ITEMID: 001-58260
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF PÉREZ DE RADA CAVANILLES v. SPAIN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos
TEXT: 9. The applicant had been in dispute with a neighbour concerning a view over her property at Lumbier in the province of Navarre. On 28 July 1992 a settlement agreement was concluded between the parties before the deputy judge of first instance at Aoiz (province of Navarre). In the agreement the neighbour, who had only a life interest in the building he occupied, undertook to block the view from his patio over the applicant’s property within six months.
10. When, on 6 May 1993, that period expired without the neighbour having carried out his undertaking, the applicant applied to the Aoiz Court of First Instance for enforcement of the agreement.
11. On 25 May 1993 the court gave judgment for the applicant and allowed the defendant an additional period of fifteen days to perform the undertakings made in the agreement.
12. On 11 June 1993 the defendant informed the Aoiz Court of First Instance that as he was not the owner of the building he occupied, he could not carry out the works needed to fulfil the terms of the agreement. On 24 August 1993 the applicant renewed her application, stating that the defendant had not brought any action to have the agreement in question set aside under Article 477 of the Code of Civil Procedure (see paragraph 27 below).
13. In a decision (auto) of 7 September 1993 the deputy judge of the Aoiz Court of First Instance (not the same judge as before) dismissed the applicant’s application and held that the agreement was void on the ground that the neighbour, who was merely a life tenant, could not carry out the works needed to block the view without the consent of the reversioner, since they would change the appearance and structure of the building. The judge added that there was nothing to prevent an agreement being concluded with the person who had the necessary capacity.
As regards the applicant’s allegation that the defendant had not raised the nullity of the agreement within the prescribed time (see paragraph 27 below), the judge held that Article 477 of the Code of Civil Procedure covered only cases in which the actual conclusion of the agreement had not complied with the conditions or formalities laid down by law, and not defects such as to negate a consensus ad idem. The agreement was defective because one of the parties had no capacity to conclude such an agreement.
14. On 8 September 1993 the registrar of the Aoiz Court of First Instance ordered that the decision should be served at the applicant’s home in the village of Lumbier, some twenty kilometres from Aoiz.
15. On 27 September 1993 the magistrate at Sangüesa (under whose jurisdiction the village of Lumbier came) recorded that the applicant was not at her home at Lumbier and informed the registry at Aoiz that her husband, who was at the same time her lawyer, had requested by telephone that the decision should be served at the applicant’s home in Madrid.
16. On 6 October 1993 the decision in question was served on the defendant.
17. In an order of 21 October 1993 the Court of First Instance at Aoiz (some four hundred kilometres from Madrid) ordered that the decision should be served at the applicant’s home in Madrid; on 26 November 1993 the decision was at last served on the applicant in the person of her domestic help, since she herself was out at the time.
18. On 30 November 1993 the applicant lodged a reposición application and, in the alternative, an ordinary appeal against the decision of 7 September 1993 with the registry of the duty court in Madrid, which initially stamped the document. Noticing, however, that the application should have been lodged at the Aoiz Court of First Instance, the head of the registry crossed out the stamp, thereby invalidating it.
On the same day, the applicant sent, by registered letter with advice of delivery, the same reposición application and, in the alternative, an ordinary appeal to the Aoiz Court of First Instance. The application was dated 27 November 1993 and had been signed by the applicant and her counsel at Lumbier. The first page was postmarked 30 November 1993.
19. The registry of the Aoiz Court of First Instance received the application on 2 December 1993.
20. In a decision (providencia) of 13 December 1993 the Court of First Instance declared the reposición application and appeal in the alternative inadmissible as being out of time. After a number of unsuccessful attempts by the Sangüesa magistrate and the Aoiz Court of First Instance to serve this decision within their jurisdictions, it was served on the applicant at her home in Madrid on 15 April 1994.
21. On 15 April 1994 the applicant sent to the Aoiz Court of First Instance, by registered letter with advice of delivery, a reposición application against the aforementioned decision and this was received at the registry on the following day.
22. On 25 May 1994 the Court of First Instance dismissed the application and upheld the impugned decision, on the ground that the application against the decision of 7 September 1993 should have been registered at the court registry within the prescribed period of three days, that is to say on 30 November 1993 at the latest. The court also noted that the legislation on administrative matters cited by the applicant (see paragraph 30 below) was not applicable in the case as proceedings in the ordinary courts were governed by the Judicature Act and the Code of Civil Procedure (see paragraphs 27–29 below). Lastly, the Court held that allowing an application to be lodged by post would undermine “judicial authenticity”, thereby breaching the principle of legal certainty, inasmuch as a post office (an administrative entity) could not be equated with a judicial body.
As to the ordinary appeal, the court added that it could not be lodged until the reposición application had been determined and not at the same time as that application, and that it was accordingly pointless to consider whether it had been lodged timeously.
23. On 7 September 1994 the applicant lodged an appeal with the Navarre Audiencia Provincial, which dismissed it in a decision (auto) of 23 December 1994, emphasising that applications had to be made to the appropriate court or to the duty judge of the same town, particularly where the person making it was assisted by counsel.
24. On 20 January 1995 the applicant lodged an amparo appeal with the Constitutional Court, relying on the right to protection by the courts (Article 24 § 1 of the Constitution).
25. In a decision of 8 May 1995 the application was declared inadmissible on the following grounds:
“… This Court’s case-law on the filing of applications ([see,] as a recent authority, the Constitutional Court’s judgment no. 287/1994) applies to the instant case. Applications are normally to be filed with the registry of the court applied to or with the duty judge and filing [of an application] at the headquarters of administrative bodies is, as an exception, permissible only where the litigant is not represented by a lawyer (abogado or procurador). In the instant case the applicant, assisted by counsel, filed her application at a post office; the ordinary courts, applying the rules of procedure and relying on decisions such as the Constitutional Court’s judgment no. 341/1993, held, in reasoned decisions, that there was no justification for failing to file [the application] at the registry of the court itself or with the duty judge in the town.”
26. Article 24 § 1 of the Constitution provides:
“Everyone has the right to effective protection by the courts in the exercise of his rights and his legitimate interests, and in no circumstances may there be any denial of defence rights.”
27. The relevant provisions of the Code of Civil Procedure which concern settlement agreements read as follows:
Article 476
“The terms agreed by the parties to a settlement agreement shall be enforced by the same court before which the agreement was concluded and according to the procedure (juicio verbal) laid down for the execution of judgments delivered by a court of first instance where the cases are within the jurisdiction of that court.
…”
Article 477
“An action to have the terms of a settlement agreement declared void may be brought on the same grounds as one for annulling contracts.
Such an action must be brought in the appropriate court within fifteen days of the conclusion of the agreement, using the procedure corresponding to the amount in dispute.”
28. The relevant provisions of the Code of Civil Procedure concerning time-limits and the filing of applications are worded as follows:
Article 249
“To be valid, judicial acts must be authorised by the public officer responsible for authenticating or certifying the act.”
Article 250
“Registrars and secretaries [of courts] shall enter the date and time of filing of applications only where it is necessary for checking that a mandatory time-limit (plazo perentorio) has been complied with. …”
Article 377
“Reposición applications must be filed within three days and must specify the provision of this Code that is alleged to have been infringed.
Where these two requirements have not been satisfied, the court shall, without further consideration, make a declaration, against which no appeal shall lie, that no ruling will be made on the application.”
29. The relevant provisions of the Judicature Act are the following:
Section 11
“1. The rules of good faith must be complied with in all proceedings.
2. …
3. In accordance with the principle of effective protection laid down in Article 24 of the Constitution, the courts shall always rule on claims and may only dismiss them on the ground of a formal defect where that defect cannot be remedied, or at least not in accordance with the procedure laid down by law [for that purpose].”
Section 268(1)
“All judicial acts shall be carried out at the seat of the judicial body.”
