ITEMID: 001-97077
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DAWLUSZEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicant, Mr Wiesław Dawluszewicz, is a Polish national who was born in 1961 and lives in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 May 2005 the applicant was arrested by the police.
On 24 May 2005 the Gdańsk District Court decided to detain the applicant on suspicion of having committed several burglaries at the Gdańsk Refinery, acting as part of an organised criminal gang. The court considered, given the likelihood that a severe sentence would be imposed on the applicant, that there was a risk that he would interfere with the proper course of the proceedings.
On 4 July 2005 the Gdańsk Regional Prosecutor dismissed a request by the applicant to be released from detention, relying on the ground that the applicant’s brother was being sought by the police.
On 19 August 2005 the District Court extended the applicant’s detention, relying on the ground given previously. It noted, however, that since his arrest no investigative actions had been taken; thus, it instructed the prosecuting authorities to expedite the investigation.
On 8 November 2005 the applicant and ten co-accused were indicted before the Gdańsk District Court.
On 21 November 2005 the detention of the applicant and six co-accused was further extended. The District Court stated that the trial had not yet started and that the accused had not been heard; thus their detention was necessary to secure the proper course of the proceedings.
The first hearing was held on 14 February 2006. Subsequently, the trial court held hearings in March, April and July 2006.
On 10 May, 8 August and 10 November 2006 the trial court extended the applicant’s detention. In each decision the courts stated that the grounds for the applicant’s detention were still valid and pointed to the necessity of obtaining an expert opinon in respect of one of the witnesses.
A request by the applicant to be released from detention was refused by the Gdańsk District Court on 17 November 2006. The court based its decision on identical grounds to those given on the three previous occasions.
On 19 January 2007 the Gdańsk District Court decided to release the applicant and the co-accused from pre-trial detention.
On 12 February 2007 the Gdańsk Regional Court dismissed an appeal by the prosecutor and upheld the decision to release the applicant. The court stated that, for reasons beyond the control of the trial court, it had not been possible to conclude the trial. Moreover, keeping the applicant in detention was no longer absolutely necessary in order to secure the proper course of the proceedings.
The proceedings are still pending before the trial court.
The relevant domestic law and practice concerning detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention, and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.


ITEMID: 001-101206
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ZHUK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant was born in 1958 and lives in Kyiv.
6. According to the applicant, on 16 September 2001 he was assaulted by officers of the Anti-Drug Police Unit at the entrance to his apartment. When he lost consciousness the police allegedly planted evidence on him, putting a wrap of heroin into his pocket. Later, the police conducted a search of his apartment. As a result, some more wraps of drugs (allegedly also planted), a gun and chemical equipment were discovered. The applicant alleges that certain property items (for example, money and jewellery) were unlawfully taken during this search.
7. After the search the applicant was taken to the police station, where he remained until 25 September 2001 when the Shevchenkivsky District Court of Kyiv (“the District Court”) remanded him in custody. The applicant further contends that he had no means (namely that he lacked stationery) to appeal against the court detention order and that subsequently, although he sent an appeal, it was not examined and allegedly was lost.
8. The applicant was provided with a lawyer through the legal aid scheme on 21 September 2001 and the latter's performance was allegedly poor and of little help to his defence. In particular, notwithstanding the applicant's requests that the lawyer visit him more frequently and consult on his case, that lawyer allegedly visited him only on 24 September and 12 December 2001; furthermore, the lawyer allegedly did not attend the court hearings on 25 September and 19 November 2001 when the court remanded the applicant in custody. During the trial, the applicant was legally represented but it is not clear whether this representation was undertaken by another lawyer or by the same lawyer that the applicant claims was deficient.
9. According to the applicant, he requested on several occasions that the trial court summon K., his partner, but the court rejected his requests.
10. On 18 November 2003 the District Court found the applicant guilty of drug dealing and sentenced him to six years' imprisonment. In doing so, the court relied on evidence seized during the search on 16 September 2001, forensic examinations and witnesses' testimonies.
11. The applicant appealed, challenging, inter alia, the lawfulness of the search and the evidence produced against him as a result of it. On 11 June 2004, the Kyiv City Court of Appeal allowed the applicant's appeal in part and reduced his sentence to four years. It found that the search was lawful as the applicant had consented to it and that the conviction was not based solely on evidence produced as a result of the search.
12. The applicant, who was no longer legally represented, appealed to the Supreme Court of Ukraine, challenging his conviction on points of law. He also expressed his wish to be present at the hearing.
13. On 5 April 2005, in the presence of the public prosecutor but in the absence of the applicant, a panel of three judges of the Supreme Court of Ukraine considered the appeal on points of law submitted by the applicant. Having heard the prosecutor, who maintained that the appeal was unsubstantiated, the panel found that there were no grounds for the cassation review of the case and dismissed the applicant's appeal. In doing so it nevertheless examined the case on the merits. According to the applicant, he was not informed of the date of the hearing at the Supreme Court of Ukraine. He was notified of the Supreme Court's decision on 2 June 2005.
14. On 29 September 2001 the applicant complained to the local prosecutor about the actions of the police on 16 September 2001.
15. On 29 October 2001 the prosecutor refused to institute criminal proceedings because of the lack of evidence that a crime had been committed. In particular, he found that the applicant had attempted to flee and had resisted the policemen.
16. According to the applicant, he challenged this decision before the District Court, which upheld the initial decision on 26 September 2003. The applicant made a further appeal but, according to him, the court found that the latter decision was not subject to appeal. He also raised this issue during his trial and in appeals against his conviction. In a judgment of 18 November 2003 the District Court upheld the conclusions of the impugned prosecutor's decision; the higher courts did not expressly address this issue.
17. In 2003 the applicant instituted civil proceedings in the District Court seeking return of his property that was allegedly subject to unlawful seizure. By a decision of 23 May 2003, the court rejected the claim as a result of procedural shortcomings (for instance, failure to indicate the defendant, to pay the court fee and so on). It appears that the applicant did not appeal against this decision.
18. The relevant provisions of the Ukraine Code of Criminal Procedure (“the Code”) (as worded at the material time) read as follows:
“The following decisions may be reviewed in cassation proceedings:
1) judgments, rulings and resolutions of an appellate court rendered by it as a court of first instance; and
2) judgments and resolutions of an appellate court rendered by it in appeal proceedings.
Judgments and resolutions of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of appellate courts rendered with regard to those judgments and resolutions.”
“Cassation appeals and petitions against court decisions referred to in part one of Article 383 of this Code shall be examined and notice of that examination served on the prosecutor and the persons referred to in Article 384 of this Code.
Cassation appeals and petitions against court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the court of cassation, which shall be composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination, and must notify the persons referred to in Article 384 of this Code accordingly, or dismiss it.
A case assigned for examination, with notice served on the prosecutor and the persons referred to in Article 384 of this Code, shall be examined by the court of cassation, which shall be composed of three judges with the participation of a prosecutor, in accordance with the procedure provided for by parts one, two and three of Article 362 of this Code.
The deliberations of the court of cassation's judges shall be conducted in accordance with the requirements provided for by Articles 322 and 325 of this Code.”
19. Other provisions of the Code concerning examination of a case by a court of cassation are set out in Arkhipov v. Ukraine ((dec.), no. 25660/02, 18 May 2004).
20. On 12 January 2006 Article 394 § 2 of the Code was amended to remove the prosecutor from involvement in preliminary hearings before a court of cassation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94088
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZABIYEVA AND OTHERS  v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicants are:
(1) Ms Tamara Zabiyeva, born in 1937;
(2) Ms Eset Kotiyeva, born in 1973;
(3) Mr Khamzat Zabiyev, born in 2000; and
(4) Mr Belan Zabiyev, born in 2002.
