ITEMID: 001-87636
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ORŠUŠ AND OTHERS v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;No violation of P1-2;No violation of Art. 14+P1-2;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants were born between 1988 and 1994 and live respectively in Orehovica, Podturen and Trnovec. Their names and details are set out in the Annex.
5. As schoolchildren the applicants at times attended separate classes, with only Roma pupils, in primary schools in the villages of Macinec, Podturen and Orehovica. The total number of pupils in the Macinec Elementary School in 2001 was 445, 194 of whom were Roma. There were six Roma-only classes, with 142 pupils in all, while the remaining fifty-two Roma pupils attended regular (mixed) classes. The total number of pupils in the Podturen Elementary School in 2001 was 463, 47 of whom were Roma. There was one Roma-only class, with seventeen pupils, while the remaining thirty Roma pupils attended regular (mixed) classes. The total number of pupils in the Orehovica Elementary School in 2001 was 340 and 90 of them were Roma. There were two Roma-only classes, with forty-one pupils, while the remaining forty-nine Roma pupils attended regular (mixed) classes. In Croatia children are obliged to attend school until they reach the age of fifteen.
6. The Government submitted the following information in respect of the individual applicants:
The second applicant, Mirjana Oršuš, was enrolled in the first grade of elementary school in the school year 1997/98. She attended a regular class that year and the following year but in those two years she failed to go up a grade. In school years 1999/2000, 2000/2001, 2001/2002 and 2003/2004 she attended a Roma-only class. In school year 2004/2005 she passed fifth grade. In school year 2004/2005 she attended a regular (mixed) class. She was provided with additional classes of Croatian and also participated in extra-curricular activities in a mixed group organised by the school. After reaching the age of fifteen, she left school in August 2006. Her school report shows that she missed 111 classes without justification.
7. The third applicant, Gordan Oršuš, was enrolled in the first grade of elementary school in the school year 1996/1997 and passed first grade. That and the following year he attended a Roma-only class. In school year 1998/1999 and 1999/2000 he attended a regular (mixed) class. He passed second grade in school year 2000/2001. That year and the following year he attended a Roma-only class. In school year 2002/2003 he attended a regular (mixed) class and passed fourth grade. He participated in extra-curricular activities in a mixed group organised by the school. After reaching the age of fifteen he left school in October 2001. His school report showed poor attendance in fourth grade.
8. The fourth applicant, Dejan Balog, was enrolled in the first grade of elementary school in the school year 1996/1997. The first and second year he attended a Roma-only class and the following two years a regular (mixed) class. In school years 2000/2001, 2001/2002 and 2002/2003 he attended a Roma-only class. The following year he attended a regular (mixed) class. In school year 2003/2004 he passed fourth grade. He participated in extra-curricular activities in a mixed group organised by the school. After reaching the age of fifteen, he left school in August 2006. His school report showed that he was reprimanded for poor attendance in fourth grade as he missed eighteen classes without justification.
9. The fifth applicant, Siniša Balog, was enrolled in the first grade of elementary school in 1999/2000 and passed first grade. In the school years 1999/2000 to 2002/2003 he attended a Roma-only class, after which he attended a regular (mixed) class. In the school year 2006/2007 he stayed in fifth grade for the third time. He participated in extra-curricular activities in a mixed group organised by the school. His school report showed that he was reprimanded for poor attendance in third grade, having missed seventy-nine classes without justification.
10. The sixth applicant, Manuela Kalanjoš, was enrolled in the first grade of elementary school in school year 1996/1997 and attended a Roma-only class. The following two years she attended a regular (mixed) class. In the school years 1999/2000 to 2002/2003 she attended a Roma-only class and passed fourth grade, after which she attended a regular (mixed) class. She was provided with additional classes of Croatian and also participated in extra-curricular activities in a mixed group organised by the school. After reaching the age of fifteen, she left school in August 2005. Her school report showed that she was reprimanded for poor attendance in third grade, where she missed fifteen classes without a good reason.
11. The seventh applicant, Josip Kalanjoš, was enrolled in the first grade of elementary school in 1999/2000 and attended a Roma-only class up to and including the school year 2002/2003, after which he attended a regular (mixed) class. On 22 May 2002 the Međimurje County State Administration Office ordered that he follow an adapted curriculum in his further schooling on the ground that a competent expert committee had established that he suffered from developmental difficulties. In the school year 2006/2007 he attended sixth grade. He was provided with additional classes of Croatian and also participated in extra-curricular activities in a mixed group organised by the school. His school report showed that he was reprimanded for poor attendance in third grade since he missed twenty-nine classes without justification. He was again reprimanded for poor attendance in fifth grade.
12. The eighth applicant, Biljana Oršuš, was enrolled in the first grade of elementary school in the school year 1996/1997 and in her first three school years attended a Roma-only class, after which she attended a regular (mixed) class for two years. On 28 December 2000 the Međimurje County State Administration Office ordered that she follow an adapted curriculum in her further schooling on the ground that a competent expert committee had established that she suffered from developmental difficulties. In school years 2001/2002 and 2002/2003 she attended a Roma-only class and in the following school year a regular (mixed) class and passed fourth grade. She was provided with additional classes of Croatian and also participated in extra-curricular activities in a mixed group organised by the school. After reaching the age of fifteen, she left school in August 2005. Her school report showed that she was reprimanded for poor attendance in third grade.
13. The ninth applicant, Smiljana Oršuš, was enrolled in the first grade of elementary school in school year 1997/1998 and attended a Roma-only class up to and including school year 2002/2003, after which she attended a mixed class. In 2006/2007 she took fifth grade for the third time. She too participated in extra-curricular activities in a mixed group organised by the school.
14. The tenth applicant, Branko Oršuš, was enrolled in the first grade of elementary school in the school year 1997/1998 and attended a mixed class for the first two years. From 1999/2000 to 2003/2004 he attended a Roma-only class, after which he attended a mixed class. In school year 2003/2004 he passed fourth grade. He was provided with additional classes of Croatian and also participated in the extra-curricular activities in a mixed group organised by the school. After reaching the age of fifteen, he left school in August 2006. His school report showed that he was reprimanded for poor attendance in third grade as he missed nineteen classes without a good reason. He was again reprimanded for poor attendance in fourth and fifth grades.
15. The eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of elementary school in the school year 1997/1998. The preliminary tests carried out before his assignment to a particular class showed that he had no knowledge of the Croatian language. He scored fifteen out of ninety-seven points, or 15.5 percent. He was therefore assigned to a Roma-only class, where he stayed until August 2005 when, after reaching the age of fifteen, he left school. In the school year 2002/2003 he passed fourth grade.
16. The twelfth applicant, Josip Bogdan, was enrolled in the first grade of elementary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he had no knowledge of the Croatian language. He scored eight out of ninety-seven points, or 8.25 percent. He was therefore assigned to a Roma-only class, where he stayed until August 2006 when, after reaching the age of fifteen, he left school. In school year 2004/2005 he passed second grade. He was provided with additional classes of Croatian.
17. The thirteenth applicant, Dijana Oršuš, was enrolled in the first grade of elementary school in the school year 2000/2001. The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the Croatian language. She scored twenty-six out of ninety-seven points, or 26.8 percent. She was therefore assigned to a Roma-only class, where she has stayed ever since. In the school year 2006/2007 she attended fourth grade. She was provided with additional classes of Croatian. Her school report showed that she was reprimanded for poor attendance in third grade.