Section 270
“Procedural documents, decisions and judgments shall be served on all the parties to a case and also, where expressly so provided in such decisions in accordance with the law, on any persons referred to in them or who may be prejudiced thereby.”
Section 271
“Service may be effected by post, telegraph or any other technical means which record its accomplishment and the circumstances thereof in accordance with the laws on procedure.”
Section 272
“1. In municipalities in which there are several courts …, a common service, under the authority of the Chairman of the Bar, may be established in order to effect service where this is the court’s responsibility.
2. …
3. General registration departments may likewise be set up for the filing of instruments or other documents intended for judicial bodies.”
Section 283(1)
“Registrars shall record the date and time of lodging of applications, writs and originating summonses and any other document which must be filed within a mandatory (perentorio) time-limit.”
30. The relevant provision of Law no. 30/1992 of 26 November 1992 on the rules governing public authorities and on common administrative procedure lays down:
Section 38(4)
“Applications, pleadings and communications sent by members of the public to public administrative bodies may be filed:
…
(c) at post offices, in accordance with the formal requirements laid down in regulations.”
31. The rules on the postal service, as enacted in Decree no. 1653/1964 of 14 May 1964 and amended by the Order of 14 August 1971 and Decree no. 2655/1985 of 27 December 1985, provide:
Article 205
“Acceptance of applications and documents sent to administrative institutions
…
2. The documents and applications in question shall be submitted in an open envelope…
3. The official who accepts the item for despatch shall stamp it with the date in the upper left-hand corner of the main document, so that the name of the post office and the date of submission are clearly visible…”
32. In a judgment of 31 January 1991 (no. 20/1991, Official Gazette (Boletín oficial del Estado) of 25 February 1991) the Constitutional Court, citing its own case-law, held that the right to effective protection by the courts was infringed “where a member of the public found it impossible to lodge an application on account of undue hindrances or of unjustified and unexplained refusal or of a mistake attributable to the judicial body”.
In two judgments of 14 February 1991 (no. 32/1991, Official Gazette of 18 March 1991) and 6 June 1991 (no. 128/1991, Official Gazette of 8 July 1991) the Constitutional Court held, inter alia, that the rules of procedure on the acceptance of applications must not prevent the practical exercise of the right to effective protection by the courts. The interpretation of them was not to be excessively or unreasonably strict, regard was to be had to their purpose at the time they were adopted and remedies were to be made as accessible as possible.
33. In two judgments of 18 November 1993 (no. 341/1993, Official Gazette of 10 December 1993) and 27 October 1994 (no. 287/1994, Official Gazette of 29 November 1994) the Constitutional Court held that applications were to be filed with the registry of the court applied to or the duty judge of the town – in these cases the appeals had been to the Constitutional Court itself – and posting an application was, as an exception, permissible only where the litigant was not represented by a lawyer (abogado or procurador) and lived at a distance from the seat of the court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80548
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SEVER AND ASLAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Aykan Sever and Mr Yaşathak Aslan, are Turkish nationals who were born in 1968 and 1952, respectively. They live in Ankara and Artvin. They were represented before the Court by Ms S. Coşkun, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is the publisher of a book entitled “The writings of 1982” (“1982 Yazıları”), written by the second applicant.
On 7 November 2000, at the request of the public prosecutor, the judge at the Ankara State Security Court issued an injunction prohibiting the distribution of the book. It held that it praised and promoted the activities of illegal leftist organisations. Police officers from the Ankara Security Directorate seized copies of the book from the publishing house and submitted them to the public prosecutor’s office.
On 25 January 2001 the public prosecutor filed an indictment with the Ankara State Security Court, charging the applicants under Article 61 and 169 of the Criminal Code, as well as Article 5 of the Law on Prevention of Terrorism. The indictment relied on the following extracts from the book:
“It should not be forgotten that all our evaluations concerning the past years were for the purpose of our revolutionary struggle. An evaluation of the past that does not shed light on our present and future would be futile. It would be nothing but an inadequate critique of the past...
In the future, we should be thinking more seriously about establishing a political party. Our efforts concerning the establishment of the party should evolve on two different grounds which are connected to each other. First of all, this political party should be based on an armed struggle in order to take control of the government. It should be a militant and dynamic organisation that is ready to fight in different areas...
We are making a big step on our way to pursuing our revolutionary duty. For the time being, with the participation of eight groups (the Revolutionary Road (“Devrimci Yol”), the PKK (the Kurdistan Workers’ Party), the Emekçi (the Labour Movement Party), the SVP (the Socialist Homeland Party), the TKEP (the Turkish Communist Labour Party), the Acilciler (the People’s Revolutionary Vanguards), Devrimci Savaş (Revolutionary War), and the İşçinin Sesi (the Communist Party of Turkey – Workers’ voice), the FKBDC (the Unified Resistance Front Against Fascism) has been founded. In the near future, the organisation which was formed by only a few groups should be extended by assembling all socialist forces, and should be transformed into a real authority...
We are aware that the armed struggle is the only way to initiate a revolution in Turkey. Therefore, our primary duty is to create and organise this armed struggle. Accordingly, in the near future, both the political party and the front should be established in order to accomplish this armed struggle...
Despite the extremely difficult conditions in which we find ourselves, hundreds of revolutionary road militants are in an honourable fight for existence. This struggle is worthy of our Revolutionary Road...
As a revolutionary road militant, what you should do is to recapture the spirit of being part of a key political movement...”
In his written petition submitted to the Ankara State Security Court, the first applicant argued that the banning of books was unacceptable in a democratic society.
The Gebze Assize Court, acting under powers delegated to it by the Ankara State Security Court, summoned the second applicant, who was serving a sentence in Gebze prison, to submit his defence. The applicant contended that he had merely collected in the book all the articles, pamphlets, indictments and defence petitions which had already been published several years earlier. Moreover, in his written submissions to the State Security Court, the second applicant maintained that the book was of a documentary nature and that he was making an evaluation of the events and political movements which had occurred 20 years earlier.
On 12 September 2001 the Ankara State Security Court acquitted the applicants as it considered that the constituent elements of the offence were missing. It held that, since the book was seized prior to distribution, the ideas therein never became public. Thus, the propaganda of the illegal organisations was never made. The court ordered the confiscation of the copies already published and banned the book from further publication.
On 20 November 2001 the applicants appealed against the decision of the State Security Court, contending that critical essays of this kind, which made an evaluation of the political past, should not be banned. Moreover, they invoked Articles 25 to 29 of the Constitution which guarantee freedom of the media, freedom of expression and the right to receive and impart information.
On 5 February 2002 the Court of Cassation upheld the decision of the State Security Court. On 5 March 2002 the decision of the Court of Cassation was deposited with the registry of the first instance court.
Before 22 June 1999, section 5 of the State Security Courts Act, Law no. 2845, provided that one of the three members of the bench sitting in State Security Courts had to be a military judge. Following the entry into force of Law no. 4390, on the abovementioned date, military judges were no longer allowed to sit in such courts, which were eventually abolished by Law no. 5190 of 16 June 2004.


ITEMID: 001-106410
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: ZELCA AND OTHERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants are all Romanian nationals. Details as to their names are indicated in the appended table. All of them are represented before the Court by the Sed Lex Constanţa Financial Trade Union (“the Union”), which has its headquarters in Constanţa.
1. The facts of the case, as submitted by the applicants, may be summarised as follows.
2. On 19 November 2008 the Union, on behalf of its members (the applicants), filed a petition against their employer, a State agency, namely the Constanţa Department of Public Finance, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of the Public Servants’ Statute (Law no. 188/1999), they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary.
The aforesaid allowances were to be paid retroactively, starting from 1 April 2004, and correspondingly updated in line with the inflation index. The amounts were to be paid for the whole duration of the employment contract.
