ITEMID: 001-120517
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SIVOGRAK AND ZENOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicants are Russian nationals, who were born in 1969 and 1968, and live in Starodub, the Bryansk Region, and Saratov respectively.
7. By a judgment of 1 November 2005 the Zavodskoy District Court, Grozny (“the District Court”) ordered the Ministry of the Interior of the Chechen Republic to pay an allowance due to the applicants for participation in the counter-terrorist operation in the North Caucasus. The court awarded the first applicant 607,999 Russian roubles (RUB) for a period of service from June 2002 to December 2004 and the second applicant RUB 367,333 for a period of service from June 2003 to December 2004.
8. The judgment became binding and enforceable on 11 November 2005. The applicants repeatedly attempted to secure the enforcement of that judgment by contacting the debtor authority and other State authorities responsible for payment of the judgment debt. They provided the authorities with the necessary documents, including the writ of enforcement issued by the domestic court. However, their attempts were not successful and the judgment remained unenforced.
9. Following the authorities’ prolonged failure to enforce the judgment, the applicants sued the Ministry of the Interior of the Russian Federation on the basis of its vicarious liability (субсидиарная ответственность). On 29 September 2009 the Zamoskvoretskiy District Court, Moscow (“the Zamoskvoretskiy District Court”) granted the applicants’ claims and awarded RUB 847,999 in favour of Mr Sivograk and RUB 607,333 in favour of Mr Zenov. Those amounts corresponded to the total sum owed to the applicants under the judgments of 1 November 2005 and 10 May 2006 (see paragraph 13 below).
10. On 3 August 2010 the judgment of 29 September 2009 was quashed, following an application by the Ministry of the Interior for review on account of newly discovered circumstances.
11. By a new judgment of 9 November 2010, upheld on appeal on 20 July 2011, the Zamoskvoretskiy District Court dismissed the applicants’ claims. The court noted that the debtor was not in possession of the writs of enforcement and thus could not enforce the judgment of 1 November 2005 in the applicant’s favour. Furthermore, the court referred to the applicants’ failure to prove that the principal debtor had refused or failed to pay the judgment debt.
12. The judgment of 1 November 2005 in the applicants’ favour remains unenforced to the present date.
13. The applicants submitted a copy of a judgment of 10 May 2006 allegedly delivered by the District Court in favour of five claimants, including the applicants. It transpires from the text of the judgment that the court heard the oral submissions of the parties to the case at a hearing and arrived at the following conclusions:
“...
The failure of the command of the United Group Alignment to issue orders to make the payments in due time does not in itself prove that the applicants did not take part in the counter-terrorist operation and are not entitled to receive combat allowance.
The records of individual participation in the counter-terrorist operation on the territory of the North-Caucasus region reflect the dates of [the claimants’] participation which match the timeframe indicated by the claimants.
The records submitted by the finance department of the Ministry of the Interior’s regional office demonstrate that the claimants have indeed not received the remuneration due to them for participation in combat and other actions in defence of the public order ...
The reports drawn up by the head of the personnel department in the Ministry of the Interior’s regional office following an internal inquiry show that the claimants were included in the orders authorising the counter-terrorist operation and are entitled to relevant payments.
In addition, the case file contains the minutes of meetings held by the commission supervising the putting together of orders concerning the involvement of personnel in the counter-terrorist operation which evidence that the applicants indeed took part in the operations during the aforementioned period and are entitled to extra reimbursement.
...
The court concludes that the claimants indeed took part in the counter-terrorist operation. The respondent submitted to the court official documents evidencing [this fact] and thus de facto accepted their claims.
...
The amounts to be recovered are calculated by the court based on the records provided by the respondent.
...
Having regard to the above and relying on Articles 194 and 198 of the Code of Civil Procedure, the court orders the Ministry of the Interior of the Chechen Republic to pay the following amounts for de facto participation in the counter-terrorist operation on the territory of the North Caucasus in favour of:
...
Valeriy Nikolayevich Zenov RUB 240,000 for the period from 1 January to 31 December 2005, and also to credit the above period in [the claimant’s] length of service record in the proportion of one month for three months and in [the claimant’s] length of special service record in the proportion of one month for three months;
Igor Georgiyevich Sivograk RUB 240,000 for the period from 1 January to 31 December 2005, and also to credit the above period in [the claimant’s] length of service record in the proportion of one month for three months and in [the claimant’s] length of special service record [in the proportion of one month for three months].”
14. On 20 July 2007 the Chechen Republic Department of the Federal Treasury returned the writs of enforcement related to the judgment of 10 May 2006 issued by the District Court for failure to indicate the creditor’s addresses and discrepancies between the operative part of the judgment and the enforcement document.
15. By letter of 24 July 2008 the acting president of the District Court, replying to the applicants’ request for correction of the irregularities in the enforcement documents and the judgment, informed them that the court had never delivered the judgment of 10 May 2006 or the related writs of enforcement and that the stamps and signatures on the documents had been falsified.
16. The Government submitted a copy of a decision to refuse the institution of criminal proceedings dated 26 January 2009, which read as follows:
“Senior police lieutenant I.A. Askhabov, an investigator at the Zavodskoy police station’s investigative department, having examined the material submitted by the prosecutor’s office for the Zavodskoy District of Grozny and registered by ... the Zavodskoy police station ... on 17 December 2008, concerning the falsification by an unidentified person of a judgment of the Zavodskoy District Court ordering the payment of an additional monetary allowance for participation in the counter-terrorist operation in the Chechen Republic, established [the following]:
The judgment by the Zavodskoy District Court of 10 May 2006 in [the applicants’] favour and the writs of enforcement dated 20 May 2006 [by which] the Ministry of the Interior for the Chechen Republic [was] ordered to pay [the applicants] RUB 240,000 each, which had been submitted by [the applicants] to the Chechen Republic Department of the Federal Treasury, are falsified and were never delivered or issued by the Zavodskoy District Court.
The above is confirmed by the information contained in [a letter] of the Zavodskoy District Court of 24 July 2008 ...
Accordingly, the actions of the unidentified person constitute the corpus delicti described in Article 327.1 of the Criminal Code.
The above crime belongs to the category of small-scale crimes and, considering that the judgment ... was falsified in May 2006, any prosecution would be time-barred in accordance with Article 78.1 (a) of the Criminal Code.
Based on the above ... it is decided:
1. To refuse to open a criminal case on account of a crime provided for in Article 327.1 of the Criminal Code [having taken place] ... due to the expiration of the statutory limitation period for criminal prosecution ...
...
5. To send a copy of this decision to [the applicants], V.V. Sharovarin and the prosecutor for the Zavodskoy District of Grozny.
This decision is amenable to appeal to the prosecutor for the Zavodskoy District of Grozny or the Zavodskoy District Court in accordance with Chapter 16 of the Code of Criminal Procedure.
...”
17. On the same date a copy of the decision was sent to the applicants.
18. On 29 September 2009 the Zamoskvoretskiy District Court considered the applicants’ claims against the Ministry of the Interior brought on the basis of its vicarious liability and ordered it to pay RUB 847,999 to Mr Sivograk and RUB 607,333 to Mr Zenov. The amounts recovered corresponded to the total sums owed to the applicants under the judgments of 1 November 2005 and 10 May 2006 (see paragraphs 7 and 13 above).
19. By letter of 17 May 2010 the president of the District Court responded to an inquiry by the office of the Representative of the Russian Federation at the European Court of Human Rights as follows:
“In reply to your inquiry of 13 May 2010 [no. of the letter] the Zavodskoy District Court [...] informs you that the judgments of 1 November 2005 and 1 June 2006 on the claims of V. N. Zenov, I.G. Sivograk and [another person] in their favour against the Ministry of the Interior of the Republic of Chechnya ordered the payment of RUB 367,333, 607,999 and 746,468 respectively for de facto participation in the counter-terrorist operation on the territory of the North-Caucasus region (hereinafter “the CTO”).
Pursuant to Articles 428 and 429 of the Code of Civil Procedure writs of enforcement were issued to the creditors upon entry of the judgments into force.
...
The court is not in possession of any information concerning the enforcement of the judgment of 1 November 2005 in respect of V. N. Zenov and I. G. Sivograk.
