary of State announced in the House of Commons on 17 October 2002 his decision to introduce interim measures applicable to the review and release of mandatory life sentence prisoners applicable to reviews from 1 January 2003:
“If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation. ...”
This allows for prisoners, whose tariff had expired, to apply for an oral hearing at which they may have representation, receive full disclosure of material relevant to the question of release and be able to examine and cross-examine witness.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
5-5


ITEMID: 001-81122
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZHELTKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1953 and lives in the town of Chistopol, Tatarstan Republic. He is handicapped suffering from a double above-knee amputation.
6. In early 1990s the applicant acquired State commodity bonds for purchase of a Russian-made VAZ passenger car.
7. After the State had failed to exchange his bonds for a car, in 1999 the applicant brought a civil action against the Ministry of Finance of the Russian Federation. On 28 February 2000 the Supreme Court of the Tatarstan Republic ordered the Ministry of Finance to pay the applicant 67,300 Russian roubles (RUR).
8. In April 2000 a writ of execution was submitted to the Bailiffs Service of the Ministry of Justice for a further transfer to the local bailiff office which was competent to enforce the judgment.
9. On 17 November 2000 the Bailiffs Office of the Central Administrative District of Moscow requested the applicant to submit details of his bank account.
10. In reply to the applicant's complaint about non-enforcement, on 4 December 2000 the Bailiffs Department of the Ministry of Justice told him that he could collect the award from the Bailiff Office of the Central Administrative Circuit of Moscow. On 4 January 2001 the Ministry of Finance informed the applicant that all questions relating to the enforcement of the judgment in his favour had to be addressed to the bailiff service.
11. It appears that the applicant wrote to the Bailiffs Office of the Central Administrative District of Moscow in October and December 2001, and in March 2002. He also unsuccessfully sought supervisory review of the judgment of 28 February 2000.
12. According to the Government, on 25 May 2001 a certain Mr K., pretending to act on the applicant's behalf, received the award under the judgment of 28 February 2000.
13. On 19 June 2006 the monies due to the applicant were transferred into his bank account.
VIOLATED_ARTICLES: 6


ITEMID: 001-85161
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KLICPEROVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Ms Oldřiška Klicperová, is a Czech national who was born in 1931 and lives in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 July 1995 the applicant brought an action for damages against an agricultural cooperative before the Plzeň-Sever District Court (okresní soud), relying on the Land Ownership Act.
In a judgment of 24 November 1999 the District Court partly granted the applicant’s claims.
On 18 January 2001 the Plzeň Regional Court (krajský soud) partly quashed and partly upheld this judgment. The relevant part case was remitted to the District Court which, on 11 June 2001, dismissed the remaining claims of the applicant’s action.
On 30 January 2002 the Regional Court quashed the first instance judgment and sent the case back to the District Court which, by a judgment of 24 November 2004, partly granted the outstanding part of the applicant’s action for damages.
In the mean-time, on 28 May 2003, the District Court had granted the defendant’s request for re-opening of proceedings in respect of the valid part of the judgment of 24 November 1999.
On 12 May 2005 the defendant went bankrupt. The proceedings for damages were therefore interrupted pending the outcome of the bankruptcy proceedings. The applicant submitted her creditor’s claims of 1 106 945 CZK 42 336 (EUR) which were partly granted on 11 January 2006. It appears that the bankruptcy proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-5759
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: DI SABATO v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1971 and living in Milan. He is represented before the Court by Mr D. Portinaro, a lawyer practising in Milan.
G.G. was the owner of an apartment in Milan, which she had let to A.S.
In a writ served on the tenant on 21 June 1985, G.G. communicated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate. By a decision of 4 July 1985, which was made enforceable on 24 July 1985, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 September 1985.
On 15 July 1986 and again on 30 November 1987 and 19 April 1990, G.G. served notice on the tenant requiring him to vacate the premises. On 12 July 1990, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 16 July 1990.
Between 18 July 1990 and 15 October 1992, the bailiff made 12 attempts to recover possession, on 18 July 1990, 23 July 1990, 17 September 1990, 27 November 1990, 16 January 1991, 12 March 1991, 7 May 1991, 4 July 1991, 24 September 1991, 11 November 1991, 19 May 1992 and 15 October 1992. Each attempt proved unsuccessful, as G.G. was never granted the assistance of the police in enforcing the order for possession.
On 29 March 1993, the applicant became the owner of the apartment.
