ITEMID: 001-60595
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2002
DOCNAME: CASE OF I. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Violation of Art. 12;No separate issue under Art. 14;Non-pecuniary damage - finding of violation sufficient
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 12. The applicant is a United Kingdom citizen born in 1955 and is a post-operative male to female transsexual. She worked for some time as a dental nurse in the army. In 1985, she applied for a course for the Enrolled Nurse (General) qualification, but was not admitted as she refused to present her birth certificate.
13. At the age of 33, the applicant retired with a disability pension on the basis of ill-health.
14. In 1993 and 1994, the applicant wrote letters to various institutions requesting amendments to the relevant legislation to allow the recognition of transsexuals' changed gender.
15. On 31 July 2001, in reply to her application for a student loan, a local authority required her to submit an original birth certificate in support of her application. On 14 August 2001, in reply to her application to be an administrative assistant in a prison, the applicant was requested to bring to an interview her birth certificate.
16. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for the purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll.
17. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen's Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.
18. Under section 11(b) of the Matrimonial Causes Act 1973, any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse (obiter per Mr Justice Ormrod).
This decision was reinforced by Section 12(a) of the Matrimonial Causes Act 1973, according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable. Section 13(1) of the Act provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable, but led the respondent to believe that she would not seek a decree of nullity, and that it would be unjust to grant the decree.
19. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.
20. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.
21. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person's life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified, or where the biological criteria were not congruent, can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.
22. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.
23. A transsexual continues to be recorded for social security, national insurance, pension and employment purposes as being of the sex recorded at birth.
24. A male-to-female transsexual is currently entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women generally. The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to State pensions. Equalisation of the pension age is to begin in 2010 and it is anticipated that by 2020 the transition will be complete.
25. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment. Should a post-operative transsexual be asked by a prospective employer to disclose all their previous names, but fail to make full disclosure before entering into a contract of employment, an offence might be committed. Furthermore, should the employer discover the lack of full disclosure, there might also be a risk of dismissal or an action by the employer for damages.
26. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and, accordingly, Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that:
“... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22)
27. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 (Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).
28. The Sexual Discrimination (Gender Re-assignment) Regulations 1999 were issued to comply with the ruling of the European Court of Justice in P. v. S. and Cornwall County Council (30 April 1996). This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual (whether pre- or post-operative).
29. Prior to 1994, for the purposes of the law of rape, a male-to-female transsexual would have been regarded as a male. Pursuant to section 142 of the Criminal Justice and Public Order Act 1994, for rape to be established there has to be “vaginal or anal intercourse with a person”. In a judgment of 28 October 1996, the Reading Crown Court found that penile penetration of a male to female transsexual's artificially constructed vagina amounted to rape: R. v. Matthews (unreported).
30. Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the Prison Rules 1999 respectively).
31. According to the Report of the Working Group on Transsexual People (Home Office April 2000, see further below, paragraphs 33-34), which conducted a review of law and practice, post-operative transsexuals where possible were allocated to an establishment for prisoners of their new gender. Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post-operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women (see paragraphs 2.75-2.76).
32. On 14 April 1999, the Secretary of State for the Home Department announced the establishment of an Interdepartmental Working Group on Transsexual People with the following terms of reference:
“to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.”
33. The Working Group produced a report in April 2000 in which it examined the current position of transsexuals in the United Kingdom, with particular reference to their status under national law and the changes which might be made. It concluded:
“5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change.
5.2. Measures have already been taken in a number of areas to assist transsexual people. For example, discrimination in employment against people on the basis of their transsexuality has been prohibited by the Sex Discrimination (Gender Reassignment) Regulations 1999 which, with few exceptions, provide that a transsexual person (whether pre- or post-operative) should not be treated less favourably because they are transsexual. The criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status. Transsexual victims and witnesses will, in most circumstances, similarly be treated as belonging to their acquired gender.
5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required gender. We also found that at least one insurance company will issue policies to transsexual people in their acquired gender.
5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their new gender for all legal purposes.
5.5. We have identified three options for the future;
– to leave the current situation unchanged;
– to issue birth certificates showing the new name and, possibly, the new gender;
– to grant full legal recognition of the new gender subject to certain criteria and procedures.
We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation.”
34. The report was presented to Parliament in July 2000. Copies were placed in the libraries of both Houses of Parliament and sent to 280 recipients, including Working Group members, Government officials, Members of Parliament, individuals and organisations. It was publicised by a Home Office press notice and made available to members of the public through application to the Home Office in writing, E-mail, by telephone or the Home Office web site.
35. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001], 3 FCR 1, the appellant who had been classified at birth as a man had undergone gender re-assignment surgery and in 1981 had gone through a form of marriage with a man who was aware of her background. She sought a declaration under the Family Law Act 1986 that the marriage was valid. The Court of Appeal held, by a majority, that the appellant's marriage was invalid as the parties were not respectively male and female, which terms were to be determined by biological criteria as set out in the decision of Corbett v. Corbett [1971]. Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender, there was no clear point at which such factors could be said to have effected a change of gender. A person correctly registered as male at birth, who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage. It was for Parliament, not for the courts, to decide at what point it would be appropriate to recognise that a person who had been assigned to one sex at birth had changed gender for the purposes of marriage. Dame Elizabeth Butler-Sloss, President of the Family Division noted the warnings of the European Court of Human Rights about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up, which had in April 2000 issued a careful and comprehensive review of the medical condition, current practice in other countries and the state of English law in relevant aspects of the life of an individual:
“[95.] ...We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any government department, to take forward any of the recommendations of the Report, or to prepare a consultation paper for public discussion.
[96.] To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference, and by the conclusions of the members of the working group. That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western Europe which have been set out so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need to be addressed by the UK...
[109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration. The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues. The problems will not go away and may well come again before the European Court sooner rather than later.”
36. In his dissenting judgment, Lord Justice Thorpe considered that the foundations of the judgment in Corbett v. Corbett were no longer secure, taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific, medical and social change.
“[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth...
[160.] The present claim lies most evidently in the territory of the family justice system. That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have allowed this appeal.”
He also noted the lack of progress in domestic reforms:
“[151.] ...although the [interdepartmental] report has been made available by publication, Mr Moylan said that there has since been no public consultation. Furthermore when asked whether the Government had any present intention of initiating public consultation or any other process in preparation for a parliamentary Bill, Mr Moylan said that he had no instructions. Nor did he have any instructions as to whether the Government intended to legislate. My experience over the last 10 years suggests how hard it is for any department to gain a slot for family law reform by primary legislation. These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s 11(c) either strictly, alternatively liberally as the evidence and the submissions in this case justify.”
37. In January 2002, the Government presented to Parliament the document “Civil Registration: Vital Change (Birth, Marriage and Death Registration in the 21st Century)” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “through life” record:
“In time, updating the information in a birth record will mean that changes to a person's names, and potentially, sex will be able to be recorded.” (para. 5.1)
“5.5 Making changes
There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a record has been created, the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established. Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence. The final records contains the full original and corrected information which is shown on subsequently issued certificates. The Government recognises that this can act as a disincentive. In future, changes (to reflect developments after the original record was made) will be made and formally recorded. Documents issued from the records will contain only the information as amended, though all the information will be retained. ...”
