ITEMID: 001-80035
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STOIMENOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (applicant);Non-pecuniary damage - claim dismissed (members of the applicant's family);Costs and expenses partial award - domestic proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicant, Mr Jordan Stoimenov who was born in 1963 and lives in Vinica, in the former Yugoslav Republic of Macedonia.
6. On 30 January 2000 the Ministry lodged with the public prosecutor a criminal complaint against the applicant and four other persons for the unauthorised production of, and trade in, drugs and narcotic substances, which was an offence under section 215 of the Criminal Code.
7. On 28 January 2000 the Forensic Science Bureau (Управа за криминалистичка техника) (“the Bureau”) at the Ministry drew up an expert report (no. X-121/2000) on the quality of poppy-tar that had been confiscated from Mr I.P. According to this opinion, all 23 cakes of poppy-tar contained substances which indicated that it was opium.
8. On 30 January 2000 another expert opinion (no. X-122/2000) was issued concerning the quality of 12 cakes of poppy-tar that had been confiscated from Mr M.
9. Both expert opinions were given by the same expert at the Bureau, were almost identically worded and provided succinct information about the technique used to determine the composition of the poppy-tar and the conclusion that it was opium. They read, inter alia, as follows:
“... [S]everal tests were carried out on the samples of the substance. Positive results were received as to the existence of alkaloids... A chromatography analysis was made of the samples to determine the chemical composition of the substance. Samples of several alkaloids from our collection and a sample of opium were used for comparison... The analysis of the chromatogram revealed that it was identical to that of the opium, i.e. that the analysed substance contained several alkaloids... The analysis led to the conclusion that the unidentified substance was opium.”
10. According to depositions taken on 30 January 2000 in the pre-trial proceedings, the applicant stated, inter alia:
“... When I was a child, I heard from my grandmother and grandfather that they used to have in their possession poppy-tar which they used for medicinal purposes. Mr D. [the third accused] asked me on several occasions whether they still had any... I went to see Mr M. [the first accused], my uncle, and told him about this. We both searched the cellar in my grandfather's house where my uncle used to live. We found about 12 kg of poppy-tar in a plastic bag... I gave the bag to Mr D... The agreement was to divide the money from the sale of the poppy-tar into three parts if Mr D. sold it. He said that he could sell it for 30,000 German marks (DEM)... Some time later Mr D. said that the poppy-tar was of poor quality, as it had been mixed with soil and had [therefore] been difficult to sell. I asked him to return it if he could not sell it so that I could put it back where it came from. However, Mr D. did not return the poppy-tar... Once I visited his house, but he was not there... Mr M. did not know that there was poppy-tar in the cellar. The idea to search for it was mine and I was incited to do so by Mr D...”
11. Mr D. stated, inter alia:
“...Jordan [the applicant] told me that he had some 40-50 year old poppy-tar and asked me if I could find a buyer... He said that the price was DEM 40,000... After a while I met with Mr M.G. [the fourth accused] and asked him whether he could find a buyer for the poppy-tar... A week or two later, Mr M.G. came to my house and told me that he could find a buyer and asked me for a sample... Mr M.G. said the price was too high... I met Jordan and asked him to take the poppy-tar as there was no one interested in buying it at that price. However, Jordan did not come because of the bad weather: it was snowing. On 27 January 2000 Mr M.G. came to my house and told me that he had found a buyer. On 28 January 2000 Mr M.G. came accompanied by Mr I.P. [the fifth accused] ... and said that a buyer from Skopje had offered DEM 2,500 per kg of poppy-tar...”
12. On 18 February 2000 the public prosecutor lodged an indictment (обвинителен акт) with the Kočani Court of First Instance against Mr M., the applicant, Mr D., Mr M.G. and Mr I.P. They were charged with having been in possession in the spring of 1999 of about 14 kg of opium and on 28 January 2000 of offering for sale and selling about 8.7 kg of opium. The charges were based, inter alia, on the statements of the accused in the pre-trial proceedings and the expert opinion no.X-121/2000 dated 28 January 2000.
13. At the trial on 9 March 2000, Mr D.S., the applicant's grandfather stated, inter alia:
“... the poppy-tar was collected by my parents and my wife. I cannot say where it was stored. Maybe it was buried; there was a war. It was the period between 1941 and 1955; people said that it was of poor quality. I have never seen the poppy-tar nor do I know where it was stored. I never told Jordan or Mr M. where it was, nor did they ask me about it... I offered the poppy-tar for sale to the Bilka company, but it turned it down as it was of poor quality. This happened after the Second World War, but I cannot say when exactly...”
14. The applicant's representative lodged a request for an alternative expert opinion to be obtained from a scientific institution concerning the quality of the poppy-tar for the following reasons: the Bureau operated within the Ministry, which had lodged the criminal complaint against him; the poppy-tar was old and had been buried for many years; and an authorised organisation had refused to buy it as it was of poor quality. The counsel representing the other persons accused made a like request.
15. At the hearing on 10 March 2000 the court refused the request for another expert opinion. In his concluding remarks the applicant's representative reiterated, inter alia, his arguments about the poor quality of the poppy-tar and about the report drawn up by the Ministry.
16. The same day the Kočani Court of First Instance gave judgment. It found the applicant and the other accused guilty and sentenced them to terms of imprisonment of three to four years. The applicant obtained the longest sentence (four years' imprisonment). All other four defendants received sentences below the statutory minimum for crimes of that kind (5 years) on the ground that they had no previous convictions and some of them were young and/or had not played a crucial role in the crime.
17. The trial court found that the applicant and his uncle Mr M. had found 14.4 kg poppy-tar in the latter's cellar, i.e. opium belonging to Mr M.'s father, who had kept it from the Second World War. They had agreed to keep the opium at Mr M.'s house and to prepare it for sale. Later, the applicant had offered about 8.7 kg of the poppy-tar for sale to the third accused, Mr D., whose task was to find a further buyer. Then Mr D. and the fourth accused, Mr M.G., had checked the quality of the opium and given it to the fifth accused, Mr I. P., whose task had been to sell the drugs to Mr N.N., an unidentified final buyer from Skopje. As Mr I.P. feared detection, he had tried to escape and had thrown the bag with the opium out of his car. He was later arrested by the police and the bag containing the opium was found.
18. The court found that the accused had acted in concert, namely that the applicant had firstly found the opium and then offered it to Mr D., who had offered it to Mr M.G. The opium was finally offered for sale to Mr I.P., the fifth accused. The court made reference in its decision to the statements of the applicant and the other accused in the pre-trial proceedings concerning their roles in the crime. It also referred to the applicant's statement at the hearing, but disregarded it as self-serving. The testimony of several witnesses and items of real evidence were also taken into account, along with the expert opinions nos. X-121/2000 and X-122/2000 provided by the Bureau.
19. The court held that the poppy-tar, a term used by the accused, was in fact opium, the production of and trade in which was classified as a criminal offence. It based its findings entirely on the written expert opinion provided by the Bureau, stating inter alia :
“... the court established that it was a psychotropic substance on the basis of the written evidence, namely the expert opinions nos. X-121/2000 and X-122/2000 submitted by the Bureau, in which it was definitely indicated that it was opium containing several alkaloids...”
20. It noted that the Bureau was a state body authorised to perform such expert examinations and that section 234(2) of the Criminal Proceedings Act did not prohibit it from providing such an expert opinion. It further stated:
“...The court disregards the defence's argument that the opium was of poor quality i.e. what its quality and [opium] percentage was, because the expert report undoubtedly established that it was opium containing all the necessary substances to be considered a psychotropic substance...”
21. In his appeal, the applicant complained, inter alia, of the trial court's refusal to order an alternative, independent analysis of the quality of the poppy-tar. He claimed that it was not a type of opium prohibited by law, but poppy-tar that had been buried for a long time and that moisture was known to destroy its morphine content. In support of his arguments about the quality of the poppy-tar, he noted that after the Second World War its owner, Mr M.'s father, had been unable to sell it to an authorised buyer because it was of such poor quality. As it had not been properly stored its quality had deteriorated over time. He considered that a chemical analysis was necessary to determine the quality of the poppy-tar and proposed an institution which in his opinion had the equipment necessary to make the required analysis. He also complained that the expert examination of the opium had been performed by the Ministry which had then brought the criminal charges against him.
