ITEMID: 001-97116
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GROMZIG v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1952 and lives in Glinde.
7. The applicant is the heir of his parents, who owned several properties located on the territory of the former German Democratic Republic (“the GDR”). In 1951 his parents left the GDR and their property was expropriated.
8. In early 1992 the applicant sought legal advice from P.A. and J.P. law firm concerning restitution of the property. The lawyers did not inform him about the time-limit (Ausschlussfrist) for restitution claims, which expired on 31 December 1992. Therefore, when he applied for restitution of the property on 13 and 15 August 1994, the Dessau and Jerichoer Land Offices for the Resolution of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen, “the Dessau Office/Jerichoer Land Office”) rejected his applications because they had been lodged too late.
9. On 7 April 1995 the applicant brought proceedings against P.A. and J.P. before the Hamburg Regional Court claiming damages for their failure to inform him about the time-limit for his restitution claims.
10. On 30 August and 1 November 1995 the Regional Court held oral hearings.
11. On 22 November 1995 the Regional Court dismissed the applicant’s action, finding that there had been no breach of the lawyers’ duties. On 4 December 1995 the judgment was served on the applicant’s lawyers.
12. On 29 December 1995 the applicant lodged an appeal with the Hamburg Court of Appeal.
13. On 2 February 1996 the applicant asked the court to extend the time-limit for submitting his grounds of appeal. The limit was extended until 4 March 1996.
14. On 16 February 1996 the applicant’s legal counsel informed the court that she would no longer be representing the applicant. On 24 February 1996 the applicant, represented by another law firm, submitted the grounds of appeal and requested legal aid.
15. On 20 June 1996 the Court of Appeal refused to grant the applicant legal aid. A complaint by the applicant against that decision was dismissed on 1 August 1996.
16. On a request by the applicant of 17 September 1996, the court postponed its hearing scheduled for 2 October 1996 to 31 October 1996.
17. On 10 December 1996 the applicant’s lawyer informed the court that he would no longer be acting for the applicant and asked it to postpone a hearing scheduled for 13 December 1996. However, owing to the illness of one of the judges sitting in the applicant’s case, the Court of Appeal postponed this hearing to 31 January 1997.
18. On 27 February 1997 the Court of Appeal dismissed the applicant’s appeal. On 6 March 1997 the judgment was served on the parties.
19. On 13 March 1997 the Federal Court of Justice asked for the files to be transmitted from the Court of Appeal.
20. On 9 July 1998 the Federal Court of Justice found that the lawyers had breached their duties. It quashed the judgment of the Court of Appeal and remitted the case to that court for fresh consideration.
21. On 18 September 1998 the applicant increased his claim, seeking 19.5% interest for loss of the profit he would allegedly have received had he placed money resulting from his restitution claims in a bank account. Subsequently, until 12 May 2004, the applicant reformulated or increased his compensation claims a further fifteen times.
22. On 4 October 1998 the applicant’s lawyer announced that he had ceased representing the applicant. Thereafter, until 8 September 2005, the applicant changed his legal representative at least fourteen times, sometimes within a period of less than one month.
23. On 25 January 1999 the Court of Appeal scheduled a first hearing for 19 August 1999.
24. Between 17 February and 28 December 1999 the applicant unsuccessfully complained six times to the President of the Court of Appeal about the course of the proceedings.
25. On 15 June 1999 and 23 February 2000 the applicant lodged third-party complaints (Streitverkündung) against ten lawyers who had previously represented him. Some of them joined the proceedings as interveners on the side of the defendants. However, on 18 December 2000 the applicant withdrew all of these complaints.
26. Between 1 September 1999 and 19 May 2004 the applicant asked the court five times to grant him an extension of the time allowed for making further submissions.
27. On 1 October 1999 the Court of Appeal granted the applicant’s request for legal aid in part and decided to request information from the Dessau and Jerichoer Land Offices before commissioning an expert report on the determination of the properties’ market values.
28. On 20 October 1999 the Jerichoer Land Office provided the information requested.
29. On the court’s request, on 4 November 1999 the Halle-Dessau Chamber of Commerce recommended the appointment of B.P. as expert.
30. On 15 November 1999 the applicant complained of the decision awarding legal aid only in part.
31. Between 1 March 2000 and 17 February 2004 the applicant lodged seventeen unsuccessful challenges for bias against several judges involved in his proceedings before the Court of Appeal. His respective requests made to the court to reconsider its decisions were rejected between 10 April 2001 and 30 March 2004.
32. On 25 September 2000 the Court of Appeal had requested further information from the Dessau and Jerichoer Land Offices, which they provided on 20 and 27 November 2000. On 28 November 2000 the court forwarded that information to the parties.
33. On 6 April 2001 the Court of Appeal expressed doubts as to the applicant’s capacity to be a party to an action (Prozessfähigkeit).
34. On a request by the applicant on 21 May 2001 the court postponed a hearing scheduled for 20 June 2001 to 5 September 2001.
35. On 26 July 2001 the applicant asked the court to postpone a hearing scheduled for 5 September 2001 to December 2001. However, on 30 July 2001 the court refused that request and held the hearing.
36. On 17 October 2001 the Court of Appeal postponed a further hearing scheduled for the same day to 7 November 2001 in view of the applicant’s challenges for bias of 6 October 2001.
37. Following further challenges for bias by the applicant, or his requests to reconsider the Court of Appeal’s rejection of these challenges, the court postponed a scheduled hearing four times and finally held it on 18 January 2002. At the hearing, it ordered the preparation of a psychiatric expert report on the applicant’s capacity to be a party to an action.
38. Between 26 February 2002 and 21 July 2003 further necessary information was delivered by the Wesel Equalisation Board (Ausgleichsamt), the Dessau and Jerichoer Land Offices and the Federal Office for the Regulation of Outstanding Property Issues (Bundesamt zur Regelung offener Vermögensfragen) at the request of the court.
39. On 19 April 2002 an additional examination of the applicant by another expert, ordered by the Court of Appeal, took place, and on 8 October 2002 the psychiatric expert gave his report, finding that the applicant was fit to be a party to an action.
40. On 23 April 2003 the Court of Appeal held an oral hearing, and on 30 April 2003 it updated its decision of 1 October 1999 and appointed the expert, B.P., to determine, by 31 August 2003, inter alia, the market value of the properties in question.
41. On 8 May 2003 the applicant asked the court to amend its decision of 30 April 2003.
42. On 9 September 2003 the Court of Appeal extended the time-limit for B.P. to deliver her expert report until 31 October 2003, because she was ill.
43. On 23 September 2003 the applicant challenged the expert for bias. On 5 November 2003 the Court of Appeal dismissed his objection as being unfounded, and on 1 December 2003 the court rejected a request by the applicant to reconsider its decision.
44. On 28 January 2004 the Court of Appeal urged the expert to speed up the preparation of her report.
45. On 2 and 5 March 2004 B.P. produced her reports, which she supplemented at the court’s request on 7 May 2004.
46. On 12 May 2004 the Court of Appeal held a further oral hearing during which it heard evidence from, inter alia, the expert concerning the findings of her report. During the hearing the defendants made further submissions, which the court considered to be relevant and not made too late and authorised both parties to make further submissions in this connection.
47. In a partial judgment (Grund- und Teilurteil) of 30 June 2004 the Court of Appeal ordered the defendants, inter alia, to pay the applicant approximately 110,105 euros (EUR) in respect of those properties which could have been returned to him under the Property Act. In respect of the properties subject to indemnification under the Indemnification Act, it decided to request further information from the authorities.
