ITEMID: 001-57985
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF VERMEULEN v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of art. 6-1 (adversarial trial);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland;R. Pekkanen
TEXT: 9. Mr Vermeulen is a Belgian citizen who lives at Diksmuide (West Flanders).
10. On 6 May 1987, on an application by the department of the procureur du Roi and without any adversarial hearing, the Furnes Commercial Court adjudicated the applicant bankrupt and declared his company - Vermeulen & Verstraete Business Consultancy, Ltd (Zakenkantoor Vermeulen & Verstraete p.v.b.a.) - insolvent. It had heard the opinion of the deputy procureur du Roi but had not heard the applicant himself, who was in custody in Ghent prison on account of criminal proceedings against him for forgery, uttering, fraud and misappropriation.
The applicant applied to the court to set aside that judgment and rehear the case.
11. On 4 May 1988 the court declared the application admissible, ordered that the proceedings should be reopened and put the case on the special list pending the outcome of the criminal investigation that was under way in respect of Mr Vermeulen.
In a written opinion that was read out at the hearing of the case on 6 April 1988, the deputy procureur du Roi had submitted that the application to set aside was admissible but unfounded.
12. On 29 June 1989, on an appeal by the applicant against the judgment of 4 May 1988, in which the Commercial Court had not rescinded the bankruptcy order, the Ghent Court of Appeal, exercising its power to determine also the merits of the case, upheld the judgment of 6 May 1987 (see paragraph 10 above), having heard the submissions to that effect of the deputy procureur du Roi that had been read out at the hearing of the case on 27 April 1989.
13. The applicant lodged an appeal on points of law against the Court of Appeal’s judgment, but the Court of Cassation dismissed it on 10 May 1991. At the hearing on the same day it had heard in turn Mr Caenepeel, the judge rapporteur, Mr Vermeulen’s lawyer and Mr du Jardin, the avocat général (a member of the procureur général’s department). The avocat général made oral submissions and subsequently took part in the court’s deliberations.
14. On 17 March 1995 the Antwerp Court of Appeal acquitted the applicant of all the criminal offences with which he had been charged (see paragraph 10 above).
15. The relevant Articles of the Commercial Code provide:
"Any trader who ceases payments and whose credit has been impaired shall be considered insolvent.
..."
"Insolvency shall be declared in a judgment of the Commercial Court delivered either on the bankrupt’s own admission or on a petition by one or more creditors or of the court’s own motion.
..."
16. Proceedings for a declaration of insolvency by the court of its own motion are opened at the instance of the Commercial Court. The procureur du Roi or a member of his department delivers an opinion, in accordance with Article 764, 9o, of the Judicial Code (see paragraph 18 below).
17. Article 138 of the Judicial Code provides:
"Subject to the provisions of Article 141, the department of the procureur du Roi shall act as prosecuting authority in the manner laid down by law.
In civil matters it shall intervene by way of legal proceedings, applications or opinions. It shall act of its own motion in the instances prescribed by law and also on each occasion that public policy requires its intervention."
18. Article 764 of the Judicial Code lists the cases which, unless they are being tried by a magistrate, are to be referred to the procureur du Roi, failing which the proceedings will be null and void. They include, at 9o, those relating to insolvency, compositions with creditors and extensions of time for payments.
19. By Article 141 of the Judicial Code,
"The procureur général at the Court of Cassation shall not act as prosecuting authority except where he has instituted proceedings in which the decision on the merits falls to the Court of Cassation."
The fairly rare instances in which the Court of Cassation hears a case on its merits include trials of ministers (Article 90 of the Constitution), actions against judges for misuse of their authority (Articles 613, 2o, and 1140 to 1147 of the Judicial Code) and disciplinary proceedings against certain judges or other members of the national legal service (Articles 409, 410 and 615 of the same Code).
Other than in these circumstances, the procureur général’s department at the Court of Cassation carries out, with complete independence, the duties of adviser to the court.
20. As to the disciplinary hierarchy of the ministère public, the following provisions of the Judicial Code should be mentioned:
"The Minister of Justice shall exercise supervisory authority over all the officials of the ministère public; the procureur général at the Court of Cassation likewise over his counterparts at the courts of appeal; and the latter over the members of their own departments and of those of the auditeurs généraux at the Industrial Appeals Tribunals and over the procureurs du Roi attached to the lower courts, the auditeurs attached to the industrial tribunals and their deputies."
"The procureur général at the Court of Appeal may impose on the officials of the ministère public subordinate to him the penalties of a warning, a reprimand or a reprimand with suspension of salary.
The procureur général at the Court of Cassation shall have the same powers in regard to the avocats généraux at that court and the procureurs généraux at the courts of appeal.
The Minister of Justice may likewise warn and reprimand any official of the ministère public or recommend to the King his suspension or dismissal."
21. In respect of the procedure to be followed in the Court of Cassation, in both civil and criminal proceedings, the Judicial Code provides:
"After the report has been read out, submissions are heard from counsel present at the hearing. Their addresses shall relate exclusively to the issues of law raised in the grounds for appeal or to objections to the admissibility of the appeal.
The procureur général’s department shall then make its submissions, after which no further documents shall be accepted."
"The procureur général or a member of his department shall be entitled to attend the deliberations unless the appeal on points of law has been lodged by the procureur général’s department itself; he shall not be entitled to vote in the deliberations."
The procureur général’s department may lodge an appeal on points of law either "in the interests of the law" (Articles 1089 and 1090 of the Judicial Code and Article 442 of the Code of Criminal Procedure) or following a complaint by the Minister of Justice (Article 1088 of the Judicial Code and Article 441 of the Code of Criminal Procedure).
22. Since 30 October 1991, when the European Court of Human Rights gave judgment in the Borgers case previously cited, an appellant in the Court of Cassation has been able, at least in criminal cases, to address the court after the representative of the procureur général’s department, who does not subsequently attend the court’s deliberations.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86075
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HLAVICA AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicants, Mr František Hlavica, born in 1924, Mrs Anna Šulcová, born in 1921, Ms Sylvie Šimáková, born in 1944 and Mrs Zdeňka Linhartová, born in 1944 are Czech nationals and live in Prague. They were represented before the Court by Mr V. Kracík, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 February 1992 the first, second and a predecessor of the third and fourth applicants brought restitution proceedings in the Prague 10 District Court (obvodní soud) against a State enterprise. On an unspecified date, the third and fourth applicants’ predecessor died. The third and fourth applicants joined therefore the restitution proceedings.
It appears that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-5962
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: GREEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a United Kingdom national, born in 1930 and living in Harrogate.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 October 1988, after a marriage of thirty-four years, the applicant’s husband, Mr G., petitioned for divorce. A decree nisi was granted on 6 February 1989. The applicant meanwhile had been seeking legal advice from solicitors concerning inter alia whether to contest the divorce and ancillary matters.
Legal aid was granted to the applicant on a limited basis on 29 March 1989 concerning ancillary relief. On the same date the decree absolute of divorce was granted.
On 11 April 1989, Mr G. swore an affidavit as to his financial circumstances. On 28 April 1989, the applicant swore an affidavit in support of her application for ancillary relief and in reply to Mr G.’s affidavit.
Directions for the conduct of the dispute on ancillary matters were given by the County Court on 10 May 1989. Lists of documents were provided in late May-early June 1989. There was correspondence between the applicant’s solicitors and Mr G. about a possible settlement. Her solicitors stated that they were willing to settle for a capital sum and 400 pounds sterling (GBP) per month as maintenance. Mr G.’s counter offer was GBP 60,000 out of the sale of the matrimonial home and GBP 275 per month. The applicant rejected the counter offer.
