ITEMID: 001-58010
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF SCOTT v. SPAIN
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 6. Mr Scott is a British citizen born in 1958. He is currently detained in Her Majesty’s Prison, Leicester.
7. On 5 March 1990 a Finnish national, Ms T., made a statement to the police in Puerto de la Cruz, Tenerife, Canary Islands, in which she alleged that the applicant had raped her the night before. According to Ms T., the applicant had threatened and beaten her, forcing her to undress and to have sexual intercourse with him. Ms T. underwent a medical examination and on 9 March 1990 flew back to Finland.
8. In the evening of 5 March 1990, on the strength of Ms T.’s description, the applicant was located by the police; he attempted to flee but was finally arrested. He had a false passport and was suffering from serious alcoholic intoxication requiring medical attention. On 7 March 1990, assisted by a lawyer and an interpreter, he made a statement to the police in which he denied the rape allegations. When the records were consulted, it was found that the applicant had escaped from Sudbury Prison, West Midlands, on 22 December 1989 and that an international warrant for his arrest for the murder of his father had been issued against him on 31 January 1990 by a judge at Birmingham Crown Court. In the evening of 7 March 1990 the applicant was brought before the investigating judge (juez de instrucción).
9. On 8 March 1990, again assisted by a lawyer and an interpreter, the applicant denied the rape allegations before investigating judge no. 1 in Puerto de la Cruz. In a decision (auto de prisión) of the same date the judge held, on the basis of Articles 503 and 504 of the Code of Criminal Procedure (Ley de Enjuiciamiento Criminal - see paragraphs 35 and 36 below), that there was sufficient reason to believe that the applicant was involved in the commission of an offence that would attract a substantial prison sentence (see paragraph 33 below). cott’s detention pending trial.
10. On 23 March 1990 the relevant judicial authority in extradition matters, central investigating judge (juez central de instrucción) no. 4 of the Audiencia Nacional, Madrid, also ordered the applicant’s detention on the basis of the international arrest warrant and of an undertaking by the United Kingdom authorities to file a request for extradition (section 8 of the Extradition Act - see paragraph 38 below). In so doing, the central investigating judge referred to Articles 503 and 504 of the Code of Criminal Procedure (see paragraphs 35 and 36 below) and took into account the seriousness of the offence and the prison sentence it would attract under Spanish law (see paragraph 34 below). A formal request for extradition was filed on 27 April 1990. It was accompanied by extensive evidence incriminating the applicant.
11. On 25 June 1990 an international letter of request for judicial cooperation was sent to the relevant authority in Finland with a view to obtaining a further statement from the alleged victim of the rape and additional medical evidence.
12. On 26 November 1990 the public prosecutor (Ministerio Fiscal) recommended the applicant’s extradition. Guarantees were requested from the United Kingdom authorities to the effect that, should the extradition be granted and the applicant be convicted in England, the final sentence would not exceed thirty years’ imprisonment (the maximum term of imprisonment under Spanish legislation). On 2 January 1991 the British Embassy in Madrid wrote to the Audiencia Nacional that in the applicant’s case the sentence actually served upon conviction for murder was not likely to be more than ten years. A hearing was subsequently held in the Audiencia Nacional, in the course of which the applicant denied the murder allegations and resisted extradition.
13. By a decision (auto) of 22 February 1991 a section of the Criminal Division of the Audiencia Nacional accepted the guarantees given by the United Kingdom authorities and ordered that the applicant should be extradited to stand trial for the murder of his father. This extradition order was only to be executed after the applicant had served any outstanding time of the sentence that might eventually be imposed on him in Spain for the rape offence (see paragraph 41 below). Furthermore, the time spent by the applicant in prison pending extradition was to be deducted from the sentence that would eventually be passed on him by the English courts in the murder case (see paragraph 42 below).
14. The applicant lodged an appeal (recurso de súplica) with the full court of the Criminal Division of the Audiencia Nacional. In a decision of 28 May 1991 the appeal was dismissed. On 28 June 1991 the Cabinet (Consejo de Ministros) decided not to exercise its discretion not to execute the extradition order.
15. In the meantime, on 7 March 1991, the investigating judge in Puerto de la Cruz had decided to extend the applicant’s detention pending trial in the rape case under Article 504 of the Code of Criminal Procedure (see paragraph 36 below). In so doing, the investigating judge also took into account the fact that the applicant’s extradition was pending.
16. In May 1991 Mr Scott wrote to the Audiencia Nacional that he was willing to be extradited in order to get medical treatment in the United Kingdom, although it would appear that he later abandoned this idea. On 24 June 1991 the public prosecutor recommended that the applicant be kept in detention pending his trial for rape unless he could be temporarily handed over to the United Kingdom authorities.