38. Liberty updated the written observations submitted in the case of Sheffield and Horsham concerning the legal recognition of transsexuals in comparative law (Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021, § 35). In its 1998 study, it had found that over the previous decade there had been an unmistakable trend in the member States of the Council of Europe towards giving full legal recognition to gender re-assignment. In particular, it noted that out of thirty seven countries analysed only four (including the United Kingdom) did not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person. In cases where gender re-assignment was legal and publicly funded, only the United Kingdom and Ireland did not give full legal recognition to the new gender identity.
39. In its follow up study submitted on 17 January 2002, Liberty noted that while there had not been a statistical increase in States giving full legal recognition of gender re-assignment within Europe, information from outside Europe showed developments in this direction. For example, there had been statutory recognition of gender re-assignment in Singapore, and a similar pattern of recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the States of the United States of America. It cited in particular the cases of Attorney-General v. Otahuhu Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and Australia transsexual persons' assigned sex was recognised for the purposes of validating their marriages: In the latter case, Mr Justice Chisholm held:
“I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It would take the law in a direction that is generally contrary to development in other countries. It would perpetuate a view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible suffering on people who have already had more than their share of difficulty, with no benefit to society...
...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'.
To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage...
For the purpose of ascertaining the validity of a marriage under Australian law the question whether a person is a man or a woman is to be determined as of the date of marriage...”
40. As regarded the eligibility of post-operative transsexuals to marry a person of sex opposite to their acquired gender, Liberty's survey indicated that 54% of Contracting States permitted such marriage (Annex 6 listed Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden, Switzerland, Turkey and Ukraine), while 14% did not (Ireland and the United Kingdom did not permit marriage, while no legislation existed in Moldova, Poland, Romania and Russia). The legal position in the remaining 32% was unclear.
41. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7 December 2000, provides:
“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”
VIOLATED_ARTICLES: 12
8


ITEMID: 001-81979
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KIRILENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Viktor Ivanovich Kirilenko, is a Ukrainian national who was born in 1939 and lives in Simferopil. The Ukrainian Government (“the Government”) were represented Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights.
Prior to July 1983 the applicant had been certified as falling within the “second category of invalidity” (друга група інвалідності) on account of a haematological disease. He was receiving a disability pension and earning occasional additional income collecting and selling wild produce.
In July 1983 the applicant sustained an injury (concussion and bone fractures) in a car accident caused by Mr K., an employee of the Auto-transport unit of the Simferopil Health Department (“the ATU”; Автогосподарство Симферопольського міського управління охорони здоров’я), who was subsequently sentenced for dangerous driving.
In the aftermath of the accident, the applicant was certified as falling within the “first category of invalidity” on account of the injury. However, in 1985 a medical commission restored him into the “second category”, having found that the remaining effects of the injury could not justify the attribution of the “first category”. The applicant, however, ceased collecting wild produce allegedly due to deterioration of his health condition.
In January 1984 the applicant instituted civil proceedings against the ATU seeking compensation for his medical expenses and the loss of earnings.
On 29 January 1985 the Kyivsky District Court of Simferopil (“the District Court”; Київський районний суд м. Симферополя) allowed the applicant’s claims in part. On 4 March 1985 the Crimean Regional Court (Кримський обласний суд) upheld this judgment and it became final.
In 2001, pursuant the introduction of the new cassation procedure, the applicant lodged a cassation appeal against the above rulings, seeking higher payments. On 18 December 2001 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
In November 1990 the applicant instituted civil proceedings against the ATU seeking additional compensations. On 10 January 1992 the District Court rejected this claim as unsubstantiated. On 9 March 1992 the Crimean Regional Court upheld this judgment and it became final.
On 16 September 1996 the applicant instituted civil proceedings seeking to obtain additional compensation for the loss of earnings, medical and rehabilitation expenses and other payments from the ATU. In the course of the proceedings, the applicant amended his claims on three occasions.
On 6 March 1997 the District Court rejected the applicant’s claims, finding that the applicant’s health condition was not connected to the accident and his disability category was not affected by the injury sustained.
On 9 April 1997 the Supreme Court of the Crimea (Верховний суд Автономної Республіки Крим) upheld this judgment and it became final.
On 1 August 1997 the Supreme Court of the Crimea quashed the above rulings following a protest (an extraordinary appeal) introduced by its Acting President and remitted the case for a fresh consideration. In particular, the court found that additional investigation was necessary into the specific health damage caused by the accident.
In the course of subsequent proceedings, the courts ordered the total of six independent medical expert opinions, some of which contradicted the others, and interviewed six specialists involved in the applicant’s treatment.
On 1 July 1998 the District Court rejected the applicant’s claims, finding, based on a medical assessment, that the accident had certain lasting effects on the applicant’s health, but they required no special treatment and were not linked to the damage claimed.
On 19 August 1998 the Supreme Court of the Crimea quashed this decision and remitted the case for fresh examination. Subsequently, the court assumed first instance jurisdiction over the case.
On 29 June 1999 the Supreme Court of the Crimea rejected the applicant’s claims. It found that part of them had been finally adjudicated in other proceedings brought in 1984 and 1990 (see sections B and C above). As regards the other claims, the court found no causal link between the effects of the accident on the applicant’s health and the expenses claimed. It further dismissed the claim for loss of earnings as unsubstantiated, since the applicant had subsisted on disability pension, while his produce collecting activities could not be regarded as “earnings”.
On 27 October 1999 the Supreme Court of Ukraine quashed the judgment of 29 June 1999 and remitted the case for a fresh consideration. It instructed the trial court to assess the degree of work fitness lost by the applicant as a result of the accident, without regard to his prior disability, and to make an additional investigation into the importance of the produce collection as a source of the applicant’s income.
On 18 April 2001 the Supreme Court of the Crimea, relying on a new medical expert opinion, decided that the injury resulting from the accident was sufficient to entitle the applicant to a “third category invalidity” (третя группа інвалідності) and that the applicant’s produce collecting activities could qualify as “lost earnings”. Therefore, the court awarded the applicant 1,128 hryvnyas in compensation. The applicant appealed, considering this sum insufficient.
On 20 June 2001 the Supreme Court of Ukraine quashed this judgment and remitted the case for a fresh consideration, referring to several contradictions in the opinions of medical experts as to the applicant’s loss of work fitness and challenging the method of calculating the award.
On 29 May 2002 the Crimean Court of Appeal (formerly the Supreme Court of the Crimea) rejected the applicant’s claims as unsubstantiated. The applicant appealed in cassation.
On 25 July 2002 the court suspended the applicant’s cassation appeal and proposed that he rectify its formal shortcomings. On 2 September 2002 the court returned the appeal as “not lodged” on account of the applicant’s failure to rectify the above shortcomings. The applicant did not challenge this decision.
Subsequently the applicant unsuccessfully attempted to re-lodge his appeal in cassation after the expiry of the statutory time-limit.


ITEMID: 001-82656
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KRASYUCHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1924 and lives in Voronezh.