The hearing date was set for 3 August 1989. The applicant was requested by the solicitor to attend to meet counsel before the hearing began. Her solicitor took attendance notes of this meeting which took place shortly before the hearing was due to begin. According to this note, a decision was reached that it be more advantageous for the applicant to effect a clean break and obtain an enhanced interest in the proceeds of sale of the matrimonial home than pursue future periodic payments. After negotiation with Mr G., a figure of GBP 72,000 was agreed upon (some 68% of the valuation of the property) and that Mr G would pay the costs. A consent order was made by the court reflecting these terms under section 33A(1) of the Matrimonial Causes Act 1973.
Shortly afterwards, the applicant expressed dissatisfaction with the terms of the settlement. She sought legal advice concerning the possibility of appealing the consent order and was advised by counsel that there were no grounds of appeal. The applicant wrote letters of complaint to the County Court about the order and was informed that she had agreed to the Consent Order. She made complaint to the Solicitor’s Complaints Bureau in or about 1990. On 25 February 1991, after inviting her solicitors comments, the SCB concluded that the applicant had been “properly represented” and had reached her decision with the benefit of full legal advice. On 16 April 1991, the applicant complained to the Legal Services Ombudsman, who in March 1992 concluded that no further action was justified.
In or about July 1992, the applicant instructed new solicitors IM, with a view to commencing proceedings against her former solicitors for negligence in advising her to accept the settlement, which had caused her significant loss, inter alia, of pension and inheritance entitlements which had not been taken properly into account. Legal aid was granted in or about July 1992. Counsel advised at this stage that she had good prospects of success in establishing negligence and would probably recover some GBP 27,500 to 34,000 damages.
A writ was issued against the former solicitors in the High Court on 3 August 1994. In their defence, served in February 1995, the former solicitors claimed inter alia that they had relied on and been entitled to rely upon advice of competent and properly instructed counsel, Ms A.
In February 1996, the former solicitors made a payment into court of GBP 10,000. The applicant was informed that if the court later awarded a smaller sum, she would liable in costs for the intervening period. Counsel advised that her prospects of securing more in court were good and the payment into court was not accepted. A further offer of settlement of GBP 20,000 plus costs was also rejected. Counsel advised the applicant at that stage that she should not settle for less than GBP 30,000.
On 19 May 1997, the former solicitors increased the payment into court to GBP 25,000.
On 10 July 1997, the Court of Appeal decided, in the case of Kelley v. Corston, that, for public policy reasons, a barrister was immune from suit for negligence in the conduct of a case where a settlement had been reached and a consent order made under the 1973 Act, which by law required the approval of the court.
On 15 August 1997, the former solicitors sent a copy of the decision to the applicant’s solicitors IM. On 28 August 1997, counsel advised the applicant to accept the payment into court of GBP 25,000. He noted that the Court of Appeal’s judgment “has, to put it mildly, flaws in its reasoning”. However despite his strong doubts that it had been correctly decided, it had to be accepted that on one view of the Court of Appeal judgment, and if it was not overturned on appeal to the House of Lords, the applicant would not be entitled to any compensation at all. Having regard to the new element of uncertainty introduced by Kelley v. Corston, he considered that it was in her best interests to accept the payment into court.
On 29 August 1997, IM solicitors sent the applicant a copy of the advice and informed her that a refusal to accept the advice was likely to lead to a discharge of the legal aid certificate.
Reluctantly, the applicant accepted the payment-in and the claim against her former solicitors was struck off.
For more than two centuries, barristers enjoyed an immunity from actions in negligence. In the case of Rondel v. Worsley ([1969] 1 A.C. 191) the House of Lords unanimously upheld the immunity for alleged negligent conduct of a case in court on considerations of public policy on the basis inter alia that “it would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to his client” and also due to the undesirability of relitigating issues already decided. Though their Lordships were not unanimous about the exact scope of the immunity, they agreed that it should in general terms be confined to acts concerned with the conduct of litigation and should not apply to non-contentious work.
The immunity was again considered by the House of Lords in the case of Saif Ali v. Sydney Smith Mitchell & Co. ([1980] A.C. 198), where the majority, applying the test from the Rees v. Sinclair case in New Zealand, found that the immunity only applied to work so intimately connected with the conduct of the case in court so as to amount to a decision as to how it would be conducted at the hearing. A failure by a barrister to advise parties about the expiry of a limitation period therefore was found to fall outside the immunity. Doubts were further expressed as to the various rationales given for the immunity.
Another line of authority applied the doctrine of abuse of process to avoid relitigating between different parties issues already decided by a court of competent jurisdiction or, as sometimes described, to avoid a collateral challenge to an earlier judgment or order of the court (see e.g. Hunter v. Chief Constable of the West Midlands [1982] A.C.529). This had been applied in a number of cases brought against lawyers, for example, in Somasundaram v. Julius Melchior ([1988] 1 WLR 1394), where the plaintiff’s claim against solicitors for wrongly pressurising him to plead guilty in a criminal case was an abuse of process as the action necessarily involved an attack on the conviction and sentence imposed on him by the trial judge and upheld by the Court of Appeal.
In the case of Kelley v. Corston ([1998] QB 686, judgment given on 10 July 1997), on the day of a hearing of a matrimonial ancillary application, the plaintiff’s barrister had advised her to reach a settlement agreement and this was embodied in a consent order by the court. The plaintiff brought proceedings in negligence against the barrister for negotiating and advising her to accept a settlement which left her unable to finance the mortgage repayments on the matrimonial home after it had been transferred into her name. The Court of Appeal upheld the decisions striking out the action on the basis of forensic immunity of advocates. Though Judge LJ considered that the settlement of litigation was not normally encompassed within the principles on which the immunity of the advocate was based, and that there were no public policy considerations justifying a blanket immunity from suit for negligent advice which results in the settlement of a claim, he considered that, where the court had given approval of the settlement and assumed responsibility for the merits of the consent order, the advocate could claim immunity from suit for his role. Pill LJ and Butler Sloss LJ appeared to consider, though with different reasoning, that a consent order made and approved under the Act of 1973 had such an intimate connection with the conduct of the case in court that it came within the Rees v. Sinclair test.
The Kelley v. Corston judgment was distinguished shortly afterwards in the case of Frazer-Harris v. Scholfield Roberts and Hill (QBD, 13 May 1998) where the plaintiff was suing her solicitors for their advice to settle her ancillary application against her husband at the court door. Toulson J had held that public policy did not require protection of solicitors for negligence in relation to their conduct before a case reached court. Although the court had approved the consent order, the wife had alleged that, due to the solicitors’ negligence, the court had given its approval without all the relevant facts. If through the negligence of a party’s legal adviser a judge was not properly informed, and therefore exercised his discretion on a flawed basis, it was not contrary to public policy to allow the wife to sue the legal adviser for negligence.
Both the barristers’ immunity and issues concerning abusive challenge of previous court decisions and orders were considered in the case of Arthur J.S. Hall and Co. v. Simons and Others. This concerned three cases in which clients raised claims in negligence against firms of solicitors in respect of settlements of claims resulting in consent orders by the court and where the solicitors relied on the immunity of advocates from suit.
On 14 December 1998, the Court of Appeal found that the immunity did not apply in these cases. It held that there was no general rule that counsel was, or was not, immune from liability in settling a case or in advising a client to settle. The existence of the immunity depended on the facts of the particular case and whether public policy required it in those circumstances. It found that the Kelley v. Corston case was a very difficult case to follow and apply, or to derive any clear principle from. On 20 July 2000, by a majority, the House of Lords held that the solicitors were not entitled to rely on an immunity in these civil actions and that there were no longer any public policy considerations requiring that such an immunity be retained. Several of their Lordships commented that they would be in favour of some form of the immunity remaining for advocates in criminal cases.


ITEMID: 001-4670
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VEREIN NETZWERK v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a non-profit-making association with its seat in Hirtenberg.
It is represented before the Court by Mr. Herbert Pochieser, a lawyer practising in Vienna.
