ITEMID: 001-5068
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ENZI v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national living in Tschagguns, Austria.
She is represented before the Court by Mr. W. L. Weh, a lawyer practising in Bregenz.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of altogether nine parcels of land situated in Tschagguns, namely nos. 1862, 1863/1, 1863/4, 1864/1, 1865/1, 1866, 1867, 569 and 570, all registered under file no. 641 of the Tschagguns land register (Grundbuch). All parcels are designated as agricultural land (Freifläche/Landwirtschaftsgebiet) in the area zoning plan (Flächenwidmungsplan), with the exception of parcels no. 569 and 570 which are marked out as building land. Parcels nos. 569 and 570 on which two buildings are erected, namely a farmhouse and a barn, are surrounded by parcel no. 1867 which is agricultural land. Adjacent to this are parcels nos. 1866 and 1863/4. The other parcels owned by the applicant, parcels nos. 1862, 1863/1, 1864/1 and 1865/1, form a further complex of land, divided from the other plots by a small road.
On 22 January 1991 the applicant, represented by counsel, filed a request with the Tschagguns Municipality for a partition of land (Grundstücksteilung) according to a map drawn up by a civil engineer. This request related to the complex of land formed by parcels nos. 1862, 1863/1, 1864/1 and 1865/1. As to this map the applicant stated in her request: this map reflects the wish of the petitioner to have her parcels reasonably partitioned in such a way that they could later be used as building land. She further mentioned that a previous request for an amendment of the area zoning plan in force had been refused on the basis of a negative report by an official expert. The partition map attached to the new request was to be considered as an expert report refuting the findings of the official expert in the previous proceedings.
On 4 November 1991 the Tschagguns Municipal Executive Committee (Gemeindevorstand) dismissed the applicant’s request. It found that the requested partition was contrary to the area zoning plan. Since a change of the land’s designation into building land was not possible, it had to be treated as agricultural land. The requested partition was contrary to the objectives mentioned in the Vorarlberg Planning Act (Raumplanungsgesetz), in particular the maintenance and development of the rural conditions for agriculture, as the granting of the partition would lead to an unreasonable dispersion of agricultural land. As regards the applicant’s complaint about the official expert’s report, the Executive Committee noted that her previous request for a change of the designation of the land had already been rejected by the Municipal Council (Gemeindevertretung) on 31 October 1990. That decision had partly been based on a report prepared by an official expert. The map submitted by the applicant could not be considered equivalent to an expert report.
On 19 November 1991 the applicant appealed to the Appeal Board (Berufungskommission) of the Tschagguns Municipality. She also requested the Appeal Board to obtain the expert report of a civil engineer on the possible future non-agricultural use of her land. As in her initial request, she stated that the map reflected her wish to have her parcels reasonably partitioned in such a way that they could be used as building land later on.
On 10 August 1992 the applicant supplemented her appeal. She stated that it was not necessary to hear an expert for agriculture as the main purpose of the partition proceedings was to change in the future the use of the land. Instead of an agricultural expert a building engineer should be heard as expert.
On 2 October 1992 the Appeal Board of the Tschagguns Municipality dismissed the applicant’s appeal. Referring to a report by an official expert of the District Authority for Agriculture (Agrarbezirksbehörde), it found that the partition of the land at issue, including the construction of an access road to some of the parcels, would render the agricultural exploitation of the land more difficult and the exploitation of parts of the land by agricultural machines impossible. Thus, from an agricultural viewpoint the partition of the land made no sense. The partition was, therefore, contrary to the area zoning plan in force and contrary to the objectives provided for in the Planning Act, since the primary purpose of the partition, which the applicant had admitted, was the change of the designation of the land into building land. It had not been necessary to obtain another report from a non-agricultural expert on the possible future use of the land, as requested by the applicant, because this land was, according to the area zoning plan, designated as agricultural.
On 19 October 1992 the applicant filed a further appeal to the Bludenz District Administrative Authority (Bezirkshauptmannschaft). She stated that it was unreasonable to continue to use the land for agricultural purposes. It was only logical that, once the land was properly partitioned, its designation in the zoning plan would have to be changed. On 30 December 1992 the Bludenz District Administrative Authority dismissed the appeal.
On 9 February 1993 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She complained in particular that her request for the partition of her land had not been decided by a tribunal within the meaning of Article 6 § 1 of the Convention, that no oral hearing had been held and that the authorities had not sufficiently taken into account the map prepared by the civil engineer. She also submitted that the area zoning plan was unlawful, and recommended a change of the designation of her land therein:
On 27 September 1993 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success, and remitted the case to the Administrative Court (Verwaltungsgerichtshof). The Constitutional Court, referring to its previous case-law, found that a request for the partition of land did not involve the determination of civil rights, within the meaning of Article 6 of the Convention, and that the applicant had failed to substantiate which laws had been infringed by the area zoning plan.
On 31 January 1994 the applicant supplemented her complaint to the Administrative Court and requested an oral hearing before the Administrative Court, combined with an inspection of the location, in the course of which the civil engineer who had drawn up the partition map should be heard as a witness.
On 23 February 1995 the Administrative Court dismissed the applicant’s complaint. The Court found that, on the basis of the area zoning plan in force, the authorities had only to examine whether the partition was contrary to the objectives set out in the Vorarlberg Planning Act, in particular the maintenance of agricultural area s. Since it had been established that a partition would render more difficult the agricultural exploitation of the land which, contrary to the applicant’s submissions, was still possible at the present stage, the Administrative Court found that the conditions for a partition of the land were not met. Furthermore, there was no question of any preferential treatment of the official agricultural expert by the authorities, because the experts dealt with different facts. While the private expert, i.e. the civil engineer who had drawn up the partition plan, dealt with a hypothetical future use of the land as building land, the official agricultural expert’s starting point was the actual designation of the land.
The Administrative Court rejected the applicant’s requests for an oral hearing and an on-site inspection, as it found that such measures would not clarify the case further. The main question in the present case was whether the proposed partition of the land would render its cultivation more difficult and not, as had been suggested by the applicant, what alternative use of the land, not compatible with the area zoning plan, would be preferable or desirable. An oral hearing would only have been useful for the purpose of examining the latter question.
It appears that the applicant has meanwhile lost all her land as it had been sold at a judicial sale (Zwangsversteigerung) in enforcement proceedings ordered against the applicant.
B. Relevant domestic law
Land planning in Austria is divided into regional and local zones (überörtliche und örtliche Raumordnung). In the present case the land planning at issue was governed by the Planning Act (Raumplanungsgesetz) of the Land of Vorarlberg.
In order to achieve the aims of the regional land planning laid down in Section 2 of the Planning Act, the Vorarlberg Regional Government (Landesregierung) issues regional land plans (Landesraumpläne) (Section 7).
According to Section 2 of the Planning Act, the area zoning plan has to pursue, inter alia, the following objectives:
- to protect the environment, in particular to avoid negative repercussions on the environment and to preserve the countryside;
- to maintain and to improve good conditions for agriculture and forestry; and
to preserve and to further the development of adequate health and tourist resorts.
The local land planning is carried out by the communities which issue area zoning plans (Flächenwidmungspläne) that designate the land as building areas (Bauflächen), possible future building areas (Bauerwartungsflächen), undeveloped areas (Freiflächen), traffic areas (Verkehrsflächen) and reserved areas (Vorbehaltsflächen).
Both the regional land plans and the area zoning plans are Ordinances (Verordnungen). The owners of affected land are neither parties to the planning proceedings nor do they have a right to request a change or an exemption in plan designations.
Section 34 of the Planning Act, insofar as relevant, reads as follows:
“(1) Parcels of land may only be divided with the consent of the municipal executive committee.
(2) Such permission is to be refused, if the partition
(a) does not comply with the area zoning plan, the building plan or the objectives listed under Section 2, ...
(c) divides the plot of land for no pertinent reason,
(d) leads to a situation in breach of the building law in relation to any existing buildings,
(e) results in new parcels of land which can no longer be exploited in a reasonable manner.
(3) Permission shall be granted if no grounds for its refusal under paragraph 2 exist.”


ITEMID: 001-101735
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HORVATH AND VADASZI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants, Mr Tibor Horváth and Mr Géza Vadászi, are Hungarian nationals who were born on 14 August and 3 November 1987 respectively, and live in Kesznyéten. They were represented before the Court by Ms L. Farkas, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Ministry of Public Administration and Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are of Roma origin. Following their qualification in 1994 by the Borsod-Abaúj-Zemplén County Expert and Rehabilitation Panel (which consisted of a paediatrician, a psychologist and a specialist in therapeutic pedagogy) as having mild intellectual disabilities (enyhe fokban értelmi fogyatékos), they were placed in a special class of the Kesznyéten School, as from the academic year 1994/95. This remedial class was taught physically segregated. The teacher, who was in charge of this class from 1996 until 2000, did not have a degree in special pedagogy.
