ITEMID: 001-24069
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SOFRI and OTHERS v. ITALY [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants , Mr Adriano Sofri, Mr Ovidio Bompressi and Mr Giorgio Pietrostefani, are Italian nationals who were born respectively in 1942, 1947 and 1943. Mr Sofri is currently in Pisa Prison, Mr Bompressi has been released on licence on health grounds, while Mr Pietrostefani’s whereabouts are unknown. They were represented before the Court by Mr B. Nascimbene and Mr E. Menzione, of the Milan Bar. Mr Sofri is also represented by Mr A. Gamberini of the Bologna Bar and Mr S. Mori, of the Milan Bar. At the hearing on 4 March 2003, Mr Pietrostefani was also represented by Mr J.J. De Felice and Mr I. Terrel, of the Paris Bar. The respondent Government were represented by their Agent, Mr U. Leanza, and his co-Agent, Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 December 1969 a bomb exploded at the Agricultural Bank in Milan. A number of people were killed in the attack, which appears to have been politically motivated.
Superintendent Luigi Calabresi was put in charge of the investigation. He discounted a theory advanced by a section of the media imputing responsibility for the attack to the far right and followed up a lead pointing to anarchist groups. In December 1969 Superintendent Calabresi and his assistants questioned Mr Luigi Pinelli, a railway worker and member of an anarchist group, at a police station in Milan. At the end of the interview, Mr Pinelli was killed in a fall from a window.
Superintendent Calabresi was subsequently accused at various public demonstrations organised by the far left of killing Mr Pinelli. Articles in a newspaper published by Lotta Continua, a political movement led by Mr Sofri and Mr Pietrostefani, were highly critical of him. Criminal proceedings were brought against him, but he was found to have no case to answer.
On 17 May 1972 Superintendent Calabresi was killed in Milan by a young man, who fired two shots before making his getaway with an accomplice in a stolen car, a blue Fiat 125. They were involved in an accident before making good their escape.
On 25 August 1972 the authorities put the car that had been used by the killers in a garage.
Five witnesses provided information on the events during the days that had preceded the murder and a further seventeen on the murder itself. One of the witnesses, Mr G., said that he had had a clear view of the killer and would be able to recognise him. Another said that he had seen two people – a man and a woman – get out of a blue Fiat 125, before getting into another car in which a man had been waiting for them.
Forensic tests were carried out on the Fiat 125 and at the scene of the crime.
The investigations proved inconclusive.
On 20 July 1988 Mr Leonardo Marino turned himself into the police. On being questioned on 21 July by the Public Prosecutor at the Milan Criminal Court he said that he had taken part in the murder of Mr Calabresi on the orders of the leaders of Lotta Continua, Mr Adriano Sofri and Mr Giorgio Pietrostefani. The order had been confirmed by the two principals on 13 May 1972, following an electoral meeting in Pisa. The executive committee of the movement had decided on the killing for political reasons. On 26 July Mr Marino accused Mr Ovidio Bompressi of carrying out the murder. He said that he had waited for him in the blue Fiat 125, which had been stolen the night before the murder.
On 28 July 1988 the Milan investigating judge issued a warrant for the applicants’ arrest at the Public Prosecutor’s request. The applicants were arrested the same day. The warrant contained a statement of the alleged offence. On 1, 3 and 4 August 1988 the applicants were questioned by the investigating judge.
On 12 September 1988 the applicants were assigned to residence. On 18 October 1988 they were released.
On 9 and 16 September 1988 the applicants made a request for the car used by the killers to be tested for fingerprints.
Confrontations were organised between Mr Marino and Mr Sofri on 16 September and between Mr Marino and Mr Bompressi on 20 September 1988.
The applicants denied involvement in the murder or the existence of an illegal executive committee within the Lotta Continua movement.
A request by Mr Bompressi for the investigating judge to interview four witnesses who could testify that he had been in Massa on the day of the murder was turned down.
The public prosecutor’s files of evidence against the applicants came to 12,000 pages.
In July 1989 the files were made available to the applicants and their lawyers, who, by law, had ten days in which to set out their defence.
In view of the large number of documents to be examined, the investigating judge granted a request by the applicants for an extension of time, increasing the period to twenty-six days.
On 5 August 1989 Mr Marino, Mr Sofri, Mr Pietrostefani and Mr Bompressi were committed to stand trial in the Milan Assize Court on a charge of intentional homicide with premeditation. Mr Marino, Mr Bompressi and Mr Pietrostefani were also committed to stand trial with other defendants on charges of armed robbery.
The first hearing was held on 27 November 1989. 159 witnesses gave evidence during the course of 26 hearings. They included Mr Marino and four witnesses named by Mr Bompressi during the preliminary investigations.
In evidence, Mr Marino stated inter alia that he had contacted the carabinieri at least nineteen days before he made his formal deposition (on 20 July 1988) and that only Mr Sofri had attended the electoral meeting in Pisa on 13 May 1972.
At the trial at first instance it was discovered that certain items of evidence relating to the murder were unavailable. In particular, the clothes Superintendent Calabresi had been wearing had been mislaid almost immediately after his death, having disappeared after being sent to the Prefecture in Milan. On 31 December 1988 the Fiat 125 used by the killers was destroyed. The vehicle was subsequently deleted from the public register of vehicles (pubblico registro automobilistico), as no road-fund tax had been paid for the period from 1978 to 1983.
The bullets that had been removed from Superintendent Calabresi’s body had disappeared after July 1988. Under an order of the Milan Court of 5 April 1979 all objects used to commit an offence (corpi di reato) were confiscated after being preserved for ten years. Those with a commercial value were to be sold at auction and the remainder destroyed. The order was confirmed by a memorandum issued by the president of the court on 15 February 1989. On 7 April 1989 the president of the court noted that a number of objects used to commit offences that had been stored in the court’s archives had been badly damaged by water. He ordered their destruction. In a memorandum of 12 February 2001, the director of the office responsible for preserving objects used to commit offences certified that the bullets removed from Superintendent Calabresi’s body had been destroyed along with a large number of other items, pursuant to the aforementioned orders.
On 2 April 1990 the applicants’ lawyers issued a statement deploring the destruction or disappearance of pieces of evidence. They pointed out, in particular, that it would have been possible through forensic tests on Superintendent Calabresi’s clothes to determine the power of the cartridge and whether the gun was long-barrelled or short-barrelled. Tests could have been carried out on the bullets, while an examination of the car would have allowed the accuracy of Mr Marino’s account of the circumstances in which it had been stolen to be verified.
In a judgment of 2 May 1990, the Milan Assize Court sentenced the applicants to twenty-two years’ imprisonment. Mr Marino was given an eleven-year sentence, as his cooperation with the judicial authorities constituted mitigating circumstances. The Assize Court found that he was a credible witness for intrinsic and extrinsic reasons and that his statements were corroborated by various pieces of evidence, such as forensic tests carried out during the course of the investigations and trial, the results of the police inquiries and the statements of other witnesses. The Assize Court considered conversely that the numerous defence witnesses either had a personal interest or were vague in their evidence. They were therefore not credible.
As regards the evidence that had been destroyed, the Assize Court said that, while undoubtedly regrettable, it had had no real impact on the overall prosecution evidence that had been obtained during the investigation and at the trial. Immediately after the murder the police had analysed evidence from the car used by the killers and two sets of thorough forensic tests had been carried out on the bullets. It was true that the destruction of the objects concerned had prevented any further tests or analyses. However, it would, in any event, have been undesirable to repeating them, unless it could help to establish the facts. In the case before the Assize Court, the applicants had alleged, for instance, that it would have been possible to determine from an examination of the car whether, as Mr Marino had affirmed, the wing mirror had been subjected to pressure from a screwdriver (a point that was not mentioned in the police reports). However, even assuming that any marks so made could have been detected eighteen years later, the fact that there was no external corroboration of Mr Marino’s affirmations was not in itself capable of casting doubt on their veracity. If, in the light of the available information, his statements were found to be precise and credible, the Assize Court was entitled to rely on them in reaching a guilty verdict.
The President of the Milan Assize Court, Mr Manlio Minale, had been assigned to the Milan Public Prosecutor’s Office on 24 January 1990. Mr Minale had started his new duties on 11 October 1990, that is to say, before signing the text of the Milan Assize Court’s judgment, which was lodged at the registry on 11 January 1991.
The second and third applicants appealed against that judgment. They argued, in particular, that Mr Marino was not a reliable witness and his evidence contained a number of contradictions.
Mr Bompressi asked for a search to be made for Superintendent Calabresi’s clothes and for the results of the investigation carried out by the Superintendent before his death to be produced. He also requested ballistic tests in order to establish the type of firearm that had been used for the murder. Lastly, he called for the investigation to be reopened.
Mr Pietrostefani submitted that the order committing the accused for trial was null and void, as they had been given only twenty-six days in which to prepare their defence when they should have been given more time in view of the volume of documents and decisions. He, too, called for the investigation to be reopened.
Mr Sofri did not appeal. However, by virtue of Article 587 § 1 of the Code of Criminal Procedure, which provides for “the extension of the benefit of the appeal” (estensione dell’impugnazione – see “Relevant domestic law and practice” below), his case was examined at the hearing in the Milan Assize Court of Appeal and the courts to which it was subsequently referred.
On 23 April 1991 Mr Pietrostefani applied for the case to be transferred to a different assize court of appeal on the grounds that the victim had worked in Milan and the political climate there was hostile to the accused. He also alleged that the judges in Milan were not independent, as, by the time he signed the judgment at first instance, Mr Minale had already taken up his appointment at the public prosecutor’s office.