17. On 6 March 1992 the British Embassy in Madrid wrote to the Audiencia Nacional indicating that, in the event of the applicant’s being temporarily handed over to the United Kingdom, his re-extradition to Spain could not be guaranteed.
18. On that same date, that is to say roughly two years after the applicant had first been detained (see paragraph 9 above), the investigating judge in Puerto de la Cruz ordered the applicant’s provisional release (libertad provisional) in connection with the rape case, as required by Article 504 of the Code of Criminal Procedure (see paragraph 36 below). He was, however, kept in detention under orders made in the extradition proceedings.
19. On 17 March 1992 the Audiencia Nacional, taking 23 March 1990 as the date of the beginning of the applicant’s detention for the extradition proceedings (see paragraph 10 above), decided to extend his detention under Article 504 of the Code of Criminal Procedure and section 10 (3) of the Extradition Act (see paragraphs 36, 37 and 40 below) for a period not exceeding two years, that is until 23 March 1994. The Audiencia Nacional had previously heard the public prosecutor and the applicant, the former having submitted that, given the impossibility of temporarily handing the applicant over to the United Kingdom authorities, his extradition should not take place "before he ha[d] discharged his criminal liabilities in Spain", with reference to the rape case.
20. The applicant lodged an appeal (recurso de súplica) against this decision but on 18 June 1992 a full court of the Criminal Division of the Audiencia Nacional dismissed the appeal on the ground that he had been detained in the extradition case on 23 March 1990, independently of his earlier detention for a different matter, and that the risk of his absconding was considerable. In his submissions the public prosecutor had again referred to the case pending in Puerto de la Cruz.
21. Another application for release by the applicant on 7 September 1992 was rejected in similar terms by the Audiencia Nacional on 5 October 1992. Although the application had been addressed to the Audiencia Nacional, the applicant made ample reference to the proceedings before the Puerto de la Cruz investigating judge.
22. On 6 December 1992, following a further application by Mr Scott, the Audiencia Nacional requested the investigating judge in Puerto de la Cruz to supply information as to whether the applicant could be extradited. The Court’s case file does not contain any reply.
23. The applicant lodged an amparo appeal with the Constitutional Court (see paragraph 32 below) against the Audiencia Nacional’s decisions of 17 March 1992 and 18 June 1992 on his detention pending extradition. The appeal was rejected after summary proceedings in a decision (auto) of 6 May 1993. On the merits the Constitutional Court stated that the applicant had been detained in the extradition proceedings on 23 March 1990, so that the Audiencia Nacional’s decision of 17 March 1992 to extend detention for two more years as of that date was legally correct as the earlier period spent in prison by the applicant was unrelated to the new detention.
24. Meanwhile, in a decision (auto de procesamiento) of 2 February 1993, the investigating judge in Puerto de la Cruz had formally charged the applicant with, inter alia, rape and forgery of documents.
25. On 8 February 1993 the investigating judge renewed his request to have a further statement by the complainant through the channels of international judicial cooperation (see paragraph 11 above). The requested statement and two medical certificates, all in Finnish, were received in Puerto de la Cruz on 29 April 1993. A Spanish translation did not become available until two months later. The statement - which was taken at a court hearing in Tuusula, Finland, on 14 December 1992 - confirmed Ms T.’s original allegations (see paragraph 7 above). The medical certificates showed that Ms T. had received prolonged psychiatric treatment after her return from Tenerife.
On 25 August 1993 the applicant’s detention was again ordered in the rape case. The applicant was subsequently committed for trial.
26. On 26 November 1993 the public prosecutor made his pre-trial submissions (conclusiones provisionales). On the basis of the medical evidence available, he sought a prison sentence of sixteen years in respect of the rape offence and a further prison sentence of four months and a fine of 100,000 pesetas for the offence of forgery of documents.
27. A hearing was held during which Ms T. and court-appointed medical experts gave evidence.
In a judgment of 21 March 1994 the Audiencia Provincial of Santa Cruz de Tenerife acquitted the applicant on the rape charge on the ground that the only evidence incriminating him was Ms T.’s statements, which contained many inconsistencies. The Audiencia Provincial accepted the opinion of the experts present at the hearing that the medical evidence did not sustain the allegation of forcible sexual intercourse.
With respect to the forgery offence the applicant was convicted and sentenced as charged.
