ITEMID: 001-96657
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ELLUL v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Godfrey Ellul, is a Maltese national who was born in 1948 and is currently detained in the Corradino Correctional Facility, Malta. He was represented before the Court by Mr J. Brincat, a lawyer practising in Malta.
On an unspecified date, following a police raid, a quantity of drugs, sealed in various small sachets, together with other equipment related to drug use were found. The applicant, an individual, “X”, and another person were present in the raided premises. The applicant attempted to flee.
On an unspecified date the applicant was questioned by the police and cautioned and informed about his right to remain silent. On a later date he was visited by a magistrate in order to give evidence as a witness against X. Again the applicant was cautioned and informed about his right to remain silent. In both instances, the applicant, in the absence of a lawyer, availed himself of this right.
The applicant was eventually charged with conspiring with others to deal in drugs, possession of drugs with intent to traffic and simple possession. X, was charged with the same offences. The prosecutor, who had the right by law to decide by which court an accused was to be tried, decided to try X before the Court of Magistrates and the applicant before the Criminal Court. That decision, which could not be challenged, had an effect on the range of punishment applicable, in that before the Criminal Court the minimum and maximum punishments were higher.
On an unspecified date the applicant’s trial by jury commenced. Witness statements were heard, X and the applicant giving their versions of events. The applicant told the jury that his presence in the house was entirely innocent. He had given a third person a lift to the house to borrow money from one of the occupants. He waited outside for some time, and only then did he knock. He entered the house only at the invitation of the person to whom he had given the lift. On the contrary, X, in his testimony, told the jurors that the applicant and the third person entered the house together.
Other items of evidence produced in court consisted of photographic evidence, cash and illegal substances and items related to drug use found on the premises. A pharmacist’s report confirmed that the substance found stored in separate sachets was heroin.
At the end of the proceedings the judge addressed the jurors, explaining their role, the law, the burden of proof, the evaluation of evidence and when inferences could be drawn from silence. He stressed that no such inferences could be drawn in the circumstances of the present case. He further noted, inter alia, that they had to examine why the applicant had kept silent when previously questioned and whether he could be deemed to be credible now that he had opted to give evidence during the trial. The impugned paragraphs mentioned during the three-hour address read as follows (unofficial translation):
“The issue of credibility, namely whether you believe his [the applicant’s] version, or part of it, whether you will disregard parts of it or all of it because it has not been proved to the degree required, in which case it will be dismissed: the applicant’s lawyer stated that even if you had to ignore his [the applicant’s] testimony, the prosecution has not made out a prima facie case ... this must be given due consideration too, but for a lawyer to say so it must be backed up by arguments as it is easy to say there is no evidence. You must examine the evidence and see whether, notwithstanding what is being argued by the defence, there is not enough evidence in respect of any one of the three charges...
...
In the present case where the accused is also a witness in another set of proceedings he also has the right to silence and not to incriminate himself. No inferences can be drawn against the applicant, such as stating that once he is saying this it must be because he was hiding something, otherwise he would have mentioned everything.
However, coming to another stage, if after the accused had not given a statement, or if he had given testimony at some stage, as happened in this case, but later decided to remain silent to avoid incriminating himself, he attempts to give an explanation as to why he did not give this version earlier, this explanation is subject to your scrutiny.
Meaning that if he here [before the criminal court] says I did not give this version at the start because it was my right not to do so, that is the reason he has submitted. However, you [the jurors] have to tell yourself that it is true, it was his right, but ‘if according to your [the applicant’s] version you [the applicant] had nothing to do with the alleged facts and that you [the applicant] were just called into the creed like Pontius Pilate, had you [the applicant] said this earlier to the police, wouldn’t you [the applicant] have avoided a lot of trouble?’ it is legitimate to put this question to yourselves. If he here [before the criminal court] gives an explanation as to why he did not tell the truth from the start, you [the jurors] have the right to decide whether that explanation was probable and likely to be credible. This is a question for you to decide, without any interference from anyone, but you have the right to do it. If any accused is faced with such a question ...(example question and answer) you have the right to ignore his answer and/or see whether his explanation satisfies you to the required degree.
Thus, what you are seeing here is not his right to remain silent, nor the right not to incriminate oneself, but whether he gives an explanation for his silence, or to the change in his version of events. This does not mean that it is so in this case. That is solely something for you as jurors to decide. As judges of fact you have the right to examine this and see whether his explanation satisfies the probability test – is what he is saying probable, or is he saying this because he wants to say something? If it is probable that what he has done, he did for the reasons he is stating, then you have been satisfied ... if it is improbable , you should see why he is saying this now and not earlier or why he had given a different version.
...
The inspector further stated that at a certain stage he questioned the accused in hospital, a few weeks after his accident. His statement is before you ... and I have told you that where he has not replied it was his right not to do so and you may not draw any inferences against him when he did not reply. This did not amount to an admission of guilt. However you must also see – at a different stage of the examination of the accused, when he gave testimony here [before this court], if he gave an explanation as to why at the time he had given that version of events, which is not simply that of his right to silence, but another excuse .... And you have the right to scrutinise these reasons he is here giving you and why he did not tell the truth, if the truth was as innocent as he is depicting it now. You have the right to question and to investigate and take a decision as to whether the explanation he is giving now is worth believing or not. That is your right. However, you may not draw inferences against the applicant from the simple fact that during interrogation he remained silent, or failed to reply, or replied to the generic questions but closed like a sea shell when faced with the more fundamental ones. That was his right.
If he has explained why he did that, you have the right to analyse that explanation and decide whether to believe it or not, whether it is likely or not, probable or not. This is what you have to analyse. Is his version probable or not? If it is, then you should admit it. If it is not probable it remains to be considered possible...
When the applicant gave evidence in the proceedings against X he also had certain rights ... namely to remain silent and not to incriminate himself. This is also a right of the accused and you may not say – what was he hiding when he chose not to reply, would he have incriminated himself? – Do not assume anything. However, when he gives an explanation ... You can ask yourself why he did not give it from the start? You have to see whether his explanation holds water, if it satisfies you to the degree of probability. Why was this explanation not given before to avoid a lot of trouble. Does this explanation hold? It is your right to scrutinise such and to see whether it makes sense to have such a story and not to have told it earlier. His reasons were: that had he said it before he could have got into trouble with his wife, secondly that drug pushers can turn nasty and that if he had mentioned other people’s names he might have risked consequences such as revenge against him. You must therefore see if these excuses were plausible.”
’ imprisonment and a fine of MTL 20,000 (approximately EUR 48,000).