In a judgment of 13 May 1991, which was lodged with the registry on 31 May 1991, the Court of Cassation dismissed that application. It noted that there was no trace of political or ideological prejudice among any members of the Milanese judiciary. It added that if, as Mr Pietrostefani had alleged, Judge Minale had been assigned to the Milan Public Prosecutor’s Office in order to penalise the accused, the Judicial Service Commission would also have been prejudiced against them, so that there would have been no point in transferring the case to a different assize court.
At the appeal hearing, the Milan Assize Court of Appeal ordered fresh ballistic tests. However, these were conducted using photographic evidence, as the bullets that had been removed from Superintendent Calabresi’s body had been destroyed in the interim.
In a judgment of 12 July 1991, which was lodged with the registry on 8 January 1992, the Milan Assize Court of Appeal upheld the first-instance decision. It found that Mr Marino had confessed to his crime through a genuine desire to repent. His evidence was credible and corroborated by other evidence, including documents and statements by other witnesses. The Assize Court of Appeal also found that the motive for the killing was clearly established by certain articles that had been published in the Lotta Continua newspaper.
The second and third applicants appealed to the Court of Cassation. They argued, inter alia, that the reasoning in the judgment of 12 July 1991 was illogical and that the intrinsic and extrinsic credibility of Mr Marino’s testimony had not been established.
On 15 July 1992 the case was assigned to the full court of the Court of Cassation.
In a judgment of 21 October 1992, which was lodged with the registry on 22 February 1993, the full court set aside the judgment of the Milan Assize Court of Appeal in so far as it concerned the charges of homicide against the two applicants who had appealed and remitted the case to the same court. Mr Sofri also benefited by “extension” from that decision, in accordance with Article 587 § 1 of the Code of Criminal Procedure.
The Court of Cassation found, inter alia, that the Assize Court of Appeal had relied in its decision on Mr Marino’s intrinsic credibility, which had not been proved. It pointed out that the credibility of former accomplices had to be established, firstly, by reference to the following factors: their social, financial and family situation, their past, their links with other accomplices, and the immediate and underlying reasons for their decision to confess and to implicate their accomplices. The intrinsic coherence of their statements then had to be examined with the help of the criteria established by the case-law: notably the accuracy, consistency and spontaneity of the statements. Only after establishing the credibility of the former accomplice (riscontri) was the court to examine the evidence corroborating his or her testimony.
In a judgment of 21 December 1993, which was lodged with the registry on 23 March 1994, the Second Division of the Milan Assize Court of Appeal, presided over by Mr Gnocchi, acquitted the two applicants who had appealed and, by “extension”, Mr Sofri and Mr Marino.
The judgment, which was drafted by Mr Pincioni and ran to 387 pages, pointed to evidence, firstly, that Mr Marino was genuinely repentant, had not sought to accuse the applicants unjustly and bore them no hatred and, secondly, that there was no plot against the applicants. That evidence indicated that Mr Marino was, on the face of it, a credible witness. As it had been asked to do by the Court of Cassation, the Assize Court of Appeal then turned to the intrinsic coherence of Mr Marino’s testimony and concluded that his confession had not been obtained through any duress or mental conditioning, especially as he had not been charged with or prosecuted for any other offences and, therefore, had no interest in accusing the applicants. Mr Marino’s evidence was precise and coherent, in spite of certain contradictions that were no doubt attributable to the time that had elapsed since the murder and the psychological pressure he had been under. It was also necessary to take into account the fact that Mr Marino came from a different cultural background to Mr Sofri and Mr Pietrostefani and had had difficulty in answering the numerous questions put to him by the applicants. As regards corroboration of Mr Marino’s testimony, there was clear evidence of the existence of an illegal executive committee at Lotta Continua and various statements made by Mr Marino accorded with the results of police inquiries and the evidence of various witnesses. The lack of fingerprints inside the car used by the murderers was explained by the fact that they had not touched any of the smooth surfaces.
However, the last five pages of the judgment of 21 December 1993 pointed to testimony on six factual matters that was insufficiently supported by other evidence and constituted “twilight areas” in Mr Marino’s evidence. The relevant circumstances were as follows:
1. Mr Marino had incorrectly identified the colour of the car used to commit the murder.
2. In his initial statements, he had failed to mention that he knew one “Luigi”, who had allegedly assisted him in preparing the murder and stealing the Fiat 125;
3. Mr Marino said that the road-traffic accident that had occurred immediately after the murder had taken place in a car park, whereas an eyewitness said that it had happened elsewhere.
4. Mr Marino said that he had reversed along a stretch of road just before the murder, but this was denied by eyewitnesses.
5. According to some witnesses, the car carrying the killers was driven by a woman, not by Mr Marino (a version that was supported by the fact that the police had found a pair of ladies glasses in the car);
6. Mr Marino could not recall certain items that had been found in the car and which did not belong to the owner.
In view of those circumstances, it was not possible to conclude that Mr Marino’s account was sufficiently corroborated by other evidence, so that his presence in Milan on the day of the murder could not be considered to have been proved. Since his guilt could not be established, his evidence also had to be regarded as unreliable in so far as it concerned acts allegedly committed by the applicants. As a result, it was not necessary to take into consideration his account of the applicants’ role.
The applicants affirmed that Judge Pincioni disagreed with the Second Division of the Milan Assize Court of Appeal’s verdict acquitting them. In a letter of 10 October 2001, the Registry of the Court asked the Respondent Government to advise on the basis of the relevant documentation whether this was true.
In a memorandum from the Ministry of Justice dated 19 November 2001, the Government informed the Court that at the end of the deliberations of the Milan Assize Court of Appeal, composed inter alia of Mr Pincioni, the President of the Assize Court of Appeal had lodged with the registry, in accordance with Article 125 § 5 of the Code of Criminal Procedure, a signed and sealed envelope containing the name of the dissenting judge or judges and details of the issue or issues on which they dissented. The Government stated that the existence of that envelope showed that at least one of the members of the Milan Assize Court of Appeal had disagreed with the decision to acquit. The names of the dissenting judge or judges could, however, only be ascertained by opening the sealed envelope. However, the Government considered that the envelope could not be produced to the Court for the following reasons:
1. Envelopes were only to be opened for the purposes of protecting a dissenting judge against court proceedings for professional negligence.
2. Section 16(5) of the Civil Liability of Judges Act (Law no. 117 of 1988) laid down that such envelopes were to be sent to the court in which the Prime Minister had issued proceedings seeking reimbursement of compensation paid to an injured party from the judge who delivered the decision.
According to the Government, the provisions of domestic law that allowed a derogation to be made from the rules of confidentiality applicable to proceedings in private applied only in special circumstances and could not be interpreted widely by analogy.
The applicants disagreed with the Government and considered that the refusal to produce the envelope to the Court was unacceptable. The Italian authorities had thereby prevented the Convention institutions from gaining access to the sole document capable of establishing a vital point in their submissions.
On 7 April 1994 Mr Sofri lodged a complaint against Mr Pincioni. He alleged that the judge had drafted a “suicidal judgment” with 382 pages devoted to evidence pointing to the applicants’ guilt and barely 5 pages to the areas of doubt that had persuaded the Assize Court of Appeal to acquit.
The Brescia Public Prosecutor’s Office requested that no action be taken on the complaint. It noted that Mr Sofri’s complaints concerned the performance of judicial duties by a judge of the Assize Court of Appeal. It did not constitute a criminal offence for a judge to make mistakes when drafting a judgment. Any such mistakes could, if appropriate, be used as the basis for an appeal against the judgment. By an order of 12 May 1994, the Brescia investigating judge granted the Public Prosecutor’s Office’s application.
Mr Sofri said in response to that decision that he had not appealed to the Court of Cassation and would not be doing so, as he had been acquitted, not convicted.
The Public Prosecutor of the Milan Court of Appeal appealed to the Court of Cassation against the judgment of 21 December 1993, arguing that the reasoning was illogical and contradictory.
In a judgment of 27 October 1994, which was lodged with the registry on 20 December 1994, the Court of Cassation set aside the judgment of 21 December 1993, holding that the reasoning was illogical, contradictory and insufficient, and remitted the case to a different division of the Milan Assize Court of Appeal.
The Court of Cassation noted that the Assize Court of Appeal had carefully examined Mr Marino’s confession and found that it was entirely credible and corroborated by other evidence. However, the last four pages of the impugned judgment referred to “obscure” circumstances which it said justified an acquittal. That manner of proceeding was illogical and contradictory, in particular because the “obscure” circumstances had in fact been clarified in the initial part of the judgment in which the Assize Court of Appeal had explained why they did not cast doubt on Mr Marino’s version of events. Accordingly, the doubts concerning his credibility were superficial only and not based on any concrete and compelling reason capable of outweighing the evidence of guilt referred to in the initial part of the judgment. The Court of Cassation was also critical of the Assize Court of Appeal’s decision not to examine Mr Marino’s evidence concerning the applicants’ liability.
After admitting in evidence A viso aperto, a book containing an interview with Mr Renato Curcio, the suspected leader of the Red Brigades, and testimony from one of the members of that organisation, the Third Division of the Milan Assize Court of Appeal convicted the applicants and sentenced them to twenty-two years’ imprisonment in a judgment of 11 November 1995, which was lodged with the registry on 20 April 1996. It also ruled that prosecution of the offence of which Mr Marino was accused was time-barred in view of his mitigating circumstances.
The Assize Court of Appeal found that Mr Marino had genuinely repented, bore no hatred of or hostility to the applicants and had no interest in accusing them falsely. He was a credible witness whose evidence was coherent, precise and consistent, the inaccuracies in his depositions being minimal and concerning aspects of the murder that were of secondary importance. The court found that the existence of an illegal executive committee within Lotta Continua had been fully established and Mr Marino’s evidence was consistent with the results of the police investigations.
