ITEMID: 001-101177
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GROSSKOPF v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 5-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1945 and is currently detained in Aachen.
6. On 17 May 1995 the Cologne Regional Court convicted the applicant on three counts of attempted burglary as a member of a gang. Including the sentence imposed for a previous conviction of attempted burglary, the court fixed a cumulative sentence of seven years' imprisonment and ordered the applicant's preventive detention pursuant to Article 66 of the Criminal Code (see paragraphs 27-28 below).
7. The Regional Court found that, having regard to his personality and to his numerous previous convictions of burglary, the applicant had a disposition to commit serious offences causing serious economic damage and was therefore dangerous to the public. The applicant had repeatedly declared that the burglaries he had committed, which had been aimed at obtaining several ten thousand Deutschmarks and of which he had made his living, were not immoral. As confirmed by a psychiatric expert, the applicant, who was of at least average intelligence, was therefore liable to reoffend. The judgment became final on 10 February 1996.
8. The applicant served his full prison sentence until 18 February 2002. Since 19 February 2002 the applicant has been in preventive detention.
9. On 6 February 2002 the Aachen Regional Court, sitting as a chamber for the execution of sentences (Strafvollstreckungskammer), decided that the applicant should be kept in preventive detention following the end of his prison term on 18 February 2002. Relying on Article 67c § 1 of the Criminal Code (see paragraph 29 below), the court considered that his preventive detention was still necessary in view of the objective of such detention.
10. The Regional Court, agreeing with the views taken by the director of Aachen Prison and by the Public Prosecutor's Office, found that the applicant was very liable to reoffend and to commit serious offences if released (Article 67d § 2 of the Criminal Code; see paragraph 30 below). It noted that the applicant, who was represented in the proceedings by a courtappointed defence counsel but had refused to participate in an oral hearing, had numerous previous convictions of burglary for which he had spent already more than 26 years in prison. He had always made his living outside prison from crime and had hardly worked in prison, arguing that the remuneration for his work was insufficient. The applicant insisted that the police had arrested him by having recourse to illegal methods of investigation and that he had wrongfully been convicted. He thus failed to accept that the court was bound by the findings in the final judgment of the Cologne Regional Court. The applicant was free to deny having committed the offences he was convicted of by that final judgment in 1995, which as such did not mean that he risked being found to be a recidivist. However, he refused to reappraise his entire criminal past. The findings of the psychiatric expert consulted by the Cologne Regional Court on the applicant's personality were therefore still valid. The fact that the applicant could stay with his son or with a writer when released did not warrant the conclusion that he would not reoffend on release.
11. On 28 March 2002 the Cologne Court of Appeal, endorsing the reasons given by the Aachen Regional Court, dismissed the applicant's appeal.
12. On 17 May 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his preventive detention violated the right to liberty and the prohibition on punishment without guilt under the Basic Law. His preventive detention also breached the prohibition of torture in that it was aimed at extracting from him a confession to the offences for which he had been convicted in 1995. Moreover, the proceedings before the Regional Court had been unfair because that court had refused to verify the police methods of investigation leading to his arrest and conviction.
13. By a decision of 18 December 2002 (which the applicant received on 21 December 2002) the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 808/02).
14. On 21 February 2006 the Aachen Regional Court, in review proceedings pursuant to Article 67d § 2 and Article 67e § 2 of the Criminal Code (see paragraphs 30 and 31 below), allowed the Public Prosecutor's request and refused to suspend the applicant's placement in preventive detention on probation.
15. Having heard the applicant, represented by counsel, in person, the Regional Court found that he was still liable to reoffend if released. It referred to the findings in its previous decision of 24 February 2004 not to suspend the applicant's placement in preventive detention on probation and argued that there had been no developments indicating that the applicant was now less likely to be recidivist. His numerous previous convictions showed that he had chosen at an early stage to make his living from crime. Having regard to the report submitted by the director of Aachen Prison, who had opposed to the suspension on probation of the applicant's placement in preventive detention, the Regional Court noted that since his dismissal from his job as editorial journalist of the prison journal for misuse of the computer made available for editing that journal, the applicant was out of work due to his own fault. As the applicant refused any therapy, there was no expert opinion on him and thus no visible positive development.
16. On 16 May 2006 the Cologne Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant's appeal. It took the view that his preventive detention was covered by Article 5 § 1 (a) of the Convention. It further confirmed that the applicant's final convictions could not be reviewed in the proceedings at issue, but could only be subject of reopening proceedings. Even assuming that the applicant, as he had claimed, had been dismissed from his job as editing journalist of the prison journal without good cause, this did not alter the fact that owing to his disrespect for the property of others, he was liable to reoffend if released. Whilst the applicant did not sell the house he owned (valued at some EUR 250,000), he did not have at his disposal the necessary funds to make his living so that there was a risk that he would reoffend.
17. On 5 June 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his detention, being a preventive measure, violated his right to liberty. Moreover, it breached the prohibition of torture in that it was aimed at extracting from him a confession to the offences he had been convicted of. The low remuneration for his forced labour disregarded human dignity. The courts' refusal to review the lawfulness of his criminal convictions also violated Article 13 as the court proceedings at issue were ineffective without doing so.
18. On 21 June 2006 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 1169/06).
19. While in preventive detention, the applicant worked for a private company between September 2002 and January 2004 and as editorial journalist for the prison journal between February and September 2004. He was paid an average of some EUR 300 net per month by the State.
20. On 3 December 2002 the North Rhine-Westphalia Office for the Execution of Sentences (Justizvollzugsamt) dismissed the applicant's objection to his wage slip. It noted that the applicant's remuneration was in accordance with the rates fixed in the Execution of Sentences Act. It argued that his wage was not unreasonably low, given that the remuneration included other advantages and that the Land paid contributions to the unemployment insurance and did not deduct a contribution to the cost of keeping him in prison from his wages.
21. On 25 February 2003 the Aachen Regional Court dismissed as illfounded the applicant's request for judicial review of the low remuneration for his prison work, for which he claimed some EUR 10001500 net per month, and of the failure of the prison authorities to disclose the financial agreement between them and the private company he worked for. It took the view that the remuneration for prison work, which had recently been raised by 80 per cent in order to comply with a judgment of the Federal Constitutional Court of 1 July 1998, was constitutional. Endorsing the reasons given by the North Rhine-Westphalia Office for the Execution of Sentences, the court argued that if prisoners received a higher remuneration, private companies might no longer place any orders in view of the considerably lower productivity of prisoners and prisoners would then not be able to work at all. As the applicant's remuneration was lawful, he could not claim the disclosure of the terms of the contract concluded between the prison authorities and the private company.
22. On 15 May 2003 the Hamm Court of Appeal dismissed the applicant's appeal on points of law as inadmissible. It found that a review of the Aachen Regional Court's decision was not necessary for the development of the law or in order to secure consistency in the case-law.
23. On 13 July 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that the unduly low remuneration for his prison work was degrading and disregarded human dignity. Moreover, the failure of the prison authorities to disclose the wage paid to them by the private company for his work breached his right to effective judicial review.
24. On 30 September 2003 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 1177/03).
25. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court's judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions relevant in the present case can be summarised as follows:
26. The German Criminal Code distinguishes between penalties (Strafen) and socalled measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Preventive detention (Article 66 et seq. of the Criminal Code) is classified as a measure of correction and prevention. The purpose of such measures is to rehabilitate dangerous offenders or to protect the public from them. They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq.). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article 62 of the Criminal Code).