28. On 16 March 1994, as the applicant’s detention was approaching the statutory maximum of four years (see paragraph 36 below), the Audiencia Nacional had issued an order releasing the applicant from detention in the extradition proceedings. However, on learning of the applicant’s acquittal in the rape trial and of his imminent release, the Audiencia Nacional immediately ordered the applicant’s continued detention pending extradition.
29. On 27 March 1994 the applicant was handed over to the United Kingdom authorities, pursuant to the international arrest warrant and the Audiencia Nacional’s decision of 22 February 1991 allowing extradition (see paragraph 13 above).
30. The applicant had spent a total of two years, six months and twenty-nine days under the different orders for detention pending trial on the rape charge and exactly four years in connection with the extradition proceedings.
31. On 9 November 1995, following a trial at Birmingham Crown Court, Mr Scott was convicted of the murder of his father. He was sentenced to life imprisonment. The trial judge recommended a "tariff period" (see paragraph 43 below) of twelve years.
32. Article 17 of the Constitution guarantees the right to liberty and security of person and sets out the conditions under which a person’s liberty may be restricted. By paragraph 4 of this provision, a habeas corpus procedure shall be provided for in a statute which shall also determine the maximum duration of detention pending trial.
Regarded as fundamental, Article 17 rights may be the subject of an individual appeal to the Constitutional Court (recurso de amparo).
33. Under Article 429 of the Criminal Code in force at the material time, rape was punishable with a term of imprisonment ranging from twelve years and one day to twenty years (reclusión menor).
34. Under Article 405 of the Criminal Code, killing one’s father or mother (parricidio) was punishable with a term of imprisonment ranging from twenty years and one day to thirty years (reclusión mayor).
35. Under Article 503 of the Code of Criminal Procedure,
"The following conditions must be satisfied before pre-trial detention can be ordered:
1. It must have been established that an act which may constitute an offence [delito] has been committed.
2. The offence must be punishable by more than six years’ imprisonment [prisión menor] or, if the term of imprisonment is shorter, the judge must consider it necessary to remand the accused in custody in the light of his criminal record, the circumstances of the offence, the prejudice to public order it has caused or the frequency with which similar acts have been committed ...
3. There must be sufficient reasons for considering the person to be remanded in custody criminally responsible for the offence."
36. By Article 504 of the Code of Criminal Procedure, detention pending trial shall not exceed one year where an offence is punishable with a term of imprisonment ranging from six months and one day to six years (prisión menor) and shall not exceed two years if the applicable sentence is heavier.
If, however, the case cannot be tried within that period and there is a risk that the accused may evade justice, Article 504 of the Code of Criminal Procedure provides that detention pending trial may be prolonged up to two and four years respectively. A reasoned decision (auto) to this effect may only be issued after the competent court has heard the accused and the public prosecutor.
37. Under Article 528 para. 1 of the Code of Criminal Procedure, detention pending trial may last for only as long as the original reasons remain valid.
38. Extradition proceedings come within the jurisdiction of the Audiencia Nacional in Madrid irrespective of where the requested person has been detained (section 65 (4) of the Judicature Act - Ley Orgánica del Poder Judicial). In such cases preliminary proceedings fall to the relevant central investigating judge (juez central de instrucción) attached to the Audiencia Nacional, likewise in Madrid (section 88 of the Judicature Act and section 8 (2) of the Extradition Act 1985).
39. Under section 8 of the Extradition Act, the detention of a person with a view to his or her extradition may in certain circumstances be sought by a State even before a formal request for extradition is lodged where the requesting State undertakes that the said request will be made within the following forty days. The detainee must be brought before the relevant central investigating judge within twenty-four hours of his or her arrest.
40. Under section 10 (3) of the Extradition Act, "while extradition proceedings are pending, the maximum term of detention of the requested person and his or her rights as a detainee shall be determined, where not laid down in this Act, according to the relevant provisions of the Code of Criminal Procedure".
41. By section 19 (2) of the Extradition Act, "if the requested person is under investigation or has been convicted by a Spanish court ... his or her delivery may be deferred until his or her criminal liabilities in Spain have been discharged or he or she can be handed over temporarily or finally in accordance with such conditions as may be agreed with the requesting State".
Article 18 of the Extradition Treaty between the United Kingdom and the Kingdom of Spain of 22 July 1985 contains a similar provision. The Treaty came into force on 1 July 1986.
42. Section 18 (1) (2) of the Extradition Act requires, inter alia, that extradition be made subject to the time spent in detention pending extradition by the requested person being deducted from the sentence that would eventually be passed on him or her by the requesting State.
