ITEMID: 001-99376
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GUBIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 13;Violation of Art. 3;Violation of Art. 5-4
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1981 and lives in Moscow.
6. On 12 August 2003 a Ms T. lodged a complaint with the Kuzminskiy District Prosecutor's Office of Moscow alleging that she had been kidnapped and raped by a group of men.
7. On 13 August 2003 the applicant was arrested on suspicion of kidnapping and rape.
8. On 14 August 2003 the District Court authorised the applicant's detention pending trial. The applicant was represented by counsel of his own choosing.
9. According to the applicant, he could not appeal against the decision of 14 August 2003 since he was not provided with stationery by the administration of the temporary detention facility where he was being held at the time.
10. On 8 October 2003 the Kuzminskiy District Court of Moscow extended the applicant's pre-trial detention until 12 December 2003. The applicant attended the hearing. His counsel asked the court to consider the case in his absence and did not appear at the hearing. The applicant was represented by a court-appointed lawyer.
11. On 14 October 2003 the applicant lodged an appeal against the court order of 8 October 2003. He asked the appeal court to ensure his and his lawyer's presence at the hearing.
12. On 3 November 2003 the Moscow City Court examined the appeal. The hearing was held in the absence of the applicant and his counsel. The prosecutor considered that the applicant's appeal should be dismissed. The City Court found that the extension of the applicant's pre-trial detention was in accordance with the law and upheld the decision of 8 October 2003.
13. The District Court further extended the applicant's detention pending trial. Extensions were granted at the prosecutor's request on 3 December 2003 and 10 February 2004. The City Court upheld those decisions on appeal on 21 January and 9 March 2004 respectively. The applicant did not provide any other details in respect of the detention orders.
14. On several occasions in 2004 the applicant asked the investigator to question additional witnesses and examine forensic evidence. The investigator dismissed the applicant's requests, indicating, inter alia, that:
“The guilt of [the defendants] ha[d] been fully proved”.
15. On 30 January 2004 the District Court dismissed the applicant's complaint about the prosecutor's refusal to open a criminal investigation against the police officers who had allegedly ill-treated him during his arrest. The applicant did not appeal.
16. On 1 April 2004 the Kuzminskiy District Court of Moscow received the case file.
17. On 20 December 2004 the District Court found the applicant guilty of kidnapping and rape and sentenced him to four and a half years' imprisonment.
18. On 19 April 2005 the Moscow City Court upheld the applicant's conviction on appeal.
19. From 13 to 20 August 2003 the applicant was held in cell no. 2 of the Maryinskiy temporary detention facility. The cell measured 8 sq. m. The applicant was detained there alone. According to him, the cell was poorly lit, and the cement floor was dirty. The cell was infested with bedbugs and other insects. The corners were covered in cobwebs. No bed sheets, mattresses or blankets were provided. The radio was left on during the whole night. Water was available twice a day. There was no sink and the applicant had to wash himself over the toilet. The applicant received one meal a day.
20. On 20 August 2003 the applicant was transferred to remand prison no. 77/1. On arrival he was placed in a cubicle measuring 1 sq. m where he spent the whole day. He was not given any food or allowed to use the bathroom for the whole of the time he spent in the cubicle.
21. On 21 August 2003 the applicant was placed in cell no. 274, where he was detained until 11 September 2004. It measured 16 sq. m and had eight sleeping places. It housed from ten to fifteen persons (in his subsequent submissions the applicant stated that it housed from twelve to sixteen persons). The inmates had to take turns to sleep. The beds were 1.65 m long. The cell did not have any drawers or shelves to allow the inmates to store their personal belongings properly. Approximately eighty per cent of the inmates smoked and the applicant, a non-smoker, was exposed to tobacco smoke. The toilet was located about one metre from the dinner table. It was dirty and foul smelling. There was no separation between the toilet and the living area of the cell and the person using it could be seen by others present in the cell. The inmates had to pull a curtain across to separate the toilet from the living area. However, the prison guards removed the curtain each time they made an inspection. Because of the overcrowding of the cell the inmates had to wait a long time for their turn to use the toilet.
22. The food was of poor quality and portions were small. On the days of the court hearings, the applicant left the prison at six a.m. and came back late at night. As a result, he missed the meals served at the prison and was left hungry all day. No drinking water was available in the cell. There was only cold tap water that contained rust and had a peculiar colour and taste.
23. The cell had only one window measuring 1.2 sq. m, which was covered with a metal screen and bars. The screen and the bars prevented any fresh air or natural light from entering the cell. There were no window panes. The artificial ventilation system did not function properly. The electric light was constantly on.
24. The cell was stuffy and infested with parasites. It was never disinfected. There was fungus and mould in the shower rooms. Medical assistance was of poor quality.
25. According to the applicant, he twice attempted to lodge a complaint with the authorities about the conditions of his detention. On both occasions an administrative officer physically destroyed the written complaints.
26. The applicant submitted written testimonies from five of his fellow mates who corroborated the description of cell no. 274 provided by the applicant.
27. On arrival at the remand prison the applicant was taken first to the processing area (сборное отделение). He was held for one hour in a one-person cubicle equipped with a seat and artificial lighting. Then he was transferred to another cell which was equipped with running water, lighting, ventilation and a seat. The applicant spent about one day there.
28. On 21 August 2003 the applicant was transferred to cell no. 274. The average number of inmates held with the applicant in that cell was seven. There were eight beds in the cell. At all times the applicant and other inmates were provided with an individual sleeping place and bed linen.
29. According to the excerpts from the remand prison population register submitted by the Government, the number of inmates in the cell was as follows:
30. There were no metal shutters on the cell windows. They had been removed before 1 April 2003, that is before the applicant's detention there began. The windows were provided with air vents which could be kept open. There was also exhaust ventilation which was in good working order. The prison was equipped with central heating which functioned properly at all times. The average temperature in the cells was never below +180C during the winter and did not exceed +220C during the summer.
31. The cell was equipped with electrical lighting. During the day lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to provide lighting for surveillance and safety reasons.
32. The applicant had the opportunity to take a shower once a week. The bed linen was changed weekly. The remand prison had a centralised water supply system. The quality of the water was in full compliance with standards of hygiene.
33. The cell was disinfected according to the schedule approved by the head of the prison. The daily cleaning was the inmates' responsibility. The toilet was separated from the rest of the cell by a 1.25-metre partition to ensure the privacy of the person using it.
34. The applicant received three meals a day. The food ration was in full compliance with quality and quantity standards.
35. On 11 September 2004 the applicant was transferred to remand prison no. 77/6.
36. On 4 October 2004 he lodged another complaint about the conditions of his detention in remand prison no. 77/1.
37. On 27 November 2004 Ms F., an administrative officer at the remand prison, allegedly summoned the applicant to her office. She threatened to move him back to remand prison no. 77/1 or make his life more difficult at remand prison no. 77/6 if he continued to complain about the conditions of his detention.
38. On 30 November 2004 the Moscow City Department of Corrections responded officially to the applicant's complaint about conditions of detention at remand prison no. 77/1. The applicant was informed that the overcrowding in the cells had been caused by renovation work being carried out at the prison; that the food rationing was in accordance with the applicable norms; that the inmates were allowed to take a fifteen-minute shower once a week; and that the bed sheets were changed on a weekly basis.
39. From 18 to 31 May 2005 the applicant was detained in remand prison no. 66/1 in Yekaterinburg. According to the applicant, he was held in cell no. 334, which measured 30 sq. m and housed from twenty-four to twenty-seven persons. It had eleven sleeping places and the inmates had to take turns to sleep. The cell was infested with bedbugs, cockroaches, lice and rats. It was never cleaned. There were nine mattresses. No bed sheets, pillows or blankets were provided, nor was there any cutlery or tableware. Water was constantly leaking from a corroded sink onto the floor. The toilet was separated from the living area by a partition less than one metre high. The inmates were allowed to shower once every ten days. Because of the small size of the table and bench, the inmates had to take turns to eat. There was no radio or clock. The inmates did not receive soap or buckets with which to do their laundry.
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-59347
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF TELFNER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 7. On 8 April 1995, in the early hours, an accident took place in Obsteig, a small village in the Tyrol. Mr K. was struck by a car and suffered a slight injury to his arm. Mr K. reported the incident to the police and identified the type and registration number of the car involved. He had, however, not been in a position to identify the driver of the car.