The applicant association has the aims of, inter alia, creating accommodation for socially disadvantaged persons, of speaking out for the concerns of socially disadvantaged persons, refugees and foreign workers, and of creating possibilities of encounter and exchange with these persons. In order to achieve these objectives it runs a house in Hirtenberg, which offers accommodation for socially disadvantaged persons in particular for young people and foreigners. The chairman of the applicant association is also living there.
On 7 October 1992, in the late evening, police officers carried out a control in this house.
On 16 November 1992 the applicant association lodged a complaint with the Lower Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) alleging violations of Articles 8, 9 and 11 of the Convention and of the Protection of the Home Act (Gesetz zum Schutz des Hausrechts).
The Independent Administrative Panel held hearings on 25 June and 17 November 1993. It heard the chairman of the applicant association, the police officers who had carried out the control and the mayor of Hirtenberg as witnesses.
On 10 May 1994 the Independent Administrative Panel partly rejected the applicant association’s complaint as being inadmissible and party dismissed it as being unfounded.
Having regard to the evidence taken, it found the following facts established. Following a number of complaints from neighbours about illegally resident foreigners, the mayor of Hirtenberg requested the District Administrative Authority (Bezirkshaupt-mannschaft) to carry out a control under the Residence (Registration) Act (Meldegesetz). The control was carried out in the late evening of 7 October 1992. The police officers were let into the house by some of the inhabitants. The chairman of the applicant association criticised the late hour of the control but did not otherwise object. He contributed to the smooth carrying out of the control in that he went around with the police officers, gave general information about the inhabitants (e.g. about their country of origin), acted as a translator and helped to produce the required documents. The rooms within the house were opened upon request. The police examined whether the foreigners were legally resident by controlling their identity documents and residence permits, or by checking the status of their asylum proceedings. A search of the rooms was not carried out. The control was terminated within three quarters of an hour.
The Independent Administrative Panel found that the applicant association, being a legal person, did not have a private and family life. Thus it could not rely on Article 8 of the Convention. Moreover, it had not claimed, and there was no indication, of any interference with its right to respect for its correspondence. Accordingly this complaint had to be rejected as being inadmissible.
As regards the control, the Independent Administrative Panel noted that also a legal person could rely on the Protection of the Home Act. However, the said Act only applied where a search had been carried out. As the police officers were voluntarily granted access to the house as well as to each of the rooms within the house and, assisted by the applicant association’s chairman, only controlled the documents of the inhabitants, the contested action could not be qualified as a search. The Independent Administrative Panel added that the protection afforded by Article 8 of the Convention went further, in that it covered not only a search of premises but any interference with the right to respect for one’s home. In the present case the control was in conformity with Article 8 § 2 of the Convention, in particular it had its legal basis in the Residence (Registration Act) and the Aliens Police Act (Fremdenpolizeigesetz). Consequently, the complaint had to be dismissed as being unfounded.
Further, the Independent Administrative Panel found that the applicant association, as a legal person, could not rely on Article 9 of the Convention and, therefore, rejected this complaint as being inadmissible.
Finally, as to the complaint under Article 11 of the Convention, the Independent Administrative Panel found that the control at issue was not aimed at the applicant association but at the inhabitants of the housing project, who were not even necessarily members of the applicant association. Moreover, the control did not prevent the applicant association from pursuing its objectives. Even assuming that there had been an interference with the applicant association’s freedom of association, it had to be regarded as necessary in the interests of public safety. Having regard to the short duration of the control, it was also proportionate. Thus, this complaint was also unfounded.
On 27 June 1994 the applicant association lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). It relied on Article 8 of the Convention and on the Protection of the Home Act. It argued that the control carried out in its premises had to be qualified as a search and that it lacked a legal basis. Further, it relied on Article 11 of the Convention, claiming that the search prevented it from pursuing its objectives.
On 28 November 1994 the Constitutional Court refused to deal with the applicant association’s complaint for lack of prospects of success. It noted that the case was not excluded from the jurisdiction of the Administrative Court (Verwaltungsgerichtshof). Subsequently the Constitutional Court, upon the applicant association’s request, referred the case to the Administrative Court.
On 4 September 1995 the applicant association, upon the Administrative Court’s request, supplemented its complaint. It repeated its argument that the control had to be qualified as a search which lacked a legal basis, and added that there had not been any reasonable suspicion that foreigners were illegally resident on the premises.
On 10 October 1995 the Administrative Court rejected the applicant association’s complaint as being inadmissible. It noted that the association relied on the right to respect for its home. This was a constitutionally guaranteed right which the Administrative Court was not called upon to review. The decision was served on 23 November 1995.


ITEMID: 001-121220
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BÁBIK AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: A list of the applicants is set out in the appendix. They were represented before the Court by Mr A. Cech, a lawyer practising in Budapest.
The applicants are all active members of various law-enforcement agencies. Under the rules which were in force when the applicants took up duties, they were entitled to retire after 25 years of service, irrespective of their age, or at the latest five year earlier than the generally valid age-limit for old-age pension. These advantages were available in the form of a ‘service pension’ (szolgálati nyugdíj).
As of 1 January 2012, the service pension as such was abolished by a legislative amendment (Act no. CLXVII of 2011). In its stead, a so-called service allowance (szolgálati járandóság) was instituted, with different amounts and conditions. In particular, the five-year age benefit is no longer applicable in cases like that of the applicants, and moreover, no special pension or allowance is available merely as a consequence of a 25-year long service. Furthermore, a one-time benefit of two months’ salary due on retirement was also removed. In other words, under the new scheme the applicants’ pension entitlement has become largely identical to that of the general population, despite the expectations they had when entering the service.


ITEMID: 001-110984
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF HAŢEGAN v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Constantin Haţegan, is a Romanian national who was born in 1952 and lives in Giurgiu. The applicant was granted leave to represent himself and to use the Romanian language in the proceedings before the Court (Rule 36 §§ 2 and 4 (a)). The Romanian Government (“the Government”) were represented successively by their Agent, Mr Răzvan-Horaţiu Radu, and their co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs.
2. On 20 June 2006 a committee of three judges of the Court decided, pursuant to Article 28 § 1 (a) of the Convention, to strike the application out of the Court’s list of cases in accordance with Article 37 § 1 (a) of the Convention. On 14 November 2006, following a request received from the applicant, the same committee decided to restore the application to the Court’s list of cases by virtue of Article 37 § 2 of the Convention.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. By a prosecutor’s order of 30 July 2001 the applicant was detained at the Sibiu Police Department pending trial on murder charges.
5. By a final judgment of 13 February 2003 the Court of Cassation convicted the applicant of murder and sentenced him to sixteen years and six months’ imprisonment on the basis of forensic, documentary and testimonial evidence, including the testimony of S.E. and N.A.
6. The applicant remains in detention to date.
7. Between 30 July 2001 and 22 November 2010 the applicant’s medical condition was reviewed regularly by prison and civil hospitals and he received treatment for, inter alia, an antisocial personality disorder, epilepsy, syphilis, scabies, repeated headaches, diabetes, stomatological problems, hernia, obstructive chronic bronchitis, tuberculosis, arterial hypertension, varicose veins in his feet, chronic gastritis, and an old fracture of the left tibia following a gunshot wound received before 2001. It was recommended that he follow a diet for the chronic gastritis and diabetes, and avoid cold, damp and infections, and extended orthostatism. None of the medical reports produced during this period mentioned any injuries on the applicant’s body.
8. In his letters of 14 October 2005 and 7 April 2008 concerning Jilava Prison, and in his letter of 2 August 2010 regarding Giurgiu Prison, the applicant stated that the conditions of detention in those penitentiaries amounted to inhuman and degrading treatment because the two prisons were overcrowded and infested with parasites, the food and the general hygiene conditions were poor, he was refused a special diet for his diabetes, and he did not have access to appropriate bathroom or washing facilities.
