ITEMID: 001-60804
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF LINDNER AND HAMMERMAYER v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under P4-2-2
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicants live in Frankfurt, Germany.
9. On 2 October 1939 the applicants' mother acquired title to a property in Bucharest composed of three flats. On 30 March 1948 she sold one of the flats to L.N. In 1975 she emigrated to Germany.
10. On 18 September 1975 the State took possession of the property pursuant to Confiscation Decree no. 223/1974. The applicants' mother was never informed of the grounds or legal basis for that confiscation.
11. On 27 July 1992 the applicants, as heirs, brought proceedings against Bucharest City Council and the managing company of State-owned housing, H., in the Court of First Instance of the first district of Bucharest to have the confiscation order against the property set aside. They argued that their mother had been the owner of the property and that the State had confiscated it pursuant to Confiscation Decree no. 223/1974, but that the deprivation of property had been unlawful because the administrative confiscation order had never been served on their mother. On 3 May 1994 the court delivered a judgement which was subsequently set aside by a decision of 19 April 1995 of the Bucharest County Court following a procedural flaw. The case was then remitted to the Court of First Instance.
12. In a judgment of 28 January 1995 the court granted the claim on the ground that the administrative confiscation order in favour of the State had not satisfied the statutory formal conditions. Accordingly, it held that the State had not lawfully acquired title to the property and that the applicants were the lawful owners. The court ordered the confiscation order to be set aside and the property to be returned to the applicants.
13. An appeal by Bucharest City Council was dismissed on 17 May 1996 by the Bucharest County Court on the same grounds as the Court of First Instance.
14. The City Council appealed to the Bucharest Court of Appeal. In a judgment of 14 October 1996 the court allowed the appeal and dismissed the applicants' action for recovery of possession. It found that the property in question had become State property pursuant to a valid legal title, namely the City Council's decision of 18 September 1975, and held that in order to secure its return or, if applicable, compensation, the applicants' only remedy was under the provisions of Law no. 112/1995 on the restitution of certain nationalised property.
15. On 20 December 1996 the State sold one of the remaining two flats to the former tenant.
16. The relevant domestic legislation and case-law are set out in the Brumărescu v. Romania judgment ([GC], no. 28342/95, §§ 31-44, ECHR 1999-VII).
17. The relevant provisions of Decree no. 223/1974 on the confiscation of certain real property read as follows:
“In the Socialist Republic of Romania title to real property, buildings and land can only vest in natural persons who are domiciled in the country.”
“Anyone who has applied for permission to leave the country with the intention of permanently settling abroad must first dispose of their real property in favour of the State and can do so up until the date of their departure ... . Real property belonging to persons who have illegally left the county or have failed to return within the statutory time-limit shall become the property of the Romanian State with no compensation whatsoever. ...”
18. The position of the Supreme Court of Justice on this point can be summarised in the following way: on 20 November 2000 the full Supreme Court of Justice found that the courts did not have a common position on the subject of actions for recovery of possession by which applicants sought restitution, under the ordinary law, of real property confiscated under Decree no. 223/1974. It noted that some courts had held that such actions were inadmissible on the ground that the claims should have been brought under the special law enacted for that purpose, Law no. 112/1995, whereas others had held that they were admissible. The Supreme Court concluded that the courts did have jurisdiction to examine, under the ordinary law, actions for recovery of possession of property confiscated by the State pursuant to Decree no. 223/1974.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67768
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF WOJTKIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1954 and lives in Bochnia, Poland. He works as a notary.
10. On an unspecified day in March 1991 a certain Mr X filed with the Bochnia District Court a request that the co-ownership of an estate be dissolved.
11. The court held hearings on 30 July 1991, 12 May 1992, 9 March 1993, 29 April 1994, 26 April 1995 and 8 May 1996.
12. On 29 August 1996 the applicant purchased a share in that estate.
13. On 6 September 1996 he requested the court to allow him to participate in the proceedings.
14. On 12 September 1996, as a party to the proceedings, he requested the court to appoint a guardian ad litem for those co-owners whose place of residence was not known and for the heirs of a late co-owner. The applicant further raised a claim to establish the title to the disputed property and to evict two individuals.
15. On 16 October 1996 the court granted the applicant leave to participate in the proceedings.
16. In November 1996 the case was transferred to the Kraków Nowa-Huta District Court.
17. Hearings were held on 4 February and 26 March 1997.
18. On 26 March 1997 the court refused to allow the former co-owners of the applicant's share to participate in the proceedings. On 30 September 1997 the Kraków Regional Court dismissed an appeal against that decision lodged by Mr X.
19. The District Court held hearings on 11 December 1997, as well as on 5 February and 3 December 1998.
20. On 28 February 1998 it refused certain co-owners' request for an interim measure. They appealed and on 21 July 1998 the Regional Court quashed that decision and ordered the re-examination of the request. On 9 and 28 October 1998 the District Court ordered interim measures.
21. On 20 February 1999 the court stayed the proceedings, considering that it was first necessary to carry on inheritance proceedings concerning the estate of a late co-owner in order to establish the identity of the heirs and their shares in the estate. The applicant and certain other co-owners appealed and on 18 June 1999 the Kraków Regional Court quashed that decision. In its decision it also ordered the District Court to exclude from those proceedings the issue of the ownership title to the estate and to initiate separate proceedings in this respect. It considered that in the light of a suspicion that Mr X and certain other participants in the proceedings could not be co-owners of the estate it was necessary to establish who had the genuine ownership title to the share allegedly owned by them.
22. The District Court carried out that order on 5 October 1999. On 11 October 1999 the court stayed the proceedings concerning the dissolution of the co-ownership until the proceedings concerning the establishment of the title to the disputed share were completed.
23. On 2 December 1999 the Kraków Nowa-Huta District Court declared its lack of jurisdiction over the case and transferred it to the Tarnów Regional Court.
24. On 7 December 1999 the District Court refused the applicant's request, lodged on 12 September 1996, to appoint a guardian ad litem. On 17 March 2000 the Kraków Regional Court quashed that decision and ordered the re-examination of the request.
25. On 22 January 2001 the Kraków Court of Appeal, on the request of one of the defendants, excluded the judges of the Tarnów Regional Court from participation in the proceedings concerning the establishment of ownership title. The court found, inter alia, that the applicant used to work as a judge on that circuit and was acquainted with the judges of that court.
26. On 22 March 2001 the Kraków Regional Court held a hearing, at which it decided to examine the case-file of the proceedings concerning the dissolution of the co-ownership and consider whether the case dealt with by it could be joined to those proceedings.
27. On 11 June and 11 October 2001 the court held hearings.
28. On the latter date it gave judgment. The court dismissed the applicant's claim. He and other plaintiffs appealed.
29. On 15 March 2002 the Kraków Court of Appeal quashed the judgment of the Regional Court and remitted the case for re-examination.
30. On 19 December 2003 the Kraków Regional Court gave a final judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60557
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MARKASS CAR HIRE LTD v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 8. The applicant company is the owner and hire purchaser of a fleet of vehicles registered in Cyprus and licensed as “Z” vehicles.
9. On 1st July 1996 the District Court of Nicosia delivered judgment in a civil action lodged by the applicant against another company, Diprose Ltd, also in the car hire business. The District Court held, inter alia, that the applicant having legally terminated an agreement with Diprose, permitting the use and exploitation by the latter of the “Z” fleet of cars, it was entitled to take possession thereof and to sell them in satisfaction of a debt of 667,776 Cypriot pounds owed to it by Diprose, by way of rental under the said agreement, and to pay the remaining amount in satisfaction of debts owed by the applicant to a number of banks which had financed the purchase of the fleet by the applicant. Furthermore, the District Court ordered Diprose to deliver the cars to the applicant. Diprose obtained a stay of execution of the judgment on condition that it regularly paid certain instalments to the applicant for the use of the vehicles which the applicant had given to it in the past for rental to third parties.
10. Diprose failed to keep up the instalments and, as a result, on 8 January 1998, the District Court of Nicosia allowed the applicant to collect the vehicles. In the meantime, Diprose had been wound up and, by letter of 11 February 1998, the liquidator declared that he was willing to return the vehicles, which apparently had been wrongfully given to another company, Kemtours Ltd, belonging to the same group as Diprose, without the consent of the applicant.
11. In the meantime, Kemtours had instituted proceedings (action 3315/98) seeking damages from the applicant for breach of the agreement which they had allegedly concluded on 3 February 1997. Kemtours contended that, under that agreement, 127 vehicles had been rented to it by the applicant but a number of them was still in the applicant's possession. Kemtours further sought to obtain a decision preventing the applicant company from interfering with Kemtours' activities under the agreement and ordering it to hand over to Kemtours a number of the vehicles which were still in the applicant's possession.
