ITEMID: 001-110988
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MOLDOVAN AND OTHERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The present application, concerning the living conditions of Romanian citizens of Roma origin living in the village of Hădăreni, Mureş County, follows two initial applications that have been joined (nos. 41138/98 and 64320/01). The said applications were lodged with the Court on 14 April 1997 and 9 May 2000 respectively, by twenty-five Romanian nationals of Roma origin living in the above-mentioned village, as a consequence of the inter-ethnic clashes of 20 September 1993 which led to the killing of three people of Roma origin and the burning of eighteen Roma houses.
2. It also follows thirty other applications lodged with the Court between 5 February 2004 and 5 November 2008, concerning the same issue, lodged by eighty-six applicants who are mainly relatives of the initial twenty-five applicants. Six of the eighty-six applicants had also been parties to the initial two applications.
3. The thirty-two applications mentioned above have resulted in a friendly settlement agreement (see Moldovan and Others v. Romania (no 1) (friendly settlement), 5 July 2005), concerning eighteen of the initial twentyfive applicants. In a judgment on the merits concerning the remaining seven of the initial twenty-five applicants (see Moldovan and Others v. Romania (no 2), 12 July 2005, ECHR 2005-VII) where the Court found a violation, inter alia, of Articles 3 and 8 of the Convention in respect of the applicants’ living conditions. As well as in a joined decision (see Costică Moldovan and Others v. Romania (dec.), no. 8229/04 and other applications, 15 February 2011) concerning the additional eighty-six applicants where the Court declared their complaint under Article 3 and 8 of the Convention inadmissible mainly for non-exhaustion of domestic remedies.
4. The applicants in the present case, Mr Luşca and his wife Mrs Monica Simona Moldovan (born Lăcătuş), Ms Olguţa, Ms Sanda and Mr Traian Florin Lăcătuş and Mr Lucian-Gruia Rostaş, are Romanian nationals of Roma origin who were born in 1966, 1974, 1978, 1978, 1976 and 1981 respectively, and live in Saint Gilles, Belgium. Mr Luşca and his wife, Mrs Monica Simona Moldovan, lodged their complaints before the Court on 25 February 2004. Mr Traian Florin and Ms Olguţa Lăcătuş lodged their complaints before the Court on 24 August 2004. Ms Sanda Lăcătuş and Mr Lucian-Gruia Rostaş lodged their complaints before the Court on 9 August 2005. All the complaints were joined in the present application. The applicants were all represented before the Court by Mr Jean Paul Vidick, a lawyer practising in Brussels. The Romanian Government (“the Government”) are represented by their Agent, Mr RăzvanHoraţiu Radu, from the Ministry of Foreign Affairs.
5. The facts of the case submitted by the parties, in so far as they concern the current applicants, may be summarised as follows.
6. The present case originates in the events which took place in 1993 in the village of Hădăreni and which are summarised in the judgments of Moldovan and Others (nos 1 and 2), cited above. The steps taken by the respondent Government prior to and after the adoption of the judgments of Moldovan and Others, (nos 1 and 2) with the aim of improving the living conditions of the Roma affected by the violent events of 20 September 1993 are summarised in Costică Moldovan and Others, cited above, §§ 93-109.
7. Some of the applicants, namely, Mrs Monica Simona Moldovan, Ms Olguţa, Ms Sanda and Mr Traian Florin Lăcătuş and Mr Lucian-Gruia Rostaş, are the brothers and sisters of two of the three Roma who were killed during the violent events of 20 September 1993.
8. Mr Luşca Moldovan had been living in the house where the three murdered Roma had been hiding prior to their death. The house was destroyed as a result of the violent events of 20 September 1993. Mr Moldovan’s personal belongings and a large sum of money he had saved from commercial activities were also destroyed together with the house. Moreover, two years after the violent incident the house was only partly rebuilt. Furthermore, as a result of the events he had needed psychological treatment.
9. According to Mrs Monica Simona Moldovan, in the aftermath of the events her entire family, numbering seventeen individuals, was forced to live in a room of 30 sq.m without food, medicine or an income. Moreover, they had been “tortured” by police officers who had visited them at night and forced them to testify. Her mother, Ms Cătălina Lăcătuş had died allegedly as a result of the harassment on 12 February 1994. Mrs Moldovan had developed diabetes as a result of the stress and fear caused by the violent events of 1993. After one of the individuals involved in the killing of her brothers had been acquitted, he had started threatening her and her husband. Consequently, she and Mr Moldovan had moved to Belgium on 8 November 2002 and 10 June 2003 respectively, where they had been granted refugee status.
10. On unspecified dates the other four applicants also moved to Belgium. In their first letters to the Court on 24 August 2004 (Mr Traian Florin and Ms Olguţa Lăcătuş) and on 9 August 2005 (Ms Sanda Lăcătuş and Mr Lucian-Gruia Rostaş) they stated that they had been granted refugee status in Belgium. They also contended that in the aftermath of the events they had been forced to live in cold and inappropriate conditions (sleeping in the woods, on floors or in crowded conditions) together with their family. They had lived in those conditions for several months.
11. All six applicants consider that as a result they have developed a number of medical conditions, in particular tuberculosis, asthma and diabetes. Some of them have also developed psychological problems and have been obliged to pay for treatment themselves even though they lacked an income.
12. Only Mrs Monica Simona Moldovan was a party to the criminal and civil domestic proceedings opened after the violent events of 20 September 1993. She did not appeal, however, against the judgment delivered by the first-instance court during the course of the civil proceedings opened against the third parties convicted for the destruction of her home.
13. On 12 January 2001, following the discontinuance of the criminal investigation against the police officers involved in the incident and the criminal conviction and sentencing of twelve civilians by the final judgment of 22 November 1999 of the Court of Cassation, the Mureş County Court delivered its judgment in the civil case. The court noted that the victims had claimed compensation for pecuniary damage resulting from the destruction of the houses and their contents (furniture and so on), as well as compensation for non-pecuniary damage. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of those acts. Basing its decision on an expert report, the court awarded compensation for pecuniary damage for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded compensation for pecuniary damage in respect of the partial or total destruction of the houses of six Roma. The court rejected the other applicants’ request for compensation for pecuniary damage in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same as or higher than the original buildings. It further refused all claims for damages in respect of belongings and furniture, on the ground that the claimants had not submitted documents to confirm the value of their assets.
14. The court finally rejected all claims in respect of non-pecuniary damage on the ground that they had not been substantiated, and that the crimes committed were not of a nature to produce such damage.
15. The court ordered the villagers convicted in the criminal trial to pay the damages awarded.
16. Relying on some procedural errors in the Mureş County Court’s judgment, the parties to the proceedings, including Mrs Moldovan, lodged an appeal with the Mureş Court of Appeal.
17. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş County Court: the hearings had been held in the absence of the accused and their lawyers; one of the parties had not been summoned; the public prosecutor had not been given leave to address the court and a number of expert reports ordered by the court had not been completed. The Court of Appeal quashed the judgment of 12 January 2001 and ordered a new trial in the case.
18. In the second procedural cycle, the Mureş County Court delivered its judgment in the civil case on 12 May 2003. Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the civilians found guilty by the criminal court in respect of the destruction of the claimants’ houses to pay damages to some of the parties to the proceedings for the destruction of their homes, including Mrs Moldovan, who was awarded 60,000,000 lei (ROL) (approximately 1,725 euros (EUR)).
19. The courts also ordered that the amounts be revised to take account of any devaluation in the national currency.
20. However, the court rejected all the parties’ claims in respect of nonpecuniary damage, on the ground that they were not substantiated.
21. Mrs Moldovan did not appeal against the Mureş County Court judgment of 12 May 2003.
22. The civil proceedings ended with the final judgment of 25 February 2005 of the Court of Cassation, with the domestic courts also awarding the appellants non-pecuniary damages.
23. There is no evidence in the file that Mrs Moldovan opened any enforcement proceedings in respect of the judgment of 12 May 2003 before the domestic authorities or that she opened proceedings before the domestic authorities in respect of the death of her mother.
24. The relevant legal provisions, including the relevant provisions of the Romanian Civil Code, Code on Civil and Criminal Procedure, Law No. 188/2000 concerning enforcement officers, and the relevant caselaw, are set forth in the judgments Moldovan and Others v. Romania (nos. 41138/98 and 64320/01, §§ 79-85, 12 July 2005); Ursu v. Romania (no. 58670/00, (dec.), 3 May 2005); Kalanyos v. Romania (no. 57884/00, (dec.), 9 December 2003); Fociac v. Romania, no. 2577/02, § 70, 3 February 2005; and Topciov v. Romania (dec.), no. 17369/02, 15 June 2006).
25. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it.
“Any person, including any person who has suffered damage as a result of the enforcement, shall have the right to contest the enforcement or any procedural steps taken during the enforcement proceedings. In addition ... the enforcement proceedings can be contested ... when the enforcement officer refuses to carry out an act of enforcement in accordance with the applicable legal provisions.”


ITEMID: 001-81246
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MITREVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in the village of Zović and lives in Bitola.
6. On 13 September 2000 his brother (“the plaintiff”) brought a civil action against him for a declaration that he owned one half of a plot of land and a house (“the property”).
7. A hearing on 9 April 2001 was adjourned because the applicant had not been duly summoned.
8. At a hearing on 20 April 2001 the court ordered the plaintiff to provide further particulars of his claim. It further sought to obtain a deed of gift dating from 1984.
9. According to the Government, at a hearing on 24 May 2001 the court granted the plaintiff's request to carry out an on-site inspection (увид) and to examine witnesses. The applicant arrived late at the hearing, but was informed of the place and time of the next hearing. The Government submitted a barely legible copy of the record, which had been signed by the applicant.
10. At the on-site inspection on 5 June 2001, the trial court heard evidence from two witnesses concerning the history of the property. The record indicates that the applicant was absent, even though he had been duly summoned.
11. A hearing fixed for 12 July 2001 was adjourned at the applicant's request.
12. At a hearing on 14 September 2001 the plaintiff's counsel stated that his client had suffered a stroke and was not medically fit to give a statement. The court ordered him to submit a medical report and on a later date in September 2001, the plaintiff's counsel submitted a medical report certifying that his client was not medically fit to give a statement.
13. On 8 November 2001 the composition of the bench changed and the hearing restarted.
14. At a hearing on 22 November 2001 the applicant disputed the plaintiff's legal capacity to bring the proceedings. He stated, inter alia:
“... [A]fter reviewing the file, I have concerns as to the validity of the plaintiff's letters of authority... We propose that the court assess his capacity...”
15. According to the court record, the court ruled that the next hearing would be held on 29 November 2001 on-site in order to assess the plaintiff's health and the validity of his signature on the letter of authority. It further noted that those present should consider the announcement of the next hearing as equivalent to service of a court summons. The applicant and his counsel both attended the hearing.
16. On 29 November 2001 the court held a hearing at the scheduled time, but in the court room instead of on-site. The court heard evidence from the plaintiff and established the validity of the letter of authority. It further read the record of the on-site inspection of 5 June 2001 and the witnesses' statements. It noted that the applicant was absent, even though he had been duly summoned. Following the hearing, the trial court gave a decision declaring the plaintiff to be the owner of the property and ordered the applicant to recognise his title. It based its findings on a court decision of 1962 by which the plaintiff had been declared heir of the property. It further established that he had lived in the house and had had actual possession (владение) of the property since. The trial court based its decision on considerable evidence: an expert opinion; a record of the on-site inspection; statements of witnesses; and other physical evidence.
17. On 8 January 2001 the applicant appealed, arguing, inter alia, that he had been deprived of the opportunity to participate in the proceedings. He said that he had been prevented from attending the hearing on 29 November 2001 as it was held in the court room, instead of on-site as scheduled. He submitted that that failure could be regarded as a substantial defect in the proceedings, contrary to section 340(2)(7) of the Civil Proceedings Act (see “Relevant domestic law” below). He further complained that the trial court had taken into consideration the statements of the witnesses from the on-site hearing of 5 June 2001 which had been held in his absence.
18. On 25 February 2002 the Bitola Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision finding no grounds to depart from the reasons given. Concerning the applicant's complaints about the hearing of 29 November 2001, it stated:
“... [The applicant] was duly summoned as he attended the hearing of 22 November 2001 when the date and time for the hearing were fixed. Therefore, he was obliged to appear in court and depending on whether the plaintiff was also present, it was for the court to decide whether it would visit the plaintiff in his home or hold the hearing in the court room. As the plaintiff appeared in the court ... it was not necessary to go on-site... [The applicant] was properly summoned and has failed to justify his absence...”
19. As regards the applicant's complaints concerning the examination of the witnesses at the on-site hearing on 5 June 2001, the court stated, inter alia:
“... [The applicant's] complaints that the court examined the witnesses at the hearing on 5 June 2001 in his absence are ill-founded, as he failed to attend, despite having been duly summoned... If [the applicant] had attended the hearing, he would have been able to discuss and challenge their statements, as well as to call other witnesses for examination...”
20. At the material time section 103(2) of the Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provided that the court should summon the parties and any other persons whose presence was required in due time.
21. Section 104 of the Act provided that hearings were normally to take place in the court. The court could decide to hold a hearing outside the court premises if it was considered necessary and/or would save time or reduce costs.