9. By a final judgment of 18 August 2004 the Arad County Court dismissed the applicant’s action against the Arad Prison authorities for an injunction allowing him to access his medical file, on the ground that he had received a complete copy of his medical file, from which none of the documents had been missing.
10. By a final judgment of 7 April 2005 the Court of Cassation dismissed the applicant’s criminal complaint claiming abuse of power on the part of I.B. – one of the prosecutors who had investigated the murder charge against him – on the ground that no unlawful act had been committed.
11. By a final judgment of 29 January 2008 the Court of Cassation dismissed, on the basis of documentary, testimonial and medical evidence, the applicant’s action for ill-treatment against V.C., C.P. and O.V., all employees of the Aiud Prison, on the ground that there was no proof in the file attesting that the applicant had been ill-treated by those individuals.
12. By a final judgment of 22 January 2009 the Court of Cassation dismissed the applicant’s appeal against the order of the Bucharest Prosecutor’s Office of 14 July 2008 refusing to indict the masked guards in Jilava Prison who had allegedly beaten the applicant on 17 February 2005, on the ground that it was time-barred.
13. By a final judgment of 14 December 2010 the Bucharest District Court dismissed the applicant’s action to obtain an injunction in order to be heard by a pensions commission. The court held that the applicant had made fifty-two requests for copies of documents from his prison file which had all been approved by the prison authorities, and that he had been provided with the requested copies. Moreover, the prison authorities had approved the applicant’s requests to be heard by a pensions commission and to be provided with the relevant information for his pension file. He had been taken twice to the Ilfov and Bucharest District 5 Pension Rights Agencies and he had been provided with the requested information.
14. In the large majority of his letters addressed to the Court between 2003 and 2010 the applicant repeatedly referred to the Romanian President, the Members of the Romanian Parliament, the prison guards in all the prisons he was detained in, and the judges and prosecutors who examined and investigated his cases and complaints, as “communists”, “Mafia members”, “members of the former State Police (securişti)”, “terrorists, executioners, murderers and accomplices to ill-treatment”.
15. In his letters of 12 May and 21 August 2006, as well as on an unspecified date in 2007, the applicant accused members of the Registry, some of the judges and the Court of being “Mafia members”, of “plotting together with the terrorist Romanian State”, and of “being accomplices of members of the former State Police (securişti)”.
16. On 7 January 2011 the Government submitted their observations to the Court and argued, inter alia, that the language used by the applicant amounted to an abuse of the right of application and that his application should be dismissed.
17. In his letter of 25 January 2011 the applicant stated, inter alia, that he believed the Court had made a “genocide pact” with the “murderers” who hid behind the name of leaders of a rule-of-law State like Romania, because it had failed to examine his case. Moreover, he claimed that members of the Registry and certain judges had contributed to his physical and mental torture.
18. In a letter of 21 February 2011 containing the applicant’s observations in reply to those of the Government, the applicant stated that the “brutish” Romanian prison authorities had attempted to lie to the Court by sending false information about his detention conditions, and he asked the Court to inform the Government Agent that he was a liar. Moreover, he submitted that:
“... by the false documents submitted to the Court by the Government Agent ... the Ministry of Foreign Affairs falsified the actual reality and lied ... the Government Agent is a liar.”
19. In a letter of 29 August 2011 the applicant called the Government Agents “brutish” and “buffoons” and stated that, together with the Romanian Government, they constantly misinformed the Court.
20. In a letter of 1 September 2011 the Government reiterated their request for the Court to dismiss the applicant’s case as an abuse of the right of application. They stated that the applicant continued to submit inappropriate letters using offensive language and making defamatory allegations concerning the activities of the Romanian authorities.


ITEMID: 001-86425
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MERDZHANOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 4. In the 1970s and early 1980s the applicant worked as a journalist and senior inspector at the propaganda department of the Ministry of Internal Affairs.
5. In 1982 the applicant left Bulgaria and settled first in Switzerland and then in the United States of America.
6. In 1983 the Sofia Military Court, whose judgment was upheld the same year by the Military Chamber of the Supreme Court, tried the applicant in his absence and convicted him of treason and espionage. He was sentenced to nineteen years’ imprisonment and forfeiture of all his assets, and was stripped of his Sofia residence.
7. In 1987, following the applicant’s return to Bulgaria in 1986, the General Assembly of the Criminal Chambers of the Supreme Court set these judgments aside and the remitted the case for a fresh examination. In 1988 the Sofia Military Court, whose judgment was upheld the same year by the Military Chamber of the Supreme Court, reconvicted the applicant of treason and espionage, and sentenced him to sixteen years’ imprisonment. It also deprived him of the right to reside in Sofia and forfeited all his assets. The applicant was kept in custody between April 1986 and December 1989.
8. In April 1990 the General Assembly of the Criminal Chambers of the Supreme Court set the above judgments aside and acquitted the applicant.
9. On 14 May 1990 the applicant filed an action under the 1988 State Responsibility for Damage Act (see paragraph 28 below). He named as defendants the Ministry of Internal Affairs, the General Investigation Service, the Sofia Regional Military Prosecutor’s Office, the Supreme Military Prosecutor’s Office, the Sofia Military Court, the Supreme Court, the Sofia Prison and the Sredetz Municipal Council, all of which had allegedly participated in various ways in the repression against him. He claimed compensation for the pecuniary (including lost pay, lawyers’ fees, the value of the confiscated chattels and flat, and the loss of enjoyment of these properties) and the nonpecuniary damage suffered as a result of the criminal proceedings against him, the confiscation of his property and his detention.
10. The Sofia City Court examined the case in twentyone hearings, held between September 1990 and March 1994 at one to threemonth intervals. Thirteen of them took place before 7 September 1992 – the date on which the Convention entered into force in respect of Bulgaria.
11. In examining the case the court heard a number of witnesses and several experts who drew up reports on the value of the flat and the chattels confiscated from the applicant. At the request of the applicant, some of the reports were updated to take account of the increase of the price of the flat and of the chattels due to the high inflation in the country between 1990 and 1994. The applicant removed or added defendants on five occasions. At the close of the proceedings the defendants were the Supreme Court, the Chief Prosecutor’s Office, and the Ministries of Justice, Finance and Defence. He also twice increased the value of his claims. On two occasions the court instructed him to itemise and specify his claims with regard to each defendant.
12. Nine hearings (five before 7 September 1992 and four after that date) were adjourned owing to various problems attributable to the authorities, such as the failure to properly summon or serve documents on defendants, or to obtain expert reports in time.
13. One hearing, listed for 15 February 1993, was adjourned because the applicant’s lawyer was on strike. On two occasions in March 1992 and May 1993 the case was also adjourned to allow the drawing up of additional expert reports requested by the applicant.
14. In a judgment of 23 January 1995 the Sofia City Court partly allowed the applicant’s claims against the Supreme Court and the Chief Prosecutor’s Office, holding, inter alia, that they were liable, both directly and in lieu of their subordinate entities (the Sofia Military Court and the Sofia Regional Military Prosecutor’s Office), for the damage suffered by the applicant. The court dismissed the claims against the other defendants, holding that they were not the properly answerable State entities. The judgment was not appealed against and entered into force.
15. On 28 May 1996 the Chief Prosecutor petitioned the Supreme Court to review the Sofia City Court’s judgment.
16. On 2 December 1996 the Supreme Court set the judgment aside and remitted the case for a fresh examination. It held that the Sofia City Court had failed to identify the proper defendants to the applicant’s action. In the court’s view, the State entity answerable for the damage stemming from the actions of the Sofia Regional Military Prosecutor’s Office, the Sofia Military Court and the Military Chamber of the Supreme Court was the Ministry of Defence, from whose budget they were being financed.
17. During the second examination of the case, which began in November 1997 and ended in February 2003, the Sofia City Court held eighteen hearings. The intervals between them ranged between three and seven months. The court admitted in evidence three expert reports. At the start of the proceedings the defendants were the Supreme Court, the Chief Prosecutor’s Office and the Ministries of Justice and Defence.