48. On 15 July and 27 September 2004 the authorities provided the information.
49. On 9 November 2004 the Court of Appeal postponed a hearing scheduled for 19 January 2005 to 9 February 2005 on the applicant’s request.
50. On 9 February 2005 the Court of Appeal held an oral hearing.
51. On 17 and 28 February 2005 the applicant unsuccessfully asked the court to reopen the hearing.
52. In its judgment (Schlussurteil) of 9 March 2005 the Court of Appeal ordered the defendants to pay the applicant a further EUR 27,933 as compensation for the loss of indemnification under the Indemnification Act. It also fixed the total amount of the claim in the appellate proceedings (EUR 1,108,306), calculated on the basis of the value of all claims that the applicant had made throughout the proceedings, and ordered him to pay nine-tenths of the costs of the proceedings.
53. On 8 September 2009 the applicant asked the Court of Appeal to reconsider its decision concerning the division of the court costs. On 8 November 2005 the court dismissed his request as unfounded.
54. On 30 March 2005 the applicant asked the Federal Court of Justice to grant him leave to appeal on points of law.
55. On 14 July 2005 the Federal Court of Justice refused to grant him legal aid because his proposed appeal on points of law lacked any prospect of success.
56. On 8 August 2005 the applicant asked the Federal Court of Justice to reconsider its decision. The court rejected his request on 19 September 2005.
57. On 17 December 2003 the Federal Constitutional Court declined to consider the applicant’s first constitutional complaint in which he complained about the length of the proceedings before the Hamburg Court of Appeal. The court found that, despite some shortcomings in the conduct of the proceedings, their duration could still be considered to be acceptable given the extraordinary legal and factual complexity of the case (the Regional Court had had to deal with issues which were normally examined by the administrative courts and which dated back to the time of the former GDR) and considering the applicant’s conduct (numerous challenges for bias, changes of lawyer and modification of his claims). It anticipated that the Court of Appeal would complete its consideration of the case in the first half of 2004.
58. On 8 August 2005 the applicant lodged a further constitutional complaint, which the Federal Constitutional Court declined to consider on 8 November 2005, stating that there was no appearance of a violation of the applicant’s fundamental rights.
59. On 2 May 2006 the Hamburg Regional Court fixed the defendants’ costs in the proceedings to be paid by the applicant.
60. On 16 May 2006 the applicant asked the Hamburg Regional Court to fix the costs in the proceedings to be paid by the defendants.
61. On 26 June 2006 the Hamburg Court of Appeal rejected a complaint by the applicant against the Regional Court’s decision of 2 May 2006. On 4 July 2006 the Court of Appeal served the decision on the applicant’s lawyers.
62. On 22 January 2007 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant concerning the Court of Appeal’s alleged refusal to send him a copy of the decision of 26 June 2006 and the Regional Court’s refusal to fix his costs in the proceedings.
63. On 1 February 2007 the Regional Court fixed the costs in the proceedings to be paid by the defendants. The applicant unsuccessfully challenged that decision several times.
64. On 2 June 2007 the applicant lodged a complaint alleging a breach of his right to be heard.
65. On 10 October 2007 the Hamburg Court of Appeal declared the applicant’s complaint inadmissible because he had failed to lodge it within the two-week time-limit.
66. On 18 December 2007, without giving any reasons, the Federal Constitutional Court declined to consider a constitutional complaint by the applicant concerning all the decisions given by the courts since 2 May 2006.
67. On 8 January 2008 the Hamburg Court of Appeal ordered the applicant to pay the court fees (EUR 75) in respect of his complaints against the costs fixed in the proceedings.
68. On 13 January 2008 the applicant complained about that order, but on 16 January 2008 the Court of Appeal rejected his complaint.
69. On 16 June 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint on grounds of inadmissibility.
70. In April 2007 the defendants proceeded with the enforcement of the Hamburg Regional Court’s costs order of 2 May 2006.
71. On 8 May 2007, following a request by the applicant, the Reinbek District Court provisionally ordered a stay of the enforcement proceedings without giving any reasons.
72. On 15 November 2007 the Lübeck Regional Court quashed the District Court’s judgment because the applicant’s personal situation did not warrant a stay of the enforcement proceedings.
73. The Resolution of Outstanding Property Issues Act/Property Act (Gesetz über die Regelung offener Vermögensfragen/Vermögensgesetz) provides that persons whose property was unlawfully expropriated during the time of the GDR are in principle entitled to restitution, unless the property was purchased in good faith by a third party. In such cases the former owners have a right to financial indemnification under the Act governing indemnification pursuant to the Resolution of Outstanding Property Issues/Indemnification Act (Entschädigungsgesetz).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58051
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ROLF GUSTAFSON v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo
TEXT: 8. The applicant is a Swedish citizen resident in Stockholm. Since 1973 he has spent a total of eight years in prison for the commission of serious economic offences. Most recently, in October 1996 he was sentenced to a one-year term of imprisonment for a serious forgery offence.
9. The applicant claims that on two occasions, in April-June and JuneJuly 1991, he was the victim of kidnapping and extortion perpetrated by three persons. According to the applicant, one of the alleged perpetrators, a certain Mr L., had wanted to be paid for the part he played with him in the commission of certain economic crimes.
10. On 25 March 1993 the public prosecutor charged L. with one count of kidnapping on 17 April 1991, one count of aggravated extortion committed between 17 April 1991 and June 1991 and one count of kidnapping and aggravated extortion committed between 27 June and 3 July 1991. No proceedings were instituted against the other two persons, one of whom had been named by the applicant as a certain Mr P. (see paragraph 17 below).
11. In the criminal proceedings instituted against L. before the Stockholm District Court (tingsrätt), the applicant requested the court, pursuant to the provisions of chapter 22 of the Code of Judicial Procedure (Rättegångsbalken: see paragraph 20 below), to order L. to pay him a total of 169,350 Swedish kronor (SEK) in compensation in respect of the following items:
(a) SEK 9,350 in material damages to his clothes;
(b) SEK 10,000 in non-pecuniary damages for injury caused to his head;
(c) SEK 50,000 for suffering resulting from an eye injury;
(d) SEK 100,000 in non-pecuniary damages for the mental suffering caused by the two alleged kidnappings (see paragraph 9 above).
The applicant reserved his right to present further claims in respect of any such damage as he might suffer in the future.
12. On 15 April 1993 the applicant applied for compensation to the Criminal Damage Compensation Board (Brottsskadenämnden - hereinafter "the Board") under the Criminal Damage Act 1978 (brottsskadelagen 1978:413 - hereinafter "the 1978 Act"; see paragraphs 20-29 below). In his application he stated that he had sought compensation for personal injury in the amount of SEK 160,000 in the proceedings against L. and that he had reserved his right to make any further claims with regard to future damage. In view of the rules on prescription of compensation claims, he submitted to the Board at that stage a claim for compensation of SEK 160,000 along the lines stated above. He enclosed a copy of the indictment against L.
13. On 28 April 1993 the Stockholm District Court convicted L., sentenced him to six years’ imprisonment and ordered him to pay SEK 144,350 in damages to the applicant. The District Court found, inter alia, that, on the whole, the applicant could not be considered a particularly trustworthy person in view of the fact that he had been convicted of several economic offences (see paragraph 8 above). It stated, however, that this fact did not in itself mean that his allegations concerning his kidnapping and extortion were untrue and it found the evidence to be such that the prosecution’s case against L. had been partially proven.