18. The fourteenth applicant, Dejan Oršuš, was enrolled in the first grade of elementary school in school year 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he had no knowledge of the Croatian language. He scored fifteen out of ninety-seven points, or 15.5 percent. He was therefore assigned to a Roma-only class, where he stayed until 2006 when, after reaching the age of fifteen, he left school. In 2005/2006 he passed third grade. He was provided with additional classes of Croatian. His school report showed that he was reprimanded for poor attendance in third grade since he missed ninety classes without justification.
19. The fifteenth applicant, Danijela Kalanjoš, was enrolled in the first grade of elementary school in the school year 2000/2001. The preliminary tests carried out before her assignment to a particular class showed that her knowledge of the Croatian language was poor. She scored thirty-seven out of ninety-seven points, or 38.14 percent. She was therefore assigned to a Roma-only class, where she has stayed ever since. In the school year 2006/2007 she attended fourth grade. She was provided with additional classes of Croatian.
20. The second to fifteenth applicants submitted that they had been told that they had to leave school at the age of fifteen. Furthermore, the applicants submitted statistics showing that in the school year 2006/2007 sixteen percent of Roma children aged fifteen completed their elementary education, compared with ninety-one percent for the general elementary school population in the county. The drop-out rate of Roma pupils before completing elementary school was eighty-four percent, which was 9.3 times higher than for the general population. In school year 2005/2006 seventy-three Roma children were enrolled in first grade and five in eighth.
21. On 19 April 2002 the applicants brought an action under section 67 of the Administrative Disputes Act in the Čakovec Municipal Court (Općinski sud u Čakovcu) against the above-mentioned primary schools and the Kuršanec Primary School, the State and Međimurje County (“the defendants”). They submitted that the teaching organised in the Roma-only classes formed in those four schools was significantly reduced in volume and in scope compared to the officially prescribed curriculum. The applicants claimed that the described situation was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They requested the court to order the defendants to refrain from such conduct in the future.
22. The applicants also produced the results of a psychological study of Roma children attending Roma-only classes in Međimurje, carried out immediately before their action was lodged, showing the following:
- most children had never had a non-Roma child as a friend;
- 86.9% expressed a wish to have a non-Roma child for a friend;
- 84.5% expressed a wish to attend a mixed class;
- 89% said they felt unaccepted in the school environment;
- 92% stated that Roma and non-Roma children did not play together.
Furthermore, the report asserted that segregated education produced emotional and psychological harm in Roma children, in terms of lower self-esteem and self-respect and problems in the development of their identity. Separate classes were seen as an obstacle to creating a social network of Roma and non-Roma children.
23. The defendants each submitted replies to the arguments put forward by the applicants, claiming that there was no discrimination of Roma children and that pupils enrolled in school were all treated equally. They submitted that all pupils were enrolled in school after a committee (composed of a doctor, a psychologist, a pedagogue, a social pedagogue and a teacher) had given an opinion that the candidates were physically and mentally ready to attend school. The classes within a school were formed depending on the needs of the class, the number of pupils etc. In particular, it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment.
24. Furthermore, the defendants submitted that pupils of Roma origin were grouped together not because of their ethnic origin, but rather because they often did not speak Croatian well and it took more exercises and repetitions for them to master the subjects taught. Finally, they claimed that Roma pupils received the same quality of education as other students as the scope of their curriculum did not differ from that prescribed by law.
25. On 26 September 2002 the Čakovec Municipal Court dismissed the applicants' action, accepting the defendants' argument that the reason why most Roma pupils were placed in separate classes was that they were not fluent in Croatian. Consequently, the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination. Lastly, the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the Roma-only classes.
26. On 17 October 2002 the applicants appealed against the first-instance judgment, claiming that it was arbitrary and contradictory.
27. On 14 November 2002 the Čakovec County Court (Županijski sud u Čakovcu) dismissed the applicants' appeal, upholding the reasoning of the first-instance judgment.
28. Subsequently, on 19 December 2002, the applicants lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) under section 62 of the Constitutional Court Act. In their constitutional complaint the applicants reiterated their earlier arguments, relying on the relevant provisions of the Constitution and of the Convention.
29. On 3 November 2003 the applicants' lawyer lodged an application with the Constitutional Court to expedite the proceedings. On 7 February 2007 the Constitutional Court dismissed the applicants' complaint in its decision no. U-III- 3138/2002, published in the Official Gazette no. 22 of 26 February 2007). The relevant parts of the decision read as follows:
“The first-instance court established in the impugned judgment that the criteria for formation of classes in the defendant elementary schools had been knowledge of the Croatian language and not the pupils' ethnic origin. The [first-instance] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin. The [first-instance] court stressed that the complainants relied exclusively on the Report on the activities of the Ombudsman in the year 2000. However, the Ombudsman said in his evidence that the part of the Report referring to the education of Roma had been injudicious because all the relevant facts had not been established.
The first-instance court relied on section 27 paragraph 1 of the Elementary Education Act ... which provides that teaching in elementary schools is in the Croatian language and Latin script, and considered lack of knowledge of the Croatian language as an objective impediment in complying with the requirements of the school curriculum, which also transpires from the conclusion of a study carried out for the needs of the Croatian Helsinki Committee. The [first-instance] court found: 'pupils enrolling in the first year of elementary schools have to know the Croatian language so that they are able to follow the teaching, if the purpose of elementary education is to be fulfilled. It is therefore logical that classes with children who do not know the Croatian language require additional efforts and commitment of teachers, in particular to teach them the Croatian language.'
The first-instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established, as only in exceptional situations was the transfer of pupils from one class to another allowed. The [first-instance] court considered that this practice respected the completeness of a class and its unity in the upper grades.
The [first-instance] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme, which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge.
Furthermore, the [first-instance] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for the elementary schools by the Ministry of Education and Sport on 16 June 1999. The [first-instance] court found that the above assertion of the complainants relied on the Ombudsman's report. However, the Ombudsman said in his testimony that he did not know how the fact that in Roma-only classes the teaching followed a so-called special programme had been established.
The [first-instance] court established that teaching in the complainants' respective classes and the parallel ones followed the same curriculum, according to the submitted school curriculum. Only in the Krušanec Elementary School were there some deviations from the school curriculum, but the [first-instance] court found those deviations permissible since they had occurred ... at the beginning of the school year owing to low attendance.
After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes, the first-instance court dismissed the complainants' action.
...
The reasoning of the first-instance judgment ... shows that the defendant elementary schools replied to the complainants' allegations as follows:
'The [defendant schools] enrolled in the first year those children found psycho-physically fit to attend elementary school by a committee composed of a physician, a psychologist, a school counsellor (pedagog), a defectologist and a teacher. They did not enrol Croatian children or Roma children as such, but children found by the said committee to be psychologically and physically fit to be enrolled in elementary school. (...) The defendant elementary schools maintain that the first obstacle for Roma children in psychological tests is their lack of knowledge of the Croatian language in terms of both expression and comprehension. As to the emotional aspect of maturity, these children mostly have difficulty channelling their emotions. In terms of social maturity, children of Roma origin do not have the basic hygienic skills of washing, dressing, tying or buttoning, and a lot of time is needed before they achieve these skills. (...) It is therefore difficult to plan class structures with sufficient motivation for all children, which is one of the obligations of elementary schools. There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [skills] they lack owing to social deprivation. ...'
