ITEMID: 001-22714
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: PLAFTAK and OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Ms Marija Plaftak, Mr Stjepan Oštrec, Mr Zvonko Grdan, Ms Marija Miljković, Mr Đuro Pišpek, Mr Franjo Miser, Mr Ivan Turek, Mr Marko Vugdragović, Mr Boris Štrukelj, Ms Zlata Strmečki, Mr Željko Derdić, Mr Branko Fuček, Mr Milan Dragičević, Mr Boris Barbarić, Mr Slavko Mladić, Ms Rezika Vraneković, Ms Marija Premuž, Ms Danica Zrinšćak-Klein, Ms Olga Andrun, Mr Slavko Oršić and Ms Marija Horvatin, are Croatian citizens, who were born in 1947, 1942, 1946, 1927, 1939, 1935, 1944, 1940, 1934, 1926, 1968, 1943, 1951, 1930, 1953, 1938, 1925, and 1949 respectively and live in Zagreb, Zelina, Bjelovar, Petrinja, Samobor, Čazma and Sveta Nedjelja. They are represented before the Court by Mr Zvonko Nogolica, a lawyer practising in Zagreb.
The facts of the case, as submitted by the applicants, may be summarised as follows.
During 1992 the applicants lent various sums of money to company M.J.B. in Zagreb at a high rate of interest (so-called financial engineering).
As the company failed to repay the loans, the applicants instituted civil proceedings on 30 March 1995 in the Zagreb Municipal Court (Općinski sud u Zagrebu) for re-payment of their loans.
The proceedings are pending before the court of first instance.
Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 - hereinafter “The Act of 15 March 2002” - Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.


ITEMID: 001-119967
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF ANĐELIĆ AND OTHERS v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Helen Keller;Paulo Pinto De Albuquerque
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. All applicants were former employees of “LETEKS” u stečaju (the debtor), which was, at the relevant time, a company predominantly comprised of socially-owned capital.
7. Since the debtor failed to fulfil its contractual obligations towards employees, on unspecified date, the applicants instituted civil proceedings against it.
8. On 18 April 2008 the Municipal Court in Leskovac ordered the debtor to pay them:
i. the salary arrears due between 1 July 2001 and 13 July 2003, plus interest; and
ii. 376,520 Serbian Dinars (RSD) for their costs and expenses.
9. On 3 October 2010 this judgment became final.
10. In the period between 17 November 2008 and 16 December 2008 each applicant filed separate requests for the enforcement of the above judgment.
11. The Municipal Court in Leskovac ultimately accepted the applicants’ requests and issued the enforcement orders respectively. The essential information as to the enforcement proceedings in respect of each application are indicated in the Annex.
12. On 25 January 2011 the Commercial Court in Leskovac opened insolvency proceedings in respect of the debtor (St. 47/2010).
13. The applicants duly submitted their respective claims.
14. On an unspecified date the applicants’ claims based on the judgment of 18 April 2008 were recognised.
15. The insolvency proceedings against the debtor are still ongoing.
16. On 5 December 2006 the debtor was privatised.
17. On 8 April 2008 the contract for the sale of the debtor was annulled because the buyer in question had failed to fulfil his contractual obligations.
18. As of June 2008 the debtor has been comprised of predominantly State-owned capital.
19. On 31 October 2010, the applicants filed a constitutional appeal.
20. The case is still pending before the Constitutional Court.
21. Article 93 §§ 1 and 2 provides that “as of the day of institution of the insolvency proceedings” the debtor cannot simultaneously be subjected to a separate enforcement procedure. Any ongoing enforcement proceedings shall thus be stayed, while new enforcement proceedings cannot be instituted for as long as the insolvency proceedings are pending.
22. The reminder of the relevant domestic law is set out in the cases of R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008, §§ 71-76) and the case of Marinković v. Serbia (dec.), no. 5353/11, 29 January 2013.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-118675
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: CUPRIANOV v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Eugeniu Cuprianov, is a Moldovan national who was born in 1971 and lives in Chişinău. He was represented before the Court by Mr V. Zama, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. At the time of the events the applicant was employed by the Moldovan national railway company as a train attendant. On 3 April 2007 one of his colleagues, S.H., was arrested at work on suspicion of involvement in the smuggling of drugs by train to the Russian Federation. He had in his possession a bag containing a considerable quantity of marijuana. Later the same day the applicant was arrested. According to the police’s version of the events, confirmed by S.H., the applicant’s role was to hide the bag in a train in order to have it smuggled into the Russian Federation.
4. On the day of the applicant’s arrest he was taken to the police station, where he was allegedly subjected to ill-treatment. He did not confess to the offences he was accused of but only said that some time earlier S.H. had enquired whether he would be willing to transport drugs to an unspecified direction and that he had replied no. He also stated that S.H. had asked where it would be possible to hide drugs in the train. During the questioning he was assisted by a lawyer. A search was carried out at his home and a small quantity of marijuana was found. The police also found equipment for producing dried marijuana and a picture of him next to a large marijuana plant.
5. On 5 April 2007, after engaging a lawyer, the applicant complained to the prosecutor’s office that he had been ill-treated at the police station. Later the same month the applicant underwent a medical examination by a forensic doctor, who found bruises on his face and scratches on his head and shoulder.
6. On 27 April 2007 the prosecutor’s office dismissed the applicant’s complaint of ill-treatment and found that his injuries had been caused by his resistance to his arrest. The applicant appealed to the hierarchically superior prosecutor’s office, which dismissed his appeal on 26 March 2008. He did not challenge this decision before the investigating judge.
7. During the criminal proceedings against him, the applicant submitted that he had been ill-treated to make him confess and that the small quantity of marijuana at his home had been planted by the police. The co-accused S.H. submitted that he had agreed to incriminate the applicant during the investigation phase of the proceedings in exchange for a promise by the police not to prosecute him. He did not complain about any form of pressure or ill-treatment. The prosecution also obtained a medical report which stated that the applicant was not a user of marijuana.
8. On 24 March 2008 the Centru District Court found the applicant guilty and sentenced him to seven years’ imprisonment on charges of fabricating narcotic substances for the purpose of sale. At the same time the court acquitted the applicant of the charges of attempted smuggling of narcotic substances. The court based its decision, inter alia, on the statements made by S.H. immediately after his arrest and on the findings of the search of the applicant’s home. The court dismissed the applicant’s complaint that he had been ill-treated, relying on the prosecutor’s decision. S.H. was also found guilty and received the same sentence. Both the applicant and S.H. appealed.
9. On 11 June 2008 the Chişinău Court of Appeal upheld the applicant’s appeal and acquitted him. The court found contradictions between S.H.’s statements in respect of the applicant made at the investigating stage of the proceedings and his testimony during the trial. Moreover, the court found the prosecution’s version of the facts unreliable, because the applicant’s passport had no longer been valid at the relevant time and he would not have been able to travel abroad on the day in question as stated in the indictment. S.H.’s conviction was upheld by the Court of Appeal. The prosecution and S.H. appealed to the Supreme Court of Justice.
10. On 27 January 2009 the Supreme Court of Justice upheld the prosecutor’s appeal, quashed the judgment of the Chişinău Court of Appeal and upheld the judgment of the first-instance court. It dismissed the applicant’s submission to the effect that he had been ill-treated during the investigation phase of the proceedings and observed that his ill-treatment complaint had been dismissed by the prosecutor’s office. The Supreme Court also found that the prosecution had presented sufficient evidence to prove the involvement of the applicant in the fabrication of narcotics with the purpose of further sale.
11. According to Articles 298, 299 and 313 of the Code of Criminal Procedure a complaint about ill-treatment is to be lodged with the Prosecutor’s Office and the decision of that office is to be challenged before the hierarchically superior Prosecutor’s Office. The decision of the latter body can be challenged before an investigating judge. The explanatory judgments of the Plenary Supreme Court No. 7 and No. 8 dated 4 April 2005 and 30 October 2009 respectively, confirm that this is the remedy to be used in cases concerning ill-treatment and torture.


ITEMID: 001-57614
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF KAMASINSKI v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;No violation of Art. 14+6-1 and 14+6-3-c;Not necessary to examine Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: J.A. Carrillo Salcedo
TEXT: 10. The applicant is a citizen of the United States, now residing in Connecticut, United States of America. He entered Austria in the summer of 1979 and was arrested in Mödling (Lower Austria) on 4 October 1980 on suspicion of fraud and misappropriation under a warrant issued by the Innsbruck Regional Court (Landesgericht). On the same day he was taken to Vienna where, on 6 October 1980, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) remanded him in custody. On 15 October he was transferred from Vienna to the Innsbruck Regional Court Prison (Landesgerichtliches Gefangenenhaus).
11. The applicant was interrogated by police officers on 15 October, 6 November and 16 December 1980. During the questioning on 15 October interpretation was provided by a prisoner who, however, had only a limited knowledge of English. The person who interpreted on 6 November, whilst not a registered interpreter, was someone regularly asked to assist at police interviews when no registered interpreter was available. It cannot be established from the evidence adduced whether the person who provided interpretation on 16 December 1980 was a registered interpreter or not. In accordance with the usual practice the applicant received neither copies nor written translations of the records of these interrogations.
