ITEMID: 001-72631
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ERIKAN BULUT v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 2;No separate issue under Art. 3 (specific incident);No violation of Art. 3 (treatment in general);Not necessary to examine Art. 6-1;No separate issue under Art. 13
TEXT: 8. The applicant was born in 1961 and lives in Istanbul.
9. On 26 August 1998 at about 6 p.m. the applicant was arrested in Istanbul by policemen from the Anti-Terrorism Branch of the Pendik Security Directorate on suspicion of aiding and abetting the PKK. Subsequently, the police officers carried out a search of the applicant’s office and of his flat with his permission. The same day at about 10 p.m. the applicant was examined by a doctor, who reported that there were no signs of injury on his body. The applicant was then taken to the Pendik Police Station to be interrogated.
10. On 27 August 1998 the public prosecutor verbally ordered the applicant’s release as there was no evidence against him. Consequently, at about 10.30 a.m. the applicant was handed over to the police officers from the Anti-Terrorism Branch of the Pendik Security Directorate to be released. He was initially taken to the Pendik Hospital where he was examined by a doctor, who stated that there were no signs of ill-treatment on his body. The applicant was then taken to the Pendik Security Directorate building. While he was waiting in a room with window guards, the police officers started preparing the report for his release. The applicant alleged that while he was waiting, the police officers made him drink drugged tea as a result of which he lost consciousness. According to the applicant, when he regained his consciousness, he was in the hospital. He had fallen out the window of the office which was on the fifth floor of the Security Directorate Building. The Government maintained that when the applicant was taken to an office to sign the release report, he had run and jumped out the window. According to the Government, this office, which was solely used by police officers, had no window guards. After the incident, the applicant was immediately taken to the hospital. The medical report of 28 August 1998 indicates that the applicant had several fractures. He had to stay in the hospital for three months before he recovered from his injuries.
11. The same day, the police officers prepared an incident report, drew a sketch map and took statements from eye-witnesses to the event. Police officers Mustafa Sezer, Burhanettin Tekler, Mustafa Yüksel, and İsmail Kaya Horta confirmed that the applicant had jumped out the window of the office which was on the fifth floor of the Security Directorate building. The police further took statements from Mr Ibrahim Nih and Mr Ali Aydın, two civilians, who happened to be in the same office at the time of the incident. They stated that as soon as the applicant entered the office, he had run towards the window and jumped out.
12. The applicant’s statement was taken on the same day at about 5 p.m. He confessed that he had run and jumped out the window at his own will. He stated that he had no complaints against anyone.
13. On 4 September 1998 the applicant’s representative filed a criminal complaint with the Pendik public prosecutor. In his petition, the applicant’s representative maintained that on 26 August 1998 the applicant had been subjected to ill-treatment by three police officers at the Pendik Security Directorate Building during his interrogation, before being taken to the Pendik police station to spend the night. The lawyer stated that one of the police officers was called Sezai Çetin. The applicant’s lawyer further maintained the applicant had been deliberately thrown out the window of the office situated on the fifth floor of the Security Directorate Building.
14. On 9 September 1998 the prosecutor took statements from Sezai Çetin and Ramazan Hokvan, the police officers who had arrested the applicant on 26 August 1998. They denied the ill-treatment allegations.
15. On 23 September 1998 the public prosecutor further took statements from police officers Mustafa Yüksel, Burhanettin Tekler and Mustafa Sezer, who had been on duty on the day of the applicant’s fall from the fifth floor. These officers stated that as soon as the applicant was taken to the office on the fifth floor to sign his release report, he had run towards the window and jumped out. They maintained that the applicant was very nervous and sweating.
16. On 28 September 1998 the public prosecutor took statements from the applicant and his wife. The applicant stated that he had been insulted and threatened while he was in custody at the police station. However he indicated that he had not been subjected to any physical ill-treatment. In particular, he stated that the police officer, Sezai Çetin, who was named by the applicant’s lawyer as one of the officers that had ill-treated the applicant, had in fact been very kind to him during his custody. The applicant explained that on the day of the incident, while he was waiting to be released, he drank a cup of tea and lost his consciousness. He subsequently woke up in the hospital. The applicant stated that he did not remember whether he had jumped or had been thrown out the window.
17. In her statement, the applicant’s wife explained that on 27 August 1998 at about 11 a.m. she had gone to the Pendik Police Station to visit the applicant. At first, the police officers refused to show the applicant to her. She overheard a police officer say to his superior that a liquid had been given to the applicant. She insisted, and the officers allowed her to see the applicant. According to the applicant’s wife, the applicant was lying on the floor, unconscious.
18. On 23 October 1998 the Pendik public prosecutor decided that no prosecution should be brought against the accused police officers on the ground that there was no sufficient evidence in support of the allegations. The public prosecutor concluded that the applicant had tried to commit suicide.
19. On 24 February 1999 the applicant’s representative challenged this decision before the Kadıköy Assize Court. In his petition, the lawyer stated that the applicant had been ill-treated during his custody at the police station. It was alleged that the applicant had been hosed with water, hung from his arms and subjected to electric shocks. The applicant’s representative further complained that the applicant had been deliberately thrown out the window. The applicant’s representative finally maintained that the applicant had lost his consciousness after drinking a cup of tea, which in his opinion had been drugged.
20. On 24 May 1999 the Kadıköy Assize Court, upholding the reasoning of the public prosecutor, dismissed the case.
21. On 12 July 2001 a forensic doctor attached to the Human Rights Foundation delivered a report about the applicant. Referring to the absence of a psychiatric report and a toxic examination, he concluded that the applicant had not been thoroughly examined at the hospital after his fall. He indicated that the applicant had been inscribed in a special recovery programme by the Istanbul Branch of the Foundation.
NON_VIOLATED_ARTICLES: 2
3


ITEMID: 001-114497
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MARTIKÁN v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Ján Martikán, is a Slovak national, who was born in 1974 and lives in Kysucké Nové Mesto.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was charged, indicted and tried for ill-treatment and rape (Articles 215 and 241 of the Criminal Code). The case was remitted to the Žilina District Court (Okresný súd), as the court of first instance, after its judgment (rozsudok) convicting the applicant had been quashed by the Žilina Regional Court (Krajský súd) following an appeal by the applicant (odvolanie).
The current state and outcome (if any) of the proceedings is unknown.
4. In the course of his trial the applicant was remanded in custody and the term of his detention was repeatedly extended. The relevant part of the requests, appeals and decisions is described below.
5. The requests for release of 24 February and 8 March 2006 were dismissed by the District Court on 20 March 2006 and, following an interlocutory appeal (sťažnosť) by the applicant, by the Regional Court on 30 May 2006, the final decision being served on the applicant on 16 June 2006. The proceedings leading up to the latter decision were found by the Constitutional Court (Ústavný súd) on 27 March 2007 to have been short of the “speediness” requirement under Article 5 § 4 of the Convention. Accordingly, the Constitutional Court found a violation of that provision and awarded the applicant the equivalent of some 900 euros (EUR) in just satisfaction.
6. In the same judgment (nález) the Constitutional Court found that the procedure leading up to a decision of the Supreme Court (Najvyšší súd) of 23 August 2006 to extend the applicant’s detention until 16 January 2007 had equally been incompatible with the applicant’s rights under Article 5 § 4 of the Convention. A separate violation of that provision was found and, in that respect, the applicant was awarded the equivalent of some EUR 600 by way of just satisfaction.
7. The request for release of 2 October 2006 was dismissed on 2 November 2006 and, following an interlocutory appeal by the applicant, also on 12 December 2006.
8. On 20 November 2006 the applicant again requested release. He relied on different grounds from those submitted in his previous request, which at that time had not yet been determined. In particular, the applicant argued that in the proceedings leading up to the Supreme Court decision of 23 August 2006 (see paragraph 6 above) on the last extension of his detention, he had been deprived of access to the case file and his observations had not been taken into account. This request has never been determined, which was found by the Constitutional Court to be in breach of the applicant’s rights under Article 5 § 4 of the Convention (see paragraphs 12 et seq. below).
9. A further request for extension of the applicant’s detention was dismissed on 11 January 2007, which is why the applicant was released, on 16 January 2007. In that decision, the Supreme Court observed, inter alia, that repeated requests for release and challenges for bias were the lawful right of the applicant and that, although they had undoubtedly had an impact on the length of the proceedings, they were no excuse in themselves for unjustified delays in the proceedings.
10. In the course of the proceedings, the applicant sought the withdrawal of individual judges as well as the entire bench of the District Court and the Regional Court, on the grounds of bias. These challenges had the following outcomes:
- A challenge concerning an assessor in the District Court chamber dealing with the applicant’s case was dismissed as unfounded on 2 November 2006 and, upon an interlocutory appeal by the applicant, also on 12 December 2006.
- Further challenges were lodged on 7 and 20 November 2006, against all the judges of the Regional Court and the presiding judge of the District Court’s chamber dealing with the applicant’s case. Their outcomes are unknown.