On an unspecified date the applicant appealed. He claimed inter alia that there had been a wrong interpretation and application of the law, namely that the jurors (who were aware of the applicant’s previous convictions) had been instructed to accept statements in accordance with their “gut feeling” and had been made to doubt the applicant’s credibility and to suspect that his lawyer did not believe his innocence. Moreover, the judge had breached the applicant’s presumption of innocence by first allowing him this protection and subsequently commenting on it to the jury, insinuating that none of the statements made in court by the applicant could be considered credible since he had not made them at an earlier stage (see quotation above). Moreover, he claimed that the Criminal Court had erred in its assessment of the evidence.
On 17 March 2005 the Court of Criminal Appeal upheld the Criminal Court’s judgment in part.
It found that the trial judge had correctly addressed the jury instructing them to assess only facts arising out of the charges and proved in the course of the proceedings and not any prior events, or facts they learned of through the media. The expression “gut feeling” had not been appropriate. However, it was probable that the trial judge was referring to a “moral conviction” which the jury had to have in order to find the applicant guilty. This was further confirmed by the ensuing explanation regarding the degree of proof which was required to arrive at a verdict of guilt.
As to the issue of credibility, the Court of Appeal did not interpret the wording used by the trial judge as implying any of the matters alleged by the applicant in his appeal. As to the presumption of innocence, it held that the directions to the jury had amounted to a fair explanation of the position in law at that date, namely that no inferences of guilt should be drawn from the accused’
Lastly, the Court of Appeal held that it would only take issue with the trial court’s assessment of the evidence if it were shown that the jury had reached unreasonable conclusions or had based itself on unlawful considerations. However, in view of the imperfections of the directions to the jury, the Court of Appeal went on to examine the evidence so as to establish whether there had been a miscarriage of justice. Having analysed the evidence before the trial court, including transcripts of witness evidence and the documents exhibited, and having considered the submissions of the parties, the Court of Appeal found that the jury had chosen to believe the co-accused’s version of events and not the applicant’s. It was not for the Court of Appeal to interfere with the decision of the jury, which had had the advantage of seeing and hearing all the witnesses and apprising itself of the background to the case as presented to them. This notwithstanding, the court went on to determine whether the evidence produced sufficed to find the applicant guilty on each charge. It concluded that there had not been enough evidence to find the applicant guilty of the first charge, namely conspiring with others to deal in drugs. It confirmed the previous findings as to the remainder of the charges. It therefore reduced the sentence to nine years’ imprisonment and maintained the fine.
On an unspecified date the applicant contested the fairness of these proceedings before the constitutional jurisdictions, invoking inter alia, Articles 6 and 14 of the Convention.
On 5 July 2005 the Civil Court (First Hall) found against the applicant.
On 27 April 2006 the Constitutional Court rejected the applicant’s appeal. It held that the discretionary power exercised by the prosecutor had not prevented the applicant from having a fair trial in accordance with Article 6 of the Convention. Furthermore, the applicant and X could not be considered as persons in the same situation, and thus no issue arose under Article 14.
On an unspecified date the applicant instituted proceedings before the constitutional jurisdictions alleging violation of Article 6 §§ 1 and 2, and Article 2 of Protocol No. 7 to the Convention in respect of his criminal proceedings. He complained that his right to silence had been violated. The fact that the applicant had not made a statement before the trial began had been taken into consideration in assessing his credibility. Moreover, his silence in reply to questions put by a magistrate during an interview while the applicant was in hospital, and after having been warned that proceedings could be taken against him, had also been considered from the standpoint of his credibility. In both instances the applicant had not been assisted by a lawyer. He further complained that his right to be presumed innocent had been breached since the Criminal Court of Appeal declined to interfere with the conclusions reached by the trial court unless they were deemed unreasonable. This was tantamount to an assumption of guilt during the appeal proceedings. Similarly, such reasoning had violated his right of appeal, rendering it ineffective and incompatible with Maltese law and Article 2 of Protocol No. 7 to the Convention.
On 16 May 2006 the Civil Court (First Hall) rejected the applicant’s complaints. As to Article 6, having reviewed the procedure followed throughout the proceedings, the court held that the applicant had not been denied a fair trial. It further found that the complaint under Article 2 of Protocol No. 7, regarding the quality of the review by the Court of Appeal, was ill-founded. The appeal court had in effect reviewed the evidence and varied the sentence, finding the applicant guilty of only two of the three brought against him.
On 3 November 2006 the Constitutional Court, although objecting to the way the appeal had been submitted, confirmed the first-instance judgment.
Section 501 (1) of the Maltese Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, reads as follows:
(1) On any appeal against conviction by the person convicted, the Court of Criminal Appeal shall allow the appeal -
(a) if it considers that the appellant has been wrongly convicted on the facts of the case; or
(b) if it considers that there has been an irregularity during the proceedings, or a wrong interpretation or application of the law, which could have had a bearing on the verdict:
Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal under paragraph (b) might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
Section 22 (2) of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, in so far as relevant, reads as follows:
“Every person charged with an offence against this Ordinance shall be tried before the Criminal Court or before the Court of Magistrates (Malta) or the Court of Magistrates (Gozo), as the Attorney General may direct, ...”
Under that provision, the maximum punishment before the Criminal Court may vary between four years and life imprisonment, whereas that before the Court of Magistrates varies between six months and ten years.


ITEMID: 001-87416
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SUDARKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 13 - Right to an effective remedy;Violation of Article 3 - Prohibition of torture (Substantive aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1949 and lives in the town of Mineralniye Vody in the Stavropol Region.
8. On 12 May 2000 the applicant was arrested and charged with passing counterfeit money. His detention was extended a number of times.
9. The applicant was committed to stand trial before the Gagarinskiy District Court of Moscow. According to the applicant, he was brought from the detention facility a number of times to the Gagarinskiy District Court to take part in trial hearings. On the day of a court session he was allegedly woken up at 5 or 6 a.m. and taken to a small room on the ground floor of the detention facility where he remained for several hours. The room was cold in winter. It was dirty and poorly lit. At about 11 a.m. the transportation of inmates to the courthouse began. Inmates were placed in an overcrowded van and transported in inhuman conditions for many hours; the van called in on the way at several courthouses until the inmates reached their destination. Throughout the entire day inmates, including the applicant, received no food.
10. On 5 April 2002 the Gagarinskiy District Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment.
11. The applicant appealed, alleging that the trial court had incorrectly assessed the facts and applied the law, that it had not thoroughly examined the case, and that his case should have been tried in another court having territorial jurisdiction.