27. The sentencing court may, at the time of the offender's conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).
28. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year's imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1).
29. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person's preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person's conduct (Führungsaufsicht) commences with suspension.
30. Article 67d of the Criminal Code, in its versions in force as of 31 January 1998, lays down rules on judicial review of the placement in preventive detention. If there is no provision for a maximum duration of the measure of correction and prevention or if the time-limit has not yet expired, the court (i.e. the chamber responsible for the execution of sentences) shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the offender (paragraph 2 of Article 67d).
31. Pursuant to Article 67e of the Criminal Code the court (i.e. the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended on probation. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this timelimit is two years (paragraph 2 of Article 67e).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-91401
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SHABELNIK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Required by interests of justice);Non-pecuniary damage - finding of violation sufficient
JUDGES: Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1979 and is currently in prison in the city of Zhytomyr, Ukraine.
6. On 10 December 2001 the applicant was arrested on suspicion of kidnapping and murdering a minor, S. During the arrest the applicant sustained light bodily injuries, which were recorded by a forensic medical expert.
7. On 13 December 2001 the Bogunsky District Court of Zhytomyr ordered the applicant’s detention.
8. On 17 December 2001 the applicant was provided with a lawyer.
9. On 19 December 2001 the applicant was charged with the above-mentioned crime, following an investigation during which the applicant had shown the police the places in which S.’s corpse and some of her belongings had been hidden.
10. On 15 February 2002 the applicant, allegedly under pressure by the investigator, wrote a letter requesting that he be questioned “about events that took place at the end of October 2001 at the address 5, maidan Rad, in Zhytomyr”. In his letter he mentioned that he did not require the assistance of a lawyer during the interview. According to the stamp on the letter it was received by the Zhytomyr Prosecutor’s Office on 18 February 2002.
11. On 15 February 2002, allegedly upon the above request, he was questioned by the investigating prosecutor, Sh., as a witness about the circumstances of the death of Mrs K. During this questioning, without a lawyer, the applicant confessed to the murder of Mrs K. (The criminal investigation into the murder of Mrs K. had been initiated on 29 October 2001. On 25 December 2001 Mr K., son of the late Mrs K., was questioned by the investigating prosecutor, Sh., as a witness and confessed to the murder of his mother. The next day he retracted his confession. On 27 December 2001 the criminal case against Mr K. was closed for lack of corpus delicti.) In his testimony the applicant submitted that he had needed money and having read in a newspaper about the intention of Mrs K. to buy an apartment had decided to rob her. Having gone to her home and having found that she had no money, he killed her. The applicant gave numerous details about the apartment, the victim and the way he killed her. The minutes of the applicant’s questioning stated that he had been told about his duty to state everything he knew about the case and the criminal liability for refusal to give testimony and for giving false testimony under Articles 385 and 386 of the Criminal Code. It was also indicated in the minutes that the provisions of Article 63 of the Constitution had been explained to the applicant.
12. On 16 February 2002 the applicant, still as a witness, participated without a lawyer in an on-site reconstruction of the events of the murder of Mrs K.
13. On the same day the applicant was examined by a forensic expert who did not report any signs of ill-treatment on his body. According to the applicant this report was falsified, given that a previous medical examination conducted on 22 January 2002 had revealed several injuries on his body, the traces of which could not have disappeared in less than a month.
14. On 18 February 2002 the applicant was additionally questioned, without a lawyer, by the prosecutor concerning the circumstances of purchasing the knife which the applicant had used to kill Mrs K.
15. On 22 February 2002 the applicant was repeatedly questioned without a lawyer about the knife because it had been established that the shop in which he had allegedly bought it did not sell knives. The applicant changed his testimony and said that he had killed Mrs K. with another knife taken from his father.
16. On 25 February 2002 the investigating prosecutor Sh. instituted criminal proceedings against the applicant for the murder of Mrs K. and joined them with the criminal case concerning the kidnapping and murder of S.
17. On 3 April 2002 the applicant was charged with both the kidnapping and murder of S. and the murder of K.
18. On 22 May 2002 the criminal case was referred to the Zhytomyr Regional Court of Appeal, acting as a first-instance court. According to the applicant, at this stage he requested the court to allow his mother to act as his non-legal representative but this request was refused.
19. During the court hearings the applicant claimed his innocence with respect to the murder of Mrs K. He maintained that he was forced to confess. At the same time, he admitted his guilt in kidnapping S., but claimed that she was killed by some other person whom he knew only by name.
20. On 11 July 2002 the Zhytomyr Regional Court of Appeal found the applicant guilty of the kidnapping and two murders and sentenced him to life imprisonment. The applicant’s conviction for murdering Mrs K. was based on his confessions, which corresponded to the information available to the investigating authorities.
21. The applicant’s lawyer, D., appealed against that decision. In his cassation appeal, he complained, inter alia, of a violation of the applicant’s right to defence and of the use of unlawfully obtained evidence by the court. He submitted that the accusation that the applicant had murdered Mrs K. had been based exclusively on the statements he had made as a witness and had not been supported by any corroborating evidence. Furthermore, he complained that some contradictions in the body of evidence had been ignored by the court, namely that the forensic examination established that Mrs K. died not earlier than 24 October 2001 while the applicant had allegedly killed her on 23 October 2001; that the newspaper from which the applicant had allegedly learned about the intention of Mrs K. to buy an apartment was published only on 25 October 2001, after the death of Mrs K.; that, according to testimonies of witnesses, Mrs K. was not the kind of person who would let a stranger into her apartment and talk to him frankly about her personal relationships.
22. The applicant raised similar issues in his cassation appeal. He further complained that the investigation had failed to locate M., who had been his accomplice in the kidnapping case and the murderer of S.
23. On 10 October 2002 the Supreme Court of Ukraine upheld the decision of the appellate court. In reply to the complaints of the applicant and his lawyer of a violation of the right to defence, the court stated:
“The arguments of the appeals as to the violation of the right to defence of D. Shabelnik during his questioning as a witness of a crime against K. are groundless.
Having been arrested on suspicion of committing another crime, on 15 February 2002 Shabelnik D. wrote a letter stating his wish to give testimony voluntarily about the events that took place at the end of October 2001 at the address Zhytomyr, 5, maidan Rad. Since in his letter he did not indicate what information he wanted to provide, the investigating authorities rightly questioned him as a witness. The provisions of Article 63 of the Constitution were explained to him.”
24. The court further repeated the reasoning of the Zhytomyr Court of Appeal and concluded that the applicant could only have known about the circumstances of the murder of Mrs K. if he had been the offender himself.
Article 59
Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.
In Ukraine, the advocacy acts to ensure the right to a defence against accusation and to provide legal assistance in deciding cases in courts and other state bodies.
Article 63
A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.
A suspect, an accused, or a defendant has the right to a defence...
26. Article 45 of the CCP stipulates that the legal representation of a suspect, accused or defendant is obligatory, inter alia, if the possible penalty is a life sentence.
27. Article 69 of the CCP provides that a person is entitled to refuse to give testimony as a witness about himself or herself.