The applicants' intellectual ability was reviewed in November 2000. This examination corroborated the findings of 1994.
On 21 June 2004 the applicants' lawyer filed a criminal complaint against unknown perpetrators on charges of forging public documents and endangering minors. She alleged in essence that the school certificates issued in respect of the applicants and other pupils did not reflect their real situation in the special class, that the allegedly reduced curriculum jeopardised their intellectual progress, in particular because the teacher in charge did not have the appropriate qualification, and that the assignment of the applicants to the special class served the purpose of their physical segregation.
In the course of the ensuing investigation conducted by the Tiszaújváros Police Department, a public education expert was appointed. Furthermore, a forensic psychologist examined the applicants in October 2004. The findings of this expert were identical to those established in 1994 and 2000. He found that Mr Vadászi was mentally challenged (értelmi sérült) while Mr Horváth represented a borderline case of mental retardation (mentálisan retardált határeset). He concluded that their placement in the special class could not jeopardise their mental development in view of their original disabilities.
On 2 December 2004 the Miskolc District Public Prosecutor's Office discontinued the investigation. It observed that the legal hypothesis of the offence of endangerment of minors was only met if a grave breach of duty had been committed by the school officials, into which category lesser educational irregularities did not fall.
On 18 January 2005 the Borsod-Abaúj-Zemplén County Public Prosecutor's Office finally dismissed a complaint lodged by the applicant's lawyer. It observed that a scrutiny of the documentation of the school had revealed only minor irregularities, rather than a forgery of documents. It also held that the testimonies given by the applicants and other pupils of the school contradicted the documents and the findings of the education expert and, given their subjective nature, were unsuitable for the establishment of a grave breach of duty on the part of the school's officials. It moreover drew the applicants' attention to the possibility of pursuing a civil action in respect of their allegations.
Subsequently, the applicants' lawyer retained a private expert in clinical psychology and public education. In that expert's opinion, established in February 2005, the applicants' placement in the special class had endangered their mental and psychological development, because they had not suffered from the kind of serious mental disability which would justify their separate education.
Relying on that opinion, on 28 February 2005 the applicants' lawyer preferred a private bill of indictment, on the charge of endangering minors, against both the director of the school and the pedagogical expert responsible for the review of the applicants' intellectual ability in 2000. In the indictment it was alleged that their placement in the special class endangered the applicants' mental, psychological and educational development. No mention of their ethnic origin or assertion of discrimination was made in the motion.
On 30 June 2005 the Miskolc District Court dismissed the motion without an examination on the merits. It observed that the charge in respect of the expert was incompatible ratione personae with section 195(1) of the Criminal Code and as such could not be retained, since she had never been under any obligation to educate, survey or take care of the applicants. Moreover, the charge in respect of the director was time-barred, since more than five years had elapsed between her last relevant act in the case in September 1999 – namely, when she had assigned an unqualified teacher to the special class – and the introduction of the motion by the applicants on 28 February 2005.
Section 77(3) of the Public Education Act provides as relevant:
“The ... school is fully liable, irrespective of its culpability, for any damage caused to ... a pupil in respect of ... [his/her] education ... (tanulói jogviszonnyal ... összefüggésben okozott). The provisions of the ... Civil Code shall be applicable to compensation [for such damage], with the proviso that the institution ... can only be exempted from its liability if it proves that the damage was caused by force majeure...”
Since 2004, compensation on this ground has been awarded by civil courts in several cases concerning allegations similar to those in the present application.
Section 195(1) of the Criminal Code provides that any person under the obligation to educate, survey or take care of a minor, who commits a grave breach of duty flowing from this task, which results in the endangerment of the minor's bodily, mental or moral development, shall be punishable with imprisonment of from one to five years.
According to the Commentary to the Criminal Code, a breach of duty is considered 'grave' if the offender neglected his or her duty to such an extent that not even the minimum requirements of society were met.
“77. In its third report, ECRI urged the Hungarian authorities urgently to take further steps to end the over-representation of Roma children in special schools [and] recommended that measures be taken to facilitate the integration of Roma children then in special schools into the mainstream school system.
78. ... According to information provided by the authorities, 2100 children who had been classified as having mental disabilities were reassessed by independent medical experts.
82. ECRI notes that the efforts made to date to combat the disproportionate representation of Roma children in special schools for children with mental disabilities, though they have had some positive effects, cannot be said to have had a major impact in practice so far. It stresses that, in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system, putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools.”


ITEMID: 001-60606
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF KALASHNIKOV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Nicolas Bratza
TEXT: 11. The applicant was born in 1955 and lives in Moscow. At the material time he was the president of the North East Commercial Bank (Северо – Восточный Акционерный Банк).
12. On 8 February 1995 criminal proceedings were initiated against the applicant, the details of which are set out under sub-heading B below. On 29 June 1995 the applicant was taken into custody and, by a judgment of the Magadan City Court (Магаданский городской суд) of 3 August 1999, he was convicted of embezzlement and sentenced to a term of imprisonment.
13. From 29 June 1995 to 20 October 1999 the applicant was kept in the detention facility IZ-47/1 in the city of Magadan (Investigatory Isolation Ward No. 1 (СИЗО-1)). On 20 October 1999 he was sent to serve his sentence, following the City Court judgment of 3 August 1999, to the penitentiary establishment AV-261/3 in the village of Talaya. On 9 December 1999 he was transferred back to the detention facility in Magadan where he stayed until his release on 26 June 2000.
1) The applicant's submissions on the facts
14. As regards the first period of his detention in the Magadan detention facility, the applicant alleged that he had been kept in a cell measuring 17 square meters (“m²”) where there were 8 bunk beds. However, it nearly always held 24 inmates; only rarely did the number fall to 18. As there were three men to every bunk, the inmates slept taking turns. The others would lie or sit on the floor or cardboard boxes waiting for their turn. It was impossible to sleep properly as the television was on around the clock and, during the day, there was much commotion in the cell. The light in the cell was never turned off.
15. The lavatory pan in the corner of the cell offered no privacy. A partition separated it from a wash stand, but not from the living area and dining table. The lavatory pan was elevated from the floor by half a meter while the partition measured 1,1 meters in height. Therefore, the person using the toilet was in the view of both his cellmates and a prison guard observing the inmates through a peep-hole in the door.
The inmates had to eat their meals in the cell at a dining table which was only a meter away from the toilet. The meals were of poor quality.
16. The cell, which had no ventilation, was stiflingly hot in summer and very cold in winter. Because of the poor quality of the air in the cell, a window had to remain open all the time. Being surrounded by heavy smokers, the applicant was forced to become a passive smoker. The applicant claims that he was never given proper bedding, dishes or kitchen utensils. He only received a quilted mattress and a thin flannel blanket from the administration, and had to borrow kitchenware from cell-mates who had received these items from relatives.
17. The cells of the detention facility were overrun with cockroaches and ants, but no attempt was made to exterminate them. The only sanitary precaution taken was that once a week the guards gave the inmates a litre of chloride disinfectant for the lavatory.
18. He contracted a variety of skin diseases and fungal infections, losing his toenails and some of his fingernails. During the trial from 11 November 1996 to 23 April 1997 and from 15 April 1999 to 3 August 1999, a recess was ordered so that he could be treated for scabies.
On six occasions detainees, with tuberculosis and syphilis were placed in his cell and he received prophylactic antibiotic injections.
19. The applicant submitted that he could only take a walk outside his cell one hour per day and that usually he was only able to take a hot shower twice a month.
20. Finally, the applicant stated that, following his transfer back to the same facility on 9 December 1999, the detention conditions had not materially improved. He was not provided with proper bedding, towels or kitchenware. There was no treatment available for his skin disease due to a lack of proper medication. His cell was still overrun with cockroaches and there had been no anti-infestation treatment for 5 years. However, in March-April 2000 the number of inmates in his 8-bed cell was reduced to 11.
2) The Government's submissions on the facts
21. The Government claimed that the applicant's cell measured 20,8 m². The applicant had a separate sleeping berth, bedding, kitchen utensils and access to health care. The cell was designed for 8 inmates. In connection with the general overcrowding of the detention facility, each bed in the cells was used by 2 or 3 inmates. In the applicant's cell there were 11 or more inmates at any given time. Normally the number of inmates was 14. The beds were used in turn by several prisoners on the basis of eight hour shifts of sleep per prisoner. All inmates were provided with wadded mattresses, cotton blankets and sheets.
