ITEMID: 001-101769
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MUSHTA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1952 and lives in Letychivka, Cherkasy region.
5. In March 2005 the applicant instituted proceedings in the Monastyryshche Court against her former employer, the Monastyryshche Department of Land Resources, seeking reinstatement as an employee and recovery of salary arrears. In the proceedings, the applicant was represented by a lawyer.
6. On 23 May 2005 the court allowed the applicant's claims in full.
7. The defendant party appealed against that judgment. The applicant submitted comments on the appeal.
8. At a preliminary hearing on 1 July 2005 the Cherkasy Regional Court of Appeal issued a ruling scheduling a hearing on the merits of the appeal for 17 August 2005.
9. According to the Government, a copy of the ruling of 1 July 2005 was delivered to the applicant in person on 15 July 2005. The Government submitted a copy of the acknowledgment of receipt completed and signed by a postman and a copy of a report from the Cherkasy Post Office, indicating that the applicant had received a copy of the ruling in person. In that report the post office mentioned that the register of delivered mail containing the applicant's signature in that connection had been destroyed and that a copy of it was not available.
10. The applicant stated that neither she nor her lawyer had been informed of the hearing on appeal in advance. According to her, the documents submitted by the Government could not prove that she had received a copy of the ruling of 1 July 2005, as the acknowledgment of receipt did not bear the post mark of Post Office No. 16 of Cherkasy, which normally delivered mail to her place of residence.
11. From 10 to 29 August 2005 the applicant underwent treatment at the Monastyryshche Central Hospital.
12. On 17 August 2005 the Cherkasy Regional Court of Appeal heard the case in the absence of the applicant and her lawyer. It found that the applicant's dismissal had been lawful, quashed the judgment of the first-instance court and rejected the applicant's claims in full. According to the judgment of the Court of Appeal, it could be appealed against in cassation to the Supreme Court within one month.
13. According to the applicant, on 7 September 2005 her lawyer learned that the Court of Appeal had decided on the case on 17 August 2005. On the same day he lodged with the Monastyryshche Court a request for a copy of the decision on appeal.
14. On 5 October 2005 the lawyer received a copy of the decision of 17 August 2005.
15. At the applicant's request, a copy of that decision was also provided to her by the Monastyryshche Court on 6 October 2005.
16. On 3 November 2005 the applicant lodged an appeal in cassation with the Supreme Court, challenging the factual findings and application of law by the Court of Appeal. The applicant also requested the Supreme Court to renew the time-limit for lodging her appeal in cassation, stating that she had not been informed of the decision of 17 August 2005 in due time.
17. On 15 November 2005 a judge of the Supreme Court dismissed the applicant's appeal in cassation as lodged out of time, stating, without any further explanation, that the ground on which the applicant had relied in requesting the renewal of the impugned time-limit was not sufficient to justify the requested course of action.
18. The relevant extracts from Chapter 7 (Procedural terms) of the Code of Civil Procedure of 1963, as worded at the material time, read as follows:
“The terms during which procedural acts are to be performed shall be set by the law or by the court.”
“...Complaints and documents submitted after the expiry of procedural terms shall be left without consideration if the court does not find reasons for extension or renewal of the term.”
“...
A term [expressed] in months shall expire on the corresponding date of the last month of the term ...
The last day of the term shall run until [midnight]...
The term shall not be considered to be missed if the complaint or other documents or money required by the court have been submitted to the post office before its expiry.”
“At the request of a party ... the court may renew or extend the terms set by the court.
The court may renew the term set by the law if it has been missed for reasons found by the court to be justifiable.
The question concerning renewal of the expired term shall be decided by the court ... to which a document was due to be submitted. [T]he parties ... shall be summoned to a hearing [on that question] though their failure to appear shall not prevent the court from considering [it]...
A document concerning which the request for renewal of the term has been lodged must be submitted together with the request.
A court's ... ruling refusing to renew the missed term may be appealed against ...”
19. The relevant extracts from Chapter 22 (Court judgments) of the Code of Civil Procedure of 1963, as worded at the material time, read as follows:
“The court shall send to the parties ... who were not actually present at the court hearing ... copies of the judgment or of the rulings by which the proceedings were suspended or discontinued or the claim was left without consideration, within five days of their pronouncement.”
20. The relevant extracts from Chapter 40 (Appeal procedure) of the Code, as worded at the material time, read as follows:
“Cases shall be considered by a court of appeal under the rules set for consideration of cases by a court of first instance, with the exceptions envisaged in this Chapter.
...”
21. The relevant extracts from Chapter 41 (Cassation procedure) of the Code, as worded at the material time, read as follows:
“The court of cassation instance is the Supreme Court of Ukraine.”
“The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by the first-instance court which have been considered by the court of appeal, as well as rulings and judgments of the court of appeal.
The grounds for [an appeal] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law.”
“An appeal in cassation ... shall be lodged within one month of the day of the pronouncement of the ruling or judgment of the appeal court.
If the time-limit ... has been missed for reasons which the court recognises as justified, the court may, at the request of the person who lodged the appeal ... renew that time-limit for a period not exceeding one year from the day on which the right to an appeal in cassation arose ...”
22. The relevant extracts from Chapter 6 (Procedural terms) of Section I (General provisions) of the Code of Civil Procedure of 2004, as worded at the material time, read as follows:
“1. The terms during which procedural acts are to be performed shall be set by the law, and if they have not been set by the law [the terms shall be] set by the court.”
“1. A procedural term shall start running on the day after the calendar date of the event [to which the term is linked]...”
“...
2. A term [expressed] in months shall expire on the same date of the last month of the term ...
5. The last day of the term shall run until [midnight] ...
6. The term shall not be considered to be missed if the claim, complaint, other documents or materials, or money have been submitted to the post office or transferred by other means of communication before its expiry.”
“1. The court shall renew or extend the term ... at the request of a party ... if it has been missed for justifiable reasons.
2. The question concerning renewal or extension of the expired term shall be decided by the court ... to which a document or evidence was due to be submitted. The persons taking part in the proceedings shall be informed of the place and time of consideration of that question. The presence of those persons is not compulsory.
3. A document or evidence concerning which the request [for renewal or extension of the term] has been lodged may be submitted together with the request...”
23. The relevant extracts from Chapter 7 (Judicial decisions) of Section III (Procedure for consideration of claims) of the Code, as worded at the material time, read as follows:
“...
2. At a request of a person who took part in the case copies of a court decision shall be given to him within five days of its pronouncement.
3. Copies of a court decision shall be sent, within five days of its pronouncement, by registered post with acknowledgment of receipt to persons who took part in the case, but who were not present at the court hearing.
...”
24. The relevant extracts from Chapter 1 (Appeal procedure) of Section V (Procedure for review of judicial decisions) of the Code, as worded at the material time, read as follows:
“1. Decisions of the court of appeal shall be issued ... in accordance with the procedure envisaged by Article 222 of this Code.
2. Copies of decisions of the court of appeal shall be re-issued by the court of first instance keeping the case-file.”
25. The relevant extracts from Chapter 2 (Cassation procedure) of Section V (Procedure for review of judicial decisions) of the Code, as worded at the material time, read as follows:
“1. The court of cassation instance in civil cases is the court which is envisaged by the Judiciary Act as the court of cassation in such cases.”
