ITEMID: 001-83087
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHRUSCINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4
JUDGES: Josep Casadevall
TEXT: 4. The applicant was born in born in 1975 and lives in Wyględy, Poland.
5. On 2 April 2003 the applicant was arrested by the police. On the same date the applicant was charged by the Warsaw District Prosecutor with having helped to sell two stolen cars while acting in an organised criminal gang. The applicant was instructed that it was open to him to make a request under Article 313 of the Code of Criminal Procedure to be served with the written reasons for the decision to charge him.
6. On 4 April 2003 the Warsaw District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged. The court held that keeping him in custody was necessary to secure the proper conduct of the proceedings as there was a fear that the applicant would influence witnesses.
7. On 18 June 2003 the District Prosecutor lodged a request to prolong the applicant's detention. In his motion he indicated 138 investigative actions that would be taken with respect to 23 suspects. The District Court on 27 June 2003 accordingly prolonged the applicant's detention, relying in particular on evidence obtained from one of the co-accused.
8. In his subsequent application of 19 September 2003 for an extension of the applicant's detention the prosecutor relied on extensive evidence that had already been obtained from 7 witnesses and an expert witness. The application was granted on 30 September 2003.
9. On 29 December 2003 the Warsaw District Court further prolonged the applicant's pre-trial detention.
10. On 6 November 2003 the Warsaw District Prosecutor decided to supplement the charges against the applicant, adding several other offences relating to the handling of stolen cars. The applicant was again informed of his right to request the written reasons for the decision, but he failed to make a request.
11. On 26 March 2004 the Warsaw Court of Appeal (Sąd Apelacyjny), on the application of the appellate prosecutor, decided to prolong further the applicant's detention. In addition to the existence of a reasonable suspicion that the applicant had committed the offences, the court relied on the complexity of the case, the severity of the penalty that might be imposed and the need to secure the proper conduct of the investigation.
12. On 25 June and 28 December 2004 the Warsaw Court of Appeal prolonged the applicant's detention. It reiterated the grounds previously given for keeping him in custody. It further pointed to the particular complexity of the case, which explained the length of the investigative phase of the proceedings. The court in particular relied on the evidence gathered by the prosecutor and referred in its decision to the statements given by the witnesses and co-accused which were included in the case file.
13. On 3 December 2004 the prosecutor decided to sever the charges against the applicant and 16 co-accused and to deal separately with his charges.
14. On 22 December 2004 the applicant was indicted before the Warsaw District Court. The applicant was accused of having committed 12 offences, in particular handling stolen cars and forging licence plates while acting in an organised criminal gang.
15. Subsequently, his detention on remand was prolonged on 18 March 2005. The applicant's numerous applications for release and his appeals against the detention decisions were to no avail.
16. The trial started on 18 April 2005. Afterwards, hearings were held at regular intervals. In October 2005 the applicant and the prosecutor negotiated an agreement whereby the applicant would plead guilty and voluntarily submit to a penalty.
17. At the hearing held on 10 November 2005 the court gave a judgment in which it accepted the agreement concluded between the applicant and the prosecutor according to which the applicant voluntarily accepted a sentence of 3 years and 6 months' imprisonment and a fine. The applicant was released on the same day.
18. The applicant did not appeal against the judgment and it became final on 18 November 2005.
19. On 9 March and 3 September 2004 the applicant, represented by his lawyer, requested leave to consult the case file against him.
20. The Warsaw District Prosecutor, on 24 March and 15 September 2004 respectively, dismissed the applicant's requests. The reasoning of both decisions was identical. The prosecutor referred to the fact that the preparatory proceedings were still pending and since the case concerned an organised criminal gang the documents in the file should not be revealed until all suspects had been arrested and charged. Finally, the prosecutor noted that most items of evidence had been considered confidential which “automatically prevents access being granted to them”.
21. The applicant appealed against both decisions complaining that he had been detained for more than one year and that during this time he had had no access to the case-file. That constituted a breach of his defence rights in violation of the European Convention on Human Rights.
22. On 12 May and 2 November 2004 the Warsaw Appellate Prosecutor dismissed the appeals against the decisions of 24 March and 15 September respectively. In identically reasoned decisions the Appellate Prosecutor found that the interests of the investigation could in some circumstances limit the defence rights of the accused. Therefore, in the present case the applicant should not be allowed to consult the file. In addition, in the decision of 2 November 2004 the prosecutor concluded:
“As regards the ECHR invoked by the [applicant] it should be noted that the overriding aim of the criminal proceedings is to establish all the circumstances in which the offence was committed and to find the perpetrators. It is a concrete aim and in achieving it the prosecutors and the courts aim at ensuring respect for the rule of law and the security of the State and its citizens. Therefore, it is not the intention of the Convention to disregard those rules by making the rights of the citizens who breached the laws absolute. A premature disclosure of the documents in the case-file could prevent the achievement of the aims of the proceedings...”
23. On 6 December 2004 the applicant's lawyer acquainted himself with the casefile. The applicant was allowed to consult the file between 6 and 14 December 2004.
24. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze).
25. A more detailed rendition of the relevant domestic law provisions is set out in the Court's judgments in Kudła v. Poland [GC], no. 30210/96, § 75, ECHR 2000XI and Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.
26. Article 156 § 5 of the Code concerns access to the file during investigation. It provides:
“Unless provided otherwise by law, during the preparatory proceedings parties, defence counsel, and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings. With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person.”
27. Article 313 § 3 provides as follows:
“Before a suspect is given notice of the date on which he can have access to the investigation materials, he may request an oral presentation of the grounds for the charges against him and the written reasons, on which he shall be advised. The written reasons shall be notified to the suspect and his counsel within 14 days.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-99873
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AZIM DENIZCILIK TICARET VE SANAYI LIMITED SIRKETI v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Azim Denizcilik Ticaret Ve Sanayi Limited Sirketi, is a Turkish company with its office in Ereğli-Zonguldak, Turkey. It was represented before the Court by Mr Y. Efe, a lawyer practising in EreğliZonguldak. The respondent Government were represented by Mr Y. Zaytsev, their Agent. The Turkish Government had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court).
The facts of the case, as submitted by the parties, may be summarised as follows.
At the material time the applicant company owned a ship, M/V Sevgin. On 28 November 2001 it was hired to carry goods of the Ukrainian Company V. from Izmayil, a Ukrainian port, to Bartin, a Turkish port. For this purpose on 13 December 2001 the applicant's ship arrived at Izmayil port. According to the applicant, the ship was damaged when mooring. After the cargo had been loaded on the ship, the independent inspectors revealed that the cargo had been damaged because of water leaking through a hole in the ship.
On 28 January 2002 the V. company instituted proceedings in the Izmayil Town Court (the “Town Court”) against the applicant, seeking compensation for the damaged cargo. On 31 January 2002, at V.'s request, the court impounded the applicant's ship to secure the claim.
In May 2002 the Town Court adjourned the hearings on two occasions due to the parties' failure to appear before it.
On 6 June 2002 the Town Court allowed V.'s claim and awarded it 981,187.59 Ukrainian hryvnyas (UAH) in damages and UAH 1,700 in costs and expenses. On 13 June 2002 the Town Court adopted a decision specifying that the judgment of 6 June 2002 could be enforced by way of selling the impounded ship. According to the applicant company, it was only notified about the proceedings at this stage.
On 19 June 2002 the State Bailiffs' Service instituted enforcement proceedings and on 21 June 2002 attached the applicant company's ship.