22. The applicant's cell was equipped with a sanitary unit, including a lavatory pan and a wash stand. The lavatory pan was situated in the corner of the cell and was separated from the dwelling place by a partition - 1,1 meters high - ensuring privacy. Such standards have been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971.
The Government submitted photographs to the Court showing the applicant's cell, which the applicant claimed had been improved slightly since the beginning of his detention. The Government also provided a video recording of the facilities after the applicant's release and their major renovation.
23. The cell had windows providing fresh air and daylight. There was no possibility to equip the cell with a ventilation system. In hot weather a window of the cell door could be opened for better ventilation. Inmates also had the opportunity to have compact fans delivered to them by relatives.
24. There was a television in the cell which belonged to the applicant who could control when to switch it on or off. Programmes were only transmitted during part of the day in the region.
25. On 11 February 1998 an inmate in the applicant's cell was diagnosed with syphilis. The inmate was immediately removed to a separate cell and underwent a complete course of treatment for the disease. The other inmates, including the applicant, who had shared the cell with this person, were subjected to appropriate preventive treatment on 26 February 1998 and to serological control measures. This was done pursuant to the “Guidelines on Medical Care for Persons Held in Pre-Trial Detention Facilities and Correctional Labour Institutions of the USSR Ministry of the Interior”, approved on 17 November 1989.
In January 1999 one of the blocks in the detention facility was closed for repairs and the detainees were transferred to vacant places in other cells. The detainees who were moved to the applicant's cell stayed there for a week and some of them were ill with tuberculosis. However, in the opinion of the medical personnel, the latter did not present a danger to other inmates as these persons were undergoing out-patient medical treatment.
On 2 June 1999, an inmate who was observed to have residual tuberculosis was placed in the applicant's cell. The inmate underwent the relapse prevention treatment for a period of two months. As he did not suffer from tuberculosis in its open form, there was no danger of its transmission to other inmates.
The applicant underwent repeated fluorographic examinations which showed no abnormality of his thorax.
On 15 June 1999, an inmate who was undergoing treatment for syphilis was placed in the applicant's cell. Medical examinations performed subsequently showed negative results. Blood tests which were performed in this connection on the applicant also revealed negative results.
26. The applicant was systematically examined by the medical personnel and he received medical assistance from a dermatologist, therapeutist and stomatologist. When the applicant was diagnosed with different diseases (neurocirulatory dystonia, scabies and fungal infection) he received immediate medical care. There were recesses announced during the trial in order to provide medical treatment for the applicant.
27. The applicant could shower every 7 days and was permitted to walk outside his cell for up to 2 hours a day.
28. Finally, the Government submitted that, in order to prevent the appearance of infectious diseases, pre-trial detention facilities take prophylactic disinfection measures to secure the timely extermination of pathogenic micro-organisms, arthoropoda and rodents, pursuant to the above-mentioned ministerial guidelines of 1989. It was conceded, however, that the infestation of detention facilities with insects was a problem.
3) Medical records and an expert report
29. According to the applicant's medical records, he had scabies in December 1996, allergic dermatitis in July and August 1997, a fungal infection on his feet in June 1999, a fungal infection on his finger nail in August 1999, mycosis in September 1999 and a fungal infection on his feet, hands and groin in October 1999. The records also state that the applicant received treatment for these medical conditions.
30. A report by medical experts issued in July 1999 stated that the applicant was suffering from neurocirculatory dystonia, astheno-neurotic syndrome, chronic gastroduodenitis, a fungal infection on his feet, hands and groin and mycosis.
31. On 8 February 1995 the applicant became a suspect in the embezzlement of his bank's funds and was subjected to a preventive measure in the form of a ban on leaving a specified place. The criminal case was assigned the number 48529.
32. On 17 February 1995 he was formally charged with misappropriating 2,050,000 shares of another company.
33. On 29 June 1995, by an order of the investigator, which was approved by the prosecutor, the applicant was arrested and placed in detention on remand on the ground that he had obstructed the establishment of the truth in the criminal proceedings. In particular, it was stated in the order, with references to concrete instances, that the applicant had refused to turn over certain bank documents necessary for the investigation, he had brought pressure to bear on witnesses and had tampered with documents. The order also referred to the seriousness of the offence with which the applicant was charged.
The applicant's detention was subsequently extended by the competent prosecutor on unspecified dates.
34. On 4 July 1995, 31 August 1995 and 26 September 1995, the applicant's defence lawyer filed applications for release from custody with the Magadan City Court, which rejected them on 14 July 1995, 9 September 1995 and 4 November 1995, respectively.
35. The applicant contends that from August 1995 until November 1995 no investigative activity took place as the two investigators in charge of the case were on holiday, and the person to whom the case was temporarily assigned undertook no action.
36. On 14 December 1995 the applicant was charged with 8 additional counts relating to the embezzlement of his bank's funds.
37. On 6 February 1996 the preliminary investigation of the charges against the applicant was terminated and the case was sent to the Magadan City Court.
38. On 1 March 1996 the applicant filed with the City Court a request for his release from custody, which was refused on 27 March 1996.
39. On the same day the City Court decided to remit the case to the Magadan Regional Prosecutor for further investigation. The latter filed an appeal against the decision with the Magadan Regional Court (Магаданский областной суд) which, on 29 April 1996, rejected it.
40. Following an additional investigation as of 15 May 1996, the Regional Prosecutor remitted the case to the City Court on 19 June 1996.
41. In the meantime, on 16 May 1996, the applicant filed an application for release from custody with the City Court in which he stated that he was being held in poor conditions and that his health had deteriorated. His application for release was refused on 26 May 1996.
On 23 June 1996 the applicant filed another request for release.
42. On 11 November 1996 the City Court began its examination of the applicant's case. On the same day it rejected his request for release filed on 23 June 1996.
43. At the hearing on 27 December 1996 the applicant asked the City Court to release him from custody on medical grounds. He stated that there were 21 inmates in his cell with just 8 beds; there was no ventilation in the cell where everybody smoked; the television was constantly blaring and he had contracted scabies. Upon receiving a medical certificate confirming the existence of the disease, the City Court adjourned the hearing until 14 January 1997. It refused to release the applicant from custody on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth while at liberty.
44. The examination of the applicant's case by the City Court lasted until 23 April 1997.
On 7 May 1997 the case was adjourned due to the removal from office of the presiding judge for improper conduct unrelated to the applicant's case.
45. On 15 June 1997 the applicant filed another request for release, referring to the poor conditions in which he was being detained.
46. In July 1997 the applicant's case was assigned to another judge who scheduled a hearing for 8 August 1997. On that day the hearing was postponed because the defence lawyer could not attend for health reasons. The applicant's request for release was rejected on the grounds of the seriousness of the offence with which he was charged and the danger of his obstructing the establishment of the truth in the criminal case.
The applicant's further request for release from custody filed on 21 September 1997 was refused on 21 October 1997.
47. On 22 October 1997 the applicant complained to the Magadan Regional Court about his case, asking for its transfer from the City Court to the Regional Court. He also submitted a complaint to the Supreme Court of Russia (Верховный Суд Российской Федерации) which forwarded it to the Magadan Regional Court for examination. By letters of 31 October 1997 and 25 November 1997, the Regional Court informed the applicant that there was no reason for it to assume jurisdiction and suggested he turn to the City Court with any questions relating to his case. It also requested the City Court to take measures for the examination of the applicant's case.
48. On 21 November 1997 he made complaints to different authorities, in particular the Office of the President of the Russian Federation, the Magadan City Court, the High Qualification Board of Judges (Высшая квалификационная коллегия судей Российской Федерации) – a body dealing with questions of professional competence – and the Prosecutor General. In his complaints, he submitted, inter alia, that he was being held in appalling conditions without any decision on the substance of the charges, that he had contracted various skin diseases, that his toenails had fallen off and that he was suffering from a heart condition.
49. By letter of 5 February 1998, the president of the Magadan City Court informed the applicant that the court would resume its consideration of his case before 1 July 1998, referring to its complexity and the heavy workload of the judges.
50. On 11 February 1998 the Magadan Regional Court forwarded to the City Court 11 complaints made by the applicant, which it had received from the Prosecutor General, the Supreme Court and other authorities.
51. On 23 February 1998 the applicant commenced a hunger strike with a view to drawing the attention of the authorities to his lengthy detention and the absence of court hearings, which he continued until 17 March 1998.
52. On 1 March 1998 the applicant complained about his case to the Office of the President of Russia and to a parliamentary committee of the State Duma, requesting their assistance in the transfer of his case to the Magadan Regional Court.
