ITEMID: 001-93401
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BLAGOJEVIC v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Vidoje Blagojević, is a Serbian national who was born in 1950. He is currently detained in a prison in Norway, serving a fifteen-year prison sentence imposed by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (also known as the International Criminal Tribunal for the Former Yugoslavia, hereafter the ICTY). He was represented before the Court by Mr V. Domazet, a lawyer practising in Niš (Serbia).
2
3. On 30 October 1998 the ICTY’s Prosecutor issued an indictment against the applicant. This indictment charged the applicant, who had commanded a brigade of the Bosnian Serb Army (Vojska Republike Srpske, “VRS”) in Eastern Bosnia, with genocide and in the alternative complicity in genocide, extermination as a crime against humanity, murder as a crime against humanity and a violation of the laws and customs of war, and persecutions on political, racial and religious grounds as a crime against humanity. This indictment was amended on 27 October 1999 to include two further charges, namely deportation as a crime against humanity and inhumane acts based on forcible transfer as a crime against humanity. The indictment was kept sealed until the applicant’s arrest.
4. The applicant was arrested by the Stabilisation Force (SFOR) on 10 August 2001 and transferred to the custody of the ICTY the same day.
5. On 16 August 2001 the applicant made his initial appearance in open court, assisted by duty counsel, Mr Van der S. He pleaded not guilty to all charges. On the same day the applicant was ordered placed in detention on remand until further order.
6. The applicant claimed to lack the means to retain counsel and subsequently qualified to have counsel assigned. The ICTY’s Registrar assigned Mr K., pursuant to the applicant’s request, on 5 September 2001. On 25 September 2002 Ms T. was assigned as co-counsel, based on the request of Mr K.
7. On 27 November 2002 the applicant lodged a motion for the replacement of Ms T. By a decision dated 9 December 2002 the Trial Chamber refused to do so, finding that leading counsel Mr K. had expressed confidence in Ms T. and that Ms T. was not incompetent or acting in any way contrary to the applicant’s interests.
8. On 27 March 2003 the applicant again sought the replacement of Ms T. In addition, stating that he had lost confidence in Mr K. who had failed to consult him when choosing Ms T. as co-counsel, he requested the replacement of his entire legal team. On 8 April 2003 the ICTY’s Registrar issued a decision refusing both requests, citing a lack of substantive grounds relating to Ms T.’s peformance or professional ethics and pointing out that a replacement of counsel could cause delays in the proceedings which would affect the applicant’s right to an expeditious trial.
9. Following a statement made by the applicant on 5 May 2003 to the effect that he considered his entire defence team fired, the Trial Chamber on 9 May 2003 instructed the Registrar to appoint independent counsel for the purpose of assisting the applicant in his dispute with his assigned defenders.
10. In the meantime the applicant’s case had been joined with that of another accused, Major J. The trial opened on 14 May 2003.
11. The Registrar appointed the lawyer Mr Sj. in the role of independent counsel on 23 May 2003. On 5 June 2003 Mr Sj. filed a motion seeking that the Trial Chamber instruct the Registrar to appoint a new defence team for the applicant due to an absence of trust and communication with the current team. This was denied by the Trial Chamber on 3 July 2003; however, the Trial Chamber requested that the Registrar appoint a legal representative to assist the applicant and his defence team during the trial process in order to re-establish a relationship of trust.
12. Mr Sj. lodged an appeal against the Trial Chamber’s decision. On 15 September 2003 the Appeals Chamber dismissed the appeal. In so doing it considered that the applicant had failed to demonstrate any error of the Trial Chamber in its impugned decision that would warrant the interference of the Appeals Chamber and that it was in the interests of justice that the applicant retain his assigned counsel, and that the applicant’s trial had been adjourned pending the outcome of his appeal.
13. On 5 April 2004 the Trial Chamber gave a judgment on motions for acquittal lodged by both accused. It acquitted the applicant of planning, instigating and ordering the crimes with which he was charged, with the exception of genocide. This document names Mr K. and Ms T. as the applicant’s counsel.
14. The Trial Chamber rendered a single judgment against both the applicant and Major J. on 17 January 2005. This judgment too names Mr K. and Ms T. as the applicant’s counsel. It found the applicant guilty of complicity to commit genocide, aiding and abetting murder as a crime against humanity and as a violation of the laws or customs of war and of aiding and abetting deportation as a crime against humanity and inhumane acts based on forcible transfer as a crime against humanity. The Trial Chamber then sentenced him to eighteen years’ imprisonment, putting the time which he had spent in ICTY’s custody to his credit towards the sentence.
15. Both the applicant and the prosecution appealed.
16. The Appeals Chamber gave judgment on 9 May 2007. The judgment names the applicant’s counsel as Mr Vladimir Domazet, who is also his representative in the proceedings before the Court.
The judgment contains the following passages (footnote references omitted):
“17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel. While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice. Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.
18. Second, Blagojević disputes the conclusion of the Appeals Chamber and Trial Chamber that he was not justified in resisting his assigned legal representation and that he did not show good cause for removing his assigned counsel. Blagojević contends that the breakdown was not, in fact, unilateral because his counsel falsely accused him of trying to engage in fee-splitting. Blagojević argues that this ‘false and tendentious accusation’ destroyed all possibility of re-establishing any form of cooperation between them because in his view his counsel had accused him of being a ‘common criminal’. Though the Appeals Chamber found this argument to be without merit at the pre-trial stage, Blagojević points to an exchange at a status conference during the trial where Mr. [K.], in his view, acknowledged and apologized for making false accusations against him, thereby vindicating his refusal to deal with his counsel.
19. The Appeals Chamber previously explained that the matter of alleged fee-splitting had no bearing on the Trial Chamber’s decision to maintain Blagojević’s assigned counsel. The Appeals Chamber nonetheless considered the nature and possible impact of such an allegation on the lawyer-client relationship ‘for completeness and to ensure finality’. The Appeals Chamber noted that the assigned counsel did not breach any client confidence by raising the issue of fee-splitting, as he was ethically bound to bring such issues to the attention of the Registrar. The Appeals Chamber also determined that this issue should not unduly impact the relationship, in particular, noting that Mr. [K.] did not place blame on Blagojević for attempting to enter into a feesplitting arrangement and instead explained that it resulted from ‘family pressures’. The Appeals Chamber observed that this was consistent with Blagojević’s own explanation. A review of the transcripts of the status conference pointed to by Blagojević does not, contrary to his submissions, indicate that Mr. [K.] admitted to falsely accusing him of trying to engage in fee-splitting. Rather, Mr. [K.] simply made clear, consistent with the submissions previously considered by the Appeals Chamber, that he never accused Blagojević himself of trying to engage in feesplitting.