18. Eleven hearings were adjourned because of various problems attributable to the authorities, such as the failure to properly summon or serve documents on defendants, or to obtain expert reports in time.
19. The applicant was responsible for the adjournment of three hearings: one because he was in hospital and could not attend, and two others because he requested expert reports. On four occasions he changed defendants, as some of them had ceased to exist and had been succeeded by other entities, and as apparently he decided that the two Ministries were not liable.
20. In a judgment of 14 April 2003 the Sofia City Court partly allowed and partly dismissed the applicant’s claims against the Supreme Court of Cassation, the Sofia Military Court, the Special Investigation Service and the Prosecutor’s Office. It also noted, inter alia, that the Supreme Court’s earlier holding concerning the Ministry of Defence’s liability for the actions of the military courts and prosecution offices (see paragraph 16 above) was no longer apposite, as following legislative amendments these entities were presently financed from the judiciary budget.
21. Both the applicant and the Sofia City Prosecutor’s Office appealed. The applicant requested four expert reports on the value of his confiscated properties and another report on the amount of interest due.
22. The Sofia Court of Appeals examined the case in six hearings, which took place between April 2004 and January 2006 at approximately four to fivemonth intervals. One of them was adjourned as one of the defendants had not been duly summoned.
23. After allowing an increase of the applicant’s claims and, despite its initial reluctance, ordering four expert reports requested by the applicant, in January 2005 the court annulled these actions and decided to start the proceedings anew, as it noted that it had mistakenly summoned as a defendant the Special Investigation Service instead of the National Investigation Service, which had succeeded it in 2002.
24. In a judgment of 28 March 2006 the Sofia Court of Appeals quashed the Sofia City Court’s judgment, and partly allowed the applicant’s claims against the Prosecutor’s Office, the National Investigation Service, the Sofia Military Court and the Supreme Court of Cassation. It also held that the entity liable for the damage arising from the confiscation of the applicant’s property was the State and not any of the above authorities, and accordingly ordered it to pay the applicant compensation.
25. The applicant, the Prosecutor’s Office and the State, represented by the Ministry of Finance, appealed on points of law.
26. After holding a hearing on 4 June 2007, on 20 July 2007 the Supreme Court of Cassation partly upheld the Sofia Court of Appeals’ judgment, partly reversed it, increasing the amount of nonpecuniary damages awarded to the applicant, and partly quashed it, remitting the part of the case relating to the quashed part of the judgment to the Sofia City Court. It held, inter alia, that by ordering the State to pay damages to the applicant the lower court had ruled on a claim which had not been properly brought before it. The State had not been named as a defendant and had not been party to the proceedings. The court further held that the applicant had erred by claiming compensation for the damage arising from the confiscation from the National Investigation Service, the Prosecutor’s Office, the Sofia Military Court and the Supreme Court of Cassation. They were not liable, the proper defendant to such claims being the State itself. The court also criticised the lower courts for not clearly identifying the different claims in the operative provisions of their judgments and for failing to clarify the procedural position of the Ministry of Finance.
27. At the time of the latest information from the parties, 4 September 2007, the proceedings were once more pending before the Sofia City Court.
28. The statute regulating tort claims against the State is the 1988 State Responsibility for Damage Caused to Citizens Act („Закон за отговорността на държавата за вреди, причинени на граждани“ – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, „Закон за отговорността на държавата и общините за вреди“). Its section 1 regulates the liability of the administrative authorities and section 2 regulates the liability of the courts and of the investigation and the prosecution authorities. Section 7 provides that an action for compensation has to be brought against the authorities whose unlawful decisions, actions or omissions have caused the damage. In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК) made on 22 April 2004 the Plenary Meeting of the Civil Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the Act and in particular clarified the proper defendants to tort actions for various forms of official misconduct.
VIOLATED_ARTICLES: 6


ITEMID: 001-95209
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF RADOSZEWSKA-ZAKOSCIELNA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant's family owned a plot of land with a surface area of 1,454 sq. m. situated in the centre of Warsaw. The applicant is a legal successor of A.M.R., her grandmother and one of the direct heirs of the former owners of that property, who had passed away. A.M.R. was a party to the proceedings referred to below from the very beginning. It transpires from the case file that on 16 September 1999 the Warsaw District Court declared the applicant an heir of the deceased.
6. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw the ownership of all private land was transferred to the City of Warsaw.
7. On 30 September 1948 the applicant's family filed an application for the grant of the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree (“the 1948 application”). This application was refused in 1953 and 1954 respectively. In 1955 the State constructed the Metropol Hotel on part of the plot in question.
8. On an unspecified date the plot was divided into two separate parts. On 27 May 1990 the ownership of the first part of the original plot was transferred to the City of Warsaw by operation of law. It constituted a part of a larger plot (no. 39) with an overall surface area of 4,163 sq. m. The second part of the plot with a surface area of 636 sq. m. remained with the State.
9. On 29 June 1993 the Board of the Union of Warsaw Municipalities (Zarząd Związku Dzielnic Gmin Warszawy) issued a decision declaring that as of 5 December 1990 the “Syrena” Warsaw Tourist Company had the right of perpetual use of the plot of land no. 39. In addition, the ownership of the buildings attached to that plot, including the Metropol Hotel, was transferred to the “Syrena” company.
10. On 1 October 1992 S.P., one of the heirs of the applicant's family and acting on their behalf, filed with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) an application for annulment of the administrative decisions refusing to grant the right of temporary ownership. On 24 March 1993 the Minister quashed the 1953 and 1954 decisions. Consequently, the competent administrative authorities were required to rule on the 1948 application. The applicant (as from 16 September 1999) and other heirs of the previous owners were, as their legal successors, parties to the subsequent proceedings.
11. In 1995 the Minister of Planning and Construction instituted ex officio proceedings with a view to having his earlier decision of 24 March 1993 annulled. On 9 July 1996 the Minister declared the decision of 24 March 1993 null and void. Upon several appeals, on 11 December 1998 the Supreme Administrative Court quashed this decision. As a consequence of that judgment, the 1948 application filed by the applicant's family had yet to be examined.
12. Initially the applicant's grandmother and later the applicant herself were a party to two sets of proceedings concerning the right of perpetual use of land, which were conducted separately before the Board of the City of Warsaw (subsequently the Mayor of Warsaw) and the Warsaw District Office. That situation stemmed from the fact that the plot of land formerly owned by the applicant's family had been divided into two separate parts which were respectively owned by the City of Warsaw and the State.
13. As from July 2002, following amendments to the relevant laws, the City of Warsaw became the sole owner of the entire plot of land in question and the relevant proceedings were conducted exclusively before the Mayor of Warsaw.
14. On 11 June 1996 the Board of the City of Warsaw (Zarząd Miasta Stołecznego Warszawy) decided ex officio to stay the proceedings until the termination of the proceedings instituted by the Minister of Planning and Construction in 1995 (see above). This decision was subsequently quashed by the Warsaw Local Government Board of Appeal.
15. On 12 November 1997 the Board of the City of Warsaw decided to discontinue the proceedings, finding that they had become devoid of purpose. On 24 March 1998 the Local Government Board of Appeal quashed the impugned decision and remitted the case for re-examination.
16. On 23 June 1998, the participants complained about the inactivity of the Mayor to the Local Government Board of Appeal.
17. On 17 July 1998, the Mayor of Warsaw decided to stay the proceedings until the termination of other related proceedings pending before the Supreme Administrative Court.
18. On 2 September 1998, the Mayor informed the Local Government Board of Appeal that the case could not be examined since the proceedings had been stayed.
19. On 16 January 1999 following the Supreme Administrative Court's judgment of 11 December 1998 (see above), the participants requested the Mayor of Warsaw to grant them the right of perpetual use.