22. The applicant also argued that the offence had been set up by a police agent provocateur and would never have been committed without his intervention (he claimed that the unidentified final buyer N. N. was that agent). He further argued that he had been wrongly convicted as he had voluntarily called off the sale of the opium at one point, when he had changed his mind and asked the third accused to give him the poppy-tar back. He also appealed against sentence.
23. At a public hearing held on 14 June 2000 the Štip Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision. It found that the lower court had not erred in refusing the applicant's request for an alternative expert examination of the quality of the drug, as the expert opinion provided by the Bureau was unambiguous. It also noted that it was known that the older the poppy-tar, the better it was for opium use. It further stated that the expert examination by the Bureau had been carried out properly and that the lower court had relied entirely on the Bureau's report and had therefore dismissed the applicant's request for an alternative examination by another institution.
24. The Court of Appeal also found that although the identity of the final buyer of the opium had not been established, it was irrelevant to the applicant's conviction: he had been convicted for having the opium in his possession and offering it for sale. It did not accept the applicant's assertion that he had decided not to proceed with the offence, finding that the lower court had correctly based its findings on the applicant's statements in the pre-trial proceedings in which he had described the whole event and had made a confession. It also found that the applicant had failed throughout the proceedings to put forward any evidence in support of his allegations.
25. In a request to the Supreme Court for extraordinary review of a final decision (барање за вонредно преиспитување на правосилна пресуда), the applicant referred to the complaints he had already raised in his appeal.
26. On 12 April 2001 the Supreme Court dismissed the applicant's request for extraordinary review and upheld the lower courts' decisions. It found that the lower courts had not erred in establishing the facts and evaluating the evidence concerning the applicant's assertion that he had decided not to proceed with the offence.
27. As to the applicant's complaint that his defence rights had been violated as the trial court had refused to order an alternative expert examination of the quality of the poppy-tar, the Supreme Court stated:
“... such complaint is ill-founded because the trial court could reasonably establish on the basis of the expert opinion provided by the Ministry of the Interior that it was opium of good quality. There were no doubts in the expert opinion that would have warranted ordering a fresh examination or an opinion by other experts. The expert opinion submitted by the Ministry of the Interior does not contain any shortcomings or deficiencies which would raise reasonable doubts as to its validity...”
28. On 12 April and 2 November 2001 the Supreme Court dismissed the applicant's request for extraordinary mitigation of the penalty imposed (барање за вонредно ублажување на казната).
29. The Government have also indicated that on 29 May 2002 the Supreme Court rejected a second request by the applicant for extraordinary review of the final decision.
30. In accordance with section 234(1) and (2) of the Criminal Proceedings Act (“the Act”), an expert examination is requested by a written order of the body which carries out the procedure. The order specifies the facts for which the examination is required and the person appointed to perform it. If a special institution exists or if the examination can be carried out by a State body, the examination, especially in more complex cases, is as a rule entrusted to that institution or body. The institution or body appoints one or more experts to carry out the expert examination.
31. Section 243 of the Act provides that the opinion of other experts must be ordered if the expert opinion already given contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these cannot be eliminated by referring to the experts who gave the opinion.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110543
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAŠO GORGIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1972 and lives in Skopje.
6. The applicant worked as a waiter in a bar in Skopje. At 3.50 a.m. on 6 January 2002, R.D., a police reservist, fired a shot in the bar hitting the applicant in the chest. According to a medical certificate of 12 September 2002 issued by Skopje Clinical Centre , the applicant was urgently admitted in a “serious condition” (тешка општа состојба). The injuries sustained were described as follows: broken right clavicle and four broken ribs, injury to the subclavian artery, internal haemorrhaging and seizure of the brachial plexus nerves. His right arm was paralysed. The conclusion was that the applicant had sustained serious bodily injury with life-threatening damage and lasting consequences (витална загрозеност и трајни последици). He was operated on twice, the second time in April 2002 in the Clinical Centre of Belgrade, Serbia.
7. On 27 March 2003 the Skopje Court of First Instance (“the trial court”) convicted R.D. in absentia of “serious crimes against public security” (тешки дела против општата сигурност). He was sentenced to two years’ imprisonment. After the court had heard oral evidence from R.D., the applicant and six witnesses and examined other material evidence, it found that R.D., while intoxicated, had unintentionally pulled the trigger of his service gun and shot the applicant, who had been at a distance of one metre. The applicant was advised to pursue his compensation claim by means of a separate civil action. The decision became final on 8 May 2003.
8. R.D. started serving his sentence on 6 June 2008. On 23 June 2008 the trial court reopened the proceedings, at R.D.’s request. On 12 March 2009 the trial court found R.D. guilty again and sentenced him to two years’ imprisonment, suspended for four years. No information was provided as to whether that decision was the subject of an appeal or became final.
9. On 11 November 2002 the applicant, represented by Mr P. Šilegov, brought a civil action against the Ministry of the Interior (“the Ministry”) seeking compensation for pecuniary and non-pecuniary loss related to the injury sustained as a result of R.D.’s action. He claimed that the State should be held responsible, given that R.D., instead of being on duty in a police station, had shot him in the bar. He had used his service gun and had been in uniform. He claimed 28,000,000 Macedonian denars (MKD) in respect of non-pecuniary damage and MKD 208,480 for pecuniary damage (expenses related to his medical treatment).
10. After five adjournments, the Skopje Court of First Instance dismissed the applicant’s claim on 12 December 2003, finding that the Ministry lacked the requisite capacity to be sued for the damage caused by R.D., who, being a police reservist, was regarded a State official. The court established that between 7.30 p.m. on 5 January 2002 and 7.30 a.m. on 6 January 2002 R.D. had been on duty in a police station in Skopje. He had been assigned to stand guard (службена задача – стража) between midnight and 1 a.m. and between 6 a.m. and 7 a.m. on 6 January 2002. After 1 a.m. on 6 January 2002, instead of returning to the police station, R.D. had gone to the bar on his own initiative, without informing his superior or the latter’s replacement. He had been in uniform and had been carrying his service gun. In the bar, in the presence of other customers and under the influence of alcohol, he had pulled the gun out and shot the applicant, who had been in front of him at a distance of about 1.5 metres. The court found that the applicant had suffered damage as a result of R.D.’s action. However, in order for the Ministry to be held responsible under section 157 of the Obligations Act (see paragraph 19 below), the court said that
“... certain conditions need to be met: the damage must be caused by an official (овластено службено лице), it must be sustained by a physical or legal person and, in particular, it has to be caused by an official in the performance of his or her duties. It also has to result from an unlawful action. The defendant (the State) will be held responsible only if the damage is caused in the course of or in connection with the performance of the official duties. An action will be regarded as carried out in the performance of a duty if it is part of the duties (функција) of the official. It is a a harmful action taken within working hours, in the official capacity of the person concerned and as part of his official duties. Damage may be caused outside official duties, but there must be a causal link with the performance of the duty or the duty itself ... in the present case, R.D. was not in the bar in an official capacity ... so the damage was not caused in connection with the performance of the Ministry’s duties, even though it was caused at a time when R.D. was supposed to be on duty. At the critical time and place R.D. was not acting in an official capacity but as a private person, despite the fact that it was within working hours; he was in uniform and used his service gun. R.D. is responsible for the action taken and damage caused. There is no causal link between his action and his duty ...
The fact that [R.D.] was in uniform and used his service gun does not mean, in itself, that he was acting in an official capacity. R.D. did not use the gun in connection with the performance of his duties, but as a customer in the bar ...
At the time when the damage occurred, R.D., as a police reservist, was an adult and trained in the use of the gun. The defendant, as the owner of the gun, is relieved, under section 163(2) of the Obligations Act, from responsibility, given that the damage occurred solely as a result of an unforeseeable action by its agent whose consequences could neither have been prevented nor removed.”
11. The court concluded that the applicant remained entitled to claim compensation from R.D. under section 141 of the Obligations Act (see paragraph 16 below).
12. On 3 March 2004 the applicant appealed, arguing that the Ministry was to be held responsible for R.D.’s actions, as he had acted while on duty, had been in uniform and had fired his service gun. In his submission, the Ministry’s responsibility derived from section 103 of the Employment Act (see paragraph 20 below) under which the Ministry could claim reimbursement from R.D. Lastly, he submitted that he had suffered irreparable damage as a result of the incident, as his right arm had become permanently paralysed.