28. Article 70 of the CCP provides that a person who has been called as a witness shall
29. Article 71 of the CCP provides that a witness shall bear criminal responsibility for giving knowingly false testimony.
30. Article 4004 of the CCP provides for the extraordinary review of final judgments, in particular, in the event of serious violations of the procedural law.
31. Under paragraph 2 of Article 115 of the Code, murder committed by a person who has previously committed a murder shall be punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.
32. Under paragraph 1 of Article 384 of the Code any knowingly false testimony by a witness during the inquiry or pre-trial investigation shall be punishable by correctional labour for a term of up to two years, or detention for a term of up to six months, or restriction of liberty for a term of up to two years.
33. Under Article 385 of the Code a groundless refusal by a witness to testify in court or during a pre-trial investigation shall be punishable by a fine or detention for a term of up to six months. At the same time it provides that refusal to testify against himself or herself during an inquiry, pre-trial investigation or in court shall not be criminally liable.
34. Article 10 of the Law provides for additional individual measures with a view to execution of judgments of the Court, including review of the case by a court and reopening of the judicial proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-71655
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MICKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Vlado Mickovski, is a national of the former Yugoslav Republic of Macedonia, who was born in 1964 and lives in Vraneštica (Kičevo).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been a member of the Social-Democrat Political Party (the SDSM) since 1996. In the 1996 local elections he was elected member of the Vraneštica Local Council.
On 29 December 1997 the applicant was appointed Deputy Solicitor General by the Government for a term of four years and he resigned from his post of councillor.
On 23 May 2000 the applicant was dismissed. No reasons were given by the Government in this respect.
On 24 July 2000 the applicant stated that he lodged a complaint with the Constitutional Court by mail. He alleged that his dismissal was unlawful and discriminatory and that the sole reason for his dismissal was his membership in the SDSM.
The applicant stated that the above mentioned mail came back with a notice stating that it had not been collected. The applicant re-sent the same letter to the Constitutional Court on 23 August 2000. The clerk of the Constitutional Court responsible for collecting from the post office mail addressed to that Court had been on holiday and nobody collected the mail.
On 27 September 2000 the Constitutional Court refused to examine the applicant’s complaint. It stated, inter alia, that:
“Under rule 51 of the Rules of Constitutional Court ... each citizen who considers himself/herself to be a victim of a violation of the rights and freedoms set out in Article 110 § 3 of the Constitution ... may lodge a complaint within two months’ time-limit from the day he was served with the final decision or act ...
Regard being had to the fact that the [impugned] decision ... was adopted on 23 May 2000 and promulgated [in the Official Gazette] on 9 June 2000, and [that the applicant] lodged his complaint ... on 11 September 2000 (the complaint was postmarked 23 August 2000) it means [the complaint was lodged] out of the two-month time limit ...”
On 18 October 2000 the applicant submitted to the Constitutional Court that he had sent his first letter on 24 July 2000, and that it had come back to him with a notice stating that the mail had not been collected. He enclosed the acknowledgement of receipt.
On 24 November 2000 the Constitutional Court replied that there had been no evidence in the case-file which would corroborate the applicant’s allegations that he had lodged his complaint on 24 July 2000. In particular, the court could not establish whether or not the enclosed acknowledgement of receipt related to the said mail.
On 28 November 2000 the applicant forwarded the note received from the Post to the Constitutional Court. It stated that his mail of 24 July 2000 addressed to the Constitutional Court had been returned to him on 21 August 2000 since it had not been collected by the receiver.
On 10 January 2001 the applicant was informed that the Constitutional Court had decided not to re-examine his complaint, because of the reasons set out in its decision of 27 September 2000.
On 1 July 2000 the applicant complained to the Supreme Court that his dismissal had been unlawful.
On 15 October 2000 the Supreme Court refused to examine the applicant’s complaint considering that it was not amenable to judicial review within the meaning of Section 30 § 1 of the Administrative Disputes Act. It stated, inter alia, that:
“From ... the Acts [on the Government, and on the Solicitor General] it transpires that the Government of the Republic of Macedonia, in this particular case, did not take a decision concerning an administrative issue, but that, within the boundaries of its competence as defined by Section 46 § 5 of the Government Act, ... [it] dismissed [one of its agents] from his office. The decision whereby [a person] is appointed or dismissed from his office does not represent an administrative act within the meaning of Section 6 of the Administrative Disputes Act because it does not contain a very important element [and] that is, it does not regulate an administrative issue. ...”
Article 110 § 3 sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation.
Article 2 provides:
“The Solicitor General’s office is established as an office of the Government of the Republic of Macedonia, which undertakes the legally defined measures and executed the legal instruments for the purposes of legal protection of the property rights and interests of the Republic of Macedonia and performs other tasks as set forth by law.”
Section 4 provides, inter alia, that the said duties shall be carried out by the Solicitor General and his deputies.
Article 5:
“The Solicitor General represents the Republic of Macedonia and its institutions before the courts, other bodies and legal entities and before foreign courts and bodies in property disputes with foreign natural or legal persons.”
Section 6 provides, inter alia, that the Solicitor General has to answer to the Government for his work. In his absence his duties shall be performed by one of his deputies. The Solicitor General and his deputies are required to observe and maintain the proprieties and good reputation befitting persons performing their duties.
Section 7 provides, inter alia, that his deputies may undertake all the measures before the courts or other bodies that are within the powers of the Solicitor General, and that they have to answer for their work to the Solicitor General and to the Government.
Sections 8, 9 and 10 provide that the State institutions shall provide the necessary information to the Solicitor General’s office concerning the State interest and property and that they shall co-operate in this respect.
Section 12 provides that if the Solicitor General considers that there is no need to institute proceedings, or it is better to reach a friendly settlement or to withdraw an application he shall ask the opinion of the state institution that he represents. In a case of disagreement, the Solicitor General may ask the Government to take a decision in this respect.
Section 13 provides that when the courts during the judicial proceedings observe that it is necessary to undertake measures for the protection of state property or interest they shall inform the Solicitor General.
Section 16 provides that the Government appoints and dismisses the Solicitor General and his deputies.
Section 17 provides, inter alia, that the Government’s decisions on the appointment of the Solicitor General and his deputies shall be promulgated in the Official Gazette.
Section 18 provides, inter alia, that a person who has Macedonian citizenship, who fulfils general conditions for employment in a state institution, is a Law School graduate and enjoys the appropriate reputation may perform the functions of Solicitor General, or Deputy Solicitor General.
Section 19 provides, inter alia, that the Solicitor General and his deputies shall be appointed for a period of four years. They may be re-appointed.
The Act contains no provisions regarding conditions of dismissal.


ITEMID: 001-109547
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KARPENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1971 and lived until his arrest in Yekaterinburg. He is serving a sentence in a correctional colony in the town of Nevyansk, in the Sverdlovsk Region.