The reasoning of the same judgment cites the testimony of M.P.-P., a school counsellor and psychologist in the Mačinec Elementary School, given on 12 December 2001 ...:
'Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school. Classes are usually formed according to the Gauss curve, so that the majority in a given class are average pupils and a minority below or above average. ... However, in a situation where 70% of the population does not speak Croatian, a different approach is adopted so as to form classes with only pupils who do not speak Croatian, because in those classes a teacher's first task is to teach the children the language.'
The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child. The approach is individualised and carried out in keeping with professional and pedagogical standards. Thus, the Constitutional Court finds the applied approach correct since only qualified experts, in particular in the fields of pedagogy, school psychology and defectology, are responsible for assigning individual children to the appropriate classes.
The Constitutional Court has no reason to question the findings and expert opinions of the competent committees, composed of physicians, psychologists, school counsellors (pedagog), defectologists and teachers, which in the instant case found that the complainants should be placed in separate classes.
None of the facts submitted to the Constitutional Court leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin.
The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the elementary educational system to the skills and needs of the complainants, where the decisive factor was their lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools.
The separate classes were not established for the purpose of racial segregation in enrolment in the first year of elementary school but as a means of providing children with supplementary tuition in the Croatian language and eliminating the consequences of prior social deprivation.
It is of particular importance to stress that the statistical data on the number of Roma children in separate classes in the school-year 2001-2002 ... are not in themselves sufficient to indicate that the defendants' practice was discriminatory (see also the European Court of Human Rights judgments Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, and D.H. and Others v. the Czech Republic, § 46).
Moreover, the complainants themselves maintain in their constitutional complaint that in the school-year 2001-2002 40.93% of Roma children in Međimurje County were placed in regular classes, which tends to support the Constitutional Court's conclusion that there is no reason to challenge the correct practice of the defendant elementary schools and expert committees.
...
In their constitutional complaint the complainants further point out that: 'Even if lack of knowledge of the Croatian language on enrolment in the first year was a problem, the same could not be said of the complainants' enrolment in upper grades.' They therefore consider that their rights were violated by the courts' findings that it had been justified to maintain separate [Roma-only] classes in the upper grades in order to preserve the stability of the wholeness of a given class. The complainants submit that the stability of a class should not have been placed above their constitutional rights, multiculturalism and national equality.
In that regard the Constitutional Court accepts the complainants' arguments.
While the Constitutional Court considers correct and acceptable the courts' findings that lack of knowledge of the Croatian language represents an objective obstacle justifying the formation of separate classes for children who do not speak Croatian at all or speak it badly when they start school, ... bearing in mind the particular circumstance of the present case, it cannot accept the following conclusion of the first-instance court:
'Furthermore, the wholeness and unity of a class is respected in the upper grades. Therefore, transfer of children from one class to another occurs only exceptionally and in justified cases (...) because a class is a homogeneous whole and transferring children from one class to another would produce stress. (...) The continuity of a group is a precondition for the development of a class collective ...'
Accordingly, the Constitutional Court cannot accept the following view of the appellate court:
'The classes are formed when the children enter the first year of their schooling, not every year, and their composition changes only exceptionally. They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them. Therefore this court, like the first-instance court, concludes that maintaining established classes did not amount to an unlawful act.'
The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in elementary schools where no objective need for special measures exists, such as forming separate classes for children with inadequate command of Croatian.
Considering the circumstances of the present case, the Constitutional Court finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of elementary school only for pupils who have not attained the level of Croatian necessary for them to follow the school curriculum of regular classes properly. ...
However, there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in Croatian in the lower grades of elementary school and successfully mastered the prescribed school curriculum.
...
Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law, guaranteed under Section 14 paragraph 2 of the Constitution.
...
... a constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under the Constitution has been infringed in an individual act of a State or public body which determined his or her rights and obligations.
The present constitutional complaint concerns impugned judgments referring to the school year 2001/2002. However, not a single complainant alleges that in that school year he or she was a pupil in a separate [Roma-only] upper-grade class or was personally affected or concerned by the contested practice ...
Although it does not concern the individual legal position of any of the complainants ..., in respect of the complainants' general complaint about the maintaining of Roma-only classes in the upper grades of elementary school the Constitutional Court has addressed the following question:
- was the continued existence of Roma-only classes in the upper grades of elementary school ... caused by the defendants' intent to discriminate those pupils on the basis of their racial or ethnic origin?
... none of the facts submitted to the Constitutional Court leads to the conclusion that the defendants' ... practice was aimed at discrimination of the Roma pupils on the basis of their racial or ethnic origin.
...
The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the Curriculum for Elementary Schools adopted by the Ministry of Education and Sport on 16 June 1999. They consider that 'their placement in Roma-only classes with an inferior curriculum stigmatises them as being different, stupid, intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them. Owing to their significantly reduced and simplified school curriculum their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer (...)'
After considering the entire case-file, the Constitutional Court has found that the above allegations are unfounded. The case-file, including the first-instance judgment ..., shows that the allegations of an inferior curriculum in Roma-only classes are not accurate. The Constitutional Court has no reason to question the facts as established by the competent court.
The possible difference in curricula between parallel classes for objective reasons (for example the low attendance at the Krušanec Elementary School where in the first term of school year 2001/2002 the pupils in classes 1c,, 1d, 2b and 2c missed 4,702 lessons in total, 4,170 of which were missed for no justified reason) does not contravene the requirement that the curriculum be the same in all parallel classes.
The Constitutional Court is obliged to point out that neither the Constitution nor the Convention guarantees any specific requirements concerning school curricula or their implementation. First and foremost the Constitution and the Convention guarantee a right of access to educational institutions existing in a given State, as well as an effective right to education, in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed (a similar view was expressed by the European Court of Human Rights in a case relating to certain aspects of the laws on the use of languages in education in Belgium v. Belgium, § B4). ...
... the Constitutional Court finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope. ...
Thus, the Constitutional Court considers the complainants' assertion about being stigmatised as a subjective value judgment, without reasonable justification. The Constitutional Court finds no factual support for the complainants' assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower, and dismisses that assertion as arbitrary. The competent bodies of the Republic of Croatia recognise a completed degree of education to everyone, irrespective of his or her racial or ethnic origin. In that respect everyone is equal before the law, with equal chances of advancement according to their abilities.”
30. The relevant provisions of the Constitution read as follows:
“Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
31. The relevant part of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation for a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right)...
2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law are allowed, remedies are exhausted only after the decision on these legal remedies has been given.”
32. Section 67 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place, (b) such action is the work of a government official/body/agency or another legal entity, (c) the action resulted in a violation of one or more of the plaintiff's constitutional rights, and (d) the Croatian legal system does not provide for any other avenue of redress.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-5033
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DONNELLY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Nicolas Bratza
TEXT: The applicant is British citizen, born in 1945 and resident in Alderley Edge, Cheshire. He is represented before the Court by Ms Nicola Finnerty, a solicitor practising in London.
A.
On 10 May 1989, the applicant was arrested for obtaining property by deception in connection with fraudulent claims against the Department of Health and Social Security (DHSS). He was subsequently charged with his wife of two counts:
Count 1: - Obtaining property by deception - dishonestly obtaining £ 32,068.01 in unemployment and supplementary benefits and income support payments from the ... “DHSS” between 1st February 1984 and 9th May 1989 by falsely representing that they were unemployed, not in receipt of income and had no capital savings.