They live in the village of Galashki, in the Republic of Ingushetia.
7. The first applicant is the mother of Mr Ali Zabiyev, Mr Musa Zabiyev and Mr Umar Zabiyev, who was born in 1972. Umar Zabiyev was the second applicant's husband; they are the parents of the third and fourth applicants.
8. On 10 June 2003 the first applicant and her sons, Ali and Umar Zabiyev, were working in a field outside the village of Galashki. At some point they noticed a helicopter flying in circles above them.
9. At about 7 p.m. they rode home in a ZIL-130 lorry; Umar Zabiyev was driving. When they were within 4 kilometres of the village of Galashki, their vehicle came under heavy gunfire. Apparently the shots were fired from machine guns and came from the nearby forest. The first applicant was wounded in the back, neck and head. Umar Zabiyev lost control of the lorry, which crashed into a roadside tree. The Zabiyev brothers took the first applicant, unconscious, out of the vehicle. Then Ali Zabiyev ran to the village for help; Umar Zabiyev stayed with his mother. At some point the lorry exploded. Then the gunfire ceased.
10. About forty minutes later Ali Zabiyev, accompanied by Musa Zabiyev, policemen and fellow villagers, arrived at the scene of the incident to find the first applicant lying on the ground and no trace of Umar Zabiyev. The first applicant was then transported to hospital; two bullets were extracted from her body.
11. Having heard about Umar Zabiyev's disappearance, the villagers started searching for him. At about 10 p.m. on 10 June 2003 two of them, Mr D. and Mr O., met in a forest a group of around thirty or forty armed men speaking unaccented Russian. The armed men forced the two villagers to the ground and questioned them. Then they contacted someone via a portable radio transmitter, ordered the villagers to lie still for another half an hour and left.
12. In the morning of 11 June 2003 a group of Russian servicemen, under the command of an officer with the rank of major-general, arrived at the scene of the incident. The major-general suggested that the Zabiyevs had been attacked by unknown Chechen insurgents and denied any possible involvement of Russian military personnel.
13. At 12 noon on 11 June 2003 Umar Zabiyev's dead body, with gunshot wounds and bruises, was found around two kilometres from the scene of the incident and some twenty metres from the place where Mr D. and Mr O. had met the armed men the night before. The corpse was partly covered with soil.
14. At about 7.10 p.m. on 10 June 2003 unidentified persons were hiding in the forest on the left side of the road leading from the village of Dattykh at a distance of 4 kilometres from the village of Galashki. They fired from machine guns at the ZIL-130 lorry in which the first applicant, Umar Zabiyev and Ali Zabiyev were travelling. As a result of the shooting the first applicant suffered injuries to her neck and back, Ali Zabiyev received tangential soft-tissue wounds and Umar Zabiyev went missing.
15. On 11 June 2003 the dead body of Umar Zabiyev was found buried at a distance of 1.7 kilometres from the scene of the incident. The body bore traces of numerous gunshot wounds to the head and body.
16. On 16 July 2003 Human Rights Watch released a paper entitled “Russia: Abuses Spread Beyond Chechnya. Neighboring Ingushetia Now Affected”, which described the Zabiyevs' case as follows:
“On June 10, three Ingush civilians – sixty-five-year-old Tamara Zabieva and two of her sons, Ali and Umar Zabiev – were returning from their potato field near the village of Galashki, when their truck came under heavy machinegun fire, injuring Zabieva in the back, neck, and head. The brothers took their mother out of the car and Umar stayed with her while Ali ran to the village for help.
Local Ingush police who arrived about an hour later found Zabieva unconscious and sent her to the local hospital, but were unable to find Umar. His body, bearing clear marks of torture and gun shot wounds, was discovered the next morning in a nearby forest. The Ingush police said that evidence suggests involvement by federal servicemen, but the military procuracy has refused to take over the case.
While Galashki has in the past been the scene of clashes between Russian federal forces and Chechen rebel fighters, Human Rights Watch has no indication that any such activity took place in the area that day.”
17. Later, Human Rights Watch gave a more detailed description of the Zabiyevs' case in its article entitled “Spreading Despair: Russian Abuses in Ingushetia”, issued in September 2003.
18. In the afternoon of 11 June 2003 investigators examined the scene of the incident. They found many used cartridges and an empty machine-gun cartridge belt, used bandages, empty water bottles, canned pork and plastic bags bearing the Russian Ministry of Defence logo. The investigators took fingerprints from the bottles and tins. Then Umar Zabiyev's dead body was transported to the morgue.
19. At 5.20 p.m. on 11 June 2003 a forensic expert commenced a post-mortem examination of Umar Zabiyev's body. According to the forensic report, there were numerous gunshot wounds to the body, namely three perforating wounds to the head; one penetrating, two perforating and two non-penetrating wounds to the chest; three perforating wounds to an arm; a wound to a shoulder joint and a wound to a buttock. It was also established that Umar Zabiyev's lower jaw had been broken by a blunt hard item. The expert concluded that Umar Zabiyev's death had been caused by the penetrating and perforating wounds to the head and chest and that the lethal shots had been fired from machine guns aimed at Umar Zabiyev while he had been either standing or lying down. The death had occurred some eighteen to twenty-four hours before the beginning of the autopsy.
20. On 12 June 2003 Umar Zabiyev was buried. His family received 100,000 Russian roubles (RUB) from the President of Ingushetia as a burial allowance, which was a common practice at the material time.
21. On an unspecified date the head of the local administration confirmed in writing that there had been no armed clashes between the federal troops and rebel fighters in the area around the village of Galashki between 9 and 11 July 2003.
22. On 25 June 2003 Musa Zabiyev wrote to the Prosecutor General of Russia, the Prosecutor of Ingushetia and the military prosecutor of the United Group Alignment (UGA), complaining about the military attack on his relatives and the murder of his brother.
23. On 14 July 2003 the prosecutor's office of the Sunzhenskiy District of the Republic of Ingushetia (“the district prosecutor's office”) informed Musa Zabiyev that his complaint concerning the events of 10 June 2003 would be examined within the course of the investigation in case no. 23600032.
24. On 17 April 2004 the Ministry of the Interior of Ingushetia informed the second applicant that the investigation into the murder of Umar Zabiyev in case no. 03600032 had been commenced by the district prosecutor's office. It noted, in particular, the following:
“As a result of the investigative measures taken it was established that the crime had been committed by the servicemen of military intelligence unit no. 194 KTG («разведрота 194 КТГ») with the direct involvement of the head of that unit, [S.P.], nicknamed 'the Snake' («Змей»), who is unable to leave the location of the unit in the village of Dattykh in the Sunzhenskiy District of Ingushetia as the military prosecutor's office has charged him with another crime and instituted criminal proceedings on that account.”
25. On 7 July 2006 a member of the Parliament of Ingushetia received a letter from the Prosecutor General's Office stating that the investigation into Umar Zabiyev's killing had been suspended on 19 June 2004 and resumed on 2 February 2006.
26. On 11 June 2003 the district prosecutor's office instituted an investigation into the killing of Umar Zabiyev under Article 105 § 1 (murder) and Article 222 § 1 (unlawful acquisition and possession of firearms) of the Russian Criminal Code. The case file was assigned the number 23600032.
27. On 11 June 2003 the crime scene was inspected and a post-mortem examination of Umar Zabiyev's body was ordered.
28. On 12 June 2003 the first applicant was granted victim status and questioned. She stated that at about 7 p.m. on 10 June 2003, while she had been travelling with her two sons in the ZIL-130 lorry, unidentified persons had opened fire. As a result she had suffered wounds to her neck and back. Ali and Umar Zabiyev had taken her out of the car and brought her into the forest. Ali had gone to the village for help, while Umar had dragged the first applicant to a hill. At some point she had lost consciousness. The first applicant had recovered her senses after the arrival of the police and the villagers of Galashki. Umar Zabiyev had not been seen anywhere around. The first applicant had not heard any voices and did not know who had shot at the car.