14. On 2 July 1993 the Svea Court of Appeal (Svea hovrätt) reversed the District Court’s decision on the ground that the charges against L. had not been proven, acquitted L. and rejected the applicant’s claim for compensation. The Court of Appeal found that the applicant, in view of his criminal background, could not be deemed a trustworthy person. It followed that the information he had provided on the events which had given rise to the charges against L. (åtalade händelserna) could not, in the absence of strong supporting evidence, ground L.’s conviction, even though the applicant’s evidence had been corroborated by others whom he had told about the incidents.
The applicant did not seek leave to appeal to the Supreme Court (Högsta domstolen) against the decision.
15. On 12 August 1993 the applicant, referring to his application for compensation of 15 April 1993 (see paragraph 12 above), asked the Board to proceed with its examination of his claim, stating that he had no insurance which would cover the damage in question. He supplied the Board with copies of the judgments of the District Court and the Court of Appeal.
16. On 26 August 1993 the Board rejected the applicant’s compensation claim, stating as follows:
"A condition for a grant of compensation is that damage has in fact been caused by crime. The Board ... cannot find it established that [the applicant] has suffered damage as a result of crime. Consequently, compensation for damage caused by crime cannot be awarded."
17. On 11 November 1993 the applicant requested the Board to reconsider its decision. He argued that it was clear from the judgments of the District Court and the Court of Appeal that he had been the victim of a crime and that he had suffered the damage for which he requested compensation. He had identified two of the three persons who were allegedly involved in the offences; the fact that the Court of Appeal had not found it proven that the only one to be charged, L., was guilty was not a reason to doubt that he had been the victim of crime.
In support of his request for reconsideration of the decision the applicant submitted a copy of the investigation report concerning the alleged kidnappings and extortions, including a medical report drawn up on 25 February 1993 by Dr Lennart Berglin, a Deputy Senior Physician. According to this report, on 4 July 1991 the applicant had sought emergency care for his right eye, which he stated had been punched. He had been operated on by Dr Berglin on 5 July 1991 and had remained hospitalised until 15 July 1991. On 26 February 1992 he underwent a further operation. Dr Berglin concluded in his report that the applicant’s eye injury could have been caused by a punch.
The applicant also submitted a transcript of the testimony given by Crime Inspector S. at the District Court’s oral hearing in the criminal proceedings against L. Inspector S. had been the principal investigator into the economic offences of which the applicant had previously been convicted. He had interrogated both the applicant and L. on a number of occasions. Inspector S. had told the District Court, inter alia:
"I was, probably on 4 July 1991, informed [about the alleged kidnapping of the applicant]. A colleague ... telephoned me to say that he had been informed that [the applicant] had been kidnapped ..., that the kidnapping had been staged by [L.] with the help of two ‘gorillas’, ... and that the kidnapping had been combined with an extortion threat against [the applicant] in the amount of SEK 5 million. ... I then ... telephoned [the applicant], who ... denied that he had been kidnapped ...
... I saw [the applicant] in August [1991] in connection with ... criminal proceedings brought against him ... and noted that he had a bruise at [one of] his eye[s]. I asked him what had happened and he stated that he had been the victim of a robbery committed by some persons ...
... Probably in May 1992 [the applicant] mentioned the kidnappings when he was being interrogated as a suspect in another case ... He stated that [they had been carried out] by two black men and a third one, whom he did not wish to name ... He repeated several times that one kidnapping had taken place in April [1991] and [the other] towards the end of June [1991], lasting until the beginning of July [1991] ... We took [the applicant’s statements] seriously ... I have come to know [the applicant] so well that I can somehow see when he is lying or when he is telling the truth ... Having been asked on a number of occasions to name the perpetrators, [the applicant] stated that he would do so, but not right away ... In the autumn [of 1991] he named one of the assistants [during the kidnappings], [P.] ... [The applicant’s description of the environment and premises where he had been kept during the kidnappings] was very accurate as regards many details ..."
18. Both Dr Berglin’s report and Crime Inspector S.’s testimony had in essence been reproduced in the District Court’s judgment. Inspector S. had also been heard orally before the Court of Appeal, where he had more or less repeated the same evidence he gave to the District Court.
19. On 1 June 1994 the Board rejected the applicant’s request, for the following reasons:
"The submissions in this case in support of the request for reconsideration are not such as to be a reason for the Board to change its previous decision. Nor is there any other reason for changing the decision."
20. Under chapter 22, section 1, of the Code of Judicial Procedure, a private claim arising from a crime may be lodged against the suspect or a third party in connection with the prosecution of the offence. If it concerns an offence forming the object of public charges, the prosecutor is under an obligation to prepare and present any such claim as the victim may wish to make, provided that it is not seriously inconvenient to do so and that the claim is not manifestly unfounded (section 2). In that event, the trial court will in principle determine the claim for compensation as well as the questions of guilt and sentencing. This is the most frequently used course of action for obtaining compensation for criminal damages.
A private claim against the suspect may in the alternative be made by way of a civil action under the general rules on tort liability contained in the Tort Liability Act 1972.
Otherwise, and at the relevant time, compensation could have been sought from the State under the rules of the 1978 Act, which was amended as of 1 July 1994. The 1978 Act was enacted in order to afford crime victims a means of obtaining reparation where the identity of the offender was unknown or where the latter had insufficient means to compensate the victim or where insurance coverage was inadequate.
21. Section 1 of the 1978 Act read, in so far as is relevant:
"This Act regulates compensation to be paid by the State for damage caused by crime. The Act is applicable if the crime has been committed in Sweden ..."
22. Section 2 of the Ordinance on Damage Caused by Crime (brottsskadeförordningen 1978:653) read, at the time in question and in so far as is relevant:
"... The claim [for compensation for damage caused by crime] shall be lodged with the Criminal Damage Compensation Board. The claim shall be supported by a police record, a medical statement and other documents of relevance to the [Board’s] examination. If someone has been convicted of the crime referred to in the request or if someone has been ordered to pay damages, a copy of the judgment [to this effect] shall also be enclosed. If no police investigation has been carried out, other material concerning the cause of the damage shall be submitted."
23. Section 14 of the 1978 Act provided:
"A claim for compensation for damage caused by crime shall be filed within two years from the date of the offence. If there are special reasons, a claim may be examined even if it has been lodged out of time. A claim will only be examined if the offence has been reported to the public prosecutor or the police or if the applicant shows a valid reason why such a report has not been made."
24. Although it was not a condition for compensation under the 1978 Act that the offender had been convicted, it was a condition that the damage had been caused by criminal conduct and that both the subjective and objective conditions for the offence in question had been fulfilled.
The Board decided independently whether the conditions for compensation under the 1978 Act had been fulfilled, including whether a crime had been committed. Thus, in some cases the Board had been satisfied that the conditions for compensation had been met, despite a decision by the public prosecutor not to bring charges on the ground of lack of evidence. In rare instances, the Board had granted compensation even though the trial court, because of insufficient evidence, had acquitted the accused or had dismissed the compensation claim. Generally speaking, the standard of proof applied by the Board was less strict than that applied by a trial court.
25. Compensation could be granted under the 1978 Act for physical injury suffered by the victim but could, on certain conditions, also cover damage to property. Other damage could be compensated to a limited extent (sections 2-5 of the 1978 Act).