The employer dismissed the petition as ill-founded, in so far as the legislation did not allow the payment of the allowances in question; moreover, the budget allocated to the payment of salary entitlements did not include the allowances and in any event, a regional department of public finance was not competent to decide on budgetary matters.
3. On 20 November 2008 the applicants contested that decision before the Constanţa County Court. They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, the suspension did not mean the extinction of the rights, and in any event, the suspension was in breach of Articles 41 and 53 of the Constitution; therefore, the allowances claimed were to be paid retroactively, from 2004 onwards.
The applicants also invoked Article 1 of Protocol No. 1 to the Convention, alleging that their right to obtain the allowances in issue was a “possession” within the meaning of that Article.
In support of their claims and referring also to Articles 6 and 14 of the Convention and the case of Beian v. Romania (no. 1) (no. 30658/05, ECHR 2007V), the applicants invoked the case-law of other courts of appeal in Romania, which had granted the requested allowances to their fellow public servants across the country. The applicants made specific reference to judgments given in 2008 by the Botoşani County Court, the Suceava County Court and the Caraş-Severin County Court, which had all become final after being upheld on appeal by the corresponding courts of appeal.
4. On 14 April 2009 the Constanţa County Court dismissed the applicants’ claim. The court acknowledged that the two supplements claimed were provided for by law, albeit without any indication of a precise amount. In fact, none of the subsequent legal texts regulating civil servants’ salary entitlements made any reference to a method or criteria for determining the amount of each of the supplements.
Therefore, even though Law no. 188/1999 expressly provided that a civil servant’s salary also included the grade supplement and the salary-step supplement, the determination of the corresponding amounts was not possible. Consequently, the court held:
“For the calculation of the two allowances, as components of public servants’ salaries, explicit legal rules for the application of section 31(1) (c) and (d) are necessary, and this task belongs either to the legislative power, in the event that a law is passed, or to the executive power, in the event that a decision for the application of the law is delivered.”
The court further considered that to grant the allowances in the absence of precise criteria for their calculation would mean obliging the employer to pay sums that were impossible to calculate, and thus delivering a judgment that was impossible to enforce; on the other hand, the potential calculation of those allowances by the court would mean encroaching on the powers of the administrative authorities and completely disregarding the Constitutional Court’s case-law to the effect that:
“the courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.”
With respect to the allegations raised under Article 1 of Protocol No. 1 to the Convention, the court held that the applicants could not claim to have a possession, in so far as their requests had never been allowed or confirmed by the courts in a final judgment.
5. The applicants appealed against that judgment before the Constanţa Court of Appeal, reiterating their arguments submitted before the first-instance court. They again referred to the fact that several other courts across the country had already granted the allowances in issue to colleagues of theirs, meaning that by denying them the right to also receive the allowances, the County Court had discriminated against them in relation to other public servants, in violation of Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.
In addition, they stated that the allowances were provided for by law, and that their right to receive them had been confirmed by the first-instance court, which had nonetheless decided not to grant the allowances in the absence of criteria for their calculation.
The applicants further mentioned that their lack of financial means and the defendant’s omission to include the related costs in the budget could not be held against them in order to deprive them of the two allowances in question, to which they were entitled by law.
When asked to comment on the judgment given on 21 September 2009 by the High Court of Cassation and Justice on an appeal in the interests of the law, in which it held that the two allowances in question could not be granted by the judiciary, the applicants’ representative stated that he was not able to give an opinion on the issue.
6. On 27 January 2010 the Constanţa Court of Appeal dismissed the applicants’ appeal.
The court noted that according to the above-mentioned judgment given by the High Court of Cassation and Justice, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step could not be granted by the judiciary.
In so far as the High Court’s interpretation of the law, as set out in the decision given in the appeal in the interests of the law, was obligatory, the court was bound to follow the High Court’s ruling and thus to dismiss the applicants’ claims as ill-founded.
7. The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted. On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants:
“1. For discharging their activities public servants have the right to a salary composed of the following:
(a) basic salary;
(b) seniority allowance;
(c) grade allowance;
(d) step allowance.
2. Public servants shall be granted bonuses and other salary rights, in accordance with the law.
3. The remuneration of public servants shall take place in accordance with [the criteria] prescribed in the law on the implementation of a unitary remuneration system concerning public servants.”
On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content.
The application of these provisions was suspended from 2004 until 2006, firstly by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006.
With effect from 12 November 2009, the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009, which itself was repealed on 1 January 2011.
8. Starting with 2008, a divergent case-law emerged across the country concerning the granting of the grade supplement and of the allowance corresponding to the salary step.
9. It is why on 13 May 2009, in order to ensure the uniform interpretation and application of the law, the Prosecutor General applied to the High Court of Cassation and Justice, in accordance with the provisions of Article 329 of the Romanian Code of Civil Procedure.
In the judgment delivered on 21 September 2009, the High Court confirmed the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, on the granting of allowances to public servants. The High Court held that the entitlements claimed did not constitute a “possession” within the meaning of the European Convention, being only “virtual rights” in the absence of criteria for their calculation; it consequently held that:
“for the uniform interpretation and application of section 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.”
The High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.


ITEMID: 001-57480
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF ENGLERT v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);No violation of Art. 6-2
JUDGES: C. Russo;N. Valticos
TEXT: 11. Mr. Joachim Englert, a German national born in 1958, was in custody in Ludwigsburg Prison when he applied to the Commission.
Between 1975 and 1980, he was convicted of a number of offences. In 1981, he was sentenced to a year’s imprisonment for, among other things, extortion with menaces (räuberische Erpressung); the sentence was suspended, however, and he was put on probation (Bewährung) for four years. In August 1981, the Heilbronn District Court passed on him an aggregate sentence of one year and two months’ immediate imprisonment, thereby combining his last two sentences.
12. Earlier, on 24 February 1981, the applicant had been arrested and then, on 25 February, detained on remand; according to the warrant for his arrest issued by the Heilbronn District Court, he was suspected of extortion with menaces on two occasions and of having caused actual bodily harm (Körperverletzung) and committed a rape. On 26 June 1981, he had been indicted (angeklagt) for these offences before the 3rd Criminal Chamber (3. Grosse Strafkammer) of the Heilbronn Regional Court (Landgericht).
According to the prosecution, Mr. Englert had
(i) in a restaurant on 23 February 1981, threatened to use force against a customer - namely to lie in wait for him one night, break his bones and shoot him dead with a revolver - and by this means extorted DM 50 from him and demanded a further DM 500, to be paid on 7 March 1981;
(ii) on the same day, punched Mr. K a distant relative of his, in the face, injuring him;
(iii) at his lodgings in Bad Wimpfen on the next day, taken from Mr. K’s wife - whom he was temporarily accommodating, together with her husband, as they had nowhere to live - all her cash, amounting to DM 150, by threatening to kill her; and
(iv) subsequently, after threatening that he would otherwise beat her up and kill her, sexually abused Mrs. K while her husband was asleep under the influence of drink.
13. During the trial on 2 November 1981, the Regional Court stayed the proceedings in respect of the first two charges under Article 154 § 2 of the Code of Criminal Procedure (see paragraph 19 below), on the ground that the sentence which the defendant could expect was "almost negligible" (nicht beträchtlich ins Gewicht fällt) compared with the sentence he was likely to be given if convicted on the other charges.
On the same day, the Regional Court convicted Mr. Englert of the crime (Verbrechen) of extortion with menaces and sentenced him to one year and three months’ imprisonment; it acquitted him on the rape charge.
The court found that the defendant had given Mr. and Mrs. K shelter. On 23 February, the couple had drawn DM 325 in welfare benefits. After buying food, they had spent the evening with the applicant and had had a few drinks at his home. After Mr. K. had fallen asleep, Mr. Englert made Mrs. K. give him DM 150, threatening that he would kill her if she refused. The next day, the couple reported the matter to the police. As regards the allegation of rape, the court found, having regard to a medical report, that it could not be ruled out that the victim, who was mentally handicapped, had not shown her will to resist clearly enough for it to be noticed by the applicant.