20. In January 1999 the Mayor of Warsaw began negotiations with the parties with a view to renouncing their claims to the plot of land at issue in exchange for an alternative plot. On 23 March 1999 the parties accepted the Mayor's proposal. However, on 29 April 1999 the Deputy Mayor informed them that he had to withdraw from the negotiations as there were grounds on which the 1948 application could be dismissed.
21. On 1 June 1999 the Board of the City of Warsaw refused the application. Subsequently, S.P. lodged an appeal against this decision. On 1 June 2000 the Warsaw Local Government Board of Appeal upheld the Board's decision of 1 June 1999. Upon a further appeal, on 27 February 2002 the Supreme Administrative Court quashed the Board of Appeal's decision. The Supreme Administrative Court instructed the administrative authorities to examine the heirs' intentions as to the use of the land at issue. It further emphasised that if the intended use was compatible with the local development plan, the administrative authorities were under an obligation to grant the application.
22. As of July 2002 the proceedings concerning the grant of the right of perpetual use in respect of the entire property of the applicant's family were conducted before the Mayor of Warsaw.
23. On 25 April 2003 A.G., acting on behalf of the other parties, lodged with the Warsaw Local Government Board of Appeal a complaint about the inactivity of the Board of the City of Warsaw.
24. On 9 December 2003 the Mayor of Warsaw, who in the meantime had assumed the competences of the Board of the City of Warsaw, issued his decision in the case. He refused the application, considering that the use of the plot by the heirs of the former owners would not be compatible with the local development plan adopted. The parties appealed.
25. On 24 February 2004 the parties complained to the Administrative Supreme Court about the inactivity of the Local Government board of Appeal.
26. On 12 May 2004 the Local Government Board of Appeal quashed the Mayor's decision of 9 December 2003 and remitted the case.
27. On 28 February 2008, the parties complained about the inactivity of the Mayor to the Local Government Board of Appeal.
28. On 25 April 2008 the Mayor of Warsaw stayed the proceedings pending the conclusion of the administrative proceedings concerning the grant of the right of perpetual use of land for the benefit of the “Syrena” company (see below).
29. On 30 June 2008 the Warsaw Local Government Board of Appeal quashed its decision of 25 April 2008 and discontinued the proceedings concerning the stay of the main proceedings. On an unspecified date, the Mayor of Warsaw appealed to the Regional Administrative Court.
30. It would appear that the proceedings are still pending.
31. On 5 February 1999 one of the heirs requested the Warsaw District Office to grant the right of perpetual use of the plot of land owned by the State Treasury.
32. Upon two complaints about inactivity, on 30 August 1999 the Warsaw Governor ordered the Warsaw District Office to issue a decision within one month.
33. On 4 January 2000 the Warsaw District Office refused to grant the right of perpetual use in respect of the plot owned by the State Treasury, considering that that plot had been designated in the local development plan for public use.
34. On 7 September 2000 the Warsaw Governor upheld the decision of the Warsaw District Office. S.P. lodged an appeal against the decision of the Governor with the Supreme Administrative Court.
35. On 12 March 2002 the Supreme Administrative Court quashed the Warsaw Governor's decision of 7 September 2000 and the earlier decision of the Warsaw District Office.
36. On 7 June 2002 the Warsaw District Office informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to undertake further examination of the application.
37. It appears that in July 2002 the ownership of the plot held by the State was transferred to the City of Warsaw by operation of law. Consequently, the proceedings concerning the grant of the right of perpetual use of land in respect of the entire property of the applicant's family were conducted before the Mayor of Warsaw (see above).
38. On 10 May 1996 the heirs filed with the Board of the City of Warsaw an objection against the auction for the sale of shares in the “Syrena” company.
39. On 14 September 1996 A. G, one of the heirs, made an application to the Warsaw Local Government Board of Appeal for annulment of the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993 (see above). On 17 September 1998 the Board of Appeal quashed its earlier decision and refused to institute proceedings for the annulment.
40. Upon a further appeal, on 19 November 1998 the Supreme Administrative Court stayed the proceedings pending the termination of the proceedings concerning the application for annulment of the Minister of Planning and Construction's decision of 24 March 1993. The proceedings were resumed on 27 September 2002. On 11 December 2002 the Supreme Administrative Court quashed the decision of the Board of Appeal of 17 September 1998 on procedural grounds. Consequently, the Board of Appeal had to examine the applicant's application for annulment again.
41. On 20 June and 20 December 2003 the applicant requested the Board of Appeal to expedite the proceedings.
42. On 10 December 2003 the Board of Appeal quashed its earlier decision of 26 November 1997 and declared null and void the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993.
43. On 5 July 2004 the Local Government Board of Appeal reopened the proceedings at the request of the “Syrena” company. On 9 December 2004 it refused the “Syrena” company's request to quash its decision of 10 December 2003. That decision was upheld on appeal on 18 April 2005.
44. On 20 May 2005 the “Syrena” company appealed to the Regional Administrative Court in Warsaw.
45. On 13 April 2006 the Regional Court quashed the decision of the Local Government Board of Appeal of 9 December 2004.
46. On 11 July 2007 the Supreme Administrative Court dismissed a further cassation appeal.
47. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 60-65 of the judgment delivered by the Court on 17 October 2006 in the case of Grabiński v. Poland (application no. 43702/02).
VIOLATED_ARTICLES: 6


ITEMID: 001-78395
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HAUSER-SPORN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1973 and lives in Ameisberg.
5. On 21 November 1994, while driving his car in reverse gear, he knocked a pedestrian over and drove off.
6. On 8 March 1995 the Salzburg District Court (Bezirksgericht) issued a provisional penal order (Strafverfügung), following which the applicant was found guilty under Article 88 of the Criminal Code (Strafgesetzbuch) of having negligently caused bodily harm and under Article 94 of the Criminal Code of having abandoned the victim. The applicant was ordered to pay a fine of 12,800 Austrian schillings (ATS) (approximately 930 euros (EUR)). The applicant objected and the District Court opened ordinary criminal proceedings.
7. On 11 July 1995 the court held a hearing in which it examined several witnesses, the applicant and an expert who submitted that the applicant had not necessarily noticed the accident. Subsequently, on 1 August 1995, the court convicted the applicant of having negligently caused bodily harm and acquitted him of having abandoned the victim. It sentenced him to a fine of ATS 3,200 (approximately EUR 230), suspended on probation. The applicant did not appeal.
8. Meanwhile, having interviewed the applicant in February 1995, the Salzburg Federal Police Authority (Bundespolizeidirektion) issued a penal order on 17 May 1995 whereby the applicant was found guilty under section 4(2) in conjunction with section 99(2)(a) of the Road Traffic Act (Straßenverkehrsordnung) of having failed to inform the next police station about the accident. The applicant was ordered to pay a fine of ATS 4,000 (approximately EUR 290). He appealed on 6 June 1995.
9. On 19 February 1996 the Salzburg Independent Administrative Panel (“the IAP” – Unabhängiger Verwaltungssenat), having held a public hearing on 12 February 1996 in which it heard evidence from several witnesses in the presence of the applicant's counsel, dismissed the applicant's appeal. It found that the applicant should have looked behind him when he reversed his car and, therefore, was to be blamed for carelessly failing to notice the accident. It further dismissed the applicant's argument that he had been tried twice in respect of the same offence in breach of Article 4 of Protocol No. 7, as it found that the administrative offence in issue did not relate to the same conduct as the criminal offences.
10. On 9 April 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). On 4 September 1996 he amended his complaint.
11. During the period in question the Constitutional Court was in the process of reviewing the lawfulness of specific provisions of the Road Traffic Act. This review was concluded on 9 October 1997, when the Constitutional Court declared part of these provisions unconstitutional.
12. Subsequently, on 10 October 1997, the Constitutional Court quashed the IAP's decision of 19 February 1996. This decision was served on the applicant's counsel on 5 November 1997.