12. Whilst the applicant was in the process of collecting the vehicles, Kemtours obtained in fresh proceedings before the District Court of Nicosia, and on an ex parte basis, an interim decision which ordered the applicant to deliver the said vehicles to Kemtours. This order was issued on 31 March 1998 and served on the same date on the applicant.
13. The order was to be enforced on 13 April 1998. On that date, the applicant's lawyer appeared before the court and requested time to appeal against the order. The court fixed the case for directions on 5 May 1998 and then again on 7, 20 and 25 May in order to afford time to the parties to settle their dispute. The court invited the lawyer to file an appeal at least four days before 5 May 1998.
14. However, the applicant filed its appeal on 5 May 1998. The applicant maintained that the court had been misled by Kemtours, which had failed to disclose the real facts of the case and the previous judgment and decision of the District Court. The applicant invited the District Court to hold a hearing as soon as possible in view of the fact that the fleet of “Z” cars was worth more than 500,000 Cypriot pounds. Furthermore, the applicant alleged that the unauthorised use of the vehicles under the interim decision would entail a reduction of their value and would prevent the applicant from presenting them to the competent authorities in order to have their licenses renewed. Finally, the applicant affirmed that it had never entered into such an agreement with Kemtours.
15. As the parties had reached no settlement of the case by 27 May 1998, the District Court fixed the hearing for 8 July 1998. On this date, the judge stopped the hearing at midday, because of the “lateness of the hour”, and adjourned it until 17 July 1998, during the summer recess. However, the judge pointed out that he would be working during this period.
16. The hearing started on 17 July 1998. Evidence given by Kemtours was completed on the same day.
17. According to the applicant, the hearing should have been completed in the same month or at the beginning of August 1998. However, it was repeatedly adjourned due to the illness of either the advocate for the plaintiff or the judge dealing with the case, as well as to the latter's transfer to other pending court proceedings.
18. At the end of the hearing on 17 July 1998, the applicant's lawyer had indicated five dates in July on which he could make himself available for the continuation of the hearing, but the advocate for the plaintiff declared that he would be unavailable due to other court commitments.
19. Adjournments were thus ordered until 7 and 9 September 1998 (because the advocate for the plaintiff had to undergo an operation), 5 November 1998, 12 November 1998, 17 December 1998 (due to the court's lack of time and the illness of the advocate for the plaintiff), 7 January 1999, 14 January 1999, 25 February 1999 (on which date the case was heard by another judge because the judge dealing with the case was ill), 18 March 1999, 22 April 1999, 13 May 1999, 2 June 1999, 17 June 1999, 1 July 1999, 6 July 1999, and 9 and 10 September 1999.
20. On 27 April 1999 and as a result of the repeated adjournments, the applicant filed an application for certiorari and prohibition with the Supreme Court. It sought the annulment of the interim order because of the excessive delay in the proceedings before the District Court. The applicant also alleged that the court had exceeded its jurisdiction on a matter of construction involving section 9 of the Civil Procedure Law. On 27 May 1999 the Supreme Court refused the application. On the same date the applicant appealed against that decision and, by way of a letter to the President of the Supreme Court, invited him to expedite the proceedings.
21. Following a letter from the applicant's lawyer, who complained about the delay in the proceedings, the President of the District Court assigned the case to a new judge on 10 June 1999.
22. In the meantime, on 21 April 1999, Kemtours had applied for an order of imprisonment of the applicant's managers for contempt of the interim order of 31 March 1998. Initially fixed for 2 June 1999, the hearing was adjourned until 17 June and then until 6 July 1999, because of the direct relevance of these proceedings to those concerning the interim order. Due to the summer recess both sets of proceedings were fixed for hearing on 9 and 10 September 1999.
23. On 9 September 1999 the District Court decided that the hearing relating to the interim order should precede the contempt hearing. The hearing commenced on 10 September and was adjourned until 30 September, and then until 8 October because the plaintiff's advocate had failed to summon a witness whom he wished to call to give evidence. The hearing continued on 8 and 20 October, but on 27 October it was adjourned until 9 November 1999 at the request of the plaintiff's advocate. The court rejected the objection by the applicant's lawyer's on the ground that the adjournment was granted in order to permit the other party to prepare a document which would expedite the proceedings. The hearing continued on 9, 12 and 18 November 1999 and the court heard six witnesses.
24. On 3 December 1999, when the hearing was to be resumed, the advocate for the plaintiff requested an adjournment because his bad state of health necessitated an operation abroad. The continuation of the hearing was fixed for 22 December 1999.
25. On 9 December 1999, the date on which the hearing in the contempt proceedings ought to have taken place, the District Court again ordered an adjournment until 14 January 2000 and then until 24 January because the plaintiff's advocate was hospitalised abroad. However, following a protest by the applicant's lawyer, the court affirmed that no further request for an adjournment would be granted.
26. On 21 January 2000 the District Court again adjourned the hearing until 28 February 2000 in order to give time to the newly appointed lawyer for the plaintiff to familiarise himself with the case. The applicant's lawyer did not object because he stated that he had other court commitments.
27. The hearing resumed on 28 February 2000 with the testimonies of two witnesses, thus bringing to eight the total number of witnesses heard. On 17 March 2000, the parties made their final addresses.
28. By judgment of 11 May 2000, the District Court held that the interim order was no longer in force. It declared it null and void because the plaintiff had failed to prove its allegations; it also held, at page 16 of the judgment, that the failure of Kemtour to file the Statement of Claim over a two-year period could not be attributed to the illness of the lawyer.
29. Section 4 of Cap. 6 (Civil Procedure) reads as follows:
“The court may at any time during a pending action make an order for the ...preservation, custody, sale, detention or inspection of any property being the subject of the action, or an order for preventing any loss, damage or prejudice which but for the making of the order might be occasioned to any person or property, pending a final judgment on some question affecting such person or property or pending the execution of the judgment.”
30. Section 9 of Cap. 6 (Civil Procedure) reads as follows:
“(1) Any order which the court has power to make may, upon proof of urgency or other special circumstances, be made on the application of any party to the action without notice to the other party.
(2) Before making any such order without notice the court shall require the person applying for it to enter into a recognisance, with or without a surety or sureties as the court thinks fit, as a security for his being answerable in damages to the person against whom the order is sought.
(3) No such order made without notice shall remain in force for a longer period than is necessary for service of notice of it on all persons affected by it and enabling them to appear before the court and object to it; and every such order shall at the end of that period cease to be in force, unless the court, upon hearing the parties or any of them, shall otherwise direct; and every such order shall be dealt with in the action as the court thinks just.
(4) Nothing in this section shall be construed to affect or apply to the powers of the court to issue writs of execution.”
31. In some recent judgments the Supreme Court has ruled that the procedure for deciding an interim order which is issued on an ex parte basis is an exceptional one and must therefore be dealt with and treated as a matter of urgency. In two cases, the Supreme Court decided that such an order must be served within two to four days and be brought before the judge for trial within seven days (judgments of 25 June 1999 and 10 September 1999). The Supreme Court found that periods of 17 and 21 days to serve the order, and give the other party an opportunity to oppose it, were excessive. In the case of SPE Agias Fylas v. Christoforou (judgment of 4 October 1999), the Supreme Court ruled that, if a court issued an ex parte order which is not urgent, it will be set aside for excess of jurisdiction.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23836
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: REUTHER v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Hugo Reuther, is a German national, who was born in 1939 and lives in Presseck (Germany). He was represented before the Court by Mr K.D. Deumeland.
On 7 December 1999 the Kulmbach District Court made a sentence order (Strafbefehl) against the applicant. In a decision of 19 June 2000, after the prosecution had revoked the sentence order, the District Court ruled that the costs necessarily incurred by the applicant were to be paid by the State. On 4 July 2000 the applicant’s representative, who also represented him before the Court, sought reimbursement of 1,916.32 German marks (DEM – approximately 950 euros (EUR)).
On 23 August 2000 the District Court dismissed the representative’s claim for failure to comply with Article 138 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below) on the ground that he was not a lawyer admitted to practise at a German court and had not been authorised by the court to represent the applicant. The costs in question had therefore not been necessarily incurred within the meaning of Article 464 of the Code of Criminal Procedure. Furthermore, the applicant had merely claimed a lump sum, which could not be refunded.