12. On 28 August 2002 the Moscow City Court upheld the judgment, endorsing the reasons given by the District Court.
13. From 22 May 2000 to 6 September 2002 the applicant was detained in facilities nos. IZ-77/2 (commonly known as “Butyrka”) and IZ-77/3 (also known as “Krasnaya Presnya”) in Moscow.
14. According to certificates issued on 12 January 2006 by the director of the facility and produced by the Government, the applicant was kept in four different cells. From 22 May to 8 June 2000 and from 27 July 2000 to 17 April 2001 he stayed in cell no. 144 which measured 56.4 square metres and housed on average 48 inmates. From 8 June to 27 July 2000 he was kept in cell no. 129 which measured 13.8 square metres and accommodated six detainees. From 17 April 2001 to 7 April 2002 the applicant remained in cell no. 94 measuring 58.7 square metres. The average occupancy rate in that cell was 48 detainees. After 7 April 2002 he was kept in cell no. 137 with 51 inmates. Cell no. 137 measured 55.9 square metres. The Government supported their assertions with copies of extracts from registration logs showing the number of detainees on 23 May, 9 June and 28 July 2000 and 17 April 2001 and 11 April 2002.
The Government, relying on the certificates of 12 January 2006, further submitted that the applicant had had an individual bunk and bedding at all times.
15. The applicant did not dispute the cell measurements. However, he alleged that the bigger cells had had thirty-two sleeping places. Furthermore, the cell population changed two or three times a week. There were usually from 60 to 80 inmates in the bigger cells. Given the lack of beds, inmates had slept in shifts. No bedding or blankets were provided.
16. The Government, relying on the information provided by the director of the facility, submitted that the cells received natural light and ventilation through large windows, which were glazed and measured 2.5 metres in width and 1.15 metres in height. The windows were covered with metal shutters which were removed after November 2002. The cells also had an artificial ventilation system. The average temperature in the cells was between 20 and 28 degrees Celsius in summer and between 19 and 24 degrees Celsius in winter. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a one-and-a half-metre-high concrete wall. Inmates were allowed to take a shower once a week. The cells were disinfected once a week. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. The applicant did not make any complaints about the state of his health and did not ask for particular medical services.
17. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The cells were infected with bed-bugs and lice but the administration did not provide any insecticides. It was extremely cold in the cells. The windows were not glazed and were covered with metal blinds which blocked access to natural light and air. The applicant pointed out that the Government did not dispute that the blinds had only been removed sometime after November 2002, that is after his detention in that facility had come to an end. He further submitted that the lavatory pan had been separated from the living area by a one-metre-high wall, thus affording no privacy to inmates. The food was of poor quality and in scarce supply. The applicant noted that the certificates provided by the Government could only attest to the sanitary conditions in the facility in January 2006, when the director of the facility had issued them.
18. The applicant alleged that detention facility no. IZ-77/2 had been under the rule of so-called “legitimised thieves” («воры в законе»). Each cell had an “overseer” («смотрящий»). If a detainee wanted to complain about poor detention conditions or unlawful actions of the administration he had to obtain permission from an “overseer”. Only collective complaints initiated by “legitimised thieves” were allowed. The applicant further submitted that he had been unable to complain to the facility administration because he would have been subjected to a punishment. The administration could start transferring him to a new cell every second day, as had happened to other detainees. In that way he would have been completely deprived of sleep because he would have lost his place in the “sleeping queue”.
19. The Government submitted a certificate issued by the facility director on 12 January 2006. The certificate read as follows:
“[I] inform you that in detention facility no. IZ-77/2 in Moscow individuals, who reckon themselves to be so-called “legitimised thieves”, do not control complaints lodged by detainees.”
20. On 23 April 2002 the applicant was transferred to facility no. IZ-77/3 where he remained until 6 September 2002. He was placed in cell no. 217, measuring 21.1 square metres.
21. The Government, relying on a certificate issued by the director of the facility on 11 January 2006, argued that the cell housed from five to eight detainees in the period from 12 June to 6 September 2002. They also provided extracts from registration logs showing the number of detainees on 21 June 2002. As follows from the extracts, there were seven inmates in cell no. 217. The Government further submitted that the information on the number of inmates in cell no. 217 in the period from 23 April to 12 June 2002 was not available. The Government provided a description of the conditions of the applicant’s detention in facility no. IZ-77/3, which was similar to the description of the conditions in facility no. IZ-77/2 except for one aspect: the cell windows measured 0.89 metres in width and 0.94 metres in height.
22. The applicant submitted that the sanitary conditions of his detention in facility no. IZ-77/3 had been slightly better than those in facility no. IZ-77/2. However, the cells were still severely overcrowded; he was afforded less than one square metre of personal space, and he did not have an individual sleeping place. Inmates had no privacy as the lavatory pan was not separated from the living area. The cell was infested with insects and food was very scarce.
23. On 6 September 2002 the applicant’s journey from detention facility no. IZ-77/3 in Moscow to a correctional colony in the Stavropol Region began. On the following day he arrived in Voronezh where he was placed into a “transit” remand centre. On 8 September 2002 the applicant was put on another train heading to a “transit” remand centre in Volgograd where he arrived on the following day. He remained in the Volgograd “transit” centre until 27 September 2002 when he was taken by train to Pyatigorsk. In Pyatigorsk the applicant was also detained in a “transit” remand centre. On 9 October 2002 he was placed on a train and taken to the correctional colony in the Stavropol Region where he arrived on the same day.
24. The Government, relying on certificates issued in January 2006 by various officials of the Federal Service for Execution of Sentences, submitted that the applicant had been transported in a special security compartment in a train carriage. Before being placed on the train he was body searched. The Government further noted that during his trip from Moscow to Voronezh the applicant was detained with ten other inmates in compartment no. 5. The Government did not indicate the measurements of the compartment and submitted that itineraries and other documents pertaining to the conditions of the applicant’s transport had been destroyed.
25. The applicant argued that he had been transported with 12 to 15 detainees in a four-seat train compartment measuring 1.8 metres in length and 1.6 metres in width. Inmates were allowed to use a toilet once or twice a day. Sometimes they had to urinate in plastic bottles.