“1. The parties and other persons taking part in the case ... have the right to challenge in cassation:
1) judgments of the court of first instance, after they have been reviewed on appeal, judgments and rulings of the appeal court adopted [in the course of] the consideration [of the case] on appeal ...
2) rulings of the court of first instance ... after they have been reviewed on appeal and rulings of the appeal court if they obstruct further proceedings in the case.
2. The grounds for [an appeal] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law.”
“1. An appeal in cassation ... may be lodged within two months of the day on which the judgment (ruling) of the appeal court becomes final.
2. If the term ... has been missed for reasons which the court recognised to be justifiable, the court of cassation instance may, at the request of the person who lodged the appeal, renew that term, though for a period not exceeding one year from the day on which the right to an appeal in cassation arose.
3. An appeal in cassation lodged out of time ... shall be returned by the court of cassation to the person who lodged it, if that person does not raise the question of renewal of that term and also if the [request for] renewal is refused.
4. The question of renewal of the term ... shall be determined by a ruling of the court of cassation instance.”
“1. In the course of consideration of the case in cassation, the court shall verify, within the limits of the cassation appeal, the accuracy of the application of norms of substantive or procedural law by the courts of first or appeal instances, [but it] shall have no power to establish or to hold proven facts which were not established in the judgment or dismissed by it, [or] to decide on the question of reliability ... of [particular] evidence or of the weight to be given to certain evidence ...
2. The court of cassation instance shall [examine the question of] the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance.
3. The court shall not be limited by the arguments of the cassation appeal if, in the course of the consideration of the case, [it] discerns the wrongful application of norms of substantive law or a violation of the norms of procedural law, constituting grounds for the compulsory quashing of the decision.”
“1. ...[T]he court of cassation instance has the power to:
(1) adopt a ruling dismissing the cassation appeal and leaving the [contested] decision in force;
(2) adopt a ruling fully or partly quashing the decision and referring the case back to the court of first instance or appeal for fresh consideration;
(3) adopt a ruling quashing the decision of the court of appeal and leaving in force the judicial decision which was erroneously quashed by the court of appeal;
(4) adopt a ruling quashing the judicial decisions and terminating the proceedings in the case or leaving the claim without consideration;
(5) quash the judicial decisions and adopt a new judgment or vary the judgment [on the merits of the case], without referring it back for fresh consideration ...”
26. The relevant extracts from Section XI (Final and transitional provisions) of the Code, as worded at the material time, read as follows:
“1. This Code shall enter into force as from 1 September 2005...
3. [The following normative acts] shall be repealed with the entry into force of this Code:
The Code of Civil Procedure of ... 1963...
11. Decisions adopted by courts of appeal before the entry into force of this Code may be appealed against in cassation if the term for [lodging] an appeal in cassation has not expired under the Code of Civil Procedure of 1963.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109359
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF CANI v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 6. The applicant was born in 1969 and is currently serving a prison sentence in Lushnja, Albania.
7. Following a number of remittals of the case against the applicant and two other co-defendants, on 4 March 2004 Berat District Court (“the District Court”) convicted the applicant of several criminal charges committed in collusion with the co-defendants. The District Court found that the applicant had acted in aggravating circumstances in that he had been the perpetrator of one of the criminal offences, which had led to the death of a person, whereas the co-defendants had assisted in the commission of that offence. As regards the other criminal offences, the District Court found each co-defendant guilty as charged. The District Court sentenced the applicant to a cumulative sentence of life imprisonment. As the District Court had adopted the use of the summary procedure pursuant to the Code of Criminal Procedure (“the CCP”), the applicant’s sentence was commuted to twenty-five years’ imprisonment.
8. During the District Court proceedings the applicant was mainly represented by court-appointed lawyers. In the final stage of those proceedings, the applicant appointed counsel of his own choosing on the strength of a power of attorney signed on 18 February 2004, which, in so far as relevant, read as follows:
“...
I hereby authorise S.S as my special counsel and representative to defend and represent me before Berat District Court, the Court of Appeal and the Supreme Court in the trial of the criminal case as regards the charges provided in Articles ... of the Criminal Code. This case has been tried before and by a Court of Appeal decision has been remitted for fresh examination.
In accordance with Article 352 of the CCP I request that the case be tried in my absence.
I accept the charges levied against me and I authorise counsel to request the use of summary procedure pursuant to Article 403 of the CCP.
Counsel has the right to lodge appeals against court decisions that are against my interests.
...”
9. On 12 March 2004 the applicant lodged an appeal with the Vlora Court of Appeal (“the Court of Appeal”). Although he admitted having committed the criminal offences, he challenged the penalty imposed. He argued that the trial court had failed to take account of some mitigating factors in his favour such as the remorse he had shown after committing the crime and his surrender to the authorities, his family’s difficult financial situation and the fact that he had a minor child, the lack of any previous criminal records and his low educational level.
10. On 4 May 2004 a hearing took place which was adjourned to 26 May 2004 in order to summon the applicant to appear before the court. On the same date, a letter was sent by the Court of Appeal to the Police Commissariat and the local prison authorities, requesting them to escort the applicant to the hearing scheduled for 26 May 2004.
11. The applicant did not attend the hearing on 26 May 2004. The court ordered an adjournment until 4 June 2004. The applicant’s representative was present at the hearing. Relevant excerpts from the record of the proceedings read:
“The defendant Besnik Cani was summoned and did not appear. The file indicates that he has been informed and will attend the hearing (nga aktet rezulton se ka dijeni dhe do të marrë pjesë në gjykim).”
12. On 27 May 2004 the Court of Appeal sent a letter to the Ministry of Justice, the Directorate General of Prisons and the local prison authorities requesting that the applicant be escorted to the hearing on 4 June 2004 as he had expressed the wish to attend.
13. The applicant did not appear at the hearing of 4 June 2004. The court ordered an adjournment until 18 June 2004. Relevant excerpts from the record of the proceedings read:
“The file indicates that the [Police] Commissariat were informed of the need to escort him [to the Court of Appeal] but they did not do so. His lawyer was summoned and was present (nga aktet rezulton se ka dijeni komisariati për ta sjellë dhe nuk e solli).”
14. On 7 June 2004 the Court of Appeal sent a letter to the Ministry of Justice, the Directorate General of Prisons and the local prison authorities requesting that the applicant be escorted to the hearing on 18 June 2004 as he had expressed the wish to be present at the hearing. A handwritten note at the bottom of the letter read:
“[they] refused to sign, saying that they are not answerable to the Court of Appeal. [We] do not accompany prisoners. The court does not have any business with us. Send the letter to the Directorate General of Prisons in Tirana.”
15. The applicant was not present at the hearing on 18 June 2004, but his lawyer did attend. Relevant excerpts from the record of the proceedings read:
“the lawyer [S.S.] said, “I represented the accused [Besnik Cani] by means of a power of attorney during [the proceedings in] the first-instance [court]. Thus, let us proceed with the hearing.”
16. The Court of Appeal decided to proceed with the hearing in the applicant’s absence as he was represented by his lawyer.