Since the date of the delivery of the judgment T. R. Khamidov, V. N. Zenov and I.T. Sivograk have not lodged with the court any claims or complaints of nonenforcement of the judgment; hence it is impossible to provide you with any court decisions [in this respect].
As regards the judgment of 10 May 2006 which allegedly ordered the payment of monetary allowances by the Ministry of the Interior of the Republic of Chechnya to V.N. Zenov and I.G. Sivograk for de facto participation in the CTO, the court has never delivered such a judgment, nor have any claims to this effect been lodged with the court.”
20. Based on the information contained in the above letter, the Ministry of the Interior challenged the judgment of 29 September 2009 before the Zamoskvoretskiy District Court on account of newly discovered circumstances. As a result, on 3 August 2010 the judgment of 29 September 2009 was quashed (see paragraph 10 above). By a new judgment of 9 November 2010, the Zamoskvoretskiy District Court rejected the applicants’ claims (see paragraph 11 above). The court stated that, according to all available evidence, the judgment of 10 May 2006 had never been delivered. That judgment was upheld on appeal on 20 July 2011.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-86915
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ALPAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: The applicant, Mr Seyithan Alpar, is a Turkish national who was born in 1971 and lives in Midyat district of the province of Mardin. He was represented before the Court by Mr F. Gümüş, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 December 1992 the applicant was taken into police custody by police officers from the Anti-Terrorist Branch of the Nusaybin Security Headquarters on suspicion of membership of the PKK (Workers’ Party of Kurdistan), an illegal organisation.
On 18 January 1993 the Diyarbakır State Security Court remanded him in custody. The public prosecutor filed a bill of indictment with the Diyarbakır State Security Court charging the applicant, under Article 125 of the Criminal Code, with membership of a terrorist organisation and with having been engaged in acts aimed at the secession of a part of the territory of the State.
On 26 April 1993 the State Security Court commenced proceedings against the applicant and thirteen other suspects.
On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the Diyarbakır State Security Court hearing the applicant’s case was replaced by a civilian judge.
At the hearing of 8 July 1999 the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.
On 8 May 2000 the State Security Court found the applicant guilty as charged and sentenced him to life imprisonment. The applicant appealed against the judgment. The applicant’s representative asked the appeal court to hold a hearing, which was granted.
On 2 April 2001 the Court of Cassation, after hearing the applicant’s representative, closed the hearing and informed the parties that judgment would be pronounced on 11 April 2001.
At the hearing of 11 April 2001 the Court of Cassation pronounced its judgment upholding the Diyarbakır State Security Court’s judgment. The applicant’s representative did not attend the hearing.
On 4 June 2001 the Court of Cassation’s judgment was placed in the Registry of the Diyarbakır State Security Court.
On 22 October 2001 the applicant’s representative requested a copy of the final judgment from the Registry of the Diyarbakır State Security Court; it was given to him on the same day.


ITEMID: 001-91229
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MALKOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: The applicant, Ms Yelena Ivanovna Malkova, is a Ukrainian national who was born in 1943 and lives in Cherkasy. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s son was the victim of a crime which, in her opinion, was ineffectively investigated by the domestic authorities.
On 20 February 2002 the applicant notified the Cherkassy City Council that as from 25 February 2002 onwards she would hold a one-person protest demonstration in front of the building of the Cherkassy Regional Prosecutor’s Office (hereafter “the Prosecutor’s Office”).
On 21 February 2002 the Cherkassy City Council confirmed to the applicant she was entitled to hold a protest demonstration at the place and time specified.
On 22 February 2002 the Prosecutor’s Office instituted proceedings in the Prydniprovsky District Court of the Chekassy (hereafter “the District Court”) seeking to prohibit the applicant’s protest demonstration.
On the same day Mr L. and Mr G., who were the officials of the Prosecutor’s Office, arrived at the applicant’s home, handed her the summons to the hearing and proposed to give her a lift to the District Court as the hearing had been scheduled for that day. The officials allegedly also promised that they would bring her back home after the hearing. The applicant agreed.
The same day the District Court, having considered the case, prohibited the applicant’s protest demonstration. The District Court held, in particular, that the applicant’s demonstration, in the course of which she was planning to use a loudspeaker, would have a negative effect on the work of the officials in the building of the Prosecutor’s Office, who were investigating serious offences, questioning witnesses, suspects and the accused, including those who were detained and escorted to the building. Moreover, the demonstration would divert the police officers from their duties in other parts of the city which might result in jeopardising public order and infringing the rights and freedoms of other citizens.
On 28 May 2002 the Chekassy Regional Court of Appeal (hereafter “the Court of Appeal”), following the applicant’s appeal, upheld the judgment of the District Court.
On 16 April 2003 the Supreme Court allowed the applicant’s appeal in cassation, quashed the decisions of the lower courts and rejected the claim of the Prosecutor’s Office. The Supreme Court stated, in particular, that it was for the other competent authorities, but not for the Prosecutor’s Office, to institute the proceedings at issue.
On 18 August 2003 the applicant instituted proceedings in the District Court, seeking compensation for the non-pecuniary damage incurred as a result of the allegedly unlawful actions of the Prosecutor’s Office. She claimed that on 22 February 2002 Mr L. and Mr G. had taken her to the District Court and had promised to take her back home. However, after the hearing they had not kept their promise, despite her poor health, and she had had to go home by public transport which had aggravated her illness. The applicant enclosed with her claim, among other documents, the decision of 16 April 2003 taken by the Supreme Court.
On 14 November 2003 the District Court rejected the applicant’s claim as unsubstantiated, holding, in particular, that the applicant had not been physically or psychologically forced by Mr L. and Mr G. to go with them to the court hearing and no unlawful actions on the part of Mr L. and Mr G. could be discerned. These findings were based, inter alia, on the submissions of the applicant who confirmed at the court hearing that she had not quarrelled with Mr L. and Mr G. and had voluntarily agreed to go with them to the District Court.
On 23 February 2004, following the applicant’s appeal, the Court of Appeal upheld the judgment of the District Court, finding that the officials of the Prosecutor’s Office had not violated any legislation when they, upon the applicant’s consent, had helped her go to the District Court.
On 16 May 2005 the Supreme Court dismissed the applicant’s appeal in cassation as unsubstantiated.
The relevant extract of the Constitution provides as follows:
Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of executive power or bodies of local self-government.
Restrictions on the exercise of this right may be established by a court in accordance with the law and only in the interests of national security and public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons.”


ITEMID: 001-73040
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SERGEY SHEVCHENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (no adequate investigation);No separate issue under Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant is the father of Mr Andrey Shevchenko, deceased (hereinafter A.S.). He was born in 1944 and lives in Kharkiv.
5. At 2 a.m. on 3 October 2000 A.S. (a First Lieutenant in the Ukrainian Air Force) was detailed to guard a military airdrome of the A-2491 Air Force Unit (hereafter “the Unit”). He was issued a handgun with sixteen live cartridges. Around 5.40 a.m. he was found dead in the guardroom with two gunshot wounds to his head.
6. A criminal investigation into his death was opened the same day and an investigator from the Military Prosecutor’s Office (hereafter “the MPO”), Captain S., inspected the scene. In his report he described the position of the body and a Makarov handgun lying near a foot, loaded with three cartridges. No traces of a struggle were found either at the scene or on the deceased. There were bullet holes in a window and the ceiling, as well as three spent cartridges. A black ink pen was retrieved from A.S.’s pocket. The report drawn up on that occasion stated that the inspection had been conducted by the Commanding Officer (hereafter “the CO”) of the Unit, Colonel V., and witnessed by two other officers from the Unit.
7. According to the applicant, around 8 a.m. Ms H., A.S.’s partner, went to his apartment and saw that it was open and that Lieutenant-Colonel D. (the Executive Officer of the Unit, hereafter “the EO”) with other persons was conducting a search.
8. The official documents state that the apartment of the deceased was searched at 3 p.m. However, First Lieutenant M. testified that at 8 p.m. several officers, including himself, had been detailed to conduct an inventory at A.S.’s apartment under the supervision of the EO.
9. The applicant and Ms H. alleged that A.S. had kept some USD 15,000 in a side-table. During the search no money was found there. Instead, First Lieutenant G., an inquiry officer (an officer of the Unit, who had been appointed by the CO to conduct an inquiry into the possible crime) found a suicide letter.