22. Section 105(2) of the Act laid down that if a hearing was adjourned, the court was required where possible to inform those present immediately of the time and venue of the next hearing.
23. Section 340(1) of the Act provided that civil proceedings were substantially defective if the court did not apply or incorrectly applied a statutory provision or failed to take into account a circumstance which would or could have influenced the adoption of a lawful and just decision.
24. Section 340(2)(7) of the Act provided that proceedings were substantially defective if a party was deprived of the opportunity to participate in them by unlawful conduct, such as the absence of a proper summons.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69422
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BZDUSEK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Nicolas Bratza
TEXT: 7. Mr Tomáš Bzdúšek was born in 1926 and lives in Brezová pod Bradlom. Mr Ján Bzdúšek was born in 1952 and lives in Nitra. Mr Svetozár Bzdúšek was born in 1957 and lives in Myjava.
8. By decisions delivered by the Senica District Court on 20 January 1959 and by the Bratislava Regional Court on 13 February 1959 the father of Mr Tomáš Bzdúšek and the grandfather of the two other applicants was convicted of two offences and sentenced to five years’ imprisonment as well as to confiscation of movable property which included, inter alia, gold and silver coins of numismatic value, bank notes and savings books.
9. On 3 October 1991 the Supreme Court of the Slovak Republic quashed, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act of 1990, the above decisions of 1959 including all consequential decisions on the ground that the conviction had been unlawful. Subsequently the District Court in Prievidza delivered a judgment, on 30 March 1992, by which it acquitted the accused.
10. On 30 April 1993 the applicants filed an action claiming the restitution of the movable property which had been confiscated from their relative.
11. On 19 January 1994 the Bratislava I District Court, with which the applicants had filed the action, found that it lacked jurisdiction to deal with the case. On 17 May 1994 the Bratislava City Court quashed this decision as being erroneous.
12. On 6 February 1995 the Bratislava I District Court discontinued the proceedings. On 31 May 1995 the Bratislava City Court quashed this decision and instructed the District Court to proceed with the case.
13. On 7 October 1997 the Bratislava I District Court dismissed the action after having taken extensive evidence. The applicants appealed. On 13 May 1998 the Bratislava Regional Court upheld the first instance judgment.
14. In the meantime, on 27 January 1998, the Constitutional Court found, upon a petition submitted by the applicants pursuant to Article 130(3) of the Constitution, that the Bratislava I District Court had violated their constitutional right to a hearing without undue delays. The Constitutional Court held, in particular, that the case was not complex and that the applicants had not contributed to the length of the proceedings by their behaviour. The case had not been proceeded with effectively between 30 April 1993 and 31 May 1995, and undue delays had arisen as a result of the fact that the judge dealing with the case had been changed three times.
15. Article 48(2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
16. Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“podnet”) presented by any individual or a corporation claiming that their rights had been violated.
17. According to its case-law under the above Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97668
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MAMIKONYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1958 and lives in Yerevan.
5. On 17 August 2003 criminal proceedings were instituted on account of a traffic accident the previous day which had caused the death of a person. The victim, P., was taking a walk in the street with his friend, Z., when he was run over by a car.
6. On 9 October 2003 the applicant, who was the driver of the car in question, was charged under Article 242 § 2 with involuntary manslaughter resulting from a violation of traffic rules.
7. A number of witnesses made statements during the investigation, including three eyewitnesses Z., M. and O. Witness Z. stated that he was taking a walk with P., when he noticed a car driving down the road at a speed of 70-80 km per hour. When the car was about 13 metres away from them, it suddenly made a sharp turn and headed towards them. He managed to dodge, but P. was run over. No sound of brakes was heard before the collision. Similar statements were made by witnesses M. and O., although the latter stated that the car was going at a speed of about 90-100 km per hour. It appears that a confrontation was supposed to be held between the applicant and witness O. but the latter failed to appear.
8. On 25 December 2003 the indictment was finalised and transmitted to the Erebuni and Nubarashen District Court of Yerevan (Երևան քաղաքի Էրեբունի և Նուբարաշեն համայնքների առաջին ատյանի դատարան).
9. On 18 October 2004 the Erebuni and Nubarashen District Court of Yerevan found the applicant guilty as charged and sentenced him to two years' imprisonment. This judgment was based on the statements of witnesses Z. and M., the statements of three other witnesses, the statements of an auto-technical and medical experts, all of whom were questioned in court, the statement of witness O. made during the investigation, an auto-technical and medical expert opinions, and the results of examinations of the scene of the accident and of the applicant's car.
10. On an unspecified date the applicant lodged an appeal, in which he apparently raised the issue of non-appearance of witness O.
11. On 27 December 2004 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) dismissed the appeal and upheld the judgment of the District Court. As regards witness O.'s non-appearance at the confrontation, the Court of Appeal found:
“[Witness O.] has stated ... that he was indeed unable to come to the confrontation but wishes to indicate that [the applicant] is a police officer, has connections and is able somehow to hurt his family. On 16 December 2003 at around 12.20 p.m. he noticed [the applicant] and a group of men next to the building of the district prosecutor's office[. R]ealising the reason why they were gathered there, he did not step out of the car and left from [there]. He is ready to confirm his statements at a confrontation with [the applicant], including in court, if his security is ensured.
According to a certificate present in the case file [(case page 176a)], the confrontation between [witness O.] and [the applicant] was not possible.”
12. On 31 December 2004 the applicant lodged an appeal on points of law against this judgment. In his appeal, he indicated that the court judgment was unlawful since it had been adopted with a substantial violation of procedural law. The applicant requested that the judgment of the District Court be quashed and a new judgment be adopted. He also requested that the judgment of the Court of Appeal be quashed. The applicant added that the main arguments would be presented in an additional appeal following the receipt of a copy of the Court of Appeal's judgment.
13. By a letter of 4 January 2005 a copy of the Court of Appeal's judgment was sent to the applicant.
14. According to a certificate issued on 2 March 2005 by the head of the relevant post office, this letter was received at the post office on 7 January 2005 and was served on the applicant on 10 January 2005.
15. On 12 January 2005 the applicant lodged an appeal on points of law as a supplement to his appeal of 31 December 2004, which contained eight pages of legal arguments. The applicant stated at the outset that a copy of the judgment was received by him on 7 January 2005. He went on to complain, inter alia, that the statements of witness O. made during the investigation had been used as a basis for his conviction. However, he had not been afforded an opportunity to examine that witness at any stage of the proceedings.