17. On 23 June 2004 the Vlora Court of Appeal sentenced the applicant to a cumulative term of twenty-five years’ imprisonment, reduced by one-third as a result of the use of the summary procedure. The relevant parts of the judgment read as follows.
“... The Court [of Appeal] considers that the District Court characterised the criminal offences correctly, but the sentence [of imprisonment] should be changed in the light of large differences in the penalties imposed on each defendant. All the co-defendants are almost in the same position as far as their collusion is concerned and their respective role in the commission of the offences. Despite the fact that the defendant was the perpetrator of one of the offences, there should not be such a large difference in the sentences imposed. Having regard to Article 141 of the Criminal Code which aims at excluding the application of life imprisonment, having regard to the remorse shown by the defendant during the proceedings, his surrender to the authorities following the commission of the crime, and his role as the perpetrator in the commission of the criminal offence, the court considers that he should be ... cumulatively sentenced to twenty-five years’ imprisonment. In these circumstances, having regard to the appeal lodged by the applicant, the District Court decision should be amended in so far as the sentence imposed on the defendant is concerned.”
The relevant provisions of the operative part of the judgment read as follows:
“...
Pursuant to Article 55 of the Criminal Code the accused Besnik Cani is cumulatively sentenced to 25 years’ imprisonment.
Pursuant to Article 406 of the Code of Criminal Procedure one third of the sentence imposed on Besnik Cani is reduced.”
18. On an unspecified date the prosecutor lodged an appeal with the Supreme Court on the grounds of an erroneous application of the criminal law. He stated, inter alia, that the penalty imposed by the Court of Appeal, which had not ordered life imprisonment for the applicant for being the perpetrator of a crime that had resulted in the death of a person, did not correspond to the serious danger to society posed by the applicant and the serious criminal consequences of that offence.
19. It would appear that the applicant did not make any written submissions to the Supreme Court in response to the prosecutor’s appeal. On 15 June 2005 the applicant’s brother appointed A.K to represent the applicant before the Supreme Court.
20. At the hearing of 15 June 2005 before the Supreme Court, the applicant was represented by A.K, who requested the court to dismiss the prosecutor’s appeal. On 15 June 2005 the Supreme Court quashed the Court of Appeal judgment and upheld the District Court judgment. The record of the hearing states that the applicant was represented by his lawyer. The relevant parts of the Supreme Court judgment read:
“The Supreme Court, having examined the documents in the investigation file and the court file, having examined the grounds of appeal lodged by the prosecutor, considers that the Court of Appeal judgment, which amended the District Court judgment by changing the defendant’s [the applicant’s] conviction, was taken on the basis of an erroneous application of the criminal law, particularly Article 47 et seq. of the Criminal Code, which determine the manner of imposing a sentence.
The Supreme Court draws this conclusion because the Court of Appeal did not duly consider the severity of the criminal offences committed by the accused, the serious danger to society that the accused poses by continuing to commit criminal offences, the serious degree of guilt, the grave criminal consequences, and the commission of the criminal offence on more than one occasion, using weapons and acting in collusion with others.
The reduction of the sentence by the Court of Appeal on the ground that the accused assisted justice by showing remorse for the offences he had committed and by requesting the use of the summary procedure, is not founded in law. The acceptance of the charges by the accused and his request for the use of the summary procedure assist the speedy rendering of justice. The law takes this into account by reducing the penalty by one-third in accordance with Article 406 of the CCP. A further reduction of the defendant’s sentence, beyond the reduction entitled to by virtue of the application of Article 406 of the CCP, has resulted in a double reduction of the sentence for the same circumstances.”
21. The applicant lodged a constitutional complaint with the Constitutional Court, alleging violations of his right to attend the hearings of the Court of Appeal and of the Supreme Court.
22. On 10 February 2006 the Constitutional Court declared the complaint inadmissible, finding that the grounds of appeal fell outside its jurisdiction (pretendimet e paraqitura prej ankuesit nuk përfshihen në juridiksionin e Gjykatës Kushtetuese ...).
23. The relevant provisions of the Albanian Constitution read as follows.
Article 31
“During criminal proceedings, everyone has the right:
a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives;
b. to have sufficient time and facilities to prepare his defence;
c. to have the assistance of a translator free of charge if he does not speak or understand the Albanian language;
ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided with free legal counsel if he does not have sufficient means;
d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.”
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or when a criminal charge is brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 131
“The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
24. Article 48 § 3 provides that “the appointment of counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above.”
25. Article 350 provides that “when a defendant, even if in detention, ... does not appear at a hearing and it appears that the absence was caused by force majeure or any other obstacle which exempts him from any responsibility, the court, acting, inter alia, of its own motion, shall adjourn or suspend the judicial examination, set a date for a new hearing and order the renewal of the summons.”
26. Article 352 states that the accused should be represented by counsel when he requests or gives his accord for the judicial examination to continue in his absence.
27. Article 422 provides that any party may appeal against a first-instance court decision, which is the District Court decision.
28. Article 425 § 1 establishes the scope of the examination of an appeal by the Court of Appeal. It provides that the examination of a case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case, namely an examination of both the facts and the law. Article 425 § 3 proscribes reformatio in peius stating that “in an appeal lodged solely by the accused, the court cannot impose a heavier criminal sanction, order a more severe measure of restraint, or characterise innocence less favourably than the grounds relied upon in the impugned judgment.”
29. The Court of Appeal may make a complete re-assessment of the evidence obtained and examined by the first-instance court, in which case it decides afresh on the appellant’s guilt or innocence. Under Article 427 the Court of Appeal could re-open the judicial examination of a case (përsëritja e shqyrtimit gjyqësor). In the event that one of the parties requests the re-examination of evidence administered during the first-instance court proceedings or seeks the collection of additional new evidence, the Court of Appeal, when deemed necessary, may decide to reopen the judicial proceedings, in part or in whole (Article 427 § 1). In so far as evidence has been discovered subsequent to the first-instance court’s judgment or, in so far as evidence has been discovered in the course of the appeal proceedings, the Court of Appeal decides on a case-by-case basis about its admission (Article 427 § 2). The re-opening of a case may also be decided ex officio when deemed necessary (Article 427 § 3). The Court of Appeal may also re-examine evidence provided that the accused did not attend the first-instance court proceedings, either because he was not notified or because he was unable to attend those proceedings on lawful grounds (Article 427 § 4).
30. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the first-instance court decision, to amend the first-instance court decision, to quash the first-instance court decision and terminate the criminal proceedings, or to quash the first-instance court decision and remit the case for a fresh trial.
31. Court of Appeal decisions may be appealed against to the Supreme Court in compliance with one of the following requirements of Article 432: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which have resulted in the court’s judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules which have affected the adoption of the judgment.
32. Article 434 provides that the Supreme Court shall examine the appeal in so far as points of law have been raised therein. It has the right to examine and to decide of its own motion and at any stage or instance of the proceedings legal issues which have not been examined before. Section 437 provides that the accused and private parties must be represented by a defence lawyer. As to the procedure, paragraph 5 of the said section states that the judge rapporteur introduces the case, followed by the prosecutor’s oral submissions and the defence lawyer’s pleadings. No counter-pleas are allowed.
