ITEMID: 001-76060
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PAPON v. FRANCE
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Maurice Papon, is a French national who was born in 1910 and lives in Gretz-Armainvilliers. He was represented before the Court by SCP Boré et Xavier, a law firm authorised to practise in the Conseil d’Etat and the Court of Cassation, then by its successor firm SCP Boré et Salve de Bruneton.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In a judgment of 2 April 1998 the Gironde Assize Court found him guilty of aiding and abetting crimes against humanity, sentenced him to ten years’ imprisonment and stripped him of his civil, civic and family rights.
On 21 October 1999 the Court of Cassation declared that the applicant had forfeited his right to appeal on points of law against that judgment.
On 22 October 1999 the applicant began to serve his sentence.
In a judgment of 18 September 2002 the Paris Court of Appeal allowed his application for deferment of sentence on medical grounds (Article 720-1-1 of the Code of Criminal Procedure, introduced by an Act of 4 March 2002). An appeal on points of law by the principal public prosecutor against that judgment was dismissed by the Court of Cassation on 12 February 2003.
By virtue of his status as a former prefect, the applicant had been receiving a civil-service pension, which was suspended by a decision of 10 January 2002 with effect from 22 October 1999 (the day after the judgment of the Court of Cassation declaring his right to appeal on points of law forfeit), pursuant to Article L.58 of the Civil and Military Retirement Pensions Code, under which an entitlement to, or the enjoyment of, pension rights is suspended by the imposition of a dishonouring penalty with or without physical restraint (peine afflictive ou infamante), for the duration of such penalty.
An appeal by the applicant against that decision was upheld in a judgment of 4 July 2003 by the Conseil d’Etat, which found as follows:
“The category of dishonouring penalties entailing physical restraint was superseded by the new Criminal Code, which was introduced by the Act of 22 July 1992, amended by the Act of 19 July 1993, and which entered into force on 1 March 1994. Whilst the sentence of fixed-term imprisonment, which fell within that category under the old Criminal Code, is indeed provided for in the new Criminal Code, a new sentencing scale now exists. It is apparent from the provisions of the new Criminal Code, in the light of its drafting history, that the legislature sought to limit the number of ancillary or additional penalties which had to be imposed in addition to the principal sentence. The legislature did not indicate which sentences could now be regarded as corresponding to the sentences which, in the old Criminal Code, had been classified as dishonouring penalties entailing physical restraint. Therefore, the entry into force of the new Criminal Code deprived of effect the above-mentioned provisions of Article L.58 of the Civil and Military Retirement Pensions Code. Accordingly, the decision appealed against could not legally have been taken on such basis and must therefore be set aside.”
Consequently, the Conseil d’Etat instructed the Minister for the Economy, Finance and Industry to restore, within two months following the notification of the judgment, the applicant’s enjoyment of his pension rights with effect from 22 October 1999, and to arrange for the necessary payments.
The applicant also used to receive a pension in his capacity as a former member of parliament. He was notified in a letter of 28 October 1999 that his pension entitlement had been suspended on the basis of Rule 46(1) of the Former MPs’ Pension Fund Rules, which provides that entitlement to, or enjoyment of, the pension is suspended by the imposition of a dishonouring penalty with or without physical restraint.
Following the deferment of the applicant’s sentence, his counsel, in a letter of 30 October 2002, submitted a request to the Director of the National Assembly’s Welfare Department seeking the resumption of his pension payments. That request was implicitly rejected and the applicant appealed on 7 March 2003 to the Conseil d’Etat, simultaneously lodging an application for immediate suspension of the implicit decision.
In proceedings before the Conseil d’Etat, the National Assembly invoked the principle of immunity from legal proceedings, relying on Article 8 of the Ordinance of 17 November 1958 on the organisation of parliamentary chambers and on the fact that the pension funds of parliamentarians did not fall under the ordinary law but under special rules introduced within the Assembly that were justified by the principle of separation of powers and parliamentary autonomy; decisions taken under such special rules were not therefore administrative acts of the administrative authorities and did not fall within the jurisdiction of the administrative courts.
The applicant took the opposite position, relying in particular on the right to judicial review recognised by the Constitutional Council and the Conseil d’Etat, and also on the Convention and the Court’s case-law (specifically, the cases of Massa v. Italy, judgment of 24 August 1993, Series A no. 265B, and Pellegrin v. France [GC], no. 28541/95, ECHR 1999VIII). He pointed out that the right to a retirement pension was an economic right protected by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. He contended that this right had been acquired with final effect in his case and therefore had to be protected by a fully effective remedy. He urged the Conseil d’Etat to depart from traditional case-law according to which the purely institutional aspect of parliamentary decisions prevailed.
In his submissions the Government Commissioner called upon the Conseil d’Etat to assume jurisdiction, arguing in essence that as a former MP’s pension was not related to the tasks of the Assembly and was independent of the regulations applicable to parliamentarians, a judge could rule on such matters, that the administrative courts alone had jurisdiction to entertain that kind of dispute, and that this was the only solution capable of allowing the former MP to have access to a court in respect of his dispute.
In a judgment of 4 July 2003 the Judicial Assembly of the Conseil d’Etat dismissed the appeal as follows:
“The Pension Fund for Former MPs was set up by a resolution of the Chamber of Deputies adopted on 23 December 1904 and confirmed by an Act of 9 February 1905. Article 5 of the Ordinance of 13 December 1958 constituting an institutional Act on the allowances of members of parliament, adopted on the basis of Article 25 of the Constitution, provides: ‘The funds set up by resolutions of the Chamber of Deputies dated 23 December 1904 and of the Senate dated 28 January 1905 shall be maintained for the benefit of members of the National Assembly and the Senate ... Pensions paid from these funds shall not be liable to assignment or attachment, except for the purposes of maintenance payments.’ In an order of 8 June 1966 by the Bureau of the National Assembly, a single set of rules governing pension and social-security funds for MPs and former MPs was adopted.
The rules governing the pensions of former MPs form part of the regulations applicable to parliamentarians, of which the specific provisions reflect the nature of their duties. Those regulations thus stem from the exercise of national sovereignty by members of parliament. Having regard to the nature of that activity, it is not for the administrative courts to entertain disputes relating to the rules governing MPs’ pensions.”
In a letter of 2 September 2003 the applicant’s counsel requested the President of the National Assembly to restore his client’s pension, relying on the fact that the category of dishonouring penalties entailing physical restraint had been abolished since the entry into force of the new Criminal Code.
On 14 October 2003 the President replied as follows:
“On 4 July 2003 the Conseil d’Etat gave two decisions, one concerning Mr Maurice Papon’s pension as a former civil servant, in which it held that the pension was to be restored with effect from 22 October 1999, and the other concerning his pension as a former member of parliament, in which it confirmed that the administrative courts had no jurisdiction to rule on a former MP’s pension.
At first sight those two decisions seem to concern the same questions. But they are not the same, as you know, when it comes to the merits.
The dispute between Mr Maurice Papon and the National Assembly is connected with the basic principle of separation of powers and parliamentary autonomy. It is obviously in the light of that principle that the decision of the Conseil d’Etat should be considered, as regards your client’s pension as a former MP. That decision should not have been an unexpected one for you, as it is totally consistent with the case-law that has always been followed by the Conseil d’Etat concerning internal decisions by parliamentary chambers in respect of regulations governing their members.
Those regulations are indispensable for the proper exercise of an MP’s duties and do not simply consist of provisions on immunities. The granting of aid, and later of pensions, to former members of parliament was decided at the time of the Third Republic precisely to ensure that politics would not be the privilege of a particular social class. As such, nothing obliged the parliamentary chambers to create a specific system of retirement pensions for MPs. The real purpose of creating such a system almost a century ago, and thus long before legislation was adopted in this field for French citizens in general, was not to treat parliamentarians as employees but, firstly, to allow all French citizens to enjoy equal access to political office and, secondly, to compensate for the precariousness of such office. The rules on MPs’ pensions are independent of pension legislation because they are governed by the Assembly’s general internal regulations and the decisions of its Bureau, and not by statutes enacted under Article 34 of the Constitution.
The decision taken by the Conseil d’Etat on 4 July 2003 is thus totally consistent with the Republican logic whereby the courts may intervene in the functioning of parliamentary chambers only in the cases expressly and exhaustively provided for by law.
In these circumstances, I do not see any particular reason why the National Assembly should reverse its decision to suspend Mr Maurice Papon’s pension. No new fact has arisen, to date, in favour of your client, who remains convicted of aiding and abetting crimes against humanity and whose sentence, to my knowledge, has not ceased to take effect.”
Article 3
“National sovereignty shall belong to the people, who shall exercise it through their representatives and by means of referendum.”
...
Article 24
“Parliament shall comprise the National Assembly and the Senate.
Deputies to the National Assembly shall be elected by direct suffrage ...”
Article 25
“An institutional Act shall determine the term for which each chamber is elected, the number of its members, their allowances, the conditions of eligibility and the rules governing disqualification and incompatibility.”