11. On 18 January and 5 March 2007 the applicant introduced and amended respectively a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court, contending that the procedure in respect of his request for release of 20 November 2006 (see paragraph 8 above) had been contrary to his rights under Article 5 § 4 of the Convention.
12. On 2 August and 20 December 2007, respectively, the complaint was declared admissible and the Constitutional Court found a violation of the applicant’s rights under the provision invoked.
The Constitutional Court acknowledged that the applicant’s request for release of 20 November 2006 was based on grounds other than those in his request of 2 October 2006. The applicant was thus not precluded by law from making the second request before the final determination of the first one. Nevertheless, it had to be taken into account that the grounds underlying the second request must have already been known to the applicant at the time of the first request.
13. The Constitutional Court further observed that, at the relevant time, the District Court had to deal with a number of matters concerning the applicant’s detention, including a request for its extension. However, in view of the Constitutional Court, it had been for the District Court to deal first with the applicant’s request for release and only then with the other matters, and not, as the District Court had done, the other way round.
14. The Constitutional Court considered that the applicant’s procedural actions, and especially their accumulation at the relevant time, had been obstructionist in nature and that, with the term of the applicant’s detention nearing its end, as authorised at that time in the decision of 23 August 2006 (see paragraph 6 above), the applicant’s intention in taking those actions had been to create a time constraint for the courts. However, this had had no impact on the substantive conclusion, but was to be taken into account in connection with the applicant’s compensation claim. It was precisely for this reason that the Constitutional Court concluded that the finding of a violation of the applicant’s right was sufficient satisfaction for him. In addition, the applicant was awarded legal costs.
15. The relevant part of Article 46 reads as follows:
“...
3. Everyone shall have the right to compensation for damage caused by an unlawful decision of a court, other State body or a body of public administration, or by wrongful official action.
4. Conditions and details ... shall be provided for by an Act of Parliament.”
16. Article 127:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may award appropriate financial compensation to a person whose rights under paragraph 1 have been violated.
4. Liability for damage or other loss in respect of a person who has violated rights or freedoms as referred to in paragraph 1 shall not be affected by a Constitutional Court decision.”
17. The Constitutional Court Act (Law no. 38/1993 Coll., as amended) governs the organisation of the Constitutional Court, the procedure before it and the status of its judges.
An individual complaint under Article 127 of the Constitution is made subject to the rule of exhaustion of ordinary remedies, which is formulated in the relevant part of section 53(1) and (2) as follows:
“1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute.
2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition for reasons worthy of particular consideration.”
18. Under its section 56(4), when dealing with individual complaints, in the event of a finding of a violation of a fundamental rights or freedoms:
“The Constitutional Court may also grant appropriate financial compensation to a person whose fundamental right or freedom has been violated.”
19. Section 56(6) provides that:
“If the Constitutional Court quashes a final and binding (právoplatné) decision, measure or act and remits the matter for further proceedings, the person who issued the decision, decided on the measure or carried out the act is liable to examine and determine the matter anew. In such proceedings or a procedure [he] is bound by the legal view of the Constitutional Court.”
20. In connection with the present application, as well as three other individual applications under the Convention of a similar kind, the Constitutional Court produced a report.
The report is dated 7 March 2011 and concerns specifically the existence of an enforceable right to compensation, as required by Article 5 § 5 of the Convention, in respect of detention in contravention of Article 5 §§ 1 to 4 of the Convention and the Constitutional Court’s practice in awarding appropriate financial compensation.
The report and case-law references contained therein can be summarised as follows.
21. Awarding appropriate financial compensation under Article 127 § 3 of the Constitution is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals and legal entities which has been found by the Constitutional Court. The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection higher than the mere finding of a violation or, as the case may be, an order by the Constitutional Court that a case be dealt with without a violation of the fundamental right in question (cases nos. IV ÚS 410/04 and IV ÚS 139/08).
The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy the violation of the right or freedom by quashing the impugned decision or measure or by restoring the status quo ante (case no. I ÚS 15/02).
The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right; the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned (mutatis mutandis, case no. III ÚS 424/08).
22. As regards the system of remedies in respect of detention in violation of Article 5 §§ 1 to 4 of the Convention, by virtue of Article 127 § 4 of the Constitution, the liability of a person who has violated rights or freedoms as referred to in paragraph 1 of that Article for damage or other loss is not to be affected by the Constitutional Court’s decision, including on appropriate financial compensation. This provision is of particular relevance in correlation with the right to compensation for damage (including nonpecuniary damage) caused by a public authority under the State Liability Act.
23. The provision of Article 127 § 3 of the Constitution, which allows for an award of appropriate financial compensation, is a special and autonomous remedy, which is independent of the State Liability Act. It does not constitute a lex specialis and, therefore, an award or non-award of appropriate financial compensation under Article 127 of the Constitution does not preclude a claim for compensation for pecuniary or non-pecuniary damage under sections 7, 8 and 9 of the State Liability Act.
24. The State Liability Act (Law no. 514/2003) was enacted on 28 October 2003 and became operative on 1 July 2004. It provides for the liability of the State for damage which has been caused by, inter alia, unlawful arrest, detention (zadržanie) or other deprivation of liberty (section 3(1)(b)); decisions concerning remand in custody (väzba) (section 3(1)(c)); and wrongful official action (section 3(1)(d)).
25. Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty has been quashed as being unlawful or where there has been wrongful official action in that context, a person affected by it is entitled to compensation for damage.
26. The right to compensation for damage caused by a decision concerning detention on remand is vested in the person who has been detained, provided that any criminal proceedings against him or her have been dropped (section 8(5)(a)), or he or she has been acquitted (section 8(5)(b)), or the matter has been referred to another authority (section 8(5)(c)).
27. However, no such right arises when the person concerned himself or herself has given cause to be remanded in custody (section 8(6)(a)).
28. Section 9, which deals with compensation for damage caused by wrongful official action, provides:
“1. The State is liable for damage caused by wrongful official action. Wrongful official action includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities.
2. The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage.”
29. Section 17 defines the manner and extent of compensation for damage. Its relevant part provides:
“1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise.
2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.”
30. Under section 25(4), unless provided for otherwise by special legislation, disputes concerning matters regulated by the State Liability Act are to be decided upon by the courts.
31. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal.
On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant’s appeal.
32. On 14 October 2009 the Bratislava Regional Court allowed an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act for damages and awarded him a sum of money in compensation for non-pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal.
33. In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava I District Court allowed an action for damages by an individual against the State under the State Liability Act and awarded the claimant a sum of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial.
The impugned wrongful official action concerned extension of the claimant’s detention pending trial.
The action was preceded by a constitutional judgment of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant’s rights under Article 5 §§ 3 and 4 in connection with the same facts.
However, the Constitutional Court did not award the claimant damages, as he had made no claim for damages.


ITEMID: 001-77576
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOVAL v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (Article 35-3-a - Ratione materiae;Ratione temporis);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing;Adversarial trial;Equality of arms);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born on 28 April 1951 and currently resides in Kyiv.
9. On 29 November 1997 the General Prosecution Service (“the GPS”) detained the applicant on suspicion of forgery committed by a public official (державним службовцем).
10. On 30 November 1997 the head of a department of the GPS (“the Head of Department”) ordered that the applicant should be placed in custody since there was a risk that he might abscond and obstruct the investigation of the case.
11. On 2 December 1997 the Head of Department ordered the applicant's detention pending trial and his transfer to the Zhytomyr Regional Investigative Isolation Unit (SIZO – Слідчий Ізолятор Житомирської області).
12. On 29 June 1998 the GPS decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention. The applicant was released.
13. On 20 October 1998 the GPS, having allegedly found new evidence of the applicant's involvement in unlawful currency transactions and abuses of power, initiated a criminal investigation into the allegations.
14. Furthermore, the GPS decided on that date that the applicant should be taken into custody on the ground that he was obstructing the investigation of criminal acts. New charges concerning other serious offences were brought against him. The GPS also ordered his transfer to the Security Service Investigative Isolation Unit (“the SIZO SBU” – Слідчий Ізолятор Служби Безпеки України). On the same date the applicant was placed in the SIZO.
15. On 27 November 1998 the Pechersky District Court of Kyiv quashed the GPS's decision of 20 October 1998 and changed the preventive measure to an undertaking by the applicant not to abscond. The applicant was released.
16. On 30 November 1998 the Deputy Prosecutor General lodged an application for supervisory review (протест) of the decision of the Pechersky District Court, seeking to have it quashed on the grounds that it was not justified by the evidence in the case file and contravened the relevant legislation.
17. The Kyiv City Court allowed the Deputy Prosecutor General's application and quashed on 30 November 1998 the decision of 27 November 1998. On the same date the GPS ordered the applicant's detention pending trial. As a result, the applicant was immediately arrested and transferred to the SIZO SBU.