12. Registered interpreters were present during the pre-trial interrogations by several investigating judges on 17 October, 27 October, 28 November and 1 December 1980. The procedure followed was that the investigating judge put a question or a series of questions in German to the applicant through the interpreter and the applicant replied in English through the interpreter. The judge then had the typist record a summary of the applicant’s answers which he considered relevant. The extent to which the recorded version was interpreted for the applicant at the end of the interrogation was disputed. On at least two occasions the applicant refused to sign the record on the ground that it was written in a language he could not understand.
13. On the applicant’s motion granted by the competent court, an official legal aid defence counsel was appointed for him by the Tyrol Bar Association. This lawyer set out in writing the applicant’s objections to his detention on remand. However, the applicant wrote to the court on 31 October 1980 complaining that the lawyer did not speak English sufficiently well, and the lawyer asked to be relieved of his duties as counsel for the same reason. In view of this situation the remand review hearing of 19 November was adjourned at the applicant’s request. The Review Chamber (Ratskammer) instructed the investigating judge, inter alia, to take steps for the appointment of another lawyer with sufficient command of English. As a result Dr Wilhelm Steidl, a lawyer who is also a registered interpreter for the English language, was nominated legal aid defence counsel on 26 November.
14. Dr Steidl visited the applicant for the first time on 3 December 1980 for at least fifteen minutes. On the same day he also appeared for the applicant at the adjourned remand review hearing before the Review Chamber. Immediately thereafter he lodged a complaint on the applicant’s behalf against the Review Chamber’s decision to prolong the detention on remand. Subsequent visits by Dr Steidl were made on 19 and 30 December 1980 and 21 January and 9 February 1981.
15. On 16 February 1981 the indictment, a document of six pages, was served on the applicant at a session before the Innsbruck Regional Court. The applicant was charged with aggravated fraud (sections 146 and 147 § 3 of the Criminal Code) on seven counts and misappropriation (section 133 §§ 1 and 2 of the Criminal Code) on one count. The alleged offences consisted essentially of failure to pay certain bills, notably rent and telephone invoices. A registered interpreter was present, but the extent to which the indictment was interpreted is in dispute between the parties. The session lasted about an hour. The defence counsel did not appear and was eventually contacted by telephone, when he informed the applicant that he would not attend the session since this would serve no useful purpose and advised against raising any objection to the indictment.
The minutes of this session record that the defendant was given notice of the indictment, that he asked for it also to be served upon his defence counsel, and that he entered an objection (Einspruch) to it. His grounds for the objection included the following. He had already written nine letters presenting the evidence sought. Despite his repeated requests he had never received any of the telephone invoices he was accused of not having paid. He had also demanded to be confronted with incriminatory evidence but had never obtained this evidence for review. With the assistance of the judge he formulated a general objection that the indictment was defective and accordingly requested its review. According to a note appended to the minutes, Mr Kamasinski refused to confirm by his signature that he had been given notice of the indictment for the reason that he did not as a matter of principle sign documents drafted in German.
Neither on this occasion, nor later, was Mr Kamasinski provided with a written translation of the indictment.
16. Upon return to his cell, the applicant wrote the following letter to his defence counsel:
"As you know I received the indictment today. Perhaps you would be kind enough to explain to me why you arranged to be telephoned instead of being present to give me advice? How in [deleted expletive] name can you advise me before ever seeing that which you are to advise about? The young doctor ?? told me I had to make up my mind instantly concerning whether or not to appeal. He typed something out and when I made a correction by inking out an obvious mistake, the ?? went [deleted expletives]. ‘You cannot alter what I write for you to sign, it is forbidden’. I told him to do the then appropriate thing with the paper and he ordered the interpreter ... to sign it.
... I wish you to give me legal advice concerning the indictment:
1. Are there grounds for appeal?
2. What are the grounds available to appeal against an indictment?
3. Can I call witnesses on my behalf and compel them to attend the trial?
4. Will you assist me in a legal manner?
It certainly appears as though you believe the decision on my guilt is pre-ordained otherwise you would not advise others that I will be found guilty without ever seeing the evidence, discussing it with me or ever seeing the indictment. Of course, you have advised me I would be freed on the same basis ..."
17. Four days later, on 20 February 1981, Dr Steidl came to visit the applicant in prison and informed him that he would withdraw the objection to the indictment since it was bound to be rejected. This he did by a letter of the same day.
Dr Steidl paid further pre-trial visits to the applicant on 16 March, 27 March and 1 April. The applicant was absent from his cell for one hour, thirty minutes and twenty minutes respectively.
18. On 12 March 1981 the applicant wrote to Dr Steidl in the following terms:
"... I shall be writing Dr Braunias [the judge presiding over the Chamber of the Regional Court competent to hear the case] asking him to please help me to obtain EFFECTIVE legal counsel, in the event I do not see the evidence and file prior to 19 March, which is only two weeks before the trial! ..."
The applicant wrote another letter on 16 March instructing Dr Steidl to ensure the attendance at the trial of all witnesses against him and to summons two defence witnesses to appear.
The same day Dr Steidl filed a written motion for the hearing of five witnesses, including Mrs Rebecca Wellington, together with a motion for some of them to be enjoined to bring certain documents. He later filed additions to this evidentiary motion by telephone. In particular, he asked on 31 March for Mrs Theresia Hackl to be summonsed to testify at the trial.
19. On 16, 19, 23 (or 24) and 30 March 1981 the applicant sent letters to the presiding judge.
In his letter of 16 March the applicant asked for trial in camera because of fears concerning his personal security. The contents of this letter were also explained over the telephone to the presiding judge by the prison legal officer, Dr P. In view of these fears a detective officer in plain clothes was eventually asked to attend the trial.
The applicant’s letters of 19, 23 (or 24) and 30 March to the presiding judge, which were carried by hand from the Regional Court Prison to the Regional Court in the usual way, are now missing from the court file, and not indexed there. The Government are unable to give an explanation therefor.
The contents of these letters were a source of dispute. The applicant asserted that their essentials were as summarised in subsequent letters he addressed to the presiding judge after the trial (see paragraph 23 below). According to the Government, on the other hand, as far as the presiding judge remembers the missing letters contained repetitions of matters already on the file. The presiding judge, so the Government stated, asked the applicant’s counsel to read the letters and to discuss their contents with his client; the judge invited counsel to raise the arguments made in the letters at the trial and to introduce motions accordingly.
20. The applicant wrote in the following terms on 25 March 1981 to the prison legal officer, Dr P.:
"Dr P.,
May I have an answer to my last note?? There is only 5 working days until the trial which is scheduled on the 2nd of April. I have not had an answer to any requests sent [to] Dr Braunias. Does he ignore me because I write only in English? Does he also ignore the Austrian law in the same way as the U-richter [investigating judge]? I have not yet seen the evidence irrespective of the fact I have an assigned lawyer. Having a lawyer that does nothing does not satisfy justice.
You people must be crazy to think you can carry on a system of justice in such an oppressive manner.
What do I have to do after six months to get the consideration I deserve? Must I hurt myself? Certainly you understand what is going on and you can easily telephone Dr Braunias and inquire.
I will not write you or Dr Braunias again. If I do not have a satisfactory reply in accord with Austrian law and the European Human Rights Convention, Article 6 (art. 6) by the end of the day of March 26, Thursday, I shall take drastic steps! I have had enough of this charade."
21. As confirmed by the prison records, a letter from the applicant to the public prosecutor was transmitted in the usual way on 30 March 1981. However, the prosecutor’s office has no note of ever receiving the letter. According to the applicant, in it he requested the prosecutor’s assistance in obtaining defence evidence and was critical of the services of Dr Steidl.
22. On 1 April 1981, the day before the trial opened, the applicant was visited by two officers of the United States Embassy in Vienna. According to a memorandum subsequently drawn up by one of them for the files of the Embassy the applicant "complained that his public defender, Dr Steidl, had not discussed his defence with him yet and that he had had no chance to review the court file himself. (Dr Steidl had told me over the phone several days ago that he had spent a total of three hours discussing the defence with Mr K. and that he would see him again shortly before the trial)".
23. After the trial the applicant wrote a number of letters to the presiding judge.
In one, dated 4 May 1981, he said:
"Please note that on the 19th of March last, I wrote you requesting access to the records and informing you that Dr Steidl had not yet prepared me nor studied the records of the Court. I requested you to discharge Dr Steidl if his assignment was the basis to refuse me access to the records. On the 30th of March, I wrote you again to inform you that Dr Steidl had not prepared me for the trial nor provided or translated all the relevant witness statements. You ignored both letters and further did not answer a letter requesting permission to present certain documents in English. I realise surely that it was the duty for Dr Steidl to take up these matters with you but he refused to do anything."
In a subsequent letter dated 18 May he summarised the contents of his letters of 16, 19 and 30 March and complained about not having received any response. This letter, together with a German translation prepared by the prison legal officer, was forwarded to the presiding judge on 26 May. There, the applicant stated the "important elements" of his previous letters as follows:
"...