33. Under Article 441 the Supreme Court can decide: a) to uphold the decision of the lower court; b) to modify the qualification of the criminal offence, insofar as the type, sentence and civil consequences are concerned; c) to quash the [lower court’s] decision and to adopt a judgment without remitting the case for a rehearing to the lower court; d) to quash the [lower court’s] decision and remit the case for a re-hearing; e) to quash the Court of Appeal’s decision and uphold the District Court’s decision.
34. The summary procedure is governed by Articles 403-406 of the Code of Criminal Procedure (“CCP”). The accused or his representative should make a request in writing for the use of a summary procedure, which is based on the assumption that the case can be decided on the basis of the case file as it stands, without submitting it to judicial examination. If the court grants the accused’s request for summary procedure, when giving its decision on the merits it reduces the penalty by one third. Life imprisonment is commuted to twenty-five years’ imprisonment. Both the prosecutor and the accused may appeal against the court’s decision.
35. The Supreme Court’s unifying decision No. 2 of 29 January 2003 stated, in so far as the summary procedure is concerned, the following.
“... The summary procedure is important for the sake of judicial economy, because it simplifies and abridges the procedure, increases the expediency and effectiveness of a judicial examination, and consequently results in a benefit to the accused by reducing his penalty by one-third and by not imposing a sentence of life imprisonment.
It is important to underline that this benefit should not be to the detriment of justice. For this purpose, the court accepts the accused’s request only when it is persuaded that it could resolve the case on the basis of the case file as it stands, without submitting it to judicial examination. ... The essence of the summary procedure is to admit the documents as collected during the criminal investigation and to avoid the consideration of other evidence at a hearing and the arguments relating thereto.
...
The collection of other evidence and requests relating to their invalidity are not part of the summary procedure.
The law provides that the case shall be resolved on the basis of the case file as it stands, which implies a mutual acknowledgment of acts and documents by the parties. It is the court’s obligation to assess whether a decision could be taken on the basis of the case file as it stands, without undermining justice and interfering with the lawful interests of the accused. The trial proceeds with the submission of the parties’ final conclusions, which make reference to the case file as it stands ... and the court takes a decision based thereon.
If the parties complain that acts or documents are invalid, the court should revoke its decision for use of a summary procedure and order the continuation of a normal judicial examination.”
36. In three decisions (no. 764 of 9 September 2005, no. 720 of 20 October 2005 and no. 224 of 19 April 2006) the Supreme Court upheld the Court of Appeal’s decisions which had further reduced the defendants’ penalties, despite their having obtained a reduction by way of the application of the summary procedure by the District Courts. In further reducing the penalties, the Court of Appeal had regard to the defendants’ admission of guilt and signs of remorse.
37. In three other decisions (no. 2 of 12 January 2011, no. 11 of 10 January 2011 and no. 26 of 9 February 2011) the Supreme Court further reduced the defendants’ penalties, which had been imposed and reduced by virtue of the application of the summary procedure by the District Court and upheld on appeal. In reducing the penalties, the Supreme Court had regard to mitigating circumstances such as the defendants’ surrender to the authorities and their deep remorse over the commission of the crime.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-120034
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF HANU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1973 and lives in Constanţa.
7. On 22 March 2000 criminal proceedings were instituted against the applicant, a bailiff by profession. He was charged with bribery, abuse of power and forgery, on the basis of criminal complaints lodged by M.M. and G.A (hereinafter “the complainants”), two individuals he had assisted as a bailiff in enforcement proceedings. M.M. alleged that the applicant had requested money from her in exchange for him asking a judge to assist with the enforcement of a title deed, while G.A. stated that the applicant had requested a certain amount of money from him to assist with the enforcement of a judgment.
8. On 22 March 2000 an operation was set up in respect of the applicant. The police gave M.M. a tape recorder and money which was marked with a fluorescent substance. She and her cousin met the applicant in a bar. According to the report of the operation, M.M. had wanted to hand the money to the applicant, but he had made a signal to her to put it into his briefcase. Her cousin had not been there when this had happened. After the envelope containing the money had been placed in the applicant’s briefcase, the police had appeared. The report of the operation stated that there had been no fluorescent substance found on the applicant’s hands, but that money had been found in the briefcase.
9. The applicant was held in pre-trial detention from 30 November 2001 until 27 December 2001, when he was released following a court order dismissing a request by a prosecutor to keep him in custody.
10. On 3 December 2001 the prosecutor attached to the Constanţa Court of Appeal (“the Court of Appeal”) issued an indictment against the applicant for bribery and abuse of power. The charges against him were based on statements of the complainants and other witnesses, and the report of the operation.
11. On 24 September 2002 the Constanţa County Court acquitted the applicant of all charges after hearing evidence from the witnesses, the complainants and the applicant.
12. In reaching its decision, the court noted that the only prosecution evidence available was the statements of the complainants and other witnesses, some of whom were the complainants’ relatives, who could only state what they had been told by them. Moreover, none of the witnesses actually saw the money being given to the applicant. Secondly, the court noted that no mention was made in any of the evidence submitted to it of the tape recorder that had been used during the police operation. It held, therefore, that none of the evidence was conclusive proof as to the applicant’s guilt.
13. The prosecutor appealed. In a hearing held on 10 January 2003 before the Court of Appeal, the prosecutor sought conviction of the applicant, while the applicant’s lawyer asked for the appeal to be dismissed. The applicant did not give evidence before the court, but he was given the opportunity to address the court at the end of the hearing and declared that he was innocent. No witnesses were heard and no additional evidence was adduced at that stage of the proceedings. Neither the applicant nor his lawyer submitted written observations.
14. In a decision of 23 January 2003, the Court of Appeal overturned the acquittal and found the applicant guilty of both charges, sentencing him to three years’ imprisonment suspended. It concluded that the witness statements were proof that the applicant had committed the offences alleged.
15. The applicant lodged an appeal on points of law, claiming, inter alia, that the appellate court had failed to hear the witnesses directly regarding the statements on which it had relied and had failed to take into account other evidence in his defence; that the prosecution had withheld the taperecording of the operation from the case file even though the applicant had asked for it to be assessed by the courts and the prosecutor had authorised the recording himself; and that none of the evidence adduced was conclusive proof that he had committed the offences alleged.
16. A hearing was held on 27 June 2003 before the Supreme Court of Justice (“the Supreme Court”). The applicant did not attend the hearing, but his lawyer was present. No witnesses were heard and no new evidence was adduced during the hearing. On that day, the court concluded the proceedings and set a date for the public delivery of its final decision.
17. At the following hearing on 4 July 2003, the Supreme Court dismissed the applicant’s appeal on points of law with final effect. It concluded that the Court of Appeal had assessed the evidence correctly and that the applicant’s submissions were not corroborated by any of the other evidence adduced. It emphasised that besides the statements of the complainants, the Court of Appeal had also relied on statements of witnesses who knew that G.A. had attempted to secure money to pay the applicant. It also considered the fact that no fluorescent substance had been found on the applicant’s hands to be irrelevant, given that he had requested the money which was found in his briefcase. No reference was made to the applicant’s submissions regarding the tape recorder or to the appellate court’s failure to hear the complainants and the witnesses directly.
18. The relevant provisions of the Romanian Code of Criminal Procedure concerning the authority of the appellate courts, as in force at the material time, read as follows:
“(1) The court deciding the appeal shall examine the contested decision on the basis of the case file and any new written documents adduced to it.
