ITEMID: 001-101778
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BACHOWSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Herbert Bachowski, is a Polish national who was born in 1939 and lives in Freyung. He was represented before the Court by Mr L. Cholewa, a lawyer practising in Katowice.
In 1959 the applicant was convicted of the “dissemination of false information”, punishable on the basis of Article 23 paragraph 1 of the socalled “small criminal code” (mały kodeks karny), a decree adopted on 13 June 1946, and was sentenced to three years’ imprisonment. The applicant had prepared and distributed leaflets in which he stated that Poland was dominated by the Soviet Union and that this state of affairs was unacceptable.
He subsequently served two years of his sentence.
On 23 August 1994 the applicant lodged an application under section 3 paragraph 1 of the Law of 23 February 1991 on the annulment of convictions of persons persecuted for activities aimed at achieving independence for Poland (“the 1991 Act”) with the Katowice Regional Court (Sąd Wojewódzki), seeking to have his conviction declared null and void.
On 12 February 1997 the Katowice Regional Court refused to grant his request, having regard to the fact that the 1991 Act only provided a legal basis for quashing judgments given prior to 31 December 1956, when the worst period of political repression ended, whereas the judgment in the applicant’s case had been given in 1959.
In 2001 the Ombudsman brought, on the applicant’s behalf, a cassation appeal against the judgment given in 1959 before the Supreme Court. The Ombudsman argued that the judgment was in breach of the substantive provision forming the basis upon which the applicant had been convicted and sentenced. It was obvious that his conduct, consisting of disseminating leaflets criticising the Soviet Union’s domination of Poland by placing them on walls in different places in his town, had not fulfilled the requirements of criminal conduct penalised by Article 23 paragraph 1 of the “small criminal code”.
It was further argued that the acts committed by the accused had been motivated by his profound hostility towards the communist system and the communist authorities and should have been seen as acts of political opposition. They had been very irritating to the authorities, but this had not rendered them criminal. The courts had failed to establish that the leaflets had amounted to incitement to crime or violence, or that they had contained any praise of criminal acts. Furthermore, the courts had failed to indicate any concrete interests of the Polish State which could have been endangered by the leaflets. Moreover, it was unreasonable to consider that the view expressed about Poland’s domination by the Soviet Union had been untrue, as it had been obvious at that time that this had indeed been the case. Hence, it was impossible to find that disseminating such a view amounted to “disseminating untrue information”. By a judgment of 13 June 2001 the Supreme Court allowed the Ombudsman’s appeal, essentially sharing his views. It acquitted the applicant of the original offence, having found that he had not disseminated any “false information” but rather his legitimate views about the political system in place in 1959, and also held that he had not incited to violence or any unlawful acts. Consequently, it held that the applicant had not committed the criminal offence of which he had been convicted.
Subsequently, the applicant instituted proceedings for compensation for detention which had lacked a legal basis, on the basis of Chapter 58 of the Polish Code of Criminal Procedure.
On 17 December 2004 the Katowice Regional Court awarded him compensation of 35,966 zlotys (PLN). The amount awarded was comprised of PLN 25,200 for nonpecuniary damage (zadośćuczynienie) caused by suffering and loss of life prospects occasioned by his deprivation of liberty, and PLN 10,766 for pecuniary damage (odszkodowanie). The court calculated the latter by taking the applicant’s salary at the time of his arrest, multiplying it for the entire period of his deprivation of liberty and subtracting the average living costs which had been borne during that period by the State.
The applicant appealed, challenging the method of calculation of the pecuniary damages and the amount of non-pecuniary damages. As to the former, he submitted that the method by which it had been calculated had defied equity and justice. The court had calculated it, essentially, by assessing the salary which the applicant could have been paid throughout the time of his imprisonment and by subsequently subtracting from it normal living costs during that time. The court had observed that the applicant had not been obliged to pay his living costs throughout this period because the State had borne them. This method, in the applicant’s view, had entirely overlooked the essential aspects of compensation, namely indemnifying a wronged person and making good pecuniary damage inflicted by the manifestly unjustified and politically-motivated imprisonment imposed by the communist regime. The practice adopted by the courts of reducing awards of pecuniary damage due to victims of past political oppression reduced to nought the possibility for people who had been persecuted in the past for their political activities or ideas to obtain just satisfaction for their suffering at the hands of an oppressive political system.
On 10 March 2006 the Katowice Court of Appeal dismissed his appeal, finding that the method of calculation of pecuniary damages had been consistent with judicial practice as it stood at that time.
On 25 April 2005 the applicant submitted a cassation appeal against the above-mentioned judgment, essentially reiterating the arguments which he had submitted to the appellate court.
On 9 February 2006 the Supreme Court dismissed his appeal as manifestly illfounded, using a short formula normally used in such cases.
The Law of 23 February 1991 on annulment of convictions of persons persecuted for activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego – “the 1991 Act”) sets out rules concerning the conditions under which certain politically-motivated convictions rendered from 1 January 1944 to 31 December 1956 can be declared null and void, and also provides for the State’s civil liability for such convictions. Section 1 paragraph 1 of the 1991 Act provides, insofar as relevant:
“Convictions or other decisions rendered by the Polish judicial, prosecuting or extra-judicial authorities during the period ... lasting from 1 January 1944 to 31 December 1956 shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him or her with the aim of achieving independence for Poland, or if the decision in question was taken on the grounds that he had engaged in activity. The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs.”
Under section 2 of the 1991 Act, a regional court or, in cases concerning military offences, a regional military court, is competent to deal with requests lodged under section 3 of the 1991 Act. Section 3 states, insofar as relevant:
3. A party entitled to file an application under section 1 paragraph 1 shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void.
According to section 2 paragraph 1 in fine of this Law, a decision declaring the original conviction null and void shall be tantamount to a verdict of acquittal. If such a conviction is declared null and void, a victim of repression is entitled, under section 8 paragraph 1 of this Law, to compensation from the State Treasury for his wrongful conviction.
Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, pre-trial detention or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty. Article 552 of the Code provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.
...
4. The entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly unjustified arrest or pre-trial detention.”
“22. This article provides that compensation shall be paid to a victim of a miscarriage of justice, on certain conditions.
First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res iudicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them”. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the States in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the article, in particular the conditions described in paragraph 24 below, the article may apply.
23. Secondly, the article applies only where the person’s conviction has been reversed or he has been pardoned, in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned. The words “or he has been pardoned” have been included because under some systems of law pardon, rather than legal proceedings leading to the reversal of a conviction, may in certain cases be the appropriate remedy after there has been a final decision.
24. Finally, there is no right to compensation under this provision if it can be shown that the non-disclosure of the unknown fact in time was wholly or partly attributable to the person convicted.