53. On 3 March 1998 the Department of Justice of the Magadan Region, in response to the applicant's complaint addressed to the Ministry of Justice of Russia, stated that the court would be able to deal with his case in the second half of 1998.
54. Meanwhile, the applicant lodged a request with the Constitutional Court (Конституционный Суд Российской Федерации) to review the constitutionality of the provisions of Articles 223-1 and 239 of the Code of Criminal Procedure concerning time-limits for the start of trials. By letter of 10 March 1998, the Constitutional Court informed the applicant that, since the impugned provisions did not lay down any time-limits with regard to the length of detention while a case is being considered by the courts, his request could not be considered.
55. The applicant also complained to the High Qualification Board of Judges about the delay in the consideration of his case which, by letter of 30 March 1998, asked the Magadan Regional Court to investigate the matter.
56. On 2 April 1998 the applicant filed a complaint with the Supreme Court about the delay in setting the date for his trial, in which he also referred to his poor conditions of detention. A copy of his complaint was sent to other authorities. All his complaints were forwarded by the addressee institutions to the Magadan City Court for examination.
57. On 13 April 1998 the Magadan Regional Court informed the applicant that the City Court had been requested to take measures for the consideration of his case. It also stated that the case was to be tried by the City Court and that the Regional Court could only act as a court of cassation.
58. On 25 May 1998 the applicant filed a petition with the City Court asking for his case to be transferred to the Regional Court for trial.
By decision of the president of the Regional Court of 28 May 1998, the applicant's case was transferred to the Khasynskiy District Court (Хасынский районный суд) in order to expedite the proceedings.
59. On 11 June 1998 the applicant complained about the delay in starting court hearings to the High Qualification Board of Judges.
60. On 16 June 1998 the applicant filed a request for release from custody with the Khasynskiy District Court in which he stated that his health had deteriorated as a result of the overcrowding and the poor conditions in his cell in the detention facility.
On the same day, he sent an application to the Khasynskiy District Court asking it to transfer his case to the Magadan Regional Court. He submitted that the transfer of his case to the Khasynskiy District Court was unlawful and that its distance from the city of Magadan would hamper an objective and fair examination of his case.
61. On 1 July 1998 the applicant complained to the Regional Court that the Khasynskiy District Court had not yet set a hearing date and asked it to speed up the proceedings.
62. On 3 July 1998 the case was remitted to the Magadan City Court as the applicant had expressed his disagreement with its transfer to the Khasynskiy District Court.
63. On 8 July 1998 the applicant received a letter from the Regional Court informing him that there were no grounds for it to act as a court of first instance or to assume jurisdiction in the case.
The next day the applicant requested the City Court to release him, referring to the poor conditions of detention.
64. On 31 July 1998 the applicant complained to the High Qualification Board of Judges about the prolonged failure of the City Court to examine his case. On 19 August 1998 his complaint was transmitted to the Magadan Regional Court with a request to provide information both on the complaint and on the work of the City Court. On 27 August 1998 the Regional Court forwarded the applicant's complaint to the City Court.
The applicant also submitted a complaint to the Magadan Regional Court about the delay in starting the trial hearings, which on 11 August 1998 transmitted the complaint to the City Court.
65. On 7 September 1998 the applicant filed another complaint with the High Qualification Board of Judges stating that all his previous complaints had been sent by the Magadan Regional Court to the City Court without any measures being taken. On 23 September 1998 the applicant's complaint was forwarded to the Magadan Regional Court with a reminder about the request for information on the reasons for the prolonged delay in examining the applicant's case. On 7 September 1998 the applicant also submitted a complaint about the delay in the proceedings to the Supreme Court.
On 5 October 1998 the applicant submitted further complaints to the Regional and High Qualification Boards of Judges.
66. On 13 November 1998 the City Court set the hearing date for 28 January 1999.
67. On 25 November 1998 the applicant complained to the High Qualification Board of Judges about the actions of the President of the Magadan City Court, apparently requesting the institution of criminal proceedings against him. On 22 December 1998 the complaint was forwarded for examination to the president of the Magadan Regional Court with a request to submit a report to the competent Qualification Board in case the applicant's allegations proved substantiated.
On 16 December 1998 the Magadan Regional Court forwarded another complaint by the applicant to the City Court.
68. On 18 January 1999 the applicant submitted to the City Court a request for release from custody.
69. On 28 January 1999 the Magadan City Court decided to send the applicant's case back to the prosecutor for further investigation due to the violation of procedural norms by the investigative authorities. These violations consisted of an incomplete presentation of the case materials to the accused at the end of the preliminary investigation, as well as an imprecise recording of file documents. The court refused the applicant's request for release having regard to the gravity of the charges against him and the danger of his obstructing the establisment of the truth while at liberty. The applicant lodged an appeal against the refusal with the Magadan Regional Court which, on 15 March 1999, dismissed it. The Regional Court however revoked the decision to send the case back to the investigative authorities as unfounded and ordered the City Court to proceed with the trial. In a separate decision, issued on the same day, it considered the lengthy delay unjustifiable in view of the fact that the case was not particularly complex, and requested the City Court to inform it within one month of the measures taken.
70. On 17 March 1999 the applicant submitted to the City Court another request for release from custody.
On the same day he complained to the High Qualification Board of Judges about his lengthy detention without a court judgment. Five days later, the applicant submitted a similar complaint to the Regional Qualification Board of Judges.
On 5 April 1999 the applicant filed another complaint with the High Qualification Board of Judges about the prolonged delay in the proceedings.
71. On 15 April 1999 the City Court resumed its examination of the applicant's case.
At the hearing on 20 April 1999 the prosecutor requested that, in view of the length of the applicant's detention, a psychiatric evaluation of the applicant be carried out in order to determine the state of his mental health. The City Court granted this request and adjourned the hearing until 30 April 1999.
72. At the hearing on 30 April 1999 the applicant unsuccessfully applied for release from custody. He submitted that he was suffering from a lack of sleep. In his cell there were 18 inmates who had to sleep in shifts. He further argued that he could not obstruct the establishment of the truth in his case as all the investigative measures had already been taken.
The prosecutor participating in the hearing asked the City Court to request the administration of the detention facility in which the applicant was being held to provide the applicant with conditions allowing normal sleep and rest during the court hearings. The prosecutor further stated that he would submit a similar request to the prosecutor in charge of supervising detention facilities.
The applicant submits that subsequently the competent prosecutor came to his cell, acknowledged that the conditions were poor, but stated that the situation in other cells in the detention facility was no better and that there was no money to improve the conditions.
73. At the hearing on 8 June 1999 the applicant requested his release. He stated that in his cell, where there were 18 inmates, he could not prepare himself adequately to testify before the trial court. He further submitted that he had contracted scabies twice and that his bed sheets were not changed. The applicant's request was rejected.
74. At the hearing on 16 June 1999 the applicant filed another request for release, referring to the conditions of his detention. He submitted that he had a fungal infection and that his body was covered with sores caused by bites from bugs infesting his bed. He was sharing his bed with two other inmates. Inmates could shower once every two weeks. The atmosphere in the cell was stifling as everybody smoked. He was feeling unwell and suffering from a heart condition. His weight had dropped from 96 kg to 67 kg. He further submitted that he could not obstruct the examination of his case if released.
The City Court decided not to examine the request because it was apparently made outside the context of the hearing.
75. On 22 June 1999 the High Qualification Board of Judges removed the president of the Magadan City Court from office, as well as the president of the Regional Court and his two deputies, due to the delay in examining the applicant's case.
76. At the hearing before the City Court on 23 June 1999, the applicant stated that he was feeling unwell and that he could not participate. The court ordered a medical examination of the applicant by a commission of experts in order to determine whether his state of health allowed him to take part in the proceedings and whether he should be hospitalised.
In their conclusions issued on an unspecified date in July 1999, the experts found that the applicant was suffering from a number of medical conditions (see paragraph 30 above). They considered that the treatment of these conditions did not require hospitalisation and that the applicant could remain in the detention facility. They also considered that the applicant's state of health allowed him to attend the court hearings and to give testimony.
77. At the hearing on 15 July 1999, the applicant requested the trial court to release him from custody. He stated that the court had nearly concluded the examination of the evidence and that he could not obstruct the establishment of the truth. His request was refused.
78. In another ruling issued on the same day, the City Court noted that, in the period from 15 April until 15 July 1999, it had examined more than 30 applications submitted by the applicant, including repetitive applications on previously rejected motions. It noted that the applicant had stated that he would testify only if his applications were granted and considered that such a position amounted to a deliberate attempt to delay the proceedings.
79. The City Court heard 9 of the 29 witnesses who were to be summoned before it. The testimonies of 12 absent witnesses, which had been given during the pre-trial investigation, were read out in open court.