The acquittal became final on 10 November 1981.
14. On 4 November 1981, Mr. Englert appealed on points of law against conviction; he filed full pleadings on 25 January 1982.
On 6 April 1982, the Federal Court of Justice (Bundesgerichtshof) set the judgment aside and remitted the case for retrial by a different criminal chamber of the Heilbronn Regional Court. It found that the Regional Court had not heard evidence from a parish priest whom, according to the defence, Mrs. K had told that she had consented to sexual intercourse with the applicant. The Federal Court held that despite the applicant’s acquittal on the rape charge, the witness should have been heard because his evidence might have put Mrs. K’s credibility in doubt in respect of all the charges.
15. On 5 August 1982, the priest informed the police that he could not give evidence unless Mrs. K released him from his obligation of professional confidentiality. Mrs. K, who had left her husband in the meantime, refused to do this.
16. On 1 September 1982, the public prosecutor’s office applied for the proceedings to be stayed under Article 154 of the Code of Criminal Procedure (see paragraph 19 below), as the sentence Mr. Englert could expect was almost negligible in comparison with the one passed on him in August 1981 (see paragraph 11 above). Having been invited to make any comments he might have, the defence counsel assigned by the court, Mr. Wingerter, informed the Regional Court on 9 September that he could agree on the defendant’s behalf to Mr. Englert’s bearing his own necessary costs and expenses (notwendige Auslagen) but that his client had no intention of forgoing compensation for his detention on remand.
17. On 13 September 1982, the Regional Court stayed the proceedings under Article 154 § 2 of the Code of Criminal Procedure; it ordered that the costs of the proceedings - but not Mr. Englert’s necessary costs and expenses - should be borne by the Treasury, and it refused to award the applicant any compensation in respect of his arrest on 24 February 1981 and of his detention on remand from 25 February 1981 to 12 October 1982.
The reasons for the decision (Beschluss) included the following:
"...
The costs of the proceedings shall be borne by the Treasury, pursuant to Articles 464 and 467 § 1 of the Code of Criminal Procedure, but the court will not order the Treasury to pay the defendant’s necessary costs and expenses. Counsel for Mr. Englert stated on his client’s behalf that he - Mr. Englert - agreed to bear these. Moreover, it would have been fair, having regard to all the circumstances of the case, to order the person convicted to pay his own necessary costs and expenses. The same reasons are relevant here as justify the refusal of compensation for the time spent in detention on remand.
Mr. Englert made known through his counsel that he was not prepared to forgo [such] compensation ... He cannot, however, claim compensation for the time he spent in detention on remand in the instant case. In the light of the course of the trial so far, the circumstances rebutting the presumption of innocence are, in the view of the Chamber, so overwhelming that a conviction is clearly more likely than an acquittal (Bei Würdigung des bisherigen Prozessgeschehens überwiegen nach Ansicht der Kammer die Umstände, welche die Unschuldsvermutung entkräften, derart, dass eine Verurteilung deutlich wahrscheinlicher ist als ein Freispruch). Furthermore, Mr. Englert - even if he were acquitted - could not be compensated for his detention, since it was his own actions that gave rise to the strong suspicion that he had committed an offence of extortion with menaces.
On the morning of 24 February 1981, [he] stated that Mrs. K had given him only DM 100, which he had spent while shopping that morning in Heilbronn, except for DM 20 that were found at his home. After Mrs. K had said, when a statement was taken from her on the afternoon of 24 February, that Mr. Englert had put the DM 150 he had extorted from her into his swimming costume, [he] was searched, and a DM 100 note was indeed found in his swimming costume, as [she] had said. Not until 22 April 1981, when the investigating judge (Haftrichter) questioned him, did Mr. Englert explain how he came to have a DM 100 note belonging, as he admitted, to Mrs. K. The reasons why that explanation is unconvincing were set out in detail by the 3rd Criminal Chamber in its judgment of 2 November 1981. Even if the version offered by Mr. Englert was true, however, it has to be said against him that he himself prompted the criminal proceedings by his grossly negligent (grob fahrlässig) behaviour, for he failed to consider the obvious and elementary fact that he could be proved to have lied about the money in his possession and that this would provide evidence of the credibility of Mrs. K’s statements and his own lack of credibility. Compensation must therefore be refused him, in accordance with section 5(2) of the Criminal Proceedings (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen)."
The Regional Court pointed out, lastly, that as no appeal lay (Unanfechtbarkeit) against the order staying the proceedings, the decision on costs and on compensation for detention on remand was likewise final.
18. On 20 September 1982, the applicant appealed against the refusal to award him compensation for his detention on remand. His lawyer’s pleadings consisted of a single sentence: "On behalf of the defendant, I appeal against point III of the ... decision of 13 September 1982."
The Stuttgart Court of Appeal (Oberlandesgericht) declared this appeal (Beschwerde) inadmissible on 30 September. It held, inter alia :
"The ... application is directed solely against the refusal to award compensation. No appeal is provided for in law (nicht statthaft) and the application is therefore inadmissible.
The provisional stay of the proceedings under Article 154 § 2 of the Code of Criminal Procedure is a decision which terminates the proceedings, since it was taken on account of a penalty or measure imposed in respect of another offence and which had already become final. In such circumstances, the proceedings can only be reopened, under Article 154 § 3 of the Code of Criminal Procedure, if they have not become time-barred and if the penalty or measure which gave rise to the stay has since been lifted. The provisional stay amounts here to a final ruling putting an end to the proceedings. It is thus a decision which, under Article 464 §§ 1 and 2 of the Code of Criminal Procedure, requires another one to be taken as to the costs and expenses and, on to the same criteria, ... as to any compensation due in respect of the criminal prosecution brought ...
The decision delivered pursuant to Article 154 § 2 of the Code of Criminal Procedure is unappealable. So too are the ancillary decisions (Nebenentscheidungen) delivered at the same time as the principal decision ... These include not only the one as to costs and expenses but also the one as to compensation in respect of the criminal prosecution ... The decision delivered by the Regional Court with regard to compensation is thus not appealable ..."
19. Article 154 of the Code of Criminal Procedure, on which the Heilbronn Regional Court based its decision of 13 December 1982, provides:
"1. The public prosecutor may decide not to prosecute
(1) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect to be imposed - for another offence ...
...
2. Once proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor.
...."
20. By the terms of Article 464 of the Code of Criminal Procedure, any judgment, order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings (paragraph 1); the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses (paragraph 2).
Article 467 of the Code of Criminal Procedure provides:
"1. If the defendant (Angeschuldigter) is acquitted or if committal for trial (Hauptverfahren) is refused or if the proceedings against him are discontinued, the costs of the proceedings and the defendant’s necessary costs and expenses shall be borne by the Treasury.
...
3. ... The court may decline to award the defendant’s necessary costs and expenses against the Treasury where the defendant
(1) has brought about the proceedings (Erhebung der öffentlichen Klage) by incriminating himself in vital matters through statements which were inaccurate or contrary to subsequent statements by him or by withholding vital exonerating information, even though he had formally replied to the charge (Beschuldigung) ....
...
4. If the court stays the proceedings in pursuance of a provision which empowers it to do so, it may decide not to order the Treasury to bear the defendant’s necessary costs and expenses.
..."
Inasmuch as the law does not make the reimbursement of necessary costs and expenses mandatory, the courts decide the issue on an equitable basis and have a degree of discretion in the matter.