16. On 4 February 2005 the Court of Cassation examined and dismissed the appeal of 31 December 2004, finding:
“The argument put forward by [the applicant] in his appeal that the judgment is unlawful since it has been adopted with a substantial violation of procedural law, therefore ... the judgment of the first instance court must be quashed and a new judgment must be adopted, is unsubstantiated. ... Article 398 of the Code of Criminal Procedure clarifies the notion of a substantial violation of procedural law and paragraph 3 of this Article enumerates those specific grounds on which a judgment is to be quashed in any event. In spite of this, [the applicant] did not indicate in his appeal on points of law on which grounds the Court of Cassation ... should quash the judgment of the Court of Appeal and remit the case for a fresh examination. Whereas the Court of Cassation shall review a judgment of the Court of Appeal, on the basis of [the applicant's] appeal, within the grounds presented in the appeal...”
17. The Court of Cassation further stated:
“...as regards the new appeal on points of law filed in supplement to [the appeal of 31 December 2004], it was lodged in violation of the time-limit for appeal prescribed by Article 412 of the Code of Criminal Procedure, therefore the Court of Cassation will not examine that appeal.”
According to Article 242 § 2, violation of traffic rules by a person driving a car, which has caused involuntary manslaughter, shall be punishable by imprisonment for a period not exceeding five years.
18. The relevant provisions of the Code of Criminal Procedure, as in force at the material time, read as follows:
“1. Procedural actions, which have been performed after the expiry of a time-limit, shall be considered invalid, unless the time-limit is restored.
2. The person concerned shall apply with a motion or a request to have the missed time-limit restored to the authority dealing with the case. ...
3. A time-limit which has been missed for valid reasons must be restored by a decision of the authority dealing with the case, upon a motion of the person concerned. ...”
“1. The investigator is entitled to arrange a confrontation of two persons who have been interrogated beforehand and whose statements contain substantial contradictions. The investigator is obliged to arrange a confrontation if there are substantial contradictions between the statements of the accused and some other person.”
“1. If one of the witnesses, an expert or a specialist who has been summoned to the court hearing does not appear, the court, after hearing the opinion of the parties, shall decide to continue
“1. Reading out at the trial of witness statements made during the inquest, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.”
“1. A judgment or a decision of the Court of Appeal shall enter into legal force ten days after the date of its pronouncement.
2. A judgment or a decision of the Court of Appeal shall be served on the convicted or acquitted person, his or her advocates and lawful representatives ..., provided they participated in the examination of the case in the Court of Appeal, not later than three days after the date of its pronouncement.”
“3. In cases when an appeal on points of law ... was lodged out of time, it shall be left unexamined by a decision of the Court of Cassation.”
“1. An appeal on points of law against a judgment or a decision of the Court of Appeal ... can be lodged within ten days from the date of delivery of the judgment or decision.
...
3. Appeals lodged out of time shall not be examined.”
“1. The Court of Cassation shall review ... the judgments and decisions of the Court of Appeal which have not entered into force within the limits of the grounds raised in the appeal on points of law. ...”
19. According to Paragraph 9.2 of this Decree, the maximum speed limit in urban and rural areas was 60 km per hour.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105323
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FINOZHENOK v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Ms Galina Vasilyevna Finozhenok, is a Russian national who was born in 1943 and lives in Dorogobuzh, Smolensk Region. The respondent Government are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s mother, Mrs Lidiya Vasilyevna Korzhavina, born in 1922, and brother, Mr Anatoliy Nikolayevich Korzhavin, born in 1952, lived in Grozny, Chechnya.
In 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. The applicant lost contact with her relatives after November 1999.
It appears that in April 2000 the applicant, who tried to obtain information about her relatives through the local police department, was informed by the Ministry of the Interior that her relatives had died in Grozny in January 2000.
In July 2000 the head of the Oktyabrskiy district administration of Grozny informed the applicant that her relatives had been killed on 13 January 2000 as a result of a missile strike. The applicant was informed that the bodies of her relatives and of the third man who had died as a result of the same strike were buried in Grozny in July by the relatives of that man.
In June 2001 a hospital in Grozny issued death certificates in respect of Mrs Korzhavina and Mr Korzhavin and indicated that the deaths had occurred on 13 January 2000 as the result of a missile attack.
In March 2001 the applicant wrote to the prosecutor’s office and informed them about her relatives’ deaths. She sought the prosecutor’s assistance in obtaining the death certificates from Grozny. It appears that in June 2001 the Chechnya Prosecutor’s Office informed the applicant that they would examine her complaint about her relatives’ deaths and notify her of the results. They also sent her copies of the death certificates obtained in the hospital in Grozny (see above).
On 18 June 2001 the General Prosecutor’s Office informed the applicant that the Grozny Prosecutor’s Office had been instructed to establish the circumstances of her relatives’ deaths.
On 12 July 2001 the Grozny Town Prosecutor’s Office, having conducted a check, decided not to open a criminal investigation into the applicant’s relatives’ deaths. The investigator collected several statements and found it established that the house at 71 Dalnaya Street had burned down in January 2000 and that there had been no eyewitnesses to the deaths. He concluded that no crime had been committed. The information was sent to the Chechnya Prosecutor’s office in September 2001; it is unclear whether the applicant was notified at that time.
It does not appear that after that date the applicant sought or received any information concerning the investigation from the prosecutor’s office.
In August 2001 the applicant wrote to the Chechnya Prosecutor’s Office and sought their assistance in obtaining death certificates from the civil register office.
On 6 November 2001 the district court in the Smolensk region certified the applicant’s relatives’ deaths. The court took into account the medical death certificates issued in June 2001, the applicant’s statements and other evidence. On 27 November 2001 the district civil register office in the Smolensk region issued death certificates in relation of the applicant’s mother and brother.
On 22 September 2002 the Deputy Head of the North Caucasus Military Circuit wrote to the Head of the Chechen Republic Administration and to the applicant. According to him, a check had confirmed the applicant’s relatives’ deaths on 13 January 2000 during a missile strike.
On an unspecified date the applicant lodged an application with the Dorogobuzhskiy District Court, Smolensk Region to restore the time-limit for her to receive her inheritance. On 28 May 2003 the District Court granted the request. It held that the applicant was the sole heir of her mother and brother and extended the time-limit for her to receive her inheritance for six months. It does not appear that the applicant has ever formally accepted the inheritance through the notary.
In June 2004 she wrote to the Chechnya Prosecutor’s Office and asked whether the house situated at 71 Dalnaya Street had been included in the list of dwellings which had become uninhabitable as a result of the military campaign. It is unclear if she received any response.
The applicant then claimed compensation for the destroyed flat and other belongings under Government Decree no. 404 of 4 July 2003 (see below). Within the same proceedings the applicant also claimed non-pecuniary damages for the suffering caused by her relatives’ deaths from the Russian Government.