6. On 8 April 1998 the Revdinsk Town Court found Mr Sh. and Mr B. guilty of several counts of aggravated robbery. In particular, the Town Court found it established that on 5 October 1995 the defendants, acting together with the applicant, the criminal proceedings against whom had been adjourned in view of his absconding during the investigation, and Mr O., the criminal case against whom had been closed following his death, had robbed a warehouse in the village of Vavozh in the Udmurtiya Republic. The Town Court further held that on 19 November 1995 defendant B., assisted by Mr R., the criminal proceedings against whom had been stayed following his escape, the applicant and Mr O. had robbed several warehouses in the village of Kungurka in the Sverdlovsk Region. At the same time, the court acquitted Mr Sh. of an additional robbery charge, having found no evidence in support of the accusation that on 17 September 1996 he and Mr R., Mr O., Mr V. and the applicant had participated in another robbery in the village of Novoye Selo in the Sverdlovsk Region
7. As regards the robbery in the village of Vavozh, the conviction was based on testimonies by defendant Sh. and the director general of the company and owner of the warehouse, Mr P., and on written depositions made during the pre-trial investigation by a warehouse guard, Mr M., and Mr O. The statements were as follows:
- defendant Sh. partly admitted his guilt. He argued that, having agreed to the applicant’s proposal and acting on the latter’s detailed instructions, he had gone to the warehouse. The applicant had forced him to watch over the warehouse guard, whom the applicant had beaten and tied up. Mr Sh. also admitted that he had helped the applicant and Mr R. to load stolen goods into a car and had received money from the applicant for his participation in the robbery;
- in his written statements Mr O. had given a similar account of the events;
- the company director stated that on the morning of 5 October 1995 he had been informed of the robbery. Having arrived at the warehouse, he had noticed that the guard had been severely beaten up;
- the warehouse guard testified that on 5 October 1995 two unknown individuals, whom he was unable to identify, had attacked him, beaten and tied him up. He had then heard someone robbing the warehouse.
8. As to the robberies in the village of Kungurka, the grounds for the conviction were testimonies made by defendant B. and the representative of the owner of the warehouse, Mr A., in open court and on written depositions by a warehouse guard, Mr Kh. and late Mr O., which they had made to the investigating authorities.
9. Defendant B. partly admitted his guilt and stated that in November 1995 the applicant, taking advantage of his trust, had asked him to help load a car. They had gone to the warehouse. Acting on the orders of the applicant, of whom he was afraid, Mr B. had helped to move the goods from the warehouse.
10. The representative of the owner of the warehouse confirmed that there had been a robbery at the warehouse.
11. In his statements to the investigators, Mr O. had admitted to having helped the applicant and Mr R. to rob the warehouse.
12. The guard Kh. stated that on 19 November 1995 two unknown persons had broken into the warehouse, tied him up and stolen goods.
13. The Town Court’s decision to acquit defendant Sh. of the robbery charge pertaining to the events in the village of Novoye Selo was based on the testimony by Mr Sh. and written depositions by a warehouse guard, Mr Me., and by Mr O.
14. Mr Sh. insisted that in September 1996 the applicant had asked him to drive him to the village, having promised money for his help. He had agreed on the condition that his assistance would not involve any criminal activities. Mr Sh. claimed to have had no knowledge that the applicant and Mr R. had committed the robbery.
15. The warehouse guard, Mr Me., stated that on 17 September 1996 an unknown man had attacked him, beaten and tied him up. He did not remember the attacker.
16. In his written depositions Mr O. admitted having assisted the applicant and Mr R. in their plan to rob the warehouse.
17. The judgment of 8 April 1998 became final on 20 May 2000, having been upheld on appeal.
18. As indicated above (see paragraph 6 above), the applicant had absconded and the criminal proceedings against him had therefore been adjourned. On 25 September 2001 he was arrested in the town of Neftekamsk. Two days later he was transferred to Yekaterinburg and placed in temporary detention facility no. 1.
19. A month later the Sverdlovsk Regional Prosecutor served the applicant with a bill of indictment, accusing him of organising the robberies of the warehouses in the villages of Vavozh, Kungurka and Novoye Selo. The charges were based, inter alia, on statements made by Mr Sh. and Mr B. during interrogations and confrontation interviews between them and the applicant in the course of the criminal proceedings against the applicant. The two accomplices maintained their testimony given during the 1998 criminal proceedings (see paragraphs 7, 9 and 14 above). In June 2002 the case was committed for trial.
20. On 19 February 2003 the Revdinsk Town Court held the first trial hearing, to which the applicant’s alleged, and already convicted, accomplices in the robberies, Mr Sh. and Mr B., as well as other persons whose written depositions or testimony in open court had served as the basis for the judgment of 8 April 1998, were summoned as witnesses (see paragraphs 6-16 above). None of them attended. The Town Court noted in the minutes of the hearing that the guard of the warehouse in Novoye Selo had died, Mr B. had travelled to Chelyabinsk on a business matter and Mr Sh. lived in another town. The reasons for the absence of the remaining witnesses were unknown. The Government provided the Court with a typed copy of a letter of 27 January 2003 from Mr Sh. informing the Town Court that in view of financial difficulties and his inability to leave his business matters unattended he had been unable to attend the trial. The Government also submitted a copy of a telegram sent by Mr Sh. to the Town Court on 3 February 2003. Mr Sh. had confirmed his inability to appear at the trial against the applicant and fully maintained the statements he had made during the pre-trial investigation and the court proceedings leading to his conviction in 1998.
21. The applicant’s lawyer successfully asked the Town Court to hear evidence from Mr V., an accomplice to the robbery committed in Novoye Selo on 17 September 1996, and Mr Ma.
22. During the hearing Mr V. testified that in 1995, having been approached by Mr R., he had driven to the warehouse. On arrival, he had witnessed Mr R., Mr O. and two unknown persons taking goods from the warehouse. The goods had been loaded up on his car. Mr V. had not seen the applicant and had not been aware of his alleged participation in the robbery.
23. Mr Ma. stated that in 1997 Mr R. had brought metal objects to him and had asked him to store them. He had subsequently learnt from the police that the goods had been stolen from a warehouse.
24. At the same hearing, the Town Court heard evidence from a representative of the owner of the warehouse in the village of Novoye Selo, Ms L., who confirmed the theft of goods from the warehouse on 17 September 1996.
25. Upon the parties’ request, the Town Court again sent summonses to the witnesses. On 11 April and 19 May 2003 it issued orders to a bailiff’s office requiring it to ensure Mr B.’s presence at the hearing. The orders indicated that Mr B. had been properly summoned to the hearings but had failed to attend.
26. No witnesses appeared before the Town Court at the following hearing on 28 May 2003. In view of their absence, the prosecutor asked the Town Court to read out the statements they had made to the investigating authorities in the 1998 proceedings. The applicant and his lawyer objected to the reading out of the statements by the presumed accomplices in the robberies, Mr Sh., Mr B., Mr R. and Mr O., noting that the applicant had been “denied an effective opportunity to confront those witnesses”. At the same time, the applicant argued that during the confrontation interviews the investigator had warned Mr Sh. and Mr B. against changing their earlier statements, threatening them with revocation of their parole and criminal prosecution.
27. The Town Court rejected the objection. Having noted that it was impossible to hear certain witnesses in open court owing to their deaths, and having taken into account that the applicant had had confrontation interviews with Mr B. and Mr Sh. during the pre-trial investigation against him, the court proceeded with the reading out of the witnesses’ statements.
28. On 29 May 2003 the Revdinsk Town Court found the applicant guilty of aggravated robbery committed in the village of Vavozh on 5 October 1995, in the village of Kungurka on 19 November 1995 and in the village of Novoye Selo on 17 September 1996 and sentenced him to eight years’ imprisonment. In addition to the written depositions by the witnesses, the conviction was based on records of crime-scene examinations and inventories showing that goods had been stolen from the warehouses.