25. In all cases in which these preconditions are satisfied, compensation is payable “according to the law or the practice of the State concerned”. This does not mean that no compensation is payable if the law or practice makes no provision for such compensation. It means that the law or practice of the State should provide for the payment of compensation in all cases to which the article applies. The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”


ITEMID: 001-5025
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: PESTI AND FRODL v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, in Application No. 27618/95, is a citizen of both Austria and Hungary, born in 1947. He is presently detained at a prison in Graz. Before the Court he is represented by Mr. K.D. Zessin, a lawyer practising in Vienna, and by Mr. B. Orosz, a lawyer practising in Budapest.
The second applicant, in Application No. 27619/95, is an Austrian citizen, born in 1957. He is presently detained at a prison in Garsten. Before the Court he is represented by Mr. N. Lehner, a lawyer practising in Vienna.
A.
On 14 June 1992 the applicants were arrested and subsequently remanded in custody on suspicion of having murdered F.K. who had recently disappeared. F.K. had been, like the second applicant, a film director and producer. He had been a competitor of the second applicant and F.K. had, in a letter addressed to the Austrian Federal Ministry of Social Affairs, accused the second applicant of having bribed public officials in order to be awarded film production contracts by that ministry. In early June 1992 parts of a human body were discovered in Budapest. This body was subsequently identified as being F.K. Before their arrest, the applicants were repeatedly questioned by the police and the investigating judge. The second applicant confessed to having killed F.K. in Budapest and gave further details of the circumstances. The first applicant stated that, until the last moment, he had not been aware of any plans to kill F.K. but had later helped to dispose of the body.
On 6 December 1993 the trial against the applicants, both charged with murder, commenced before the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen), sitting as an Assize Court (Geschworenengericht). Both applicants pleaded “not guilty”.
At the hearing the applicants were confronted with the second applicant's confession to the police and the investigating judge. According to that confession, both applicants had planned to lure F.K to Budapest with the help of B.N., a young woman. B.N., with whom F.K. had become friendly, invited him to visit her uncle in Budapest. The first applicant played the uncle's role. Once F.K. arrived at the apartment of this uncle, the first applicant served him refreshments mixed with a sleeping drug. Thereupon the second applicant shot him and cut the body up, helped by the first applicant. For that purpose they had brought with them an electric saw, a cutter, plastic bags and a pistol. The second applicant also stated that he had committed these acts under the influence of the first applicant.
When heard by the court, the first applicant stated that he had not been involved in the plot and had thought that they were to meet F.K. and other film-makers in the apartment in Budapest in order to discuss film projects. As F.K. had been unwilling to meet the second applicant, they had had to use unusual methods to persuade him come to Budapest and, therefore, had used B.N. as a decoy, and he had pretended to be her uncle. He had not seen how F.K. had been shot, as he had been in the kitchen when he suddenly heard a noise. He returned to the room where F.K. was lying on the sofa. The second applicant said that F.K. was dead. The second applicant then left the room, still holding a gun in his hand, whereupon the first applicant realised that the second applicant had shot F.K. He had not helped the second applicant undress or cut up the victim. Instead he went to the neighbours to inform them that there might be some noise due to construction works. On his return, he saw several black bags outside the bathroom. The second applicant took them to the car and the first applicant assisted him in finding containers, in order to deposit the bags. Against his advice to sell the pistol, the second applicant had thrown it into the river. The following day they cleaned the apartment and removed the bed. The second applicant elaborated a plan that they should pretend that F.K. was still alive. The first applicant denied having given any medicine or sleeping drugs to the victim, or having seen a third person at the apartment. He said that he had fallen asleep soon after the victim had arrived, and for this reason had not been present all the time. He claimed that he had assisted the second applicant after the killing because he was his friend and because he feared him.
The second applicant withdrew his earlier confession and stated that neither he nor the second applicant had killed F.K. A third man had been present in the apartment, whose name was Boris P., a Russian who had connections with the KGB. Boris P. had been cheated by J.G., another film-maker, and had hoped that the victim had information about that person. He further claimed that on the day in question he had been completely drunk and had stayed alone in a separate room. He had only heard a fight going on in the room where the victim was. The fight had taken place between the victim and Boris P. In the course of this fight Boris P. must have shot F.K. He did not know how the body had been sawn into pieces, or what had happened to his pistol. He had lured F.K. to Budapest in order to play a trick on him, since F.K. had tried to ruin his reputation at the ministry. He had intended to hide cocaine in F.K.'s car and to call the customs authorities. It had been Boris P. who had brought him the cocaine and some other medicine in order to persuade F.K. to talk about J.G.'s whereabouts.
Asked by the Presiding Judge why he had not mentioned Boris P. earlier, but only when he had been questioned by the investigating judge the last time, the second applicant stated that he had promised Boris P. to protect him for 6 months.
The Presiding Judge questioned the second applicant in detail on how he had been able to give details about the crime in his confession to the police although he had allegedly not seen anything. In reply the second applicant claimed that he had been able to reconstruct the crime on the basis of the questions asked by the police and the pictures they had shown him. When he made his first false confession, he had felt he was in a state of unreality, believing that he was himself a police officer. He had therefore enjoyed developing his confession on the basis of the police questions. The second applicant admitted that, after F.K. had been killed, he and the first applicant had planned to pretend that F.K. was still alive.
On the following six days of the trial, the court heard several witnesses, namely neighbours to the apartment in Budapest, an employee and a friend of the victim, the bank agent, the victim's aunt, the secretary of the first applicant and a friend of the first applicant. The wife of the second applicant refused to give evidence. Moreover, the court heard the police officers who were involved in the preliminary investigations and questioned them, in particular, about the confession of the second applicant and the manner in which it was made. Then the court heard five court experts in, inter alia, forensic medicine and psychiatry.
The court rejected the request to hear B.N. in person, but read out her statement made during the preliminary proceedings. Relying on medical certificates and on the report of one of the medical experts present at the trial, the court concluded that to summon and question B.N. would create a risk for her health, since she lived now in Spain and was suffering from multiple sclerosis, which meant she had to avoid unnecessary effort and excitement.
On 22 December 1993 the Assize Court convicted the second applicant of murder and sentenced him to life imprisonment. The first applicant was convicted of aiding and abetting and sentenced to 20 years' imprisonment. The jury found that, according to their common plan, the second applicant had killed F.K., while the first applicant had assisted in the murder by giving sleeping drugs to the victim.
On 16 March 1994 the applicants filed a common request for rectification of the transcript of the trial (Protokollberichtigungsantrag). They argued that the Presiding Judge had made several mocking remarks and gestures which had not been recorded in the transcript but which could have influenced the jury. Defence counsel referred to their private notes, according to which the Presiding Judge had expressed doubts in respect of the existence of Boris P. From the third day of the trial, the Presiding Judge had daily requested the defence counsel of the second applicant to provide the name of the witness who would testify that one of the jurors was biased, as claimed by the defence. Moreover, the Presiding Judge had interrupted both applicants several times, especially at the end of the trial, when they wanted to give their last speech to the jury.