These Ordinances constituting institutional Acts respectively concern the conditions of parliamentary eligibility and incompatibility and the allowances of members of parliament. Under Article 4 of the Ordinance of 13 December 1958, MPs’ allowances are in principle exclusive of any other public-service remuneration. However, MPs’ allowances may be combined with the receipt of civil and military pensions of any kind.
The MPs’ pension fund was created under the Third Republic by a resolution of the Chamber of Deputies dated 23 December 1904.
Article 5 of the above-mentioned Ordinance of 13 December 1958 provided:
“The funds set up by resolutions of the Chamber of Deputies dated 23 December 1904 and of the Senate dated 28 January 1905 shall be maintained for the benefit of members of the National Assembly and the Senate; they shall continue to provide pensions to former members of those two chambers or previous chambers, or to their surviving spouses and minor orphans; they may receive donations or legacies.
Pensions paid from these funds shall not be liable to assignment or attachment, except for the purposes of maintenance payments.”
The instrument which currently governs pension rights of former MPs is a set of rules annexed to an order of 8 June 1966 by the Bureau of the National Assembly.
Pensions paid to former MPs and former senators are not governed by the Civil and Military Retirement Pensions Code, which does apply, however, to civil and military officials and to their successors.
The pension fund is funded by contributions deducted from MPs’ allowances and by a subsidy paid out of the Assembly’s budget.
Pension entitlements are calculated according to the number of years of contribution. MPs pay a double contribution for the first fifteen years of service. Pensions are calculated in proportion to the number of contributory years accruing, with an upper limit (currently 40 years).
The suspension of pension payments is provided for by Rule 46 § 1 of the Rules governing Pension and Social Security Funds of MPs and former MPs (which contains the same wording as that of Article L.58 § 4 of the above-mentioned Civil and Military Retirement Pensions Code), under which:
“Entitlement to, or enjoyment of, pension rights shall be suspended: - by the imposition of a dishonouring penalty with or without physical restraint, for the duration of such penalty ...”
...


ITEMID: 001-58562
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF COMINGERSOLL S.A. v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza
TEXT: 5. The applicant company is a public company whose registered office is at Carnaxide (Portugal).
6. It had in its possession eight bills of exchange that it had received from the A. Lda company for a total of 6,812,106 escudos. As the bills were not honoured when due, the applicant company issued enforcement proceedings against A. Lda in the Lisbon Court of First Instance on 11 October 1982 to recover the outstanding amounts.
7. After being ordered on 22 October 1982 to appear before the court of first instance, the defendant company lodged a defence to the enforcement proceedings on 6 December 1982 (embargos de executado).
8. On 7 March 1983 the judge gave directions (despacho saneador) setting out the matters that had already been established and those that remained outstanding. After instructions had been sent to the Porto, Vila Real and Bragance courts for witnesses to be heard, the case was set down for hearing on 16 October 1984, but had to be adjourned owing to the failure of the applicant company's lawyer to attend. It was finally heard on 13 November 1984.
9. On 19 June 1986 the court of first instance found in favour of the defendant company. On 8 July 1986 the applicant company appealed against that decision to the Lisbon Court of Appeal (Tribunal da Relaçao). On 27 May 1987 the case file was transferred to that court.
10. On 28 February 1989 the court of appeal overturned the impugned decision and decided to reject the defence.
11. On 18 May 1989 when the case file was still with the Lisbon Court of Appeal, A. Lda applied for legal aid for its legal costs. That application was refused by the reporting judge in an order of 19 September 1989. A further application made by A. Lda on 23 October 1989 was likewise turned down on 3 November 1989. On appeal by A. Lda, a three-judge panel of the court of appeal upheld those orders on 3 April 1990. A. Lda appealed on points of law to the Supreme Court (Supremo Tribunal de Justiça) on 7 May 1990 and on 5 November 1990 the case file was transferred to that court.
12. In a judgment of 20 December 1990 the Supreme Court dismissed that appeal. On 21 January 1991 A. Lda applied for an order referring the issue to the plenary court (tribunal pleno), but the reporting judge dismissed the application. The Supreme Court upheld that decision in a judgment of 26 September 1991. A. Lda then lodged a further appeal which was declared inadmissible by the reporting judge on 6 January 1992. That decision was subsequently upheld by the Supreme Court on 11 March 1992. Then, on 22 June 1992, A. Lda challenged the bill of costs, but on 12 October 1992 the reporting judge ordered the transfer of the case file to the court of first instance on the ground that the challenge was intended solely to delay recovery of the debt.
13. On 2 February 1984 a company, F. & F. Lda, issued a summons opposing enforcement (embargos de terceiro). In an order of 9 November 1984 the judge decided that the enforcement proceedings should be stayed until the third-party summons had been heard. However, on 8 April 1987 the judge stayed the summons until A. Lda's defence to the enforcement proceedings had been heard. On 24 March 1993, in the light of the decision taken in the enforcement proceedings, the judge decided to proceed with the examination of the third-party summons.
14. On 19 November 1997 the judge gave directions setting out the matters that had already been established and those that remained outstanding.
15. The proceedings are still pending before the Lisbon Court of First Instance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4962
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KERR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish national, born in 1956 and living in Belfast, Northern Ireland.
He is represented before the Court by Ms Angela Ritchie, a solicitor practising in Belfast with the firm Madden and Finucane.
A.
On 31 May 1979 the applicant was convicted at Belfast Crown Court of two murders and associated offences. The court sentenced him to two life sentences in respect of the murders and to determinate prison terms of twenty years for attempted murder and five years for membership of a proscribed organisation.
In September 1983 he escaped from prison. He was later recaptured and in April 1988 was convicted of forty offences in connection with his escape. He received sentences ranging from three to seven years’ imprisonment, which the court ordered should run consecutively with the determinate sentences but concurrently with the life sentence.
On 18 September 1995 the applicant was released on licence pursuant to the powers granted to the Secretary of State under section 23(1) of the Prison (Northern Ireland) Act 1953 (“the 1953 Act”). The applicant signed a document of release which contained the following note:
“A person serving a sentence of life imprisonment who is released on licence is liable under the provisions of section 23 of the Prison (Northern Ireland) Act 1953 to be recalled to prison at any time by order of the Secretary of State.”
On 7 November 1996 the applicant was arrested at his home. He was charged on 14 November 1996 with conspiracy to collect and record information likely to be useful to terrorists and the possession of such information, contrary to section 33 of the Northern Ireland (Emergency Provisions) Act 1996. He was remanded in custody.
On 21 November 1996 the Secretary of State made an order under section 23(2) of the 1953 Act revoking the applicant’s licence and recalling him to prison. In a letter dated 21 November 1996 the Prison Service informed the applicant that his licence had been revoked by the Secretary of State:
“… following careful consideration of all available information about your case, including the original offence for which you received two life sentences and information regarding the circumstances of your recent arrest and subsequent committal to prison on 14 November 1996 charged with terrorist-related offences. [The Secretary of State] has decided on grounds of risk and public interest that it would be inappropriate for you to retain your status as a life licensee.”
The applicant was also informed that he could make representations to the Secretary of State by way of petition. As was regular practice at the time, the applicant was not afforded the opportunity to make such representations before the licence was revoked; nor was he provided with any documents about the matters considered by the Secretary of State when deciding to make the order.
By petition dated 28 February 1997 addressed to the Secretary of State the applicant stated that he had not been found guilty of any offence and had not been given an opportunity to refute any allegation made against him. He requested an explanation for the revocation of his licence.
On 17 April 1997 the applicant’s solicitors wrote to the Secretary of State requesting detailed reasons as to why the licence had been revoked and “for further proposals now in place to review our client’s life licence.” In a further letter dated 22 April 1997 the applicant’s solicitors asked for particulars about the information on which the Secretary of State had acted and details of the “public interest” which formed a ground for his revocation. Although an acknowledgement was sent, it does not appear that a detailed reply was furnished before the applicant commenced judicial review proceedings on 9 May 1997.
On 30 July 1997 the prosecution dropped the charges against the applicant. The matter of the revocation of the applicant’s licence was then referred back to the Secretary of State for reconsideration. In a letter dated 31 July 1997 the Prison Service informed the applicant that the charges against him had been withdrawn and that the Secretary of State would again consider his case “in the light of all information available.” The applicant was invited to make any written representations which he might wish the Secretary of State to consider before deciding on his suitability for release on life licence.
In a letter dated 5 August 1997 the applicant’s solicitors wrote to the Secretary of State in the following terms:
“Our client instructs us to request copies of all material upon which the Secretary of State will rely, in order to make effective representations in respect of his release. Our client instructs us that he will submit a petition as to why he should be released, however, we are instructed that any representations he can make at this stage will inevitably be limited in the absence of any knowledge of the concerns the Secretary of State may have in relation to our client’s release.”
The applicant submitted a petition dated 5 August 1997 to the Secretary of State, complaining of the procedure which had been adopted in the revocation of his licence and asking that the licence be reinstated as soon as possible. On 21 August 1997 the Secretary of State determined to release the applicant again on licence, and he was in fact released on that date.
