ITEMID: 001-57460
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF CIULLA v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 5-1;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: C. Russo;N. Valticos
TEXT: 10. Mr Salvatore Ciulla, who was born in Palermo in 1950, was prosecuted in Italy by various public prosecutors’ offices and was also the subject of "preventive" proceedings (prevenzione). Although the present case is not concerned with the prosecutions, some particulars should be given of one of them (which was started in Milan) as it is bound up with the circumstances of this case.
11. The applicant was arrested in April 1982 in connection with offences under the drugs legislation. On 9 December 1982, during the judicial investigation of his case, he was released subject to court supervision.
12. On 24 October 1983, the Milan District Court sentenced him to eleven years and six months’ imprisonment, imposed a fine of 70 million lire and, as a security measure (misura di sicurezza), made a supervision order to last for eight years.
13. On 8 November 1983, at the Public Prosecutor’s request and pursuant to Article 277 of the Code of Criminal Procedure, the same court in consequence revoked the applicant’s release and issued a new arrest warrant on the ground that there was a risk that he would abscond.
On an application by Mr Ciulla and after concurring submissions had been made by the Principal Public Prosecutor, the Court of Cassation set aside the latter decision on 30 January 1984. It held that the revocation of the order made on 9 December 1982 for the applicant’s release was "unlawful" because it had not been included in the judgment whereby the applicant had been convicted and sentenced. As for the new warrant, it was "bad for lack of reasons" as neither the severity of the penalty imposed nor the fact that co-defendants had absconded amounted to a relevant and sufficient justification. On the first of these issues, the Court of Cassation remitted the case to the Milan District Court; no information as to any action taken by the latter court has been provided by those appearing in the present proceedings.
The applicant was immediately released.
14. On 1 February 1985, the Milan Court of Appeal varied the judgment of 24 October 1983 by reducing the sentence to nine years’ imprisonment and a fine of 50 million lire. On 22 January 1986, the Court of Cassation dismissed an appeal on points of law by Mr Ciulla and held that an appeal on points of law by the Public Prosecutor was inadmissible.
15. On 1 and 10 October 1983, when the proceedings at first instance were drawing to an end (see paragraph 12 above), the Commissioner of Police (questore) and the Public Prosecutor in Milan asked the Milan District Court to order "special supervision" (sorveglianza speciale) of the applicant as a preventive measure and at the same time to prohibit him from residing in certain areas. They also sought ancillary orders of a financial nature, namely the seizure and confiscation of assets. In the first part of their application they relied on section 3 of Law no. 1423 of 27 December 1956; and in the second part, on Law no. 575 of 31 May 1965 (see paragraphs 19-20 below).
16. On 19 December 1983, the District Court (Sixth Division) held an initial hearing but had to adjourn the proceedings owing to an irregularity in the service of some of the summonses.
The case was subsequently relisted for hearing on 5 March 1984. In the meantime, on 29 February, the prosecution had amended its submissions; it now sought a compulsory residence (soggiorno obbligato) order, likewise provided for in the 1956 Law.
The applicant failed to appear at the hearing on 5 March. As the prosecution’s new submissions had to be communicated to him, the court again adjourned the case.
The hearing eventually took place on 8 May, with Mr Ciulla present, and at it the prosecution applied for Mr Ciulla’s arrest under section 6 of the 1956 Law (see paragraph 19 below). The president of the Sixth Division granted the application and Mr Ciulla was taken into custody at Milan Prison that same day.
In order to establish that there were "particularly serious grounds" within the meaning of section 6, the prosecution had cited, among other things, the heavy sentence already imposed by the same court (see paragraph 12 above). The president’s decision was couched in the following terms (translated from the Italian):
"The president of the Sixth Criminal Division,
Having regard to the Public Prosecutor’s application of 8 May 1984 for Salvatore Ciulla to be taken into custody under section 6 of Law no. 1423 of 1956,
Noting that an application has been made for an order requiring Salvatore Ciulla to reside in a specified locality and that there are particularly serious grounds for this measure, namely all the evidence set forth in the application of the Commissioner of Police and the Public Prosecutor and the recent sentence of eleven years and six months’ imprisonment and fine of 70 million lire imposed on [Ciulla] for serious drug offences; that Salvatore Ciulla, a person suspected of belonging to Mafia-type associations, is shown by all the evidence in the file to be deeply involved in illegal international drug-trafficking; and that it thus appears on present evidence and for the purpose of this order sufficiently proved that he constitutes a danger to society; and having regard further to the Public Prosecutor’s submissions in support of his application,
For these reasons, having regard to section 6 of Law no. 1423 of 1956,
ORDERS
that Salvatore Ciulla, born in Palermo on 21 February 1950, shall be held in custody in Milan Prison until the decision to be taken in the present proceedings becomes enforceable.
..."
Counsel for Mr Ciulla immediately applied for the provisional release of his client, but the court reserved its decision on this application.
17. On 24 May, the Sixth Division of the court ordered that the applicant should be restricted to a specified place of residence for five years, under section 3 of the 1956 Law, and that some of his assets should be confiscated.
On 25 May, the police took Mr Ciulla to a small town in the province of Ancona. He remained there only until 24 October 1984, when he was arrested under a warrant issued by the investigating judge of Palermo in connection with other proceedings.
18. The applicant is currently serving the sentence passed on him by the Milan Court of Appeal (see paragraph 14 above).
19. Law no. 1423 of 27 December 1956 ("the 1956 Law") enables preventive measures to be taken against "persons presenting a danger to safety and public morals". That Law is summarised in its essentials in the Guzzardi judgment of 6 November 1980 (Series A no. 39, pp. 17-19, paras. 45-51), and it will accordingly suffice to cite here only section 6, as amended by Law no. 152 of 22 May 1975 (translated from the Italian):
"If the application [for a preventive measure] is for an order for compulsory residence in a specified locality, the presiding judge of the District Court, during the procedure ..., may, where there are particularly serious grounds, make a reasoned order (provvedimento motivato) that the applicant be held in prison until the preventive measure has become final.
At the same time as it makes the order for compulsory residence in a specified locality, the court shall order that [the person concerned] be taken by the police from the prison in which he is being held to the place of compulsory residence and handed over to the local police authorities."
20. Law no. 575 of 31 May 1965 ("the 1965 Law"), as amended in 1982, supplements the 1956 Law with procedural and substantive rules (applicable both to persons and to property) directed against individuals whom there are reasons to suspect of belonging to Mafia-type associations. Its provisions do not have any bearing on section 6 of the 1956 Law (see also the Guzzardi judgment previously cited, p. 19, para. 52).
21. Since the events in this case, the 1956 and 1965 Laws have been amended by Law no. 327 of 3 August 1988. Under this Law it is no longer possible to hold a person in custody while an application for a compulsory residence order is being considered, and such an order must henceforth be executed in the locality in which he is resident or ordinarily resident (comune di residenza o di dimora abituale). Section 6 of the 1956 Law now reads as follows (translated from the Italian):
"1. If the application is for special supervision together with a compulsory residence order or an exclusion order, the presiding judge of the District Court, during the procedure ..., may make an order (decreto) for the temporary withdrawal of the person’s passport and for the suspension of the validity of any equivalent document allowing the holder to leave the country.
2. Where there are particularly serious grounds, he may also direct that a temporary compulsory residence or exclusion order should be made against the person concerned until the preventive measure has become final."
22. According to documents produced by those appearing before the Court, the Italian courts - the Constitutional Court, the ordinary first-instance and appellate courts and the administrative courts - have given a number of decisions concerning the status of the Convention in Italy’s domestic legal order, into which it was incorporated by Law no. 848 of 4 August 1955.
With one exception - a judgment of 27 March 1980 of a full court of the Court of Audit (Foro italiano 1980, III, cols. 352-355) -, these decisions have not recognised that the Convention has any constitutional status. Furthermore, the courts concerned do not seem to have had any opportunity to state whether, as certain legal scholars maintain, the Convention ranks midway between the Constitution and ordinary statutes, that is to say whether it prevails even over statutes enacted after the Convention was ratified by Italy.