On 5 September 2000 the Bayreuth Regional Court upheld the lower court’s decision. It added that the applicant’s representative could not be regarded as a professor or lecturer in law (Rechtslehrer) within the meaning of Article 138 § 1 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below), since that provision did not apply to non-tenured lecturers (Lehrbeauftragte) at a higher-education establishment.
On 16 September 2000 the applicant lodged a constitutional appeal with the Bavarian Constitutional Court (Bayerischer Verfassungsgerichtshof) against the decisions in issue.
In a letter of 26 September 2000 the legal secretary (Rechtsreferentin) of the Bavarian Constitutional Court acknowledged receipt of the applicant’s appeal and asked his representative, among other things, to state whether he was a lawyer admitted to practise or a professor or lecturer in law at a university (Hochschule).
In a letter of 8 November 2000 the legal secretary informed the applicant of a number of obstacles that might prevent the appeal from being declared admissible and well-founded. She concluded that, for the reasons stated, the appeal appeared to be partly inadmissible and partly manifestly ill-founded (offensichtlich unbegründet). In such cases, the Constitutional Court could order appellants to pay a certain sum (a maximum of DEM 3,000 – approximately EUR 1,500) before it continued its examination of the appeal, the aim being to avoid unnecessary expense for those concerned. The legal secretary gave the applicant one month to reply, failing which the case would be deemed to have been settled.
The applicant replied on 4 December 2000.
In a decision of 15 January 2001 the Bavarian Constitutional Court, sitting as a panel of three judges, ordered the applicant to pay DEM 1,500 by way of an advance for costs (Kostenvorschuss). The decision was accompanied by a short letter from the legal secretary explaining, in particular, that it had been taken pursuant to section 27(1) of the Bavarian Constitutional Court Act and that the appeal was therefore regarded as inadmissible or manifestly ill-founded.
In a letter of 23 January 2001 the applicant contended that the decision should have contained a statement of reasons.
On 30 January 2001 the legal secretary replied that decisions on orders for costs did not require a statement of reasons. She drew attention to her letter of 8 November 2000 and sent him a copy of the entire file so that he could consult it as he had requested.
The applicant did not pay the sum demanded.
Article 138 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that defendants may choose as their counsel any lawyer admitted to practise at a German court or a professor or lecturer in law (Rechtslehrer) at a German university (Hochschule). Article 138 § 2 provides, inter alia, that other persons may be authorised to act as counsel by the court dealing with the case.
In practice, neither professors or lecturers in law at a university of applied sciences (Fachhochschule) nor non-tenured lecturers (Lehrbeauftragte) at a higher-education establishment are regarded as “professors or lecturers in law” within the meaning of this provision. In two recent decisions of 5 May 1999 (no. 1 Ws 121/99) and 3 May 2000 (no. 1 Ws 94/00) the Jena and Dresden Courts of Appeal (Oberlandesgericht) held respectively that a professor of law attached to a university of applied sciences and a non-tenured law lecturer were entitled to be regarded as professors or lecturers within the meaning of Article 138 § 1 of the Code of Criminal Procedure.
Section 11 of the Bavarian Constitutional Court Act (Gesetz über den Bayerischen Verfassungsgerichtshof) of 10 May 1990 provides that the President appoints a secretary-general from among the court’s professional judges. The secretary-general’s role is to assist the President in carrying out his duties and with administrative tasks.
Section 12(1) provides that when the Constitutional Court is not in session, its powers are assumed by the President or are delegated by him to the secretary-general. The secretary-general may, for example, be instructed to take the necessary procedural steps for the preparation of sessions and to carry out administrative duties.
Section 12(3) provides, inter alia, that the President appoints a person to represent the secretary-general in discharging non-judicial duties.
In practice, this person is known as the legal secretary (Referent) of the Bavarian Constitutional Court.


ITEMID: 001-118645
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BAKSZA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant was born in 1974 and lives in Gödöllő.
6. The applicant, married and father of a minor, was arrested on 18 January 2006, because the police found several suspicious spare car parts, car documents and various tools in his vehicle. On the same day he was interrogated on suspicion of attempted aggravated larceny, allegedly committed in respect of a van.
7. On 20 January 2006 the prosecution proposed the applicant’s pre-trial detention. Relying essentially on the above material evidence, it was of the view that there was reasonable suspicion that the applicant and his accomplice, together with other unknown helpers, were active in the car theft business.
8. On the same day, the Dunakeszi District Court ordered the applicant’s pre-trial detention, referring to, but not substantiating, the risks of absconding, collusion and repetition of crime. An accomplice was detained as well.
9. The applicant appealed, challenging the suspicion against him and pointing out that his settled background – he had never been convicted before, had legal income, and supported several family members – rendered unlikely the risks of absconding and repetition of crime. The Pest County Regional Court dismissed the appeal on 27 January 2006, without addressing in detail the applicant’s arguments.
10. On 13 February 2006 the applicant’s detention was prolonged. The decision referred to eight counts of larceny. In his appeal, the applicant pointed out that the material evidence relating to one of the thefts was in no way capable of connecting him to the vehicle in question, whereas in respect of the remaining seven counts, he had not formally been implicated as a suspect.
11. On 28 February 2006 the Regional Court dismissed the appeal. Without addressing in detail the defence’s arguments, the court pointed out that it could not assess the evidence at that stage of the proceedings.
12. On 24 April 2006 the applicant requested his release. He argued that the living conditions of those supported by him had deteriorated. His request was to no avail.
13. Subsequently, the applicant’s detention was repeatedly prolonged at the statutory intervals. The reasoning in the decisions was largely identical to that in the previous ones, and the discrepancy in the counts of theft with which the applicant was charged persisted. His requests for release were to no avail.
14. On 10 July 2006 the prosecution again proposed the prolongation of the applicant’s detention. This time, reasonable suspicion was invoked in respect of four counts of car theft. The reasons for the applicant’s proposed detention remained the same.
15. On 14 July 2006 the District Court held a hearing and sustained the prosecution’s motion, while including in the decision the suspicion of another car theft. The applicant’s appeal and subsequent requests for release were to no avail.
16. On 29 August 2006 an expert was appointed to examine whether or not the material evidence found in the applicant’s car was capable of connecting him to any car theft.
17. Further prolongations took place on 19 October and 16 November 2006, with essentially unchanged reasoning. The applicant’s ensuing requests for release or a less stringent measure were unsuccessful.
18. On 21 December 2006 the applicant was charged with further counts of car theft.
19. On 15 January 2007 the Pest County Regional Court prolonged the applicant’s detention. The underlying reasons were the same as before. In his appeal, the applicant complained that the expert opinion had never been communicated to him.
20. After further prolongations, on 16 May 2007 a bill of indictment was preferred. The applicant was charged with altogether 17 counts of car theft or attempted car theft and one count of forgery of documents. The applicant’s detention was maintained, with reference to the risk of absconding and repetition of crime.
21. The first hearing took place on 21 November 2007. The applicant’s detention was upheld because, in the trial court’s view, the potential severe sanction gave rise to a risk of absconding. No reason was given as to the risk of repetition of crime.
22. The applicant’s subsequent requests for release or a less stringent measure were to no avail.
23. Apart from the one of 10 July 2006, none of the prosecution’s motions to have the applicant’s detention prolonged had made any specific reference to the actual evidence which underlay the alleged risks held against him. The applicant’s lawyer repeatedly complained about having no access to these pieces of evidence – in particular, on 17 July and 20 November 2006 – however, this omission was not redressed; and the courts did not refute the defence’s allegations of having no access.
24. Of the altogether twenty-four decisions on the applicant’s detention, only one contained separate arguments in respect of each of the two co-detainees.
25. The authorities prolonging the applicant’s pre-trial detention considered the possibility of applying less stringent measures on 8 May 14 July and 16 November 2006, but eventually they did not avail themselves thereof.
26. The applicant was finally released on 2 June 2008. A prohibition on leaving his domicile was imposed on him.
27. On 24 May 2011 the applicant was convicted at first instance. The case is currently in the appeal stage.
28. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:
“(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention. Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.”
“(1) If the period of the pre-trial detention ordered or maintained after filing the indictment
a) exceeds six months and the court of first instance has not delivered a conclusive decision, the justification of such pre-trial detention shall be reviewed by the court of first instance,
b) exceeds one year, the justification of such pre-trial detention shall be reviewed by the court of second instance.
(2) After the lapse of the time period specified in subsection (1) b), the justification of the pre-trial detention ordered or maintained after filing the indictment shall be reviewed by the court of second instance, or, if the procedure is held before the court of third instance, by the court of third instance, at least once in every six months.”