26. No appeal lay against a decision of the Board (section 12 of the 1978 Act). Nor was it possible to request judicial review of the decision pursuant to the 1988 Act on Judicial Review of Certain Administrative Decisions (Rättsprövningslagen 1988:205).
27. The Board set up under the 1978 Act was composed of a chairperson, two vice-chairpersons and three other members, all of whom were appointed by the Government for a limited period (section 15 of the Ordinance with Instructions for the Board (Förordningen 1988:984 med instruktion för brottsskadenämnden)). It was a requirement that the chairperson, the vice-chairpersons and their substitutes be lawyers ("vara lagfarna") and have experience as judges (section 13 of the 1978 Act). The remaining three members did not need to be lawyers, but one of them had to be a representative of the insurance business.
The Board’s independence was guaranteed by chapter 11, Article 7, of the Instrument of Government (Regeringsformen), which provision implies that neither the Government nor Parliament could intervene or influence the manner in which the Board dealt with an individual case.
28. The rules governing the procedure before the Board were similar to those found in the Code of Judicial Procedure (Rättegångsbalken) and the Administrative Procedure Act 1971 (Förvaltningsprocesslagen 1971:291). Thus, for instance, the rules on disqualification of members of the Board from dealing with a case (sections 11-12 of the Administrative Act 1986 (Förvaltningslagen 1986:223) were similar to those applying to members of the ordinary courts (chapter 4, section 13, of the Code of Judicial Procedure) and the administrative courts (section 41 of the Administrative Procedure Act). Although the Board in principle determined cases on the basis of the case file, a party to the proceedings had the possibility to make oral arguments before the Board, if the latter considered it expedient (Section 14 of the Administrative Act 1986). A party was entitled to have access to all written documents in a case, unless non-disclosure was required by a strong public or private interest under the Secrecy Act 1980 (Sekretesslagen 1980:100). In such a case the party concerned should be informed of the contents of such facts in order to enable him to protect his rights, provided this could be done without serious harm to those interests which are protected by secrecy. No case could be decided on before the parties had been informed of all the evidence adduced and had been given an opportunity to submit observations in reply.
Subject to the provisions in the Secrecy Act 1980, all documents submitted to the Board were accessible to the public.
29. Under the new legislation adopted on 1 July 1994 (see paragraph 20 above), a new public body has been established for the examination of compensation requests, i.e. the Authority for Victims of Crime (Brottsoffermyndigheten). Within that authority a board examines cases of particular interest or cases that are otherwise of particular importance.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96357
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SHILBERGS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violations of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
TEXT: 5. The applicant was born in 1967 and lived until his arrest in the town of Neman in the Kaliningrad Region. He is now serving his prison sentence in the correctional colony in the village of Slavyanovka, Kaliningrad Region.
6. On 16 August 2001 officers of the Krasnoznamensk town police department arrested the applicant and brought him to the temporary detention unit of the Neman town police department. A police investigator informed the applicant that he had been arrested on suspicion of aggravated robbery and that a prosecutor had authorised his detention on 29 May 2001. The applicant, having been informed of the rights of accused persons, including the right to legal aid, refused legal assistance because he considered himself innocent, and signed a record confirming his refusal. During the subsequent interview the applicant denied the accusations and consistently maintained his innocence.
7. On 28 September 2001 the applicant, who was still unrepresented, had a confrontation interview with a co-accused, Mr P., at which he was assisted by a lawyer. On a number of occasions the applicant unsuccessfully requested the investigating authorities to hold confrontations with other co-defendants, witnesses and victims.
8. On 3 October 2001 the applicant took part in a voice identification parade. The parade was performed in the presence of the applicant’s lawyer and two attesting witnesses. The victim was asked to identify the alleged perpetrator by his voice. Two other individuals took part in the parade. The applicant alleged that they had had very strong accents because one of them was of Chechen ethnic origin and the other one was Lithuanian.
9. Two days later the investigator served the applicant and his counsel with the bill of indictment and allowed them to study the case file. On the following day the investigator closed the pre-trial investigation and sent the case to the Neman Town Court for trial.
10. On 12 October 2001 the Town Court remitted the case to the investigating authorities, finding that the applicant had not had sufficient time to study the file. The applicant was granted a month for examination of the file. In June 2002 the Town Court accepted a request from the applicant’s counsel, Ms Z., and granted her and the applicant five days to review the file.
11. On 11 June 2002 the prosecutor asked the Neman Town Court to remit the case for an additional pre-trial investigation in order to correct certain procedural defects. The applicant objected and applied for release on his own recognisance. On the same day the Town Court granted the prosecutor’s request and dismissed that of the applicant.
12. On 30 July 2002 the Kaliningrad Regional Court quashed the decision of 11 June 2002 in the part concerning the remittance of the case to the investigating authorities, and ordered that the Town Court should commence the trial.
13. A month later the first trial hearing was held. The applicant’s lawyer unsuccessfully asked the Town Court to exclude from evidence certain items including the record of the applicant’s voice identification parade.
14. On 5 September 2002 the Neman Town Court found the applicant guilty of several counts of aggravated robbery committed within a group of individuals and sentenced him to nine years’ imprisonment.
15. The applicant’s lawyer, Ms Z., appealed.
16. The Kaliningrad Regional Court fixed the first appeal hearing for 25 February 2003. The applicant’s lawyer, Ms Z., failed to appear and the applicant asked for an adjournment. The Kaliningrad Regional Court granted his request and postponed the hearing until 11 March 2003.
17. On 27 February 2003 the applicant, assuming that Ms Z. could no longer participate, asked the Regional Court to appoint another counsel to assist him during the appeal proceedings. The Government submitted that the Regional Court had not responded to the applicant’s request, acting in accordance with well-established judicial practice. According to the Government, at the material time the domestic courts erroneously considered that the Russian Code of Criminal Procedure did not require them to appoint legal-aid counsel to represent defendants in appeal proceedings.
18. On 1 April 2003 the Kaliningrad Regional Court upheld the applicant’s conviction.
19. On 16 August 2001 the applicant was placed in the temporary detention unit of the Neman town police department, where he remained until 24 August 2001. Between 16 August 2001 and 12 November 2002 he was detained in the unit twelve times, the shortest period of his detention lasting two days and the longest one seventeen. The aggregate length of his detention in the unit amounted to three months and thirteen days.
20. In his application form the applicant alleged that he had usually been detained in a cell measuring over nine square metres and accommodating six detainees. In his observations lodged on 1 March 2007, however, he amended his description, insisting that he had been kept in a cell measuring 6.2 square metres which housed up to 5 inmates. The remaining description of the conditions of his detention in the unit did not vary. In particular, the applicant argued that inmates had taken turns to sleep owing to the shortage of sleeping places. No bedding was provided. The cell had a window thirty centimetres wide and forty centimetres long. The cell was lit by a small bulb. In the absence of artificial ventilation in the cell it was hard to breathe owing to the thick smoke and the humidity. The cell was swarming with insects. There was no heating in winter. There was no lavatory pan or wash-bowl. Inmates used a bucket as a lavatory pan. They were allowed to clean the bucket twice a day: early in the morning and at about 6 p.m. There was no shower room in the detention unit. Inmates were provided with food once a day. In addition, in the morning they were given hot water and in the evening sweet tea. The detention unit did not have a recreation yard and inmates were therefore confined to their cells day and night.
