ITEMID: 001-86093
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF C.G. AND OTHERS v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Violation of P7-1;Non-pecuniary damage - award;Costs and expenses - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: 5. The first applicant settled in Bulgaria in 1992. On 9 April 1996 he married the second applicant there. Shortly after the marriage he was granted a permanent residence permit. Their daughter, the third applicant, was born in Bulgaria on 24 May 1996. Before 2005 the first applicant worked as a driver for a limited liability company in Plovdiv.
6. On 8 June 2005 the Regional Director of Internal Affairs in Plovdiv made an order for the first applicant’s expulsion. He also deprived him of the right to reside in Bulgaria and excluded him from Bulgarian territory for a period of ten years, “on the ground that [he] present[ed] a serious threat to national security and in view of the reasons set out in proposal no. S6923/ 08.06.2005 by the head of the security department of the Plovdiv Regional Directorate of Internal Affairs”. The Director’s decision relied on section 42(1) and (2) and section 42a(1) of the 1998 Aliens Act, taken in conjunction with section 10(1)(1) and (1)(3) (see paragraphs 18 and 20 below). No factual grounds were given, in accordance with section 46(3) of the Act (see paragraph 23 below). The order further provided that the first applicant was to be detained until it could be enforced. Finally, it stated that it was subject to appeal to the Minister of Internal Affairs, but not subject to judicial review, in line with section 46(2) of the Act, and that it was immediately enforceable, in accordance with section 44(4) of the Act (see paragraphs 19 and 22 below).
7. At 6.30 a.m. on 9 June 2005 the first applicant was summoned to a police station in Plovdiv, where he was served with the order and detained with a view to his expulsion. He was deported to Turkey the same day, without being allowed to get in touch with his wife and daughter or a lawyer.
8. Once in Turkey, the first applicant hired a lawyer in Bulgaria with the help of his wife – the second applicant –, and on 16 June 2005 appealed to the Minister of Internal Affairs. He said that he had had an established family life in Bulgaria for many years and complained that while being held at the police station on 9 June 2005 he had not been informed why he was considered a threat to national security. Nor had this become apparent from the decision to expel him, which had merely referred to the legal grounds on which it was made. The first applicant further complained that he had not been apprised of the proposal which served as the basis for the decision. All of this amounted to a failure to give reasons, in breach of the rules of administrative procedure.
9. In a letter of 30 June 2005 sent to the first applicant’s former address in Bulgaria, the head of the complaints department of the Ministry of Internal Affairs informed him that the Minister had dismissed the appeal in a decision of 29 June 2005, because the impugned order had been made by a competent authority, in due form, in compliance with the applicable substantive and procedural rules and in conformity with the aim of the law.
10. On 20 July 2005 the first applicant sought judicial review of the Minister’s order by the Supreme Administrative Court. He argued that no reasons had been given for the order, depriving him of any protection against arbitrariness because he had been unable to discover which actions on his part had been deemed a threat to national security. He also argued that the measures against him had interfered with his family life. However, the authorities had disregarded this and had not examined whether a fair balance had been struck between his rights and the public interest, contrary to Article 8 of the Convention, which formed part of domestic law. In that connection he relied on the Court’s judgment in the case of Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002), which had previously led the Supreme Administrative Court to change its caselaw in this sphere (see paragraph 25 below).
11. On 10 August 2005 the Supreme Administrative Court informed the first applicant that the case had been transferred to the Plovdiv Regional Court.
12. A hearing listed for 9 December 2005 failed to take place because the Plovdiv Regional Directorate of Internal Affairs had not received a copy of the application for judicial review.
13. The hearing was held on 24 February 2006. The court admitted in evidence proposal no. S6923/08.06.2005, which had served as the basis for the decision against the first applicant. The first applicant was not allowed to familiarise himself with this document.
14. In a judgment of 8 March 2006 the Plovdiv Regional Court dismissed the application. To begin with, it held that the bar to judicial review set out in section 46(2) of the 1998 Aliens Act (see paragraph 22 below) was contrary to the Convention and was thus to be disregarded. It relied on Al-Nashif (cited above) and the relevant caselaw of the Supreme Administrative Court (see paragraph 25 below). Examining the application on the merits, the court held:
“The coercive measures are based ... on the ground that the [first applicant] represents a serious threat to national security, for the reasons set out in proposal no. S6923/08.06.2005...
In upholding the impugned order, the Minister of Internal Affairs states that the evidence gathered clearly establishes that the [first applicant] is a member of a criminal gang dealing in illicit narcotic drugs; this, on the one hand, constitutes grounds under section 10(1)(3) of the [1998 Aliens Act], and, on the other, is a circumstance requiring the administrative authority to take coercive measures. Under section 42 of the [1998 Aliens Act], ‘the expulsion of an alien must be carried out if his or her presence in the country creates a serious threat to national security or public order’. On expulsion, the alien must also be deprived of the right to reside in the Republic of Bulgaria and be banned from entering it. The imposition of [these measures] is necessary in the cases set out in section 10 of the [1998 Aliens Act]. The order refers to the grounds set forth in section 10(1)(3), which [provides for the mandatory expulsion of] ‘an alien who is known to be a member of a criminal gang or organisation or to be engaged in terrorist activities, smuggling or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods and technologies with a possible dual use, or in the unlawful trafficking of intoxicating or psychotropic substances or precursors or raw materials for their production’. The order states that there is information to the effect that the [first applicant] has participated in the unlawful trafficking of intoxicating and psychotropic substances and precursors and raw materials for their production. This has been established from the enclosed secret file (classified in accordance with section 25 and [Schedule 1], Part 2, point 22 of the [Protection of Classified Information Act of 2002 – see paragraphs 27 and 28 below]) containing the proposal to impose coercive measures to which the impugned order refers. According to this proposal, the data come from secret surveillance measures and information from operative sources gathered by the National Service for Combating Organised Crime in April 2005, showing that [the first applicant] has acted as an intermediary in the supply of narcotic drugs and maintains regular contacts with Bulgarian citizens who distribute narcotic drugs and intoxicating substances in the territory of the towns of Plovdiv and Asenovgrad.
The three measures imposed on the [first applicant] are based on section 42(2) of the [1998 Aliens Act]. ... According to section 46(2)(3) of [that Act] taken in conjunction with section 15(3) of the [1979 Administrative Procedure Act], such an order must refer only to the legal and not the factual grounds for imposition of the coercive measures. As may be seen from the order, it fully complies with the requirements of [these provisions].
There is no dispute as to the competence of the authority which made the order. [The first applicant alleges] breaches of the rules of procedure, but none has been found by the court. Section 42 of the [1998 Aliens Act] does not lay down any special rules of procedure... No procedural violations have been found in the fact that the proposal for coercive measures was made secret, as from its last page it may be seen that it was made on 7 June 2005 and was classified on the same day...
[The court will now examine t]he [first applicant]’s objections concerning the lack of factual grounds for imposition of the measures. The legal grounds cited in the order require the existence of information concerning the facts referred to in sections 42 and 42a of the [1998 Aliens Act], taken in conjunction with section 10(1)(3). Concerning the [first applicant’s] objections in this regard, it must be stressed that the [law refers to] information relating to such facts rather than proof thereof. The availability of proof would produce different legal consequences for the [first applicant].
The impugned order imposes coercive measures which, according to section 22 of the [Administrative Offences and Penalties Act 1969], are applied in order to preempt and put an end to administrative and other offences, as well as to preempt and redress their harmful consequences.
The information was gathered through the use of secret surveillance measures and through operative sources of the National Service for Combating Organised Crime, as may be seen from the proposal cited in the order. According to the definition of the [Special Surveillance Means Act of 1997], the measures concerned comprise technical means (electronic and mechanical devices, as well as substances which are used for recording the activity of monitored persons and objects) and operative methods (surveillance, tapping, following, covert entry of premises, marking and checking of correspondence and computerised information, which are employed during the use of technical devices) used for the preparation of physical evidence in the form of videotapes, audiotapes, photographs and marked objects. Under section 3 of this Act, these may also be used for preventing offences... They are used against persons who are suspected of preparing or perpetrating or of having perpetrated serious crimes. The evidence thus obtained is kept either by the Ministry of Internal Affairs until the institution of a preliminary investigation, or by the respective judicial authorities. Any item not used for the preparation of evidence has to be destroyed.