“(3) At the session the party [that is, the prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence of the party having submitted the motion. If the notified party does not attend the session but had submitted his observations in writing, this document shall be presented by the investigating judge.”
“(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken.
(2) The suspect, the counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but they may only inspect other documents if this does not injure the interests of the investigation.
(3) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect.
(4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority. No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-76179
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZARB v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1971 and is currently detained at Corradino prison (Malta).
5. On 5 April 1991 the applicant, accused together with other persons of various counts of aggravated theft (including theft in various factories and car theft), was arraigned before the Court of Magistrates sitting as a Court of Criminal Inquiry.
6. The prosecution concluded the case on the merits on 12 October 1993. It produced further evidence on charges of recidivism on 14 January 1994.
7. The legal qualification of the charges was presented on 14 April 1994, on which date the Court of Magistrates started to hear the evidence for the defence.
8. In a judgment of 15 February 1995, the Court of Magistrates acquitted the applicant of two of the charges, namely receiving stolen goods and theft of a car. It found the applicant guilty of the remaining six charges of theft and sentenced him to four years’ imprisonment.
9. The applicant appealed against his conviction and sentence. Four of his co-accused appealed, challenging exclusively the reasonableness of their sentence.
10. The defendants introduced a number of requests for release on bail, for the examination of new witnesses and for leave to present further submissions. This led to the adjournment of the case on several occasions, in particular on 29 February 1996 and on 13 March 1997, dates scheduled for the delivery of the judgment. The examination of the case was suspended from 14 January until 8 October 1999 because the presiding judge was ill.
11. The delivery of the judgment was scheduled first for 9 January, then for 30 October 2001; however, the proceedings were adjourned as some of the accused wished to present further submissions and because the presiding judge had been assigned to a foreign tribunal. By an order of 3 October 2002 the Court of Criminal Appeal adjourned the proceedings sine die awaiting the outcome of the constitutional claim which the applicant had introduced in the meantime (see infra, under B. “The applicant’s constitutional claim”).
12. The proceedings were resumed after the determination of the applicant’s constitutional claim, and on 15 January 2004 the Court of Appeal gave its final judgment. It reaffirmed that its role was not to interfere with the first court’s appreciation of the evidence, as long as it was satisfied that the conclusions reached by the Court of Magistrates were lawful and reasonable. In the light of the material before it and having regard to the fact that the applicant had admitted his guilt, the Court of Criminal Appeal confirmed the first-instance judgment.
13. In the meantime, on 5 April 2002 the applicant had filed a constitutional claim with the Civil Court (First Hall). Invoking Article 6 of the Convention and Article 39 of the Constitution of Malta, he complained about the length of the criminal proceedings and alleged that his trial had not been fair.
14. In a judgment of 15 May 2003, the Civil Court dismissed the applicant’s claim.
15. The Civil Court observed that no delay could be imputed to the prosecution or to the trial court. The case was a rather complex one, as it involved many counts and a number of accused persons. Moreover, the Court of Magistrates had to hear several witnesses and to obtain many documents. Notwithstanding this, most of the requests for bail were decided on 17 April 1991, which was only twelve days after the date of the arraignment. Some of the accused failed to appear at several hearings, thus obliging the trial court to adjourn the proceedings. There were also difficulties in controlling the various accused, as their behaviour during the hearings had obstructed the normal course of justice. As some of them did not respect the bail conditions, the police had to take action for the revocation of bail and the Court of Magistrates had to decide on this issue. Some witnesses were untraceable and others, albeit properly summoned, did not attend the sittings. There had been no excessive delay in the inquiries and it had to be taken into account that it was necessary to exhibit the record of the inquiry for every single charge. The prosecution had concluded the case within a reasonable time and the proceedings before the Court of Magistrates were conducted without any unnecessary delay.
16. As to the proceedings before the Court of Criminal Appeal, they were prolonged because of the great number of claims presented by the defence and the need to obtain several reports from prison officials and/or psychiatric experts on the behaviour of the defendants, with a view to considering the progress they had made while in prison. Apart from the period between 14 January and 8 October 1999, the case was never left dormant.
17. Therefore, notwithstanding the fact that the case had been pending for about eleven years, there had been no substantial delay. It was true that most of the delay had been caused by the requests of other accused and not of the applicant himself. However, the Court of Criminal Appeal considered that, the crimes being connected, it would not have been consonant with the proper administration of justice to separate the defendants’ respective situations.
18. On 27 May 2003 the applicant appealed against the Civil Court’s judgment to the Constitutional Court.
19. In a judgment of 31 October 2003, the latter quashed the impugned judgment in so far as it concerned the applicant’s complaint relating to the length of the criminal proceedings and declared that there had been a breach of the “reasonable time” principle. It also ordered the Attorney General to pay the applicant 100 Maltese liras (Lm – approximately 240 Euros) as just satisfaction. It held that each party had to bear its own costs. The Constitutional Court confirmed the Civil Court’s judgment for the remainder.
20. The Constitutional Court considered that there had been some delay at the appeal stage. The case was not particularly complex as the appeals concerned almost exclusively the measure of the penalty. Notwithstanding this, the case remained undecided for almost six years and six months and in November 2001 it was eventually referred to a new presiding magistrate. Even if it was true that the defendants presented a number of claims which had the effect of slowing down the proceedings, the Court of Criminal Appeal had the duty to ensure that the duration of the trial was not excessive. As most of these claims had been introduced by the other defendants, and not by the applicant himself, there had been a violation of the “reasonable time” principle in respect of the latter.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-119957
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF LEVENTOĞLU ABDULKADİROĞLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1972 and lives in İzmir.
6. Following her marriage to Atila Abdulkadiroğlu on 6 July 1996, the applicant, whose surname was “Leventoğlu” prior to her marriage, had to take her husband’s surname pursuant to Article 153 of the Turkish Civil Code. As she was known by her maiden name in her academic and professional life, she continued to use it; however, she could not use it in any official documents.
7. An amendment to Article 153 of the Civil Code on 14 May 1997 meant that married women acquired the right to put their maiden name in front of their husband’s surname. The applicant preferred not to make use of that option because, in her view, the amendment in question did not satisfy her request, which was to use her maiden name on its own.
8. Following the enactment of the new Civil Code on 22 November 2001, Article 187 was worded identically to the former Article 153 (see “Relevant domestic law and practice” below).
9. On 26 September 2005 the applicant brought proceedings before the İzmir Court of First Instance seeking permission to use only her maiden name, Leventoğlu.
10. On 6 December 2005 the court dismissed the applicant’s request on the grounds that, pursuant to Article 187 of the Civil Code, married women had to bear their husband’s name throughout their marriage and were not permitted to use their maiden name alone.
11. The applicant appealed against that judgment and on 21 March 2006 it was upheld by the Court of Cassation. A request by the applicant for the proceedings in her case to be reopened was further rejected by the same court on 14 July 2006. That decision was served on the applicant on 11 August 2006.
12. The relevant provisions of the Civil Code read as follows:
“Married women shall bear their husband’s name. ... ”
“Married women shall bear their husband’s name. However, they can make a written declaration to the Registrar of Births, Marriages and Deaths on signing the marriage certificate, or at the Registry of Births, Marriages and Deaths after the marriage, if they wish to keep their maiden name in front of their surname ...”
13. The Turkish Constitution, in so far as relevant, reads as follows:
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.
Women and men shall have equal rights. ....”
“... International agreements that are duly in force shall be legally binding. Their constitutionality cannot be challenged in the Constitutional Court.
In the case of a conflict between international agreements in the area of fundamental rights and freedoms that are duly in force and domestic laws on account of differences in provisions concerning the same matter, the provisions of international agreements shall prevail.”
14. Following the enactment of Article 187 of the Civil Code, three family courts raised an objection with the Constitutional Court, arguing that the provision was unconstitutional. In a decision of 10 March 2011 (E. 2009/85, K. 2011/49), the Constitutional Court dismissed their objection.
15. The relevant international law is set out in the Court’s judgment in the case of Ünal Tekeli v. Turkey (no. 29865/96, §§ 17-31, ECHR 2004X).
VIOLATED_ARTICLES: 14
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-94310
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BOGATYREV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Anatoliy Gavrilovich Bogatyrev, is a Russian national who was born in 1960 and lives in Novosibirsk-95, the Novosibirsk Region. The respondent Government were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a retired military serviceman.