13. On 27 April 2004 the Skopje Court of Appeal dismissed the applicant’s appeal, finding no grounds on which to depart from the lower court’s finding that R.D.’s actions in the bar were not related to his official duties as a police officer. It went on to find that when R.D. shot the applicant he had not been acting as a police officer and had not been performing official duties. There was accordingly no responsibility on the part of the Ministry. The court confirmed the applicant’s entitlement to claim compensation from R.D.
14. On 21 July 2004 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court, arguing, inter alia, that the Court of Appeal had not addressed his arguments regarding the Ministry’s responsibility under the Employment Act.
15. On 31 May 2006 the Supreme Court dismissed the applicant’s appeal on points of law, reiterating the reasons given by the lower courts.
16. Section 141 of the Obligations Act sets out the general principle governing civil compensation claims.
17. Section 157 provides that the employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to these. The victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if the latter caused the damage intentionally or negligently.
18. Under section 160, the owner of a dangerous item (опасен предмет) is responsible for any damage caused by it.
19. Section 163(2) provides that the owner of a dangerous item can be relieved of responsibility if it can be shown that the damage was caused exclusively by an unforeseeable action on the part of the victim or a third person whose consequences could not have been prevented or removed.
20. Under section 103 of the Employment Act of 1993, as in force at that time, an employer was responsible for any damage caused by an employee while performing his or her duties or in relation to them. The employer could seek reimbursement of the compensation from the employee if the latter had caused the damage intentionally or negligently.
21. Section 24 of the Internal Affairs Act, as in force at the time, specified which agents were regarded as State officials.
22. Under section 26, State officials were required to perform their duties at all times, regardless as to whether they were on or off duty.
23. In a state of war or emergency, the Ministry could call up reservists in order to ensure public safety and prevent mass disorder (section 45(2) of the Internal Affairs Act). Reservists could be recruited for training or practice. During their period of service, reservists were regarded as State officials within the meaning of section 24 of the Act (section 46).
24. The Government provided a copy of a first-instance court decision concerning a compensation claim submitted against the Ministry and a police officer who had negligently fired his service gun inside the Ministry building, as a result of which the claimant sustained bodily injuries. The first-instance court found the police officer directly responsible and ordered him to pay the damages. It dismissed the claim against the Ministry on grounds of lack of capacity to be sued. No information was provided as to whether this decision became final (П.бр.1274/2007 of 2 July 2008). The police officer in this case was convicted of “serious crimes against public security” and sentenced to a suspended prison term (К.бр.751/06 of 21 February 2007).
25. Article 11 of the Basic Principles provides, inter alia, that:
“Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law enforcement officials are authorised to carry firearms...
(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;
...
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them.”
26. Article 37 of the Code provides that “the police may use force only when strictly necessary and only to the extent required to obtain a legitimate objective”.
27. The commentary to Article 37 of the Code reads, inter alia, as follows:
“...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ...”
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-109298
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOLEGOVY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Public hearing);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert
TEXT: 5. The applicants, who are a couple, were born in 1934 and 1932 respectively. The second applicant died in 2006. The first applicant lives in Skhodnya, the Moscow Region.
6. The applicants, both wheelchair-bound and having firstdegree disability status, repeatedly requested social-security services to provide them with a car adapted to their disability. Their numerous complaints in this respect to the General Prosecutor’s Office, Members of the State Duma, and Administration of the President of the Russian Federation proved unsuccessful. As it was mentioned in the authorities’ letters to the applicants, according to the medical expert report ordered by the social-security services, the first applicant was not entitled to a free car and driving was contra-indicated in respect of the second applicant.
7. On 18 November 2003 the applicants, apparently assisted by counsel, lodged a claim against the Ministry of Labour challenging the refusal to provide them with a car and claiming compensation for non-pecuniary damage.
8. On 15 March 2004 the Basmannyy District Court of Moscow (“the district court”) fixed the hearing for 14 May 2004 and at some point, apparently on the same date, summoned the applicants to appear at the hearing.
9. According to the Government, on 30 March 2004 one of the applicants received the respective notification. They submitted a copy of an acknowledgment-of-receipt card containing information on the date and time of the hearing, the name of the court, the date of notification, and signatures of a recipient and a postman.
10. According to the applicants, they did not receive the summons.
11. On 14 May 2004 the district court, having heard the defendant’s representatives, rejected their claim because the applicants had lodged it against a wrong defendant. The court established that the social welfare services did not belong to the Ministry of Labour and that the latter did not have power to review their decisions. The applicants were absent from the hearing. The court found, with reference to the acknowledgment-of-receipt card, that they had been duly summoned and examined the case in their absence. The representative of the respondent authority was present.
12. On 30 June 2004 the applicants’ representative received a copy of the judgment of 14 May 2004.
13. On 5 July 2004 the applicants appealed against the judgment. They complained, inter alia, that their right to a fair trial had been violated as neither they nor their lawyer had had a chance to attend the hearing due to their having been summoned belatedly.
14. On 14 July 2004 the district court on the applicants’ request extended the time-limit for lodging the grounds of appeal.
15. On 6 October 2004 the Moscow City Court adjourned the examination of the applicants’ appeal until 20 October 2004, having found that the parties had not been notified of the date of the hearing in a timely manner.
16. According to the Government, at some point the district court dispatched summonses to the parties, including the applicants, informing them of the date and time of the appeal hearing. According to the applicants, neither they nor their representative received the summons.
17. On 20 October 2004 the Moscow City Court upheld the judgment of 14 May 2004 on appeal. The court examined the case in the applicants’ absence, having mentioned that they had been notified of the appeal hearing. As regards the applicants’ complaint about their absence from the hearing at the first instance court, the appeal court found that they had been properly summoned. The court further upheld the lower court’s finding that the civil action was lodged against the wrong defendant.
18. On 12 December 2008 the application was communicated to the Government.
19. On 21 January 2009 the Moscow City Court requested the case file from the district court in order to prepare’s observations on the admissibility and merits of the application.
20. On 27 January 2009 the Moscow City Court received the case file.
21. On 4 February 2009 Ms Stakhiyeva, the first applicant’s representative before the Court, requested the district court to grant her access to the case file concerning the applicants’ civil proceedings.
22. On the same date the registry of the district court rejected her request having advised her that she could be granted access to the file not earlier than ten days following the request.
23. On 5 February 2009 the President of the district court refused to examine the representative’s oral complaint in this respect, apparently having provided no reasons for the decision. It appears that on the same date the lawyer lodged a written complaint about the refusal to allow her to study the file, but the petition remained unanswered.
24. On 27 February 2009 the registry of the district court again rejected the applicant’s new request for access to the file, and on the same date the President of the district court disallowed her complaint in this respect.
25. On 10 March 2009 the registry of the Moscow City Court returned the case file to the district court.
26. On 25 March 2009 the Government advised the Court that the file had been transferred to the district court and was available for study. On 27 March 2009 this letter was forwarded by the Court to the applicant’s representatives.
27. On 9 April 2009 the Court received the Government’s observations and on 29 April 2009 forwarded them to the applicant’s representatives with a request to provide observations in reply.
28. On 12 May 2009 the applicant’s lawyer requested to grant her access to the case file. She submits that on the same date the registry disallowed her request, and the President of the court refused to discuss the matter with her.
29. On 14 May 2009 she was advised by the registry of the district court that the file was available at the registry.
30. On 18 May 2009 the lawyer studied the case file.
31. On 9 June 2009 the applicant’s lawyers submitted the observations in reply to the Government’s observations on the applicants’ case.
For a summary of relevant domestic law provisions see Gusak v. Russia, no. 28956/05, § 20, 7 June 2011.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-61889
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TOMKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1945 and lives in Trebišov.
5. The applicant was employed at the Mining Faculty of the Technical University in Košice. On 29 March 1993 she was given a notice concerning termination of her employment as, due to restructuring, her position had become redundant.
6. On 24 April 1993 the applicant challenged the dismissal before the Košice I District Court (Okresný súd).
7. On 28 July 1993 the District Court sent a copy of the action to the defendant – the applicant’s employer – and requested that it submit its observations in reply within ten days. The defendant did so on 3 August 1993.
8. On 3 September 1993 the District Court requested that the defendant submit documentary evidence within seven days. The defendant replied on 10 September 1993.
9. On 20 October 1993 the District Court requested that the defendant submit further documentary evidence within five days.
10. On 25 October 1993 the defendant informed the District Court that the applicant’s action was identical with another action before the same court and proposed that both actions be joined. On 2 November 1993 it replied to the District Court’s request of 20 October 1993.