Count 2: - Obtaining property by deception - dishonestly obtaining £8,441.30 in housing benefits from Maccesfield Borough Council between 1st February 1984 and 9th May 1989 by falsely representing that they were unemployed, not in receipt of income and had no capital savings and fulfilled the requirements for eligibility for unemployment and supplementary benefits and income support payments.
After committal for trial in January 1991, the first pre-trial hearing was held in the Crown Court on 3 March 1991. The applicant and his wife were jointly represented and pleaded not guilty. The applicant received legal aid for representation by solicitor and counsel.
On 27 March 1991, at the second pre-trial hearing, counsel informed the court that he was unable, due to a conflict of interest, to represent both the applicant and his wife and that the applicant would have to instruct fresh lawyers. The judge ordered the defendants to serve their accountant’s report on the prosecution within 28 days. A problem with the payment of the accountant’s fees was drawn to the judge’s attention.
On 10 June 1991, the applicant’s counsel invited the judge at the third pre-trial hearing to express a view as to the necessity for an accountant’s report, with a view to facilitating the request for legal aid for this purpose. The judge declined, expressing the view that the issues in the trial as to whether the applicant had income and if so, was he dishonest in representing to the authorities that he had none, did not require an accountant. The trial was listed to be heard on 4 November 1991.
The Legal Aid Board, on a date unspecified, refused to grant legal aid for an accountant’s report. The applicant has not provided the decision. Correspondence prior to the decision included a warning by the Legal Aid Board that legal aid would be limited to the fees set in the relevant guidelines and that any further amounts would have to be justified on submission of the bill.
On 24 September 1991, the applicant’s counsel applied to the trial judge for an adjournment for four months to permit the applicant to apply for a loan to pay for the report, have the report prepared and served on the prosecution. The application was refused, the judge not being satisfied from counsel’s submissions that there was at least an arguable defence that would be supported by such an accountant’s report.
On 4 November 1991, without warning his lawyers, the applicant did not appear in court. He provided a letter which stated that he could not have a fair trial without an accountant and gave his reasons for that belief. After some deliberation, the judge decided to proceed with the trial in his absence. His counsel continued to represent him.
In summary, the evidence proved that the applicant’s wife had “signed on” every two weeks on the family’s behalf, representing that she and the applicant were unemployed, had no income, capital or savings or property apart from the family home. The prosecution also presented evidence to show that during the relevant period the applicant was working and did have some income, savings and capital.
On 8 November 1991, the applicant and his wife were convicted. Sentence was adjourned until 28 February 1992. On that date, his wife was present and represented. The applicant still did not attend. The applicant was sentenced to four years’ imprisonment and his wife to three months’ imprisonment. Joint and several compensation orders were made for repayment of the benefits, plus interest.
On 7 October 1996, a single judge of the Court of Appeal refused leave to appeal. On 31 January 1997, leave was granted by the full court. The applicant argued that the counts against him were duplicitous as they purported to cover a single “obtaining” of property whereas in reality they covered multiple “obtainings”. He also argued that the trial should not have continued in his absence and that he should have been granted an adjournment to obtain an accountant’s report.
On 12 June 1997, the appeal was heard before the Court of Appeal. It dismissed the appeal against conviction but reduced the applicant’s sentence to three years.
In respect of the applicant’s counsel’s arguments that the counts against him were duplicitous, the Court of Appeal held that it was not duplicitous in form. Any duplicity in substance could have been discovered at or before the trial by requiring particulars from the Crown and if duplicity was shown, a motion to quash the indictment could have been moved. No such step had been taken by counsel and it was not being submitted by counsel at the appeal that trial counsel had been flagrantly incompetent in not doing so. The allegation that defence counsel had erred in failing to taking a particular step was not sufficient. It may indeed have been counsel’s view that this method of proceeding was simpler and to the applicant’s advantage.
As regarded the refusal of an adjournment and the applicant’s refusal to attend without an accountant, the Court of Appeal noted that “the trouble was that the fee that the Law Society was prepared to pay to cover the accountant for legal aid was not nearly as much as the accountant wanted and the <applicant> was reluctant to have any other accountant.” It referred to the views of the judges at the pre-trial hearings that the case did not require an accountant. For the applicant to say that if the court did what he wanted he would come to court but that if it did not he would not was totally unacceptable behaviour. The Court of Appeal found no irregularity in the judge’s refusal to order legal aid for an accountant of the applicant’s choice. The applicant had been “utterly pigheaded” and refused to instruct any other accountant. It was also not apparent, if he could obtain an accountant from his own resources, why he waited until 24 September 1991 to request a four month adjournment for that purpose. Counsel had been unable to point to any steps taken between 24 September and 4 November 1991 to obtain an accountant’s report.
The applicant’s application to appeal to the House of Lords was dismissed on 16 December 1997.


ITEMID: 001-58321
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF RIERA BLUME AND OTHERS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Not necessary to examine Art. 9;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Matti Pellonpää
TEXT: 12. The applicants, Ms Elena Riera Blume, Ms Concepción Riera Blume, Ms María Luz Casado Perez, Ms Daría Amelía Casado Perez, Ms María Teresa Sales Aige and Mr Javier Bruna Reverter, were born in 1954, 1952, 1950, 1950, 1951 and 1957 respectively and live in Valencia (Spain).
13. At an unknown date in 1983 the Public Safety Department (“the DGSC”) of the Generalitat (government) of Catalonia received through Pro Juventud (“Pro Youth”), an association formed to fight against sects, a request for help from several people who alleged that members of their families had been ensnared by a group known by the name of CEIS (Centro Esotérico de Investigaciones). According to the families’ complaints, those who ran the CEIS managed to bring about a complete change of personality in their followers, leading them to break off ties with their family and friends and inciting them to prostitution and other activities designed to obtain money for the organisation. The DGSC infiltrated an officer into the CEIS to check the truth of the complaints and, in the light of the findings, brought the facts to the attention of the Principal Public Prosecutor at the Barcelona Audiencia Territorial, who forwarded the complaints and the information gathered to the judicial authorities. Acting on this information, Barcelona investigating court no. 6 opened a preliminary investigation in June 1984 and ordered searches of the homes of members of the CEIS, including the applicants. The searches took place on 20 June 1984 and numerous people were arrested, including the applicants. After the applicants were arrested, they were transferred to the seat of the investigating court. In the light of information from A.T.V., an official at the DGSC, which was confirmed by the prosecuting authorities, there was a danger that the members of the sect would react unpredictably if they were released, and might even commit suicide. The duty judge nevertheless decided to release the applicants but gave oral instructions to the police that those detained, including the applicants, should be handed over to their families, to whom it should be suggested that it would be as well to have them interned in a psychiatric centre, on a voluntary basis as regards the persons of full age, in order for them to recover their psychological balance. The judge in question confirmed his oral instruction in a decision of 26 June 1984. In that decision he also ordered the chief of the Catalan police (mossos d’esquadra) to interview and question all those detained during the searches who had subsequently been released.