23. As regards more particularly Article 5 (art. 5) of the Convention, the Government produced the texts of six decisions, but none of them bore on the 1956 Law.
Firstly, there were four judgments of the Court of Cassation. These variously cited a passage from a Commission report (First Criminal Division, 7 December 1981, Minore case), drew attention to the Convention’s usefulness as an interpretative instrument (full court, 13 July 1985, Buda case) and ruled that there had been no breach of paragraph 2 of Article 5 (art. 5-2) (First Criminal Division, 9 July 1982, Signorelli case, and 25 March 1986, Trinco case).
To these were added two judgments of the Rome District Court relating to paragraph 5 (art. 5-5). The first of these (15 May 1973) gave no decision on compensation because the court held there had been no breach of paragraph 1 (art. 5-1) (Luttazzi case, Foro italiano 1973, I, cols. 2933-2936); in the second of them (7 August 1984), on the other hand, the court awarded the plaintiff compensation (Mustacchia case, Temi Romana 1984, pp. 977-980).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-5


ITEMID: 001-82080
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ALFES v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Jörg-Peter Alfes, is a German national who was born in 1947 and lives in Dresden.
The applicant is a practising lawyer. Together with several other persons who were shareholders and managing director of a private limited company, the applicant learned in 1992 about the existence of several plots of land on the territory of the former German Democratic Republic (GDR) for which no restitution claim had yet been made. Pursuant to the Resolution of Outstanding Property Issues Act of 23 September 1990, whose aim was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, the deadline for the registration of such restitution claims was 31 December 1992. The applicant applied for restitution of the above plots of land without revealing that he did not have the authority of the persons who were entitled to restitution and whose names he did not know at the time. He later obtained such authority, predated the forms to a date prior to 31 December 1992 and intended to arrange the assignment of the restitution claim to the private limited company for a price that was considerably below the market value of the plots of land.
The Public Prosecutor’s Office commenced investigations for fraud against the applicant in 1995 and filed the indictment on 3 December 1997.
On 14 May 2001, the Dresden Regional Court convicted the applicant of abetting attempted fraud in four instances and sentenced him to a fine of 106.000 DEM. The main proceedings had been conducted during the period between 8 February 2001 and 14 May 2001 and concerned the applicant and five other accused persons; the judgment contained 192 pages.
On the applicant’s appeal on points of law, the Federal Court of Justice on 9 July 2003 quashed the judgment of the Dresden Regional Court of 14 May 2001 and referred the case back to another division of the Dresden Regional Court. The Federal Court of Justice found that the Dresden Regional Court had not provided sufficient reasoning as to the accuseds’ intent with regard to the unlawfulness of the pecuniary benefit, an element of fraud under German law. Since the German administrative courts at the time had been divided over the issue whether or not the registration for restitution by a representative without authority could be retroactively authorised, the Dresden Regional Court had erroneously inferred from the predated authority forms that the applicant and his co-accused had had the requisite intent. The Federal Court of Justice referred the case back to the Dresden Regional Court in order to establish whether the applicant had acted with contingent intent. Lastly, it found that in case of a subsequent conviction, the Dresden Regional Court when sentencing would have to take into account fact that the proceedings against the applicant had lasted for a considerable time. The length of time would also have to be considered by the Dresden Regional Court in the context of Article 6 § 1 of the Convention.
On 12 May 2004, the Dresden Regional Court, after having obtained the consent of the Public Prosecutor’s Office and the applicant, provisionally stayed the proceedings in accordance with section 153a § 2 read in conjunction with section 153a § 1 of the Code of Criminal Procedure (see Relevant domestic law, below) on condition that the applicant paid the amount of 10.000 € to the State treasury. The applicant paid the sum, and on 25 May 2004, the Dresden Regional Court formally discontinued the proceedings.
Section 153a of the Code of Criminal Procedure governs the discontinuance of criminal proceedings after the fulfilment of certain conditions by the applicant.
According to section 153a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may discontinue criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt would be of a minor nature and if the fulfilment of certain conditions or orders by the defendant is suitable to remove the public interest in criminal prosecution. Such conditions notably entail the payment of a sum of money to a non-profit-making organisation or to a treasury. The defendant must consent to discontinuation. Moreover, the court which has jurisdiction to open the main proceedings must also consent unless the case concerns offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor.
After the filing of the indictment, the court which has jurisdiction may, according to section 153a § 2 of the Code of Criminal Procedure, decide to discontinue the proceedings under the conditions set out in section 153a § 1 with the consent of both the Public Prosecutor’s Office and the defendant. Once the proceedings have been discontinued, it is not longer open to the parties to take any further steps in the procedure unless the proceedings are resumed, which is only possible if the accused is charged with an offence for which it is mandatory to impose a sentence of at least one year’s imprisonment (Verbrechen).


ITEMID: 001-101620
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ELINNA SHEVCHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicants are the private company “OOO Inform-X” and five Russian nationals, whose names and dates of birth are shown in the Annex. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicants sued the State authorities in domestic courts for payment of various monetary sums due under the Russian law. The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country. These judgments became binding on the dates indicated below. They were executed, according to the Government, on the dates set out in the Annex.
In case no. 34864/06 by Mr Kovalev, on 17 November 2004 the authorities paid to the applicant 46,036 Russian roubles (RUB) of RUB 52,916.06 awarded to him by the judgment of 27 May 2004 (see Annex for further details). The remaining RUB 6,879.09 were not paid to applicant but transferred to the federal budget as income tax.
The applicant sued the respondent authority for payment of the remaining part of the judgment debt. On 7 July 2006 the Tsentralnyy District Court of Kalininigrad in the final instance rejected his claim. The court found that the initial award was made in respect of wages taxable under the domestic law. Therefore, RUB 6,879.09 had been lawfully retained from the applicant as income tax.


ITEMID: 001-88527
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FORSYTH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Morris Peter Forsyth, is a British national who was born in 1937 and lives in Newport. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 31 March 1995. They had no children from the marriage. His claim for widows’ benefits was made on 5 December 2000 and was rejected on 12 December 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 28 January 2001. The applicant was informed of this on 19 February 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-115399
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF LONČAR v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Erik Møse;Julia Laffranque
TEXT: 4. The applicant was born in 1952 and lives in Split.
5. On 23 February 1999 the applicant brought a civil action for defamation against the Croatian Radio Television in the Split Municipal Court (Općinski sud u Splitu), seeking non-pecuniary damages.
6. In the period between 20 May 1999 and 19 May 2000 the firstinstance court held seven hearings.
7. By a judgment of 19 May 2000 the Municipal Court dismissed the applicant’s action.
8. Following an appeal by the applicant, on 21 May 2004 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case.
9. In the resumed proceedings, the Municipal Court held three hearings, and on 21 September 2009 delivered a judgement whereby it ordered the defendant to pay the applicant 30,000 Croatian kunas (HRK) as compensation for non-pecuniary damage.
10. Following an appeal by the defendant, on 26 November 2010 the Split County Court reduced the amount of damages payable to the applicant to HRK 20,000. The judgment was served on the applicant’s representative on 4 January 2011.
11. Meanwhile, on 5 November 2007 the applicant lodged a request for the protection of the right to a hearing within reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Split County Court.
12. On 18 August 2008 the Split County Court found a violation of the applicant’s right to a hearing within reasonable time, awarded her HRK 12,5001 in compensation and ordered the Split Municipal Court to give a decision in her case within six months of the service of its decision. The County Court’s decision was served on the Split Municipal Court on 31 October 2008.
13. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76297
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GUROV v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. In 1994 the applicant concluded a contract with ASITO (an insurance company incorporated in Moldova), according to which she paid an insurance premium in exchange for an annuity.
6. Since ASITO failed to pay the annuity at the term, the applicant brought a civil action against it, seeking the payment of the pension to date and requiring the company to abide by the contract.