8. On the same morning, officers of the local police station started investigations. They found the car, registered in the name of the applicant’s mother, Mrs G., parked in front of the house where the applicant was living with his family. The applicant’s mother stated that she had not been driving. As regards the applicant, she stated that he was not home yet and showed the police officers the applicant’s room in which his bed was untouched. Further, she stated that the car was regularly used by several family members. She was requested to send the applicant to the police station as soon as he came in. When asked later that day, the applicant’s mother stated that he still had not come home. In its investigation report the police referred to the applicant as the suspect and stated that, according to the police officers’ general observations, he was the main user of the car.
9. On 20 December 1995 and on 2 February 1996 the Silz District Court (Bezirksgericht) tried the applicant on charges of causing injury by negligence (fahrlässige Körperverletzung). The applicant pleaded “not guilty”. He stated that he had not been driving the car at the relevant time and that he did not wish to make any further submissions. Mr K., heard as a witness, confirmed his statements to the police, in particular that he had not been able to identify the driver of the car, nor to state whether the driver had been male or female. The applicant’s mother and his sister exercised their right not to testify. The minutes state that they were cautioned as to this right, but do not mention the ground on which the caution was based. Pursuant to section 152 § 1 of the Code of Criminal Procedure (Strafprozessordnung), so far as relevant in the present context, a witness may refuse to give evidence if the statement would expose him or her to the danger of criminal prosecution; a witness may equally refuse to give evidence in proceedings against a close relative.
10. On 2 February 1996 the Silz District Court convicted the applicant of causing injury by negligence. It sentenced him to a fine of 24,000 Austrian schillings (ATS), half of which was suspended on probation, and ordered him to pay ATS 1,000 as a partial amount for damages to the victim. In establishing the facts, the court relied on the investigation report of the police, the statement of Mr K. and the applicant’s defence. Its reasoning was as follows:
“The accused stated in his evidence at trial that he had not been driving the vehicle at the time of the accident and denied every other point in the statement of facts. Both the accused’s mother, who is the legal owner of the vehicle, and his sister, [M.G.], whom the accused called as a witness, refused to give evidence at the trial. As the injured party, [Mr K.], could not determine at the time of the accident who had been driving the vehicle, the only evidence which remained in connection with this point were the observations of the Obermieming police station, according to which it was common knowledge that the vehicle in question was mainly driven by the accused, ... On the basis of those observations the court is also satisfied that [the applicant] was driving the vehicle at the material time and caused the accident. The additional circumstance that, according to the observations of the Obermieming police station, the accused was not at home after the accident and had evidently still not returned by 8 p.m. that day and, moreover, that no one knew where he was, leads to the sole, unequivocal conclusion that only the accused could have committed the offence; presumably he refused to make a statement because he was under the influence of alcohol, but there is no evidence for that finding. The remaining findings as to the circumstances of the accident or the subsequent course of events are based solely on the consistent and fully credible statements of the witness [Mr K.].”
11. On 23 July 1996 the Innsbruck Regional Court (Landesgericht), after having supplemented the proceedings by inspecting a file concerning administrative criminal proceedings against the applicant’s sister relating to a traffic offence, and having found that the car at issue was also used by the applicant’s sister, dismissed the applicant’s appeal and confirmed the first instance judgment. In particular, as regards the District Court’s evaluation of evidence, the Regional Court found as follows:
“The impugned assessment of the evidence is consistent, complete and convincing, so that the appellate court can adopt it as well as the findings based thereon. It is the case that the person claiming damages in criminal proceedings was only able to identify the car and could not describe the occupant or occupants of the vehicle. From the evidence it is established, however, that the car, registered in the name of the accused’s mother, is mainly used by the accused, even if it is also occasionally used by others, such as the accused’s sister. It would have been open to the accused to give a contrary version of events which conflicted with the charges and to put in relevant evidence without thereby at the same time having to name another person as the driver. That was evidently impossible, however, because having spent the night away from his parents’ house and possibly consuming alcohol he had on 8 April 1995 driven his mother’s car through Obsteig. The court of first instance correctly referred to the observations of the police officers to the effect that immediately after the accident the car was indeed in front of the parents’ house, yet the accused’s bed had not been slept in and he could not be found. Nor could it be ascertained where the accused, who refused to make a written statement to the police, was staying. On the basis of the available evidence before it the court of first instance made a realistic assessment of the facts, especially as there was no evidence that anyone else, such as the accused’s sister, had been driving the car at the time of the accident.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-23018
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: DRURY and OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicants, Mr Christopher Drury, Mr Robert Clark, Mr Thomas Kingston and Mr Terence O’Connell, are United Kingdom nationals, who were born in 1961, 1961, 1957 and 1957 respectively and are currently detained or live in HM Prison Kirklevington Grange Yarm, HM Prison The Verne, Bromley (Kent) and New Barn (Kent), respectively. They are represented before the Court by Mr Rod Fletcher (Drury and Clark) and Mr Rakesh Somaia (Kingston and O’Connell), solicitors practising in London .
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are former police officers in the detective branch of the Metropolitan Police in London, who were convicted of offences of corruption committed in the course of their police work. Clark and Drury were tried together along with two other police officers and Kingston and O’Connell were tried together along with one other police officer.
The convictions of Clark and Drury relied, inter alia, on the evidence of two witnesses who were also involved in the events at issue and charged with related offences. The first witness, Fleckney, was a former police informant who was in prison for drug offences and the second, Putnam, was a police officer who had worked with the applicants. The convictions of Kingston and O’Connell depended essentially on the evidence given by Putnam.
In early April 1998, Fleckney was removed from prison by officers of the Metropolitan Police under the authority of an order under the Criminal Justice Act 1961. While held in police custody over a period of six months, she made detailed allegations of crimes allegedly committed by her with various police officers including Clark and Drury. She was detained in various police stations but was removed for the purposes of entertainment, shopping trips, welfare visits etc.
In July 1998, Putnam’s home was searched and he subsequently admitted two acts of corruption in which he said he had engaged with other police officers including Clark and Drury. Putnam was charged with these offences and remanded in custody but subsequently removed from prison and detained in police stations on the same basis as Fleckney. While in detention, he admitted participation in further offences, also implicating Clark, Drury and others. He was periodically brought back before the Magistrates’ Court and remanded in custody. He was also removed from the police station for social and welfare visits, entertainment and on one occasion to test drive a sports car.
Both witnesses recorded, in letters or a diary, that they were threatened by the police as to the very serious consequences of failing to reveal crimes. During the detention of the two witnesses, some conversations were tape-recorded and under formal caution while others were not under caution and/or were not recorded in notes.
In October 1998, the two witnesses were charged with the criminal offences they had admitted over the months of detention and were taken to court. On 3 November 1998, Fleckney and Putnam each pleaded guilty to various offences and sentence was postponed at the request of the prosecution.
In November 1998, Clark and Drury were arrested and charged and committed for trial in March 1999.
On 4 October 1999, the trial of Clark and Drury began. Despite the submissions of the applicants to the contrary, the trial judge, Mr Justice Blofeld, decided that the two witnesses should be sentenced at the end of Clark and Drury’s trial on the basis that he would then be in a better position to assess the relevance of the evidence to any particular defendant.
On 14 October 1999, Fleckney was called as a witness and stated that she did not wish to give evidence since she had believed that the hearing would be in camera. On 15 October 1999, the judge made several orders restricting the disclosure of certain information relating to Fleckney.
On 25 October 1999, following the receipt of a letter from Fleckney requesting that her evidence be heard in camera, the judge ruled that parts of Fleckney’s evidence would be heard in camera. On 29 October 1999, the Court of Appeal overturned the ruling of the trial judge and held that Fleckney’s evidence should not be heard in camera. Fleckney subsequently declined to give evidence unless the questioning was limited.
On 1 November 1999, the jury were discharged after the judge was told in open court and counsel of the defence were assured privately by the prosecution that Fleckney would not be called as a witness in a retrial. Counsel for the prosecution stated to the court that:
“Publicity relating to the evidence that she has given would potentially prejudice such a re-trial because she [Fleckney] would not be a witness in any circumstances.” (emphasis added)
On 11 November 1999, at a hearing prior to the commencement of the second trial, the prosecution informed the court that Fleckney had reconsidered and was willing to give evidence, and that they intended to call her as a witness. Counsel for Clark and Drury argued that it was unfair to admit Fleckney’s evidence since they had relied on the undertaking given by the prosecution and the evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984. Alternatively, counsel argued that the court should only allow Fleckney to be called after a voir dire, asking her for an explanation for her change of position since the defence believed that inducement by the prosecution had caused this volte face. The judge refused the request for a voir dire and ruled that it would not render the trial unfair or constitute an abuse of process for Fleckney to be called as a witness and permitted the prosecution to call her. This decision was made on the grounds, inter alia, that the undertaking given by the prosecution was not that there would be no trial as in previous cases where an abuse of process was found and that the evidence of Fleckney was capable of being relevant, admissible and probative.