13 Thereafter, on 17 November 1997, the IAP allowed the applicant's appeal of 6 June 1995 in part and reduced the fine to ATS 2,500 (approximately EUR 180). It further ordered him to pay the costs of the proceedings. The IAP stressed that there was no breach of Article 4 of Protocol no. 7 to the Convention. In particular, the offence of abandoning a victim under the Criminal Code presupposed intent while the offence under the Road Traffic Act also included negligent behaviour. The offences for which the applicant had been tried in the proceedings before the District Court had not exhausted the scope of unlawfulness (Unrechtsgehalt) of the applicant's conduct. On 2 January 1998 the applicant lodged a complaint with the Constitutional Court. On 27 August 1998 he filed further comments.
14. On 17 June 2000 the Constitutional Court, referring to its previous case-law, refused to deal with the applicant's complaint.
15. On 25 July 2000 the applicant filed a request for reopening of the proceedings before the Constitutional Court and argued that the Constitutional Court had meanwhile repealed another provision of the Code of Administrative Offences upon which the IAP had based its findings. On 25 September 2000 the Constitutional Court rejected this request but granted the request to transfer the case to the Administrative Court (Verwaltungsgerichtshof).
16. On 20 December 2000 the applicant amended the complaint transferred to the Administrative Court. The IAP submitted its observations in reply on 9 April 2001.
17. On 16 October 2003 the Administrative Court refused, under section 33(a) of the Administrative Court Act (Verwaltungsgerichtshofgesetz) to deal with the applicant's complaint since the fine did not exceed EUR 726 and no important legal question was at stake. This decision was served on the applicant's counsel on 6 November 2003.
18. Under Article 83 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by up to one year's imprisonment or a fine of up to 360 day-rates, to cause physical harm to another person. Under Article 88 § 1 of the Criminal Code, it is an offence, punishable by up to three months' imprisonment or a fine of up to 180 day-rates, to cause physical harm by negligence.
19. Article 94 § 1 of the Criminal Code provides that “anyone who fails to assist another person (Imstichlassen eines Verletzten) to whom he has caused bodily injury (Article 83), albeit unlawfully, shall be liable to up to one year's imprisonment or up to 360 day-rates. ”
20. Section 4 of the Road Traffic Act (Straßenverkehrsordnung) provides:
“(1) All persons whose conduct at the scene of a traffic accident was causally related to the accident shall
(a) if they are driving a vehicle, stop immediately;
...
(2) If anyone has been injured in a traffic accident, the persons referred to in subsection one above shall provide assistance; if they are not capable of doing so, they shall arrange for assistance without delay. They shall further inform the nearest police station immediately...”
21. Under section 99(2)(a) of the Road Traffic Act, in the version at force at the material time, it was an administrative offence (Verwaltungsűbertretung), punishable by a fine of not less than ATS 500 and not exceeding ATS 30,000 or, in default of payment, by one day to six weeks' imprisonment, for any driver having caused a traffic accident occasioning bodily injury to act contrary to section 4(1) and (2).
22. Section 99(6)(c) of the Road Traffic Act provides that proceedings shall not be instituted in respect of an administrative offence that is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts.
23. The procedure before the Administrative Court is governed by the Administrative Court Act (Verwaltungsgerichtshofgesetz). Pursuant to section 42(1), the Administrative Court must in principle either dismiss a complaint as ill-founded or quash the impugned decision. It shall quash the impugned decision if it is unlawful by reason of its content; or because the respondent authority lacked jurisdiction; or on account of a breach of procedural rules. A breach of procedural rules is relevant insofar as the respondent authority has made findings of fact which are in an important respect contradicted by the case file, require further investigation on an important point, or when compliance with the relevant rules could have led to a different decision by the respondent authority (section 42 (2)).
24. Under section 33(a) of the Administrative Court Act, the Administrative Court may decline to deal with a complaint against a decision of an Independent Administrative in an administrative criminal case if a fine not exceeding EUR 726 has been imposed and the Administrative Court's decision would not involve the determination of a legal question of fundamental importance.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98968
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BULFINSKY v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1979 and lives in Bucharest.
5. At the beginning of April 2002 the police division responsible for fighting organised crime and drug trafficking (“the police”) received information that the applicant and his friends P.T. and D.C. were trafficking in drugs. The three friends were ecstasy users. At the time of the events, the applicant and D.C. were students.
6. On 18 April 2002 the police sought authorisation from the prosecutor's office to use undercover agents and a collaborator to follow the lead regarding the suspects' alleged criminal activities. On the same day the organised crime and drug-trafficking section of the prosecutor's office at the Supreme Court of Justice (“the prosecutor's office”) authorised two agents, referred to in the proceedings as “Toni” and “Sven” (the latter being introduced to the applicant and his friends as “Alex”), and a collaborator, “Gotti”, to participate in the operation.
7. On 29 April 2002 Sven met the applicant, D.C. and P.T. in a restaurant (“restaurant E”) and agreed to meet with them again later the same day.
8. At 9.15 p.m. the applicant and P.T. were sitting with Alex on the terrace of restaurant M and D.C. was sitting at the adjacent table with some friends, when plain clothes police officers rose from the neighbouring tables and arrested the three suspects. A yellow plastic bag was taken from under the applicant's table and its contents checked; the police noted that it contained bread, under which were several packets fastened with brown tape which together contained 2,016 white tablets which later proved to be ecstasy.
9. The three suspects were arrested on suspicion of drug trafficking. The police took photographs and videotaped the events. Images from the operation were shown on the evening news.
10. On her arrest D.C. confessed to the prosecutor that she and P.T. had taken part in drug trafficking. However, she withdrew her confessions before the firstinstance court, claiming that she had been coerced into making them by the police with the promise that if she wrote down what she was told to write, she would be released after ten minutes.
11. The applicant and his friends claimed that they had been contacted by Gotti, whose real name was Bogdan, and who was a friend of D.C. They gave the authorities his full name and address for further investigation. Gotti had told them that Alex had various objects (clothes and watches) for sale at reasonable prices. They finally agreed to meet Alex and at 4.30 p.m. on 29 April they, together with Bogdan, went to restaurant E. They sat down with Alex, who did not have the merchandise with him. Later that day the three friends were at bar N. when Bogdan told them that Alex was at restaurant M and could meet them again. The applicant and Bogdan left in Bogdan's car. After a while, they called D.C. and P.T., who had stayed behind, and told them that Bogdan had forgotten a yellow plastic bag under their table at the bar and asked them if they could bring it to restaurant M as it contained food for Bogdan's wife, who was ill.
12. At 9.15 p.m. the applicant and Bogdan arrived at restaurant M and sat at Alex's table. Ten minutes later P.T., who was carrying Bogdan's plastic bag, and D.C., joined them. P.T. sat at Alex's table while D.C. sat at the next table with some acquaintances.
13. When Alex went to the toilet, plainclothes police officers intervened, expecting to find exactly 2,000 tablets of ecstasy in the bag under the table.
14. In their statements, the applicant and his friends insisted that the drugs had in fact been given to the undercover agents by the police for the purpose of the covert operation. In support of their statements they pointed out that despite their constant surveillance over the previous few days the police could not explain where the friends had obtained the drugs.
15. The applicant and his friends were arrested and taken into custody on the evening of 29 April 2002, on suspicion of trafficking in drugs. Their detention was maintained by the courts throughout the proceedings.
16. The prosecutor's office heard evidence from the applicant, D.C. and P.T., and from two eyewitnesses who had been present on the terrace at restaurant M, and examined the written records of statements by Toni and Sven. At the prosecutor's request, both the applicant's and D.C.'s flats were searched by the police. No drugs or other illegal substances were found.
