ITEMID: 001-91756
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VERGELSKYY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1936 and lives in Romny.
6. After last being seen in the applicant’s house on 7 June 2003, Mr O.S., the applicant’s acquaintance, disappeared. On several occasions between June 2003 and March 2004 the applicant explained to the police that he was unaware of Mr O.S.’s whereabouts following his departure from the house.
7. On 11 June 2003 the police seized from the applicant’s house a knife and several objects spotted with a brown substance. According to an expert assessment obtained in March 2004, these spots were human blood that probably belonged to Mr O.S.
8. On 27 March 2004 the applicant confessed that he had accidentally killed Mr O.S during a drinking party. He had then dismembered the body, packed it in sacks and disposed of it in the Romenka River. On the same date criminal proceedings were instituted against him on suspicion of murder. The applicant was taken to the river bank to point out the place where he had dumped the sacks. However, no body parts were found.
9. On 30 March 2004 the applicant was detained as a criminal suspect.
10. On 6 April 2004 the investigator brought formal charges against the applicant for murder.
11. On 9 April 2004 the applicant was released after giving an undertaking not to abscond.
12. On 16 April 2004 the applicant informed the Town and the Regional Prosecutor that he had confessed to having killed Mr O.S. under torture. He further submitted that in reality Mr O.S. had apparently been killed by two masked robbers, who had broken into his house during the drinking party on 7 June 2003 and knocked the applicant unconscious. He had kept this story secret fearing reprisals by the robbers.
13. Between April and December 2004, on some four occasions, criminal proceedings against the applicant were suspended for periods ranging from several days to some three months on account of his ill-health or for unexplained reasons. At the same time, certain investigative actions, such as the examination of witnesses, were carried out during the periods when the investigation was officially suspended.
14. On 21 January 2005 the applicant was committed for trial.
15. Between February and July 2005 the prosecution withdrew the case file from the court on four occasions for the rectification of procedural omissions. On 1 August 2005 the applicant was committed for trial for the fifth time.
16. On 8 August 2005 human bones were retrieved from the Romenka River. On the same day the prosecution withdrew the case file from the court in order to verify whether these bones belonged to Mr O.S.
17. On 12 August 2005 the Town Court authorised the applicant to be remanded in custody for ten days.
18. On 19 August 2005 the Town Court, following a hearing held in the presence of the applicant and his lawyer, authorised that pending the outcome of pre-trial investigation the applicant be detained for a maximum period of two months, on the grounds that there was a serious suspicion that he had committed the offence with which he had been charged and that during the pre-trial proceedings he had changed his place of residence and attempted to influence a witness.
19. On 2 September 2005 the Town Prosecutor refused an application for bail lodged by the applicant. On the same date the Town Court informed the applicant that it was not competent to deal with bail applications while the case was at the investigation stage.
20. On 23 September 2005 the case file and a new bill of indictment were sent to the Town Court.
21. On 3 October 2005 the prosecutor withdrew the case for the rectification of omissions. The case was referred back to the Town Court on 4 October 2005.
22. On 13 October 2005 the Town Court scheduled the case for trial proceedings, reviewed the decision to hold the applicant in custody and found no reason to release him. In November 2005 the Town Court held five hearings.
23. On 24 November 2005 the Town Court decided that further investigations were called for and remitted the case to the prosecution. On the same date the court rejected an application by the applicant for his release on bail and authorised his detention pending the above-mentioned investigations.
24. The applicant appealed against the decision to extend his detention. On 7 December 2005 the Sumy Regional Court of Appeal (Апеляційний суд Сумської області, hereafter “the Court of Appeal”) found that it was not competent under the law to deal with this appeal.
25. On 18 January 2006 the case was referred back to the Town Court for trial.
26. Between March and June 2006 the Town Court scheduled ten hearings. Three of them were adjourned on account of the prosecutor’s failure to appear. One was adjourned on account of the failure to appear by the prosecutor and the applicant’s lawyer.
27. On 17 May 2006 the Town Court ordered the applicant’s release on bail.
28. On 5 June 2006 the Town Court ordered an additional assessment to be carried out by a genetics expert.
29. On 31 October 2006 the Town Court requested the expert to expedite the assessment.
30. On 16 November 2006 the expert assessment was carried out and on 12 December 2006 the report was delivered to the Town Court.
31. On 29 December 2006 the hearing was adjourned until 25 January 2006 to summon experts. The experts failed to appear on this date.
32. On 26 January 2007 the Town Court reminded the experts of their obligation to appear at hearings.
33. On 19 February 2007 the Town Court examined two experts and a witness and ordered a further assessment by a commission of experts.
34. On 22 February 2007 the Town Court addressed the prosecutor by letter demanding the submission of material evidence for expert assessment. On 5 March 2007 the Town Court sent a reminder.
35. On 17 April 2007 the Town Court made enquires of the expert as to the status of the assessment.
36. On 5 May 2007 the assessment was carried out.
37. Between June and October 2007 the Town Court scheduled six hearings. Two of them were adjourned on account of the prosecutor’s failure to appear. By letters of 28 August and 4 October 2007 the Town Court reminded the prosecutor of his duty to appear for hearings.
38. On 12 October 2007 the Town Court remitted the case for additional investigation. The Town Court referred, in particular, to the failure of the prosecution to carry out a comprehensive inquiry into the applicant’s allegation that he had confessed to the killing of Mr O.S. under duress.
39. On 20 December 2007 the Court of Appeal quashed this decision, having found that the shortcomings of the investigation of the murder were such that they could be addressed at the trial stage by examination of witnesses and other evidence in court.
40. On 10 June 2008 the Town Court remitted the case for additional investigation, referring to numerous procedural shortcomings in the carrying out of the investigation, the handling of evidence and the drafting of procedural documents. The court noted, in particular, that the investigation had been suspended on several occasions for no reason or in connection with the applicant’s ill-health, despite the fact that there was no relevant medical documentation attached. Furthermore, during these periods the authorities continued with their investigations.
41. According to the case file materials, the proceedings are currently pending.
42. According to the applicant, on 19 March 2004 he visited public baths with Messrs V.B. and V.S., his relatives.
43. Shortly after 10 a.m., immediately after he had returned home, the applicant was seized by two police officers and taken to the Romny Police Department (Роменський міськрайонний відділ УМВС України в Сумський області, hereafter “the Police Department”). There the police officers beat him with their fists and truncheons and stamped on his feet, demanding that he confess to the killing of Mr O.S. At about 3 a.m. on 20 March 2004 the applicant, completely exhausted, fell unconscious and was placed in a police cell for temporary detainees.
44. Shortly after 3 a.m. an ambulance arrived. The applicant complained about pain in the heart and a headache and was administered treatment for low blood pressure. The applicant was further detained.
45. On 22 March 2004 investigator I.S. proposed that the applicant sign an acknowledgement that he had been properly arrested on 20 March 2004 for swearing in public and that he had no claims against the police. The applicant agreed, allegedly hoping that his suffering would end.
46. On 22 March 2004 the applicant was brought before the Town Court, which sentenced him to seven days’ administrative arrest (адміністративний арешт) in the Centre for Temporary Detention (Ізолятор тимчасового тримання, hereafter “the ITT”) for petty hooliganism on 20 March 2004.
47. According to the applicant, each day he was taken to the Police Department, beaten, threatened and urged to confess to the killing. On 24 March 2004 the applicant told the police that Mr O.S. had apparently been killed by two masked robbers. However, the officers continued to demand that the applicant confess that Mr O.S. had been killed by him. As the last day of the applicant’s detention approached, the pressure was intensified. On 27 March 2004 the applicant pleaded guilty to the murder of Mr O.S.
48. On the evening of 27 March 2004 the applicant was formally released. However, the police in fact continued to keep him in some vacant offices in the Police Department, until on 30 March 2004 he was officially detained as a criminal suspect.
49. On 6 April 2004 the applicant underwent an assessment by a medical expert of the Romny Bureau of Forensic Medical Examinations (Роменське бюро судово-медичних експертиз). The examination revealed some eight large bruises (about 15x10 cm each) in the applicant’s groin area, on his thighs and shoulders. The expert concluded that these bruises could have resulted from a beating as well as from a fall. He further found it impossible to determine the probable date on which the bruises had been sustained, as they could remain on the body for up to one and a half months.
50. On 9 April 2004 the applicant was admitted to hospital on account of stress-associated asthenia (a personality disorder, characterised, in particular, by insomnia, anxiety, headache and bodily weakness). On 19 April 2004 the applicant returned home.
51. On 31 January 2008 a commission of experts analysed the medical documents relating to the applicant’s injuries. It confirmed the earlier findings by the single expert and noted that, regard being had to the number of bruises and their diverse localisation; they were unlikely to result from a single fall.
52. On 16 April 2004 the applicant lodged a criminal complaint against police officers for ill-treatment. The complaint was addressed to the Romny Town and Sumy Regional Prosecutors.
53. On 13 July 2004, on the basis of the statements of four police officers denying subjecting the applicant to any ill-treatment and the fact that during his questioning as a suspect on 1 April 2004 the applicant had not complained of any police violence, no prima facie case of ill-treatment was found and the inquiry into the applicant’s complaint was discontinued.
54. On 14 December 2004 the applicant was given access to the above decision. On 20 December 2004 he challenged it before the Town Court.