On 15 November 1999, counsel for Clark renewed the application to exclude Fleckney’s evidence and pointed to a statement from Clark submitted on 13 November 1999 to the effect that if he had been aware that Fleckney might be called at a retrial, he would have decided to continue with the original trial. The judge stated that all these points had been covered in the ruling on 11 November 1999 and it was not appropriate for him to re-open the matter in the absence of reference to some authority which indicated that ruling to be wrong.
At the close of the prosecution case, counsel for Clark and Drury applied to stay the proceedings on the grounds of abuse of process, inter alia, on the basis of section 78 of the Police and Criminal Evidence Act 1984 (“PACE 1984”) due to the manner of the detention and the interrogation of Fleckney and Putnam. On 20 December 1999, the trial judge ruled that the relevant part of PACE 1984 did not apply to Fleckney and Putnam since they had both already been remanded in custody by a court. Applying the common law test (which he believed was identical to that in PACE), the judge ruled that the admission of their evidence would not have such an adverse effect on the fairness of the proceedings that he ought not to admit it.
On 3 February 2000, Clark was convicted of two counts of conspiracy to supply Class B drugs and two counts of perverting the course of public justice. He was acquitted of six other counts. On the same date, Drury was convicted of one count of conspiracy to supply Class B drugs and two counts of perverting the course of public justice. He was acquitted of two other counts.
On 4 February 2000, Clark and Drury, and Fleckney and Putnam were sentenced. Clark was sentenced to twelve years’ imprisonment and Drury was sentenced to eleven years. Fleckney was convicted of twenty-one offences and sentenced to five years ordered to run concurrently with her existing sentence of fifteen years. Putnam was convicted of sixteen offences and sentenced to three years and eleven months’ imprisonment after the deduction of one-third of the sentence for his guilty plea and a further one-third for his assistance to the prosecution in the cases of Clark and Drury.
The prosecution case against Kingston and O’Connell rested principally on Putnam’s evidence and at the start of the trial, counsel for each of the applicants applied to the judge to exclude the evidence of Putnam and/or to stay the proceedings for abuse of process. The trial judge, Judge Paget, dismissed these applications on the grounds that PACE 1984 did not apply and that insofar as there were any breaches of the code of practice which was applicable under the Criminal Procedure and Investigations Act 1996 (“CPIA Code 1996”) in the interrogation of Putnam, they went to the weight and reliability of Putnam’s evidence rather than its admissibility.
On 4 August 2000, Kingston was convicted of conspiracy to supply a Class B controlled drug and O’Connell was convicted of doing an act tending and intended to pervert the course of public justice. They were each sentenced to three years and six months’ imprisonment.
Clark and Drury both appealed, inter alia, on the grounds that it was an abuse of process for the Crown to call Fleckney as a witness in light of the undertaking given at the aborted first trial and that the judge should have allowed a voir dire regarding Fleckney’s change of position. The second ground was that the evidence of Fleckney and Putnam was obtained as a result of wrongful detention, inducement, oppression and contraventions of PACE, which together amounted to an abuse of process which should have led the judge to exclude such evidence. Kingston and O’Connell both appealed, inter alia, on the grounds that the trial judge erred in failing to exclude the evidence of Putnam under section 78 of PACE 1984 and that the judge should have stayed the proceedings as an abuse of process for the breaches of the CPIA Code 1996.
On 11 April 2001, the Court of Appeal dismissed the appeals of all of the applicants against conviction but allowed the appeals of Clark and Drury against sentence, reducing their sentences by two years and three years respectively. In respect of the claim regarding breach of the prosecution’s undertaking, the Court of Appeal held that there was no abuse of process on the grounds, inter alia, that the prosecution’s undertaking was made in good faith, the reversal of position was due to a sudden change in circumstance and the defence did not suffer real prejudice or irremediable disadvantage by Fleckney being called. The court stated that even if the applicants had believed that Fleckney might be called at the retrial, the judge would not have granted a request to continue with the original trial. Further, a voir dire to discern the reason for Fleckney’s change of position was unnecessary and would have usurped the function of the jury. With regard to the argument that the evidence of Fleckney and Putnam should be excluded on the grounds of abuse of process, the prosecution conceded that there may have been breaches of the CPIA Code 1996 and the codes of practice which were applicable under PACE 1984 due to the failure of the police to record all the interviews with Fleckney and Putnam. However, the court held that the police acted in good faith and did not deliberately circumvent the rules in a manner which would make it an affront to the public conscience for the prosecution to proceed. The court stated that the witnesses and their legal representatives consented to the procedure adopted and that the irregularities conceded by the prosecution did not amount to an abuse of process.
On 11 February 2002, the House of Lords refused the petitions of Drury, Clark and Kingston for leave to appeal.
Section 78(1) of the Police and Criminal Evidence Act (PACE) 1984 provides that:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
It is possible to stay criminal proceedings on the grounds of abuse of process. In R v. Horseferry Road Magistrates’ Court ex parte Bennett [1994] 98 Cr.App.R. 114, the Court of Appeal stated that it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.
In the case of R v. Bloomfield [1997] 1 Cr.App.R. 135, the Court of Appeal found that where an indication had been given coram judice (in the presence of the judge) that the prosecution would not proceed with the case and subsequently went back on its undertaking, the proceedings should have been stayed for abuse of process since to allow such practices would bring the administration of justice into disrepute. In the present case, the Court of Appeal distinguished Bloomfield on the grounds that there, the question was whether or not the prosecution’s breach of undertaking rendered it an abuse of process for proceedings to be brought at all whereas here, the issue was whether it was an abuse of process for the trial to proceed with, rather than without, Fleckney’s evidence due to the prosecution’s indication that she would not be called.
In the present case, the Court of Appeal applied a four-prong test to the question of whether it was an abuse of process for Fleckney to be called contrary to the prosecution’s previous indication:
(1) What were the nature and circumstances of the indication?
(2) What was the reason for the indication; was it given bona fide and without intention to mislead the defence?
(3) What was the explanation for the change of position?
(4) Did the undertaking result in substantial detriment or irremediable prejudice to the defence or otherwise render a fair trial impossible?
Regarding the holding of a voir dire on possible abuse issues, the decision as to whether this is necessary or appropriate is a matter for the discretion of the judge. A number of cases, cited by the Court of Appeal, state that it is generally undesirable for a judge to hold a voir dire to decide an issue as to whether evidence is fabricated as it usurps the function of the jury (e.g. R v. Walshe [1982] 74 Cr.App.R. 85).
Section 41 of the Crime (Sentencing) Act 1997 gives effect to Schedule 1 of the Act, which provides inter alia that:
“3(1) If the Secretary of State is satisfied, in the case of –
(a) a person remanded in custody in any part of the United Kingdom in connection with an offence;
(b) a person serving a sentence of imprisonment in any part of the United Kingdom; or
(c) a person not falling within paragraph (a) or (b) above who is detained in a prison in any part of the United Kingdom,
that the attendance of that person at any place in that or any other part of the United Kingdom or in any of the Channel Islands is desirable in the interests of justice or for the purposes of any public inquiry, the Secretary of State may direct that person to be taken to that place.”
This provision of the 1997 Act replaced section 29 of the Criminal Justice Act 1961.
Part IV of PACE 1984 governs the conditions of police detention but according to section 118(2), a person is considered to be in police detention if:
“(a) he has been taken to a police station after being arrested for an offence ...
(b) he is arrested at a police station after attending voluntarily at the station or accompanying a constable to it.”
This definition does not cover serving prisoners (Fleckney) or those remanded in custody (Putnam) and thus, the PACE safeguards did not apply. Certain parts of the “Code of Practice for the Detention of Treatment and Questioning of Persons by Police Officers” and all of the “Code of Practice on Tape Recording of Interviews with Suspects” issued under sections 66 and 67 of PACE appear to apply to all persons in police detention. Further, the Code of Practice under the CPIA 1996 applies to all criminal investigations conducted by police officers and section 4 requires the recording of all material relevant to the investigation.