11. On 31 January 1994 the President of the District Court assigned the case to another Chamber of that court.
12. A hearing listed for 12 January 1995 had to be adjourned as the applicant did not appear. A new hearing was called for 2 February 1995.
13. On 2 February 1995 the District Court held a hearing at which it heard the parties. It was adjourned until 23 March 1995. The parties were invited to submit documentary evidence and the District Court decided to call witnesses.
14. On 9 February 1995 the applicant extended the scope of her action in that she also claimed compensation for wages lost as a consequence of her dismissal.
15. On 22 March 1995 the defendant requested that the hearing listed for the following day be postponed as two of the witnesses who had been called and who were its employees could not attend. The hearing scheduled for 23 March 1995 was consequently adjourned sine die.
16. On 8 June 1995 the District Court held another hearing at which the parties and one witness were heard. Another witness who had apologised for being unable to attend did not appear. The hearing was adjourned until 28 September 1995 with a view to calling that witness.
17. On 28 September 1995 another hearing was held at which the District Court heard the above witness. It was adjourned until 23 November 1995 in order that the defendant might submit additional documentary evidence.
18. On 23 November 1995 the District Court held another hearing which the applicant did not attend. Following this hearing, on the same day, the District Court dismissed the action. It found that the procedural and material legal requirements for a dismissal had been satisfied in the applicant’s case. The judgment was served on the defendant on 12 January and on the applicant on 13 January 1996.
19. On 19 January 1996 the applicant lodged an appeal. She submitted the reasons for her appeal on 13 February 1996. She contested the District Court’s judgment on the grounds that it was based on findings which, according to her, were not proven by the evidence submitted. In the event that the court of appeal upheld the District Court’s judgment, the applicant requested that it grant her leave to appeal on points of law.
20. On 26 February 1996 the District Court invited the defendant to file its observations in reply to the appeal. The defendant replied on 11 March 1996.
21. On 12 March 1996 the applicant submitted further reasons for her appeal. In substance, she contested the District Court’s judgment on the ground that, in her opinion, there was not enough evidence to prove that her dismissal had been in accordance with the relevant law.
22. On 2 April 1996 the District Court transmitted the casefile to the Košice Regional Court (Krajský súd) for a decision on the appeal.
23. In a letter of 23 May 1997 the applicant demanded that the Regional Court deal with her case promptly.
24. On 30 October 1997 the Regional Court held a hearing on the appeal at which the parties were heard. The hearing was adjourned and the Regional Court invited the defendant to submit further evidence within fifteen days. The defendant replied on 10 November 1997.
25. A hearing on the appeal scheduled for 17 November 1997 had to be adjourned as the applicant did not appear and it was not clear whether the summons had been duly served on her. The Regional Court however again requested the defendant to submit further evidence. The defendant replied on 28 November 1997.
26. Further hearings on the appeal which were fixed for 18 December 1997 and 29 January 1998 had to be cancelled as the applicant did not appear and, again, it was not clear whether the summons had been duly served on her.
27. On 22 April 1998 the Regional Court listed a hearing on the appeal for 28 May 1998. On 4 May 1998 the Regional Court requested that the summons for that hearing be served on the applicant by the Police. On 17 May 1998 the Košice – Staré mesto County Police Department informed the Regional Court that, despite several attempts, they had been unable to reach the applicant at her permanent residence.
28. On 28 May 1998 the Regional Court held further hearing on the appeal. The applicant did not attend. The Regional Court was however satisfied that the summons had been duly served on her by alternative means, i.e. that it had been deposited with the competent post office and the applicant had duly been given a written notice to that effect at the address of her permanent residence. Following this hearing, on the same day, the Regional Court upheld the judgment of the District Court. It found the latter’s judgment factually and legally correct and considered the appeal unfounded. The Regional Court did not address the applicant’s request for leave to appeal on points of law. The judgment of the Regional Court was served on the defendant on 23 July 1998 and on the applicant on 5 August 1998. No appeal lay against it and, upon its service on the parties, it became final and binding.
29. On 24 August 1998 the applicant filed an appeal on points of law (dovolanie) arguing that the District Court and the Regional Court had assessed the evidence incorrectly and had drawn wrongful legal conclusions.
30. On 14 September 1998 the District Court instructed the applicant to appoint a lawyer within ten days as legal representation was mandatory in proceedings on appeals on points of law. On the same day, it sent a copy of this appeal to the defendant and invited the latter to present observations in reply within ten days. The defendant replied on 28 September 1998.
31. As it was not possible to serve the request of 14 September 1998 on the applicant by regular means, on 28 October 1998 the District Court requested that it be served by the Police. The County Police Department informed the District Court on 9 November 1998 that the request had not been served as the applicant was not staying at her permanent residence.
32. In the meantime, on 19 October 1998, the applicant’s lawyer submitted further reasons for the appeal on points of law.
33. On 1 December 1998 the applicant’s lawyer appeared before the District Court and confirmed that she was representing the applicant in the proceedings on her appeal on points of law. On 10 December 1998 the District Court submitted the casefile to the Supreme Court for a decision on that appeal.
34. On 17 December 1998 the Supreme Court declared the applicant’s appeal on points of law inadmissible. By virtue of Article 242 (1) of the Code of Civil Procedure it examined ex officio whether the proceedings were not vitiated by the procedural flaws set out in Article 237 of that Code. It found no such flaws and observed that the appeal was neither admissible on any of the admissibility grounds pursuant to Article 238 of the Code. The Supreme Court thus did not examine the merits of the case. The decision was served on the defendant on 9 February and on the applicant’s lawyer on 10 February 1999.
35. Part Four governs legal remedies. Appeals on points of law (dovolanie) are regulated in Head Three of that Part.
36. Under Article 236 an appeal on points of law lies against final and binding decisions of appellate courts if some of the statutory admissibility criterion are met.
37. The general admissibility criterion, i.e. those applicable to both judgments (rozsudok) and resolutions (uznesenie), are set out in Article 237. These comprise situations (a) where the courts decided in a matter outside their jurisdiction; (b) where a person who acted as a party to the proceedings lacked legal capacity to be a party to court proceedings; (c) where a party to the proceedings lacked capacity to act in court proceedings and was not duly represented; (d) where the courts decided in a matter which had been res iudicata or which had already been pending in another proceedings (lis pendens); (e) where the proceedings could only commence by way of an action and no such action was actually filed; (f) where the courts prevented a party to the proceedings from acting before them; and (g) where the case was decided upon by an excluded judge or where the composition of the court was incorrect.
38. In addition to the above general admissibility criteria, special admissibility criteria apply if the court of appeal decided in the form of a judgment. These are defined in Article 238. Its paragraph 1 provides for an appeal on points of law if the appellate court overturned the judgment of a first instance court. In accordance with its paragraph 2, an appeal on points of law also lies against a judgment of the appellate court in which the latter did not follow the binding legal view previously expressed in the same matter by the court of cassation. Under paragraph 3 (a), an appeal on points of law is also admissible against a judgment of an appellate court in which it upholds a judgment of a first instance court and, at the same time, it rules that such an appeal is admissible as the case concerns a matter of particular legal importance. Finally, under paragraph 3 (b), an appeal on points of law is also admissible against a second judgment of an appellate court in which it upholds a second judgment of a first instance court if, in the second round, the first instance court decided differently than in its first judgment (which had been quashed by the first decision of the court of appeal) because it was bound by the legal view expressed by the court of appeal in its first judgment. This rule applies also to the third and, as the case may be, subsequent judgments of the court of appeal.
39. Pursuant to Article 241 (1) a person who appeals on points of law must be legally represented.
40. In accordance with Article 242 (1) the scope of the examination of an appeal on points of law by the court of cassation is in principle limited to the grounds of appeal submitted by an appellant. Except for flaws listed under Article 237 and flaws that have resulted in an incorrect decision on the merits, the court of cassation does not review ex officio any procedural flaws that have not been complained of by an appellant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105468
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AVRAM AND OTHERS v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicants were born in 1979, 1976, 1979, 1979 and 1979 respectively and live in Chişinău. Three of the applicants are journalists, one is a teacher of French and another is a librarian. They are friends.