By letter dated 18 August 1997 certain materials were disclosed to the applicant’s solicitors, including materials considered by the Secretary of State when revoking the licence on 21 November 1996, as well as materials considered by the Secretary of State in August 1997 before deciding to release the applicant. Certain documents or parts of documents were withheld from disclosure on the ground of public interest immunity.
On 9 May 1997 the applicant initiated judicial review proceedings to quash the decision of the Secretary of State to revoke his licence and to obtain a declaration that the revocation was unlawful. Following his release on licence on 21 August 1997, the applicant amended his statement of claim in order to limit the relief sought to a declaration that the revocation was unlawful. He argued, inter alia, that he should have been given an opportunity to make representations before the licence was revoked and been provided with the reasons for its revocation.
On 1 April 1998 the Lord Chief Justice, Lord Carswell, gave judgment on the application. Having reviewed domestic case-law he concluded:
“It is now clear from the authorities that fairness requires as a general rule that (a) a prisoner whose licence is revoked must receive at some stage an opportunity to make representations about the revocation and (b) in order to do so effectively he must be made aware of the reasons for the revocation if he does not already know them… We do not consider, however, that it is possible to lay down general rules about the stage at which the opportunity to make representations must be afforded or about the extent of any exception to the obligation to give reasons based upon the protection of sources of information who might be put in danger. In our view these are matters in respect of which much may turn upon the circumstances of the individual case and it would not be useful to prescribe procedures in any greater degree of detail.
Nor can we say with sufficient precision on the facts before us whether the applicant was prejudiced in the present case by the procedure adopted to an extent sufficient to make that procedure unlawful. He had the opportunity immediately after his licence was revoked to make representations by petition, but did not avail himself of this until over two months had passed, and then only to complain that he had not been told why his licence had been revoked. Nor did he at any time make any representations about the substance of the case, the validity of the Secretary of State’s decision to revoke the licence and the grounds for doing so…”
The Lord Chief Justice stated with regard to the above that it would not be appropriate in the circumstances to make a declaration about the lawfulness of the revocation of the applicant’s licence.
According to the applicant, he did not apply for leave to appeal against the decision since it represented a correct statement of domestic law and any appeal would have had no reasonable prospects of success.


ITEMID: 001-57678
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF LETELLIER v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;No violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
TEXT: 8. Mrs Monique Merdy, née Letellier, a French national residing at La Varenne Saint-Hilaire (Val-de-Marne), took over a bar-restaurant in March 1985. The mother of eight children from two marriages, she was separated from her second husband, Mr Merdy, a petrol pump attendant, and at the material time was living with a third man.
9. On 6 July 1985 Mr Merdy was killed by a shot fired from a car. A witness had taken down the registration number of the vehicle and on the same day the police detained Mr Gérard Moysan, who was found to be in possession of a pump-action shotgun. He admitted that he had fired the shot, but stated that he had acted on the applicant’s instructions. He claimed that she had agreed to pay him, and one of his friends, Mr Michel Bredon - who also accused the applicant -, the sum of 40,000 French francs for killing her husband and that she had advanced him 2,000 francs for the purchase of the weapon.
Mrs Letellier denied these accusations although she admitted having seen the murder weapon, having declared in public that she wished to get rid of her husband and having given her agreement "without thinking too much about it" to Mr Moysan who had proposed to carry out the deed. She maintained, moreover, that she had given 2,000 francs to Mr Moysan, whom she described as "a poor kid", so that he could buy a motor car.
10. On 8 July 1985, in the course of the first examination, the investigating judge of the tribunal de grande instance (Regional Court) of Créteil charged the applicant with being an accessory to murder and remanded her in custody.
11. On 20 December 1985 the applicant sought her release arguing that there was no serious evidence of her guilt. She claimed in addition that she possessed all the necessary guarantees that she would appear for trial: her home, the business, which she ran single-handed, and her eight children, some of whom were still dependent on her.
12. On 24 December 1985 the investigating judge ordered her release subject to court supervision; she gave the following grounds for her decision:
"... at this stage of the proceedings detention is no longer necessary for the process of establishing the truth; ... although the accused provides guarantees that she will appear for trial which are sufficient to warrant her release, court supervision would seem appropriate."
He ordered the applicant not to go outside certain territorial limits without prior authorisation, to report to him once a week on a fixed day and at a fixed time, to appear before him when summoned, to comply with restrictions concerning her business activities and to refrain from receiving visits from or meeting four named persons and from entering into contact with them in any way whatsoever.
Thereupon the guardianship judge (juge des tutelles) returned custody of her four minor children to Mrs Letellier.
13. On appeal by the Créteil public prosecutor, the indictments division (chambre d’accusation) of the Paris Court of Appeal set aside the order on 22 January 1986, declaring that it would thereafter exercise sole jurisdiction on questions concerning the detention. It noted in particular as follows:
"...
The file contains ... considerable evidence suggesting that the accused was an accessory to murder, which is an exceptionally serious criminal offence having caused a major disturbance to public order, the gravity of which cannot diminish in the short lapse of time of six months.
The investigations are continuing and it is necessary to prevent any manoeuvre capable of impeding the establishment of the truth.
In addition, in view of the severity of the sentence to which she is liable at law, there are grounds for fearing that she may seek to evade the prosecution brought against her.
No measure of court supervision would be effective in these various respects.
Ultimately detention on remand remains the sole means of preventing pressure being brought to bear on the witnesses.
It is necessary in order to protect public order from the disturbance caused by the offence and to ensure that the accused remains at the disposal of the judicial authorities.
... ."
As a result, the applicant, who had been released on 24 December 1985, returned to prison on 22 January 1986.
14. At the hearing on 16 January 1986 Mrs Letellier had filed a defence memorial. In it she stressed that she had waited until the main phase of the investigation had been concluded before lodging her application for release; thus all the witnesses had been heard by the police or by the investigating judge, two series of confrontations with Mr Moysan had taken place and all the commissions rogatoires had been executed. She noted in addition that Article 144 et seq. of the Code of Criminal Procedure in no way regarded the gravity of the alleged offences as one of the conditions for placing and keeping an accused in pre-trial detention and that the parties seeking damages (parties civiles) had not filed any observations on learning of her release. She urged the indictments division to confirm the order of 24 December 1985 releasing her subject to court supervision and stated that she had no intention whatsoever of evading the prosecution, that she would comply scrupulously with the court supervision, that she could provide firm guarantees that she would appear in court and that further imprisonment would destroy, both financially and emotionally, a whole family, whose sole head she remained.
15. Mrs Letellier filed an appeal which the Criminal Division of the Court of Cassation dismissed on 21 April 1986 on the following grounds:
"...
In setting aside the order for the release subject to court supervision of Monique Merdy, née Letellier, accused of being an accessory to the murder of her husband, the indictments division, after having set out the facts and noted the existence of divergences between her statements and the various testimonies obtained, observed that the offence had caused a disturbance to public order which had not yet diminished, that, as the investigation was continuing, it was important to prevent any manoeuvre likely to impede the establishment of the truth and bring pressure to bear on the witnesses, and that the severity of the sentence to which the accused was liable at law raised doubts as to whether she would appear for trial if she were released; the indictments division considered that no measure of court supervision could be effective in these various respects;
That being so the Court of Cassation is able to satisfy itself that the indictments division ordered the continued detention of Monique Merdy, née Letellier, by a decision stating specific grounds with reference to the particular circumstances and for cases provided for in Articles 144 and 145 of the Code of Criminal Procedure;
... ."
16. On 24 January 1986 the applicant again requested her release; the indictments division of the Paris Court of Appeal dismissed her application by a decision of 12 February 1986, similar to its earlier decision (see paragraph 13 above).
17. On an appeal by Mrs Letellier, the Court of Cassation set aside this decision on 13 May 1986 on the ground that the rights of the defence had been infringed as neither the applicant nor her counsel had been notified of the date of the hearing fixed for the examination of the application. It remitted the case to the indictments division of the Paris Court of Appeal, composed differently.
18. The latter indictments division dismissed the application on 17 September 1986. It considered that there were "in the light of the evidence ..., serious grounds for suspecting that the accused had been an accessory to murder". It took the view that "under these circumstances ..., the accused’s detention [was] necessary, having regard to the seriousness of the offence ... and the length of the sentence [which she risked], in order to ensure that she remain[ed] at the disposal of the judicial authorities and to maintain public order".
It also dismissed the complaints based on a violation of Article 5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention, stressing that these complaints were not based on any provision of the Code of Criminal Procedure and that it had taken its decision with due dispatch in accordance with that code.
19. At the hearing on 16 September 1986, Mrs Letellier had submitted a defence memorial. In it she requested the indictments division to order her release "because her application for release had not been heard within a reasonable time" within the meaning of Article 5 § 3 (art. 5-3) of the Convention and to take formal note that she did not object to being placed under court supervision.
20. On an appeal by Mrs Letellier, the Court of Cassation overturned this decision on 23 December 1986. It found that the Court of Appeal had not answered the submissions concerning the failure to respect the "reasonable time" referred to in Article 5 § 3 (art. 5-3).
21. On 17 March 1987 the indictments division of the Amiens Court of Appeal dismissed the application, which had been remitted to it, on the following grounds:
"...