On 22 April 1994 the Presiding Judge rejected the request for rectification of the transcripts. He stated that he and the court clerk responsible for the record (Schriftführerin) had compared the transcript of the hearing with the stenographic notes and had found that the transcript corresponded to those notes. Contrary to the private notes and the applicants' submissions, the Presiding Judge had announced the names of the jurors and their substitutes, and had shown where they were seated. In respect of the conduct of the defence counsel of the second applicant, N.L., as well as that of the Presiding Judge, the transcript was accurate.
It transpires from the transcript of the trial, which covers some 280 pages, that the relationship between defence counsel, N.L., and the Presiding Judge was rather tense and characterised by mutual accusations. The following events are mentioned in the transcript:
At the hearing on 9 December 1993, N.L. challenged one juror for bias. He claimed that he had been informed that this juror had stated after the hearing on 7 December that the applicants should be sentenced to life imprisonment. The juror denied that she had made such a statement. N.L. said that a letter sent to the court containing the name of the "informant" had been provided by a third person.
In the hearing on 13 December 1993, the Presiding Judge asked N.L. to provide him with the name of the informant, so that the court could decide the defence's challenge of the juror for bias. Otherwise he warned that he would inform the Bar Association and the Public Prosecutor's Office to take steps against counsel for having defamed a juror.
On 15 December 1993 (the fifth day of the trial) counsel gave the Presiding Judge a copy of a criminal information he had filed with the Public Prosecutor's Office concerning the conduct of the Presiding Judge. At the same time he challenged the Presiding Judge for bias. He submitted that the Presiding Judge lacked the necessary objectivity and tried to influence the jury by means of gestures, facial expressions and ironical, cynical remarks. Moreover, he complained that the Presiding Judge exercised unnecessary pressure on him, since he had repeatedly asked for the name of the informant. In this context he also accused the Presiding Judge of making propaganda (Stimmungsmache) in the courtroom.
At the hearing on 17 December 1993, the bench of the Assize Court (Schwurgerichtshof) dismissed the second applicant's motion challenging the Presiding Judge for bias, finding that the Presiding Judge's possible smiles (allfälliges Lächeln) at certain statements did not influence the jurors, who were responsible (mündige) citizens. The court denied that any propaganda to the press or the public had occurred. That day, the defence counsel of the first applicant requested the hearing of certain journalists with possible knowledge of the juror's bias. However, he did not know the name of the person who had, in turn, informed the journalists. The second applicant joined the request.
At the hearing on 22 December 1993, the Assize Court dismissed the motion challenging a juror for bias. It found that it had not been proved that the juror had made the contested statement. Moreover, the defence had not provided the court with the name of the person who had allegedly heard the partial statement. The court further dismissed the request to hear the journalists since they could not give any direct testimony themselves, having only spoken on the telephone to an anonymous informant.
On an unspecified day the first applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung). He complained that at the trial it had not been possible for him to understand which member of the jury was a full member and which a substitute member, that the Presiding Judge had failed to swear in two members of the jury by hand-shake and that two members of the jury had been biased. He further complained that the Presiding Judge had interrupted him when he had addressed his last words to the jury, and that evidence requested by him had not been obtained by the court. He also complained that the verdict of the jury had been wrong because the submissions of the second applicant had been implausible. He argued that further questions should have been put to the jury and that Hungarian law, which was more lenient in relation to the offence of which he was accused, should have been applied.
On 16 March 1994 the second applicant filed a plea of nullity and an appeal against sentence. He complained that the Assize Court had refused to take the evidence requested by him and had dismissed his challenge for bias of the Presiding Judge, that further questions should have been put to the jury and that there were contradictions between the verdict and the contents of the case-file.
On 13 October 1994 the Supreme Court dismissed the pleas of nullity and appeals against sentence. It confirmed the sentence in respect of the second applicant and increased the sentence of the first applicant to life imprisonment. The decision was served on the applicants on 20 December 1994.
As regards the first applicant's complaint as to the membership of the jury, the Supreme Court noted that according to the transcripts of the trial the Presiding Judge had called up each member of the jury by name and assigned a fixed place to him or her. It had therefore been clear which juror was sitting as a full member and which juror was a substitute. The jury was consequently not wrongly composed as claimed by the applicant. The Presiding Judge's failure to swear in by handshake the members of the jury who had no religious belief, might have been a procedural mistake but did not constitute a ground of nullity.
As regards the first applicant's complaint that he was denied the right to the last word, the Supreme Court noted that these allegations were not confirmed by the transcript of the trial. In any event, the applicant had failed to respect the procedural requirements for raising this ground of nullity because he should have requested an interim decision on this issue.
The Supreme Court also held that the Assize Court had acted correctly when it dismissed the first applicant's requests for the taking of evidence. As regards his request to hear his urologist (sic) on whether the first applicant had undergone a change in his personality after a car accident in 1987, it found that two expert psychiatric reports had been obtained which were sufficient. As regards the request to hear journalists about a juror's alleged bias, the Supreme Court noted they could not give any direct testimony themselves, having only spoken on the telephone to an anonymous informant. Even if the Assize Court had heard the journalists, this would not have proved that the information given by the anonymous person had been correct. As regards the hearing of B.N., the Supreme Court referred to its reasoning on the second applicant's plea of nullity (below). As regards the first applicant's complaint that Hungarian law had not been applied, the Supreme Court found that in the present case Austrian law was applicable, since it concerned an offence committed abroad by an Austrian citizen against another Austrian citizen.
As regards the second applicant's plea of nullity, the Supreme Court found that the complaint about the alleged bias of the Presiding Judge was unfounded. The Supreme Court noted that the request for rectification of the transcripts had been dismissed and the applicant's complaints could not therefore be examined on the basis of the allegations made in the request for rectification. The Supreme Court stated that a judge is not prevented from forming his own opinion about the guilt of the accused before the end of the trial. Only if the judge maintains this opinion despite evidence to the contrary could he or she be deemed biased. In particular, in the case of spontaneous reactions (like gestures and changing facial expressions), the judge's lack of impartiality must be shown by additional concrete indications. The same considerations applied to remarks by which a judge expressed his sceptical attitude vis-à-vis a submission. A judge is not prevented from showing such an attitude, since a judge also indicates his attitude when referring an accused or witnesses to contradictions in or the improbability of their statements. Since the second applicant had not submitted any specific circumstances on which an objective observer could doubt the impartiality of the Presiding Judge, there was no infringement of the applicant's defence rights.
As regards the complaint about the failure of the Assize Court to take the evidence requested by the second applicant, the Supreme Court found that the Assize Court had acted correctly when rejecting these requests. B.N. had not been present when the offence had been committed and had always claimed that she had not been involved in the applicants' plans. It was therefore not necessary to hear her on the question whether there had been any indication that F.K. should be killed in Budapest. Moreover, a medical expert had confirmed that appearing before the court would involve a danger to her health, as she was suffering from a serious illness. Given that B.N. was living in Spain, the Austrian courts could not compel her to appear at the trial.