6. At the time of the events the first two applicants were employed by a newspaper specialising in investigative journalism. The newspaper was involved in numerous scandals and lawsuits. In October 2002 its editor in chief was arrested on charges of corruption. According to the applicants, after that event two of them developed close relationships with the four police officers involved in the arrest of the editor in chief and one of them was even involved in a romantic relationship with one of the four police officers. According to the applicants, the police officers in question provided them with material for their work at the newspaper. The Government disputed the factual circumstances concerning the close relationship between the applicants and the four police officers.
7. In January 2003 a person calling himself Petrus came to the headquarters of the newspaper employing the first two applicants and offered to sell a video containing explicit images of a priest engaged in promiscuous behaviour. It appeared later that Petrus was member of a criminal gang and that the video in question had been used to blackmail the priest. The information was passed on to the four police officers and on 25 January 2003 three of the applicants helped the police officers to apprehend Petrus. One applicant was remunerated for her assistance and, on 27 January 2003, wrote a receipt to the Ministry of Internal Affairs. The Government disputed the applicants’ submissions concerning the arrest of Petrus and the applicants’ involvement therein. They confirmed the fact that one of the applicants had received money from the Ministry of Internal Affairs, however, without specifying the consideration for the payment.
8. Also in January 2003 one of the first two applicants became acquainted with a person named S.D., who was involved in a dispute with the Municipal Council about which the applicant wrote an article. On 31 January 2003 all the applicants, the four police officers and S.D. spent the evening in a sauna near Chişinău. The Government disputed the allegation that the four police officers had spent time in a sauna with the applicants and with S.D.
9. On 7 May 2003 the first applicant was allegedly contacted by one of the four police officers and was asked not to publish an article about illegalities at the Ministry of Internal Affairs due to appear the next day. The police officer took the applicant to a store, apparently specialising in electronics, where he showed her a video of her and the other applicants filmed on 31 January 2003 in the sauna and threatened to have it broadcast on national television if his conditions were not met and added that copies of the video would be sent to the applicants’ parents. He also allegedly threatened her with imprisonment and violence and warned her that her collaboration with the police would be made public. The first applicant informed the police officer in question that it was too late to stop the article’s publication since the material had already been sent to the printing house. On 8 May 2003 the article in question was published.
10. On 10 May 2003 at 7.30 p.m. the national television service broadcast a programme dedicated to the phenomenon of corruption and the moral character of journalists from the newspaper employing the applicants. The programme was presented by the president of the national television service and S.D. was a guest. The guest was presented as a businessman who alleged that he had bribed the second applicant to secure the publication of material. He also described his and the applicants’ evening in the sauna on 31 January 2003, and stated that one of the applicants had stolen money from the pocket of his trousers and that the applicants intended to kidnap his child for ransom. S.D. also alleged that the newspaper employing the applicants belonged to an opposition leader. The programme continued with footage from a black and white video filmed in the sauna. The applicants were seen in their underwear, apparently intoxicated, using obscene language. Two of the applicants were kissing and touching one of the men, and one of them was performing an erotic dance. The face of the male was covered in the video, whereas those of the applicants were not and the video was paused from time to time in order to allow them to be recognised more easily. The video appears to have been shot from a static camera and at least one of the male participants appears to have been aware of the filming, since he gave the “thumbs up” sign to the camera when none of the applicants was looking. A copy of the receipt issued to the Ministry of Internal Affairs was also shown in the programme and offensive terms with meanings such as “low class prostitutes” were employed when images of the applicants were shown. The programme continued with footage from a video of the arrest of the editor in chief of the newspaper employing the applicants. According to the applicants, that video had been part of a criminal case-file and not for public use. This information was not disputed by the Government. On 13 May 2003 the programme was broadcast again by the national television service.
11. On 17 and 20 May 2003 the first applicant lodged a criminal complaint about the blackmail which she and her colleagues had been subjected to and about the abuse of power committed by the four police officers. She submitted, in particular, that the police officers had invited her and her colleagues to a sauna and secretly filmed them, after which they had attempted to blackmail them with the video.
12. In examining the complaint the Prosecutor’s Office questioned four of the applicants, all of whom gave similar accounts of the facts of the case and accused the four police officers of the secret filming and blackmail. The police officers were questioned too, and all denied having had close relationships with the applicants and going with them to a sauna on 31 January 2003. They denied any implication in the secret filming, the allegations of blackmail and those concerning the transmitting of the video to the national television service. S.D. submitted that the video had been shot with his camera and that one of the applicants had accidentally switched the camera on and placed it on a shelf. He had discovered the video several months later and decided to take it to the national television service allegedly in order to prevent one of the applicants from kidnapping his child. He alleged not to have known the applicants’ male friends who had been with them in the sauna on 31 January 2003.
The Prosecutor’s Office inquired with the Ministry of Internal Affairs whether the first applicant had ever received money in exchange for collaborating with the police and, in particular, whether she had helped bring about the arrest of a person called Petrus. In reply the Ministry of Internal Affairs did not answer the first question and stated that the Ministry had the right to have secret collaborators and remunerate them. The Ministry also informed the Prosecutor’s Office that there were no records on anyone named Petrus in its database.
13. On 20 June 2003 the Prosecutor’s Office rejected the first applicants’ criminal complaint and refused to initiate criminal proceedings on the ground that the complaint was ill-founded. The first applicant appealed.
14. On 24 July 2003 the hierarchically superior Prosecutor’s Office quashed the above-mentioned decision on the ground that the investigation had not been thorough. In particular, it noted that the lower Prosecutor’s Office had failed to determine how the receipt issued by one of the applicants to the Ministry of Internal Affairs was transmitted to the national television service. It was also noted that the payment of money to that applicant was to be checked with the Ministry of Finance, the administrator of the public funds.
15. On 5 September 2003 the Prosecutor’s Office again dismissed the first applicant’s criminal complaint on the ground that the receipt of 27 January 2003 did not constitute a State secret and that its disclosure to the national television service was not an offence. As to the complaint concerning the alleged abuse of power by the four police officers, it was also found to be ill-founded because it had not been established that the applicants had ever assisted in bringing about the arrest of Petrus. The first applicant appealed against this decision and submitted, inter alia, that what she was remunerated for by the Ministry of Internal Affairs had not been established. She also submitted that the investigators had failed to examine the original video from the sauna and that they had failed to examine the complaint about blackmail.
16. On 19 February 2004 the Centru District Court quashed the Prosecutor’s decision of 5 September 2003 on the ground, inter alia, that the Prosecutor’s Office had failed to examine the first applicant’s complaint concerning blackmail.
17. On 2 June 2004 the Prosecutor’s Office again dismissed the criminal complaint lodged by the first applicant on the ground that the dissemination of defamatory information was not an offence under Moldovan law. The first applicant challenged the decision before the hierarchically superior prosecutor. However, the appeal was dismissed on 3 June 2005 and a subsequent appeal was finally dismissed by the Centru District Court on 28 July 2005. On 19 October 2005 the Supreme Court of Justice dismissed an extraordinary appeal lodged by the first applicant.
18. In the meantime, all the applicants lodged an action with a civil court seeking compensation for the breach of Article 8 of the Convention by the Ministry of Internal Affairs and the national television service. They complained about the unlawful secret filming by the police in the sauna, the disclosure of the applicants’ collaboration with the police and the broadcasting of the video from the sauna on national television. The applicants also complained about the defamatory nature of some of the statements made on the programme aired on national television on 10 May 2003. For the alleged breaches they sought compensation in amounts varying between 9,000 and 45,000 euros.
19. On 21 July 2006 the Centru District Court upheld the part of the applicants’ action against the national television service concerning the broadcasting of the video from the sauna and the defamatory statements made during the programme of 10 May 2003. The court considered that there was no public interest in broadcasting the video from the sauna. The rest of the applicants’ action was dismissed as ill-founded, the court finding that the applicants had failed to prove that the video had been shot by the four police officers. The applicants appealed.
20. On 18 December 2007 the Chişinău Court of Appeal upheld the applicants’ appeal against the judgment of the Centru District Court of 21 July 2006 and found the Ministry of Internal Affairs responsible for the filming in the sauna on 31 January 2003, for blackmailing the applicants and for handing to the national television of the video of the sauna scene and of a copy of the receipt issued to the Ministry of Internal Affairs to one of the applicants. The finding was based on the statements made by all the applicants during the criminal investigation, on the fact that the programme of 10 May 2003 contained images from the video of the arrest of the editor in chief of the newspaper employing two of the applicants, a video which was not publicly available (see paragraph 10 above) and on the presence in the programme of a copy of a receipt issued by one of the applicants. The judges of the Court of Appeal also recognised the man making a “thumbs up” sign in the video (see paragraph 10 above) as being one of the four police officers. The court also found the national television service responsible for broadcasting the video from the sauna. The court ordered the defendants to pay the applicants non-pecuniary damage varying between 8,000 Moldovan lei (MDL) (the equivalent of 480 euros (EUR)) and MDL 20,000 (the equivalent of EUR 1,200) and compensation for costs and expenses in the amount of MDL 42,697 (the equivalent of EUR 2,560). All the parties lodged appeals on points of law.