The applicants appealed to the Court of Cassation. They argued that Mr Marino was not a credible witness, since despite declaring himself genuinely repentant after the killing, he had continued to commit armed robberies. They also pointed to numerous contradictions in his statements, which, contrary to what the Assize Court of Appeal had affirmed, had not been eliminated.
Subsequently, X and Y, two members of the jury that had tried the case in the Milan Assize Court of Appeal, made the following statement in private interviews with journalists and lawyers at the beginning of 1996. They said that at the end of the deliberations in the jury room, the jurors had been divided (four votes to four) between those minded to convict and those minded to acquit. The applicants should therefore have been found not guilty under the “most favourable decision for the accused” rule (Article 473 § 4 of the Code of Criminal Procedure). However, the President of the Assize Court of Appeal, Mr Della Torre, had encouraged jurors to change their vote to avoid “ruining” the judgment and forcing the public prosecutor’s office to appeal to the Court of Cassation; at the same time he had assured them that any guilty verdict they returned could be accompanied by a request for clemency for the applicants. Some of the jurors had at that point proposed finding mitigating circumstances to enable the accused to benefit from the statute of limitations. However, Mr Della Torre had also advised against that course of action, arguing that it would be tantamount to saying that they were not convinced of the applicants’ guilt. Two jurors had then changed their minds and voted in favour of a conviction.
On 7 May 1996, after learning of the two jurors’ account of the deliberations of the Milan Assize Court of Appeal, Mr Sofri lodged a complaint against Mr Della Torre for abuse of authority.
On 6 June 1996 the Brescia Public Prosecutor opened an inquiry. On 27 October 1996 Mr Sofri requested that a statement be taken from a Mrs D. whom he said would be able to testify that well before the end of the trial Mr Della Torre had told her privately that the applicants were undoubtedly guilty. Mr Sofri also made a request for statements to be taken from all the members of the Second and Third Divisions of the Milan Assize Court of Appeal (to which the first and second remittals of the case were respectively made).
On 30 September 1996 Mr Bompressi made an application to the Court of Cassation for an order staying the proceedings pending the outcome of the inquiry into Mr Della Torre’s conduct.
On 27 October 1996 Mr Sofri requested the Brescia Public Prosecutor’s Office to interview Mrs D. and all the members, both full and substitute, of the Milan Court of Appeal. He referred, in particular, to Mrs D’s conversation with Mr Della Torre, and said that Mrs D. had immediately informed one of the defendants of Mr Della Torre’s remarks, who had passed on the information to his co-accused and defence counsel.
On 30 October 1996 the newspaper Il Corriere della Sera published a statement by a person who had served on the jury at the second retrial confirming, in substance, Mr Sofri’s allegations. It did not identify its source.
On 7 November 1996 all the members of the jury who had sat at the second retrial were questioned by the Brescia Public Prosecutor or the police. They all said that they were bound by Article 201 of the Code of Criminal Procedure to remain silent about the circumstances surrounding the deliberations in the jury room, which were confidential under Italian law. The Public Prosecutor nevertheless urged them to testify, saying that the duty to remain silent had to yield to the duty of persons holding public office to report criminal offences for which a prosecution lay without a formal complaint being made.
X and Y stood by their depositions. X further stated that in another trial that had ended with the accused’s conviction, Mr Della Torre had congratulated the jury on the vote and added: “I hope that in the Calabresi trial everyone will be like you and no one will allow themselves to be overawed, as last time they acquitted everybody when they shouldn’t have” (Spero che al Calabresi siano tutti come lei, che nessuno si lasci condizionare, perché l’ultima volta hanno assolto tutti, e non dovevano.)
In addition, Y and Z (one of the substitute members of the Third Section of the Milan Assize Court of Appeal) said in evidence that Mr Della Torre had recommended that the jurors should focus in their reading on the judgment drafted by Mr Pincioni and the judgment at first instance. They also said that some of the jurors had had difficulty in obtaining a copy of a pleading filed by Mr Sofri at the original trial.
On 8 November 1996 Mrs D. was also questioned by the Public Prosecutor. She said that she was a “very dear friend” of Mr Pietrostefani’s wife, and greatly admired Mr Pietrostefani. During a private conversation before the trial Mr Della Torre had said that evidence had been obtained to support the accusations that had been made against the applicants, that Lotta Continua was a terrorist organisation and its members madmen (scalmanati). A few days later Mrs D. had informed Mr Pietrostefani of her conversation with Mr Della Torre and said that she was prepared to repeat her account to the authorities.
On 16 December 1996 and 12 February 1997 the Brescia Public Prosecutor questioned Mr Della Torre and Mr De Ruggiero (the latter being the other professional judge who had sat at the second retrial).
In a judgment of 22 January 1997, which was lodged with the registry on 25 February 1997, the Court of Cassation dismissed the applicants’ appeals, holding that the Assize Court of Appeal had given logical and correct reasons for its findings on all the issues. It also dismissed Mr Bompressi’s application for a stay, observing that under the relevant provisions of domestic law (Articles 3 and 479 of the Code of Criminal Procedure) criminal proceedings could only be stayed if their outcome depended on the resolution of a preliminary question of civil or administrative law and that no such measure was available if the preliminary question concerned a point of criminal law. It went on to say that Mr Bompressi’s submissions were in any event manifestly unfounded, as an impugned decision could only be declared null and void as a result of the voting procedure at private deliberations in very specific circumstances.
On 24 January 1997, on an application by Mr Bompressi, the Brescia Public Prosecutor’s Office requested the investigating judge to reopen the inquiry into Mr Pincioni’s conduct, which had been officially closed on 12 May 1994. The Public Prosecutor’s Office submitted that evidence found in the inquiry into Mr Della Torre’s conduct called for new investigations into Mr Pincioni’s conduct.
By an order of 4 February 1997, the Brescia investigating judge dismissed the Public Prosecutor’s Office’s application. He observed, inter alia, that the Public Prosecutor’s Office had produced no new evidence against Mr Pincioni and that the reference to the investigations into Mr Della Torre’s conduct did not appear relevant, as no link could be found between the conduct of the two judges, who had been involved at different stages in the proceedings and in an entirely different context.
On 25 March 1997 the Brescia Public Prosecutor’s Office requested that no further action be taken on Mr Sofri’s complaint. As regards the deliberations and the vote in the jury room, the Public Prosecutor had obtained “disturbing evidence” from certain members of the jury (X, Y and Z) of conduct on the part of Mr Della Torre that could be described as abusive and intended to prejudice the applicants. However, those statements had not been corroborated by the other members of the jury or Mr De Ruggiero. The Public Prosecutor did not think that X and Y were lying and pointed out that X could not have been politically motivated, as he had been a militant for the far right in the past. The explanation was simply that, in the tense atmosphere produced by such a complex and sensitive trial, the two jurors had construed some of Mr Della Torre “inappropriate remarks” as intended to influence the jury. The notion that Mr Sofri had lodged his complaint solely in order to permit him to intervene in the Court of Cassation proceedings could also be ruled out, as he had reported serious matters that might have had a bearing on the position of the accused in the Calabresi trial.
Mr Sofri opposed the request for no further action to be taken on the complaint. In view of the different accounts that had been given by the jurors, he requested further investigations in order to verify how the vote in the jury room had been taken and a confrontation between Mr Della Torre, X and Mrs D.
A hearing was held in private before the investigating judge.
On 26 June 1997 the Brescia investigating judge made an order for no further action to be taken on Mr Sofri’s complaint. He observed, firstly, that legal commentators considered that judges derived their decision-making power directly from the people and consequently could not be guilty of abuse of authority when exercising it. Further, there was no indication that Mr Della Torre was driven by “self interest”, and nothing in the case file to suggest that he had sought to damage the accused or pursue unlawful objectives. In addition, the Public Prosecutor should not have ordered the jurors from the Assize Court of Appeal to answer his questions. The confidentiality of votes cast and opinions expressed in the jury room was intended to guarantee judicial independence and ensure the proper administration of justice. Discussions in the jury room could be animated without being unlawful and the manner in which a court reached its verdict ought not to become the subject of an inquiry. The statements of the members of Assize Court of Appeal had therefore been obtained illegally and were inadmissible in evidence. The complaint should consequently have been filed away for lack of supporting evidence, not because it disclosed no criminal offence. Lastly, a decided case on the abuse of authority indicated that Mr Sofri could not claim to be a victim of the matters complained of. His opposition to the request for no further action to be taken could not therefore be taken into consideration. In any event, the witness statements which Mr Sofri had requested were unlawful in so far as they concerned the subject matter of deliberations in the jury room and irrelevant in so far as they related to other matters.
The investigating judge nevertheless considered it helpful, “in the interests of accuracy and in view of the sensitive nature of the case”, to analyse the evidence that had been obtained by the Public Prosecutor’s Office. He attached little credibility to X’s and Y’s statements and considered that there was considerable doubt as to their spontaneity. In particular, there were a large number of discrepancies between their accounts, which were not corroborated by the statements of the other jurors and Mr De Ruggiero, who denied that there had been any attempt by Mr Della Torre to exert unlawful pressure. In addition, X and Y had initially recounted their story to the press and certain members of the public, rather than to the authorities, and had not expressed dissenting opinions as they were entitled to do by Article 125 § 5 of the Code of Criminal Procedure.