ITEMID: 001-22068
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: RAITA AND JALI RAITA CONSULTING OY v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The first applicant is a Finnish citizen, born in 1941 and resident in Turku. He owns and represents the limited liability company Jali Raita Consulting Oy (i.e. the second applicant). The respondent Government are represented by their Agent, Mr Arto Kosonen, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company brought civil proceedings for damages against a another company. On 12 July 1995 the District Court (käräjäoikeus, tingsrätten) of Helsinki ordered the defendant to pay certain damages and dismissed the remainder of the action. Both parties appealed.
On 29 February 1996 the Court of Appeal (hovioikeus, hovrätten) of Helsinki quashed the District Court’s judgment and dismissed the whole of the applicant company's action. The panel of three judges examining the appeal comprised, among others, Judge T., an extraordinary judge on leave of absence from his permanent post as law clerk (référendaire; esittelijä, föredragande) in the Supreme Court (korkein oikeus, högsta domstolen).
In the case in point, T. was responsible for checking any amendments to the draft judgment which the Court of Appeal’s law clerk in charge had presented for the panel’s deliberations. According to the case-file, T. had checked the draft judgment on 22 February 1996, whereas he had returned to his post at the Supreme Court with effect from 1 January 1996.
On 12 March 1996 the applicant company requested the Court of Appeal to complete its judgment in respect of one claim allegedly left without examination. On 4 April 1996 the Court of Appeal dismissed this request.
The company was subsequently informed of Judge T.’s return to the Supreme Court. In June 1996 the company sought leave to appeal to that court and also lodged a procedural complaint (kantelu tuomiovirheen perusteella, klagan på grund av domvilla), arguing, inter alia, that as from 1 January 1996 the Court of Appeal had not been constituted according to the law (tuomionvoipa, domför) in the case in question.
On 14 January 1997 the Supreme Court refused the company leave to appeal both against the Court of Appeal’s judgment of 29 February 1996 and its decision of 4 April 1996. The Supreme Court dismissed the procedural complaint, noting that the deliberations on the company’s appeal to the Court of Appeal had taken place already on 25 October 1995. The tasks which Judge T. had accomplished up to the delivery of the judgment had consisted of ordinary follow-up measures in accordance with established practice. The Court of Appeal had thus been constituted according to the law despite his having left that tribunal with effect from 1 January 1996.
In the Finnish court system a law clerk prepares the draft decisions and judgments of the courts of appeal and the Supreme Court but cannot take part in any vote. He or she may annex a dissenting opinion, should his or her proposal not be followed.
According to chapter 2, section 8 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), the quorum of a court of appeal shall comprise three judges in order for it to be constituted in accordance with the law.
According to Rules 19-20 of the 1994 Rules of Procedure of the Helsinki Court of Appeal, a judge may, after the competent panel has deliberated on the law clerk’s proposal, propose necessary amendments to the draft judgment. The revised draft is then circulated among the judges for approval. On such approval, the judgment is prepared for delivery in its final wording. If the Presiding Judge considers that a proposed amendment would change the substance of the judgment or if a judge has changed his or her opinion, the matter shall, whenever deemed necessary, be subject to a second deliberation.
In a precedent of 30 December 1996 (no. 1996:153) the Supreme Court held that a former justice could, after taking up his post as Parliamentary Ombudsman, check a draft judgment and carry out other measures in a case deliberated upon prior to his departure. Nor had his departure endangered his independence and impartiality in the case in question.
In another precedent of the same day (no. 1996:152) the Supreme Court held that a court of appeal judge had become biased after he had checked and signed the original judgment but before it had been delivered.


ITEMID: 001-69939
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ROSENZWEIG AND BONDED WAREHOUSES LTD. v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Just satisfaction reserved
TEXT: 8. The first applicant, Bronisław Rosenzweig, is a German national, who was born in 1941 and lives in Berlin. The second applicant is “Bonded Warehouses Ltd”, a public company.
9. On 18 February 1994 the Main Customs Office granted a licence to run a bonded warehouse in Słubice to the applicant company “International Bonded Warehouses Ltd.”.
10. On 29 May 1995 the German customs office at Frankfurt/Oder stated in writing that the German customs authorities had no objections to the operation of the applicant company.
11. On 1 June 1995 a further permit was given for exporting merchandise via the border crossing in Słubice by the Director of the local Customs Office in Słubice.
12. The applicant submitted that it had been repeatedly suggested that the company should pay various bribes to the customs officials if it wished to continue its operation undisturbed. The Government did not respond to this submission.
13. By a letter of 22 November 1995 the Director of the local Duty Office in Słubice stated that from 27 November 1995 on he would revoke the permit of 1 June 1995 for exporting merchandise via the Słubice border crossing. It was argued that the permit of 1 June 1995 was not in conformity with an agreement with the Federal Republic of Germany regarding the border crossings and trans-border movements of goods and persons.
14. On 27 November 1995 the customs officers ordered that the headquarters of the applicant company be closed and affixed official seals on its door, preventing it thereby from conducting further business. On the same day the applicant company complained to the Main Customs Office, submitting that there were no legal grounds on which the permit should be revoked and that the letter of 22 November 1995 was not an administrative decision, which made it impossible to lodge a formal appeal against it.
15. In a letter of 21 December 1995 the applicant company reiterated its complaint and stressed that the director of the Słubice Customs Office had failed, despite the company's repeated requests, to give any legal basis for the revocation of the permit. It was argued that the revocation of the permit breached economic freedom as guaranteed by the Constitution, and clearly infringed the terms of a valid licence which the company had received from the Main Customs Office in February 1994.
16. On 9 February 1996 the applicant company lodged a complaint under Article 17 of the Supreme Administrative Court's Act about the Main Customs Office's failure to give a decision following the appeal of 27 November 1995. It was submitted that the company had a valid permit given under the provisions of customs law. However, the company's operation had been de facto rendered impossible by the letter of 22 November 1995 as it could not run the warehouse if it was not allowed to export merchandise.
17. In reaction to this complaint, on 14 February 1996 the Main Customs Office informed the applicant company that the permit of 1 June 1995 was of a temporary character. It was to remain valid only until a bridge in nearby Świeck was to be constructed. After the construction of this bridge had been terminated, the border crossing in Słubice was to be used only for small trans-border movement of goods and persons. This was to be understood as allowing for crossing of the border by persons, but taking merchandise out of the country via this crossing did not fall within the ambit of the notion of the “small trans-border movement of goods and persons” and therefore the permit of 1 June 1995 had to be revoked under Article 21 of the Customs Law.
18. The applicant company appealed, submitting that the revocation of the exporting permit would practically mean that the company had to stop its business operation, carried out under the valid licence of February 1994.
On 21 August 1996 the applicant company and the Director of the Legal Department of the Main Customs Office concluded a settlement to the effect that the applicant company would withdraw the appeal it had lodged with the Supreme Administrative Court against the position taken by the Office in its letter of 14 February 1996 and the President of the Office would set aside the decision of the Director of the Słubice Customs Office of 22 November 1995.
19. On 21 December 1996 the Main Customs Office set the decision of 22 November 1995 aside and ordered that the question be re-examined by the Director of the Słubice Customs Office.