7. On 5 October 2001, the Râşcani District Court found in favour of the applicant and ordered ASITO to pay the pension due and to resume the execution of the contract.
8. ASITO appealed against this judgment, asking inter alia for the cancellation of the contract concluded with the applicant in 1994 on the ground that the economic situation of the country had become worse and that the interest rate of the National Bank of Moldova had changed.
9. On 27 February 2002, the Chişinău Regional Court dismissed the appeal arguing that the contract of 1994 was legal and valid and therefore had to be upheld by the parties. ASITO lodged an appeal in cassation against this judgment.
10. In the meantime, on an unspecified date, the Prosecutor General lodged an “appeal in the interests of the law” with the Supreme Court of Justice. According to the Prosecutor General, the appeal had the purpose of clarifying the controversy surrounding all such contracts and of setting a uniform practice for all the courts.
11. On 11 March 2002, the Plenary Supreme Court issued a judgment deciding the dispute between ASITO and the pension beneficiaries in favour of the former. It also ruled that its judgment had no retrospective effect on any already existing judgments and that it could not be used against the parties to those proceedings.
12. On 16 April 2002, a panel of the Court of Appeal composed of judges V.D. (president), T.D. and V.B., quashed the judgments of 5 October 2001 and 27 February 2002, and found in favour of ASITO.
13. After the delivery of the judgment, the applicant found out that the mandate of Judge V.D., who had presided at the hearing, had expired in 2000 and that he had been dismissed from the position of judge in July 2002.
14. Article 151 of the Constitution of the Soviet Socialist Republic of Moldova of 1989 provided as follows:
The judges ...shall be elected by the Supreme Soviet for a term of office of ten years.
15. The Decision of the Supreme Soviet of the Soviet Socialist Republic of Moldova, No. 98-XII of 15 June 1990 provided:
... V.D. is appointed as a judge at the Supreme Court of Justice...
16. The Presidential Decree No. 91-94 of 27 July 2002, in so far as relevant, provided:
...
V.D. is dismissed from the position of judge.
...
17. The relevant parts of the Code of Civil Procedure in force at the material time read as follows:
Section 19. The grounds for challenging a judge
A judge shall not be admitted to sit in a case and shall be challenged in the following cases:
1) if he or she participated in an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor, registrar;
2) if he or she is personally interested, directly or indirectly, in the outcome of the proceedings or if there are other reasons for which his impartiality could be doubted;
3) if he, his spouse, his ascendants or descendants have any interest in the outcome of the proceedings...;
4) if his spouse... is a relative of one of the parties to the proceedings...;
5) if he is a tutor... of one of the parties to the proceedings.
...
Section 162. Adjourning the hearing
It is possible to request the adjournment of a hearing when one of the parties, a witness, an expert or an interpreter is absent, or when it is necessary to present new evidence or when there are other circumstances which render impossible the holding of the hearing.
...
18. On 12 June 2003 a new Code of Civil Procedure entered into force. Section 449, so far as relevant, reads as follows:
“Grounds for revision
Revision may be requested:
...
k) When the European Court of Human Rights has found a violation of fundamental rights and liberties, as well as when it has found that the interested person could obtain, in accordance with domestic law, at least partial reparation by way of annulment of a judgment pronounced by a domestic court....”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91706
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TIMES NEWSPAPERS LTD v. THE UNITED KINGDOM (Nos. 1 AND 2)
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Simon Brown
TEXT: 5. The applicant, Times Newspapers Ltd, is the proprietor and publisher of The Times newspaper. The applicant is registered in England.
6. On 8 September 1999 The Times published an article in the printed version of the newspaper headlined “Second Russian Link to Money Laundering”. This article stated:
“British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York.
Investigators are understood to be looking at links to [G.L.: his name was set out in full in the original article], whose company, Nordex, has been described by the CIA as an ‘organisation associated with Russian criminal activity’.
[G.L.]’s name surfaced in earlier money-laundering investigations which may have links to the Bank of New York affair, in which millions of dollars of Russian money are alleged to have been laundered.
The Russian-born businessman came to the attention of European and American investigators in the early 1990s. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London.
[G.L.] has repeatedly denied any wrongdoing or links to criminal activity.
Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet Union and another 40 companies in the West.
The Times has learnt that these included between eight and ten offshore companies in British jurisdictions, including the Channel Islands and the Isle of Man.
They were administered through a chartered accountant in central London whose offices and home were raided in 1996 by officers from the City of London Police.
The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant.
At about the same time a Yugoslav associate said to have been a frontman for [G.L.] was stopped and questioned after arriving at a London airport. No charges were filed against him.
The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through offshore companies controlled by Nordex was linked to criminal activities.
[G.L.] is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993.
He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation.”
7. On 14 October 1999 The Times published a second article entitled “Trader Linked to Mafia Boss, Wife Claims”. This article stated:
“A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of [G.L.], a suspected mafia boss, the businessman’s wife claims.
Lev Chernoi, the aluminium magnate under Swiss investigation, was given access to staff and a chauffeur by [G.L.] when he moved to Israel, according to Lyudmila Chernoi, Mr Chernoi’s estranged wife ...
If Mrs Chernoi’s allegation about a connection between her husband and [G.L.] is true, it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by [G.L.] and alleged to have been used to launder money and smuggle nuclear weapons, as an ‘organisation associated with Russian criminal activity’.
In 1996 [G.L.] triggered a row in America after a photograph was published of him with President Clinton in 1993. [G.L.] has denied any wrongdoing.”
8. Both articles were uploaded onto the applicant’s website on the same day as they were published in its newspaper.
9. On 6 December 1999 G.L. brought proceedings for libel in respect of the two articles printed in the newspaper against the applicant, its editor and the two journalists under whose bylines the articles appeared (“the first action”). The defendants did not dispute that the articles were potentially defamatory and did not seek to prove that the allegations were true. Instead, they relied solely on the defence of qualified privilege, contending that the allegations were of such a kind and seriousness that they had a duty to publish the information and the public had a corresponding right to know.
10. While the first action was under way, the articles remained on the applicant’s website, where they were accessible to Internet users as part of the applicant’s archive of past issues. On 6 December 2000, G.L. brought a second action for libel in relation to the continuing Internet publication of the articles (“the second action”). Initially, the defendants’ only defence to the second action was one of qualified privilege. The two actions were consolidated and set down for a split trial on issues of liability and then quantum.
11. On 23 December 2000 the applicant added the following preface to both articles in the Internet archive:
“This article is subject to High Court libel litigation between [G.L.] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.”
12. In or around March 2001 the defendants applied to re-amend their defence in the second action in order “to contend that as a matter of law the only actionable publication of a newspaper article on the Internet is that which occurs when the article is first posted on the Internet” (“the single-publication rule”). They argued that, as a result, the second action was time-barred by section 4A of the Limitation Act 1980.
13. On 19 March 2001 the High Court refused permission to re-amend the defence, relying in particular on the common-law rule set out in Duke of Brunswick v. Harmer (see paragraph 20 below) that each publication of a defamation gives rise to a separate cause of action. The court held that, in the context of the Internet, this meant that a new cause of action accrued every time the defamatory material was accessed (“the Internet publication rule”).
14. On 20 March 2001 the High Court found that the defendants had no reasonable grounds for contending that after 21 February 2000 (the date on which the defendants lodged their defence in the first action) they remained under a duty to publish the articles on the Internet. As a result, the court struck out the defence of qualified privilege in relation to the second action. On 27 March 2001, judgment was entered for G.L. in the second action, with damages to be assessed. By this time the applicant had removed the articles from its website.
15. The defendants appealed against the High Court’s order of 19 March 2001 rejecting the single-publication rule. They argued that the Internet publication rule breached Article 10 of the Convention, pointing out that as a result of the rule, newspapers which maintained Internet archives were exposed to ceaseless liability for republication of the defamatory material. The defendants argued that this would inevitably have a chilling effect on the willingness of newspapers to provide Internet archives and would thus limit their freedom of expression.