On 22 October 2002 the Odessa Regional Court of Appeal, ruling on the applicant company's appeal, upheld the judgment of 6 June 2002 but quashed the decision of 13 June 2002, which had been adopted in the absence of the parties. The matter was remitted back to the Town Court but it is not clear from the available documents whether any decision has been taken on it.
On 21 November 2002, at the end of the one-month time-limit for lodging of appeals against the court decisions mentioned in the preceding paragraph, the applicant company appealed in cassation.
On 25 November 2002 the Illichivskyy District Court of Odessa quashed the bailiffs' decisions of 19 and 21 June 2002, finding that the enforcement proceedings in the applicant company's case should have been carried out by the Turkish authorities in accordance with the relevant treaty between Ukraine and Turkey. It further ordered that the applicant company should not be prevented by anybody from using its ship. However, on 2 December 2002, when the crew attempted to board the ship, the bailiffs' officers barred them access.
On 28 December 2002, at the applicant company's request, the Prymorskyy District Court of Odessa prohibited the public sale of the applicant's ship. On 29 April 2003 the Odessa Regional Court of Appeal dismissed an appeal by the bailiffs against this decision.
On 22 May 2003 the Town Court, for the purposes of partial enforcement of the judgment of 6 June 2002, acknowledged V.'s property right over the disputed ship. On 9 June 2003 this decision was enforced.
On 21 July 2003 the General Prosecutor's Office informed the applicant that criminal proceedings had been instituted against the bailiffs' officials for abuse of powers.
On 18 May 2005 the Supreme Court allowed in part the applicant company's appeal in cassation and quashed the judgments of 6 June and 22 October 2002 as unfounded remitting the case to the Town Court for a fresh examination.
On 11 July 2005 the Town Court took over the case.
Between 12 August and 28 November 2005 four hearings were adjourned because of, inter alia, the applicant company's relevant requests.
On the last-mentioned date the applicant company counterclaimed, seeking damages from V. for the loss of its ship. It also requested to adjourn the hearing. For this reason, on 29 November 2005 the Town Court, having allowed the request, adjourned the hearing till 23 December 2005.
On 23 December 2005 the hearing was adjourned till 31 March 2006 due to the applicant company's failure to attend it as its representative was ill.
On 31 March 2006 the Town Court awarded V. damages in the amount of UAH 314,218.72 and rejected the applicant company's counterclaim as unsubstantiated.
On 27 April 2006 the applicant company appealed.
On 19 October 2006 the Odessa Regional Court of Appeal upheld the judgment.
On 19 December 2006, at the end of the two-month time-limit for lodging of appeals against the above court decisions, the applicant company appealed in cassation. It did not mention in its cassation appeal that it had not had sufficient time to prepare for the hearings of the case.
On 21 January 2008 the Kharkiv Regional Court of Appeal, acting as a court of cassation, dismissed the appeal and upheld the lower courts' decisions.


ITEMID: 001-85850
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ADAMEK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Sascha Adamek, is a German national who was born in 1968 and lives in Berlin. He was represented before the Court by Mr K. Baumeister, a lawyer practising in Berlin.
The applicant is a journalist who worked as a freelance with the Eastern German Broadcasting Service (Brandenburg), which broadcasted in May 1998 a television programme to which the applicant contributed as the author of a report. His contribution concerned allegations that the police in Potsdam, when calling towing services, gave preference to certain enterprises. In the report, the applicant filmed an entrepreneur who parked his towing service car near the motorway to wait for a message from the police radio in order to be able to get to the scene of an accident or breakdown in time. The report then referred to a recording from the police radio (Polizeifunk) from which it could be understood that the police gave preference to a certain towing service. The phrases “I have now talked to the citizen. He would be willing to become a member of [the towing service association] at the scene of the accident” were broadcasted and referred to in the report as a recording from the police radio.
On 11 October 1999, the Potsdam District Court convicted the applicant of a violation of section 95 read in conjunction with section 86 of the Telecommunications Act (see “Relevant domestic law” below) and sentenced him to a fine of approx. 450 Euros (EUR). The District Court found that the applicant had unlawfully communicated the excerpts which he had intercepted from the police radio. Section 95 of the Telecommunications Act served to protect radio emissions of public authorities which were not intended for the general public in order to preserve the functioning of those authorities. It was compatible with the purpose of that provision that it did not provide for any exceptions, and that the provision did not limit the protection to only those messages which were transmitted by the authorities in the course of the lawful exercise of their powers. The District Court also considered the possibility of applying the defences to the charge provided for by Articles 193 and 201 of the Criminal Code (see “Relevant domestic law” below). However, it reasoned that there had been no loophole in the regulations of the Telecommunications Act which would justify the analogous application of those provisions, in particular because the Telecommunications Act had been enacted after the Criminal Code had entered into force. It could therefore be assumed that the legislator had intentionally refrained from including similar provisions in that Act. When assessing the applicant’s sentence, the District Court took into account that the applicant had felt obliged as a journalist to report to the public illegal conduct by the police.
On 25 January 2000, the Potsdam Regional Court declared the applicant’s appeal inadmissible as manifestly ill-founded. The District Court had correctly decided that the applicant’s conduct had not been justified by a privilege in the Criminal Code. The Regional Court found that it had not been necessary to reproduce the excerpts from the police radio message in order to report on the shortcomings in question.
On 11 December 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It reasoned that there had been interference with the applicant’s freedom to report by means of broadcasting (Article 5 § 1 of the Basic Law, see “Relevant domestic law” below), despite the fact that the applicant had unlawfully intercepted the police radio. Article 5 of the Basic Law also protected the communication of unlawfully obtained information which could be of significant interest to the general public, for example in cases of shortcomings on the part of the authorities. The interference was however justified under Article 5 § 2 of the Basic Law. Article 95 read in conjunction with section 86 of the Telecommunications Act laid down with sufficient precision the conditions for the applicant’s conviction. These norms were not rendered disproportionate by the fact that the protection of the information could have been achieved by less severe means (such as coding the police radio messages) than a general prohibition on their communication. The Federal Constitutional Court considered such technical means to be less efficient because their effect was more limited.
The application of those norms and the balancing of the competing interests in the present case by the ordinary courts were not objectionable from a constitutional point of view. The Regional Court had considered the importance of the secrecy of the police radio communications and decided that that deserved priority over the interest of the general public in the present case, in particular because the applicant could have reported on the shortcomings in a different manner. The freedom of the press included the right of journalists to decide in which manner information was presented to the public. However, if that manner was in conflict with other interests protected by the law, the ordinary courts could legitimately balance the consequences of the communication of secret information on the one hand, and the consequences of the prohibition for journalists to communicate such information on the other. The Federal Constitutional Court stressed that the Regional Court’s interpretation of the Telecommunications Act was not that the information should have been suppressed, but that restrictions applied to the manner in which it could be presented. Therefore, the norms in the Telecommunications Act did not prevent journalists from reporting shortcomings to the public as such.
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
(...)
Interception by means of radio equipment of messages not intended for the radio equipment shall not be permitted. The content of such messages and the fact of their reception may not, even where reception has been unintentional, be communicated to other parties, even by persons who are not already committed to secrecy under section 85 of this Act. (...) The right to receive radio emissions intended for the general public or an unspecified group of persons as well as the interception and retransmission of messages by virtue of special legal authorisation shall remain unaffected.
A person who, in contravention of section 86 of this Act, intercepts a message or communicates to a third party any message content or the fact of reception thereof shall be liable to a term of imprisonment not exceeding two years or to a fine.