... the charges are indeed based on sufficient, relevant and objective evidence despite the accused’s claim to the contrary;
Having regard to the complexity of the case and to the investigative measures which it necessitates, the time taken to conduct the investigation remains reasonable for the purposes of the European Convention, with reference to the dates on which Mrs Letellier was placed in detention and had her detention extended; the proceedings have never been neglected, as examination of the file shows;
Mrs Letellier’s complaint that a reasonable time has been exceeded is also directed against the time taken to hear her application for release ... and she infers therefrom, by analogy with Articles 194 and 574-1 of the French Code of Criminal Procedure, that such a decision should have been taken within a period of between thirty days and three months;
However, none of the provisions of that code which are expressly applicable to the present dispute has been infringed and it must be recognised that the period of time which elapsed between the date of the application and that of the present judgment is only the inevitable result of the various appeals filed;
Finally the applicant’s continued detention on remand remains necessary to preserve public order from the disturbance caused by such a - according to the present state of the investigation - decisive act of incitement to the murder of Mr Merdy; the extent of such disturbance, to the whole community, is not determined only on the basis of the reactions of the victim’s entourage, contrary to what the defence claims ... . "
22. The applicant filed an appeal on points of law. She relied inter alia on Article 5 § 3 (art. 5-3) of the Convention, claiming that the indictments division had "failed to consider whether detention lasting more than twenty-two months, when the investigation [was] not yet concluded, exceeded a reasonable time". She also alleged violation of Article 5 § 4 (art. 5-4) inasmuch as the eighty-three days which had elapsed between the judgment of the Court of Cassation on 23 December 1986 and the judgment of the court to which the application was remitted could not be regarded as satisfying the requirement of speediness.
The Court of Cassation dismissed the appeal on 15 June 1987 on the following grounds:
"...
In order to reply to the accused’s submissions based on the provisions of Article 5 § 3 (art. 5-3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which she had claimed had been infringed, the court to which the application was remitted found that, in relation to the dates on which Monique Letellier had been placed in detention on remand and had her detention extended, having regard to the complexity of the case and the necessary investigative measures, the proceedings had been conducted within a reasonable time within the meaning of the above-mentioned Convention; it found that the time which had elapsed between the date of her application for release of 24 January 1986 and that of the present judgment was only the inevitable result of the various appeals filed, cited in the judgment;
Moreover, in dismissing this application for release and ordering the accused’s continued detention on remand, the indictments division, after having referred to the grounds for suspicion against Monique Letellier, noted that the latter denied having been an accessory in any way although the declarations in turn of the two main witnesses conflict with the accused’s version. According to the indictments division, it remains necessary to keep the accused in detention on remand in order to protect public order from the disturbance to which incitement to the murder of a husband gives rise;
In the light of the foregoing statements, the Court of Cassation is able to satisfy itself that the indictments division, before which no submissions based on the provisions of Article 5 § 4 (art. 5-4) of the European Convention were raised and which was not bound by the requirements of Article 145-1, sub-paragraph 3, of the Code of Criminal Procedure, which do not apply in proceedings concerning more serious criminal offences (matière criminelle
... ."
23. During the investigation, the applicant submitted six other applications for release: on 14 February, 21 March, 19 November and 15 December 1986 and then on 31 March and 5 August 1987. The indictments division of the Paris Court of Appeal dismissed them on 5 March, 10 April, 5 December and 23 December 1986 and on 10 April and 24 August 1987 respectively. It based its decisions on the following grounds:
Judgment of 5 March 1986
"...
The file thus contains considerable evidence suggesting that the accused was an accessory to murder, which is an exceptionally serious criminal offence having caused a major disturbance to public order, the gravity of which cannot diminish in the short lapse of time of seven months.
The investigations are continuing and it is necessary to prevent any manoeuvre capable of impeding the establishment of the truth.
In addition, in view of the severity of the sentence to which she is liable at law, there are grounds for fearing that she may seek to evade the prosecution brought against her.
No measure of court supervision would be effective in these various respects.
Ultimately, detention on remand remains the sole means of preventing pressure being brought to bear on the witnesses.
It is necessary to protect public order from the disturbance caused by the offence and to ensure that the accused remains at the disposal of the judicial authorities.
... ."
Judgments of 10 April and 5 December 1986
Identical to the preceding decision - itself very similar to that of 22 January 1986 (see paragraph 13 above) - except that the sixth paragraph was not included and that the first paragraph ended at the word "accessory".
Judgment of 23 December 1986
"...
In these circumstances there are strong indications of Mrs Merdy’s guilt, indications which were moreover noted most recently by a judgment of this indictments division dated 5 December 1986.
The acts which Mrs Merdy is alleged to have carried out seriously disturbed public order and this disturbance persists. In addition there is a risk that, if she were to be freed, she would, in view of the severity of the sentence to which she is liable, seek to evade the criminal proceedings brought against her.
The constraints of court supervision would be inadequate in this instance.
The detention on remand of Mrs Merdy is necessary to preserve public order from the disturbance caused by the offence and to ensure that she remains at the disposal of the judicial authorities.
... ."
Judgment of 10 April 1987
"...
There are strong indications of Monique Letellier’s guilt, having regard to the consistency of Mr Moysan’s statements.
No new item of evidence has as yet been brought to the court’s attention such as would be capable of altering the situation as regards Monique Letellier’s incarceration.
The continuation of her detention on remand remains necessary to preserve public order from the serious disturbance caused by the offence and to ensure that she will appear for trial.
The constraints of court supervision would clearly be inadequate to attain these objectives.
... ."
Judgment of 24 August 1987
"...
In the present state of the proceedings, Monique Letellier is the subject of an order for the forwarding of documents to the principal public prosecutor dated 8 July 1987 made by the Créteil investigating judge, which gives grounds for supposing that the investigation is close to conclusion so that the competent court will be able to give judgment within a reasonable time.
In consequence the detention on remand is absolutely necessary on account of the particularly serious disturbance caused by the offence.
It is to be feared that Mrs Letellier will seek to evade trial, having regard to the severity of the sentence which she risks.
It is consequently essential that the accused remains in detention in order to ensure that she is at the disposal of the trial court.
The guarantees of court supervision would clearly be inadequate to attain these objectives.
... ."
24. In the defence memorials which she submitted at the hearings on 23 December 1986, 3 March 1987 and 10 April 1987, Mrs Letellier stressed the contradictions in the investigation and the statements of the witnesses. Moreover, she contested the arguments put forward to justify the extension of her detention. She maintained that, once released, she would remain at the disposal of the judicial authorities and that public order would in no way be threatened; she would comply scrupulously with any court supervision; she would provide very firm guarantees for her appearance in court and her continued detention would destroy emotionally and financially a whole family, whose sole head she remained. She claimed the benefit of the presumption of innocence, a fundamental and inviolable principle of French law.
In her memorial of 3 March 1987, the applicant also invoked Article 5 § 3 (art. 5-3) of the Convention. She noted that "... in accordance with the case-law of the European Court of Human Rights, the grounds given in the decision(s) concerning the application(s) for release, on the one hand, taken together with the true facts indicated by [her] in her applications, on the other, [made] it possible [for her] to affirm that those grounds contained both in the judgment ... of 12 February 1986 and in the preceding judgment of 22 January 1986 and in the subsequent judgments [were] neither relevant nor sufficient". She added that the parties seeking damages, the victim’s mother and sister, had not formulated any observations when she had filed her applications for release of December 1985, January, February, March, November and December 1986, whereas they had energetically opposed those of Mr Moysan; she reiterated this last argument in her memorial of 10 April 1987.
25. The case followed its course. On 26 May 1987 the investigating judge made an order terminating the investigation and transmitting the papers to the public prosecutor’s office. On 1 July the Créteil public prosecutor lodged his final submissions calling for the file to be transmitted to the principal public prosecutor’s office of the Court of Appeal. This was ordered by the investigating judge on 8 July.
26. On 26 August 1987 the indictments division committed the applicant for trial on a charge of
"having, in the course of 1985 in Val-de-Marne, being less than ten years ago, been an accessory to the premeditated murder of Bernard Merdy committed on 6 July 1985 by Gérard Moysan, inasmuch as she had by gifts, promises, threats, misuse of authority or power, incited the commission of this deed or given instructions for its commission".
27. On 9 September 1987 the Créteil public prosecutor’s office advised Mrs Letellier’s counsel that "the case [was] liable to be heard during the first quarter of 1988". By a letter of 21 October 1987, however, the lawyer in question gave notice that he would be unavailable from 1 February to 15 March 1988 on account of his participation in another trial before the Assize Court of the Vienne département.
28. On 23 March 1988 the public prosecutor informed the accused’s lawyer that the case would be heard on 9 and 10 May 1988. On 10 May 1988 the Val-de-Marne Assize Court sentenced Mrs Letellier to three years’ imprisonment for being an accessory to murder. It sentenced Mr Moysan to fifteen years’ imprisonment for murder and acquitted Mr Bredon.
The applicant did not file an appeal on points of law; she was released on 17 May 1988, the pre-trial detention being automatically deducted from the sentence (Article 24 of the Criminal Code).