10. On 4 October 2000 Ms H. was questioned by Lieutenant G. as regards her relations with the deceased. She stated that the deceased had been “a clever person and one worth communicating with” who had never expressed any thoughts of suicide. On 2 October 2000, when A.S. was going on duty, he had invited her to come over.
11. According to the testimony of Major-General O., on 3 October 2000 he visited the Unit because of the tragic incident. On 4 October 2000 he informed the assembled Unit about the event and, whilst allowing the possibility of murder, nevertheless read out several extracts from the suicide letter. However, several other witnesses testified that the Major-General said nothing about murder, but focused on the alleged suicide, stating that A.S. had long prepared himself to die at his own hand by, inter alia, reading occult philosophy written by Carlos Castaneda.
12. Typed copies of the alleged suicide letter were disseminated among the staff of the Unit by the EO, who gave a copy to the applicant when the investigator refused to allow him to make a photocopy of the handwritten original.
13. During the applicant’s interrogation on 5 October 2000, Captain S. remarked that he was almost completely sure that A.S.’s death had been a suicide and refused to add to the protocol the applicant’s comments about the disappearance of USD 15,000.
14. By 10 October 2000 Lieutenant G. had questioned a number of witnesses - mainly those who had seen the applicant’s son on the day of the tragic event and those who were closely acquainted with him. The questions asked were focused on A.S.’s mood before the incident, his interest in Castaneda’s philosophy and occult practices, his possible abuse of alcohol or drugs and whether he played with his gun on duty.
15. A.S.’s friends stated that the deceased had been very careful with alcohol and weapons, and had been a calm, respectful person. The witnesses did not know if he had ever used any drugs or practised any occultism. Mr Sk., A.S.’s former roommate, claimed to having heard the applicant’s son saying that he had meditated, but had never seen this for himself. The moral welfare officer submitted that the deceased used to abuse alcohol, but long before the incident he had given up drinking. A.S. had not been considered a suicide risk by either the moral welfare officer or his friends. None of those who saw the deceased on the day of the incident spotted any peculiarities in his conduct.
16. From 11 October 2000 onwards the line of interrogation was changed to include questions about whether A.S. had had any enemies and whether there had been any assaults on the sentries. Some of the previous witnesses were questioned again. None of the witnesses could positively answer either of these questions.
17. Mr Pk., who claimed to be A.S.’s friend (but was not identified as one by other witnesses), while describing the deceased as a calm, equable person, said, nevertheless, that the fact of his suicide “had not been a surprise to him”. Mr Y. (whose relation with the deceased is unclear), re-interrogated on 31 October 2000, also stated that the suicide of A.S. “had not been a surprise to him”. In his subsequent interview on 9 November 2000, Mr Y. recalled that in 1996 he had seen the deceased smoking a cigarette with a suspicious smell. Mr D. testified that the deceased had thought himself “cleverer than others” and read philosophical books. He had also heard that A.S. had meditated.
18. On 26 October 2000 the investigator refused to grant the applicant the status of a victim in criminal proceedings on the ground that the collected evidence strongly suggested that his son had committed suicide.
19. The applicant appealed to a higher prosecutor. His complaint about the refusal of victim status was rejected. However, certain instructions to the investigator were apparently given which triggered a new series of interviews in early November 2000 of the persons involved in the search of A.S.’s apartment on 3 October 2000 and of his superiors, including Lieutenant-Colonel L. and Major-General O. Lieutenant-Colonel L. testified that he had twice reprimanded the deceased, but did not think there had been any bias or partiality on his part regarding A.S.
20. On 24 November 2000 the Military Prosecutor of the Ivano-Frankovsk Garrison informed the applicant that the case had been assigned to another investigator and that his request for victim status in the proceedings could not be granted.
21. On 30 December 2000 the Assistant Prosecutor of the Ivano-Frankovsk MPO disjoined the investigation into the death of A.S. from the criminal proceedings for theft.
22. The handgun found at the scene and three cartridges from its magazine were examined by a ballistics expert. According to his report of 10 October 2000, the gun was serviceable and could not have been fired without pulling the trigger. The rounds were also serviceable. The spent cartridges had been fired from that gun.
23. The body was examined by a pathologist. According to the autopsy report, the cause of A.S.’s death had been two gunshot wounds. Both had been inflicted when the victim was still alive. The apparent first wound injured the neck, tongue and mouth (inlet on the left side of the tongue and the outlet near the right ear). The second wound, which was the direct cause of death (inlet on the forehead), damaged the frontal bone, brain and occipital bone, where the bullet was found. The pathologist concluded that the first shot had been fired into the victim’s mouth and the second into the forehead. Both were fired from a short distance.
24. The additional forensic examination concluded that, after the first shot, the individual could still have retained the ability to make further movements for a short period.
25. The investigator also ordered a graphology forensic examination of the suicide letter found in A.S.’s apartment, and asked the expert to establish whether it had been written by the deceased. On 9 November 2000 the expert gave a positive answer to that question.
26. On 28 October 2000 a chemical expert concluded that the ink on the letter matched the one from the pen found in the A.S.’s pocket.
27. According to the post-mortem psychological inquiry, the mental state of A.S. did not exclude the possibility of suicide. In particular, it was mentioned that he had had overrated self-esteem and insularity, which had led to, inter alia, conflicts with his superiors.
28. On 30 December 2000 the investigator, First Lieutenant Sk., completed the preliminary investigation and drew up a final report. He concluded that the mental state of the deceased, the possibility of movement after the first shot, and the suicide letter written under the influence of Carlos Castaneda’s philosophy, proved that A.S. had committed suicide. This conclusion was supported by references to the aforementioned expert opinions and five witness testimonies to that effect.
29. The applicant challenged this decision before a court. He stated, inter alia, that his son had been killed because of his involvement in the criminal schemes of his superiors. He alleged that the investigation had been from the very beginning focused on proving the suicide. The investigators did not even attempt to examine other versions, although the final report mentioned the victim’s “conflicts with his superiors”. In this respect the applicant also indicated that the Ukrainian Code of Criminal Procedure vested the commanding officers of military units with the authority to make the preliminary inquiry, comparable with that of the police. He thus challenged the EO’s active participation in the criminal proceedings which practically excluded the possibility that the investigators could take account of the applicant’s views on the incident.
30. The applicant mentioned the investigation’s inability to detect the origin of a bullet hole in the guardroom ceiling and to explain why the first shot’s trajectory was from left to right, although his son had been righthanded. He complained about the prosecution authorities’ refusal to grant him the status of “a victim of the criminal offence”, thus denying him access to the case file. In this respect he also complained about his inability to examine the suicide letter and to give an opinion on the likeness between the handwriting in the letter and that of his son. However, he alleged that the style of the letter did not match A.S.’s usual way of writing. The applicant, therefore, requested that an independent expert examination of the letter be conducted. He finally challenged the decision to disjoin the proceedings concerning his son’s death and the theft of money from his apartment.
31. On 30 November 2001 the Military Court of the Ivano-Frankovsk Garrison rejected the applicant’s complaints.
32. On 2 March 2002 the Military Court of Appeal of the Western Region (hereafter “the Court of Appeal”) allowed the complaints, quashed the ruling of 30 December 2000, and ordered further inquiries. The court specified the following irregularities in the investigation:
the failure to conduct a reconstruction of the events to establish the possibility that, in the circumstances, the body could naturally have fallen into the position in which it was found;
the failure to detect the origin of the bullet hole in the guardroom window; and
the failure to establish with sufficient clarity the mental state of the deceased before the incident.
33. However, the Court of Appeal rejected the applicant’s request to grant him victim status. The court also found no reason to rejoin the investigations into the death and theft. On 29 October 2002 the Supreme Court rejected the applicant’s cassation appeal on these issues.
34. On 29 April 2002 another investigator, First Lieutenant P, drew up a final report which generally repeated that of 30 December 2000. The only further action taken by the investigator was that of ordering a post-mortem psychiatric inquiry, which revealed that A.S. had not suffered from any mental disorder, though his general mental state could have led to suicide. The investigator thus concluded that A.S. had committed suicide and closed the case. On the same day the Ivano-Frankivsk MPO refused to provide the applicant with a copy of this report on the ground that he was neither the defendant nor the victim in the case.