18. On 3 August 1999 the Kyiv City Court decided not to release the applicant from detention, but to transfer him from the SIZO SBU to the Kyiv Regional Investigative Isolation Unit no. 13 (“SIZO no. 13”) owing to the need to provide him with specific medical assistance which could not be provided in the SIZO SBU. The applicant was detained in SIZO no. 13 from 3 August 1999 to 6 June 2000.
19. On 6 June 2000 the applicant was transferred to Mensk Penitentiary. Apparently, he started serving his sentence on 8 June 2000, the date of his arrival at Mensk Penitentiary, where he started receiving inpatient treatment in the medical unit.
20. On 23 and 26 June 1998 the applicant's wife, Ms Larysa M. Koval, deposited the sum of 500,000 Ukrainian hryvnyas (UAH) in a GPS deposit account as bail with a view to the applicant's subsequent release.
21. On 29 June 1998 the Deputy Head of the GPS Department for Investigation of Serious Offences decided to release the applicant on bail as it was impossible to provide him with the necessary medical treatment in detention. That decision was approved by the Deputy Prosecutor General. As a result of the decision the applicant was prohibited from leaving the territory of Ukraine. On the same date Ms Koval signed a declaration attesting that she had been informed about the bail conditions and the possibility of the sum being confiscated. The same document was signed by the applicant.
22. On 9 September 1998 the applicant, allegedly by chance, met one of the witnesses, Mr O. Bogomolov, at Kyiv Central Railway Station. During the meeting he apparently asked Mr O. Bogomolov to tell the investigation that the payment for the flat which the applicant had acquired from him had been made not in foreign currency, but in Ukrainian hryvnyas.
23. On 12 October 1998 an investigator from the GPS received information from Mr O. Bogomolov to the effect that the applicant had met him on 9 September 1998 and had tried to influence his statement. This was later confirmed by the witness's wife (Ms Tyshchenko), who informed the prosecution that the applicant had threatened to initiate criminal proceedings against her and Mr Bogomolov for unlawful currency transactions. The investigator made a tape recording of the interview and produced a verbatim record of it and the witness statements by Ms Tyshchenko.
24. On 20 October 1998 the GPS initiated a criminal investigation into the alleged unlawful currency transactions and abuses of power. On the same date the Deputy Prosecutor General ordered that the applicant should be taken into custody on the grounds that he was obstructing the investigation of criminal acts, had breached the obligations entered into at the time of his release from detention and was charged with serious offences. He also stated that new charges concerning other serious offences had been brought against the applicant.
25. On 4 November 1998 the applicant's lawyers appealed to the Pechersky District Court against the decision to detain the applicant, alleging that it was unlawful and referring to the substantial deterioration of his state of health. They stated that the findings of his previous medical examination had been confirmed on 2 November 1998.
26. On 27 November 1998 the Pechersky District Court quashed the GPS's order of 20 October 1998 following the applicant's appeal. On the same date the GPS changed the preventive measure to an undertaking by the applicant not to abscond. In particular, the court held:
“... On 20 October 1998 criminal proceedings were instituted against Mr V.G. Koval on suspicion of his involvement in offences referred to in Article 165 § 2 and Article 80 § 2 of the Criminal Code and on the same date the applicant was charged with offences under Article 80 § 2, Article 165 § 1 and Article 172 of the Criminal Code and questioned as an accused on the basis of the aforementioned provisions.
On 20 October the investigator decided that Mr V.G. Koval should be held in detention.
As can be seen from the investigator's decision, the grounds for detaining V.G. Koval were that he was charged with serious offences and that the preventive measure chosen took into account the gravity of these offences, and also that while at liberty he interfered with the establishment of the truth in a criminal case and seriously breached his obligations as to appropriate conduct.
... The representative of the General Prosecution Service, in the court's view, has not provided any corroborating evidence that Mr V.G. Koval has evaded requests to appear before an investigator or has tried to interfere with the investigation in the case. There is no evidence of the aforementioned facts in the case file...
The General Prosecution Service's reference to the fact that Mr V.G. Koval encouraged the witnesses Ms L.D. Tyshchenko and Mr O.I. Bogomolov to change their witness statements in the part that related to the sale of a flat in foreign currency ... cannot be considered by the court to have had any influence on the investigation, as Mr V.G. Koval had met the aforementioned persons by chance and did not insist on their changing their statements; his recommendations that they tell the investigator in the case that the payments had been made in national currency, as can be seen from the verbatim records of the interviews of the aforementioned persons, were of a consultative nature.
The court has not obtained any other corroborating evidence that Mr V.G. Koval influenced the course of the investigation or interfered with the establishment of the truth in the case, or that he violated other obligations he had entered into with regard to appropriate conduct...
Also, the court considers that Mr V.G. Koval's state of health was not taken into account when the issue of the applicable preventive measure was being decided upon...
... on the basis of the foregoing, and in accordance with Article 236-4 of the Code of Criminal Procedure of Ukraine, the court
DECIDES
... to quash the detention order issued by the Deputy Prosecutor General on 30 October 1998 ...”
27. On 30 November 1998 the Deputy Prosecutor General lodged an application for supervisory review (протест) of the decision of the Pechersky District Court, seeking to have it quashed on the grounds that it was not justified by the evidence in the file and contravened the relevant legislation.
28. On the same date the Presidium of the Kyiv City Court allowed the Deputy Prosecutor General's application and quashed the decision. On the same date the GPS ordered the applicant's detention pending trial. As a result, the applicant was immediately arrested and transferred to the SIZO SBU. In particular, the Kyiv City Court held:
“... it can be seen from the witness statement by Mr O.I. Bogomolov that in the period when Mr Koval was released on bail (September 1998) Mr Koval met Mr Bogomolov and asked him to change his witness statements about the currency which he had used to pay for the flat he had acquired, a fact which could have influenced considerations as to the elements of the offence provided for in Article 80 § 2 of the Criminal Code of Ukraine.
Taking into account the foregoing, and Mr Koval's attempt to influence the course of the investigation in the case and the fact that he was charged with serious offences, on 20 October 1998 the measure applied to Mr Koval was changed to detention.
[The court accordingly] DECIDES...
To quash the decision of 27 November 1998 by the judge of the Pechersky District Court of Kyiv to declare null and void the warrant issued by the Deputy Prosecutor General for the arrest of Mr V.G. Koval.”
29. Further complaints by the applicant lodged with the President of the Supreme Court with a view to initiating supervisory-review proceedings against the Kyiv City Court's decision were dismissed on 13 January 1999 as being unsubstantiated.
30. On 19 January 1999 the GPS investigator refused to institute criminal proceedings against the applicant for attempting to influence witnesses as his actions did not correspond to the corpus delicti envisaged in Article 180 of the Criminal Code. The tape recording of Mr Bogomolov's witness statements was destroyed on 3 March 1999 on the ground that it was no longer necessary because the criminal proceedings against Mr Bogomolov had ended. That decision was based on Articles 81 and 131 of the Code of Criminal Procedure.
31. On 27 May, 1 June and 4 June 1999 the applicant, his wife and his lawyers lodged unsuccessful complaints with the Kyiv City Court, seeking to have the preventive measure changed to an undertaking by the applicant not to abscond, and also to have him medically examined. Hearings took place on 14 June, 15, 20, 27 and 29 July and 3 August 1999.
32. On 27 December 1999 the Kyiv City Court sentenced the applicant to five years and six months' imprisonment and ordered the confiscation of his personal property. The court also deprived the applicant of the right to occupy official positions for three years and stripped him of the rank of Ambassador Extraordinary and Plenipotentiary, second class, following his conviction for unlawful currency transactions (Article 80-2 of the 1960 Criminal Code of Ukraine – “the CCU”), abuse of power (Article 165-1 of the CCU), and forgery committed by a public official (Article 172 of the CCU). In the course of the proceedings the applicant requested leave to question particular witnesses who, he maintained, could prove his innocence. This request was refused by the Kyiv City Court, which based its findings of guilt on other corroborating evidence.
33. The Kyiv City Court also ordered the forfeiture of the applicant's bail, a sum of UAH 500,000. In particular, it held:
“... when questioned as an accused Mr O.I. Bogomolov explained that he had changed his witness statement after his conversation with Mr V.G. Koval, who had recommended that, if he did not wish to be held criminally liable, he should say that the agreement had been concluded in hryvnyas and not in United States dollars.
... A witness, Ms Tyshchenko, has explained that Mr O.I. Bogomolov changed his witness statements after a meeting with Mr V.G. Koval, who said that his lawyers would seek to institute criminal proceedings against Mr O.I. Bogomolov under Article 80 § 2 of the Criminal Code.
... As can be seen from the case file, on 29 June 1998 it was decided that V.G. Koval should be released on payment of UAH 500,000 bail.
The sum mentioned above was deposited by ... Ms L.M. Koval in the account of the General Prosecution Service.