20. In addition, Blagojević seeks to reopen the issues considered and decided in the interlocutory appeal by arguing that the Appeals Chamber and Trial Chamber failed to appreciate that the breakdown of his relationship with his counsel would last throughout the trial and prevent him from playing any meaningful role in his defence. However, Blagojević’s submissions before trial clearly indicated that he considered the breakdown irreparable. Nonetheless, Blagojević correctly notes that both the Appeals Chamber and Trial Chamber expressed measured optimism that the situation between him and his counsel would improve. This view resulted from the determination that there was no objective basis for Blagojević to be dissatisfied with his counsel’s performance. Blagojević has not called this conclusion into question. More importantly, however, Blagojević’s argument on this point fails to address the key aspect of the Appeals Chamber’s earlier holding. In dismissing Blagojević’s interlocutory appeal, the Appeals Chamber stated:
[sub-quotation]
In circumstances such as this, where an Appellant unjustifiably resists legal representation from assigned Counsel, Counsel’s professional obligations to continue to represent the accused remain. The Appeals Chamber is satisfied that Counsel in this case is committed to representing the Appellant, and that the Appellant will receive a fair trial with the assistance of his assigned Counsel. In dismissing the Appellant’s appeal, the Appeals Chamber wishes to make it clear to the Appellant that he has now exhausted all avenues available to him to voice his objections that he has not been accorded that to which he has no justifiable reason to demand. The Tribunal will not entertain a demand by an Appellant for that to be granted to him to which he has established no legal entitlement.
[end of sub-quotation]
21. Blagojević’s own submissions under the present ground of appeal reflect that the continued breakdown during the trial and the resulting complaints about the conduct of his defence also resulted from his unilateral refusal to communicate with his counsel, rather than from any action on the part of his counsel and Defence team. The Trial Chamber’s decision on Blagojević’s request to testify is exemplary of Mr. [K.]’s continued willingness to meet with and assist him and of Blagojević’s unilateral resistance to any cooperation. The Appeals Chamber considers that an appellant cannot premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings.”
17. The Court understands fee-splitting to be an arrangement under which an accused who has been granted legal aid makes his consent to be represented by assigned counsel conditional on payment to him or her of a portion of the legal aid fees paid to counsel. The judgment includes the following quotation of Mr K. from the transcript of a status conference during the trial (footnote 65 on page 9):
“I just want to reiterate, one, I have done nothing for which I need to explain or apologise. I have never divulged any attorney/client privileges, nor have I ever accused Mr. Blagojević of making any attempts to fee split as he seems to indicate. I’ve never accused him of that, nor has he ever made any efforts himself. So I want to make sure that’s very clear on the record. I have nothing more, Your Honour. ”
18. The Appeals Chamber went on to dismiss the prosecution’s appeal in its entirety and to allow the applicant’s appeal in part. It reversed the Trial Chamber’s conviction of complicity in genocide and reduced the sentence to fifteen years’ imprisonment, subject to credit being given for the period which the applicant had already spent in detention.
19. One judge, Judge S., appended a partly dissenting opinion in which he expressed the view that the applicant’s steadfast refusal to recognise Mr K. as his counsel ought to have been respected and that the applicant ought to have been granted a retrial.
20. The Kingdom of the Netherlands ratified the Charter of the United Nations on 10 December 1945. As relevant to the present case, it provides as follows:
We the peoples of the United Nations determined
to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
And for these ends
to practice tolerance and live together in peace with one another as good neighbours, and
to unite our strength to maintain international peace and security, and
to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
to employ international machinery for the promotion of the economic and social advancement of all peoples,
Have resolved to combine our efforts to accomplish these aims
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. ...
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.
...
The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.
Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.
The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.
...
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
21. The ICTY was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993, which reads as follows:
“The Security Council,
Reaffirming its resolutions 713 (1991) of 25 September 1991 and all subsequent relevant resolutions,
Having considered the report of the Secretary-General (S/25704 and Add.1) pursuant to paragraph 2 of resolution 808 (1993),
Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ‘ethnic cleansing’, including for the acquisition and the holding of territory,
Determining that this situation continues to constitute a threat to international peace and security,
Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,
Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace,
Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed,
Noting in this regard the recommendation by the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia for the establishment of such a tribunal (S/25221),
Reaffirming in this regard its decision in resolution 808 (1993) that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991,
Considering that, pending the appointment of the Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report (S/25274),
Acting under Chapter VII of the Charter of the United Nations,
Approves the report of the Secretary-General;
Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report;
Requests the Secretary-General to submit to the judges of the International Tribunal, upon their election, any suggestions received from States for the rules of procedure and evidence called for in Article 15 of the Statute of the International Tribunal;
Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute;
Urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel;
Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions;
Decides also that the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law;
Requests the Secretary-General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of the International Tribunal at the earliest time and to report periodically to the Council;
Decides to remain actively seized of the matter.”
22. Annexed to the resolution was the “Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”. Elements of the Statute relevant to the case before the Court are the following:
1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. ...
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute [protection of victims and witnesses].
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.
1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.
1. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff.
2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.
3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this article.
4. Other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal.
The International Tribunal shall have its seat at The Hague.”
23. As relevant to the case before the Court, the Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 (“Headquarters Agreement”) reads as follows:
“The United Nations and the Kingdom of the Netherlands,
Whereas the Security Council acting under Chapter VII of the Charter of the United Nations decided, by paragraph 1 of its resolution 808 (1993) of 22 February 1993, inter alia ‘that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’;
Whereas the International Tribunal is established as a subsidiary organ within the terms of Article 29 of the Charter of the United Nations;
Whereas the Security Council, in paragraph 6 of its resolution 827 (1993) of 25 May 1993 further inter alia decided that ‘the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council’;
Whereas the Statute of the International Tribunal, in its Article 31, provides that ‘the International Tribunal shall have its seat at The Hague’;
Whereas the United Nations and the Kingdom of the Netherlands wish to conclude an Agreement regulating matters arising from the establishment and necessary for the proper functioning of the International Tribunal in the Kingdom of the Netherlands;
Have agreed as follows. ...
This Agreement shall regulate matters relating to or arising out of the establishment and the proper functioning of the Tribunal in the Kingdom of the Netherlands.
The General Convention and the Vienna Convention shall be applicable mutatis mutandis to the Tribunal, its property, funds and assets, to the premises of the Tribunal, to the Judges, the Prosecutor and the Registrar, the officials of the Tribunal and persons performing missions for the Tribunal.”
The expressions “General Convention” and “Vienna Convention” refer to the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946 and the Vienna Convention on Diplomatic Relations of 18 April 1961, respectively (Article I (u) and (v) of the Headquarters Agreement).