Article 193 of the Criminal Code provides for a defence (Rechtfertigungsgrund) to a charge of insult. According to that provision, critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests as well as official reports or judgments by civil servants and similar cases are only punishable to the extent that the existence of an insult results from the form of the utterance or the circumstances under which it occurred.
Article 201 of the Criminal Code provides for the offence of the violation of the confidentiality of the spoken word, but makes an exception if the public communication was made for the purpose of safeguarding preeminent public interests.


ITEMID: 001-97494
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: VALQUIST v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Lars Valquist, is a Swedish national who was born in 1956 and lives in Staffanstorp.
2. On 12 November 2007 the applicant sent an e-mail to the headquarters of the Swedish Armed Forces (Försvarsmakten) in which he requested access to all information about him held by the Armed Forces. He was convinced that the Armed Forces had information about him as he claimed that he had been under surveillance since the early 1980s, when he had given a tip about a person to them and he had later turned down an offer to work for them. He alleged that he had, inter alia, been the victim of telephone tapping, camera surveillance, invasion of his correspondence, intrusion into his home, bugging and monitoring of his computer, e-mail and Internet as well as of involuntary medication. As the applicant now wished to initiate proceedings against the Swedish State for illegal surveillance and harassment in order to obtain compensation, he needed all the information about him kept by the Armed Forces to prove his case.
3. On 7 December 2007 the Armed Forces granted his request as concerned four official documents, namely three e-mails and one print-out from the Armed Forces' register, which all concerned the applicant's present request. As concerned eight other internal documents, which had also been created as a result of the applicant's request, the Armed Forces rejected the request on the ground that these documents had not yet been dispatched (expedierade). As the documents related to a case which was not yet finalised, they were not considered to have been created within the meaning of the Freedom of the Press Act (Tryckfrihetsförordningen, 1949:105 –hereafter “the 1949 Act”) and, consequently, they had not yet become official. Thus, the applicant could not obtain access to them. Lastly, the Armed Forces noted that most information held by the Armed Forces about individuals was not secret in relation to the person it concerned. However, certain information could be confidential under the Secrecy Act (Sekretesslagen, 1980:100), such as information relating to national security. In this respect, it could be harmful to national security to inform a person that the Armed Forces either had or did not have information about him or her. For this reason, it rejected the remainder of the applicant's request about whether or not there existed any more information about him.
4. The applicant appealed against the decision to the Administrative Court of Appeal (kammarrätten) in Stockholm. On 28 February 2008, after having visited the Armed Forces' headquarters and examined the files, the appellate court upheld the Armed Forces' decision in full.
5. Upon further appeal, the Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 23 April 2008.
6. Chapter 2, section 1, of the 1949 Act stipulates that every Swedish citizen shall be entitled to free access to official documents in order to encourage the free exchange of opinion and the availability of comprehensive information. However, according to Chapter 2, section 2, of the 1949 Act, the right of access to official documents may be restricted in specific circumstances, such as if the restriction is necessary having regard to the security of the State or its relations with another State or an international organisation. Any restriction on the right of access to official documents must be carefully specified in a special law, or if more appropriate in a particular situation, in another law to which the special law refers (Chapter 2, section 2, paragraph 2).
7. Moreover, Chapter 2, section 3, of the 1949 Act stipulates that a document is considered to be official if it is kept by a public authority and if it can be deemed to have been received or created by a public authority (Chapter 2, section 3). In this respect, Chapter 2, section 7, of the 1949 Act states that a document is deemed to have been created by a public authority when it has been dispatched. A document which has not been dispatched is considered to have been created when the matter to which it relates has been finally settled by the authority or, if the document does not relate to a specific matter, when it has been finally checked and approved by the authority, or has otherwise received final form.
8. According to Chapter 2, section 2, of the Secrecy Act, as in force at the relevant time, information which related to activities to defend the country or planning or preparing such activities or otherwise related to the Armed Forces was secret if the disclosure of such information was likely to harm the country's defence or otherwise endanger national security.


ITEMID: 001-93984
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: A.D. 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 is a British national, born in 1976 and who, at the time of submitting his application, was imprisoned in the United Kingdom. He was represented before the Court by Bhatt Murphy, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Helen Upton, Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 December 1993 the applicant, along with three adult codefendants, was convicted of the murder of a 16 year old girl, who had been held captive and tortured for a week before being killed. Being under the age of 18 at the time of the offence, the applicant was sentenced to be detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933. Following his conviction the applicant applied for leave to appeal. On 3 May 1994 leave to appeal was refused by the Court of Appeal. This decision was affirmed by the full court on 3 November 1994.
In his report dated 13 January 1994, the trial judge acknowledged that the applicant, who was much younger, had been corrupted by his co-defendants, but found nonetheless that he had played an active part in the torture and the killing. Having recommended a tariff of 25 years for the three adult co-defendants, he recommended that detention for a period of 18 years was necessary in the applicant’s case to meet the requirements of retribution and deterrence for the offence. On 17 January 1994 the Lord Chief Justice agreed with this recommendation, in view of the exceptional gravity of the case. The Secretary of State accepted the proposal and set the tariff which was to be applied in the applicant’s case at 18 years.
Following the Court’s judgments in T. v. the United Kingdom [GC], no. 24724/94 and V. v. the United Kingdom [GC], no. 24888/94, both ECHR 1999-IX, which held that the setting of a tariff for a juvenile detained at Her Majesty’s pleasure was a sentencing exercise that engaged Article 6 § 1 of the Convention and therefore should not be done by ministers, the Secretary of State announced to Parliament on 13 March 2000 that he would bring forward legislation to provide for tariffs to be set by the trial judge in open court, in the same way as they were already being set for adults subject to discretionary life sentences. For juveniles still in detention who had had their tariffs set by the Secretary of State, a transitional scheme would be put in place, under which the Lord Chief Justice would review each case in the light of written representations from the detainee, and make a recommendation regarding the tariff, which the Secretary of State would adopt.
On 11 August 2000 the applicant’s solicitors made representations to the Secretary of State to enable his tariff to be reconsidered by the Lord Chief Justice. It was submitted that the “welfare principle” had never been considered or applied in the setting of the applicant’s original tariff of 18 years, that a tariff of that length was excessive, that it was appropriate to allow a substantial discount in tariff to compensate for the lack of periodic review and that in the applicant’s case it should be set at 12 years. Should this not be accepted, the applicant’s solicitors requested an oral hearing of the case, relying on Article 6 of the Convention and the Court’s case law.
On 27 July 2000 the Lord Chief Justice issued a Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655), in which he explained the procedure that he proposed to follow when he was undertaking a fresh review of tariffs for persons, such as the applicant, sentenced as juveniles and currently detained at Her Majesty’s pleasure, as well as in fresh cases pending the necessary change in the law:
“Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainees’ legal advisers and also from the Director of Public Prosecutions who may include representations on behalf of victims’ families. ...
Before the first such cases are put before me to make a recommendation to the Home Secretary, it is appropriate for the general principles which will guide me in recommending tariffs to be made public. This is because it is right that the process by which tariffs are set should be open to public scrutiny. When making recommendations to the Home Secretary in such cases, I will announce my reasons in open court after taking into account any written representations I receive.”