29. On 12 June 2003 Ali Zabiyev was granted victim status and questioned. He stated that at 7.10 p.m. on 10 June 2003 their ZIL-130 lorry had been fired at from machine guns. The vehicle had hit a tree and stopped. Ali and Umar had taken their wounded mother out of the lorry and brought her into the forest. Umar had asked Ali to go searching for help, which Ali had done. Having returned to the scene of the incident, Ali, the police and the fellow villagers had found the first applicant, who had then been transferred to hospital. Umar Zabiyev had disappeared; on 11 June 2003 his dead body had been found.
30. On 13 June 2003 Mr D. and Mr O. were questioned. They stated that at about 8 p.m. on 10 June 2003 Ali Zabiyev had run towards them and told them that the ZIL lorry had been fired at. They had reported the shooting to the police and gone to the scene of the incident. There they had found the first applicant unconscious; Umar Zabiyev had disappeared. While searching for Umar Zabiyev, Mr D. and Mr O. had stumbled across a group of armed men. The men had pointed their firearms at Mr D. and Mr O., verified whether they had had any weapons and checked their identity papers. Then they had questioned Mr D. and Mr O. about their reasons for being in the forest and left in the direction of the village of Dattykh. On the following day Umar Zabiyev's dead body had been found buried some 20 or 30 metres from the place where the witnesses had met the armed men.
31. The investigators verified Mr D.'s and Mr O.'s statements. Within 20 metres from Umar Zabiyev's grave they found an area with eight sleeping berths and the following items: empty plastic mineral water bottles, empty plastic bags, empty tin cans marked “Boiled Buckwheat”, “Cooked Rice”, “Liver Pâté with Pork Fat” and other items bearing the stamp “Military Supply of Provisions” («Оборонпродкомплект»), a pair of worn socks, a piece of bandage with traces of blood and a portable remote-control detonator PM-4 No. 3144 1-99 («переносная подрывная машинка ПМ4»).
32. The items found at the scene of the incident, the ZIL-130 lorry and a bullet extracted from Umar Zabiyev's body were subjected to forensic, ballistic, dactylographic, medical, olfactory and biological expert examinations carried out in July and August 2003.
33. The ballistic expert examinations established that the bullet extracted from Umar Zabiyev's dead body had been fired from a Kalashnikov machine gun of 7.62 mm calibre. 217 cartridge cases presented for examination had been parts of cartridges of 7.62 mm calibre produced in Russia according to the 1981 standards and suitable for Mosin and Dragunov sniper rifles, as well as for Kalashnikov machine guns. The cartridge cases in question had been fired from two firearms. Cartridge belts presented for examination had been additional parts for a Kalashnikov machine gun of 7.62 mm calibre.
34. The forensic expert examination established that the ZIL-130 lorry had had 112 penetrating bullet holes that could have been fired from a firearm of 7.62 mm calibre.
35. The medical forensic expert examination found no traces of shots fired from short range on Umar Zabiyev's clothes.
36. On 16 June 2003 a dactylographic expert examination of servicemen of military intelligence unit no. 194 KTG was ordered.
37. On 1 July 2003 the district prosecutor's office requested the military commander of the Leninskiy District of Grozny to submit a list of servicemen who had participated in search activities in the vicinity of the villages of Galashki and Dattykh between 8 and 10 June 2003 and to carry out investigative measures in respect of them.
38. The dactylographic expert examinations established that fingerprints left on the items found at the scene of the incident were not identical to those of the servicemen who had been checked regarding their possible involvement in the crime, including S.P.
39. The biological expert examination of saliva left on the cigarette butts found at the crime scene and the olfactory expert examination of the socks and the piece of bandage produced no significant results.
40. The investigators requested information on the portable remote-control detonator from the UGA. On 7 June 2004 the head of engineer troops of the North Caucasus Circuit replied that portable remote-control detonators PM-4 No. 3144 issued in 1999 had not been supplied to the North Caucasus Circuit armouries and had not been sent to its military units.
41. The medical expert examination of the first applicant established that she had sustained mildly severe bodily injuries inflicted by hand-held firearms.
42. On an unspecified date an investigation into the infliction of bodily injuries on the first applicant was instituted under Article 112 § 1 of the Russian Criminal Code. It is unclear what number the case was assigned and whether any progress was made in the investigation.
43. On 7 and 10 July 2003 the district prosecutor's office sent unspecified orders to the Sunzhenskiy District Department of the Interior and to the UGA military prosecutor respectively.
44. On 23 July 2003 the district prosecutor's office sent an unspecified order to the Ingushetia Department of the Federal Security Service.
45. On 8 December 2003 the district prosecutor's office sent an unspecified order to the prosecutor of the North Caucasus Circuit.
46. In January and February 2004 ballistic and dactylographic expert examinations were carried out.
47. On 3 February 2004 the fingerprints of S.P. and sixteen servicemen of military intelligence unit no. 194 KTG were taken and compared with the fingerprints detected on the cans found near the scene of the incident. None of the fingerprints left on the cans corresponded to those of the servicemen in question.
48. On an unspecified date the firearms used by the servicemen of military intelligence unit no. 194 KTG were subjected to a ballistic expert examination.
49. On 13 February 2004 the district prosecutor's office sent an unspecified order to the Sunzhenskiy District Department of the Interior.
50. On 20 May 2004 the district prosecutor's office sent an unspecified order to the UGA military prosecutor.
51. On 19 June 2004 the investigation was suspended.
52. According to the Government, it follows from the investigation file that on 10 June 2003 there was an armed confrontation between federal servicemen and a group of around ten insurgents in the vicinity of the village of Galashki, as a result of which two insurgents were killed and three wounded. An intelligence squad under the command of Lieutenant S.P. participated in the confrontation. In their submissions of 25 December 2007 the Government submitted that it had been impossible to either prove or refute the involvement of S.P. or other federal servicemen in the killing of Umar Zabiyev.
53. Lieutenant-Colonel N.B. was questioned as a witness and stated that the information on the armed confrontation of the federal troops with the group of around ten insurgents, as a result of which two insurgents had been killed and three wounded, had been based on a report made by a duty officer of the UGA information centre and then issued as a press release. No other sources of that information had been found and its veracity was being checked.
54. In their submissions of 12 May 2008 the Government stated that no reliable evidence had been obtained by that time to prove the involvement of S.P. or other federal servicemen in Umar Zabiyev's killing.
55. The investigation was resumed and suspended a number of times. It failed to find any evidence to support the involvement of the Russian federal military in the crime but was pending. Investigative measures were being taken to solve the murder of Umar Zabiyev.
56. Despite specific requests by the Court the Government did not disclose any material from the investigation file in case no. 2360032. Relying on the information obtained from the Prosecutor General's Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
57. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-60335
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SAJTOS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Françoise Tulkens
TEXT: 6. On 13 May 1996 a private individual, in his capacity as representative of a commercial company, lodged a criminal complaint with the Greek authorities against the applicant. As a result, criminal proceedings were instituted against her and two other Hungarian citizens for fraud which had caused particularly high damage and which had been committed by persons who commit acts of fraud as a profession.
7. On 16 April 1997 the investigating judge summoned the applicant to appear before her and submit statements in defence. At the same time, the investigating judge invited the competent Hungarian Judicial Authorities to provide judicial assistance according to Article 457 of the Code of Criminal procedure. The relevant application to these authorities indicated that the proceedings were based on the above-mentioned complaint and some testimonies. Finally, the investigating judge sent a fax message to the Police Station of Makrygialos, Pierria, where the applicant normally resided, whereby she summoned again the applicant to appear before her.