5. The applicant sued the local social welfare authority (Комитет по социальной защите населения администрации Советского района г. Воронежа) claiming readjustment of her old-age pension. On 23 February 2001 the Sovetskiy District Court of Voronezh granted her claim and awarded her 2,562.44 Russian roubles. No appeal was brought against the judgment, and it became final and enforceable ten days later.
6. On 5 March 2001 the bailiff initiated enforcement proceedings.
7. On 26 July 2001 the bailiff terminated the proceedings because the defendant had not had sufficient funds to pay the judgment debt.
8. On 2 December 2005 the monies due to the applicant were transferred into her bank account.
VIOLATED_ARTICLES: 6


ITEMID: 001-4769
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TOOMEY v. THE UNITED KINGOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen, born in 1958 and he is currently in prison in Derbyshire.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 December 1983 the applicant pleaded guilty to assault occasioning actual bodily harm and to wounding with intent. Both charges related to unprovoked and serious assaults on two different women, the latter victim having been beaten and stabbed in the neck three times by the applicant. The applicant received a life sentence on the latter charge and no separate sentence on the former. The trial judge had before him a medical report on the applicant which showed an abnormal encephalogram with symptoms of disturbed behaviour associated with abnormal electrical activity in the temporal lobe of the brain. A psychiatric report dated 21 November 1993 considered that anticonvulsive drugs were required for this condition, that antidepressants were required for his recurrent depression and that he needed observation in secure surroundings where he could have further tests, surveillance and study. The trial judge made it clear that the imposition of the life sentence was to ensure that the applicant would not be a liberty until those responsible for his supervision were satisfied that the risk he posed to the public, and particularly to young women, was gone. The Court of Appeal rejected his appeal against sentence by judgment dated 7 June 1984. That court described the attacks as “horrifying” and noted that, while the applicant had initially denied the attacks, he had then stated that he had committed them in revenge for a sexual assault on him by a man when he was 18 years old.
The applicant was subsequently diagnosed as suffering from a psychopathic disorder within the meaning of the Mental Health Act 1983 and in July 1985 he was transferred under section 47 of the 1983 Act to a psychiatric hospital. In April 1989 the applicant was transferred back to the prison system because he was not deemed suitable for treatment. Following a Parole Board review, he was transferred in January 1992 to HM Channing Wood prison which was a progressive move to less secure Category C conditions. The applicant completed his non-vocational industrial skills qualifications there. Following another Parole Board review, he was transferred in March 1994 to open conditions in HM Leyhill prison where he completed a “supervised resettlement and lifer skills” course.
On 7 September 1995 a discretionary life panel (“DLP”) of the Parole Board reviewed the applicant's case. A number of very positive reports were before the DLP, all referring to his past sexual identity problems and all (but one) recommending without reservation his release on licence. The report of the Governor of HM Leyhill prison noted that the applicant accepted full responsibility for his behaviour and sincerely regretted what he had done and concluded that the risk posed by the applicant on release would be minimal. The principal officer in the “lifer unit” at HM Leyhill prison indicated that the applicant had been working in the community and had had two home leaves all of which had gone well. His behavioural record was excellent and his performance was first class. The psychologist's report dated 20 March 1995 considered the applicant's attitude to his offences to be appropriate. It detailed, under the heading “Insight into offence related behaviour”, the applicant's sexual identity problems which included a prior and long period of transsexualism and a homosexual relationship in prison. However, it was noted that the applicant had worked through these matters and had now come to terms with his male heterosexual identity.
The psychiatric report dated 27 March 1995 considered that the applicant had been angry because of his frightening childhood, his being sexually assaulted when he was young, his serious speech impediment, he felt trapped at the time of the offences in an unhappy common-law marriage and as a result of his transsexual feelings. It was felt that a combination of this anger and his inability to communicate was the explosive combination that led to the offences. That report detailed the reasons for his sexual identity issues and, noting that these issues had been resolved by the applicant and that he had a stable relationship for a number of years with a woman, the psychiatrist could not see how he could be a danger on release. Two probation officer reports were equally supportive of the applicant's release. A third probation report did provisionally express some reservations about the depth of the applicant's understanding of his offences referring, inter alia, to his sexual identity problems and noting that such problems were considered in many previous reports to have been one of the main factors in the applicant's offences. The DLP directed the applicant's release on licence, one of the conditions being that he reside at a probation hostel.
The applicant was conditionally released on 18 September 1995. On 22 November 1995 the probation service submitted a report outlining certain concerns about the applicant's behaviour. It was noted that the applicant had been observed by hostel staff taking an undue interest in a woman residing opposite the hostel. The probation service had also found a bread knife, a pair of binoculars, a pair of handcuffs, women's clothing, women's clothing catalogues and a fetishist catalogue in the applicant's room. Concern was also expressed about the applicant's relationship with prostitutes. Given his offences and his history of mental instability, the probation service no longer felt in a position to be able to supervise him safely in the community and recommended his immediate recall.
On 23 November 1995 the applicant's licence was revoked by the Secretary of State under Section 39(2) of the Criminal Justice Act 1991 and he was taken to prison. The DLP confirmed his recall on 1 December 1995. On the applicant's initiative, his case was re-examined by the DLP on 27 March 1996, the DLP hearing the applicant and his counsel together with evidence from a psychologist and psychiatrist. The DLP found no convincing explanation from the applicant for most of the matters noted in the probation service report. At the request of the applicant's counsel, the panel recommended that certain investigations be carried out. These included a full neurological and a full neuro-psychological assessment, EEG and CAT scans, an investigation of the applicant's sexual identity and possible fetishism and, thereafter if appropriate, investigation of a possible sexual motive for the offences for which he had been convicted in 1983. The panel also recommended assessment for the Sex Offenders Treatment Programme (“SOTP”) and consideration of the applicant's transfer for treatment if a sexual motive for his offences was established. These recommendations were accepted by the Secretary of State.
Prior to his transfer to HM Albany prison, the applicant requested clarification from the prison authorities of whether he was being transferred to HM Albany prison to take part in the SOTP or to be assessed for such a course. The reply stated that “you are going to do a SOTP course”. On 24 July 1997 the applicant was moved to HMP Albany prison. On 8 and 15 September 1997 the applicant requested copies of the results of various tests he had already undergone and information on further tests to be done. He was informed, inter alia, that he was on the waiting list for the Penile Polygraph (PPG) assessment. Further to another query the applicant was furnished, on 1 October 1997, with certain results of previous tests and with the question and answer leaflet on the PPG test (detailed above at “Relevant domestic law and practice”). On 29 September 1997 the applicant met with a senior psychologist who explained to him the proposed PPG procedure and the nature of the material which it was planned to use. The purpose of doing so was to ensure that the applicant agreed to the PPG assessment and was prepared for it in order to avoid extreme reactions during the test which would limit its usefulness. The applicant was reticent but agreed to participate in the test.
On 3 October 1997 the applicant underwent his first PPG test and it lasted 1 hour and 20 minutes. A female trained technician conducted the tests. The applicant was put in a small room without windows and with bolts both inside and outside the door. Two electrodes were attached to his left index and middle finger. A video recorder was adjusted to the level of his face and the operator left the room although monitoring of the applicant was possible via a camera and a microphone. The applicant then had to attach a sensor clip to his penis and to leave his underpants and trousers removed throughout the test.