16. In its judgment of 5 December 2001, the Court of Appeal, per Simon Brown LJ, dismissed the appeal against the order in the second action, stating:
“We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.”
17. On 30 April 2002 the House of Lords refused leave to appeal. The parties subsequently settled the action and the applicant agreed to pay G.L. a sum of money in full and final settlement of claims and costs arising in both actions.
18. Section 2 of the Limitation Act 1980 (“the 1980 Act”) sets out a general limitation period of six years in tort actions. Section 4A of the 1980 Act qualifies this limitation period as regards defamation actions and provides as follows:
“The time-limit under section 2 of this Act shall not apply to an action for –
(a) libel or slander; or
(b) slander of title, slander of goods or other malicious falsehood;
but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.”
19. Section 32A of the 1980 Act provides:
“(1) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A –
(i) the date on which any such facts did become known to him; and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
(c) the extent to which, having regard to the delay, relevant evidence is likely –
(i) to be unavailable; or
(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.”
20. Duke of Brunswick v. Harmer [1849] 14 QB 154 lays down a common-law rule of some significance. On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was, at that time, six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the Weekly Dispatch’s office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time-barred, relying on the original publication date. The court held that the delivery of a copy of the newspaper to the plaintiff’s agent constituted a separate publication in respect of which suit could be brought.
21. In Godfrey v. Demon Internet Ltd [2001] QB 201 the respondent brought an action in defamation against the appellants who were Internet service providers. They had received and stored on their news server an article, defamatory of the respondent, which had been posted by an unknown person using another service provider. The judge stated:
“In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP [Internet service provider] who accesses the newsgroup containing that posting. Thus every time one of the defendants’ customers accesses ‘soc culture thai’ and sees that posting defamatory of the plaintiff there is a publication to that customer.”
22. The leading case on the defence of qualified privilege is Reynolds v. Times Newspapers Ltd [2001] 2 AC 127. That case established that qualified privilege is an absolute defence to libel proceedings. In the leading judgment before the House of Lords, Lord Nicholls of Birkenhead explained the defence as follows:
“The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson’s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted:
‘a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential’.”
23. The Press Complaints Commission has adopted a Code of Practice which is regularly reviewed and amended as required. Paragraph 1 of the current Code of Practice reads as follows:
“(i) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures.
(ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.
(iii) The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.
(iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.”
24. Unlike the United Kingdom, the courts of the United States of America have chosen to apply the “single-publication rule”. In the case of Gregoire v. GP Putnam’s Sons (1948) 81 N.E.2d 45, a book originally put on sale in 1941 was still being sold in 1946 following several reprints. The New York Court of Appeals considered the rule in Duke of Brunswick v. Harmer, but concluded that it was formulated “in an era which long antedated the modern process of mass publication” and was therefore not suited to modern conditions. Instead, the court held that the limitation period started to run in 1941, when the book was first put on sale. The court pointed out that:
“Under [the rule in Duke of Brunswick v. Harmer] the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the legislature.”
25. The single-publication rule was subsequently applied to a website publication in Firth v. State of New York (2002) NY int 88. In that case, a report published at a press conference on 16 December 1996 was placed on the Internet the same day. An action was brought over a year later. The New York Court of Appeals held that the limitation period started when the report was first uploaded onto the website and did not begin anew each time the website version of the report was accessed by a user. The court observed that:
“The policies impelling the original adoption of the single-publication rule support its application to the posting of ... the report ... on the website ... These policies are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet ... Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants. Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet which is, of course, its greatest beneficial promise.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-4941
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MARIC v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1968, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.
a.

On 5 February 1994 the applicant arrived in Sweden. He requested asylum the next day. He stated that he is an ethnic Croat from Kakanj in Bosnia-Hercegovina. As from April 1992 he served in the Bosnian-Croatian army. In the beginning of 1993 he was taken prisoner by Muslim troops and held in captivity for 15 days. In June 1993 Kakanj was occupied by Muslim troops who started an ethnic cleansing of the village. In October 1993 he deserted from his military unit and travelled to Stolac where he joined another unit. In January 1994 he absconded also from that unit and left for Croatia. He arrived in Sweden via Munich. During his journey he used his Croatian passport which he tore apart upon arrival in Sweden. The applicant claimed to be a citizen of Bosnia-Hercegovina only. He feared that, if deported to Croatia, he would be sent back to Bosnia-Hercegovina.
On 26 August 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant's request and ordered his deportation to Croatia. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, there was no reason to assume that Croatia would not afford the applicant protection. Further, persons in the applicant's situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Neither was there any risk that Croatian citizens in general would be forced to take part in armed conflict. Moreover, the applicant had failed to show that he would risk persecution or other harassment if deported to Croatia.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 18 May 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 22 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements and added that, being an ethnic Croat, he could not return to the Muslim-dominated Kakanj or to any other part of Bosnia-Hercegovina. He risked punishment for having deserted from the Bosnian-Croatian army. Moreover, he could not go to Croatia where he had no place to live. His Croatian passport did not entitle him to full civic rights in Croatia and he would thus be forced to return to Bosnia-Hercegovina.
On 12 June 1997 the Immigration Board rejected the applicant's new application and ordered his deportation to Croatia. The Board had regard to guiding decisions taken by the Swedish Government and found that the applicant should not be sent back to BosniaHercegovina. With regard to the possible deportation to Croatia, the Board noted that no circumstances had been invoked by the applicant which could lead to the conclusion that he was unable to go to Croatia. Consequently, the Immigration Board reiterated the conclusions drawn in its previous decision concerning the applicant. Furthermore, the Immigration Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit.
On 5 March 1998 the Aliens Appeals Board upheld the Immigration Board's decision.
In medical certificates issued by the psychiatric clinic at the hospital in Karlskrona on 25 June and 2 December 1998 physicians C.F. and M.N. stated that the applicant suffered from anxiety and suicide thoughts. He had been treated with antidepressant medication. As from 19 November 1998 he had been treated at the clinic for a post-traumatic stress syndrome. M.N. found that the applicant was in need of qualified psychiatric care and that there was a considerable risk that he would commit self-destructive acts. The clinic submitted the certificate of 2 December to the Appeals Board and requested that the enforcement of the deportation order be suspended.
On 7 December 1998 the Appeals Board decided not to suspend the enforcement of the deportation order.
Relevant domestic law
Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien's condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician's decision.


ITEMID: 001-87056
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MANEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1936 and lives in Skopje.
1. Proceedings concerning an order of the Governor of the National Bank (“the first set of proceedings”)
5. The applicant worked as General Manager of a bank, “K.B.” (“the bank”).
6. On 25 April 1996 the Governor of the National Bank (“the Governor”) issued an order preventing the applicant from working as the bank’s General Manager and from exercising other duties associated with special responsibilities for an indefinite period of time (“the order”). The order was based on findings as to the applicant’s unlawful business conduct and irregularities in the bank’s operation under his management. On 22 May 1996 the Council of the National Bank (“the Council”) dismissed the applicant’s appeal and confirmed the order.
7. On 12 September 1996 the Supreme Court allowed the applicant’s appeal on points of law (управен спор) submitted on 29 May 1996 and annulled the Council’s decision. It found that the position of general manager of a bank was not associated with special responsibilities and accordingly the order should not have been issued in respect of the applicant.
8. On 13 November 1996 the Constitutional Court upheld the applicant’s actio popularis and declared section 52 § 14 of the National Bank Act, under which the Governor had been entitled to take other measures (apart from those explicitly mentioned) if necessary, unconstitutional.
9. On 18 June 1997 the Constitutional Court declared the provisions of the National Bank Act, in accordance with which the Council decided upon appeals against the Governor’s decisions, unconstitutional. It found that the Governor’s participation in and chairing of the Council when the latter decided against his decisions given at first instance had been contrary to the constitutional principle of two-instance decision-making.