No mention was made in this Practice Statement of any provision for the making of oral submissions to the Lord Chief Justice before he made his recommendation to the Home Secretary. On 2 July 2001 the applicant’s solicitors wrote to the Secretary of State, noting with concern that no decision had yet been made in respect of the applicant’s tariff. They said that the delay was adversely affecting the applicant’s progress through the prison system and had direct implications for his potential future release on licence. They asked for confirmation that a decision would be forthcoming immediately, reserving the right to issue proceedings if they did not receive a reply within 21 days.
On 14 August 2001 the Secretary of State sent a memorandum to the applicant stating that the Lord Chief Justice had decided to consider representations from the Crown Prosecution Service on behalf of the victim’s family and enclosing copies of the documents from the Crown Prosecution Service and prison reports that would be before him when he considered the tariff. The applicant was informed that any comments that he or his legal representatives might have on this material or on a report covering his most recent period of imprisonment were to be sent to the Secretary of State within two months.
On 9 November 2001 the applicant’s solicitors submitted further representations to the Secretary of State, including comments on the material appended to the above memorandum, for inclusion with the papers for the Lord Chief Justice. Reference was made to the detailed representations which had previously been made on his behalf and it was again submitted that a tariff period of 12 years was appropriate in his case.
On 29 January 2002 the Lord Chief Justice delivered his decision on the applicant’s tariff and his reason for it in open court. He concluded his statement with these words:
“Although I do not question the tariff which was set, [A.D.] has made significant progress in detention and it is possible to recognise this by reducing the tariff to 16 years.”
On 20 March 2002 the applicant was given a copy of a transcript of this decision and informed that the Secretary of State had accepted the Lord Chief Justice’s recommendation.
On 28 March 2002 the applicant’s solicitors wrote to the Secretary of State expressing their concern at the fact that the issues which they had identified in their representations, concerning in particular the need to take account of future welfare, had not been addressed. No mention was made in this letter of the request that had been made in the original representations for an oral hearing in the event that the applicant’s tariff was not fixed at 12 years. They submitted further representations on the applicant’s behalf on 24 June 2002. By a letter dated 23 August 2002 they were informed that these representations had been rejected.
On 30 October 2002 the applicant was given permission to seek judicial review of the Secretary of State’s decision. It was contended that, in accordance with Article 6 § 1 of the Convention, the applicant was entitled to an oral hearing before his tariff was set and that the advice which had been given to the Secretary of State was defective in that the Lord Chief Justice had failed to have regard to the applicant’s welfare when deciding on the appropriate tariff. There does not appear to have been any complaint under Articles 6 and 14 of the Convention taken together concerning the differences in the procedure applied to adults and juveniles convicted of murder.
On 21 November the Divisional Court held that the Lord Chief Justice had been under no obligation to afford the applicant an oral hearing and, alternatively, that, if he was entitled to an oral hearing, he had waived that entitlement: [2003] EWHC 2797 (Admin). The court also held that the Lord Chief Justice had paid due regard to the applicant’s welfare.
On 11 February 2004 the Court of Appeal, having heard the applicant’s appeal against the decision of the Divisional Court together with an appeal by the Secretary of State in the case of another prisoner detained at Her Majesty’s pleasure, dismissed his appeal: R (Smith) v Secretary of State for the Home Department [2004] EWCA Civ 99. It concluded that the applicant had not waived any right to an oral hearing, but that there was no such right.
The applicant was granted leave to appeal to the House of Lords. In a judgment delivered on 28 July 2005 ([2005] UKHL 52), the House of Lords dismissed the appeal.
Lord Bingham observed that the procedure at issue was no ordinary sentencing exercise. It was procedurally unique, and more closely analogous to an appeal than to a first-instance decision. The applicant’s solicitors had been able to put his case to the Lord Chief Justice and to respond to any adverse points. The Lord Chief Justice could have held a hearing had he deemed it necessary, but if this would not contribute anything of value to the procedure then there were strong administrative reasons not to do so.
Lord Hope observed, first, that the applicant had had a fair and public hearing at his trial. The proceedings now under scrutiny were part of a transitional scheme. This did not involve trying new facts. Rather, the task of the Lord Chief Justice was to decide where on the scale to put the applicant, in light of the going rate for the setting of tariffs for adult murderers, the age of the applicant at the time of the murder, and his progress in custody. It was a highly unusual process that could best be described as one of review. Most of the relevant issues had already been determined before the case came before the Lord Chief Justice, in particular the applicant’s part in the murder. The recommendations of the trial judge and the then Lord Chief Justice, which were based on the evidence led in public at the trial, could not be ignored. The object of the procedure was:
“to review the appellant’s behaviour after conviction, the reports of those who had been responsible for his case at HMP Wandsworth and the representations that had been received from the victim’s family. He also had to review the representations that had been received from the appellant’s solicitors. But it is important to note that he was not being required to make findings of fact based on this material. What he was being required to do was to make an assessment of the extent to which an adjustment of the tariff was needed in the light of these further factors.”
He attached particular importance to the fact that the applicant was not seeking to appear personally before the Lord Chief Justice, but simply requesting that his lawyers be allowed to present their arguments on his behalf orally. Since they had already been given ample opportunity to make their case in writing, he considered it unlikely that an oral hearing would have added anything. All the signs were that it would have been a formality.
In Lord Hope’s view, although the procedure could have been conducted by a High Court judge, there was good reason to entrust the task to the Lord Chief Justice, whose role was to ensure fairness and consistency in the fixing of the minimum periods that life prisoners must serve. He continued:
“The magnitude of the task that he was being asked to perform must not be underestimated. This was [...] a very substantial burden, to be performed in addition to his existing heavy judicial duties as Lord Chief Justice. He had to have regard to the public interest as well as the interests of each detainee, and he had to have regard to the requirement that this exercise had to be carried out within a reasonable time as article 6(1) of the Convention requires. There is no doubt that if he had undertaken to conduct each one of these proceedings orally it would greatly have enlarged his task, and inevitably it would have caused much delay.”
As all the relevant material had been disclosed to the applicant’s lawyers, and sufficient opportunity had been given to make written representations, it had not been shown what good purpose would be served by an oral hearing. The Lord Chief Justice could in any event allow this if he felt it to be necessary. Finally, the public nature of the procedure was ensured by the fact that it was based on a published practice statement, and in every case the Lord Chief Justice personally delivered his decision on the tariff in open court.
The provisions relating to juveniles detained “during Her Majesty’s pleasure” at the time of the applicant’s conviction are set out in T. v. the United Kingdom, cited above, §§ 33-42.
All persons detained on this basis who were sentenced prior to 30 November 2000 became entitled to a fresh review of their tariffs as detailed in Part A above. All such persons who were sentenced on or after 20 November 2000 had their tariff fixed by the trial judge, with an appeal against the tariff period to the Court of Appeal: section 60 of the Criminal Justice and Court Services Act 2000, which inserted section 82A into the Powers of Criminal Court (Sentencing) Act 2000. The current statutory basis for setting of minimum terms of imprisonment for cases of murder is the Criminal Justice Act 2003 (sections 269-277 and Schedules 21 and 22).


ITEMID: 001-75307
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHACOLAS v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1927 and lives in Nicosia.
10. The applicant, a businessman, was the defendant in an action filed against him before the District Court if Nicosia on 23 January 1986 by the Federal Bank of Lebanon (civil action no. 747/86). The plaintiff bank sued the applicant in his capacity as guarantor of a Greek company, Hellas Eurotrade Ltd.
11. The facts leading to the action had taken place between 1975 and 1977 in a number of countries, including Cyprus, Lebanon, Nigeria, France and Greece.