43. Under English law murder carries a mandatory sentence of life imprisonment (Murder (Abolition of Death Penalty) Act 1965). A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge. In both cases release on licence can only be granted after a minimum period deemed necessary to satisfy the requirements of retribution and deterrence ("the tariff period") has been served.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-71687
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: VISOCKAS AND OTHERS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants are 11,528 (eleven thousand five hundred twenty eight) Lithuanian farmers. They are represented by the first applicant, Mr Kazys Visockas, a Lithuanian national living in Biržai region.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are farmers who produce grain, milk and meat. They submit that during the year 1999 they were entitled to State subsidies the conditions of payment of which were provided for by the relevant orders of the Minister of Agriculture of 31 December 1998, 13 February and 18 June 1999 (see the ‘Relevant domestic law and practice part’ below).
The applicants submit that subsidies for the year 1999 should have been calculated and paid by the Ministry of Agriculture every month of that year, upon presentation by a farmer of the evidence of his having sold grain, milk or meat to food-processing companies. The Government deny that the authorities had been required to examine and satisfy every application for subsidies for the year 1999 on a one-month or other basis, the impugned orders establishing no time-limits in this respect (see below).
During the period of six months in 1999, regardless of the proof of the applicants’ selling their production, the Ministry of Agriculture did not examine their applications for subsidies.
In December 1999 and January 2000 the applicants submit that they applied to courts, requesting the Ministry of Agriculture to calculate and pay monthly subsidies for the year 1999. The applicants have submitted no evidence as to how many of them did apply to the courts in this respect. They have presented one case, involving a group of 21 applicants, concerning the claim against the Ministry of Agriculture in this connection:
On 9 March 2000 the Supreme Administrative Court rejected the claim of the 21 applicants, having found no fault in the actions of the Ministry of Agriculture. The court established that subsidies for the year 1999 were not calculated and paid by the Ministry of Agriculture during only a few months of that year. However, the court held that the Ministry of Agriculture was in no fault in this respect. It was established that as a result of the Governmental decree of 13 December 1999 the payment of subsidies for the year 1999 was postponed until 1 July 2000.
On 2 May 2000 the Court of Appeal rejected the appeal submitted by FB, one person belonging to the group of the 21 applicants. The Court of Appeal held that in 1999 there had been no statute requiring the Ministry of Agriculture to calculate and pay subsidies every month, the authorities being free to delay the calculation and payment thereof.
In July 2000 the Ministry of Finance paid 228 million Lithuanian litai (LTL) to satisfy the applications for subsidies submitted in 1999.
According to the legal provisions applicable at the material time, subsidies for grain for 1999 were to be paid on the basis of the order made by the Minister of Agriculture of 18 June 1999. Subsidies for meat and milk were to be paid on the basis of his orders of 31 December 1998 and 13 February 1999.
On 13 December 1999 the Government adopted a decree whereby it decided that all the remaining applications for subsidies for the year 1999 were to be examined until 1 July 2000.


ITEMID: 001-80738
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GROZDANOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1934 and lives in Ohrid.
6. On 30 December 1993 the applicant concluded a loan agreement (“the agreement”) (договор за одобрување на кредит) with the “Makbanka-BS” A.D. (“the company”), in accordance with which he received a loan in the amount of DM 40,000 (German Marks) under the following conditions: to repay the loan within three months with 8% monthly interest. The applicant took the loan for the benefit of Mr K.S. who had been ineligible to apply due to his poor financial status.
7. On the same date, the then Ohrid Municipal Court entered a notice (“the notice”) in the public register, recording a mortgage in favour of the company over a house and a plot of land owned by the applicant.
8. The principal amount of the loan with interest was paid by Mr K.S. within the three-month period as set forth in the agreement. Despite that fact, the company continued charging 8% interest although the validity of the agreement had not been extended. Until 10 May 1996 the amount was paid by Mr K.S. on behalf of the applicant. After that date, the applicant continued to pay the 8% interest until 26 October 1996 when the loan was completely repaid.
9. On 29 May 1997 the Ohrid Court of First Instance deleted the notice from the public register after it had received a notification by the company that the loan had been completely repaid.
10. On an unspecified date in 1997, Mr K.S. brought a civil action against the company and the applicant claiming the difference between the interest actually paid and the domestic rate, following the three-month period. According to the expert opinion given in this case, Mr K.S. and the applicant overpaid in the sum of DM 85, 831. On 28 October 1997 Mr K.S. withdrew the claim against the applicant. On 6 February 1998 the Ohrid Court of First Instance dismissed the applicant's request to intervene in the proceedings as a claimant and ordered his claim to be registered separately. On 16 September 1998 the court's decision became final and the applicant's action was registered as a separate claim.