10. On 9 June 1997 the plenary session of the Supreme Court (општа седница) granted the public prosecutor’s request for the protection of legality (барање за заштита на законитоста) and quashed the Supreme Court’s decision of 12 September 1996. The court referred in its decision to the National Assembly’s authentic interpretation of section 70 of the Banks and Savings Institutions Act (Закон за банки и штедилници), according to which the manager of a bank was to be considered “a person with special responsibilities”.
11. On 4 February 1998 the Supreme Court, relying on the Constitutional Court’s decision of 18 June 1997, accepted the applicant’s appeal and annulled the Council’s decision of 22 May 1996.
12. As the Council allegedly remained inactive, the applicant requested the Supreme Court to decide his case on the merits instead of the Council.
13. On 1 September 1998 the Council, sitting without the Governor, dismissed the applicant’s appeal and upheld the latter’s decision. On 18 November 1998 the Supreme Court rejected the applicant’s request to decide his case on the merits instead of the Council.
14. On 7 July 1999 the Supreme Court granted the applicant’s appeal and annulled the Council’s decision. It found that the Council had established the facts incompletely and violated procedural rules.
15. On 26 August 1999 the Council dismissed the applicant’s appeal again.
16. On 6 September 1999 the applicant lodged a fresh appeal with the Supreme Court.
17. On 2 December 1999 the Supreme Court allowed the applicant’s appeal and annulled the Council’s decision of 26 August 1999 and the order of 25 April 1996. It found that the Governor and the Council had wrongly established that the applicant had abused the monetary system. On 19 February 2001 the plenary session of the Supreme Court granted the public prosecutor’s request for the protection of legality and quashed that decision. It found that the facts had been re-established without a hearing.
18. On 11 September 2003 the Supreme Court finally dismissed the applicant’s appeal. It based its decision, inter alia, on the Banks and Savings Institutions Act of 1993, in accordance with which the National Bank supervised the lawfulness of a bank’s operation and accordingly had been authorised to prevent, fully or partially, persons with special responsibilities from exercising their duties. It also referred to section 50 § 2 of the National Bank Act of 1992 and ruled that the latter had lawfully prevented the applicant from working as General Manager of the bank due to irregularities in the operation of the bank under his management.
19. On 26 December 2003 the applicant unsuccessfully requested the public prosecutor to lodge a request with the Supreme Court for the protection of legality.
2. Civil proceedings concerning the applicant’s forced retirement (“the second set of proceedings”)
20. On 25 May 2000 the newly appointed General Manager of the bank dismissed the applicant as having fulfilled the conditions for his retirement.
21. On 27 June 2000 the bank’s Executive Board (“the Board”) dismissed the applicant’s objection.
22. On 4 June 2000 the applicant brought a civil action challenging his forced retirement. He argued that he had not met the statutory conditions for entering retirement.
23. On 2 July 2001 the Skopje Court of First Instance granted the applicant’s claim and annulled the bank’s decisions. It gave the ruling after it had obtained an expert report concerning the applicant’s period of employment.
24. On 6 September 2001 the bank appealed. On 6 December 2001 the Skopje Court of Appeal quashed the lower court’s decision and ordered a retrial.
25. On 6 December 2002 the Skopje Court of First Instance granted the applicant’s claim again and annulled the bank’s dismissal decisions. None of the scheduled hearings were adjourned upon the applicant’s request.
26. On 13 November 2003 the Skopje Court of Appeal allowed the bank’s appeal of 4 February 2003 and quashed the lower court’s decision.
27. On 14 October 2005 the Skopje Court of First Instance dismissed the applicant’s claim. In the course of those proceedings, that court sought information from different institutions about the applicant’s period of employment. On 1 September 2004 it also appointed an expert to draw up a report in that connection and ordered those institutions to allow her access to the relevant documentation. The expert report was produced in March 2005. On 23 March 2006 the Skopje Court of Appeal upheld the first-instance court’s decision.
28. On 29 May 2006 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court. The proceedings are apparently still pending.
3. Civil proceedings concerning the applicant’s removal from the position of General Manager of the bank (“the third set of proceedings”)
29. On 29 July 1996 the Board removed the applicant from the position of General Manager of the bank. On 9 October 1996 the Board dismissed the applicant’s objection and terminated his contract with the bank.
30. On an unspecified date in 1996, the applicant instituted civil proceedings against the decisions of the Board.
31. On 29 November 1996 the Skopje Court of First Instance partially allowed the applicant’s claim and annulled the Board’s decisions. The court dismissed the applicant’s claim concerning the termination of the contract.
32. On 17 September 1997 the Skopje Court of Appeal granted both parties’ appeals and quashed the lower court’s decision.
33. On 27 April 1998 the Skopje Court of First Instance dismissed the applicant’s claim concerning his removal and rejected his claim related to the termination of his contract.
34. On 2 June 1999 the Skopje Court of Appeal ruled partly in favour of the applicant, namely, it accepted his appeal concerning his removal and dismissed it in respect of his contract.
35. On 19 January 2000 the Skopje Court of First Instance granted the applicant’s claim and annulled the Board’s decisions related to his removal (“the court order”). That decision was upheld by the Skopje Court of Appeal’s decision of 19 April 2000.
36. After the Board had refused the applicant’s request to “reinstate his status prior to his removal” (воспоставување на правната состојба како пред разрешувањето), the applicant instituted enforcement proceedings claiming reinstatement and payment of salary arrears.
37. On 27 October 2000 the Skopje Court of First Instance dismissed the applicant’s request as the court order had not provided for his reinstatement.
38. On 22 January 2001 the Skopje Court of Appeal allowed the applicant’s appeal and remitted the case for re-examination, arguing that the court order had had a retrospective effect.
39. On 12 February 2001 the Skopje Court of First Instance dismissed the applicant’s claims for his reinstatement and for payment of salary arrears.
40. On 26 April 2001 the Skopje Court of Appeal upheld the lower court’s decision and dismissed the applicant’s appeal. By a letter of 9 September 2005, the Skopje Court of First Instance stated that there was no evidence in the file attesting that a copy of that decision had been served on the applicant or his counsel.
41. By an application of 10 July 2001, the applicant unsuccessfully requested the public prosecutor to lodge a request with the Supreme Court for the protection of legality (барање за заштита на законитоста). His application was refused on 31 August 2001. On 12 September 2001 that notification was allegedly served on the applicant.
VIOLATED_ARTICLES: 6


ITEMID: 001-81028
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GONTARENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Ivan Petrovych Gontarenko, is a Ukrainian national who was born in 1959 and lives in the city of Poltava. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1998 the applicant instituted proceedings against the local housing authority (житлово-експлуатаційна дільниця № 8), seeking his reinstatement and compensation for salary arrears and non-pecuniary damage.
On 27 October 1998 the Leninsky District Court of Poltava (hereinafter “the Leninsky Court”) found against the applicant.
On 17 December 1998 the Poltava Regional Court (hereinafter “the Regional Court”) upheld this decision.
On 7 September 1999 the Presidium of the Regional Court, following the protest of the Public Prosecutor lodged upon the applicant’s request (протест заступника прокурора Полтавської області), quashed all previous decisions and remitted the case for a fresh consideration on the ground that the first instance court’s reasoning was insufficient.
On 27 June 2000 the Leninsky Court found against the applicant.
On 27 July 2000 the Regional Court quashed this decision stating that the first instance court had failed to give appropriate consideration of the facts. The case was remitted for a fresh consideration to the Kyivsky District Court of Poltava (hereinafter “the Kyivsky Court”).
On 3 July 2002 the Kyivsky Court found against the applicant.
On 15 October 2002 and 19 August 2003 the Poltava Regional Court of Appeal and the Supreme Court, respectively, upheld this decision.


ITEMID: 001-108285
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BIZIUK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Janusz Biziuk, is a Polish national who was born in 1964 and lives in Sokółka. He was represented before the Court by Ms Z. Daniszewska - Dek, a lawyer practising in Białystok. The Polish Government (“the Government”) were represented by their Agent, Mr J.Wołąsiewicz of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 25 February 2005 the applicant was charged with assaulting a Sokółka Municipality employee.