8. By a document of 3 September 1997, the Ministry of Justice informed the investigating judge that the Hungarian Judicial Authorities had served on the applicant the summon to appear of 16 April 1997.
9. On 13 October 1997 the investigating judge issued an arrest warrant against the applicant following an opinion of the Public Prosecutor at the First Instance Criminal Court of Piraeus. The arrest warrant indicated the offence committed by the applicant, the relevant facts of the case and the relevant Articles of the Criminal Code.
10. After the completion of the investigation proceedings, the file was transmitted to the Public Prosecutor who, on the basis of the file of the case, proposed to commit the applicant and two other Hungarian citizens for trial before the three-member Court of Appeal of Piraeus. Furthermore, the Public Prosecutor proposed that the arrest warrant should continue to produce its effects and that the accused be detained until the hearing, in the event that they were arrested.
11. On 19 March 1998 the indictments chamber of the Appeal Court of Piraeus adopted the proposal of the Public Prosecutor. Its decision no.571/1998 was delivered on 1 June 1998.
12. The applicant came to Greece on 1 August 1998 and was arrested in Katerini on 3 August 1998, at 7.15 p.m. On 4 August 1998 the applicant was brought to the police station of Katerini where she was kept until 7 August 1998 at 6 a.m.
13. On 7 August 1998 the applicant was transported to a police detention centre in Piraeus. She met her lawyer on 10 August 1998. The lawyer arranged for her to be transported to Korydallos women’s prison. She claims that in Korydallos prison she was kept together with “common criminals”. Being a vegetarian, she could not eat the food served. As a result, she started losing her hair. She was not interrogated during this period of time either.
14. On 13 August 1998 the applicant appealed against decision no. 571/1998 of the indictments chamber of the Appeal Court of Piraeus. She also applied for release.
15. On 18 September 1998 and 11 November 1998 the applicant submitted further observations to substantiate her appeal and reiterated her application for release.
16. On 17 December 1998 the indictments chamber of the Appeal Court of Piraeus adopted the Public Prosecutor’s proposal not to bring the applicant to trial. Accordingly, it discontinued the proceedings against the applicant and ordered her release. Furthermore, it held that no compensation should be granted to the applicant for her detention pending trial, because her detention was due to her own gross negligence. Gross negligence consisted in the fact that the applicant had refused to appear before the investigating judge in order to rebut the charges and produce the relevant documents which were later submitted before the indictments chamber and which would have prevented her from being provisionally detained, if they had been submitted at an earlier stage.
17. The applicant was released on 21 December 1998. On 22 December 1998 she was expelled from Greece.
18. The Code of Criminal Procedure provides as follows:
“Persons who have been detained on remand and subsequently acquitted ... have the right to request compensation ..., if it has been established in the proceedings that they did not commit the criminal offence for which they have been detained on remand.”
“The State does not have any obligation to compensate a person who ... has been detained on remand if the latter, intentionally or by gross negligence, was responsible for his own detention.”
“Upon an application submitted orally by the person who has been acquitted, the court which heard the case shall decide on the State’s obligation to pay compensation in a separate decision issued at the same time as the verdict. However, the court may also issue such a decision proprio motu ...
The decision regarding the obligation of the State to pay compensation cannot be challenged separately; it is, however, quashed when the decision on the principal issue of the criminal trial is reversed.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100944
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SHCHOKIN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant was born in 1971 and lives in Kharkiv.
6. In March 2002 the applicant submitted to the Oktyabrskyy District Tax Inspectorate of Kharkiv (the “Tax Inspectorate”) his 2001 income tax declaration. The declaration specified the amount of income tax paid by the applicant in 2001 and distinguished, in particular, two types of income: (a) income earned at the applicant's principal place of business and (b) income earned outside his principal place of business.
7. In respect of the first type of income, the tax had been calculated under the progressive tax-rate rule, as required by Article 7 § 1 of Cabinet of Ministers Decree no. 13-92 “On citizens' income tax” of 26 December 1992 (the “Income Tax Decree”).
8. In respect of the second type of income, the tax had been calculated at the fixed 20% rate, as required by Article 7 § 3 of the Income Tax Decree.
9. On 9 April 2002, on the basis of the applicant's declaration, the Tax Inspectorate reassessed the amount of income tax due from the applicant and requested him to pay the outstanding balance in the amount of 1,774.61 Ukrainian hryvnias (UAH). The amount payable had been increased as a result of applying the progressive tax rate in respect of the income earned by the applicant outside his principal place of business. The recalculation had been effected in accordance with Instruction no. 12 “On citizens' income tax” issued by the Principal Tax Inspectorate on 21 April 1993 (“the Instruction”).
10. On 27 May 2002 the applicant instituted proceedings in the Oktyabrskyy District Court of Kharkiv (the “District Court”) against the Tax Inspectorate, seeking to have the decision of 9 April 2002 invalidated. He claimed, in particular, that the amount of tax payable in respect of his income earned outside his principal place of business should have been determined by reference to the special tax rate laid down in Article 7 § 3 of the Income Tax Decree (having legal force as the law of Parliament) whereas the Tax Inspectorate had recalculated and increased that amount relying on the Instruction. However, the Instruction was a by-law which, according to Article 67 of the Constitution, could not change the applicable tax rates.
11. On 4 July 2002 the District Court considered the applicant's claim. It found that the Income Tax Decree envisaged a special tax rate for income earned outside the principal place of business. Despite the Instruction, the Income Tax Decree did not provide for any recalculation of that type of income on the basis of the progressive tax rate. It noted that according to Article 67 of the Constitution the citizens were obliged to pay taxes only in accordance with the procedure established by the laws and not by the by-laws. In conclusion the District Court allowed the applicant's claim and quashed the decision of 9 April 2002. The Tax Inspectorate appealed.
12. On 18 December 2002 the Kharkiv Regional Court of Appeal (the “Court of Appeal”) quashed the judgment of 4 July 2002, stating that the Instruction had been validly issued and purported to expand on the relevant provisions of the Income Tax Decree. Accordingly, the Tax Inspectorate had acted lawfully when applying the Instruction.
13. On 16 April 2003 the Supreme Court upheld the Court of Appeal's judgment, stating that there had been no irregularities in the application of the law in the case.
14. In March 2003 the applicant submitted his 2002 income tax declaration to the Tax Inspectorate. The amount of tax regarding the income the applicant earned outside his principal place of business was calculated on the basis of the fixed tax rate laid down in Article 7 § 3 of the Income Tax Decree.
15. On 22 April 2003, on the basis of the applicant's declaration, the Tax Inspectorate reassessed the amount of income tax due from the applicant and requested him to pay the outstanding balance in the amount of UAH 3,378.05. The amount payable had been increased as a result of the application of the progressive tax rate in respect of the income earned by the applicant outside his principal place of business. The recalculation had been effected in accordance with the Instruction.
16. On 23 July 2003 the applicant instituted proceedings in the District Court against the Tax Inspectorate, seeking to have the decision of 22 April 2003 invalidated. He claimed in particular that the increase in his income tax liability had not been lawful because the Income Tax Decree (having legal force as the law of Parliament) did not envisage the progressive tax rate for the income earned by the applicant outside his principal place of business. In addition, the Instruction, referred to by the tax authorities, was a by-law which, according to Article 67 of the Constitution, could not change the applicable tax rates.
17. On 20 April 2005 the District Court rejected the applicant's claim, stating that the amount of tax determined by the Tax Inspectorate had been based on the Instruction and also on Presidential Decree no. 519/94 of 13 September 1994 “On increasing the amount of tax-free monthly income and rates of progressive taxation of citizens' income” (“the Presidential Decree”).