12. Hellas Eurotrade Ltd had been established in 1975 and had three shareholders: the applicant who held 40% of the shares and three other individuals that held the remaining shares in equal parts. The company had been set up for the purposes of performing a contract between another company, World Tide Shipping Corporation, and the Nigerian Defence Ministry for the provision of 240,000 metric tons of cement to the latter. The Nigerian Central Bank had opened a letter of credit for this purpose, issued by a French bank- Banque Nationale de Paris. The obligations and the rights deriving from the contract and the letter of credit were transferred and/or assigned to Hellas Eurotrade Ltd in 1975. The plaintiff bank had undertaken to act as guarantor of the above-mentioned company for the delivery of the cement and the fulfilment of the obligations connected thereto and to provide banking and exchange facilities regarding the above obligation against personal guarantees, including that of the applicant. The action had been based on differences that arose between the plaintiff bank and the applicant from the performance of the obligation for delivery of cement to the Nigerian Government.
13. On 17 December 1977 the plaintiff bank addressed a letter to the Bank of Cyprus Ltd in Nicosia, together with two bills of exchange, one for 465,915.82 US dollars (USD) and the other for USD 300,000, with instructions that they be presented to the applicant for acceptance and payment. The applicant filed a civil action (no. 5746/77) before the District Court of Nicosia. On 29 December 1977 the court declared the two bills void ab initio and without any legal effect.
14. Consequently, on 29 November 1985 the plaintiff bank filed a civil action before the District Court of Nicosia (action no. 11078/85) against the applicant in his capacity as guarantor of the above-mentioned company. However, this action was discontinued and withdrawn by the plaintiff on 9 January 1986.
15. The plaintiff bank then filed civil action no. 747/86 against the applicant claiming an amount of USD 598,729 plus compound interest, the performance of accounts as to the sums which the company had received from the Nigerian Government and a court order for the payment of an amount equivalent to 1% of the received sum which in total exceeded USD 18,881.562 plus interest. On account of the Limitation of Actions Law, Cap. 115, the filing of the action would have been outside the limitation periods prescribed by the said law. However the Law of Suspension of Limitation of Actions (no. 57/64 of 1964) had suspended the laws of limitations in Cyprus.
16. The action was filed on 23 January 1986 by way of writ of summons.
17. The appearance was filed on 25 February 1986 and the statement of claim was filed on 13 May 1986.
18. On 28 May 1986 the applicant filed an application for security of costs which was granted on 11 June 1986 by consent.
19. Between the above date and 2 October 1987, the applicant filed his defence and the court dealt with four applications by the parties. The plaintiff applied twice for extension of time for the purpose of filing its reply (applications that he later withdrew) and also filed an application for amendment of pleadings. The applicant filed an application for discovery of documents. In this period the case was adjourned five times - twice at the parties’ request and three times at the plaintiff’s request with the applicant’s consent.
20. On 2 October 1987 the plaintiff filed an application to exclude one of the applicant’s advocates. The hearing of this application was adjourned twice, once by the court and once at the plaintiff’s request with the applicant’s consent. The hearing was held on 30 April 1988 and on 30 July 1988 the application was dismissed. On 30 July 1988 the plaintiff filed civil appeal no. 7702 against this ruling (see paragraphs 54-57 below).
21. In the meantime, on 19 October 1987 the amended writ of summons was filed. The plaintiff filed an application on 7 November 1987 for an extension for filing the amended statement of claim. This was granted the same day and the statement of claim was filed one month later. On 28 January 1988 the applicant filed an application for an extension for submitting his defence and on 5 April 1988 he submitted a second application for the same reasons. On 28 June 1988 the applicant filed his defence and counterclaim.
22. On 10 October 1988 the plaintiff filed an application to strike out the applicant’s counterclaim. Following the filing of the applicant’s opposition the application was fixed for hearing for 27 October 1988 but was then adjourned by the court until 24 November 1988. The hearing took place on 3 December 1988 and on 11 January 1989 the court granted the application striking the counterclaim out of the action. On 22 January 1989 the applicant filed civil appeal no. 7804 against this ruling (see paragraphs 58-63 below).
23. From 9 October 1989 until 2 March 1990 the court dealt with two applications. Firstly, it dealt with an application filed by the plaintiff to strike out the applicant’s defence. The applicant had been granted two extensions of time for filing his opposition to this application. Secondly, the court dealt with an application filed on 17 November 1989 by the applicant to stay the proceedings. As a result the hearing of the first application was adjourned twice, once by the court and once at the parties’ suggestion that the application be heard after determination of the applicant’s application for stay of the proceedings. When the latter application was dismissed on 16 February 1990, on 22 February 1990 the court fixed the plaintiff’s application for hearing for 2 March 1990 and on that date with an ex tempore ruling it dismissed the application. On 15 March 1990 the plaintiff filed civil appeal no. 8076 against this decision (see paragraphs 64-67 below).
24. On 21 April 1992 the Supreme Court delivered its judgment in appeal no. 7804 and the plaintiff withdrew appeal no. 8076.
25. On 7 May 1992 the case was fixed for mention for 27 May 1992 by the court, ex proprio motu. The case was adjourned at the applicant’s request with the plaintiff’s agreement until 10 June 1992.
26. In the meantime, on 22 May 1992 the plaintiff withdrew appeal no. 7702. Further, on 27 May 1992 the applicant filed another application to stay the proceedings before the district court until the determination of an application which he had filed before the European Commission of Human Rights (application no. 20492/92) complaining that as a result of the domestic courts’ decision to not examine his counterclaim he had been deprived of his right to a fair trial. The plaintiff filed an objection to this application on 9 June 1992. On 6 July 1992 the hearing of the application was adjourned by the court because the case-file could not be traced. The application was heard on 16 September 1992. On 22 September 1992 the district court dismissed the application.
27. In the intervening time, on 10 June 1992, the main action was fixed for hearing for 11 November 1992. However, on 19 October 1992, the parties jointly applied for the adjournment of the hearing. The court directed the parties that if until 18 December 1992 no application for fixing a hearing was filed, the case file would be brought before the court for directions.
28. Meanwhile, on 6 October 1992 the applicant filed an application for discovery of documents. Following one adjournment to allow service of the application, the case was fixed for 16 October 1992 and then for 11 January 1993 at the parties’ request. In the meantime, on 15 December 1992 the plaintiff had also filed an application for discovery. This was also fixed for 11 January 1993. On that date, at the parties’ request, the applications were fixed for 25 January 1993. On 4 February 1993 the district court issued the relevant orders, and the parties complied with them on 12 April 1993.
29. Within the same period, on 18 December 1992 the plaintiff had filed an ex parte application for extension of time for filing the reply. The application was granted the same day and on 14 January 1993 the plaintiff filed its reply.
30. On 20 September 1993 the plaintiff applied for the main action to be fixed for hearing. It was fixed for mention for 18 October 1993 and then adjourned at the parties’ request to complete the discovery procedure until 16 December 1993. On that date the case was adjourned for the same reasons on the joint request of the parties until 31 January 1994, with discovery to be completed by 28 January 1994.
31. On 31 January 1994, the case was fixed for 23 May 1994 in view of the fact that discovery had not been completed yet. In the meantime, on 18 March 1994, the applicant requested an extension for the purposes of discovery and this was granted on 24 March 1994.
32. On 23 May 1994 the hearing was adjourned following a written request by the parties. The parties requested that the hearing start after the summer holidays. The hearing was adjourned until 14 October 1994 and then until 14 February 1995 at the parties’ request.