80. By a judgment of 3 August 1999, the City Court found the applicant guilty on one count and acquitted him on two of the counts contained in the indictment, which had preferred 9 separate charges. It sentenced him to 5 years and 6 months' imprisonment in a correctional colony with a general regime, his term running from 29 June 1995. The City Court considered that the preliminary investigation had been of poor quality and that the investigators had unjustifiably attempted to increase the number of counts in the indictment. It also found an infringement of procedural norms consisting, inter alia, of shortcomings in the presentation in due form of the relevant documents to the court. These shortcomings had had to be corrected at the trial, which had caused a delay. The court noted that, in the course of the investigation, there had been a lack of proper procedural supervision by those in charge of the investigation and the prosecutor's office of the Magadan Region.
In a separate ruling on the same day, the City Court decided to send part of the indictment back to the prosecutor for an additional investigation. The applicant appealed against the ruling to the Supreme Court, which on 30 September 1999 found the decision lawful.
81. The City Court judgment of 3 August 1999 was open to appeal to the Regional Court within 7 days of its pronouncement. The applicant did not file an appeal in cassation as he considered that the Regional Court had contributed to his conviction and thus that an appeal had no prospects of success. On 11 August 1999 the judgment of the City Court entered into force.
82. On 11 August 1999 the applicant submitted to the director of the detention facility where he was being held a request to transfer him to the logistical services team in the same facility to serve his sentence.
83. On 25 October 1999 the applicant lodged an extraordinary appeal with the President of the Supreme Court of Russia for a review of the City Court judgment. On 11 November 1999 the appeal was dismissed.
On 30 November 1999 the applicant filed another extraordinary appeal with the Supreme Court, which rejected it on 9 June 2000.
84. On 24 September 1999, in the continuing criminal proceedings, the preventive custody measure was replaced by a ban on leaving a specified place. However, he remained in custody, serving his original sentence.
85. On 29 September 1999 the proceedings concerning the remainder of the charges were terminated on the ground that the acts committed by the applicant did not constitute a criminal offence.
On 30 September 1999, however, a new charge relating to the misappropriation of property in his capacity as the bank's president was brought against the applicant.
86. On 19 October 1999, upon completion of the preliminary investigation, the competent prosecutor approved the bill of indictment and sent the case to the Magadan City Court for trial. The bill of indictment bore the original case no. 48529 and stated that the proceedings in that case had been initiated on 8 February 1995. The applicant's trial started on 20 December 1999. By a judgment of 31 March 2000 the City Court acquitted the applicant of the new charge.
87. On 26 June 2000 the applicant was released from prison following an amnesty declared on 26 May 2000.
“Until criminal-procedural legislation of the Russian Federation has been brought into line with the provisions of this Constitution, the previous procedure for the arrest, detention and keeping in custody of persons suspected of committing a crime shall apply.”
“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.”
“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor and the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.”
Article 92 : Order and decision on the application of a preventive measure
“On the application of a preventive measure a person conducting an inquiry, an investigator and a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained.
A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.”
“Placement in custody as a preventive measure shall be done in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.”
“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension of up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a constituent part of the Russian Federation ...
An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months).
No further extension of the time-limit shall be permissible, and the accused held in custody shall be releasable immediately.
The documents of a completed investigation in a criminal case shall be produced for consultation by the accused and his defence counsel not later than one month before the expiry of the maximum time-limit for remand in custody, as prescribed in the second paragraph of the present Article. In the event of the accused being unable to consult the case documents before the expiry of the maximum time-limit for remand in custody, the Prosecutor General of the Russian Federation, [or] a prosecutor of a constituent part of the Russian Federation ... may, not later than five days before the expiry of the maximum time-limit for remand in custody, apply to the judge of the “oblast”, “krai” or comparable court for an extension of this time-limit.
Not later than five days from the day of receipt of the application, the judge must take one of the following decisions:
1. to extend the time-limit for remand in custody until the accused and his counsel have consulted the case documents and the case has been referred to the trial court by the prosecutor but, anyway, for not more than six months;
2. to reject the prosecutor's application and to release the person concerned from custody.
Under the same procedure, the time-limit for remand in custody may be extended, if necessary, to accede to a request by the accused or his counsel to pursue the preliminary investigation further.
An extension of the time-limit for remand in custody in accordance with the present Article is subject to appeal to a court and to judicial review of its legality and justification under the procedure provided for in Articles 220¹ and 220² of the present Code.”
Article 101: Cancellation or modification of a preventive measure
The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor's instructions shall be permissible only with the prosecutor's approval.”
“If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days from the seizure of the court.”
“The examination of a case before the court must start no later than 14 days from the fixing of a hearing date.”
According to Article 21 of this Law, applications and complaints of suspects and accused persons to State agencies, bodies of local self-government and non-governmental organisations are sent through the administration of the detention facility.
Applications and complaints addressed to a public prosecutor, a court or other State agencies supervising detention facilities for suspects and accused persons are not subject to censorship and will be forwarded to the addressee in a sealed envelope no later than the next working day.
91. The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contains the following reservation:
“In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 961, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions.”
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-57575
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF SCHÖNENBERGER AND DURMAZ v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No separate issue under Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 7. The first applicant, Edmund Schönenberger, who is a Swiss citizen born in 1942, practises as a Rechtsanwalt (lawyer) in Zürich.
The second applicant, Mehmet Durmaz, who is a Turkish national born in 1950, lives at Onex, in Switzerland. He is a taxi-driver.
8. On 16 February 1984, acting on a statement by one O, the district prosecutor (Bezirksanwalt) for Pfäffikon (Canton of Zürich) issued a warrant for Mr. Durmaz’s arrest, in connection with suspected offences under federal legislation relating to the misuse of drugs.
The applicant was arrested on the same day by the Geneva police and taken to Zürich the following day, where he was questioned for the first time by officials from the prosecutor’s office. He was further questioned and also confronted with other suspects on 23 and 24 February, and on each occasion he cooperated by answering all the questions put to him.
9. Mr. Durmaz’s wife, who had been informed of the arrest on 16 February, spoke on the telephone to the Pfäffikon district prosecutor on 20 and 24 February. On these occasions she asked him whether her husband had a lawyer. He replied that he had not but added that he would take care of it. She also wrote to her husband on 21 and 24 February. In the second letter, which reached him on 28 February, she expressed the hope that the "lawyer" - whose name she did not mention - "would look after [him]". On 24 February, she asked Mr. Schönenberger to take charge of Mr. Durmaz’s defence.
The first applicant immediately called the district prosecutor to advise him and to say that he would be sending authorisation forms and a letter. Also, on 24 February, he sent a letter and enclosure to the district prosecutor’s office, as required by the relevant legislation, requesting the district prosecutor to forward them to the addressee.
The enclosure comprised a copy of the covering letter to the district prosecutor, two forms giving authority to act and a letter to Mr. Durmaz, which read as follows (translation from the German):
"Sir,
I am instructed by your wife to undertake your defence. You will find enclosed two forms giving me authority to act for you. If you wish to authorise me to represent you, please send one of the forms to the district prosecutor and return the other one to me (duly signed).
It is my duty to point out to you that you are entitled to refuse to make any statement. Anything you say may be used in evidence against you. If you choose to remain silent, the district prosecutor will have to prove your guilt by other means (witnesses, etc.). He will usually then try to influence you by arguing that in that case you will remain in custody on remand until such time as he has questioned witnesses, other suspects, etc. If this does not worry you (i.e. a possible prolongation of your detention on remand), it will be to your advantage to exercise your right not to make any statement.
Once I have received your authority to act, I shall apply for permission to visit you and will come and see you. At all events, be patient: you will have to be released at some stage!
Yours faithfully ..."
10. The district prosecutor probably received the letter and enclosure for Mr. Durmaz on Monday 27 February, but kept them from him without telling him that he had received them. On the same day, he asked Mr. Durmaz to choose a lawyer. Mr. Durmaz, being unable to pay for one, applied for the only Zürich lawyer he knew, Mr. Garbade, to be assigned officially to him; the presiding judge of the Pfäffikon District Court duly appointed Mr. Garbade on 1 March.
11. In an order made on 1 March, the prosecutor’s office decided not to communicate to Mr. Durmaz the letter and forms which were intended for him. It did so on the following ground (translation from the German):
"As long as Edmund Schönenberger is not the suspect’s authorised legal representative, the general provisions of the Prisons Ordinance [see paragraph 18 below] apply to him. Section 53(3) prohibits the forwarding of letters concerning the preparation of a case for trial. In the present letter, Edmund Schönenberger has recommended to the suspect a particular course of conduct for the preparation of the case. In virtue of the aforementioned provision, his letter will therefore not be forwarded."