(2) In deciding the appeal, the court may make a new assessment of the evidence in the case file and may order any new evidence that it deems to be necessary ...”
“In deciding the appeal, the court shall decide to:
...
(2) uphold the appeal and:
(a) quash the decision of the first-instance court, deliver a new decision and proceed in accordance with Article 345 et seq. to its judgment on the merits ... ”
19. The relevant provisions of the Code of Criminal Procedure concerning the authority of courts ruling on appeals on points of law, as in force at the material time, as well as amendments introduced in September 2006, are described in the case of Găitănaru v. Romania (no. 26082/05, §§ 17-18, 26 June 2012). In particular, article 38515 of the Code, as in force at the material time, provided for the Supreme Court of Justice, when allowing an appeal on points of law, to refer the case to a lower court if it was necessary to hear evidence in the case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110482
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DOBRZYNSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Ms Izabela Dobrzyńska, is a Polish national who was born in 1969 and lives in Warszawa. She is represented before the Court by Mr G. Zawada, a lawyer practising in Warszawa.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 10 November 2004 the Warsaw Regional Court gave a judgment in divorce proceedings. It held that both parents of twins M. and M., born in 1999, were to retain parental rights over them, with their place of permanent residence being with their mother, the applicant. Having regard to the lack of cooperation between the parents, it restricted both of them in the exercise of their parental rights and decided that they should be supervised by a court-appointed guardian. The guardian was to report to the court once a month on the exercise of the parties’ parental rights and on the situation of the family. This judgment was later upheld by the Warsaw Court of Appeal.
4. On 16 May 2007 the Warsaw Regional Court, upon a petition submitted by the children’s father, changed the manner in which the parties’ parental rights should be exercised.
5. The court established that since 2002 the children, who before had had a harmonious and spontaneous relationship with their father, had started to react negatively and even hysterically to his presence.
6. The court had regard to three expert opinions. They had stated that the children and their mother as a family had been affected by Gardner syndrome (Parental Alienation Syndrome), consisting in a strong emotional link with one of the parents, in this case – the mother. This entailed the children’s complete submission to her, and in their perceiving the father, as a result of the mother’s hammering this into her daughters, as an enemy. This resulted in a total severance of all emotional links with him.
7. The court heard as witnesses a number of experts, two of the children’s teachers, a psychologist who had talked with the mother for the purposes of making a diagnosis of the situation and a number of other persons.
8. It refused to admit evidence from psychologist B., proposed by the applicant, and refused also her request for additional expert opinions of another psychologist, paediatrician and psychiatrist. The court found that ample expert evidence was already available in the case file.
9. The court accepted the conclusion that the family was affected by Gardner (PAS) syndrome, caused mostly by the applicant’s emotional pressure on the children in order to make them perceive their father in a negative light. There was no evidence to indicate that the children’s father had committed any reprehensible acts and the children had not accused him of any. In particular, no incidents of domestic violence had been established. He was interested in the children’s development, cooperated with the authorities and had been complying with the court’s decisions on contact with the children and the court guardian’s suggestions. The children were deeply disturbed. They were overly excitable and often aggressive, verbally denigrated their father and their paternal grandparents, referred to alleged episodes of illtreatment which had never been confirmed and of which they had received information from their mother, showed undue fear and reacted hysterically when spoken to about their father and when seeing him.
10. The court was of the view that the children’s best interest dictated that they should be given appropriate treatment. The applicant was unable to draw a line between her own negative view of her former husband and the conduct which she should have adopted in the children’s best interests. Her behaviour was dictated entirely by her own emotional relationship to her former husband, with no due regard to the need to show restraint for the sake of the children’s development, wellbeing and psychological balance. The court noted that it was well aware of the necessity of keeping the measures to be applied within limits, having regard to the proportionality principle. It was of the view that the children should be placed in a children’s home and temporarily change their environment. The applicant should be allowed to see her children in the home, supervised by psychologists, and ordered to undergo therapy suitable for persons affected by PASyndrome. The same obligation had to be imposed on the children’s father.
11. The applicant appealed. She requested that the decision be quashed in its part concerning the placement of her children in the institution. She submitted that the measures were not in the children’s best interests. The court had failed to examine whether less invasive measures would also have achieved the aim sought.
12. By a decision of 14 January 2008 the Warsaw Court of Appeal amended the contested decision. It deleted the description of an alleged disorder affecting the applicant and her daughters from the description of the facts of the case. It observed that the opinions of specialists had not given rise to any doubt that the children were indeed deeply disturbed and that their separation from the mother, together with therapy, would help them. It maintained the order to place the children in a children’s home with a view to therapy and maintained the obligation for the parents to undergo therapy aimed at ameliorating their contacts, due regard being had to the children’s best interests.
13. The court observed that already in the divorce judgment the court, having regard to the conflict between the former spouses, had imposed on the latter supervision measures intended to facilitate their contacts and to ensure respect for the children’s best interests. As the parties had subsequently failed to co-operate and their relationship had steadily deteriorated to the point where they were unable to ensure compliance with the custody and access arrangements without acrimony, the decision of the lower court was justified and should be upheld.
14. On 8 April 2008 the Warsaw District Court, acting ex officio, set aside the placement order of 16 May 2007.
15. Subsequently, the applicant and the children’s father had a number of conversations with the assistance of specialists of the Centre of Assistance to the Family. The court was informed of them.
16. On 20 May 2008 the court decided again to place the children in a children’s home.
17. On 24 July 2008 the court granted the applicant’s request to stay the execution of that order. It appointed another expert with a view to determining the best possible therapy for the children. The court fixed five dates for the applicant and the children for therapy sessions. The applicant failed to attend these sessions without providing any justification.
18. On 15 July 2010 and 24 September 2010 the applicant contested the appointment of the expert. The court dismissed her motion.
19. On the latter date the court set the placement order aside and appointed a court guardian for the family. The court had regard to the children’s health and found that the placement could have a negative effect on their health.


ITEMID: 001-92825
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GRAUSOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1953 and lives in Košice.
5. In 1997 the applicant’s parents, by way of a donation contract, transferred to the applicant their ownership title to a garage.
6. On 13 March 2002 the applicant was sued by her parents. They asked the Košice I District Court to order the applicant to return the above gift.
7. The applicant’s request for an interim measure was dismissed on 10 December 2002.
8. Several hearings took place between 19 February 2003 and 29 July 2005.
9. On 3 November 2005 the Constitutional Court found a violation of the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay and her right under Article 6 § 1 of the Convention to a hearing within a reasonable time. It held that the case was not complex and the applicant’s conduct had not contributed to the length of the proceedings. The period of inactivity totalling one year was imputable to the District Court.
10. The Constitutional Court awarded the applicant 10,000 Slovakian korunas (SKK) (the equivalent of 256 euros at that time) as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant’s costs.
11. A hearing took place on 4 November 2005. Another hearing, scheduled for 2 February 2006, was adjourned.
12. On 3 July 2006 the District Court dismissed the action. The judgment was served on the applicant on 10 October 2006 and became final and enforceable on 26 October 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-90818
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KAEMENA AND THONEBOHN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The first applicant, Ms Kaemena, was born in 1967 and is currently detained in Vechta. The second applicant, Mr Thöneböhn, was born in 1968 and is currently detained in Celle.