35. On 16 December 2002 the President of the Court of Appeal sent the applicant a copy of that report.
36. The relevant Articles of the Constitution provide as follows:
Article 3
“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...”
Article 27
“Every person has the inalienable right to life.
No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...”
Article 28
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
37. The provisions relating to the status of a victim in criminal proceedings read as follows:
Article 28. A civil claim in a criminal case
“A person, who has suffered material damage as a result of a crime, shall be entitled to lodge within the criminal proceedings a civil claim against the accused ..., which shall be considered by the court together with the criminal case...”
Article 49. An aggrieved party
“A person who has suffered moral, physical or property damage from the crime can be recognised as an aggrieved party. ...
A citizen, who has been recognised as an aggrieved party from the crime, shall be entitled to give evidence in the case. An aggrieved party, or his or her representative, shall be entitled to: ... make requests; to study all the materials of the case file when the pre-trial investigation is completed, ... to lodge complaints against the actions of inquirer, investigator, prosecutor and court, ...
In cases where the crime caused the death of the victim, the rights provided for in this Article shall be conferred upon the deceased’s next of kin.”
Article 236-1
“A complaint against the decision of the body of inquiry, investigator or prosecutor not to bring charges is lodged by a person with a direct interest or by his/her representative with the local court within whose area of jurisdiction falls the authority which took the decision.”
38. The Code required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction (Article 4).
Article 94 of the Code provided the following grounds for instituting a criminal case:
“A criminal case shall be instituted on the following grounds:
1) applications or communications from ... individuals; ...
5) direct detection of signs of crime by a body of inquiry, investigation, prosecutor or court.
A case can be instituted only when there is sufficient information indicating a crime.”
No criminal proceedings could be brought in the absence of a corpus delicti (Article 6). Where an investigating body refused to open or terminate a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 209, 214, 234 and 236-6).
39. Section II of the Code discerns two stages of pre-trial criminal proceedings: the inquiry (дізнання) and the investigation (слідство). During the inquiry the competent authorities undertake operational measures aimed at the detection of a crime and those responsible. If the body of inquiry institutes a criminal case regarding a grave offence, it is under an obligation to refer it to the competent investigator through a prosecutor, after having completed the urgent investigative actions. If the perpetrator of a grave crime is not identified, the body of inquiry continues the operational measures and informs the investigator about its results. After the investigator joins the proceedings, the body of inquiry carries out his/her instructions as regards the investigative and operational actions (Articles 103-104).
Article 101 enumerates the bodies of inquiry. Normally these functions are discharged by the police. However, at the material time paragraph 3 of Article 101 also vested this power in the commanding officers of military units for all crimes committed by their subordinates. (An amendment of the Code of 15 May 2003 delegated this authority to the newly-created Military Service of Law and Order.)
40. Article 4 of the Instruction provided that, in order to carry out inquiries into crimes committed by servicemen, the commanding officer appointed several commissioned officers of the unit to act as inquiry officers for a period of two years. The most qualified of them was appointed as the senior officer to deal with the most complicated cases.
41. The commanding officer of the unit, as a statutory “body of inquiry”, instituted inquiries into all crimes committed by the servicemen attached to the unit (Article 5).
42. Having received information about an offence, the commanding officer immediately instituted criminal proceedings and appointed an officer to investigate it. The competent Military Prosecutor’s Office had to be immediately notified about the offence and the measures undertaken for its investigation (Article 6).
43. According to Article 7 of the Instruction, the inquiry officer could not take part in the investigation
if he/she was a victim, a witness or a civil party to the proceedings;
if he/she had already participated in the case as an expert, translator, defence lawyer or representative of the victim or a civil party;
if he/she or his/her relatives were interested in the outcome of the proceedings; or
if there were any other circumstances affecting his/her impartiality.
44. The commanding officer was obliged to undertake all necessary operational measures, provided by the criminal law of procedure, in order to resolve the offence (Article 8).
45. The commanding officer, who had instituted the proceedings, led the inquiry, in that he gave instructions to the investigating officer as to which facts had to be established and which investigative actions were to be undertaken.
46. The Order provides that the crimes committed by military servicemen are investigated by the competent Military Prosecutor’s Office.
Article 46-1 of the Law provided that commissioned officers who possessed law degrees could be appointed as military prosecutors or investigators. Servicemen attached to the Military Prosecution Offices performed their functions in accordance with this Law and served in accordance with the Law “on Military Conscription and Military Service”.
VIOLATED_ARTICLES: 2


ITEMID: 001-102870
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BOK v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (victim);No violation of Art. 6-2
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 6. In 1994 – in the context of a much wider criminal investigation involving many suspects – a preliminary judicial investigation (gerechtelijk vooronderzoek) was opened against the applicant, who was suspected of participation in a criminal organisation. On 6 March 1995 the investigating judge (rechter-commissaris) of the Middelburg Regional Court (rechtbank) authorised the Middelburg public prosecutor to issue a garnishee order (conservatoir beslag) against the applicant in the context of this investigation, the scope of which had been extended to offences under the Opium Act (Opiumwet). Also in this context, a house in Rotterdam owned by the applicant's daughter was searched on 21 March 1995, during which the front door, the alarm installation and bedroom furniture were damaged. This search took place under the direction of the Rotterdam investigating judge and on the basis of an authorisation issued by the Middelburg Regional Court. A number of objects found during this search were seized under the garnishee order, including two cars: a Jeep and a Mercedes. The Jeep was returned to the lease company that owned it on 28 June 1995. The applicant was charged with various offences under the Opium Act and the Arms and Ammunition Act (Wet Wapens en Munitie).
7. By judgment of 5 June 1997, the Middelburg Regional Court convicted the applicant of various charges brought against him and sentenced him to eighteen months' imprisonment and payment of a fine of 100,000 Netherlands guilders (“NLG”). The applicant lodged an appeal.
8. The Mercedes car seized on 21 March 1995 was sold at a public auction on 11 July 1997.
9. On 9 February 1998, the Court of Appeal (gerechtshof) of The Hague accepted the appeal filed by the applicant, quashed the judgment of 5 June 1997 and acquitted the applicant of all charges, finding that they had not been lawfully and convincingly proven (niet wettig en overtuigend bewezen).
10. On an unspecified date, the applicant lodged a claim with the Court of Appeal of The Hague under Article 591a of the Code of Criminal Procedure (Wetboek van Strafvordering), seeking the reimbursement of an amount of more than NLG 200,000 for costs and expenses incurred by him in the course of the criminal proceedings.
11. On 29 June 1998 the Court of Appeal of The Hague awarded the applicant NLG 100,000 for costs and expenses incurred, and rejected his claim under Article 591a for the remainder. No further appeal lay against this decision.
12. On 3 March 1999, the proceeds of the sale of the Mercedes car plus accrued statutory interest were paid to the applicant.
13. On 13 July 1999, considering that the criminal proceedings taken against him had not only entailed the incurring of legal costs and expenses but had also caused him and his daughter pecuniary and non-pecuniary damage, the applicant and his daughter brought civil proceedings against the Netherlands State before the Regional Court of The Hague. Alleging a wrongful act (onrechtmatige daad) within the meaning of Article 6:162 of the Civil Code (Burgerlijk Wetboek), the applicant and his daughter claimed that a body for whose acts the State was liable had acted in a wrongful manner towards them by having brought criminal proceedings against the applicant, and by using criminal investigation tools (search and seizure) on the basis of a suspicion that had been unfounded from the outset.
14. The applicant claimed compensation in the amount of NLG 1,500,000 for non-pecuniary damage and NLG 475,055.30 for pecuniary damage (loss of profits, extra accountants' and financing costs, costs incurred in relation to the two cars seized). The applicant's daughter claimed compensation of NLG 2,000 for non-pecuniary damage and NLG 7,760 for pecuniary damage caused to her house and furniture in the course of the search of 21 March 1995.