By a final and binding judgment of 27 September 2001 the Military Section of the Supreme Court of the Russian Federation allowed the applicant’s challenge of his dismissal from military service and ordered the military unit to reinstate him in his previous position as of 15 September 1999 until the delivery of the housing certificate. The court also awarded him all the allowances due over the period of his dismissal without listing them.
In 2002 the applicant applied on several occasions for the writs of execution to the Garrison Military Court No. 61 of the Novosibirsk-95 (“the Garrison Court”) and the Supreme Court, but to no avail.
On 4 April 2002 the applicant was reinstated in his previous position. He had not received an officer’s identity document. In July-August 2002 he started to receive his salary, was provided with the housing certificate and granted annual leave for 2001-2002. On 16 December 2002 he received arrears for the period from 15 September 1999 to 20 June 2002 and was dismissed from the military service.
On 29 January 2003 the Garrison Court issued the writs of execution in respect of the judgment. It appears that in the meantime the respondent military unit submitted to the court documents evidencing payment of the allowances. On 16 April 2003 the Garrison Court revoked the writs from the bailiffs, since the judgment had been executed in full.
On 5 February 2003 the Military Court of the 3rd Circuit in the final instance rejected the applicant’s claim for damages resulting from the failure to issue him with an officer’s identity document as unsubstantiated.
Under Article 205 § 2 of the Code of the Civil Procedure of the RSFSR (1964), in force at the material time, a court which delivered a judgment could, upon request by the parties to the case or of its own initiative, issue an additional decision, in case where the amount awarded had not been specified in the initial judgment. Under Article 206 of the Code, a court which delivered a judgment could, upon request by the parties to the case or the bailiff, issue clarifications of the judgment, without changing its substance. Similar provisions are contained in Articles 201 and 202 of the Code of the Civil Procedure of the Russian Federation (in force as of 1 February 2003).


ITEMID: 001-99172
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF WOJCIECH NOWAK v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 8
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1966 and lives in Zawiercie.
6. In 1993 the applicant married A.N. In 1994 they had a son, D. Subsequently, the applicant and A.N. separated. Since their separation, they have been living in the same town and in the same street.
7. On 3 September 1996 the Zawiercie District Court issued an interim contact order. According to its terms, the applicant was allowed to visit the child every Tuesday and every first Saturday and third Sunday of the month, between 4 p.m. and 6.30 p.m.
8. Between 29 September 1996 and 5 October 1997 the Zawiercie police intervened on 12 occasions in order to facilitate the applicant's contact with his child. These interventions took place at A.N's place of residence and it would appear that on all these occasions the applicant was able to see the child.
9. On 27 May 1997 the Katowice Regional Court dissolved the applicant's marriage. It awarded parental rights to A.N., limited the applicant in the exercise of his rights and ordered that D.'s permanent residence be with his mother. The applicant was allowed to participate in decisions about the child's education and health.
10. On 1 September 1997, 5 May 1998 and 18 May 1999 the applicant made applications for fines to be imposed on A.N. under Article 1051 of the Code of Civil Procedure. He subsequently withdrew the applications.
11. On 4 March 1998 the District Court modified the access arrangements to allow the applicant to take his son for two weeks' holiday between 1 and 15 July.
12. Between 1 June 1998 and 28 January 1999 the Zawiercie police intervened on nine occasions in order to facilitate the applicant's contact with D. It appears that only on one of these occasions was the applicant unable to see D., as the child stated that he had not wished to see his father.
13. On 15 April 1999, on the applicant's motion, the Zawiercie District Court ordered A.N to allow the applicant's contact with the child on pain of a 100 PLN fine.
14. Between 18 April 1999 and 8 June 1999 the police intervened on eight occasions in order to enforce the applicant's contacts with his son.
15. On 9 December 1999 the applicant and his ex-wife concluded a court settlement concerning the applicant's visiting right. According to its terms the contacts were to be enforced under supervision of a court appointed guardian in order to protect D.'s well-being.
16. However, the mother failed to comply with the access arrangements. On 5 January 2000 the applicant asked the Zawiercie District Court to impose a fine on A.N. for failure to comply with the settlement. On 9 March 2000 the District Court ordered A.N. to make the child available for a visit (by 1 May 2000), on pain of having to pay a fine.
17. On 28 April 2000 the applicant lodged yet another request for a fine to be imposed on A.N. On 19 December 2000 the District Court dismissed that request. The court obtained reports from two experts including a psychologist and heard evidence from several witnesses. It considered that A.N had not turned the child against his father. It noted that the child had not wished to attend the meetings with his father. Moreover, because of the forced contacts, in particular the two-week holiday in 1998, D. started suffering from anxiety and fear. The court also made reference to the fact that the applicant had proposed not to have any contacts with the child for 5 years if A.N did not claim maintenance payments for that period. The applicant's further appeal was dismissed by the Katowice Regional Court on 28 February 2001.
18. Meanwhile, on 21 February 2000 the applicant filed a motion for amendment of the divorce decree in the part relating to parental rights. On 18 October 2000 the Zawiercie District Court dismissed his application.
19. The applicant appealed, and on 28 December 2000 the Katowice Regional Court gave a decision granting custody to the applicant and ordering that D.'s permanent residence be with his father. The mother was allowed to participate in decisions concerning the child's education and choice of profession.
20. On 29 December 2000 A.N. filed an application with the Zawiercie District Court to be granted sole custody of D.
21. On 23 August 2001 the District Court returned the applicant's request to impose a fine on A.N. since he had failed to pay the required court fee. His subsequent interlocutory appeal was dismissed on 15 November 2001.
22. On 12 October 2001 the Zawiercie District Court modified the decision of 28 December 2000. The court held that A.N. should be granted full custody over D. and that D.'s place of residence should be with his mother. The applicant was allowed to decide jointly about the child's education and choice of profession.
23. A further appeal lodged by the applicant was dismissed by the Czestochowa Regional Court on 19 December 2001. The court held that the applicant had not had a good relationship with his child and that the boy was afraid of him. The court stressed that the applicant could not have successfully claimed custody over D. since his son fled from him whenever he had seen him.
24. Meanwhile, the applicant asked the court to hand D. over to him. On 27 June 2001 the District Court gave an interim decision and held that while the custody proceedings were pending the child should stay with his mother. On 31 January 2002 the District Court refused to hand D. over to the applicant.
25. On 15 March 2002 the Zawiercie District Court dismissed the applicant's motion to impose a fine on A.N. for obstructing his access to the child.
26. On 6 October 2005 the applicant again requested that D. be restored to him. On 14 October 2005 the Zawiercie District Court refused his request. The applicant did not appeal against that decision.
27. On 16 December 2005 the applicant filed an application to be granted full parental rights. His application was dismissed by the Zawiercie District Court on 28 July 2006. The court held that D. had been living with his mother, with whom he had very close relations, and it was in the child's best interest to leave him with her. The court referred to the child's (then 12 years old) own statements that his mother had not obstructed his contact with the applicant. It was D. himself who had avoided contact with his father. The court further noted that between 2001 and 2005 (when A.N filed a claim for increase of maintenance payments) the applicant had not attempted to contact his son and to exercise his visiting rights. Their contact was limited to occasional meetings on the street, since they lived nearby. The applicant's appeal against this decision was dismissed on 27 September 2006 by the Czestochowa Regional Court.
28. On 24 March 2006 the applicant asked the court to impose a fine on the mother for obstructing his contacts with D. On 22 June 2006 the District Court dismissed his request. The applicant did not appeal against that decision.
29. The relevant domestic law concerning the enforcement of a parent's visiting rights is set out in the Court's judgment in the case of P.P. v. Poland no. 8677/03, §§ 69-74, 8 January 2008.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-79326
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VORONINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6 and P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1961 and lives in Voronezh.
5. She brought civil proceedings against her local authority requesting arrears of child benefits due to her.
6. On 17 March 2000 the Levoberezhny District Court of Voronezh granted her claims and awarded her the arrears in the amount of 4,117.63 roubles (RUR ). The judgment was not appealed against and became final on 27 March 2000.
7. On 18 April 2000 a writ of execution was issued.
8. On an unspecified date the writ was returned to the applicant by the bailiff's service owing to the lack of funds in the debtor's account.
9. The applicant forwarded the writ of execution to the debtor's bank and requested it to debit the sum due from the debtor's account, but the bank refused.
10. She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of 17 March 2000.
11. On 17 April 2003 the Justice of the Peace of the Second Circuit of the Central District of Voronezh dismissed the applicant's claim on the ground that the bank had not been at fault in refusing to enforce the judgment of 17 March 2000. On appeal, the judgment was upheld by the Central District Court of Voronezh on 10 November 2003.