Mr V.G. Koval had been informed about his obligations and the consequences of his possible failure to comply with them, and Ms L.M. Koval as surety had been informed about the offences that Mr V.G. Koval was charged with and also that in the event of failure to comply with his obligations bail would be forfeited in favour of the State. One of the obligations of Mr V.G. Koval related to appropriate conduct.
In a decision of 20 October 1998 the preventive measure of release on bail applied to Mr V.G. Koval was amended to detention. This was because he had seriously breached his obligations relating to appropriate conduct, had coerced witness into making false statements with regard to offences committed by him, and had interfered with the establishment of the truth in the case.
In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused and/or defendant breaches his or her obligations, bail shall be forfeited in favour of the State.
The fact that Mr V.G. Koval infringed his obligations with regard to appropriate conduct by coercing the witness Mr O.I. Bogomolov into making false statements is proved by the aforementioned witness statements of Mr O.I. Bogomolov and Ms L.D. Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998.
In such circumstances the court considers it necessary for the bail deposited by Ms L.M. Koval in the amount of UAH 500,000 to be forfeited in favour of the State.
On the basis of the foregoing, and having regard to Articles 323 and 324 of the Code of Criminal Procedure, the court
ORDERS
... the forfeiture in favour of the State of the sum of bail in the amount of UAH 500,000 currently being held in the deposit account of the General Prosecution Service of Ukraine.”
34. On 4 January 2000 the applicant appealed to the Supreme Court, seeking to have the Kyiv City Court's judgment of 27 December 1999 quashed and the proceedings in the case terminated. He and his lawyers claimed that the Kyiv City Court had unfairly assessed the evidence in the case, having based its finding on evidence that did not prove his guilt and having failed to establish the objective truth in the case.
35. On 27 April 2000 the Supreme Court partly allowed the applicant's appeal and varied the judgment of 27 December 1999. In particular, it reclassified the offence of unlawful currency transactions and sentenced him to five years' and six months' imprisonment for aiding and abetting unlawful currency transactions. It also held that the applicant should be regarded as having been sentenced for forgery committed by a public official, as provided in the Criminal Code of 12 January 1983. It upheld the remainder of the judgment. The Supreme Court held in particular:
“... As can be seen from the case file, Mr Koval was released on bail on 29 June 1998 for a sum of UAH 500,000.
The aforementioned sum was deposited by Mr Koval's wife Ms L.M. Koval on 23 and 26 June 1998 in the account of the General Prosecution Service.
Mr Koval was informed about his bail obligations and the consequences of his failure to comply with them, and Ms L.M. Koval was informed about the offences that Mr Koval had been charged with, and about the possible forfeiture of the bail in the event of his failure to comply with these obligations. One of the obligations imposed on Mr Koval related to appropriate conduct.
In accordance with the decision of 20 October 1998 by the investigator from the General Prosecution Service, the preventive measure of bail chosen in respect of Mr Koval was changed to detention. One of the reasons for this [change] was that he had seriously breached his obligations regarding appropriate conduct, and in particular that he had coerced witness into making false statements, thus interfering with the establishment of the truth in the case.
In accordance with Article 154-1 of the Code of Criminal Procedure, if a suspect, accused or defendant infringes his obligations, bail is forfeited in favour of the State.
The fact that Mr Koval breached his bail obligations concerning appropriate conduct by coercing Mr Bogomolov into giving false evidence has been proved by the witness statements of Mr Bogomolov and Ms Tyshchenko, as the Presidium of the Kyiv City Court found in its decision of 30 November 1998.
Accordingly, the investigative bodies changed the preventive measure applied to the applicant on lawful grounds.
The submissions to the effect that that decision was unlawful and that the decision of the Presidium of the City Court was unsubstantiated are invalid as it can be seen from the case file that Mr Koval had tried to influence witnesses to give false evidence.
The reference to the investigator's decision to refuse, on the basis of paragraph 2 of Article 6 and Article 130 of the Code of Criminal Procedure, to institute criminal proceedings against Mr Koval under Article 180 of the Criminal Code of Ukraine is not substantiated as the refusal to institute criminal proceedings was based on allegations of coercing Mr Bogomolov and Ms Tyshchenko into giving false witness statements. At the same time, the decision in question mentions that Mr Koval attempted to coerce witnesses into giving false statements.
The submissions in the appeal to the effect that Ms L.M. Koval was not examined by the court as a surety, in breach of the law, is unsubstantiated, since in accordance with Article 154-1, paragraph 6, of the Code of Criminal Procedure, the non-appearance of a surety in court without good reasons does not constitute an obstacle to reviewing the issue of the forfeiture of bail ...
As can been seen from the case file, neither the defendant nor his lawyers requested Ms L.M. Koval, as surety, to produce witness statements before the court.
Under these circumstances there are no grounds for holding that there has been a violation of the law on account of the decision to confiscate bail [in favour of the State].
[The court accordingly] RULES
[that] ... Mr Koval shall be regarded as having been sentenced for the offences provided for in paragraph 6 of Article 19, Article 80 § 2, Article 165 § 1, Article 165 § 2, Article 172 § 1 and Article 172 of the Criminal Code of 12 January 1983 to five years and six months' imprisonment ... in addition, all of his personal property shall be confiscated, he shall be disqualified from occupying posts relating to managerial functions in government bodies for a period of three years and shall be stripped of the rank of Ambassador Extraordinary and Plenipotentiary, second class.”
36. On 6 and 18 July 2000 the applicant and his lawyers lodged complaints with the President of the Supreme Court, seeking to institute supervisory proceedings in the case and to have the above-mentioned decisions quashed. On 6 December 2000 the Deputy President of the Supreme Court of Ukraine dismissed these complaints as being unsubstantiated.
37. The applicant and his lawyers lodged further complaints against the above-mentioned decisions with the President of the Supreme Court. On the basis of these complaints, on 5 February 2001 the Deputy President of the Supreme Court applied to the Plenary Supreme Court for supervisory review, seeking to have the decisions quashed, the applicant's offence reclassified and the case remitted for fresh consideration as regards the forfeiture of his bail.
38. On 6 April 2001 the Plenary Supreme Court, with 85 judges sitting, partly allowed its Deputy President's application. It decided to vary the judgment of the Kyiv City Court of 27 December 1999 and the ruling of the Supreme Court of 27 April 2000. It also held that one of the offences committed by the applicant should be reclassified from abuse of power with serious consequences to abuse of power with no serious consequences. It further decided to sentence the applicant to four years' imprisonment and to prohibit him from occupying government positions for two years. It ruled that the penalty stripping him of the rank of Ambassador Extraordinary and Plenipotentiary, second class, should be expunged from the decisions. It also upheld the decision on the forfeiture of his bail, finding that the applicant's complaints were unsubstantiated and seeing no procedural infringements of the law on criminal procedure in this matter.
39. The applicant underwent a medical examination on 11 March 1998 at the Forensic Medical Examination Bureau of the Zhytomyr Regional Council's Department of Health Protection (“the Zhytomyr Forensic Bureau”). The expert opinion that assessed the applicant's health between 18 February and 3 March 1998 found that his diseases included first-degree myocardial cardiosclerosis (міокардичний кардіосклероз першого ступеню), extensive spinal osteochondrosis (поширений спинний остеохондроз), chronic duodenitis (хронічний дуоденіт), chronic parenchymatitis of the prostate (хронічний паренхіматозний простатіт), internal and external haemorrhoids (внутрішньо-зовнішній геморрой) and the residual effects of a small cerebral haemorrhage in the basin of the right middle cerebral artery with left-hand side pyramidal deficiency and general vasomotor neurosis (залишкові явища малого інсульту в басейні правої середньо-мозкової артерії з лівосторонньою пірамідальною недостатністю на фоні вегето-судинної дистонії). It concluded that the applicant could be held in custody in the Zhytomyr SIZO and was fit to take part in the investigation. He could be provided with urgent medical assistance if necessary.
40. On 19 May 1998 the Kyiv City Forensic Medical Examination Bureau (“the Kyiv Forensic Bureau”) conducted a second examination of the applicant. The examination revealed that the applicant was suffering from second-degree hypertension, the residual effects of a stroke, a benign tumour of the occipital part of the head and extensive spinal osteochondrosis.
41. On 24 and 27 October 1998 the applicant was examined by a doctor from the SIZO SBU. The SIZO SBU medical unit examined blood samples taken from him.
42. On 11, 19 and 22 November 1998 and 12 and 19 November 1998 the applicant was examined by the Ambulance Service and doctors from the SIZO SBU respectively, as he complained about heartache. The Ambulance Service confirmed that the applicant was suffering from critical second-degree idiopathic hypertension (гіпертонічна хвороба другого ступеню), second-degree cardiosclerosis (міокардичний кардіосклероз першого ступеню) and ischaemic heart disease (ішемічна хвороба серця).