The prosecutor’s office returned to Mr. Schönenberger the said documents together with the copy of the covering letter.
12. On various dates between 5 and 23 March 1984, Mr. Durmaz was again questioned and confronted with other suspects. He also received visits from Mr. Garbade. On 8 March, Mr. Garbade had asked the presiding judge of the District Court to offer Mr. Durmaz the possibility of choosing between Mr. Schönenberger and himself as his defence lawyer. The two lawyers had a conversation on 9 March, as a result of which they agreed that Mr. Garbade would continue to assist Mr. Durmaz and that Mr. Schönenberger would challenge the order made on 1 March (see paragraphs 14 to 16 below).
13. Mr. Durmaz was freed on 23 March 1984. On 29 May 1985 the Zürich district prosecutor ordered that he had no case to answer as it could not be excluded beyond all possible doubt that someone else had been mistaken for him. In respect of his detention on remand, the prosecutor awarded him 3,000 Swiss francs (CHF) which the Zürich District Court increased to 3,565 CHF on 30 October 1985.
14. The applicants lodged two appeals against the order of 1 March 1984 (see paragraph 11 above); the first of these was rejected by the Department of Justice of the Canton of Zürich on 19 March 1984, and the second was dismissed by the presiding judge of the Pfäffikon District Court on 11 April 1984.
15. On 7 April 1984, they lodged a public-law appeal with the Federal Court against the decision of the Department of Justice; they alleged an infringement of the federal Constitution and of the Convention. During the proceedings they stated that they did not propose to challenge the dismissal of their second appeal.
16. In a judgment on 20 June, which was notified on 6 November 1984, the Federal Court allowed the appeal in part.
It noted in the first place that Mr. Schönenberger could not rely on the privileges conferred on prisoners’ defence lawyers under section 53(3) of the Prisons Ordinance. The Federal Court added that the prosecutor’s office had not infringed either the Constitution or the Convention by intercepting Mr. Schönenberger’s letter to Mr. Durmaz, since it related to pending criminal proceedings and gave the addressee advice on the behaviour to adopt during the investigation.
On the other hand, the Federal Court held that the decision to withhold the two authorisation forms and the copy of the covering letter to the prosecutor’s office was contrary to the Constitution: since these documents did not relate to pending criminal proceedings, section 53(3) could not be relied on in respect of them. The Federal Court also pointed out that a person who has been charged with a criminal offence is at all times entitled to ask for a lawyer and to receive a form for giving authority to act. It concluded that the disputed measure was a disproportionate restriction on freedom of correspondence and on the rights of the defence. It consequently set aside the Department of Justice’s decision and awarded the applicants costs of 500 CHF.
17. According to the general principles of criminal procedure, a suspect is under no obligation to make any statements. The Federal Court has held that, under the Constitution, he has the right to remain silent and that he cannot normally be held to have culpably obstructed the proceedings on the sole ground that he has refused to reply to questions, unless there has been some abuse of the right (Judgments of the Swiss Federal Court, vol. 106 (1980), part I a), p. 8, and vol. 109 (1983), part I a), p. 169).
18. In the Canton of Zürich, the monitoring of correspondence with persons in custody is governed by section 53 of the District Prisons Ordinance of 19 April 1972 (Verordnung des Kantons Zürich vom 19. April 1972 über die Bezirksgefängnisse), which was made under section 73 of the law of 6 July 1941 by which the Swiss Criminal Code was enacted.
Section 53(3) reads as follows (translation from German):
"No correspondence with co-prisoners and former co-prisoners (except for close relatives) shall be allowed. Letters jeopardising the purpose of detention or prison security shall not be forwarded; letters relating to pending criminal proceedings shall be forwarded only if they form part of correspondence with a defence lawyer. A prisoner shall be informed if a letter is not forwarded."
19. In 1973, the Federal Court considered the constitutionality of various provisions of the Zürich Ordinance of 1972. As regards the restrictions on freedom of correspondence, it noted the following (translation from German):
"Section 53 lays down in particular that letters ‘whose content is improper’ or which relate to pending criminal proceedings shall not be forwarded. Correspondence with co-prisoners or former co-prisoners is likewise prohibited. On the other hand, communications addressed to supervising authorities or to a defence lawyer are not subject to any restrictions.
The applicant alleges that prohibiting communications ‘whose content is improper’ goes much too far and leaves too great a discretion to the officials responsible for monitoring correspondence. In his submission, the prohibition should apply only to communications whose content is ‘illicit’. This change of wording would make no appreciable difference, since the second concept is likewise very imprecise in the present context. The applicant does not dispute the need to prohibit the dispatch of letters with a particular type of content, and that is the very purpose of the monitoring. It is clear, therefore, that any correspondence which might assist in the preparation of escape plans or the commission of fresh criminal offences, or which could have an impermissible influence on criminal proceedings (danger of collusion) must be prohibited. Even assuming that it is in principle desirable to maintain contacts with the outside world, these contacts must not compromise the purpose of detention. Moreover, the supervising authorities must also be given the right to hold back any communications which might jeopardise order in the prison. Conversely, the authorities cannot refuse to forward communications which do not jeopardise either the purpose of detention or order in the prison and which are permissible in their quantity (s. 52). It is accordingly of little consequence whether or not the supervising authority approves the content of such communications (cf., on the legal situation in Germany, the Federal Constitutional Court’s decision of 14 March 1972, vol. 33, no. 1). It is not possible to make an accurate general statement of where the line should be drawn, since it depends on the particular circumstances of each case. The general principle laid down in the disputed ordinance accordingly cannot be criticised as being unconstitutional, at least not if regard is had to the fact that correspondence with the supervising authorities and defence lawyers is not subject to any marked degree of control." (Judgments of the Swiss Federal Court, vol. 99, part I a), pp. 288-289)
VIOLATED_ARTICLES: 8


ITEMID: 001-99389
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOKAVECZ v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. The applicant was born in 1959 and lives in Békéscsaba.
5. The applicant's previous application (no. 27312/95) was declared inadmissible by a Chamber on 20 April 1999. The subject matter of that case was the prosecution of the applicant, in the course of which he was arrested on a charge of incitement to murder on 21 March 1994. On 29 February 1996 the Békés County Regional Court acquitted him of this charge but convicted him of an abuse of firearms. On 29 January 1997 the Supreme Court re-qualified his offence as an abuse of ammunition and reduced his sentence. On 9 December 2002 the Supreme Court's review bench acquitted the applicant of the latter charge. Meanwhile, on 29 January 1999 the Regional Court had ordered the applicant's retrial and found him guilty of incitement to murder. On 11 January 2000 the Supreme Court's appeal bench quashed this decision and remitted the case. In the resumed proceedings, on 22 April 2002 the Pest County Regional Court held that there was no reason to retry the applicant and upheld his earlier acquittal.
6. Meanwhile, on 29 July 1997 the applicant brought a civil action in compensation against the State for unjustified detention and a miscarriage of justice. The Békés County Regional Court suspended the case in 1998 pending the final outcome of the criminal case outlined in the preceding paragraph. After the Supreme Court's decision of 9 December 2002, the Regional Court resumed the proceedings in February 2003 and gave judgment on 19 October 2004. On appeal, on 22 April 2005 the Szeged Court of Appeal reversed this decision, increased the compensation payable to the applicant to 15,190,000 Hungarian forints (HUF) plus accrued interest, and reduced the procedural fees payable by him. On 1 September 2005 the Supreme Court dismissed his petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59992
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF R.D. v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. On 16 September 1994 the Wałbrzych District Prosecutor (Prokurator Rejonowy) charged the applicant with receiving a bribe and detained him on remand in view of the reasonable suspicion that he had committed the offence in question. On the same day the prosecutor confronted the applicant with his co-suspect who had offered him a bribe, and ordered a search of the applicant’s home. On 28 September 1994, on an appeal filed by the applicant, the Wałbrzych Regional Court (Sąd Wojewódzki) quashed the detention order and released him under police supervision.
10. On 10 February 1995 the Wałbrzych District Prosecutor lodged a bill of indictment with the Wałbrzych Regional Court. The indictment comprised twelve counts charging seven co-defendants. Two of the applicant’s co-defendants were indicted on charges of an attempt to traffic in women.
11. Subsequently, on an unknown date, the Wałbrzych Regional Court appointed a defence counsel for the applicant.
12. The trial ended on 15 April 1996. The applicant was convicted as charged and sentenced to one year’s imprisonment suspended for two years and a fine. The Regional Court exempted the applicant from paying the costs of the proceedings and court fees at first instance. It ordered the State Treasury (Skarb Państwa) to cover the legal fees involved in his defence by the officially-appointed lawyer.