29. The provisions of the Code of Criminal Procedure concerning detention on remand, as applicable at the material time, are as follows:
"In cases involving less serious criminal offences (matière correctionnelle), if the sentence risked is equal to or exceeds one year’s imprisonment in cases of flagrante delicto, or two years’ imprisonment in other cases, and if the constraints of court supervision are inadequate in regard to the functions set out in Article 137, the detention on remand may be ordered or continued:
1o where the detention on remand of the accused is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims, or collusion between the accused and accomplices;
2o where this detention is necessary to preserve public order from the disturbance caused by the offence or to protect the accused, to put an end to the offence or to prevent its repetition or to ensure that the accused remains at the disposal of the judicial authorities.
... ."
(An Act of 6 July 1989 expressly provided that Article 144 was to be applicable to more serious criminal cases (matière criminelle).)
acknowleged by the accused’s signature in the file of the proceedings.
As regards more serious criminal offences, detention is prescribed by warrant, without a prior order.
...
The investigating judge shall give his decision in chambers, after an adversarial hearing in the course of which he shall hear the submissions of the public prosecutor, then the observations of the accused and, if appropriate, of his counsel.
... ."
"Whatever the classification of the offence, the accused or his lawyer may lodge at any time with the investigating judge an application for release, subject to the obligations laid down in the preceding Article [namely: the undertaking of the person concerned "to appear whenever his presence is required at the different stages of the procedure and to keep the investigating judge informed as to all his movements"].
The investigating judge shall communicate the file immediately to the public prosecutor for his submissions. He shall at the same time, by whatever means, inform the party seeking damages who may submit observations. ...
The investigating judge shall rule, by an order giving specific grounds under the conditions laid down in Article 145-1, not later than five days following the communication to the public prosecutor.
...
Where an order is made releasing the accused, it may be accompanied by an order placing him under court supervision.
... ."
"...
[The indictments division] shall, when dealing with the question of detention, give its decision as speedily as possible and not later than thirty days [fifteen since 1 October 1988] after the appeal provided for in Article 186, failing which the accused shall automatically be released, except where verifications concerning his application have been ordered or where unforeseeable and insurmountable circumstances prevent the matter from being decided within the time-limit laid down in the present Article."
"The criminal division hearing an appeal on a point of law against a judgment of the indictments division concerning detention on remand shall rule within three months of the file’s reception at the Court of Cassation, failing which the accused shall automatically be released.
The appellant or his lawyer shall, on pain of having his application dismissed, file his memorial setting out the appeal submissions within one month of the file’s reception, save where exceptionally the president of the criminal division has decided to extend the time-limit for a period of eight days. After the expiry of this time-limit, no new submission may be raised by him and memorials may no longer be filed.
... ."
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-76125
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MULEJ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1953 and lives in Štore.
6. On 23 December 1998 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZM.
7. On 29 July 1999 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,100,000 Slovenian tolars (approximately 8,750 euros) for the injuries sustained.
Between 19 March 2002 and 20 November 2002 the applicant lodged four preliminary written submissions and/or adduced evidence.
On 12 January 2001 and 5 December 2001 he made requests that a date be set for a hearing.
Of the two hearings held on 28 March 2002 and 10 December 2002, none was adjourned at the request of the applicant.
During the proceedings, the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 21 January 2003.
On 1 June 2004 the District Court issued a decision on the correction of the judgment, which was served on the applicant on 10 June 2004.
8. In the meantime, on 23 January 2003, the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 28 September 2005 the court allowed the applicant’s appeal in part and increased the damages awarded.
The judgment was served on the applicant on 18 October 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22282
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MILOSEVIC v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Slobodan Milošević, is a national of the Federal Republic of Yugoslavia (hereinafter “the FRY”) born in 1940. He is currently detained in the United Nations Detention Center in The Hague, Netherlands. He is represented before the Court by Mr N.M.P. Steijnen, a lawyer practising in Zeist (Netherlands).
The facts of the case, as apparent from public information and the documents submitted by the applicant, may be summarised as follows.
The applicant was indicted, together with others, by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (hereinafter “the ICTY”). On 24 May 1999 a judge of the Trial Chamber of the ICTY, finding that there was a prima facie case against the indictees, confirmed the indictment and issued a warrant for their arrest. The applicant was then the President of the FRY.
In September 2000 the applicant was voted out of office. On 6 October 2000 he relinquished the position of President of the FRY. He was subsequently arrested on charges brought under FRY domestic law.
On 29 June 2001 the applicant was transferred to The Hague, despite an order of the Constitutional Court of the FRY suspending his surrender to the ICTY pending consideration of its legality.
On 3 July the applicant made an initial appearance before the Trial Chamber, during which he was formally charged and invited to plead guilty or not guilty. The applicant refused to enter a plea but attempted to argue that the ICTY was an unlawful institution. The presiding judge refused to hear his arguments. Noting the applicant’s refusal to plead, the Trial Chamber ex officio entered a plea of not guilty on his behalf. It also ordered his detention on remand.
On 9 August 2001 the applicant lodged a preliminary motion arguing, in so far as is relevant here, that the ICTY was illegal.
At a status conference on 30 August 2001, the applicant attempted to make an oral statement to the effect that the ICTY lacked a legitimate basis. He was prevented from so doing by the presiding judge, who invited him to make it in writing in the form of a preliminary motion. The applicant did so.
On 6 September 2001, the applicant having refused to be represented before a tribunal which he considered illegal, the Trial Chamber appointed three practising lawyers as amici curiae to defend the applicant’s interests. On 19 October 2001 the amici curiae submitted a brief supporting the applicant’s preliminary motions of 9 and 30 August.
On 30 October 2001, at a second status conference, the Trial Chamber gave an oral decision rejecting the applicant’s preliminary motions. The amici curiae made oral submissions concerning the proposed conduct of the trial. The applicant was allowed to speak uninterrupted. He alleged that the ICTY Prosecutor was biased, since she had failed to bring prosecutions in connection with the military intervention by NATO member States on the territory of the FRY which took place in 1999. He also complained about the conditions in which he was detained, and in particular about the lack of privacy.
The Trial Chamber’s decision rejecting the applicant’s preliminary motions was published in writing, with reasons, on 8 November 2001.
The indictment of 24 May 1999 has been amended on two occasions, and two further indictments have been brought. The applicant has consistently refused to plead, and pleas of not guilty have been entered on his behalf.
On 30 January 2002 a hearing was held before the Appeals Chamber of the ICTY, the purpose of which was to decide whether the various indictments should be heard in separate sets of proceedings. The applicant submitted a request for his release and promised to appear for any hearings.
On 1 February 2002 the Appeals Chamber of the ICTY decided that the three indictments should be heard in a single set of proceedings.
The applicant’s trial opened on 12 February 2002.
It was reported on 27 February 2002 that the applicant had repeated his request for release to the Trial Chamber, and on 6 March 2002 that it had been refused.
The applicant brought summary civil proceedings (kort geding) against the Netherlands State before the President of the Regional Court (arrondissementsrechtbank) of The Hague. He sought an order directed against the State for his unconditional release; in the alternative, for him to be returned to the FRY; in the further alternative, for the State to make representations to “the so-called Tribunal” (i.e. the ICTY) and other competent international bodies and institutions for his release; in the still further alternative, for the State to make representations to “the alleged Tribunal” (again, i.e. the ICTY) and other competent international bodies and institutions for his return to the FRY. He argued, essentially, that his transfer to the ICTY was illegal as a matter of the domestic law of the FRY; that the ICTY itself lacked a basis in international law, having been set up by a resolution of the Security Council of the United Nations (to wit, resolution no. 827 of 25 May 1993) and not by a multilateral treaty; that the ICTY was the handmaiden of NATO and therefore not an independent and impartial tribunal in the sense of Article 6 of the Convention; that the actions of the Security Council and the ICTY were discriminatory; and that he was entitled to immunity as a former head of state. In view of these considerations the Netherlands State was acting unlawfully by allowing him to be detained and remain in detention on its territory,
A public hearing was held on 23 August 2001.
The President of the Regional Court gave judgment on 31 August 2001. He found that the ICTY did in fact have sufficient legal basis; that it offered sufficient procedural guarantees, as found by the European Court of Human Rights in its Naletilić v. Croatia decision (no. 51891/99, 4 May 2000); and that, the Kingdom of the Netherlands having lawfully transferred its jurisdiction over the ICTY’s indictees to the ICTY, the courts of the Netherlands were not competent to consider the applicant’s request for release.
The applicant lodged an appeal against this judgment, but withdrew it again as of 17 January 2002.
Article 289 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) provides that all cases where a speedy and provisionally enforceable decision is required in the interests of the parties shall be heard in summary proceedings by the President of the Regional Court, who shall set a hearing date on a working day.
Article 295 provides for an appeal against the President’s judgment to the Court of Appeal (gerechtshof), and for a further appeal – on points of law –to the Supreme Court (Hoge Raad).
Article 292 provides that a provisionally enforceable decision taken in summary proceedings shall not prejudge the merits of the case.