1. The premises of the Tribunal shall be under the control and authority of the Tribunal, as provided in this Agreement.
2. Except as otherwise provided in this Agreement or in the General Convention, the laws and regulations of the host country shall apply on the premises of the Tribunal.
3. The Tribunal shall have the power to make regulations operative on the premises of the Tribunal for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Tribunal shall promptly inform the competent authorities of regulations thus enacted in accordance with this paragraph. No law or regulation of the host country which is inconsistent with a regulation of the Tribunal shall, to the extent of such inconsistency, be applicable within the premises of the Tribunal.
4. Any dispute between the Tribunal and the host country, as to whether a regulation of the Tribunal is authorised by this Article, or as to whether a law or regulation of the host country is inconsistent with any regulation of the Tribunal authorised by this Article, shall be promptly settled by the procedure set out in Article XXVIII, paragraph 2 of this Agreement [i.e. arbitration]. Pending such settlement, the regulation of the Tribunal shall apply and the law or regulation of the host country shall be inapplicable on the premises of the Tribunal to the extent that the Tribunal claims it to be inconsistent with its regulation.
1. The host country shall not exercise its criminal jurisdiction over persons present in its territory, who are to be or have been transferred as a suspect or an accused to the premises of the Tribunal pursuant to a request or an order of the Tribunal, in respect of acts, omissions or convictions prior to their entry into the territory of the host country.
2. The immunity provided for in this Article shall cease when the person, having been acquitted or otherwise released by the Tribunal and having had for a period of fifteen consecutive days from the date of his or her release an opportunity of leaving, has nevertheless remained in the territory of the host country, or having left it, has returned.”
24. The ICTY’s Rules of Procedure and Evidence, as in force on 15 September 2003 and as relevant to the case before the Court, provided as follows:
(A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanent Judges.
...
...
(G) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity.
(A) (i) A Chamber may, after a warning, refuse audience to counsel if, in its opinion, the conduct of that counsel is offensive, abusive or otherwise obstructs the proper conduct of the proceedings.
(ii) The Chamber may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal pursuant to Rule 44 and 45. ...”
25. The member States of the North Atlantic Treaty Organisation (NATO) have entered into an agreement (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, London, 19 June 1951, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) – “NATO Status of Forces Agreement”). It regulates, among other things, criminal jurisdiction over members of their armed forces serving on each other’s territory. Article VII of this Agreement provides as follows:
“1. Subject to the provisions of this Article,
a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State;
b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.
2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State.
b. The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences, including offences relating to the security of that State, punishable by its law but not by the law of the sending state.
c. For the purposes of this paragraph and of paragraph 3 of this Article a security offence against a State shall include:
i. treason against the State;
ii. sabotage, espionage or violation of any law relating to official secrets of that State, or secrets relating to the national defence of that State.
3. In case where the right to exercise jurisdiction is concurrent the following rules shall apply:
a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to
i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent;
ii. offences arising out of any act or omission done in the performance of official duty.
b. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.
c. If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other state considers such waiver to be of particular importance.
4. The foregoing provisions of this Article shall not imply any right for the military authorities of the sending State to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving State, unless they are members of the force of the sending State.
5. a. The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.
b. The authorities of the receiving State shall notify promptly the military authorities of the sending State of the arrest of any member of a force or civilian component or a dependent.
c. The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall, if he is in the hands of the sending State, remain with that State until he is charged by the receiving State.
6. a. The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them.
b. The authorities of the Contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction.
7. a. A death sentence shall not be carried out in the receiving State by the authorities of the sending State if the legislation of the receiving state does not provide for such punishment in a similar case.
b. The authorities of the receiving State shall give sympathetic consideration to a request from the authorities of the sending State for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending State under the provision of this Article within the territory of the receiving State.
8. Where an accused has been tried in accordance with the provisions of this Article by the authorities of one Contracting Party and has been acquitted, or has been convicted and is serving, or has served, his sentence or has been pardoned, he may not be tried again for the same offence within the same territory by the authorities of another Contracting Party. However, nothing in this paragraph shall prevent the military authorities of the sending State from trying a member of its force for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the authorities of another Contracting Party.
9. Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving State he shall be entitled:
a. to a prompt and speedy trial;
b. to be informed, in advance of trial, of the specific charge or charges made against him;
c. to be confronted with the witnesses against him;
d. to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State;
e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State;
f. if he considers it necessary, to have the services of a competent interpreter; and
g. to communicate with a representative of the Government of the sending State and when the rules of the court permit, to have such a representative present at his trial.
10. a. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.
b. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force.
11. Each Contracting Party shall seek such legislation as it deems necessary to ensure the adequate security and protection within its territory of installations, equipment, property, records and official information of other Contracting Parties, and the punishment of persons who may contravene laws enacted for that purpose.”
26. An additional agreement concluded in 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, Brussels, 19 June 1995) extends the territorial application of this provision to non-NATO member States participating in the Partnership for Peace.
27. On 18 September 1998 the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands, acting in pursuance of a resolution of the Security Council under Chapter VII of the United Nations Charter (Resolution 1192 of 27 August 1998), concluded an agreement under which the Netherlands Government undertook to host a Scottish Court for the purpose and the duration of a trial under Scots law and procedure of two Libyan nationals accused of bombing a civilian passenger aircraft over Lockerbie, Scotland, in 1988 (Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish trial in the Netherlands (with annexes), [2002] 2062 United Nations Treaty Series – UNTS – pp. 81 et seq.). The Scottish Court in the Netherlands existed until 2002.


ITEMID: 001-71668
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SUNDQVIST v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ulf Sundqvist, is a Finnish national who was born in 1945 and lives in Helsinki. He was represented before the Court by Mr G.O. Zacharias Sundström, a lawyer practising in Helsinki.
and as they appear from the documents, may be summarised as follows.
In the early 1990s a deep recession undermined profitability across the entire financial sector and led to a banking crisis in the autumn of 1991. The authorities took exceptional measures, such as takeovers, government assistance and temporary blanket guarantees to banks, to secure the stability of the financial system. In April 1992 the Government Guarantee Fund (valtion vakuusrahasto, statens säkerhetsfond) was established with a view to managing the banking crisis. In the state organisation chart the Government Guarantee Fund was subordinated to Parliament until 1 May 1996 when it was transferred to the Ministry of Finance.
The applicant is the former chief general manager of a bank, STS-Pankki Oy (hereinafter “the bank”), which met severe financial difficulties.
In the autumn of 1992 the Government Guarantee Fund examined the bank’s situation. Another bank, Kansallis-Osake-Pankki, bought the majority of the STS-Pankki Oy’s shares. According to the shareholders’ agreement, however, the authority over the bank was entrusted to the Government Guarantee Fund. The bank changed its name to Siltapankki Oy and its function was henceforth to administer unsettled loans and troublesome property. In November 1995 almost all the shares of Siltapankki Oy were sold for a nominal price and its name was subsequently changed to Omaisuudenhoitoyhtiö Arsenal-Silta Oy. The buyer was a property management corporation controlled by the Government Guarantee Fund.