26. On 9 September 2002 the applicant arrived at the Volgograd “transit” remand centre. The Government, relying on certificates issued by the facility director in June 2006 and written statements by warders drawn up in June 2006, submitted that on 9 September 2002 the applicant had been placed in cell no. 2 which measured 18.1 square metres. The cell had four sleeping places. The number of inmates corresponded to the number of bunks. The Government noted that registration logs bearing names and placement of detainees had been destroyed on 5 June 2006. They further submitted that on 10 September 2002 the applicant had complained to a warder of pain in the right ankle. He was taken to the prison hospital where, following an X-ray examination, he was diagnosed with an ankle fracture. Until 24 September 2002 he remained in a hospital cell, measuring 19.4 square metres and accommodating four detainees. The Government gave a detailed description of the treatment the applicant had been provided with, including the type of medical procedures and medicine, dose and frequency. On 24 September 2002 the applicant was transferred back to the “transit” centre and again placed in cell no. 2. The Government further submitted that the applicant had had an individual sleeping place and had been provided with bedding. The food complied with sanitary norms.
27. According to the applicant, he was placed in cell no. 2, measuring approximately 18 square metres and having 12 sleeping places. The cell housed 32 inmates. There were so many inmates that they even had to take turns to sleep on the concrete floor. The cell was located in the basement and had a small window on the ground level. There was no fresh air and the cell was very dark. There was a bucket in the corner which doubled a lavatory pan. There were lice and other insects in the cell. The applicant argued that he had remained in cell no. 2 until 12 September when, after complaints of severe pain in the right ankle, he was taken to the hospital. The applicant alleged that after a doctor had put his leg in a plaster cast he had been taken back to the “transit” remand centre and placed in cell no. 2.
28. The applicant did not make separate complaints pertaining to the conditions of his detention in other “transit” remand centres.
29. . Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
30. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-91038
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KOMYAKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Stanislav Borisovich Komyakov, is a Russian national, who was born in 1955 and lives in Ivanovo. He was represented by Ms O. Mikhailova, a lawyer practising in Moscow. The respondent Government were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 October 2000 the applicant was arrested on suspicion of murder of a police officer and attempted murder of several other persons. Later the police started suspecting him of theft.
On 3 October 2000 the Zavolzhsk District Assistant Prosecutor ordered that the applicant be remanded in custody in pre-trial detention centre no. 1 in Ivanovo. On 10 October 2000 the applicant was charged with aggravated theft under Article 158 point 3 “b” of the Criminal Code.
On 29 November 2000 the Ivanovo Regional Prosecutor extended the applicant's detention until 31 March 2001. On 29 March 2001 the prison administration informed the applicant that his detention had been extended until 17 June 2001.
On an unspecified date the applicant filed an application for release with the court alleging, inter alia, that he had been seriously ill. On 29 January 2001 his application was dismissed by the Ivanovo Oktyabrskiy District Court by reference to Article 98 of the Criminal Procedure Code. The court found that the gravity of the offences alleged against him was a sufficient ground for his detention. On 20 February 2001 the Ivanovo Regional Court upheld that decision, adding that the applicant had been arrested only four months after he had been released after having served a previous sentence. The Regional Court also noted that at that stage of the proceedings it was not called upon to examine the validity of proof of the applicant's guilt.
On 15 June 2001 the General Prosecutor extended the applicant's detention until 29 September 2001. The applicant was informed about that decision on 19 June 2001. The letter from the General Prosecutor's Office did not contain any reasons for extending his detention. On 7 June 2001 the Deputy Prosecutor of the Ivanovo Region, in response to a letter from the applicant, informed him that his detention had been extended on the basis of the strength of the evidence in the case-file, his personality, and age. The prosecutor also relied on Article 98 of the Code of Criminal Procedure (CAP), which enabled the prosecution to place the suspect in custody on the sole ground of the gravity of the charges against him (see the “Relevant domestic law” part below).
On an unspecified date the applicant challenged the prosecutor's letter of 7 June 2001 before a court. On 5 November 2001 the Ivanovo Oktyabrsky District Court established that Article 98 of CPC, referred to by the prosecutor, had been abrogated on 9 March 2001. However, the court did not order the applicant's release.
The applicant submitted a new application for release. On 8 November 2001 the Ivanovo Oktyabrsky District Court dismissed it, relying on the gravity of charges against the applicant and his previous convictions. That decision was upheld by the Ivanovo Regional Court on 27 November 2001. The applicant submits that those decisions were taken in his absence.
On 24 September 2001 the General Prosecutor extended the applicant's detention until 29 December 2001. On 1 October 2001 the applicant was informed about that decision. The letter from the General Prosecutor's Office did not contain any reason for taking the decision.
According to the Government, on 29 December 2001 the applicant was released under an obligation not to leave the city without permission from the prosecution.
On 10 June 2002 the applicant was fully acquitted by the jury of the Ivanovo Regional Court. On 26 November 2002 that decision was upheld by the Supreme Court of the Russian Federation.
On 6 March 2001 the newspaper “News World” published an article describing the circumstances of the applicant's arrest and detention. The applicant was mentioned in this article as an accomplice to a serious crime. The article contained an interview with an anonymous officer of the Organised Crime Department of the Ministry of the Interior. It remains unclear whether the applicant has ever applied to the domestic courts for redress and what the outcome of the proceedings was, if any.
The Civil Code of the Russian Federation provides as follows:
“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ... ”
“Compensation for non-pecuniary damage shall be made irrespective of the fault of the person causing the damage when:
...the damage is caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, unlawful detention on remand ....”
The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeaser. However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by the unlawful acts of law-enforcement agencies. Point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given ...”. These words, as well as the subsequent judicial practice, suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” at the outset. Therefore, if there was an acquittal, pre-trial detention would be “unlawful” even if all the substantive and procedural rules were complied with when it was imposed.
Under the new Code of Criminal Proceedings (CCrP), in force as from 1 July 2002, the acquitted person has the right to compensation for pecuniary (Article 135 of the Code) and non-pecuniary damage (Article 136) caused by prosecution (Article 133 § 1) and unlawful application of measures of restraint, including pre-trial detention (Article 133 § 3). Under Article 136 of the CCrP, if information about the arrest or prosecution of a person was made public in the media, the acquitted person, his relatives, or a public prosecutor may request the publication of a retraction by the same medium.


ITEMID: 001-103573
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: AGRO-B SPOL. S R.O. v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
TEXT: The applicant, Agro-B, spol. s r.o. is a Czech company with its seat in Kardašova Řečice. It was represented before the Court by Ms S. Sobolová, a lawyer practising in Prague. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 December 1999 the applicant company created a joint stock company “AGRO-D, a.s.” which was entered in the Companies Register on 4 January 2000. On 25 January 2000 the applicant company affirmed to invest its real estate, the value of which was estimated at CZK 34,509,880 (EUR 1,225,117), as a non-cash investment in the joint stock company’s capital. The value of its investment was divided, for the purposes of accounting, into three parts, when CZK 10,000,000 (EUR 355,050) was booked as a registered capital (základní kapitál), CZK 2,000,000 (EUR 71,000) as a guarantee fund (rezervní fond) and the remaining part of CZK 22,509,880 (EUR 799,111) was placed on other capital funds.