13. On 24 June 1996 the applicant’s lawyer filed an appeal with the Wrocław Court of Appeal (Sąd Apelacyjny). The Regional Prosecutor lodged his appeal at about the same time. The applicant filed a memorandum and produced documents in support of his arguments on 27 September 1996.
14. Later, the Wrocław Court of Appeal appointed a new defence counsel to assist the applicant in the appellate proceedings.
15. On 10 October 1996 the Wrocław Court of Appeal heard the appeals. Both the applicant and his officially-appointed lawyer were present. The applicant asked the court to read out all the records of evidence heard from him during the first instance proceedings. The court declined to do so, pointing out that the appellate hearing was limited to the questions of fact and law which had been put forward by the parties in their appeals and oral pleadings. It found it unnecessary to read the voluminous records of the oral evidence taken from the applicant.
16. On the same day the Court of Appeal upheld the first-instance judgment. It levied on the applicant a court fee of 65.00 Polish zlotys [approx. 130 FRF] for examining his appeal and ordered him to pay 50.96 Polish zlotys [approx. 100 FRF] as the costs of the appellate proceedings. The court ordered that the costs involved in the applicant’s defence in the appeal proceedings be borne by the State Treasury.
17. On 12 October 1996 the applicant lodged a notice of cassation appeal with the Wrocław Court of Appeal and asked it to serve on him the written reasons for its judgment. He also asked the Court of Appeal to appoint a new lawyer to assist him in the preparation of his cassation appeal. The relevant part of the application read:
“The appeal proceedings were of a fictitious nature ... [which was shown] by the time foreseen by the Court of Appeal for dealing with [my] appeal. [That] court foresaw only 15 minutes ... The appellate hearing was to start at 9.00 a.m. and the next case was to be heard at 9.15 a.m. ... In addition, as I learnt on 11 October this year, the Court of Appeal had replaced my previous defence counsel by someone else ... who – probably – did not know the case. ...
Article 464 § 2 of the Code of Criminal Procedure stipulates that a cassation appeal must be filed and signed by an advocate. Since the Court of Appeal deprived me of my [previous] officially-appointed lawyer, it should appoint another counsel for me. I therefore ask the court to appoint me such a lawyer and order him to file a cassation appeal on my behalf, in particular on the grounds mentioned in my pleading of 14 June 1996 and on other grounds – such as breaches of the law committed by the Court of Appeal – which I will later specify in my own separate cassation appeal. ...”
18. On 9 December 1996 the written reasons for the judgment of the Wrocław Court of Appeal were served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run (see also paragraph 32 below).
19. On 23 December 1996 the Court of Appeal dismissed the applicant’s request for free legal assistance in cassation proceedings. The court considered that the applicant had failed to prove that he could not afford such assistance. The relevant decision read:
“In his application, received at the Court of Appeal’s registry on 15 October 1996, the applicant asked this Court to appoint a lawyer to assist him in filing a cassation appeal against the judgment of the Wrocław Court of Appeal of 10 October 1996.
The circumstances on which the applicant relies cannot be considered as a basis for a finding that his family and financial situation, and his income, make it impossible for him to pay costs involved in appointing a lawyer of his own choice in order to have a cassation appeal filed. That [view] is based on the post previously held by the applicant and the income that he received from his employment.
Instruction: this decision – refusing an application for appointing a lawyer to assist in filing a cassation appeal – cannot be appealed against.”
That decision was served on the applicant on 31 December 1996.
The time-limit for lodging a cassation appeal expired on 9 January 1997.
20. In the meantime, on 3 January 1997, despite the court’s instruction to the contrary, the applicant had appealed to the Supreme Court (Sąd Najwyższy) against the refusal to grant him legal assistance. He lodged the appeal through the Wrocław Court of Appeal.
21. By an order made on 15 January 1997, the President of the Court of Appeal refused to proceed with the appeal because it was inadmissible in law. The applicant appealed to the Supreme Court, which, on 28 February 1997, upheld the contested order.
22. At the relevant time provisions of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) (“the Code”) applied to proceedings before criminal courts. The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
23. Under Article 69 of the Code, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) might ask the trial court to appoint him a defence counsel.
24. Article 71 of the Code laid down the principle known as “compulsory assistance of an advocate” (przymus adwokacki). That Article provided, in so far as relevant:
“An accused must have a defence counsel [of his own choice or officially appointed] when a regional court is competent to deal with his case as a court of first instance. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.”
25. Under Article 75 § 1 of the Code, the official appointment of a lawyer was valid as long as the proceedings lasted and, subject to explicit exceptions, an officially-appointed lawyer was also obliged to act on behalf of his client after the judgment became final. However, according to domestic practice which started after 1 January 1996 (the date on which a new cassation appeals procedure was introduced into the system of criminal justice), a lawyer had again to be officially appointed in cassation proceedings.
26. The conditions for exempting an accused from paying costs and fees involved in criminal proceedings, as well as from paying fees due for legal assistance, were laid down in Article 556 of the Code. That provision, in its relevant part, read:
“The court may – either in full or in part – exempt an accused or [private or auxiliary] prosecutor (oskarżyciel prywatny lub posiłkowy) from [an obligation] to pay back to the State Treasury costs of proceedings or to pay ... fees due for legal representation by an officially-appointed lawyer if there are grounds to consider that, given the family and financial situation and the income of the person concerned, the payment thereof would entail a disproportionate burden on him.”
27. Legal fees of advocates were set out in the Ordinance of the Minister of Justice of 4 June 1992 on Legal fees in proceedings before judicial authorities (Rozporządzenie Ministra Sprawiedliwości w sprawie opłat za czynności adwokackie w postępowaniu przed organami wymiaru sprawiedliwości). That ordinance was subsequently repealed; under a new ordinance, only minimum legal fees are stipulated and costs of legal representation are in principle determined freely in a contract between an advocate and a client.
28. Paragraph 20 (1) of the 1992 Ordinance determined legal fees for defence in a criminal case before a regional court, a court of appeal and the Supreme Court at from 200 to 600 Polish zlotys (PLN) for each instance. Legal fees for the preparation of a cassation appeal were determined at from 50 to 300 PLN (paragraph 20 (1)).
29. Regardless of whether a person was represented by a court-appointed lawyer or by a lawyer of his own choice, legal fees involved in his defence were estimated under the rules set out in the 1992 Ordinance.
30. As from 1 January 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, a party to criminal proceedings might lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings.
31. Article 463a § 1 of the Code provided, in so far as relevant:
“A cassation appeal may be lodged only on the grounds referred to in Article 388 [these included a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of such a breach. No cassation appeal may be directed against the severity of the penalty imposed (niewspółmierności kary).”
32. Article 464 of the Code stipulated:
“1. Parties to criminal proceedings shall be entitled to lodge a cassation appeal.
2. A cassation appeal, which has been lodged by a party other than a prosecutor, shall be filed and signed by an advocate.
3. Notice of a cassation appeal must be lodged with the court that has given the [relevant] decision within seven days from the date on which such decision was pronounced. The appeal itself must be lodged within thirty days from the date on which the decision, together with the reasons therefor, was served on the party concerned.”
Paragraph 2 of Article 464 was later incorporated into Article 526 § 2 of the New Code of Criminal Procedure, which in similar terms lays down the principle of “compulsory assistance of an advocate” in cassation proceedings.
33. Article 467 § 2 of the Code provided that the court which had given the decision appealed against was competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal was not filed and signed by an advocate, it had to be rejected on formal grounds. If such an appeal complied with the formal requirements, the case was referred to the Supreme Court.
Pursuant to paragraphs 3 and 4 of Article 467 of the Code, a single judge or, if the President of the Supreme Court so ordered, a panel of three judges sitting as the Supreme Court, decided on the admissibility of a cassation appeal. If the Supreme Court found that the appeal was inadmissible, it made a decision “not taking cognisance of the merits of the appeal” (postanowienie o pozostawieniu kasacji bez rozpoznania).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-5592
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DROSOPOULOS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Baka
TEXT: The applicant is a Greek national, born in 1938 and living in Athens. He is represented before the Court by Mr Th. Zigras, a lawyer practising in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1972 the applicant was appointed a public notary in Athens. He specialised in contracts for the sale of cars.
In 1995 disciplinary proceedings were instituted against the applicant for not having paid to the notaries' association (simvoleografikos sillogos) of Athens, Piraeus, the Aegean and the Dodecanese 30% of the fees he had received from contracts for the sale of cars and motorbikes between 10 March 1993 and 5 May 1994. According to the disciplinary charges the applicant had acted contrary to Article 102 § 4 of Law 670/1977.