Meanwhile, on the strength of the above shareholders’ agreement the Government Guarantee Fund instructed the bank to institute compensation proceedings against a number of bank managers and directors.
On 30 December 1993 the bank instituted two separate proceedings against its former management, including the applicant, claiming compensation in the amount of some 172 million Finnish marks (FIM) (some 29 million euros (EUR)). On 12 January 1994 he was served with the summons. At the time, he was chairman of the Social Democratic Party, which did not form part of the Government but he resigned shortly afterwards. He founded his own business and started working as a business consultant. In May 1994 his assets were seized.
On 17 January 1995 the Helsinki District Court (käräjäoikeus, tingsrätten), by two separate judgments, found partly in favour of the plaintiff bank, ordering the applicant among others to pay jointly FIM 26 million (about EUR 4,3 million) plus interest from the service of the summons and legal costs.
On 23 November 1995 the Helsinki Court of Appeal (hovioikeus, hovrätten) upheld the lower court’s judgments.
On 19 February 1996 the applicant requested that the Government Guarantee Fund produce documents from its meetings relating to the plaintiff bank’s law suit against him. On 7 March 1996 the Government Guarantee Fund refused the request arguing that the documents were of an internal nature and therefore confidential. On 20 May 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) overturned the decision.
On 4 July 1997 the Supreme Court (korkein oikeus, högsta domstolen) reduced the joint liability to pay compensation to FIM 9 million (some EUR 1,5 million).
On 1 September 1997 in a debt recovery procedure, the Bailiff found that the applicant did not possess any considerable recoverable property. It also appears that the earlier debt recovery procedures in 1994 and 1995 had proved more or less unsuccessful.
In early September 1997 the applicant contacted the plaintiff with a view to reaching a friendly settlement. Negotiations followed and a concrete settlement was being discussed. One of the Ministers of Finance, a social democrat, issued an instruction to the Government Guarantee Fund to the effect that a friendly settlement should be achieved. The Government Guarantee Fund then presented the plaintiff bank’s Board of Directors with an instruction to the same effect.
On 23 September 1997 the applicant and the plaintiff reached a friendly settlement as to the payment of compensation to the effect that the applicant would pay FIM 1,2 million (some EUR 200,000). The settlement was signed by him and the plaintiff’s chief executive, the latter having received the company’s Board of Director’s authorisation.
The settlement led to a lively public debate according to which the above amount was far too low and to a request by a group of members of Parliament, at the beginning of October 1997, for a police investigation into the applicant’s financial affairs. The relevant social democrat Minister of Finance resigned at about this time.
On 8 June 2001 the Government Guarantee Fund decided not to instruct Omaisuudenhoitoyhtiö Arsenal-Silta Oy to commence judicial proceedings with a view to having the friendly settlement declared null and void.
Following the District Court’s judgment in the compensation proceedings, the plaintiff bank, on 15 February 1995, requested a police investigation into the underlying facts of the case. By a letter of 8 October 1997 a public prosecutor, K.P., informed the plaintiff that he saw no reason to commence a pre-trial investigation against anyone in the bank’s management on account of the events which had been the object of the compensation proceedings (toimenpiteistä luopuminen, åtgärdseftergift).
Meanwhile and during the course of the above compensation proceedings, the plaintiff bank on the instruction of the Government Guarantee Fund requested, on 24 May 1995, that the police investigate whether the applicant had committed debtor’s dishonesty or fraud. At the beginning of the autumn the police received the applicant’s written submission. On 21 November 1995 the plaintiff withdrew its request for an investigation. In their decision of 23 November 1995 the police, finding that there was no appearance of any criminal activities, decided not to refer the case to the public prosecutor.
As noted above, at the beginning of October 1997 a group of MPs requested a police investigation into the applicant’s financial affairs, following the friendly settlement. On 10 October 1997 a District Prosecutor, M.K., instructed the police to institute a pre-trial investigation (tutkintakehotus, begäran om förundersökning) into the applicant’s financial affairs from 1 June 1994, inter alia in view of the fact that he had directed his income into current accounts with credit balances which he had kept below zero thus preventing any successful debt recovery procedure and he had paid the above FIM 1,2 million although on 1 September 1997 he had not accounted for such assets in a debt recovery procedure.
On 25 October 1997 the applicant was arrested and his office, home and weekend cottage were searched and documents were seized. He was released after six hours. He was questioned on 16 November 1997. The police also made inquiries with the applicant’s customers with a view to finding out whether he had revealed all relevant information relating to his income during the investigation. The inquiries did not show that the applicant had withheld any such information. The case was subsequently transferred to State Prosecutor J.R.
In his decision of 18 November 1997 the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) found no reason to take measures on account of the Government Guarantee Fund’s actions before and during the compensation proceedings. The applicant had lodged a complaint as regards, among other things, the fact that a law firm engaged by the Government Guarantee Fund had, in the spring of 1995, hired a private investigator to look into the applicant’s financial affairs. The Parliamentary Ombudsman found that the hiring of a private investigator in the present case was not dubious as he had only produced public tax information.
Meanwhile, in his decision of 16 September 1998 State Prosecutor (valtionsyyttäjä, statsåklagaren) J.R. charged the applicant with embezzlement. He however waived charges of debtor’s dishonesty or debtor’s fraud due to the lack of evidence. Nonetheless, in his decision he drew the applicant’s attention to the fact that the case might be reviewed by a higher prosecuting authority in accordance with chapter 1, section 11 (2) of the Criminal Procedure Act.
On 16 October 1998 an MP lodged a complaint with the Prosecutor General (valtakunnansyyttäjä, riksåklagaren) on account of State Prosecutor J.R.’s decision not to prosecute the applicant for debtor’s dishonesty, accusing the former of having failed to take into account the fact that the applicant’s way of spending money had weakened his financial position and thereby damaged the bank’s interests.
On 20 October 1998 the Prosecutor General informed the applicant that he had decided, on the presentation of State Prosecutor P.K., to review J.R.’s decision.
On 17 November 1998 State Prosecutor P.K. invited the applicant’s submission as to the issues raised in the complaint of the MPs. It was received on 4 December 1998.
On 8 January 1999 the Prosecutor General decided that charges be brought against the applicant for debtor’s dishonesty. The decision was signed by the Prosecutor General and State Prosecutor P.K.
As noted above on 16 September 1998 State Prosecutor J.R. brought charges against the applicant for aggravated embezzlement committed in November 1990. On 23 June 1999 the District Court rejected the charges. It appears that the acquittal became final.