The applicant was shown three categories of material. The first category (designed to discover any age preferences) was a set of slides comprising nude images of young children, pubescent and adult males and females. The images were produced in the United States for the purpose of the PPG assessment and all images were single frontal nudes, either sitting, standing or prone but not posed in a deliberately erotic fashion. The second category was a set of video sequences depicting consensual sex, rape and non-sexual violence. The sequences were also produced for the PPG assessment. The third category was a set of slides depicting young men and women in more erotic poses than in the first set of slides, elderly naked women in relatively non-erotic poses and women in bondage poses. The latter images were all obtained from soft-core pornographic magazines such as could be openly and legally published in specialist shops. The slides were left on for about 20 seconds and each was shown approximately six times. Each video lasted about a minute. The videos and slides were shuffled, being shown in no particular order. The television on which the slides and videos were shown was at eye level about 18 inches from his face and the applicant's head was kept steady by a headrest on the back of the chair. The test then continued with a 'key score' pad, the applicant being requested to score from 0-9 his sexual attraction to the same slides which he was again shown, each slide being shown six times.
His second PPG test was conducted on 6 October 1997. It lasted 40 minutes, was similar to the first but the applicant was shown slides only. The slides were each shown six times and in no particular order.
The document headed “PPG results” for 3 October 1997 noted that the applicant had consented to the test because he wanted a transfer from Albany Prison. As regards the slides, it was recorded that the greatest response of the applicant was to male children and that his responses to adults was low. As to the videos, it was noted that his response to aggression was higher than would be expected. It was also noted that the applicant was not happy with the violent scenes as it brought back bad memories of the offences. The general remarks recorded in his test results after 6 October 1997 was that his preferences were “non-deviant” given that his greatest responses was to adult females.
In a report dated 19 November 1997 a forensic psychologist from Albany prison assessed the applicant based on the PPG test results and other formal and informal assessment procedures. It was noted that the applicant did not have an “index” conviction including a sex offence, an index offence which included an unconvicted sex offence, a previous conviction for a sex offence nor any other indications that his sexual behaviour could, at any point, be deemed inappropriate. However, given the reasons for his recall, the report focussed upon behavioural trends present which may or may not imply a future sex offence. The test disclosed no strong indication that there were risk factors and indicated that he did not have a deviant PPG profile. In the circumstances, together with the absence of any indication of substance abuse or of any relevant previous convictions of note, the conclusion was that the applicant presented a low risk case of re-offending.
As to the items found in his possession prior to recall, this report noted they provided no substantive evidence on which to base a risk of re-offending. It was noted that the initial PPG assessment demonstrated a mysogynistic profile rather than one which is directly indicative of his deriving sexual pleasure from inflicting aggressive action upon others. Given this initial assessment, the second PPG test had been tailored to focus on that mysogynistic profile and the second test had indicated that his profile was non-deviant. The report therefore concluded that the principle concern in the applicant's case was his resentment of females rather than a pro-active desire to harm them for sexual gratification. As to the applicant's convictions, the psychologist noted that although there was an opportunity for, there was no evidence of, sexual interference with the victims. It was considered not insignificant that the victims were both women but the offences should not be considered for that reason sexual assaults. That psychologist did not consider the applicant a candidate for the SOTP. However, given the applicant's deep seated resentment of females in his life, it was highly recommended that the applicant continue the Enhanced Thinking Skills Programme he had begun and pursue other relevant treatment programmes.
B. Relevant domestic law and practice
A document entitled “Your questions and answers about the PPG” produced by the prison authorities reads as follows:
“What is the PPG?
It is a test that helps us to understand the direction and extent of a man's sexual interest.
What is the point of the test?
It is important for us to know if you are aroused inappropriately, as it will help us to tailor the treatment to best help you.
How does it work?
You will be asked to put a clip around your penis. You will be able to feel it in place but it will not hurt. The clip can detect changes in the size of your penis.
Who will carry out the test?
The test will be carried out by a trained psychologist. Your privacy will be respected at all times, and when you are undergoing the test you will be sitting alone in a separate room.
Do I have to do the test?
It is an important part of the Sex Offender Programme. We feel that we cannot successfully treat people's offending if we do not have full information about the nature and extent of their sexual interest.
What will I have to do?
After you have fitted the PPG clip you will sit in front of a television and you will be shown some pictures of males and females of various ages. You will also be shown some movies. The pictures you will be shown are the same for everybody, and nothing is more explicit than the kinds of things you might ordinarily see on the TV or in the newspapers.
Is it safe?
Every care is taken to ensure your safety. The equipment is made to very high standards and is regularly tested. It would be impossible for it to give you a shock - even in the unlikely event of something breaking down the voltages used are very low and quite safe. The equipment is fully sterilised every time it is used and so no diseases can be passed on.
Will I be given electric shocks.
No. Electric shock treatment IS NOT USED.
Are the results confidential?
The PPG is an important part of the Sex Offender Programme and it is important that the Tutors have as much information about the people on the programme as is possible. The programme staff however will NOT gossip about your results to other staff or to inmates.
What if the test shows an interest that does not exist?
Men can have an abnormal sexual interest for a lot of reasons, and just because they have an unusual interest it does not necessarily mean that they will act on it. But if someone has offended in a particular way and his PPG results show a sexual interest in that direction we know that to help him avoid further offending we must help him to do something about the sexual interest.
Can the PPG prove that I did (or didn't) commit an offence?
NO. It is not possible to say that someone is guilty of an offence simply because they show sexual interest in that direction. The point of a PPG is to help plan the treatment of someone who is known to have committed an offence.”


ITEMID: 001-94852
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KAMILOVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1941 and lives in Gevgelija.
5. On an unspecified date in 1996, the applicant brought a civil action against Mr D. (“the debtor”) claiming restoration of the outstanding debt related to a loan that she had given to him in 1995.
6. On 29 April 1998 they reached a court settlement (судско порамнување, “the court settlement”) under which the debtor was required to pay the outstanding debt in equal monthly instalments.
7. On 19 January 1999 the Gevgelija Court of First Instance (“the first- instance court”) granted the applicant's request of 11 January 1999 ordering enforcement of the court settlement, less DM 300 which the debtor had meanwhile paid. The applicant proposed an inventory, valuation and public sale of movable and immovable property of the debtor. On 17 May 2000 she further specified her request as concerning a house and plot of land (“the property”). In this connection, she submitted an extract from the land registry (“the registry”) dated 21 October 1999 attesting the debtor's title to the property. She also requested the first-instance court to record a charging order over the property (да стави прибелешка врз имотот на должникот) so as to secure her claim.
8. On 15 June 2000 the first-instance court ordered valuation of the property. It was carried out on 10 October 2000. The first-instance court's decision in this respect dated 22 March 2001. It was served on the debtor on 28 November 2006.
9. Between 28 November 2006 and 17 April 2007, the first-instance court ordered four adjournments because of the debtor's absence.
10. By submissions of 25 April 2007 and 5 June 2007 respectively, the applicant informed the first-instance court that the debtor had transferred the property to his father's possession on the basis of a court decision of 14 March 2001. She requested the first-instance court to continue with the enforcement since the debtor had regained possession of the property after his father died.