6. On 9 May 1996 the first and the second applicant were arrested and placed in pre-trial detention on suspicion of having jointly murdered the first applicant’s husband on 2 May 1996.
7. On 5 September 1996 the indictment for murder was preferred against the applicants with the Verden Regional Court.
8. On 21 January 1997 the Verden Regional Court opened the trial against the applicants, who were represented by counsel throughout the proceedings before the domestic courts, and against another co-defendant (M.).
9. On 16 December 1997 the Verden Regional Court convicted the applicants and their co-defendant, who had all denied the charges, of having jointly murdered the first applicant’s husband, who had stood in the way of the applicants’ plan to marry, and sentenced them to life imprisonment.
10. Having heard more than fifty witnesses and at least five experts, having inspected the scene of the crime and having analysed the time and duration of numerous telephone calls between the defendants, the Regional Court concluded that the first applicant had given 20,000 Deutschmarks to M. and had lured her husband to a remote place, where he had been shot by the second applicant and M. acting jointly.
11. The Regional Court found that in view of their considerable involvement in their intimate relationship, in which they had driven each other to commit the offence in question, the applicants’ guilt was not of a particular gravity (Article 57a § 1 of the Criminal Code; see paragraph 45 below).
12. On 17 December 1997 the applicants both lodged an appeal on points of law. They complained, inter alia, that the Regional Court had made a procedural error in that it had based its judgment on a document containing a list of telephone calls they had made without that evidence having been produced at the main hearing.
13. The Public Prosecutor’s Office likewise lodged an appeal on points of law, which it reasoned on 29 May 1998. It contested in particular the Regional Court’s finding that the applicants’ guilt was not of a particular gravity.
14. By a decision of 10 February 1999 the Federal Court of Justice (third senate) dismissed the applicants’ appeal on points of law as manifestly ill-founded. It added that it considered the applicants’ appeal to be inadmissible in so far as they had alleged a procedural error. It argued that the applicants had failed sufficiently to substantiate this complaint. They had not informed the court that in the summons for a witness working for the telephone company who had listed the applicants’ phone calls, the president of the Regional Court had stated that the witness was called to explain the content of the said list of calls.
15. By a judgment delivered on the same day, the Federal Court of Justice, having held a hearing, allowed the prosecution’s appeal on points of law. It quashed the judgment of the Verden Regional Court in so far as the latter had not considered the applicants’ guilt to be of a particular gravity and remitted the case to a different chamber of the Regional Court.
16. By submissions dated 8 and 9 April 1999 respectively the second and the first applicant lodged a constitutional complaint with the Federal Constitutional Court. They notably contested the Federal Court of Justice’s finding that their appeal had been inadmissible in so far as they had alleged a procedural error.
17. On 5 July 2001 the Federal Constitutional Court communicated the constitutional complaints to the Federal Court of Justice and the Federal Public Prosecutor for observations.
18. On 6 December 2001 the Federal Public Prosecutor submitted his observations to the Federal Constitutional Court. On 27 December 2001 the president of the Federal Court of Justice filed the observations of all senates of that court.
19. In January 2002 the Federal Constitutional Court invited the applicants to submit written observations in reply by 30 April 2002.
20. On 20 August 2002 the first applicant and on 14 October 2002 the second applicant lodged observations in reply. Both applicants had previously been informed by the Federal Constitutional Court, at their request, that the court would not take a decision before the end of that year.
21. On 30 March 2004 the Federal Constitutional Court informed the first applicant, at her request, that a decision would probably be taken in the course of the year 2004.
22. On 25 January 2005 the Federal Constitutional Court, sitting as a senate of eight judges, quashed the decision of the Federal Court of Justice of 10 February 1999 and remitted the case to that court (file no. 2 BvR 657/99 and no. 2 BvR 656/99).
23. In its leading decision (running to 45 pages), the Federal Constitutional Court examined the constitutionality of the requirements set forth in the case-law of the Federal Court of Justice which an appellant has to satisfy in order to lodge an admissible appeal on points of law about a procedural error. The Federal Constitutional Court found that as a rule, these requirements did not violate the individuals’ right to effective legal protection. However, in the applicants’ case, having regard to the entirety of their submissions made, the Federal Court of Justice had over-stretched the said requirements by requesting information also about a witness’s summons as such, and had therefore breached the applicants’ right to effective legal protection.
24. The Federal Constitutional Court’s decision was served on the applicants’ counsel on 25 May 2005.
25. In their submissions dated 18 July 2005 to the Federal Court of Justice the applicants, contesting the Federal Public Prosecutor’s view, argued, in particular, that the proceedings had lasted unreasonably long. They requested the court to find a violation of Article 6 § 1 of the Convention (the first applicant argued that there had also been a breach of Article 5 § 3 of the Convention) and to mitigate the length of their prison term in compensation.
26. On 28 September 2005 the execution of the arrest warrant against the first applicant was suspended and she remained at liberty until 23 February 2006.
27. The hearing fixed for 1 December 2005 had to be cancelled as the first applicant’s counsel were unavailable.
28. On 15 December 2005 the second applicant suffered a heart attack.
29. Having held a hearing on 12 January 2006, the Federal Court of Justice (third senate) dismissed the applicants’ appeal on points of law by judgment of 7 February 2006. It found that the applicants’ complaint that the Regional Court had made a procedural error in using the telephone lists in evidence was ill-founded because the time and duration of the telephone calls in question had been confirmed by different witnesses who had been confronted at the hearing with the data contained in the telephone list.
30. Moreover, the Federal Court of Justice found that the length of the proceedings did not warrant a mitigation of the applicants’ sentence of life imprisonment.
31. The lapse of time since its decision of 10 February 1999 was not automatically attributable to the judicial authorities only because the Federal Constitutional Court had subsequently quashed that decision. It argued that, as a rule, the fact that a decision was quashed and the case remitted to the lower court did not entail a violation of the right to have one’s case heard within a reasonable time, but was a necessary consequence of the possibility to rectify mistakes on appeal. Only delays caused by decisions which disclosed a flagrant breach of the law could therefore be considered as having delayed the proceedings contrary to the rule of law. As in the present case its decision of 10 February 1999 did not disclose such a flagrant breach of the law, there had not been a delay which was attributable to the judicial authorities since then.
32. Moreover, the Federal Court of Justice considered that it could leave open the question whether the Federal Constitutional Court had failed to treat the applicants’ constitutional complaints without undue delay. Even assuming that there had been such a delay, the applicants could not claim redress therefor. Pursuant to Article 211 of the Criminal Code (see paragraph 43 below) a person acting with criminal responsibility who was found guilty of murder had to be sentenced to life imprisonment. The court further left open whether an exception to this rule had to be made in exceptional cases in which there had been an extreme delay, as this was not the case in the proceedings against the applicants. As their convictions and their sentence had been final according to the provisions of the Code of Criminal Procedure already on 10 February 1999, the uncertainty arising from the applicants’ mere hope that the Federal Constitutional Court would allow their constitutional complaints did not entail a strain which necessitated compensation. In these circumstances, there was no reason for a mere declaration that there had been a violation of the Convention.