15. In its judgment of 11 July 2001, the Regional Court rejected the applicant's claims. It considered that, according to the relevant case-law under Article 6:162 of the Civil Code, the institution of criminal proceedings or use of criminal investigation tools could only be regarded as wrongful when such proceedings had been brought or such tools used in breach of the law or with disregard of fundamental requirements (in strijd met de wet dan wel met verontachtzaming van fundamentele vereisten), or where it appeared retrospectively from the criminal investigation – either from the final decision or otherwise – that the suspicion on the basis of which the criminal proceedings had been brought or the criminal investigation tool used had been unjustified (dat de verdenking ten onrechte heeft bestaan). It held that the first situation did not arise in the applicant's case as, during the preliminary judicial investigation against the applicant, the investigating judges of Middelburg and Rotterdam and the Middelburg Regional Court had given an affirmative answer to the question whether there was a reasonable suspicion against the applicant and that consequently it had to be assumed that a reasonable suspicion had existed at the time. Furthermore, in its judgment of 9 February 1998, the Court of Appeal had found that the criminal investigation methods used in the applicant's case had not been illicit. The Regional Court found that the second situation did not arise in the applicant's case either, as it did not follow from the applicant's acquittal or from the contents of the criminal case-file as made available to the court that the applicant had not carried out the acts of which he had been suspected. Consequently, and absent an automatic right to compensation for lawful acts on the part of the State in the context of the criminal investigation against him, the only possibility for the applicant to obtain compensation in connection with the criminal proceedings brought against him and the use of criminal investigation methods in this investigation was to avail himself of the possibilities provided under Articles 89, 90, 591 and 591a of the Code of Criminal Procedure.
16. As regards the applicant's daughter, the Regional Court found no indication that there had ever been any suspicion of her involvement in the facts on which the charges brought against the applicant were based. Consequently, it found that the damage suffered by her – caused by criminal investigation methods directed against her father – should not be borne by her. On the basis of the elements before it, the Regional Court assessed this damage at NLG 3,000 and ordered the Netherlands State to pay this amount to the applicant's daughter. It rejected the remainder of both plaintiffs' claims.
17. On 30 August 2001, the applicant and his daughter lodged an appeal with the Court of Appeal of The Hague. The Netherlands State lodged a crossappeal (incidenteel beroep).
18. In its judgment of 11 November 2004, the Court of Appeal quashed the ruling of 11 July 2001 but only in respect of the compensation award to the applicant's daughter, which it reduced to 750 euros, rejecting the remainder of her claim for lack of substantiation. It upheld the impugned ruling for the remainder. Referring to the constant case-law of the Supreme Court (Hoge Raad), the Court of Appeal held, in so far as relevant, as follows:
“2.2. ... The Regional Court has rightly declined to consider the acquittal by the criminal court to be of decisive importance but instead considered whether the criminal investigation – the final judgment or otherwise – demonstrated that [the applicant] had not committed the crimes with which he had been charged. According to the consistent case-law of the Supreme Court this does not contravene the presumption of innocence of Article 6 § 2 of the Convention. The Convention case-law cited by [the plaintiffs], which does not substantially differ from the Convention case-law taken into account by the Supreme Court in its consistent case-law, does not shed any different light on the case. Nor can allegation that the criminal case file is inaccessible, if correct, cannot lead to the conclusion that the cited criterion is applicable.
2.3. To the extent that [the plaintiffs] also wish to argue that [the applicant] has been prosecuted without justification because, as they state, no reasonable suspicion of guilt of a criminal offence in his respect existed, the Court of Appeal notes the following. For the search and the garnishee order permission was granted by the Middelburg Regional Court and the investigating judge, respectively. In the present proceedings it cannot be successfully argued that these judicial authorities in so doing took an incorrect decision. That would, after all, imply that it was for the civil court to examine whether the criminal court had taken a correct decision and this is incompatible with the closed system of legal remedies (gesloten system van rechtsmiddelen) [in the Netherlands legal order]. It has not been argued, nor is it apparent, that there are special circumstances which might justify making an exception to this principle.
2.4. The argument that [the applicant] has been prosecuted without justification because a reasonable suspicion of guilt was lacking has hardly at all been substantiated by [the applicant], whereas in the case at hand the onus of proof lies with [the applicant] and not the State. [The applicant] has only submitted that the suspicion in this case rested solely on the fact that [the applicant] knew the co-suspect F. and on some meaningless taps. This is however insufficient, given the contents of the [items of evidence set out in the judgment of 7 June 1997 by the Middelburg Regional Court as submitted by the defendant in response to the plaintiffs' summons in the present proceedings] which could give rise to the suspicion that H. and F. were involved in trafficking hashish ... and that [the applicant] had regular – business – contacts with F. and H.
2.5. The Court of Appeal agrees with the Regional Court that the criminal investigation – the final judgment or otherwise – does not show that [the applicant] was innocent (onschuldig) of the crimes charged. The Court of Appeal notes that such a conclusion can only be drawn if the suspect's innocence is reasonably obvious (de onschuld van de verdachte met enige evidentie naar voren komt). This is not the case here given – on the one hand – the items of evidence [as set out in the judgment of 7 June 1997] and – on the other – the absence from the criminal case file, in so far as made available [in the present proceedings], of convincing disculpatory material (overtuigend ontlastend materiaal). There is no need to consider, as the Regional Court did, whether the evidence relied on points in a different direction [i.e. to the applicant's guilt].”
19. The applicant and his daughter lodged an appeal on points of law (cassatie) – limited to points of law and procedural conformity – with the Supreme Court. On 16 June 2006, referring to Article 81 of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) and without stating any further reasons, the Supreme Court rejected this appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development.
20. Article 27 of the Code of Criminal Procedure defines the notion of a suspect in criminal proceedings. It reads in its relevant part:
“1. Before the start of the prosecution, the person referred to as the suspect shall be the person in respect of whom a reasonable suspicion of guilt of a criminal act flows from facts or circumstances.
2. [After the prosecution has started], the suspect is the person against whom the prosecution is directed. ...”
21. If at the end of the preliminary criminal investigation the public prosecutor decides to bring the case to trial, the prosecutor will issue a summons which must be served on the accused. This summons contains the charges against the accused, which are set out in a very formal and detailed manner, in conformity with the requirements of Article 261 of the Code of Criminal Procedure. Pursuant to Articles 348 and 350 of the Code of Criminal Procedure, the trial court is strictly bound by the wording of the summons and the trial may not be conducted beyond the facts detailed in the charge(s). Only the public prosecutor may amend the charge, and then only in certain circumstances and subject to approval by the trial court (Article 313 of the Code of Criminal Procedure). In reaching its verdict, the trial court must answer the questions set out in Articles 348 and 350 of the Code of Criminal Procedure and, as to Article 350, must follow strictly the sequence of these questions as set out in that provision. In so far as relevant, these Articles read as follows:
“The court shall examine – on the basis of the summons and what has emerged from the trial hearings – the validity of the summons, its competence to examine the charge and the admissibility of the prosecution and whether there are reasons to suspend the prosecution.”
“If the examination referred to in Article 348 does not lead to [a ruling declaring the nullity of the summons, the incompetence of the trial court to deal with the case, the inadmissibility of the prosecution or the suspension of the prosecution], the court shall deliberate – on the basis of the summons and what has emerged from the trial hearings – on the question whether it has been proven that the accused has committed the fact [as described in the summons] and, if so, what offence this fact constitutes according to the law. If found that the fact is proven and [constituting a] punishable [offence], the court shall deliberate on the criminal liability (strafbaarheid) and on the imposition of a punishment or measure.”
22. Pursuant to Article 338 of the Code of Criminal Procedure, a finding that it has been lawfully and convincingly proven (wettig en overtuigend bewezen) – which is the standard of proof in Netherlands criminal law – that the accused has committed the fact(s) as described in the formal charge can only be made by the court when the latter reached that conviction on the basis of “legal means of evidence” (wettige bewijsmiddelen). “Legal means of evidence” are personal observations of the judge, statements of the accused, statements of witnesses, statements of experts, authentic minutes and records in proper form and other written documents (Article 339 § 1 and Articles 340-344a of the Code of Criminal Procedure). Pursuant to Article 359 §§ 1 and 3 of the Code of Criminal Procedure, a judgment must enumerate the means of evidence as well as the pertinent facts and circumstances on which a conviction is based.
23. If the court finds that it has not been legally and convincingly proven that the accused has committed the fact(s) as set out in the charges, the judge must pronounce an acquittal (Article 352 § 1 of the Code of Criminal Procedure). If the court finds such fact(s) proven but not constitutive of a punishable offence, or if it finds that the accused cannot be held criminally liable, it shall discharge the accused from further prosecution (“ontslag van rechtsvervolging”) (Article 352 of the Code of Criminal Procedure). Unlike a judgment in which an accused is convicted, no further reason than “it has not been lawfully and convincingly proven” is given for an acquittal.