55. On 24 January 2005 the Town Court quashed the decision of 13 July 2004, finding that further inquiries were called for. It noted, in particular, that the police officers had been questioned before the formal commencement of the inquiry. Moreover, the investigator had failed to question persons listed in the applicant’s complaint who could allegedly confirm the applicant’s ill-treatment; to examine the circumstances of the applicant’s stay at the Police Department before his official arrest; or to determine how the applicant had sustained his injuries.
56. On 14 February 2005 the investigator decided that there was no prima facie case of ill-treatment.
57. On 26 April 2005 the Town Court quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in its decision of 24 January 2005.
58. In the course of the additional inquiry, the Prosecutors’ Office questioned the officers who had called the ambulance for the applicant on 20 March 2004, who could not recall any details; the members of the voluntary citizens’ guard, who confirmed having arrested the applicant at 4 p.m.; the ambulance doctor, who stated that she had not examined the applicant’s body on account of injuries; and the medical expert, who confirmed the findings of his assessment of 6 April 2004. On 15 May 2005 on the basis of this evidence and on the grounds set out in the decision of 13 July 2004, a fresh decision was taken not to initiate any criminal proceedings.
59. On 8 August 2005 this decision was quashed by the Town Court. The court found that the inquiries had been conducted in a perfunctory manner. It instructed the investigating authorities, in particular, to question the persons who had seen the applicant on 19 March 2004 at the public baths; the persons who had shared the cell with the applicant in ITT; and the applicant’s neighbours.
60. On 9 September 2005 it was decided not to institute criminal proceedings with reference to essentially the same grounds as before.
61. On 28 October 2005 the Town Court found that the prosecution had failed to comply with its earlier instructions. Referring to the case of Kmetty v. Hungary (no. 57967/00, 16 December 2003), the court noted that the prosecution had a duty to determine whether the applicant had sustained injuries resulting from his treatment by the police.
62. The Town Prosecutor’s Office appealed against the court’s decision.
63. On 27 December 2005 the Court of Appeal rejected the prosecution’s appeal and upheld the decision of 28 October 2005.
64. On 16 January, 12 March, 15 May, 13 August and 19 December 2006 the Prosecutors’ Office again refused to institute criminal proceedings.
65. On 24 February, 20 April, 31 July, 24 November 2006 and 16 January 2007 respectively the Town Court quashed these decisions referring to the cursory analysis of various sources of evidence and the failure of the investigation to establish a probable cause of the applicant’s injuries.
66. On 7 March 2007 a new decision not to institute criminal proceedings was taken. It was based on essentially the same evidence as before. Additionally, the investigator also explained why, in his opinion, further measures demanded by the court were either unavailable or irrelevant. For instance, it was no longer possible to find the objects with which the applicant could have purportedly been beaten.
67. On 12 April 2007 the Town Court quashed this decision.
68. By its subsequent decisions dated 10 May 2007 and 23 August 2007 the Prosecutors’ Office further refused to institute criminal proceedings.
69. These decisions were annulled by the Town Court on 21 June 2007 (upheld on appeal on 31 July 2007) and 25 September 2007 (upheld on 16 October 2007), respectively.
70. On 18 February 2008 the Prosecutors’ Office yet again refused to institute criminal proceedings. In addition to the reasons recited earlier, this decision referred, in particular, to the testimonies of Messrs V.B. and V.S. who stated that they had seen no injuries on the applicant’s body in the public baths. The prosecution found this evidence unreliable, since the witnesses were related to the applicant. Moreover, according to the attendant at the baths, she did not remember ever having seen the applicant in the public baths. As regards the testimonies by the applicant’s neighbours, they clearly recalled seeing him back at home on 19 April 2004. Their recollections concerning his presence at home between 19 March and 19 April 2004 were blurred.
71. The Prosecutors’ Office further stated that according to the Police Department visits journal, the applicant had entered the Police Department at 10:35 a.m. on 19 March 2004. The journal contained no record of his subsequent departure, apparently as a result of the fact that the door guard forgot to make the relevant entry. On that date the applicant was questioned by investigator I.S. about Mr O.S.’s disappearance. After the questioning, the applicant felt ill and was offered to stay in a police cell to recuperate. On 20 March 2004 at 3 a.m. an ambulance arrived to treat the applicant for blood-pressure complaints. Subsequently he felt better and left the cell by 8 a.m. on 20 March 2004. At about 4 p.m. on 20 March 2004 members of the voluntary citizens’ guard (ГФ «Громадський правопорядок») spotted the applicant who, apparently under the influence of alcohol, was swearing in a public street. As the applicant refused to cease his disorderly conduct in response to their demands, the guards took him to the Police Department. A report of an administrative offence was drafted and the applicant was detained in the ITT. According to applicable regulations, the staff of the ITT should have organised a medical examination of the applicant to detect any injuries or sickness before placing him in the ITT. No injuries were recorded on his body. However, since the applicant lodged no health-related complaints, the examination could have been cursory. In this connection it was not possible to rule out that the applicant’s bruises could have been sustained by a fall on 20 March 2004, shortly before he had been taken to the police, as at the time he was apparently under the influence of alcohol. At the same time, the applicant’s alcohol level was not checked, as he was not charged with being drunk in a public place. Between 22 and 27 March 2004 the applicant was daily checked out from his cell by officer I.S. for several hours at a time. These check-outs were for the purposes of the applicant’s engagement in community service or for discussions on public morale. On 27 March 2004 the applicant voluntarily confessed to having killed Mr O.S. The same day at 7 p.m. the applicant was released.
72. On 13 June 2008 the Town Court quashed this decision, referring to the fact that the investigation had still failed to comply with all its instructions and in order to determine whether the State was responsible for the applicant’s injuries.
73. On three occasions in the course of the investigation (in October 2005, April 2006 and April 2007 the Town Court also separately addressed the Prosecutors’ Office instructing it to take measures in respect of the continued non-execution of the court’s instructions by the investigating authorities. Referring to the cases of Kmetty v. Hungary (cited above) and Afanasyev v. Ukraine, (no. 38722/02, 5 April 2005) the court found that the criminal inquiry conducted had not been sufficiently thorough.
74. On 3 July 2008 the Sumy Regional Court of Appeal quashed the decision of 13 June 2008 and remitted the case for fresh consideration in first instance. According to the case-file materials, the proceedings are currently pending.
75. From 19 August 2005 to 17 May 2006 the applicant was remanded in custody. During certain periods the applicant was held in the Sumy Regional Pre-Trial Detention Centre (Сумський слідчий ізолятор, hereafter “the Sumy SIZO”). These periods were as follows: 26 September to 3 October 2005; 17 to 24 October 2005; 7 to 21 November 2005, 6 December 2005 to 5 January 2006; 14 to 20 February 2006; 6 to 13 March 2006; 15 March to 3 April 2006 and 25 April to 15 May 2006. The remainder of the time the applicant was held in the Romny ITT.
76. In August 2005 the authorities were informed that he suffered from several chronic conditions, in particular, osteochondrosis, secondary radicular syndrome, myopia, cerebral atherosclerosis, hypertension and adenoma of the prostate.
77. According to the applicant, being in detention had negative effects on his health. In particular, he began suffering from an asthmatic complaint as a consequence of being exposed to passive smoking in the cell. Furthermore, good quality medical assistance was not always readily available to him, even though he was suffering from numerous chronic conditions. Finally, medications were frequently supplied to the applicant by his sister, as the detention facility lacked them. Sometimes his sister was not informed in good time that further medications were needed.
78. In November 2005 the applicant consulted a doctor and was treated for allergic dermatitis.
79. In March 2005 the applicant consulted a doctor and was treated for cystitis.
80. On seven occasions throughout the period of his detention the applicant was tested for tuberculosis and other infections.
81. After his release and until the end of 2006 the applicant was treated in hospital twice: between 26 June and 7 July for dermophitia and between 10 and 21 October 2006 for adenoma.
82. Relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).
VIOLATED_ARTICLES: 13
3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92879
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KVASNICA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1962 and lives in Piešťany.
7. The applicant is a lawyer. He used to be a public prosecutor and is now a practising member of the Slovak bar association.
8. Between August 1999 and March 2001 the applicant acted as the legal representative of several industrial companies belonging to a group associated with a strategic steelworks in eastern Slovakia. For a period of time starting on 18 April 2001 he was on the board of directors of the company owning the works.
9. In 1999 the Minister of the Interior set up a special team of investigators to investigate large-scale organised criminal activities of a financial nature which were supposedly being committed in connection with a company belonging to the above group. The team was composed of officers from the financial police.
10. On an unspecified date the investigators charged an individual, I.C., with aggravated fraud.
11. On an unspecified date the investigators applied for judicial authorisation to tap the applicant’s telephone. At an unspecified time a judge of the Bratislava Regional Court granted the authorisation. The applicant’s professional mobile phone was subsequently tapped.
12. In November 2000 the applicant learned that calls from his phone were being intercepted; that the interception was being carried out by the financial police; and that the contents of his telephone communications were known outside the police.
13. On 5 January 2001 the applicant received an anonymous letter confirming the above information and advising him that the interception had taken place from October to December 2000 and had been carried out at the request of opponents of his clients.
14. On 31 May 2001 and 1 June 2001 a daily paper published interviews with the Minister of the Interior and the chief of the Police Corps. From those interviews the applicant understood that there had been confirmation that the interception had actually taken place.