20. By a letter of 31 January 1997 the German customs office at Frankfurt/Oder confirmed that the German customs authorities had no legal objections whatsoever against the operation of the applicant company.
21. On 28 May 1997 the Rzepin Customs Office revoked the permit for exporting merchandise by the applicant company via Słubice, stating that the Słubice border crossing was under Polish law designed only for the socalled “small trans-border movement of goods and persons” and that, therefore, no merchandise could be exported via this crossing.
22. The applicant company appealed.
23. On 20 August 1997 the Main Customs Office quashed the decision of 28 May 1997 and discontinued the proceedings, considering that the impugned decision had been in breach of applicable provisions of procedural law since it had not been given in any of the types of proceedings on the merits provided for by the Code of Administrative Procedure.
24. The applicant company requested that the legal meaning of this decision be interpreted. It emphasised that it was important for it to have clarified whether the original permit of 1 June 1995 was still valid. This, on the plain meaning of the text of this decision, was unclear.
25. In an interpretative decision of 23 September 1997 the Main Customs Office explained that the fact that the decision of 28 May 1997 had been set aside was to be understood in such a way as to mean that the legal situation existing before this decision had been given still obtained.
26. The applicant company requested that this issue be re-examined, asking whether the quashing of the decision of 28 May 1997, revoking the permit of 1 June 1995, was to mean that this permit was still valid.
27. In a decision of 14 November 1997 the Main Customs Office held that the purpose of the decision of 23 September 1997 was not to decide whether the permit of 1 June 1995 was still valid. It upheld the decision of 23 September 1997.
28. The applicant company appealed to the Supreme Administrative Court, arguing that the decisions of the Main Customs Office lacked clarity. The Office had set aside the revocation of the permit, but did not confirm whether the original permit was valid. Therefore it was impossible to establish what was the actual legal situation of the company as far as the validity of its permits was concerned. The applicant company emphasised that it was de facto treated by the customs authorities as if the export permit of June 1995 had been effectively revoked.
29. In a judgment of 2 April 1998 the Supreme Administrative Court quashed the decisions of 23 September and 14 November 1997. The court found that the decision of 23 September lacked clarity in that it did not allow the applicant company to elucidate the fundamental uncertainty as to the legal consequence of this decision. Neither were these doubts dispelled by the decision of 14 November in which the Main Customs Office had failed to explain what was the legal situation of the applicants' permit to run their business, and in particular, whether it could still rely on the permit of 1 June 1995.
30. By a decision of 5 June 1998 the Main Customs Office stated that the decision of 20 August 1998 was to be understood in such a way that the applicant's rights stemming from the decision of 1 June 1995 remained intact.
31. On 20 June 1998 the Main Customs Office instituted proceedings in order to have the licence to run the warehouse of 18 February 1994 set aside, considering that the applicant company had not been conducting its business for a period longer than three months, without having informed the competent authorities thereof, as required by law.
32. On 30 November 1998 the Main Customs Office set aside the 1994 licence to run the warehouse, having found that after 20 August 1997 the applicant company had ceased its business activities. Under the provisions of the Customs Code, the customs authorities were obliged to withdraw the licence to run the bonded warehouse if the company enjoying such licence was not exercising it for a period longer than three months.
33. The applicant company appealed. It argued inter alia that it could not have run the warehouse after 20 August 1997, given that the Słubice Customs Office had withdrawn its permit for exporting merchandise by the applicant company via Słubice, which had made it impossible to continue its business operation.
34. On 5 March 1999 the Main Customs Office, having re-examined the case, discontinued the appellate proceedings. The office observed that the applicant was wrong in confusing the proceedings regarding the validity of the June 1995 permit with the present proceedings, in which it was the validity of the earlier licence, granted in 1994, which was at issue. The validity of the 1994 licence had not been questioned in the previous proceedings and therefore there were no grounds on which to accept that the applicant was prevented to run its business.
35. It further noted that the proceedings had to be discontinued since on 1 January 1998 a new Customs Code had entered into force. It provided that various customs licences issued under the old Customs Act were to remain valid for twelve months, during which companies having such licences could lodge new requests to have new licences issued. The applicant company had not submitted such request and the validity of its 1994 licence had consequently expired on 31 December 1999. Therefore the proceedings would not serve any purpose and should be discontinued.
36. The applicant company appealed. It argued, inter alia, that when giving the contested decision, the Main Customs Office had breached the law in that it entirely failed to take into consideration all circumstances relating to the proceedings concerning the withdrawal of the permit to export. These proceedings, which had lasted from August 1997 until June 1998, had rendered it impossible for the company to continue its business operation. Therefore it was unreasonable to revoke the 1994 licence on the ground that the company had ceased its business activities.
37. On 5 November 1999 the Supreme Administrative Court quashed the decision of 5 March 1999 as not being in compliance with law. It considered that the Main Customs Office had incorrectly held that the proceedings had become devoid of purpose. At the time when they had been instituted, i.e. on 20 June 1998, the applicant company's licence was still valid. It therefore had a legal interest in clarifying its legal situation and to confirm whether it was still authorised to run its business.
38. On 23 March 2000 the Main Customs Office, having regard to the judgment of 5 November 1999, set aside the decision of 30 November 1998, revoking the 1994 licence to run the warehouse.
39. The applicant company did not resume its operations afterwards. The first applicant submitted that as a result of the withdrawal of the permit and the licence to run the company, described above, it was impossible for him as the principal shareholder and, likewise, for the applicant company, to resume their business operations. It is the withdrawal of those decisions authorising the company to run its business which constitute the basis of the applicant's claims of pecuniary damage under Article 41 of the Convention. The Government did not respond to this argument.


ITEMID: 001-22592
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: PARRIS v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Dave Parris, is a British national. He is now detained in the Central Prison of Nicosia, in Cyprus. He is represented before the Court by Mr M.Shaw, professor of Law and barrister practising in London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 February 1996 Mrs Augustina Parris was found dead in the apartment where she lived with her husband. Some hours later her husband was arrested and charged with manslaughter. The applicant contended that his wife had committed suicide by throwing herself out of the second floor window on the pavement below. The police reported to the coroner that there was reasonable suspicion of violent death or death brought about by an unknown cause. The coroner instructed pathologists Professor Psaroulis and E. Antoniou to carry out a post mortem examination of the body of the deceased. The examination was carried out on the same day by these pathologists in the presence of Dr Matsakis (also a pathologist) who was present as representative of the family of the deceased and as an observer in pursuance of a relevant order by the coroner. The pathologists concluded that a deep fracture of the scull and brain and the inhaling of a quantity of blood had led to the victim’s suffocation. In particular, Professor Psaroulis noted that the victim had received blows in the neck which had distorted the vocal cords so that the victim was unable to scream. Moreover, the bleeding of the nose, the lips and the larynx brought about a huge bleeding of the respiratory system so that the victim could not be in a position to take the decision to fall from the window.
The coroner made an order for the immediate burial of the body.