33. One day before, on 13 February 1995 the applicant filed an application to have the action dismissed. The application was based, inter alia, on the Cypriot Rules of Civil Procedure, Articles 30, 33, 34 and 35 of the Cypriot Constitution and Articles 6, 13 and 14 of the European Convention on Human Rights. The applicant complained that there had been an inordinate delay both in the filing of the action by the plaintiff and in the hearing of the case. As a result he claimed that deciding the issue of delay at a later stage would infringe the relevant Constitutional and Convention provisions and deprive him of his right to a fair hearing within a reasonable time. The applicant maintained that the continuation of the proceedings would be vexatious and would constitute an abuse of the process of the court. In this context, he requested the court to consider the delay on the part of the plaintiffs in filing the action and the fact that, according to the Limitation of Actions Law (Cap. 115) the action would have been statute-barred several years before its filing, had the operation of this Law not been suspended by the Law of Suspension of Limitation of Actions (no. 57/64 of 1964), the constitutionality of which was challenged. Further, he noted that he had suffered damage because of the protracted length of the proceedings. In this connection he alleged, among other things, that important witnesses had died and that he would not be able to initiate compensation proceedings since one of the co-guarantors had died and Hellas Eurotrade Ltd had been dissolved.
34. On 14 February 1995 the hearing of the main action was adjourned with the plaintiff’s consent, so that the above application would be heard first. The court fixed the application for hearing for 14 and 16 March 1995. From 14 March 1995 until 5 April 1995, four hearing sessions were held and the decision was reserved on the latter date. On 1 August 1995 the district court rejected the application. It noted amongst others that it had not been argued that the action itself and its continuation were frivolous or vexatious and thus, under the applicable rules, the application could not be dismissed on that ground. Furthermore, it concluded that the delays in the proceedings –amounting to five and nine months- were not significant and did have any adverse effects on the applicant so as to justify the dismissal of the action. On the contrary it was more likely that the delays in the presentation of oral and/or written evidence caused prejudice to the plaintiffs who had the burden of proof in the action. Finally, the Supreme Court found that, in line with its jurisprudence, the Law of Suspension of Limitation of Actions was constitutional.
35. On 9 August 1995 the applicant lodged civil appeal no. 9520 against this decision (see paragraphs 68-74 below).
36. On 3 October 1995 the case was fixed before the court. On that date the applicant requested the stay of the main proceedings before the district court pending the determination his appeal. The district court noted that it was well established in the Supreme Court’s case-law that piecemeal appeals could not constitute a valid reason for delaying or adjourning the main proceedings and rejected the applicant’s request. The court fixed the main action for hearing for 4 March 1996.
37. On 4 March 1996 the applicant applied for an adjournment of the hearing pending the determination of his appeal but this was rejected. The hearing thus began on that date with Kronides J and four hearing sessions were held until 8 March 1996. The hearing was then set for 20 March 1996 but was then adjourned until 25 April 1996 at the parties’ request for the purposes of discovery. From that date until 1 July 1996 the hearing was adjourned four times by the court itself in view of the fact that the presiding judge had been promoted to the Supreme Court. On 1 July 1996 the hearing was set for 16 October 1996 to take place de novo.
38. The hearing was however adjourned once at the plaintiff’s request with the applicant’s consent and once by the court due to the enactment of an amendment to the Courts of Justice Law 1960 (Law no. 14/60) abolishing full courts. On 5 December 1996 the hearing was set for 12 February 1997. Following a one-day adjournment by the court and one adjournment at the plaintiff’s request, with no objection on the applicant’s part, the hearing was fixed for 8 May 1997 before Kramvis J, the new President of the District Court.
39. On 8 May 1997 the hearing commenced and from that date until 15 July 1997 nineteen hearing sessions were held.
40. On 17 July 1997 the plaintiff applied for an adjournment which was accepted by the applicant. The case was fixed for 3 September 1997 and then for hearing for 7 September 1997 with continuing hearing sessions to be held.
41. On 8 July 1997 the plaintiffs applied for an order of inspection of documents in the applicant’s possession. The application was fixed for hearing for 11 September 1997 and then 12 September 1997. Following an application by the applicant for an extension to file his opposition it was set for 7 October 1997. On 15 October 1997 the case was assigned to the newly appointed President of the District Court, Clerides J. The applicant filed his objection to the application on 20 November 1997 and the hearing was held on 21 November 1997. On the latter date the application was dismissed in view of the parties’ failure to appear before the court.
42. On 15 December 1997 the President of the District Court fixed the main action for directions for 23 January 1998 and for hearing on 9 and 10 March 1998. The plaintiff requested that the case be heard in March and the applicants accepted.
43. In the meantime, on 22 December 1997, the plaintiffs filed a new application for the inspection of documents, to which the applicant filed an objection on 23 February 1998, following the grant of an extension for its submission. The hearing of the application commenced on 25 February 1998 and four hearing sessions were held on the dates that had been scheduled for the hearing of the main action. The hearing of the application was completed on 8 April 1998 and the application was granted on 5 May 1998.
44. In the intervening time, on 6 March 1998 the plaintiffs filed an application to amend their statement of claim for the second time. The case was fixed for directions for 11 March 1998 and then 30 March 1998, the applicant’s opposition to be filed within this period.
45. On 9 March 1998 the plaintiffs filed an application to allow the continuation of the hearing from where it had been left with the previous President of the District Court. This application was also fixed for 30 March 1998. From that date onwards both applications were considered together. They were fixed for 15 April 1998 with directions for filing opposition. On that date the applicant applied for an extension of time for the filing of his opposition and the applications were fixed for 5 May 1998. On the latter date the hearing was adjourned since the file of the case was transferred to the Supreme Court for the hearing of civil appeal no. 9520, and the applications were fixed for 11 May 1998. On this date the presiding judge requested that no more delays take place. Following another application by the applicant for an extension of time for the filing of his opposition the applications were fixed for hearing for 24 June 1998. On that date the hearing of the first application was fixed for 1 July 1998 whereas the second application was withdrawn. The hearing of the first application took place on 1 July 1998 and on 6 October 1998 it was rejected. On 15 March 1998, the plaintiff lodged civil appeal no. 10341 against the district court’s ruling.
46. Due to the above applications, the hearing of the action which had been fixed for 9 March 1998 was adjourned until 24 June 1998 and then re-adjourned until 15 September 1998. In the interim, on 7 July 1998, the Supreme Court delivered its judgment in appeal no. 9520.
47. On 15 September 1998 the hearing of the main action was scheduled for 21, 22, 25, 26, 27 and 28 January 1999. On 19 January 1999, the Supreme Court issued judgment in appeal no. 10341 reversing the district court’s ruling and granting the plaintiff’s application for amendment. The hearing of the main action was then rescheduled for 29, 30, 31 March and 6 and 7 April 1999.
48. In the meantime the parties submitted their amended pleadings and on 23 March 1999 the applicant filed an application for amendment of his statement of defence which was fixed for 29 March 1999. On that date the application was granted with the plaintiff’s consent. The main action was then re-scheduled for hearing for 31 March 1999. On that date the court fixed the hearing for 6 April 1999 following a joint request by the parties.
49. On 6 April 1999 the hearing of the main action commenced. Between that date and 17 October 2000 approximately twenty-five hearing sessions were held for the examination of the plaintiff’s first witness. Within this period three adjournments took place, two due to the ill-health of the parties’ representatives and one following an application by the applicant for another stay of the proceedings pending the transcription of the records of the previous hearings that had been conducted before the full court and subsequently before the one presiding judge.