14. Later, on the orders of L.R.F., the Director-General of Public Safety, the applicants were transferred to the premises of the DGSC. From there, on 21 June 1984, they were taken by members of the Catalan police in official vehicles to a hotel some thirty kilometres from Barcelona, where they were handed over to their families with a view to their recovering their psychological balance. Once at the hotel, the applicants were taken to individual rooms under the supervision of persons recruited for the purpose, one of whom remained permanently in each room, and they were not allowed to leave their rooms for the first three days. The windows were firmly closed with wooden planks and the panes of glass had been taken out. While at the hotel the applicants were allegedly subjected to a process of “deprogramming” by a psychologist and a psychiatrist at the request of Pro Juventud. On 29 and 30 June 1984, after being informed of their rights, they were questioned by C.T.R., the Assistant Director-General of Public Safety, aided by A.T.V., in the presence of a lawyer not appointed by the applicants. On 30 June 1984 the applicants left the hotel.
15. As soon as they had regained their freedom, the applicants lodged a criminal complaint alleging false imprisonment, offences against the exercise of personal rights, falsification of documents, usurpation of functions and misappropriation of goods against A.T.V., C.T.R. and L.R.F., the latter as Director-General of Public Safety, and against all other persons who had taken part in depriving them of their liberty. In the criminal proceedings thus instituted the prosecuting authorities filed submissions against the persons mentioned above accusing them of false imprisonment.
16. In a judgment of 7 March 1990 the Barcelona Audiencia Provincial acquitted the accused, holding that the acts complained of had been prompted by a philanthropic, legitimate and well-intentioned motive and that there had been no intention of depriving the applicants of their liberty, so that the offence of false imprisonment was not made out.
17. The prosecution and the applicants lodged appeals on points of law, which were dismissed by the Supreme Court on 23 March 1993. In its judgment the Supreme Court held, inter alia:
“… A detailed examination of the facts held to have been proved shows that there is no doubt that the appellants were placed in detention [detención] (the expression ‘administrative detention’ [retención] has no validity, since it is not defined in our legal order), but the detention took place with the sole aim – a very laudable and plausible one – of avoiding worse evils than those complained of by the appellants, so that there was no unlawfulness strictly and properly understood. … Furthermore, that there was no unlawfulness, the criterion required by law, is all the plainer if it is borne in mind that it was the appellants themselves, together with the closest members of their families, who consented to undergo deprogramming tests which logically required them to be physically isolated initially. That isolation lasted for a very limited time and, it must be emphasised, with the agreement of those concerned and their families. … It cannot be maintained, in order to argue the contrary, that the wishes of the persons who underwent deprogramming could only have been overridden by the members of their families after proceedings to establish incapacity, seeing that the position of those concerned called for immediate treatment, without any delay, as appears from the judgment under appeal, which refers to fears that the members of the sect might commit suicide.
In conclusion, the offence of false imprisonment cannot be said to have been committed since, firstly, there was no intention on the part of the defendants to deprive anybody of his or her liberty and, on the contrary, their intention, which has been fully proved, was to prevent imminent and very serious harm befalling the persons concerned, such that the mens rea for the offence was lacking. In the second place, the requirement of ‘unlawfulness’ was lacking inasmuch as the defendants’ conduct was in keeping with what society and the legal order, taken as a whole, require in situations and at times such as those of the instant case.”
18. The applicants lodged an appeal (recurso de amparo) with the Constitutional Court. In their appeal they alleged violations of the right to religious freedom (Article 16 of the Constitution), the right to liberty (Article 17 of the Constitution), the right to freedom of movement (Article 19 of the Constitution), the rights of the defence during their detention (Article 24 § 2 of the Constitution) and the right to a fair trial (Article 24 § 1 of the Constitution). They asked the Constitutional Court to quash the judgments of the Audiencia Provincial and the Supreme Court, to order the officials complained of to pay five million pesetas as compensation for the damage sustained and to make a declaration to the effect that the Generalitat of Catalonia was liable in default.
19. In the proceedings in the Constitutional Court Mr José Victor Riera Blume was held to have withdrawn on account of failure, through his own fault, to comply with a formal requirement.
20. On 10 March 1997 the Constitutional Court dismissed the amparo appeal. In section 2 of the “As to the law” part of the judgment the court first examined a preliminary objection raised by Crown Counsel that appropriate remedies had not been used, namely a habeas corpus application or contentious-administrative proceedings, in the following terms:
“This Court, while holding that a person in possession of a fundamental right could choose the most effective remedy for infringement of that right …, has also stated that that had to be understood ‘subject, of course, to the possibilities afforded by each class of court’.
Consequently, in order to resolve the issue raised by Crown Counsel, it would be necessary to determine what those possibilities were in the criminal courts. In the instant case, however, it is not necessary to do so since the appeal is being brought not against administrative acts but against judicial decisions. That being so, the issue is not – and cannot be – whether or not use was made of an effective judicial remedy (section 43(1) of the CCA [Constitutional Court Act]) but whether the remedies afforded by the judicial process chosen (section 44(1)(a) CCA) have been exhausted, an issue that has not been canvassed and could not be since the appellants went to the highest court, the Supreme Court, which heard the appeal on points of law in the case.”
21. That being said, the Constitutional Court pointed out, firstly, that there was no fundamental right to have a person convicted and, secondly, that it could not protect fundamental rights by quashing final substantive judgments whereby defendants had been acquitted. It also pointed out that, according to its case-law, the Constitution did not confer, as such, a right to secure criminal convictions of third parties. Furthermore, decisions of criminal courts were never decisions affecting fundamental rights of the prosecuting party. The court added that the decisions being challenged had not infringed any of the rights relied on by the five remaining appellants, seeing that they were limited to declaring that the acts with which the defendants were charged did not amount to the offences for which they were being prosecuted.
22. Several provisions of the Spanish Constitution are relevant:
“1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law.
2. No one shall be required to declare his ideological, religious or other beliefs.
3. ...”
“1. Everyone shall have the right to freedom and security of person. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law.
2. ...
3. Everyone who is arrested must be informed immediately, and in a manner he can understand, of his rights and of the reasons for his arrest and cannot be required to make a statement. The assistance of a lawyer is guaranteed to persons detained in police investigations or criminal prosecutions, as provided by law.
4. A habeas corpus procedure shall be established by law for immediately bringing before a judge any person arrested unlawfully. ...”
“1. Se garantiza la libertad ideológica, religiosa y de culto de los individuos y las comunidades sin más limitación, en sus manifestaciones, que la necesaria para el mantenimiento del orden público protegido por la ley.
2. Nadie podrá ser obligado a declarar sobre su ideología, religión o creencias.
3. ...”
“1. Toda persona tiene derecho a la libertad y a la seguridad. Nadie puede ser privado de su libertad, sino con la observancia de lo establecido en este artículo y en los casos y en la forma previstos en la ley.
2. ...
3. Toda persona detenida debe ser informada de forma inmediata, y de modo que le sea comprensible, de sus derechos y de las razones de su detención, no pudiendo ser obligado a declarar. Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales, en los términos que la ley establezca.
4. La ley regulará un procedimiento de hábeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente. ... ”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-114995
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MITYAGINY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants were born in 1938 and 1967 respectively and live in Ulyanovsk.
6. The applicants used to go to the village of Verkhnyaya Syzran (now Bestuzhevka), Privolzhskiy District, Samara Region, to visit Z. (the applicants’ mother and grandmother respectively). They had a long-standing conflict with Z.’s neighbour S. in connection with the use of their neighbouring plots of land. On several occasions the applicants sought institution of criminal proceedings against S., without success.