ITEMID: 001-58077
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF MIAILHE v. FRANCE (No. 2)
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (victim);Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione materiae);No violation of Art. 6-1
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 6. Mr Miailhe has dual French and Philippine nationality. He was honorary consul of the Philippines in Bordeaux from 1960 to May 1983 and also looked after that country’s consulate in Toulouse.
7. On 5 and 6 January 1983 customs officers seized nearly 15,000 documents at the applicant’s Bordeaux residence, on premises housing the head offices of companies he managed and the consulate of the Republic of the Philippines. This operation was part of an investigation to determine, among other things, whether the applicant and his mother were to be regarded as being resident in France.
The judicial investigation that had been commenced on a complaint lodged by the director of customs investigations alleging unlawful accumulation and holding of assets abroad ended in a judgment of the Criminal Court of 2 December 1992 in which the court ruled that the public prosecution and the proceedings for imposition of customs penalties in respect of Mr and Mrs Miailhe were barred as a result of changes in the criminal law and ordered the return of the seized documents. These were returned in January 1993.
8. Mr Miailhe challenged before the Strasbourg institutions the lawfulness of the customs seizures made pursuant to Articles 64 and 454 of the Customs Code. Those proceedings led to two judgments of the European Court of Human Rights. In the first of these it was held that there had been a breach of Article 8 of the Convention (art. 8), on the ground that the house searches and seizures made by customs officers without a judicial warrant had interfered with the private life of the applicant, his mother and his wife; and in the second, France was ordered to pay Mr Miailhe 50,000 French francs (FRF) in respect of non-pecuniary damage and FRF 60,000 for costs and expenses (see the Miailhe v. France (no. 1) judgments of 25 February 1993, Series A no. 256-C, and 29 November 1993, Series A no. 277-C).
9. On 4 March 1983 the National Head Office for Tax Investigations sent the applicant notice of a full audit of his overall tax position in respect of his income for the years 1979, 1980, 1981 and 1982.
Since Mr Miailhe regarded himself as being resident for tax purposes in the Philippines, and accordingly not under an obligation to pay tax to the French State, the Revenue asked him to produce copies of his tax assessment notices in the Philippines and documents giving details of all bank accounts in his name both in France and abroad.
On 20 April 1983 Mr Miailhe replied that it was impossible for him to forward some of the documents that had been kept by the customs and which he had asked to have returned to him.
10. During May 1983 the tax inspector exercised the right of inspection provided in Articles L.81 et seq. of the Code of Tax Procedure and Article 64A of the Customs Code.
At the offices of his customs colleagues he examined the 9,478 documents that had been kept and classified by the customs authorities and made copies of 1,200 to 1,300 of them.
11. On 9 February 1984 the tax inspector asked the Philippine authorities for administrative assistance as provided for in Article 26 of the Franco-Philippine Tax Convention of 9 January 1976 "for the avoidance of double taxation and prevention of fiscal evasion in relation to income tax" (see paragraph 27 below).
On 21 March 1985 he inspected 41 sheets concerning returns and annexes of the applicant and his mother for the years 1980 and 1982, 27 sheets concerning returns, appended financial statements and certificates from the accountant of the AMIBU company managed by the applicant in respect of the years 1979, 1980 and 1981, and three sheets relating to a provisional accounting statement and a bank reconciliation as at 15 September 1982.
These documents reached the Revenue’s administrative headquarters in Paris on 8 November 1984.
12. At the end of the tax audit four supplementary assessments were served on Mr Miailhe: on 22 December 1983 for the year 1979, on 4 December 1984 for the year 1980, on 19 February 1985 for the year 1981 and on 12 March 1985 for the year 1982. The Revenue subsequently amended the notices in respect of the years 1979, 1980 and 1981, once on 16 July 1985, in the light of comments by the applicant, and again on 8 November 1985, to correct erroneous reasons.
13. The relevant documents to be studied for each category of proceedings - administrative, tax and criminal - were not all the same, since different tax years and bases of assessment were involved, as were failures to make returns and real-property and agricultural taxes distinct from the general income tax to which the dispute over tax residence related more particularly.
14. Mr Miailhe challenged the supplementary tax assessments for the years 1979-82 in the administrative courts, which have jurisdiction in tax matters, by lodging an appeal founded partly on the non-adversarial nature of the Revenue’s preparation of the case against him.
In a judgment of 12 December 1991 the Bordeaux Administrative Court held that the applicant had not proved that he had expressly asked the Revenue to produce the documents on which it had allegedly based the assessments for the years 1980, 1981 and 1982 and ordered further inquiries on this point. As to the assessment raised for the year 1979, on the other hand, the court found that the Revenue had failed to accede to an application for production made by the applicant’s lawyer and accordingly remitted the additional tax sought from the applicant in the category of income from movable assets and in respect of income from undetermined sources for that year. An appeal by the Minister for the Budget regarding the remission of tax granted for the single year 1979 was dismissed by the Bordeaux Administrative Court of Appeal.
An appeal on points of law against the Administrative Court’s judgment is pending before the Conseil d’Etat. The Administrative Court has not yet ruled on the merits as regards the supplementary tax assessments for the years 1980, 1981 and 1982.
15. In other proceedings brought against the Revenue by the AMIBU company, managed by the applicant, the Bordeaux Administrative Court of Appeal found that the tax assessment challenged by the company was based in part on documents seized by the customs in circumstances that had been held to be contrary to Article 8 of the Convention (art. 8). In a judgment of 15 June 1995 it allowed the company’s application for remission of tax as follows:
"While the unlawfulness of the seizure, in proceedings brought under different legislation, of documents on the basis of which the Revenue, exercising its right of inspection, assessed the taxes has no effect on the lawfulness of the tax proceedings, it is such as to deprive those documents of any probative value, including inasmuch as they revealed to the Revenue that the taxpayer was in a position to have his tax assessed by the Revenue of its own motion. Where an international judicial body set up by an international treaty or agreement that has been lawfully ratified or approved has ruled that the seizure of documents did not comply with the said treaty or agreement, the court having jurisdiction in tax matters must regard the seized documents as having no probative value ..."
16. On 15 April 1986 the Tax Offences Board ("the CIF") gave approval for a complaint to be lodged seeking the imposition of criminal tax penalties, pursuant to Article L.228 of the Code of Tax Procedure (see paragraph 29 below).
In consequence, the Department of Revenue lodged a complaint, together with an application to join the proceedings as a civil party, against the applicant for tax evasion in respect of the years 1981 and 1982. It accused him of not having made any general tax return for 1981 and of having understated his agricultural income for 1982.
17. The Revenue annexed to its complaint some of the documents given to it by the customs authorities. It did not at that juncture append any of the documents forwarded by the Philippine authorities, although the tax inspector’s summary report that had been placed in the file of the judicial investigation mentioned the correspondence between the French and the Philippine authorities.
The investigating judge raised this point with the tax inspector, who referred back to his central authorities and subsequently told the judge that his authorities had hesitated to produce in criminal proceedings documents which the ordinary judicial authorities could not have procured for themselves. At the judge’s request, the inspector added to the file the documents from the Philippines provided by his authorities, that is to say the only documents concerning Mr Miailhe in respect of the offences charged. The documents not placed in the file related either to Mrs Miailhe and the AMIBU company - and neither of these was implicated - or, in respect of the defendant, to the years 1980 and 1982, which the proceedings for failure to make a tax return were not concerned with.
18. On 6 May 1988 the investigating judge committed the applicant for trial at the Bordeaux Criminal Court on a charge of having fraudulently evaded, in part, assessment and payment of income tax for the years 1981 and 1982 "by having failed to make certain category-specific returns (in respect of income from movable assets, ‘RCM’, and industrial and commercial profits, ‘BIC’, Article 92 of the General Tax Code) within the prescribed time-limits (in respect of 1981) and by having omitted from his returns (for 1981 and 1982) part of his income from farming and real property, thus deliberately concealing in his overall returns part of the sums liable to tax".
19. Before any defence on the merits Mr Miailhe filed submissions in which he sought to have the Revenue’s complaint and the judicial investigation proceedings declared null and void. He argued that the customs seizures were null and void, that the adversarial principle had not been respected by the Revenue and that the latter, in particular during the judicial investigation, had withheld documents from the judicial authorities and made false statements.
He himself filed certain documents that he had been able to obtain from the Philippine authorities: the French tax authorities’ request to their Philippine opposite numbers, the Philippine authorities’ reply indicating that Mr and Mrs Miailhe had been resident for tax purposes in the Philippines for 1980 and 1982, information concerning the AMIBU company, untranslated bank documents, a certificate by a registered accountant to the effect that Mr Miailhe’s tax return for 1982 had been made in good faith, a statement of his income and expenditure for 1982, an amortisation table for 1981, a statement of his income for 1981, the tax return he made in the Philippines for 1981 and a tax return for 1982.
20. On 11 January 1989 the Criminal Court gave its judgment.
It began by dismissing all Mr Miailhe’s preliminary objections.