The nature of the source of information which led to the issuing of the impugned order makes it impossible to adduce further evidence relating to the facts. However, this by no means leads to a finding that the coercive measures were unlawful. Moreover, the [first applicant] does not dispute the facts; he merely challenges the use of information concerning them as grounds for the coercive measures imposed. The [court] finds that the facts set out in the proposal can serve as the basis for application of sections 42 and 42a of the [1998 Aliens Act taken in conjunction with section 10(1)(3)]. In view of the foregoing, the [court] concludes that the impugned order was in accordance with the requirements of the substantive law.
The [first applicant]’s last objection concerns the noncompliance of the impugned order with the aim of the law. He relies on his longstanding family life in Bulgaria, his marriage to a Bulgarian citizen and the nineyearold child born from this marriage (all facts which have been acknowledged by the parties and the court)...
However, all these circumstances have no bearing on the lawfulness of the order under section 42(1) and (2) of the [1998 Aliens Act], still less on its compliance with the aims of the law, as the law in question provides for the restriction of certain rights for the purpose of preventing the commission of offences.
In this context, the [first applicant]’s reliance on [AlNashif, cited above] is misplaced, as this case concerns the right to seek judicial review, which is available to the [first applicant].”
15. On 28 March 2006 the first applicant appealed to the Supreme Administrative Court. He argued that the police had not adduced any evidence that he had done anything to put national security in jeopardy. They had merely presented a document which recounted information whose source was unknown. The socalled “proposal” contained only general conclusions which were based on facts not made known to the court. This was problematic, as the court’s task was to guarantee that the executive’s discretion had not been exercised in an arbitrary fashion. Moreover, there were no objective facts showing that the first applicant had committed any offence. This had to be proved, not merely alleged. The first applicant further submitted that the impugned order had seriously infringed his right to respect for his family life, contrary to Article 8 of the Convention. He relied extensively on Al-Nashif (cited above) and Berrehab v. the Netherlands (judgment of 21 June 1988, Series A no. 138), and asserted that the existing legal framework did not provide sufficient guarantees against arbitrariness. Moreover, the lower court had not examined the proportionality of the interference, contrary to the approach of the European Court of Human Rights in all cases under Article 8 of the Convention. The impugned order had broken off the longstanding relationships with his wife and daughter. If there was reason to suspect that he had engaged in unlawful activities, it would have been more appropriate to prosecute and try him, which would have entailed the production of serious evidence of his alleged wrongdoing.
16. After holding a hearing on 12 September 2006, the Supreme Administrative Court upheld the lower court’s judgment on 4 October 2006. Its opinion, in its relevant parts, reads as follows:
“... [This court] finds that the conclusions of the firstinstance court as to the lawfulness of the impugned order were correct and wellfounded.
According to section 42(1) of the [1998 Aliens Act], an alien’s expulsion is necessary if his or her presence in the country puts national security or public order in serious jeopardy. Subsection 2 of that section provides that whenever [a person is expelled] his or her right to reside in the Republic of Bulgaria is also revoked and he or she is prohibited from entering the country.
According to section 42a of the same Act, the prohibition on entering the country is imposed under the circumstances set out in section 10 [of the Act]. The impugned order by the director of the Plovdiv Regional Directorate of Internal Affairs states that the [first applicant’s case] falls under points 1 and 3 of section 10 of the [1998 Aliens Act], in that through his actions he has jeopardised the security and the interests of the Bulgarian State or is known to have acted against the security interests of the country, to have been a member of a criminal gang or organisation or to have engaged in terrorist activities, smuggling or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating or psychotropic substances or precursors or raw materials for their production.
It has been established in the present case that [the first applicant] has acted as an intermediary for the supply of narcotics and maintains regular contacts with Bulgarian citizens who distribute narcotics and intoxicating substances in the territory of the towns of Plovdiv and Asenovgrad.
The impugned order was issued on the basis of proposal no. S–6923/08.06.2005 by the head of Plovdiv Regional Security Department, which contains data revealing that the presence of the alien in the [Republic of Bulgaria] puts national security in serious jeopardy.
The provisions of sections 42 and 42a of the [Aliens Act] are mandatory. If the conditions referred to in these texts are in place, the administrative authority is required to use coercion and order the expulsion of the alien concerned, and at the same time to withdraw his or her residence permit and prohibit him or her from entering the Republic of Bulgaria. The administrative authority has no discretion as to whether or not to make the order. As the law does not provide for exceptions which might allow [the authority not to make an order for expulsion], the expulsion is lawful provided the required conditions are in place.
The impugned order was made in accordance with the purpose of the law and in accordance with the [applicable] substantive and procedural rules. The administrative authority elucidated the relevant facts and specified the legal grounds for making the order. ...”
17. After the first applicant’s expulsion, the second and third applicants travelled a few times a year to Turkey to meet him. On each occasion they remained there for about two or three days. Between visits they maintained contact by telephone.
18. Section 42(1) of the 1998 Aliens Act (Закон за чужденците в Република България) provides that the expulsion of aliens must be carried out when their presence in the country creates a serious threat to national security or public order. Section 42(2) states that expulsion is mandatorily accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country.
19. Section 44(4)(1) and (3) of the Act provides that expulsion orders and orders withdrawing aliens’ residence permits are immediately enforceable.
20. Under section 42a(1) (currently section 42h(1)) of the Act, a ban on entering the country has to be ordered if the grounds set forth in section 10 are in place. Section 10(1)(1) and (1)(3) of the Act, as in force at the relevant time, defined these grounds as information revealing that (i) “through his or her actions the alien ha[d] jeopardised the security or the interests of the Bulgarian State or ha[d] acted against the country’s security”, or (ii) he or she [was] a “member of a criminal gang or organisation, or [was] engaged in terrorist activities, smuggling or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production”.
21. Section 46(1) of the Act provides that orders imposing coercive measures may be appealed before the Minister of Internal Affairs or the competent regional court.
22. However, under section 46(2) of the Act as in force until March 2007, orders withdrawing aliens’ residence permits and banning them from entering the country for the reasons set out in section 10(1)(1), or orders expelling them, were not subject to judicial review.
23. Under section 46(3) of the Act, these orders do not indicate the factual grounds for imposing the relevant coercive measure.
24. The relevant legal developments in the interpretation and application of the Act before 2002 are set out in paragraphs 7178 of the Court’s judgment in the case of Al-Nashif, cited above.
25. Following this judgment, the Bulgarian Supreme Administrative Court changed its caselaw. In a number of judgments and decisions delivered between 2003 and 2006 it held, by reference to AlNashif, that the ban on judicial review in section 46(2) of the Act was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security considerations were amenable to judicial review (реш. № 4332 от 8 май 2003 по адм. д. № 11004/2002 г.; реш. № 4473 от 12 май 2003 г. по адм. д. № 3408/2003 г.; опр. № 706 от 29 януари 2004 г. по адм. д. № 11313/2003 г.; опр. № 4883 от 28 май 2004 г. по адм. д. № 3572/ 2004 г.; опр. № 8910 от 1 ноември 2004 г. по адм. д. № 7722/2004 г.; опр. № 3146 от 11 април 2005 по адм. д. № 10378/2004 г.; опр. № 3148 от 11 април 2005 по адм. д. № 10379/2004 г.; опр. № 4675 от 25 май 2005 г. по адм. д. № 1560/2005 г.; опр. № 8131 от 18 юли 2006 г. по адм. д. № 6837/2006 г.).
26. Subsequently, in April 2007, section 46(2) of the Act was amended. It now provides that orders withdrawing aliens’ residence permits and banning them from entering the country for the reasons set out in section 10(1)(1), or orders for their expulsion, may be challenged before the Supreme Administrative Court, which rules by means of a final judgment.
27. According to section 25 of this Act, the information listed in Schedule No. 1 thereto, unregulated access to which could jeopardise Bulgarian national security, defence, foreign policy or constitutional interests, is a State secret.