33. The judgment was served on the applicants’ counsels on 9 March 2006.
34. In April 2006 the applicants lodged a constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Court of Justice of 7 February 2006. Invoking their right to liberty and to be heard within a reasonable time, they argued in particular that due to the excessive delays in the proceedings, in particular between 10 February 1999 and 7 February 2006, their sentences of life imprisonment should have been reduced to fixed terms of imprisonment.
35. On 21 June 2006 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the applicants’ constitutional complaints (file no. 2 BvR 750/06 and no. 2 BvR 752/06) as these were manifestly ill-founded.
36. Even though the Federal Constitutional Court was not convinced that the duration of proceedings before it could be added to the length of criminal proceedings, as it was not part of the ordinary system of legal remedies, it left this question open. It found that it was not necessary to examine whether there had been undue delays contrary to the rule of law in the proceedings before it or before the Federal Court of Justice.
37. Even assuming such delays, a reduction of the applicants’ sentences was excluded because in cases of murder, the sentence of life imprisonment was mandatory according to Article 211 of the Criminal Code. Therefore, a violation of the right to be heard within a reasonable time could not, as a rule, lead to a mitigation of this sentence. The court reiterated that the unreasonable duration of criminal proceedings could reduce an offender’s guilt and could, in exceptional cases, even warrant compensation by dispensing with punishment or by discontinuing the proceedings. However, Article 211 of the Criminal Code did not authorise the courts to consider any aspects reducing a murderer’s guilt such as the excessive duration of the proceedings against him or her. This finding was confirmed by Article 78 § 2 of the Criminal Code (see paragraph 44 below). By ruling that murder was not subject to the statute of limitations, the legislator showed that even long delays between the commission and the conviction of this offence should not be taken into consideration as a mitigating factor.
38. The Federal Constitutional Court found that it could be left open whether in cases in which decades had passed between the commission of the offence and the murderer’s final conviction a mitigation of the sentence of life imprisonment was necessary for reasons of proportionality. Even assuming that there had been unreasonable delays in the present proceedings after the Federal Court of Justice’s decision of 10 February 1999, these had not been so long as to justify a mitigation of the mandatory life sentence prescribed by law for murder.
39. The court, disagreeing with the applicants, further found that the rights of a murderer were not less protected than those of other offenders. Unreasonable delays during the proceedings before the criminal courts could, for example, lead to his or her release from detention pending trial.
40. The decision was served on the applicants’ counsel on 5 July 2006.
41. On 6 November 2006 the Verden Regional Court resumed the proceedings concerning the question whether the applicants’ guilt was of a particular gravity, which it had suspended at the applicants’ request.
42. In its judgment delivered on 15 December 2006 the Verden Regional Court found that, having regard to the circumstances in which the murder had been committed, the applicants’ guilt was not of a particular gravity (Article 57a § 1 of the Criminal Code).
43. Under Article 211 of the Criminal Code, the intentional killing of a person is to be qualified as murder if certain aggravating elements are present. A murderer is notably a person who kills another out of cupidity or other base motives (Article 211 § 2). Murder is punishable by life imprisonment (Article 211 § 1).
44. Murder is not subject to the statute of limitations (Article 78 § 2 of the Criminal Code).
45. A declaration by the sentencing court which imposed a life sentence that the offender’s guilt was of particular gravity has a bearing on a subsequent decision of the court dealing with the execution of sentences as to whether or not to suspend the remainder of the offender’s prison sentence on probation. Pursuant to Article 57a § 1 of the Criminal Code, that court suspends the remainder of a life sentence on probation if the convicted person has served fifteen years of his or her sentence, provided that this can be justified in the interests of public safety and provided that the particular gravity of the offender’s guilt does not warrant the continued execution of the sentence.
46. Article 49 and Article 51 of the Criminal Code contain rules on the fixing of sentences. Pursuant to Article 49 § 1 no. 1 of the Criminal Code, the courts are to reduce a life sentence to a term of imprisonment of not less than three years if the mitigation of the penalty under this provision is either prescribed or authorised by law. Article 51 § 1 of the Criminal Code prescribes that the time a convicted offender has spent in detention pending trial for the offence at issue in the proceedings shall, as a rule, be deducted from the term of imprisonment imposed on him. If a period of time spent in detention abroad is to be deducted from the sentence, the court shall determine the period to be deducted at its discretion (Article 51 § 4 of the Criminal Code).
47. According to the settled case-law of the Federal Constitutional Court, which is applied by the criminal courts, Article 2 § 1 of the Basic Law, read in conjunction with the principle of the rule of law as enshrined in Article 20 § 3 of the Basic Law, guarantees the right to expeditious criminal proceedings (see, inter alia, that court’s judgment of 24 November 1983, no. 2 BvR 121/83, § 3; and decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 33). Moreover, penalties imposed on a defendant have to comply with the constitutional right to liberty guaranteed by Article 2 § 2 of the Basic Law, read in conjunction with the principle of proportionality enshrined in the rule of law (see, inter alia, the Federal Constitutional Court’s decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 58; and decision of 21 January 2004, no. 2 BvR 1471/03, § 28).
48. As the legislator did not lay down any rules on the consequences of a violation of the right to expeditious proceedings, the criminal courts and the prosecution authorities are, as a rule, called upon to draw the necessary conclusions from undue delay in the proceedings. They may discontinue the proceedings pursuant to Articles 153 and 153a of the Code of Criminal Procedure, limit criminal prosecution pursuant to Articles 154 and 154a of the Code of Criminal Procedure, terminate the proceedings either by dispensing with a penalty or by a warning with sentence reserved (Verwarnung mit Strafvorbehalt) or take the proceedings’ length into account as a mitigating factor when fixing the penalty (see Federal Constitutional Court, judgment of 24 November 1983, no. 2 BvR 121/83, §§ 4-5; and decision of 21 January 2004, no. 2 BvR 1471/03, §§ 31-32).
49. If there was a violation of the right to expeditious proceedings, the criminal courts, in their judgments, expressly had to determine the extent of the delays and their cause. If redress was afforded by a mitigation of the penalty, the courts then had to fix the extent of the compensation granted by indicating the penalty which they would have imposed without the delay and by fixing the penalty mitigated because of the delays. Only the latter, mitigated penalty appeared in the operative part of the judgment (see, inter alia, Federal Constitutional Court, decision of 7 March 1997, no. 2 BvR 2173/96, Neue Zeitschrift für Strafrecht (NStZ) 1997, p. 591; Federal Court of Justice, decision of 21 December 1998, no. 3 StR 561/98, NJW 1999, pp. 1198-1199 with further references).
50. In its decision of 17 January 2008 the Federal Court of Justice, sitting as Grand Senate for Criminal Matters, reversed its previous case-law on the way in which compensation should be granted for excessive delays in criminal proceedings (file no. GSSt 1/07).
51. The Federal Court of Justice held that in cases in which criminal proceedings had been excessively delayed, the criminal courts should no longer directly reduce the penalty imposed on the convicted person (so-called mitigation of penalty approach – Strafabschlagslösung), but should instead state in the operative part of the judgment that a specified part of the penalty imposed was to be considered as having been executed (so-called “execution approach” – Vollstreckungslösung).