24. Articles 89, 90, 591 and 591a of the Code of Criminal Procedure provide a former suspect with the possibility – albeit on limited grounds – to obtain damages for lawful acts undertaken by the authorities in the context of criminal proceedings against him or her after a judicial decision to acquit or to discontinue the criminal proceedings. In so far as relevant, these Articles read as follows:
“1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former suspect, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody, clinical observation or detention on remand (voorlopige hechtenis). Such damage may include non-pecuniary damage. ...”
“1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so.
2. In the determination of the amount, the personal circumstances (levensomstandigheden) of the former suspect shall also be taken into account. ...”
“1. Compensation shall be paid to the former suspect or his heirs out of State funds for costs borne by the former suspect under or pursuant to the provisions of the Act on Fees in Criminal Cases (Wet tarieven in strafzaken), in so far as the appropriation of these costs has served the investigation or has become devoid of purpose by the withdrawal of summonses or legal remedies by the public prosecution service (openbaar ministerie).
2. The amount of compensation shall be determined at the request of the former suspect or his heirs. This request must be submitted within three months following the termination of the case. The determination shall be made in the court with jurisdiction as to both facts and law before which, at the time of its termination, the case was or would have been prosecuted or else was last prosecuted, by the District Court judge or by the presiding judge as the case may be. The presiding judge may appoint one of the judges of the Court of Appeal or the Regional Court who have dealt with the case to do so. The District Court judge or the [Regional Court or Court of Appeal] judge shall issue an order of payment (bevelschrift van tenuitvoerlegging) for the amount of the compensation. ...”
“1. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs shall be granted compensation out of State funds for his travel and subsistence expenses incurred for the investigation and the examination of his case, calculated on the basis of the Act on Fees in Criminal Cases.
2. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs may be granted compensation out of State funds for the damage which he has actually suffered through loss of time as a result of the preliminary investigation and the examination of his case at the trial, as well as the costs of counsel. This will include compensation for the costs of counsel during police custody and detention on remand. Compensation for such costs may furthermore be granted when a case ends with the imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed. ...
4. Articles 90 and 591, paragraphs 2 to 5, shall apply by analogy. ...”
25. Apart from the above possibility under the Code of Criminal Procedure to seek damages for lawful acts by the authorities in criminal proceedings which have ended in an acquittal or discontinuation, it is also possible for former suspects – as currently there is no other specific remedy under domestic law – to seek compensation for a wrongful act, or tort, on the part of public authority (“onrechtmatige overheidsdaad”) by taking civil proceedings against the State claiming compensation for damages based on the argument that the institution of criminal proceedings and/or the application of one or more coercive measures in the course of those criminal proceedings constituted a wrongful act within the meaning of Article 6:162 of the Civil Code. Article 6:162 of the Civil Code reads as follows:
“1. A person who commits a wrongful act (onrechtmatige daad) against another which is attributable to him, must repair the damage suffered by the other in consequence.
2. Except where there is a ground of justification, the following acts are deemed to be wrongful: the violation of a right, and an act or omission violating a duty imposed by law or a rule of unwritten law pertaining to proper social conduct.
3. A wrongdoer is responsible for the commission of a wrongful act if it is due to his fault or to a cause for which he is accountable by law or pursuant to generally accepted principles (de in het verkeer geldende opvatting).”
26. Pursuant to Article 150 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), the plaintiff claiming damages under Article 6:162 bears the burden of proof, unless a specific rule or reasons of equity (redelijkheid en billijkheid) call for a shift of the burden of proof to the defendant.
27. Pursuant to Article 149 § 1 of the Code of Civil Procedure, the judge mainly plays a passive role in civil proceedings. Apart from facts and circumstances of common knowledge (Article 149 § 2), a civil court can solely base its ruling on those facts or rights of which it was informed or of which it acquired knowledge during the proceedings in a manner complying with the requirements of the Code of Civil Procedure. The court must accept as established facts or rights claimed by one party and which have not or have been insufficiently disputed by the adversary party, notwithstanding its competence to request evidence, in so far as acceptance of claims would lead to legal consequences which are not for the free determination of the parties.
28. This entails that, in proceedings in which a wrongful act is claimed, it is the plaintiff who must substantiate his or her claim with sufficient and demonstrable facts. It is not enough merely to state, for instance, that a criminal prosecution has been unjustly brought or that a coercive measure in criminal law was unjustly used by the criminal investigating authorities. Rather, it is up to the defendant to give a reasoned challenge of the materials adduced by the plaintiff in substantiation of his or her claim. A mere denial without any substantiation is insufficient.
29. Parties to civil proceedings may submit evidence in any form (Article 151 § 1 of the Code of Civil Procedure) and, although there is no hierarchy between oral or documentary evidence, certain categories of documentary evidence (such as authentic deeds and final convicting judgments delivered after adversarial criminal proceedings) are compelling evidence as to the veracity of statements set out in such documents (Articles 160-161 of the Code of Civil Procedure). The evaluation of all other evidence is left to the discretion of the court (Article 152 § 2 of the Code of Civil Procedure).
30. A “Bill on compensation of damage caused by government action in criminal proceedings” (Wetvoorstel Schadecompensatie Strafvorderlijk Overheidsoptreden) is pending which is intended to improve the legal position of persons having suffered damages in consequence of lawful or wrongful government action in the context of criminal proceedings. This Bill proposes to introduce one specific and simple procedure for examining such compensation claims filed by different categories of claimants (not only former suspects but also non-suspect victims, for instance bystanders hit by a ricocheted bullet fired by a police officer). The pertaining Explanatory Memorandum explains the current situation under Netherlands civil law in respect of former suspects as follows:
“As the law currently stands, a former suspect can only claim compensation for damages for lawful government action in criminal proceedings when it concerns 'wrongfulness ex post'. This means that a former suspect is entitled to compensation when, in retrospect, the government action is wrongful on the basis of this suspect's demonstrated innocence (gebleken onschuld). However, there is only demonstrated innocence when 'it is demonstrated by the ruling of the criminal court or otherwise by the documents relating to the criminal procedure that has not ended with a finding that the charges have been proven (bewezenverklaring) that the suspect is innocent and that the suspicion on which the action of the police or justice authorities was based was unfounded' (Supreme Court, 13 October 2006, ... Landelijk Jurisprudentienummer [National case-law database number, 'LJN'] AV6956).
Where these documents do not demonstrate that the person concerned was innocent, then it must be assumed – according to consistent case-law – that the suspicion of the person concerned complied with the standard laid down in Article 27 [of the Code of Criminal Procedure], that criminal law measures [taken and] based on that suspicion were not unlawful and that – for obtaining compensation of damage – the suspect is to turn to the possibilities under Articles 89-93, 591 and 591a of the Code of Criminal Procedure (see, inter alia, Supreme Court 13 October 2006, ... LJN AV6956). This applies also for those cases in which the accused has been acquitted, because an acquittal does not always mean that an accused was innocent. In some cases it is no longer possible to find out during the criminal proceedings what exactly did happen. For instance because witnesses give conflicting evidence on essential points and the accused's denial is supported by other statements. Then it is possible to acquit an accused for lack of evidence while at the same time it remains unclear whether the accused has committed the fact [constituting the offence]....”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-5452
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: JOHN AND MARGARET SLOUGH & A.J. AND W. KING AND 10 OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are all businesses connected with the firearms industry. A list of applicants is annexed to the present decision. They are represented before the Court by Edwin Coe, Solicitors, London.

In the case of application no. 37679/97, the applicants, Margaret and John Slough, a married couple, have been trading in firearms in partnership since 1976. In 1989, the applicants designed and commenced the manufacture of the “Spitfire” pistol. In 1995 the applicants ceased retailing and concentrated on the manufacture of the Spitfire and customisation of handguns (the process of improving and adding specialist components, thereby enhancing functions and increasing their value) using a rifling machine which they had designed. The applicants rented two workshop units on leases due to expire on 1 May and 3 July 1998. Between June 1994 and June 1996, their gross profit increased from £1,856 to £380,591.