28. Part 2, point 22 of Schedule No. 1 to the Act provides that the information in question is that which is “gathered, checked and analysed by the security services and the lawenforcement agencies concerning persons suspected of subversive, terrorist or other unlawful activities targeted against the public order, security, defence, independence, territorial integrity or international status of the State”.
29. Article 354a § 1 of the Criminal Code of 1968 makes it an offence to produce, process, acquire or possess narcotic drugs or similar with a view to distributing them, and also to distribute them. The offence is aggravated if committed by a member of a criminal gang (Article 354a § 2 (1) of the Code). Article 354b § 1 of the Code makes it an offence to incite or abet another to use narcotic drugs or similar. It is also an offence to be a founder member, leader or member of a criminal gang with intent to commit offences under Articles 354a § 1 or 354b § 1 of the Code (Article 321 § 3 of the Code).
30. The law regulating secret surveillance is described in detail in paragraphs 751 of the Court’s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).
31. The explanatory report to Protocol No. 7 (ETS No. 117) details the guarantees of Article 1 in the following manner:
“... 15. As a rule, an alien should be entitled to exercise his rights under subparagraphs a, b and c of paragraph 1 before he is expelled. However, paragraph 2 permits exceptions to be made by providing for cases where the expulsion before the exercise of these rights is considered necessary in the interest of public order or when reasons of national security are invoked. These exceptions are to be applied taking into account the principle of proportionality as defined in the caselaw of the European Court of Human Rights.
The State relying on public order to expel an alien before the exercise of the aforementioned rights must be able to show that this exceptional measure was necessary in the particular case or category of cases. On the other hand, if expulsion is for reasons of national security, this in itself should be accepted as sufficient justification. In both cases, however, the person concerned should be entitled to exercise the rights specified in paragraph 1 after his expulsion. ...”
VIOLATED_ARTICLES: 13
8


ITEMID: 001-104921
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF MARUTSENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Angelika Nußberger;Ganna Yudkivska
TEXT: 4. The applicant was born in 1967 and lives in Kirovohrad.
5. On 21 June 2005 the applicant lodged a civil claim with the Kirovskyy District Court of Kirovohrad (“the Kirovskyy Court”) against the Military Unit A-1405 for pecuniary and non-pecuniary damage.
6. On 21 February 2006 the court decided to discontinue the proceedings as a result of the applicant’s failure to attend the hearings.
7. On 19 September 2007 the applicant requested an extension of time to lodge the appeal against the above ruling and submitted that he had become aware of the impugned ruling in July 2007.
8. On 24 October 2007 the Kirovohrad Regional Court of Appeal quashed the ruling of 21 February 2006. It remitted the case for examination by the first-instance court, having found that the applicant had not been duly notified of the time and date of the hearings. The Court of Appeal ruled that the first-instance court had erred in its decision to discontinue the proceedings.
9. On 18 July 2008 the Kirovskyy Court considered that it was not competent to deal with the case because it lacked jurisdiction ratione materiae. It discontinued the civil proceedings and held that the case should be examined within the framework of the administrative proceedings.
10. Following examination of the applicant’s appeal on its merits, on 24 December 2008 the Court of Appeal quashed the ruling of 18 July 2008. It held that the first-instance court had erred in its decision to discontinue the proceedings and considered that the case should be examined within the framework of civil proceedings. The Court of Appeal remitted the case for examination to the Kirovskyy Court.
11. On 25 February 2009 the Kirovskyy Court decided to discontinue the proceedings because of the applicant’s failure to attend the hearings.
12. On 24 June 2009 the Court of Appeal quashed the ruling of the Kirovskyy Court on the ground that the applicant had not been duly notified of the time and date of the hearings and remitted the case for examination to the first-instance court.
13. On 16 June 2010 the Kirovskyy Court for the third time decided to discontinue the proceedings because of the applicant’s repeated failure to attend the hearings. The applicant did not lodge an appeal against that decision.
14. In the course of the proceedings sixteen hearings were adjourned, out of which three times because of the applicant’s failure to attend the hearings, once because of the failure of the respondent’s representative and five times because of the parties’ failure to attend the hearings. On seven occasions the hearings were adjourned for a total period of about nine months because of the judge’s or secretary’s absence or for technical reasons. The applicant adjusted his claims once.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95345
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TRPESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1944 and lives in Skopje.
5. He worked in a company for production of chemical products (“the employer”).
6. On 8 February 1993 a second-instance commission of the Pension and Social Insurance Fund (“the Fund”) declared the applicant completely and permanently incapacitated due to a work-related eye-disease. On 30 April 1993 the applicant's employment terminated ipso jure. On 4 June 1993 the Fund determined the amount of his disability pension.
7. In other proceedings that ended with the Supreme Court's decision of 6 July 1995, it was established that the applicant had contracted a work-related eye-disease.
8. On 4 April 1994 the applicant brought a civil action against his employer requesting the then Skopje Municipal Court to award him compensation for the pecuniary and non-pecuniary loss sustained as a result of his disease.
9. On four hearings listed between 22 April 1997 and 11 November 1998 the applicant specified his claim, submitted new evidence or requested additional expert examination.
10. On 6 April 1999 the Skopje Court of First Instance (“the first-instance court”) dismissed the applicant's claim finding that the damage to his eye was to be regarded as a disease and that the employer could not be held responsible for the applicant's disease. It based its decision on a range of evidence: the expert report of the Forensic Institute of 6 April 1995; its supplement of 25 December 1995; the oral evidence of the Institute's experts produced on a hearing of 19 February 1998; the statements of two co-workers and a physician working with the employer. On 5 April 2000 the Skopje Court of Appeal quashed this decision instructing the lower court to obtain an alternative expert opinion from a hospital since the Institute's experts were not eye-disease specialists.
11. On 8 February 2002 the first-instance court dismissed the applicant's claim again. The alternative expert examination confirmed that the damage to the applicant's eye could not be regarded as work-related. On 5 June 2002 the Skopje Court of Appeal dismissed the applicant's appeal.
12. On 28 October 2002 the applicant lodged with the Supreme Court an appeal on points of law (ревизија) which was dismissed by a decision of 22 October 2003. This decision was served on the applicant on 5 December 2003.
VIOLATED_ARTICLES: 6


ITEMID: 001-108001
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF ŢEHANCIUC v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Marcel Ţehanciuc, is a Romanian national who was born in 1966 and lives in Suceava.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 8 December 2003 the applicant, who was a customs officer in the Siret customs service, was indicted and sent before the criminal courts, accused of having accepted bribes, of committing forgery and of abuse of his official position, offences sanctioned by Article 254 § 2, Article 248 and Article 289 of the Romanian Criminal Code and sections 7(1) and 17(c) and (d) of Law no. 78/2000 on the prevention, discovery and sanctioning of acts of corruption.
The indictment contained detailed references to the criminal investigation started in 2002 and conducted with respect to a certain Mr. E. It stated that in 2002 the police had found that Mr. E had been illegally importing goods into Romania without paying the taxes due, allegedly with the help of some customs officers and some border policemen to whom he had allegedly given various amounts of money. The goods, which had been declared as destined for private use, had in fact been subsequently placed on the market and sold, and as such were not exempted from customs duties.
Besides Mr. E. and the applicant, eight customs officers were sent for trial before the Suceava County Court. The customs officers, including the applicant, were charged with taking bribes, but also with improper conduct in the exercise of their professional duties, namely in the application of the customs regulations concerning the importing into the country of the goods in question.
Some customs officers and the members of the border police were not indicted on the ground that the acts committed by them lacked intention or that they had only committed professional faults, while some of them received an administrative fine.
The evidence adduced by the prosecution included the statements of Mr. E. accusing the customs officers of taking bribes, statements which he partially withdrew later before the courts, testimonials of witnesses to the effect that E. had declared as private goods merchandise belonging to his company, a notebook belonging to E. containing inscriptions with dates when he entered the country, initials of persons (presumed to be those of the customs officers), figures placed in reference to those initials (presumed to represent amounts of money given to those customs officers), the customs forms signed by the customs officers upon each entry into Romania of E., as well as a list of telephone calls delivered by the telephone companies to the prosecution and indicating numbers called by E. and the duration of the calls during the relevant period.