The investigating judge also took into account Mrs D.’s evidence, which the representative of the public prosecutor’s office had regarded as accurate and credible, but not such as to render Mr Della Torre criminally liable, since the matters alleged fell to be considered from a moral and ethical standpoint. The investigating judge noted on the contrary that it appeared highly unlikely that a judge with Mr Della Torre’s experience would have revealed his personal conviction that the accused were guilty to someone whom he had just met and who was a “dear friend” of Mr Pietrostefani. Moreover, even assuming that he had passed on his views, such conduct did not constitute a criminal offence, but grounds for requiring him to stand down. However, the applicants, who were well aware of Mrs D.’s allegations, had not requested him to do so.
Mr Sofri appealed to the Court of Cassation.
In a judgment of 16 December 1997, which was lodged with the registry on 12 January 1998, the Court of Cassation declared the appeal inadmissible, noting that a decision to take no further action could only form the subject of an appeal to the Court of Cassation if the complainant had not been given an opportunity to challenge the order for no further action to be taken and to obtain a hearing in private, or if the investigating judge had failed to state in his order the reasons why such a challenge was inadmissible. In the instant case, no violation of the complainant’s procedural rights could be discerned and Mr Sofri’s allegations related solely to the merits of the Brescia judge’s decision, an issue which the Court of Cassation had no jurisdiction to decide.
On 15 December 1997 the applicants applied to the Milan Court of Appeal for a review, alleging that there was new evidence to show that they should have been acquitted. They referred, inter alia, to the following evidence:
– documents, in particular press articles, a computer presentation of the dynamics of the murder, a reconstitution of the car accident with a witness, the personal diary of Mr Marino’s partner, Mrs Bistolfi, accompanied by the reports of two expert witnesses, one a handwriting expert and the other a psychologist;
– a computer presentation showing photographs of a bullet and of a fragment of a bullet;
– a ballistic expert’s report based on the computer presentation;
– statements by certain witnesses.
According to the applicants, this evidence proved that Mr Marino was not a credible witness.
In particular, Mr G., an eye witness, had stated that two days after the murder, he had been shown photographs by two police officers from which he thought he recognised the killer. He had subsequently recounted this episode at police headquarters, but had been highly disconcerted by the indifference of the officials there and resolved not to talk about the matter further.
Mr T. had said that he had seen Mr Bompressi on the morning of the murder in a bar in Massa, several kilometres from Milan.
Mr A. had said that he had explained to Mr Marino in 1980 or 1981 the legal advantages to cooperating with the criminal-justice system. He had also testified that Mr Marino and his partner were short of money.
Lastly, it appeared from a psychologist’s report and certain extracts from her diary that Mrs Bistolfi was suffering from a form of schizophrenia, that neither she nor Mr Marino knew how the murder of Superintendent Calabresi had been carried out and that, contrary to what she asserted, she had been aware that Mr Marino intended to make a confession. The applicants produced copies of the relevant diary extracts.
They also requested that the civil parties’ submissions be declared inadmissible.
In an order of 10 March 1998, the Milan Court of Appeal dismissed the latter application, holding that the civil parties were entitled to express their views on the application for a review.
In an order of 18 March 1998, the Court of Appeal dismissed the application for a review as being manifestly unfounded. It noted that some of the evidence referred to by the applicants was not new, having previously been examined at first and second instance. As to the remaining evidence, it did not raise any doubts as to the guilt of those who had been convicted.
The applicants appealed to the Court of Cassation against the orders of 10 and 18 March 1998. They argued that, as a result of the judgment of 21 October 1992, the decisions of the courts of first and second instance had been quashed so that evidence that had been presented subsequently had to be regarded as “new”. They also complained that the Court of Appeal had examined the relevance, not just the admissibility, of the evidence on which their application was based.
On 17 June 1998 the public prosecutor sought an order setting aside the orders of 10 and 18 March 1998. He relied primarily on the applicants’ grounds of appeal to the Court of Cassation.
On 18 August 1998 a compulsory residence order was made in respect of Mr Bompressi on health grounds. However, he subsequently returned to prison.
In a judgment of 6 October 1998, which was lodged with the registry on 28 October 1998, the Court of Cassation set aside the impugned orders and remitted the case to a different division of the Milan Court of Appeal. It ruled, firstly, that the civil parties could not take part in the proceedings to determine whether the case should be sent for review. Further, it found that any evidence that was presented but not examined at the trial had to be regarded as “new”. It added that in review proceedings account also had to be taken of expert evidence obtained with the help of new methods and techniques. In particular, the computer presentation of the photographs of the bullets was helpful, especially in view of the fact that the original bullets had improperly been destroyed before the start of the trial at first instance and that the ballistic tests had had to be carried out using the photographs. Furthermore, the Milan Court of Appeal, which should only have carried out a preliminary examination of the admissibility of the application, had in fact conducted a detailed analysis of the relevance of each piece of evidence adduced by the applicants, thereby anticipating the judgment on the merits.
By virtue of new legislation that had come into force in the interim, the Brescia Court of Appeal had acquired jurisdiction to consider the application for a review.
In an order of 23 February 1999, it dismissed the application. It found, inter alia, that the “new” evidence submitted by the applicants was either inconsistent and contradictory, or manifestly irrelevant, and accordingly could not alter the outcome of the proceedings. Furthermore, it was not capable of corroborating the applicants’ allegations of the existence of a “plot” by certain State agents against Lotta Continua.
The applicants appealed to the Court of Cassation.
On 28 April 1999 the public prosecutor applied for an order setting aside the order of 23 February 1999, on the grounds that the Brescia Court of Appeal had examined the “new” evidence separately and not, as it should have done, as a whole.
In a judgment of 27 May 1999, which was lodged with the registry on 30 June 1999, the Court of Cassation set aside the impugned order and remitted the case to the Venice Court of Appeal. It observed, inter alia, that the Brescia Court of Appeal had examined the items of evidence produced by the applicants primarily with a view to disproving the existence of a plot against Lotta Continua, and had thus omitted to examine whether the applicants had grounds for challenging the findings of the courts that had convicted them on appeal. Furthermore, some of the criticism of the new evidence was illogical and de facto anticipated the judgment on the merits. Nor had the evidence been considered as a whole. The Court of Cassation added that the applicants had been within their rights when they produced copies of Mrs Bistolfi’s personal diary and that the question of the authenticity of the copies should have been left to the tribunal of fact.
In an order of 24 August 1999, the Venice Court of Appeal declared the application for a review admissible. It accordingly made an order commencing the review proceedings and provisionally staying execution of the applicants’ sentences. Compulsory residence orders were made against the applicants and they were prohibited from leaving the national territory. These security measures were set aside by an order of 23 November 1999.
The Court of Appeal added that Mr Marino, who had not applied for a review, should also be regarded as an accused, his own conviction being potentially null and void if the applicants were acquitted.
The proceedings began on 20 October 1999. After three hearings, the expert witnesses previously appointed by the Court of Appeal were sworn in on 2 November 1999. The Court of Appeal then heard evidence from Mr Marino, the applicants, a number of other witnesses and expert witnesses who had been appointed by the court of its own motion and the defence. The expert witnesses said, inter alia, that they had concluded from an analysis of the photographs of the bullets and the computer presentation of the photographs that the shots had not been fired from the same weapon, contrary to what Mr Marino had affirmed.
In the course of the proceedings, the applicants applied for an order requiring Mrs Bistolfi to testify to the meaning of certain passages in her personal diary. However, she pleaded her right to remain silent under Article 199 of the Code of Criminal Procedure, as the partner of one of the accused, Mr Marino. The Court of Appeal ruled that that right could also be exercised by a person who, like Mrs Bistolfi, had chosen not to avail herself of it when questioned in the proceedings that had preceded the review proceedings. Moreover, at the review stage, the application was for Mrs Bistolfi to explain the content of her personal diary, which the defence had produced only after the trial was over; in other words she was being asked to give evidence on matters that were unconnected with her previous testimony. The Court of Appeal added that Article 199 of the Code of Criminal Procedure was intended to resolve the conflict between the general interest in ensuring that witnesses to relevant events testified and the private interest arising out of feelings for one’s family which could incite witnesses to lie – and thereby to commit perjury – in order to avoid harming their relatives’ case. In the situation that obtained in the case before it, the legislature and the Constitutional Court had decided that precedence should be given to the latter interest.
On 18 January 2000 the Court of Appeal decided to bring the trial to an end.
In a judgment of 24 January 2000, which was adopted after six days of deliberations in private, the Court of Appeal dismissed the application for a review and revoked the orders staying execution of the applicants’ sentences. It examined the new evidence that had been produced by the applicants and the evidence that had not been taken into consideration in the proceedings on the merits and concluded that it did not justify acquitting the applicants. Although it was regrettable that the bullets had been destroyed, it was not the fault of the investigating judge or the representative of the public prosecutor’s office, neither of whom had even been consulted on the subject. Furthermore, the expert evidence adduced by the applicants on the photographs of the bullets and the car did not prove that they were telling the truth, as it was insufficient to support their affirmations.
The Court of Appeal found that the fact that Mrs Bistolfi had exercised her right to remain silent during the review proceedings did not make her earlier testimony less credible. In any event, that testimony served only to corroborate Mr Marino’s confession and, even without it, the applicants should still have been convicted. The Court of Appeal found in particular that Mrs Bistolfi’s decision had not been taken on a whim, but reflected her wish not to divulge the strictly private details contained in her personal diary.
Although the copies of the diary that had been produced by the applicants had to be considered authentic, the Court of Appeal noted that it was difficult (if not impossible) to decipher the exact meaning of the handwritten notes it contained. The applicants had referred, in particular, to the following undated passage:
“VII purification of the penis and the uterus
I am in the car with Marino.
He stops in front of the town hall and says to me: “The Superintendent now has a post at the town hall.”