As a result of the 1997 Firearm Amendment legislation - the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”, see below), the applicants’ business suffered a substantial drop in the value of its assets. The specialised nature of the plant and equipment will make disposal difficult. For example, the applicants own a specialist machining centre costing £275,000 specifically designed for the manufacture of handguns. In August 1997, the applicants had been able to realise only £6,885 on assets previously worth £91,161. The applicants also ran a pistol shooting club, and owned a shooting range which was suitable only for handgun shooting.
The applicants in application no. 37682/97 rely on application no. 37679/97 (John and Margaret Slough), and have made no submissions of fact in relation to their claims.
The consequences of the 1997 Amendment Acts are that the applicants are unable to derive handgun-related income from their businesses, and that the value of the goodwill and assets of those businesses have depreciated. The applicants have received no compensation for the reduction in value of their goodwill.
By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...

18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.


ITEMID: 001-103332
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: VAJNAI (II) v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Attila Vajnai, is a Hungarian national who was born in 1963 and lives in Budapest. He was represented before the Court by Mr G. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 March 2007 the applicant, at the material time Vice-President of the Workers’ Party (Munkáspárt), a registered left-wing political party, was convicted by the Pest Central District Court under section 269/B (1) of the Criminal Code of the offence of having worn a totalitarian symbol in public. The court observed that the applicant had worn a five-pointed red star and a sickle-and-hammer logo on several occasions of public appearance.
The applicant was sentenced to a criminal fine of 120,000 Hungarian forints (HUF) and ordered to pay another HUF 45,000 in criminal costs.
On 10 June 2008 the Budapest Regional Court upheld this judgment.
On 8 July 2008 the European Court of Human Rights adopted a judgment in a case introduced by the applicant on account of a previous conviction similar in nature (Vajnai v. Hungary, no. 33629/06, 8 July 2008). The Court held that prosecution for having worn a red star amounted to a violation of the applicant’s freedom of expression enshrined in Article 10 of the Convention. In pursuit of this judgment, on 10 March 2009 the Supreme Court acquitted Mr Vajnai in review proceedings holding that his incriminated act no longer represented danger to society.
Act no. IV of 1978 on the Criminal Code provides:
“(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment.
(2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.”
“(1) Any person who (a) disseminates, (b) uses in public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red star, or a symbol depicting any of them, commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine.
(2) The conduct prescribed under paragraph (1) is not punishable if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events.
(3) Paragraphs (1) and (2) do not apply to the insignia of States which are in force.”
Act No. XIX of 1998 on Criminal Procedure provides:
“(1) [... R]eview proceedings may be initiated ... if ... (a) a person ... was convicted ... in breach of the substantive provisions of criminal law ...”
“(1) The rules of third-instance proceedings (Chapter XV) shall be applicable to the conduct of the review proceedings ...”
“(1) The third-instance court may reverse the second-instance court’s judgment and adopt a lawful decision if the second-instance court gave its judgment in breach of the [substantive] provisions of criminal law ... provided that the findings of fact are well-founded or their deficiency could be rectified before the third-instance court.”
In case no. Bhar.II.2/2010/4 (judgment of 5 March 2010) which concerned the prosecution of a Mr F. for having displayed a red star, the Pécs Court of Appeal examined in detail whether or not Mr F.’s conduct represented any danger to society – an element inherent in the notion of a crime within the meaning of section 10 of the Criminal Code (see above) – and this in particular in the face of the Vajnai judgment cited above.


ITEMID: 001-96446
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LEXA v. SLOVAKIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1961 and lives in Bratislava. Between 1995 and 1998 he was the Director of the Slovak Information Service (Slovenská informačná služba), the Slovakian intelligence service. In September 1998 he was elected as a member of the National Council of the Slovak Republic (the Parliament) for a four-year term.
6. The applicant was summoned to give an explanation to a police investigator on 5 December 2002. On that day the investigator arrested the applicant and issued a decision in which he accused him of incitement to commit murder, abuse of authority and the mishandling of information classified as a State secret. The decision stated that the applicant was suspected of having prevented the proper investigation of the offence of abduction of the son of the then President of Slovakia abroad (for further details concerning that case see also Lexa v. Slovakia, no. 54334/00, §§ 9-63, 23 September 2008).
7. In particular, the decision referred to an extensive investigation including several statements of experts, documentary evidence obtained from the Slovak Intelligence Service, the examination of 58 witnesses including 8 witnesses whose identity was not disclosed and other evidence. The information thus obtained sufficiently justified the conclusion that the applicant, in his capacity as Director of the Slovak Intelligence Service, had taken the action described below with a view to (i) preventing the offence of abduction of the President’s son in 1995 from being elucidated, (ii) threatening F., a former member of the Slovak Intelligence Service, who had confirmed the involvement of the secret service in that offence and who had later been forced to hide abroad and (iii) preventing witness R. from maintaining contact with F. and killing the former. The applicant was accused of offering 2 million Slovak korunas (SKK) to S. to kill R. In that context, the applicant was suspected of having arranged for the monitoring of several persons and had transmitted the information thus obtained to S. despite the fact that it had been classified as “strictly secret”. S. had asked at least five persons to kill R. After the first attempt had failed, the perpetrators had activated, in April 1996, an explosive device which had been attached to R.’s car. The car had caught fire and R. had died inside. The investigator’s decision referred to a different set of proceedings brought against two persons accused of having activated the device.
8. The applicant immediately filed a complaint against the decision which a public prosecutor dismissed on the same day. The public prosecutor requested that the applicant be remanded in custody pursuant to Article 67 § 1 (a), (b) and Article 67 § 2 of the Code of Criminal Procedure.
9. On 7 December 2002 the applicant, in the presence of two lawyers, was heard by a judge of the Bratislava I District Court. The applicant stated that he knew neither R. nor the persons allegedly involved in his killing. His deprivation of liberty was arbitrary. The evidence on which the investigator relied had not been obtained in accordance with the relevant provisions of the criminal law and, as such, it could not be used in proceedings before a court. The applicant also complained that the investigator had not allowed him or his lawyers to consult the file without relying on any relevant reason. The judge informed the applicant that he would not put the file at his disposal as, at that stage of proceedings, such action was within the power of the investigator.
10. On the same day the judge remanded the applicant in custody with effect from 5 December 2002. The judge did not accept that there was a risk of the applicant’s absconding or influencing witnesses within the meaning of Article 67 § 1 (a) and (b) of the Code of Criminal Procedure. However, the decision stated, with reference to Article 67 § 2 of the Code of Criminal Procedure, that the applicant was charged with an offence carrying a minimum prison sentence of twelve years. The court’s decision also stated that the investigator had violated the applicant’s right to be presumed innocent by holding that his actions had met the constituent elements of the offences in issue.
11. The applicant filed a complaint which he supplemented several times. He alleged that the District Court judge had not allowed him or his counsel to consult the case file and that the evidence available had not been obtained in accordance with the procedural requirements and did not justify his being accused of the offences in issue. The applicant also submitted that the relevant events had occurred in 1996 and that, subsequently, public authorities had influenced public opinion, indicating that the applicant was responsible for the events in question. Furthermore, the first-instance court had disregarded the applicant’s own position, namely that the prosecuting authorities were biased and had striven to remand him in custody by all means. The applicant relied on the Court’s case-law under Article 5 §§ 1 and 4 of the Convention.
12. On 7 January 2003 the applicant’s counsel requested permission to consult the file. The Bratislava Regional Court permitted them to do so from 9 to 12 a.m. on 14 January 2003.
13. The Bratislava Regional Court dismissed the applicant’s complaint against the decision on his detention on remand at a meeting held on 14 January 2003, apparently shortly after the applicant’s counsel had consulted the file. The court met in camera; the relevant law excluded both the applicant and the public prosecutor from attending.
14. The decision stated that the applicant had been remanded in custody in accordance with the applicable procedural rules and that his detention was justified under Article 67 § 2 of the Code of Criminal Procedure. As to the applicant’s argument that he had been accused of the offences in issue arbitrarily, the decision stated that the Regional Court had thoroughly examined the evidence included in the file. It noted that the criminal proceedings against the applicant were at the initial stage only and concluded that the evidence available at that time justified the suspicion that the offences in issue had been committed. The applicant’s detention was not arbitrary. As to the applicant’s objections to the conduct of the criminal proceedings, the Regional Court pointed out that they fell within the competence of the public prosecutor in charge of the case.