On 16 March 2005 the Presnenskiy District Court of Moscow issued its judgment. The court held that the compensation constituted a personal entitlement payable to the residents of Chechnya who had lost their houses and other property, but not to their heirs. In any event, the applicant had not applied to the Commission set up to consider compensation claims. The court further observed that the right to sue for compensation in respect of non-pecuniary damage inflicted to life or health was not heritable. The court reiterated that the applicant’s claim for non-pecuniary damages could not be directed against the Government, in the absence of a proven causal link between the actions of the Government and the damage claimed. It dismissed the applicant’s claims. It stressed that she was still able to bring a tort action against the State. On 4 August 2005 the Moscow City Court upheld that judgment.
In 2005 the applicant attempted to sue the Ministry of Finance for pecuniary and non-pecuniary damages caused by the actions of State agents. On 12 April 2005 the Smolensk Regional Court, as the final level of jurisdiction, refused to accept the claim, for lack of territorial jurisdiction. On 1 July 2005 the Promyshlenny District Court in Smolensk refused to consider a similar claim, for lack of substantiating documents and failure to pay a reduced court fee of 500 roubles (RUB). The applicant did not appeal.
The Government submitted 117 pages from the criminal investigation file opened into the deaths of Mrs Korzhavina and Mr Korzhavin. These documents can be summarised as follows.
Following the communication of the applicant’s complaint to the Government, on 26 February 2009 the Chechnya Prosecutor’s Office quashed the decision of 12 July 2001 not to open a criminal investigation. On 9 June 2009 the Investigating Committee of the Chechnya Prosecutor’s Office decided to open a criminal investigation into the applicants’ relatives’ deaths. The applicant was informed the same day.
In August 2009 the applicant was questioned and granted victim status in the proceedings.
The investigators identified and questioned several neighbours and other witnesses, including the relatives of the third person who had died on 13 January 2000, together with the applicants’ relatives. They also examined the site of the house and found some metal objects there, which were identified by an expert report as parts of a mine. They sought information from various military and other agencies about the location and actions of military units in January 2000, but it does not appear that anything of relevance was obtained. On 9 November 2009 the investigation was adjourned for failure to identify the culprits; the applicant was informed on the same day but did not appeal against that decision. It appears that on 17 November 2009 the investigation was reopened, of which the applicant was informed.
Article 125 of the Code of Criminal Procedure provides as following:
“Article 125. Judicial examination of complaints
1. Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation...or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions....
...
3. The court examines the lawfulness and the grounds for the impugned decisions or acts ...within five days from the receipt of the complaint...
....
5. As a result of the examination of the complaint the court delivers one of the following decisions:
1) Declaring the decisions, acts or omissions of the official unlawful or unsubstantiated and obliging the official to eliminate the defects;
2) Not allowing the applicant’s complaint...”
The Government decree no. 404 of 4 July 2003 on payment of compensation for lost housing and possessions to citizens affected as a result of the resolution of a crisis in the Chechen Republic and residing permanently in the region (as in force at the relevant time), provided that persons who lived permanently in the Chechen Republic had the right to compensation for lost housing and property. It established a Commission which was entitled to consider such claims.


ITEMID: 001-84044
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ABİDİN ŞAHİN  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
TEXT: 5. The applicant was born in 1960 and lives in Gaziantep.
6. In 2000 the applicant retired from his work at the Municipality. On 28 August 2000 the town council calculated the applicant's pension benefits at 11,981,741,000 Turkish liras and ordered its payment.
7. On 18 May 2001 the applicant applied to the execution office, requesting the payment of his pension benefits, plus interest at the rate of 95%. The Municipality objected to the applicant's interest request.
8. On 5 June 2001 the applicant filed an action before the Islahiye Enforcement Court to annul the Municipality's objection.
9. On 6 December 2001 the court partially upheld the applicant's request. It ordered the Municipality to pay the applicant's wages and indemnities, plus interest at the statutory rate running from 15 September 2000. It upheld the applicant's request in respect of severance benefit which had to be paid together with interest at the highest annual bank deposit rate.
10. In the absence of an appeal the judgment became final on 20 December 2001.
11. The execution authority made several unsuccessful attempts to attach the Municipality's property in order to secure the payment of the debt.
12. On 1 August 2002 the applicant sent a letter to the President of the Republic, complaining about the Municipality's failure to pay his pension benefits.
13. On 9 September 2002 the President's Office forwarded this letter to the Ministry of the Interior for an inquiry into the matter.
14. In reply, the Mayor of Islahiye explained in his letter of 11 October 2002 that the Municipality's outstanding debts to 60 retired staff exceeded its budget. He maintained that the Municipality had therefore offered to make the payments in instalments. However, the applicant had refused this offer.
15. On 6 January 2003 the applicant requested the Gaziantep Governor's Office to intervene on his behalf in order to facilitate the execution of the Enforcement Court's decision.
16. According to the information in the case file, as submitted by the parties, the relevant judgment debt is still outstanding.
17. Article 138 § 4 of the Turkish Constitution provides:
“The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer the enforcement thereof.”
18. Article 28 § 2 of the Code of Administrative Procedure reads:
“2. Decisions and judgments in administrative-law actions concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.”
19. Under Section 82(1) of the Enforcement and Bankruptcy Act (Law no. 2004), State property cannot be seized. Likewise, Section 19(7) of the Municipalities Act (Law no. 1580 of 3 April 1930) provides that municipal property that is assigned to a public service cannot be seized.


ITEMID: 001-83781
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GRUBER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Karl-Heinz Gruber, is a German national who was born in 1942 and lives in Berlin. He was represented before the Court by Mr C. Lenz, a lawyer practising in Stuttgart.
On 6 March 2000 the Berlin Regional Court convicted the applicant of seventy-one counts of fraudulent breach of trust (Untreue) and sentenced him to a cumulative sentence of two years’ imprisonment suspended on probation and a fine of 3,600 Deutschmarks (DEM). It found that the applicant, as a liquidator employed by the Treuhand agency (Treuhandanstalt), had embezzled a total of more than eleven million Deutschmarks belonging to the various firms he had liquidated or to the Treuhand agency itself. In particular, he had received money for a stock corporation he was liquidating and, contrary to a decision made by its shareholders to pay part of the sum to the Jewish Claims Conference, had transferred some 1,93 million Deutschmarks to another company to conceal damage he had previously caused. The applicant had decided to embezzle money as the Treuhand agency had failed to pay him the supplementary commissions he had claimed under his contracts with it. In fixing the sentence of one year’s imprisonment for the most serious count of fraudulent breach of trust (compare ‘Relevant domestic law’ below), the court considered as an aggravating factor the extraordinarily high amount of damage caused, amounting to almost two million Deutschmarks.