12. On 30 December 2004 the applicant received RUR 2,103.84 in execution of the judgment of the Levoberezhny District Court of Voronezh of 17 March 2000.
13. On 14 December 2005 she received the outstanding balance of RUR 2,103.89, thus completing full execution of the judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-5293
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: NALETILIC v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Croatian citizen, born in 1946 and presently in the penitentiary of the International Criminal Tribunal for the Former Yugoslavia (ICTY) at The Hague, the Netherlands. He is represented before the Court by Mr Krešimir Krsink, a lawyer practising in Zagreb (Croatia).
At the time when he lodged his application with the Court the applicant was in custody in Zagreb District Penitentiary, Hospital for Detained Persons, in the context of criminal proceedings pending against him before the Zagreb County Court (Županijski sud u Zagrebu) for kidnapping, murder and participation in a group that committed a crime.
On 21 December 1998 the applicant was indicted by the ICTY on seventeen counts including crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws and customs of war.
On 1 September 1999 the Zagreb County Court ordered that the applicant be handed over to the ICTY. Both the Supreme and Constitutional Courts, upon the applicant’s appeal, upheld that decision.
On 15 October 1999 the applicant lodged with the Court a Rule 39 request which was not granted by decision of the President of the Fourth Section of the same day.
He is presently in custody in the penitentiary of the ICTY at The Hague, the Netherlands, in the context of criminal proceedings pending against him.


ITEMID: 001-60170
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MORRIS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 with regard to general structure of court martial system;No violation of Art. 6-1 with regard to specific complaints;No violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. In September 1991, at the age of 16, the applicant became a member of the British Army, joining the Life Guards regiment of the Household Cavalry. In November 1992 the applicant was posted to the Household Cavalry Mounted Regiment (“the HCMR”) where he was taught to ride a horse. The applicant alleges that during riding lessons he became the target of bullying by other soldiers, including a lance-corporal. According to the applicant, towards the end of November 1992 the lance-corporal hit him on the side of the head with his fist, causing him to fall and strike his head on the ground. On 30 November 1992, several days after the attack, the applicant reported sick and told the medical officer that the injury to his face had been caused by falling off a horse. On 26 February 1993 the applicant, who alleges to have feared a further physical attack, went absent without leave. On 17 March 1993 he wrote to the commanding officer (“CO”) of the regiment (a lieutenant-colonel), stating, inter alia, that “[his] inability to express sufficient enthusiasm during training sometimes resulted in physical abuse by certain NCOs [non-commissioned officers]”, and asking to terminate his service. He received no reply to this letter.
10. The applicant was arrested by the civilian police on 16 October 1996 and taken to the HCMR's barracks at Hyde Park, London. The following day he was charged with being absent without leave contrary to section 38(a) of the Army Act 1955. On 18 October 1996 he was remanded in close arrest by Major Kelly, acting as subordinate CO. On the “Eight Day Delay Report” dated 24 October 1996, the reason for the detention is stated: “Likely to absent himself ... – has already offered bribe to JNCO on guard to release him.” On 31 October 1996 he appeared before the CO and was remanded by him in close arrest for an abstract of evidence. He was subsequently released by the CO into open arrest on 11 November 1996. The CO remanded him for trial by district court martial on 13 March 1997.
11. In a statement dated 4 November 1996 to the Ministry of Defence Police, the applicant stated that the attack by the lance-corporal had occurred in the week prior to his going absent without leave, while in a statement dated 29 January 1997 he stated that the attack occurred sometime in February 1993. The police found that the lance-corporal had left the army and took statements from other soldiers who had been on the same riding course as the applicant. They found that there was no evidence to support his complaint. The applicant subsequently signed a statement saying, inter alia: “I have come to the conclusion that I just want to get out of the army and get on with my life ... Even though this assault happened, I do not want the Ministry of Defence Police ... to take any further action concerning the incident.”
12. Following the applicant's remand for trial, the CO appointed Captain A. as “defending officer”. Captain A. was an army officer with no legal training, serving as a troop commander with the HCMR. The applicant applied to the Army Criminal Legal Aid Authority (“the Legal Aid Authority”) for legal aid to enable him to be represented by a solicitor. On the application form he stated that his weekly income after deduction of tax, rent and national insurance was 158.13 pounds sterling (GBP), and that he had no savings or other property of value. The form was countersigned by his CO. By a letter dated 26 March 1997, the Legal Aid Authority replied that a charge of absence without leave did not normally warrant legal representation but that either the CO or the applicant should write setting out his reasons if he considered that, exceptionally, legal aid should be granted. The applicant's solicitor wrote to the Legal Aid Authority on 18 April 1997 pointing out that the applicant faced a custodial sentence and needed to be represented. The Legal Aid Authority offered the applicant legal aid subject to a down-payment of GBP 240 in a letter dated 21 April 1997. The Government maintain that he could have paid in ten weekly instalments of GBP 24 each, but this is disputed by the applicant. On 30 April 1997 the applicant's solicitor wrote asking the Legal Aid Authority to reconsider the down-payment condition, but on 2 May 1997, before the Legal Aid Authority had replied, the applicant refused the offer of legal aid and was not, therefore, represented by a solicitor at the court martial.
13. Also on 2 May 1997, the applicant signed a document, addressed “to whom it may concern”, in which he made the following statement:
“This is to certify that I, 25009734 Tpr Morris D of The Life Guards no longer wish to be represented at my pending District Court Martial other than by my Defending Officer, Captain [A.].
I have made this decision of my own free will. I understand that all previous correspondence with regard to my application for legal representation will now be ignored.”
14. The applicant's court martial took place at Chelsea Barracks on 28 May 1997. The court was composed as follows: a president, Lieutenant-Colonel A.D. Hall of the Corps of Royal Electrical and Mechanical Engineers, who was a permanent president of courts martial (appointed to his post in January 1997 and due to remain until his retirement in September 2001); Captain R. Reid of the Royal Army Medical Corps, Aldershot; Captain W.D. Perks of the Second Battalion, Royal Gloucestershire, Berkshire and Wiltshire Regiment (Volunteers), Reading; and a legally qualified civilian judge advocate (see paragraph 26 below). All three military officers were outside the command area in which the applicant was serving. The president worked from home when not attending court-martial hearings.
15. Captain A. represented the applicant, who pleaded guilty to the charge of being absent without leave between 25 February 1993 and 16 October 1996. The applicant's letter of 17 March 1993 to his CO was handed to the court, but no other mention was made of the bullying allegedly suffered by him. The applicant was sentenced to dismissal from the army and nine months' detention.
16. After the hearing, Captain A. erroneously advised the applicant that if he appealed against the sentence he risked the commencement date for his sentence being put back to the date of dismissal of the appeal. On 31 May 1997 the applicant instructed a solicitor to represent him. On 19 June 1997 the solicitor lodged a petition with the Defence Council in its role as the “reviewing authority” (see paragraph 29 below), relying on the facts that the applicant had had no legal representation before the court martial and that his allegations of assault were not presented to the court, either by way of a defence of duress (which applies when a person charged with a criminal offence can show that, at the relevant time, he reasonably believed that he would be killed or seriously injured if he did not commit the offence) or in mitigation of sentence. The petition asserted that it was unlikely that the defending officer understood that the applicant might have had a defence on the basis of duress and that the defending officer had indicated that he had been “ordered” not to allude to the allegations at the court martial without indicating who had so ordered him. It also mentioned instructions which the defending officer had given about what the applicant ought to do in the event that the court martial should, of its own volition, ask the applicant about the allegations which had been made. It also indicated that the defending officer had advised the applicant that, “if he appealed, his sentence might well be increased”. On the same day the petition was introduced, the solicitor wrote to Captain A. asking for his comments on it and reminding him that he was subject to the rules of client privilege and should not disclose details of his dealings with the applicant to any third party. Despite this, Captain A. provided a statement to the Defence Council, in which he said, inter alia:
“As [the applicant's] Troop Leader I was asked to represent him at Court Martial, this was the first Court Martial I have attended in any capacity. Although I have had experience in civil cases at both Magistrates' and Crown Courts. ...
[The applicant] had indicated to me that he had gone absent from the Army for more than one reason. As expressed in his letter of 17 March 1993. He was showing reservations about his enthusiasm, commitment and devotion to duty. ...