18. On 18 May 2005 the applicant appealed against that judgment to the Court of Appeal, alleging that Article 7.3 of the Income Tax Decree should have been applied to the income earned outside the principal place of business.
19. On 30 June 2005 the Court of Appeal upheld the judgment of 20 April 2005 after finding that the recalculation of the applicant's income tax had been based specifically on the Presidential Decree.
20. On 25 July 2005 the applicant appealed in cassation, repeating the arguments he had advanced before the Court of Appeal.
21. On 19 April 2006, following the applicant's appeal in cassation, the Higher Administrative Court upheld the judgment of 20 April 2005, noting in particular that the Income Tax Decree provided only one scale of progressive taxation, which therefore had to be applied to all the income of the applicant, and concluded that the recalculation of the tax had been carried out in accordance with the law. The special tax rate provided in Article 7 § 3 of the Income Tax Decree was not mentioned.
22. In March 2004 the applicant submitted his 2003 income tax declaration to the Tax Inspectorate. The amount of tax regarding the income of the applicant earned outside his principal place of business was calculated on the basis of the fixed tax rate laid down in Article 7 § 3 of the Income Tax Decree.
23. On 26 April 2004, on the basis of the applicant's declaration, the Tax Inspectorate reassessed the amount of income tax due from the applicant and requested him to pay the outstanding balance in the amount of UAH 642.20. The amount payable had been increased as a result of the application of the progressive tax rate in respect of the income earned by the applicant outside his principal place of business. The recalculation had been effected in accordance with the Instruction.
24. On 10 August 2004 the applicant instituted proceedings in the District Court against the Tax Inspectorate, seeking to have the decision of 22 April 2003 invalidated. He claimed, in particular, that the increase in his income tax liability had not been lawful, because the Income Tax Decree (having legal force as the law of Parliament) did not envisage the progressive tax rate for the income earned by the applicant outside his principal place of business. At the same time the Instruction, referred to by the tax authorities, was a by-law which, according to Article 67 of the Constitution, could not change the applicable tax rates.
25. On 21 July 2005 the District Court rejected the applicant's claim, stating that the amount of tax determined by the Tax Inspectorate had been based on the Instruction and also on the Presidential Decree.
26. On 17 August 2005 the applicant appealed against that judgment to the Court of Appeal, alleging that Article 7.3 of the Income Tax Decree should have been applied to the income earned outside the principal place of business.
27. On 25 October 2005 the Court of Appeal upheld the judgment of 21 July 2005 after finding that the recalculation of the applicant's income tax had been based, in particular, on the Presidential Decree and the Income Tax Decree. No reasons were offered for the disregard of the special tax rate fixed in Article 7 § 3 of the Income Tax Decree.
28. On 9 March 2006, following an appeal in cassation by the applicant, the Higher Administrative Court upheld the judgment of 21 July 2005, noting that the recalculation of the tax had been carried out in accordance with the law.
29. According to Article 114-5 of the Constitution the President of Ukraine was empowered to issue decrees in the field of economic reforms if the relevant matters were not covered by the laws of Parliament.
30. Article 67 of the Constitution provides that everyone is obliged to pay taxes and duties in accordance with the procedure and at the rates established by the laws of Parliament.
31. According to these Laws, during the period between 24 November 1992 and 21 May 1993, the Cabinet of Ministers had legislative powers in certain fields, including the field of taxation. For this purpose, the Cabinet of Ministers was empowered to issue Decrees which had the legal force as the law of Parliament.
32. Section 4.4.1 of the Law provides that if the norm of the law or another normative legal act issued on the basis of the law, or if the norms of different laws or normative legal acts offer ambiguous or multiple interpretations of the rights and obligations of taxpayers and supervising authorities, the decision taken shall be in favour of the taxpayer.
33. Article 7 § 1 of the Decree laid down a table of progressive taxation rates in respect of income earned at the taxpayer's principal place of business. The table referred to the concept of an official minimum salary as a basis for the determination of the progressive tax rate applicable in the individual case.
34. Article 7 § 2 of the Decree provided that the copyright awards, repeatedly paid to the successors, were taxed at the double rates fixed in Article 7 § 1 of the Decree which, however, could not exceed 70 percents.
35. Article 7 § 3 of the Decree established a fixed 20% tax rate in respect of income earned by the taxpayer outside his or her principal place of business.
36. Article 23 of the Decree provided that the Principal Tax Inspectorate would issue an instruction on the application of the Decree.
37. The Decree introduced a new table of progressive taxation rates in respect of taxpayers' income. The table referred to the concept of tax-free monthly income as a basis for the determination of the progressive tax rate applicable in the individual case. The Decree specified that the rates of progressive taxation, established in it, had to be applied as of 1 October 1994 in respect of the salaries and the other income of the citizens.
38. Paragraph 7.1 of the Instruction laid down a table of progressive taxation rates in respect of income earned by a taxpayer at his or her principal place of business.
39. Paragraph 7.3 provided that the local tax inspectorates were to recalculate income earned outside the principal place of business, according to the table of progressive taxation rates set out in paragraph 7.1 of the Instruction.
40. By this letter the State Tax Administration provided official interpretation of certain issues concerning tax legislation. It specified, among other things, that the copyright awards repeatedly paid to the successors were to be taxed in accordance with Article 7 § 2 of the Income Tax Decree.


ITEMID: 001-58219
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF LAMBERT v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 7. Mr Lambert, a French national born in 1957, lives at Buzet-sur-Tarn.
8. In the course of a judicial investigation into offences of theft, burglary, handling the proceeds of theft and aggravated theft, and unlawful possession of Class 4 weapons and ammunition, an investigating judge at Riom issued a warrant on 11 December 1991 instructing the gendarmerie to arrange for the telephone line of a certain R.B. to be tapped until 31 January 1992.
9. By means of standard-form written instructions (“soit transmis”) dated 31 January, 28 February and 30 March 1992, the investigating judge extended the duration of the telephone tapping until 29 February, 31 March and 31 May 1992 respectively.
10. As a result of this tapping and the interception of some of his conversations, the applicant was charged with handling the proceeds of aggravated theft; he was held in custody from 15 May to 30 November 1992, when he was released subject to judicial supervision.
11. In an application of 5 April 1993 the applicant’s lawyer applied to the Indictment Division of the Riom Court of Appeal for a ruling that the extensions of 31 January and 28 February 1992 were invalid, arguing that they had been ordered merely by standard-form written instructions without any reference to the offences which justified the telephone tapping, and that the four-month period which could have been authorised in the warrant of 11 December 1991 had expired on 11 April 1992.
12. In a judgment of 25 May 1993 the Riom Court of Appeal dismissed Mr Lambert’s application on the following grounds:
“… by Articles 100, 100-1 and 100-2 of the Code of Criminal Procedure [see paragraph 15 below] taken together, decisions to intercept telecommunications messages must be in writing and contain all the information necessary for identifying the link to be monitored, the offence that justifies the interception and the duration of the interception, which must not exceed four months but may be extended subject to the same formal requirements and maximum duration.
In the instant case it is beyond doubt that the warrant of 11 December 1991 complies with the requirements of the above-mentioned Articles in so far as it specifies the number of the link to be monitored, a duration of less than four months and the offences that justified interception, the criminal penalties for which were greater than two years’ imprisonment.
It is also clear that the decisions to extend the duration of the interception, which were issued in standard-form instructions, were in writing and mentioned the number of the link concerned; that they are an extension of the original decision of 11 December 1991 and necessarily referred to it; and that the duration of their validity was less than four months. They thus comply with the requirements of Article 100-2 of the Code of Criminal Procedure.”