The applicant appeared before the five-member Disciplinary Tribunal constituted within the Court of Appeal (Pendameles Pitharhiko Dikastirio tou Efetiou) of Athens on 14 December 1995. He argued, inter alia, that the obligation to pay 30% of his fees to the association amounted to a confiscation.
In a decision issued on the same date the disciplinary tribunal found that the obligation in question constituted a legitimate restriction of professional liberty. It also found that the applicant had indeed failed to pay to the notaries' association 30% of the fees (which amounted to 32 163 511 drachmas) he had received in connection with the sale of cars and motorbikes during the period in question. As a result, the tribunal decided, by majority, to strike the applicant out of the roll of the association.
On 2 February 1996 the applicant, who could not any longer practise as a public notary, appealed on points of law. On 9 May 1997 the Court of Cassation (Arios Pagos) rejected his appeal. The Court of Cassation considered that the limitation on professional freedom introduced by Article 102 § 4 of Law 670/1977 was justified in the public interest since its aim was to introduce a measure of fairness in the distribution of the earnings from the particular category of sales among the public notaries. It also considered that all public notaries were treated equally since they were subject to the same obligation. The applicant obtained a copy of the relevant decision on 27 June 1997.
In 1990 and 1993, the Public Prosecutor of the First Instance Court of Athens had instituted proceedings against the applicant for the same offence, namely his refusal to pay different sums for the periods between 11 November 1986 and 1st September 1988, 2 September 1988 and 3 September 1989 and 4 September 1989 and 9 March 1993. The five-members Disciplinary Tribunal had suspended his right to practise for a period of forty days.
Article 102 § 4 of Law 670/1977 reads as follows:
“In case of preliminary or final contracts for the transfer of the property of cars or motorcycles, the public notary is obliged to deposit to the notaries' association or the authorised public notary, for allocation between all public notaries with registered offices in the regions stated in paragraphs 1 and 3 of Article 98 ... 30% of his fees.”
According to the established case-law of the courts, the above-mentioned provision does not impose on the public notaries different obligations for the drawing up of the same kind of contracts. It simply restricts the rights of all public notaries for the drawing up of a certain category of contracts. Moreover, that provision does not obstruct the free economic activity and free choice or practice of the profession of public notary, nor does it restrict their financial liberty. The obligation to pay 30% of the gross earnings is justified by the aim pursued by that provision, namely to avoid that all contracts are drawn up by a small number of privileged public notaries who may have a great number of acquaintances (Judgment of the Supreme Court 384/1979, Nomiko Vima no 27, p. 1439).
It transpires from Articles 95 §§ 1 and 2, 99 and 101 of Law 670/1977 that public notaries are always entitled to a fee when they draw up contracts, with the exception of deeds in which the contracting parties are the State, co-operatives and public law corporations. In such cases, the public notary is obliged to reimburse the collected fees within ten days to the notaries' association which distribute them among its members in accordance with Article 101. That provision, which applies specifically to “state” contracts aims at preventing certain public notaries from taking advantage of their acquaintances and influence and thus monopolising the drawing up of contracts involving high amounts of money.


ITEMID: 001-114167
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LAWYER PARTNERS a.s. v. SLOVAKIA AND OTHER APPLICATIONS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Lawyer Partners a.s., is a private limited company with its registered office in Bratislava. It was represented before the Court by Mr J. Fridrich, a lawyer practising in Bratislava. Further details concerning the present twenty-four applications lodged by the applicant company are set out in the appendix.
The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
2. The facts of the cases, as submitted by the parties, may be summarised as follows.
3. On 15 July 2005 the applicant company concluded a contract with Slovak Radio, a public-law institution. Under that contract, taken together with two additional ones concluded on 20 September 2005 and 27 January 2006, the applicant company acquired the right, in exchange for compensation to Slovak Radio, to recover unpaid broadcast receiver licences in 355,917 cases, plus additional sums for default on those payments.
4. The applicant company sued the individuals and legal persons who had refused to pay the debt which it had acquired the right to recover. The applicant company prepared individual actions, with a request for payment notices to be issued against the debtors. Given the number of defendants concerned, the actions were generated by computer software and recorded on Digital Versatile Discs (DVD). In the course of 2006 the DVDs were sent to the district courts concerned, accompanied by an explanatory letter.
5. The courts refused to register the actions, indicating that they lacked the equipment to receive and process submissions made and signed electronically.
6. In view of the differing practice of the Constitutional Court in respect of the applicant’s ensuing complaints, the Court found, on 16 June 2009, a breach of the applicant’s right of access to court in respect of cases where the applicant had been unable to obtain redress at the domestic level (see Lawyer Partners a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, ECHR 2009).
7. Subsequently the applicant company brought proceedings against the State, in which it claimed compensation for damage resulting from the failure to register the actions submitted electronically. In a submission of 16 April 2012 the applicant company stated that the courts dealing with the claims for damages had asked it to pay prohibitively high deposits in respect of costs and expenses, in accordance with an amendment to the Code of Civil Procedure enacted which took effect on 1 January 2012.
8. In the present cases the applicant lodged 58,763 actions with twentyone different district courts in March, July and October 2006. The actions concerned unpaid broadcast receiver licences and they were signed electronically and filed on DVDs. The district courts concerned were unable to register and proceed with the actions as they lacked the necessary equipment. The applicant sought redress before the Constitutional Court.
9. The Constitutional Court delivered twenty-four judgments in which it found that the district courts concerned had breached the applicant’s right of access to court as guaranteed by Article 6 § 1 of the Convention, in that they had refused to register its actions. It ordered the courts involved (with the exception of the Brezno District Court, which had expressed its readiness to do so in the meantime) to proceed with such actions in accordance with the relevant provisions of the Code of Civil Procedure. The judgments explicitly stated that the actions of the applicant should have legal effect from the time they were first submitted to the courts concerned, regardless of any technical impediments preventing that date from being automatically generated within the electronic registration system.
10. The Constitutional Court further ordered the district courts involved to reimburse the applicant company’s costs in eighteen of the twenty-four judgments. In the remaining six judgments the Constitutional Court found that it had already ruled in a number of cases lodged by the applicant that the courts had a duty to process submissions made electronically. That fact had to be taken into account when deciding on the applicant’s claim for costs.
11. The Constitutional Court held that the above findings sufficiently redressed the situation complained of. With reference to the Court’s practice under Article 41 of the Convention it therefore dismissed the applicant’s claims for just satisfaction, which amounted to 332 euros (EUR) in respect of each individual action registered on the DVDs. Further details concerning the actions and the Constitutional Court’s judgments are set out in the appendix.
12. In the period subsequent to the Constitutional Court’s judgments in the present cases, the ordinary courts proceeded or attempted to proceed with the applicant’s cases as follows.
13. In proceedings before the Prievidza District Court the applicant company first indicated that it would provide a reserve copy of the DVDs. That proposal was accepted by the District Court. In a letter of 23 September 2009 the applicant informed the court that it would not submit the DVDs as they had been submitted to the Court in the context of its application. The applicant sent the same reply to ten other district courts which had asked it to submit the DVDs with its claims. As a result, those courts have not proceeded with the cases.
14. In the other cases the district courts concerned registered the actions while considering them as having been lodged on the corresponding dates in 2006. They did so on the basis of the DVDs which they had obtained either from the applicant or the Constitutional Court, or by processing their own copy of the applicant’s original submission in electronic form. Several courts determined the merits of the applicant’s claims. Five other district courts abandoned proceedings as the applicant had not paid the court fees.
15. Article 127 provides:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating 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 existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.
4. The Constitutional Court’s decision does not affect the liability for damage or other harm of those who have breached a person’s rights or freedoms set out in paragraph 1.”
16. Section 56(3) provides that, when a violation of fundamental rights or freedoms is found, the Constitutional Court may order the authority liable for such a violation to proceed in accordance with the relevant rules. It may also return the case to the authority concerned for further proceedings, prohibit the continuation of the violation or, as the case may be, order the restoration of the situation existing prior to the violation.
17. Under section 56(4), the Constitutional Court may grant adequate financial satisfaction to a person whose rights or freedoms were breached.
18. Pursuant to section 56 (6), when the Constitutional Court quashes a decision, interference or other measures and returns the case to the authority concerned, the latter is obliged to re-examine the case and decide on it. The legal opinion expressed by the Constitutional Court is thereby binding on that authority.
19. Under the Act the State bears liability for damage caused by public authorities, inter alia by wrongful official actions (section 3(1)(d)).
20. Liability for damage caused by wrongful official action comprises, inter alia, a public authority’s failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal persons (section 9(1)).
21. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, nonpecuniary damage.