4. As a result of his being sent for trial, the applicant was suspended from his public duties pending the outcome of the criminal proceedings. The National Customs Authority, the applicant’s employer, issued its decision in accordance with the provisions of section 79(2) of Law no. 188/1999 on the Regulations governing Public Servants.
5. On 9, 10 and 11 December 2003 several local newspapers published articles about the applicant’s case. The articles included the list of all the customs officers sent for trial. The newspapers did not disclose the source of their information and no public authority was cited in the articles; no direct reference to documents in the prosecution file was made.
6. During the proceedings before it, the Suceava County Court allowed further evidence to be adduced, namely documents and other testimonials. The applicant claimed his innocence, stating that he had not received any amount of money, that he had drawn up the customs forms according to the appropriate Customs Regulations and that the internal rules applied in his work provided that in order to avoid errors committed by a customs officer, random checks were to be made upon vehicles entering the country by a superior or by the border police, which had been done in the case of E. He further claimed that he could not be convicted for taking bribes in the absence of evidence that he had received undue amounts of money and that he had done so intentionally.
In his defence, he requested, among other things, that an accounting and customs report be produced to prove that the customs operations had been conducted by him in accordance with the customs regulations. The prosecution objected to the production of an expert’s report. The court rejected the request as not relevant, in so far as the file contained documents drawn up in the preliminary investigation establishing the amount of the damage.
On 1 July 2005 the Suceava County Court found the applicant guilty of all the crimes he had been charged with and sentenced him to one year of imprisonment. The sentence was suspended and he was given three years’ parole. The civil claims submitted by the Suceava General Department of Public Finance and the Iaşi Customs Department concerning alleged pecuniary damage were dismissed for belatedness.
7. The applicant appealed against this judgment. He claimed that the first-instance court had relied on evidence that was inconsistent and not sufficient to prove the charges brought against him, especially considering that Mr E. had withdrawn his statements according to which he had bribed the customs officers. The applicant also submitted that the legal classification of the alleged criminal acts was incorrect.
The parties that had submitted civil claims, namely the Suceava General Department of Public Finance and the Iaşi Customs Department also challenged the judgment with respect to their requests concerning the alleged pecuniary damage.
On 13 February 2006 the Suceava Court of Appeal upheld the first-instance judgment with regard to the applicant’s conviction and also concerning the civil claims of the public institutions.
8. Following the applicant’s appeal on points of law, on 9 November 2007 the High Court of Cassation and Justice held that the facts and the law applicable to the case had been established correctly by both the first-instance and appellate courts and that the applicant’s conviction was based on sufficient evidence and was in accordance with the law.
With reference to the civil claims in the file and considering the appeal on points of law lodged exclusively by the Suceava General Department of Public Finance, the High Court quashed the previous judgments and decided to refer the case back to the first-instance court for a new assessment, in so far as their dismissal for belatedness with respect to the appellant had not been lawful.
9. These proceedings ended on 21 May 2008, when the Suceava County Court gave its judgment, holding that the case remained without object in so far as Mr. E. had paid all the amounts owed to the State’s budget. This judgment was not challenged and on 16 June 2008 it became final.
10. Section 79 of Law no. 188/1999 concerning Regulations governing Public Servants, as in force on 11 December 2003, provides as follows:
“(1) The liability of a civil servant for offences committed in the course of his duties or in relation to his work attributions shall be established in accordance with the criminal law.
(2) In the event of criminal proceedings being initiated in personam (punerea în mişcare a acţiunii penale) concerning criminal acts such as those provided for in section 49 (h) [crimes against the State, against a public authority, concerning work relations... involving corruption or otherwise... that would disqualify the person from exercising public office], the director of the public authority or institution shall order the suspension of the civil servant from the public office he/she holds.
(3) If the criminal proceedings are terminated or if the court pronounces an acquittal or the termination of the case, the suspension ceases, and the public servant shall be reinstated to the previously held public office and all the salary rights corresponding to the suspension period shall be granted to him/her.”
11. The relevant provisions of the Romanian Criminal Code in force at the time of the relevant facts read as follows:
“(1) The act of a public servant who, either directly or indirectly, for himself or for another, claims or receives money or other undue benefits, or accepts the promise of such benefits or does not reject it, in order to perform, not to perform or to delay the accomplishment of an act with regard to his/her service duties or in order to perform an act that is contrary to these duties, shall be punished by imprisonment from 3 to 12 years and the deprivation of certain rights.
(2) The act in paragraph (1), if it has been committed by a civil servant or a person exercising a service of public interest, shall be punished by strict imprisonment from 3 to 15 years and the deprivation of certain rights.”
“The act of a public servant, who, in the exercise of service prerogatives, knowingly fails to perform an act or performs it erroneously and by so doing causes significant disturbance to the proper operation of a public authority or institution or of a legal entity, or causes damage to its property, shall be punished by imprisonment from 6 months to 5 years.”
“(1) The act of forging an official document when it is drawn up, committed by an employee in the exercise of his/her working duties, by certifying untrue acts or circumstances or by omitting, knowingly, to insert certain data or circumstances, shall be punished by imprisonment from 6 months to 5 years.
(2) Any attempt to commit such an act shall also be punished.”
12. In 2004 the Romanian Constitutional Court was seized with a plea of unconstitutionality regarding Section 65 (3) provisions of the Government Emergency Ordinance no. 360/2002 regulating the Police Officers’ Statute; the provisions, as laid out at the time, stipulated that in the event when a police officer was charged with criminal acts allegedly committed in relation with his/her job, he/she was to be suspended from his/her office, until a final judgment in the criminal proceedings was given.
In its decision delivered on 27 May 2004, the Romanian Constitutional Court held that the suspension of a police officer, as it was prescribed at the time, did not breach the presumption of innocence in so far as:
Even though the suspension from office does determine the limitation of certain rights and liberties, it cannot be considered to be in breach of the presumption of innocence. This measure is necessary for the protection of public order and for the proper administration of justice.
The suspension from office of a policeman is ordered when he/she has intentionally committed a criminal act that would make him/she incompatible with his office; it is a measure taken for the protection of the employer’s interests in its facing the danger that the illicit activity could continue and the consequences of the criminal acts could expand, the protection being accomplished by preventing similar acts to be perpetrated and by upholding the prestige of the institution.
More particulars of the domestic legislation on the Police Officers’ Statute and of the Constitutional Court’s decision are presented in the case of Calmanovici v. Romania (no. 42250/02, §§ 50-51, 1 July 2008), in which the issue of the suspension of a police officer on account of his being arrested and sent before trial for allegedly committed criminal acts was assessed by the Court under Article 8 of the Convention (§§ 134 – 139).


ITEMID: 001-78723
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ENACHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Eduard Enachi, is an Ukrainian national who was born in 1975 and lives in Soroca. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vitalie Pârlog.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested by Moldovan police, without a warrant, on Ukrainian territory, on 5 December 1998. He alleges that he was pushed into the boot of a car and transported to Moldova, where he was charged with robbery and smuggling. He also alleges that he was subjected to torture and degrading treatment during detention. He was detained on remand until 9 June 2000, when the Court of Appeal acquitted him.
The applicant brought an action against the Ministry of Finances seeking payment of compensation for non-pecuniary damage arising from the unlawful investigation and his detention on remand for nineteen months.
On 1 November 2001 the Briceni District Court ruled in favour of the applicant and awarded him 350,000 Moldovan lei (MDL) (the equivalent of 30,065.89 euros (EUR) at the time). The Ministry appealed.
On 22 January 2002 the Bălţi Regional Court dismissed the Ministry’s appeal and the latter lodged an appeal in cassation with the Court of Appeal.
By a final judgment of 11 April 2002 the Court of Appeal upheld the appeal in cassation and reduced the amount of compensation to MDL 20,000 (EUR 1,683.46).
On 17 June 2002 the Deputy Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the above-mentioned judgments and for a reduction in the amount of damages.
On 11 September 2002 the Supreme Court of Justice upheld the Deputy Prosecutor General’s request for annulment and quashed the above-mentioned judgments. The Supreme Court adopted a new judgment and awarded the applicant MDL 5,000 (EUR 377.47 at the time) in compensation for unlawful detention.