ITEMID: 001-97411
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF YEŞİLYURT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1978 and lives in Batman.
5. On 12 October 1995 the applicant was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation. On 25 October 1995 she was brought before the investigating judge at the Istanbul State Security Court, who ordered her detention on remand.
6. On 29 November 1995 the Istanbul State Security Court Public Prosecutor declared a lack of jurisdiction and transferred the case file to the Diyarbakır State Security Court.
7. On 29 December 1995 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing her, inter alia, of membership of an illegal armed organisation and of involvement in activities that undermined the constitutional order of the State. The prosecution requested that the applicant be sentenced pursuant to Article 125 of the Criminal Code.
8. The trial commenced before the Diyarbakır State Security Court. In the subsequent hearings, the court refused to release the applicant on account of the nature of the alleged offence and the state of evidence.
9. On 12 June 2001 the applicant submitted a petition to the Diyarbakır State Security Court, alleging that she had been ill-treated during police custody.
10. The case against the applicant continued before the Diyarbakır State Security Court until 7 May 2004 when, following a constitutional amendment, State Security Courts were abolished. Thereafter, the applicant's case was transferred to the Diyarbakır Assize Court.
11. On 3 November 2004 the applicant was released pending trial.
12. On 26 January 2005 the Diyarbakır Assize Court declared its lack of jurisdiction and transferred the applicant's case to the Diyarbakır Juvenile Court, holding that the applicant had been a minor at the time of the events.
13. On an unspecified date, the Diyarbakır Juvenile Court also declared its non-jurisdiction and the case file was then transferred to the Batman Assize Court.
14. 9 May 2005 the Batman Assize Court declared a lack of jurisdiction and transmitted the case file to the Court of Cassation to resolve the jurisdictional conflict.
15. On 17 October 2006 the Court of Cassation decided that the case should be heard by the Batman Assize Court.
16. On 4 December 2007 the Batman Assize Court acquitted the applicant of the charges against her.
17. Subsequently, the applicant applied to the Midyat Assize Court seeking compensation for both non-pecuniary and pecuniary damage pursuant to Law no. 466 pertaining to the payment of compensation to persons unjustifiably arrested or detained. On 24 April 2008 the Midyat Assize Court awarded the applicant 11,881 Turkish liras (TRY) in respect of pecuniary damage and TRY 10,000 in respect of non-pecuniary damage. According to the information submitted by the applicant, the proceedings are still pending before the Court of Cassation, following her appeal, and she has not yet received the due amount.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-107167
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NABOYSHCHIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
JUDGES: Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert
TEXT: 5. The applicant was born in 1956 and lives in Rostov-on-Don.
6. The parties disagreed as to the course of the events that occurred on 3 October 2003. Their versions may be summarised as follows.
7. On 2 October 2003 the applicant saw a road police inspector being bribed for permission to enter a restricted-access zone and informed a lawenforcement body about this incident. As no action followed on its part, the applicant decided to investigate independently the number of cars that were allowed to pass through the restricted-access zone. On the night of 3 October 2003 he was spotted by the guards of rifle division no. 16 of the Rostov extra-departmental security service of the North Caucasus Railway (Стрелковая команда № 16 Ростовского отряда вневедомственной охраны Северо-Кавказской железной дороги). He was searched and taken to the guardroom, where he was brutally beaten. Guard S. fired several shots at the applicant’s legs with a Kalashnikov rifle, severely wounding him.
8. At 2 a.m. on 3 October 2003 the applicant entered the restrictedaccess zone guarded by rifle division no. 16 of the Rostov extradepartmental security service, which was responsible for the security of the railway bridge of the Zarechnaya-Bataysk sector of the NorthCaucasus Railway.
9. The applicant set fire to a car owned by guard S. and was apprehended by the latter.
10. Guards L. and S. escorted the applicant to the guard premises. Upon entering the premises they proceeded in the direction of the guard commander’s room, and guard N. stepped back into the kitchen to allow them to pass. L. was bringing up the rear.
11. Suddenly the applicant turned around and tried to stab S. with a knife. As the latter did not have enough time to take his handgun out of its holster he commanded L. to give him a rifle and warned the applicant. After repeating the warning and in view of the advancing applicant, S. fired away from the applicant, hitting a fire extinguisher which began discharging foam. The guards had difficulty seeing and breathing and left the building. After the foam began to settle down, S. entered the premises again and saw the applicant hiding behind the door frame. The applicant hopped into the corridor and again tried to stab S. S. leapt back but could not retreat further as his way was blocked by L. S., who was still holding the rifle, warned the applicant and fired at the floor below him. The applicant leapt aside but was still threatening them. Fearing for his life S. fired two single shots, aiming at the applicant’s legs. The applicant retreated to the room of the guard commander screaming that he was going to blow the place up. S. followed him and saw the applicant, who was wearing a jacket and hat belonging to the guards, sitting on a sofa with blood streaming down his legs. S. noticed that the phone cords had been cut. He ordered N. to summon the police and ambulance and, together with L., began to administer first aid. They then discovered the knife on the back of the sofa.
12. The applicant, who was suffering from a manic mental disorder, had a suspicion that the guards of rifle division no. 16 were aiding terrorists. On 2 October 2003, during the day, he arrived at the guarded zone on his bicycle and demanded that the guards stop letting the cars through. Having failed to achieve the desired result, at 2 a.m. on 3 October 2003 the applicant entered the restricted-access territory, where he might have tried to set fire to the car of guard S., who apprehended him while in a state of inebriation.
13. After unsuccessfully searching the applicant for weapons, S. escorted him to the guard premises where, together with L. and N., he started beating him by way of a reprisal for the damaged car. Most of the blows were delivered by kicks to the groin area. Having realised that the applicant had mental-health problems, S. fired at the applicant but missed and hit the fire extinguisher. In a state of rage S. returned to the building after the foam had settled down and fired three shots at the applicant, two of which hit his legs and one the floor. Subsequently S. planted a knife in the area to support his argument that the applicant had attacked him.
14. Immediately after the incident the applicant was taken to hospital, where he was diagnosed as having gunshot wounds to the upper thigh areas of both legs and to the left popliteal artery, gangrene of the lower left leg, and urethritis. His left leg was amputated on 14 October 2003 and he subsequently received second-category disabled status. The amputated extremity was disposed of, and the medical records did not contain any information about the location of the bullet entry and exit holes on it.
15. The applicant submitted statements by several friends and family members testifying that before the incident they had known him as a very healthy person in good physical condition and that he had only started complaining of pain in the groin area after the incident when they had visited him in hospital. In particular, two individuals stated that on 8 October 2003, while removing the bedpan used by the applicant, they had noticed blood in his urine.
16. On 18 November 2003 the applicant consulted an urologist from the municipal hospital who diagnosed him with post-catheter urethritis. On 22 December 2003 he was diagnosed with chronic cystitis and pyelonephritis. Bladder and urethra perforation and bladder injury were not ruled out.
17. On 24 March 2004 the applicant complained to the office of the transport prosecutor of the North Caucasus that his urogenital apparatus had been damaged as a result of the beatings by the guards on the day of the incident.
18. On various dates the medical personnel questioned during the investigation into the shooting incident stated that they had not seen any bodily injuries other than the gunshot wounds. The trousers worn by the applicant during the incident and removed later for surgery had been lost or disposed of at the hospital.
19. From 2005 to 2009 the applicant underwent in-patient treatment on several occasions, including several operations to his urogenital apparatus. At present he has to use a nephrostome (a catheter removing urine directly from the kidneys).
20. On 3 October 2003 an investigator from the office of the transport prosecutor of Rostov examined the site of the incident. On the same day the guards present during the incident were tested for the presence of alcohol in their bodies using a breath alcohol testing device. S.’s data were recorded as zero.
21. On 9 October 2003 the deputy transport prosecutor of Rostov opened a criminal investigation on account of the serious bodily harm suffered by the applicant. The latter was granted the procedural status of witness.
22. The investigation was conducted by the Line Interior Office of Bataysk, Rostov Region (ЛОВД на станции Батайск Ростовской области).
23. On 23 October 2003 the applicant was summoned to be questioned but refused to make any statements referring to poor health.
24. In October and November 2003 the investigation procured the results of the expert medical and ballistic forensic examinations that had been carried out and questioned the witnesses.
25. On 15 December 2003 an expert psychiatric forensic examination found that the applicant had a type of chronic paranoid schizophrenia.