2. On the 19th of March, I wrote you a letter to request an inspection of the court records (Akteneinsicht) and informed you therein that I had little knowledge of any of the alleged evidence, documentary or testimonial. I specifically asked you to discharge Dr Steidl if his representation of me was to be a basis of denying me direct access to the evidence. I stated that it was more important for me to know of the basis of the allegations (so as to prepare a defence) than to be represented by a lawyer. I presume that you did not give me access to the evidence requested nor did you discharge Dr Steidl because you did not understand my letter. (To this date, I do not have knowledge of the majority of the evidence).
3. On the 19th of March I also requested permission to present documentary evidence in English, which request I presume was never answered because it was not understood.
4. On the 30th of March I wrote to inform you that my appointed lawyer, Dr Steidl, had still not prepared me for the trial on the 2nd of April nor given me access [to] or knowledge of the prosecution evidence. (The situation remained the same as reported in my letter of the 19th of March except that at 4:15 in the afternoon of April 1st, Dr Steidl came to inform me that no further preparation was necessary since ‘nothing’ would happen to me on April 2nd).
..."
24. The trial before the Innsbruck Regional Court, sitting as a court with lay assessors (Schöffengericht), took place on 2 April 1981. It was attended by two officers of the United States Embassy in Vienna as observers but apparently by no members of the public. The Court was composed of two professional judges and two lay assessors.
It is the applicant’s contention, as corroborated by the United States consular observers, that the indictment read out at the beginning of the trial was not interpreted into English. However, according to the consular observers, the applicant, when asked, said that he understood the charges and he and his counsel waived interpretation of the indictment.
After the indictment was read out, Mr Kamasinski was invited to make a statement and was questioned by the presiding judge pursuant to section 245 of the Code of Criminal Procedure (Strafprozessordnung) (see paragraph 49 below). The record shows that he stated, among other things, that he was not guilty of any criminal charge.
25. About halfway through the trial, there was apparently a dispute between the applicant and his defence counsel as to whether requests should be made for the hearing of further witnesses including a lawyer, Dr E., who had been acting as the applicant’s business agent responsible for settling his debts and whom the applicant suspected of double-representation. Dr Steidl, considering this suspicion as an attack against the reputation of Austrian lawyers in general, thereupon asked the court to be discharged from his functions as the applicant’s defence counsel. However, the court rejected this request. Dr Steidl accordingly continued to represent the applicant until the end of the trial. There is no mention in the record of Mr Kamasinski’s having asked for replacement of his legal aid defence counsel.
In his concluding address to the court Dr Steidl asked for a "lenient judgment" ("mildes Urteil") for Mr Kamasinski.
26. Mrs Rebecca Wellington and Mrs Theresia Hackl, two prosecution witnesses summonsed to attend at the request of the defence (see paragraph 18 above), did not appear at the trial. With the consent of the defence and the prosecution, the pre-trial deposition of Mrs Hackl was read out to the court pursuant to section 252 § 1.4 of the Code of Criminal Procedure. The applicant had not been provided with an English translation of this deposition. The applicant himself furnished evidence as to the payment of his debts to Mrs Wellington. A third witness, Mrs Hedda Bruck, did not appear because she had not been called by either the prosecution or the defence. Evidence on matters to which she could have spoken was taken from other witnesses who did testify.
The court refused a motion by both the prosecution and the defence to institute investigations into Mr Kamasinski’s bank account in New York, as well as a motion, eventually submitted by defence counsel on Mr Kamasinski’s insistence, for the lawyer, Dr E., to be called.
27. A registered interpreter was present, sitting next to the applicant’s defence counsel to the left of the judges’ bench, while the applicant was sitting at a distance of about 6 to 7 metres from his defence counsel facing the bench.
The record of the trial states that an interpreter attended but, in accordance with the usual practice, does not specify which of the statements made during the trial were interpreted or the extent to which this was done. It is uncontested that questions put to prosecution witnesses by the court and the public prosecutor were not interpreted, whereas the extent to which witnesses’ answers and other statements were interpreted is a subject of dispute. In accordance with the usual practice the interpretation provided was not simultaneous but consecutive and summarising.
According to the record of the trial, no formal objection was raised by the defence at the time with respect to the extent of the interpretation provided.
28. The minutes, which are fifteen pages long, record the applicant’s opening declaration as to the various charges, the testimony of seven persons heard as witnesses, the motion made by the prosecution and the defence to institute investigations into the applicant’s bank account in New York, the motion made by the defence to hear three more witnesses and to inquire through Interpol whether the applicant had previously been convicted in America, the United Kingdom and Belgium. According to the record a number of documents were read out, including the pre-trial deposition of Mrs Hackl. Finally, the minutes record the final submissions by the prosecution and the defence, the court’s decision to refuse to take further evidence and the declaration made by the prosecution reserving its right to lodge a plea of nullity in respect of that decision. They conclude by stating that the court gave judgment, together with its reasons, and indicated possible means of appeal. The last sentence reads: "The parties made no comment."
29. Mr Kamasinski was found guilty of aggravated fraud and misappropriation and sentenced to eighteen months’ imprisonment, inter alia on charges involving debts owed to Mrs Hackl, Mrs Wellington and Mrs Bruck. After recounting the facts found, the judgment records the defendant’s declaration that he was not guilty of any criminal offence. According to the judgment, he essentially admitted having incurred the debts for rent and telephone covered by the first seven counts in the indictment but asserted that he had been willing and able to pay these debts. The court held that this defence was contradicted by the evidence before it. With regard to Mrs Wellington the court referred to the fact that the evidence adduced by the applicant himself showed that he had only partly settled his debt to her. He was also ordered to pay ATS 80,890 to two private parties (Privatbeteiligte) who had appeared as witnesses for the prosecution and who had claimed compensation (section 47 § 1 of the Code of Criminal Procedure). The applicant and the consular observers are agreed that only the verdict and the sentence, but not the reasons, were interpreted into English. The Government, on the other hand, concur with the finding of the Supreme Court (see paragraph 37 below) that the judgment, including the reasons, was orally translated in all essential parts.
The written judgment was served upon the defence counsel, Dr Steidl, on 19 May 1981. The following day, Dr Steidl visited the applicant in prison, but declined to translate the whole text of the judgment for him. The applicant received a copy thereof (in German) on 27 May but was not provided with a written translation.
30. On various dates between October 1980 and February 1981, Mr Kamasinski was served with invoices in respect of interpretation charges incurred during the course of the pre-trial investigation. However, following the intervention of the United States Embassy, the Austrian authorities eventually confirmed in September 1981 that he was not liable for interpretation costs.
31. Subsequent to the trial, on 6 April 1981, the applicant wrote a letter to the prison legal officer asking him to convey to the presiding judge his request to have a new defence counsel appointed, as he did "not get along with Dr Steidl", and also asking for advice what to do in order to obtain a new lawyer. This letter was forwarded to the competent department of the Regional Court on 7 April where it was received the next day. The applicant also wrote to Dr Steidl informing him that he had asked for the appointment of another defence counsel. On 5 May he wrote in similar terms to the President of the Tyrol Bar Association.
32. In addition he sent a number of letters to the presiding judge (dated 6 and 21 April and 4 and 18 May 1981). In the letter of 21 April he said:
"It is now almost three weeks since your judgment and I have not a copy nor has it been translated to me which is required by Austrian law and international law as I understand it. It would be proper for me to know what I have been tentatively convicted of so that I may write to the States and obtain the evidence (which Dr Steidl did not do) for the appeal to Vienna.
Therefore, may I please have a copy of the judgment (Urteil) or in the alternative a translation of the Urteil.
For six months I have been prevented from defending myself through the assignment of an attorney who did absolutely nothing to help me, but actually participated against me in the prosecution."
The letter of 4 May included the following:
"It is now one month since I appeared before your Court and you pronounced judgment (Urteil) and I still do not know what you said or the legal basis. The translator (Dolmetscher) only stated that I was found guilty and sentenced to 18 months in prison. I have no knowledge beyond that and clearly I do not expect Dr Steidl to do more than he has in the past; absolutely nothing. Unfortunately, I am being additionally punished due to my lack of understanding of the German language. The appointment of Dr Steidl to defend me has been consistently utilised as the ‘legal’ basis to deny me rights available to any Austrian or to me if I understood German. One month is more than adequate time for me to be informed of what you said in Court or pronounced in the written ‘Urteil’.
I have advised you that I wish to appeal the ‘Urteil’ with a ‘Nichtigkeitsbeschwerde’ [plea of nullity] to the Supreme Court of Austria in accord with applicable laws. One of the grounds of the ‘Nichtigkeitsbeschwerde’ is that I was deprived of effective assistance of a defender in that Dr Steidl did absolutely nothing to prepare me for the trial and refused to obtain any evidence on my behalf. On the basis that Dr Steidl has failed to perform his explicit obligation to defend me correctly and that such is a ground of the appeal, it is therefore impossible for Dr Steidl to represent me in the prosecution of the ‘Nichtigkeitsbeschwerde’. On this account, I have written to Dr Ernst Mayr, President of the Rechtsanwaltskammer [Bar Association], to request appointment of an English-speaking lawyer.
[Passage reproduced in paragraph 23 above.]