[T]he petition states that I assumed the petitioner had no choice but to plead guilty, as he had been Absent Without Leave. I was unaware that he could have entered a plea of not guilty to the charge on the basis of duress. [The applicant] and I did not discuss the allegations of bullying in any great detail. This was because these allegations had been withdrawn by him under interview by MOD Police.
[The applicant] indicated to me that he wanted to drop all the references to the violence by the NCO during his training. This was in order that the trial date would be set significantly earlier and that the trial would be substantially shorter. This led me to advise [the applicant] to plead guilty as charged, as I had felt that this gave him his best opportunity to be discharged from the Army at the earliest date which was, after all, his overall aim. ...
I discussed with the Adjutant my role as the Defending Officer. We talked about the procedural steps of the court martial and my conduct leading up to the trial. It was confirmed to me that a guilty plea would produce an earlier trial date than that of not guilty.
I advised [the applicant] that references to his allegations of bullying could prolong and complicate his court martial. The mention of bullying would be introduced as part of his letter to his commanding officer dated 17 March 1993, which he agreed could be put forward for the court as mitigation. [The applicant] agreed that he did not wish to answer questions about his previous allegations, which he had dropped.
I therefore advised him to refer such questions to me and I would state to the court that this was an avenue down which he did not wish to proceed. ...”
17. The petition was refused by the reviewing authority on 14 July 1997, in the following terms:
“The Reviewing Authority has considered the petition submitted by your above-named client, and has denied it for the following reasons.
The down payment for Legal Aid was carefully calculated, and was well in line with the amount the petitioner would have had to pay under the civil system. The certificate signed by him shows clearly that he had decided not to proceed with his application for legal representation. We cannot accept that [the applicant] was in any way forced to accept this decision. He also appears to have been content to accept Captain [A.] as his defending officer.
The complaints about the petitioner being bullied were investigated by the SIB and the allegations could not be substantiated. Indeed it came to light during this investigation that the petitioner had told [another soldier] that he planned to go absent because he was merely tired of the training and the long hours being worked. In view of the SIB report, the Reviewing Authority must accept that the allegation that the petitioner was subjected to violence by a Non-Commissioned Officer cannot be substantiated, and cannot be regarded as a mitigating factor.
In considering your complaint that, had the petitioner been advised by a qualified solicitor, he would have been able to plead not guilty on the basis of duress, we had to rely on the advice given by the Judge Advocate General. He stated that a person is subject to duress when words or conduct from another person cause him to fear that he will be killed or seriously injured, if he does not commit the offence. Clearly, the petitioner could never have reasonably believed that he had cause to fear that he would be killed or seriously injured.
The Reviewing Authority notes that the petitioner had dropped his allegations of being subjected to violence by the time he appeared in Court. All Captain [A.] intended to do was to inform the Court that the petitioner did not wish to proceed with these allegations. In fact the Court was made aware of them because the letter from (sic) the Commanding Officer was read out to them.
We accept that Captain [A.] was mistaken in referring the petitioner to the booklet 'Appeals and Petitions after conviction by Army Court Martial', which was out of date after 1 April 1997. In addition the wrong paragraph was used in his advice to the petitioner. However as we have now received a petition, in spite of this mistaken advice, we believe that no harm has been done. ...”
18. On 26 July 1997 the applicant lodged an application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court. Leave to appeal was refused by the single judge on 22 October 1997, on the grounds that the defence of duress had not been open to the applicant, that he had been properly advised to plead guilty, and that the sentence was not manifestly excessive.
19. The Armed Forces Act 1996 (“the 1996 Act”) came into effect on 1 April 1997, amending the Armed Forces Act 1955 (“the 1955 Act”).
20. Under the 1996 Act, the initial decision whether or not to bring a prosecution is taken by the higher authority, who is a senior officer who must decide whether any case referred to him by the accused's commanding officer should be dealt with summarily, referred to the prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case.
21. Where the accused is a member of the army, the role of prosecutor is performed by the Army Prosecuting Authority (“the prosecuting authority”). Following the higher authority's decision to refer a case to it, the prosecuting authority has absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court martial would be appropriate and precisely what charges should be brought. In addition, it conducts the prosecution (1996 Act, Schedule I, Part II). The prosecution is brought on behalf of the Attorney-General. The current prosecuting authority is the Director of Army Legal Services. In his role as prosecuting authority, the Director of Army Legal Services is answerable to the Attorney-General, while in his coexisting role as the army's senior lawyer he is answerable to the Adjutant General (the army's principal personnel and training officer, responsible, inter alia, for army disciplinary policy and a member of the Army Board). In pursuit of his latter role, the Director of Army Legal Services provides some military legal advice to the army chain of command. He does not advise the disciplinary chain of command of the army, this role being reserved to the Brigadier Advisory.
22. The Army Criminal Legal Aid Authority is also the responsibility of the Adjutant General.
23. The Court-Martial Administration Office (now the Army Court Service), independent of both the higher authority and the prosecuting authority, is responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court. Its officers are appointed by the Defence Council. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible court-administration officer. Until early 2001 the person in charge of the Court-Martial Administration Office was a retired officer. The Army Court Service was then created in its place, the head of which is now a serving brigadier.
24. At the relevant time, a district court martial (“DCM”) was required to consist of a permanent president of courts martial, not less than two serving military officers of at least two years' military experience and a judge advocate (section 84D of the 1955 Act as amended by the 1996 Act). The court-administration officer, commanding officers of the accused, members of the higher authority, investigating officers and all other officers involved in inquiring into the charges concerned were all barred from selection to the court martial (section 84C(4) of the 1955 Act as amended by the 1996 Act). The Courts Martial (Army) Rules 1997 further provide that an officer serving under the command of: (i) the higher authority referring the case; (ii) the prosecuting authority; or (iii) the court-administration officer are ineligible for selection. The Queen's Regulations provide that a court martial is, so far as practicable, to be composed of officers from different units.
25. The post of permanent president of courts martial (“the permanent president”) was first created in 1941. Permanent presidents were routinely appointed thereafter to sit on DCMs whenever one was available until suspension of the post in 2000, around the time of a ruling by Assistant Judge Advocate Pearson on 6 March 2000 in McKendry (see paragraph 31 below) that the appointment of permanent presidents meant that courts martial did not have the necessary impartiality and independence for the purposes of Article 6 of the Convention. Permanent presidents were selected from the ranks of serving army officers of suitable age and rank. Until around the end of 1996, permanent presidents of courts martial held the rank of major. Thereafter their rank was raised to lieutenant-colonel, which resulted in permanent presidents routinely outranking the other serving officers on a DCM, who were never above the rank of major. Legal qualifications or experience were not required. Their appointment was usually expected to be for a period in excess of three years and was almost without exception the officer's last posting before his retirement from the army. The Military Secretary (a senior subordinate of the Adjutant General) had power to terminate the appointment of a permanent president, but this has never happened in practice.
26. Judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years' experience as an advocate or five years' experience as a barrister. A judge advocate's rulings on points of law are binding on the court and he delivers a summing-up in open court before the court martial retires to consider its verdict. Once the court martial hearing has commenced, the power to dissolve it is vested in the judge advocate. He has a vote on sentence, but not on verdict. Under the 1996 Act, the Judge Advocate General lost his previous role of providing general legal advice to the Secretary of State for Defence (Schedule I, Part III, sections 19, 25 and 27).
27. Each member of a court martial has to swear the following oath:
“I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to the Army Act 1955 without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court martial, unless thereunto required in the due course of law.”
28. Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the president of the court martial, who also gives reasons for the sentence in open court. The members of the court are required to speak, and at the close of deliberations to vote on verdict and sentence, in ascending order of seniority.
29. All guilty verdicts reached and sentences imposed by a court martial must be reviewed by the “reviewing authority” (section 113 of the 1955 Act as amended by the 1996 Act). Although the ultimate responsibility rests with the Defence Council, the review is as a matter of practice generally delegated to a senior subordinate of the Adjutant General. Post-trial advice received by the reviewing authority from a judge advocate (different from the one who officiated at the court martial) is disclosed to the accused, who has the right to present a petition to the authority. The reviewing authority may quash any guilty verdict and associated sentence or make any finding of guilt which could have been made by the court martial, and may substitute any sentence (not being, in the authority's opinion, more severe than that originally passed) which was open to the court martial (section 113AA of the 1955 Act as amended by the 1996 Act). The reviewing authority gives a reasoned decision and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court martial.