21. On 24 June 2003 the applicant brought an action in tort against the management of the Neman town detention unit and the Kaliningrad Regional Department of the Federal Treasury. He claimed that the conditions of his detention in the unit had been inhuman and had led to a serious deterioration of his health. He also sought leave to appear before the Town Court.
22. On 20 August 2003 the Neman Town Court ordered that the applicant should be brought to the hearing fixed for 4 September 2003, finding that “it was necessary to hear him in person as the plaintiff”.
23. According to the Government, the management of the correctional colony where the applicant was detained at the material time refused to comply with the order of 20 August 2003 because domestic law did not lay down a procedure for transferring convicted prisoners to ensure their participation in civil cases. The management informed the applicant that domestic law did not oblige the authorities to ensure his presence at the hearing.
24. On 3 October 2003 the applicant received a letter from the Neman Town Court. He was informed that a hearing was listed for 24 September 2003 and that it would be held in his absence because the colony management had not brought him to the Neman Town Court.
25. On 29 December 2003 the Neman Town Court ordered a forensic medical examination of the applicant. On completion of the examination, on 12 March 2004, the applicant was served with a copy of the expert report and informed that the hearing had been fixed for 18 March 2004.
26. On 6 April 2004 the Neman Town Court partly allowed the applicant’s action and awarded him 1,500 Russian roubles (RUB, approximately 43 euros) in compensation for non-pecuniary damage. The Town Court held, in so far as relevant, as follows:
“[The applicant’s] argument that his right to the established norm of four square metres of personal space was violated has been amply proven.
The... witnesses confirmed that the detention unit has four cells... Cells nos. 1 and 2 each measure 6 sq. m, cell no. 4 measures 9.8 sq. m and cell no. 3 measures 10.3 sq. m. [The applicant] was detained in cell no. 4: from 20 to 24 August 2001 6 to 7 inmates were detained there, from 3 to 13 September 2001 5 to 7 detainees; from 27 September to 14 October 2001 4 to 6 inmates; from 13 to 18 November 4 to 5 inmates; and from 22 March to 4 April 2002 seven individuals were kept [in that cell]. From May 2002 onwards [the applicant] was detained alone in cells nos. 2 and 3. The registration log, listing the number of persons detained in the unit in specific cells, fully corroborates this account.
[The applicant’s] allegation concerning insufficient lighting was confirmed. The single small window, which is situated right below the ceiling and is covered by two metal sheets with small perforated holes between which a fine metal net is suspended, gives no light. A bulb is situated outside the cell and provides insufficient lighting. The head of the temporary detention unit, Mr L., attempted to carry out renovations in 2001 and artificial lighting was installed in the cells; however, a commission arrived and found that the bulbs had been installed incorrectly, and everything was returned to its previous place...
[The applicant’s] submission pertaining to the absence of artificial ventilation in the cells and the presence of high humidity levels was also proven. The small window covered with metal sheets with a metal net between them barred access to fresh air; in autumn, winter and spring it was even covered with felt cloth.
The allegation concerning the lack of a lavatory pan and water supply system in the cell was also confirmed. They are not installed in the cells; [inmates] were taken out of the cells twice in twenty-four hours, at 6.00 a.m. and 6.00 p.m.; at those times they could also wash their faces; for the rest of the day or night they used a special bucket as [a lavatory pan]. As to [the applicant] he was frequently taken to the toilet for whatever purpose was required.
[The applicant’s] argument concerning the scarcity of food was not refuted. Food was provided in the detention unit once a day. In the morning and evening inmates received tea; lunch was brought in from the municipal cafeteria “Hope” in the afternoon; [lunch] consisted of two courses based on a given sum per inmate. The abovementioned witnesses did not dispute that food had been provided once a day...
The sanitary conditions in the detention unit do not comply with sanitary norms. The record of a sanitary inspection of the cells in the detention unit carried out in 2000-02 was destroyed. However, as is clear from [eight] letters sent by the Neman town temporary detention unit to the Head of the Neman district council and the Neman district sanitary inspector [in 1998, 2001 and 2002], the sanitary conditions did not meet personal hygiene standards. The temporary detention unit did not have a contract ... for cleaning of the premises.
[The applicant’s] argument about the violation of his right to a daily walk was not refuted. Inmates were not allowed outdoor exercise in the detention unit as it does not have a recreation yard.
[The applicant’s] allegation pertaining to a violation of his right to bathe was fully proven. The detention unit does not have a shower room; persons detained in the temporary detention unit cannot take a shower and there is no provision for such a possibility, as individuals cannot be detained in the detention unit for more than ten days; there is no hot water [in the detention unit].
The court considers manifestly ill-founded [the applicant’s] submissions concerning insufficient medical assistance. Medical assistance is provided on request to persons detained in the temporary detention unit: either an ambulance is called or inmates are taken to a doctor. The detention unit has a log recording the initial questioning, examination and provision of medical assistance to individuals detained in the Neman town temporary detention unit. [The applicant] requested medical assistance as follows: twice on 9 October 2001, a body temperature of 37.7 degrees was recorded and a doctor diagnosed him with bronchitis; on 2 February 2002 his blood pressure was taken and treatment was prescribed; on 15 February 2002 a fake incident was recorded; however, medical assistance was subsequently provided and he was sent for examination by a physician; on 18 May 2002 he was diagnosed with an acute ulcer and treatment was prescribed; on 20 May 2002 medical assistance was provided on two occasions and treatment was prescribed; on 9 June 2002 medical assistance was provided; on 23 August 2002 he was examined but no medical assistance was needed.
The [applicant’s] allegation concerning his detention in the unit for more than ten days was confirmed. By virtue of Article 96 § 2 of the RSFSR Code of Criminal Procedure, in force at the time [the applicant] was detained, suspects and accused persons could be placed in temporary detention units ... for no longer than ten days within a given month. The ten-day time-limit for detention in the temporary detention unit was breached twice... He was detained for 17 days from 27 September to 14 October 2001 and for 15 days from 24 August to 8 September 2002. As a result, in September 2001 he stayed in the detention unit for 15 days; in October 2001 [he stayed] for 24 days and in March 2002 for 14 days.
[The applicant’s] allegations pertaining to lack of an individual sleeping place and extreme cold in winter in the cell were proven. All witnesses confirmed that [the applicant] had not had an individual sleeping place and that there had been insufficient heating in winter in the cells. The witnesses disputed [the applicant’s] allegation that he had not been provided with a mattress and pillow; [the witnesses] explained that he had always been provided with a mattress and pillow and had had his own blanket.
...
Accordingly, the court concludes that [the applicant’s] right to be detained in the temporary detention unit in accordance with the established rules and regulations was breached and that he sustained physical and mental suffering.
...
[The applicant’s] argument that his health was damaged as a result of the poor conditions of his detention in the Neman town detention unit is not proven.
As is clear from the report of the forensic medical examination performed by the Health Department of the Kaliningrad Region, it is impossible to establish a direct causal link between [the applicant’s] detention in the Neman town temporary detention unit and his illnesses.
In determining the amount of compensation for non-pecuniary damage the court has taken into account the degree of liability of the persons responsible, the insufficiency of funds and the level of physical and mental suffering of [the applicant], and considers it necessary to award 1,500 roubles in compensation.”
27. On 26 April 2004 the applicant lodged a statement of appeal. He complained, in particular, that the Town Court had not ensured his presence at the hearings. He also sought leave to appear before the appeal court.