Because I am in the difficult position of not being effectively represented and not understanding the language, I can only attempt to do what I feel is correct legally and ethically. I am hereby informing you of the grounds for the appeal, which grounds are substantial, and which grounds should be properly presented by an experienced Austrian Attorney. (To date, I have not been visited by an Attorney for the purpose of preparing a ‘Nichtigkeitsbeschwerde’.) If I am not presenting the grounds correctly, it is only due to lack of legal advice."
The letter of 18 May (passages of which are set out at paragraph 23 above) was accompanied by a translation into German. In it the applicant reiterated that "on the 4th of May I wrote to you to inform you of some of the grounds of the Nichtigkeitsbeschwerde as well as the grounds for appointment of a new lawyer".
As before, the applicant received no response from the presiding judge.
33. On 20 May 1981 the applicant was once more visited in prison by Dr Steidl. At the applicant’s request this meeting was attended by the prison legal officer. The applicant repeated his request to have another defence counsel appointed.
By letter of 21 May 1981 Dr Steidl asked the Tyrol Bar Association to be discharged of his duties as defence counsel. On 22 May the Bar Association appointed Dr Schwank as new defence counsel for the applicant. Dr Schwank was notified thereof on 26 May.
34. On 29 May 1981 a partner of Dr Steidl came to see Dr Schwank in his office and gave him a draft appeal (Berufung) and plea of nullity (Nichtigkeitsbeschwerde) prepared by Dr Steidl (consisting of three pages) and also some copies from the court file. On 1 June Dr Schwank visited the applicant in prison. The statement setting out the plea of nullity and the appeal (against sentence and the compensation order) was then drawn up and filed on 2 June, the day on which the time-limit for filing expired. Dr Schwank also prepared a translation of the judgment for the applicant.
35. The plea of nullity was essentially based on the following grounds:
(a) (under section 281 § 1.1a of the Code of Criminal Procedure - see paragraph 51 below) that the applicant was not adequately represented by counsel during the proceedings and in particular during the trial;
(b) (under section 281 § 1.3, taken together with sections 244, 250 and 252, of the Code - ibid.) that the interpretation during the trial was insufficient, and in particular that neither the indictment nor the written depositions nor the oral testimony of certain witnesses nor the questions put to witnesses by the presiding judge and the public prosecutor were interpreted into English;
(c) (under section 281 § 1.3, taken together with section 260, of the Code - ibid.) that save for its operative part the judgment was neither interpreted on the spot nor translated thereafter;
(d) (under section 281 § 1.4 of the Code - ibid.) that the trial court had not granted either the prosecution or the defence motions to have investigations carried out with the defendant’s bankers or the defence motions for the hearing of evidence from two witnesses;
(e) (under section 281 § 1.5 - ibid.) that the judgment was not sufficiently reasoned;
(f) (under section 281 § 1.9a and b - ibid.) that the trial court had incorrectly interpreted certain facts which established lack of fraudulent intent.
36. With regard to the factual allegations concerning the scope of interpretation during the trial, the Supreme Court (Oberster Gerichtshof) conducted an inquiry in accordance with section 285f of the Code of Criminal Procedure (see paragraph 52 below). The presiding judge of the Innsbruck Regional Court was questioned by the reporting judge of the Supreme Court over the telephone. A note on this conversation, which was placed in the Supreme Court’s file on 31 August 1981, reads as follows (translation into English provided by the Government):
"The presiding judge, Regional Court Justice Dr Braunias, replied as follows to an inquiry by telephone:
Contrary to the allegations made in the plea of nullity, all essential points of the indictment, of the witnesses’ depositions, of the contents of the documents read out in court as well as of the judgment, including its reasoning, were translated by the interpreter who had been summoned and by counsel for the defence, Barrister Dr Steidl (who is a qualified English interpreter), at the trial which was attended by two members of the United States Embassy. The defendant was also permitted to comment on the charges and on each piece of evidence without any time-limit, as well as to put questions to the witnesses."
Neither the applicant nor his counsel was given notice of this inquiry or advised of its results.
37. On 1 September 1981, after having obtained the view of the Procurator General (Generalprokurator), the Supreme Court, sitting in chambers (see paragraph 52 below), rejected the plea of nullity, essentially on the following grounds.
As to the complaint that the applicant had not been adequately represented by counsel during the trial, the Supreme Court found that the Regional Court was only under a duty to appoint a defence counsel and to invite him to attend the trial as well as any other proceedings in which the defendant was allowed to participate. It was not, however, for the Regional Court to supervise the activities of the defence counsel, who was not subject to the control of the Court but to the disciplinary authority of the appropriate bar association. Accordingly, no ground for nullity could be derived from any insufficient performance by the defence counsel of his duties.
With respect to the interpretation during the trial, the Supreme Court observed that the Regional Court had not only appointed an interpreter to assist during the trial but that it had also appointed, at the applicant’s request, a defence counsel who was at the same time an English interpreter and with whom the applicant could communicate in his mother tongue. As a matter of law, neither an incomplete translation nor a failure to appoint an interpreter as such constituted a ground for nullity. They could at best be a source of challenge, under section 281 § 1.4 of the Code of Criminal Procedure (see paragraph 51 below), if a corresponding motion had been denied at the trial. Besides (im übrigen), the inquiry carried out by the Supreme Court pursuant to section 285f of the Code of Criminal Procedure had shown that, contrary to the allegations in the applicant’s plea of nullity, all essential parts of the indictment, of the testimony of witnesses, of the documents read out during the trial and also of the judgment, including its reasons, had been interpreted by the registered interpreter. Furthermore, the applicant had had the opportunity to comment on the charges and the evidence without any time restriction and also to put questions to witnesses.
38. The date of the public hearing for the appeal against sentence and the compensation order was notified to Mr Kamasinski pursuant to section 286 § 2 of the Code of Criminal Procedure and his counsel, Dr Schwank, was summoned to attend.
On 11 November 1981 Mr Kamasinski lodged an application for his personal attendance before the Supreme Court, arguing, inter alia, that the determination of the sentence necessitated an assessment of his personality and that this required his presence. Moreover, the file before the Supreme Court included articles from the daily newspaper "Kurier" which were prejudicial to him and might adversely influence the Supreme Court. The articles, which had been published on 14, 15 and 16 November 1980 and which described him as an American espionage agent dangerous to the Republic of Austria, had also been in the file of the trial court. Lastly, he submitted, as his appeal concerned also the civil-law aspects of the judgment, it would be unfair if the private parties to whom he had to pay compensation could appear before the Supreme Court but not himself.
This application was rejected by decision of the Supreme Court on 20 November 1981 on the ground that no concrete indications suggesting a need for the accused’s personal attendance at the hearing on the appeal lodged solely for his benefit were apparent from the court files or from his application. If he harboured the belief that his personal presence would enable him to argue that the criminal proceedings had come about essentially as a result of a chain of unfortunate circumstances and misunderstandings, above all of a linguistic nature, he was unaware of the rule that the question of guilt can no longer be canvassed in the appeal proceedings. Moreover, all further circumstances set forth in his application could be put forward by his lawyer at the hearing. The Supreme Court’s ruling was served on Mr Kamasinski’s counsel.
39. The grounds for appeal against sentence were essentially that the trial court had failed to take into account a number of mitigating considerations, such as Mr Kamasinski’s lack of criminal record, his maintenance obligations to his wife and child, his error in not realising the criminal character of his conduct and the fact that the monetary qualifying limit for aggravated fraud (ATS 100,000) had been exceeded by only a small amount.
The appeal was dismissed by the Supreme Court on 24 November 1981 after a hearing at which the applicant was represented by defence counsel. The Supreme Court considered that the sentence imposed by the Regional Court was adequate and that the relative weight of mitigating and aggravating circumstances had been correctly assessed. The adjudication of compensation to two private parties had been in accordance with the law and therefore there was no reason to refer the decision on this issue to the civil courts as requested by the applicant. The Supreme Court’s judgment also lists those present at the appeal hearing and there is no indication that the private parties whose compensation claims the Regional Court had upheld were present or represented at that hearing.
40. The applicant was released from prison on 16 December 1981 and subsequently detained with a view to his deportation to the United States of America. He was eventually deported in January 1982.
41. Section 100 of the Austrian Code of Criminal Procedure provides as follows:
"The investigating judge shall have translated by a registered interpreter any documents drawn up in a language other than the one used in court (nicht gerichtsüblich) if they are relevant to the investigation and have them put in the file together with the translation."
Under the terms of section 163 of the Code:
"Where a witness does not have knowledge of the language used in court (Gerichtssprache), an interpreter shall be called in unless both the investigating judge and the court clerk have a command of the foreign language. In the official record of the hearing or an annex thereto the depositions of the witness shall be recorded in that language only where it is necessary to quote the actual expressions used by the person examined (section 104 § 3)."
According to section 104 § 3, such a necessity exists if the expressions used are important for judging the matter or if it is to be expected that the official record will be read out at the trial.
By virtue of section 198 § 3 of the Code, section 163 also governs, mutatis mutandis, interrogations of a person charged with an offence (Beschuldigter) if that person does not have knowledge of the language used in court.