21. By section 2(1) of the Criminal Proceedings (Compensation) Act of 8 March 1971, any person who has suffered prejudice by reason of having been detained on remand shall be indemnified by the Treasury in the event of his being acquitted or if the proceedings brought against him are discontinued. This rule is, however, subject to certain exceptions, including the one laid down in section 5(2) of the Act, which provides:
"Compensation shall not be payable ... where and in so far as the defendant brought about the criminal proceedings deliberately or through gross negligence. Compensation shall not be precluded by reason only of the fact that the defendant merely did not respond to the charge or charges or that he failed to avail himself of a remedy."
By section 8 of the same Act, the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings.
22. The scope of the principle of the presumption of innocence in the context of discontinuance of criminal proceedings has recently been clarified by the Federal Constitutional Court. By a judgment (Beschluss) delivered on 26 March 1987, the Federal Constitutional Court quashed, as contravening the principle, two decisions by district courts and one decision by a regional court whereby the courts, having held the guilt of the defendants to be insignificant (gering), had stayed the private prosecutions brought against them but had awarded the costs of the proceedings against the defendants, including the costs and expenses of the complainants (cases 2 Bvr 589/79, 2 Bvr 740/81 and 2 Bvr 284/85, Europäische Grundrechte-Zeitschrift 1987, pp. 203-209).
The Constitutional Court held it to be inconsistent with the presumption of innocence to speak in the reasons given for a discontinuance decision of a defendant’s guilt or to base an order as to costs and expenses on the supposition (Annahme) that a defendant has been guilty of an offence if the trial has not reached the stage at which the verdict can be given (Schuldspruchreife). It pointed out that the principle of the presumption of innocence derived from the principle of the rule of law, and it also referred to Article 6 § 2 (art. 6-2) of the Convention. The Convention did not have the status of constitutional law in the Federal Republic, but regard should be had to it and to the case-law of the European Court of Human Rights in interpreting the principles and fundamental rights enshrined in the Basic Law (Grundgesetz).
Reaffirming its case-law, the Constitutional Court reiterated that, by virtue of the principle of the presumption of innocence, no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial and no defendant may be treated as guilty. The Court added that this principle requires that guilt be proved according to law before it can be held against the person concerned. A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given.
Citing the Minelli judgment of 25 March 1983 (Series A no. 62), the Constitutional Court ruled that a decision discontinuing criminal proceedings may offend the presumption of innocence if it contains in its reasoning a finding of the defendant’s guilt without that guilt having been proved according to law. On the other hand, nothing precluded a court from making findings in such a decision as to the defendant’s guilt and ordering him to pay the necessary costs and expenses of the complainants as well as the costs of the proceedings if it had held a hearing enabling it to reach a verdict (Entscheidungsreife).
On the basis of these considerations, the Constitutional Court quashed three of the five decisions challenged but dismissed the application in the first of the three cases concerned, as the defence had made the closing address after a trial.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-115379
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF GURBANOVA v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Erik Møse;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1946 and lives in Baku.
5. On 17 February 1998 the applicant’s husband was issued an occupancy voucher (yaşayış orderi) to an apartment in Baku on the basis of an order of the Yasamal District Executive Authority. On 13 March 1998 the applicant’s husband died.
6. On an unspecified date the applicant became aware that the apartment had been occupied by H. and her family, who were internally displaced persons (“IDP”). According to the applicant, despite her numerous demands, the family refused to vacate the apartment.
7. In 2007 the applicant lodged a court action with the Sabunchu District Court asking the court to order the relevant authorities to change the documents of the apartment into her name and the eviction of H. and her family from the apartment. On 5 October 2007 the Sabunchu District Court partly granted the applicant’s request. The court held that the defendants had no right to use the apartment and that they unlawfully occupied it and ordered their eviction from the apartment. Concerning the changes in the apartment’s documents, the court held that it was not possible to provide the applicant with the relevant documents as the construction of the building had not yet been terminated. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within one month after its delivery. However, the IDP family refused to comply with the judgment.
8. In 2008 the applicant lodged an action with the Yasamal District Court asking compensation for non-enforcement of the judgment of 5 October 2007. On 16 September 2008 the Yasamal District Court and on 24 November 2008 the Baku Court of Appeal dismissed the applicant’s request. On 20 May 2009 the Supreme Court upheld the lower courts’ judgments.
9. At the time of the latest communication with the applicant, the judgment of 5 October 2007 in her favour remained unenforced.
10. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67466
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HOOPER v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Matti Pellonpää;Nicolas Bratza;Simon Brown
TEXT: 8. On 3 January 1997 the applicant appeared before the magistrates' court, charged with assault occasioning actual bodily harm and failing to answer bail. He was legally represented. The applicant elected to be tried in the Crown Court. The stipendiary magistrate therefore adjourned the proceedings to enable a committal hearing to take place at a later date and proceeded to consider whether the applicant should be granted bail. During the course of that consideration, the applicant “reacted adversely” in court, causing a disturbance which led the magistrate to conclude that there existed a future risk of a breach of the peace by him. The magistrate therefore made an order binding the applicant over to keep the peace and to be of good behaviour under the Justices of the Peace Act 1361.
9. The applicant was “bound over” in his own recognisance of 50 pounds sterling (GBP) together with a surety of GBP 250. The precise terms of the order were found by the Divisional Court (in the later judicial review proceedings) to be unclear. However, the Divisional Court proceeded on the assumption that the order of the magistrates' court had fixed a period of 28 days' imprisonment in default of the applicant's own recognisance and/or a suitable surety. The magistrate did not give any opportunity for the applicant or his representative to make submissions about the terms of the order before it was imposed.
10. It appears that later on the day on which the binding over order was imposed, in the absence of both the applicant and his representative, the surety presented himself to the magistrate, who himself took the recognisance. The magistrate appears to have deemed the proposed surety unsuitable and to have done so on the ground that he did not have any readily available money. The applicant was committed to custody on the same day for 28 days. The Divisional Court later noted that he had remained in custody until 16 January 1997 or a little later.
11. On 2 June 1997 the applicant was granted leave to apply for judicial review of the decision to impose the binding over order.
12. On 20 January 1998 the Divisional Court granted the application for judicial review. The nature of the applicant's case was stated by the Divisional Court to be as follows:
“It is not suggested by Mr. Daniel, for the applicant, that the magistrate had no power under [the Justices of the Peace Act 1361] or common law to impose a binding over order without consent, to require a surety or to impose a sentence of imprisonment in lieu. What is suggested is that there was a breach of natural justice or procedural irregularity in the way in which the magistrate dealt with the matter, without investigating further, or giving specific opportunity to the applicant or his legal representative to make representations about the terms of any binding over order.”
13. The Divisional Court (Lord Justice Simon Brown and Mr Justice Mance) agreed that the binding over order had been procedurally irregular and granted a declaration to that effect. During the course of their judgments, the judges of the Divisional Court held that:
(a) previous domestic case-law had established that there were circumstances where failing to hear a defendant or his representative prior to imposing a binding over order containing a requirement of a recognisance could amount to a breach of the rules of natural justice. Mr Justice Mance quoted, inter alia, the headnote of the case of R. v. Central Criminal Court ex parte Boulding [1984] 1 QB 813 that:
“... although there was no general obligation upon a court to afford a defendant an opportunity to be heard prior to binding him over, it was a breach of the rules of natural justice, unless the recognisance was of a trivial sum, for a court to bind a person over without inquiring into his means and giving him an opportunity to make representations as to the size of the recognisance.”