7. On one of the applicants’ visits to the village, on 16 May 1998 at approximately 10 p.m., four armed men wearing beekeepers’ masks burst into Z.’s house, two of them wearing jackets similar to those used by the police. They threatened and beat up Z. and the applicants, then searched the house and seized a camera which the applicants allegedly used to carry for “making a record of the danger posed by S.”
8. On 17 May 1998 the applicants went to the Privolzhskiy District Central Hospital (Приволжская центральная районная больница) where the first applicant was diagnosed with an injury to the thoracic cage and lumbar contusion, and the second applicant with contusion of the scalp. The nurse on duty at the Central Hospital contacted the Privolzhskiy District Department of the Interior (ОВД Приволжского района).
9. On the same day the investigation team went to examine the scene of the incident. The applicants and Z. were questioned on the circumstances of the incident.
10. Upon their return to Ulyanovsk, on 20 May 1998 the applicants on their own initiative underwent an examination by a forensic medical expert and were diagnosed with multiple abrasions and bruises on their faces and bodies caused by a blunt hard object possibly on 16 May 1998 and not resulting in any damage to health (medical certificates nos. 2084/114 and 2083/113).
11. On 27 May 1998 chief district police officer A. Ch. of the Privolzhskiy District Department of the Interior decided not to institute criminal proceedings, for lack of evidence of a crime.
12. On 14 June 1998 the first applicant complained to the Samara Regional Prosecutor that she and her son had been assaulted on 16 May 1998. She further claimed that they had been threatened that they would be killed if they continued to make complaints against S., and that they would have to pay 50,000 Russian roubles (RUB) for each of their visits to the village.
13. On 19 June 1998 the Privolzhskiy District Prosecutor, Samara Region, quashed the decision of 27 May 1998 not to institute criminal proceedings. The prosecutor noted that the inquiry had been held only in respect of Z., that it was necessary to question the doctors who had examined the applicants on 17 May 1998 and to question Z.’s neighbours. The material of the inquiry was returned to the Privolzhskiy District Department of the Interior for an additional examination. It appears that subsequently criminal proceedings were instituted against police officer A. Ch. on suspicion of having forged the applicants’ signatures during the investigation leading to the decision of 27 May 1998. The outcome of these proceedings remains unknown.
14. On 21 July 1998 the first applicant again addressed the Samara Regional Prosecutor complaining about lack of action in the case and expressing her distrust against the Privolzhskiy District Prosecutor’s Office and the Privolzhskiy District Department of the Interior.
15. On 14 August 1998 the Privolzhskiy District Prosecutor’s Office, Samara Region, instituted criminal proceedings under Article 116 of the Criminal Code (“Beatings”). The investigation department of the Privolzhskiy District Department of the Interior was charged with the preliminary investigation of the case.
16. Between 17 September and 22 September 1998 an investigator questioned the applicants, Z., and the applicants’ neighbours Al. T., An. T. and S. The applicants were questioned at the Zavolzhskiy District Department of the Interior in Ulyanovsk (СУ при Заволжском РУВД г. Ульяновска). They submitted that the two armed perpetrators wearing police jackets resembled district police officers A. Ch. and As. of the Privolzhskiy District Department of the Interior.
17. On 14 October 1998 the investigation was suspended by investigator Sel. of the investigation department of the Privolzhskiy District Department of the Interior due to the impossibility of identifying the alleged perpetrators.
18. On 6 November 1998 Privolzhskiy District Prosecutor quashed the above decision due to incompleteness of the investigation. The prosecutor noted the necessity to question S.’s relatives on the issue of his conflict with the first applicant, to verify the version of the attack on the applicants by S.’s relatives, nephews or acquaintances from Privolzhskiy District Department of the Interior, Syzran and Oktyabrsk Departments of the Interior, to establish whether S. kept bees and had in his possession beekeepers’ masks, and whether he could have borrowed the masks from somebody else. The prosecutor noted the necessity to carry out an investigative experiment in order to find out whether the applicants could have seen as they asserted the individual features of the assailants behind the beekeepers’ masks, to question police officers A. Ch. and As., to carry out confrontations between the above police officers and the applicants and identification parade with participation of the above police officers and Z. The prosecutor further noted the necessity to eliminate contradictions in the statements of the applicants as regards the date of their visit to the Privolzhskiy District Central Hospital, to appoint the applicants’ forensic medical examination, to question all medical staff who examined the applicants at the Privolzhskiy District Central Hospital, to enquire on individual characteristics of all the participants on the case, to widen the circle of witnesses and to carry out other investigative actions necessary for a comprehensive investigation.
19. On 6 December 1998 the investigation was again suspended by investigator Sel. due to the impossibility of identifying the alleged perpetrators.
20. On 4 February 1999 the Privolzhskiy District Prosecutor quashed the above decision, noting the failure of the investigator to comply with the instructions of the prosecutor outlined in the decision of 6 November 1998 and to carry out any of the investigating actions mentioned therein.
21. Between 2 April and 13 April 1999 the investigator questioned S., witnesses B. (S.’s acquaintance), Al. S. (S.’s nephew) and V. S. (S.’s wife), chief district police officer A. Ch., police officers S. Ch. and As. and the doctor who had been on duty at the Privolzhskiy District Central Hospital on 17 May 1998. The applicants were requested to appear at the Privolzhskiy District Department of the Interior for participation in confrontations and identification parades. However, they informed the investigator about their unwillingness to appear, relying on the death threats they had received during the incident of 16 May 1998.
22. On 20 April 1999 the investigation was for the third time suspended by investigator Sel. due to the impossibility of identifying the alleged perpetrators.
23. On 3 February 2000 the Privolzhskiy District Prosecutor quashed the above decision and the criminal case was referred back to the investigation department of the Privolzhskiy District Department of the Interior for additional investigation. The prosecutor instructed the investigator to join to the case-file material the results of the applicants’ forensic medical examination, to carry out a series of confrontations and identification parades with the applicants’ participation, and to study the issue of the applicants’ mental health (no copy of the relevant decision was made available to the Court).
24. On 7 April 2000 the investigation was for the fourth time suspended due to the impossibility of identifying the alleged perpetrators.
25. On 9 August 2000 the Prosecutor of the Samara Regional Prosecutor’s Office quashed the above decision and ordered an additional investigation. He noted the failure of the investigator to comply with the instructions of the district prosecutor and the fact that the investigation had taken on a protracted character.
26. On 19 October 2000 the applicants were questioned as witnesses at the investigation department of the Zavolzhskiy District Department of the Interior in Ulyanovsk. They refused to make any statements, explaining that first of all they considered themselves victims of S.’s unlawful behaviour and not of the beatings, and that only when they received an official reply in connection with the former would they agree to make any submissions regarding the beatings. The applicants refused to sign the decision by which they were granted victim status in the proceedings, to hand to the investigator the technical documents of the camera allegedly seized from them on 16 May 1998 and to provide the investigation with samples of their signatures which were necessary to check the authenticity of the signatures appearing on the records of their initial statements of 17 May 1998. They further refused participating in any investigative actions at the Privolzhskiy District Department of the Interior.