Meanwhile, on 17 March 1999, State Prosecutor P.K., acting on the strength of the Prosecutor General’s decision of 8 January 1999, brought charges against the applicant for aggravated debtor’s dishonesty committed during the period from 17 January 1995 to 23 September 1997. In short, he was charged with having deliberately weakened his financial position thereby damaging the above plaintiff’s interests.
On 6 May 1999 the Helsinki District Court invited the applicant’s written observations by 30 August 1999.
Before replying to the charges, the applicant argued that they should be ruled inadmissible on the ground that the police on 23 November 1995 had decided not to refer the case to the public prosecutor. Further, State Prosecutor J.R. had decided, on 16 September 1998, not to prosecute. No new facts had been established between the decision not to prosecute and State Prosecutor P.K.’s subsequent decision to bring charges. On 25 October 1999 the District Court rejected the complaint.
The applicant denied the charges, arguing that he had never been insolvent. In the hearing the District Court received oral testimony from the applicant, one witness for the prosecution and eight witnesses for the defence. It also received testimony from a witness on the initiative of both the prosecution and the defence. Having received the evidence, the District Court noted that it had no reason to doubt the credibility of the oral testimony. Further, it considered that the case turned on a judicial assessment of the undisputed facts.
On 12 November 1999 the District Court, finding that the applicant’s conduct did not fulfil the constitutive elements of debtor’s dishonesty, rejected the charges.
The public prosecutor and the complainant appealed. In his observations in reply the applicant, referring to Article 4 of Protocol No. 7 to the Convention, requested that the charges be ruled inadmissible on the ground that an examination of the charges was in violation of the ne bis in idem principle.
On 31 May 2000 the Helsinki Court of Appeal rejected the applicant’s request that the Prosecutor General give oral testimony regarding his procedural complaint as ill-founded.
On 5 June 2000 the Court of Appeal upheld the District Court’s ruling of 25 October 1999 in so far as the procedural complaint was concerned.
On 5 to 7 June 2000 the Court of Appeal held a hearing during which it received oral evidence from the applicant and a number of witnesses.
On 22 June 2000 the Court of Appeal convicted the applicant of aggravated debtor’s dishonesty and sentenced him to a suspended term of six months’ imprisonment. It however rejected the compensation claim referring to the wording of the friendly settlement according to which the parties had no longer any claims against each other.
On 10 April 2001 the Supreme Court refused leave to appeal.
Section 2 of the Act on Public Prosecutors (199/1997) reads:
The following are public prosecutors:
1. the Prosecutor General and the Deputy Prosecutor General;
2. a State Prosecutor; and
3. a District Prosecutor and a Prosecutor for the Åland Islands.
Section 104 of the Constitution provides that the prosecution service is headed by the Prosecutor General, who is appointed by the President of the Republic. Section 14 of the Act on Public Prosecutors provides that a State Prosecutor is appointed by the Government on the nomination of the Prosecutor General.
The Prosecutor General heads the central administration body for public prosecutors, the Office of the Prosecutor General (valtakunnansyyttäjänvirasto, statsåklagarämbetet), and he or she appoints the District Prosecutors.
His or her statutory duties include supervision of the subordinate prosecutors. Although a public prosecutor is independent in the consideration of the charges (section 1 of the Act on Public Prosecutors), the Prosecutor General has the authority to take over for consideration any case from a subordinate prosecutor or to assign a subordinate prosecutor to prosecute a case where the Prosecutor General has decided that a charge be brought. The decisions of the prosecutors are subject to complaint lodged with the Prosecutor General, who is competent to reopen a case if he or she so decides.
In the Office of the Prosecutor General there are a number of State Prosecutors, who have jurisdiction as prosecutors throughout the country. Their primary task is to see to the prosecution of criminal matters of the greatest significance to the society as a whole.
The State Prosecutors do not in their own right hold any superior authority over the local prosecutors, but some of the authority of the Prosecutor General may be delegated to them.
Chapter 1, section 6 of the Criminal Procedure Act provides that the public prosecutor is to bring charges if there is a prima facie case against the suspect.
Chapter 1, section 11 (1) provides that if the public prosecutor has decided not to prosecute, he or she may withdraw the decision only if there is new evidence which shows that the decision has been based on essentially incomplete or erroneous information. Subsection 2 provides that a superior prosecutor has the right to reopen the case in accordance with the specific provisions thereon.
Section 3 of the Act on Public Prosecutors provides that the Prosecutor General is independent in the assessment of the charge being considered by him or her, unless otherwise provided by an Act. Section 10 provides that the Prosecutor General is the superior of all public prosecutors. He or she may decide to take up for consideration any matter belonging to a subordinate prosecutor and to assign a subordinate prosecutor to prosecute a case where the Prosecutor General has decided on the charge. In addition, the Prosecutor General may allot a case to a subordinate prosecutor for the assessment of the charge. A re-evaluation by the Prosecutor General is often brought about by a complainant being dissatisfied with the result of the first consideration of the charges.
There is no statute of limitation as regards the review of a matter by the Prosecutor General.


ITEMID: 001-72947
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MAC-STRO S.R.L.  v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, “MAC-STRO” S.R.L., is a company incorporated in Moldova.
On 4 July 2002 the applicant company (the applicant) bought goods, which were valued at 180,921 Moldovan lei (MDL) (the equivalent of 13,352.1 euros (EUR) at the time), from a Ukrainian company.
On 8 July 2002 the applicant’s merchandise crossed the Moldovan border. On 12 July 2002 the applicant registered a customs declaration at the Chişinău Customs Office.
On 2 August 2002 the Customs Department fined the applicant for failure to declare the imported goods within the legal time limit of 72 hours from the moment of crossing the border. The fine was imposed in accordance with the provisions of the Customs Code (see “Domestic Law” below) and represented forty percent from the total value of the goods and was set at an amount of MDL 72,368.40 (the equivalent of EUR 5,461.64 at the time).
The applicant’s representative was also fined for failure to present relevant documents for the imported goods within the same legal time limit. The fine was imposed in accordance with the provisions of the Code of Administrative Offences and was set at an amount of MDL 180 (the equivalent of EUR 13.58 at the time).
On 16 September 2002 the applicant brought an action against the Customs Department, seeking the annulment of the decision in respect of the fine imposed on it.
On 22 November 2002 the Chişinău Regional Court ruled in favour of the applicant and annulled the Customs Department’s decision in respect of the applicant. The latter lodged an appeal against the judgment.
On 3 June 2003 the Court of Appeal upheld the appeal lodged by the Customs Department and dismissed the applicant’s action. During the proceedings, the applicant’s representative admitted its failure to observe the legal time limit for lodging the customs declaration and gave reasons for the failure, but the Court of Appeal considered those reasons as irrelevant.