(b) the position where there was a requirement for a surety was even clearer. A surety required the separate approval of the court as to his suitability. This was outside the control of the person to be bound over and yet could have drastic consequences for him where, as in the present case, it resulted in his serving a period of imprisonment imposed as an alternative;
(c) in such circumstances, magistrates needed to take particular care lest, in effect, they imposed a binding order which amounted to an automatic sentence of imprisonment without appreciating what they were doing;
(d) a defendant ought not to be put at peril of a prison sentence in default of finding a surety unless he had first been specifically invited to address the magistrates' court upon that point;
(e) the magistrate did not expressly invite or give opportunity for any submissions, or indeed any discussion between the applicant and his representative, about the proposed terms of the binding over order before he imposed it. While the magistrate stated during the course of the judicial review proceedings that he would have been prepared to listen to anything that the applicant's representative would have wished to say, the High Court accepted that the applicant's representative was effectively presented with a “fait accompli” of a nature which she had not come across before. In responding to an argument put forward on behalf of the magistrate that an advocate was under a duty to bring any procedural irregularity to the attention of the court during the hearing and not reserve such matter to be raised on appeal, Mr Justice Mance said:
“That is of course right, but it assumes that the advocate appreciates that what happens does amount to a procedural irregularity and understands at the time the nature of the point. Here [the applicant's representative] does not appear to have had the confidence of whatever belief she had that something was not quite right, she did not raise the matter, and I do not think that the applicant should suffer from any failure, if there was any on her part, to react as another advocate, perhaps more familiar with this area of the law and practice, might have done.”
(f) had the applicant or his representative been able to make submissions about the proposed order the magistrate might have been persuaded to impose different terms. Mr Justice Mance stated:
“What Mr Burnett [counsel for the respondent] has submitted is that it cannot be shown that it would have made any difference if the magistrate had given to the applicant [and his counsel] an opportunity to make representations. However, it seems to me certainly not beyond the bounds of possibility, that if a proper opportunity had been given to [the applicant's counsel] to consider and address the matter after brief discussion between herself, the applicant and the friend [the proposed surety] the stringency of the proposed order - particularly in the alternative ... it had of 28 days' imprisonment - would have been one of the points on which she would have focused; the risk and consequences of a suitable surety being found, and in particular, of the friend at court ... not being regarded as suitable might well also have been highlighted.
Mr Burnett did not seek to controvert that. The magistrate might, in such circumstances, have been persuaded to a different result. This is all, of course, speculative, but speculation though it may be, the reason why it is speculation is that the magistrate failed, in my judgment, to give the applicant or, on his behalf, [the applicant's representative] proper time or a proper opportunity to address the terms of the proposed bind over order, particularly so far as they involved a requirement that the applicant produce a surety in the sum of £250.”
14. Magistrates have powers to bind over at common law and under the Justices of the Peace Act 1361. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores.
15. The Justices of the Peace Act 1997 provides, in so far as relevant, as follows:
“51. No action shall lie against any justice of the peace ... in respect of any act or omission of his -
(a) in the execution of his duty -
(i) as such a justice;
...
(b) with respect to any matter within his jurisdiction.
52. An action shall lie against any justice of the peace ... in respect of any act or omission of his -
(a) in the purported execution of his duty -
(i) as such a justice;
...
(b) with respect to a matter which is not within his jurisdiction,
if, but only if, it is proved that he acted in bad faith.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-79478
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHEKUSHKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1947 and lives in the town of Bataysk of the Rostov Region.
7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума).
8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (2,800 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period.
9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,376 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid.
10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court.
11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened.
12. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003.
13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).
14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal.
15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The case was transferred to the Presidium for the examination on the merits.
16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium.
17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence. The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination.
18. On 25 December 2003 the Bataysk Town Court examined the case anew. In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted this multiplier.
19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from January 2004, pay him 3,937.5 Roubles monthly, with subsequent indexation.
20. On 14 January 2004 the Bataysk Town Court rendered an additional decision in the above case aimed at correction of an arithmetic error in the calculation of the amount awarded to the applicant.
21. The above decisions of the Town Court were not appealed against and became final.
22. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review.
23. The CCivP, in the relevant part, provides as follows:
“1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.”
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
“2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.”
“2. The President of the...regional...court...may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.”
“The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57879
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF JACUBOWSKI v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: R. Pekkanen
TEXT: 7. Mr Manfred Jacubowski lives in Bonn and is a journalist by profession. At the material time he was working as editor-in-chief of a news agency run by a commercial company, the Deutsche Depeschendienst GmbH, of which he was a founder member and manager. This company filed a petition in bankruptcy (Eröffnung des Konkursverfahrens) on 31 March 1983. A new company, the Deutsche Depeschendienst AG ("the ddp"), was created subsequently, and Mr Jacubowski became its sole director (Vorstand) and editor-in-chief on 3 May 1983.
8. Shortly afterwards, he instituted two different sets of proceedings. In the first (A) he sought to challenge his dismissal and in the second (B) he claimed the right to reply to a press release issued by his employer. At almost the same time, he became involved in a third set of proceedings (C) brought against him under the Unfair Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb - "the 1909 Act").
9. For reasons connected with the applicant’s financial management, the ddp’s supervisory board (Aufsichtsrat) dismissed him without notice from all his duties on 17 July 1984. On 25 August it sent him another letter of dismissal on the ground that he had allegedly communicated inside information to third persons. Mr Jacubowski challenged the validity of the latter dismissal, which was renewed on 12 October. A further dismissal letter was sent to him on 28 October, after he had distributed a circular letter and newspaper cuttings among fellow professionals on 25 September (see paragraph 14 below). A final dismissal notice, based on new grounds, was sent to him on 12 February 1985.
10. At the end of legal proceedings instituted by the applicant, the Cologne Court of Appeal (Oberlandesgericht) held on 11 October 1988 that he had been validly dismissed on 28 October 1984.
According to the court, the distribution of the circular and cuttings was to be regarded as such a serious breach of Mr Jacubowski’s duty of loyalty that it was not possible for the employer to continue his contract, nor could it reasonably be expected. By sending press articles to a large number of influential professionals and endorsing in the circular their objectively unfavourable statements about the ddp’s competence and business situation, Mr Jacubowski had knowingly run the risk of causing the company considerable prejudice; such behaviour on the part of a leading employee was unacceptable and therefore not covered by the constitutional right to freedom of expression.
Furthermore, it could not be inferred from the circular that its main aim was to defend the applicant’s reputation and honour; it contained neither any reference to the ddp’s allegations nor any arguments in Mr Jacubowski’s defence. The circular’s last paragraph clearly showed that the sole purpose of the mailing had been to disseminate adverse comments on the applicant’s former employer and to establish contact with the addressees.
11. Mr Jacubowski challenged this judgment in the Federal Court of Justice (Bundesgerichtshof) and the Federal Constitutional Court (Bundesverfassungsgericht), but on 26 June and 25 October 1989 respectively those courts declined to accept for adjudication his applications on the ground that they had no prospects of success.
12. In the meantime, on 16 August 1984, the agency had published a press release concerning its own reorganisation. In this it also criticised the applicant’s management in the following terms:
"... after the private limited company ... had filed a petition in bankruptcy on 31 March 1983, the public limited company D. - again under the management of Manfred Jacubowski - started up on 20 April 1983 with a capital of one million DM. Jacubowski’s unchanged business methods and his inappropriate behaviour to clients, together with the lack of any efficient, reliable editorial management meant that no advantage was taken of the opportunity to make a fresh start, and indeed they led to a loss of clients. Until this spring Jacubowski misled the supervisory board about vital aspects of the developments. In particular, liabilities incurred in the private company’s period of existence were transferred to the public company, and this put the D. agency into financial difficulties again. Only the timely intervention of the former finance and accounting director, K., the current director, prevented more serious harm being done, so that today D. is once again on a sound financial footing. On 17 July - the date of the general meeting - Jacubowski was dismissed without notice on account of his business incompetence ... K. was appointed sole director."
13. On 29 August and 4 September 1984 the applicant requested the ddp to publish his reply (Gegendarstellung) to the press release, but without success. He then sought an interim injunction (einstweilige Verfügung) from the Bonn Regional Court (Landgericht), but this was refused on 17 September 1984, on the ground that the proposed reply was not limited to answering the allegations of fact in the press release (gegenteilige Tatsachenbehauptung) but gave a completely new version of the sequence of events (Auflistung), which had not been an issue in the ddp’s press release.