11. Mr K.S.'s claim was dismissed on 10 February and 17 October 2000 respectively, by the Court of First Instance and the Court of Appeal. The courts considered that the company had no legal capacity to stand in the proceedings as it had concluded the agreement with the applicant and not with Mr K.S. The courts further found Mr K.S.'s claim ill-founded as he had not been a party to the agreement, even though the applicant had concluded it for his benefit.
12. It appears that the applicant's claim was dismissed by the trial court's decision of 16 February 2000. On 1 June 2000 the Bitola Court of Appeal upheld the applicant's appeal and remitted the case for a fresh consideration.
13. On 3 April 2001 the Ohrid Court of First Instance dismissed as ill-founded the applicant's claim for unlawful enrichment (неосновано збогатување). It held that the company had lawfully charged 8% interest as the loan had not been repaid in time and accordingly as such the applicant had been liable to pay interest as set forth in the agreement. It concluded, therefore, that the agreement had been implicitly extended without a need for a further express agreement by the parties. The court further declared as withdrawn the applicant's claim against Mr K.S.
14. On 25 September 2001 the Bitola Court of Appeal upheld the applicant's appeal and remitted the case for re-examination. It held that the lower court had not properly established in what capacity the company had concluded the agreement: as an undertaking or a savings institution (штедилница). Relying on a letter of the National Bank of 4 May 1999, it stated that the company had not been incorporated as a savings institution at the time when the agreement had been concluded and consequently, that it had not been authorised to give loans in foreign currency. It held that the manner of incorporation of the company was decisive for the legal status of the agreement: namely, whether it was null and void or whether another agreement was implicitly concluded. In the latter case, the company could only charge statutory interest, but not at the rate as provided for by the agreement.
15. On 24 December 2001 the Ohrid Court of First Instance upheld the applicant's claim. The court found that, at the time when the agreement had been concluded, the company had not been incorporated in compliance with the Law on Banks and Savings Institutions and, as a consequence, it had not been authorised to give loans in foreign currency, but only in domestic currency. It further established that the company had been incorporated as a savings institution on 1 March 1994, i.e. following the conclusion of the agreement. It consequently declared the agreement null and void. As the agreement met the statutory requirements of another agreement (договор за заем), the court decided to consider it as it had been so concluded. As the company was not authorised to enter into loan agreements in foreign currency and to charge interest as set forth by the agreement, the court ordered it to repay the applicant DM 85,831, as the difference between the interest actually paid and the domestic rate, together with interest.
16. On 7 February 2002 the company appealed. By submissions of 26 February and 19 March 2002 it supplemented the appeal.
17. On 14 March 2002 the applicant replied to the company's appeal.
18. On 25 April 2002 the Bitola Court of Appeal dismissed the company's appeal and upheld the lower court's decision. It held that the court below had correctly established the facts and applied domestic law. It reiterated that, at the time when the agreement had been concluded, the company had not been incorporated in accordance with the Law on Banks and Savings Institutions and, as such, it had not been authorised to give loans in foreign currency. It also found that the lower court had correctly declared the agreement null and void.
19. On 15 May 2002 the Ohrid Court of First Instance granted the applicant's request for enforcement and ordered the company to pay the amount due. The money was subsequently transferred to the applicant.
20. On 22 May 2002 the company submitted to the Supreme Court an appeal on points of law (ревизија).
21. On 9 July 2002 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законистоста).
22. On 27 February 2003 the Supreme Court gave a single decision upholding the company's appeal on points of law and the public prosecutor's request for the protection of legality. It overturned the lower courts' decisions and dismissed the applicant's claim. It found that the lower courts had properly established the facts, but had incorrectly applied the substantive law. It found that at the time when the agreement had been concluded, the company had been registered as a financial institution authorised to enter into loan and savings agreements with physical persons. It stated, inter alia, that:
“... In accordance with the Law on Banks and Savings Institutions of 1993 in force at that time, [the company] was authorised to accept savings in domestic currency from physical persons and to give loans to physical persons and sole proprietors. Inferences can be drawn that [the company] was not authorised to accept or to give loans in foreign currency to citizens. However, that law does not provide for nullity of such agreements nor does it prohibit the execution of such operations by savings institutions. Such operation of a savings institution is regulated by penalty provisions. It is undisputed that the agreement concluded between the parties [the company and the applicant] was voluntarily executed by [the applicant]... “
23. The court rejected the lower courts' reasoning that the agreement had been null and void, as the company had been registered and authorised to enter into such agreements irrespective of whether it had concerned foreign currency. It stated that that fact could have only influenced the execution of the agreement. It went on to conclude that the applicant could not have requested restoration of the money already paid to the company under the agreement, as the latter was a financial institution set up by virtue of law, the operation of which was authorised by the National Bank. Moreover, the scope of reference of the company was regulated by a law which could not have been unknown to the applicant.