On 10 April 2006 the Government informed the Court that, following the re-opening of the proceedings, on 15 March 2006, the Supreme Court of Justice ruled in favour of the applicant and awarded him MDL 125,000 (EUR 8,058 at the time) in compensation for non-pecuniary damage as a result of his unlawful detention. It also found that there had been a breach of the applicant’s rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention as a result of the quashing of the judgment of the Supreme Court of Justice of 11 April 2002. The Supreme Court awarded him MDL 27,000 (EUR 1,740.63 at the time) in compensation for pecuniary damage suffered as a result of his unlawful detention, MDL 40,000 (EUR 2,578.72 at the time) for non-pecuniary damage suffered as a result of the violation of the applicant’s rights under the Convention and MDL 5,000 (EUR 322.34 at the time) for costs and expenses, including the applicant’s representative’s fees incurred before the Court.
The relevant domestic law was set out in Roşca v. Moldova, no. 6267/02, § 16, 22 March 2005.


ITEMID: 001-78373
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VIRJENT v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Hedigan
TEXT: 5. The applicant was born in 1956 and lives in Ljubljana.
6. The applicant was married to A.N. They divorced on 7 October 1991.
7. On 7 August 1992 the applicant instituted non-contentious civil proceedings against A.N. in the Ljubljana Basic Court, Ljubljana Unit (Temeljno sodišče v Ljubljani, Enota Ljubljana) seeking the division of their common property. To this end she submitted a proposal. Upon the request of the court, the applicant submitted an amendment to her proposal on 5 October 1992.
On 22 October and 25 March 1993 the court held a hearing where the parties settled the case in part. For the remainder of the property at issue, the court established that there was a dispute over its ownership.
On 22 October 1993 the court issued a decision referring the applicant to institute contentious civil proceedings against A.N. in order to determine the ownership of the garage (see below paragraphs 8 through 11). At the same time, the court ordered A.N. to institute contentious civil proceedings against the applicant to establish the size of his share in the apartment the parties owned jointly.
On 28 June 1994 the Convention entered into force with respect to Slovenia.
On 1 January 1995 the Ljubljana Local Court (Okrajno sodišče v Ljubljani) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
At an undetermined time, but after 9 February 2000, the Ljubljana Local Court scheduled a hearing in the non-contentious proceedings for 25 May 2001.
On 24 May 2001 the applicant informed the court that the parties had settled the remainder of the case and withdrew her proposal of 7 August 1992. Consequently, the court terminated the proceedings on 25 May 2001.
The decision was served on the applicant on 28 May 2001 and became final on 19 June 2001.
8. On 3 December 1993 A.N. instituted contentious proceedings against the applicant in the Ljubljana Basic Court, Ljubljana Unit (Temeljno sodišče v Ljubljani, Enota Ljubljana). The applicant did not institute proceedings against A.N. of which she informed the court on 15 November 1994.
On 1 January 1995 the Ljubljana District Court (Okrožno sodišče v Ljubljani) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 13 June 1995 the applicant instituted proceedings against A.N. in the Ljubljana District Court seeking equal share of their common apartment.
On 21 October 1996 the applicant requested priority treatment for her case.
On 28 November 1996 the applicant requested the court to issue an interlocutory measure prohibiting A.N. to encumber or give up the apartment.
On 5 December 1996, upon the request of A.N., the Ljubljana District Court joined both sets of proceedings and issued the interlocutory measure sought by the applicant.
On 24 January 1997 the applicant again sought priority treatment for her case. On 11 February 1997 the court informed her that her case did not require a priority treatment.
Between 26 March 1997 and 12 November 1997 the court held five hearings. It heard ten witnesses and both parties.
On 19 December 1997 the court held a hearing where the parties settled the case in part. The court issued a judgment holding that the applicant owned thirty per cent of the apartment and A.N. the rest. It also ordered A.N. to pay rent to the applicant for the time he had been using the apartment. The judgment was served on the applicant on 15 January 1998.
9. On 30 January 1998 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani). A.N. cross-appealed.
On 2 March and 15 June 1998 the applicant filed a request to speed up the proceedings. On 2 July 1998 the court informed the applicant that her case was not a matter of priority.
On 25 November 1998 the court allowed the appeals in part, found that the applicant and A.N. owned the apartment in equal shares and remitted the case in the part referring to payment of rent to the first-instance court for re-examination. The judgment was served on the applicant on 17 December 1998.
10. At an undetermined time, A.N. lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 11 November 1999 the court dismissed the appeal.
The judgment was served on the applicant on 5 January 2000.
11. On 9 February 2000 the parties settled the case in the Ljubljana District Court. The proceedings were thus terminated.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-122813
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ŠUŠTERŠIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: The applicant, Mr Matjaž Šušteršič, is a Slovenian national, who was born in 1969 and lives in Kranj. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper.
The Slovenian Government (“the Government”) are represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was serving a sentence in the closed section of Dob Prison from 25 July 2007 until 23 July 2010.
As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011.
Between 27 July 2007 and 17 June 2008 the applicant was held in cell no 2, Block 3 which measured 59.89 square metres and held fourteen inmates (4.28 square metres of personal space available to each inmate). He was later transferred several times. From 26 June 2008 to 30 July 2008, from 19 August 2008 to 28 November 2008 and from 10 July 2009 to 17 July 2010 he was held in cell no 3, Block 3 which measured 59.89 square metres and held sixteen inmates (3.74 square metres of personal space available to each inmate). From 30 July 2008 to 19 August 2008 and from 17 July 2009 to 23 July 2010 he was held in cell no 31 – 34, Block 1 which measured 32.22 to 32.39 square metres and held four inmates (8.05 to 8.09 square metres of personal space available to each inmate). From 17 June 2008 to 26 June 2008 and from 28 November 2008 to 9 July 2009 he was in a hospital room which measured 15.83 to 17.96 square metres and held three inmates (5.27 to 5.99 square metres of personal space available to each inmate).
According to the Government’s submissions there was a physical conflict on 14 November 2008 between the applicant and another prisoner, who ‘head-butted’ the applicant after the applicant had angered the prisoner by changing a television programme and pushed him away. After the incident the prisoner was transferred, disciplinary proceedings were instituted against him and the District State Prosecutor’s Office was informed of the incident. The applicant sustained a fracture of nasal bones and consequently had difficulties with breathing. He later rejected reposition of the nasal bones and the operation; however after few months he asked for a corrective operation and was referred to a plastic surgeon. Prior to the incident the applicant never informed prison staff about feeling threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner. The Government submitted the incident was therefore unpredictable for prison staff and that they could not have had prevented it. However, they reacted immediately and took the applicant to health centre for a medical examination and to general hospital for medical treatment.
As regards an incident on 9 July 2009 the Government submitted that there was a physical conflict between the applicant and another prisoner. On 5 July 2009 the other prisoner had supposedly provoked the applicant; they ended up in several fights, with the applicant allegedly hitting the other prisoner in the eye, which led to the incident on 9 July. The applicant however never informed prison staff about these fights and never informed them that he felt threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner, therefore again the incident was unpredictable and unpreventable. After the incident prison staff promptly took the applicant to a health centre for a medical examination and the same day to general hospital, where he was admitted for 24-hour medical monitoring. On the return to prison, the applicant was transferred to another section and on the request of a nurse put under higher supervision of prison guards. The other prisoner was placed in a special room under video surveillance and disciplinary and criminal proceedings were instituted against him.
After the two events, no further incidents occurred between the applicant and these two prisoners. According to the Government’s submissions on 16 June 2011 prison staff, when conflicts are detected, conduct a talk with prisoners who have conflicts and makes an official note about it. However, until the incident on 14 November 2008, no conflict between the applicant and a prisoner was detected or recorded by prison staff.
According to a doctor’s report dated 13 August 2010 the applicant was treated on seventy-five occasions, mostly for his back pain.
For the relevant domestic law and practice, see paragraphs 33-35 and 3847 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011) and Ferenc v. Slovenia (no. 6682/10, 13 March 2012).