50. The cross-examination of the above witness started on 17 October 2000 and continued until 12 September 2001. Approximately thirty-one hearing sessions were held. In this period the hearings were adjourned approximately six times: three times at the plaintiff’s request, one at the applicant’s due to the ill-health of his lawyer and two by the court.
51. From 26 September 2001 until 27 May 2003 they were approximately one hundred and twenty-three sittings for the examination and cross-examination of eleven witnesses, including the applicant. Within this period the applicant filed an application for the amendment of his defence and an application for the withdrawal of his lawyer from the case.
52. From 3 July 2003 until 13 August 2003 the parties’ addressed the court. There were twenty-two sittings in this respect. The court reserved its judgment on the latter date.
53. On 15 September 2005 the district court delivered its judgment dismissing the action and awarding costs in favour of the applicant.
54. On 30 July 1988 the plaintiff filed appeal (civil appeal no. 7702) against the ruling of the district court dismissing its application for the exclusion of one of the applicant’s lawyers.
55. On 29 August 1988 the District Court Registrar forwarded the notice of appeal to the Chief Registrar of the Supreme Court and notified him that the record was being prepared. On 7 September 1988 the Chief Registrar sent a notice to the plaintiff to submit the prescribed fee for the preparation of the record so that the appeal could be fixed for hearing.
56. The file of the proceedings was forwarded to the Supreme Court on 27 September 1988 and on 24 November 1988 the plaintiff wrote to the Supreme Court registry requesting that the appeal be fixed for hearing. On 5 September 1991 the appeal was fixed for hearing on 19 November 1991 together with civil appeals nos. 7804 and 8076. On that date the Supreme Court directed that the hearing in the appeal would take place after the completion of the hearing in appeal no. 7804.
57. On 21 April 1992, following the judgment in appeal no. 7804, on the plaintiff’s request the appeal was fixed for directions for 14 May 1992 and then 15 May 1992. On the latter date the plaintiff requested an adjournment and then withdrew the appeal on 22 May 1992.
58. On 22 January 1989 the applicant filed civil appeal no. 7804 against the district court’s decision ordering the exclusion of the counterclaim from the action.
59. On 7 March 1989 the applicant applied to the Registrar to fix a hearing date.
60. On 29 November 1989 the Registrar advised the parties that the appeal was fixed for hearing for 22 February 1990. On the latter date a member of the bench exempted himself from hearing the appeal and the Registrar was directed to make arrangements for the case to be assigned to a different bench. The Chief Registrar gave notice to the parties that the appeal was fixed for hearing on 26 April 1990.
61. On 12 April 1990 the applicant applied with the plaintiff’s consent for an adjournment of the hearing. The appeal was adjourned sine die and the Registrar was directed to fix it as soon as possible. The hearing was fixed for 19 November 1991.
62. The hearing commenced on the latter date and continued on 13 and 17 January 1992. Judgment was reserved on the latter date.
63. On 21 April 1992 the appeal was dismissed.
64. On 15 March 1990 the plaintiff filed civil appeal no. 8076 against the district court’s decision for dismissal of its application to strike out the defence in the main action.
65. The notice of appeal was forwarded by the District Court Registrar to the Supreme Court and on 28 March 1990 the plaintiff was notified to submit the prescribed fee for preparation of the records.
66. On 19 November 1991 the appeal was fixed together with appeals nos. 7702 and 7804.
67. On 21 April 1992, following the judgment in appeal no. 7804, in view of the outcome of the appeal, the plaintiff sought leave to withdraw the appeal. Leave was granted and no costs were claimed by the applicant.
68. On 9 August 1995 the applicant filed appeal no. 9520 against the district court’s ruling of 1 August 1995 rejecting his application to have the action dismissed due to the delay in the proceedings.
69. On 10 April 1997 the appeal was fixed for preliminary hearing on 22 May 1997. On that date it was adjourned by the court for 27 June 1997 due to the ill-health of one of the judges.
70. Due to the fact that the typed record of the proceedings had only been received on 26 June 1997, the preliminary hearing was set for 17 July 1997.
71. On 17 July 1997 the court gave directions to the parties for the submission of their outline addresses and instructed the Registrar to fix a hearing date.
72. On 4 November 1997 the Registrar fixed the hearing for 28 January 1998. On the latter date the President of the Supreme Court exempted himself from the proceedings.
73. On 2 February 1998 the applicant applied in writing to the Chief Registrar of the Supreme Court to fix a hearing date before the full bench in view of the important issues raised in the appeal. On 11 February 1998 the plaintiff addressed a letter to the Chief Registrar objecting to this. On 18 February 1998 a hearing was fixed on this issue for 6 April 1998. The hearing was conducted on that day and on 15 April 1998 the Supreme Court rejected the applicant’s application. The hearing of the appeal was then fixed for 5 May 1998.
74. Judgment was given on 7 July 1998 and the appeal was partly upheld. In its judgment the Supreme Court considered that the fairness of the proceedings ought to be considered with, and as part of, the proceedings relating to the action itself. It concluded that the district court should not have considered the applicant’s allegations within the context of an interim application but within the framework of the trial taken as a whole. Only in the latter context would it be possible to determine whether or not the trial had been fair. The protection of rights aimed at securing a fair trial and not hampering it. The Supreme Court further rejected the contention that the Law of Suspension of Limitation of Actions which permitted the filing of an action without any time limitation was unconstitutional as decided in its judgment in the case of Michael Paporis v. the National Bank of Greece (civil appeal no. 6897, judgment of 18 December 1986). Accordingly, the Supreme Court ordered the proceedings to be continued and the hearing of the action to be fixed as soon as possible.
75. On 15 March 1998 the plaintiff filed civil appeal no. 10341 against the district court’s decision for dismissal of its application for amendment of its statement of claim. The Supreme Court fixed the appeal for hearing for 15 November 1998. The hearing was held on that day and judgment was delivered on 1 January 1999 upholding the appeal.
76. In its judgment of 15 September 2005 the district court firstly dealt with the applicant’s claims before it concerning the violation of his right under the Cypriot Constitution and the Convention for a fair trial within reasonable time. In this context the court examined the responsibility of the parties and the courts in the delay of the proceedings as well as other factors that the applicant alleged contributed to the delay.
77. In sum, the court found that the parties had caused serious delays to the commencement and the smooth running of the proceedings. The parties’ non-timely observance of the rules or directions of the court, the submission of applications for adjournments and the bombardment of all kinds of interlocutory proceedings and appeals were the principal cause for the delay and perpetuation of the proceedings. The court noted that the defendant (applicant) had not complied with set deadlines and had repeatedly sought the stay of the proceedings. The plaintiff bank had contributed to the overall prolongation of the proceedings by delaying the lodging of the action. The court observed that the courts had dealt with the parties’ handling of the case and applications with satisfactory responsiveness and tolerance and without excessive delay. It was not possible to work out the exact blame of each litigant but it was clear that neither party showed a spirit of pressing on with the case.
78. The court observed that part of the responsibility for the late commencement and/or continuation of the trial was also due to the judicial mechanisms. In this context it pointed out the changes that had taken place in the bench and the delays at the interim appeal stage, in particular the delay that occurred before the Supreme Court in the trial of the interim appeal concerning the striking out of the applicant’s counterclaim. In any event, the court considered that this delay had not affected or should not have affected the furtherance of the main action by the parties, since, pending the appeal, no stay of proceedings had been ordered. On the contrary the applicant had applied to the district court for a stay pending the determination of the above appeal, which was rejected.