On 11 October the Cologne Court of Appeal reversed the Regional Court’s judgment and ordered the agency to accede to Mr Jacubowski’s request, which it did a month later. In the reply then published the applicant answered in detail all the main accusations contained in the ddp’s press release.
14. In the meantime, on 25 September 1984, Mr Jacubowski had sent thirteen articles from newspapers with large circulations to forty newspaper publishers and newspaper, radio and television journalists who, as clients of the ddp, had received the press release of 16 August (see paragraph 12 above). These articles gave critical accounts of his dismissal, the circumstances surrounding it and the ddp’s activities in general. They reported in particular that the ddp’s financial position had worsened again since the bankruptcy in April 1983 (see paragraph 7 above) and that some of its clients were preparing to dispense with its services, mainly because of their poor standard and the lack of certain technical facilities.
He had appended a circular letter that read as follows:
"The enclosed selection - which is inevitably incomplete - of articles on the Jacubowski v. D. case will undoubtedly throw light on certain matters that are still obscure, even though you may already be familiar with one or other of the accounts of the facts. Some of the facts are admittedly reported inaccurately, but they scarcely alter the picture as a whole. The pending court proceedings that members of D.’s staff affected by current developments at the agency and I have brought will ensure that all the details finally become clear.
I should be glad to be able to meet you in person before too long, in order to discuss not only the past but also future developments in the German ‘news market’. I will ask for an appointment in due course."
15. Shortly afterwards, on 11 March 1985, the applicant set up a "public-relations" agency.
16. In the meantime the E. company, which had acquired 25% of the ddp’s capital, had applied for a restraining injunction (Unterlassung) against Mr Jacubowski. On 29 January 1986 the Düsseldorf Regional Court refused the application on the ground that E. had no legal interest (rechtliches Interesse).
17. On 11 December 1986, on an appeal by E., joined (Eintritt in den Rechtsstreit) by the agency, the Düsseldorf Court of Appeal refused to grant an injunction prohibiting the applicant from systematically criticising the ddp but ordered that he should desist from any further such mailings, on pain of a fine; it went on to hold that he would have to "compensate the [E. company] for all the damage that the acts [in question] ha[d] caused and [would] cause the [ddp]". The judgment was based on section 1 of the 1909 Act, which provides: "Any person who, in the course of business commits, for purposes of competition, acts contrary to accepted moral standards may be enjoined from further engaging in those acts and held liable for damages."
The court held that in his circular the respondent had repeated in his own name the allegations made in the attached articles. Admittedly, he had sought to correct assertions made about him in the press release that were possibly false but he had acted above all for purposes of competition in the course of business.
The court said, inter alia:
"... the respondent sent his circular of 25 September 1984 for purposes of competition in the course of business.
An action is said to be for purposes of competition where it is on the face of it apt to promote one person’s sales to the detriment of another’s and where it is carried out with a corresponding intention, although that intention need not be the only or the essential motive for the action (settled case-law, see Federal Court of Justice in GRUR 1952, p. 410 - Constanze I; Baumbach-Hefermehl, Wettbewerbsrecht, 14th edition, intro. to Unfair Competition Act, marginal notes 209 et seq., with further references).
Remarks which, according to the witness Leisner, the respondent made several times show that even before sending out the circular the latter had planned to set up his own news agency after he left the employ of the [ddp]. The distribution of the circular referring to the enclosed adverse newspaper reports on, inter alia, the [ddp]’s activities as a news agency to current clients of the [ddp] and/or potential clients of both the [ddp] and the news agency that the respondent proposed to set up was apt to enhance the competitive position of the respondent’s company and impair that of the [ddp]. Admittedly, the respondent’s company did not then exist. However, for it to be held that there is a competitive relationship, it is sufficient that traders have, or at least will in the future have, the same potential clientele. This was the case as regards the respondent’s company and the [ddp] ...
Behind the respondent’s conduct there was furthermore a ... competitive intention.
Experience shows that the fact that activities are objectively apt to enhance one’s own competitive position at the expense of another’s is not the only basis for presuming a competitive intention ...
In the present case such an intention is also apparent from the other facts that emerged during the proceedings. According to what he told the witness Leisner, the respondent had already been planning for a long time to set up his own agency in the event of his leaving the [ddp]’s service. In the middle of July 1984 the [ddp] had removed him from the post of director and in the middle of August [it] had terminated his contract of employment. The circular and newspaper cuttings were sent out about a month later to selected addressees, including - and this is not disputed - important clients of the [ddp]. A few months later the respondent’s new agency was set up. This chronological sequence of events is a further indication of the respondent’s intention to lower the [ddp] in the esteem of potential clients of both parties and thereby make it easier for his own agency to gain a foothold in the market in preparation for competition with the [ddp].
The last paragraph of the circular likewise makes the competitive intention clear. It shows that the respondent intended to provoke discussion not only with a view to correcting assertions concerning himself that were possibly false, but also, at the very least, in order to promote his future activities as a competitor of the [ddp]. It is not apparent what else the respondent could have meant when he wrote that he wished to discuss ‘not only the past but also future developments in the German "news market"‘. By taking up these unfavourable comments on the [ddp] and distributing them anew as his own statements and assessments, he unnecessarily handicapped the [ddp] as a competitor. In this connection it does not matter whether the unfavourable factual statements concerning the [ddp]’s activities were accurate and whether they justified the unfavourable assessments accompanying them. This is because even true statements may only be used to disparage a competitor where the person making them has sufficient reason to link his own competitive position with disparagement of the competitor and provided that the criticism does not in nature or degree exceed what is necessary (Federal Court of Justice in GRUR 1968, pp. 262 and 265 - Fälschung). It does not appear that there was any such reason to disparage the [ddp] by taking up the unfavourable comments on its activities in the Horizont article."
In short, Mr Jacubowski had needlessly handicapped (behinderte unnötig) a competitor and accordingly infringed section 1 of the 1909 Act.
18. On 26 November 1987 the Federal Court of Justice declined to accept for adjudication an appeal on points of law (Revision) by the applicant on the ground that it had no prospects of success.
19. Thereupon Mr Jacubowski applied to the Federal Constitutional Court, complaining in particular of an infringement of freedom of expression (Article 5 para. 1, first sentence, of the Basic Law). On 4 October 1988 the Federal Constitutional Court declined to accept the complaint for adjudication on the ground that it was unfounded.
It noted, firstly, that the prohibition in issue related solely to the applicant’s chosen method of circulating his information. The information was, moreover, of a business nature, but this did not mean that it ceased to be an opinion whose expression was protected by Article 5 para. 1, first sentence, of the Basic Law. This provision therefore had to be weighed against section 1 of the 1909 Act, on which the prohibition had been founded.
The court went on:
"In order for it to be determined how [freedom of expression and fair competition] are to be related to each other in the case of damaging comment by a competitor, the following points are decisive, having regard to earlier decisions of the Constitutional Court in cases involving a call for a boycott (see Constitutional Court Decisions [vol.] 62, 230 at 244 et seq., with further references).
In the first place, the motives of the person concerned and, linked to them, the aim and purpose of the comment are crucial. If the comment is motivated not by personal interests of an economic nature, but by concern for the political, economic, social or cultural interests of the community, if it serves to influence public opinion, the appeal will probably qualify for the protection of Article 5 para. 1 of the Basic Law, even if private and, more particularly, economic interests are adversely affected as a result. Conversely, the importance of protecting the latter interests is the greater, the less the comment is a contribution to public debate on a major issue of public concern and the more it is immediately directed against those interests in the course of business and in pursuit of a self-serving goal (see Constitutional Court Decisions [vol.] 66, 116 at 139) such as improving one’s own competitive position ...