11. No further actions were taken for enforcement of the applicant's claim.
12. Section 3 of the Enforcement Act (“the Act”) of 2005 (Закон за извршување) provides that bailiffs (извршители) carry out the enforcement.
13. Section 238 of the Act provides that the enforcement proceedings instituted before the Act entered into force are to continue, until 31 December 2007, under the Enforcement Proceedings Act of 1997. Thereafter, the 2005 Act applies.
VIOLATED_ARTICLES: 6


ITEMID: 001-105236
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FRUNI v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Remainder inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1952 and lives in Košice.
6. In 1995 the applicant became one of the executives of a limitedliability company, A.
7. In 1997 the applicant joined a joint-stock company, B., and became the Chairman of its Board of Directors. Later that year, company B. acquired a share in company A.
8. Companies A. and B. were private financial institutions involved mainly in soliciting and accepting money from the public on a large scale for the promise of unusually high returns. Companies A. and B. were not banks and operated on the basis of various private-law contracts.
9. On 31 January 2002 the applicant left Slovakia for the Republic of Croatia after terminating his business activities in companies A. and B.
10. The applicant was subsequently charged with fraud and other offences in Slovakia in connection with his business activities in companies A. and B., arrested in Croatia (1 March 2002) and extradited to Slovakia (26 June 2002), where he was detained pending trial and subsequently tried and convicted. The details are described below.
11. In 2003 legislation (Law no. 458/2003 Coll.) was enacted in Slovakia for the establishment of a Special Court (Špeciálny súd) with criminal jurisdiction ratione personae over certain public officials and ratione materiae over corruption, organised crime and other serious offences.
Appeals against judgments and decisions of the Special Court would be determined by (the Special Division of) the Supreme Court (Najvyšší súd).
12. On 1 January 2006 the new Criminal Code (Law no. 300/2005 Coll. - “the new CC”) and the Code of Criminal Procedure (Law no. 301/2005 Coll. - “the new CCP”) entered into force to replace the old Criminal Code (Law no. 140/1961 Coll., as amended - “the old CC”) and the old Code of Criminal Procedure (Law no. 141/1961 Coll., as amended - “the old CCP”).
The new CC provides for a new penalty scale for the offences of which the applicant was convicted.
The new CCP provides for new rules in respect of the maximum permitted length of pre-trial detention.
13. On 20 May 2009 the Constitutional Court (Ústavný súd) found that the legislation establishing the Special Court was contrary to the Constitution.
14. On 17 July 2009 the judgment (nález) of the Constitutional Court was published in the Collection of Laws, upon which the impugned legislation ceased to have legal effect.
15. At the same time, on 17 July 2009, a new piece of legislation (Law no. 291/2009 Coll.) entered into force, establishing the Specialised Criminal Court (Špecializovaný trestný súd). It has criminal jurisdiction to try serious offences such as, for example, wilful, deliberate and premeditated murder, manipulation in public procurement, counterfeiting, corruption, organised crime and terrorism. Except where provided otherwise, the Specialised Criminal Court replaced the Special Court.
The details are described below.
16. On 4 February 2002 a criminal investigation was commenced into actions related to the business of companies A. and B.
17. On 28 February 2002 the applicant and two others were charged with conspiracy (Article 9 § 2 of the old CC), fraud (Article 250 §§ 1 and 5 of the old CC), violation of binding business practices (Article 127 § 1 of the old CC) and unauthorised business activities (Article 118 §§ 1 and 3 of the old CC).
18. The charges were based on the suspicion that, through their involvement in companies A. and B., they were criminally liable for misleading advertising and providing banking services without a banking licence and for accepting and failing to repay the equivalent of some 395,000,000 euros’ (EUR) worth of investment from some 170,000 clients with the knowledge that it was economically impossible to repay them.
19. On 20 December 2004 the Supreme Court ruled that the victims were not allowed to take part in the proceedings as third parties claiming damages. As to the exercise of the remainder of their procedural rights, common legal representatives were appointed.
20. On 8 June 2005 the Special Prosecutions Department (Úrad špeciálnej prokuratúry) of the Office of the Prosecutor General (Generálna prokuratúra - “the Special Prosecutor”) indicted the applicant to stand trial on the above charges in the Banská Bystrica Regional Court (Krajský súd), which at that time had the powers of the Special Court (s právomocou Špeciálneho súdu).
21. Without a formal decision, the case file was later transmitted to the Special Court in Pezinok.
22. At the pre-trial stage, on 13 August 2002, the applicant’s lawyers were denied access to certain information in the investigation file on the ground that giving them access could lead to obstruction or endangerment of the investigation. That position was upheld by the Košice Regional Office of Public Prosecution (Krajská prokuratúra – “the Regional Prosecutor”) in a letter of 9 January 2003.
23. On completion of the pre-trial stage, on weekdays between 28 February and 12 April 2005, from 8.30 a.m. to 11.30 a.m. and from 1 p.m. to 3 p.m., the applicant was allowed to consult the case file. It then comprised some 58,500 pages. The total time allotted for the consultation amounted to 130 hours.
24. On 6 February 2002 the Bratislava Police Institute of Criminalistics (Kriminalisticko-expertízny ústav) was appointed to secure data in electronic form from the information systems of companies A. and B. This was done by means of inspections of the premises of companies A. and B.
25. Between 11 and 16 February 2002 statements were taken from six witnesses.
26. On 23 April 2002 C. was asked to analyse financial data concerning companies A. and B. in the capacity of an expert on accounting and taxation.
27. Pursuant to a Decree on Appointment (menovací dekrét) issued by the President of the Regional Court on 17 September 2002, C. was appointed on the same date as a sworn expert and made a solemn declaration in that capacity.
28. Prior to his indictment (see paragraph 20 above), on 1 June 2005, the Special Prosecutor upheld a decision of the investigator to dismiss a request by the applicant for a number of items of further evidence to be taken.
29. During his trial, on 27 February and 6 June 2006, the applicant asked for some ninety items of additional oral and documentary evidence to be taken.
30. On 22 November 2006 the Special Court ruled that the evidencetaking be concluded.
31. In the judgment of 10 January 2007 (see paragraph 36 below), the Special Court held that the applicant’s requests for further evidence to be taken had to be refused, partly because they concerned matters which had already been unequivocally established as fact and partly because they concerned matters that were not relevant. The Special Court concluded that it had taken all evidence necessary for a lawful decision.
32. On 8 February 2006 the Supreme Court upheld a first-instance decision of the Special Court to dismiss the applicant’s challenge to the jurisdiction of the Special Court. The applicant had mainly contended that he had been indicted in the Regional Court and that no formal decision had been taken to transfer the case to the Special Court. The Supreme Court found that all statutory requirements for the Special Court to have jurisdiction over the applicant’s case had been met and that the case had been transferred to the Special Court by operation of law, which necessitated no formal decision.
33. The applicant brought a challenge of bias against Judge D., who was the President of the Special Court Chamber trying him. The applicant alleged that Judge D. had previously taken unlawful decisions in respect of his detention. The challenge was dismissed as manifestly ill-founded by the Special Court on 11 September 2006 and, following an interlocutory appeal by the applicant, by the Supreme Court on 19 October 2006.