On 19 December 2000 the Federal Court of Justice, allowing the appeal on points of law lodged by the Public Prosecutor’s Office solely against the fixing of the sentence, quashed the Regional Court’s judgment in this respect and remitted the case to a different chamber of the Regional Court. It left open whether, having regard to the amount of damage caused, the very mild sentence imposed could still be considered as an appropriate sanction. In any event, the Regional Court had, inter alia, unlawfully taken into consideration grounds for granting probation when fixing the sentence itself.
On 16 July 2001 the Berlin Regional Court sentenced the applicant to a cumulative sentence of two years and six months’ imprisonment – a sentence which could not be suspended on probation (see ‘Relevant domestic law’ below) – for forty-five counts of fraudulent breach of trust. It had previously discontinued the proceedings in respect of twenty-six counts of fraudulent breach of trust in view of the sentence the applicant had to expect for the remaining counts he had been found guilty of.
In fixing the sentence of one year and six months’ imprisonment for the most serious count of fraudulent breach of trust (compare ‘Relevant domestic law’ below), the Regional Court considered in mitigation that the applicant had confessed to the offences and regretted them, that he had no previous convictions and that he made serious efforts to redress the damage caused. Moreover, the proceedings had been lengthy and he might be prohibited from further exercising his profession as a tax consultant. Furthermore, following recent developments in the case-law, the applicant might be able to enforce the payment of supplementary commissions he had claimed from his former employer.
As aggravating circumstances the Regional Court took into consideration that the applicant had caused very serious damage amounting to 1,93 million Deutschmarks and that he had flagrantly breached his duty as a tax consultant to keep accounts for assets not belonging to him separated from his own accounts. By withdrawing and transferring money on his own motion to settle his claims against his employer at that time instead of enforcing them in court, the applicant had negligently handled the assets of others in breach of his duties and had recklessly pursued his own profit. Moreover, the court considered as an aggravating factor that the applicant had embezzled money which belonged to, inter alia, the Jewish Claims Conference, whereby, against the background of German history, he had touched upon a very sensitive issue.
The Regional Court noted that, compared to other cases in which a similarly grave damage had been caused, the cumulative sentence imposed was comparatively low, which was mainly owing to the fact that the applicant could now most probably enforce his claim for supplementary commissions before the civil courts.
On 28 September 2001 the applicant lodged an appeal on points of law. He complained that the Regional Court had considered as an aggravating factor that his offence had affected assets belonging to the Jewish Claims Conference. This was not an element which could lawfully be taken into account in determining his penalty.
In his submissions dated 5 February 2002, the Federal Public Prosecutor General argued that the Regional Court, in referring to the fact that the applicant had embezzled money which should have been transferred to the Jewish Claims Conference, took account of the way in which the applicant had committed his offence and its background, which were permissible criteria for fixing a sentence under section 46 § 2 of the Criminal Code (see ‘Relevant domestic law’ below).
On 5 March 2002 the Federal Court of Justice, without giving reasons, dismissed the applicant’s appeal on points of law as ill-founded.
On 12 April 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court. Setting out the course of the proceedings before the criminal courts and the reasons given for their decisions, he complained that his sentence had been fixed at two years and six months’ imprisonment by reference to the fact that he had embezzled assets belonging to the Jewish Claims Conference. He had to serve this sentence as, contrary to his initial sentence, it exceeded two years and could therefore no longer be suspended on probation. He had been imposed an executable prison sentence contrary to the rule of law and arbitrarily. In particular, the courts had failed to verify whether he had known at the time of the offence in August 1998 that the Jewish Claims Conference was affected by his acts. Its involvement had in fact become apparent only in November 1998 when the decision on the distribution of the assets belonging to the company in liquidation had been taken. In any event, it had been a share of less than ten per cent of the amount of money in liquidation which had been claimed by the heirs of former associates of the company in liquidation who were represented by the Jewish Claims Conference. Moreover, by taking this criterion into account the courts had treated proprietors differently on grounds of their race or religion contrary to the right to equal treatment.
On 2 October 2002 the Federal Constitutional Court communicated the complaint to the Government of the Land Berlin and the Federal Court of Justice for observations. The Berlin Ministry of Justice (Senatsverwaltung) arranged for the execution of the applicant’s prison sentence to be suspended while the proceedings were pending before the Federal Constitutional Court following that court’s informal request to do so.
In its observations of 3 December 2002 the Federal Court of Justice recalled that according to its case-law, only foreseen or foreseeable consequences of an offence could be considered as aggravating circumstances.
On 3 September 2004 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint and declared that the motion for an injunction was therefore disposed of (file no. 2 BvR 587/02).
The Federal Constitutional Court found that it was not necessary to consider the applicant’s complaint in order to enforce his rights as the violation he alleged was neither severe nor did he suffer a particularly grave disadvantage by not obtaining a decision on the merits.
The court noted that the applicant complained only that the Regional Court, in fixing his sentence, had wrongfully considered as an aggravating factor that he had embezzled assets belonging to the Jewish Claims Conference. However, even assuming that the impugned criterion had not been taken into consideration in determining his punishment, the Regional Court would not have imposed a different sentence. The Regional Court, in fixing the sentence for the most severe count of fraudulent breach of trust, had not attached decisive importance to the fact that the applicant had embezzled assets belonging to the Jewish Claims Conference. It had mainly taken into account the amount of damage the applicant had caused (DEM 1,930,000), the disrespect of his professional duties as a tax consultant and his reprehensible pursuit of personal profit. Having regard to the enormous damage caused by the most severe count of fraudulent breach of trust alone, the impugned criterion could not have had a decisive influence on the sentence fixed. In these circumstances, the applicant did not suffer a particularly grave disadvantage by not obtaining a decision of the Federal Constitutional Court.
Section 46 of the Criminal Code lays down the principles to be observed in determining a perpetrator’s punishment. The guilt of the perpetrator is the basis for fixing the punishment (section 46 § 1). In fixing the penalty, the court shall counterbalance the circumstances being in the perpetrator’s favour and against him, in particular his motives and aims, the extent of the breach of his duties, the manner in which the offence was executed and its consequences caused by fault of the perpetrator, his past life, personal and financial circumstances and his conduct after the offence (section 46 § 2).
If a perpetrator committed more than one offence and thus incurred more than one term of imprisonment or more than one fine, the court, when giving its judgment on these offences at the same time, shall fix a cumulative sentence (section 53 § 1 of the Criminal Code). The cumulative sentence shall be fixed by increasing the severest sentence or fine incurred (section 54 § 1 of the Criminal Code).
Pursuant to section 56 of the Criminal Code, the court may, under certain circumstances, suspend on probation the execution of a prison term which does not exceed two years. The court may grant probation if it can be expected that the conviction as such will already serve the convicted person as a warning and that he will not commit any further offences in the future even without the influence exerted by the execution of the sentence. Moreover, a comprehensive evaluation of the act and personality of the convicted person must reveal the presence of special circumstances.