On 26 April 1993, he made a statutory declaration that he urgently required the premises as accommodation for himself.
On 29 April 1993, he served notice on the tenant requiring him to vacate the premises
On 20 May 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 11 June 1993.
Between 11 June 1993 and 27 September 1996, the bailiff made 15 attempts to recover possession, on 11 June 1993, 21 September 1993, 23 November 1993, 8 February 1994, 17 May 1994, 20 September 1994, 29 November 1994, 21 February 1995, 26 May 1995, 19 September 1995, 5 October 1995, 19 December 1995, 26 February 1996, 18 June 1996 and 27 September 1996.
Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
At the end of October 1996, the tenant spontaneously vacated the premises.
The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35, ECHR-V.


ITEMID: 001-95862
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KRZOS v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Piotr Krzos, is a Polish national who was born in 1959 and lives in Wroclaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested by the police in Wrocław on 14 April 2004. On 17 April 2004 the Łódź-Widzew District Court remanded him in custody on suspicion of murder and forgery. The court found that, if released, the applicant could tamper with evidence and influence witnesses. It further noted that he was wanted in connection with other crimes and had changed his place of residence several times.
Between 14 April 2004 and 15 October 2006 the applicant was serving a prison sentence imposed in criminal proceedings before the Ostrołeka District Court.
The applicant’s detention was subsequently extended by the Łódź Regional Court on 6 July and 5 October 2004 and on 4 January and 24 March 2005.
On 18 August 2005 the Łódź Court of Appeal extended the applicant’s detention until 30 November 2005.
On 16 November 2005 the prosecution service filed a bill of indictment with the Łódź Regional Court. The applicant was charged with murder, among other offences.
Between 29 November 2005 and 22 November 2006 the applicant’s detention was extended on four occasions.
On 15 October 2006 the applicant began serving a five-year term of imprisonment imposed on him in another set of proceedings (before the Bydgoszcz District Court).
On 11 April, 26 June and 2 September 2007 the Regional Court again extended the applicant’s detention.
The applicant unsuccessfully appealed against numerous decisions extending his detention.
On 8 December 2008 the Regional Court gave judgment convicting the applicant as charged. The applicant was sentenced to 25 years’ imprisonment. The court also extended the applicant’s detention.
On 3 July 2009 the applicant’s lawyer appealed.
It appears that the criminal proceedings against the applicant are still pending.
On 14 April 2004 the applicant was arrested at his home in Wrocław by four police officers. He submits that he was severely beaten and did not receive medical assistance when he arrived at the police station. He claims that he sustained injuries to his head and spine. The incident was witnessed by members of his family, who were traumatised as a result.
On 25 April 2004 the applicant filed a criminal complaint against the police officers, alleging that they had ill-treated him during his arrest.
On 30 March 2005 the Wrocław Stare Miasto District Prosecutor discontinued the investigation into the applicant’s allegations of an abuse of power by the police officers causing him injuries. The prosecutor held that there was insufficient evidence to support the applicant’s assertion that the police officers had committed an offence.
It appears that the applicant did not appeal against that decision.
The relevant domestic law and practice concerning the imposition of pretrial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention, and the rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.


ITEMID: 001-94770
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: `BLONDJE` v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: The applicant, known variously as “Blondje”, “NN cel 07” and “Nn.PI09.m.20081101.1100”, claims that he is a Dutch national who was born on an unspecified date in the Netherlands. He was represented before the Court by Mr J. Hemelaar, a lawyer practising in Leiden.
On 30 October 2008 the applicant was arrested on suspicion of having committed criminal offences. Because he refused to identify himself he was detained pursuant to Article 61a of the Code of Criminal Procedure (Wetboek van Strafvordering) in order for his identity to be established. On 31 October 2008 he was released and handed over to the Aliens Police (vreemdelingenpolitie), who held him (ophouding) for the same purpose, pursuant to Article 50 §§ 2 and 4 of the Aliens Act 2000 (Vreemdelingenwet 2000). After this measure had been extended for forty-eight hours, the applicant was placed in aliens’ detention with a view to his expulsion (vreemdelingenbewaring). In the course of an interview with the Aliens Police on 3 November 2008 the applicant stated that he had Dutch nationality but that he was not prepared to show his passport or another identity document – both of which he possessed – in order to prove his nationality. On 5 November 2008 the applicant was released.
The applicant lodged appeals against his detention, which were dismissed by the Regional Court (rechtbank) of The Hague, sitting in Utrecht, by a decision of 2 December 2008.