42. It follows from the context of the above provisions that they relate to the pre-trial investigations conducted by the investigating judge (Voruntersuchung). However, by virtue of section 248 § 1 of the Code, the rules to be observed by the investigating judge shall also be applied by the presiding judge when examining witnesses or experts at the trial. There is no express provision concerning the rules to be followed for the examination of the accused at the trial if he does not have knowledge of the language used in court, but it appears that in practice the rules governing the examination of witnesses are applied by analogy.
43. The qualifications of registered interpreters (allgemein beeidete gerichtliche Dolmetscher) are specified in the Court Experts and Interpreters Act 1975 (Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher, Bundesgesetzblatt für Österreich No. 137/1975). According to section 14 of this Act, the provisions regarding experts and requiring, inter alia, special knowledge (Sachkunde) and trustworthiness (Vertrauenswürdigkeit) (cf. section 2 § 2 (a) and (e)) are also applicable to interpreters.
44. Section 39 § 1 of the Code of Criminal Procedure provides that in all criminal cases the accused has the right to have a defence lawyer (Verteidiger) whom he may choose among the persons included in a list kept by the Court of Appeal.
45. Under certain conditions an official defence lawyer (beigegebener Verteidiger) must be assigned to the accused. He may either be a legal aid lawyer to be paid by the State or an ex officio lawyer to be appointed in cases of necessary representation at the expense of the accused. The procedure to be followed is set out in section 41 of the Code, which, in so far as relevant, reads:
"(2) If the person charged with a criminal offence (the accused) is unable ... to bear the costs of his defence, the court shall at [his] request decide that he will be given a defence lawyer whose costs [he] will not have to bear if and in so far as this is necessary in the interests of justice, in particular the interests of an appropriate defence. ...
(3) If, for a trial before an assize court or a court with lay assessors, the accused or his legal representative has not chosen a defence lawyer, and if no defence lawyer has been assigned under paragraph 2 above, the court shall of its own motion appoint a defence lawyer whose fees will have to be borne by the accused unless the conditions for appointing a defence lawyer under paragraph 2 above are satisfied. ..."
Section 42 § 2 further provides:
"If the court has decided to assign a defence lawyer, it shall notify the Committee of the Bar Association competent for the area in which the court is situated so that this Committee may appoint a practising lawyer (Rechtsanwalt) as defence lawyer."
46. The replacement of a defence lawyer in the course of the proceedings is governed by section 44 § 2 of the Code, which reads:
"The person charged with a criminal offence may at any time transfer the mandate of a freely chosen defence lawyer to another defence lawyer. Likewise, the mandate of an officially assigned defence lawyer shall be terminated as soon as the person charged designates another defence lawyer. However, in such cases the change in the person of the defence lawyer must not lead to any delay in the proceedings."
The Practising Lawyers Act (Rechtsanwaltsordnung, Imp. Law Gazette No. 96/1868 as amended) now provides that, in certain cases including conflict of interest or bias, the officially assigned defence lawyer shall be replaced by another defence lawyer (section 45 § 4 in the version of Bundesgesetzblatt für Österreich No. 383/1983). This provision did not exist at the relevant time. However, in practice an officially assigned defence lawyer could be replaced by the Committee of the Bar Association if this seemed appropriate.
47. Section 9 § 1 of the Practising Lawyers Act requires a practising lawyer to perform his mandate in accordance with the law and to defend the rights of the party he is representing attentively, in good faith and conscientiously ("mit Eifer, Treue und Gewissenhaftigkeit"). Under section 11 § 1, he is obliged to carry out his mandate as long as it has not been terminated and he is responsible for failure to do so. However, according to established case-law (Österreichische Juristen-Zeitung, Evidenzblatt, 1969, no. 353) he is not subject to control by the court as to whether he has performed his tasks correctly and reasonably ("richtig und zweckmässig"). On the other hand the Government pointed out at the public hearing on 19 June 1989 that the Convention has the status of constitutional law in Austria, with the consequence that the courts are under a duty to secure compliance with Article 6 § 3 (c) (art. 6-3-c) which guarantees a defendant’s right to legal assistance.
There is no provision requiring the appointment of a defence lawyer with a knowledge of the language of the accused if the accused does not understand or speak the language used in court, but in practice, if requested by the defendant and if possible, a lawyer with sufficient command of the defendant’s language will be nominated.
48. Inspection of the court files by the defendant or by his defence counsel is governed by section 45 § 2 of the Code of Criminal Procedure, which provides:
"The investigating judge shall permit the defence lawyer on request to inspect the court files, except the records of deliberations, on the premises of the court and to make copies thereof; alternatively the investigating judge may also deliver photocopies to the lawyer. Where the defendant is not legally represented, he himself is entitled to these rights of defence counsel, and a defendant who is in detention may be permitted to inspect the files on the premises of the detention centre or prison. ..."
49. Section 245 of the Code of Criminal Procedure enables the defendant to make an initial statement. Immediately after the opening of the trial the defendant is questioned by the presiding judge as to the contents of the indictment. If the defendant pleads not guilty to the indictment, the presiding judge must explain to him that he is entitled to counter the charges with a coherent statement of the facts and to submit his observations with regard to each individual item of evidence. The defendant is not obliged to answer any questions put by the judge.
50. Section 271 of the Code of Criminal Procedure deals with the keeping of records of the trial:
"(1) On pain of nullity a record shall be kept of the trial which shall be signed by the president and by the clerk of the court. It should contain the names of the members of the court present, of the parties and of their representatives, document all essential formalities of the proceedings, in particular set out what witnesses and experts were heard and which parts of the files were read out, whether the witnesses and experts were sworn and for what reason they were sworn, and finally all motions submitted by the parties and the decisions taken by the president or the court thereon. The parties are free to demand the setting down of specific points in the record in order to preserve their rights.
(2) Where the actual words used are of importance, the president shall at the request of a party at once order individual passages to be read out.
(3) The answers of the defendant and the depositions of the witnesses or experts shall only be mentioned if they contain deviations from, alterations of or additions to the statements set down in the files or if the witnesses or experts are heard for the first time at the public session.
(4) If the president or court thinks fit, they can order all depositions and pleadings to be taken down in shorthand; this shall always be ordered where a party requests it in good time and deposits the costs in advance. The shorthand notes shall, however, be transcribed into ordinary script within 48 hours, shall be submitted for verification by the president or a judge delegated by him, and shall be attached to the record.
(5) The parties are free to inspect the finished record and its enclosures, and to make copies thereof."
51. A plea of nullity before the Supreme Court can only be based on the specific grounds enumerated in section 281 § 1 of the Code of Criminal Procedure. Thus a plea of nullity may be lodged
"1a. if the defendant was not represented throughout the trial hearing by counsel although such representation was obligatory;
...
3. where during the trial hearing there has been a breach of, or a failure to comply with, a provision in respect of which it is expressly provided that such breach or failure shall entail nullity;
...
4. if no decision has been taken at the trial on a motion of the person lodging the plea of nullity or if an interim decision rejecting a motion or objection of the person lodging the plea of nullity has been taken in a manner which disregarded or incorrectly applied legal provisions or procedural principles whose observance is necessary for securing a procedure in conformity with essential requirements of the prosecution and of the defence;
5. if the judgment of the trial court ... gives no or manifestly insufficient reasons for its decision;
...
9. if the judgment was rendered in breach or misapplication of a statute in relation to the issue
(a) whether the act with which the defendant is charged amounts to a criminal offence within the jurisdiction of the courts;
(b) whether there are circumstances which exclude punishment or prosecution in respect of the act ...;
(c) ..."
Examples of the kind of ground referred to in paragraph 1.3 are failure to recite the indictment at the commencement of the trial (as required by section 244 of the Code of Criminal Procedure), failure to bring to the knowledge of the defendant the testimony of witnesses heard in his absence (as required by section 250 of the Code), and failure to state in the judgment the grounds supporting any finding of guilt (as required by section 260 of the Code). However the failure to make such recitals in a language which a non-German speaking defendant can understand does not constitute a fatal error requiring a verdict of guilty to be nullified (see the judgment of the Supreme Court in the present case - paragraph 37 above).
52. According to section 285c of the Code of Criminal Procedure, the Supreme Court, after having obtained the view of the Procurator General, shall deliberate in private if the Procurator General or the reporting judge has proposed the application of, inter alia, section 285d or f of the Code. Section 285d provides for, inter alia, rejection of a plea of nullity by a decision in private if the Supreme Court unanimously considers that pleas based on sub-paragraphs 1 to 8 of section 281 § 1 are manifestly ill-founded.
By virtue of section 285f the Supreme Court, "when deliberating in private, may ... order that inquiries be made as to facts relating to alleged procedural defects (section 281 § 1.1-4)".
Where the Supreme Court does not render its decision in private, an unrepresented defendant in custody has to be informed of the date set down for the hearing and advised that he may only appear through a lawyer (section 286 § 2). In the case of a represented defendant only the defence lawyer is informed of the date (section 286 § 3). Under the terms of section 287 § 3 the defendant or his lawyer is always entitled to the last word (letzte Äusserung) at the hearing.
53. In principle Supreme Court proceedings in respect of an appeal against sentence are public (see section 294 §§ 4 and 5 of the Code of Criminal Procedure). The question of guilt or innocence may not be canvassed in such appeal proceedings. When the appeal has been lodged solely by the defendant, the Supreme Court has no power to impose a severer sentence than that passed at first instance (section 295 § 2 of the Code).