The relevant provisions of the Customs Code of the Republic of Moldova of 20 July 2000 read as follows:
“Article 176. Customs declaration filing deadlines
1. Customs declaration shall be filed within 72 hours following the crossing of the customs frontier. (...)
...
Article 231. Types of Customs Regulations infringements which entail material liability
The following Customs Regulations infringements shall entail material liability:
...
3) a failure to declare goods crossing the customs frontier according to the established procedure, or a false declaration, in the absence of elements constituting smuggling or other crimes; (...)
...
Article 232. Penalties for Customs offences which entail material liability
Legal entities and entities engaged in business activities without being incorporated as legal entities when committing offences specified in:
a) Article 231(1)-(4), shall be subject to a fine in an amount equivalent to 40 to 100 percent of the value of goods which constitute the object of the offence with or without licence revocation;”


ITEMID: 001-86253
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NADTOCHIY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Partly inadmissible;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 4. The applicant, Mr Anatoliy Mykolayovych Nadtochiy, is a Ukrainian national who was born in 1977 and resides in the city of Chernigiv, Ukraine.
5. On 21 February 2000 the applicant brought a car (Audi-100) registered in Lithuania into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 21 February 2001.
6. On 25 September 2000 the applicant was arrested on suspicion of murder.
7. On 15 December 2000 the applicant was sentenced to eight years’ imprisonment for murder.
8. On 5 June 2002, in the applicant’s absence, the Chernigiv Customs Office drew up a report on an infringement of customs regulations due to the applicant’s failure to bring the above car outside the customs territory of Ukraine (section 113 of the Customs Code). In the report, the Customs Office indicated the applicant’s place of detention.
9. On 17 July 2002 the Customs Office sent the applicant’s case to the Novozavodsky District Court of Chernigiv. In the covering letter they requested the court to consider the issue of the applicant’s liability for a violation of section 112 of the Customs Code (loss of goods placed under customs control).
10. On 12 August 2002 the court considered the case in the applicant’s absence. The court found the applicant guilty of having failed to re-export the car and of having lost it in violation of section 112 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced the confiscation with payment of UAH 9,833.57 (about EUR 1,525.15) which corresponded to the value of the car, in accordance with section 149 § 3 of the Customs Code. In its decision, the court also indicated the applicant’s actual place of detention and noted that the applicant had not expressed a wish to be present at the court’s hearing, even though a notification about the time and place of the hearing had been sent to him. However, according to an information letter by the Deputy Head of the State Department for Enforcement of Sentences (Державний департамент України з питань виконання покарань) in reply to the Government Agent’s request, the applicant’s prison file contained no evidence that the applicant had received any summons to or notification about the above proceedings, while they were pending.
11. The applicant was informed about the above court decision by the prison administration, which received a copy of the decision on 23 August 2002.
12. On 29 December 2006 the applicant was released on probation.
13. The relevant provisions of the Code read as follows:
“The legislation of the USSR and of the Ukrainian SSR on administrative offences consists of ..., this Code and other legislative acts of the Ukrainian SSR and decrees of the Council of Ministers of the Ukrainian SSR on administrative offences...”
“(...) administrative liability for infringement of customs regulations shall be governed by the Customs Code ...”
“An administrative offence is an unlawful, culpable (intentional or negligent) act or omission, which is prejudicial to the State or public order, property, citizens’ rights and freedoms, [and] established administrative procedures, and for which the law foresees administrative liability...”
Administrative liability for the offences provided for by this Code arises in circumstances where no grounds to subject a person to criminal liability can be found.”
Section 17. Circumstances that exclude administrative liability
“A person who has acted in the case of urgent necessity ... shall not be subject to administrative liability.”
Section 29. Confiscation of an item used to commit an administrative offence or one which is the direct subject-matter of such an offence
“...Only an item forming part of the private property of the offender can be confiscated, unless the legislative acts of the USSR provide otherwise...”
Section 38. Terms for imposing administrative penalties
“Administrative penalties (адміністративні стягнення) can be imposed not later than 2 months after the offence has been committed, and in the case of a continuous offence – not later than two months after the offence has been discovered...”
Section 268. Rights of a person against whom administrative proceedings have been brought
“A person against whom administrative proceedings have been brought shall be entitled to: ... give explanations, present pieces of evidence, make motions... In the absence of the suspected person, the case can be considered only where there is information that he or she has received timely notification about the place and time of the hearing and if he or she has not requested an adjournment of the case...”
14. Part VII of the Code defined smuggling and further referred to the criminal law on liability. The provisions pertinent to the present case are contained in Part VIII of the Code and read, in so far as relevant, as follows:
Part VIII
Infringement of customs regulations. Proceedings in cases concerning infringement of customs regulations
Chapter 1
Infringement of customs regulations and liability for such infringements
Section 112
“The giving out of the items under the customs control without the permission of the customs body of Ukraine or the loss thereof shall incur the fine from the citizens in the amount up to a salary minimum, officially established at the date of that infringement, with confiscation of goods in question or without the latter; and from the officials - in the amount from two and a half till ten minimums officially established at the date of that infringement, with confiscation of goods in question or without the latter.”
“Failure to re-export items brought into the customs territory of Ukraine on condition of an obligation to re-export them within the established time-limits ... shall result in imposition of a fine ... with confiscation of the items concerned...”
Chapter 2. Proceedings in cases concerning infringement of customs regulations
“Proceedings concerning infringement of customs regulations shall be conducted in accordance with the provisions of this Code or, where not regulated by it, under the relevant legislation ... on administrative offences (...)”
Section 138. Presence of a person against whom administrative proceedings have been brought during consideration of the case concerning infringement of customs regulations.
“A case concerning infringement of customs regulations shall be considered in the presence of the person against whom administrative proceedings have been brought.
In the of the absence of the person against whom administrative proceedings have been brought, the case may be considered only when there is information about the timely notification of this person about the place and time of consideration of the case, but he or she has not submitted any petition for adjournment of the case or if there is information that at the time of consideration of the case the person is outside the territory of Ukraine, or when the person who committed the infringement of customs regulations has not been established, or in the case of a infringement of customs regulations via the sending of items by international postal correspondence.”
Section 139. Terms for imposing administrative penalties
“Administrative penalties (адміністративні стягнення) in the form of a warning or fine for infringement of customs regulations may be imposed not later than 2 months after the infringement of customs regulations, and in the case of a continuous infringement not later than two months after the infringement has been discovered...
Confiscation of items that have been the direct subject-matter of an infringement of customs regulations ... shall be effected regardless of the time of the commission or discovery of the infringement of customs regulations.”