27. Subsequently, between 3 November 2000 and 6 November 2007 the investigation was suspended on eight occasions due to the impossibility of identifying the alleged perpetrators, and was subsequently resumed by the prosecutor with instructions to carry out additional investigations. On two occasions during this period (on 5 January 2003 and 10 June 2005) the proceedings were stayed due to the expiry of the procedural time-limit for prosecution, and later resumed (on 13 January 2003 and 10 February 2006). During this period the applicants were on several occasions requested to appear at the Privolzhskiy District Department of the Interior for participating in a series of confrontations and identification parades, to no avail.
28. On 24 August 2010 investigator L. of the investigation department of the Privolzhskiy District Department of the Interior discontinued the proceedings due to the expiration of the procedural time-limit for criminal prosecution.
29. On 10 September 2010, however, the deputy head of the chief investigation department of Samara Region quashed the above decision and resumed the investigation. The case file contains no further information about the results of the additional investigation, if any.
30. The Russian Code of Criminal Procedure (“the Code”) in force as from 1 July 2002 provides in its Article 42 that a person who has suffered damage as a result of a crime is granted victim status and may take part in the criminal proceedings. During the criminal investigation, the victim may submit evidence and lodge applications. Once the investigation is completed, the victim has full access to the case file.
31. Articles 144 and 145 of the Code establish that prosecutors, investigators and inquiry bodies are obliged to consider applications and information about any crime committed or being prepared, and to take a decision on that information within three days. In exceptional cases, this time-limit can be extended to ten days. The decision should be one of the following: (a) to institute criminal proceedings; (b) to refuse to institute criminal proceedings; or (c) to transmit the information to another competent authority.
32. According to Article 162 of the Code, the criminal investigation should not normally exceed two months. This time-limit can be extended for up to three months. If the matter is of extreme complexity, the investigation can be extended for up to twelve months.
33. Article 208 § 1 of the Code states that the criminal investigation can be suspended if the alleged perpetrator has not been identified.
34. Article 213 of the Code provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination. A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor. The investigator should also notify the victim and the complainant in writing of the termination of the proceedings.
35. According to Article 214 of the Code, the prosecutor can reverse the decision of the investigator and reopen the proceedings. The proceedings can be re-opened until the time-limit for holding a person criminally responsible expires.
36. Under Article 221 of the Code, the prosecutor is responsible for general supervision of the investigation. In particular, the prosecutor can order that specific investigative activities be carried out, transfer the case from one investigator to another, or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-86477
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MOORE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Ronald Moore, is a British national who was born in 1947 and lives in West Yorkshire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 26 February 1997. On 3 March 2001 the applicant applied for widows’ benefits for the second time. On 9 March 2001 the applicant was informed that his claim would not be considered as he was not a woman. On 20 March 2001 the applicant again applied for widows’ benefits. On 4 May 2001 the applicant was informed that his claim had been disallowed as he was not a woman. On 30 May 2001 the applicant appealed. On 22 June 2001 he was informed that the decision remained unchanged. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant ceased to be eligible for child benefit on 11 September 2000; therefore, he was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-97266
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: VODA v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Mihai Vodă, is a Romanian national who was born in 1947 and lives in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant worked as senior economist in the company C. (“the company”), a former State-owned company, which has operated since 1995 as a joint stock corporation with mainly private capital.
4. On 23 August 1991 the applicant was dismissed from his job. He challenged that decision and on 6 October 1994 the Bucharest District Court (“the District Court”) ordered his reinstatement and payment of a sum of money for overdue salary. That judgment became final on 17 October 1996.
5. On 5 December 1996 the company decided to reinstate the applicant, but indicated that it was impossible to reinstate him in his previous job, since that post was no longer available following the company’s privatisation, and therefore terminated his employment contract. However, on 18 December 1996 the company issued an employment contract for the applicant, stating that he was reinstated in his previous position. The applicant was informed of that contract on 27 January 1997, but it was only in 2003 that he sought its annulment. In a final decision of 17 December 2004 the Bucharest Court of Appeal (“the Court of Appeal”) allowed the action, noting the absence of the applicant’s consent and also the non-existence of the relevant post at that time.
On 27 January 1997 the company altered the period of notice established in its decision of 5 December, and on 29 January 1997 it paid the amount ordered by the court.
6. On 26 October 1998 the District Court annulled the two decisions of 5 December 1996 and 27 January 1997 and ordered the company to reinstate the applicant in his previous job or in an equivalent post, to pay him 46,752,030 Romanian lei (ROL) in overdue salary for the period April 1996 to October 1998, and also to pay him the corresponding salary until effective reinstatement. In its reasoning, the court accepted the assessment of damages proposed by the applicant based on a monthly wage of 167.57 United States dollars (USD). That judgment became final on 1 September 1999.
7. On 14 April and on 30 June 1999 the District Court ordered the attachment of the company’s financial assets up to ROL 46,752,030. On 3 November 1999 the company paid that amount.
8. On 12 October 1999 the company informed the corresponding State agency of the impossibility to reinstate the applicant, but on 18 October 1999 invited him to its headquarters to discuss the reinstatement. The applicant went on 28 October 1999, but no agreement was reached.
9. On 28 June 2001 the applicant requested the bailiff P.A. to enforce the judgment by seizure of the company’s assets. Having the court’s approval, the bailiff instructed the BCR bank to attach the company’s financial assets. On 25 July 2001 the bank refused to perform that seizure in the absence of a writ of execution for that amount of USD 7 800.95, which represented, according to the applicant, the updated sum of the overdue salary, granted by the final judgment of 26 October 1998.
10. On 26 July 2001 the applicant requested the court to validate that seizure. On 28 September 2001 the District Court declared the action inadmissible, since the company’s accounts had been blocked under the provisions of Government Ordinance no. 11 of 23 January 1996 (“Ordinance no. 11/1996”) regarding enforcement of budgetary financial claims, and therefore the enforcement had to be carried out under those provisions by the financial administration, not by the courts.
11. On 14 November 2001, following the decease of the bailiff P.A., the execution file was transferred to the bailiff D.M.
12. On 22 November 2001 the District Court dismissed an objection to execution by the company. That judgment became final and a further objection was dismissed on the basis of the res judicata principle.
13. On 11 December 2001 the bailiff D.M. sought the attachment of company’s accounts at the BCR bank and on 7 January 2002 he updated the amount. On 8 January 2002 the bank informed the bailiff that it could not proceed with that seizure since the amount claimed was not clearly based on an enforceable title.
On 11 February and 8 March 2002, at the applicant’s request, the bailiff carried out new seizures, informing both the company and the enforcing court.
14. Furthermore, on 21 December 2001 the applicant requested the Bucharest Employment and Vocational Training Agency (the “AMPOFM”) to continue enforcement under Ordinance no. 11/1996. On 29 March 2002 he lodged an administrative action against that agency, alleging refusal to bring the execution to a conclusion. The Bucharest County Court (“the County Court”) dismissed that action on 4 July 2002, finding no refusal by the AMPOFM, which on 14 February 2002 had seized the company’s accounts under a warrant of execution from 17 January 2002. In the absence of any appeal, that judgment became final.
15. On 2 October 2002 the District Court, in private, approved the continuation of enforcement by the AMPOFM.
16. On 15 November 2002 the applicant brought summary proceedings against the company, the BCR bank and the AMPOFM, seeking to remove impediments to recovery of the debt. On 29 November 2002 the District Court declared the action inadmissible, considering firstly that his request would amount to a decision on the merits, not to a provisional measure, and secondly that there was no urgency. A further appeal by the applicant was annulled for lack of payment of the stamp duty, by a final decision of 17 February 2003.