As regards the first of those, it pointed out that on an appeal by the applicant concerning the lawfulness of the seizures, the Court of Cassation had upheld a judgment of the Paris Court of Appeal in which that court had said that "the customs officials did not exceed their powers and that there was no manifest, deliberate violation of a personal freedom"; the customs seizures were covered by paragraph 2 of Article 8 of the Convention (art. 8-2) and the seized documents had been lawfully made available to the Revenue.
It dealt with the second objection as follows:
"... on account of the principle that tax and criminal proceedings are independent, the [criminal] courts cannot rule on the nullity of tax proceedings. The only exception to this principle is provided in Article L.47 of the Code of Tax Procedure ... This Article provides that proceedings shall be null and void where a notice of audit does not mention that the taxpayer has the right to be assisted by an adviser of his own choosing. As the defendant does not dispute that this information was given to him, he cannot rely on any other argument in order to obtain from the criminal courts a declaration that the tax proceedings are null and void."
As to the last objection, the court found, in the light of the documents produced by the applicant at the hearing, that the letters and documents exchanged by the French and Philippine authorities were not in the file and it held:
"... The failure to place in the file some documents of importance to the accused’s defence, which had been sought in their entirety by the investigating judge, amounts to a breach of his rights.
That breach of the rights of the defence cannot, however, have the consequence that the earlier proceedings were a nullity.
By producing these documents at the hearing, the accused was able to explain their content and have them submitted to adversarial argument. The breach of his rights did not therefore have the effect of prejudicing his interests."
21. Ruling on the question whether Mr Miailhe was under an obligation to make a return in France of his category-specific income and whether he had with fraudulent intent evaded paying that tax for the year 1981, the court held that the applicant was resident for tax purposes in France at the time, both under French law and under the Franco-Philippine Convention. In order to determine whether there had been fraudulent intent, it relied among other things on a manuscript document written by Mr Miailhe that was reproduced in the tax-audit report and on the applicant’s conduct in producing only at the hearing his full return for 1981, which had been submitted to the tax inspector with the figures whited out.
As to the undeclared income from farming and real property for the years 1981 and 1982, the court found that the applicant had lent money to himself through the bank accounts of his companies and subsequently deducted from his agricultural income the interest charges and exchange losses. He thus realised a tax loss for those years and legally exported his capital by means of the repayments.
The court concluded that Mr Miailhe had personally put in place fraudulent arrangements designed to evade liability to and payment of tax in France. It sentenced him to three years’ imprisonment, of which six months were to be served immediately, and a fine of FRF 150,000. Extracts from the judgment were ordered to be published in the French Official Gazette and in the daily newspapers Le Monde, Le Figaro and Sud-Ouest.
22. The defendant appealed and in the Bordeaux Court of Appeal reiterated the three objections of nullity already raised, stating as to the last of them that:
"... although he ha[d] been able to obtain a number of withheld documents by seeking them from the Philippine authorities, he ha[d] been unable to inspect most of the documents attached to the correspondence, he still [did] not know what they contained and ha[d] been unable to give explanations concerning them; in particular, he ha[d] not been able to refer to the withheld documents before the Tax Offences Board; ..."
23. The Court of Appeal gave judgment on 7 June 1989.
It joined the objections to the merits and dismissed them, referring "in the case of the first two applications for a declaration of nullity that were reiterated but not strongly argued" to the reasoning of the Criminal Court. The last objection, concerning the withholding of documents and the false statements, it dismissed as follows:
"These documents should have been handed over but provide no information that could have any bearing on the decision of the court below or of this court: for the most part they did not concern Miailhe or the period in question, 1981; ... the documents not filed were of no relevance to the case and, at all events, were produced at the hearing in the court below and examined adversarially on that occasion; the same reasoning, except for the adversarial examination of the documents, applies to the Tax Offences Board; moreover, at first instance no application was made for a declaration that the proceedings before the Board were null and void.
As regards the very large number of other documents handed over but not placed in the file, their existence, alleged by [the applicant], has not been proved and they cannot be taken into account in any way."
24. On the merits the court held, as to the first offence of failure to declare income for 1981, that the applicant was a French resident for tax purposes under French law alone, as the Franco-Philippine Convention did not operate in the instant case since there was no conflict between the two sets of national legislation. The court pointed out that the Revenue’s calculations had been based on documents signed in France by Mr Miailhe, which it listed. The court held that he had had fraudulent intent from a scrutiny of notes by him that had been seized and were in the file and documents that he had placed in it himself, which showed that notwithstanding his alleged status as Philippine resident and citizen, he had not discharged his obligation to declare his world income in the Philippines either.
The Court of Appeal, which upheld the Criminal Court’s judgment in its entirety, sentenced the defendant to three years’ imprisonment, of which ten months were to be served immediately, and a fine of FRF 250,000.
25. Mr Miailhe lodged an appeal on points of law, which was dismissed by the Court of Cassation (Criminal Division) on 18 March 1991.
The judgment read as follows:
"As to the second ground of appeal, based on the breach of Article 8 (art. 8) of the ... Convention ...
...
The ground must therefore fail;
As to the third ground of appeal, based on a breach of ... Article 6 (art. 6) of the ... Convention ...
...
Firstly, the accused merely raised, in the court of trial before any defence on the merits, an objection of nullity going to the lawfulness of the supplementary tax assessment proceedings, which, as they are purely administrative, are irrelevant to the criminal proceedings.
That being so, the first limb of the ground of appeal, which raises for the first time before the Court of Cassation the objection based on the alleged nullity of the proceedings before the Tax Offences Board gave its opinion, is inadmissible under Article 385 of the Code of Criminal Procedure.
Secondly, as a ground for refusing to allow the objection that the ordinary criminal proceedings were a nullity on account of the Revenue’s withholding of documents useful to the defence, the Court of Appeal noted that under the Franco-Philippine Tax Convention of 9 January 1976, the French authorities sought administrative assistance from the Philippine authorities. The accused maintained that 71 documents were sent to the French authorities in this way.
The accused, who had been able to obtain some of these documents, produced them at the hearing in the Criminal Court.
After studying these documents, the Court of Appeal found that they were of no relevance to the case, most of them not concerning [William] Miailhe or the period referred to in the charge. At all events, they were produced at the hearing in the Criminal Court and examined adversarially on that occasion. The Court of Appeal added that the existence of the other documents allegedly sent and not placed in the file had not been proved.
In ruling as it did, the Court of Appeal, which based its judgment only on the documents produced at the hearing, provided a legal basis for its decision.
The second limb of the ground of appeal must likewise fail."
26. The applicant was committed to prison on 18 March 1991 and was released on licence on 21 July of the same year. He was placed under judicial supervision until 8 November 1991.
27. At Kingston on 9 January 1976 the French and Philippine Governments signed a convention "for the avoidance of double taxation and prevention of fiscal evasion in relation to income tax". Article 26 ("Exchange of information") provides:
"1. The competent authorities of the Contracting States shall exchange such information (being information which is at their disposal under their respective tax administrative practices and those which may be procured by special inquiry) as is necessary for the carrying out of this Convention and of the domestic laws of the Contracting States concerning taxes covered by this Convention, in particular, for the prevention of fraud or evasion of such taxes. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those (including a court or administrative body) concerned with the assessment, collection, or enforcement in respect of taxes which are the subject of the Convention or with the prosecution, claims and appeals relating thereto.
2. In no case shall the provisions of paragraph 1 be construed so as to impose on one of the Contracting States the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practices of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) ..."
28. Administrative tax-inspection proceedings are governed by the Code of Tax Procedure. By Article L.47 of that code,
"A full audit of the overall tax position of a natural person in regard to income tax or an audit of accounts cannot be undertaken unless the taxpayer has been informed of it by the sending or handing over of a notice of audit.
Such a notice must specify the years in respect of which the audit is to be made and expressly mention, failing which the proceedings will be null and void, that the taxpayer has the right to be assisted by an adviser of his own choosing.
In the event of an unannounced inspection for the purpose of identifying physical features of the business or establishing the existence and state of the books, the notice of an audit of the accounts shall be handed over at the beginning of the search operation. A thorough scrutiny of the books may only begin after the taxpayer has been given a reasonable time to seek the assistance of an adviser."
The courts with jurisdiction in tax matters, which in the case of direct taxes are the administrative courts, are competent in principle to deal with irregularities in administrative tax-inspection proceedings. They ensure that the safeguards afforded to taxpayers are complied with. Thus "a final decision by a criminal court cannot prevent a taxpayer from arguing before a court with jurisdiction in tax matters that the audit which gave rise to the impugned tax assessments was irregular" (Conseil d’Etat, 9 April 1986, no. 22691, Revue de jurisprudence fiscale, June 1986, no. 625).
29. Article L.228 of the Code of Tax Procedure provides:
"To be admissible, complaints seeking the imposition of criminal penalties in respect of direct taxes, value-added tax and other turnover taxes, registration fees, land registry fees and stamp duty must be lodged by the administrative authorities after approval from the Tax Offences Board.
The Board shall consider the cases submitted to it by the Minister of Finance. The taxpayer shall be given notice of the application to the Board, which shall invite him to send it, within thirty days, any information it considers necessary.