28. On 16 June 2004 the Kaliningrad Regional Court upheld the judgment of 6 April 2004, endorsing the Town Court’s reasoning and noting that the applicant’s presence at the hearings, before either the Town Court or the Regional Court, was not required.
29. From 24 August 2001 to 17 April 2003, save for short periods when the applicant was transferred to the Neman town temporary detention unit, he was detained in Kaliningrad no. IZ-39/1 detention facility. According to the applicant, that detention facility was built in 1929 and no renovation work on the cells had been carried out since.
30. The Government, relying on a certificate issued on 16 August 2006 by the director of facility no. IZ-39/1, submitted that during the period in question the applicant had been detained in fourteen different cells, measuring from 7.7 to 18.5 sq. m. The smallest cell had two sleeping places and the largest one had six. The Government further noted that the applicant had had an individual sleeping place at all times as the number of inmates per cell had always corresponded to the number of sleeping places.
31. Citing the information provided by the director of the facility, the Government further submitted that the cells received natural light and ventilation through a large window which was double-glazed and measured 1.2 sq. m. The windows had a casement. Inmates could request warders to open the casement to admit fresh air. The windows were covered by thick bars with so-called “eyelashes”, that is, slanted plates approximately two centimetres apart welded to a metal screen, which gave no access to natural air or light. In compliance with the recommendations of the Russian Ministry of Justice issued on 25 November 2002, the latter construction was removed from the windows on an unspecified date. Subsequently, the windows were covered with latticed partitions to ensure “sound and visual insulation”. The cells had ventilation shafts. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a one-metre-high partition. Inmates were allowed to take a shower once in ten days. Each inmate was given at least fifteen minutes to take a shower. The cells were disinfected. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees including the applicant were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. On his admission to the facility the applicant was diagnosed with a skin rash and treatment was prescribed. In February, March and November 2002 and March 2003 the applicant underwent treatment for his acute ulcer. The Government furnished a copy of the applicant’s medical record and medical certificates.
32. The applicant did not contest the cell measurements. However, he insisted that the cells had been severely overcrowded and that he had had less than two square metres of living space. Citing statements by inmates who had been detained in facility no. IZ-39/1, he stressed that the smallest cell in which he had been detained had had six sleeping places and the largest one had had twelve bunks. Inmates had to take turns to sleep. They were not provided with bedding. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management did not provide any insecticide. Walls in the cells were covered with thick layer of mould. Pieces of plaster fell from the walls. Relying on colour photographs of the cells, the applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air. In certain cells the windows were not glazed and inmates used plastic film or blankets to cover them in winter. It was impossible to take a shower as inmates were given only fifteen minutes and two to three men had to use one shower head at the same time. That situation was further aggravated by the fact that inmates could only take a shower once every two weeks. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. They were also allowed to smoke in the cells. The lavatory pan was separated from the living area by a small partition. At no time did inmates have complete privacy. No toiletries were provided. The food was of poor quality and in scarce supply. The applicant further argued that medical assistance had been unavailable.
33. In June 2003 the applicant brought an action before the Tsentralniy District Court of Kaliningrad against the facility management and the Federal Treasury, seeking compensation for damage. In particular, he claimed that the conditions of his detention in facility no. IZ-39/1 had been appalling. He also sought leave to appear before the District Court.
34. On 14 July 2003 the Tsentralniy District Court decided to stay the proceedings and asked the applicant to produce evidence. That decision was quashed on appeal by the Kaliningrad Regional Court and the case was sent back to the District Court for an examination on the merits.
35. On 30 September 2003 the applicant received a letter dated 1 September 2003 from the District Court, informing him that a preliminary hearing had been fixed for 8 September 2003, and that he had the right to appoint a representative or ask the District Court to adjudicate the action in his absence. The applicant was also informed that his presence at hearings was not mandatory under Russian law.
36. On 24 September 2003 the applicant received a letter from the District Court, sent on 19 September 2003. He was informed of the first hearing listed for 20 October 2003. The remaining text of the letter was identical to the letter of 1 September 2003.
37. The applicant wrote to the District Court seeking leave to appear. He explained that he could not appoint a lawyer as he had no funds to pay for his services.
38. On 24 November 2003 the Tsentralniy District Court, in the applicant’s absence, dismissed the action as unsubstantiated. The District Court held, in particular, as follows:
“...[it was] established that [the applicant], when in the detention facility, had been held in cells which were designed [to house] six detainees..., in particular in cell no. 16 measuring 7.9 sq. m..., in cell no. 45 measuring 8 sq. m..., in cell no. 57 measuring 7.8 sq. m ... and in cell no. 54 measuring 7.7 sq. m... There are no data on the number of inmates in those cells.
... cells had central heating, water supply, a sewerage system, natural and artificial lighting and artificial ventilation. There were two-tier bunks with bedding in the cells. The lighting in the cells emitted 50-75 lux, and the temperature in the cells satisfied the sanitary requirements and was 18 degrees Celsius above zero... At the material time and at present repair work was/is being performed in cells... Spot-checks of the sanitary conditions in the cells were carried out and no serious violations were established. Detainees clean up their cells once a day (in the mornings)... Medical staff monitored sanitary conditions in cells...
The cells where the applicant was detained had a lavatory pan and a tap. ... the cells had cell furniture. The walls of the cells were smoothly plastered and painted. Metal plates on the windows were installed in accordance with the requirements... Inmates were given no less than fifteen minutes to take a shower... If necessary, following a written request, a detainee could be granted additional opportunities to take a shower.
... Detainees were provided with food in accordance with the norms established by the Government of the Russian Federation...”
39. On 11 December 2003 the applicant informed the District Court that he wished to appeal against the judgment of 24 November 2003. He asked for a copy of the defendant’s counterclaim and copies of other documents submitted to the District Court by the defendant. According to the applicant, the request received no response. The Government, relying on copies of registration logs of incoming and outgoing mail in the correctional colony in which the applicant had been detained at the material time and copies of the applicant’s handwritten notes confirming receipt of the documents, submitted that the applicant had been served with copies of all documents requested by him from the District Court.
40. On 16 December 2003 the applicant lodged his statement of appeal, complaining, inter alia, that the District Court had failed to ensure his presence at the hearings despite his requests to that effect and that he had had no opportunity to appoint a representative. He further argued that he had not been able to study the materials presented to the District Court by the defendant as he had not been served with them. The applicant also sought leave to appear before the appeal court and asked to be provided with legal assistance.
41. On 10 March 2004 the Kaliningrad Regional Court upheld the judgment of 24 November 2003, endorsing the District Court’s reasoning. The applicant was neither present nor represented.
42. On 21 August 2001 a local newspaper, “Komsomolskaya Pravda v Kaliningrade”, published an article entitled “Cranberry Drink” (“Кисель из Клюквы”). The article concerned the killing of a prominent mafia leader in the town of Neman. The reporter described how police officers had chased a stolen car in which the “driver-thief” and the mafia leader were travelling. The parts of the article which concerned the applicant read as follows:
“During questioning the driver-thief Artur Shilbergis [the applicant’s last name was misspelled] confessed that his accomplice [the mafia leader] had most probably “been using drugs” and had not understood anything.
The background to that car theft is the following. On 11 May this year three unknown persons in masks broke into the flat of a businessman in Neman. [They] stole 1,800 [US] dollars. Investigators identified the thieves. Mr M. organised the assault, his young girlfriend S. was on guard and three locals committed the robbery. But only one of the five bandits was arrested – Mr Pr. He gave useful statements and a prosecutor let him go on a written undertaking. Right away Mr Pr. began to receive threats prompting him to change his testimony.