43. On 30 November 1998 the applicant was hospitalised with acute hypertension.
44. From December 1998 until June 1999 the applicant unsuccessfully lodged a number of complaints with the GPS, the Supreme Court and the SIZO SBU seeking his release from custody on account of his poor state of health.
45. The Government provided no evidence of the applicant's treatment or the medical assistance provided to him from 22 November 1998 to 13 March 1999. Between 10 October 1998 and 19 July 1999 the applicant was visited ten times by doctors from the SIZO SBU. These included two visits by a dentist and a surgeon. On 5 and 12 March 1998 the applicant refused to take cognisance of an indictment and the case file because of his poor health. On 13 (twice), 15, 17 and 18 March, 5 and 22 April, 27 May, 1, 2, 4, 5, 9 and 16 June and 8, 9, 11, 13, 16 (twice) and 18 July 1999 the applicant was examined by doctors from the Ambulance Service and from the SIZO SBU.
46. On 27 May, 1 June and 4 June 1999 the applicant, his wife and his lawyers lodged complaints with the Kyiv City Court, seeking to have the applicant medically examined. Hearings took place on 14 June, 15, 20, 27 and 29 July and 3 August 1999.
47. During the hearing on the merits of the criminal charges brought against the applicant on 14 June 1999 the Kyiv City Court decided to order his medical examination.
48. Between 30 June and 1 July 1999 the applicant's state of health was examined in the SIZO SBU and the outpatient department of Kyiv Central Hospital.
49. On 7 July 1999 the court requested the SIZO SBU to inform it whether it was possible to provide the applicant with the necessary inpatient medical treatment for the diseases from which he was suffering.
50. On 14 July 1999 the Deputy Chairman of the State Security Service replied that it was impossible to provide such treatment. In particular, he mentioned that the only medical staff of the SIZO SBU were a physician and a paramedic, who provided medical assistance in urgent cases.
51. From 16 June to 2 July 1999 a medical examination by a commission of the Kyiv Forensic Bureau composed of six doctors, set up on the basis of a decision of 14 June 1999 by the Kyiv City Court, concluded that the applicant was not suffering from any life-threatening disease, and that he should be given in-hospital medical treatment should it transpire that he could not be treated adequately during his detention. In particular, the medical examination revealed that the applicant was suffering from critical second-degree idiopathic hypertension (гіпертонічна хвороба другого ступеню), a second-degree circulatory brain disorder (дисциркуляторна енцефалопатія другого ступеню), the residual effects of a small cerebral haemorrhage, asthenovegetative syndrome (астено-вегетативний синдром), a duodenal papillary ulcer (виразкова хвороба дванадцятиперстної кишки), gastritis (гастрит), erosive bulbitis (ерозивний бульбит), hypokinetic dyskinesia of the large bowel (гіпокінетична дискінезія товстої кишки), spastic colitis (спастичний коліт), internal and external haemorrhoids (зовнішньо-внутрішній геморой), fibrolipoma of the tenth left rib (фіброліпома десятого міжреб'я зліва), seborrhoeic dermatitis (себорейний дерматит) and retinal angiopathy with impairment of visual acuity (ангіопатія сітчатки із зниженням гостроти зору).
52. On 22 July 1999 the governor of SIZO no. 13 informed the Kyiv City Court that the applicant could not be provided with the necessary medical treatment at the SIZO's medical unit owing to the lack of necessary medical staff and equipment.
53. On 3 August 1999 the Kyiv City Court, having examined the results of the medical examination conducted between 16 June and 2 July 1999 and the evidence produced before it by the parties, decided to transfer the applicant from the SIZO SBU to SIZO no. 13 on account of his need for medical assistance. In the course of the hearing, the prosecution submitted a different document issued by SIZO no. 13, signed by its deputy governor on 29 July 1999, stating that the applicant could be provided with the necessary medical treatment and that it would be possible to use an external doctor's assistance for that purpose. It also took into account a similar response of 2 August 1999 from the Head of the Department for Enforcement of Sentences. The court also ordered SIZO no. 13 to inform it about the applicant's state of health and about his ability to participate in hearings. In a separate decision the court refused to change the applicable preventive measure.
54. From 8 June 2000, when he was transferred from pre-trial detention to serve his sentence in Mensk Penitentiary, the applicant received inpatient treatment in the penitentiary's medical unit.
55. The applicant claimed that the cells of SIZO no. 13 had been infested with pests. An elevated, open toilet had been situated not far from the table, opposite the door of the 12-square-metre cell inhabited by eight inmates. There had been no privacy in the cell and everybody had smoked. The conditions in the medical unit, where the applicant had stayed from 3 August 1999 until 6 June 2000, had been practically the same as in the other cells. The cells had been overcrowded, with 10-12 persons in a space of 14 square metres. Sick detainees who were transferred under guard from other penitentiary institutions or detention facilities, some of them suffering from tuberculosis and venereal diseases, had been held with other detainees in the same detention facilities, thus creating a risk of infection.
56. As to the detention conditions in the SIZO SBU, the applicant stated that they were much better, but that the cell had been equipped in such a way that a detainee constantly felt humiliated. The toilet had been situated in the middle of the cell, on an elevated concrete base, absolutely open. It had been placed so as to be seen not only by the cellmates, but also by the prison guards. Almost half of the prison guards were women. There was no water in the cell. Cold water was supplied only upon the request of a detainee for a short period of time.
57. The applicant maintained, referring to the 1999 Report of the State Accounting Chamber “on the results of inspecting the budgetary allocations for the maintenance of the State Department for the Enforcement of Sentences and its facilities and institutions”, that the detention conditions were of a poor standard because the State budget had allocated only UAH 2.9 million to the penitentiary system, which amounted to an average of UAH 13 per detainee a year, or UAH 1 per month. In 2000 that sum had been reduced to UAH 11 a year, that is, UAH 0.90 a month. In 1999 the State budget had provided only 25.4% of the sum requested for prisoners' nutrition requirements, and in 2000 this sum had been reduced to 14.5%, which had resulted in the allocation of UAH 0.38 a day per person for food. The applicant alleged that, at the time of his incarceration, the Kyiv Regional Investigative Isolation Unit no. 1 (SIZO no. 13) had received only UAH 0.08 per day per detainee for expenditure from the State budget and that it accordingly had not been possible to treat the applicant for a disease such as his ulcer whilst in detention.
58. The Government contended the applicant's factual submissions as to the conditions in which he had been detained, however, provided no particularities to support their comments on the actual detention conditions in SIZO SBU and SIZO no. 13.
59. The relevant provisions of the Criminal Code read as follows:
“It shall be an offence punishable by up to 4 years' imprisonment or by compulsory labour in a penitentiary for a term of up to 2 years to interfere with the appearance of a witness... before a court or the bodies responsible for the preliminary investigation or inquiry; to exert unlawful pressure on a witness in order to force him or her to refuse to testify or produce evidence, or to give false evidence under threat of murder, violence, destruction of the witness's property or that of his or her close relatives, or disclosure of information defaming the witness; to bribe a witness, ... with the same purpose; or to threaten to carry out the above-mentioned actions in revenge for evidence produced previously.”
60. The relevant provisions of the Code of Criminal Procedure read as follows:
“Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions.
Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities.
If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence.
If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.”
“The preventive measures are as follows:
(1) a written undertaking not to abscond;
(2) a personal surety;
(3) a surety provided by a public organisation or labour collective;
(3-1) bail;
(4) remand in custody;
(5) supervision by the command of a military unit.
As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”
“In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person's age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.”
“Bail consists in the deposit, by the suspect, accused, defendant or any other natural or legal persons, of money or other assets with the body responsible for the preliminary investigation or with a court for the purpose of ensuring the proper conduct of the person with respect to whom the preventive measure has been applied, his or her fulfilment of the undertaking not to leave his or her place of permanent or temporary residence without the permission of the investigator or the court, and his or her appearance upon a summons before the investigative body or the court.
's tax-exempt minimum income with regard to a person who is accused of committing a serious crime punishable by deprivation of liberty for a term of more than 10 years; 500 times the citizen's tax-exempt minimum income with regard to a person accused of committing another serious crime or a person with a previous conviction; and 50 times the citizen's tax-exempt minimum income with regard to any other persons. In all cases the amount of bail shall not be less than the amount of the civil claim, substantiated by sufficient evidence.
On the payment of bail, the suspect, accused or defendant shall be apprised of his or her obligations and the consequences of their non-fulfilment, and the person who stands surety shall be apprised of the offence of which the person in respect of whom bail is applied is suspected or accused, and informed that, in the event that this person fails to fulfil these obligations, the bail will be forfeited in favour of the State.
Before the case has been referred to the court, a preventive measure in the form of bail may be imposed on a person who is held in custody only with the permission of the prosecutor who authorised the detention and, after the case has been referred to the court, such a measure may be imposed only by the court.