21. On 1 August 2008 the Supreme Court of Justice gave a final ruling in the case. It found the statements made during the programme of 10 May 2003 to the effect that the applicant journalists had been bribed to publish an article and that they intended to kidnap a child defamatory. The court also found that the disclosure by the Ministry of Internal Affairs of one of the applicants’ collaboration with the police by way of disclosing a receipt written by her had breached her right to respect for her private life. A similar breach with regard to all the applicants was found in respect of the broadcasting of the video of the sauna scene on national television without their consent and in the absence of a public interest justification. The court also found that the secret filming in the sauna constituted an unjustified interference with the applicants’ right to privacy as guaranteed by Article 8 of the Convention. However, relying on the outcome of the criminal investigation, the court found that there was insufficient evidence to conclude that the secret filming of the sauna scene had been carried out by employees of the Ministry of Internal Affairs. At the same time the court concluded that the Ministry of Internal Affairs was responsible for unlawfully transmitting to the national television service secret video material from a criminal case file, namely, a video of the arrest of the editor in chief of the newspaper employing the first and second applicants.
22. The Supreme Court ordered the national television service to pay each applicant MDL 3,600 (the equivalent of EUR 214) for non-pecuniary damage caused by the broadcasting of the video of the sauna scene. It also ordered the guest on the programme of 10 May 2003, S.D., to pay the second applicant MDL 1,800 (the equivalent of EUR 107) for defamation and the Ministry of Internal Affairs to pay MDL 3,600 (the equivalent of EUR 214) to the first applicant for disclosing her collaboration with the police. The court also ordered the defendants to pay the applicants MDL 42,697 (the equivalent of EUR 2,560) for costs and expenses. In reducing the amounts awarded by the Court of Appeal, the Supreme Court of Justice argued that the awards had to be in compliance with Article 7/1 of the old Civil Code, in force at the time of the events (see paragraph 23 below).
23. The relevant provisions of the 1964 Civil Code, in force until 12 June 2003:
“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity if the person who made such statements cannot prove that they are true.
(2) Where such information was made public by a media body, the court shall compel the publishing office of the media body to publish, not later than 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.”
“(1) Damage caused to a person as a result of circulation of statements which do not correspond to reality and are damaging to his or her honour or dignity shall be compensated by the responsible natural or legal person.
(2) The amount awarded shall be determined by the court in each case and shall be between [1,350 lei and 3,600 lei] if the information has been circulated by a legal person and between [180 lei and 1,800 lei] if the information has been circulated by a natural person.”
VIOLATED_ARTICLES: 8


ITEMID: 001-114783
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HORVÁTH v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicant was born in 1983 and lives in Bratislava.
7. On 28 April and 8 and 16 September 2005 the applicant was charged with attempted murder, robbery and fraud respectively.
8. On 15 December 2005 the applicant was indicted to stand trial in the Bratislava Regional Court (Krajský súd) on those charges.
9. On 26 January 2006 the Regional Court remitted the case to the Public Prosecution Service (“the PPS”) for the taking of further evidence, in particular in respect of the mental health of the key witness. That decision was upheld by the Supreme Court (Najvyšší súd) on 27 April 2006, following an interlocutory appeal by the PPS.
10. On 27 September 2006 the applicant was again indicted to stand trial on the charges mentioned above.
11. On 30 October 2006 the Bratislava District Court (Okresný súd) held a meeting with a view to making an initial assessment of the indictment (predbežné prejednanie obžaloby). At the conclusion of the meeting, the District Court ordered a hearing of the indictment (hlavné pojednávanie) for 6 December 2006.
12. In the course of the trial the applicant’s initial charges were requalified and, on 18 May 2007, the District Court found him guilty of a number of offences, including oppression, unlawful restriction of liberty and robbery, and sentenced him to nine years in prison. The judgment was, however, quashed on appeal and the case was remitted to the District Court for reexamination. The Court has not been informed of any further developments in the case, or of its outcome.
13. On 29 April 2005 the applicant was arrested and on 2 May 2005 he was remanded in detention pending trial on the murder charge. He was detained under Article 67 §§ 1 (c) and 2 of the Code of Criminal Procedure (“CCP”) (Law no. 141/1961 Coll., as applicable at the relevant time) as he was facing a charge carrying a penalty of imprisonment for eight years or more and there was a risk that he would continue offending. The applicant lodged an interlocutory appeal (sťažnosť) against the remand decision, which was declared inadmissible as belated on 16 June 2005.
14. The applicant’s first request for release was dismissed by the District Court on 22 September 2005 and, following his interlocutory appeal, by the Regional Court on 18 October 2005. The decisions were taken in private (neverejné zasadnutie).
15. Meanwhile, on 12 October 2005 the PPS had requested judicial authorisation for an extension of the applicant’s detention until 29 April 2006. The request was acceded to by the District Court on 17 October and, following an interlocutory appeal by the applicant, by the Regional Court on 8 November 2005. The decisions were taken in private.
16. On 26 January 2006, when the applicant’s case was remitted to the PPS for the taking of further evidence (see paragraph 9 above), the Regional Court also ruled that the applicant should remain in detention. That decision was upheld by the Supreme Court on 27 April 2006 following an interlocutory appeal by the applicant. The decisions were taken in private.
17. On or around 2 or 4 October 2006, the applicant again requested release. The request was dismissed by the District Court on 16 October 2006 and, following an interlocutory appeal by the applicant, by the Regional Court on 23 November 2006. The decisions were taken in private.
18. On 2 November 2006 the applicant lodged an application arguing that, at the preparatory meeting on 30 October 2006 (see paragraph 11 above), the District Court had failed to make a ruling concerning his continued detention.
19. On 6 November 2006 the relevant Chamber of the District Court ruled that the applicant’s detention should continue; this was confirmed by a ruling on 27 November 2006 by which the President of the Chamber corrected what was termed a clerical error in the decision of 6 November 2006. The decisions were taken in private.
20. On 24 January 2007 the Regional Court dismissed interlocutory appeals by the applicant against both the decision of 6 November and that of 27 November 2006. The decisions were taken in private.
The Regional Court accepted the applicant’s objection that mistakes had occurred on the part of the District Court in that it had failed to rule on his detention during the meeting of 30 October 2006 and in that it had made the ruling of 6 November 2006 with reference to the wrong provisions of the CCP.
However, those errors were merely technical in nature, had been remedied, and had resulted in no prejudice to the applicant.
At the same time, the Regional Court rejected a request by the applicant for release in return for a pledge under Article 80 § 1 (b) of the CCP that he would live in accordance with the law.
21. On 30 July 2007 the applicant challenged the above-mentioned decisions in the Constitutional Court (Ústavný súd) by way of a complaint (sťažnosť) under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).
On 27 September 2007 the complaint was declared inadmissible as having been lodged outside the statutory two-month time-limit.
22. On 11 January 2007 the applicant filed a third request for release, which was received at the District Court on 16 January 2007, and which he amended on 26 June 2007.
23. In its later observations in reply to the applicant’s constitutional complaint (see paragraphs 26 et seq. below), the District Court submitted as follows:
“... no decision had been taken in respect of [the request for release], which was explained by the ... judge as being because he had considered [the request for release] to be a supplement to the [applicant’s] interlocutory appeal against the decision of 6 November 2006” [see paragraph 19 above].
24. In the absence of any decision, on 21 August 2007 the applicant requested that his submissions of 11 January and 26 June 2007 be responded to. The request was lodged with the Regional Court, which transmitted it to the District Court, where it was received on 5 September 2007.
25. On 24 September 2007 the District Court held a public session (verejné zasadnutie) at which it ordered the applicant’s immediate release, finding that his detention was no longer justified. The written version of the order refers to the applicant’s “request for release”, the release to be “based on the Regional Court’s decision [to quash the convicting judgment]” (see paragraph 12 above), without any further specification.
The order was implemented immediately.