On 15 January 2009 the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) declared a further appeal (hoger beroep) by the applicant inadmissible, holding that he had failed to fulfil the requirements of Article 6 § 5 of the General Administrative Law Act (Algemene Wet Bestuursrecht) by not including his name in the notice of appeal.
Since neither the application form, the authority to act (which was signed “X”) nor the supporting documents contained any mention of the applicant’s name, the applicant’s representative was requested on 9 March 2009 to provide the Court with a copy of a valid identity document for his client, as required by domestic law.
In his reply of 30 March 2009, the applicant’s representative informed the Court that no valid identity document was available, pointing out that the case concerned aliens’ detention and that Dutch law did not require the submission of an identity document in such cases. Moreover, in view of the applicant’s youth, there had likewise been no need or obligation for him to possess a document allowing him to cross international borders.


ITEMID: 001-22344
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: L.B. v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, L.B., is an Austrian national of Hungarian origin, born in 1939 and living in Maria Enzersdorf (Austria). He is represented before the Court by Mr R. Armster, a lawyer practising in Maria Enzersdorf.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has lived in Austria since 1971 and obtained Austrian citizenship in 1979. On 9 October 1991 he filed a request with the Employees Pension Insurance Office (Pensionsversicherngsanstalt der Angestellten) to pay contributions under Section 227 of the General Social Security Act (Allgemeines Sozialversicherungsgesetz - “ASVG”) for the time he had been at school and had studied in Hungary.
On 18 March 1992 the Employees Pension Insurance Office dismissed the request. It found that the applicant had not shown that he had undergone a period of training as specified by Section 227 ASVG.
On 26 August 1992 the Regional Governor of Lower Austria (Landeshauptmann) dismissed the applicant’s appeal. He noted that periods of training in foreign countries were not mentioned in S. 227 ASVG. Therefore it was not possible to pay contributions for these periods.
On 6 April 1993 the applicant filed a complaint with the Constitutional Court claiming that the above decision violated the principle of equality (Gleichheitssatz).
On 15 June 1993 the Constitutional Court refused to entertain the applicant’s complaint for lack of prospect of success. It referred to its previous case-law on Section 227 § 1 ASVG, according to which territorial restraints (territoriale Beschränkung) of the social security system were in accordance with the Federal Constitution: Just as being employed in Austria was a legitimate requirement for participation in the social pensions scheme, the substitute requirement of having undergone training in Austria - and not abroad - was the same. Upon the applicant’s request it transferred the case to the Administrative Court.
On 22 November the applicant supplemented his complaint to the Administrative Court. He argued that although the wording of Section 227 § 1 (1) ASVG explicitly mentioned attending a school in Austria as a condition this criterion should rather be construed as to mean training for a diploma which is subsequently recognised by Austria authorities.
On 24 June 1997 the Administrative Court dismissed the applicant’s complaint. It rejected the applicant’s argument and found that the wording of Section 227 § 1 (1) ASVG was clear and unambiguous and required that such training be attended in Austria. It was reasonable to enable backpayments into the pension scheme for periods of pre-professional training only in cases when, without such training, the person concerned would have been employed in Austria and would have contributed to the Austrian social pension system.
The Austrian social pension scheme is based on the principle that pension rights are acquired by contributions during a person’s employment (Beitragszeiten). Section 227 of the General Social Security Act also provides for the possibility to pay pension contributions for certain periods during which a person was not gainfully employed. By paying such contributions a person acquires pension rights and – when he or she retires – receives a higher pension.
Section 227 § 1 of the Act defines these latter periods (Ersatzzeiten). As to periods of training, the provision only includes periods during which a person has attended an Austrian secondary school or university (inländische mittlere Schule oder Hochschule).


ITEMID: 001-109064
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF GALAZKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
JUDGES: Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1979 and lives in Warsaw. He is currently detained in Warsaw Remand Centre.
6. On 21 December 2004 the applicant was held in custody. It does not result from the case-file whether the applicant remains detained in this set of proceedings.
7. On 5 April 2006 the applicant was arrested on suspicion of murder, attempted robbery and drug trafficking committed in an organised criminal group.
8. On the same date the Białystok District Court (Sąd Rejonowy) remanded him in custody, relying on a reasonable suspicion that he had committed the offences in question. The court indicated that the evidence which had been gathered in the case, in particular the testimonies of witnesses and other suspects, showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the risk that he would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. The latter risk was considered of the utmost importance in the light of the fact that the case involved a large number of alleged accomplices.