24. The decision was served on the applicant on 24 April 2003.
25. On 5 May 2003 the Ohrid Court of First Instance granted the company's request for enforcement of the Supreme Court's decision. The money, which had already been transferred to the applicant, has been deducted from the latter's pension in monthly instalments since then.
26. Section 374 of the Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provides that appeals on points of law must be submitted to the first-instance court in sufficient number of copies for the court, the opposing party and the public prosecutor.
27. Section 376 of the Act provides that, inter alia, the presiding judge of the first-instance court's panel of judges shall communicate a copy of a timely, complete and admissible appeal on points of law to the opposing party and to the public prosecutor authorised to file a request for the protection of legality. According to paragraph 3 of this section, the opposing party may, within thirty days from the service of the appeal, lodge with the court a reply. According to paragraph 4, after receipt of the reply or after expiration of the time-limit for reply, the presiding judge of the first-instance court's panel of judges shall transfer the appeal and any reply, together with the complete file, to the [the Supreme Court] through the second-instance court.
28. Section 381 § 1 of the Act provides that [the Supreme Court] shall uphold the appeal on points of law and overturn the impugned decision if it finds that domestic law was wrongly applied.
29. Section 392 of the Act provides that the Supreme Court shall give a single decision if an appeal on points of law and a request for the protection of legality were submitted against the same decision.
30. Section 394 of the Act provides that, if not otherwise regulated, the above provisions likewise apply to a request for the protection of legality submitted by the public prosecutor.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83817
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LIND v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1981 and lives in St Petersburg.
8. The applicant is a member of the National Bolsheviks Party.
9. On 14 December 2004 a group of about forty members of the National Bolsheviks Party occupied the waiting area of the President’s administration building in Moscow and locked themselves in an office on the ground floor.
10. They asked for a meeting with the President, the deputy head of the President’s administration Mr Surkov, and the President’s economic advisor Mr Illarionov. Through the windows they distributed leaflets with a printed letter to the President that listed his ten alleged failures to comply with the Constitution and contained a call for his resignation.
11. The intruders stayed in the office for one hour and a half until the police broke down the blocked door. They did not offer any other resistance to the authorities.
12. On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s detention on the ground that he was suspected of a particularly serious criminal offence, had no permanent residence in Moscow and was a Dutch national. It considered that there was a risk of his re-offending, absconding, interfering with the investigation or intimidating witnesses.
13. The applicant appealed, complaining that the District Court had not cited any facts to justify the necessity of ordering his detention. On 3 February 2005 the Moscow City Court upheld the detention order on appeal, finding that it had been lawful and justified.
14. On 21 December 2004 the applicant was charged with an attempted violent overthrow of State power (Article 278 of the Criminal Code) and intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214).
15. On 8 February 2005 the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 April 2005, referring to the gravity of the charge. The applicant had no permanent residence in Moscow and there were reasons to believe that he might abscond or interfere with the investigation.
16. The applicant’s counsel appealed. He asked the court to release the applicant, taking into account that he had no criminal record, had positive references and was of frail health. On 9 March 2005 the Moscow City Court upheld the extension order on appeal.
17. On 16 February 2005 the applicant’s charge was amended to that of participation in mass disorders, an offence under Article 212 § 2 of the Criminal Code.
18. On an unspecified date the prosecutor requested the court to extend the applicant’s detention until 14 August 2005. On 14 April 2005 the Zamoskvoretskiy District Court of Moscow extended the applicant’s detention until 14 July 2005 for the following reasons:
“There are no reasons to vary the preventive measure. Taking into account the gravity of the charges and [the applicant’s] individual situation, the court considers that there are sufficient indications that [the applicant], once released, might abscond.
At the same time, bearing in mind that the parties to the criminal proceedings have already started studying the case file, the extension asked for by the prosecution appears to be excessive and must be limited to three months. This period will be sufficient for all parties to the proceedings to study effectively the entire case file.”
19. On 14 April 2005 the applicant’s counsel appealed. He asked the court to apply a more lenient preventive measure, taking into account that the applicant had no criminal record, had a permanent place of residence in Russia, studied at a university and suffered from a kidney disease. He also submitted that the applicant did not need so much time to study the case file. At the appeal hearing before the Moscow City Court the applicant confirmed that he had finished studying the case file.