The person who stands surety may refuse to perform the obligations entered into prior to the emergence of the circumstances requiring the forfeiture of the bail in favour of the State. In this case he or she shall ensure the appearance of the suspect, accused or defendant before the investigative body or the court with a view to having the preventive measure imposed on him or her replaced by a different one. Bail shall be returned only after a new preventive measure has been chosen.
In the event that a suspect, accused or defendant breaches his or her obligations, bail shall be forfeited in favour of the State. The issue of forfeiture of bail to the State shall be determined by the court at a hearing during the consideration of the case or in separate proceedings. The surety shall be summoned to the court in order to give explanations. Failure of that person to appear before the court for a hearing without good reason shall not obstruct the examination of the issue of the forfeiture of bail in favour of the State.
The issue of returning the bail to the surety shall be resolved by the court during the trial of the case. Bail deposited by the suspect, accused or defendant may be withheld by the court for the purpose of executing the judgment in the form of compensation for damage.” (As amended by Article 154-1, in accordance with the Law of 20 November 1996, р. N 530/96-ВР)
“With regard to the application, annulment or modification of a preventive measure, the investigative body, investigator, prosecutor or judge shall make an order, and the court shall give a ruling.”
“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the investigative body, investigator or prosecutor.
In the event that the investigative body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor's consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person.
The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained.
In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality.
Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigative bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order:
(1) refusing to select the preventive measure if there are no grounds for doing so;
(2) selecting a preventive measure in the form of taking of a suspect or accused into custody.
The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her.
The judge's order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge's order.”
61. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“...
12. In accordance with paragraph 6 of Article 154-1 of the Code of Criminal Procedure, a breach by the suspect, accused or convicted person of his or her bail obligations shall lead to the forfeiture of the bail. [Forfeiture] shall be decided upon at the trial stage of the proceedings (substantiated by the judgment, and, before its delivery, by an order or ruling of the court), or in the course of separate judicial proceedings.”
62. The relevant extracts from the reports are cited in the judgment of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 60-61 and 66, ECHR 2005II).
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107254
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NACİ AKKUŞ AND NECMİ AKKUŞ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 3. The applicants were born in 1977 and 1966 respectively and live in Bursa.
4. In 2004 the General Directorate of Highways seized a plot of land belonging to the applicants without any formal expropriation, for the construction of a highway. The applicants brought an action before the Karacabey Civil Court to obtain compensation for the de facto expropriation of their property. They requested 5,500 Turkish liras (TRY) as compensation from the court and reserved their right to increase this claim in due course.
5. On 29 December 2005 the Karacabey Civil Court awarded the applicants TRY 5,500 as compensation for the de facto expropriation of their land, as requested, plus interest. The applicants initiated execution proceedings before the Bursa Execution Office to obtain that amount (file no. 2006/2200).
6. On 29 May 2006 the Court of Cassation upheld the judgment of the first-instance court.
7. The applicants subsequently brought an additional action (“ek dava”) before the Karacabey Civil Court to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings, which had valued the land at a rate higher than that initially requested by them.
8. On 2 November 2006 the Karacabey Civil Court awarded the applicants TRY 100,723.25, plus interest. The applicants initiated another set of execution proceedings before the Bursa Execution Office to obtain the amount awarded (file no. 2009/2817).
9. On 13 March 2007 the Court of Cassation upheld the judgment of the Karacabey Civil Court.
10. On 16 January 2009 the administration paid TRY 9,414.62 to file no. 2006/2200 before the Bursa Execution Office in respect of the debt arising from the initial action.
11. Subsequently, on 24 March 2009 they paid TRY 152,951.97 to file no. 2009/2817 before the Bursa Execution Office in respect of the debt under the additional action. According to the information provided by the applicants, there has been no outstanding debt in the execution files.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69568
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: H.M. v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms H.M., is a German national who was born in 1938 and lived in Stuttgart before moving abroad. Her present place of residence is unknown to the Court. She was represented before the Court by Mr G. Dannemann, a lawyer practising in London and Berlin. The respondent Government were represented by Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialrätin.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following a tax audit the Tax Frauds Office (Steuerfahndung) came to the conclusion that the applicant, a self-employed dentist, had transferred 2,808,407 Deutschmarks (DEM) to Luxembourg without having declared this income in her tax returns. The tax authorities subsequently instituted proceedings with a view to changing the applicant's income tax assessment.
On 15 March 1996 criminal proceedings were instituted against the applicant on suspicion of tax evasion.
By the end of 1996 the applicant moved abroad.
On 19 December 1996 the Stuttgart District Court issued a national warrant of arrest against the applicant. On 27 January 1997 the Stuttgart District Court quashed the national arrest warrant and issued an international arrest warrant. To date, it has not been possible to execute this warrant.
On 4 October 1996 the Stuttgart Tax Office ordered the provisional attachment of the applicant's goods (dinglicher Arrest) in order to secure expected claims for supplementary tax payments for the years 1987 to 1994 of 1,190,485 DEM.
On 21 October 1996 the applicant brought an action with the Baden-Wurttemberg Tax Court against the Stuttgart Tax Office to set aside the order of the provisional attachment of her goods.
The provisional attachment of the applicant's goods was subsequently executed by the registration of mortgages on the applicant's real property. The applicant, on dates unknown to the Court, lodged several constitutional complaints with the Federal Constitutional Court, claiming that these enforcement measures prior to a court's decision on her liability to pay the taxes claimed violated the presumption of innocence.
On 21 March 1997 the applicant changed her action to set aside the order of the provisional attachment of her goods into an action for a declaration that this order had been unlawful (Fortsetzungsfeststellungsklage). The applicant argued that she had a legitimate interest to obtain this declaration as she wanted to rely on it in official liability proceedings (Amtshaftungsverfahren) before the civil courts pursuant to Section 839 of the Civil Code.
On 8 October 1997 the Baden-Wurttemberg Tax Court held a preliminary hearing (Erörterungstermin) in the applicant's case.
On 26 January 1999 the Baden-Wurttemberg Tax Court, following a hearing, decided that the financial courts had jurisdiction over the subject-matter.
On 7 December 1999 the Federal Tax Court dismissed the applicant's appeal against this decision as inadmissible.
On 2 March 2000 the Baden-Wurttemberg Tax Court decided that the applicant's action was admissible. In particular, the fact that the applicant could constantly be reached via her counsel, but did not disclose her actual place of residence because of the arrest warrant against her, did not render her actions inadmissible.
On 24 March 2000 the Federal Constitutional Court refused to admit the applicant's constitutional complaint concerning violations of the presumption of innocence by several enforcement measures. It appears that the Federal Constitutional Court, on dates unknown to the Court, refused to entertain further constitutional complaints lodged by the applicant concerning the same subject-matter.
On 19 October 2000 the Federal Tax Court dismissed the Stuttgart Tax Office's appeal on points of law against the decision of the Baden-Wurttemberg Tax Court of 2 March 2000 as ill-founded and the applicant's counter-appeal on points of law as inadmissible.
On 20 February 2001 the Baden-Wurttemberg Tax Court dismissed the applicant's action concerning the lawfulness of the provisional attachment of her goods as ill-founded and refused to grant the applicant leave to appeal on points of law. In its judgment, the Tax Court stated that it was sufficiently likely, on the balance of probabilities, that the applicant intentionally evaded taxes. Consequently, the amount of taxes due could be estimated also for the years 1987 to 1989.
The applicant appealed against the Baden-Wurttemberg Tax Court's decision not to grant leave to appeal on points of law.
On 13 September 2001 (decision served on 10 November 2001) the Federal Tax Court dismissed the applicant's appeal as inadmissible, because no appeal on points of law lay against the judgment of the Baden-Wurttemberg Tax Court.
On 1 December 2001 the applicant lodged a constitutional complaint against the decision of the Federal Tax Court of 13 September 2001, claiming, inter alia, that the proceedings lasted unreasonably long and that the decision violated the presumption of innocence.
On 6 June 2003 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicant's constitutional complaint.
On 3 December 1996 the Stuttgart Tax Office changed the applicant's notices of assessment for the years 1987 to 1993, increasing the applicant's liability to pay income tax. It also issued a tax assessment notice for the year 1994. The applicant lodged an objection (Einspruch) against these notices with the Tax Office.
On 23 October 1997 the Stuttgart Tax Office issued a tax assessment notice for the applicant for the year 1995. The applicant lodged an objection (Einspruch) also against this notice with the Tax Office.
On 28 February 1998 the applicant brought an action with the Baden-Wurttemberg Tax Court against the Stuttgart Tax Office to declare void the tax assessment notices for the years 1987 to 1995.
On 20 May 1998 the Baden-Wurttemberg Tax Court held a preliminary hearing (Erörterungstermin) in the applicant's case concerning the lawfulness of the changed tax assessment notices.
On 26 January 1999 the Baden-Wurttemberg Tax Court, following a hearing (in which the actions concerning the lawfulness of the changed tax assessment notices and the provisional attachment of the applicant's goods were treated together), decided that the financial courts also had jurisdiction over this subject-matter.