The Minister shall be bound by the Board’s opinions."
The Revenue is not required by any provision of statute or of regulations to institute criminal proceedings in respect of the offences referred to in Article 1741 of the General Tax Code (Conseil d’Etat, 5 November 1980, Droit fiscal 1981, p. 365).
The CIF was set up under the Act of 29 December 1977 in order to afford taxpayers fresh safeguards and it is made up of six senior members of the Conseil d’Etat (judges of the administrative courts) and six senior members of the Court of Audit (judges of the financial courts). Parliament absolutely excluded the possibility of the CIF being a court of first instance. It refused to allow the CIF’s opinions to contain reasons, in order to avoid influencing the ordinary courts. As long as there is no breach of due process, a taxpayer accused of tax evasion may not challenge in the criminal courts the lawfulness of the administrative proceedings which took place prior to the CIF’s favourable opinion; the criminal court must only establish the existence and date of that opinion (Court of Cassation, Criminal Division, 2 December 1985, Recueil Dalloz Sirey ("DS") 1986, p. 489).
The only function of the criminal courts that hear tax-evasion cases is to punish the offence. The Court of Cassation has held:
"... Criminal proceedings instituted under Article 1741 of the General Tax Code and the administrative proceedings for establishing the tax base and the scope of tax are in their nature and purpose different and independent from each other ... the function of courts which try criminal cases under Article 1741 is limited to determining whether the defendant evaded or attempted to evade tax by reprehensible subterfuges in respect of sums exceeding the statutory allowance."
(Criminal Division, 9 April 1970, DS 1970, p. 755)
Article L.47 provides that any breach of its provisions shall entail a nullity of the proceedings "without any distinction being made between administrative proceedings and criminal proceedings ... Since the latter proceedings may be based on findings made by the inspectors in the books and documents held by a taxpayer, compliance with the requirements of [Article L.47] is an essential safeguard of the rights of the defence, which it is for the criminal courts to ensure are respected" (Court of Cassation, Criminal Division, 4 December 1978, Venutolo, DS 1979, p. 90). However, "it is not within the jurisdiction of the criminal courts to assess the lawfulness of the tax proceedings ... The criminal courts’ response to failure to comply with the provisions of Article L.47, in that it departs from the general principle of the separation of administrative and ordinary courts, must be based on a strict construction and accordingly cannot be extended beyond the cases to which the statute expressly meant to limit it" (Court of Cassation, Criminal Division, 9 May 1983, DS 1983, p. 621).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97999
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GYOZO NAGY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1942 and lives in Budapest.
5. On 12 November 1998 the applicant was charged with fraud and forging documents. On 28 April 2000 the Miskolc District Court found him guilty. On appeal, the Borsod-Abaúj-Zemplén County Regional Court quashed this decision and remitted the case to the first-instance court on 5 June 2001.
6. In the resumed proceedings, the District Court acquitted the applicant on 11 December 2002. This judgment was quashed by the Regional Court on 3 June 2004.
7. In the resumed proceedings, the District Court found the applicant guilty on 13 July 2005. On appeal, the Regional Court reversed this judgment and finally acquitted the applicant on 16 March 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87560
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FYODOROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1930 and resides in the town of Zhovti Vody, Dnipropetrovsk region, Ukraine.
5. On an unspecified date the applicant instituted three separate sets of proceedings in the Zhovti Vody Town Court of Dnipropetrovsk Region against his employer, a State-owned company, the Zhovti Vody Construction Department (Жовтоводське управління будівництва), for salary arrears and other payments.
6. On 13 December 2000 and 31 July 2001 the court found for the applicant and awarded him a total of 4,694.11 Ukrainian hryvnyas (UAH). On 12 March 2002 the court dismissed the applicant’s third claim as time-barred.
7. In 2001 the Zhovti Vody Town Bailiffs’ Service initiated enforcement proceedings.
8. The applicant received UAH 2,142, but the remainder of the awards remains unpaid.
9. On 5 October 2004 the Ministry of Fuel and Energy liquidated the debtor enterprise and the writs of enforcement were transferred to the liquidation commission.
10. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-113956
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KOWAL v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Sebastian Kowal, is an Polish national, who was born in 1987 and lives in Brenna. He is represented before the Court by Mr S. Tatka, a lawyer practising in Cieszyn.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On an unspecified date in 2008 the Social Assistance Centre in Brenna instituted proceedings with a view to making the applicant’s father A. K. undergo treatment for alcoholism. They referred to numerous police interventions at the family apartment as a result of A.K.’s repeated acts of aggression and violence against his family and to a diagnosis made by a psychiatrist to the effect that he suffered from alcoholism.
5. He apparently failed to comply with that order.
6. On 11 August 2008 the applicant informed the police of acts of domestic violence committed by his father.
7. On 9 September 2008 the applicant’s mother lodged an action for separation with the Bielsko-Biala Regional Court.
8. On 24 November 2008 a bill of indictment against A.K. on charges of domestic violence was lodged with the Cieszyn District Court.
9. On 5 December 2008 the Bielsko-Biala Regional Court allowed the applicant’s mother’s separation claim. In its judgment the court established that the applicant’s mother and father were to use separate parts of the family house.
10. On 13 February 2009 the Cieszyn District Court convicted the applicant’s father of domestic violence (znęcanie sie nad osobą najbliższą). The applicant’s father submitted himself to the sentence (dobrowolne poddanie sie karze). The court sentenced him to one year and three months’ imprisonment and conditionally stayed the execution of that sentence for a probation period of four years. The court also obliged him to abstain from alcohol abuse and assigned a probation officer to supervise his conduct.
11. On 5 November 2009 the applicant, his mother and younger brother requested the court to lift the stay of the execution of the prison sentence. They submitted that A.K. continued to drink and that his behaviour remained violent.
12. On 21 December 2009 the court held the first hearing in the case. It heard evidence from the applicant, his mother, his brother, the probation officer and three other persons. It had regard to the police records and to the probation officer’s file. It found that the applicant’s father had continued to be violent, had battered his wife, proffered insults and humiliated his sons and had abused alcohol.
13. The next hearing was held on 1 February 2010. The court heard evidence from the applicant’s younger brother and ordered that an expert report on A.K.’s mental health be prepared.
14. On 13 April 2010 the Cieszyn District Court gave a decision. It noted that the applicant’s mother had declared that her husband’s behaviour had slightly improved and that therefore there were grounds for accepting that he was capable of mending his ways. The court was of the view that in these circumstances it would not be justified to order the prison sentence to be executed. However, it ordered the defendant to leave the family apartment within 14 days, referring to Article 72 § 1 (7) (b) of the Criminal Code. It observed that this obligation could be imposed on a defendant regardless of his ownership of the apartment and that it only limited him in the exercise of the right to live here, his ownership rights remaining intact.
15. On 19 April 2010 the applicant’s father appealed against this decision. He requested that the obligation to leave the house be lifted. A hearing before the appellate court was scheduled for 14 June 2010.
16. In 2010 the probation officer contacted the applicant and his mother on the one hand and A.K. on the other within the framework of the supervision of the execution of the judgment given on 13 February 2009 on the following dates: 2, 3, 3, 21 and 26 January, 29March, 13, 15 and 29 April, 1 and 4 May 2010.
17. On 4 May 2010 the applicant wrote to the probation officer and complained that his father continued to be violent.
18. On 17 August 2010 the Bielsko-Biala Regional Court upheld the decision of 13 April 2010. It therefore became final on that date and A.K. was obliged to leave the house by 31 August 2010.
He failed to do so.
19. On an unspecified later date the applicant requested the assistance of a local bailiff. In reply, he was informed orally that it was legally impossible for the bailiff to take any enforcement steps if the person ordered to leave the apartment refused to do so.
20. By a letter of 23 September 2010 the probation officer requested the Cieszyn District Court to take steps in order to have the decision of 13 April 2010 executed, referring to A.K.’s failure to move out.
21. At the hearing held on 4 November 2010 A.K. informed the court that he had been trying to find a new apartment, but that he had not found one so far. The court adjourned the examination of the case until 21 December 2010.
22. On 17 December 2010, in a civil case for the division of marital property, the applicant’s parents concluded a settlement on the basis of which A.K. was obliged to move out of the family house within six months from that date. This settlement became final on 25 December 2010.
23. During the hearing held on 21 December 2010 the Cieszyn District Court was informed of the settlement concluded on 17 December 2010. It adjourned the proceedings until 15 February 2011 in order to read the casefile.
24. On 15 February 2011 the Cieszyn District Court noted that the applicant’s father had moved out of the house on 1 February 2011. It therefore decided not to order the enforcement of the prison sentence and obliged A.K. not to approach the applicant and his mother.
25. Article 13 of the Law on Domestic Violence (Ustawa o przeciwdziałaniu przemocy w rodzinie) was adopted on 29 July 2005. It amended Article 72 § 1 of the Criminal Code by adding to it the following text:
When staying execution of a sentence, the court may impose on a defendant an obligation to: (...)
7. (b) leave an apartment where the defendant lives with the victim [of the offence concerned].
26. In its Recommendation Rec (2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.
27. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.