ITEMID: 001-5087
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ITC (Isle of Man), P.S.W.H. AND A.G.S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, ITC, is an Isle of Man registered company. The second applicant was until 1988 the managing director of the first applicant. The third applicant was at all material times the director of the first applicant. The second and third applicants are British citizens, born in 1948 and 1937 respectively. The second applicant lives in Solihull, England, and the third applicant lives in Girona, Spain.
The applicants are all represented before the Court by Mr M. Maroney, a lawyer practising in the Isle of Man, United Kingdom.
A number of companies and partnerships collectively known as “Barlow Clowes” had been engaged in the operation of investment schemes since 1976. However, it was only in 1985 that the Department of Trade and Industry (“DTI”), the responsible regulatory authority for the investment and other sectors, issued Barlow Clowes with a first licence. The DTI renewed the licence in October 1986 and in October 1987.
Barlow Clowes collapsed in early 1988 with substantial losses to investors.
From early 1884 onwards there was substantial and compelling evidence that Barlow Clowes' investment schemes were fraudulent. In the applicants' submission, the DTI had been advised of the dangers to investors posed by Barlow Clowes' investment activities. The sources included the London Stock Exchange and the Treasury. Of particular importance to the applicants is the fact that in July and August 1987 the London Stock Exchange drew the DTI's attention to the existence of a relationship between Barlow Clowes and a British Virgin Islands incorporated company, Ryeman Limited. The first applicant provided Ryeman Limited with a professional administration service. None of the applicants was ever contacted by the DTI at that stage about their association with Ryeman Limited.
No action was taken by the DTI on receipt of the negative reports on Barlow Clowes and, as stated above, the company's licence was renewed in October 1986 and in October 1987.
The DTI's decision to grant and then renew the Barlow Clowes licence in the face of the evidence against the company was severely criticised in a report of the Parliamentary Commissioner for Administration (“PCA”) published on 19 December 1989. The PCA found that Barlow Clowes would not have continued in business beyond the end of 1984 if it had been properly regulated by the DTI. The PCA's conclusion was that the DTI was guilty of “significant maladministration”.
The DTI's handling of Barlow Clowes was also criticised in a report submitted in July 1995 to the Secretary of State by Inspectors appointed under the Companies Act 1985. In the Inspectors' conclusion, the DTI “did not demonstrate in relation to Barlow Clowes the characteristics of a competent regulatory authority.” Although there was some criticism of the applicants in this report, there was no finding that they had been dishonest as regards knowledge of the origins of investors' funds.
Between July 1991 and February 1992 the main associate of Barlow Clowes (P.C.) stood trial on and was convicted of various charges relating to the conduct of the investment scheme.
Following a recommendation in the PCA's report to the effect that investors in Barlow Clowes be compensated, the DTI set up a scheme under which investors who agreed to assign to the DTI their rights in relation to their investments with Barlow Clowes would receive compensation. Ninety per cent of investors accepted this offer with the result that the DTI became the principal beneficiary of any litigation aimed at recovering their investment funds.
Barlow Clowes International Limited (“BCI”), a company registered in Gibraltar, belonged to the Barlow Clowes group and held investors' monies in funds identified as Portfolios 28, 68, 33 and 39. On 8 June 1988 the Supreme Court of Gibraltar ordered BCI's liquidation and appointed H. and R. as joint liquidators. On 10 June 1988 J. replaced H. as joint liquidator and, on the same date, both H. and J. were also appointed as joint receivers and managers of the portfolios cited, as well as of any other such funds promoted by BCI.
The applicants insist that BCI was never placed in receivership and that the powers of H. and J. to act as Receivers were limited to the scope stated in the court's Order, which was restated by the Gibraltar Supreme Court as including powers to:
“ ... issue and prosecute ... in the name of [BCI] and / or in their own names in their capacity as Receivers (whether on behalf of all or any of the investors or otherwise) any proceedings in any jurisdiction which the Receivers may think expedient or desirable in relation to the collection, recovery and management of any of the assets comprised in the receivership or otherwise in relation to the receivership ... .”
The representatives of J. and H., the Receivers, made enquiries with the second and third applicants about the affairs of Ryeman Limited soon after their appointment. According to the applicants, they co-operated fully with these enquiries. However, J. asserted in the press that the money belonging to Barlow Clowes had been improperly transferred to the Isle of Man and named the applicants in this connection. Subsequent press reporting on the subject had a damaging effect on the applicants' business, as well as their professional and personal reputations. The first applicant ceased to trade by 31 December 1989 as a result of persistent adverse publicity.
On 21 July 1988 the Receivers petitioned the High Court of Justice of the Isle of Man (“the Manx High Court”) for an ex parte order against inter alia Ryeman Limited and the first applicant on the basis that the sum of GBP 7,000,000 belonging to BCI investors had been misappropriated. ITC was joined as a party for the purpose of obtaining documents and no substantive relief was sought against it.
On 22 July 1988 the Manx High Court made an interim order restraining Ryeman Limited from removing any of its assets from outside its jurisdiction or otherwise disposing of its assets. The Order applied to the second and third applicants since they were deemed to be agents of Ryeman Limited on account of the fact that they were joint authorised security signatories on Ryeman's bank accounts in the Isle of Man. The court also ordered that the first applicant's solicitors permit the Receivers or their representatives to enter their offices and to search for and remove any documents relating to Ryeman Limited. Under the terms of the Order the Receivers were authorised to use any such documents for the purposes of their intended action against, inter alia, Ryeman Limited and the first applicant, and for investigating, tracing or making proprietary claims in other jurisdictions.
By summons issued on 8 August 1988, the Receivers commenced an action (CH 1988/27) against Ryeman Limited, the first applicant and its solicitors and four banks. The only claim against ITC was for discovery of documents.
On 16 August 1988 the Manx High Court granted the Receiver's ex parte request for an interim order against a certain C. who had been closely connected with the running of Barlow Clowes. It was alleged by the Receivers that C. owned and controlled Ryeman Limited and must have appreciated that the funds which he received either directly or through Ryeman Limited were the proceeds of the misapplication of BCI's investors' funds. The Receivers further alleged that a sum of money belonging to BCI investors had been transferred on 3 March 1987 from the first applicant's account to Ryeman Limited's account on the instructions of the second and third applicants.
Also on 16 August 1988 a copy of the Manx High Court's Order of 22 July 1988 was served on the first applicant's solicitors. Pursuant to the terms of the Order the first applicant's solicitors delivered up documents relating to Ryeman Limited and the applicants. The applicants maintain that they did not receive copies of any documents either seized or handed over voluntarily until May 1995, and that the final copies were not returned until 14 January 1998.
On 16 September 1988 the Manx High Court made an Order in favour of the Receivers and on an ex parte application by them. The Order empowered the Receivers to provide the Serious Fraud Office with documents obtained from the first applicant's solicitors. On the same date the court amended its Order of 22 July 1988 so as to stipulate that any information disclosed under that Order be only used against the first applicant or its solicitors with the leave of the court. According to the applicants the terms of the amended Order indicated that one of the purposes for which the Receivers obtained the Order of 22 July 1988 was to obtain documents for use against the first applicant.
On 25 April 1990 the Manx High Court made two Orders on the application of the Receivers. Both Orders permitted the Receivers to disclose the documents which they had obtained from the first applicant's solicitors to DTI officials, provided the latter gave an undertaking as to the purposes for which the documents would be used. The Orders were later replaced by a new Order dated 21 October 1990 which committed a DTI official to undertake that any information lawfully disclosed by the Receivers would not be used in any proceedings against, inter alia, the first applicant without the leave of the court, and that no such information would be communicated to any other DTI official unless the latter gave a similar written undertaking.
On 15 November 1990 the first applicant and its solicitors applied for an Order striking out action CH 1988/27 for want of prosecution. On 21 November 1990 the Manx High Court, with the consent of the parties, ordered that the proceedings be stayed, subject to respect by the Receivers of the above-mentioned undertaking.
Between November 1990 and March 1993 neither the Receivers nor the DTI took any further steps in action CH 1988/27 or in other proceedings against the applicants.
On 3 March 1993 the Receivers issued a summons against the first applicant in the Manx High Court in which they claimed damages for breach of constructive trust on the part of the first applicant in relation to the sum of GBP 1,886,415 which it had received and transferred on the instructions of the second and third applicants to the account of Ryeman Limited on 3 March 1987. This action was listed as Action CLA 1993/43.