15. Verbatim records of the applicant’s calls had been leaked to various interest groups, politicians and journalists, as well as to representatives of several legal persons.
16. Thus in September 2001 the daily Sme received by mail a transcript of the applicant’s telephone conversation with a journalist of Radio Free Europe. On 13 October 2001 Sme published a statement by a politician who had declared at a press conference that he possessed approximately 300 pages of copies of transcripts of the applicant’s telephone conversations.
17. In summer 2002 the applicant was informed that verbatim records of his conversations with third persons which had been made by the financial police were freely accessible on a website. They included conversations with his colleagues, clients, the representative of the other party in a case, and friends. The records had been manipulated in that they included statements which the applicant and the other persons involved had not made.
18. On 15 and 29 January 2001 the applicant informed the Inspection Service of the Ministry of the Interior (“the Inspection Service”) that he had been warned in a letter signed “member of the Financial Police” about the interception of his telephone. He claimed that the interception was unlawful and unjustified and accused one or more unknown police officers of having abused their official authority. The applicant stated that an appropriate investigation should be carried out into the matter in accordance with the law.
19. The director of the special division of the financial and criminal police (odbor zvláštnych úloh správy kriminálnej a finančnej polície) lodged a criminal complaint as, on the basis of his own examination of the case file, he had come to the conclusion that the interception contravened sections 36 and 37 (1) of the Police Corps Act 1993 (see Relevant domestic law and practice below). This was so in particular because it had not been based on any specific suspicion against the person being targeted and no specific purpose had been indicated. In his view, the members of the special investigative team had abused their official authority within the meaning of Article 158 of the Criminal Code.
20. On 10 May 2001 the judge who had authorised the interception made a written statement to the President of the Regional Court. The judge stated that the request for the authorisation had met all formal and substantive requirements. In his view, the police director had no authority to challenge the authorisation. The judge therefore considered it inappropriate to address the substance of the director’s objections. He nevertheless remarked, in general, that requests for authorisation were made in writing, but were submitted in person. The officer submitting the request had presented the case orally and the oral presentation was usually more comprehensive than the written request. As requests for authorisation had to be handled with the utmost urgency, judges had had no realistic opportunity to examine the case file or to check that the request for authorisation corresponded to the contents of the case file. Furthermore, the information in the case file was often obtained from unverifiable sources. Judges therefore had to rely on the information in the request for authorisation, which presupposed a certain element of trust. The judge further observed that there had been an enormous increase in the workload concerning tapping and that this was due, inter alia, to an interagency agreement which had been reached under the auspices of the Ministry of Justice (see Relevant domestic law and practice below) and had extended the jurisdiction of the Bratislava Regional Court in this area. In his view, questions of jurisdiction should not be regulated by “agreements” but by statute, which was not the case in relation to tapping. The judge stated that telephone tapping had been authorised on three previous occasions in the course of the investigation into the suspected extensive criminal transactions within the industrial group mentioned above. He had thus had sufficient and detailed knowledge about the applicant’s case. The judge associated himself completely with the decision taken, although the suspicion against the applicant might later have been dispelled. This was nothing unusual and happened in 10-20% of cases.
21. On 22 May 2001 the applicant asked the General Prosecutor to take measures with a view to eliminating unlawful interception and recording of telephone conversations.
22. On 20 June 2001 the Inspection Service questioned the applicant in connection with his complaint. According to the applicant, since then there has been no official communication concerning his complaint and he has not been informed of the outcome of the investigation.
23. On 21 June and 2 July 2001 the Inspection Service requested that the Ministry of the Interior discharge members of the special investigative team from the obligation of confidentiality in respect of the subject matter of the investigation. The Ministry agreed on 9 and 10 July 2001 respectively.
24. On 31 August 2001 the General Prosecutor’s Office informed the applicant, in reply to his above request of 22 May 2001, that the framework for the interference was defined by Article 22 § 2 of the Constitution and the relevant statutory provisions including the Police Corps Act 1993. Decree no. 66/1992 defined the court’s jurisdiction in such matters in cases where criminal proceedings had not been brought. The fact that the relevant issue was not governed by a law was only a formal shortcoming. Moreover, a draft law had been prepared to cover the relevant issue.
25. Between 5 and 20 September 2001 the Inspection Service questioned four members of the investigative team. Their depositions included, inter alia, the information that the operative part of the team had been colluding with the applicant; that the applicant had been in close contact with I.C. (see paragraph 10 above); that the applicant had been involved in several contractual transactions within the group, which had eventually harmed the interests of the steelworks; that the request for authorisation to tap the applicant’s phone had been based on the suspicion that he had committed the offences of aggravated fraud (Article 250 of the Criminal Code) and money laundering (Article 255 of the Criminal Code); that the request had been drafted without consultation of the case file; that the interception had been necessary because it had not been possible to move the investigation forward without it; and that after the interception had been compromised the case file had been made available to various officials, including the Minister of Justice, who at that time also acted as the Minister of the Interior ad interim.
26. On 21 September 2001 the Inspection Service dismissed the criminal complaint by the police director. It noted that a “committee of experts specialising in operational tasks” had been set up and “had detected no breach of the applicable regulations”. The interception had been authorised by a judge and had thus been lawful. There was no basis for scrutinising the judge’s decision. In conclusion, there was no case to answer. The decision has never been served on the applicant.
27. According to the applicant, he had lodged some ten criminal complaints between 2001 and 2003 about the interception of his telephone conversations and mishandling of the verbatim records. Without submitting further details the applicant indicated that those complaints had been rejected without an appropriate examination of the facts.
28. The chief editor of the daily Sme filed a criminal complaint after receipt of a transcription of the applicant’s telephone conversation with a journalist of Radio Free Europe. In the context of the proceedings a journalist of Sme was heard. On 14 November 2001 the police also heard the politician who had stated that he possessed 300 pages of copies of transcripts of the applicant’s telephone conversations. The applicant was involved in the proceedings as the injured party.
29. The parties have not informed the Court about the outcome of the proceedings.
30. In 2003 lieutenant colonel B., attached to the Inspection Service’s department specialised in combating corruption and organised crime, contacted the applicant and informed him that there was a general order within the Police Corps to reject all the applicant’s complaints. The police officer had been obliged to leave the police after he had started criminal proceedings upon one of the applicant’s complaints. In February and March 2003 that officer had complained to the Bratislava Higher Military Prosecutor’s office and to the General Prosecutor’s office about abuse of authority in the context of examination of the applicant’s complaints.
31. The Government submitted a standpoint of the General Prosecutor dated 8 February 2007. It indicates that the above decision of the Inspection Service of 21 September 2001 had been taken in accordance with the law. As to the criminal complaints which officer B. had lodged in 2003, an investigator had set the case aside, on 19 July 2006, on the ground that no offence had been committed in the context of examination of the applicant’s complaints. Finally, reference was made to the reply which the General Prosecutor’s Office had sent to the applicant on 31 August 2001.
32. Pursuant to Article 19, everybody has the right to protection against unjustified interference with his or her private and family life (§ 2) and against the unjustified collection, publication or other misuse of personal data (§ 3).
33. Article 22 guarantees the secrecy of correspondence, other communications and written messages delivered by post, and of personal information (§ 1). The privacy of letters, other communications and written messages kept privately or delivered by post or otherwise, including communications made by telephone, telegraph and other means, cannot be violated by anyone except in cases specified by law (§ 2).
34. In proceedings no. II. ÚS 254/03 an individual alleged, inter alia, a breach of Article 8 of the Convention in that his telephone had been tapped unlawfully. On 17 December 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It established that the interception had been authorised by a regional court judge in accordance with the relevant provisions of the Police Corps Act 1993.
35. In proceedings no. I. ÚS 274/05 (judgment of 14 June 2006) the Constitutional Court found a breach of an individual’s rights under Article 8 of the Convention on the ground that, contrary to the statutory requirement, two judicial decisions to authorise the interception of the plaintiff’s telephone contained no specific reasons justifying the interference.
36. The Code distinguishes between the procedure before the formal institution (commencement) of a criminal prosecution, which is governed by the provisions of Chapter 9, the procedure after the commencement of the prosecution but before the filing of the bill of indictment, known as the “preliminary proceedings” and governed by the provisions of Chapter 10, and the procedure in court which begins with the filing of the indictment and is governed by the provisions of Chapter 11.
37. The procedure before the institution of a criminal prosecution encompasses receiving and verifying information, obtaining documentation and explanations and securing evidence with a view to determining whether a criminal offence has been committed and whether it is justified to bring a formal prosecution in connection with it. As a general rule, eavesdropping and interception is not allowed at this stage of the proceedings (Article 158 § 4) unless such measures cannot be postponed or repeated within the meaning of Article 158 § 6.
38. The procedure before the commencement of a criminal prosecution ends with a formal decision either not to accept the criminal complaint (Article 158 § 2), or to refer the matter to the relevant authority dealing with minor offences or disciplinary or other matters (Article 159 § 1), or to refuse to take action (Article 159 §§ 1, 2 and 3), or to institute formal criminal proceedings (Article 160).
39. The scope of the jurisdiction and competence of criminal courts is defined in section 1 of Chapter 2. Proceedings at first instance are to be conducted before a district court unless the law provides otherwise (Article 16).