...
In the light of these facts, the distribution of the applicant’s circular can hardly be regarded as an attempt to influence public opinion. Rather it was designed almost exclusively to promote his private business interests and to secure or improve his competitive position in the news market.
It follows ... that the prejudice caused to the complainants by the distribution of the circular was disproportionate to the applicant’s aim, stated in it, of clarifying his relationship with the ddp and ‘current developments at the agency’. In principle, freedom of expression takes precedence over rights (Rechtsgüter) protected by ordinary laws in so far as the statement is part of the ongoing discussion of questions of public importance which is absolutely fundamental to a free democratic system. This condition is not satisfied where the statement is made to ensure that certain business interests prevail over others in the context of business competition. The fact that an interest is made to prevail by means which are in principle protected under Article 5 para. 1 of the Basic Law cannot therefore justify subordinating to it the other interest, which is in turn entitled to the protection of an ordinary law that places restrictions on freedom of expression, in this case section 1 of the Unfair Competition Act (see Constitutional Court Decisions [vol.] 62, 230 at 247 et seq.). It follows that the finding by the Court of Appeal that the applicant’s distribution of the circular was contrary to accepted moral standards is not incompatible with Article 5 para. 1 of the Basic Law."
The Constitutional Court added that the fact that the impugned circular followed a press release directed against him which had been issued by the ddp (see paragraph 12 above) did not invalidate this conclusion, since in order to claim the protection of the Constitution, his response would have had to be intended to influence public opinion, which it was not.
20. On 30 November 1988 the Düsseldorf Regional Court dismissed a claim for damages brought by the ddp in reliance on the Court of Appeal’s judgment of 11 December 1986 (see paragraph 17 above). It held that the ddp had insufficiently substantiated its claim and had failed to prove any causal link between the alleged damage and the distribution of Mr Jacubowski’s circular.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-86189
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NART v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1986 and is currently in detention on remand in the Uşak Prison in connection with an offence unrelated to the present case.
5. On 28 November 2003 at about 11.30 p.m. the applicant, who was 17 years old at the time, was arrested by police officers on suspicion of being involved in the armed robbery of a small grocery shop. The police found the applicant while he was asleep in an empty swimming pool near the shop, which had been robbed that night.
6. On 29 November 2003 he was examined by a doctor at Urla State Hospital. His medical report recorded no signs of physical violence on his body, but noted that the applicant was drugged and sleepy. It concluded that there was nothing to prevent the applicant from being taken into custody.
7. On the same day the applicant was once again examined by a doctor. The medical report described the applicant as sleepy, unresponsive and physically weak. The same day, the police requested the presence of a duty lawyer from the Izmir Bar Association for the applicant, who was to be brought before a public prosecutor.
8. The applicant and his lawyer were both present before the public prosecutor. However, the prosecutor could not take a statement from the applicant as he was asleep. The applicant was then brought before the investigating judge, but he could only stand up with the help of his co-accused. His lawyer maintained that, in the circumstances, it would not be appropriate or lawful to take a statement from the applicant. However, the judge rejected this objection and continued with the interrogation. The judge noted that there were no previous statements made by the applicant to the police or the prosecutor. The applicant occasionally woke up and answered the questions; he denied that he had committed the robbery. The lawyer repeated that the applicant was not in a fit state to understand the charges against him and that the taking of his statement would violate the law. However, the applicant’s co-accused accepted the charges. He admitted that he and the applicant had drunk beer and taken tablets before the incident and stolen some chocolates, cigarettes, coca-cola, sausages and biscuits from the shop. The investigating judge remanded the applicant and his co-accused in custody. The applicant was accordingly sent to the Buca Prison, where he was kept together with adults.
9. On 2 December 2003 the applicant’s lawyer challenged the detention before the Izmir Criminal Court. In her petition, referring to Articles 5 and 6 of the Convention, she submitted that the applicant was incapable of understanding the charges against him and that he had not been given adequate time and facilities to prepare his defence as she was unable to communicate with him. She further stated that the applicant was a minor and, according to Article 37 (b) of the United Nations Convention on the Rights of the Child, the detention of a minor should be a preventive measure of last resort. She also maintained that Article 10 § 5 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law no. 2253), required that the applicant be placed in a hospital or in residential social care, instead of being detained in prison.
10. On 3 December 2003, the Izmir Assize Court rejected these objections, having regard to the content of the case file, the nature of the offence attributed to the applicant and the state of the evidence.
11. On 12 December 2003, the public prosecutor filed an indictment with the Izmir Juvenile Court, accusing the applicant and his co-accused of armed robbery under Article 497 of the Criminal Code, for which the minimum sentence was fifteen years’ imprisonment.
12. On 16 January 2004 the Izmir Juvenile Court commenced the trial. The applicant was reminded of the statement made to the investigating judge. He accepted its contents, but added that he did not recall anything about the time when it was taken. An eyewitness heard by the court identified the applicant’s co-accused as the perpetrator. The witness stated that he was living in one of the flats above the shop and that the shopkeeper was his tenant. At 10.30 p.m. on the night of the incident, he heard noises downstairs and went to check. He saw that the window of the shop’s door had been broken, and that the applicant’s collaborator was putting things in bags. He also saw the applicant in the shop. Then, the applicant’s collaborator pulled a gun on him but the witness grabbed it immediately, whereupon the applicant and his accomplice ran away. The applicant was released pending trial the same day.
13. On 12 April 2004 the Juvenile Court convicted the applicant of robbery under Article 493 § 1 of the Criminal Code, instead of armed robbery, noting that the gun used during the incident had been a fake. Accordingly, it sentenced the applicant to one year and eight months’ imprisonment.
14. On 13 April 2004 the applicant’s lawyer appealed against this judgment.
15. On 4 October 2006 the Court of Cassation quashed the judgment of the first-instance court, holding that the applicant’s conviction and sentence should be reviewed following the entry into force of the new Criminal Code on 1 June 2005.
16. The case was remitted to the Izmir Juvenile Court where, according to the information in the case file, the proceedings are apparently still pending.
17. The recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, insofar as relevant, reads as follows:
“11.1 Children under the age of 18 years should not be detained in a prison for adults, but in an establishment specially designed for the purpose.
11.2 If children are nevertheless exceptionally held in such a prison there shall be special regulations that take account of their status and needs. ...
35.1 Where exceptionally children under the age of 18 years are detained in a prison for adults the authorities shall ensure that, in addition to the services available to all prisoners, prisoners who are children have access to the social, psychological and educational services, religious care and recreational programmes or equivalents to them that are available to children in the community.
35.4 Where children are detained in a prison they shall be kept in a part of the prison that is separate from that used by adults unless it is considered that this is against the best interests of the child.”
18. The recommendation of the Committee of Ministers to Member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies, insofar as relevant, reads as follows:
“16. When, as a last resort, juvenile suspects are remanded in custody, this should not be for longer than six months before the commencement of the trial. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances.
17. Where possible, alternatives to remand in custody should be used for juvenile suspects, such as placements with relatives, foster families or other forms of supported accommodation. Custodial remand should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures.”
19. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, insofar as relevant, reads as follows:
“Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ...
7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...”
20. Article 17 of the European Social Charter 1961 regulates the right of mothers and children to social and economic protection. In that context, the European Committee of Social Rights noted in its Conclusions XVII-2 (Turkey) that young offenders were detained, if arrested, in parts of adult prisons and in the two closed detention homes reserved for juveniles and guarded by the gendarmerie. The Committee further noted that the length of pre-trial detention was long and the conditions of imprisonment poor.
21. Article 37 of the United Nations Convention on the Rights of the Child, insofar as relevant, reads as follows:
“States Parties shall ensure that ...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”
22. The relevant part of this text concerning “juvenile justice” provides as follows:
“65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period.
66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4