13. The applicant appealed on a point of law against the judgment of 25 May 1993, arguing, as his only ground of appeal, that Article 8 of the Convention and Articles 100 et seq. of the Code of Criminal Procedure had been infringed because the extensions of the duration of the telephone tapping in issue, by means of standard-form written instructions, did not contain any reasons.
14. In a judgment of 27 September 1993 the Court of Cassation affirmed the decision appealed against and held that the applicant had “no locus standi to challenge the manner in which the duration of the monitoring of a third party’s telephone line was extended” and that accordingly “the grounds of appeal, which contest[ed] the grounds on which the Indictment Division [had] wrongly considered it must examine [the] objections of invalidity and subsequently dismissed them, [were] inadmissible”.
15. The relevant provisions of the Code of Criminal Procedure (Law no. 91-646 of 10 July 1991 on the confidentiality of telecommunications messages) read as follows:
Article 100
“In the case of a serious crime or other major offence attracting a sentence of at least two years’ imprisonment, the investigating judge may, where necessary for the investigation, order the interception, recording and transcription of telecommunications messages. Such operations shall be carried out under his authority and supervision.
Decisions to intercept shall be in writing. They shall not constitute judicial decisions and no appeal shall lie against them.”
Article 100-1
“Decisions made pursuant to Article 100 shall contain all the information necessary for identifying the link to be monitored, the offence that justifies the interception and the duration of the interception.”
Article 100-2
“Such decisions shall be valid for a maximum duration of four months. Their validity may be extended only subject to the same procedural requirements and maximum duration.”
Article 100-3
“The investigating judge or a senior detective (officier de police judiciaire) acting on his instructions may call upon any qualified official of any department or body under the authority or supervision of the Minister for Telecommunications, or any qualified official of an authorised network operator or provider of telecommunications services, for the purpose of installing monitoring equipment.”
Article 100-4
“The investigating judge or the senior detective acting on his instructions shall draw up a report on each of the interception and recording operations. This report shall give the date and time of the beginning and end of each operation.”
Article 100-5
“The investigating judge or the senior detective acting on his instructions shall transcribe messages useful for establishing the truth. A report of the transcription shall be drawn up and the transcription placed in the case file.
Any messages in a foreign language shall be transcribed in French with the help of an interpreter called upon for this purpose.”
Article 100-6
“The Public Prosecutor or Principal Public Prosecutor shall ensure that the recordings are destroyed when prosecution becomes time-barred.
A formal report of the destruction shall be drawn up.”
Article 100-7
“The telephone line of a member of Parliament or senator shall not be tapped unless and until the Speaker of the relevant House has been informed by the investigating judge.
The home or office telephone lines of a member of the Bar shall not be tapped unless and until the chairman of the Bar has been informed by the investigating judge.
Any interception carried out in breach of the requirements of this Article shall be null and void.”
16. Mr Lambert applied to the Commission on 8 February 1994. He alleged that the interception of certain telephone conversations which were used against him amounted to interference with his private life and correspondence, contrary to Article 8 of the Convention; he also maintained that he had not had an effective remedy in the Court of Cassation, contrary to Article 13 of the Convention.
17. The Commission declared the application (no. 23618/94) admissible on 2 September 1996. In its report of 1 July 1997 (Article 31), it expressed the opinion by twenty votes to twelve that there had been a violation of Article 8 of the Convention and by twenty-seven votes to five that it was unnecessary to consider the case under Article 13 of the Convention also. The full text of the Commission’s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment.
18. In their memorial the Government submitted that “the application lodged by Mr Lambert should be dismissed”.
19. The applicant asked the Court to
“hold that there has been a violation of Article 8 of the … Convention;
award him 500,000 francs by way of just satisfaction”.
20. Mr Lambert submitted that the Court of Cassation’s decision to refuse him any standing to complain of the interception of some of his telephone conversations, on the ground that it was a third party’s line that had been tapped, had infringed Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
21. The Court points out that as telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8, the admitted measure of interception amounted to “interference by a public authority” with the exercise of a right secured to the applicant in paragraph 1 of that Article (see, among other authorities, the following judgments: Malone v. the United Kingdom, 2 August 1984, Series A no. 82, p. 30, § 64; Kruslin v. France and Huvig v. France, 24 April 1990, Series A no. 176-A and B, p. 20, § 26, and p. 52, § 25; Halford v. the United Kingdom, 25 June 1997, Reports of Judgments and Decisions 1997-III, pp. 1016–17, § 48; and Kopp v. Switzerland, 25 March 1998, Reports 1998II, p. 540, § 53). In this connection, it is of little importance
that the telephone tapping in question was carried out on the line of a third party.
The Government did not dispute this.
22. Such interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and furthermore is “necessary in a democratic society” in order to achieve them.
23. The expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.
24. The Court notes that the investigating judge ordered the telephone tapping in question on the basis of Articles 100 et seq. of the Code of Criminal Procedure (see paragraphs 12 and 15 above).
25. The interference complained of therefore had a statutory basis in French law.
26. The second requirement which derives from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case.
27. As to the “foreseeability of the law”, the Government maintained that following the Court’s judgments in the Kruslin and Huvig cases (see paragraph 21 above), the French legislature had remedied the omissions and weaknesses of domestic law on telephone tapping by adopting safeguards in respect of the persons whose telephones could be tapped, the duration of interception, the requirements for drawing up reports, and the communication or destruction of recordings.
28. The Court considers, as the Commission did, that Articles 100 et seq. of the Code of Criminal Procedure, inserted by the Law of 10 July 1991 on the confidentiality of telecommunications messages, lay down clear, detailed rules and specify with sufficient clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities (see the Kruslin and Huvig judgments cited above, pp. 24–25, §§ 35–36, and p. 56, §§ 34–35, respectively, and, as the most recent authority and mutatis mutandis, the Kopp judgment cited above, pp. 541–43, §§ 62–75).
29. The Court shares the opinion of the Government and the Commission and considers that the interference was designed to establish the truth in connection with criminal proceedings and therefore to prevent disorder.
30. It remains to be ascertained whether the interference was “necessary in a democratic society” for achieving those objectives. Under the Court’s settled case-law, the Contracting States enjoy a certain margin of appreciation in assessing the existence and extent of such necessity, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see, mutatis mutandis, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, pp. 37–38, § 97, and the Barfod v. Denmark judgment of 22 February 1989, Series A no. 149, p. 12, § 28).
31. When considering the necessity of interference, the Court stated in its Klass and Others v. Germany judgment of 6 September 1978 (Series A no. 28, pp. 23 and 25–26, §§ 50, 54 and 55):
“The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on … [among other things] the kind of remedy provided by the national law.
…
It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the ‘interference’ resulting from the contested legislation to what is ‘necessary in a democratic society’.
… In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention… The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control…”
32. The applicant said that he had wished to complain of the circumstances in which the investigating judge had ordered the extensions of the duration of the telephone tapping (see paragraph 13 above), but the Court of Cassation’s decision had deprived him of any practical possibility of using the remedies provided by law to penalise irregularities committed by the authorities.
33. In the Government’s submission, the interference complained of had been “necessary in a democratic society”. In the instant case the telephone tapping had been one of the principal means of investigation contributing to the establishment of the truth and, in particular, to proving the involvement of various individuals, including the applicant, in large-scale illicit dealing in furniture. Furthermore, Mr Lambert had been able to avail himself of a remedy in the Indictment Division, and a further remedy in the Court of Cassation was quite unnecessary to satisfy the requirement of “effective control”.
34. The Court must accordingly ascertain whether an “effective control” was available to Mr Lambert to challenge the telephone tapping to which he had been made subject.