ITEMID: 001-78233
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GAISCHEG v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Preliminary objection dissmissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicants were born in 1929 and 1959 and live in Maribor.
6. They are wife and son of A.G. who died in 1980 and was of German origin.
7. M.G., A.G.'s mother, who died on 3 September 1948, owned a house in the centre of Maribor. She bequeathed the house to her son K.G., who was mentally ill, in order to provide for his maintenance. In her will, M.G. acknowledged that A.G. agreed not to claim the house. After the inheritance proceedings had been terminated, K.G. became the owner of the house and A.G. got a life-long right to reside in the house.
8. At an undetermined time, K.G. was declared incapacitated due to his mental illness and was put under guardianship. In October 1949 he was sent to a psychiatric institution. On 3 November 1949 the Maribor Local Court (Okrajno sodišče v Mariboru) ordered that K.G. should remain institutionalised.
9. On 6 December 1948 K.G.'s guardian asked the Maribor Municipality whether they would be interested in purchasing the house, because K.G. had insufficient income to cover his expenses and to maintain the house.
10. On 29 August 1949 the Maribor Municipality drafted a contract for the purchase of the house and taking on the responsibility of life-long care and maintenance of K.G. The contract established that the payment for the house would also cover A.G.'s claim against K.G. originating from a loan, which was secured by a mortgage on the house.
11. On 7 April 1950 K.G.'s guardian signed the contract before the Maribor Local Court.
12. On 14 April 1950 the Maribor Municipality requested A.G. to express his agreement with the contract by way of signing it. At an undetermined time, but apparently shortly after this date, he complied with the request.
13. On 4 April 1951 K.G. died.
14. At an undetermined time, the applicants instituted non-contentious proceedings against the Maribor Municipality in the Maribor Basic Court, Maribor Unit (Temeljno sodišče v Mariboru, Enota Maribor) seeking restitution of the house. They claimed that the house was nationalised because the contract on its purchase had been closed under duress.
On 1 January 1995 the Maribor Local Court (Okrajno sodišče v Mariboru) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 26 April 1996 the applicants lodged preliminary written submissions.
On 23 May 1996 the court held a hearing and heard witnesses.
On 30 January 1997 the court dismissed the applicant's request because the applicants failed to prove that the impugned contract had been made under duress.
15. On 4 April 1997 the applicants appealed to the Maribor Higher Court (Višje sodišče v Mariboru).
On 13 May 1997 the court dismissed the appeal as unfounded.
16. On 4 September 1997 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 25 March 1998 the court dismissed the appeal as unfounded. The decision was served on the applicant on 27 May 1998.
17. On 11 December 2000 the first applicant appealed to the Constitutional Court (Ustavno sodišče).
On 21 January 2002 the court declared the application inadmissible as out of time.
18. On 3 August 1993 there was a gas explosion in the cellar of the building where the first applicant resided, namely the house claimed by the applicants in the first set of proceedings. At the time of the explosion, the first applicant was in the cellar and sustained injuries. The liability for the explosion laid with the company MP who was responsible for maintenance of the gas pipeline in the building.
19. On 28 March 1994 the first applicant instituted proceedings against the company MP and the insurance company ZM in the Maribor Basic Court, Maribor Unit seeking damages in the amount of 7,255,000 tolars (approximately 30,000 euros) for the injuries sustained.
On 7 July 1994 the court held a hearing and decided to appoint the Ljubljana University Clinic Centre to deliver an expert opinion regarding the applicant's injuries. The opinion was delivered in six months.
On 19 December 1995 the court held another hearing and requested the appointed expert institution to amend its opinion.
On 1 January 1995 the Maribor Distric Court (Okrožno sodišče v Mariboru) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 11 June 1996 the court terminated the proceedings against the insurance company following the applicant's withdrawal of the claim against this party.
On 26 August 1996 the applicant submitted preliminary written observations and raised her claim.
During the proceedings, the court appointed two more medical experts.
At the hearing held on 5 June 1997 the court requested one of the appointed experts to deliver an additional opinion.
On 16 June and 17 September 1998 the court held hearings. At the last hearing the court issued a judgment upholding the applicant's claim in part.
20. On 9 November 1998 the MP appealed to the Maribor Higher Court. On 16 November 1998 the applicant cross-appealed.
At an undetermined time in 2000, the Maribor Higher Court set aside the first-instance court's judgment and remitted the case for re-examination.
21. On 1 February 2001 the first-instance court held a hearing and issued a judgment upholding the applicant's claim in part. The court awarded the applicant more damages than in its previous judgment.
22. On 27 March 2001 both parties appealed to the Maribor Higher Court.
On 9 July 2002 the court allowed the appeals in part and increased the amount of damages awarded.
23. On 17 September 2002 MP lodged an appeal on points of law with the Supreme Court.
On 11 December 2003 the court dismissed the appeal on points of law.
24. In the meanwhile, on 16 September 2002 the applicant instituted enforcement proceedings in the Maribor Local Court against MP for payment of the damages awarded in the Maribor Higher Judgment.
On 9 January 2003 the court allowed the enforcement and the amounts due were paid to the applicant on 30 January 2003.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80284
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VOZHIGOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6
JUDGES: David Thór Björgvinsson
TEXT: 6. The applicant was born in 1974 and lives in Bryansk.
7. In October 2000 the applicant was taken to a police station in the Bezhitskiy District of Bryansk on suspicion of the murder of a man who had been beaten to death.
8. The applicant submitted that he was arrested on 17 October 2000 and interrogated in the absence of a lawyer. According to the applicant, on the same date he was ill-treated by policemen and wrote a confession under pressure from them. He further submitted that a medical examination was conducted only ten days later, when bruises could no longer be seen.
9. The Government submitted that the applicant was arrested and first interrogated on 18 October 2000. In the report on his arrest the applicant stated that he “agreed to be detained”. In the course of the interrogation between 9.07 p.m. and 9.57 p.m. he waived his right to legal assistance, as was noted in the record of the interrogation.
10. On 21 October 2000 detention as a measure of restraint was applied to the applicant.
11. During interrogation on 26 October 2000 the applicant confirmed the waiver of his right to legal assistance, which was also noted in the minutes of the interrogation.
12. On 27 October 2000 he was charged with murder. During the interrogation on the same date the applicant refused to make any statements and denied his guilt.
13. In the course of the investigation a witness, Ms Y., stated to the investigative authorities that she had seen the applicant beating the man. On an unspecified date the applicant was confronted with Ms Y., where it was open to him to put questions and comment on her statements. Ms Y. confirmed her earlier statement.