29. In the judgment of 29 May 2003 the Town Court addressed the applicant’s objection to the use of the statements by witnesses whom he had been unable to cross-examine in open court. It held as follows:
“The court cannot agree with [the applicant’s] and his lawyer’s statement that the accusations against him are based on statements by persons with a vested interest [in his conviction] and who cannot be trusted.
The fact that Mr Sh., Mr B., Mr R. and Mr O. had taken part in the criminal acts of which [the applicant] stands accused cannot call into question the truthfulness of their statements. In exposing [the applicant] they, at the same time, [admitted to their own guilt] in [respect of] those crimes. In particular, Mr B. and Mr Sh. have already been punished for that.
As the case-file materials show ... Mr R. willingly went to the Sverdlovsk Regional Police Department and wrote a confession statement in which he described the robberies he had committed together with [the applicant], Mr Sh., Mr O., Mr B. and Mr V.. At the same time, he did not play down the importance of his role in the criminal acts.
[The applicant’s] statement that Mr B., Mr Sh. and Mr O. had slandered him because Mr R. had forced them to do so is wanton and unsubstantiated. The fact that Mr Sh. had been convicted of having slandered other persons in the course of unrelated criminal proceedings cannot serve as an undisputable ground for doubting the truthfulness of his statements in the present case.
The court cannot accept [the applicant’s] and his lawyer’s argument that the court has violated the principle of direct examination of evidence at a court hearing and the defendant’s right to defend himself. The statements which were read out at the court hearing are admissible evidence because interrogations and confrontations with those persons had been conducted in accordance with the requirements of the Code of Criminal Procedure. The court did not have an opportunity to question those persons at the court hearing because, despite every possible measure taken, it was unable to establish their places of residence.
However, the law allows the reading out in court of statements by defaulters.”
30. The applicant and his lawyer appealed. In particular, they argued that the conviction was exclusively based on statements by the witnesses questioned by the investigating authorities whom the applicant had been unable to confront in open court.
31. On 19 September 2003 the Sverdlovsk Regional Court upheld the judgment, endorsing the reasons given by the Town Court. In response to the applicant’s arguments concerning the admissibility of evidence, the Regional Court held as follows:
“The pre-trial investigation and trial were conducted thoroughly and objectively, in accordance with the requirements of the criminal procedural law and in compliance with the rights and lawful interests of the [applicant] and other parties to the criminal proceedings. [The applicant’s] right to defence was not violated. Confrontations between [the applicant] and Mr B. and between [the applicant] and Mr Sh. were conducted in accordance with the requirements of Articles 162 and 163 of the RSFSR Code of Criminal Procedure, [and] the lawyer... protected the [applicant’s] interests in the course of those investigative procedures.
The court correctly established the factual circumstances and the conclusions set out in the judgment completely correspond to [the facts]. The judgment is based on evidence examined at the court hearing and the court gave a correct interpretation to it. The court fully and objectively examined the materials of the criminal case file ...
At the hearing the court examined the prosecutor’s motion to read out the statements by [ten witnesses, including the four alleged accomplices]; it heard the parties’ opinion concerning that issue and ... it issued a decision.
The decision taken by the court to read out the statements of the above-mentioned persons is appropriately reasoned, substantiated and correct. The court considered that the statements which were to be read out at the hearing had been collected in accordance with the requirements of the criminal procedural law, that by virtue of Article 128 of the Constitution of the Russian Federation justice is executed on the basis of equality of the parties, that by virtue of Article 15 § 1 of the Constitution of the Russian Federation [the Constitution] has supreme legal effect in the Russian Federation and other laws cannot contradict its principles and rules. Mr O. ... had died before the trial commenced, Mr R. absconded [and] his place of residence was unknown to the court, the other witnesses defaulted despite being summoned by the court, [the applicant] had confrontations with Mr Sh. and Mr B. during which they entirely confirmed their statements.
In such circumstances, the reading out of the statements by the abovementioned persons corresponded to the principle that criminal proceedings in the Russian Federation should be adversarial; the court compared the statements to other evidence in the case and evaluated them in accordance with the requirements of the law.
[The applicant’s] guilt was confirmed by the statements by the [witnesses, including those by the alleged accomplices] and evidence contained in the written materials of the file. The court examined the arguments of the defendant and his lawyer that [the alleged accomplices] had slandered [the applicant][The alleged accomplices], while exposing [the applicant’s] guilt, did not play down their own involvement in the case; Mr Sh. and Mr B. were convicted of the crimes committed. In such circumstances the court had no reason to doubt the statements by [those witnesses].”
32. On 20 May 2003, having studied the voluminous case file comprising material, documentary and expert evidence and having heard a substantial number of witnesses, the Sverdlovsk Regional Court found the applicant, who was represented by counsel throughout the proceedings, guilty of unlawful possession of a weapon and forgery of documents. The applicant was also found guilty of having aided and abetted aggravated murder and was sentenced to fifteen years’ imprisonment.
33. The judgment became final on 9 October 2003 when the Supreme Court of the Russian Federation upheld the conviction for murder and unlawful possession of a weapon, discontinued the criminal proceedings in respect of the charge of forgery of documents and reduced the sentence by two months. The Supreme Court noted that the Regional Court’s findings were based on a thorough and well-reasoned analysis of extensive evidence presented both by the prosecution and defence.
34. According to the applicant, while the criminal proceedings against him were still pending, local newspapers published several articles expressing the opinion that he was guilty of the murder.
35. While the applicant was serving his sentence, his former wife lodged an action before the Kirovskiy District Court of Yekaterinburg seeking termination of the applicant’s parental rights over their child.
36. In January 2005 the District Court sent a copy of the statement of claim with attachments to the correctional colony where the applicant was held, asking him to provide observations in reply by 1 March 2005.
37. The observations from the applicant arrived on 14 April 2005. At the same time, the applicant asked the District Court to call Ms S. as his representative and provided a list of witnesses to be called on his behalf, including his parents and sister. Two weeks later Ms S. sought leave with the District Court for the applicant to appear in court.
38. On 25 October 2005 the applicant received a copy of a decision by which the Kirovskiy District Court had fixed a preliminary hearing. The applicant immediately sent a letter to the District Court explaining that he was serving a prison sentence and seeking leave to attend.
39. In November 2005 the applicant repeated his request. No reply followed.
40. A prosecutor who attended the hearings before the District Court sought dismissal of the action, arguing that the applicant had been unable to actively participate in his child’s life for practical reasons but was interested in maintaining a relationship with the child. The prosecutor noted that the applicant’s relatives regularly passed on information to him about his child.
41. It appears from the parties’ submissions that the District Court called one witness from the applicant’s witness list, his sister, having refused to call his parents.
42. On 16 December 2005 the Kirovskiy District Court, in the presence of the applicant’s representative, upheld the action and terminated the applicant’s parental rights, having considered that his absconding from the law-enforcement authorities and being on the run for a long time could not be accepted as a valid justification for his failure to fulfil his parental responsibilities. The District Court stressed that the applicant and his representative had not provided it with evidence to demonstrate that the applicant had effectively carried out his parental role.