On that fateful day Mr M. and the second robber Artur Shilbergis came to Mr Pr.’s home. [They] began banging on the door. The man did not open.
But it appears that Mr Pr. forgot to close the door of his car. The engine roared, and when the man ran out into the street, there was no trace of his friends.”
43. On 2 June 2003 the applicant brought a defamation action against the newspaper. He complained that the Neman town police department had provided the newspaper with information concerning his arrest, that he had been called “a robber”, “a bandit” and “a rapist” in the article and that the reporter, in violation of Article 6 § 2 of the Convention, had informed the public that the applicant had robbed a businessman in Neman. The applicant also sought leave to appear.
44. On 24 October 2003 the Leninskiy District Court of Kaliningrad dismissed the applicant’s action. The applicant was neither present nor represented, although a representative of the defendant attended.
45. The applicant appealed and sought leave to appear.
46. On 14 January 2004 the Kaliningrad Regional Court quashed the judgment of 24 October 2003 and remitted the case for fresh examination. The applicant was not present.
47. The applicant again requested the District Court to ensure his presence at the hearing.
48. On 20 October 2004 the Oktyabrskiy District Court of Kaliningrad, in the applicant’s absence, dismissed his action, finding that the information published in the article had been correct and corroborated by the findings of the trial court which had convicted the applicant of aggravated car theft on 16 November 2001. The reporter had not accused the applicant of any crime; he had merely described the circumstances that had led to the institution of criminal proceedings against the applicant. Furthermore, the District Court stressed that the reporter had never called the applicant “a rapist”, “a bandit” or “a robber”.
49. The applicant appealed, complaining, in particular, that he had not been able to attend any of the hearings before the District Court. He also sought leave to appear before the appeal court.
50. On 2 March 2005 the Kaliningrad Regional Court upheld the judgment of 20 October 2004, accepting the District Court’s reasoning. The applicant was neither present nor represented, while the newspaper’s representative attended the hearing. With regard to the applicant’s complaint about his absence from the hearings, the Regional Court held as follows:
“In the statement of appeal [the applicant] asks the court to quash the judgment because the [District] court violated his right to “a fair trial” as guaranteed by paragraph 1 of Article 6 of the European Convention, by adjudicating his action in his absence although he had sought leave to appear...
The arguments concerning the violation by the court of the plaintiff’s right to personal attendance at the hearings, as guaranteed by Article 6 § 1 of the European Convention, cannot be accepted as valid because this right applies to criminal cases. As to civil cases, this right is applicable only to cases of a particular type when it is impossible to adjudicate the action in the parties’ absence. In other cases the Convention does not guarantee the right to personal participation in the adjudication of a civil action. In the present case, the plaintiff’s personal participation in the adjudication of the action by the court was not necessary, as the subject-matter of the dispute was a newspaper publication and not something directly related to the plaintiff’s personality.
Moreover, the Russian law in force does not require that plaintiffs who are serving a prison sentence should be brought to hearings for adjudication of their actions.”
51. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy the sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
52. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, State agencies and State officials shall be liable for damage caused to an individual by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
53. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). The court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health (section 26 § 1).
54. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.
55. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings were refused by the courts. It has consistently declared the complaints inadmissible, finding that the impugned provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004 and no. 94-O of 21 February 2008).
56. By virtue of Articles 58 and 184 of the Code of Civil Procedure, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse.
57. Article 51 of the Code of Criminal Procedure of the Russian Federation, in so far as relevant, reads as follows:
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
(1) the suspect or the accused has not waived the right to legal representation in accordance with Article 52 of this Code;
(2) the suspect or the accused is a minor;
(3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
(3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
(4) the suspect or the accused does not speak the language in which the proceedings are conducted;
(5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
(6) the criminal case falls to be examined in a jury trial;
(7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
...
3. In the circumstances provided for by paragraph 1 above, unless counsel is appointed by the suspect or the accused or his lawful representative, or other persons at the request or with the consent of the suspect or the accused, it is incumbent on the investigator, the prosecutor or the court to ensure the participation of legal counsel in the proceedings.”
58. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of the criminal proceedings. Such a waiver may only be accepted if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance does not deprive the suspect or accused of the right to ask to be assisted by counsel during further procedural steps in the criminal case. The admission of a lawyer may not lead to the repetition of the procedural steps which have already been performed by that time.
59. Article 373 of the Code provides that the appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal court may directly examine evidence, including additional material submitted by the parties.
60. Article 376 of the Code provides that on receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place of the hearing. The parties must be informed of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the prisoner should be summoned to the hearing. If the prisoner has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court.
61. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the prisoner’s right to legal assistance in such proceedings may be restricted.”
That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. The court found that free legal assistance for the purpose of appellate proceedings should be provided on the same basis as during the earlier stages of the proceedings and was mandatory in the situations listed in Article 51. It further underlined the obligation of the courts to secure the participation of defence counsel in appeal proceedings.
62. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-91492
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF L'ÉRABLIÈRE A.S.B.L. v. BELGIUM [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Civil rights and obligations);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. Members of the applicant association include its founding members and any person admitted by a simple majority of the general meeting or by a two-thirds majority of the administrative board. The published list of the applicant association’s founding members and administrators shows that they all reside in the above-mentioned municipalities.
7. On 26 September 2002 Idelux, a cooperative society, applied to the delegated official of the province of Luxembourg for planning permission to expand the class 2 and 3 technical landfill site at “Al Pisserotte”. An increase of more than one-fifth of the site’s original capacity was sought. The preamble to the planning permission set out all the circumstances leading to its approval.
8. On 5 January 2004 the municipality of Tenneville wrote to the applicant association informing it that Idelux had been granted planning permission on 23 December 2003 and that the applicant association could apply to the Conseil d’Etat for judicial review.
9. On 5 March 2004 the applicant association lodged an application for judicial review of the decision of the delegated official and requested that it be stayed. The applicant association based its arguments primarily on instruments such as Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the decree of 11 September 1985 on environmental impact assessment in the Walloon Region and the Nature Conservation Act of 12 July 1973.
10. In that application, which was seventeen pages long, the applicant association stated as follows under the heading “The facts”:
“The statement of facts is set out in sufficient detail in the reasons for the impugned decision. The impugned decision was notified to the applicant in a letter of 5 January 2004, which was received on 7 January.”
11. The impugned decision was attached to the application for judicial review as exhibit no. 1.
12. Relying on Article 2 § 1 (2) of the Regent’s decree of 23 August 1948 laying down the rules of procedure in the Administrative Division of the Conseil d’Etat, the opposing party argued that the application for judicial review should be declared inadmissible because it did not include a statement of the facts.
13. By an order of 8 September 2004, the Conseil d’Etat dismissed the request for the impugned decision to be stayed. It pointed out that the statement of the facts should have been sufficiently thorough and accurate for the factual circumstances of the dispute to be understood merely from reading that document. It concluded that the documents attached to the request for the decision to be stayed could not be deemed to equate to a statement of the facts.
14. In its pleadings in reply, and in its final pleadings, the applicant association argued that in the context of an application for judicial review, the statement of the facts did not constitute an admissibility criterion, unlike the statement of the facts in the request for the decision to be stayed. It added that the very short statement of the facts did not compromise the conduct of the proceedings since the opposing party was well aware of the facts, had not misunderstood the scope of the submissions and was familiar with the facts constituting the basis thereof.