40. The Act governs the organisation and powers of the police. Section 2 (1) defines the tasks of the police. These include serving (a) to protect fundamental rights and freedoms, life, health, personal safety and property; (b) to detect criminal offences and to identify the culprits; (c) to detect illegal financial operations and money laundering; (d) to investigate criminal offences and to examine criminal complaints; and (e) to combat terrorism and organised crime. The provisions relevant in the present case read as follows:
“Information technology devices
Section 35
For the purpose of this Act information technology devices are, in particular, electro-technical, radio-technical, photo-technical, optical and other means and devices or their combinations secretly used for
a) search for, opening and examination of consignments and their evaluation while using forensic methods,
b) interception and recording of telecommunications,
c) obtaining image, sound or other recordings.
Section 36
1. The Police Corps is entitled to use information technology devices when complying with its tasks in the fight against terrorism, money laundering in the context of the most serious forms of criminal activities, in particular organised crime, ... tax evasion and unlawful financial operations, ... The preceding provision does not apply to contacts between an accused person and his or her defence counsel.
2. The Police Corps can use information technology devices also in respect of criminal activities other than those mentioned in sub-section 1 subject to the agreement of the person whose rights and freedoms will thereby be interfered with.
Conditions of use of information technology devices
Section 37
1. The Police Corps can use information technology devices only where the use of other means would render the investigation of criminal activities mentioned in section 36, identification of their perpetrators or securing evidence necessary for the purpose of criminal proceedings ineffective or considerably difficult.
2. Information technology devices can only be used subject to a prior written consent of a judge and for a period strictly necessary which however cannot exceed six months. That period starts running on the day when such consent has been given.
3. The judge who approved of use of information technology devices can, on the basis of a fresh request, extend the period, but for no longer than six months each time.
4. In exceptional cases, where no delay is possible and a written consent of a judge cannot be obtained, information technology devices can be used without such consent. However, the Police Corps must apply for a written approval by a judge without delay. If such consent is not given within 24 hours from the moment when the use of devices started or if the judge refuses to give his or her consent, the Police Corps must put an end to the use of information technology devices. Information thus obtained cannot be used by the Police Corps and they must be destroyed in the presence of the judge competent to decide on the request.
5. The Police Corps shall submit a request for approval of the use of information technology devices to a judge in writing; it must contain data about the person concerned, specify the device to be used, place, duration and reasons for its use.
6. The judge who gave consent to the use of information technology devices must examine on a continuous basis whether the reasons for their use persist; where such reasons no longer exist, the judge is obliged to immediately order that the use of the devices be stopped.
7. The Police Corps can use information technology devices without prior consent of a judge ... where the person whose rights and freedoms are to be interfered with has consented to such in writing...
Section 38
1. When using information technology devices the Police Corps must constantly examine whether the reasons for such use persist. Where those reasons are no longer valid, the Police Corps must immediately put an end to the use of an information technology device.
2. The Police Corps must inform the judge who gave consent to the use of information technology devices of the termination of such use.
3. Information obtained by means of information technology devices can be used exclusively for attaining the aim set out in section 36.
4. The use of information technology devices can restrict the inviolability of one’s home, the privacy of correspondence and the privacy of information communicated only to the extent that it is indispensable.
5. Information obtained by means of information technology devices can exceptionally be used as evidence, namely where such information constitutes the only proof indicating that a criminal offence listed in section 36 was committed by a specific person and where such proof cannot be obtained by other means. In such case the relevant recording must be accompanied by minutes indicating the place, time, means and contents of the recording and the reason for which it was made.”
41. Section 69 deals with police information systems and databases. The police are entitled to set up and operate information systems and databases containing information about persons and facts which are relevant for their work (subsection 1). The police have the duty to protect the data stored in such systems from disclosure, abuse, damage and destruction (subsection 2). If the data are no longer needed, they must be destroyed or stored so that they are not accessible to anyone except a court (subsection 3).
42. Sections 35, 36(2), 37 and 38 of the Police Corps Act 1993 were repealed by Act 166/2003 Coll. on Protection of Privacy against Unjustified Use of Information Technology Devices (“Privacy Protection Act 2003”) which entered into force on 21 May 2003.
43. The Act governs the use of information technology devices without the prior consent of the person concerned. It does not extend to the use of such devices in the context of criminal proceedings which is governed by the Code of Criminal Procedure (section 1).
44. Section 2 defines the authorities entitled to use such devices (Police Corps, Slovak Intelligence Service, Military Intelligence Service, Railways Police, Corps of Prison and Justice Guards and Customs Administration). The devices used must be secured against tampering. Personnel involved in using the devices must undergo a lie-detector test at intervals fixed by the head of the authority concerned.
45. Section 3 allows for use of information technology devices only where it is necessary in a democratic society for ensuring the safety or defence of the State, prevention or investigation of crime or for the protection of the rights and freedoms of others. The information thus obtained cannot be used for purposes other than one of those enumerated above.
46. Pursuant to section 4, such devices can be used subject to prior approval by a judge within whose jurisdiction the case falls. Their use should be limited to a period which is strictly necessary and it should not exceed six months unless the judge grants an extension. The judge involved is obliged to examine on a continuing basis whether the reasons for the use of such devices persist.
47. In exceptional cases specified in section 5 the police can use the devices without the prior consent of a judge. In such cases, the judge must be notified within one hour after the use of the devices has started and a request for authorisation of such use must be submitted within 6 hours. In case of disapproval by the judge of such interference the data obtained must be destroyed.
48. Sections 7 and 8 govern the use and disposal of data obtained and the liability of the State in case of failure by the authorities concerned to comply with the law.
49. Pursuant to section 9 the National Council of the Slovak Republic (the Parliament) shall examine at its plenary meeting, twice a year, a report of its committee set up for the purpose of supervising the use of information technology devices. The report must indicate any unlawful use of the devices established. The report can be made available to the media. The authorities entitled to use information technology devices must make available to the above committee all relevant information within ten working days following the committee’s request.
50. The decree was issued, inter alia, pursuant to Article 391a § 2 of the Code of Criminal Procedure, which authorised the Minister of Justice to lay down further details of the procedure before district courts and regional courts “in dealing with criminal matters”.
51. Section 45 (1) obliged the presidents of each regional court to assign one judge to deal with matters concerning use of information technology devices.
52. The decree of 1992 was repealed by Decree no. 543/2005 with effect from 1 January 2006.
53. On 29 March 2000 a conference took place under the auspices of the Ministry of Justice. Representatives of the Ministry, the regional courts, the head office of the police and the office of the Prosecutor General took part. The participants agreed that matters concerning authorisation of wiretapping would be handled by the regional court in the judicial district in which the agency requesting it had its seat.
54. The amendment entered into force on 16 April 2002. It introduced, inter alia, subsections 2 and 3 to section 13 of the Courts and Judges Act. They provide that, as a general rule, authorisation for monitoring telecommunications falls within the jurisdiction of the regional courts. Territorial competence is conferred on the regional court in the judicial district in which the authority seeking the authorisation has its seat.
VIOLATED_ARTICLES: 8


ITEMID: 001-82480
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BAYAR v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Ismail Bayar, is a Turkish national who was born in 1964 and lives in Herzebrock-Clarholz in Germany. He was represented before the Court by Mr H. Glass of the lawfirm Rumpenhorst – Gockel – Rettig, practising in Beckum.
The applicant is the father of a son (M), born on 17 January 1999. The applicant and the child’s mother divorced in 1996, but lived together at the time of M’s birth and held joint parental authority over the child. In November 1999, M lived with his mother.
On 2 November 1999 the Gütersloh municipal authority informed the Gütersloh District Court (Amtsgericht) about tensions and physical violence between the parents. Following two court hearings the parents agreed that the mother should be granted the right to decide about the child’s place of residence and that the father should be granted supervised access rights within the premises of the child protection agency (Kinderschutzbund). The mother declared that she would accept social-pedagogical family support.
On 17 April 2000 the municipal authority informed the District Court that the parents had refused to accept further support by the child protection agency and that the mother had refused to accept family support, which she did not deem necessary.
On 17 July 2000 the Gütersloh District Court, following expert recommendation, withdrew by interim order the mother’s rights to decide about the child’s place of residence and to care for the child and transferred these rights to the municipal authority. The municipal authority placed the child temporarily in a children’s home. On 26 July 2000 M was placed in a foster family.
On 2 August 2000, following an oral hearing, the Gütersloh District Court confirmed its interim order. All parties to the proceedings waived their right to appeal.
On 21 February 2001 the applicant and the child’s mother lodged separate requests to be restored parental authority, alternatively to be granted access rights.
On 27 November 2001 the psychological expert O., having examined the child, both parents and the foster parents, submitted her expert opinion. She considered that, while the mother was not able adequately to take care of the child, the father was in principle able to take care of him. Furthermore, M. enjoyed a positive relationship with his father. The expert observed, however, that during the period of one year and three months he had spent in the foster family, M had developed bonds to the foster family. Taking into account the fact that the child had spent half of his life with the foster family and that the years until the child’s reaching the age of three were decisive for the formation of such bonds, which stayed unchanged for the remainder of childhood, the expert considered that it would jeopardise the child’s welfare to remove him from the foster family.
On 24 October 2002 the District Court restored parental authority to the parents and ordered that M should remain with the foster family (Verbleibensanordnung). All parties to the proceedings waived their right to appeal.
The applicant is currently living with his new wife, their daughter and a stepdaughter.