26. By a decision of 9 January 2004 the investigator of the Bataysk Line Interior Office terminated the criminal proceedings against S. for lack of corpus delicti. The decision was based on statements by the applicant’s father and the guards present during the incident, plus the results of several expert examinations. However, on 15 March 2004 the deputy transport prosecutor of Rostov quashed that decision on account of the erroneous legal qualification of the applicant’s and S.’s actions, as well as the failure to question the applicant and to collect detailed data about his personality and capabilities, and the case was returned for further investigation.
27. On 24 March 2004 the applicant filed a request to be granted victim status in the proceedings. This request was refused by the investigator on the following day on the ground that the applicant had a mental disorder. On 30 March 2004 the investigator allowed the applicant’s wife to act as his lawful representative and obtained statements from the applicant.
28. On an unspecified date the applicant retained legal counsel.
29. In reply to the complaints of the applicant’s counsel, on 22 April and 27 May 2004 the deputy transport prosecutor of Rostov and the deputy prosecutor of the Rostov Region respectively refused to grant the applicant victim status, arguing that the infliction of bodily harm had not been unlawful.
30. By decisions of 15 May 2004 the investigator again terminated the criminal proceedings against S. for lack of corpus delicti and refused to open a criminal case against the applicant, referring to his mental disorder. In particular, the decision to terminate the criminal proceedings against S. was additionally based on the statements of the applicant, the head of rifle division no. 16, the experts, the medical personnel and the police, as well as the results of re-enactments of the crime. A copy of the latter decision was sent to the applicant.
31. However, on 4 June 2004 these decisions were quashed by the supervising prosecutor, who remitted the case for further investigation. The prosecutor pointed out that there had been no adequate legal qualification of the deliberate damage to property and the murder threats in respect of the guard of the extra-departmental security service by the applicant, and that there was a need for an additional expert psychiatric examination to determine whether the applicant needed compulsory medical treatment.
32. On 11 June 2004 the investigator rejected requests by the applicant’s lawyer for a copy of the decision of 15 May 2004 terminating the criminal proceedings against S. and the results of the medical and psychiatric forensic examinations. He also dismissed the lawyer’s request for an expert examination of the lawfulness of the use of firearms by S., but granted his request to study the prosecutor’s decision of 4 June 2004.
33. On 30 June 2004 the investigator apprised the applicant’s lawyer and wife of the results of three expert psychiatric and medical forensic examinations.
34. By decisions of 7 July 2004 the investigator again terminated the criminal proceedings against S. and refused to open a criminal case against the applicant for the same reasons as before. A copy of the latter decision was sent to the applicant.
35. Following a complaint by the applicant’s wife, on 27 September 2004 the deputy prosecutor of the Rostov Region quashed the decisions of 7 July 2004 and returned the case for further investigation. The deputy prosecutor averred that the investigator had not given a legal qualification to the damage to property perpetrated by the applicant, or established the exact whereabouts of the entry and exit holes of the applicant’s wounds and whether such wounds could have been caused by a single shot. According to the deputy prosecutor, the investigation had also not reconciled the contradictions between the two expert psychiatric examinations concerning the need for compulsory medical treatment of the applicant.
36. On 13 October 2004 the investigator again refused to grant the applicant victim status in the proceedings. That decision was confirmed on 5 November 2004.
37. On 28 December 2004 the investigator apprised the applicant’s wife and lawyer of the results of the latest forensic medical examination. On the same day he again took decisions to terminate the criminal proceedings against S. for lack of corpus delicti and not to open a criminal case against the applicant on account of his mental-health status. The description of the events by the authorities remained identical throughout the investigation.
38. Article 42 of the Code defines a victim as a person who has sustained physical, psychological or proprietary damage as the result of a criminal act. The provision further details that a victim has the right, among other things, to know about any charge brought against the accused, to participate in the investigative actions conducted at his or his representative’s request, to study the criminal case materials upon completion of the investigation and copy them, to receive copies of any decisions concerning the opening, stay or termination of criminal proceedings, as well as decisions granting the status of victim or refusing to do so.
39. Article 56 of the Code lays down the definition, rights and obligations of a witness in criminal proceedings. In particular, Article 56 § 4 (5) provides that a witness is entitled to lodge requests and complaints in respect of the acts or omissions of an investigator, a prosecutor, or a court.
40. Chapter 16 of the Code lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. The acts or omissions of a police officer in charge of an inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] concern those persons’ interests” (Article 123). Such acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police, investigators or prosecutors not to initiate criminal proceedings, or to terminate them, or any other decision or inaction capable of infringing upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125).
41. Ruling of the Constitutional Court no. 13-P of 29 April 1998 specifically invalidated the provision of Article 113 of the Code of Criminal Procedure of the RSFSR (in force until 2002) limiting access to judicial review of a refusal to open a criminal investigation, and conferred access to court in such matters on all persons affected.
42. Referring to its previous rulings, no. 5-P of 23 March 1999 and no. 11P of 27 June 2000, as well as to Article 48 of the Constitution, which guarantees professional legal assistance, in its decision no. 119-O of 22 January 2004 the Constitutional Court stated that “the rights and freedoms guaranteed by the Constitution pertaining to criminal proceedings are conferred not by the formal status of a person in criminal proceedings but by the existence of certain material factors qualifying the de facto situation of this person as needing protection of the pertinent right”.
43. The extra-departmental security service of the Ministry of the Interior was created by Government decree no. 589 of 14 August 1992 (“the Decree”).
44. Article 1 of the Decree stipulates that the extra-departmental security service was founded for the protection of private property and is guided in its actions by the Constitution of Russia, the Police Act and other federal laws, the decrees and orders of the President and the Government of the Russian Federation, the decisions of the governments of the entities of the Russian Federation, the present Decree, and the regulations of the Ministry of the Interior of Russia. Article 5 of the Decree provides that the extradepartmental security service is managed by the Department for the State Protection of Property of the Ministry of the Interior, the ExtraDepartmental Security Operational Management Centre and the specialised police departments at the local level and the level of the federal entities. Article 8 of the Decree enables the officers of the extradepartmental security service, among other things, to take individuals suspected of offences against protected property to guardrooms or to police stations in order to conduct personal searches in exceptional circumstances and to use firearms in the situations and in the manner prescribed by law.
VIOLATED_ARTICLES: 3


ITEMID: 001-102365
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STARVYS, S.R.O. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: The applicant entity, STARVYS, s.r.o., is a limited liability company which was established in 1997 under the laws of Slovakia and has its registered seat in Fiľakovo. The respondent Government were represented by their Agent, Ms A. Poláčková, who was succeeded in that function by Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 October 1998 the Lučenec branch of the National Employment Authority (Národný úrad práce - “the NÚP”) ruled that the applicant company was liable to pay an amount of money by way of contribution to the unemployment fund. By a separate decision on the same day the NÚP imposed a financial penalty for the late payment of that contribution. These decisions could have been, but were not, challenged by an administrative appeal. They thus became final and binding, on 13 November 1998.
On 23 March 2001 the NÚP commissioned a judicial enforcement officer (súdny exekútor) to enforce the above decisions.
On 18 April 2001 the enforcement officer issued a notice of enforcement (upovedoenie o začatí exekúcie) by which he notified the applicant company officially that the enforcement proceedings had commenced and ordered that the applicant company “make no dispositions in respect of all its assets which were subject to the enforcement”. The notice also contained an assessment of the costs of the enforcement. It was calculated as a percentage of the total of the principal amount and of the penalty due.
The notice stated that the enforcement as such could be appealed against within fourteen days and the assessment of the costs of the enforcement within three days from the day on which the notice was served.
The enforcement officer sent the notice by registered mail to the private address of Mr B., who was the statutory representative and one of the owners of the applicant company. The postal delivery receipt (avis de réception) bears a handwritten date and signature indicating that the notice was received on 4 May 2001, which was a Friday.
On 9 May 2001 the applicant company appealed against the assessment of the costs of the enforcement. Without giving any details, it was claimed that the notice of enforcement had been served on the applicant on 6 May 2001, which was a Sunday. The applicant company argued that the costs of the enforcement should have been calculated on the basis of the principal amount of the debt only and that the late payment penalty should not have been included.