4. On 7 April 2005 expert psychiatrists appointed by the prosecutor gave an opinion concerning the applicant’s mental health. They considered that the applicant suffered from paranoia with elements of psychosis.
5. On 14 September 2005 the Sokółka District Court gave a decision and discontinued the criminal proceedings against the applicant. The court found it established that the applicant had committed the offence in question. However, he should not have been held criminally responsible as he was suffering from paranoia with elements of psychosis. It further ordered that the applicant be placed in a psychiatric hospital.
6. On 23 September 2005 the applicant appealed against this decision. On 28 December 2005 the Białystok Regional Court dismissed the appeal.
7. On 1 June 2006 the applicant was informed that the Ombudsman had decided not to file a cassation appeal on his behalf.
8. Between 23 February and 11 September 2006 the applicant was detained in a psychiatric hospital, on the basis of a decision given in another set of criminal proceedings against him (decision of the Białystok District Court of 5 May 2005). On 24 March 2006 the Sokółka District Court ordered the applicant’s internment in the same institution on the basis of its final decision of 14 September 2005.
9. On 11 September 2006 the Białystok Regional Court decided (in the other set of criminal proceedings against the applicant) that the applicant could be released since his health had significantly improved and he could be treated outside the hospital. However, the applicant was not released on that date as he was simultaneously detained on the basis of the Sokółka District Court’s decision of 14 September 2005.
10. On 13 September 2006 the applicant’s lawyer filed a motion with the Sokółka District Court referring to the Białystok District Court’s decision and asking for the applicant’s release.
11. On 17 September 2006 the applicant absconded from the hospital.
12. On 29 September 2006 the Sokółka District Court heard an expert who stated that the applicant’s escape from the hospital confirmed that he had no intention to continue his therapy. Consequently, the court refused to discontinue the enforcement proceedings relating to the applicant’s confinement ordered on 14 September 2005. The court referred to an expert’s report of 13 June 2006.
13. On 20 October 2006 the Sokółka District Court ordered that the applicant be admitted to a psychiatric hospital.
14. On 9 November 2006 the Białystok Regional Court quashed the decision of 29 September 2006 and remitted the case to the Sokółka District Court on formal grounds. The District Court subsequently scheduled a hearing. However, it had to be adjourned since the applicant had filed a motion for the presiding judge to step down.
15. On 18 December 2006 the District Court appointed experts.
16. On 5 January 2007 the applicant went to the Sokołka District Court to examine his case file. He was then arrested by the police on the basis of the order of 20 October 2006. He was informed that he had the right to lodge an interlocutory appeal against his arrest. On the same day the applicant was admitted to the Choroszcza psychiatric hospital. He submits that on his arrival he was examined by a doctor who stated that there was no need to keep him in hospital. However, the applicant was ordered to stay in the hospital. The Government submit that the applicant was ordered to stay in the hospital as there were strong medical grounds justifying his detention.
17. On 8 January 2007 the applicant lodged an interlocutory appeal against the decision to admit him to hospital. He argued that his placement in the psychiatric hospital had not been necessary. He stressed that on 11 September 2006, in another set of criminal proceedings, the Białystok Regional Court had taken the view that his state of health had improved. Lastly, he submitted that a person could not be judged healthy as regards one set of criminal proceedings and in need of psychiatric treatment as regards another set. On an unknown date the applicant’s lawyer also lodged an interlocutory appeal.
18. On 8 January 2007 the applicant absconded from the hospital.
19. On 23 January 2007 the Sokółka District Court refused to examine the applicant’s interlocutory appeal against the decision to place him in a psychiatric hospital as inadmissible in law. The court referred to the Supreme Court’s decision of 11 January 2006 (see domestic law and practice below). On 24 January 2007 it refused to examine an appeal by the applicant’s lawyer.
20. The applicant and his lawyer appealed against these decisions. On 8 March 2007 the Białystok Regional Court dismissed their appeals.
21. On 22 February 2007, on a request by the applicant under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time, the Białystok Regional Court gave a decision and acknowledged that the length of the enforcement proceedings (between 28 June 2006 and 26 September 2006) was excessive. It awarded the applicant 1,000 Polish zlotys (PLN) as just satisfaction.
22. On 13 March 2007 the applicant was arrested by the police so that he could undergo a psychiatric observation.
23. On 23 March 2007 the court-appointed experts submitted their opinion to the court. They concluded that the applicant suffered from a delusional disorder and he should be kept in a psychiatric hospital.
24. On 19 March 2007 he lodged an interlocutory appeal against the decision to place him in a psychiatric hospital. On 29 March 2007 the Sokółka District Court dismissed his appeal as inadmissible in law. On the same date the court ordered the applicant’s release. The applicant lodged an appeal (in respect of costs and expenses) against this decision on 17 April 2007. On 24 May 2007 the Białystok Regional Court dismissed his appeal.
25. Under Article 6 of the Code of Enforcement of Criminal Sentences a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to the enforcement of prison sentences are examined by a competent penitentiary court.
26. On 11 January 2006 the Supreme Court gave a decision, I KZP 56/05, and held that it was not possible to appeal against a decision to arrest and place a convicted person in a penitentiary institution [doprowadzenie do zakładu karnego].


ITEMID: 001-97406
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF EVCİMEN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1959 and lives in Istanbul.
5. In 1989 the applicant started working at a privately owned factory in the city of Ordu. On 4 February 1993 he had an accident in the factory and seriously injured his leg. Subsequently, on 13 August 1993 the applicant's employment at the factory was terminated on the ground that he had failed to report to work between 2 and 13 August 1993 without a reason.
6. On 4 June 1996, the applicant brought a legal action against the factory before the Ordu Civil Court of General Jurisdiction (“the Civil Court”) and claimed pecuniary compensation in respect of the accident. In the meantime, in 1997 the applicant's leg had to be amputated following the diagnosis of a malignant tumour in his injured leg.
7. On 11 November 1998, while the proceedings were pending before the Civil Court, the applicant brought another action before the Ordu Labour Court (“the Labour Court”) against the factory and asked the court to issue a declaration to the effect that the incident had been an “occupational accident”.
8. On 5 February 1999, at the applicant's request, the Civil Court decided to adjourn its examination of the compensation claim pending the outcome of the proceedings before the Labour Court.
9. On 17 December 1999 the Labour Court, relying on two expert reports, decided that the accident had been occupational. Nevertheless, the decision of the Labour Court was quashed on 17 February 2000 by the Court of Cassation, which held that the Social Security Institution (Sosyal Sigortalar Kurumu “the SSK”) should also be a party to the proceedings.
10. Proceedings recommenced before the Labour Court, which found on 17 October 2000 that the applicant had introduced the same claim in 1994, and dismissed the case.
11. On 26 March 2001 the Court of Cassation quashed the decision of the Labour Court and pointed to the fact that the case which had been brought in 1994 had had different parties and its subject matter had also been different to that of the present one.
12. On 12 October 2001, after a further review of the case, the Labour Court gave a decision and held that the accident had been occupational.
13. On 1 February 2002 the Court of Cassation quashed the judgment once more and held that the Labour Court should have considered whether a causal link existed between the tumour in the applicant's leg and the accident. The Court of Cassation considered that this could be done by obtaining a report from the Forensic Medicine Institution (“the Institution”).
14. On 26 April 2002, after re-examining the case, the Labour Court confirmed its judgment of 12 October 2001. In its decision, the Labour Court maintained that any causal link between the tumour and the accident was irrelevant to the case at hand. It considered that this was a matter for the Civil Court to consider in its examination of the applicant's compensation claim.
15. On 3 July 2002 the Plenary Court of Cassation quashed the Labour Court's decision of 26 April 2002 and upheld the Court of Cassation decision of 1 February 2002.