The proceedings relating to the parents’ access rights were severed from the proceedings on parental authority.
On 24 October 2002 the parties agreed, on a preliminary basis, that the applicant should have the right to visit M once every four weeks for three hours within the premises of a social organisation. The mother was granted access rights for two hours every six weeks. The visits took place as envisaged.
On 22 May 2003 the Gütersloh District Court, following an oral hearing, temporarily suspended access rights. On 1 July 2003 the District Court judge visited M in the foster parents’ home.
On 9 July 2003 the District Court ordered that the applicant should have the right and the duty to visit M every three months for two hours in the presence of an appropriate third person within the premises of the social organisation. The mother was granted access rights for one hour every three months.
Taking into account the reports submitted by the social organisation on the visiting contacts, the results of the oral hearing, the personal impression the judge had gained of the child and the submissions by the child’s court-appointed curator ad litem, the District Court considered that this regulation on access rights best served the child’s interests.
The District Court considered, at the outset, that M could not be returned to his parents within the next years. This had been the outcome of the proceedings on custody rights, as manifested in the decision that M should remain with the foster family. The District Court judge had hoped that further access rights would be beneficial for the child if the parents ceased to argue about M’s place of residence. However, as became clear during the oral hearing held on 22 May 2003, this had not been the case. Neither the mother nor the father had been able to discuss access rights separately from the question of residence. It had been impossible to talk reasonably with the applicant. The fact that the applicant’s counsel requested the order that M should remain with the foster family be lifted further demonstrated that the parties did not agree on the child’s place of residence.
Referring to the report submitted by the child’s curator ad litem, the District Court further noted that the visiting contacts which took place between November 2002 and May 2003 had not been beneficial for the child. M had been very strained before and after the contacts. The conflicts about his place of residence unsettled the child.
Following this assessment, the District Court considered that M was burdened by the unresolved question of his place of residence. It had not been possible to keep the child out of these conflicts, as the parents were unable to accept that the child remained with the foster family. It was, however, essential for M to have the security to remain with the foster family.
The District Court further observed that the foster parents had fully cooperated and had made no effort to avoid or restrict access rights. The applicant, on the other hand, had never expressed his concern for the child’s well-being, but merely stressed that the child was “his flesh and blood”.
The Court further considered that M suffered from a serious eating disorder and that his condition, which had improved before the oral hearing held on 24 October 2002, had aggravated.
By way of conclusion, the District Court considered that M had the right to know his parents and to have access to them. Having regard to the feeling of uncertainty which had been caused by the recent contacts, it appeared to be in the child’s best interest to limit contacts to once in a three-month period. On the one hand, there was the reasonable hope that M could settle down, on the other hand, there was sufficient contact to the biological parents.
Both parents lodged appeals, the applicant with the aim to be granted access at least every third weekend from Saturday 9 a.m. to Sunday 6 p.m.
On 10 December 2003 the Hamm Court of Appeal (Oberlandesgericht) ordered the preparation of an expert opinion as to which regulation of access rights best served the child’s interests.
On 4 May 2004 the expert B submitted her expert opinion. She considered that M had shown massive behavioural disorders in connection with the former regulation on access rights. These had mainly been caused by the child’s insecurity and conflicts of loyalty and the fear of losing the foster family, which had been intensified by the visiting contacts. Since the installation of the new regulations on access rights, the behavioural disorders had diminished. The visits had contributed to maintaining the relationship to his family of origin.
With the aim of preserving the positive aspects of the visiting contacts while limiting the negative effects, the expert considered that the meetings should take place within a predictable and stable framework. As the biological parents did not accept that M remained with the foster family, the only possibility to limit the negative effects was to put a limitation on access rights. The expert considered that the present regulations had proved to be successful.
The expert further considered that it would be positive if the applicant could be granted more generous access rights in the mid-term future. She recommended offering the applicant special counselling which would allow him to come to terms with the child’s stay in the foster family and enable him better to understand the child’s feelings and needs.
On 7 July 2004 the Hamm Court of Appeal, having heard all parties to the proceedings, rejected the parents’ complaints against the District Court’s decision of 9 July 2003. The Court of Appeal noted that the expert, when personally heard, considered that the child enjoyed good contacts with the applicant and that the parents had to assure M that he could stay with the foster family.
The foster parents submitted that M had cried for an hour before the court hearing. He was always very agitated when fearing changes of his situation and soiled himself, but had calmed down recently.
Having regard to the parties’ submissions and personal statements and to the expert opinion, the court considered that it would jeopardise the child’s welfare to grant more extensive visiting rights. According to the Court of Appeal, it was understandable that the biological parents had the wish that the child be returned to them. However, this attitude imposed a serious strain on M, who felt torn between his biological parents and the foster parents. As had been confirmed by the personal statements given by the relevant parties, M had the wish presently to remain with the foster parents, whom he regarded as his relevant attachment figures. During the visiting contacts the conflict of interests became apparent and unsettled the child considerably. The child was in need of the firm knowledge that he was not taken from the foster family against his own wishes.
It would be preferable if the biological parents could convey him this confidence. As this was presently not the case, it was necessary to limit access rights. The court further considered it necessary to order supervision in order to avoid conflicts.
By way of conclusion, the Court of Appeal conceded that the time-frame of visiting contacts was restrictive. However, having regard to the previous development of visiting contacts, that court considered that the visits were sufficient to maintain the appropriate contacts between M and his parents. It was thus assured that the bonds to his parents and the emotional relationship remained intact.
On 27 September 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint.
According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare.
A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be jeopardised (section 1684 § 4).


ITEMID: 001-87378
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MYSAKOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Ms Bohumila Myšáková, is a Czech national who was born in 1924 and lives in Prague. She was represented before the Court by Mr M. Červinka, 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 8 October 1991 the applicant and her two sisters, relying on the Land Ownership Act, invited the Prague-West Land Office (pozemkový úřad) to transfer into their ownership three plots of land which had been expropriated from their mother in 1949 and, some of them, had been transferred to the ownership of natural persons in an assignment procedure.
On 15 May 1995 the applicant signed an agreement with her two sisters, who disclaimed their restitution rights in her favour.
The applicant entered into restitution agreements with the Prague-West District Office (okresní úřad) on 23 May 1995. The Land Office gave its approval on 6 June 1996.
A certain Mr and Ms K., Mr B. and Mr and Ms M. appealed against the Land Office’s approval, alleging that the plots of land had been lawfully assigned to them or that they had bought them in good faith from former assignees. On 5 May 1998 the Ministry of Agriculture quashed the approval and sent the case back to the Land Office.
The restitution proceedings terminated by a decision of the Constitutional Court (Ústavní soud) of 27 February 2003.
The relevant domestic law and practice concerning remedies for the 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: 001-57430
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF BARFOD v. DENMARK
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10
TEXT: 7. The applicant is a Danish citizen, born in 1919. He is a precious-stone cutter by profession and resides at Narssaq, Greenland.
8. When, in 1979, the Greenland Local Government decided to introduce taxation of Danish nationals working on American bases in Greenland, a number of the persons affected (which persons did not include Mr Barfod) challenged that decision before the High Court of Greenland (Grønlands Landsret). They argued that the decision was illegal on the grounds, inter alia, that they did not have the right to vote in local elections in Greenland and did not receive any benefits from the Greenland authorities. The case was heard in the High Court sitting with one professional judge and two lay judges; the latter were both employed by the Local Government. In its judgment of 28 January 1981, which is not the object of the present complaint, the High Court unanimously found for the Local Government; this judgment was subsequently upheld by the High Court for Eastern Denmark (Østre Landsret) on 8 September 1983 ("the 1981 tax case").
9. After learning about the judgment of the High Court of Greenland, the applicant wrote an article on the judgment, published in a magazine called "Grønland Dansk" in August 1982.
In the article he expressed his opinion that the two lay judges were disqualified under Article 62 of the Danish Constitution (see paragraph 15 below); he also questioned their ability and power to decide impartially in a case brought against their employer. The article included the following passage (translation from Danish):
"Most of the Local Government’s members could ... afford the time to watch that the two Greenland lay judges - who are by the way both employed directly by the Local Government, as director of a museum and as consultant in urban housing affairs - did their duty, and this they did. The vote was two to one [cf paragraph 13 below] in favour of the Local Government and with such a bench of judges it does not require much imagination to guess who voted how."
10. The professional High Court judge considered that these remarks on the two lay judges were of a kind which might damage their reputation in the eyes of the public and hence generally impair confidence in the legal system. As head of the Greenland judiciary, he consequently applied to the Greenland Chief of Police, asking for a criminal investigation to be instituted. The applicant was subsequently charged with defamation of character within the meaning of Article 71(1) of the Greenland Penal Code (Kriminalloven for Grønland; see paragraph 17 below) before the District Court (Kredsret) of Narssaq.
11. After an initial question of venue had been settled, the case was heard by the District Court of Narssaq on 9 December 1983. The applicant confirmed that he had written the article in question but he maintained that the lay judges had been barred, by virtue of Article 62 of the Danish Constitution (see paragraph 15 below), from adjudicating in the tax case and that the defamation case brought against him violated Article 77 of the Danish Constitution, which guarantees freedom of expression (see paragraph 16 below). In its judgment of the same day, the District Court stated (translation from Danish):
"The Court does not find that the validity of the High Court judgment of 28 January 1981 should be examined in the present proceedings. The sole question is whether the accused, through the contents of his article, has insulted two of the judges sitting in that case.