Dr Matsakis had also carried out a review of the scene of the crime, at the request of the victim’s family, in which he noted : “Regarding the above spots and splashes of blood, it is the suggestion of the witness that they prove the manner in which the deceased fell from the second-floor window. In particular, the witness is of the opinion that the body was not ejected, as it happens in the ordinary cases of persons falling by their own will, but it fell after having come in touch with the front surface of the ledge under the window of flat n° 4.”
After the post-mortem examination of the body, Dr Matsakis concluded as follows: “In the area of the throat and the respiratory system, the witness observed multiple bruises on the soft tissues in the area of the larynx, in the front and the sides. The appearance, the size and the position of the bruises suggested that they had been caused by the exertion of forceful pressure by human fingers. He also observed a suppressed total fracture of the right front gristle of the larynx. According to the witness, this fracture suggests the exertion of forceful pressure by the edge of a human thumb.”
On 27 February 1996, the father of the victim filed an ex-parte application for ordering Dr Matsakis to carry out a second post mortem examination. On the same day, the coroner dismissed the application. On 28 February upon request of the relatives of the victim and the oral authorisation of the Attorney General and the police, Dr Matsakis carried out a second post mortem examination of the body. The cause of death given by Dr Matsakis was strangulation.
On 28 March 1997 the applicant was convicted by the Nicosia Assize Court of the offence charged and sentenced to 15 years imprisonment. The applicant challenged the accuracy of the second post mortem examination. Dr Matsakis was exhaustively cross-examined and the defence called their own expert witness, a professor of forensic pathology at the Glasgow University. The Assize Court evaluated both reports and decided to accept the evidence provided by Dr Matsakis by a reasoning covering 13 pages of the judgment.
The applicant appealed on points of law to the Supreme Court.
On 5 May 1999 the Supreme Court dismissed the applicant’s appeal. It based its decision, inter alia, on the Schenk judgment of the European Court.
The Supreme Court held that the second post mortem examination was illegal because, in the circumstances, it amounted to a breach of Section 15(2) of the Coroners Law and of the order to bury the body made thereunder.
The Supreme Court further held: “The relatives of the victim had applied to the coroner for leave for the carrying out of a second post mortem examination. Their application was dismissed. Instead of seeking to quash this ruling through the procedures provided for by law, they sought and succeeded the carrying out of a post mortem examination through a relevant oral authorisation of the Attorney General of the Republic and the police. What actually happened, amounted to getting around the ruling of the coroner not through the procedures provided for by the law but through means which are unknown to the law”.
The Supreme Court added that the fact that the prosecution had the initiative in the preliminary examination and in gathering material of evidence did not render the trial unfair. The applicant had the opportunity to cross-examine witnesses against him and enjoyed a full equality of arms in the proceedings.
Furthermore, the Supreme Court held: “However, we note that the relevant illegality was brought about in an effort to help the relatives of the victim, who, in their distress, were seeking a second opportunity to investigate the circumstances in which their beloved met her death”. The Supreme Court further stressed that besides the evidence of Dr Matsakis, there was the evidence of the victim’s father, who was at the flat of the first floor, right below the couple’s flat, and whose narration reads as follows in the Assize Court’s judgment: “Then, he heard a loud shout by the accused like roaring (he imitated the roaring in the court room) and a few seconds later the noise of something like a bundle falling on the floor. Then, after a few seconds, he heard something like dragged steps as if somebody was dragging something heavy, furniture being bumped and the noise of a window or a door being opened.”
Article 15 § 2 of the Coroner’s Law Cap. 153 provides:
“An order authorising the burial or other disposal of a body upon which it has been decided to hold an inquest may be issued by the coroner at any time after the body has been viewed.”
Under the domestic laws of the Republic, a distinction is drawn between the admissibility of illegally obtained evidence according to the nature of the illegality. In the leading case of the Police v. Andreas Georgiades (1982) 3 CLR 33, the Supreme Court held in the light of Articles 34 and 35 of the Constitution that evidence obtained in violation of constitutional rights and liberties was inadmissible.
If evidence is obtained by other illegal means, its admissibility is a matter falling within the discretion of the trial court. The domestic courts have adopted the principles established by the English common law as set out by the House of Lords in the case of R. v. Sang (1979) 2 All E.R. 1222. In practice, the test applied under the common law is the same as that now applied in England under section 78 of the Police and Criminal Evidence Act 1984, which was explained in paragraph 38 of the Court’s judgment in the case of Kahn v. the United Kingdom.


ITEMID: 001-128045
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KOZLITIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person)
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 6. The applicant was born in 1976 and lived before his arrest in the Kaliningrad region. He is currently serving a prison sentence in a correctional colony in the Kaliningrad region.
7. The applicant stood trial on charges of robbery and murder before the Kaliningrad Regional Court (“the Regional Court”).
8. On 10 June 2003 the Regional Court found the applicant guilty of robbery and aggravated murder, and sentenced him to twenty years’ imprisonment with forfeiture of estate. The applicant’s co-defendant, Sh., was found guilty of conspiring to commit robbery, incitement to commit robbery, aiding and abetting, and concealing evidence of murder.
9. Regarding the applicant’s right to appeal against his conviction, the judgment of 10 June 2003 stated as follows:
“The judgment may be appealed against to the Supreme Court of the Russian Federation by lodging grounds of appeal with the Kaliningrad Regional Court within ten days of the date of the pronouncement of the judgment. Convicted persons held in detention may appeal against the judgment within the same time-limit, which starts to run from the day when they received a copy of the judgment.
If an appeal is lodged, the convicted persons are entitled to apply for participation in the examination of their case by the appeal court.”
10. The record of the hearing before the trial court, which was issued on 16 June 2003, stated as follows:
“The procedure for lodging an appeal against the judgment within ten days of its pronouncement was explained [to the parties], as was the procedure for convicted persons to lodge appeals within the same time-limit, starting to run from the date on which they received a copy of the judgment.
The right to apply for leave to take part in the examination of the case by the appeal court was also explained”.
11. On 17 June 2003 a copy of the judgment of 10 June 2003 was served on the applicant.
12. On 24 June 2003 the applicant’s co-defendant appealed against the judgment of 10 June 2003 to the Supreme Court of the Russian Federation (“the Supreme Court”). He submitted that it was him and not the applicant who had committed the murder, but that the trial court had not verified his version of the events.
13. The Government submitted that on an unspecified date the applicant had appealed against the judgment of 10 June 2003. However, the Regional Court had returned his grounds of appeal to him for correction. In its accompanying letter the Regional Court advised the applicant that his grounds of appeal should comply with the requirements of Article 375 of the Code of Criminal Procedure (“the CCrP”). The Government did not provide the Court with a copy of that letter.