34. The applicant also brought challenges of bias against the President and the members of the Supreme Court Chamber trying him. The applicant argued that they had previously been involved in deciding on his detention and that, at a hearing, the President had remarked that he “[was] fed up with procedural motions being brought by [one of the applicant’s lawyers]”. The challenges were dismissed as unfounded by the Supreme Court on 22 March and 30 May 2007.
35. A subsequent complaint by the applicant under Article 127 of the Constitution was declared inadmissible as manifestly ill-founded on 6 March 2008. It was noted that the mere fact that a judge had decided on detention did not disqualify him or her from determining the merits in the absence of special circumstances, and that the latter had not been established in the applicant’s case. The defence strategy was found to be marked by attempts to obstruct the proceedings. Against that background, the remark of the President of the Chamber of the Supreme Court was within his prerogative, namely that of organising the proceedings and managing the conduct of the parties.
36. On 10 January 2007 the Special Court found the applicant guilty of conspiracy and fraud under the provisions of the old CC and sentenced him to eleven years and six months’ imprisonment.
37. The applicant appealed, arguing (i) that the Special Court was unconstitutional and did not provide guarantees of a fair trial before an impartial and independent tribunal established by law; (ii) that in any event it had been unlawful to transfer his case from the Regional Court to the Special Court without a judicial decision; (iii) that he had not had adequate time to study the case file and thus to prepare his defence; (iv) that the witness evidence and other evidence obtained through inspections of business premises (see paragraphs 24 and 25 above) before he was charged (see paragraph 17 above) was procedurally inadmissible; (v) that it was unlawful for the court to take into account pre-trial statements of witnesses who had not been heard by the court in person; (vi) that further evidence should have been taken as he had proposed; (vii) that the applicable procedures had not been followed in the appointment of C. as an expert witness and in the preparation of his report; (viii) that he had not engaged in any unauthorised business; and (ix) that in any event he should have been tried under the new CC, as its provisions were more lenient.
38. On 30 May 2007 the Supreme Court dismissed the appeal. It held (i) that the jurisdiction of the Special Court had been duly established by law; (ii) that C. had been properly appointed after other sworn experts had excused themselves; (iii) that other persons had merely assisted C. in the preparation of his report but had not themselves provided any expert evidence; (iv) that the witness statements and other evidence taken prior to charging the applicant had been obtained lawfully in the framework of criminal proceedings against one or more persons unknown; (v) that no additional evidence was necessary in order to establish the relevant facts; (vi) that the defence strategy had been obstructive and had contributed to the length of the proceedings and detention; (vii) that taken as a whole the new CC was not more lenient for the applicant than the old CC; and (viii) that – in the circumstances – the time available to the defence to inspect the case file had been adequate. As to the remainder of the applicant’s arguments, the Supreme Court fully endorsed the reasons provided by the Special Court.
39. On 29 April 2008 the Constitutional Court declared inadmissible the applicant’s complaint under Article 127 of the Constitution, in which he had raised in principle similar arguments to those raised in his appeal. Among a number of other legal provisions, he relied on Article 50 § 6 of the Constitution (application of subsequent more lenient criminal legislation).
40. The Constitutional Court found that, in part, the applicant’s arguments were to be examined in the framework of proceedings on an appeal on points of law (dovolanie) and that, as to the remainder, there was no constitutionally relevant arbitrariness in the impugned decisions of the Special Court and the Supreme Court.
41. On 28 February 2002 the Regional Prosecutor requested, and the Košice I. District Court (Okresný súd) issued, a warrant for the applicant’s arrest on the charges mentioned above.
42. On 1 and 2 March 2002 respectively the applicant was arrested in Croatia and remanded (by the Split County Court) in custody pending extradition to Slovakia.
43. On 26 June 2002 the applicant was handed over to the Slovakian authorities to be prosecuted in Slovakia. He was subsequently detained in Slovakia pending trial there. The details are described below.
44. On 26 June 2002 a single judge of the District Court remanded the applicant in custody pending trial to prevent him from absconding (Article 67 § 1 (a) of the old CCP) or interfering with the course of justice (Article 67 § 1 (b) of the old CCP).
The lawfulness of the applicant’s detention was subsequently examined numerous times in the context of his requests for release (see paragraphs 45 to 47 below) and requests by the prosecution service for extension of his detention (see paragraph 48 below).
45. On 30 September 2002 the applicant made a submission in which he argued, inter alia, that his continued detention after 1 September 2002 had been unlawful, since on that day the six-month period for pre-trial detention (from the date of his arrest in Croatia on 1 March 2002) had expired and no extension of his detention had been authorised. He accordingly sought to be released.
The Regional Prosecutor subsequently sought a judicial ruling that the period of the applicant’s detention in Croatia be deducted from his detention time in Slovakia.
The District Court granted the request of the prosecution service and dismissed the request of the applicant on 21 and 28 October 2002, respectively.
Following the applicant’s interlocutory appeals, the matter was finally resolved by the Regional Court on 18 November 2002 when it upheld the District Court’s ruling to the effect that the applicant’s detention time in Croatia did not count as pre-trial detention for the purposes of the timelimits on its maximum duration in Slovakia.
46. On 5 December 2002 the District Court dismissed the applicant’s further request for release, finding that, although it was no longer necessary to keep him detained to prevent him from interfering with the course of justice, there was a continuing need for his detention to prevent him from absconding.
47. The applicant’s further requests for release were dismissed at first instance on 16 December 2004 (by the Regional Court) and 21 July 2005 (by the Special Court) and, following interlocutory appeals by the applicant, on 13 January 2005 and 25 July 2006 (by the Supreme Court), respectively.
The latter decision was made after a previous decision of the Supreme Court had been quashed by the Constitutional Court on account of a technical error.
48. Extensions of the applicant’s detention were authorised by decisions of 21 June 2004 (until 26 December 2004), 20 December 2004 (until 26 June 2005), 21 June 2005 (until 26 January 2006), 26 January 2006 (until 31 March 2006), 23 March 2006 (until 26 June 2006) (see below for details), on 26 June 2006 (until 26 October 2006) (see below for details) and 22 February 2007 (until 26 June 2007).
49. The courts observed that the applicant stood accused of wideranging criminal activity and that an extensive amount of evidence had to be obtained and assessed, including statements from a very large number of witnesses. Some of the evidence was abroad and had to be obtained by means of international judicial assistance. The length of the applicant’s detention was therefore justified.
50. As to the existence of a risk that the applicant would abscond, the courts held that it was of crucial importance that when leaving Slovakia the applicant had known that criminal proceedings concerning his activities might commence shortly. The applicant had not been staying at his habitual residence in Slovakia and his whereabouts in Croatia had been unknown even to his family.
51. The courts observed that if convicted the applicant faced a heavy penalty, that he had four passports, that his financial situation would allow him to settle in any country, and that there were indications that he would do so in a country out of the reach of Interpol.
52. These reasons were endorsed by the Constitutional Court in its decision of 23 August 2005 to declared inadmissible as being manifestly illfounded the applicant’s complaint under Article 127 of the Constitution, in which, represented by a lawyer, the applicant had sought to challenge the decision of the Supreme Court of 20 December 2004 (see paragraph 48 above), arguing that his continued detention had been unjustified and as such contrary to Article 17 §§ 2 and 5 of the Constitution and Article 5 § 1 (c) of the Convention.