43. A month later the applicant received a copy of the judgment. He lodged an appeal, arguing that he had been unable to present his arguments before the District Court due to his absence from the hearings. He further asked that his presence at the appeal hearing be ensured.
44. On 28 February 2006 the Sverdlovsk Regional Court, in the presence of the applicant’s representative, upheld the judgment of 16 December 2005. Having ruled on the subject of the applicant’s attendance, the Regional Court held that the law did not require civil courts to obtain attendance by the parties and that the District Court’s responsibility was limited to duly notifying the parties of the hearings.
45. The reading out of earlier statements made by a victim or a witness is permitted if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court or (2) the victim or the witness is not present before the court (Article 281 § 1).
46. The court may, without seeking the consent of the parties, read out earlier statements by the absent victim or witness in the case of (1) death, (2) serious illness, (3) refusal to appear by the victim or the witness if they are citizens of other States or (4) natural disaster or other force majeure circumstances (Article 281 § 2).
47. If a witness or a victim does not obey a summons to appear without a valid reason, they may be brought to the courtroom under escort (Article 113).
48. Witnesses and victims are entitled to the reimbursement of costs and expenses incurred in connection with their participation in the criminal proceedings (Article 131).
49. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for the reopening of criminal cases, reads, in so far as relevant, as follows:
“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be reopened if there are new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
(c) other new circumstances.”
50. The Code of Civil Procedure of the Russian Federation (“the CCP”) provides that individuals may appear in court in person or may act through a representative (Article 48 § 1).
51. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.
52. On several occasions the Constitutional Court has dismissed as inadmissible complaints by detainees whose requests for leave to attend hearings were refused by civil courts. It has reasoned that the relevant provisions of the Code of Civil Procedure and the Penitentiary Code do not, as such, restrict a detainee’s access to court. The Constitutional Court has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court, either through a representative or in any other way provided by law. If necessary, a hearing should be held at the convict’s place of detention, or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict’s place of detention to obtain his/her submissions or to take any other procedural steps (decisions 478-O of 16 October 2003, 335-O of 14 October 2004 and 94-O of 21 February 2008).
53. Under Articles 58 and 184 of the CCP a court may hold a session elsewhere than in a courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse.
54. Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. A judgment of the European Court of Human Rights finding a violation of the European Convention on Human Rights in a case in respect of which an applicant lodged a complaint with the Court should be considered a new circumstance warranting a reopening (Article 392 § 4 (4)).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-89932
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LUKIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Spasoje Lukić, Ms Jovanka Lukić, Mr Svetozar Lukić and Mr Aleksandar Lukić, are citizens of Bosnia and Herzegovina who were born in 1939, 1954, 1977 and 1979 respectively and live in Doboj. They were represented before the Court by Mr S. Lopandić, a lawyer practising in Doboj. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
The facts of the case, as submitted by the parties, may be summarised as follows.
Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicants deposited foreign currency in their bank accounts at the then Jugobanka Sarajevo Ekspozitura Doboj. In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...).
Following several unsuccessful attempts to withdraw their funds, the applicants initiated court proceedings seeking the recovery of their entire “old” foreign-currency savings and accrued interest.
By a decision of the Doboj Court of First Instance of 23 July 1993, the Jugobanka Banja Luka Ekspozitura Doboj (the legal successor of the Jugobanka Sarajevo Ekspozitura Doboj) was ordered to pay the applicants 7,741.99 German marks, 22.03 US dollars and 3,087.57 Swiss francs together with default interest on the above amounts at the statutory rate from 18 December 1992. The judgment entered into force on 25 August 1993. On 17 November 1993 the Doboj Court of First Instance issued a writ of execution (rješenje o izvršenju). The execution proceedings were stayed between 11 May 1998 and 2 April 2001.
On 3 April 2001 the domestic Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising from a failure to enforce the judgment of 23 July 1993 and ordered the Republika Srpska to ensure full enforcement thereof without further delay. The Human Rights Chamber further considered that any pecuniary damage would be compensated through payment of default interest as provided by the judgment in issue. It therefore rejected the applicants’ claim for compensation for pecuniary damage. The applicants did not claim compensation for non-pecuniary damage.
On 17 April 2002 the Republika Srpska took over the judgment debt, pursuant to section 20 of the Opening Balance Sheets Act 1998.
On 12 March 2004 the Republika Srpska paid the principal debt in the amount of 11,562.80 convertible marks (BAM). On 19 July 2005 the applicants were paid default interest in the amount of BAM 12,625.93.
The Default Interest Rate Act 2001 (Zakon o visini stope zatezne kamate; published in the Official Gazette of the Republika Srpska (“OG RS”) no. 19/01 of 11 May 2001; amendments published in OG RS no. 52/06 of 17 May 2006) entered into force on 19 May 2001. It sets the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in any currency. According to section 3 of this Act, default interest is calculated on the basis of the official retail price growth rate (stopa rasta cijena na malo) plus another 0.05% daily (fiksna stopa). Inflation in the Republika Srpska, as measured by the official retail price growth rate, was relatively slow in the years from 2001 to 2004. The relevant figures were as follows: 6.5% in 2001, 1.7% in 2002, 1.8% in 2003 and 1.9% in 2004 (see the Annual Report of the Central Bank of Bosnia and Herzegovina for 2006, p. 123).
As to the period before the entry into force of the Default Interest Rate Act 2001, the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in a foreign currency is the rate applicable to overnight foreign-currency deposits (see, for example, judgment of the Supreme Court of the Republika Srpska no. Rev-281/04 of 21 February 2006). According to an official report submitted by the respondent Government, at the request of the Court, in another case (Kudić v. Bosnia and Herzegovina, no. 28971/05), the relevant figures for the years from 1992 (when the default period started in the present case) to 2001 (when the Default Interest Rate Act 2001 entered into force) were as follows: 4.06% in 1992, 2.82% in 1993, 2.43% in 1994, 2.70% in 1995, 2.49% in 1996, 3.16% in 1997, 3.01% in 1998, 2.78% in 1999, 2.40% in 2000 and 2.20% in 2001).
For other relevant law and practice see the admissibility decision in Jeličić, cited above; the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007.


ITEMID: 001-57622
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF POWELL AND RAYNER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 13
JUDGES: J.A. Carrillo Salcedo;N. Valticos
TEXT: 8. The first applicant, Richard John Powell, is a director of a mining concern and lives with his family at Esher, Surrey, in a house which he bought in 1957. The property is situated several miles from Heathrow Airport, London. Since 1972 it has lain under a flight departure route from Heathrow in operation for about one third of the year, usually during the summer months. Following objections to the level of noise disturbance, the route was divided into two sections in 1975. At least until 1984 Mr Powell’s home fell just within the 35 Noise and Number Index (NNI) contour, which is considered to be a low noise-annoyance rating (see paragraph 10 below). About half a million other people live within this contour area. Since 1984 the house has been within a lower NNI contour.
9. The second applicant, Michael Anthony Rayner, farms together with other members of his family lands situated in Colnbrook, Berkshire, which have been in his family for some generations. He lives in a bungalow at Colnbrook acquired by his family as part of its land-holding in 1952. The applicant took up residence there in 1961 on the occasion of his marriage. The bungalow is situated about one and a third miles west of, and in a direct line with, Heathrow’s northern runway. It is regularly overflown during the day and to a limited extent at night. It falls within a 60 NNI contour, which is regarded as an area of high noise-annoyance for residents. According to the statistics supplied by the Government, the average height of arriving aircraft over Mr Rayner’s property is 450 feet and the average height of departing aircraft varies between 1,235 and 2,365 feet according to aircraft type. About 6,500 people around Heathrow Airport experience a noise exposure equal to or greater than that suffered by Mr Rayner and his family.