54. The defendant’s presence at the public hearing of his appeal is governed by section 296 § 3, second sentence, which at the relevant time provided:
"As regards the fixing of a day for the public hearing and the procedure, sections 286 and 287 are applicable mutatis mutandis, provided that the defendant not in custody shall always be summoned and that the defendant in custody may be caused to be brought before the court."
Section 296 § 3 was amended in 1983 and 1987. The second sentence now provides that the defendant in custody shall be brought before the court if he so requests in his appeal or in his counter-statement or if his presence appears to be necessary in the interests of the proper administration of justice or for other reasons.
Section 296 § 3, last sentence, further specifies that "if the appeal is directed against the adjudication of civil claims, the private party concerned shall also be summoned" (translation from German).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111842
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAMSONNIKOV v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for private life)
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1978. He currently lives in St Petersburg, Russia.
7. The applicant was born in Estonia and had not permanently resided in any other country until his expulsion from Estonia.
8. The applicant completed his basic education in Tallinn in 1993 in a school where the language of instruction was Russian. His knowledge of Estonian was graded “4” (“good”) at school.
9. In 1994 the applicant’s mother died in Moscow. She was buried in Russia.
10. From 20 June 1995 until 20 June 2000, from 5 May 2003 until 4 May 2005 and from 5 May 2005 until 4 May 2008 the applicant had temporary residence permits in Estonia.
11. In the meantime, in 1998, the applicant applied for, and was granted (as a citizen of the former USSR), citizenship of the Russian Federation. According to the applicant, in the late 1990s he attempted to acquire Estonian nationality. However, he never made a formal request to that effect.
12. The applicant has three criminal convictions in Estonia:
- on 27 January 1997 the Tallinn City Court convicted him of aggravated hooliganism (he had beaten a person in the street and later broken a door of an apartment and beaten its inhabitants together with two co-defendants), aggravated theft and attempted theft; he was sentenced to two and a half years’ imprisonment, suspended;
- on 26 September 2000 the Tallinn City Court convicted him of attempted aggravated theft and violence against a police officer (he had punched the officer in the face); he was again sentenced to two and a half years’ imprisonment, suspended;
- on 22 March 2001 the Tallinn City Court convicted him of attempted aggravated theft; he was given eight months’ imprisonment. Taking into account the earlier, unserved sentence, the court set the compound sentence to be served by the applicant at two years and seven months’ imprisonment. It was noted in the judgment that in the course of 2000 the applicant had been punished seven times for administrative offences of petty theft and consumption of narcotic substances.
13. The applicant was released on 4 September 2003 after serving his prison term.
14. From 2006 until 2009 the applicant was given seven punishments for misdemeanours (illegal consumption or possession of narcotic drugs and travelling on public transport without a ticket).
15. The applicant is HIV-positive and suffers from hepatitis C.
16. In the meantime, on 6 December 2007, the applicant was arrested in Sweden on suspicion of smuggling of drugs.
17. On 7 March 2008 he was convicted of aggravated drug smuggling by the District Court of Helsingborg in Sweden. According to the judgment he smuggled more than 400 Subutex pills over the Swedish border. He was sentenced to two years and four months’ imprisonment and began serving his sentence in Salberga Prison in Sweden. In addition, the District Court decided that the applicant was to be expelled from Sweden and to be subsequently prohibited from entering the country before 7 March 2015. The court was unable to verify the applicant’s argument that he had a daughter in Sweden since he declined to disclose the alleged daughter’s or her mother’s personal details such as their names and addresses.
18. The applicant appealed against the District Court’s judgment. However, since he subsequently withdrew his appeal, the Scania and Blekinge Court of Appeal struck the case out of its list of cases on 24 April 2008.
19. In February 2009 the applicant requested the reopening of his case in Sweden, arguing that because of the prohibition on entry imposed by the Swedish court the Estonian migration authorities had refused to extend his residence permit in Estonia. He requested the removal of the deportation order from the judgment.
20. On 20 April 2009 the Scania and Blekinge Court of Appeal refused to reopen the case. On 26 May 2009 the Swedish Supreme Court refused the applicant leave to appeal against that decision.
21. On 10 July 2009 the applicant was released from prison in Sweden and deported to Estonia.
22. In the case file there are also copies of printouts from the Schengen Information System, according to which the applicant was to be refused entry or stay in the Schengen area until 20 September 2010 (this notice was entered into the system on 20 August 2007) and later until 17 July 2011 (entered into the system on 17 July 2008). It appears that on 24 August 2009 the Swedish authorities extended the prohibition on the applicant’s entry to the Schengen area until 24 August 2012.
23. In the meantime, on 11 February 2008, while in custody in Sweden, the applicant applied for an extension of his residence and work permit from the Estonian Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”).
24. By a letter of 10 September 2008 the Board informed the applicant that he would be denied an extension of his residence and work permit. He was requested to present his opinion and objections. In reply, the applicant asked for the Board’s letter to be translated into English or Russian since he did not have sufficient command of Estonian and being in prison he could not have the Board’s letter translated. On 30 September 2008 the Board sent the applicant a Russian translation of the letter. In his objections sent to the Board the applicant reiterated his request for a residence permit, saying that he wished to return to Estonia after his release from prison in Sweden. He submitted that he had been born and raised in Estonia and that he had his father and brother in that country. In spite of his Russian nationality he had never lived in Russia and had no place of residence or relatives there. He was seriously ill and the treatment he would continue to need could be carried out only in Estonia. His father also needed his support because of his age.
25. On 18 November 2008 the Board refused to extend the applicant’s residence and work permit. It had regard to the nature and severity of the offences committed by the applicant (already mentioned above), the fact that his criminal record had not expired and that an alert had been issued for the purposes of refusing him entry into Schengen countries, as well as the fact that he was serving a prison sentence in Sweden. The Board considered that although the applicant had been born in Estonia and his father and brother lived in Estonia, he did not have a family life in that country. It further considered that the applicant could continue his treatment in Russia. The Board found no exceptional circumstances that required extending his residence permit. In conclusion, the Board considered that the refusal to extend the applicant’s residence permit was a proportionate measure for pursuing the aim of protecting the constitutional rights of others.
26. The applicant lodged a complaint against the Board’s refusal with the Tallinn Administrative Court. He argued that the decision of the Board had been insufficiently reasoned and that the refusal infringed his right to respect for family life. At the Administrative Court’s hearing the applicant was represented by his father and a legal advisor.
27. By a judgment of 28 April 2009 the Tallinn Administrative Court dismissed the applicant’s complaint. It found that the Board’s refusal was lawful. The court agreed with the Board’s finding that the applicant’s criminal behaviour posed a threat to public safety. Furthermore, the prohibition on entry into the Schengen area imposed by the Swedish authorities also extended to Estonia.
28. The Administrative Court considered that the Board’s decision did not infringe on the applicant’s right to respect for family life. It noted that the applicant was divorced and had no partner or children. His father lived with his partner at the latter’s residence. The applicant’s brother had a family of his own. The court concluded that the applicant did not have a family life to be protected in Estonia. The court also dismissed the applicant’s arguments related to the advanced age of his father who was sixty-five years old, to the applicant’s illness and the fact that he had been born in Estonia. It found that there were no exceptional circumstances to justify the extension of his residence permit.
29. On 10 July 2009 the applicant was transferred from Sweden to Estonia.
30. On 1 August 2009 the applicant began living with V., a person of undetermined citizenship who held a permanent residence permit in Estonia, as his partner.
31. On 16 September 2009 the applicant sought permission from the Board to be allowed, by way of exception, to submit an application for a residence permit with the Board directly instead of submitting it to a foreign representation of Estonia. On 30 September 2009 the Board refused to grant the permission and declined to consider his application for a residence permit.
32. On 27 October 2009 the Tallinn Court of Appeal heard the applicant’s appeal against the Tallinn Administrative Court’s judgment. The Board’s representative submitted that based on humanitarian considerations the applicant’s expulsion procedure had not been initiated because of the ongoing court proceedings concerning his residence permit.
33. On 12 November 2009 the Tallinn Court of Appeal upheld the Administrative Court’s judgment of 28 April 2009. It noted, inter alia, that under section 12(4-1) of the Aliens Act (Välismaalaste seadus) a temporary residence permit could be issued, by way of exception, to an alien in respect of whom a prohibition on entry into the Schengen area had been issued. The Board and the Administrative Court had considered whether making such an exception had been justified in the present case but had found that this had not been warranted in the circumstances. The Court of Appeal also noted that the applicant had not turned to the Swedish authorities in order to have the period of validity of the prohibition on entry into the Schengen area amended as stipulated by the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus).
34. The Court of Appeal further noted that the refusal to extend the applicant’s residence permit during his imprisonment in Sweden had had no bearing on his private life because the one-year residence permit that was usually granted in such circumstances would have expired before the end of the applicant’s prison term in Sweden. During the time of the service of the prison sentence the applicant’s right to private life had been restricted by the execution of the sentence and it had not been dependent on the granting or refusal of a residence permit in Estonia.