On 16 June 1993 the Receivers commenced another action (Action CLA 1993/120) in the Manx High Court against the first applicant in which they claimed damages for breach of constructive trust in relation to the sum of GBP 7,000,000 received by Ryeman Limited on 17 June 1987.
On 24 February 1994 the Manx High Court granted the Receiver's ex parte application to join the second and third applicants to the proceedings against the first applicant.
Summonses were eventually served without prior notice on the first and second applicants on 28 February 1994, almost seven years after the impugned transactions of 3 March and 17 June 1987 and over five and a half years after the Receivers first commenced proceedings against the first applicant. The Receivers were granted leave to serve a summons on the third applicant out of the jurisdiction of the Manx High Court since the third applicant, on account of the adverse publicity to which he had been subjected as a result of the Receivers' investigation, had taken up residence in Spain. The summons was served on the third applicant in January 1995.
On 29 April 1994 the Receivers served a consolidated statement of case following the decision of the Manx High Court to join Actions CLA 1993/43 and CLA 1993/120. The consolidated statement of case contained allegations dating back to events which had occurred in May 1986.
On 19 July 1994 the first and second applicants applied for the consolidated action to be struck out on grounds of abuse of process and want of prosecution. They also requested that the Order of 24 February 1994 adding the second and third applicants to the action be set aside since the six-year limitation period contained in section 21 (3) of the Manx Limitation Act 1984 had expired.
On 20 and 21 March 1995 the Manx High Court heard argument on the applicants' striking out application. On 4 May 1995 His Honour Deemster Corrin ruled that the application was refused. Nevertheless, the judge stated that he was sympathetic to the plight of the applicants given that the subject matter of the 1993 proceedings could well have been initiated against them in 1988. However, he expressed the view that:
“... the plain fact is that the 1988 proceedings have never been adjudicated upon and the 1993 proceedings specify, for the first time, the substantive claims against [the applicants]. This court therefore, in its discretion, is not prepared to strike out the 1993 proceedings. ...”.
In the judge's opinion the period of inaction by the Receivers, between 3 March 1993 and 28 February 1994, amounted to a period of inordinate and inexcusable delay. However, with reference to the rules of court, the judge concluded that he had no option but to hold that a plaintiff was permitted to wait for twelve months after commencing an action before serving a summons or even informing the latter that the summons had been issued. Furthermore, he observed that it was likely that there had been a breach of undertakings as to the use to be made of the documents obtained from the first applicant's solicitors, since they may well have been used to prepare the consolidated statement of claim. However, the judge did not regard the breaches in a serious light.
On 8 July 1996 the Manx High Court heard two applications arising out of the fact that the Receivers had incorrectly described themselves as Receivers and Managers of BCI in the summonses initiating Actions CLA 1993/43 and CLA 1993/120, since BCI had never in fact been placed in receivership. Although resisted by the applicants, His Honour Deemster Corrin granted the Receivers leave on 9 July 1996 to amend the consolidated statement of claim in order to correct the errors in the summonses.
On 26 July 1996 His Honour Deemster Corrin dismissed the applicants' application to set aside the Order of 24 February 1994, on the grounds that section 21(3) of the Manx Limitation Act 1984 did not apply to the claims against the second and third applicants.
On 31 May 1995 the applicants appealed to the Manx Court of Appeal against the judge's ruling on the striking-out application and, on 8 August 1996, against the rulings handed down on 9 and 26 July 1996.
Over a period of seven days, between 1 December 1997 and 14 January 1998, the Manx Court of Appeal heard argument on the merits of the applicants' appeals including a new contention that the consolidated action could not be maintained unless the DTI, the principal beneficiary of the action, was a party to it.
On 31 March 1998 the Manx Court of Appeal dismissed the applicants' appeals. It found that His Honour Deemster Corrin had jurisdiction to rectify the error in the description of the Receivers in the initial summonses and that he had properly exercised his discretion to correct a bona fide misdescription of which the applicants were well aware and which had caused them no prejudice. On the limitation point, the Court of Appeal reviewed the relevant domestic and Commonwealth authorities, as well as legal literature in this area, including that on constructive trusts and fraud on pre-existing trusts, and concluded that the action against the second and third applicants was not statute-barred as alleged.
As to the applicants' argument that the delay in bringing the proceedings justified dismissal of the action for want of prosecution, the Court of Appeal noted that the applicants conceded that the only period of delay to be considered was that between 3 March 1993 and 28 February 1994, that this delay related only to the first applicant and that the second and third applicants did not contend that there was any inordinate or inexcusable delay in serving summonses on them. The Court of Appeal stated:
“It seems to us plain that [the first applicant] was not served with all convenient speed. Such summonses should have been served promptly and manifestly they were not. We think it beyond any doubt that the delay relied on by the [applicants] was both inordinate and inexcusable. Deemster Corrin found that the 'the period of inaction by the [Receivers] between 3 March 1993 and 28 February 1984 amounted to a period of inordinate and inexcusable delay'. We agree with him save only that (a) in respect of the second summons against the [first applicant] the period could only begin on 16 June 1993 when it was issued and (b) in respect of both summonses the period of such delay should be reduced to reflect a relatively short time during which the summonses could have been served with all convenient speed.”
The Court of Appeal next considered whether in the case of the first applicant such delay could prejudice its right to a fair hearing. The Court of Appeal took note of the applicants' submissions that the recollection of the second and third applicants as to the events in 1987 would be impaired with the result that the value of their oral testimony at the hearing would be diminished. In addition, the person responsible for the affairs of Ryeman Limited and who was at the centre of one of the impugned transactions had died in 1992. In consequence a vital witness had been lost through the delay. The Court of Appeal rejected these submissions. It considered inter alia that on the facts of the case the issues would largely turn on documentary evidence and that recollections as to whether the transactions, which were substantial, were regarded as proper were most unlikely to be diminished. Accordingly, the Court of Appeal, agreeing with the conclusion of His Honour Deemster Corrin on this issue, was satisfied that a fair hearing was possible.
The Court of Appeal also rejected the applicants' argument that the 1993 action should be struck out on the ground that it could have been brought within the 1988 action. In the Court of Appeal's view the High Court judge was correct to rule that, with respect to the first applicant, the 1988 action only related to the production of documents and that the second and third applicants were never parties to that action.
The Court of Appeal further ruled that the delay, even if inexcusable, could not be considered an abuse of process. In addition, the court found that while there had been a breach of the undertakings entered into by the Receivers in that the documents obtained from the first applicant had been used to formulate the statement of case in the proceedings, the breach was not of a serious nature and that no significant prejudice would be caused to the applicants since they would in any event be obliged to disclose all their documents on discovery. Finally, the Court of Appeal rejected the applicants' submission that the DTI was the assignee of the litigation and, given their absence from the proceedings, the action was improperly constituted. In the court's opinion, and with reference to the Order made by the Supreme Court of Gibraltar, the Receivers had properly brought the proceedings in a representative capacity on behalf of all investors, not just those who had assigned their rights to the DTI, and the Receivers operated with the authority to compromise the action, again on behalf of all investors.
On 30 June 1998 the Privy Council, without giving reasons, refused the applicants' application for leave to appeal.
The second and third applicants renewed their application for leave to appeal to the Privy Council on the strength of an English Court of Appeal judgment delivered on 21 July 1998 wherein it was stated that the Manx Court of Appeal appeared to have misunderstood one of the decided cases on which it relied in interpreting the limitation point under section 21 (3) of the Manx Limitation Act 1984.
On 2 November 1998 the Privy Council, without giving reasons, refused the second and third applicants' renewed application.


ITEMID: 001-69831
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF YAVORIVSKAYA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1965 and lives in Ternopil, Ukraine.
9. From 1996 to 2000 the applicant and her family lived and worked in the Chukotka Region in the Russian Federation.
10. In the winter of 1998 the applicant was taken to a hospital in the town of Bilibino. According to the applicant, local doctors failed to diagnose her correctly and provide adequate treatment; as a result her health was seriously damaged.