On 12 July 2001 the Jindřichův Hradec Finance Office (finanční úřad) levied on the applicant company real estate transfer tax of CZK 1,246,220 (EUR 44,241), the base of assessment being fixed at CZK 24,924,400 (EUR 885,005), calculated from the value of the immovable property which had not been booked as a registered capital.
On 1 March 2002 the České Budějovice Finance Department (finanční ředitelství) dismissed the applicant company’s appeal on the following grounds:
“Under section 20(6)(e) investment into companies or cooperatives shall be exempted from payment of gift tax and real estate transfer tax under the relevant legal provisions, i.e. the Second Part of the Commercial Code, which does not recognise any other investment than that in the registered capital, in contrast to the book-keeping procedure ... Moreover, it is clear from section 60(1) of the Taxation Act concerning the management of investments made prior to the creation of a company, that only investments into the company’s registered capital are to be considered as investments into the company ...
Bearing in mind that the [Taxation Act] exempts from payment of tax only investments into the company, using the term of ‘investment’ as defined in the Commercial Code, the exemption only concerns those investments which increase the company’s registered capital. Other investments ... which do not increase the registered capital are liable to real estate transfer tax. ...
It is to be added that e.g. the Ústí nad Labem Regional Court in its judgment no. 15 Ca 671/97-18 and the Constitutional Court in its decision no. III. ÚS 31/2000 affirmed that an investment ... within the meaning of section 20(6)(e) of the Taxation Act is an investment to the registered capital.”
On 17 July 2002 the České Budějovice Regional Court (krajský soud) dismissed the applicant company’s administrative action against the tax order finding, in particular, that since the applicant company had invested to the joint stock company the immovable property in its entirety and not its part corresponding to the joint stock company’s registered capital, the difference between the total value of the invested property and the value of the property invested to the registered capital had constituted the base for the real estate transfer tax. Applying systematic and teleological interpretation it concluded that section 20(6)(e) of the Taxation Act covered only investments that increased the registered capital. The court further held that the fact that the joint stock company could not have the registered capital at its disposal - contrary to its other assets – was precisely taken into account in the tax assessment. The court found irrelevant the applicant company’s reference to section 163a of the Commercial Code that the transfer of immovable property to a joint stock company differed from the same operation involving other companies.
In its judgment, the Regional Court made reference to the Constitutional Court’s judgment no. III. ÚS 31/2000 of 18 May 2000.
On 4 October 2002 the applicant company lodged a constitutional appeal (ústavní stížnost) alleging a violation of Articles 2 § 2, 11 § 5, 26 § 1 and 36 §§ 1 and 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).
On 23 June 2004 the Constitutional Court (Ústavní soud) dismissed the appeal, endorsing the reasons on which the administrative and judicial authorities had based their decisions. It referred to the Ministry of Finance’s opinion which read, inter alia, as follows:
“The Director of the Department of Real Estate Tax of the Ministry of Finance, upon the Constitutional Court’s request, submitted that the interpretation of sections 58 and 59 of the Commercial Code may allow a conclusion that the term of investment means property of a partner which he or she undertakes to invest in the company ... The total of the company’s partners’ monetary and non-monetary investments constitutes the registered capital which, in terms of book-keeping, is an accounting debit. Precisely, it is the partners’ real estate invested in the company, forming, after the transfer of the ownership, the registered capital, which constitutes the investment under section 20(6)(e) of the Taxation Act .... The Ministry of Finance is therefore of the opinion that the investment into the company which was exempted from payment of real estate transfer tax under the Taxation Act [then in force] was only the investment valuably expressed in the registered capital. ...
The Ministry also referred to the ... opinion of certain courts, e.g. judgments of the Prague Municipal Court no. 28 Ca 362-97-44, of the Ústí nad Labem Regional Court no. 15 Ca 671/97, of the Ostrava Regional Court no. 22 Ca 230/2001-26, the Brno Regional Court no. 29 Ca 525/2000-39 which are published in ASPI, or in professional bulletins ... The Constitutional Court adopted a concordant opinion in its decisions no. III. ÚS 31/2000 and no. II. ÚS 184/2000. According to the Ministry, the tax legislation and its interpretation is accessible to the public, clearly defined and consistent, and so foreseeable.”
The Constitutional Court held that the imposition of tax was in conformity with the Constitution as it was based on the law. It further held that having carefully reasoned their decisions, it could not be said that the fiscal authorities had applied the law arbitrarily. The court found irrelevant the applicant company’s reference to section 163a of the Commercial Code that the taxation regime applicable to joint stock companies differed from that which applied to limited liability companies.
Under section 9(1)(a) real estate transfer tax is payable on the transfer of an estate carried out in return for payment.
Section 10a provides that the real estate transfer tax base is the price established under the relevant legal provisions on the day of the acquisition of the estate, even if the price agreed between the parties is lower than the legally established price.
Section 20(6)(e) provided, inter alia, that investments into companies or cooperatives under a special law, i.e. the Second Part of the Commercial Code, shall be exempted from payment of gift tax and real estate transfer tax.
Section 20(6)(e) provides, inter alia, that investments into the registered capital of companies or cooperatives under a special law, i.e. the Second Part of the Commercial Code, shall be exempted from payment of gift tax and real estate transfer tax.
Section 58 provides, inter alia, that a company’s registered capital consists of the total of its partners’ monetary and non-monetary investments in the registered capital.
Under section 59(1), a partner’s investment in the company shall be the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company.
Section 60(1) provides, inter alia, that ownership title to real estate is acquired by the company upon the recording of the ownership title in the Land Registry on the basis of a written declaration by the party concerned, to which are appended officially authenticated signatures.
Under section 163a(1) the issue price of a share is the sum at which a company issued shares. The issue price cannot be lower than the nominal value of a share. The second paragraph provides, inter alia, that if the issue price of a share is higher than its nominal value, the difference constitutes a share premium. Under the third paragraph, the difference between the value of non-monetary investment and the nominal value of shares which are to be issued to the shareholder as consideration, is considered as a share premium, providing that the company’s statute, articles of association or a decision of the general meeting do not specify that that difference or part thereof is to be paid to the subscriber, or, that it is to be considered as a guarantee fund.