16. On 18 October 2002 the Labour Court asked the Institution to draft a report as required by the Court of Cassation. On 8 November 2002 the Institution requested the Labour Court to forward to it all medical reports pertaining to the applicant's medical treatment. Following the failure of the Labour Court to comply with its request, the Institution repeated its request on two further occasions. The Labour Court, which did not comply with the Institution's requests, asked the Institution to prepare its report on the basis of the reports already in its possession.
17. On 19 March 2004 the Institution prepared its report based on several medical reports on the applicant delivered by different hospitals between 1993 and 1997. It concluded that it was not possible to establish whether the tumour in the leg had been caused by the accident. In its report the Institution also noted that the applicant, although warned by the doctors about the gravity of his condition, had failed to have medical examinations between 1994 and 1997. It concluded that this could also have caused the tumour in the applicant's leg.
18. On 1 September 2004 the applicant submitted to the Labour Court written objections to the Institution's report. He argued, in particular, that the report was irrelevant to the examination of his claim and in any event was based on insufficient data. The applicant further argued that the Forensic Institution had prepared a negative report as he had lodged a complaint against the experts regarding the delay in the submission of their report.
19. Based on the report of the Institution, the Labour Court decided on 10 September 2004 that there was no causal link between the accident and the tumour in the applicant's leg, and dismissed the case. On 11 October 2004 the applicant appealed and repeated his objections, mentioned above, to the Institution's report. The applicant's appeal was rejected by the Court of Cassation 11 April 2005.
20. Following the decision of the Court of Cassation, the Civil Court resumed the proceedings. On 17 July 2005 the domestic court rejected the applicant's case based on the decision of the Labour Court dated 10 September 2004. In its decision, it stated that the Labour Court had had regard to all the documents in the case file, the submissions of the parties and the medical report of the Forensic Institution which held that there was no causal link between the tumour in the applicant's leg and the incident. As a result, by making reference to the decision of the Labour Court it dismissed the applicant's case. On 14 February 2006 the Court of Cassation rejected the applicant's appeal request.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81478
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: LOPATINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Lyudmila Georgiyevna Lopatina, is a Russian national who was born in 1948 and lives in Perm. She was represented before the Court by Mr A. Mukhachev, a lawyer practising in Perm.
On 29 December 1998 the applicant’s son was drafted into the army.
On 16 December 1999 the applicant’s son was sent to perform his military service in Chechnya. On 14 January 2000 he was killed in action.
The applicant sued the military unit for damages in respect of non-pecuniary loss, alleging that it had sent her son to Chechnya and had been thereby responsible for his death.
On 11 February 2002 the Naro-Fominsk Town Court of the Moscow Region dismissed her claims. It found that the applicant’s son had been killed in a military operation. However, there was no appearance that his death had occurred through any fault of the military unit. In the absence of fault, the military unit could not be held liable for any non-pecuniary damage sustained by the applicant. The court continued as follows:
“The court sympathises with the mother’s grief at the untimely death of her son. However, it has not established any grounds for imposing on the respondent an obligation to pay monetary compensation for non-pecuniary damage.”
On 14 March 2002 the Moscow Regional Court upheld the judgment on appeal. It endorsed the reasoning of the District Court and added that in accordance with domestic law, family members of a person who died while performing military service were entitled to compensation and social benefits. However, domestic law did not impose on the military unit an obligation to pay damages for the non-pecuniary loss sustained by the family members.
The Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator or a prosecutor upon a complaint by an individual. Upon receipt of a complaint, the investigator or prosecutor was to conduct an inquiry. Depending on the findings of the inquiry, the investigator or prosecutor could either initiate or refuse to initiate criminal proceedings. The complainant had to be notified of the decision and informed about the appeal procedure (Articles 108, 109, and 113).
If certain actions impairing an individual’s personal non-property rights or encroaching on other incorporeal assets have caused him or her non-pecuniary damage (physical or mental suffering) the court may impose on the perpetrator an obligation to pay pecuniary compensation for such damage. The amount of compensation depends on the degree of the perpetrator’s fault and other pertinent circumstances (Article 151 of the Civil Code).


ITEMID: 001-83445
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BARIŞIK AND ALP v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 27. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events, read as follows:
“Unless otherwise specifically provided by law, objection proceedings are conducted without a hearing. If necessary, the public prosecutor [may be] heard.”
“As regards infringements falling within its jurisdiction, the ... magistrates' court makes its ruling, without holding a hearing, through a penal order. The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of three months ...”
“The judge schedules a hearing if he sees an inconvenience in ruling in the absence of one.”
“A hearing shall be held if the objection is raised against a prison sentence imposed by a penal order. (...)
The suspect can be represented by defence counsel during the hearing. (...)
The objections against penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.”
“Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107520
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NATIG MIRZAYEV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1971 in Baku and is currently serving a life sentence in Gobustan Prison.
6. The applicant was sought by the law-enforcement authorities for complicity in a number of criminal offences, including two murders, committed in 1994.
7. On 22 October 1998 the applicant was arrested in Russia and on 11 March 1999 he was extradited to Azerbaijan.
8. On 24 January 2000 the Supreme Court, sitting as the court of first instance, convicted the applicant of complicity in two counts of murder, several counts of theft, illegal possession and sale of weapons, and hooliganism. The sentences for these offences were merged, and the applicant was sentenced to life imprisonment and confiscation of property.
9. Following his conviction, in January 2000 the applicant was transferred to the 5th wing of Bayil Prison, formerly designated for convicts sentenced to death.
10. On 5 January 2001 he was transferred to Gobustan Prison, located outside Baku, where he is currently detained. The applicant is held, together with one other inmate, in a cell measuring 2.5 x 3.8 metres and 3.5 metres high. The cell has two beds, a small bedside cupboard, and one small table and two chairs fixed to the cell floor. The toilet area is separated from the rest of the cell. The floor and ceiling are made of stone and concrete respectively. The temperature inside the cell is very high in summer and very low in winter. Central heating is available, but insufficient.
11. The window has metal bars and no pane and, in winter, is closed with a transparent polyethylene film. The air inside is stale and the cell cannot be naturally ventilated. The food served in the prison is often of poor quality and lacks sufficient meat and vitamins, and the menu is unvaried and monotonous. The inmates are allowed only about half an hour’s outdoor exercise a day.
12. After his transfer to Gobustan Prison, the applicant was detained respectively in cell 150 in the 5th unit and in cell 184 in the 6th unit. Since 6 April 2005 he has been detained in cell 188 in the 6th unit. All these cells are intended for two prisoners and their size is 10 sq. m.
13. The conditions of the applicant’s detention meet all the national and international requirements and standards. The window of the cell can be opened from the inside. The window is large enough and does not prevent the entrance of natural light and fresh air. The cell is also provided with electric lamps, a ventilator and a radio set.
14. Since June 2008 the prisoners have had the right to watch TV for four hours a day and six hours at weekends and holidays. The prison has a library accessible to the prisoners. The sanitary conditions are normal and the food is of good quality. The applicant has the right to one hour’s outdoor exercise a day.
15. When he arrived at Bayil Prison, he was in good health and was not suffering from any illness. In Bayil Prison, the applicant was initially placed in a cell which had previously accommodated inmates who were suffering from contagious conditions, and which had not been disinfected.
16. In February 2000 the applicant was transferred to another cell, which he shared with A., an inmate suffering from tuberculosis. According to the applicant, he contracted tuberculosis from his cellmate. He began to feel the first symptoms of the disease shortly after his transfer to that cell. He had been in the same cell as A. from 15-16 February 2000 to 20 March 2000, from 19-20 May 2000 to the middle of June or July and from the beginning of October to 5 January 2001.
17. During that period inmates of the 5th wing of Bayil Prison who were suffering from tuberculosis were generally not transferred to any specialised medical facilities but received treatment while remaining in their cells. There was a high mortality rate among inmates suffering from tuberculosis.