9. An appeal by the applicant against the detention order, likewise his further appeals against decisions extending his detention and all of his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful.
10. In the course of the investigation, the applicant’s pre-trial detention was extended on several occasions, namely, on 27 June 2006 (to 5 October 2006), 29 September 2006 (to 5 December 2006), 28 November 2006 (to 5 March 2007), 2 March 2007 (to 5 May 2007), 27 April 2007 (to 5 August 2007), 30 July 2007 (to 5 November 2007) and 30 October 2007 (to 5 February 2008). In their decisions, the courts stressed the fact that the applicant had been acting in an organised criminal group. They underlined the unique nature of the proceedings involving organised crime, in which the authorities had to determine the degree of alleged responsibility of each of the suspects. The courts attached importance to the seriousness of the charges and the likelihood of a severe sentence being imposed on the applicant.
11. On 30 January 2008 the Białystok District Court refused to extend the applicant’s detention. It stated that the applicant had been held in pretrial detention since April 2006 and that this period should have been sufficient for the authorities to collect evidence in the applicant’s case. In addition, it considered that the decision about the extension of the applicant’s pre-trial detention beyond the period of three months should be taken by the Białystok Regional Court (Sąd Okręgowy).
12. The Prosecutor lodged an interlocutory appeal against this decision.
13. On 13 February 2008 the Białystok Regional Court amended the contested decision and extended the applicant’s pre-trial detention to 5 May 2008. The court argued that as the applicant was remanded in custody in the first set of criminal proceedings, his detention in the second set of proceedings was merely administrative. It further stated that the applicant was charged with serious offences committed in an organised criminal group and that there was a high risk that, if released, he would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. Finally, the court observed that the Prosecutor could not have completed the investigation as evidence in proceedings involving organised crime often emerged gradually.
14. On 29 April 2008 the Białystok District Court extended the applicant’s detention to 5 June 2008.
15. On an unspecified date the Prosecutor requested the Białystok District Court to extend the applicant’s detention to 5 September 2008.
16. On 4 June 2008 the Białystok District Court extended the applicant’s detention to 31 July 2008. The court observed that the applicant’s pre-trial detention had been extended for over two years almost automatically and it did not seem that the investigation was reaching its final stage. It concluded that the extension of the applicant’s detention for a shorter period than was requested by the Prosecutor should prompt the authorities to accelerate the acts of investigation regarding the applicant.
17. The applicant lodged an interlocutory appeal against this decision claiming that he had been detained for over 26 months and that this period should have been sufficient for completing the investigation.
18. On 9 July 2008 the Białystok Regional Court quashed the contested decision. It stated that the decision about the extension of the applicant’s pre-trial detention beyond the period of one year should be taken by the Białystok Court of Appeal (Sąd Apelacyjny).
19. On 17 July 2008 the Białystok Court of Appeal extended the applicant’s detention until 31 August 2008. The court underlined the complexity of the case and the severity of the penalty to which the applicant was liable. Having regard to the organised character of the alleged criminal activities, it also held that the applicant’s detention was necessary in order to prevent the applicant from interfering with the proceedings.
20. The Prosecutor lodged an interlocutory appeal against this decision claiming that the period of one month would not be sufficient for collecting evidence in the applicant’s case.
21. On 7 August 2008 the Białystok Court of Appeal modified the contested decision and extended the applicant’s detention until 30 September 2008. The court observed that the applicant’
22. On 17 September 2008 a bill of indictment was lodged with the Białystok Regional Court. The applicant was charged with murder, attempted robbery and drug trafficking committed in an organised criminal group.
23. On 23 September 2008 the Białystok Regional Court extended the applicant’s pre-trial detention to 30 December 2008.
24. In October 2008 the case was referred to the Warszawa-Praga Regional Court.
25. On several occasions the Warszawa-Praga Regional Court applied to the Warsaw Court of Appeal, asking for the applicant’s detention to be extended. The Warszawa Court of Appeal allowed all those requests extending the applicant’s pre-trial detention on 22 December 2008 (to 30 June 2009), 25 June 2009 (to 31 December 2009), 10 December 2009 (to 31 May 2010), 27 May 2010 (to 15 October 2010), 7 October 2010 (to 31 January 2011), 18 January 2011 (to 31 May 2011) and 24 May 2011 (to 30 September 2011).
26. The criminal proceedings against the applicant are still pending. The applicant remains detained.
27. The applicant submitted that during the entire period of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene.
28. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 May 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3