The Court finds that in the particular paragraph of the article in question the accused used such words that the two judges concerned may rightly consider their honour offended.
The right invoked by the accused to freedom of expression in accordance with Article 77 of the Constitution is not found to be violated since the accused is entitled, without prior censorship, to state his views, although he may still be held responsible in the courts.
Accordingly, the Court finds the accused guilty of having violated Article 71(1) of the Greenland Penal Code since it does not find that the accused has, in accordance with Article 71(2) of the same Code, proved the justification of his choice of words in the article in question."
The District Court imposed a fine of 2,000 Danish Crowns on the applicant.
12. The applicant appealed to the High Court for Eastern Denmark, but the proceedings were transferred to the High Court of Greenland as this court was considered the proper court of appeal. When the High Court heard the case, the usual professional judge, who was disqualified as he had been responsible for initiating the proceedings, was replaced by one of his deputies (see paragraphs 10 above and 18 below).
13. In its judgment of 3 July 1984 upholding the District Court’s judgment, the High Court emphasised that the applicant had misunderstood the votes in the 1981 tax case: it was only with regard to the reasoning that there was a dissent; with regard to the conclusion all three judges had decided in favour of the Local Government (see paragraph 8 above). As to the charge brought against the applicant, the Court stated inter alia (translation from Danish):
"Like the District Court, the High Court agrees with the prosecution that the words of the article to the effect that the two Greenland lay judges did their duty - namely their duty as employees of the Local Government to rule in its favour - represent a serious accusation which is likely to lower them in public esteem. Proof of the accusation has not been adduced, something which, moreover, would not have been possible since it cannot be excluded that they would have reached the same result had they not been employed by the Local Government. The accused will hereafter be considered guilty of having violated Article 71(1) of the Penal Code.
Finally, concerning the question of the competence of the two lay judges, the High Court agrees with the accused that they, being employed in leading positions by the defendant party, ought - as was pointed out by the defence and notwithstanding the specific difficulties in Greenland of observing strict rules in regard to competence - to have considered themselves as disqualified and thus refrained from participating in the case, and that he was correct in drawing attention to this.
Having regard, on the one hand, to the seriousness of the accusation and the information now available about the accused’s economic situation - which would give grounds for a considerable increase of the fine imposed - and, on the other hand, to the appropriateness of drawing attention to the failure to observe reasonable rules of competence which occurred, the Court finds that the fine imposed should be confirmed."
14. The applicant subsequently asked the Ministry of Justice for leave to appeal to the Supreme Court (Højesteret), but his request was rejected on 14 March 1985.
15. According to Article 62 of the Constitution (Danmarks Riges Grundlov), the administration of justice shall remain separated from the Executive and the rules in this respect shall be laid down by law.
16. Freedom of expression is protected by Article 77 of the Constitution, which provides (translation from Danish):
"Everyone shall be entitled to make public his views in print, in writing and in speech, with the proviso that he may be held responsible in a court of justice. Censorship and other preventive measures shall never again be introduced."
17. The crime of defamation of character is defined in Article 71 of the Greenland Penal Code (Kriminalloven for Grønland), which provides (translation from Danish):
[(1)] "Any person shall be liable to punishment for defamation of character if he degrades the honour of another person through insulting words or acts or if he makes or disseminates an accusation which is likely to damage the esteem in which the insulted party is held by his fellow citizens or which may in other ways damage his relationship with other people.
(2) However, no person may be convicted on the ground of an accusation which is proved true or has been made in good faith, if the perpetrator was under an obligation to make the statement or acted in order to safeguard, justifiably, an evident public interest or his own or another’s interest.
(3) A person making an accusation supported by evidence may nevertheless be convicted if the wording of the accusation is unduly insulting or if the perpetrator had no reasonable cause to make the accusation.
(4) Whenever a defamatory accusation is unwarranted, the insulted party may call for a statement to this effect to be included in the conclusions of the judgment."
18. The administration of justice in Greenland is much influenced by the special conditions obtaining there: time-honoured traditions, the country’s enormous size and widely scattered settlements. The legal system consists of two levels of courts: the district courts, which are the courts of first instance, and the High Court, which is the court of appeal but can also hear certain cases at first instance. Depending on whether the High Court decides a case on appeal or at first instance, its judgment can be appealed either to the Supreme Court, if leave to appeal is granted by the Ministry of Justice, or to the High Court for Eastern Denmark.
The High Court is presided over by the High Court Judge or one of his deputies, all of whom are legally trained. The High Court also includes two lay judges, appointed for four years at a time by the Greenland Parliament (Landstinget) upon nomination by the High Court Judge. The district courts are composed of three lay judges appointed for four years: the president, appointed by the High Court Judge, and two other lay judges appointed by the local authorities upon nomination by the High Court Judge.
The lay judges discharge their duties as a civic obligation alongside their ordinary work. Any person entitled to vote in local elections may be appointed to act as a lay judge. Only if it is especially onerous for a lay judge to discharge his duties, may he be relieved of his appointment by the High Court Judge.
19. It is a fundamental principle of Danish as well as Greenland administration of justice that a judge must be impartial and be guided solely by the law and the evidence adduced. This principle applies to all persons exercising judicial power, that is both professional judges and lay judges.
20. The rules relating to disqualification of judges are laid down in the Greenland Administration of Justice Act. However this Act is worded in general terms and does not explicitly mention an employee/employer relationship between judges and parties as a ground for disqualification.
21. A decision given by a judge under the influence of considerations other than those deriving from the law or the evidence adduced, for example in deference to his employers, would be a manifest breach of duty for which sanctions would be available either under the Greenland Administration of Justice Act (disciplinary punishment) or under Article 28 of the Greenland Penal Code (abuse of public authority).
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-68373
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NOVOSELETSKIY v. UKRAINE [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
TEXT: 9. The applicant was born in 1938 and lives in Ussuriysk (Russia).
10. By a decision of 2 June 1995 under the Education Act, the trade union branch at the Melitopol State Teacher Training Institute (“the Institute”), which was the applicant's employer at the time, granted the applicant indefinite authorisation (ордер) to occupy and use a two-room, 25.1 sq. m flat in a building in Melitopol on the Institute's books.
11. In August 1995 the applicant resigned from the Institute and went to live in Vladimir (Russia) to prepare his doctoral thesis. Before leaving, he took his wife to Kotovsk (Ukraine), where she was due to receive medical treatment.
12. On 5 October 1995 the Institute annulled its decision of 2 June 1995 and granted authorisation to occupy and use the flat to T., another of its employees.
13. On 3 November 1995 T., accompanied by four witnesses, entered the flat. They noted that the flat was empty and made a statement to that effect. According to the applicant, his possessions were removed or stolen from the flat.
14. In November 1995 the applicant's wife returned to Melitopol. Unable to move back into the flat, which was now occupied by T.'s family, she had to return to Kotovsk and move in with relatives. In January 1996 the applicant returned to Melitopol, before joining his wife in Kotovsk.
15. In late February 1996 the applicant filed a civil claim against the Institute with the Melitopol City Court, claiming compensation for pecuniary and non-pecuniary damage and seeking to assert his right to free use of the flat in question. The Institute in turn lodged an application to have that right withdrawn from the applicant.
16. On 15 May 1996, following an intervention by the procurator at the applicant's request, the Institute annulled its decision of 5 October 1995, finding that it had been unlawful, and restored the applicant's rights to the flat.
17. In a judgment of 27 June 1996, the Melitopol City Court dismissed the applicant's claim and granted the Institute's application. It found in particular that, in accordance with the legislation in force and the employment contract concluded between the Institute and the applicant, the latter had forfeited his right to use of the flat concerned after taking up permanent residence elsewhere. The court also noted that, according to the statement made on 3 November 1995, the flat in question had been empty when it was entered.
18. Following an objection under the supervisory review procedure from the Zaporijya deputy regional procurator, the Zaporijya Regional Court, in a judgment of 23 May 1997, quashed the judgment of 27 June 1996 and remitted the case to the Melitopol City Court for further consideration.
19. By a judgment of 28 April 1998, the Melitopol City Court rejected the applicant's claim, reiterating in substance the findings of the judgment of 27 June 1996.
20. Following an appeal by the applicant on points of law the Zaporijya Regional Court, in a judgment of 18 August 1998, quashed the judgment of 28 April 1998 and remitted the case once more to the court of first instance. In particular, the Regional Court noted that the issue of the lawfulness of the Institute's decision of 5 October 1998, granting T. the rights to the flat in question, had not been addressed, despite the fact that the decision had subsequently been annulled following an objection from the procurator. The court further noted that the applicant's wife, who was also authorised to occupy the flat, had been absent from the flat only temporarily, and on medical grounds. The court noted, inter alia, that three of the four witnesses had signed the statement of 3 November 1995 at T.'s request and had not been present when he had entered the flat.
21. By an order of 2 December 1998 giving effect to the Institute's decision, the executive committee of Melitopol municipal council transferred ownership of the flat in question to T., a private individual.