20. On 11 May 2005 the Moscow City Court upheld the decision of 14 April 2005, finding that it had been lawful, sufficiently reasoned and justified.
21. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial.
22. On 20 June 2005 the Tverskoy District Court of Moscow scheduled the preliminary hearing for 30 June 2005 and held that all the defendants should remain in custody.
23. On 30 June 2005 the Tverskoy District Court held a preliminary hearing. It rejected the defendants’ requests to release them, citing the gravity of the charges against them and the risk of their absconding or obstructing justice.
24. The applicant’s counsel appealed. He repeated the arguments advanced in the grounds of appeal of 14 April 2005 and added that the applicant’s father, Mr Jaap Jan Lind, a Dutch national and the former Governor of the New Guinea, was dying of cancer in the Netherlands. On 17 August 2005 the Moscow City Court upheld the decision of 30 June 2005 on appeal, finding that it had been lawful, well-reasoned and justified.
25. The trial started on 8 July 2005.
26. On 14 July 2005 the applicant lodged an application for release, referring to his frail health and a need for a medical examination. On 27 July 2005 the Tverskoy District Court rejected the request. It held that the applicant’s detention was lawful and justified. The applicant had not submitted medical certificates showing that his state of health was incompatible with custody. On 5 October 2005 the Moscow City Court upheld the decision on appeal.
27. On 10 August 2005 the applicant’s counsel filed a further application for release. He submitted medical certificates, confirming the applicant’s and his father’s diseases. A human-rights activist, Mr Ponomarev, offered his personal guarantee that the applicant would not abscond. The Dutch Embassy asked the court to release the applicant taking into account the precarious state of his health and his father’s terminal illness. Other defendants also lodged applications for release.
28. On 10 August 2005 the Tverskoy District Court rejected the requests. It held:
“The court takes into account the defence’s argument that the individual approach to each defendant’s situation is essential when deciding on the preventive measure.
Examining the grounds on which ... the court ordered and extended detention in respect of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct justice in some other way.”
29. The applicant appealed, complaining that the District Court had disregarded the medical evidence confirming his and his father’s poor state of health. On 2 November 2005 the Moscow City Court upheld the decision of 10 August 2005 on appeal, finding that the applicant had not submitted medical certificates showing that his state of health prevented him from remaining in custody.
30. On 16 September 2005 the Tverskoy District Court rejected a new application for release, repeating verbatim the wording of the decision of 10 August 2005.
31. In September 2005 the applicant asked the domestic courts to release him for a few days so that he could see his father. Mr Jaap Lind had asked for euthanasia which was scheduled for 29 September 2005. The Dutch Ambassador seconded his request.
32. On 27 September 2005 the Tverskoy District Court of Moscow refused to release the applicant. It found that since the applicant was a Dutch national he might abscond or interfere with the proceedings.
33. On 28 September 2005 the applicant was permitted a phone conversation with his father, in Russian only. The Dutch Embassy paid for the call. The conversation was interrupted by the facility administration a minute later.
34. On 29 September 2005 Mr Jaap Lind died by euthanasia.
35. On 27 October 2005 the Moscow City Court upheld the decision of 27 September 2005 on appeal. It held that the information about the deterioration of the applicant’s father’s health and the Dutch Ambassador’s request to release the applicant had been considered. However, the refusal to release the applicant had been justified, given the gravity of the charge against him. The court found that the applicant had been living in Russia since 1989, had visited his father no more than once a year and had mainly communicated with him by mail and phone. He had been given an opportunity to talk to his father over the phone. It further held that the applicant’s state of health was satisfactory, therefore there was no reason to amend the preventive measure.
36. In October 2005 the applicant lodged a new application for release. He submitted that his father had died and he wanted to attend the farewell ceremony. The applicant vouched that he had no intention of absconding and referred to his clean criminal record and positive references. The Dutch Ambassador for a third time asked the court for the applicant’s temporary release so that he could attend the farewell ceremony.
37. On 3 October 2005 the Tverskoy District Court rejected the request. It referred to the gravity of the charge and the applicant’s Dutch nationality which gave reasons to believe that he might abscond.
38. The applicant appealed. He again asked the court to release him so that he could attend a farewell ceremony for his father. He also contended that he suffered from a chronic kidney disease and required constant medical supervision and treatment. He complained that his applications to the detention facility doctor had remained unanswered and that he had not been provided with any treatment for his disease.
39. On 27 October 2005 the Moscow City Court upheld the decision on appeal. It found that the applicant’s father had donated his body to science, therefore there had been no funeral. The farewell ceremony was scheduled for 30 October 2005 in The Hague. Taking into account the gravity of the charge and the applicant’s previously rare contact with his father, it was inopportune to release him.