A man (Marino?) enters.
He makes himself heard; he takes him under his arm and they leave together.
They make their way along a path lined with wild grasses.
Among the grasses is a stork puppet with a child puppet in its beak.
I think: “It’s the eye witness.”
Marino (?) and the Superintendent head towards the end of the path – the lake –
Making my way back I take the child puppet
as the stork puppet is too big.”
The parties had also mentioned the following phrases:
“Is Marino going to sort his matters out alone?
Am I going to write to Sandro FOR Marino?”
“Last year, on 3 June (I did not
know that it was your birthday
or that a series of horrible things
were in the process of happening to me), in the train,
I sat in seat no. 38 and felt
DON’T NEGLECT ME.”
The Court of Appeal noted that Mrs Bistolfi had not given evidence at the hearing or, therefore, provided her own account of the passages concerned. In addition, it was not possible to establish from an analysis of the entries that Mr Marino’s partner had intended to refer, albeit in an elusive and dreamlike manner, to Superintendent Calabresi’s murder. In that connection, the evidence of certain witnesses showed that at least some of the statements made in Mrs Bistolfi’s personal diary were fanciful and totally divorced from reality. Neither the extracts from her diary or the other evidence relied on by the applicants was capable of establishing that Mrs Bistolfi had been aware that Mr Marino intended to make a confession or that they had prepared his confession together. Moreover, even assuming otherwise, any lies Mr Marino may have told about the circumstances in which he had made his confession did not automatically call into question the authenticity of the facts he had related, as they had been confirmed by other evidence.
A statement of the reasons for the (487 page) judgment of 24 January 2000 was lodged with the registry on 31 March 2000.
Mr Sofri and Mr Pietrostefani appealed to the Court of Cassation.
In a judgment of 5 October 2000, which was lodged with the registry on 23 November 2000, the Court of Cassation dismissed their appeals, holding that the Court of Appeal had given logical and proper reasons for its decision on all the disputed issues.
The assize court and the assize court of appeal are composed of a president, another professional judge (giudice or consigliere a latere) and six jurors (giudici popolari). Substitute jurors attend hearings and replace sitting members if necessary. The votes of the two professional judges and of the jurors on any issue of fact or law carry equal weight.
Italian law does not require the judge who drafts the reasons for the judgment to be chosen from among the majority. Accordingly, even dissenting judges may be assigned the task of drafting reasons for a decision with which they disagree. In practice, the statement of reasons is usually drafted by a consigliere a latere.
Article 125 § 3 of the new Code of Criminal Procedure provides:
“At collective deliberations, at the request of a member of the division who has voted against the decision that has been adopted, a summary record shall be drawn up stating the names of the dissenters, the subject matter or issues with which they disagree and brief reasons for their disagreement.”
Article 587 § 1 of the new Code of Criminal Procedure (which has the same wording as Article 203 of the former Code of Criminal Procedure) provides:
“Where several people have taken part in the commission of an offence, an appeal by one accused shall also benefit the others unless it is based on reasons that are peculiar to the appellant.”
Article 527 § 3 in fine of the new Code of Criminal Procedure (which has the same wording as Article 473 of the former Code of Criminal Procedure), provides that if the vote is split equally at the end of the deliberations, the court will adopt the solution that is most favourable to the accused.
Article 199 § 1 of the new Code of Criminal Procedure states that close relatives of an accused shall not be compelled to give evidence. This provision also applies to a person cohabiting with the accused, but only in respect of facts that occurred or were discovered during the period of cohabitation (see paragraph 3 (a) of Article 199).
Article 201 of the Code of Criminal Procedure provides:
“Save in cases in which they are under a duty to inform the judicial authorities, civil servants and persons holding public office shall be under a duty not to give evidence on confidential facts which they have learnt in the course of their duties.”
Article 630 of the Code of Criminal Procedure sets out the circumstances in which a convicted person may request a review. More specifically, subparagraph (d) of this provision provides:
“A review may be requested ... if, after conviction, new evidence comes to light or is discovered which, by itself or together with evidence that has already been considered, shows that the convicted person should be exonerated...”


ITEMID: 001-98050
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PAVLENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (substantive aspect);Violation of Art. 13;Violation of Art. 6-1 and 6-3-c;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1971 and is serving a sentence of imprisonment in the Irkutsk Region.
6. In November 1999, July 2000 and September 2000 criminal inquiries were opened following discoveries of the dismembered bodies of women (victims K., Ok. and A., Os.).
7. On 22 August 2000 the applicant was questioned in the presence of counsel in relation to an accusation of rape by victim G. On 15 September 2000 the case was discontinued for lack of a corpus delicti, in view of the apparently consensual nature of the relations.
8. Thereafter, on 3 February 2001 a Ms F. accused the applicant of rape and unlawful deprivation of liberty. It appears that on 3 February 2001 the applicant either came to the Barnaul police or was arrested with regard to that complaint. The applicant explained that he had consumed alcohol with the victim at his home on the previous evening, but denied any sexual assault. It appears that, having been apprised of his procedural rights, including the right to legal assistance, he waived this latter right. He was then questioned but apparently made no further statement. The investigator ordered his placement in custody and asked the administration of the temporary detention centre to ensure that the applicant, then a State official (a driver in a sobering-up centre), be kept separately from other detainees (see also paragraphs 43 and 44 below). According to the applicant, on the same date he was refused permission to contact his family in order to retain counsel. The case against the applicant was entrusted to four investigators in view of the case's “complexity and the large amount of work to be done”. On the same day, the investigator heard a Ms S. in relation to the accusations against the applicant.
9. In addition to the investigators, on 4 February 2001 investigator P. of the Altay Regional Prosecutor's Office requested the police department to assign officers for a “series of operational and search measures” to verify whether the applicant had been involved in recent cases concerning the disappearances of female students from a local university (see also paragraphs 14 and 25 below).
10. According to the applicant, after his arrest he asked to be represented by Mr K., an advocate at the local bar association. It appears that the investigator decided that K. could not represent the applicant, given a potential conflict of interest arising from the fact that at the time K. already represented a Mr P. According to the applicant, however, P. retained K. as counsel not earlier than on 19 February 2001.
11. On 6 February 2001 investigator A. listed charges against the applicant in relation to victim F. The applicant was informed of his right to remain silent and his right to legal assistance and admitted his guilt “in part”. He did not want to be represented by the on-duty legal-aid lawyer and thus required adjournment until the following day in order to be represented by (unspecified) counsel retained by his parents.
12. According to the applicant, his mother first learnt about his arrest on 6 February 2001 from his girlfriend, who in turn had learnt about it from a relative, a former law-enforcement officer. When the applicant's mother came to the investigator's office, she was reassured that the applicant did not wish other counsel. She was later told that the applicant was satisfied with the services of counsel D. According to the Government, the applicant's mother first learnt about the applicant's arrest on 4 February 2001.
13. On 7 February 2001 the investigator appointed D. as legal-aid counsel, the applicant's objection notwithstanding. The applicant reiterated his wish to be represented by counsel retained by his parents and remained silent. He was still refused permission to receive visits from them or to contact his family, on the ground that it would adversely affect the conduct of the investigation. As can be seen from the interrogation record, this interview with the investigator was held from 3.15 to 3.20 p.m. However, according to the visitors' logbook, the investigator saw the applicant from 2.44 to 5.06 p.m. on that day.
14. According to the applicant, he was daily questioned in relay for up to twelve hours by investigators and police officers in the temporary detention centre until 2 March 2001. Only the leading officer's name was noted in the visitors' logbook. According to the applicant, he was beaten up by officers who used techniques leaving no traces. In order to obtain confessions, officers also proffered threats against the applicant's next of kin, suggesting, for instance, that they would allow publication of an article in a local newspaper mentioning the names of the applicant's brother and girlfriend; that they would carry out searches in their flats; that they would stage his suicide with the aid of cellmates. On unspecified dates, the applicant was allegedly beaten up by his cellmates, who had been instructed to induce him to make admissions. The applicant subsequently accused the officers of ill-treatment (see paragraph 33 and 42 below).
15. Thus, the following interviews took place:
On 8 February 2001 - by officers, from 4.10 to 5.15 p.m.;
On 9 February 2001 - by officers, from 11.50 a.m. to 1.35 p.m. and from 5.20 to 7.40 pm. On the same date the authorities re-opened the proceedings concerning the alleged rape of G. (see paragraph 7 above).
On 10 February 2001 – by officers, from 11.15 am to 3.20 p.m.;
On 12 February 2001 – by the investigator, from 3 to 4.10 p.m.
16. On 13 February 2001 investigators A. and Sh. had access to the applicant from 10.25 a.m. to 12.25 p.m. and from 3.05 to 7.35 p.m. In his written statement the applicant confessed to a sexual assault against F. and the double murder of A. and Ok. in July 2000. The applicant was questioned from 5.30 to 7.25 p.m. in the presence of counsel D. During that interview, the content of Article 51 of the Constitution was explained to the applicant, and he confirmed that he understood it. He also confirmed he was willing to give testimony and endorsed his earlier confessions on the same day, stating that his admissions had been voluntary and were due to the fact that “he could no longer bear the burden”. According to the applicant, counsel D. was present only from 7.30 to 7.35 p.m.
17. The applicant was questioned by the investigator on 15 February 2001 from 5.27 to 6.57 p.m. According to the Government, at this interview the applicant confirmed his admission in respect of victim F, in the presence of counsel D..