Later in May 2001 the applicant company lodged a further appeal, in which it raised various objections as to the enforcement as such. These objections concerned mainly matters of formality such as: the enforcement documents did not indicate the proper file number; the notice of enforcement was incorrectly phrased in that it wrongly referred to “all assets” of the applicant company; and that a copy of the plaintiff’s petition for enforcement had never been served on the applicant. Arguing that it was not avoiding payment but could not pay due to lack of funds, the applicant company proposed that the enforcement be discontinued. The applicant company again submitted, without any explanation, that the notice of enforcement had been served on it on 6 May 2001.
The enforcement officer transmitted the applicant company’s appeals to the District Court for judicial determination. In the accompanying letter he observed that, contrary to the applicant company’s contention, the notice of enforcement had been served on it on 4 May 2001 by delivery into the hands of B., as evidenced by his signature on the postal delivery receipt. The appeal of 9 May 2001 against the costs of the enforcement had thus been lodged outside the statutory three-day appeal period. The applicant company’s remaining objections were unfounded and constituted no valid ground to interrupt the enforcement.
On 12 July 2002 the applicant company submitted observations in reply to the accompanying letter from the enforcement officer. It raised similar objections as in its above-mentioned appeals and claimed that the service of the notice of enforcement had been ineffective on the ground that the “[notice] had not been in an envelope with a blue stripe”.
On 15 October 2002 the District Court declared the appeal against the costs of the enforcement inadmissible. It observed that the notice of enforcement had been served on the applicant company on 4 May 2001. The appeal against the costs was lodged on 9 May 2001, which was outside the applicable three-day timelimit. The appeal against the enforcement as such was dismissed as unfounded. Enforcement could only be appealed against on grounds recognised by Article 50 § 1 of the Enforcement Code (Law no 233/1995 Coll., as amended) and the applicant company had not invoked any of these grounds. Formal as well as material requirements for the enforcement were met and the applicant company’s objections against the enforcement as such were considered to be purely tendentious. Pursuant to Article 202 § 2 of the Code of Civil Procedure (Law no 99/1963 Coll., as amended) the decision of 15 October 2002 was subject to no further appeal. Had the applicant’s appeal against the enforcement as such been allowed, the plaintiff could have challenged the decision on that appeal under Article 50 § 4 of the Enforcement Code.
On 15 October 2002, by a separate decision, the District Court ruled that the applicant company was to pay a court fee for its appeal against the notice of enforcement, in an amount which was calculated as a percentage of the total of the debt and the penalty.
On 13 November 2002 the enforcement officer issued an order for enforcement (exekučný príkaz) of the decisions of 29 October 1998. By this order he directed the applicant company’s bank to transfer the amounts and the costs of the enforcement. The order was not subject to appeal.
On 26 August 2003, on an appeal by the applicant company, the Banská Bystrica Regional Court (Krajský súd) upheld the decision of 15 October 2002 concerning the court fee.
On 8 February 2008 the enforcement officer returned to the District Court the decree authorising him to carry out the enforcement on the ground that the claims in question had been enforced.
On 16 August 2002 the applicant company lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. It completed the complaint by submissions of 22 December 2002 and 13 February 2003.
Represented by a lawyer, the applicant company complained that the enforcement proceedings had been conducted in an unfair and unlawful fashion; that they constituted an infringement of its property rights; and that the length of the proceedings was excessive. In particular the applicant company maintained that there were formal shortcomings in the enforcement documents; that the authorisation of the enforcement was contrary to law; that the notice of enforcement was only served on 6 May 2001; that it was incorrectly phrased, in that it ordered the applicant company not to make dispositions in respect of all its assets; that the costs of the enforcement had been miscalculated; and that the decision of 15 October 2002 was arbitrary and lacked adequate reasoning. As to the service of the notice of enforcement, the applicant company alleged in particular (in its submission of 22 December 2002) that it had in fact been served on Mr B. by the postman on 6 May 2001 and that on that day the postman had informed Mr B. that his attempt to deliver the notice to Mr B. in person on 4 May 2001 had been unsuccessful due to the latter’s absence.
As to the length of the proceedings, the applicant company complained in particular about the decisionmaking in respect of its appeal against the notice of enforcement, and contended that there were continued delays even after this appeal had been determined.
The applicant company invited the Constitutional Court to quash the decision of 15 October 2002 and to award it 200,000 Slovakian korunas by way of just satisfaction in respect of nonpecuniary damage.
On 15 May 2003 the Constitutional Court declared the complaint admissible in so far as it concerned the length of the proceedings and inadmissible as to the remainder. As to the applicant’s objections against the enforcement as such, it was noted that their examination was primarily the task of the District Court, which had proceeded in accordance with the applicable procedural rules and had based its decision on adequate reasoning. The Constitutional Court discerned no indication of any constitutionally relevant illegality, arbitrariness or unfairness in the District Court’s decision. In doing so the Constitutional Court did not address specifically the applicant company’s arguments as to the date of service of the notice of enforcement on it. It was finally noted that the applicant company still had the protection of the law in that it could raise an objection against the enforcement under Article 57 of the Enforcement Code if the enforced debt had already been paid or if the enforcement interfered with assets which were excluded from the enforcement. A copy of the Constitutional Court decision was served on the applicant company on 30 May 2003.
In a judgment (nález) of 10 September 2003 the Constitutional Court found that the District Court had violated the applicant company’s right to a hearing without “unjustified delay” under the Constitution and to a hearing within a reasonable time under the Convention. It restricted its examination of the proceedings to the appeal by the applicant company against the notice of enforcement only. The subject matter of the appeal was not particularly complex. No delay could be imputed to the applicant company. By contrast, the District Court had been completely inactive without any justification from 30 May 2001 to 15 October 2002. The Constitutional Court further held that the finding of a violation of the applicant company’s rights constituted of itself just satisfaction for the prejudice suffered. It was noted in particular that it was the applicant company which was resisting the enforcement of an adjudicated debt and that the applicant company had at all times the opportunity to bring the enforcement to an end by paying its debt. Furthermore, any possible uncertainty on the part of the applicant company had been dispelled by the District Court ruling of 15 October 2002.


ITEMID: 001-59717
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SAHIN v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Antonio Pastor Ridruejo
TEXT: 8. The applicant, born in 1950, was a Turkish national at the time of the events complained of; he subsequently obtained German nationality.
9. The applicant is the father of the child G. N., born out of wedlock on 29 June 1988. In a document dated 15 June 1988, he acknowledged paternity of the unborn child, and, in a further document dated 15 August 1988, he acknowledged paternity and undertook to pay maintenance.
10. The applicant met the child’s mother, Ms D., in 1985 and in December 1987 he moved into her flat where they lived together until at least July 1989 or, as stated by the applicant, until February 1990. In any event, the applicant still visited the child and her mother until February 1990, and between end of July and October 1990 he regularly fetched G.N. for visits. As from November 1990 Ms D. prohibited any contacts between the applicant and the child.
11. On 5 December 1990 the applicant applied to the Wiesbaden District Court for a decision granting him a right of access to his daughter on every Sunday from 10.00 a.m. until 6.00 p.m. as well as on the second public holiday at Christmas and at Easter.
12. On 5 September 1991 the District Court dismissed the applicant’s request.
The court, referring to section 1711 of the Civil Code (Bürgerliches Gesetzbuch), observed that the mother, in the exercise of her right to custody, determined the child’s relations with third persons, and that the father could only be granted a right of access by court order, if this was in the interest of the child.
According to the court’s findings, these conditions were not met in the applicant’s case. The court noted that the Wiesbaden Youth Office and the parties had been heard and that several witnesses had been questioned at a hearing in March 1991. The court considered that the applicant’s wish to see his daughter resulted from his sincere bonds and true affection. Nevertheless, the court reached the conclusion that access was not in the child’s interest as Ms D. had taken such a strong dislike to the applicant and opposed any contacts so firmly that the child would be put into a situation of antipathy and tensions which would probably considerably affect her well-being.
The court saw no special circumstances which, nevertheless, could render such contacts beneficial for the child. The relations which had developed between the applicant and his child during the period of cohabitation could not possibly be of such importance as to take the risk that the child be irritated on account of the mother’s feelings of dislike. The witnesses, nurses in the day-nursery frequented by the child, had stated that, following the separation and the disruption of contacts with the applicant, the child’s behaviour had been without any or at least without any significant or lasting peculiarities and that G.N. was a well-balanced, happy and open-minded child. The applicant’s assertion that she missed him and, after the disruption of contacts, had repeatedly inquired after him, had therefore not been proven.