26. The applicant lodged a new complaint under Article 127 of the Constitution. No copy of it has been submitted to the Court. However, from the summary of the complaint in the Constitutional Court’s judgment (nález) (see below), the following can be established.
27. The complaint was received at the Constitutional Court on 22 August 2007. It was assessed to be a separate complaint from the complaint of 30 July 2007 (see paragraph 21 above). Upon an invitation by the Constitutional Court, the applicant’s lawyer provided further and better particulars on 4 December 2007.
28. The applicant challenged the District Court’s handling of his request for release of 11 January 2007, alleging a violation of his rights under Article 5 §§ 3 and 4 of the Convention, as well as the constitutional counterpart of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention.
29. The applicant claimed the equivalent of approximately 6,600 euros (EUR) in compensation, citing “a particularly arbitrary and grave violation of [his] rights”.
30. On 13 December 2007 the complaint was declared admissible.
31. In its observations in reply to the complaint, which were filed with the Constitutional Court on 26 May 2008, the District Court made the submission cited above (see paragraph 23).
32. On 17 June 2008 the Constitutional Court found a violation of the applicant’s rights under Article 5 § 4 of the Convention. It observed, inter alia, that it was clear from the title and content of the applicant’s submission of 11 January 2007 that it was a request for release and not a supplement to his interlocutory appeal against the decision of 6 November 2006. It had been the responsibility of the District Court to deal with it accordingly, with priority and adequate expeditiousness, which it had failed to do.
33. The Constitutional Court awarded the applicant the equivalent of approximately EUR 660, and the reimbursement of his legal costs, by way of just satisfaction. The amount of just satisfaction was determined “on an equitable basis” and with reference to Article 41 of the Convention, the “character of the violation found”, the “length of the District Court’s inactivity”, and the fact that the applicant had been released in the meantime.
34. In so far as the applicant had invoked Article 5 § 3 of the Convention, the Constitutional Court observed that the case concerned matters of procedure falling within the ambit of Article 5 § 4 of the Convention, and not the former provision, taken in conjunction with Article 5 § 1 (c) of the Convention. Similarly, as no determination of the merits of the case was involved, the constitutional equivalent of Article 6 § 1 of the Convention was not applicable.
35. The relevant part of Article 46 of the Constitution reads as follows:
“...
3. Everyone shall have the right to compensation for damage caused by an unlawful decision of a court, other State organ or an organ of public administration, or by wrongful official action.
4. The conditions and details ... shall be provided for by an Act of Parliament.”
36. Article 127 reads as follows:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.
4. The liability for damage or other loss of the person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.”
37. The Constitutional Court Act (Law no. 38/1993 Coll., as amended) governs the organisation of the Constitutional Court, the procedure before it and the status of its judges.
An individual complaint under Article 127 of the Constitution is made subject to the rule of exhaustion of ordinary remedies, which is formulated in the relevant part of section 53(1) and (2) as follows:
“1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute.
2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition for reasons worthy of particular consideration.”
38. Under section 56(4), when dealing with individual complaints, in the event of a finding of a violation of a fundamental right or freedom:
“The Constitutional Court may also grant appropriate financial compensation to the person whose fundamental right or freedom has been violated.”
39. Section 56(6) provides that:
“If the Constitutional Court quashes a final and binding (právoplatné) decision, measure or act and remits the matter for further proceedings, [the authority] which issued the decision, decided on the measure or carried out the act is liable to examine and determine the matter anew. In such proceedings or procedure [it] shall be bound by the legal view of the Constitutional Court.”
40. In connection with four other individual applications under the Convention, the Constitutional Court produced a report dated 7 March 2011 concerning the existence of an enforceable right to compensation, as required by Article 5 § 5 of the Convention, in respect of detention in contravention of Article 5 §§ 1 to 4 of the Convention and the Constitutional Court’s practice in awarding appropriate financial compensation.
The report and case-law references contained therein may be summarised as follows.
41. Awarding appropriate financial compensation under Article 127 § 3 of the Constitution is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals or legal entities which has been found by the Constitutional Court. The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection greater than a mere finding of a violation or, as the case may be, order by the Constitutional Court that the case be dealt with by another authority instructed to avoid a similar violation of the fundamental right in question (cases nos. IV ÚS 410/04 and IV ÚS 139/08).
The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy a violation of a right or freedom by way of quashing the impugned decision or measure or by restoring the status quo ante (case no. I ÚS 15/02).
The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right, the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned (mutatis mutandis, case no. III ÚS 424/08).
42. As regards the system of remedies in respect of detention in violation of Article 5 §§ 1 to 4 of the Convention, by virtue of Article 127 § 4, the liability of a person who has violated rights or freedoms as referred to in paragraph 1 of that Article for damage or other loss is not to be affected by the Constitutional Court’s decision, including on appropriate financial compensation. This provision is of particular relevance in correlation with the right to compensation for damage (including nonpecuniary damage) caused by a public authority under the State Liability Act.
43. The provision of Article 127 § 3 of the Constitution, which allows for an award of appropriate financial compensation, is a special and autonomous remedy which is independent of the State Liability Act. It does not constitute a lex specialis and, therefore, an award or non-award of appropriate financial compensation under Article 127 of the Constitution does not preclude a claim for compensation for pecuniary or non-pecuniary damage under sections 7, 8 and 9 of the State Liability Act.
44. The State Liability Act (Law no. 514/2003) was enacted on 28 October 2003 and became operative on 1 July 2004. It provides for the liability of the State for damage which has been caused by, inter alia, unlawful arrest, detention (zadržanie) or other deprivation of liberty (section 3(1)(b)); decisions concerning remand in custody (väzba) (section 3(1)(c)); and wrongful official action (section 3(1)(d)).
45. Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty has been quashed as being unlawful, or where there has been wrongful official action in that context, the person affected by it is entitled to compensation for damage.
46. The right to compensation for damage caused by a decision concerning pre-trial detention is vested in the person who has been detained, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)), or he or she has been acquitted (section 8(5)(b)), or the matter has been referred to another authority (section 8(5)(c)).
47. However, no such right arises when the person concerned has himself or herself given cause to be remanded in custody (section 8(6)(a)).
48. Section 9, which deals with compensation for damage caused by wrongful official action, provides:
“1. The State is liable for damage caused by wrongful official action. Wrongful official action includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings, or other unlawful interference with the rights and legally recognised interests of individuals and legal entities.
2. The right to compensation for damage caused by wrongful official action is vested in the person who sustained the damage.”
49. A claim for damages under the Act has first to be raised by the injured party with the authority liable for the damage in question with a view to its preliminary assessment (section 15(1)). Should that authority fail to satisfy the claim within six months of the day of its reception, the injured party is free to assert the claim in court (section 16(1)).
50. Section 17 defines the manner and extent of compensation for damage. It provides in its relevant part:
“1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise.
2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.”
51. Under section 25(4), unless otherwise provided for by special legislation, disputes concerning matters regulated by the State Liability Act are to be decided upon by the courts.
52. In a judgment dated 16 March 2007 (in case no. 4C 258/2006), the Brezno District Court allowed an action for damages by two individuals against the State under the State Liability Act and ordered the defendant to pay the costs of their defence in connection with a criminal trial that had ended with their acquittal.
On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following an appeal by the defendant.
53. On 14 October 2009 the Bratislava Regional Court allowed an appeal (case no. 2Co 238/2008) in connection with an action by an individual against the State under the State Liability Act for damages, awarding him a sum of money in compensation for non-pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal.
54. In a judgment dated 17 August 2009 (case no. 19C 47/2006), the Bratislava I District Court allowed an action for damages by an individual against the State under the State Liability Act and awarded the claimant a sum of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial.
The impugned wrongful official action concerned the extension of the claimant’s detention pending trial.
The action was preceded by a Constitutional Court judgment given on 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court had found a violation of the claimant’s rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court did not award the claimant damages as he had made no claim for damages.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-101978
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KRYVITSKA AND KRYVITSKYY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants, mother and son, were born in 1945 and 1975 respectively and live in Kyiv.
6. On 16 July 1992 Mrs Y.B., born in 1908, officially registered the first applicant as a permanent tenant in her flat and in March 1993 signed it off to her in a will, purportedly in exchange for the first applicant being her live-in aide. On 5 January 1993 the second applicant, then a minor, was also officially registered as a permanent resident in Mrs Y.B.'s flat as his mother's family member. The applicants moved into the flat, took care of the charges and maintenance fees and did some renovation work.