14. On 5 July 2003 the applicant, who was detained in Kaliningrad remand prison, submitted a corrected version of his grounds of appeal against the judgment of 10 June 2003. He complained, in particular, that he had not committed the impugned crimes and had an alibi which the trial court had refused to verify; police officers had ill-treated him during the pre-trial investigation to extort a confession from him; and his conviction had been based on statements by witness P. and his co-defendant, Sh., given during the pre-trial investigation under pressure by police officers, and which they had refuted before the trial court. Moreover, Sh. had confessed before the trial court to having committed the murder himself. The applicant asked the appeal court to quash his conviction. When lodging his appeal, the applicant did not expressly state that he wished to take part in the appeal hearing.
15. According to the Government, on 3 November 2003 the Regional Court informed all the participants of the proceedings, including the applicant and his counsel, that the criminal case had been referred to the Supreme Court.
16. On 10 November 2003 the applicant submitted a request to take part in the examination of his appeal by the Supreme Court. On 17 November 2003 the applicant’s co-defendant also applied for leave to take part in the appeal hearing. According to the Government, the Supreme Court received those requests on 26 November 2003.
17. On 26 November 2003 the applicant submitted additional grounds of appeal, which were received by the Supreme Court on 2 December 2003. However, he did not state in his additional grounds of appeal that he wished to take part in the appeal hearing.
18. On 18 December 2003 the Supreme Court of the Russian Federation (“the Supreme Court”), referring to Articles 375 § 2, 376 and 377 of the CCrP (see Relevant domestic law below), dismissed the requests submitted by the applicant and his co-defendant to take part in the appeal hearing. The Supreme Court held as follows:
“... on 10 November 2003 Mr Kozlitin submitted a request to take part in the examination of his criminal case by the appeal court.
It follows from the materials of the case that the judgment was delivered on 10 June 2003 and copies of that judgment were served [on the convicted persons] on 17 June 2003.
... on 5 July 2003 Mr Kozlitin submitted his grounds of appeal, in which he did not express his wish to take part in the appeal hearing.
On 3 November 2003 the case, together with grounds of appeal submitted by the convicted persons, was forwarded to the Supreme Court of RF [Russian Federation] ... The case arrived at the Supreme Court on 10 November 2003.
It was not until 10 and 17 November 2003 respectively that the convicted persons [the applicant and his co-defendant] submitted requests for participation in the appeal hearing.
However, their requests should not be granted, since in accordance with Article 375 § 2 of the UPK RF [CCrP] if a convicted person expresses a wish to take part in the examination of his case by the appeal court, he should indicate this in his grounds of appeal.
The convicted persons did not indicate in their grounds of appeal their wish to be brought to the Supreme Court of the RF [Russian Federation]. Instead they lodged such requests five months later, when their case had already arrived at the Supreme Court of the RF”.
19. On the same date the Supreme Court examined the appeals lodged by the applicant and his co-defendant against the judgment of 10 June 2003 in their absence. The applicant was not represented at that hearing. The prosecutor was present at the hearing and supported upholding the applicant’s conviction. He requested reclassification of the applicant’s actions in accordance with amendments to the Criminal Code.
20. Having studied the materials of the case, the appeal court found that the trial court had verified Sh.’s version of the events whereby he and not the applicant had committed the murder. However, that version had not been confirmed by the materials of the case. The applicant’s alibi had been verified and had been disproved by the statements of witness Shch., which had also been corroborated by other evidence. Furthermore, the defendants’ complaints of unlawful pressure by the police were unsubstantiated and refuted by evidence in the case.
21. On the same date the Supreme Court reclassified the crimes committed by the applicant. In particular, it excluded a number of aggravating circumstances and amended the applicant’s sentence to exclude forfeiture of his estate. The Supreme Court upheld the rest of the judgment.
22. Under the Constitution of the Russian Federation, all persons are equal before the law and the court (Article 19 § 1).
23. Any person convicted of a crime has the right to appeal against the verdict to a higher court in accordance with the procedure established by federal law, as well as to request pardon or mitigation of the punishment (Article 50 § 3).
24. A defendant in criminal proceedings is entitled to participate in the examination of the criminal case by the courts of first instance, second instance and supervisory instance, and in the proceedings in which the court examines the measure of restraint to be imposed (Article 47 §§ 4-16).
25. The appeal court will verify the legality, validity and fairness of the trial court judgment. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law relating to a lesser offence, but has no power to impose a more severe penalty or apply the law relating to a more serious offence (Article 360).
26. If a convicted person wishes to take part in the appeal hearing, he must indicate this in his statement of appeal (Article 375 § 2).
27. The parties will be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. The court will decide whether to summon a convicted person held in custody. If the convicted person held in custody has expressed a wish to be present at the examination of the appeal, he or she is entitled to participate either directly in the court session or by video link. The court will decide the form of participation of the accused person in the court session. A defendant who has appeared before the court will always be entitled to take part in the hearing. If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this will not preclude examination of the case (Article 376 §§ 2-4).
28. At the hearing the appeal court will hear the statement of the party who lodged the appeal and the objections of the opposing party. The appeal court will be empowered, if a party so requests, to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party (Article 377).
29. The appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378).
30. Chapter 15 sets out a procedure for lodging applications and petitions by participants of criminal proceedings. A suspect or defendant, or his or her defence counsel, has the right to lodge applications with the investigator, prosecutor or a court to conduct procedural actions or to take procedural decisions to establish the circumstances that are of importance for the criminal case and also for ensuring the rights and legitimate interests of the person lodging the application or the person he represents (Article 119). Applications can be lodged at any time in the course of the proceedings in a criminal case (Article 120).
31. Chapter 49 of the Code sets out a procedure for reopening of the criminal case in view of new and newly discovered circumstances. It provides, in particular, that a judgment, a court finding or ruling that has taken legal effect may be reversed, and proceedings in the criminal case may be reopened in the event that the European Court of Human Rights has established that in the course of examining the criminal case, a court of the Russian Federation, has violated the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 413). There are no time-limits for reviewing a judgment of conviction in view of new or newly discovered circumstances in favour of the convicted person (Article 414).
32. The Constitutional Court has examined a number of complaints challenging the compatibility with the Constitution of provisions of the old Code of Criminal Procedure (in force until 1 July 2002) and the new Code of Criminal Procedure (in force since 1 July 2002) governing participation of a person convicted of a criminal offence by a first-instance court in the examination of his appeal against conviction by a second-instance court.
33. In its leading ruling of 10 December 1998 on a complaint lodged by Mr B., the Constitutional Court held as follows:
“... implementation of constitutional guarantees of judicial protection ... implies that a convicted person who has expressed a wish to take part in a court hearing may not be deprived of the opportunity to file objections and lodge petitions, acquaint himself with the position of [other participants] expressed in the court hearing and additional materials of the case, if any, and to provide explanations, including in relation to the prosecutor’s opinion.
... Those guarantees may be implemented not only by providing the convicted person with an opportunity to participate in the court hearing in person, but also in other ways. In particular, a convicted person may entrust his defence to a lawyer of his own choosing, and provide written replies to the arguments contained in the grounds of appeals, protests and submissions to the appeal court by other participants in the proceedings. What is significant in the constitutional context is that in the interests of justice a convicted person who has expressed a wish to take part in the court hearing should be provided with an effective opportunity to state his position regarding all aspects of the case and bring it to the attention of the court.