On 7 December 1999 the Federal Tax Court dismissed the applicant's appeal as inadmissible.
On 2 March 2000 the Baden-Wurttemberg Tax Court decided that the applicant's action, for the same reasons as the joined action concerning the provisional attachment of her goods, was admissible.
On 19 October 2000 the Federal Tax Court dismissed the Stuttgart Tax Office's appeal on points of law against the decision of the Baden-Wurttemberg Tax Court of 2 March 2000 as ill-founded and the applicant's counter appeal on points of law as inadmissible.
On 22 May 2003 the Baden-Wurttemberg Tax Court dismissed the applicant's action to declare the tax assessment notices for the years 1987 to 1995 to be void as ill-founded.
The applicant subsequently appealed against the decision of the Baden-Wurttemberg Tax Court not to grant her leave to appeal on points of law. The case is currently still pending before the Federal Tax Court.
On 24 January 2000 the Baden-Wurttemberg Tax Court rejected the applicant's motion for a stay of execution in respect of the payment of supplementary income tax for the years 1987 to 1995.
In its reasoning, the Baden-Wurttemberg Tax Court stated that there was no reasonable doubt that the applicant intentionally understated her income in all the years in dispute. It considered it to be “impossible that the criminal court later could merely assume a grossly negligent tax evasion (...), as the manipulations of her receipts and expenditure by the applicant, by their very nature, could only have been carried out intentionally.” Consequently, the tax authorities were entitled to estimate her income in the relevant years.
On 12 February 2000 the applicant lodged a complaint with the Federal Constitutional Court. She claimed inter alia that the decision of the Baden-Wurttemberg Tax Court of 24 January 2000, by stating that she was guilty of tax evasion, violated the presumption of innocence.
On 24 March 2000 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.
On 22 December 1999 the Stuttgart Public Prosecutor's Office decided to discontinue the criminal proceedings against the applicant during the time the arrest warrant against her could not be executed.
On 17 October 2001 the Stuttgart Court of Appeal decided that the applicant's rights under Article 6 § 3 of the Convention had not been violated by this decision, no indictment having been issued against her as yet.
On 5 December 2001 the Federal Court of Justice dismissed the applicant's appeal against this decision as inadmissible.
On 5 January 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She claimed that the decision of the Public Prosecutor's Office to discontinue the criminal proceedings against her, without the arrest warrant being quashed, violated her rights under the German Basic Law.
On 20 February 2002 the Federal Constitutional Court refused to admit the applicant's constitutional complaint, as the latter, not giving sufficient reasons for a possible human rights violation, was inadmissible.
The applicant instituted numerous further proceedings in the German tax courts, applying to set aside further notices of tax assessment for the years 1996 to 1999 issued by the Stuttgart Tax Office and to stay the execution of various enforcement measures.
Between 21 January 1999 and 3 November 2000 the applicant lodged eleven constitutional complaints concerning these proceedings. The Federal Constitutional Court did not admit any of these complaints, without giving reasons for its decisions.
On 3 November 2000 the applicant therefore challenged three judges of the Federal Constitutional Court on grounds of bias. She was subsequently informed by a letter of that court that a challenge of the judges was only possible before the beginning of the hearing of a case.
Furthermore, on 21 October 2002, in one of these sets of proceedings, the Stuttgart Tax Office attached the applicant's claims against three banks in Germany.
On 26 December 2002 the applicant applied to the Federal Constitutional Court for an interim order, claiming that these attachments, not leaving to her a minimum living wage any longer, violated her rights to life and physical integrity.
On 9 January 2003 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.
In its decision of 6 June 2003 the Federal Constitutional Court refused to admit another constitutional complaint concerning the applicant's tax litigation and cautioned her that she might be fined for having misused the right of petition (Mißbrauchsgebühr) if she lodged further similar complaints.
Under the Taxation Code (Abgabenordnung), the period of limitation during which the tax authorities are entitled to change a tax assessment depends inter alia on the question whether the taxpayer intentionally or negligently evaded taxes.
Under the heading “statute of limitation for tax assessment” (Festsetzungsverjährung), Section 169 of the Taxation Code, as far as relevant, provides as follows:
“Time limit for tax assessment.
The assessment of taxes as well as its revocation or change shall be excluded on expiry of the time limit for tax assessment. (...)
The time limit for tax assessment shall be
one year for customs and excise (...).
four years for all taxes (...) not mentioned in no. 1.
The time limit for tax assessment shall be ten years insofar as a tax has been evaded and five years as far as a tax has been understated with gross negligence. (...)”
Tax evasion, when committed intentionally, is a criminal offence which is punishable with up to five years' imprisonment or a fine pursuant to Section 370 of the Taxation Code.
Understating taxes with gross negligence (leichtfertige Steuerverkürzung) is punishable as a regulatory offence (Ordnungswidrigkeit) pursuant to Section 378 of the Taxation Code.
Section 393 of the Taxation Code, on the relationship between criminal proceedings and tax assessment proceedings, provides that the rights and duties of the person liable to pay taxes and of the tax authorities are determined by the provisions applicable in the respective proceedings.
In proceedings before the tax courts, an action to set aside a decision of the tax authorities (Anfechtungsklage) can be changed into an action for a declaration that the relevant decision was unlawful (Fortsetzungsfeststellungsklage) as soon as the decision has been executed. The latter action is admissible if the plaintiff can prove to have a legitimate interest in this declaration. It is accepted that the plaintiff has such a legitimate interest if he states that he wants to rely on the declaration by the tax courts that the authority's decision was unlawful in subsequent official liability proceedings.
The conditions of liability of an official (Amtshaftung) are laid down in Section 839 of the Civil Code. Pursuant to this Section, a person can claim compensation for breaches of duty committed by an official. It is the civil courts which have jurisdiction in these liability proceedings.
Pursuant to Section 230 of the Code of Criminal Procedure, German law, in principle, does not allow for an in-absentia-trial. A limited number of exceptions to this rule are notably laid down in Sections 231 et seq. A hearing may, in particular, be held in the defendant's absence in cases in which he has been summoned correctly and only a fine of up to 180 daily rates (Tagessätze) is to be expected (Section 232 of the Code of Criminal Procedure).
According to Section 205 of the Code of Criminal Procedure, applied by analogy, the competent public prosecutor is entitled to temporarily discontinue the preliminary criminal proceedings, if the absence of the defendant prevents the holding of a main hearing for a considerable period of time.


ITEMID: 001-83331
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KEMAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1964 and lives in Manisa, Turkey.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. In 1991 the applicant sat a competition for admission to the civil service. Following his success in the competition, the General Directorate of Higher Education Credit and Hostels Institution (“the General Directorate”) (T.C. Yüksek Öğrenim ve Yurtlar Kurumu Genel Müdürlüğü) conducted a pre-employment background investigation. It found that the applicant had not mentioned his criminal record in his application form.
7. On 14 January 1992 the General Directorate decided that the applicant was not eligible for appointment to a vacant post on account of the negative findings in the preemployment investigation. In particular, in 1980 the applicant had been convicted of issuing threats against one of his teachers and had been sentenced to four months and twenty days' imprisonment, which had then been converted into a fine.
8. On 7 February 1992 the applicant brought an action in the Ankara Administrative Court requesting the annulment of the General Directorate's decision of 14 January 1992.
9. On 26 October 1993 the Ankara Administrative Court dismissed the action. The applicant appealed.
10. On 18 December 1995 the Supreme Administrative Court quashed the Ankara Administrative Court's judgment holding that the applicant was suitable for employment.
11. On 22 December 1998 the Supreme Administrative Court dismissed the General Directorate's request for rectification of its decision.
12. On 10 March 1999 the Ankara Administrative Court abided by the Supreme Administrative Court's decision. It found that the applicant had fulfilled all the requirements of the vacant post in question as prescribed under Law no. 657. It therefore ruled that the applicant was eligible to become a civil servant.
13. On 8 June 1999 the General Directorate appealed.
14. On 31 October 2001 the Supreme Administrative Court dismissed the appeal.
15. On 30 May 2002 the Supreme Administrative Court dismissed the request for rectification of the decision.
16. On an unspecified date, the applicant brought a new action in the Ankara Administrative Court against the General Directorate requesting compensation for pecuniary and non-pecuniary damage which he allegedly had suffered as a result of the decision dated 14 January 1992.
17. On 28 December 1999 the Ankara Administrative Court awarded the applicant a certain amount of compensation for pecuniary damage but rejected his request for non-pecuniary damage. The court further decided that legal costs should be shared by the parties, given that it partially acceded to the applicant's claims for compensation.
18. On 26 April 2000 the General Directorate appealed the Supreme Administrative Court judgment, arguing that the applicant had not suffered any damage and that therefore the legal costs should be borne by him.
19. On 30 May 2002 the Supreme Administrative Court dismissed the appeal, holding that the Ankara Administrative Court's ruling was in conformity with law and procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4736
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VAUGHAN v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a United States national, born in 1947 and currently residing in London.