53. In the decision of 23 March 2006 (see paragraph 48 above) concerning the extension of the applicant’s pre-trial detention, the Supreme Court acceded to a request by the President of the Special Court Chamber trying the applicant and extended the applicant’s detention until 26 June 2006.
54. At the same time, the Supreme Court expressed the opinion that the limitation on the maximum duration of pre-trial detention to forty-eight months under the new CCP applied to the applicant’s case by operation of the constitutional principle of equality before the law, although, pursuant to the transitional provisions of the new CCP, the applicant’s trial and detention continued to be governed by the old CCP, which allowed detention pending trial to last at most five years. Therefore, as the applicant’s pre-trial detention in Slovakia had commenced on 26 June 2002, a further extension after 26 June 2006 would not be permissible.
55. On 7 June 2006 Judge D. of the Special Court requested that the Supreme Court authorise an extension of the applicant’s detention until 26 October 2006.
56. In his observations in reply, the applicant, assisted by his lawyer, relied on the Supreme Court decision of 23 March 2006, considered the matter to be res judicata and asked for the request to be dismissed.
Moreover, the applicant submitted that he had not been heard in person in any of the previous proceedings on extension of his pre-trial detention and argued that this was contrary to his right to adversarial proceedings and equality of arms.
57. The request fell to be determined by a different bench of the Supreme Court which, on 20 June 2006, summoned the applicant and his lawyer to a public session (verené zasadnutie) on the extension of the applicant’s pre-trial detention, to be held on 26 June 2006.
58. On 26 June 2006, prior to the scheduled public session, the Supreme Court established that the summons had not been served on the applicant’s lawyer within the procedural time-limit of at least five days before the session. The Supreme Court held that in those circumstances the public session could not take place and the matter had to be decided in private session (neverejné zasadnutie), that is to say behind closed doors.
59. Nevertheless, before opening the private session, the Supreme Court allowed, and the applicant used, the opportunity to address the court orally. The applicant was assisted by three defence lawyers and one substitute defence lawyer. He made various submissions, including that he had never had any intention of absconding.
60. Later on 26 June 2006, in private session, the Supreme Court extended the applicant’s pre-trial detention until 26 October 2006. The Supreme Court explained in detail that the offences of which the applicant stood accused fell within the category of “extremely serious offences” (obzvlášť závažný trestný čin) within the meaning of the old CC and the old CCP, that pre-trial detention on charges of such offences could last up to five years under the old CCP and that the old CCP applied.
In that context, the Supreme Court referred to a decision of the Constitutional Court of 17 May 2006 in an unrelated but similar case, file no. III. ÚS 164/06 (see paragraph 95 in “Relevant domestic law and practice” below and Martikán v. Slovakia (dec.), no. 50184/06, 17 March 2009), in which the Constitutional Court had upheld a previous decision of the Supreme Court of 5 April 2006 interpreting and applying the relevant law in line with the decision taken in the applicant’s case.
61. The applicant then requested that the Minister of Justice challenge the decision by way of an appeal on points of law and lodged a complaint with the Constitutional Court under Article 127 of the Constitution. He argued that his detention beyond the forty-eight-month time-limit under the new CCP was unlawful and complained that there had been no public hearing.
62. In a letter of 17 October 2006 the Ministry of Justice dismissed the applicant’s request, having found no error of law or procedure. As to the maximum duration of detention pending trial in situations such as that of the applicant, the Ministry also referred to the above-mentioned decision of the Constitutional Court in the case file no. II. ÚS 164/06.
63. On 4 October 2006, sitting in private, the Constitutional Court declared the applicant’s constitutional complaint inadmissible. It observed that, although he had complained to the Supreme Court that there had been no oral hearing on the extension of his detention, the applicant had failed to make a formal request for a public hearing. The applicant had had ample opportunity to make written submissions and he had actually used it, both directly and through the intermediary of his lawyers. In addition, the applicant had addressed the Supreme Court orally before the private session on 26 June 2006. The principle of always applying the more lenient criminal legislation was only valid in substantive criminal law and not in respect of detention, which was a procedural measure. There was no doubt that under the relevant statutory provisions the old CCP continued to apply to the applicant’s detention, including the limits on its maximum duration.
The decision was served on the applicant on 4 October 2006.
64. Article 17 guarantees the right to liberty. Pursuant to its paragraphs 1 and 2, liberty of a person is guaranteed and no one is to be prosecuted or deprived of liberty except for reasons and in a manner provided for by an act of Parliament.
65. Under Article 17 § 5, pre-trial detention is permissible exclusively on grounds and for a period defined by an act of Parliament and on the basis of a court’s ruling.
This provision is to be read in conjunction with the provisions of the CCP providing that pre-trial detention may only last for a period that is inevitably necessary (see paragraph 94 below).
66. The provisions of Article 17 §§ 2 and 5 are understood as comprising the rights under Article 5 § 3 of the Convention not to be deprived of liberty for a period longer than is necessary and to trial within a reasonable time or to release pending trial (see, for example, judgments of the Constitutional Court in cases nos. III. ÚS 7/00, III. ÚS 255/03 and III. ÚS 199/05).
67. Article 127 §§ 1, 2 and 3 of the Constitution provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
68. According to the explanatory report (dôvodová správa) on the Special Court Act (Law. No 458/2003 Coll.), the aim of the Act was to create structures for the detection, investigation and prosecution of corruption and organised crime. The Special Court and other authorities established under the Act had national jurisdiction with a view to ensuring better specialisation and protection as well as to severing local ties.
69. Pursuant to Section VII.9 of the Act, the Special Court had criminal jurisdiction over members of Parliament, members of the Government, heads of central administrative agencies, judges, prosecutors, the Ombudsman, the Director of the National Security Agency (Národný bezpečnostný úrad – “the NSA”), the Director of the National Intelligence Service and members of the board of the National Bank of Slovakia.
70. Irrespective of who was the perpetrator, the Special Court also had jurisdiction over certain forms of corruption, organised crime, terrorism, “extremely serious offences” (see paragraph 90 below), crimes of an economic nature that resulted in damage equal to or greater than ten thousand times the statutory minimum wage, and other offences.
71. A judge could only be assigned to the Special Court after passing security vetting by the NSA for access to top secret information (Section VI.1 of the Act) and would be recalled if he or she ceased to meet the security vetting criteria (Section VI.4 of the Act). A decision to refuse security vetting clearance (bezpečnostná previerka) could be appealed against in a special parliamentary committee and ultimately, by way of an administrative-law action, in the Supreme Court.
72. Special Court judges were entitled to a salary as Supreme Court judges (Section VI.7 of the Act) and to a special monthly allowance equal to double the average nominal wage in the Slovak economy in the previous calendar year (Section VI.12 of the Act). In 2005 the amount of the allowance was increased to six times the average nominal wage in the Slovak economy in the previous calendar year (Law no. 122/2005 Coll.).