35. The Court of Appeal also noted that the Board had considered the possibility of the applicant’s early release from prison and his expulsion in such case. It agreed with the Board’s preliminary assessment that the applicant’s expulsion was not excluded and that he could reside in the country of his nationality.
36. On 10 March 2010 the Supreme Court declined to hear the applicant’s appeal.
37. By a letter of 22 March 2010 the Police and Border Guard Board (Politsei- ja Piirivalveamet) asked the applicant to come to its offices on 31 March 2010 so that the circumstances of his stay in Estonia could be clarified and an order (ettekirjutus) be made.
38. On an unspecified date the applicant left Estonia for Denmark where he stayed for four months, according to a statement from V. to the Court. He was then arrested in Denmark and on 9 July 2010 the Danish authorities made a request to their Estonian counterparts concerning the applicant’s deportation to Estonia. However, his deportation on 13 July 2010 as agreed by the authorities did not take place since the applicant had escaped from them while in Copenhagen. He arrived in Estonia on 20 July 2010 via a passenger port.
39. On 29 January 2011 the applicant was arrested by the police. He was under the influence of narcotic drugs and presented an identity card of his brother, who was an Estonian national. The applicant was taken into custody. On 28 February 2011 he was fined for a breach of the Narcotic Drugs and Psychotropic Substances and Precursors thereof Act (Narkootiliste ja psühhotroopsete ainete ning nende lähteainete seadus).
40. In the meantime, on 31 January 2011 the Police and Border Guard Board issued an expulsion order (ettekirjutus Eestist lahkumiseks) in respect of the applicant. The order was immediately enforceable on the basis of section 7-2(2)(3) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus). In addition, a three-year prohibition on entry was imposed on the applicant. Pursuant to sections 71(2) and 7-1(3) of the above Act, the expulsion order was given by means of a standard form and it only revealed its legal basis without containing the factual basis, related circumstances or relevant considerations.
41. On the same day the Tallinn Administrative Court authorised the applicant’s detention in a deportation centre until his expulsion, but for not more than two months. This authorisation was later extended until 31 May 2011.
42. The applicant challenged the expulsion order and prohibition on entry before the Tallinn Administrative Court.
43. In May 2011 the applicant made inquiries by phone and electronic mail to a public notary about the possibility to get married while in detention.
44. On 26 May 2011 the applicant applied for an interim measure and requested that his expulsion be stayed. On the same day the Tallinn Administrative Court dismissed the request. An appeal was dismissed by the Tallinn Court of Appeal on 7 June 2011.
45. In the meantime, on 27 May 2011 the applicant was expelled to Russia. He stayed with a distant relative in Sebedzh, Pskov Region, for some weeks and then lived on the street for some time. His request for medicines against HIV was granted by the local authorities although one of the medicines he had used in Estonia was not available in Russia. In September 2011 he moved to St Petersburg where he was able to find temporary non-registered accommodation and unofficial employment.
46. In the meantime, on 8 June 2011, the applicant’s lawyer sought to amend the complaint lodged with the Tallinn Administrative Court. She challenged the applicant’s actual expulsion and requested that the State be obliged to allow the applicant to return to the country. The Administrative Court initially registered these complaints as a separate set of proceedings but, following instructions from the Tallinn Court of Appeal, it later joined the cases and proceeded to examine the new complaints. By a judgment of 2 March 2012 the Tallinn Administrative Court dismissed the complaints. It held that the expulsion order was lawful under sections 7-2(2)(3) and 72(2)(4) of the Obligation to Leave and Prohibition on Entry Act, as argued by the Police and Border Guard Board, and that the three-year prohibition on entry was lawful as well. Consequently, the complaint concerning the actual expulsion and the claim to be allowed to return to the country were also dismissed. According to the applicant he has instructed his lawyer to appeal against the judgment.
47. Section 12(4) of the Aliens Act (Välismaalaste seadus), as in force at the material time, listed the instances in which a residence permit could not be issued or extended. Section 12(4)(5) provided that a permit could not be issued or extended if the alien applying for it had been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record had neither expired nor been expunged, or the information concerning the punishment had not been expunged from the punishment register. Section 12(4)(8) provided that a residence permit be denied to persons who had been repeatedly punished for intentional criminal offences.
48. Section 12(5) of the Aliens Act provided that, by way of exception, a temporary residence permit could be issued or extended for aliens falling under the above provisions, if this was not excluded on other grounds referred to in the same provision.
49. Section 12(4-1) of the Aliens Act provided that a residence permit could not be issued or extended in respect of an alien for whom an alert for the purposes of refusing entry had been issued by a State belonging to the common visa area of the European Union and such an alert had been introduced into the Schengen Information System in accordance with the Schengen Convention. By way of exception, a temporary residence permit could be issued or extended on humanitarian grounds or by reason of international commitments.
50. Section 7-2(2)(3) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus) provides that no term for voluntary compliance with the obligation to leave is assigned in the expulsion order and it shall be enforced immediately if the order is made in respect of an alien who has arrived in Estonia illegally. Section 7-2(2)(4) provides that the same applies to an alien in respect of whom a prohibition on entry has been imposed.
51. Section 33-5(3) of the Obligation to Leave and Prohibition on Entry Act provides that in order to amend the period of validity of the prohibition on entry into the Schengen area the alien is required to turn to a member State of the Schengen Convention applying the prohibition on entry.
52. In a judgment of 22 March 2007 (case no. 3-3-1-2-07) the Administrative Law Chamber of the Supreme Court found that upon issuing an expulsion order in the case in question the migration authorities had not been required to assess whether the person concerned posed a threat to the national security. An assessment related to the possible infringement of the complainant’s right to respect for his family life had had to be carried out when the question whether to grant him a residence permit had been dealt with.
53. Recommendation Rec(2000)15 of the Committee of Ministers of the Council of Europe to member States concerning the security of residence of long-term migrants states, inter alia:
“4. As regards the protection against expulsion
a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria:
– the personal behaviour of the immigrant;
– the duration of residence;
– the consequences for both the immigrant and his or her family;
– existing links of the immigrant and his or her family to his or her country of origin.
b. In application of the principle of proportionality as stated in paragraph 4.a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled:
– after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension;
– after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.
After twenty years of residence, a long-term immigrant should no longer be expellable.
c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.
Long-term immigrants who are minors may in principle not be expelled.
d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-79253
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HAMPEK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Petr Hampek, is a Slovakian national who was born in 1944 and lives in Banská Bystrica. Having been granted legal aid, the applicant is represented by Ms Z. Bejdová, a lawyer practising in Banská Bystrica. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed and, as such, contributed to the State pension scheme (dôchodkové zabezpečenie).
On 1 February 1999 he retired and started receiving a retirement pension.
In July 1999 the applicant restarted working as a night watchman. As he was simultaneously receiving a retirement pension, he acquired the status of an “employed pensioner”.
Being employed, he was liable to pay income tax on his salary. Being a pensioner, he was not entitled to have a so-called “untaxable amount” deducted from his income tax base unlike other employed persons.
On 1 January 2000 an amendment (Law no. 345/1999 Coll.) to the Social Security Administration Act (Law no. 274/1994 Coll. – “the SSA Act”) entered into force. It cancelled an exemption, which employed pensioners had enjoyed until then, from the obligation to pay contributions to the State pension scheme. The applicant thus became liable to contribute to this fund like any other employed person.
On 1 August 2000 another amendment (Law no. 232/2000 Coll.) to the SSA Act entered into force which re-introduced the above exemption.
Between 1 January and 1 August 2000 the applicant paid 2,138 Slovakian korunas (SKK) in contributions to the pension scheme.
The applicant unsuccessfully requested the President, the Prosecutor General, the National Council and the Constitutional Court to bring about a change in the relevant legislation.
In a letter of 25 October 2000 the Prosecutor General informed the applicant that employed pensioners were not eligible for the deduction of the untaxable amount from their income tax base unless the total of their pension was less than the untaxable amount. If their pension was below the untaxable amount, an amount equal to the difference between the actual pension and the untaxable amount would be deducted from the tax base on their salary.
The letter further explained that the purpose of the pension scheme was to provide income for persons who were unable to provide for themselves by working, for example on account of their retirement age. As the State allowed retired persons to obtain income from employment in addition to their retirement pension, it was justified to impose certain restrictions on them, for example by taxing their salaries.
As for the applicant’s complaint that he was liable to contribute to the pension fund, he was informed that as from 1 August 2000 the rules had changed (see above).
On 13 November 2000 the applicant brought an action against the State in the form of the Ministry of Labour and Social and Family Affairs in the Banská Bystrica District Court (Okresný súd). He sought repayment of the contributions which he had paid to the pension scheme between January and July 2000 (see above).
On 22 November 2000 the Banská Bystrica District Court forwarded the action to the Bratislava I District Court on the ground that it fell within the territorial jurisdiction of the latter court.
On 13 December 2000 the Bratislava I District Court submitted the question of jurisdiction to the Supreme Court (Najvyšší súd), which ruled on 26 April 2001 that the action should be determined at first instance by the Bratislava I District Court. However, the case file was only forwarded to that court on 25 June 2001.