13. On 12 March 1992 the applicant appealed to the Wiesbaden Regional Court.
14. On 12 May 1992 the Regional Court ordered a psychological expert opinion on the question whether contacts with the applicant were in G.N.’s interest. On 8 July 1992, following a first conversation with the expert, the applicant challenged her for bias. He also requested that another expert be appointed on the ground that the expert’s scientific approach did not reflect the latest state of research. On 9 September 1992 the Regional Court dismissed the applicant’s request, finding that, taking into account the expert’s explanations of 8 August 1992, there were no reasons to doubt her impartiality or her capabilities.
15. On 17 December 1992 the applicant requested the Regional Court to progress with the proceedings. He further applied for a provisional order granting him the right to have access to G.N. during one afternoon every week and prohibiting her mother from obstructing such contacts.
16. On 23 December 1992 the Regional Court dismissed the applicant’s request for a provisional order of access. The Regional Court found that there was no urgency and that the applicant could be requested to await the outcome of the main proceedings. Furthermore, such an order would anticipate the possible terms of a final decision. The disadvantages for the child, should a provisional order be issued and the request be eventually dismissed in the main proceedings, were more serious than those for the applicant in continuing with the prevailing situation.
17. In her opinion dated 25 February 1993, the expert noted that she had visited the applicant’s family in June 1992 and again heard the applicant, the child’s mother and the child on several occasions between November 1992 and February 1993. She reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the interest of the child’s well-being.
18. By letter of 8 March 1993, the Regional Court, noting that the District Court had omitted to hear the child, inquired with the expert about whether hearing the child in court on her relationship with her father would be a psychological strain for her. In her reply of 13 March 1993, the expert indicated that she had not directly asked the child about her father. The risk inherent in questioning her about whether she wished to see her father was that, in this conflict between the parents, the child might have the impression that her statements were decisive.
19. At a court hearing on 30 April 1993, the applicant and the child’s mother entered into an agreement. Under the terms of this agreement, the applicant declared not to have resort to any court proceedings, to refrain from any inquiries in the mother’s personal environment and not to exercise the right of custody obtained under Turkish law on the condition that they would undertake a parental therapy. The proceedings were suspended until termination of this therapy.
20. On 1 June 1993 the applicant requested that the proceedings be resumed as the child’s mother had not approved of the two institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal.
21. On 25 August 1993 the Wiesbaden Regional Court dismissed the applicant’s appeal.
The Regional Court considered that personal contacts with his child born out of wedlock were supposed to enable the father to verify the development and the well-being of his child and to maintain existing natural bonds. Section 1711 and section 1634 of the Civil Code thus pursued the same purpose, however, the conditions were different. While, pursuant to section 1634 of the Civil Code, the parent not having custody and care had the right to personal contact with the child born in wedlock, section 1711 did not grant such a right to the father of a child born out of wedlock. Rather, the person having custody, as a rule the mother, determined if and to what extent the father was entitled to have contacts with his child. Only if contacts were in the interest of the child could the competent court grant a right of access. This weaker legal position resulted from the different social position of the father of a child born out of wedlock. Referring to case-law of the Federal Constitutional Court of 1971 and 1981, the Regional Court found no reason to doubt the constitutionality of section 1711 of the Civil Code. The court added that while, for considerations of legal policy, there was an urgent need for a reform of the law on children born out of wedlock, it was bound by the law in force.
The Regional Court considered that such contacts could be ordered only if this was advantageous and beneficial for the child’s well-being. It could be assumed that, as a rule, such contacts were ordered as regular contacts between a father and his child offered the possibility of a normal development and facilitated the forming of the child’s own personality. In applying these principles in the applicant’s case, the court found that the applicant applied for access on the ground of true love for his daughter. However, such responsible motives could not result in granting a right of access which would have to be enforced. The child would suffer from the existing tensions between the parents on the occasion of every contact and her further development would be disturbed. There were no particular circumstances to conclude that contacts would nevertheless be favourable to the child. In this respect, the court found that there had already been tensions between her parents during the period of cohabitation. Furthermore, the expert had established that the child had repressed her memories concerning the applicant and did not talk about this subject in order to protect herself. She did not suffer from the situation.
The Regional Court further considered that the expert opinion was reliable and could not be objected to. The finding that the parents had to start a therapy with a view to overcome their conflicts before the child could have contacts with both of them was independent of the question of responsibility for the said situation. The court finally found that it had not been required to hear the child on her relations to her father as this would have amounted to a psychological strain.
22. On 21 September 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, as well as about the alleged unfairness of the taking of expert evidence. The First Chamber of the Federal Constitutional Court acknowledged receipt on 29 September 1993.
By letter of 26 April 1994 the applicant inquired with the Constitutional Court about the state of proceedings and urged a speedy decision. On 16 May 1994 the Constitutional Court informed him that in a similar case which had been registered at an earlier date a decision was envisaged for the first six months of 1995.
On 26 November 1995 the applicant addressed a letter to the President of the Federal Constitutional Court complaining that the examination of his constitutional complaint had been postponed until the first six months of 1996. In her reply of 15 February 1996 the Judge dealing with the applicant’s case informed the applicant that, due to the heavy workload of the Federal Constitutional Court in 1995 no decision could be taken. A decision was envisaged for 1996. Having regard to the importance of the subject matter, such a decision required careful preparation.
23. On 1 December 1998 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant’s constitutional complaint.
24. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998.
25. Section 1626 § 1 reads as follows (the Court’s translation):
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
26. Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association.
27. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (the Court’s translation):
Section 1634
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
28. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation):
Section 1705
“Custody over a minor child born out of wedlock is exercised by the child’s mother...”
Section 1711
“1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child’s personal circumstances is set out in Section 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
29. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
30. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.
In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49 § 2 (k)).
As regards the hearing of parents in custody proceedings, section 50a § 1 stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-60883
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF RAWA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1930 and lives in Warsaw.
9. The applicant, a professional army officer, took an early retirement in 1965.
10. On 13 June 1994 the applicant filed a civil action against the Ministry of National Defence, claiming that he had been deprived of adequate medical treatment, to which he was entitled as a retired army officer. He maintained that numerous errors committed by military dentists and their incompetence had led to irreversible bodily harm and damage to his health.
11. On 21 July 1994, on the Warsaw Regional Court’s order, the applicant particularised his claim. He sought a finding of the defendant’s liability, a sum of 1 PLN as compensation, and reimbursement of legal costs. On 3 August 1994 the Warsaw Regional Court gave a decision stating its lack of jurisdiction and forwarded the case to the Warsaw District Court.
12. On 8 August 1994 the applicant extended his claim and alleged that his heart illness had been caused by the defendant ministry. On 5 September 1994 the applicant submitted, on the court’s order, a statement of his financial and family situation. On 21 September 1994 the court exempted the applicant from the court fees.
13. On 22 September, 12 and 27 October 1994, the applicant filed his further objections as to the work and conduct of the dentists concerned. On 5 December 1994 the Ministry of National Defence sent copies of the applicant’s statement of claim to the Central Clinical Hospital at the Warsaw Medical Academy and to the court. The Ministry also declared that the hospital had been authorised to represent the State Treasury in the case. On 20 December 1994 the defendant’s counsel filed a reply to the applicant’s statement of claim with the court and requested it to summon three dentists as witnesses.
14. The applicant submitted his further pleadings on 21 November, 27 December 1994 and 21 February 1995. The hearing scheduled for 28 February had to be adjourned due to illness of the judge rapporteur. The applicant’s further pleadings were lodged with the court on 21 March, 11 and 24 April, 7 and 31 May, 16 and 30 June, 20 July, and 1, 7 and 21 August 1995. On 28 August 1995 the court held a hearing. It heard the applicant and one witness. Subsequently the applicant filed his pleadings on 21 September, 9 and 23 October 1995.
15. The second hearing was held by the court on 30 October 1995. The court interviewed one witness, a dentist who had treated the applicant in the defendant ministry polyclinic. The other witness, summoned for that date, failed to appear. The court accordingly adjourned the hearing.
16. The applicant filed his pleadings on 24 November and 19 December 1995. The subsequent hearing was fixed for 21 December 1995. It had to be adjourned as the defendant’s lawyer and the witness failed to comply with the summons. The applicant was told by the judge that the next hearing would be held on 15 February 1996, at 9.15 a.m.