Chapter 3. Execution of decisions of the customs authorities and courts concerning the imposition of an administrative penalty
Section 149. Execution of the decision of the court (judge) concerning confiscation.
“...If the items ... cannot be confiscated, the pecuniary equivalent of the value of the said items shall be collected from the persons who have infringed the customs regulations ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77246
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MARCELLO VIOLA v. ITALY [Extracts]
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6;No violation of P7-4
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;John Hedigan;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1959 and is currently detained in L'Aquila Prison.
5. On 16 March 1992 the applicant was arrested and remanded in custody on charges of murder and belonging to a mafia-type organisation. He was also charged with a number of counts of illegally carrying weapons. In particular, he had allegedly aided and abetted the carrying in a public place of a weapon used to commit a number of murders, including that of one M.L.
6. In a judgment of 16 October 1995, the Palmi Assize Court sentenced the applicant to fifteen years' imprisonment for membership of a mafia-type criminal organisation. He was acquitted of the other charges.
7. The applicant appealed.
8. In a judgment of 10 February 1999, the Reggio di Calabria Assize Court of Appeal reduced the applicant's prison sentence to twelve years.
9. The applicant appealed on points of law. In a judgment of 8 February 2000, the text of which was deposited at the registry on 25 February 2000, the Court of Cassation dismissed the applicant's appeal.
10. In the meantime, on 19 June 1996, the Reggio di Calabria investigating judge had made a fresh order for the applicant's detention pending trial. On 15 October 1996 he had committed the applicant to stand trial in the Palmi Assize Court. The applicant was charged with several counts of murder and attempted murder, membership of a mafia-type criminal organisation and illegally carrying a weapon. The applicant was accused, in particular, of having given orders to murder M.L. He was also accused of being an accomplice to carrying the weapon used to commit the crime. The applicant had alleged that this weapon had been one of the ones that he had been accused of carrying in the first set of criminal proceedings.
11. During the proceedings a number of witnesses, including pentiti (former mafiosi who have decided to cooperate with the authorities), were examined.
12. In a judgment of 22 September 1999, the Palmi Assize Court imposed five life sentences on the applicant and ordered him to serve three years of his sentence in solitary confinement. It imposed an additional sentence of a total of seventy years' imprisonment on him. The decision was based on statements by the pentiti, which were considered to be accurate and credible and were corroborated by other evidence.
13. The applicant appealed.
14. From 2000 the applicant was subject to a restricted prison regime, provided for by section 41 bis of Law no. 354 of 26 July 1975 (known as “the Prison Organisation Act”), which, among other things, limited his contact with the outside world. Accordingly, the applicant was no longer brought to the hearing room from prison. He was, however, able to participate in the hearings of 21 February and 15 June 2001 and 5 March 2002 by means of an audiovisual link with the hearing room.
15. By a judgment of 5 March 2002, the Reggio di Calabria Assize Court of Appeal acquitted the applicant of one of the charges of murder. It found that the offences committed by the applicant were part of a single criminal design (unico disegno criminoso) and reduced his sentence to one life sentence and solitary confinement for two years.
16. The applicant appealed on points of law. He complained, inter alia, of a failure on the part of the Assize Court of Appeal to give reasons for its finding that, despite a number of gaps in their evidence, the prosecution witnesses were credible. With regard to the murder of M.L., the applicant observed that part of the evidence adduced by the prosecution was that the police had found a P38 Walther pistol inside a car parked near land belonging to him. In the first set of criminal proceedings, however, the applicant had been acquitted of the charge of carrying that pistol. Moreover, that circumstantial evidence did not in any way establish that he had given orders to murder M.L.
17. The applicant did not allege that there had been a violation of the right to a fair trial on account of the nature of his participation in the appeal hearings.
18. In a judgment of 26 February 2004, the text of which was deposited at the registry on 3 June 2004, the Court of Cassation dismissed the applicant's appeal. It held that the Assize Court of Appeal had given logical and proper reasons for its decision on all the disputed issues.
19. Law no. 11 of 7 January 1998 introduced, among the implementing provisions of the Code of Criminal Procedure (CCP), a new Article 146 bis which, in its relevant parts and after the amendments introduced by Law no. 4 of 19 January 2001, is now worded as follows:
“1. In proceedings concerning one of the offences provided for in Article 51, paragraph 3 bis, and Article 407, paragraph 2, sub-paragraph (a), no. 4 of the Code [that is, mainly Mafia-related and other serious offences], a person who, in any capacity, is detained in a prison shall participate in the hearings at a distance [a distanza] in the following cases:
(a) where there are serious requirements of public safety or order;
(b) where the proceedings are particularly complex and participation at a distance is deemed necessary in order to avoid delays. In considering the requirement of avoiding delays in the proceedings, regard shall also be had to the fact, where applicable, that other proceedings are pending at the same time against the same defendant before different courts.
1 bis. Besides the cases provided for in paragraph 1, participation at a distance shall also be arranged in proceedings brought against a detainee who has been the subject of the measures provided for in section 41 bis, paragraph 2, of Law no. 354 of 26 July 1975 ...
2. The decision to order participation at a distance shall be taken, if necessary of their own motion, by the president of the trial court or of the Assize Court ... during the preliminary measures stage, or by the judge ... during the proceedings. The order shall be communicated to the parties and defence counsel at least ten days prior to the hearing.
3. Where an order is made for participation at a distance, an audiovisual link shall be activated between the hearing room and the place of detention so that the persons present in both places can see each other clearly and simultaneously and hear what is being said. If the measure is ordered in respect of several defendants who are being detained, in any capacity, in different places, each [of them] shall, by means of the same arrangement, be able to see and hear the others.
4. Defence counsel or his or her replacement must always be able to be present where the accused is situated. Defence counsel, or his or her replacement present in the hearing room, and the accused shall be able to confer confidentially, by means of appropriate technical equipment.
5. The place from which the accused is connected by audiovisual link to the hearing room shall be regarded as an extension of the hearing room [è equiparato all'aula d'udienza].
6. An officer of the court qualified to assist the judge ... shall be present at the place where the accused is situated and shall certify the latter's identity and officially note that there is no impediment to or restriction on the exercise of his or her rights and entitlements. He or she shall also certify that the provisions of paragraph 3 and the second sentence of paragraph 4 have been complied with, and, if the examination takes place, that the precautions have been taken to ensure the lawfulness thereof ... To that end he shall consult, if necessary, the accused and his counsel. ...
7. If it becomes necessary during the proceedings to arrange a confrontation between witnesses or identification of the accused or another measure requiring him to be observed in person, the judge shall, if he considers it necessary, after hearing the parties, order that the accused be present in the hearing room for the time necessary to comply with that measure.”