22. In a judgment of 6 January 1999, the Melitopol City Court allowed the applicant's claim in part. That judgment was upheld by the Zaporijya Regional Court in a judgment of 16 February 1999. The court noted in particular that the applicant's move to Vladimir had been only temporary, and that Melitopol had remained his permanent place of residence. Accordingly, it found that the applicant had the right to free use of the flat in question in Melitopol. However, the court rejected the applicant's claim for damages, observing that the criminal investigation into the disappearance of his possessions had been closed by an order of 15 February 1996 (see paragraph 36 below). In that connection, the court took the view that neither the amount of the claim nor the existence of the pecuniary damage allegedly caused by the Institute had been borne out by the evidence provided. It also noted that the law made no provision for compensation in respect of non-pecuniary damage in landlord-tenant disputes.
23. On 17 May 1999 the Melitopol City Court forwarded the writ of execution in respect of the judgment of 6 January 1999 to the Melitopol department of the Ukrainian Ministry of Justice.
24. On 21 May 1999 the court bailiff noted that the flat in question was occupied by T.'s family. Accordingly, he lodged a request with the Melitopol City Court for an interpretation of the judgment of 6 January 1999.
25. In a decision of 14 September 1999, the Melitopol City Court dismissed the request on the ground that it was aimed at having the judgment in question varied rather than interpreted. Furthermore, it noted:
“In examining the aforementioned civil case, the court was not aware that ownership of the flat in question ... had been transferred to a private individual, as T. had not informed the court of this fact when he gave evidence as a witness at the hearing. Only after the judgment had been delivered did this come to light. That being the case, neither the court nor the applicant R.N. Novoseletskiy was aware that the flat had passed into private ownership. It was for that reason that Mr Novoseletskiy lodged an application simply to be allowed to occupy the flat in question rather than to have [T.] evicted.”
The Zaporijya Regional Court upheld that decision in a judgment of 9 December 1999.
26. In November 1999 the Melitopol procurator applied to the Melitopol City Court on the applicant's behalf, seeking to have the transfer of ownership of the flat to T. on 2 December 1998 declared unlawful, and to have T. evicted from the flat.
27. At the hearing, the executive committee of Melitopol municipal council argued that the construction of the flats belonging to the Institute had been funded by the Ministry of Education, and that any decision concerning the flat in issue would have been taken entirely by the Institute management.
28. In a judgment of 25 May 2000, the Melitopol City Court granted the procurator's application, ordering T. to vacate the flat and the Institute to provide T.'s family with alternative accommodation. In addition, the court concluded that the Institute had acted unlawfully in relation to the disputed flat, in particular in approving the transfer of ownership to T., a private individual, in 1998, while the applicant's civil claim was still pending before the court. This judgment became final on 18 August 2000.
29. In a decision of 28 December 2000, the Melitopol City Court granted T. and his family a stay of execution of the judgment of 25 May 2000 until 1 April 2001, owing to the chronic illness of one of the family members. The applicant alleges that he was not informed of the court hearing on that issue.
30. In December 2000 and January 2001, the court bailiff imposed a fine on the director of the Institute for the delays in complying with the judgment in question.
31. By orders of 13 March and 28 March 2001, the court bailiff discontinued the execution proceedings in respect of the judgments of the Melitopol City Court of 6 January 1999 and 25 May 2000, after certifying that the flat in question was unfit for human habitation. On 28 March 2001, in a measure designed to secure possession of the flat by the applicant, a committee made up of the applicant and seven witnesses, in the presence of the court bailiff, certified that the flat in question was empty and unfit for human habitation and needed substantial repairs before it could be used. Among many other things, the committee noted that the sanitary fittings and electrical wiring had been seriously damaged, that the sink and surrounding pipes had been removed, making it impossible to use any running water, and that the contents of the sewage pipes emptied into the flat, creating a powerful stench. They also recorded the refusal of T. and an official of the Institute to hand over the keys to the flat to the court bailiff.
32. On 20 January 2004 six witnesses, of whom five were engineers, accompanied by the applicant, inspected the flat and noted that, as a result of the damage recorded on 28 March 2001, the sewage pipes emptied into the kitchen and toilets, as had been the case at their inspections in 2002 and 2003, and that the applicant was unable to use the sanitary facilities or running water. A statement to that effect was drawn up for the attention of the Institute.
33. According to a statement of 16 February 2004 addressed to the Institute and the procurator's office by the applicant and four engineers who had acted as witnesses, the sewage pipes were blocked and the water pipes and sanitary fittings were out of order. The statement referred to similar findings that had been made by the Institute on 13 February 2004. The signatories contended that the situation had not changed since 28 March 2001, when the applicant had taken possession of the flat.
34. In his letter of 10 February 2004 to the Court, the applicant complained that since 28 March 2001 he had been unable to live in the flat owing to its deplorable state; however, he had visited the flat regularly in order to monitor the situation.
35. On 6 February 1996 the applicant lodged a complaint with the Melitopol department of the Ministry of the Interior, alleging that his belongings had been removed from the flat. He requested that criminal proceedings be brought against the management of the Institute and against T. for unlawful entry into his flat. In support of his complaint, the applicant submitted two statements, one from his sister, G.G.S., and the other from his niece, G.I.V., to the effect that they had seen in the flat in question several pieces of furniture, a large number of books, a television, a radio, household appliances, two mammoth tusks and gold and silver jewellery, together with 5,000 United States dollars hidden in the stove and in the basement. The applicant also submitted a statement from T.G.M., a police officer, confirming that he had assisted the applicant in July 1995 in moving his personal effects from the hall of residence where he had lived previously to the flat in question.
36. According to the Government, the investigating authorities had responded to this complaint by conducting a detailed investigation into the alleged theft. The investigation established that, after being informed of the applicant's resignation and his departure for Russia, the director of the Institute had instructed T. to enter the flat and check that the heating was in order for the winter. In an order dated 15 February 1996, the Melitopol department of the Ministry of the Interior closed the criminal proceedings, finding that no offence had been committed (за відсутністю події злочину). The order made reference to the statement of 3 November 1995, drawn up by T. and signed by four witnesses, to the effect that the flat had been empty when it was opened up.
37. Between 1996 and 1999, the applicant lodged several complaints with the Melitopol procurator's office and the Zaporijya regional procurator's office seeking to have the order of 15 February 1996 quashed.
38. In a letter of 30 October 1999, the Zaporijya regional procurator's office informed the applicant that the Melitopol procurator's office had issued an order on 29 October 1999 quashing the order of 15 February 1996, and had reopened the criminal proceedings in response to his complaints concerning the disappearance of his possessions from the flat.
39. By a letter of 18 May 2001, the Zaporijya regional procurator's office informed the applicant that the investigation set up in response to his complaints had still not been completed.
40. On 27 August 2001 the Zaporijya regional procurator's office wrote to the applicant informing him that, by an order of 3 August 2001, the Melitopol department of the Ministry of the Interior had closed the criminal proceedings relating to the disappearance of his possessions on the ground that no offence had been committed, but that the proceedings to establish the lawfulness of that order were still in progress.
41. In two letters dated 28 December 2002 and 13 January 2003, the Melitopol procurator's office informed the applicant that the criminal proceedings relating to the disappearance of his possessions were still pending.
42. On 5 February 2003 the Zaporijya regional procurator's office examined the file relating to the investigation, quashed all the earlier decisions and ordered further investigations to be carried out.
43. By a decision of 22 March 2003, the Melitopol department of the Ministry of the Interior closed the criminal proceedings, finding that no offence had been committed. On 3 April 2003 the Melitopol deputy procurator quashed that decision and reopened the investigation.
44. In an order of 27 May 2003, the Melitopol department of the Ministry of the Interior, after summarising the main findings of the investigation, closed the criminal proceedings on the ground that no offence had been committed.
45. In particular, it was observed that G.G.S. and G.I.V., on whose statements the applicant had relied, had declined to attend in person in order to provide further information to the investigating officer. In that connection it was also pointed out that the Melitopol City Court had refused to take G.I.V.'s statement into account because she was related to the applicant.
46. T.G.M. was questioned several times on the subject of his statement, on 7 December 1999, 10 July 2001 and 21 May 2003. In his submissions, T.G.M. said that he had moved the following items into the flat in question: a washing machine, a refrigerator, some chairs, a guitar, some spare parts for cars and some home-made jams. However, the investigation noted that these items had not been mentioned by the applicant in his complaints. T.G.M. also maintained that he had seen a piece of mammoth tusk in the applicant's room in the hall of residence where he had lived previously.
47. It was established that, prior to his move into the disputed flat, the applicant had rented fully furnished accommodation with a surface area of 30 sq. m in a hall of residence. However, neither T.G.M., during an attempted reconstruction, nor the applicant, was able to say precisely where so many bulky items of furniture, of the kind described in the applicant's complaints, might have been fitted into a furnished dwelling with a surface area of 30 sq. m.
48. In addition, statements were taken in the course of the investigation from six persons, including T., who lived in the same building or adjoining buildings. They all asserted that they had seen no heavy or bulky items of furniture being moved into the flat in question between August and November 1995. Taking the view that items of that nature could not have been moved in without being noticed, and on the basis of the preceding statements, the investigating officer concluded that the applicant had never moved the items into the flat, and that the alleged theft had not taken place.
49. Furthermore, the order of 27 May 2003 accused the applicant of taking insufficient interest in the investigation, having failed to attend his appointments with the investigating officer.
50. Lastly, having observed some inconsistencies in the applicant's statements concerning the date of his return to Melitopol, the investigation concluded that the applicant had lodged his complaint concerning the alleged theft on fictitious grounds and with a view to material gain. In support of this argument, the order cited some criticisms made of the applicant by previous employers.