10. The NNI is a long-term average measure of noise exposure which is used in the United Kingdom to assess the disturbance from aircraft noise to communities near airports. It takes account of two features of the noise, namely the average noisiness and the number of aircraft heard during an average summer day. The flights which determine the NNI at any point on the ground are those which take place between 06.00 and 18.00 hours Greenwich Mean Time during the three busy summer months of mid-June to mid-September and which make a peak noise level exceeding 80 perceived noise decibels (PNdB) at that point. The purpose of the NNI is to represent community reaction to the level of aircraft noise so as to guide planning, development and noise control. Thus, the NNI is amongst the criteria applied in planning controls, so that land within the 35 to 39 NNI contours may be used for residential development, planning permission not being refused on noise grounds alone. However, land within the 40 to 50 NNI contours (moderate noise-annoyance zone) will not be given over to development, except for the infilling of existing built-up areas on condition that appropriate sound insulation is used. No development whatsoever is permitted within the 60 NNI and over contours (high noise-annoyance zone). It is to be noted that the NNI calculation reflects a logarithmic element in the PNdB scale, which has the result that every increase of 10 in that scale represents approximately a doubling of the loudness.
11. Heathrow Airport was formally opened in May 1946. In 1952 the first scheduled air services using jet airliners were inaugurated. Three terminals were opened in 1955, 1961 and 1968. After a public inquiry which lasted for 24 weeks and heard 125 witnesses, a fourth terminal was opened in 1986. As regards future expansion, the Government’s policy, as stated in the 1985 "Airports Policy" White Paper, is that they are "not prepared to make any commitments at this stage on the question of a fifth terminal at Heathrow but will keep the matter under review" (Command Paper, Cmnd 9542, paragraph 5.19).
12. Heathrow is one of the busiest international airports in the world. The Airport handled 3 million passengers in 1956, over one million passengers during the one month of July 1963, 22.4 million passengers on international routes and 4.4 million passengers on domestic routes in 1973, and 37.5 million passengers on international routes and 6.8 million passengers on domestic routes in 1988. There has been a corresponding increase in aircraft movements over the years. Over 22% of passengers use the airport as an interchange point. It is currently used by over 70 airlines and serves 200 destinations worldwide. It is the United Kingdom’s leading port in terms of visible trade and in 1988 handled cargo valued at £26.3 billion. Heathrow Airport contributes around £200 million to the United Kingdom’s balance of payments, provides direct employment for some 48,600 persons, in addition to the substantial number of workers employed locally in servicing the industry, and pays over £16 million in local rates and rents.
13. Compensation for the loss of value of houses and land as a result of airport noise is provided for by the Land Compensation Act 1973. However, such compensation is payable only in respect of new or altered public works first brought into use after 16 October 1969. Intensification of an existing use is, for reasons of principle and practice, not compensatable. Mr Powell and Mr Rayner would have no entitlement to compensation under this Act, there being no relevant new or altered development in the case of Heathrow Airport.
14. The British Airports Authority, being a public statutory body, did not have power to acquire property near an airport unless it could show that the acquisition of the property was necessary for the proper performance of its function. In December 1986, after the completion of the fourth terminal (see paragraph 11 above) and privatisation of the Authority, the successor company to the Authority announced a scheme for the purchase of noise-blighted properties close to Heathrow Airport. This scheme provided for purchase by the company of property severely affected by aircraft noise at Heathrow (within the 65 NNI contour) where the owner had acquired the property before 17 October 1969 and wished to sell but could not do so except at a deflated price. Claims had to be made between 1 January 1987 and 31 December 1988. By virtue of the contour limitation the applicants’ properties were excluded from the scheme.
15. An action will lie at common law for nuisance in respect of an activity which unreasonably interferes with the use and enjoyment of land, for example an activity causing annoyance through noise. If liability is established, damages may be awarded or, in certain circumstances, an injunction granted. However, the Noise Abatement Act 1960 specifically exempts aircraft noise from its protection. The liability of aircraft operators is further limited by section 76(1) of the Civil Aviation Act 1982, which reads:
Section 76(2) of the 1982 Act in turn provides for strict liability - that is, liability without proof of intention or negligence - where material loss or damage to any person or property on land or water is caused by, inter alia, an aircraft in flight or an object falling from an aircraft. Provisions equivalent to section 76 existed in earlier civil aviation legislation (for example, section 9 of the Air Navigation Act 1920 and section 40 of the Civil Aviation Act 1949).
Section 76 is comparable to Article 1 of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which reads:
"Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations." (United Nations Treaty Series, 1958, vol. 310, no. 4493, p. 182)
As at January 1990, this Convention had been ratified by thirty-six States, including four members of the Council of Europe, namely Belgium, Italy, Luxembourg and Spain but not the United Kingdom.
16. Section 76(1) of the 1982 Act does not exclude all liability on the part of aircraft operators for trespass and nuisance caused by aircraft in flight. In the first place, the exemption applies only in respect of aircraft flying at a reasonable height above the ground. What is reasonable is a question of fact depending on all relevant circumstances. Secondly, for the exemption to apply there must be compliance with the statutory provisions referred to in section 76(1). In practice this means the Air Navigation Order 1985 as amended, the Air Navigation (General) Regulations 1981 as amended, the Rules of the Air and Air Traffic Control Regulations 1985 as amended and, of especial importance in this connection, the Air Navigation (Noise Certification) Order 1987 (and the corresponding provisions of earlier orders and regulations applicable from time to time). Thus, if, for example, an aircraft flies in a manner which is not in accordance with the applicable regulations or takes off or lands in contravention of the Air Navigation (Noise Certification) Order, its operator will not be entitled to rely upon section 76 as a defence to any action for trespass or nuisance.
17. The main forum for international co-operation seeking to make aircraft quieter is the International Civil Aviation Organisation (ICAO). The broad thrust of ICAO’s work has been towards the development of a series of standards, leading to the phasing out of aircraft unable to meet them. These standards are not operative within the ICAO member States unless and until they are given effect in national legislation. In the United Kingdom effect is given to them by means of an Air Navigation (Noise Certification) Order.
Orders of 1970 and 1979 reflected the first ICAO standards developed concerning subsonic jet aircraft. A 1984 Order gave effect to new ICAO standards and to regulations based upon recommendations of the European Civil Aviation Conference. In doing so, the 1984 Order also implemented the requirements of the European Community Directives of 1979 and 1983 on "Limitation of Noise Emission from Subsonic Aircraft". It was, however, more stringent in its application inasmuch as non-compliant subsonic jets were banned from the domestic register twelve months earlier than required by the 1979 Directive. Orders of 1986 and 1987 introduced further ICAO standards.
18. In structuring its landing charges, Heathrow Airport Limited has taken account of ICAO noise certification standards to encourage the use of quieter aircraft.