35. It notes, firstly, that the Court of Cassation in its judgment of 27 September 1993 held that the applicant had “no locus standi to challenge the manner in which the duration of the monitoring of a third party’s telephone line was extended” and that accordingly “the grounds of appeal, which contest[ed] the grounds on which the Indictment Division [had] wrongly considered it must examine [the] objections of invalidity and subsequently dismissed them, [were] inadmissible”.
36. In its ruling the Court of Cassation therefore went beyond the ground relied on by the applicant concerning the extension of the duration of the telephone tapping and held that a victim of the tapping of a telephone line not his own has no standing to invoke the protection of national law or Article 8 of the Convention. It concluded that in the instant case the Indictment Division had been wrong to examine the objections of invalidity raised by the applicant as the telephone line being monitored had not been his own.
37. Admittedly, the applicant had been able to avail himself of a remedy in respect of the disputed point in the Indictment Division, which held that the investigating judge’s extension of the duration of the telephone tapping had been in accordance with Articles 100 et seq. of the Code of Criminal Procedure (see paragraph 12 above), and it is not the Court’s function to express an opinion on the interpretation of domestic law, which is primarily for the national courts to interpret (see the Kruslin and Huvig judgments cited above, p. 21, § 29, and p. 53, § 28, respectively). However, the Court of Cassation, the guardian of national law, criticised the Indictment Division for having examined the merits of Mr Lambert’s application.
38. As the Court has already said (see paragraph 28 above), the provisions of the Law of 1991 governing telephone tapping satisfy the requirements of Article 8 of the Convention and those laid down in the Kruslin and Huvig judgments. However, it has to be recognised that the Court of Cassation’s reasoning could lead to decisions whereby a very large number of people are deprived of the protection of the law, namely all those who have conversations on a telephone line other than their own. That would in practice render the protective machinery largely devoid of substance.
39. That was the case with the applicant, who did not enjoy the effective protection of national law, which does not make any distinction according to whose line is being tapped (Articles 100 et seq. of the Code of Criminal Procedure – see paragraph 15 above).
40. The Court therefore considers, like the Commission, that the applicant did not have available to him the “effective control” to which citizens are entitled under the rule of law and which would have been capable of restricting the interference in question to what was “necessary in a democratic society”.
41. There has consequently been a violation of Article 8 of the Convention.
42. The applicant also alleged a violation of Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
43. In view of the preceding conclusion (see paragraph 41 above), the Court does not consider that it need rule on the complaint in question.
44. Article 50 of the Convention provides:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
45. Mr Lambert sought 500,000 French francs (FRF) for non-pecuniary damage.
46. The Government considered that any finding of a violation would constitute sufficient just satisfaction.
47. The Delegate of the Commission expressed no view on the matter.
48. The Court considers that the applicant undeniably sustained non-pecuniary damage and awards him the sum of FRF 10,000 under this head.
49. The applicant also claimed FRF 15,000 in respect of the costs and expenses incurred in the proceedings before the Court.
50. The Government considered that the amount claimed was not unreasonable and wished to leave the matter to the Court’s discretion.
51. The Delegate of the Commission did not express a view.
52. Making its assessment on an equitable basis and with reference to its usual criteria, the Court awards the sum claimed.
53. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.36% per annum.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 24 August 1998.
Signed: Rudolf Bernhardt
President
Signed: Herbert Petzold
Registrar
In accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of Court A, the concurring opinion of Mr Pettiti is annexed to this judgment.
Initialled: R. B.
Initialled: H. P.
VIOLATED_ARTICLES: 8


ITEMID: 001-118477
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF TARANTINO AND OTHERS v. ITALY
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education)
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicants’ particulars are set out in the table in the appendix.
6. On 4 September 2007 Ms Tarantino failed the entrance examination to study at the Faculty of Medicine in Palermo. In 2007 two thousand students sat this examination and there were two hundred and ten places available. She failed the examination again in 2008 and 2009.
7. On 14 December 2007 the first applicant and other students lodged a complaint with the President of the Republic alleging that Law no. 264/1999, in particular the two binding criteria used by the Ministry to set the number of students allowed admission to the relevant faculty of each university (see paragraph 17 below), was incompatible with Article 3(2)(c) and (g) of the Treaty establishing the European Economic Community, Directive 2005/36/CE on the recognition of professional qualifications, Article 15 of the Charter of Fundamental Rights of the European Union, Article 6 § 2 of the Treaty on the European Union, with regard to the principle of equality, and Article 2 of Protocol No. 1 to the Convention. She further contested both the State’s decision to impose the same limitations on private universities and the adequacy of the entrance examinations. The first applicant also asked to be provisionally admitted to the university under a conditional clause.
8. By a decree of 2 July 2008 the Supreme Administrative Court (Consiglio di Stato) rejected her request for an interim measure.
9. On 23 September 2008 the first applicant made further pleadings and reiterated her request for the matter be submitted to the European Court of Justice (the “ECJ”) for a preliminary ruling. Her pleadings were transmitted to the Supreme Administrative Court in October 2008.
10. By a decree of 28 April 2009 (no. 2256), adopted on the basis of the Supreme Administrative Court’s advisory opinion delivered on 12 November 2008 and notified to the first applicant on 14 May 2009, the President of the Republic rejected the complaints. The decree stipulated that, bearing in mind the human and material resources of the universities, the contested admission restrictions, allowing entrance only to the most meritorious students, were reasonable and therefore compatible with the provisions of the European Union (EU) invoked. Moreover, in line with the increase in society’s need for qualified doctors, admissions to the faculties of medicine in 2008-09 had increased by 10-20%. It noted that the professional examination, after a degree had been obtained, was not an academic title in itself but a State examination like those held in most States. Lastly, it dismissed the allegation that the entrance examination’s content was inadequate.
11. The other seven applicants had been or are still working as dental technicians or hygienists for a number of years.
12. On 4 September 2009, despite their relevant professional experience, those seven applicants failed the entrance examination to study at the Faculty of Dentistry. Any preceding and subsequent attempts were also unsuccessful.
13. Mr Marcuzzo (hereinafter “the eighth applicant”) had nevertheless passed the entrance examination in the academic year 1999/2000. However, following his failure to sit examinations for eight consecutive years on account of serious family problems (as provided for by the relevant University Rule, under Article 149 of Royal Decree no. 1592/1933), he lost his student status in July 2009.
14. These applicants conceded that they had not pursued available domestic remedies, since in their view they would have been ineffective. According to the well-established jurisprudence of the Supreme Administrative Court, limited access to universities is compatible with the Constitution and EU law (see, amongst others, the above-mentioned advisory opinion of 12 November 2008). The eighth applicant also argued that the Supreme Administrative Court had constantly held that subjective reasons, such as family problems (as in his case), could not be considered as exceptions to the rule favouring continuity of studies. In consequence, his claim would not have been successful.
15. Law no. 127/1997, amending section 9(4) of Law no. 341/1990, introduced, for the first time, a numerus clausus (limited access) to both public and private Italian universities. Section 17(116) of that Law provided that it was for the Ministry of Universities and Scientific and Technological Research to establish those limits. However, the Law did not establish or set clear criteria to determine the faculties subject to restrictions, the number of available places or the selection procedure.
16. On 27 November 1998 (judgment no. 383/1998), having been asked to examine the constitutionality of section 17(116) of Law no. 127/1997, the Constitutional Court delivered a judgment upholding the constitutionality of that Law. It considered that the discretion exercised by the Ministry of Universities and Research was not unfettered, since it must act according to an established legal framework. In this connection, in the absence of national legislation on the matter, the Constitutional Court made reference to relevant EU directives which aimed to ensure an adequate standard of education. The court further noted that it was for Parliament to rule on the subject.