52. The Federal Court of Justice considered that in certain cases, mitigating the penalty in order to compensate for the excessive length of proceedings, which was called for by the Basic Law and the Convention, was not compatible with the provisions of the Criminal Code and of the Code of Criminal Procedure. Notably in cases in which compensation could be granted only by reducing a minimum penalty prescribed by law, the “mitigation of penalty approach” could not be reconciled with the provisions of the Criminal Code. For instance, it was not possible under the provisions of that Code to dispense with imposing a mandatory life sentence in order to compensate for the undue duration of proceedings.
53. By contrast, the “execution approach”, which could be derived from the principle of compensation enshrined in the Convention and from Article 51 §§ 1 and 4 of the Criminal Code (see paragraph 46 above) and which was compatible with Articles 6 and 13 of the Convention, made it possible to afford compensation in all cases of excessive duration of proceedings. It allowed the criminal courts both to impose the minimum sentence prescribed by law and nevertheless to afford compensation by declaring that a fixed part of that penalty had to be considered as already executed. In the case of a life sentence, for instance, the courts could afford compensation by declaring that a part of the minimum sentence to be served (see Article 57a § 1 of the Criminal Code, paragraph 45 above) had to be considered as having been served. Moreover, by separating the fixing of the penalty in accordance with the defendant’s guilt and the granting of compensation, the penalty maintained its function with respect to other provisions of criminal law (concerning, for instance, probation or preventive detention) and provisions concerning civil servants and foreigners.
54. When applying the “execution approach”, the criminal courts first had to determine the extent and causes of undue delays in the proceedings. In fixing the sentence in accordance with the defendant’s guilt, they had to take into consideration as a mitigating factor that a long lapse of time between the offence and the judgment in general reduced the necessity to punish the offender. Moreover, the undue duration of the proceedings could play a role in that the defendant was subjected to a greater burden as a result of lengthy proceedings. In a furtherthen had to determine which part of the penalty was to be considered as having already been executed in order to compensate the defendant for the delay caused by the State authorities and courts contrary to the rule of law. Both the penalty and the part of it which had to be considered as executed had to be taken up in the operative part of the judgment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77873
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TARNEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Stoyan Todorov Tarnev, is a Bulgarian national who was born in 1939 and lives in Kamenovetz. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv.
The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 October 1992 the applicant and six of his relatives initiated rei vindicatio proceedings against the Plovdiv municipality. They sought to recover possession of a property, which had been nationalised by the State in 1955 from one of their ancestors. They considered that the said property had been restituted to them ex lege following the entry into force on 15 February 1992 of the Restitution of Ownership of Nationalised Immovable Properties Act (the “Restitution Act”).
It is unclear how many hearings were held before the Plovdiv District Court. At least one expert’s opinion was obtained in the course of the proceedings and there was difficulty in obtaining various official documents regarding the status of the property.
On 24 September 1993 the Plovdiv District Court dismissed the claimants’ action as it found that they had failed to prove their ownership rights to the property. The claimants appealed against the judgment on an unspecified date.
It is unclear how many hearings were held before the Plovdiv Regional Court.
On 8 December 1993 the Plovdiv Regional Court upheld the judgment of the lower court. The claimants filed a petition for review (cassation) against the aforementioned judgements on an unspecified date.
It is unclear how many hearings were held before the Supreme Court.
In a judgment of 18 July 1995 the Supreme Court quashed the lower courts’ judgments and remitted the case to the Plovdiv Regional Court as it considered that there had been procedural violations by the lower courts due to the fact that they had based their findings on insufficient evidence.
It is unclear how many hearings were held before the Plovdiv Regional Court at the retrial stage of the proceedings. During this period the court commissioned six expert reports, dated 16 February and 24 August 1996, 27 February and 29 December 1997, sometime at the beginning of 1998 and 16 June 1998.
In a judgment of 20 July 1998 the Plovdiv Regional Court once again found against the claimants as it considered that they had failed to prove their ownership rights to the property and dismissed their rei vindicatio action. The claimants filed a petition for review (cassation) against the aforementioned judgement on an unspecified date.
In a final judgment of 24 September 1999 the Supreme Court of Cassation upheld the lower court’s judgment on similar grounds.
The mother of the applicant filed a request on 27 July 1992 with the Plovdiv Mayor’s Office seeking the restitution of a plot of land. It is unclear whether the property subject of this request was the same one as that in rei vindicatio proceedings.
The Plovdiv Mayor’s Office apparently did not respond to the request filed by the applicant’s mother, so on an unspecified date she appealed against the tacit refusal of the Plovdiv Mayor. On an unspecified date, six of her relatives joined the proceedings.
On 28 March 1993 the claimants were served with a decision of the Deputy-Mayor of Plovdiv refusing to restitute the claimed property. The claimants appealed against the decision on 8 June 1993.
It is unclear how many hearings were conducted before the Plovdiv Regional Court.
In a judgment of 20 December 1993 the Plovdiv Regional Court dismissed the claimants’ appeal and upheld the decision of the Deputy-Mayor of Plovdiv. The court found that the property was not subject to restitution under the Restitution Act because it had been nationalised for municipal projects which had been completed, which precluded such restitution.
The claimants filed a petition for review (cassation) against the aforementioned judgment on 28 February 1994.
It is unclear how many hearings were conducted before the Supreme Court.
The Supreme Court, in a judgment of 19 June 1995, quashed the judgment of 20 December 1993 and remitted the case as it found that there had been procedural deficiencies in the proceedings before the lower court. In particular, it considered that the lower court had failed to examine evidence which unequivocally proved that the municipal projects for which the property had been nationalised had in fact been completed.
It is unclear how many hearings were conducted before the Plovdiv Regional Court at the retrial. On this occasion, the relatives of the applicant’s mother did not join the proceedings. During the period, seven or eight technical and accounting expert reports were commissioned and obtained by the court on 27 December 1995, 18 June, 2 July and 14 November 1996, 12 October 1998, and, 18 January and 19 March 1999. In addition, three hearings were postponed at the request of the applicant and the lawyer of his mother. As a result of the applicant’s mother passing away, on 9 June 1997 he and his sister continued the proceedings instituted by her.
In a judgment of 13 May 1999 the Plovdiv Regional Court found against the applicant and his sister, dismissed their appeal and upheld the refusal of the Deputy-Mayor of Plovdiv. The court noted their failure to comply with an instruction of 2 December 1997 to present a certificate that they were the heirs of the ancestor whose property they sought to restitute. Regarding the restitution claim, the court found, inter alia, that it was not possible to identify the property previously owned by the claimants’ ancestor and that the prerequisites for restitution under the Restitution Act had not been met.
The applicant and his sister appealed against the judgment on 7 June 1999.
It is unclear how many hearings were conducted before the Supreme Administrative Court.
In a final judgment of 7 April 2000 the Supreme Administrative Court quashed the lower court’s judgment in respect of part of the disputed property and ruled on the merits of the appeal against the refusal of the Deputy-Mayor of Plovdiv as regards that part of the property. In contrast to the lower court, the Supreme Administrative Court considered that all the prerequisites for restitution of the said part of the property were present, found in favour of the applicant and his sister, and restituted it to them.