The prosecutor concluded that on 29 April 2002 Gotti had informed Toni that the three persons were preparing a transaction involving MDMA tablets (methylenedioxymethamphetamine). Toni had then contacted Sven, who had met with the suspects to secure the transaction. According to Sven's statements, the suspects had offered to sell him 4,000 tablets of MDMA for 4 US dollars each.
17. On 21 June 2002 the prosecutor's office committed the applicant, P.T. and D.C. for trial on charges of drug-trafficking, in violation of Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143”).
18. It also decided to sever the criminal investigations from those concerning another participant in the trafficking, Bogdan, who had not yet been identified by the police. On 13 February 2003, the prosecutor's office at the Supreme Court of Justice identified Bogdan as being the same person as Gotti and closed the investigation against him.
19. Several hearings were held before the Bucharest County Court.
20. The three accused denied their involvement in drug trafficking and claimed that they had been entrapped by the police. They repeatedly stated that Bogdan had also been present at restaurant M.
21. The defence lawyers insisted on the importance for the court of hearing evidence from Bogdan in the presence of the defendants. They also requested the police to produce the bag and the packets in which the tablets had been found and to collect fingerprints from them. They considered that the court should see the video tapes of the events. Lastly, they asked for a confrontation between the applicants, which would allow them to prove that the police had put pressure on them and made them promises in order to obtain the initial declarations.
The court did not hear that evidence.
22. The County Court gave judgment on 15 April 2003. It found the three accused guilty of drug trafficking and sentenced them each to four years' imprisonment. It deducted from the sentence the time spent in pretrial detention. The court also confiscated the 1,965 tablets of MDMA that were left after laboratory tests had been carried out.
23. The County Court dismissed the defence arguments on the ground that under Law no. 143 statements made by undercover agents and their collaborators can constitute evidence. The court was satisfied that those statements had not been obtained illegally and considered that the defence argument to the contrary could not taint the evidence. It also considered that the intention of the accused to sell drugs was evidenced by their entering into negotiations with Toni and Gotti, which in turn led to their authorising Sven to make the transaction with the defendants and obtain the drugs from them.
In reaching its conclusion, the County Court relied on the statements made by the suspects and the undercover agents Toni and Sven to the police, as well as the declarations made by the applicant before the court. It gave precedence to the statement given by D.C. during the investigations as it considered that her withdrawal of her initial statement to the police was unjustified, as she had not proved that she had been coerced into making it.
24. All the parties appealed against the judgment of 15 April 2003. The defence counsel reiterated that the evidence gathered against the defendants was illegal, that the drugs had belonged to the police and that Bogdan should be heard by the court.
25. In a decision of 29 October 2003 the Bucharest Court of Appeal upheld the County Court's findings on the facts of the case and its examination of the participants' guilt. It considered, however, that the County Court had erred in determining the sentence, in that it had not taken into account the seriousness of the crimes committed and the fact that, as students, the participants had a higher level of education which should have allowed them to comprehend the gravity of their deeds. It therefore increased the sentence to twelve years' imprisonment for each defendant.
26. In a final decision of 20 April 2004 the High Court of Cassation and Justice dismissed the defendants' appeals in cassation and upheld the Court of Appeal's decision.
27. The relevant provisions of the Code of Criminal Procedure and of Law no. 143 are set out in Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009.
28. The Council of Europe's texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 35-37, ECHR 2008....
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103701
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF JAHNKE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Angelika Nußberger;Mark Villiger
TEXT: 4. The applicant was born in 1951 and lives in Stadthagen.
5. On 7 June 1999, following the introduction of preliminary investigations against the applicant on account of money laundering (Geldwäsche), the Stadthagen District Court ordered the seizure of 40,000 German marks.
6. On 18 December 2001 the Hannover Public Prosecutor introduced a formal accusation against the applicant and three others, including her former partner. The applicant was accused of having committed in 1997 and 1998 by one and the same act (Tateinheit) money laundering and accessory after the fact (Begünstigung).
7. Thereafter the applicant’s legal counsel, who had been jointly accused, resisted his exclusion as defence counsel. On 12 August 2002, following decisions of the Hanover Regional Court and the Celle Court of Appeal (this court had already rendered a similar judgment in a parallel case in 2001), the Federal Court of Justice rejected his appeal. A request to the Federal Constitutional Court for interim protection was also to no avail. On 4 October 2002 the files were returned to the Hanover Regional Court.
8. On 11 November 2002 the applicant’s new legal counsel requested access to the files, which was granted.
9. On 2 December 2002 the Hannover Regional Court decided, on the basis of the accusation, to open the trial against the applicant and three coaccused.
10. By a letter dated 6 December 2002 the applicant’s lawyer requested a subsequent hearing pursuant to Article 33(a) of the German Code of Criminal Procedure (see “Relevant domestic law” below).
11. By a letter dated 10 December 2002 the applicant’s counsel opposed both accusations. As regards the opening of the trial on account of money laundering, he submitted that at the time of the offences in question the applicant’s acts were not yet punishable.
12. By further letters dated 6 February 2003, 10 and 24 April 2003, 2 July 2003 and 21 July 2003 he again opposed the accusation on legal grounds (no fair hearing, no legal ground for the accusation) and found that, on account of this, the main proceedings had not yet been validly opened and that therefore no hearing could be scheduled.
13. On 24 July 2003 the Hannover Regional Court separated the proceedings against three of the then six co-accused, including those of the applicant. On the same day the court informed the applicant’s legal counsel that the decision to open the trial could not be challenged. It also informed him that, even though he had been heard sufficiently in the meantime, it would decide on his numerous respective motions.
14. On 20 August 2003 the Celle Court of Appeal rejected the applicant’s appeal against the Regional Court’s inactivity regarding her motion under Article 33(a) of the Code of Criminal Procedure.
15. Thereafter a new dispute arose on account of the fact that the applicant’s first legal counsel also wanted to defend her former partner. The files again had to be transferred to the Celle Court of Appeal and the Federal Court of Justice. On 5 March 2004, after that court’s decision of 17 December 2003, the files were returned to the Hannover Regional Court
16. On 4 February 2004 the applicant’s (new) legal counsel again referred to his motion of 6 December 2002 and requested the court to further the proceedings.
17. On 10 September 2007 the Hannover Regional Court again joined the proceedings. On 13 September 2007 it scheduled five hearings to take place between 18 October 2007 and 10 January 2008. On 17 September 2007 the applicant’s legal counsel again referred to his motion of 6 December 2002. On 27 September 2007 the Hanover Regional Court cancelled all hearings. On 29 November 2007 it scheduled four hearings to take place from 17 December 2007 onwards.
18. By a decision of 19 December 2007 the Hannover Regional Court again separated the proceedings against inter alia the applicant.
19. On 7 January 2008 the applicant lodged a constitutional complaint.
20. On 17 April 2008 the Federal Constitutional Court refused to admit the constitutional complaint as it had been introduced out of time.
21. On 9 January 2009 the Hannover Regional Court, by reference to the accusation dated 18 December 2001, refused to open criminal proceedings against the applicant. It found that in so far as she was accused of money laundering, her acts were not yet punishable at the relevant time (since the relevant provision of the German Criminal Code had only been amended thereafter) and that, as regards the accusation of accessory after the fact, criminal prosecution was now time-barred.
In reads as follows: “If the court, in a decision detrimental to a participant, used facts or evidentiary conclusions in respect of which he has not yet been heard and if he is not entitled to lodge a complaint against this decision or to any other legal remedy, the court shall give this participant a subsequent hearing, as far as the detriment still exists, either of proprio motu or upon an application, and decide upon an application. The court may amend its decision without an application.”
Section 153 of the Code of Criminal Procedure provides that the public prosecution or the courts may discontinue the proceedings at any stage if the perpetrator’s culpability is considered to be insignificant and if there is no public interest in the prosecution.
According to this provision, the court may terminate the proceedings by an order made outside the main hearing where a procedural impediment arises after the main proceedings have been opened.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1