The court held that if the claimant’s investment had not been intended to increase the company’s registered capital, it could not be considered as an investment within the meaning of section 20(6)(e) of the Taxation Act.
The court held that only investments that increase a company’s registered capital are exempt from payment of tax under section 20(6)(e) of the Taxation Act.
The court stated that section 59(1) of the Commercial Code defines the investment of a partner as the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company. The registered capital is then defined as the total of the partners’ monetary and non-monetary investments in the registered capital. Section 20(6)(e) of the Taxation Act exempts from payment of gift tax investments into companies or cooperatives under the relevant legal provisions, i.e. the Second Part of the Commercial Code. It follows that the Commercial Code does not provide for any other investment than that into the registered capital, contrary to accounting rules. Taking into account that the Taxation Act exempts from payment of taxes only investments into a company when using the term of investment as defined by the Commercial Code, the exemption applies only to the investments which increase the company’s registered capital.
The court held that the terminology used by the legislator in section 20(6)(e) of the Commercial Code was not equivocal. The legislator used the term of non-monetary investment, which can only be exempted from payment of tax, in meaning both the investment of a partner and, at the same time, the whole substance of the investment, i.e. not only the part which constitutes the partner’s investment but also the part which was considered as a share premium. The Taxation Act had not specified, until 1 June 2001, which of the two meanings of the investment had to be used by section 20(6)(e).
The court found in relation to litigation prior to the change in June 2001 that the exemption from payment of real estate transfer tax only applied to an investment into the registered capital of a company. In that case, the real estate transfer tax will not be levied.
The court, applying the version in force before June 2001, found that the exemption from payment of real estate transfer tax only applied to investment into a company within the meaning of the Commercial Code. Only those investments which were to increase the registered capital could be exempted from payment of real estate transfer tax. Investments which did not increase the registered capital are liable to tax.
The domestic courts held that real estate transfer tax had to be paid on investments into companies that did not form part of the registered capital.


ITEMID: 001-106771
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SHARIPOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3 (in case of extradition to Kazakhstan)
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1982 and lives in Kaluga.
7. The applicant submitted two medical documents issued on 18 December 2000 and 27 March 2002 in Kazakhstan, stating that he was suffering from non-osteogenic fibroma of the bones, a condition causing tumours.
8. On 16 November 2006 the Almaty Department for Economic Crimes and Corruption of the Republic of Kazakhstan launched a criminal case against the applicant for fraud.
9. By a decision of 7 February 2007 the authorities issued an arrest warrant in respect of the applicant, which was authorised by the prosecutor on 7 March 2007.
10. On 16 February 2007 the applicant was charged with fraud, and on 4 April 2007 he was placed on the international wanted list.
11. In April or May 2007 the applicant moved to Russia.
12. On 9 June 2009 the applicant was detained as a wanted person in Kaluga.
13. On 10 June 2009 he was questioned by the prosecutor’s office of the Kaluga Region. The applicant stated that he had arrived in Russia in September 2007 as a visitor and had subsequently learned of the criminal proceedings initiated against him in Kazakhstan. He had decided not to return to Kazakhstan to avoid criminal prosecution. According to the Government, the applicant had not indicated any fear of ill-treatment or torture in Kazakhstan and had assumed that he was not a victim of political persecution. The Government did not provide a copy of the record of the interview.
14. By a decision of 10 June 2009 the Kaluga District Court, Kaluga Region, remanded the applicant in custody pending extradition. Subsequently, the detention period was extended on several occasions.
15. On 16 July 2009 the Prosecutor General’s office of the Republic of Kazakhstan requested the applicant’s extradition pending criminal charges against him. The request contained assurances that the applicant would not be extradited to a third state without the consent of the Russian Federation, nor would he be held criminally liable for a different crime committed before his extradition, that upon termination of the trial proceedings and completion of any criminal sentence the applicant would be free to leave Kazakhstan and that the charges against the applicant were of a common criminal nature and he would not be discriminated against on any ground.
16. On 30 December 2009 the Russian Prosecutor General’s Office ordered the applicant’s extradition.
17. On an unspecified date the prosecutor’s office of the Kaluga Region investigated the applicant’s allegations of lack of proper medical treatment while in detention. In its conclusion issued on 14 January 2010 it stated that during his detention in Russia the applicant had been examined by medical professionals on numerous occasions, including in connection with his tumour condition. There had been no deterioration in his condition during the detention, and the medical documents supplied had served as proof that the necessary medical treatment would be available to the applicant in Kazakhstan.
18. On 29 January 2010 the applicant’s representative challenged the extradition order.
19. On 19 February 2010 the Prosecutor General’s office of Kazakhstan submitted an additional letter to the Prosecutor General’s office of the Russian Federation, containing further assurances in respect of the applicant. In particular, it referred to the ratification by Kazakhstan on 24 April 2005 of the United Nations International Covenant on Civil and Political Rights, prohibiting, among other things, torture, inhuman and degrading treatment and punishment. The author of the letter pledged that, irrespective of the fact that Kazakhstan was not a party to the European Convention on Human Rights, it would ensure the rights guaranteed to the applicant by Articles 2, 3, 5, 6, 7, 13 and 14 of the Convention. Finally, the letter assured that the applicant would be detained in compliance with the Detention Act of 30 March 1999 and would be provided with medical aid, if necessary.
20. On 24 February 2010 the Kaluga Regional Court rejected the applicant’s complaint against the extradition order. It noted, inter alia, that the applicant’s extradition would not violate the European Convention, as the applicant was being prosecuted for a common crime and there was nothing to suggest that he would be subject to torture, inhuman treatment or lack of adequate medical treatment in Kazakhstan. It further considered that none of the medical documents provided demonstrated that the applicant had an illness which precluded him from being detained or extradited. It also relied on the assurances given by the Prosecutor General’s Office of Kazakhstan.
21. By a decision of 22 April 2010 the Supreme Court of Russia upheld that decision on appeal. The appeal decision essentially repeated the reasoning of the lower court.
22. On 7 April 2010 the President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Russian Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Kazakhstan for the duration of the proceedings before the Court. The case was also granted priority under Rule 41 of the Rules of Court.
23. On 18 August 2009 the Federal Migration Service office of the Kaluga Region rejected the applicant’s application for refugee status after analysing his arguments in accordance with the Refugees Act and concluding that the applicant did not have any grounds to fear persecution if he returned to Kazakhstan. By a decision of 10 December 2009 the Kaluga Regional Court upheld this decision on appeal in final instance.