18. On 17 February 2001 the applicant was questioned by officers from 10.20 a.m. to 1 p.m.
19. On 18, 20 and 26 February 2001 the applicant confessed to several offences. According to the applicant, on each occasion he was brought to the principal investigator after questioning by officers, and signed the record. The events during the relevant period can be described as follows:
On 18 February 2001 investigator A. visited the applicant from 12.30 to 2.10 p.m. The applicant was questioned in the presence of counsel D. from 12.30 to 12.50 p.m. about the double murder. In reply to the investigator's question, the applicant stated that he had not committed any other murders.
On 19 February 2001 the applicant was questioned by officers from 2.35 to 4.13 p.m.
On 20 February 2001 the applicant was questioned by police officers from 10 a.m. to 3.30 p.m. The applicant made a written statement concerning the murder of K., indicating that “the confession was voluntary without physical or psychological duress”.
20. Subsequent interviews (without the presence of counsel) were as follows:
On 21 February 2001 the applicant was questioned by the investigator from noon to 3.30 and by (an) officer(s), from 3.15 to 5.25 p.m.;
On 22 February 2001 – by (an) officer(s), from 11.40 a.m. to 2.35 p.m.;
On 23 February 2001 – by the investigator, from 11.43 a.m. to 2.35 p.m.;
On 24 February 2001 – by officers, from 12.15 to 1 p.m.;
On 26 February 2001 the applicant was questioned by officer(s) from 9.50 a.m. to noon and by the investigator from 5 to 6.40 p.m. The applicant made a written statement confessing to the murder of victim Os.
21. As transpires from the visitors' register, on 27 February 2001 the investigator saw the applicant from 11.33 a.m. to 1.07 p.m., while police officer S. saw him from 5.05 to 5.55 p.m. on the same day. The photo identification lasted from 1.10 to 1.15 p.m. in the presence of counsel D.
22. Visits continued thereafter in March and April 2001 (see also paragraph 28 below).
23. According to the applicant, after his mother had read in the local newspaper that he had admitted to serious grave crimes, she realised that she had been misled by investigator A. and retained counsel S. (see below).
24. On 6 March 2001 the applicant was allowed for the first time to see his privately-retained counsel, Mr S. The applicant retracted and sought exclusion of all previously-collected evidence, including his confessions, as obtained under compulsion and without effective legal advice.
25. On 11 April 2001 police officer S. reported back to investigator P. that, following the order of 4 February 2001, a series of “operative measures” had disclosed the applicant's involvement in the murders of Ok., A., K. and Os. At the same time, no connection was established in relation to the disappearances of female students. The report mentioned that the applicant was still being investigated.
26. On 23 April 2001 the applicant was placed in solitary confinement after an altercation with cellmates.
27. During the preliminary investigation a large number of forensic reports were prepared and more than fifty persons were heard as witnesses; many of them gave oral testimony during the trial. Searches were conducted in the applicant's flat and a number of documents were seized.
28. Counsel S. complained that the applicant continued to be visited by police officers who, in his view, were not authorised to deal with the criminal case. On 31 May 2005 the investigator issued an order stating that only four investigators, including himself, were authorised to have meetings with the applicant. When questioned about their activities, the above officers explained to the investigator that they had been assigned the task of verifying whether there might be a link between the applicant and the disappearances of female students other than those already investigated.
29. Upon counsel's complaint, in June 2001 the investigator ordered an inquiry concerning the injuries to the applicant's face, caused on 23 April 2001, and whether he had complained about any ill-treatment. Investigator P. also informed the applicant that the investigators had not been aware that various officers had had meetings with the applicant in the temporary detention centre or the remand centre.
30. In October 2001 the investigator reported to the trial prosecutors' department that the activities carried out by the assigned officers did not permit the conclusion that the applicant had been involved in other criminal offences.
31. The case against the applicant was scheduled for trial before the Altay Regional Court. The applicant admitted in substance the charges in relation to Ms F. He argued that his intercourse with G. had been consensual; that he had no link to the other four persons (victims K., Ok., Os., A.); and that his pre-trial confessions in that connection had been obtained through ill-treatment and psychological pressure on the part of the police officers. In support of his allegation of duress the applicant provided the trial court with an extract from the visitors' logbook of the temporary detention centre for the period from 4 February to 23 March 2001. During that period the applicant received visits from various officers and investigators.
32. The trial court dealt with the applicant's allegations of ill-treatment, confession under duress and the alleged violation of his right to legal assistance during the preliminary investigation. The court heard investigator A., who confirmed that the applicant could not be represented by counsel “named by him” (possibly meaning Mr K.) because at the time the latter represented Mr P. The investigator also confirmed that the applicant was not allowed to receive visits from his mother, in order to prevent them from tampering with evidence and perverting the course of the investigation. The trial court upheld that argument, referring to the applicant's mother's attempt to hand over a message to the applicant asking him to remain silent and to possibly plead temporary insanity.
33. The trial court rejected the allegation of ill-treatment, relying on medical reports dated 3 and 14 February 2001 and considering that the admissions were thus “truthful”. The court heard some of the officers who visited the applicant in detention, and concluded that they had been empowered to question the applicant in relation to the cases for which he was being investigated and also other cases. The court also heard a Mr M., who had been detained with the applicant in March 2001. Mr M. stated that the interrogations of the applicant had spanned the entire day and the applicant had returned to the cell “exhausted”; there had been no traces of violence on him.
34. On 22 November 2001 the Regional Court convicted the applicant of several counts of rape and murder, and sentenced him to twenty-four years' imprisonment.
35. Regarding the applicant's conviction for raping G., the trial court held that “despite the applicant's retraction of his earlier admission, his guilt was proven by the victim's deposition”. The court also referred to several witness statements and medical evidence.
36. In finding the applicant guilty of the rape and unlawful deprivation of liberty of victim F., the trial court relied on the applicant's own admissions reiterated at the trial, the victim's deposition, statements by witnesses who saw the victim escaping from the applicant' flat, and medical expert reports.
37. In finding the applicant guilty of murdering victim K., the court relied on the applicant's pre-trial confession, his interview with the investigator in the presence of counsel D. and the applicant's identification of the victim by a photograph. The trial court considered that the above statements were collaborated by three witness statements as regards the victim's clothes on the day of the murder, the inspection record of the crime scene and the medical expert reports.
38. The trial court convicted the applicant of murdering Ok. and A. on the basis of the applicant's pre-trial admissions, his interview with the investigator in the presence of counsel D. and the applicant's identification of the victim by a photograph. The trial court considered that the above statements were collaborated by the other available evidence.
39. The applicant's conviction for murdering Os. was based on the applicant's pre-trial confession, which the court considered to be “truthful”, despite his retraction. The court held that the applicant could not have learnt the details of this crime from another source.
40. Having heard the prosecution and counsel S., on 22 May 2002 the Supreme Court of the Russian Federation upheld the trial judgment. The appeal court considered that there had been no violation of the defence rights since on 3 February 2001 the applicant had been apprised of his rights to remain silent and to legal assistance. The applicant had signed the record and had waived the right to counsel. From 7 February 2001 the applicant had been represented by counsel D. who attended all investigative measures relied up by the trial court. The appeal court noted that the applicant's pre-trial admissions had revealed circumstances which had not been previously known to the investigative authorities. For instance, as regards victim K., the applicant had given descriptions of the victim and her clothes, and had referred to circumstances concerning her character and way of life. The information supplied by the applicant was then confirmed by statements from various persons heard as witnesses at the trial. Thus, as regards victim Ok., her mother confirmed that the hairpin seized at the applicant's flat belonged to her late daughter. The other physical evidence, taken together, also refuted the allegation that the applicant had not been involved in the murders.
41. After the trial, the applicant sought the institution of criminal proceedings against the principal investigator in his criminal case, alleging forgery of evidence. On 27 December 2004 and 17 January 2005 the Regional Prosecutor's Office refused that request. The applicant unsuccessfully challenged this refusal in the courts.
42. The applicant also sought the institution of criminal proceedings against the officers who had interrogated him in February 2001, alleging ill-treatment. On 14 December 2004 the investigator in the Regional Prosecutor's Office refused to prosecute the officers. This decision was upheld by the higher prosecutor on 31 January 2005. On 19 May and 23 June 2005 the Regional Court took final decisions upholding the district courts' decisions declining jurisdiction in relation to the applicant's complaint about the decision of 14 December 2004. In separate proceedings, on 7 July and 13 October 2005 the Regional Court decided in the final instance that the applicant's complaint about the decision of 31 January 2005 was not amenable to court review.
43. The applicant was kept in the temporary detention centre of the Barnaul Department of the Interior (ИВС УВД г. Барнаула) from 3 February to 2 March 2001, and from 13 to 23 March 2001. Together with other four detainees, he was kept in a cell measuring six square metres. The applicant slept on the floor because no bed, mattress or bedding was provided. The cell was not heated; the ventilation and light were poor. The toilet was not separated from the living area. Food was distributed once a day. The applicant remained all the time in his cell since no outdoor activity was allowed. The applicant was refused permission to have visits or other contact with his family.
44. The applicant subsequently indicated that the levels of heating and humidity in the cell had been unacceptable; he had been given a cup of tea and a piece of bread in the morning and, at times, soup and porridge in the afternoon; he had had no access to a shower and no items for personal hygiene.
45. In the temporary detention centre the applicant was kept in cell no. 15, measuring eight square metres, together with another inmate. A toilet was separated from the main area. The applicant, like other detainees, was provided with a bed and a mattress. Although no bedding was provided, detainees were allowed to use their own bedding. The applicant was also given various items for personal hygiene and allowed to have a shower once per week. The cell had adequate lighting, ventilation and heating systems. The applicant was allowed one hour of outdoor exercise per day, was properly fed and allowed to receive food parcels from his relatives or family. He had access to drinking water. The applicant made no complaints about his detention in the temporary detention centre until December 2004.