19. Since 1971 restrictions have been placed on night movements of jets, with the aim of phasing out night flights of noisier aircraft. These measures have been adopted in the light of research into the relationship between aircraft noise and sleep disturbance and after consultation of all interested parties, including the Federation of Heathrow Anti-Noise Groups to which the applicants belong.
20. Monitoring of aircraft noise on take-off from Heathrow Airport was first carried out in the early 1960’s. Since 1974 automatic equipment, consisting of thirteen noise monitoring terminals linked to a central processing and control unit, has been used. The positioning of these terminals is designed to protect the first built-up area reached after take-off from noise levels in excess of the statutory limits of 110 PNdB by day (07.00-23.00 hours local time) and 102 PNdB by night (23.00-07.00 hours local time). In the event of an infringement of the noise limit, the Airport informs the airline by letter and sends a copy to the Department of Transport. According to the Government, the effect of recent bans on non-noise-certificated aircraft has been to keep the rate of compliance to around 99% by day and 98% by night. The Secretary of State is empowered by section 78 of the Civil Aviation Act to deny Heathrow’s facilities to operators who fail to comply with noise abatement measures, but to date it has not been found necessary to invoke this provision. On the other hand, night flight quotas have been reduced for infringing operators.
21. Aircraft taking off from Heathrow Airport are statutorily required to remain on a small number of specified routes, known as noise preferential routes. These routes are designed to avoid as far as possible the major built-up areas.
22. Approach procedures said to result in lower noise levels in comparison with traditional approach procedures are now standard practice. Furthermore, minimum height requirements on approach to land as well as on take-off are laid down in the regulations. In addition, since 1972 a system of regularly alternating the landing runway has been implemented at Heathrow during westerly operations, the main objective being to achieve a fair sharing of periods of relative quiet among the communities of West London affected by noise from landing aircraft.
23. A helicopter link between Gatwick Airport and Heathrow Airport was introduced in 1978. However, after public inquiries in 1978, 1979, 1983 and 1985, the Secretary of State for Transport gave directions in June 1986 for the operator’s licence to be revoked for environmental reasons.
24. Following earlier schemes in 1966, 1972, and 1975, a scheme for sound insulation of dwellings was introduced for Heathrow in 1980. Under this scheme, which cost the British Airports Authority approximately £19 million, over 16,000 house owners or occupiers applied for grants. The scheme concentrated on those localities that would still be experiencing comparatively high noise levels in the mid 1980’s and on localities where there is the greatest degree of disturbance due to aircraft noise at night. Within this area the amount of grant provided was intended to cover 100% of the reasonable costs incurred. The boundary was based on the forecast 50 NNI contour for 1985 and the composite of the 95 PNdB noise footprint for quieter aircraft. 95 PNdB is the exterior noise level below which current evidence suggests that the average person in an uninsulated room is unlikely to be awakened. After consultation and in line with a commitment by the Government to review the boundaries once the actual noise climate was known, an extension scheme to include additional areas was brought into operation in April 1989 at an estimated cost of £11.25 million.
In common with other persons living within the 60 NNI contour, Mr Rayner qualifies for a full noise-insulation grant.
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-110273
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ANDREYEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1918 and lives in St Petersburg.
6. The applicant holds a number of premium bonds issued in 1982 (“the 1982 USSR bonds”, облигации Государственного внутреннего выигрышного займа 1982 года). She deposited them in 1986 with Sberbank (“the Savings Bank” – Сбербанк России).
7. In December 1991 the USSR was dissolved. In February 1992 the Government of Russia acknowledged that the 1982 USSR bonds held by Russian nationals were a part of its internal debt. Later that year the Russian Government proposed a settlement to the holders of the 1982 USSR bonds (“the redemption scheme”). The redemption scheme provided for conversion of the 1982 USSR bonds into Russian bonds issued in 1992 or, alternatively, their buy-out by the Savings Bank at a price fixed by the Government. The applicant did not react to that offer, so, according to Governmental Decree no. 549 of 5 August 1992 describing the means of the redemption scheme, her bonds were automatically acquired by the Savings Bank. The bonds were extinguished and the redemption price of the 1982 USSR bonds was credited to the applicant’s bank account.
8. Between 1995 and 2000, a series of Russian laws was adopted which provided for the conversion of Soviet securities, including the 1982 USSR bonds, into special Russian promissory notes. In particular, on 6 July 1996 the Promissory Value Act introduced the “promissory rouble” as the currency of special promissory notes issued by the Russian Federation. On 4 February 1999 the Base Value Act set out the general approach to be taken as regards the conversion of “promissory roubles” into Russian roubles. The Government were mandated to devise a more detailed procedure for the conversion. Although a regulation on the conversion process was adopted by the Government in 2000 (“Resolution no. 82”), the actual conversion did not start and application of the regulation has remained suspended, by a series of resolutions, to the present day. The application of the Base Value Act was suspended from 1 January 2003 to 1 January 2012 by successive federal laws.
9. In the 1990s the applicant brought proceedings against the Ministry of Finance of the Russian Federation and the Savings Bank seeking damages for the loss of value of her bonds. The first judgment on the merits was rendered in 1998. On 3 April 2003, following several rounds of court proceedings, the Basmanniy District Court of Moscow dismissed her claim. She appealed.
10. On 22 October 2003 the Moscow City Court, sitting as a court of appeal, satisfied her claim in part. In particular, the City Court found that the compulsory redemption of the bonds in 1992 had breached the applicant’s rights. The City Court ordered that the applicant should be restored to the same position as other bondholders, whose bonds had not been subjected to compulsory redemption and had later been converted into special promissory notes of the Russian Federation. The City Court acknowledged the applicant’s right to eighty-four special promissory notes having a total nominal value of 3,185 “promissory roubles”. The court also “acknowledged the applicant’s right to obtain redemption of the notes from the State, under the conditions established by the legislation in force for the holders of special promissory notes”.
11. The applicant brought supervisory review proceedings, but to no avail. In the ruling of 23 August 2004 a judge of the Moscow City Court explained that in the absence of a specific law defining the terms and conditions of the redemption of the special promissory notes, the State had no obligation to pay the applicant any particular amount.
12. On 22 February 2006 the applicant obtained a writ of execution against the Ministry of Finance in pursuance of the judgment of 22 October 2003. The writ was valid for three years. However, it was not enforced. The Government claimed that the applicant had not tried to enforce the writ by serving it on the Ministry of Finance.
13. In the following years the applicant initiated several sets of court proceedings against various State bodies and officials, seeking damages for the lengthy non-enforcement of the judgment of 22 October 2003, complaining of the failure of the Government and of the legislature to implement the Base Value Act, and so forth. It appears that all her claims were rejected, either for want of substantive jurisdiction over the dispute, or because the courts had found her claims unsubstantiated. In particular, the applicant sued the Ministry of Finance for its failure to redeem the promissory notes, claiming 110,000,000 Russian roubles under the heads of pecuniary and non-pecuniary damage. On 13 January 2009 the Moscow City Court, acting as the court of final instance, rejected her claims against the Ministry of Finance on the grounds that similar claims has already been examined in 2003, and, furthermore, the applicant had failed to justify the amount sought from the defendant.
14. For the relevant domestic law on State premium bonds and promissory notes of the Russian Federation, see the case of Yuriy Lobanov v. Russia, no. 15578/03, §§ 13 et seq., 2 December 2010.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1