17. On 3 February 2003 the AMPOFM requested the BCR bank to attach the company’s assets up to USD 9,141.51, and on 9 April 2003 referred the case back to the bailiff D.M., to continue with the execution.
18. On 14 April 2003, upon a request by the applicant, the bailiff updated the debt and carried out a seizure for USD 10,817.21 in respect of overdue salary up to December 2002.
19. The bailiff requested the court’s endorsement. On 6 June 2003 the District Court upheld the seizure, and on 11 December 2003 the Court of Appeal authorized the attachment of the company’s assets in the BCR bank up to USD 10,817.21. That judgment became final. The company’s subsequent objection to execution was dismissed on 22 April 2004 by the District Court.
20. On 18 July and 11 September 2003 the applicant received USD 286.88 and USD 2,817.19 respectively. On 20 January 2004 the District Court attached the accounts of the BCR bank in the National Bank of Romania (“BNR”) up to USD 7,712.36.
21. On 6 December 2004 the bailiff certified that the applicant had recovered the whole debt under the judgment of 26 October 1998, corresponding to salary arrears for April 1996 – December 2002 inclusive, until his employee status had ceased because of retirement (see below).
The applicant also acknowledged in a letter of 14 December 2004 addressed to a domestic court that he had received the above-mentioned amount of USD 10,817.21.
22. On 19 March 2002 the applicant complained that the bailiff had declined to record the company’s refusal to enforce the 1998 judgment. On 10 April 2002 the District Court considered that request as exceeding the bailiff’s competence.
23. On 2 August 2002 the bailiff declined to continue with the enforcement on grounds, inter alia, of non-payment by the applicant of the execution fees. The applicant contested that refusal before the court, but on 27 September 2002 the District Court dismissed his request, since he had not paid those fees. That judgment became final, since a further appeal by the applicant had lapsed.
24. On 24 February 2003 the applicant filed a complaint against the bailiff before the Bailiffs’ Chamber and demanded his replacement. On 6 March 2003 the Chamber rejected his allegations and refused replacement since, at that moment, the enforcement was being carried out by the AMPOFM (see paragraph 17 above).
25. On 10 October 2003 the applicant requested the bailiff to seize the company’s assets up to USD 1,023.81, representing the difference for January – October 2003 between salary and pension. On 28 October 2003 the District Court allowed a seizure up to the amount stipulated in the judgment of 26 October 1998.
However, by an official record of 6 December 2004 the bailiff declined to update that difference, since the 1998 judgment had not granted such a right, nor had the above-mentioned court decision of 28 October 2003.
The applicant lodged an action against the bailiff. Eventually on 21 July 2006 the District Court dismissed that action, considering that the bailiff’s task was to enforce an instrument of title, whereas the impugned difference between salary and pension was not provided for either in the 1998 judgment or in the court decision of 28 October 2003. That judgment became final, since an appeal by the applicant had lapsed.
26. On 7 December 2005 the applicant requested the bailiff to certify in an official record that the company had disregarded the obligation to reinstate him. By a statement of 8 December 2005 the bailiff considered that request as amounting to establishment of a factual situation, which could have been legally made only on the basis of a court judgment.
The applicant complained before the court, but on 20 January 2006 the District Court dismissed the action, since the bailiff had acted lawfully. That judgment became final.
27. On 20 August 2002 the applicant sought payment by the company to the State of his social security, unemployment and pension insurance contributions, and income taxes. By final decisions of 26 January 2004 and 11 January 2007 the Court of Appeal quashed the judgments of the lower courts and sent the case back for fresh examination. The proceedings are still pending.
28. On 23 October 2002 the District Court referred to the prosecutor a criminal complaint by the applicant against the head of the company for, inter alia, non-enforcement of the 1998 judgment in respect of reinstatement. According to the applicant, the prosecutor had not informed him of any solution.
29. On 2 March 2006 the District Court, in an unappealable interlocutory decision, declared inadmissible an action against the company for a daily pecuniary penalty for failure to comply with the judgment of 26 October 1998. The court held that the applicant had not complied with the provisions of the Code of Civil Procedure, which provided that a claim for a daily pecuniary penalty could be lodged only at the enforcement stage and following a summons addressed to the debtor.
30. On 10 January 2003 the National Fund of Pensions and Other Social Insurances (the “CNPAS”) certified the applicant’s unfitness for work.
31. On 20 January 2003 the applicant made a request to retire on grounds of disablement and on 27 January 2003 he informed the AMPOFM that the company owed him salaries for the period April 1996 to December 2002.
32. On 7 April 2003 the Bucharest District Fund of Pensions (the “CPMB”) allowed the applicant’s request to retire and granted him a disablement pension starting from 20 January 2003.
33. On 10 October 2003 the applicant requested the bailiff to carry out a seizure in respect of the difference between salary and pension, for January – October 2003. The bailiff carried out that seizure, but the company contested it. By a final decision of 17 November 2004 the County Court annulled the seizure in part. It held that the company had paid the pecuniary damage under the 1998 judgment and that the company’s obligation to pay salaries had lasted only until the applicant lost his work capacity, since Article 56 (d) of the Labour Code made provision for de jure termination of a work contract on the date of communication of the retirement decision.
34. On 11 October 2006 the District Court consented, in private, to a request by the bailiff to attach the company’s assets in the BCR bank, for salaries corresponding to January 2003 – September 2006. On 26 October 2006 the bailiff carried out that seizure.
However, on 18 December 2006 the District Court allowed an objection by the company and annulled that seizure. It considered that the company’s obligation to pay salaries had lasted until reinstatement, which was no longer possible since the applicant had chosen to retire. The court also held that the 1998 judgment had not given the applicant a right to the difference between salary and pension. That judgment became final.
35. On 12 December 2006 the Court of Appeal dismissed by a final decision an action by the company against the applicant, seeking to establish the latter’s refusal to be reinstated and also the lapse of his right to enforce the 1998 judgment in respect of reinstatement.
The court held that the obligation of reinstatement was an obligation of performance intuitu personae, depending exclusively on the debtor’s willingness and which could not be carried out by forced execution. It further considered that the 1998 judgment ordered the company to reinstate the applicant, but also established an equivalent method of enforcement of that obligation by payment of salaries until effective reinstatement. That judgment had not established two different obligations, but only one obligation to act, which was to be enforced either in kind by the company, or by equivalent, the latter being the only possibility for the applicant to coerce the debtor.
The court also noted the company’s refusal to reinstate the applicant and its unrealistic intentions in that respect (see paragraph 8 above).
36. On 17 May 2007 the bailiff D.M., upon a request by the applicant, carried out a seizure on the company’s assets for outstanding salaries for January 2003 – April 2007.
On 21 August 2007 the District Court allowed an objection by the company to that seizure. The court held that the company could no longer reinstate the applicant since he had chosen to retire, and that the company’s obligation to pay salaries had lasted until retirement. By the time of retirement, the company’s obligation to pay salaries under the 1998 judgment had been enforced. Therefore the company’s obligation to pay salaries had ceased and the applicant could not claim salary and pension payments concurrently. In the absence of any appeal, that judgment became final.
37. The relevant domestic law is described in Roman and Hogea v. Romania ((dec.), no. 62959/00, 31 August 2004) and Sacaleanu v. Romania (no. 73970/01, 6 September 2005).