A.
In 1976 the applicant opened a clothes shop in Florence and in 1980 she engaged a certain Mrs P. as a trainee sales assistant. In February 1982 Mrs P. was employed as a full time shop assistant.
In June 1992 the applicant informed Mrs P. that she no longer required her services as she had sold the shop and was moving to London. The applicant left Italy on 24 September 1992. She returned to Florence on three occasions, in November 1992, January 1993 and May 1994.
On 31 August 1993 Mrs P. summoned the applicant to appear before the Florence Labour Magistrate. She claimed, inter alia, that the training contract was null and void and that she was entitled to a higher severance payment. Mrs P. requested the bailiff to serve the summons at the applicant’s address in Florence. As the applicant was absent, the bailiff, acting in accordance with Rule 140 of the Code of Civil Procedure (hereinafter referred to as the “CPC”), left a notice on her letterbox and sent her a registered letter, informing her that a copy of the summons had been deposited at the Town Council’s registry.
A number of witnesses were heard before the Florence Labour Magistrate on 12 and 28 January 1994. Neither the applicant nor her lawyer took part in these hearings.
In a judgment of 28 January 1994, filed with the registry on 4 February 1994, the Florence Magistrate accepted Mrs P.’s claim and ordered the applicant to pay to her former employee the total sum of 16,314,971 ITL (approximately 55,250 FF). This judgment was served on the applicant on 8 April 1994 at her address in Florence in accordance with Rule 140 of the CPC.
The applicant took cognisance of this judgment only on 23 May 1994, when she was on holiday in Florence.
On 15 September 1994 the applicant lodged an appeal with the Florence District Court, challenging the lawfulness of the serving of the summons and of the first-instance judgment. She alleged, inter alia, that as she had moved to England in September 1992, the summons should have been served on her at her address in London. In this respect, the applicant requested the examination of a number of witnesses who could testify that Mrs P. knew her new address and telephone number in England. Observing that she had been unaware of the action brought against her and had taken cognisance of the Magistrate’s judgment only on 23 May 1994, the applicant requested the District Court to declare that the first-instance proceedings were null and void.
In a judgment of 15 March 1995, the Florence District Court held that the first-instance decision had became final on 8 May 1994 and rejected the applicant’s appeal as being out of time. It observed that, as appeared from the certificates issued by the Chamber of Commerce and the Registry Office, at the relevant time and at least until 1 October 1994 the applicant had her official address in Florence. Even assuming that Mrs P. was aware that the applicant had left Florence for London, nothing suggested that this moving had a definitive character. As the applicant’s name was still written on the letterbox placed in front of her house, the serving of the summons and of the Magistrate’s judgment was valid and lawful.
On an unspecified date, the applicant appealed on points of law, reiterating the objections raised before the District Court. In a memorial of 19 January 1998, she recalled that the competent authorities had refused to hear the witnesses who could have testified that she had sold her business and that Mrs P. knew her address and telephone number in England.
In a judgment of 27 January 1998, filed with the registry on 12 June 1998, the Court of Cassation, considering that the lower court’s decision was logical and well-reasoned, rejected the applicant’s claim. It recalled that a person was presumed to reside in the place of his or her official residence and that this presumption could be overruled only by very substantial elements. The relevant parts of this judgment read as follows:
“... the allegations of the applicant, aimed at obtaining a declaration that the serving ex Article 140 CPC was null and void, are based on three assertions:
a. that Mrs Vaughan moved to London;
b. that this moving had a definitive character;
c. that it is up to Mrs P. to show that her moving was not definitive ...
The District Court just considered the fact that the applicant’s residence was still in Florence, via Sdrucciolo dei Pitti no. 3, as this was evident not only from the bell and the letterbox, but also from the documents issued by the Town Council and the Chamber of Commerce. The applicant’s official address after her (alleged) moving remained unchanged ...
Even assuming that there had been a moving, it is not clear why it should be up to Mrs P. to prove that this moving “was not definitive”. The objection has been raised by Mrs Vaughan. It is up to her to prove the facts on which her objection is based...”.
The Court of Cassation noted that Mrs Vaughan did not produce any relevant document proving her moving to London, then continued as follows:
“In her appeal, Mrs Vaughan requested the District Court to examine a number of witnesses who should have testified that Mrs P. was aware of her moving to London ... On this point, the Court shares the District Court’s finding that “even assuming that [Mrs P.] was aware that Mrs Vaughan had left Florence ... this does not mean that she should have inferred that this moving was a definitive one...”. The District Court’s reasoning is clear: two facts should be proved, the moving and its definitive character. This second element has not been proved and could not have been proved by the witnesses sought by the applicant ... This confirms that ... no moving has been proved, neither temporary, nor definitive. Therefore, the serving of the summons and of the first-instance judgment is lawful and the decision of the Florence Magistrate has now become final...”
B. Relevant national law
Article 140 of the CPC reads as follows: “If the actual delivery of the act is not possible because of the absence, lack of capacity or refusal of the persons indicated in Article 139 [the consignee, a member of his or her family, a person charged of his or her house or business], the bailiff deposits a copy of the act to be served at the Town Council ..., puts a notice ... on the front door of the consignee’s house or office and informs him or her by means of a registered letter”.


ITEMID: 001-97372
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NICOLESCU TRAIAN-CONSTANTIN v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1929 and formerly lived in Slatina.
5. On 24 October 1991, the Slatina Local Commission responsible for the application of Law 18/1991 (“the local commission”) issued in the applicant's favour an ownership certificate (“adeverinţă de proprietate”) for a plot of land measuring 2.13 hectares located in the city of Slatina, but did not put him into possession of the land.
6. The applicant brought administrative proceedings against the local commission, seeking to take possession of the land granted to him by the ownership certificate. On 19 January 1998, the Olt County Court allowed the action and ordered the local commission to enable him to take possession of the land on the original placement held by his father. That judgment became final.
7. In 2000, the applicant filed another action against the local commission, the Olt County Commission responsible for the application of Law 18/1991 (“the county commission”) and a natural person, D.E., seeking to take possession of the 2.13 hectares of land, to obtain the ownership title for that land and the partial annulment of an ownership title issued in favour of D.E. for the area of 0.75 hectares that should have been restored to him in accordance with the final judgment of 19 January 1998. The District Court of Slatina allowed the action on 12 February 2001. Appeals filed by the commissions and D.E. were dismissed by the Olt County Court on 27 September 2001. By a decision of 2 April 2002, the Craiova Court of Appeal allowed an appeal on points of law filed by the commissions, quashed the decision rendered in appeal and remitted the file to the Olt County Court for a fresh examination of the appeals. The appeals were again dismissed on 4 June 2002. On 23 September 2002, the Craiova Court of Appeal allowed the appeal on points of law filed by the local commission. It partially dismissed the action filed by the applicant with respect to the obligation of the commissions to authorise him to take possession of the land and to issue the ownership title, on the ground that the judgment of 19 January 1998 rendered in his favour had the force of res judicata.
8. By an interlocutory judgment of 2 December 2002, the Slatina District Court allowed the applicant's claim for the payment of 300,000 Romanian lei (ROL) in damages per day of delay until the enforcement of the final judgment of 19 January 1998.
9. In 2003, the applicant filed another action against the local commission seeking to obtain payment by the latter of damages for the loss of profit caused by the non-enforcement of the final judgment of 19 January 1998. On 7 November 2003, the Slatina District Court partially allowed the applicant's claim and awarded him 18,898,880 ROL. The judgment was upheld by Olt County Court on 26 November 2004.
10. On 31 November 2003, the county commission issued two ownership titles, but for other plots of land than those to which the applicant was entitled. The applicant lodged an action seeking to obtain the annulment of the ownership titles and new ownership titles in accordance with the judgment of 19 January 1998, namely on the former placement. During the proceedings, on 6 June 2005, the applicant died and his daughter, Ms Mariana Dinu, expressed her wish to pursue the action. The Slatina District Court allowed the applicant's claim on 31 March 2006. It ordered the county commission to issue on behalf of the applicant's daughter an ownership title for 2.13 hectares of land on the former placements. The judgment became final.
11. Following the judgment of 31 March 2006, the local commission authorised the applicant to take possession of the land, a minute (proces verbal) being drafted to that effect on 3 October 2008.
12. On October 2008, the Slatina City Council forwarded to the Slatina Land Office (Oficiul de Cadastru şi Publicitate Imobiliară) all the documents necessary for the issue of the ownership title in accordance with the judgment of 19 January 1998.
13. The proceedings for the issue of the ownership title are pending. So far the applicant's daughter has not received an ownership title.
14. The relevant domestic law is summarised in the judgments of Sabin Popescu v. Romania (no. 48102/99, §§ 42-46, 2 March 2004) and Drăculeţ v. Romania, no. 20294/02, § 29, 6 December 2007).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1