17. Following the Constitutional Court’s judgment, Law no. 264/1999 was enacted. It provided that the Ministry of Universities and Research would establish the entrance quota of the Faculties of Medicine, Veterinary Medicine, Dentistry, Architecture and Nursing on the basis of two binding criteria: the capacity and resource potential of the universities, and society’s need for a particular profession (fabbisogno di professionalità del sistema sociale e produttivo). Based on that assessment, the Ministry would set the number of students allowed admission to the relevant faculty of each university.
18. On 21 April 2009 the Antitrust Authority (Autorità Garante della Concorrenza e del Mercato – “the AA”) issued a recommendation on the criteria for admission to the Faculty of Dentistry. The AA noted that: (a) in practice, the two criteria established by the Law were applied on the basis of the observations of the Ministry of Universities and Research and the Ministry of Health, and (b) any data gathered would be discussed by an expert task force, composed, inter alia, of representatives from the National Federation of Doctors and the Chamber of Doctors and Dentists.
19. In the AA’s view, the Italian Government were acting in breach of the Constitutional Court’s judgment (see paragraph 16 above) and EU law, in so far as the Law took into account not only educational standards but also data concerning occupational demand. Noting that the assessments were made with exclusive regard to the occupational demand of the National Health Service, the AA concluded that limiting admission to the Faculty of Dentistry amounted to an unreasonable restriction of competition in professional services. Indeed, by considering only public demand, to the exclusion of any private demand, the number of dentists was artificially reduced and dental fees were unjustifiably increased. Furthermore, the AA disapproved of the participation of professional associations in the above-mentioned task force, in so far as their decisions might be highly influenced by their own interests.
20. To be admitted, candidates were required to pass a multiple-choice examination consisting of eighty questions on general culture (including international geography and history), biology, chemistry, mathematics and physics. The examination, based on the high school syllabus, aimed to test the candidates’ aptitude for the subject matter pertaining to the faculty of their choice.
21. The relevant domestic courts repeatedly found that a numerus clausus and the way in which it was applied in the Italian legal framework were in accordance with both the Constitution and European Union legislation. Judgments in support of those findings include, inter alia: judgments no. 1931 of 29 April 2008, no. 5418 of 24 June 2008, and no. 5542 of 6 June 2008 of the Supreme Administrative Court; judgment no. 197 of the Florence Tuscany Administrative Tribunal of 12 February 2007; judgment no. 4559 of the Naples Administrative Tribunal of 2008; judgment no. 1931 of the Florence Tuscany Administrative Tribunal of 17 April 2008; judgment no. 145 of the Trent Administrative Tribunal of 11 June 2008; and judgment no. 1631 of the Supreme Administrative Court of 15 April 2010.
In particular, in respect of the complainants’ claim that the criterion related to society’s need for a particular profession should not be limited to the national territory – to the exclusion of the current and imminent future needs of the entire European Community – the Supreme Administrative Court held, in its judgment no. 1931 of 29 April 2008, that it was evident that the major determining criterion was that based on the capacity and resource potential of universities, which allowed for proper scientific training as required by EU legislation. As had previously been upheld by the Constitutional Court (judgment no. 393 of 1998), the right to higher levels of education, even for the most meritorious students, depended on the availability of technical means and human resources, particularly in the study of sciences, which was both theoretical and practical. Indeed, EU legislation did not ban numeri clausi. European directives provided for the recognition of titles and degrees based on standards of minimum studies and guarantees of a real possession of the necessary knowledge to carry out a profession. However, they left it to individual States to determine the instruments, means and methods to fulfil the obligations set by those directives. The criterion relating to society’s need for a particular profession carried less weight than the capacity and resource criterion, and was indeed secondary. It would come into play in the unlikely event that availability was so abundant that it would be necessary to limit access to the profession to avoid saturating the market. With reference to a recommendation by the Health Ministry to limit the number of registered students (which formed the basis of the decision on the number of places available for the years 2006-07), the court considered that it was to be seen as a quantitative restriction not in view of society’s needs, but in the light of a need to ensure that specialised studies reached European standards. Given that the relevance of this criterion to the decision on the number of candidates to be registered each year had not been proven, and because EU law did not provide for unlimited and unconditional access to education for students, it was not necessary to refer the matter to the ECJ.
22. According to the Supreme Administrative Court judgment no. 1855 of 2005, the eight-year time-limit indicated in decree no. 1592 of 1933 is not a prescriptive period which can be interrupted, but the maximum time before the right (to attend the course) lapses.
23. Article 39 (former Article 48) of Title III relates to the free movement of persons, services and capital of the Treaty establishing the European Community. It reads as follows:
“1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.”
24. Other relevant European Union texts include: Council Directive 86/457/EEC of 15 September 1986 on specific training in general medical practice; Council Directive 93/16/EEC of 5 April 1993 on facilitating the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications; and Council Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications.
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-57945
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF SCHMAUTZER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. On 30 April 1986 Mr Peter Schmautzer was stopped by the police while driving his car. He was not wearing his safety-belt. In a "sentence order" (Straferkenntnis) of 1 June 1987 the federal police authority (Bundespolizeidirektion) in Graz imposed on him a fine of 300 Austrian schillings (ATS) with twenty-four hours' imprisonment in default of payment, for an offence under section III(1) and (5)(a) of the third amendment to the Motor Vehicles Act (Kraftfahrgesetz - see paragraph 10 below).
7. The applicant appealed against that decision to the Styria regional government (Amt der Landesregierung), which upheld the decision on 2 February 1988 but reduced the fine to ATS 200 and the penalty in default to fourteen hours' imprisonment.
8. On 6 April 1988 the applicant applied to the Constitutional Court (Verfassungsgerichtshof). He complained of an infringement of the principle that all citizens are equal before the law and alleged that his being sentenced to imprisonment in default by an administrative authority that was not an "independent and impartial" tribunal breached Articles 5 and 6 (art. 5, art. 6) of the Convention. He also argued that the requirement to wear a safety-belt was an interference in his private life, contrary to Article 8 (art. 8) of the Convention.
On 27 February 1989, at the conclusion of a consideration of the case in private, the Constitutional Court declined to accept the appeal for adjudication (Article 144 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) - see paragraph 12 below), since, in view of its case-law on Article 6 (art. 6) of the Convention, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court (Verwaltungsgerichtshof).
At Mr Schmautzer's request, it also decided to refer the application to the Administrative Court.
9. On 20 September 1989 the Administrative Court stayed the proceedings before it as Mr Schmautzer's application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz - see paragraph 14 below).
10. Section III of the 1976 Act as amended in 1984, which amended the Motor Vehicles Act 1967 (Kraftfahrgesetz), provides:
"1. Where a seat in a motor vehicle is equipped with asafety-belt as required by the Motor Vehicles Act, the driver andpassengers occupying such a seat must wear the safety-belt in theconventional manner (bestimmungsgemäß) ...
...
5. It shall be an administrative offence ... punishable, in a sentence order without a hearing (Organstrafverfügung) pursuant to section 50 of the Administrative Criminal Justice Act 1950,with a fine of ATS 100 for
(a) the driver of a motor vehicle or
(b) a passenger in a motor vehicle
not to comply with the requirement in subsection (1), first sentence. In the event of refusal to pay the ... fine, the authority may impose a fine of up to ATS 300, with up to twenty-four hours' imprisonment in default of payment.
..."
11. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
12. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
13. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
14. Section 34(2) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides:
"Applications which are not barred by any of the circumstances set out in subsection (1), but fail to satisfy the conditions as to form and content laid down in sections 23, 24, 28 and 29, must be adjourned for a brief period to enable their defects to be remedied (Behebung der Mängel); applications not rectified within the time-limit shall be deemed to have been withdrawn."
15. Section 39(1) provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;
5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;
6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.
16. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
17. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42(2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
18. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).
19. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
20. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen).
21. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1