7. On 23 August 1994 the Kyiv City Administration promised to provide the applicants with a new flat in view of the fact that a decision had been taken to demolish the building of which Mrs Y.B. was co-owner. That decision, however, was never complied with.
8. In 1995 and 1996 the second applicant's wife and two children from her previous relationship, born in 1988 and 1989, were also registered as permanent tenants in the same flat. Subsequently the second applicant adopted the children (in 1996) and divorced their mother (in 1998).
9. On 18 December 1998 Mrs Y.B. died.
10. After her death, the first applicant learned that in 1996 and 1998 Mrs Y.B. had drafted two more wills, signing the same flat off to other individuals, and on 12 March 1999 instituted judicial proceedings seeking to have those two wills annulled. The first applicant claimed that since 1995 Mrs Y.B. had been under severe stress resulting from her participation in an ongoing court dispute with Mrs G.D., a co-owner of the building, and, consequently, her mental health and judgment had deteriorated.
11. On 26 February 2001 a panel of experts conducted an assessment of Mrs Y.B.'s mental health and found that in March 1993, December 1995 and October 1998 Mrs Y.B. had suffered from organic psychiatric disorders giving rise to moderate intellectual and memory impairment and paranoia. Consequently, during these periods she had been unable “to understand the meaning of her actions or control them”.
12. As a result of those conclusions, on 3 April 2001 the Leningradsky District Prosecutor joined the first applicant's proceedings on behalf of the State, seeking annulment of all Mrs Y.B.'s wills, including the one drafted in 1993 in the first applicant's favour.
13. On 8 June 2001 the Leningradsky District Court of Kyiv allowed the prosecutor's claim. The parties' appeals against this judgment were eventually dismissed as inadmissible on procedural grounds and it became final.
14. On 29 April 2002 the Svyatoshynsky District Tax Administration registered the State's (the municipality's) title to the late Mrs Y.B.'s flat as intestate estate.
15. On 28 May 2002 the Tax Administration instituted court proceedings against the applicants, seeking to annul their tenancy registration as lacking any legal basis on account of the impaired judgment of the former flat owner when authorising it. The Administration further sought to evict the applicants, claiming that their occupancy impeded the authorities' ability to sell the flat at the highest possible price.
16. The second applicant lodged a counterclaim, seeking to be acknowledged as a lawful tenant of the flat. He maintained, in particular, that he and his mother had occupied it for a considerable period of time in good faith and on lawful grounds and took care of maintenance fees and renovations. In addition, the family had no alternative housing and their eviction would compromise the interests of raising two minor children, who remained in his custody after their mother had left the family.
17. Subsequently the Svyatoshynsky District Minors Service intervened in the proceedings, requesting the court to consider the interests of the two minor children in retaining the tenancy.
18. During the hearing of 15 July 2002 the Svyatoshynsky District Court of Kyiv requested Mr Ts., one of the experts who had conducted the post-mortem assessment of Mrs Y.B.'s mental state in February 2001, to assess whether she had been legally competent to authorise the first applicant's tenancy on 16 July 1992. On the same day Mr Ts. delivered a statement that, based on the results of the post-mortem psychiatric assessment of Mrs Y.B.'s condition in 1993, it was certain that on the date at issue she could not understand the meaning of her actions or control them.
19. On the same date the court issued a judgment allowing the claim by the Tax Administration. The relevant part of the judgment read as follows:
“The court, having heard the explanations of the parties, having examined case-file materials, considers it necessary to allow the initial claim ... and to reject the counterclaim, regard being had to the following:
On 16 July 1992 and 5 January 1993 respectively, Y. B., who could not understand the meaning of her actions or control them, authorised the registration of Kryvitska G.S. and Kryvitskyy Y.F. as tenants of the part of the building belonging to her ..., having thus concluded a tenancy agreement.
On 16 December 1998 she died, and 2/400 of the building, which had belonged to her ..., became property of the State represented by the Svyatoshynskyy District Tax Administration of Kyiv ..., which on 28 May 2002 sought protection of the owner's rights, which should not be infringed by Kryvitskyy Y.F. and Kryvitska G.S., who have occupied the premises, regard being had to the above, arbitrarily, and should be evicted without provision of other housing.
In light of the above Kryvitskyy Y.F.'s claim of right to use the premises cannot be allowed ...
Regard being had to the above and referring to Articles 55 and 555 of the Civil Code of Ukraine, Articles 4 and 48 of the Law of Ukraine “On Property”, Articles 116 and 191 of the Housing Code of Ukraine, Articles 15, 30, 62, 75 and 203 of the Code of Civil Procedure of Ukraine, the court
HAS DECIDED:
To allow the initial claim ...”
20. The applicants appealed. They alleged, in particular, that the expert assessment of Mrs Y.B.'s mental health was flawed and superficial, that at the moment of concluding their tenancy agreement they had acted in accordance with the law and in good faith and, under the circumstances of their case, could not have foreseen that the law concerning arbitrary occupation of the premises would be retrospectively applied to them. They further alleged that their eviction would render them homeless and infringe their Constitutional right to respect for their home and, moreover, the second applicant's eviction would jeopardize the rights of the two minor children, who remained in his sole custody.
21. On 13 August 2002 the Minors Service informed the Kyiv City Court of Appeal that the children actually lived in the flat and were in the second applicant's custody, since their mother had left to work in Russia.
22. On 16 October 2002 the Kyiv City Court of Appeal dismissed the applicants' appeal, endorsing the first-instance court's reasoning. It also noted that according to an address bureau certificate, the children and their mother were not registered as tenants in the flat at issue. The judgment became binding for enforcement.
23. The applicants appealed in cassation, maintaining, in addition to their previous arguments, that the courts had wrongly refused to admit their evidence that the children had remained resident in the flat. On 8 May 2003 the Supreme Court dismissed the applicants' request for leave to appeal in cassation, having found that the lower courts had properly assessed the evidence before them and interpreted the applicable law.
24. On 12 November 2002 Mr Zh., the bailiff assigned to the case, requested the Svyatoshynsky District Court to clarify its judgment of 15 July 2002 in view of the fact that the children were found to be actually living in the flat.
25. On 14 November 2002 the President of the Svyatoshynskyy District Court wrote a letter to the Chiefs of the Kyiv City Department of Justice and the Svyatoshynsky District Department of Justice, stating that, having requested clarification of an already clear judgment, Mr Zh. had intentionally protracted its enforcement, thus grossly interfering with State interests. He further requested the addressees to prevent such applications in future.
26. On an unspecified date the applicants requested that their eviction be replaced by monetary compensation.
27. On 28 December 2002 the court dismissed the Bailiffs' and the applicants' requests.
28. In the meantime, on 5 December 2002 the applicants were evicted. According to the applicants, they had to request housing of various relatives and friends and had no stable place of residence following their eviction. In 2006 the second applicant bought a house.
29. On several occasions the applicants requested the Tax Administration to inform them when the flat would be put on sale, as they were interested in trying to purchase it and received responses that they could be eligible for a purchase only if all co-owners of the building waived their statutory privilege. Subsequently they were informed that in April 2003 the flat had been sold to Mrs G.D., a co-owner of the building.
30. Relevant provisions of the Civil Code read as follows:
“An agreement concluded by a citizen who, although legally capable, at the moment of its conclusion was unable to understand the meaning of his actions or control them, can be annulled by the court ...”
“Inheritable property shall be transferred to the State as a successor:
...
2) in the event that a predecessor has no heirs either by virtue of the law or of a testament;
...”
31. Relevant provisions of the Housing Code read as follows:
“... Persons who arbitrarily occupy residential premises shall be evicted without provision of other housing.”
“Housing disputes shall be decided in accordance with the legislation ... by a court, arbitration court, mediation or comrades' court, as well as other competent bodies.”
32. Relevant provisions of the Law “On Property” read as follows:
“1. The owner of a property shall possess, use and dispose of that property at his discretion.
2. The owner of a property shall be entitled to carry out any actions with respect to that property, which are not in conflict with the law ...
...”
“1. Ukraine shall legislatively ensure equal conditions for the protection of property rights for individuals, organisations and other owners.
2. The owner of a property may demand that any infringements of his rights are ceased, even where those infringements are not connected with the deprivation of the possession, and compensation for resulting damage.
...”
VIOLATED_ARTICLES: 8