73. On 11 February 2008 a group of forty-six members of Parliament challenged in the Constitutional Court the constitutionality of the statutory provisions establishing the Special Court.
74. On 20 May 2009 the Constitutional Court, sitting in plenary, gave a judgment, by majority of seven against six, declaring the statutory provisions establishing the Special Court unconstitutional.
75. At the same time, the Constitutional Court ruled that its judgment gave no ground for reopening proceedings which had ended by final but not yet executed judgments of the Special Court, which would otherwise be the case under section 41b of the Constitutional Court Act.
76. On the publication of the judgment in the Collection of Laws on 17 July 2009, the unconstitutional provisions ceased to have legal effect.
77. The majority of the Constitutional Court relied on a comparative law analysis concerning specialised jurisdictions in various Council of Europe member States. It observed that there was no specific legal basis in Slovakia allowing for an extraordinary jurisdiction whereas the Special Court had mixed features of a specialised court and an extraordinary court. However, the existence of the latter could only be justified by extraordinary circumstances and for the attainment of an extremely serious goal that could not be attained by other means.
78. Restricting the jurisdiction of the Special Court ratione personae was an anachronism. This and the requirement for Special Court judges to have valid security vetting clearance from the NSA, which was an agency within the executive, was found to be incompatible with the principles of legal certainty and division of power. It was also noted that the role of the NSA in respect of appointment of judges to the Special Court unacceptably interfered with the role to the professional body of the judiciary in Slovakia, the Judicial Council (Súdna Rada Slovenskej republiky).
79. In reaching the conclusion mentioned in the precedent paragraph, the majority took into account, inter alia, that existing remedies against decisions of the NSA were insufficient and limited in effect.
80. Moreover, the remuneration arrangements for the Special Court judges were discriminatory and disproportionate and as such unacceptable.
81. At the same time, it was pointed out in the reasoning of the judgment that the judgment would have no impact on decisions of the Special Court which had become final, because the reasons for the judgment concerned the institutional status of the Special Court within the judiciary and had no bearing on the legal basis of its decisions.
82. The dissenting judges were of the opinion that the majority had applied an incorrect test for the determination of the compatibility of the Special Court with the judicial system of Slovakia as a whole. The appropriate test was whether such a court offered sufficient guarantees of a fair trial before an independent tribunal.
83. The question of the social need for the Special Court, which the majority had examined, was predominantly political in nature, fell within the discretion of Parliament and the courts should be most cautious in dealing with such questions.
84. The dissenting judges found no support for the conclusion that the Special Court had unacceptable features as an extraordinary court.
85. The requirement for a Supreme Court judge to obtain security vetting clearance from the NSA was legitimate and constitutional. Any doubts as to the powers of the NSA to withdraw and refuse renewal of security vetting clearance could have been eliminated and did not constitute grounds for abolishing the Special Court.
86. In addition, the conclusion of the majority that the remedies existing against the security vetting decisions of the NSA were insufficient was not supported by convincing reasoning and it was contrary to the Constitutional Court’s previous case-law.
87. Furthermore, the majority opinion as to the inadequacy and discriminatory nature of the remuneration of the Special Court judges lacked relevant analysis, the remuneration being legitimate and justified.
88. Lastly, the ruling concerning inapplicability of section 41b of the Constitutional Court Act (no ground for reopening) was an intolerable act of judicial activism, by which the Constitutional Court had assumed the role of an active lawmaker in excess of its jurisdiction in the given case and, consequently, in breach of the rule of law.
89. With effect from 17 July 2009 the Specialised Criminal Court was established, which, unless provided for otherwise, provides for procedural continuity after the abolition of the Special Court.
90. The old CC distinguished between “offences” (trestný čin) and “extremely serious offences” (obzvlášť závažný trestný čin). The latter comprised “offences” for which the minimum penalty was equal to or higher than eight years of imprisonment (Article 41 § 2) and “offences” listed in Article 62 of the Code, such as, for example, treason, terrorism, sabotage, spying, currency counterfeiting, genocide, setting up a criminal enterprise, murder and aggravated forms of robbery, hostage-taking, extortion, rape, fraud and money-laundering.
91. The offence of fraud was defined in Article 250. Pursuant to paragraph 5, in conjunction with Article 89 § 13, if a fraud resulted in damage equal to or greater than five hundred times the statutory minimum monthly salary, it was punishable by imprisonment in the range of five to twelve years.
92. The new CC distinguishes between “transgressions” (prečin), “crimes” (zločin) and “extremely serious crimes” (obzvlášť závažný zločin).
A “crime” that carries as the minimum penalty a term of imprisonment equal to or greater than ten years is considered “extremely serious” (Article 11 § 3).
93. The crime of fraud is defined in Article 221. Pursuant to paragraph 4, in conjunction with Article 125 § 1, if a fraud results in damage equal to or greater than EUR 133,000, it is punishable by imprisonment in the range of ten to fifteen years.
94. Pre-trial detention may only last for a period that is inevitably necessary (Article 71 of the old CCP and Article 76 § 1 of the new CCP).
95. Detailed rules of the old CCP and of the new CCP as well as the existing judicial practice in respect of the maximum duration of detention pending trial are stated in the Court’s decision in the case of Martikán v. Slovakia (cited above).
96. Part eight of the new CCP governs extraordinary remedies. These include an appeal on points of law, which is regulated by section two.
97. An appeal on points of law can be lodged against judicial decisions resolving a matter with final effect (Article 368 § 1). An appeal on points of law has no suppressive effect (Article 368 § 2).
98. A convicted person is entitled to lodge an appeal on points of law against rulings that directly concern him or her (Article 369 § 2 (b)) within three years of the date the decision is served (Article 370 § 2) on grounds recognised by Article 371 § 1. These include (i) lack of territorial, material or personal competence of the court, (ii) errors in the composition of the bench, (iii) fundamental breach of the rights of defence, (iv) the matter has been decided upon by a judge who should have been excluded from the proceedings, (v) the decision is based on evidence which has not been lawfully examined, and (vi) the penalty imposed is outside the lawful penalty scale.
99. The merits of an appeal on points of law are determined by the Supreme Court (Article 377) in public session (Articles 384 et seq.) and legal representation is mandatory (Article 373).
100. Should the Supreme Court find an appeal on points of law well founded, it makes a finding of a breach of the law (Article 386 § 1) and quashes the decisions concerned (Article 386 § 2).
101. Should a new determination of the matter be required, the Supreme Court makes an order to that effect (Article 388 § 1). Legal opinions and instructions expressed by the Supreme Court are binding upon the bodies making a new determination of the matter (Article 391 § 1).
102. The relevant statutory provisions and the existing judicial practice in respect of State liability for damage are summarised in the Court’s judgments in the cases of Štetiar and Šutek v. Slovakia (nos. 20271/06 and 17517/07, §§ 52-61, 23 November 2010); Michalko v. Slovakia (no. 35377/05, §§ 48-64 with further references, 21 December 2010); Osváthová v. Slovakia (no. 15684/05, §§ 34-46, 21 December 2010); Aydemir v. Slovakia (no. 44153/06, §§ 27-43, 8 February 2011); and Michalák v. Slovakia (no. 30157/03, §§ 92 and 93 with further references, 8 February 2011).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1