On 18 June 2001 the District Court requested the defendant to submit observations in reply, which the Ministry did on 25 July 2001.
The District Court scheduled a hearing for 29 November 2001. The applicant stated that he would not be able to appear. He submitted his arguments in writing and requested the court to hear the case in his absence.
On 29 November 2001 the District Court held a hearing following which, on the same day, it dismissed the action. Having heard the defendant’s representative and having examined complex documentary evidence, the court found that the amount claimed had been withheld from the applicant’s salary under the relevant provisions of the SSA Act. The Ministry had not breached any legal obligation and thus could not be held responsible for any loss incurred by the applicant.
The judgment of 29 November 2001 was served on the applicant on 20 June 2002. On 2 July 2002 he appealed arguing that the bill for the amendment no. 345/1999 Coll. had been drafted by the Ministry and that, therefore, it was the Ministry which was liable for the damage caused to him by implementing that amendment.
On 25 July 2002 the District Court requested the defendant to submit observations in reply to the appeal, which the Ministry did on 13 August 2002.
The Bratislava Regional Court (Krajský súd) listed a hearing of the appeal for 8 May 2003. The applicant stated that he would not be able to appear. He requested the court to hear the case in his absence and submitted his arguments in writing.
On 14 May 2003 the Regional Court upheld the first-instance judgment. It observed that before a bill became law it was subject to a complex legislative process. Drafting and submitting a bill as such could not engage liability for damage. There was no indication that the Ministry had breached any legal duty in connection with the process of amending the SSA Act.
The appellate court’s judgment was served on the applicant on 27 August 2003.
On 6 May 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He directed the complaint against the Bratislava I District Court and argued, in substance, that the length of the proceedings had been excessive. He claimed SKK 100,000 by way of just satisfaction.
On 7 October 2002, on his request, the Constitutional Court appointed an ex officio lawyer to the applicant and, at the same time, declared the complaint admissible.
In 26 March 2003 the applicant requested his lawyer for a report on the progress of the proceedings.
In a letter of 31 March 2003 the lawyer informed the applicant that at the Constitutional Court’s request he had provided further and better particulars of the complaint and had agreed to the Constitutional Court deciding on the case without holding an oral hearing.
In a letter of 18 August 2003 the applicant informed the lawyer that, by accepting that there would be no public hearing before the Constitutional Court, the lawyer had acted contrary to the applicant’s right to be heard in court.
On 28 August 2003 the applicant made a written submission to the Constitutional Court in which he sought to include in his constitutional complaint the undue delays in the proceedings before the Regional Court.
On 10 September 2003 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) and “within a reasonable time” (Article 6 § 1 of the Convention). It awarded the applicant SKK 5,000 by way of just satisfaction in respect of his nonpecuniary damage and ordered the reimbursement of his legal costs.
The Constitutional Court found that the overall length of the proceedings had been 2 years and 8 months. During that period, the case had been pending before the Supreme Court for 6 months and before the Bratislava Regional Court for 11 months.
However, the subject-matter of the constitutional proceedings had been determined by the admissibility decision of 7 October 2002 which, as the applicant’s original complaint, concerned the proceedings before the District Court alone. Therefore, in the framework of the present constitutional proceedings, it was not possible to examine the proceedings before the Regional Court which the applicant had contested after the admissibility decision.
As regards the proceedings before the Bratislava I District Court, the Constitutional Court found that an unjustified delay had occurred between 29 November 2001 and 13 June 2002 (i.e. approximately 6 months).
All human beings are equal in dignity and rights (Article 12 § 1) regardless of sex, race, colour, language, faith, religion, political affiliation or conviction, national or social origin, nationality or ethnic origin, property, birth or any other status (Article 12 § 2).
Every person has the right to have his or her case tried without unjustified delay (Article 48 § 2).
Income from employment is subject to personal income tax (section 3 (1) (a) in conjunction with section 6 (1)).
The personal income tax base is in general calculated as the difference between the income and the expense incurred in order to achieve it (section 5 (1)).
The tax base does not comprise income exempted from tax (section 5 (5)) such as, for example, a retirement pension (section 4 (1)).
Section 12 defines untaxable amounts which are to be deducted from the tax base. These include inter alia SKK 38,760 per year in respect of the taxpayer himself (subsection 2 (a)). This amount cannot be deducted if the taxpayer was receiving a retirement pension at the beginning of the taxation period unless the total of the pension is less than the above untaxable amount. In the latter case the taxpayer can deduct the difference between the untaxable amount and the pension received (subsection 4).
Employed persons (zamestnanci) and their employers are liable to pay contributions to the pension scheme (section 14 (1) (a) and (d)).
Employed persons, who were receiving a retirement pension, were exempted from such liability (section 14 (7) (e)) until 1 January 2000.
As from 1 January 2000 the exemption under section 14 (7) (e) was repealed by amendment no. 345/1999 Coll. and then reintroduced by amendment no. 232/2000 Coll. as from 1 August 2000.
The amendment no. 232/2000 Coll. had been drafted by an individual member of the parliament. In the explanatory report (dôvodová správa) on the bill the deputy considered that the repeal of the exemption under section 14 (7) (e) had been contra bonos mores in that employed pensioners had been made to contribute to the pension scheme but had received nothing in return.
The Ministry of Labour and Social and Family Affairs submitted the bill to the Cabinet with an introductory report (predkladacia správa) in which they disagreed with the drafter. According to this report the exemption in question had given an unjustified advantage to employed pensioners over other employed persons in that as no contributions had been associated with the employment of pensioners, the latter group had been a more attractive work force than other employees. This had distorted the labour market and had to be corrected by the amendment no. 345/1999 Coll. Another reason for that amendment had been the recent passive balance of the retirement pension fund.
The situation of persons who are employed after becoming entitled to a retirement pension but do not draw such a pension is addressed in section 23. The amount of the pension to which they are entitled increases with the length of their employment after retirement age according to a formula defined in sub-section 1.
If a person entitled to a retirement pension takes up employment, the retirement pension is suspended (section 98 (1)), unless the employment is for a term shorter than 1 year (section 98 (2)).
On 1 January 2001 another amendment (Law no. 467/2000 Coll.) to the SSA Act entered into force. It again repealed the exemption under section 14 (7) (e) and provided that employed persons participate in the pension scheme and are liable to pay contributions to the pension fund (subsection 2).
As from 1 January 2004 the SSA Act lost legal effect and the social security regulation was completely re-codified.
Article 26 § 3 provides that national laws may provide that the benefit of a person otherwise entitled to it may be suspended if such a person is engaged in any prescribed gainful activity or that the benefit, if contributory, may be reduced where the earnings of the beneficiary exceed a prescribed amount and, if non-contributory, may be reduced where the earnings of the beneficiary or his other means or the two taken together exceed a prescribed amount.


ITEMID: 001-70971
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF RAGUZ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1930 and lives in Split.
5. The applicant worked for the company K. (“the company”) for several years. By virtue of a 1985 court decision and the subsequent decision of the company in 1986, he was granted use of a privately owned flat. However, he was not able to move into the flat until 1 September 1989.
6. On 15 December 1989 the applicant filed a civil action against the company and T.V. as the owner of the flat seeking damages for not having been able to move into the flat until 1989 and for having had to renovate it. Subsequently, T.V. filed a counterclaim seeking the applicant’s eviction from the flat and the payment of rent for the time he had spent in it.
7. On 13 December 1995 the Split Municipal Court (Općinski sud u Splitu) dismissed both the applicant’s claim and T.V.’s counterclaim.
8. On appeal, on 28 August 1998 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case in so far as it involved the payment of rent by the applicant. At the same time, the County Court upheld the remainder of the first-instance judgment in its part concerning the applicant’s claim and T.V.’s claim for the applicant’s eviction, which thereby became final. T.V. filed an appeal on points of law (revizija) against that part of the County Court’s decision. On 21 March 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) declared his appeal inadmissible, because the value of the subject matter in dispute did not reach the threshold prescribed by law.
9. In the resumed first-instance proceedings, the applicant withdrew his claim in respect of the company, but maintained in his action against T.V. During the proceedings, also T.V. changed his counterclaim on several occasions. Subsequently, on 1 July 2003 the Split Municipal Court again dismissed the applicant’s action, accepting T.V.’s counterclaim for payment of rent by the applicant.
10. On 15 May 2003 the applicant appealed against that decision.
11. On 19 May 2003 the applicant filed a constitutional complaint concerning the length of the proceedings.
12. On 23 October 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint as ill-founded. It found that, at the time when the applicant had lodged his constitutional complaint, the proceedings before the Split County Court had been pending for only four days and that therefore, on the basis of the existing case-law of the Constitutional Court, the conditions set out in section 63 § 1 of the Constitutional Act were not fulfilled.
13. On 4 February 2005 the Split County Court dismissed the applicant’s appeal and upheld the first-instance judgment in its part concerning the order to pay to T.V. the rent. At the same time, the second-instance court remitted the case in its part concerning the exact amount of the rent due.
14. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83959
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CEM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 17. In the absence of such a subsequent conviction, the earlier prosecution and trial would be considered annulled with retroactive effect. Thus, in practice, this particular legislation operates as a conditional amnesty law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1