24. On 4 December 2009 the same office refused to accept the applicant’s application for Russian citizenship, referring to the criminal charges against him in Kazakhstan.
25. Finally, on 18 January 2010 the same office refused the applicant’s request for asylum in Russia. On 1 April 2010 the Kaluga Regional Court upheld the decision on appeal at the final level of jurisdiction.
26. Everyone has the right to liberty and security (Article 22 § 1). Arrest, remand in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2).
The relevant international legal material is summarised in the case of Dzhaksybergenov v. Ukraine, no. 12343/10, §§ 25-29, 10 February 2011.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-82614
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STEVANOVIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
TEXT: 4. The applicant was born in 1954 and lives in Belgrade.
5. In 1992 the applicant was dismissed from the job which he held in a local construction company.
6. On 16 June 1992 he filed a claim with the Third Municipal Court in Belgrade (Treći opštinski sud u Beogradu), seeking reinstatement.
7. On 16 June 1993 the Third Municipal Court ruled in favour of the applicant.
8. On 22 September 1993 the District Court in Belgrade (Okružni sud u Beogradu) quashed this judgment and ordered a retrial.
9. From 23 December 1993 to 15 September 1999, the Third Municipal Court ruled in favour of the applicant on six separate occasions, but each time the District Court quashed those judgments on appeal and ordered a retrial.
10. On 10 November 2000 the Third Municipal Court again ruled in favour of the applicant. It also ordered the respondent company to reinstate him until the adoption of a final decision in the proceedings.
11. On 17 August 2001 the District Court quashed this judgment and ordered a retrial.
12. On 22 February 2002 the Third Municipal Court revoked its provisional reinstatement order of 10 November 2000.
13. On 28 September 2004 the applicant requested his salary arrears.
14. At the hearing held on 8 October 2004, the applicant complained about the delay and sought the removal of the presiding judge.
15. On 18 October 2004 the President of the Third Municipal Court rejected the applicant's request.
16. On 4 February 2005 the applicant apparently failed to appear at the hearing scheduled for that date.
17. On 30 May 2005 the Third Municipal Court invited the parties to take part in a mediation procedure and suspended the reinstatement suit.
18. On 29 November 2005 a mediator was appointed.
19. By April 2006, five mediation hearings were scheduled and/or adjourned.
20. On 2 June 2006 the entire case file was apparently forwarded to respondent State's Agent.
21. On 17 June 2004 and in respect of the above proceedings, the applicant filed a separate civil claim against the State Union of Serbia and Montenegro, seeking compensation for the breach of his “right to a fair trial within a reasonable time, as guaranteed under Article 6 of the Convention”.
22. On 6 December 2005 the First Municipal Court in Belgrade (Prvi opštinski sud u Beogradu) rejected the applicant's claim as inadmissible.
23. On 24 July 2006 the District Court in Belgrade quashed this decision on appeal and ordered a retrial. In its reasoning, inter alia, it recognised the applicant's right to have his labour case resolved within a reasonable time and referred to Article 6 of the Convention as legally binding. Finally, the District Court noted that as of 3 June 2006 Serbia was the sole successor of the former State Union of Serbia and Montenegro, meaning that there were no procedural obstacles for the continuation of the applicant's case.
24. On 2 October 2006 the First Municipal Court suspended the proceedings, stating that the State Union of Serbia and Montenegro had ceased to exist in the meantime. Although he was entitled to file an appeal against this decision, there is no evidence in the case file that the applicant actually did so.
25. In accordance with the Third Municipal Court's order of 10 November 2000, on 6 March 2001 the respondent company reinstated the applicant (see paragraph 10 above).
26. The applicant maintained that the respondent company had in the meantime encountered serious financial difficulties, which is why it was “no longer able to pay its employees” and was “under threat” of being “declared insolvent”.
27. On an unspecified date the Supreme Court (Vrhovni sud Srbije) apparently instituted proceedings to have the presiding judge in charge of the reinstatement case removed from the bench (razrešen).
28. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007).
29. Article 122 § 3 provided that all employment-related disputes were to be resolved by the courts within a period of 6 months from the date of institution of the proceedings.
30. This Act entered into force on 23 March 2005 and thereby repealed the Labour Act of 2001.
31. The text of Article 195 § 3 of the Labour Act of 2005 corresponds to the aforementioned Article 122 § 3 of the Labour Act of 2001.
32. Article 5 and Articles 30-37 of this Act provide, inter alia, that a reinstatement case may be resolved by a State-appointed arbitrator. Such proceedings, however, may only be instituted with the consent of both parties and must be concluded within a period of thirty days as of the date of the initial hearing.
33. Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90) provided as follows:
“Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law.
Such damages shall be covered by the Republic of Serbia or the public authority [in question].”
34. This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06), entered into force.
35. The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of Article 25 of the previous Constitution.
36. Article 243 of this Code defines “judicial malfeasance” (kršenje zakona od strane sudije) as a separate criminal offence.
37. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107530
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF JOHN ANTHONY MIZZI v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - award
JUDGES: David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1925 and lives in Malta.
7. The applicant is a journalist. On 20 February 1994 The Sunday Times of Malta, a national English language newspaper (“The Times”) published the applicant’s letter to the editor entitled “A Yacht Marina for Xemxija?”
The letter, in so far as relevant, read as follows:
“Dr Francis Zammit Dimech, Minister of Transport, has been quoted as saying that a yacht marina is being projected for Xemxija, the inner part of St. Paul’s bay.
The residents of the seaside village, permanent and occasional, and the fishermen, have not been consulted over what will be an impractical and highly unpopular attempt to bring about further havoc in the area.
After the war, during the administration of Dr Boffa, permission was given for buildings to be erected on the northern part of the bay because Dr Boffa wanted to build there, and now this has erupted into a conglomeration of high and low-rise constructions of grotesque proportions.
Then came the oil tanks and it was quite a relief later to see those go. There was some idea to develop Mistra and one hopes this has evaporated. Now comes this new idea of a marina at Xemxija.
When the breakwater at Tal-Veccja was extended, the currents in the bay were diverted so that now silt has settled along the stretch by the West End Hotel. Similarly, any breakwater in the bay will further alter the currents. The residents will not welcome the intrusion of yachtsmen and are wondering whether the back up facilities will go.
A proper study of the storms in the bay in winter will certainly show though how impractical it is to build a large marina at Xemxija. Besides, one can imagine yachtsman with pegs to their noses from the stench from the drainage outflow which is such a feature of St. Paul’s Bay where the authorities have continually botched the system.