46. The applicant's initial description of the conditions of his detention in Barnaul remand centre no. 22/1 reads as follows. The applicant was placed in a cell situated in the basement of the building. The number of inmates in his cell substantially exceeded the design capacity. The cell had a small window, which was not glazed but was instead covered with metal shutters, barring access to natural air and light. The internal light was poor. The toilet was not separated from the main area. The cell was infested with cockroaches. The applicant slept on the floor. The unheated cell was extremely damp. The quality of food was unsatisfactory. During family visits and outdoor activity the applicant remained handcuffed.
47. The applicant subsequently amended his account, indicating that he had been kept in the remand centre from 3 to 12 March 2001, and between 24 March 2001 and 27 June 2002. In the most recent period of his detention he had been alone in cell no. 122 measuring 4.1 square metres in the basement of the remand centre. During that period, the unheated cell was extremely damp; there was no ventilation. The quality of food was unsatisfactory. No bedding was provided. The cell window was not glazed; it was covered with metal shutters, barring access to natural air and light. The internal light was poor. The toilet was not separated from the main area.
48. According to the Government, the applicant was kept in Barnaul remand centre no. 22/1 from 2 March 2001 to 6 April 2002 and from 7 to 27 June 2002. Between April and June 2002, the applicant was kept in a Chelyabinsk remand centre.
49. The Government explained that the relevant logbooks had been destroyed due to the expiry of the retention period. Thus, with reference to affidavits from Mr M, the remand centre governor, the Government affirmed that from 3 to 23 March 2001 the applicant was kept in cell no. 212, measuring 16.9 square metres; from 24 March to 25 April 2001 – in cell no. 190, measuring 16 square metres; from 26 April 2001 to 6 April 2002 – in cell no. 122, measuring 4.5 square metres; and from 7 to 27 June 2002 – in cell no. 118, measuring 4.3 square metres. The applicant shared cells nos. 190 and 212 with two or three other detainees; upon his request, he was detained alone in cells nos. 122 and 118. The latter cells were situated on the ground floor and had windows measuring 0.36 square metres. In compliance with the national legislation in force at the time, the windows were covered with metal shutters, which, however, did not bar the normal access of air and light into the cell.
50. Mr M confirmed that as of 24 July 2007 the above cells had proper lighting, ventilation and heating systems, water supply and toilet facilities. The Government supplied photographs showing the interior of the above cells.
51. In reply to the applicant's complaint, on 30 January 2002 the Prosecutor's Office of the Altay Region admitted that his handcuffing on one occasion had been unlawful.
52. In December 2004 the applicant complained about the conditions of his detention to various public authorities. On 19 January 2005 the Prosecutor's Office acknowledged that the cell windows in Barnaul remand centre had been covered with metal shutters but rejected the other allegations as untrue.
53. On 1 February 2005 the Regional Department of the Interior accepted that some (unspecified) complaints concerning the applicant's detention in the temporary detention centre “had been confirmed”. On 14 July 2005 the Tsentralniy district prosecutor's office forwarded the applicant's renewed complaint for examination by the Regional Department of the Interior.
54. The applicant brought proceeding against the Tsentralniy district prosecutor's office on account, inter alia, of their alleged failure to examine his complaint and to bring the conditions of detention into compliance with the law. Having examined the matter under Article 125 of the Code of Criminal Procedure (see paragraph 59 below), on 16 January 2006 the Tsentralniy District Court of Barnaul rejected his claim. On 16 March 2006 the Altay Regional Court set aside this decision and remitted the matter to the district court. The court held that the first-instance court should have examined why the applicant had been detained in the temporary detention centre for one month. On 29 March 2006 the District Court decided that the prosecutor had failed to examine the applicant's complaint about his lengthy detention in the temporary detention centre.
55. In the meantime, on 27 February 2006 the Regional Prosecutor's Office informed the applicant that the cells in the temporary detention centre had plank beds, toilet facilities and normally housed four to five persons; no bedding was provided to detainees. It is unclear whether the above reply concerned the year 2006 or the period complained of by the applicant.
56. It appears that, having examined the applicant's complaints about the conditions of his detention, on 5 September 2006 the district prosecutor's office refused to initiate criminal proceedings under Articles 285 and 286 of the Criminal Code, concerning abuse of power by a public official.
57. Under Article 47 § 1 of the RSFSR Code of Criminal Procedure, in force at the material time, counsel could be admitted to the proceedings from the moment of announcing/listing charges, or – for an arrested or detained suspect – from the moment of giving him or her access to the arrest record or detention order. If a privately-retained counsel did not appear within twenty-four hours, the authority in charge of the case was allowed to suggest that the person retain another counsel, or to appoint counsel (Article 47 § 2). In order to act as counsel in criminal proceedings an advocate had to be in possession of an order issued by the legal office (§ 4). A single counsel could not represent persons with conflicting interests (§ 5). On 27 June 2000 the Constitutional Court declared the limitation period for access to legal assistance contained in Article 47 § 1 unconstitutional. On 25 October 2001 the Constitutional Court indicated that Article 47 § 4 did not require any special permission for meetings with counsel. However, in the same decision the Constitutional Court invalidated one provision of the 1995 Custody Act in so far as the authorities applied it as requiring counsel who wished to see their clients to obtain special leave from the authority in charge of the criminal case.
58. Under Article 96 of the RSFSR Code of Criminal Procedure, the officer or authority in charge of the criminal case was required to inform without delay the next of kin of the arrested or detained suspect or defendant about his or her place of detention.
59. Articles 123 and 125 of the Code concern judicial supervision over any (in)action on the part of an inquirer, investigator or prosecutor in so far as such (in)action affects a complainant's rights or impedes his or her access to a court. The judge either (i) invalidates the impugned (in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation, or (ii) rejects the complaint.
60. Article 413 of the 2001 Code of Criminal Procedure provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention.
61. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies) provides that prisoners shall be allowed to inform their families immediately of their imprisonment (Rule 24.8). Upon the admission of a prisoner to prison, the authorities shall, unless the prisoner has requested them not to do so, immediately inform the spouse or partner of the prisoner, or, if the prisoner is single, the nearest relative and any other person previously designated by the prisoner (Rule 24.9).
62. Pursuant to Rule 44 § 3 of the Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-108176
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MICHNICOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Ms Anna Michnicová, is a Slovak national who was born in 1957 and lives in Bratislava. She was represented before the Court by Advokátska kancelária Ivan Syrový, s.r.o., a law firm with its registered office in Bratislava.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is a judicial enforcement officer (súdny exekútor – “JEO”).
4. The status and powers of and procedures relating to JEOs are governed by the Enforcement Code (Law no. 233/1995 Coll., as amended - “the Code”), details concerning the remuneration of JEOs for carrying out enforcement proceedings being laid down in the Decree of the Ministry of Justice on Reimbursement and Compensation of JEOs (Decree no. 288/1995 Coll., as amended - “the Decree”).
5. In her official capacity, the applicant acted on behalf of the municipal District of Bratislava – Staré mesto (“the claimant”) in seeking the enforcement of an amount of money payable to the claimant by two individuals (“the defendants”) under a judgment of the Bratislava II District Court (Okresný súd) of 13 September 2000. The sum payable arose in consideration for the sale of non-residential premises by the claimant to the defendants.
6. Under the Decree, as it then stood, the basis for calculating the applicant’s remuneration was the amount of the claim that was being enforced (vymáhané). After the events complained of had taken place, this provision was changed in that the basis for the calculation of a JEO’s remuneration was to be the amount of the claim that had actually been enforced (vymožené). Should the entire claim be enforced, the remuneration would be 20% of that base figure (see paragraphs 33 to 35 in the “Relevant domestic law and practice” section below).
7. On 28 August 2003 the claimant requested that the applicant enforce the judgment and late-payment penalties against the defendants. The accumulated claim amounted in total to the equivalent of 30,150 euros (EUR).
8. On 11 September 2003 a single judge of the District Court authorised the applicant to carry out the enforcement.
9. On 24 September 2003 the applicant issued a notice of enforcement (upovedomenie o začatí exekúcie) by which she notified the defendants that the enforcement proceedings had commenced and that, unless they settled their debt within fourteen days, the applicant intended to enforce the judgment and costs of the enforcement by establishing a mortgage over real property belonging to the defendants and by seeking a forced sale of that property.
10. On 8 January 2004 the applicant issued an order for enforcement (exekučný príkaz) of the judgment. By this order she directed the defendants’ bank to deduct the judgment debt and costs of the enforcement from the defendants’ account. By these means, amounts equivalent to some EUR 1,450 and EUR 350 were recovered, respectively, for the benefit of the claimant and the applicant by way of her remuneration.
11. On 11 February 2004 the claimant and the defendants reached a settlement, in which:
(i) the defendants acknowledged their debt (equivalent to EUR 30,410), consisting of the principal amount (EUR 30,150) and legal fees payable by them (EUR 260);
(ii) the claimant waived one half of the debt on the condition that the defendants paid the remainder according to a payment schedule agreed upon, less the EUR 1,450 that they had already paid; and
(iii) the claimant undertook to withdraw its enforcement petition on the condition that the defendants “settle all provable expenses of [the applicant] that [had been] incurred in connection with the enforcement of the clam [referred to above]”.
12. On 8 March 2004, the claimant lodged a request with the applicant for the enforcement to be discontinued. Reference was made to “an agreement on the payment of the owed amount”.