17. On 15 February 1996 the applicant appeared before the court an hour after the hearing had begun. He complained to the President of the Warsaw District Court that he had not been properly informed about the time fixed for the hearing. He further complained that, after having waited several years for the trial, he had been denied the opportunity of questioning witnesses and had not been allowed to examine the minutes of the hearing. The President of the District Court was of the view that the applicant’s complaint was unfounded, explaining that the applicant himself bore the blame for having arrived late for the hearing.
18. On the same day the court decided to appoint professor J.P. as an expert. The applicant filed his further pleadings on 1 January, 12 and 19 February, 10 and 22 April 1996. In May 1996 the expert opinion reached the court. The applicant filed his pleadings and motions, inter alia as to the expert opinion, on 15 May, 19 and 26 July, 6, 19, 20 and 26 August 1996. On 10 September 1996 the defendant’s lawyer submitted her observations as to the expert opinion.
19. The applicant submitted his new pleadings and various motions on 19 September, 11 December 1996, 11 February, 4, 10, 12 and 24 March, 7, 17 and 21 April, 12 May, 18 and 20 August 1997. On 21 August 1997 the applicant submitted two sets of questions to the expert, altogether fifty questions. He submitted further pleadings on 4 November 1997, and 2 and 16 February 1998.
20. In 1996 and 1997 hearings were scheduled by the Warsaw District Court on the following dates: 23 September 1996, 12 November 1996, 17 December 1996, 14 January 1997, 7 March 1997, 17 June 1997 and on two other unspecified dates. On 21 August 1997 the Warsaw District Court stated its lack of jurisdiction to entertain the case and the case was subsequently transferred to the Warsaw Regional Court. As on each occasion the court expert, professor J.P., failed to attend, the hearings were adjourned.
21. On 18 February 1998 the Warsaw Regional Court sent letters to J.P.’s two addresses - to the hospital and to his home address - in order to set a date for the hearing. The court’s secretary also telephoned to the hospital to inform the expert about the need to achieve some progress in the proceedings, and to reiterate that a date had to be fixed so that he could finally attend the hearing. The expert informed the court that he could be present on 8, 9 and 14 July 1998, at 9 a.m.
22. On 3, 12, 18, 30 March, 20 April and 29 June 1998 the applicant filed his further pleadings with the Regional Court. In a letter of 31 March 1998, in reply to the applicant’s earlier letter of complaint to the Ministry of Justice of 19 February 1998 about the lack of progress in the proceedings, the President of the Warsaw Regional Court admitted that the proceedings were too slow, but in his opinion the court could not be blamed for it, since the delay had mainly been caused by the persistent failure of the expert J.P. to attend hearings.
23. During the hearing held on 14 July 1998, the court took the oral evidence of the expert J.P. On 15 July 1998 the applicant filed a list of his further claims with the court. On 17 July 1998 at a session held in camera the court decided that additional expert opinions should be prepared within thirty days. The court subsequently made a few attempts to appoint experts, but they refused to prepare their opinions for various reasons. The experts’ refusals were submitted to the court on 31 August, 20 October, 3 and 28 December 1998. On 31 July 1998 the Warsaw Regional Court answered the applicant’s question of 27 July 1998 concerning the decision of 17 July 1998 to take additional evidence.
24. The applicant filed his new pleadings with the court on 24 September, 29 October 1998, 15 January and 19 February 1999. On 5 March 1999 the court sent to the applicant a list of experts practising in other towns and asked him if he would agree to visit one of them at his own expense. On 11 March 1999 the applicant informed the court that he had chosen the expert A.K.S. living in Kraków. The applicant filed his new pleadings on 12,13 May and 8 June 1999.
25. On 9 June 1999 the court requested A.K.S. to submit her report. On 30 June 1999 the expert opinion prepared by professor A.K.S. was submitted to the court. On 31 June 1999 the expert explained that she had not been able to complete her opinion earlier due to serious family problems. She also informed the court that she had summoned the applicant for 22 June 1999, at 10 a.m. He had not reported for the examination and answered that he could only do so in the afternoon. Following that, the applicant formulated a list of questions addressed to the expert and submitted that list to the court. On 18 August, 2 and 27 September 1999, 6 and 28 April 2000 the applicant lodged his further pleadings with the court.
26. On 11 May 2000 the defendant’s lawyer submitted her observations on the merits of the case and informed the court that the Ministry of National Defence had to be summoned as a party to the proceedings.
27. On 17 May 2000 the President of the Warsaw Regional Court, in reply to the applicant’s letter of 30 March 2000 addressed to the Ministry of Justice, informed him once again that difficulties in hearing the evidence, as well as other reasons beyond the court’s control, had contributed to the excessive length of proceedings. It was true that no hearings had been held since 30 June 1999, but this was due to the fact that it was of primary importance for the court to establish which institution had assumed the obligations of the Central Clinical Hospital at the Warsaw Medical Academy after the reforms of the public system of health services, which had become effective from 1 January 1999.
28. The applicant countered these arguments in two letters of complaint written to the Ministry of Justice of 22 and 25 May 2000. He complained inter alia that the expert had not managed to take a stand on a number of questions he had asked.
29. On 22 May 2000 the court summoned the Ministry of National Defence as a party to the proceedings and on the same date it informed the hospital about it. On 13 June 2000 the Ministry of Justice informed the applicant that the President of the Warsaw Regional Court in his letter of 17 May 2000 had given convincing grounds as to why the proceedings were prolonged, but that the case would thereafter be placed under its administrative supervision in order to expedite the proceedings.
30. On 3 July 2000 the applicant filed a letter with the Chancellor of the Jagiellonian University in Kraków contesting the expert opinion of 30 June 1999. On 3 October 2000 the university informed the court that the expert A.K.S. had died on 23 September 2000.
31. On 14 September 2000 the applicant sent a letter of complaint to the Ministry of Justice, stating that he was not satisfied with the vague explanations he had obtained as to the length of the proceedings.
32. On 5 October 2000 the defendant filed its reply to the applicant’s statement of claim. On 9 October 2000 the university answered the applicant’s letter of 3 July 2000 and informed him that professor A.K.S. had been an expert appointed in the case and the university could not interfere with her opinion. On 25 September 2000 the defendant Ministry’s lawyer submitted its reply to the statement of claim.
33. On 18 October 2000 the court held a hearing in the case. The applicant contested the opinion prepared by A.K.S. On 27 October 2000 the court informed the Mazowsze Governor that he would be summoned as a co-defendant in the case.
34. On 13 November 2000 the applicant was informed by the Complaints Department in the Ministry that the Warsaw Regional Court had been notified of the expert’s death and that a new expert had been appointed. The proceedings would be resumed as soon as the appropriate expert opinion was submitted.
35. On 28 November 2000 a new expert opinion was ordered by the court. On 30 November 2000 the representative of the Mazowsze Governor stated that it was the Minister of National Defence who should be summoned as a defendant in the case. On 4, 22 and 27 December 2000 the applicant submitted his further pleadings. On 11 December 2000 the court received a letter from expert M.Z., refusing to prepare his opinion because of his heavy workload. On 14 December 2000 the expert refused the reiterated request of the court.
36. The applicant filed his new pleadings on 23 and 30 January, 12 February, 16 and 21 March and 11 April 2001. On 24 April 2001 the court ordered expert J.P. to prepare his opinion in the case. On 30 May 2001 the expert refused to do so. The court ordered the Dental Institute of the Warsaw Medical Academy to appoint an expert in order to prepare an opinion. The expert from the institute likewise refused to prepare a report and stated that the first opinion prepared by the expert J.P. had been a professional and conclusive one. The applicant submitted his further pleadings to the court on 13 September, 2, 8 and 24 October 2001.
37. On 1 October 2001 the Ministry of Justice answered the applicant’s letters and informed him that the length of proceedings in the present case was caused by the difficulties in obtaining an expert opinion. Answering the subsequent complaint of the applicant, the Ministry informed him that the independent court was considering the case and that no measures could be taken by the Ministry to interfere with the course of the proceedings. On 26 November 2001 the applicant submitted further pleadings to the court.
38. The court held a hearing on 13 December 2001. On 19 December 2001 it gave judgment and dismissed the applicant’s claim. On 20 December 2001 the applicant requested to be served with the written grounds of the judgment. He was served with these on an unspecified date and in June 2002 he lodged an appeal against the first-instance judgment.
39. The proceedings are pending.
40. Article 287 of the Code of Civil Procedure provides that a court shall impose a fine on an expert who, without reasonable cause, consistently fails to comply with his or her obligation to submit a report to the court, or submits such report with a delay.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1