Why don’t they try Salina, which is a more sheltered and more practical marina – if in fact there is need for another marina?”
8. On an unspecified date, Mr J. Boffa, the son and heir of the deceased Sir Paul Boffa referred to in the letter (who was Prime Minister of Malta and Head of Government in the post-war era of 1947-50 and who died in 1962), sued the applicant for civil damages, claiming that the letter was defamatory. He argued that the words “Dr Boffa wanted to build there” attributed false and despicable intentions to his father.
9. The applicant pleaded that the action should be dismissed on the ground that a deceased person cannot sue for libel. By a preliminary judgment of 28 June 1996 the Civil Court dismissed this preliminary plea. This preliminary decision was upheld by the Court of Appeal on 7 October 1997.
10. The applicant contended, on the merits, that his letter had not stated that Sir Paul Boffa had wanted to build for himself in the specified area. His statement had referred to Sir Paul Boffa’s decision, acting in his role as Prime Minister of the country, to build in the area. Moreover, the letter was not injurious and there had been no mischievous intent, “animus injuriandi”, on the part of the applicant, who was also a family friend of the Boffas.
11. By a judgment of 21 October 2002 the Civil Court found the letter to be defamatory vis-à-vis Sir Paul Boffa and ordered the applicant to pay Joseph Boffa 700 euros (EUR). It reiterated that a person may have a legal interest even if he or she was not the person to have been defamed, and it threw out the applicant’s explanation of the impugned phrase for the following reasons: from the evidence submitted it transpired that the area close to the Church in Xemxija was indeed a development zone; however, no date could be established as to when the land had been earmarked for such purpose. It further appeared that a company had submitted an application to acquire (tehid) land in Mistra to erect a bulk storage installation for petroleum products. It followed logically, according to the reasoning of the Civil Court, that the applicant had meant that the issuing of building permits during Sir Paul Boffa’s administration had been dependent on his will to build there (on the northern side of the bay of Xemxija), personally. This was the meaning which would have been understood by any ordinary right-thinking person. However, the applicant had not been able to prove that any such permits had been issued, or that Sir Paul Boffa had wanted to build there. Thus, since the allegations were untrue, and the applicant had not proved any basis for such an allegation, mischievous intent was presumed.
12. The judgment was upheld by the Court of Appeal on 21 June 2005. It reiterated that the statement “during the administration of Dr Boffa, permission was given for buildings to be erected on the northern part of the bay because Dr Boffa wanted to build there” was defamatory as it implied that Dr Boffa had taken advantage of his position as head of the civil administration to build in an area for which planning permission had not previously been granted. This was what a reasonable person would have understood. However, Mr Boffa had proved that his father never owned property in the said area. The Court of Appeal further noted that the applicant had failed to publish any correction or apology after becoming aware that Mr Boffa had suffered from the defamation caused by the publication.
13. The applicant instituted constitutional redress proceedings claiming that there had been a violation of his rights under Articles 6 and 10 of the Convention.
14. On 18 November 2008 the Civil Court, in its constitutional jurisdiction, dismissed his claims on the merits. It considered the evidence produced by the applicant, namely a letter from the editor of The Times which explained the reasons why he disagreed with the court judgment of 21 June 2005, the witness testimony declaring that the relevant area was a building site, his research documents and his statement that he had never referred to Dr Boffa’s wish to build for himself personally. It considered, firstly, that according to established domestic and continental jurisprudence, a descendant of a defamed person did have a right of action. It reiterated the lower courts’ findings in relation to the animus injuriandi and confirmed that their decision based on the finding that the applicant’s statement had been untrue could not be considered to be repressive. It held that an ordinary reader would have definitely understood the applicant’s statement to refer to Dr Boffa’s wish to build there personally and thus did cause harm to his reputation. Moreover, the concept of “necessary in a democratic society” did not entail the publishing of falsehoods. As to Article 6, it held that according to the European Court’s case-law, the right to a fair trial did not extend to the failure to cross-examine persons who had not given testimony and whose interests were being represented by the heirs who could, themselves, be cross-examined. Thus, there could be no violation of Articles 6 or 10 of the Convention.
15. On appeal, by a judgment of 9 October 2009, the Constitutional Court upheld the first-instance judgment and the ordinary court’s reasoning under both Articles 6 and 10. In particular, it rejected the applicant’s contention that he was referring to Dr Boffa in his role as Prime Minister at the relevant time and not in his personal capacity, and that the applicant had never written that Dr Boffa had wanted to build there for his own personal advantage. It further held that the Court of Appeal had correctly applied the relevant principles, in particular the concept of “ordinary reader” and the importance of reputation.
16. The pertinent sections of the Press Act, Chapter 248 of the Laws of Malta, in so far as relevant, read as follows:
Section 3
“The offences mentioned in this Part of this Act are committed by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast.”
Section 11
“Save as otherwise provided in this Act, whosoever shall, by any means mentioned in section 3, libel any person, shall be liable on conviction to a fine (multa).”
Section 23
“Criminal proceedings for any offence under Part II and civil proceedings under Part III of this Act may be instituted against each of the following persons:
(a) the author, if he shall have composed the work for the purpose of its being published, or if he shall have consented thereto;
(b) the editor; or, if the said persons cannot be identified,
(c) the publisher.”
Section 27
“Criminal proceedings are independent of civil proceedings. Both proceedings may be instituted at the same time or separately.”
Section 28
“(1) In the case of defamation, ... , the object of which is to take away or injure the reputation of any person, the competent civil court may, in addition to the damages which may be due under any law for the time being in force in respect of any actual loss, or injury, grant to the person libelled a sum not exceeding eleven thousand six hundred and forty-six euros and eighty-seven cents (EUR 11,646.87).”
17. Articles 255 and 256 of the Criminal Code, Chapter 9 of the Laws of Malta, read as follows:
Article 255
“No proceedings shall be instituted for defamation except on the complaint of the party aggrieved:
Provided that where the party aggrieved dies before having made the complaint, or where the offence is committed against the memory of a deceased person, it shall be lawful for the husband or wife, the ascendants, descendants, brothers and sisters, and for the immediate heirs, to make the complaint.”
Article 256
“(1) In cases of defamation committed by means of printed matter, the provisions contained in the Press Act shall apply.
(2) Where, according to the said Act, proceedings may only be instituted on the complaint of the party aggrieved, the provisions contained in the proviso to the last preceding article shall also apply.”
VIOLATED_ARTICLES: 10