51. Article 4 of the Ukrainian Housing Code (Житловий кодекс України – “the Code”) of 30 June 1983 (as amended) stipulates that the State's housing stock comprises State-owned houses and dwellings in other buildings.
52. Section 1 of Law no. 2482-XII of 19 June 1992 on the privatisation of the State housing stock (Закон України “Про приватизацію державного житлового фонду”) defines the State housing stock as the housing stock of the municipal councils, together with the housing managed by State-owned companies, institutions and establishments (“the institutional housing stock”).
53. Under Article 18 of the Code, the housing stock is managed by the owner or by an establishment, to the extent that powers have been delegated to it by the owner.
54. Under the terms of the second paragraph of Article 184 of the Code, work carried out on buildings that form part of the institutional housing stock (відомчий житловий фонд) is funded by the budget of the companies, institutions and establishments concerned.
55. Article 52 of the Code governs the allocation of flats from the institutional housing stock. In particular, flats are allocated by a joint decision of the authorities and the trade union branches of the companies, institutions and establishments concerned, which either submit their decision to the relevant municipal council for approval or, in some cases, simply inform the council. On the basis of that decision, the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat (ордер), which constitutes the sole legal basis for taking possession of the allocated dwelling (see Article 58 of the Code).
56. Article 29 of the Code provides that the housing stock is subject to State supervision. This consists in ensuring that all the organisations and persons concerned observe the rules on the use and maintenance of the housing stock and that the distribution of living space and allocation of flats occur in the correct order.
57. The list of functions of the executive committees of the municipal councils set out in Article 15 of the Code includes State supervision of the use and maintenance of the housing stock, monitoring of the state of repair and use of the institutional housing stock, and monitoring of the waiting list of persons in need of better housing kept by the companies, institutions and establishments concerned.
VIOLATED_ARTICLES: 8


ITEMID: 001-68689
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BERISHA & OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants are Redjep and Djezide Berisha (husband and wife), Djafer, Shanie and Jashar Berisha (husband, wife and their son). They are Yugoslav nationals of Romany origin, born in 1972, 1972, 1956, 1956 and 1982 respectively. They are represented before the Court by Mr Zoran Gavriloski and Mr Shaban Saliu, lawyers practising in Skopje.
The facts of the case, as submitted by the parties, may be summarised as follows.
Redjep Berisha, his spouse Djezide and their four minor children had to leave Kosovo because they were constantly threatened and on few occasions attacked by the members of the Kosovo Liberation Army (KLA).
The most tragic event occurred on 13 June 1999, when fifty to sixty armed people wearing the KLA uniform threatened them with death and ordered them to leave their house. One of these people took their baby who was only a few months old and said that he would throw it on the floor “just like the Albanian babies have been thrown”. Redjep Berisha's father and his brother were also beaten.
The following night, Redjep Berisha and his neighbours having organised night shifts to protect their families, Redjep Berisha was stabbed in the back while on guard. He was hit in the right shoulder and on his head and lost consciousness. Later a friend found him and he was transported by the KFOR to hospital in Prizren. The persons responsible for the attack were never found.
Fearing constant persecutions by the KLA, Redjep Berisha and his family left Kosovo and entered the Former Yugoslav Republic of Macedonia on 11 July 1999.
The first two applicants are a married couple and the third applicant is their son. They used to live in Pristina, where they were constantly threatened by the KLA members.
In July 1999, some persons wearing the KLA uniform went into the applicants' neighbourhood, entered their house, pointed their guns at them and threatened to kill them if they did not leave their house within an hour. They left their house immediately and escaped to Kosovo Polje where they were temporarily accommodated. They also met many Romanies who were allegedly beaten by the people wearing the KLA uniforms.
On 26 July 1999, the applicants entered the Former Yugoslav Republic of Macedonia.
On their arrival, the Ministry of the Interior granted the applicants the status of Temporary Humanitarian Assisted Persons.
On 4 August 2000, the applicants were arrested, as they tried to cross the Deve Bair border from the Former Yugoslav Republic of Macedonia to Bulgaria with forged passports. They were charged with with forgery of official documents (Section 378 of the Criminal Code). At 7 p.m., the same day, the applicants appeared before a duty judge of the Kriva Palanka Basic Court. As the applicants stated that they did not have money to engage a lawyer, the judge appointed an ex officio lawyer. The Government stated that the applicants agreed to the hearing taking place at once as they did not wish to be detained any longer in custody.
The main hearing commenced at 8.30 p.m., attended by the Deputy Public prosecutor, all the applicants, their counsel and three witnesses. The judge asked each applicant in turn if they understood Macedonian. They declared that they did and did not request any interpreter from Macedonian into Albanian (Roma). They all stated that they accepted their counsel.
During the proceedings, the applicants admitted that they had knowingly made use of forged passports with a view to leaving the FYR of Macedonia. The applicants were found guilty of having forged official documents and sentenced to a six months' term of imprisonment suspended for two years. The court also ordered the expulsion of the applicants from the state territory as security measure. The judgment, drawn up on the spot, stated that the applicants, their ex officio lawyer and the Public Prosecutor all waived their respective right to appeal to the Appellate Court, whereby the judgment became final. The applicants were returned by the police to a refugee camp at Skopje.
On 7 August 2000, the UNHCR local office requested the Ministry of Interior not to expel the applicants on the ground that they, being of Romany origin, risked to be ethnically persecuted in the country/place of their origin. Copies of this request were served on the first instance court, the Ministry of Justice and the Ombudsman.
In the meanwhile the applicants appointed another lawyer. On 8 August 2000, they lodged an appeal on points of law with the Supreme Court on the grounds that the first instance court did not take into consideration the fact that they had been granted the status of Temporary Humanitarian Assisted Persons and that their lives would be at risk if they were deported to Kosovo. They also invoked the Convention on the Status of the Refugees and its Protocol of 1967, both of which have been ratified by the Former Yugoslav Republic of Macedonia in 1994 and Article 3 of the European Convention of Human Rights. The applicants further complained that there was no interpretation at the hearing into their own language. If they were to be considered as having waived their right to appeal, this was due to the fact that, as they did not know the official court language and some of them were illiterate, they did not understand that such waiver meant their expulsion from the Former Yugoslav Republic of Macedonia and their lawyer did not warn them about these consequences.
On 30 October 2000, the ex officio lawyer applied to the Kriva Palanka Basic Court for a rehearing of the criminal case based on Article 392 of the Criminal Procedure Act, arguing that execution of the security measure of expulsion would lead to the applicants' deaths. On 8 November 2000, the Basic Court accepted the petition, annulling the previous judgment of 4 August 2000 and re-opening fresh proceedings.
On 17 July 2001, Redjep and Djezide Berisha applied for voluntary repatriation to Kosovo. An emergency travel document was issued by the Embassy of the Federal Republic of Serbia. On 18 July 2001 the UNHCR informed the Ministry of the Interior that they had returned to Belgrade and returned their THAP certificates.
Hearings took place in the presence of the applicants' current legal representative on 7 and 20 March, 25 April 2002, 15 May 2002, 7 June 2002 and 19 June 2002.
On 19 June 2002, the Kriva Palanka Basic Court found the applicants guilty and imposed a suspended sentence of six months' imprisonment and ordered the forfeiture of the fake passports. The previous security measure of expulsion was withdrawn. The applicants, Djafer, Shanie and Jashar Berisha were present during the hearings. Redjep and Djezide Berisha remained in Kosovo.
In the absence of appeal by the prosecutor or the applicants, the judgment became final.
Article 352 reads as follows:
“(1) An accused may waive his right to lodge an appeal only when the first instance judgment is served on him. Except if he has been sentenced to a term of imprisonment, the accused may waive his right to lodge an appeal before being served with the judgment provided the prosecution and the person who sustained damage and had the right to appeal on all points [set out in this code] have waived their right to lodge an appeal. The accused may withdraw the appeal at any time until the appellate court has delivered its decision...
(2) The accused and the person who sustained damage may waive their right to lodge an appeal at any time between the judgment being made public and the time-limit for entering an appeal.
(3) An accused who has waived his right to appeal may not retract such waiver and lodge an appeal.”
Article 392 provides as relevant:
“(1) The criminal procedure concluded with an effective verdict may be repeated on behalf of the convicted, if...
(4) new facts are presented or new evidence submitted which by themselves or in conjunction with previous facts or evidence are such as to cause the person to be released or to be convicted on lesser grounds.”
Article 411 reads as follows:
“(1) An accused sentenced to a term of imprisonment may lodge an appeal on points of law on the grounds set out in the code.
(2) An appeal on points of law may be lodged within one month from the day the final decision was served on the accused.
(3) An accused who has not lodged an appeal may not lodge an appeal on points of law, unless having been acquitted, put on probation, reprimanded, or fined by the first-instance court, or unless he was sentenced to a term of imprisonment by the appellate court...”
An appeal on points of law does not suspend the enforcement of a final decision, unless the Supreme Court decides otherwise.
Section 33 provides that it is for the Minister of the Interior to decide when the expulsion order is to be enforced. An appeal can be lodged against the Minister's decision but it has no suspensive effect.
Section 39 provides that an alien shall not be expelled from the state territory if thereby his life will be put in jeopardy, because of his racial, religious or national affiliation, political beliefs or if he might be exposed to torture or inhuman treatment.