14. On an unspecified date the public prosecutor's office instituted criminal proceedings against the policemen who had allegedly ill-treated the applicant. As a result of the investigation conducted, the proceedings were discontinued on account of lack of indication of a crime.
15. On 30 October 2000 the applicant sent a request for legal assistance to the prosecutor. He indicated that he wanted to be represented by one of the following counsel: Mr V., a lawyer from the Moscow law firm Vedischev and Partners; Ms M., a lawyer of the Moscow Bar Association; or an unspecified lawyer from the Legal Advice Office of the Bezhitskiy District of Bryansk. According to the Government, the request was received by the public prosecutor's office on 8 November 2000. The prosecutor then transferred the request to the investigator.
16. On 21 December 2000 the investigator sent three letters to the counsel chosen by the applicant, asking them to inform him whether they could participate in the investigative measures – the serving of the bill of indictment and studying of the case file – scheduled for 21, 25 and 26 December 2000.
17. On 21 December 2000 the letter was received by the Legal Advice Office of the Bezhitskiy District of Bryansk and on 10 January 2001 by the law firm Vedischev and Partners. It is not clear whether it was received by Ms M.
18. The Government submitted that no investigative measures were undertaken on either 21 or 25 December 2000.
19. The applicant submitted that the investigative measures were not postponed, and that he was not provided with the opportunity to study the case file.
20. On 25 December 2000 advocate K., a member of the Bryansk Bar Association, was assigned to assist the applicant. According to the Government, advocate K. worked for the Legal Advice Office of the Bezhitskiy District of Bryansk.
21. On 26 December 2000, when the bill of indictment was served on the applicant, advocate K. assisted him in studying the case file. The applicant refused to sign a statement to the effect that he had studied the case file. However, the statement was signed by advocate K.
22. On 12 January 2001 the law firm Vedischev and Partners sent two replies, to the investigator and the applicant. The reply to the investigator read:
“We have received your letter, in which you inform us that the following investigative measures ... are scheduled for 21, 25 and 26 December 2000 ... however, according to the postmark, the letter was sent on 21 December 2000 and it was received by us on 10 January 2001.
By using such a method of notification you deliberately excluded the possibility of our lawyer's participation in the investigative measures indicated. By your action you have grossly violated the defence rights of the accused [Mr] Vozhigov, who expressed his wish to be assisted by a lawyer from our law firm.
You must set a new date for [the investigative measures] and notify us about it in due time in order to provide a real opportunity for our lawyer to participate in the defence of [Mr] Vozhigov.”
23. On 30 January 2001 the Bezhitskiy District Court of Bryansk ordered a number of witnesses, including Ms Y., who appeared to be the only eyewitness, to be brought before the court. The hearing was fixed for 19 February 2001. On that date the bailiff went to Ms Y.'s residence. However, he did not find her at home as, according to her mother, since December 2000 she had been living in Moscow. The hearing was then postponed twice, until 19 March and 19 April 2001. Both times the court ordered to have Ms Y. brought to the hearing. According to the bailiff's report of 19 April 2001 Ms Y. had ceased to reside at the address indicated to the court and her new place of residence was not known.
24. On 7 May 2001 the court requested the prosecutor at the Bezhitskiy District Court of Bryansk to establish Ms Y.'s whereabouts. In the reply of 29 May 2001 the prosecutor informed the court that Ms Y. was not registered as resident either in Moscow or in the Moscow Region. The court issued another order to have Ms Y. brought to the hearing of 4 June 2001. The Government submitted that by the aforementioned date it appeared impossible to establish her whereabouts since she did not live at the address provided to the court and her relative did not have any information as to where she was.
25. At the hearing of 4 June 2001 the Bezhitskiy District Court of Bryansk decided to examine Ms Y.'s statements made during the preliminary investigation. The court asked both parties whether they had any objections. Neither party objected. The court based its judgment on the statements of Ms Y., the applicant's confession made at the beginning of the investigation – although he later changed his statements and pleaded not guilty before the court – and on a certain amount of indirect evidence, such as statements by indirect witnesses and expert reports. At the hearing the court also examined the applicant's doctor, Mr R., who had monitored the applicant since April 2000 in connection with a hip fracture he had sustained in August 1999, with a view to determining whether the applicant would have been able to commit the offence, taking into account his injury. Mr R. stated that because of the improvement of his state of health the applicant had not been operated on but had been recommended not to lift weights of over 12 kilograms. The court also found the applicant's allegations of ill-treatment unsubstantiated. The court reached that conclusion relying on oral evidence given at the hearing by another policeman, a medical certificate according to which the applicant had no injuries that could have been caused on the date of the alleged ill-treatment, and the results of the investigation conducted by the public prosecutor's office. Advocate K. assisted the applicant in the proceedings before the trial court. The court convicted the applicant of murder and sentenced him to 11 years and six months' imprisonment.
26. On 7 June 2001 the applicant applied to the Bezhitskiy District Court of Bryansk to examine the record of the hearing. On 21 June 2001 the applicant stated in writing that he had studied the record.
27. The applicant appealed against the conviction on the grounds, inter alia, that during the preliminary investigation he had been unduly refused legal assistance and that the authorities had deliberately precluded him from being assisted by the lawyer of his choosing. He also claimed that his confession had been made under pressure from the police officials and stated that the key witness, Ms Y., had not been examined at the hearing.
28. On 6 July 2001 the Bryansk Regional Court upheld the conviction. The court held that the trial court had been correct to rely on Ms Y.'s statements made during the preliminary investigation because it had been impossible for her to appear at the hearing. The court also held that there had been no substantial breaches of procedural requirements, including any alleged breach of the applicant's right to defence, such as to render the conviction unlawful.
29. Article 48 of the Constitution guarantees everyone the right to qualified legal assistance. Under Article 48 § 2 an arrested person has the right to the assistance of a lawyer from the moment of the arrest.
30. Pursuant to Articles 47 and 52 of the RSFSR Code of Criminal Procedure of 1960, a suspect, from the moment of his arrest, has the right to be represented by defence counsel, if necessary to be paid for by the authorities.
31. Pursuant to Article 199 of the Code of Criminal Procedure of 1960, the preliminary investigation ends by the drawing up of a bill of indictment. Article 201 further provides that an investigator has to notify the accused of the termination of the preliminary investigation and explain to him his right to examine the case file either in person or with the assistance of a lawyer. When the accused asks for the assistance of a lawyer the investigator has to provide the accused and his lawyer with the file on the case, which facility has to be deferred until the actual appearance of a lawyer, but not for longer than five days. After the accused and his lawyer have finished studying the case file, the investigator has to ask them whether they wish to make any applications to amend the investigation.
NON_VIOLATED_ARTICLES: 6