15. By a judgment of 26 April 2007, the Conseil d’Etat declared the applicant association’s application for judicial review inadmissible. It considered that because the application did not contain a statement of the facts, it simply referred back to the impugned decision and contained a clarification as to the date of its notification. The statement of the facts, as submitted by the applicant association, was non-existent rather than incomplete. The fact that the opposing party might have been familiar with the background to the case was irrelevant in assessing whether or not the application for judicial review, which was supposed to provide the Conseil d’Etat and the legal adviser (auditeur) responsible for investigating the case with sufficient information, contained a statement of the facts satisfying the official requirements. Lastly, the Conseil d’Etat noted that no new or additional applications and no procedural documents had subsequently been filed within the statutory time-limits to rectify the omissions in the application for judicial review.
16. The Conseil d’Etat had dealt with an earlier application for planning permission concerning the same subject in a judgment of 1 June 2001 on an urgent application and in a judgment of 18 January 2005 on the merits, delivered by the same judges who had delivered the judgment of 26 April 2007. The legal adviser in all three cases had been the same.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103073
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MASOKOMBINÁT PŘÍBRAM, A. S. v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: The applicant, Masokombinát Příbram, a.s., is a joint stock company incorporated under Czech law. It is represented before the Court by Mr D. Šachta, a lawyer practising in Prague. The respondent Government are represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a purchase contract concluded in writing on 10 July 1975, Mr and Ms K. sold four plots of land defined in a geometrical plan to the Central-Bohemian Meat Industry (Středočeský průmysl masný). The contract became valid and effective on that day. A purchase price amounting to 52,986.40 Czechoslovak korunas (CSK) was paid to the sellers.
On 7 June 1976 Mr K. died. In inheritance proceedings concerning his estate, the Příbram Public Notary declared, on 25 October 1976, that Ms K. inherited her late husband’s estate, including the relevant part of the plots of land concerned.
On 22 June 1990 the Ministry of Agriculture and Alimentation divided the Central-Bohemian Meat Industry. Masokombinát Příbram, s.p., a state-owned enterprise and the applicant company’s predecessor, emerged as one of its legal successors.
On 7 February 1992 the purchase contract of 10 July 1975 was entered into the land register, on the basis of the geometrical plans of 4 February 1974 and 24 January 1991. On 30 March 1992 it was registered with the Příbram Centre of Geodesy (středisko geodézie). At the date of 13 April 1992 the land register showed Masokombinát Příbram, s. p. as the owner of the plots of land in issue. On 29 April 1992 certain parts of the state enterprise including the plots of land concerned were transferred to the National Property Fund (Fond národního majetku) under a privatisation project (privatizační projekt) of 31 December 1991 and, subsequently, to the applicant company which had been created by the Fund for these purposes in March 1992. The privatisation project expressly noted that the ownership certificate (list vlastnictví) of the plots of land was kept on the name of the former owner, Ms K., and that the new owner upon the purchase contract was not yet entered into the certificate. The purchase contract of 10 July 1975 was part of the privatisation project. The applicant company came into being on 1 May 1992 upon its entry into the companies register.
On 3 August 1993 Ms K. died. In inheritance proceedings concerning her estate, the Příbram District Court (okresní soud) decided, on 7 December 1993, that her estate, including the plots of land at issue, was inherited by her daughters, Ms P. and Ms Ko.
In a judgment of 18 January 1994, the Příbram District Court, upon an action of Ms K. filed on 16 September 1992, declared the purchase contract of 10 July 1975 null and void ab initio for lack of factualness and accuracy, as it was not clear what plots of land had been sold. Although their size was specified, a geometrical plan showing the boundaries of the land was not joined to the contract. The court admitted that the ten-year time-limit of possession of property in good faith necessary for acquiring ownership of the plots of land by the applicant company by means of positive prescription had lapsed. However, in its view, the company had not acquired ownership, as the amendment to the Civil Code (Act. no. 509/1991) required that possession in good faith existed at the entry into force of the Act, on 1 January 1992. Given that in summer 1991 the predecessor of the applicant company was negotiating with Ms K. over the sale of the land, it could not be regarded as being in good faith as the owner of the land since then.
The applicant company as the defendant in the proceedings did not appeal, and the judgment became final on 16 April 1994.
On 14 August 1998 the National Property Fund issued a declaration that the plots of land at issue were included in the privatisation project and as such transferred to the applicant company in 1992.
On 14 October 1999 answering to a letter of the applicant company the Ministry of Finance noted that in 1992 the plots of land had been transferred to the applicant company and that the State had considered itself an owner of the land at the time of the transfer based on the then valid purchase contract of 10 July 1975. Moreover, the Ministry noted that the subsequent decision of the Příbram District Court 18 January 1994 was a new fact and that the applicant company should address the National Property Fund for possible compensation.
In a judgment of 17 July 2000 the Příbram District Court dismissed the applicant company’s action against Ms P. and Ms Ko. seeking to determine its ownership over the plots of land concerned.
On 30 March 2001 the Prague Regional Court (krajský soud) quashed this judgment for procedural shortcomings and remitted the case to the District Court which, on 20 December 2001, again dismissed the applicant company’s action.
That judgment was upheld by the Regional Court on 3 September 2002, which held that the purchase contract was uncertain and void. As regard the assertion of positive prescription, the court found that no time-limit had ever been triggered by the applicant company which, if acting with reasonable due diligence, must have been aware that land may have been transferred with other dimensions than those recorded in the land register only if the purchase contract embodied a geometrical plan. This was, however, not done here. Any examination of the alleged negotiations between the predecessor of the applicant company and Ms K. was thus superfluous.
On 18 November 2003 the Supreme Court (Nejvyšší soud) rejected an applicant company’s appeal on points of law (dovolání).
On 3 June 2004 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal by the applicant company.
As the applicant company needed the plots of land at issue for continuing to run its business activities, it concluded with the successors to the former owners, on 4 November 2004, a purchase contract on the basis of which it bought the estates against payment of CZK 14,000,000 (EUR 543,185).
On 24 May 1996 the applicant company brought an action against the National Property Fund for payment of CZK 14,000,000 (EUR 543,185) as compensation corresponding to the purchase price plus two separate amounts of CZK 943,092 (EUR 36,591) and 1,191,708 (EUR 46,237). Later, the applicant company withdrew its claim of CZK 943,092.
In a judgment of 28 June 2005 the Prague Municipal Court granted the applicant company’s action in respect of the original price of the land when it was transferred to the applicant company in 1992 (CZK 1,191,708) and dismissed it in respect of the rest.
On 9 November 2006 the Prague High Court upheld the judgment.
On 22 October 2008 the Supreme Court dismissed the applicant company’s appeal on points of law.
On 27 April 2009 the Constitutional Court rejected its constitutional appeal as manifestly ill-founded.
Article 37 § 1 provides that a legal act must be undertaken freely, seriously, with certainty and comprehensibility.
Article 39 stipulates that a legal act whose subject-matter or object contravenes or circumvents law, or is contra bonos mores, is null and void.
Article 130 § 1 provides that a holder who is according to all circumstances in good faith is a rightful holder.
Under Article 134 § 1 a rightful holder becomes an owner of real estate if he or she retains it in his or her continuous possession for ten years.
According to Article 134 § 3 the period of time during which a given thing was possessed by a legal predecessor is to be figured into the time-limit stipulated in paragraph 1 thereof.