20. According to the Constitutional Court (order no. 483 of 26 November 2002), participation at a distance seeks to achieve the following aims: (a) protect public order in the event of possible acts of intimidation by the accused against other parties in the trial; (b) prevent the transfer of the accused from prison to the hearing room from becoming an opportunity to renew contact with the criminal organisations to which they belong; and (c) expedite the conduct of particularly complex and long trials, which often take place in different courts. The Constitutional Court has also stated that the system introduced by Law no. 11 of 7 January 1998 guarantees the right of persons accused of exceptionally serious offences to participate in their trial, while weighing that right against the duty to protect the public and ensure the proper conduct of the trial (ordinato svolgimento dei processi).
21. In its judgment no. 342 of 22 July 1999, the Constitutional Court held that participation at a distance was compatible with the “right to a defence”, as guaranteed by Article 24 § 2 of the Constitution. It stated that it could not accept the idea that only the physical presence of the accused in the hearing room would ensure the effectiveness of this right, since the Constitution required only the personal and conscious (consapevole) participation of the defendant in the proceedings. Article 146 bis of the implementing provisions of the CCP was not limited to indicating the technical means necessary to installing a link between the hearing room and the place of detention, but required that certain “results” be attained and, in particular, the “effective” participation of the accused in the proceedings with a view to ensuring the proper exercise of his right to a defence. There were also legislative provisions guaranteeing contact between the accused, the right of defence counsel to be present where the defendant was situated and the ability of the accused and his counsel to communicate with each other. The judge had the power and the duty to ensure that the technical means installed were appropriate to the aims sought to be achieved and could, if necessary, order the accused to be present in the hearing room. In the opinion of the Constitutional Court, the fact that the new provisions departed from “tradition” did not upset the balance and dynamics of a trial that, on the contrary, remained substantively unchanged.
22. For the same reasons, the Constitutional Court found that the system introduced by Law no. 11 of 7 January 1998 could not be deemed to be contrary to Article 6 of the Convention, a provision which required, among other things, compliance with the “reasonable time” requirement, in particular for accused persons in detention.
23. Articles 9 and 10 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters provide:
“1. If a person is in one Party's territory and has to be heard as a witness or expert by the judicial authorities of another Party, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 7.
[...]”
“1. If a person is in one Party's territory and has to be heard as a witness or expert by judicial authorities of another Party, the latter may, where its national law so provides, request the assistance of the former Party to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 6.
[...]”
24. Articles 10 and 11 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in Brussels on 29 May 2000, provide:
“1. If a person is in one Member State's territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 8.
[...]”
“1. If a person is in one Member State's territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where its national law so provides, request assistance of the former Member State to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 5.
[...]”
25. In its Resolution of 23 November 1995 on the protection of witnesses in the fight against international organised crime, the European Council called on Member States to guarantee proper protection of witnesses. To that end it indicated, among other things, that “one of the forms of protection to be envisaged is the possibility of giving evidence in a place other than that in which the person being prosecuted is situated through the use, if necessary, of audiovisual methods, subject to observance of the adversary principle as interpreted in the case-law of the European Court of Human Rights”. The European Council went on to state that:
“... In order to facilitate the use of audiovisual methods, the following points, in particular, should be taken into consideration:
1. In principle, it should be envisaged that the hearing may be conducted under the legal and practical conditions of the requesting State only.
2. If the legislation of either State allows for the witness to be assisted by an adviser during the hearing, it should be possible for such assistance to be arranged in the territory of the State in which the witness is situated;
3. Translation costs and the cost of using audiovisual methods should be borne by the requesting State, unless otherwise arranged with the State to which the request is addressed.”
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-61668
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF POLLIFRONE v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lives in Livorno.
5. Her grandmother was the owner of a flat in Livorno, which she had let to I.B.C.
6. In a registered letter of 6 May 1987, the applicant's grandmother informed the tenant that she intended to terminate the lease on expiry of the term on 1 January 1988 and asked her to vacate the premises by that date.
7. The tenant told the applicant's grandmother that she would not leave the premises and she fell in rent arrears.
8. In a writ served on the tenant on 11 July 1989, the applicant's grandmother reiterated her intention to terminate the lease and summoned the tenant to appear before the Livorno Magistrate.
9. By a decision of 31 July 1989, which was made enforceable on the same day, the Livorno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 January 1991.
10. On 9 August 1991, the applicant's grandmother died and the applicant inherited the apartment.
11. On 6 November 1991, the applicant served notice on the tenant requiring her to vacate the premises.
12. On 22 January 1992, she informed the tenant that the order for possession would be enforced by a bailiff on 19 February 1992.
13. On 12 November 1992, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
14. Between 19 February 1992 and 3 October 2000, the bailiff made fourteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
15. In the meanwhile, on 10 July 1997, the applicant made a second statutory declaration that she urgently required the premises as accommodation for herself.
16. On an unspecified date of June 2001, the applicant recovered possession of the flat.
17. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.
18. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
19. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
20. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
21. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
22. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
23. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
24. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
25. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71541
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SOLOSHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Pavlo Volodymyrovych Soloshenko, is a Ukrainian national who was born in 1958 and lives in the town of Bogodukhiv, the Kharkiv region, Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 2002 the applicant instituted proceedings in the Bogodukhiv City Court against the Kharkiv Regional Department of Chernobyl Affairs, seeking recovery of food allowance arrears (an extraordinary compensation for food expenses) for the period from 1 December 2001 until 31 December 2002, to which he was entitled having been a relief worker during the 1986 Chernobyl Nuclear Plant disaster. On 4 February 2003 the court ordered the department to pay the applicant UAH 921.84 in compensation.
On 25 March 2003 the court issued a writ of execution for the judgment.
On 5 May 2003 the same court granted the department an extension of the time-limit for lodging its appeal against the judgment. The applicant did not appeal against that decision.
On 24 June 2003 the Kharkiv Regional Court of Appeal upheld the judgment of 4 February 2003. The decision of 24 June 2003 was not appealed in cassation.
On 17 July 2003 the applicant submitted to the Dzerzhynsk Local Bailiffs’ Service of Kharkiv the writ of execution for the judgement of 4 February 2003, seeking initiation of the enforcement proceedings.
On 18 July 2003 the Bailiffs’ Service postponed initiation of those proceedings on the ground that the writ of execution did not contain information about the debtor’s bank accounts. It sent the writ to the Bogodukhiv City Court for corrections to be made by 28 July 2003.
According to the Government, the Bogodukhiv City Court issued another writ in respect of the judgment at issue on 1 December 2003.
On 9 February 2004 the Bailiffs’ Service instituted enforcement proceedings.
On 18 October 2004 the Bailiffs’ Service discontinued the enforcement proceedings in the light of the full execution of the judgment of 4 February 2003.