15. On 14 February 2003 the Bratislava I District Court dismissed the applicant’s request for release.
16. On 2 June 2003 a judge of the Bratislava I District Court refused to extend the applicant’s detention. The decision stated, inter alia, that there had been relevant reasons for the applicant’s detention on remand when the Bratislava I District Court had delivered the above decisions of 7 December 2002 and 14 February 2003. The file contained evidence both against the applicant and in his favour. The former type of evidence had been taken in 2000 in the context of criminal proceedings against two other persons. As such it could not be used in the context of the criminal proceedings against the applicant. It was not clear why the investigator had not re-examined the witnesses concerned in the context of the criminal proceedings against the applicant. The reliability of certain statements could be cast into doubt as they had been made by persons linked to organised crime.
17. The judge further held that in the period after 5 December 2002 no evidence had been obtained in support of the accusation against the applicant. Thus during the six months the applicant was detained the investigator and the prosecutor had failed to gather sufficient evidence capable of strengthening the suspicion that the applicant had committed the offence imputed to him. On the contrary, the evidence obtained in the course of the last four months was in favour of the applicant. The ground for his detention had therefore ceased to exist.
18. On 5 June 2003 the public prosecutor ordered the applicant’s release.
19. On 21 September 2006 the Special Prosecution Service at the General Prosecutor’s Office discontinued the criminal proceedings on the ground that the facts underlying the proceedings had not occurred. The decision stated, inter alia, that the file contained no relevant evidence indicating that the applicant had committed the offence imputed to him. There was no proof that the accused persons in the other set of proceedings had committed the offence which, according to the accusation, the applicant had allegedly incited them to commit.
20. On 5 December 2002 an extraordinary briefing was held at which the Minister of the Interior provided details concerning the arrest of the applicant. The Minister read out extracts from the decision by which the applicant had been accused.
21. On 6 December 2002 the daily Sme with nationwide distribution published an article about the case. It reported on the Minister’s statements at the above briefing. Reference was also made to a statement by a public prosecutor who had pointed out that the decision on the applicant’s guilt or innocence lay with a court and had expressed the view that the existing evidence was sufficient.
22. On 10 December 2002 Sme published an interview with the investigator who had accused the applicant of the above offences. The investigator stated that the police had had sufficient evidence, comprising both witness statements and documents, to bring criminal proceedings against the applicant.
23. On 14 December 2002 Sme reported on statements made by the public prosecutor in charge of the applicant’s case. According to those statements, one witness had confirmed that the applicant had offered him SKK 2 million for the killing of the person concerned.
24. Finally, on 16 December 2002 Sme published an article about the judge of the Bratislava I District Court who had remanded the applicant in custody. The article indicated that the judge had been aware that the applicant had been summoned to appear before a police investigator on 5 December 2002. At that time the judge had been on duty and he had had a premonition that “something would happen”. The judge expressed the view that the case had fallen to be dealt with by him by pure chance. The judge had had only one day to study the file, which comprised several hundred pages. The hearing of the applicant prior to his detention on remand had lasted 4 hours. The judge confirmed that, according to documents included in the file, one witness had confirmed that the applicant had asked him to eliminate a witness against him for SKK 2 million.
25. On 13 March 2003 the applicant filed a complaint with the Constitutional Court. He alleged a violation of his rights under Article 5 §§ 1, 3 and 4 and under Article 6 §§ 1, 2 and 3 of the Convention. He also relied on several constitutional provisions.
26. As regards the proceedings leading to the Bratislava I District Court’s decision to remand him in custody, the applicant complained that the judge had not allowed him and his counsel to consult the case file, indicating that such a decision was within the competence of the investigator. The applicant thus could not show that his accusation had been based on evidence which had been obtained by unlawful means and which, for that reason, could not be used in proceedings before a court. The judge had not examined whether relevant reasons for the applicant’s detention had existed.
27. The applicant further complained that the judge of the Bratislava I District Court had subsequently given an interview in which he had made comments on the applicant’s deprivation of liberty and disclosed details from the case file. The applicant affirmed that those statements had been made in the context of a campaign launched against him. His rights to a fair hearing and to be presumed innocent had thereby been violated.
28. As regards the decision given by the Bratislava Regional Court on 14 January 2003, the applicant complained that the principle of equality of arms had been breached as he had not had sufficient time, after his counsel had consulted the file, to supplement his complaint against the decision on his detention on remand. He had been accused on the strength of evidence obtained contrary to the relevant provisions of the Code of Criminal Procedure in that it had been taken previously within the framework of another set of proceedings. That had been a deliberate attempt to diminish his ability to defend himself. That evidence could not be used in proceedings before courts, including proceedings concerning his detention on remand.
29. On 16 April 2003 the Constitutional Court rejected the complaint. The decision stated that the Constitutional Court lacked the power to review the factual findings of ordinary courts in matters relating to detention on remand. The Constitutional Court found that in the context of the criminal proceedings brought against him the applicant risked a minimum prison term of twelve years. The material condition for his detention on remand under Article 67 § 2 of the Code of Criminal Procedure had therefore been made out. Both courts had examined the file and concluded that the evidence available justified the suspicion that the applicant had been involved in the offences concerned. However, a “reasonable suspicion” that a person had committed an offence did not require the existence of proof. In respect of this part of the applicant’s complaint the Constitutional Court concluded that it lacked the power to substitute the decision-making of the ordinary courts on the applicant’s detention on remand.
30. The Constitutional Court further declared manifestly ill-founded the complaints under Article 5 § 3 and Article 6 of the Convention. It noted that the applicant had been assisted by two advocates during his examination by the judge of the District Court. He had had an adequate opportunity to defend his rights. As to the alleged violation of Article 5 § 4 of the Convention, the Constitutional Court held that it had been open to the applicant to bring proceedings with a view to challenging the lawfulness of his detention on remand. However, he had not availed himself of that right. There was no causal link between the conduct of the ordinary courts in the proceedings in issue and the applicant’s right under Article 5 § 4 of the Convention. As regards the principle of equality of arms enshrined in Article 6 of the Convention, it was not applicable to proceedings in which the courts deprive a person of liberty for the purpose of his or her criminal prosecution.
31. Finally, the Constitutional Court noted that the applicant had filed his complaints under Articles 6 §§ 1 and 2 of the Convention about the statements made by the District Court judge more than two months after he had learned about the article in issue. In that respect, the statutory time-limit had not been respected.
32. Article 65 § 1 gives the accused person the right to consult the file with certain restrictions enumerated therein. Paragraph 2 provides that, at the pretrial stage, the public prosecutor or the police authority can only refuse a person access to a file concerning him or her for exceptional reasons.
33. Article 67 § 2 provides that an accused person can be remanded in custody where he or she is prosecuted for an offence punishable with a minimum prison sentence of eight years.
34. Article 74 § 1 provides that a complaint is available against a decision to remand a person in custody.
35. Under Article 163 § 1, where the facts established sufficiently justify the conclusion that a criminal offence was committed by a particular person, the investigator or police authority shall deliver a decision, without delay, accusing that person of the offence in issue. The accused is to be notified of the decision within three days and not later than at the beginning of his or her first examination.
36. In accordance with the Supreme Court’s practice (Rt 95/1999), when considering whether reasons for remanding a person in custody exist, the authorities may have regard exclusively to circumstances and findings which have their basis in the procedural steps aimed at the establishment of evidence and which are relevant for the conclusion that a statutory reason exists for detaining a person in custody.
37. In decision Tpj 3/95 of 23 October 1995 the Supreme Court held that the detention on remand of a person under Article 67 § 2 of the Code of Criminal Procedure is lawful where the accused person is prosecuted for an offence punishable with a minimum prison term of eight years provided that a justified suspicion exists that the person concerned committed the offence imputed to him or her. The above minimum prison term as such does not render an accused person’s detention mandatory in each case. Article 67 § 2 permits a decision not to remand such an accused person in custody where it is
38. In decision NtvI-20/02 of 10 January 2003 the Supreme Court expressed the view that the minimum prison term set out in Article 67 § 2 of the Code of Criminal Procedure could be the sole reason for a person’s detention only for a limited time, in particular at the initial stage of criminal proceedings. If a person was detained for longer, further relevant reasons were required.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1