30. There is a right of appeal against both conviction and sentence to the Courts-Martial Appeal Court (a civilian court of appeal) (section 8 of the Courts-Martial (Appeals) Act 1968). An appeal will be allowed where the court finds that the conviction is unsafe, but dismissed in all other cases. The court has power, inter alia, to call for the production of evidence and witnesses whether or not produced at the court martial (section 28 of the Courts-Martial (Appeals) Act 1968).
31. The role of permanent president was examined by the Courts-Martial Appeal Court (which has the same composition as the civilian Court of Appeal) in R. v. Spear and another and in R. v. Boyd ([2001] Court of Appeal, Criminal Division (England and Wales) 2). The court dismissed the appellants' complaint that the position of permanent presidents on courts martial violated Article 6 § 1 of the Convention because permanent presidents lacked the necessary independence and impartiality. The court declined to follow the reasoning of Assistant Judge Advocate Pearson in McKendry. Lord Justice Laws, delivering the judgment of the court, said:
“24. Mr Mackenzie of course relies on the decision of Assistant Judge Advocate General Pearson in McKendry. His judgment was given as we have said on 6 March 2000, by way of a ruling in a then current court martial upon objections raised on behalf of the defence to the PPCM [Permanent President] sitting as a member of the court. The judge advocate's essential reasoning appears at pp. 8-9 of the transcript, after he had correctly directed himself as to the Article 6 standards to be applied (the numbering attached to the judge advocate general's text is ours, not his):
'1. I am concerned as to the terms of appointment of these Permanent Presidents. It seems to me that there is no fixed time limit other than a time which may be quite short – two, three or four years; certainly two years is probably too short to ensure full independence, four years may be suitable – I express no comment on that.
2. I am concerned as to their training. This reference to their visiting the APA [Army Prosecuting Authority], I suspect that is mistyping, nevertheless it is there in their current job description and I must be concerned with the perception of bias, and it does not look appropriate, in my view, for Permanent Presidents to be told they should attend a briefing from the Prosecuting Authority.
3. I am concerned obviously with their potential removal. Clearly anybody exercising judicial or quasi-judicial functions should be free from arbitrary removal, and there should be some sort of guarantee that the removal would only be on the basis of some sort of misconduct within that particular office. There is no security, therefore, it would seem to me, that applies to Permanent Presidents at the present time in their role.
4. I am also obviously concerned with the question of reporting, whether it be annual – which I doubt; it is more likely to be every two years, or perhaps on the renewal of their appointment – I cannot say, but certainly there is some reporting that appears to take place, and it seems to me again that is a significant difficulty which affects the perception of independence.
Now, I have specified those three [in fact, four] as being the main concerns that I have ... those particular concerns are sufficient in my view for me to rule that in the particular circumstances of the system as it now stands, the appointments of Permanent Presidents do not give rise to an independent and impartial tribunal.'
The judge advocate was at pains to insist that his ruling was 'limited to this particular case'; but its reasoning plainly applies at least to all DCMs presided over by a PPCM.
25. Mr Mackenzie sought to build on the reasoning in McKendry with a series of further points ... In particular, he submitted that (a) there were no objective regulatory provisions governing the PPCM's appointment, beyond the ordinary procedures for staff appointments; (b) 'the medium rank of PPCM prevents such officers from being immune from general Army influence' ...; (c) the PPCM is senior in rank to the other officers on the court martial ..., and would be likely to exert a substantial influence over them.
26. It is convenient to deal with this last point first. In McKendry the judge advocate stated at 6C-D (referring to junior members of a DCM):
'Speaking for myself, having of course sat in on many, many sentencing matters with Permanent Presidents, I can say that I have found that the junior members ... the fact that they happen to be junior in rank, has not prevented them from being very robust in their sentencing arguments.'
As judge advocate he would not, of course, have participated in the court's deliberations upon conviction. It is to be noted that by paragraph 70(4) of the Court Martial (Army) Rules 1997 the junior officer is required to speak first in the course of any court martial's deliberations. The provision is plainly intended to ensure that junior members' genuine opinions are put forward.
27. Upon this point, Mr Mackenzie's argument does not go to the particular position of the PPCM at all, but rather to the differences in rank among the members of the court martial, whether the president is a PPCM or not. As such we doubt whether it is open to him. But we are clear in any event that there is no merit in it. If the argument were right, it would presumably mean that Article 6(1) required that the members of a court martial should be officers of the same rank. That cannot be the law. The notion, were it accepted, that it is reasonable to fear that between joint decision-makers of different rank there is a systematic likelihood that the more junior may be unduly influenced by the perceived views of the more senior would, surely, be an unlooked for and unwelcome side-effect of the Convention's beneficent regime. We consider it perfectly reasonable to suppose that junior officers would regard it as their duty to speak with their own voice, and that the modern culture of the Service would promote that very point of view. We do not think it would be reasonable for the accused soldier to entertain any different perception. This point is a bad one.
28. The argument as to the PPCM's medium rank and 'general Army influence' falls to be disposed of in like manner. But there is another point to be made. The way this argument is formulated – 'the medium rank of PPCM prevents such officers from being immune from general Army influence' – amounts, looked at rigorously, to an allegation of actual bias (whether unconscious or not). It is not, or not only, a matter of the appearance of the thing or of the presence or absence of objective guarantees. It is a delicate way of saying that such medium-ranking officers are relatively prone to take a prosecution line. That is quite a serious allegation, for which there is not a whisper of any supporting evidence. And in our view it is simply patronising to suggest that an officer in the rank of Lieutenant-Colonel ... will have his judgment on the concrete facts of a particular case affected by anything so amorphous as 'general Army influence'.
29. In our judgment Mr Mackenzie's further submission about the absence of any specific regulatory provision goes nowhere, unless it supports an argument to the effect that the PPCMs lack sufficient tenure in office for this court to be satisfied that the Article 6 requirements of independence and impartiality are met. ...
30. ... we should dispose of point (2) in McKendry. This rested in the judge advocate's understanding that Army PPCMs were required, as a training exercise, to visit and be briefed by the Army Prosecuting Authority. In fact the judge advocate himself reported (4E) the assurance given to him that no such visits took place. Lt Col Stone states in terms that he has never visited the APA. From the judge advocate's reasoning in McKendry it looks as if there must have been some rogue document or documents in circulation; but there is obviously nothing of substance in the point.”
32. Lord Justice Laws concluded as follows on the appellants' complaint about the position of permanent presidents (at paragraph 33):
“... We consider that the conditions upon which PPCMs have been appointed, and held office, have involved no violation of Article 6(1), and in particular there was no violation on the facts of these cases. We should first collect the facts which have weighed with us. (1) The PPCMs effectively operated outside the ordinary chain of command. They advisedly lived their professional lives largely in isolation from their Service colleagues. (2) While Mr Havers rightly accepted that there was no 'written guarantee' against removal, there is in fact no record of a PPCM ever having been removed from that position. Removal from office, we may readily infer, would only take place in highly exceptional circumstances which have never eventuated. (3) The appointment was the officer's last posting, offering no prospect of promotion or preferment thereafter. Neither of the PPCMs in these cases entertained any such prospect, hope or expectation. ... (4) The term of these PPCMs' appointments was for no less than four years ... (5) There have been no reports on Army PPCMs since April 1997. ...”
33. In R. v. Généreux ([1992] 1 Supreme Court Reports 259), the Supreme Court of Canada examined, inter alia, the compatibility of a Canadian general court martial with section 11(d) of the Canadian Charter of Rights and Freedoms, which provides:
“11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
34. A general court martial consisted of between five and nine voting members, who were joined by a judge advocate who was called upon to determine questions of law or mixed law and fact during the trial. The judge advocate was appointed to the general court martial by the Judge Advocate General on an ad hoc basis.
35. The Supreme Court concluded that the judge advocate did not possess sufficient security of tenure to satisfy the requirement of “independence” under section 11(d) of the Charter. Lamer CJ, delivering the leading judgment of the court, commented as follows:
“... the judge advocate was appointed solely on a case by case basis. As a result, there was no objective guarantee that his or her career as a military judge would not be affected by decisions tending in favour of the accused rather than the prosecution. A reasonable person might well have entertained an apprehension that a legal officer's occupation as a military judge would be affected by his or her performance in earlier cases ... [or] that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive, or at least has not seriously disappointed the executive's expectations, in previous proceedings. ...
Military judges who act periodically as judge advocates must therefore have a tenure that is beyond the interference of the executive for a fixed period of time.”
He went on to note that amendments to Canadian court-martial procedures, which had come into force subsequent to the proceedings at issue in the case, had corrected deficiencies in the judge advocate's security of tenure, providing for appointment for a period of between two and four years.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c