79. The court found that the overall length delay in determining the parties’ rights and obligations did not in any way negatively affect the presentation of their case. It concluded that the trial had been fair and that the litigants had been provided with every possible opportunity.
80. On 12 December 2005 the Court was informed that the plaintiff filed an appeal against the first instance judgment on 27 October 2005 (civil appeal no. 314/05). These proceedings are still pending.
81. Articles 30 (2) and 35 of the Cypriot Constitution in so far as relevant provide as follows:
30 (2) “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by [a] ... court ...”.
35 “The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competency the efficient application of the provisions of this Part”.
82. In the case of Takis Yiallouros v. Evgenios Nicolaou (8 May 2001, civil action no. 9931) the Supreme Court upheld the first instance decision of the Nicosia District Court establishing that a violation of any rights protected by the Cypriot Constitution provided the victim with an actionable right. The respondent had brought an action against the appellant for damages sustained as a result of the violation of his right to private life and secrecy of correspondence and communications by the appellant. The Supreme Court found that the violation of the above rights safeguarded by Articles 15 (1) and 17 of the Constitution gave rise to a right for legal protection through the course of justice and to remedies provided by the law. The respondent was awarded damages as compensation for the consequences of the violation of his rights.
83. On 30 July 2001 the Supreme Court adopted “The Rule of Judicial Practice” which provides as follows:
“During the Court’s meeting of 3 July 2001 and before the Court proceeds with its judicial work, the President announced the issuing of the following Judicial Rule of practice.
The President of the Supreme Court Mr G.M. Pikis stated as follows:
With the unanimous agreement of all the Judges of the Supreme Court, the following Rule of Practice is issued:
It is acknowledged that the duty for the hearing of cases within a reasonable time is the individual duty of the trial judge and a collective duty of the judicial function. The establishment of rules for conducting a trial within reasonable time and the supervision of the procedures towards preventing delays is the responsibility of the Supreme Court. Its performance must be regulated in a way which secures, not only in advance but also during the course of the trial of cases, that the safeguards set by Article 30.2 of the Constitution and the principles governing the proper administration of Justice, as set out in circulars of the Supreme Court, are complied with. For achieving this purpose, the present Rule of Practice is adopted:
Whenever it comes within the knowledge of the Supreme Court (either through the Registries or following representations made by any person having an interest in the trial of the case without delay) that the trial of the case is being delayed, or it appears from the arrangements made – in respect of its trial– that it is possible that the trial be delayed, or where it appears that the hearing is not conducted uninterruptedly as determined by the circulars of the Supreme Court, the Supreme Court may issue directions for preventing delays in the hearing of the case and for the uninterrupted trial of the case as it deems fit. The responsibility of observing the conduct of cases undergoing trial, for the purpose of briefing the Supreme Court of delays noted or envisaged in the trial of civil and criminal cases, shall be vested with the Registrar, who will serve at the Supreme Court. The gathering of information on this matter shall be regulated by the Chief Registrar in due course”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60806
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BERGER v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 as regards the right of access to a court;Violation of Art. 6-1 as regards failure to supply a copy of the reporting judge's submissions;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicant was born in 1932 and lives in Champagny-en-Vanoise (Savoie).
9. On 30 September 1991 she signed a notarial deed by which she entered into a leasing arrangement with a limited company called SOFEBAIL for the renovation and furnishment of a holiday centre. She intended to run the business as a sole trader. As early as the end of 1991 she complained that the company had failed to complete the renovation works stipulated in the contract.
10. On 13 June 1994 the applicant lodged a criminal complaint against the company for fraud, theft and fraudulent breach of trust and sought leave to join the proceedings as a civil party seeking damages.
11. On 5 May 1997 the investigating judge discontinued the proceedings in an order worded as follows:
“It appears, in fact, from the evidence given by the civil parties and the head of SOFEBAIL and from the documents produced by the parties that the leasing arrangement, the mechanism of which has been described as fraudulent by the civil party, does not fall within the ambit of the criminal law. The disputes between [the applicant] and SOFEBAIL are clearly matters governed by civil or commercial law and have, moreover, given rise to various proceedings of this type in the civil or commercial courts.”
12. On 7 May 1997 the applicant appealed against that order.
13. On 10 July 1997 the Indictment Division of the Colmar Court of Appeal upheld the order in question. It found that the applicant's complaints were “manifestly dilatory” and that some of her allegations were “contradictory”, “purely gratuitous” or “entirely unsupported”.
14. On 11 July 1997 the applicant appealed to the Court of Cassation. Her appeal was heard on 24 September 1998. She was represented by counsel. Both parts of the reporting judge's report (the first containing a statement of the facts, the procedure and the grounds of appeal and the second a legal analysis of the case and an opinion on the merits of the appeal) had been sent to the advocate-general prior to the hearing. However, the applicant had not been sent a copy of both parts of the reporting judge's report. In a judgment of the same date the Court of Cassation declared the appeal inadmissible on the following grounds:
“The Court of Cassation is satisfied from the wording of the judgment appealed against that, in upholding the order discontinuing the proceedings, the Indictment Division, after examining all the facts alleged by the appellant and addressing the main arguments in her memorial, stated the reasons for its decision that there was insufficient evidence that anyone had committed the alleged offences of fraudulent breach of trust and fraud or any other offence.
None of the grounds of appeal, which amount to contesting the validity of the judges' findings of fact and of law, corresponds to any of the situations in which a civil party may appeal to the Court of Cassation, under Article 575 of the Code of Criminal Procedure, against a judgment of an indictment division in the absence of an appeal by the prosecution ...”
...
19. Article 575 of the Code of Criminal Procedure provides:
“A civil party cannot appeal to the Court of Cassation against judgments of the investigation division unless the prosecution lodges an appeal.
However, an appeal to the Court of Cassation by the civil party alone shall be admissible in the following circumstances:
(1) where the investigation division has stated in the judgment that there are no grounds for an investigation;
(2) where the investigation division has declared the civil party's action inadmissible;
(3) where the investigation division has upheld an objection terminating the criminal proceedings;
(4) where the investigation division has declared, of its own motion, or on an objection by the parties, that it has no jurisdiction;
(5) where the investigation division has omitted to rule on a charge;
(6) where the judgment does not formally satisfy the conditions essential for its legal validity;
(7) where a breach of personal rights as defined in Articles 224-1 to 224-5 and 4324 to 432-6 of the Criminal Code has been alleged.”
20. The Court of Cassation has confirmed that Article 575 is compatible with Article 6 of the Convention. In a recent judgment the Criminal Division reiterated that there was no incompatibility between the two foregoing provisions, “since the victim had a remedy in the civil courts by which to exercise his or her rights” (Court of Cassation, Criminal Division (Cass. crim.), 23 November 1999, Société Besnier Charchigne, Bulletin criminel (Bull. crim.) no. 268).
...
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23072
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: AKBULUT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Ramazan Akbulut, is a Turkish national, who was born in 1971 and lives in Yozgat.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant started his military career in 1989. On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of insubordination and immoral conduct pursuant to Article 50 (c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
Sergeant Ramazan Akbulut was a member of Revolutionary Islamic Opinion (Devrim Yanlısı İslami Görüş) movement. He was involved in disseminating the ideology of this movement and established contacts with persons who adopted the same ideology. He had an antisocial character and his wife carried Islamic scarf. He refused to host women and men in the same room in his house because he believed that men and women should gather in separate rooms.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”