18. Following his transfer to Gobustan Prison, in June 2001 the applicant was diagnosed with pulmonary tuberculosis. By that time, he had lost a significant amount of weight and was coughing blood. On 9 June 2001 he was transferred for in-patient treatment to the Specialised Medical Establishment for Prisoners with Tuberculosis. He received treatment based on the World Health Organisation’s DOTS (Directly Observed Treatment, Short Course) programme.
19. On 16 February 2002 the applicant was transferred back to Gobustan Prison, where he continued to receive outpatient treatment. From 2 to 9 October 2004, from 1 to 8 October 2005, from 26 November to 3 December 2005 and from 24 December 2005 to 10 February 2006 the applicant was sent to various medical facilities for examination and inpatient treatment.
20. According to a statement issued on 16 February 2006 by the Medical Facility of the Ministry of Justice following the applicant’s latest examination and in-patient treatment, the applicant was diagnosed with, inter alia, focal tuberculosis of the upper lobes of both lungs in the consolidation phase and residual symptoms of tuberculosis.
21. The Government submitted that it was doubtful that the applicant had contracted tuberculosis in Bayil Prison. When he was sharing a cell with A. in May 2000 the latter had recovered and his disease was not contagious. In this regard, the Government noted that the applicant had been diagnosed with tuberculosis in June 2001, when he was in Gobustan Prison.
22. The applicant was sent to the Specialised Medical Establishment for Prisoners with Tuberculosis, where he received in-patient treatment on the basis of the DOTS programme of the WHO. The applicant’s treatment lasted until 16 February 2002 and after his recovery he was transferred back to Gobustan Prison.
23. On 26 March 2002 the applicant received outpatient treatment with vitamins. On 7 April 2002 this treatment was completed and the applicant’s health was considered satisfactory. On 12 June and 8 October 2002 and on 12 March 2003 the applicant was examined by a doctor and no deterioration of his health was observed.
24. The applicant was subsequently examined, on 24 February 2002, on 1 May 2003, on 3 June 2004 and on 24 October 2005, by a group of doctors in Gobustan Prison. According to each examination, the applicant was diagnosed with clinically recovered pulmonary tuberculosis and prescribed dispensary supervision.
25. From 2 to 9 October 2004 the applicant was examined in the prison medical unit and, according to the clinic laboratory and X-ray examination results, there was no need for in-patient treatment.
26. In October 2005 the applicant was again instructed to go to the medical unit, however he refused to go there because of his religious fast.
27. Following examinations on 26 November 2005 and 24 December 2005 the applicant’s health was pronounced fully improved and it was stated that there was no need for any special treatment under the DOTS programme.
28. On 10 October 2005 the applicant lodged a civil action against the Bayil Prison authorities, seeking compensation for damage caused to his health. He claimed that the prison authorities were directly responsible for his having contracted tuberculosis, taking into account the poor conditions of detention and the fact that he had been held in the same cells as inmates with tuberculosis. In support of his claims he submitted written statements by other inmates who had previously been detained in Bayil Prison. The applicant further asked the court to ensure his presence at the hearings.
29. On 24 January 2006 the Sabail District Court dismissed the applicant’s claim, finding that the applicant had failed to prove that he had been deliberately placed in a cell with inmates who were ill and had contracted tuberculosis as a result. The court further held that, in such circumstances, the Bayil Prison authorities could not be considered to have ill-treated the applicant in any way. Concerning the written statements of other inmates detained at that time in Bayil Prison, the court held that these statements were not reliable, because as former inmates of Bayil Prison the authors of these statements could be biased against the administration of Bayil Prison.
30. The applicant was not personally present at the hearings of the firstinstance court, but was represented. The judgment of the first-instance court was silent as to the applicant’s request on his attendance at the hearing.
31. The applicant lodged an appeal, reiterating his previous complaints and his request for leave to appear at the hearings. On 14 July 2006, having examined the applicant’s appeal in the absence of the applicant and his representative, the Court of Appeal rejected the appeal, finding that the applicant’s arguments were unsubstantiated. Following the applicant’s cassation appeal, on 8 May 2007 the Supreme Court quashed the judgment of 14 July 2006 and remitted the case to the Court of Appeal for a new examination. The Supreme Court found that the Court of Appeal had neither examined the question of the applicant’s participation in the appeal hearing nor informed his representative about the time and place of the hearing. The relevant part of the Supreme Court’s decision read as follows:
“As a court of full jurisdiction under Article 372.1 of the Code of Civil Procedure, the appellate court which examines the case on its merits on the basis of the evidence in the file or additionally submitted evidence, did not discuss the question of N. Mirzayev’s impossibility to exercise his right to attend the hearings because of his imprisonment, thus independent of his will, and did not take any measure or decision in order to ensure his presence at the hearings. N. Mirzayev’s representative was not informed of the place and date of the hearing. Therefore, N. Mirzayev was deprived of the possibility to attend the hearing on his case and to benefit from the procedural rights provided for by Article 47.2 of the Code of Civil Procedure”.
32. On 26 September 2007, having examined the case in the absence of the applicant but in the presence of his representative, the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s judgment of 24 January 2006. The appellate court’s judgment was silent as to the applicant’s request for leave to appear.
33. On 26 February 2008 the Supreme Court dismissed the applicant’s cassation appeal and upheld the Baku Court of Appeal judgment. The proceedings before the Supreme Court were held in the applicant’s absence, but in the presence of his lawyer. The Supreme Court noted that the absence of the applicant was not a ground for quashing the appellate court’s judgment, because the applicant had been represented in those proceedings. The Supreme Court also noted that the applicant’s personal presence was not mandatory and his presence should be secured only if the court considered it necessary. The relevant part of the Supreme Court’s decision read as follows:
“It appears from the legislation that the right to call a person who is represented before the court by a representative, to attend the hearing in person belong to the court which examines the case, only if this court considers it necessary, and the application of this provision is not mandatory ...
... taking into consideration the fact that N. Mirzayev’s presence at the hearing was not necessary, because he was represented by his representative when the appellate court examined the case, the panel of court considers unfounded to quash the judgment for the lack of N. Mirzayev’s presence at the hearing.”
34. In June 2008, the applicant lodged a civil action against the Gobustan Prison authorities, seeking compensation for damage caused to his health. He complained in particular that adequate medical assistance was not available in Gobustan Prison. The application was drafted in Russian.
35. On 4 July 2008 the Garadagh District Court refused to admit the applicant’s complaint. The court held that the application had been drafted in Russian, not in Azerbaijani, which is the official language of the country, and that no justification had been given for drafting the application in Russian.
36. Following an appeal by the applicant against this decision, the Garadagh District Court agreed to hear the applicant’s complaint and on 4 September 2008 held a preliminary hearing. At the request of the applicant’s representative, the court commissioned an expert report on the applicant’s illness and adjourned the proceedings.
37. The proceedings were then adjourned because of the expiration of the power of attorney of the applicant’s representative. On 17 March 2009 the court decided to leave the applicant’s complaint unexamined due to the failure of both the claimant and the defendant to attend the hearing.
38. The proceedings were subsequently continued and on 15 February 2010 the Garadagh District Court delivered a judgment on the merits. The court dismissed the applicant’s complaint, noting that the applicant had been provided with adequate medical assistance after he was diagnosed with tuberculosis. The court also held that the applicant’s allegations had not been confirmed by the expert opinion, according to which it was impossible to establish that the applicant had contracted tuberculosis in prison.
39. On 25 March 2010 the applicant appealed against the first-instance court’s judgment and reiterated his previous complaints.
40. The proceedings before the appellate court are still pending.
41. Parties to civil proceedings may appear before a court in person or act through their representative (Articles 47, 49 and 69 of the Code of Civil Procedure (“the CCP”)).
42. The Code on Execution of Punishments (“the CEP”) provides that a convicted person may be transferred from a prison to an investigative unit if his participation is required as a witness, suspect or accused in connection with certain investigative measures (Article 69-1). The CEP is silent as to the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1