... The challenged provision of the [old] CCrP ... does not prevent the appeal court, which is under an obligation to verify the lawfulness and validity of the judgment, from finding that the participation of a convicted person in the court hearing is indispensable and taking measures to ensure his presence at the hearing. The court may also examine the case in the absence of the convicted person if he has not expressed the wish to take part in the court hearing.
At the same time, those provisions allow the appeal court to dismiss the convicted person’s request to participate in the hearing and to take a final decision in the case without providing him with any other legal means for implementation of his rights ... This results in a deviation from the principle of equality of all persons before the law and the court and in the limitation of the constitutional rights to judicial protection, examination of the case by a tribunal established by law, and review of the judgment by a higher court ... Moreover, this breaches Article 123 of the Constitution, which guarantees that court proceedings will be adversarial and will respect equality of arms. Those guarantees imply that the prosecution and the defence should be provided with equal procedural opportunities to state their position during the examination of the case by the appeal court ...”
Taking the above considerations into account, the Constitutional Court held that the challenged provisions of the old CCrP were incompatible with the Constitution in so far as they allowed the appeal court, if it dismissed a convicted person’s request to take part in the hearing, to take a final decision in the case without providing that person with an opportunity to acquaint himself with the materials of the court hearing and to state his position on the questions examined by the court.
34. In its further decisions on the complaints challenging the compatibility of the new CCrP with the Constitution, in particular of Article 375 § 2 of that Code, the Constitutional Court further developed its position regarding the participation of convicted persons in the examination of their case by the appeal court.
35. On 15 July 2010 the Constitutional Court refused to examine on the merits a complaint lodged by Mr S. challenging the compatibility with the Constitution of Article 375 § 2 of the new CCrP in so far as that provision allowed the appeal court to examine his grounds of appeal in his absence, since he had applied to participate in the examination of his criminal case by the appeal court not in his initial grounds of appeal but in additional grounds of appeal which were submitted later. The Constitutional Court held as follows:
“In accordance with the legal position expressed by the Constitutional Court in its rulings of 10 December 1998, no. 27-П, 15 January 1999, no. 1-П and 14 February 2000, no. 2-П, and decisions of 10 December 2002, no. 315-О, 11 July 2006, no. 351O and 16 November 2006, no. 538-О, providing the parties with an effective opportunity to state their position regarding all aspects of the case is a necessary requirement of judicial protection and a fair trial. Depriving the convicted person of an opportunity to familiarise himself with all the materials of the case and to bring to the attention of the court arguments refuting the conclusions of the trial court, either by way of his personal presence at the appeal court hearing or by way of video link or any other way, would breach his right to judicial protection and the principle of equality of arms.
Article 375 § 2 of the [new] CCrP provides a convicted person with the right to apply for participation in the examination of his criminal case by the appeal court by indicating his wish to attend in his grounds of appeal. The provision’s aim is to provide him with an opportunity to state his position on the case before the appeal court and shall not be regarded as limiting his right to judicial protection and other rights guaranteed by the Russian Constitution. In addition, the provision does not deprive the convicted person of the right to apply for participation in the appeal hearing if he makes such a request not in his grounds of appeal, but in accordance with the procedure provided for by Chapter 15 of the [new] CCrP of the Russian Federation, which places an obligation on the court to take a lawful, reasoned and duly motivated decision on such a request ...”
36. The Constitutional Court confirmed its interpretation of Article 375 § 2 of the [new] CCrP in its decision of 8 December 2011, by which it refused to examine on the merits a complaint lodged by Mr T. challenging the compatibility of that provision with the Constitution. Citing its decision of 15 July 2010, the Constitutional Court held as follows:
“... a different interpretation of Article 375 § 2 of the [new] CCrP would not only be contrary to Articles 46, 49 and 50 of the Constitution of the Russian Federation and the above-cited legal position of the Constitutional Court of the Russian Federation, but also, contrary to the general principle of equality guaranteed by Article 19 of the Constitution, it would unreasonably worsen the situation of convicted persons held in custody compared to that of the other participants of the criminal proceedings, including convicted persons who have not been deprived of their liberty, whose right to take part in the appeal court hearing is not limited (under Article 376 of the [new] CCrP a convicted person or a person acquitted of all charges who appears before the court will always be entitled to take part in the hearing).
Therefore, Article 375 § 2 of the [new] CCrP, taken together with the provisions of chapter 15 of that Code, does not prevent a convicted person from applying for participation in the examination of his criminal case by the appeal court after submitting his grounds of appeal. This implies that the court has an obligation to take a lawful, reasoned and duly motivated decision on such a request ...”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-57492
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF GILLOW v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 19 December 1984. The case originated in an application (no. 9063/80) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1980 by Mr. Joseph and Mrs. Yvonne Gillow, British citizens.
2. By judgment of 24 November 1986, the Court held, inter alia, that there had been a breach of Article 8 (art. 8) of the Convention by reason of the way in which the Guernsey Housing Laws were applied in the applicants’ case (Series A no. 109, paragraphs 57-58 of the reasons and point 2 of the operative provisions, pp. 23-24 and 29).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, reference should be made to paragraphs 9-37 of the above-mentioned judgment (ibid., pp. 8-17).
3. The applicants had reserved their position on the application of Article 50 (art. 50) until after having knowledge of the Court’s judgment on the merits. In these conditions, neither the Government of the United Kingdom ("the Government") nor the Commission were able to take any stand on the issue.
In its judgment of 24 November 1986, the Court accordingly reserved the question, and invited the applicants, duly represented by a lawyer in accordance with Rule 30 of the Rules of Court, to file within the forthcoming three months any claim for just satisfaction that they might have (ibid., paragraph 76 of the reasons and point 6 of the operative provisions, p. 29).
4. Having duly appointed a lawyer, Mr. and Mrs. Gillow, in a memorial of 17 February 1987, claimed just satisfaction in respect of material and moral damage, as well as costs and expenses.
In accordance with the President’s directions, the Government filed a memorial on 24 April. On 19 May, the Secretary to the Commission informed the Registrar that its Delegate did not intend to submit any observations.
5. On 22 May 1987, the Chamber decided that, in the particular circumstances, there was no need to hold oral hearings and directed the Registrar to ask the applicants for particulars of the costs and expenses claimed. This information was received on 20 July and 3 August 1987. The Government and the Commission commented thereon on 5 and 21 August 1987, respectively.
6. On 30 June, Mrs. Gillow informed the Court that her husband had died on 8 June 1987.
7. Subsequently, Mr. Cremona, Mr. Ganshof van der Meersch, Mr. Gölcüklü and Mr. Russo, substitute judges, replaced Mr. Thór Vilhjálmsson, Mr. Lagergren, Mr. Pettiti and Mr. Macdonald, who were prevented from taking part in the final deliberation on 24 and 25 August 1987 (Rules 22 § 1 and 24 § 1).