13. Between 26 May 2004 and 22 February 2005, the applicant requested that the District Court discontinue the proceedings and rule on her costs and the District Court invited the applicant to submit further information. The applicant responded, specifying the amount of her outstanding claim for remuneration at the equivalent of EUR 7,300.
14. In a letter dated 14 February 2005 the claimant informed the applicant that the defendants had paid the outstanding amount of their debt.
15. On 9 May 2005 the District Court discontinued the enforcement proceedings and ruled that the defendants were to pay the applicant the equivalents of EUR 11 by way of remuneration and of EUR 100 exclusive of value-added tax (“VAT”) by way of reimbursement for the costs of enforcement.
16. The District Court referred to Article 203 of the Code and to sections 5 and 16 of the Decree (see paragraphs 32 and 35 to 37 in the “Relevant domestic law and practice” section below). It based the calculation of the applicant’s remuneration on the amount that had been actually obtained for the claimant through the direct involvement of the applicant (EUR 1,450). The amount of remuneration already paid (EUR 350) was deducted.
17. The decision of 9 May 2005 stated that it was not subject to appeal. Later on, the Code was amended so that a decision on the remuneration and reimbursement of a JEO’s costs was made subject to appeal (see paragraph 30 in the “Relevant domestic law and practice” section below).
18. On 18 July 2005 the applicant challenged the ruling of 9 May 2005 concerning her remuneration by way of a complaint under Article 127 of the Constitution to the Constitutional Court (Ústavný súd) (see paragraph 27 in the “Relevant domestic law and practice” section below).
19. She relied on a judgment (nález) of the Constitutional Court of 17 December 2004 in case no. II. ÚS 31/04 (see paragraph 38 in the “Relevant domestic law and practice” section below) and argued, first of all, that her claim for remuneration constituted “possessions” for the purposes of Article 1 of Protocol No. 1.
20. The applicant further argued that there was no justification in law for limiting the amount of her remuneration by calculating it on the basis of the amount actually enforced through her direct involvement. She submitted that the object and purpose of the relevant rules had required that the amount of her remuneration should have been calculated on the basis of the total amount paid by the defendants to the claimant while the enforcement proceedings were pending. This was implied, inter alia, in section 5(2) of the Decree read in conjunction with Article 46 § 3 of the Code (see paragraphs 28 and 36 in the “Relevant domestic law and practice” section below), which regulated the remuneration of a JEO in the event that a defendant settled his or her debt voluntarily.
21. A different approach would allow any defendant to circumvent the law by delaying payment of his or her debt until enforcement proceedings commenced and then paying the debt directly to the creditor without having to bear the consequences, such as the costs of the enforcement.
A distinction between amounts paid through the involvement of a JEO and directly to the creditor without the involvement of a JEO was unfounded and unlawful.
22. Accordingly, the applicant asserted a violation of her rights under Article 1 of Protocol No. 1 and its constitutional counterpart.
23. On 23 October 2007 the Constitutional Court declared the applicant’s complaint inadmissible as manifestly ill-founded.
24. The Constitutional Court observed that the applicant’s entitlement to remuneration as such had not been contested but that what remained disputed was that remuneration’s amount.
25. In those circumstances, her claim did not amount to an existing “possession”. Neither could her hope of her entitlement being realised as a specific amount in accordance with her interpretation of the relevant laws be considered “legitimate” so as to amount to a “possession” under the applicable case-law.
26. The Constitutional Court accepted that the present decision was “at [a] certain variance” with its above-cited judgment in case no. II. ÚS 31/04. However, that judgment had concerned a specific problem relating to VAT. Even though it had not been expressly stated in that judgment, a JEO liable to pay VAT on his or her remuneration had a legitimate expectation to have that amount of tax reimbursed by a defendant. The present decision was thus fully in compliance with the Court’s jurisprudence.
27. Article 127 provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
28. Under Article 46 § 3, as applicable at the relevant time, a JEO is to “abandon” (upustí) enforcement proceedings if the debtor has complied with its obligations as adjudicated and has settled the costs of the enforcement.
29. The supervising court is to discontinue (zastaví) the enforcement if the person who initiated the enforcement has so requested (Article 57 § 1 (c)).
30. Under the Code, as applicable at the relevant time, no appeal lay against a decision on costs upon the discontinuation of enforcement proceedings. However, on 1 September 2005 an amendment (Law no. 341/2005 Coll.) to the Code entered into force, pursuant to which such decisions are now subject to appeal (Article 58 § 5 of the amended Code).
31. In respect of enforcement carried out under the Code, a JEO is entitled to remuneration, reimbursement of costs and compensation for time spent on the matter. These expenses are normally to be borne by the debtor (Articles 196 and 197 § 1) (see also the Court’s decisions of 28 June 2011 in the cases of Mihal v. Slovakia no. 23360/08 (§§ 24 and 25) and no. 31303/08 (§§ 36 and 37)).
32. If the creditor causes the discontinuation of enforcement proceedings, the court can order him or her to cover the necessary costs of the enforcement (Article 203 § 1). This provision implies that the court has the ability, not an obligation, to make an order for costs against the creditor. Such an order presupposes an analysis of procedural responsibility (zavinenie) for the discontinuation. The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor’s responsibility should it be established (a decision by the Constitutional Court of 23 March 2005 in case no. I. ÚS 48/05) (see also Mihal v. Slovakia, no. 3133/08, cited above, §§ 38-40).
33. Under section 4(1), as applicable at the relevant time, the basis for calculating a JEO’s remuneration was the amount of the claim that was being enforced (vymáhané).
34. With effect as from 1 May 2008, section 4(1) of the Decree was amended (Decree no. 141/2008 Coll.) to the effect that a JEO’s remuneration was no longer to be calculated on the basis of the amount of claim that was being enforced (vymáhané), but rather on the basis of the amount of the claim that had actually been enforced (vymožené).
An introductory report (predkladacia správa) and an explanatory report (dôvody) on the amendment refer to “interpretative question marks” and “inconsistent practice in applying” the existing rules in respect of the basis for calculating the remuneration of judicial enforcement officers. The amendment has no retroactive effect.
35. Under section 5(1), a JEO’s remuneration is to be 20% of the figure used as the basis for calculation.
36. In the event that defendants settle their debts themselves and the enforcement is consequently “abandoned” under Article 46 § 3 of the Code, the JEO’s remuneration is to be reduced to one half of the amount calculated pursuant to the abovementioned rules (section 5(2)).
37. If a JEO succeeds in enforcing part of a claim before its enforcement is discontinued, the JEO’s remuneration is to be calculated on the basis of the amount actually enforced (vymožené) (section 16(2)). This provision applied at the relevant time and has remained unaffected throughout the subsequent legislative developments.
38. On 17 December 2004 the Constitutional Court gave a judgment (nález) in an unrelated case no. II. ÚS 31/04, concerning the applicability of VAT to the remuneration of JEOs. In this judgment, the Constitutional Court held that:
“The term ‘possessions’ encompasses things, rights and claims. The Constitutional Court therefore considers that compensation in respect of costs of the proceedings, which is due to a [JEO] upon the discontinuation of enforcement proceedings, constitutes possessions, which are acquired by virtue of a final and binding ruling of an ordinary court awarding it. This claim fully enjoys the protection of [...] Article 1 of Protocol No. 1, because compensation in respect of costs of the proceedings is undoubtedly a claim of a party to the proceedings against another party to the proceedings, which is moreover enforceable as any other financial claim.
A claim for compensation of costs of proceedings has to be allowed to the party concerned in the entire scope envisaged by statute, which includes [VAT] in so far as the party concerned is liable to pay that tax under the applicable statute on the amount awarded.”


ITEMID: 001-57814
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF SALESI v. ITALY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 8. Mrs Enrica Salesi lives at Pomezia (province of Rome). The facts established by the Commission pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as follows (paragraphs 15-17 of its report):
"15. On 28 February 1986 the applicant instituted proceedings against the Minister of the Interior before the Rome magistrate’s court (pretore)",
seeking payment of a monthly disability allowance which the Lazio social-security department had refused her.
"16. Preparation of the case for trial began at the hearing of 21 May 1986, on which date the court ordered an expert opinion. The expert appointed took the oath at the hearing of 17 June 1986. At the end of the hearing held on 2 December 1986 the court ordered the Minister of the Interior to pay the allowance requested. The text of this decision was deposited with the registry on 16 December 1986.
17. On 21 April 1987 the Minister of the Interior appealed against the above decision and, on 5 May 1987, the President of the Rome District Court arranged for the appeal to be heard by the competent division of the court on 24 May 1989. On that date the Rome District Court dismissed the appeal and upheld the contested decision."
9. According to the information given to the Court by the applicant, the judgment was filed in the registry on 27 January 1990; the Minister appealed on points of law on 20 July, but the Court of Cassation dismissed the appeal in a judgment of 5 June 1991 that was filed in the registry on 10 March 1992.
10. The applicant’s claim was based on Law no. 118 of 30 March 1971 (Law no. 118/71), enacted pursuant to Article 38 of the Italian Constitution, which provides:
"All citizens who are unfit for work and lack the basic wherewithal to live shall be entitled to means of subsistence and welfare assistance.
...
The bodies and institutions set up or supported by the State shall be responsible for discharging the functions provided for in this Article.
..."
11. Under section 13 of Law no. 118/71, the State pays a monthly disability allowance (assegno mensile) to disabled ex-servicemen and civilians aged 18-64 who have been found to be more than two-thirds disabled and who are destitute.
12. As this is a compulsory welfare benefit, disputes over the existence of a right to the allowance come within the magistrate’s labour jurisdiction, and trial procedure is governed by the provisions laid down for labour proceedings (Articles 442 and 444 of the Code of Civil Procedure).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1