11. In August 1998 the applicant brought a medical malpractice suit against the municipal health protection institution “Bilibino Central District Hospital” (муниципальное учреждение здравоохранения «Билибинская центральная районная больница»).
12. On 21 February 2000 the Bilibinskiy District Court of the Chukotka Region allowed the applicant's action and awarded her RUR 60,000 (EUR 2,109). The judgment was not appealed against and on 1 March 2000 it became final and enforceable.
13. After the hospital had failed to pay the judgment debt for over a year the applicant sent complaints to the President of the Russian Federation, the Minister of Health, the Court Bailiffs' Service and other authorities.
14. On 15 November 2001 the Chukotka Regional Department of the Ministry of Justice (in charge of the court bailiffs) advised the applicant as follows:
“...it was established that the debtor had no cash funds in its accounts. According to its founding documents, the debtor is an institution and, pursuant to Article 120 of the Civil Code, an institution is only liable to the extent of its cash funds. Article 298 § 1 of the Civil Code provides that an institution may not alienate or otherwise dispose of the property attached to it or of the property acquired at the expense [of its owner].
In accordance with Information Letter no. 45 of the Presidium of the Supreme Commercial Court of the Russian Federation of 14 July 1999 'On the recovery out of the property of an institution', if the debtor, who is an institution, lacks cash funds, then recovery is not possible out of the other property assigned to the institution by its owner...”
15. The Justice Department further informed the applicant that the enforcement proceedings had been closed on 30 November 2000 because the enforcement had been impossible, but it was open for the applicant to initiate the enforcement proceedings again.
16. On 29 November 2001 the Chukotka Regional Department of the Ministry of Justice forwarded the applicant's complaint to the chief court bailiff of the Bilibino District, for enforcement.
17. On 10 December 2001 the Chukotka Regional Department of the Ministry of Justice responded to the applicant and gave the same explanation as in the letter of 15 November 2001. It also added that in respect of the hospital there were several other enforcement proceedings having the first and second rank, whilst the applicant's claim only had the fifth rank.
18. On 18 January 2002 a court bailiff confirmed again that the hospital had no cash funds and that the recovery could not be made out of its property.
19. On 28 January 2002 the bailiff required the Bilibino clearing centre to seize the cash funds of the hospital.
20. On 6 February 2002 the bailiff determined that the enforcement was not possible due to the debtor's lack of funds. The enforcement proceedings were definitively closed and the writ of execution was returned to the applicant.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-96093
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TAAVITSAINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1971 and lives in Tampere.
5. On 16 June 2001 the police searched the applicant's apartment on account of a suspicion that it had been used for procuring. On 26 June 2001 she was questioned as a suspect. On 11 August 2001 the pre-trial investigation was completed.
6. On 23 August 2001 the public prosecutor preferred charges against the applicant for procuring, allegedly committed during the period from 4 to 11 June 2001.
7. On an unspecified date the applicant was summoned to appear before the Tampere District Court (käräjäoikeus, tingsrätten) at a hearing which was to take place on 6 March 2002.
8. However, the hearing was cancelled owing to the fact that Ms H., a witness, had failed to appear before the court although lawfully summoned to do so. Another witness, Ms M., had not been summoned. Both witnesses were Estonian citizens. The hearing of the case was postponed until 12 August 2002 and Ms H. was summoned to appear before the court on pain of a fine of 650 euros (EUR).
9. On 12 August 2002 the District Court noted that the above-mentioned witnesses had failed to appear before it although lawfully summoned. The court adjourned the case until 11 December 2002 and decided to summon the witnesses on pain of a fine of EUR 800 each.
10. On 11 December 2002 the District Court noted that the witnesses had not been summoned, postponed the hearing of the case until 1 December 2003 and decided that the witnesses should be summoned to appear before it on pain of a fine of EUR 800 each. The court also issued warrants for their arrest.
11. On 1 December 2003 the District Court again noted that the witnesses had not been summoned, adjourned the case until 26 May 2004 and decided that the witnesses should be summoned to appear on pain of a fine of EUR 800 each. The court also issued warrants for their arrest.
12. On 26 May 2004 the District court noted that Ms M. had not been summoned and that Ms H. had been summoned but failed to appear. It postponed the hearing of the case until 8 December 2004, issued warrants for their arrest and decided that they should be brought to court.
13. On 8 December 2004 the District Court noted that the witnesses had not been found. The case was adjourned until further notice.
14. According to the Government, seven more attempts were made by the District Court to hold an oral hearing between 2005 and 2008. These attempts proved unsuccessful, as the witnesses could not be brought before the court in Finland.
15. In January 2008 the District Court contacted the Finnish liaison prosecutor in Estonia to explore the possibility of arranging the hearing of the witnesses through a video link.
16. In the autumn of 2008 the District Court received video-conferencing equipment. On 9 January 2009 the District Court issued a request for international legal assistance to Estonia to have the hearing by video link arranged.
17. On 23 February 2009 the District Court held its oral hearing. The applicant argued that the proceedings had exceeded a reasonable time and were thus in breach of the Convention. In consequence, the charges against her should be dismissed. The court rejected the applicant's argument. It acknowledged that the proceedings had been delayed but noted that the delay had resulted from the unsuccessful attempts to bring the crucial witnesses before the court. It was only after the Tampere District Court was provided with video-conferencing equipment that the hearing could be held and the court was able to receive testimony from the witnesses in their own country.
18. On 3 March 2009 the District Court gave its judgment. It found that, between 4 and 11 June 2001, the applicant had provided an apartment for the practice of prostitution for two women and gained from that arrangement. It convicted the applicant of procuring and sentenced her to 30 unit fines. It also ordered her to pay the State 1,681.87 euros (EUR) representing the proceeds of the offence.
19. In assessing the gravity of the offence the court noted that the two women who had occupied the applicant's apartment had not been controlled by her, but had provided sexual services of their own free will. The court again acknowledged the excessive length of the proceedings, noting that it was not attributable to the applicant. Relying on Chapter 6, Article 7 of the Penal Code (rikoslaki, strafflagen) it stated that she was entitled to redress for the delay, which could be awarded either by choosing a more lenient type of punishment or by reducing the sentence. The court went on to state that the applicant had been found guilty of fairly small-scale unorganised procuring. It also took into account the short period of time over which the offence had been committed and the small amount of proceeds obtained. For those reasons, and due to the length of the proceedings, the court concluded that the applicant should be sentenced to a fine. The court also took into account the delay in the proceedings in the amount of the unit fines, without specifying the reduction in the sentence.
20. No appeals were filed with the Court of Appeal (hovioikeus, hovrätten) and the judgment gained legal force on 11 March 2009.
21. Chapter 6, Article 7 of the Penal Code, as amended by Act No. 515/2003, which took effect on 1 January 2004, reads in relevant parts:
“In addition to what is provided above in Article 6, grounds for mitigating the sentence that are also to be taken into consideration are
...
(3) a considerably long period that has passed since the commission of the offence;
if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.”
22. The sanction for procuring provided by the Penal Code runs from one unit fine to three years' imprisonment (Chapter 2a, Article 1(1) and Chapter 20, Article 9 (1)).
23. Chapter 17, Article 34a of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as amended by Act no. 360/2003, which came into force on 1 October 2003, provides the following:
“A witness...may be heard in the oral hearing without his or her appearance in person with the use of a video conference of other appropriate technical means of communication, where the persons participating in the hearing have an audio and video link with one another, if the court deems that this is suitable and:
1) the person to be heard cannot, due to illness or another reason, appear in person in the oral hearing, or his or her personal appearance in proportion to the significance of the testimony would cause unreasonable costs or unreasonable inconvenience;
2) the credibility of the statement of the person to be heard can be reliably assessed without his or her personal appearance at the oral hearing;
3) the procedure is necessary in order to protect the person to be heard or a person related to him or her in the manner referred to in Chapter 15, Article 10 (2) of the Penal Code, from a threat directed at life or health; or
4) the person to be heard has not reached the age of 15 years or he or she is mentally incapacitated.
A party shall be given an opportunity to put questions to the person being heard.
In the cases referred to above in points 1 and 2 of paragraph 1, however, a telephone may also be used at the hearing.”
VIOLATED_ARTICLES: 13
6