40. On 8 December 2005 the Tverskoy District Court convicted the applicant of participation in mass disorders and sentenced him to three years’ imprisonment conditional on two years’ probation. The applicant was immediately released.
41. The applicant was held in detention facility no. IZ-77/2 in Moscow.
42. According to a certificate of 23 November 2005 issued by the facility administration, produced by the Government, from 16 to 17 December 2004 and from 9 to 10 February 2005 the applicant was kept in cell no. 511. The cell measured 9.7 sq. m, was equipped with five bunks and accommodated three or four inmates. Cell no. 100 – where the applicant was held from 17 December 2004 to 9 February 2005 and from 10 February to 29 April 2005 – measured 54.7 sq. m, was equipped with twenty-two bunks and housed twenty inmates on average. From 29 April to 8 December 2005 the applicant was detained in cell no. 13 measuring 8.4 sq. m, containing four bunks and accommodating four inmates on average. The Government submitted that the applicant had at all times had a separate bunk and had been provided with bedding.
43. The Government contended that the cells were naturally illuminated through the windows and were also equipped with fluorescent lamps which functioned during the day and at night. On 12 July and 18 October 2005 cells nos. 2, 85, 101, 121, 159, 144, 148, 160, 163, and 236 were examined by a sanitary officer who found the sanitary conditions satisfactory. No traces of insects or rodents were discovered. Relying on a certificate of 12 November 2005 from the facility administration, the Government further submitted that all cells were equipped with a lavatory pan. It was separated from the living area by a brick partition of 1.3 or 2.5 metres in height.
44. The Government affirmed that inmates were provided with food three times a day. They had an hour-long walk daily. The detention facility housed a medical unit which was open twenty-four hours and had all the necessary equipment for high-standard medical assistance. However, the applicant never applied for medical aid.
45. The applicant did not dispute the cell measurements, the number of bunks and the number of inmates per cell. He disagreed, however, with the Government’s description of the sanitary conditions. The cells swarmed with cockroaches, crickets and lice. There was no ventilation and it was stifling and smoky inside. The partition separating the toilet facilities from the living area did not offer sufficient privacy and the person using the toilet was in view of the other inmates. The artificial light was never switched off disturbing the applicant’s sleep. The applicant conceded that an hour-long walk was organised every day. However, the exercise yard was covered and measured no more than 15 sq. m. Food was scarce. Inmates were allowed to take a shower for ten minutes once a week.
46. The applicant suffered from chronic glomerulonephritis (a kidney disease) and required constant medical supervision and treatment. He received no treatment. On 18 and 25 July 2005 he complained of an aching kidney and asked the facility doctor to examine him and prescribe medication. His request remained unanswered.
47. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001).
48. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).
49. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
50. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
51. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated to the day when the prosecutor sends the case to the trial court (Article 109 § 9).
52. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
53. A Russian national has to produce a travel passport to cross the Russian border (section 7 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996). The travel passport of an accused can be retained by a court, a prosecutor or a policeman until the termination of the criminal proceedings (sections 6.1 § 3 and 6.7 of the Instruction on issuance of travel passports, approved by the Order of the Ministry of Internal Affairs, no. 310 of 26 May 1997).
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-67303
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SEQUEIRA v. PORTUGAL
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Modesto Sequeira, is a Portuguese national born in 1947. He is currently being held at Vale de Judeus Prison (Portugal).
.
The applicant served a prison sentence in Spain between 1989 and 1992 for drug trafficking. He returned to Portugal on completion of his sentence but was placed in pre-trial detention in connection with other proceedings in 1994.
During his detention in Montijo Prison, he met A., who was allegedly linked to drug-trafficking circles. A. informed the applicant that he could supply him with transport, especially boats, should he decide to organise a drug-trafficking operation.
Following his release in 1994, the applicant travelled to Brazil, Colombia and Venezuela, countries in which he claims to have had business dealings (property sales and meat exports).
The applicant returned to Portugal in the summer of 1996. He then resumed contact with A., who had been released in the meantime.
According to the facts established by the Benavente Criminal Court in a judgment of 22 February 1998 (see below), subsequent events were as follows.
In September 1996 the applicant asked A. to find a boat so that he could import a substantial quantity of cocaine from Brazil. The applicant and A. travelled to Brazil between November and December 1996 in order to finalise the details of the cocaine shipment.
Thereafter A. contacted C., the owner of a boat, with a view to arranging for the drugs to be transported to Portugal. It emerges from the case file that C. had already collaborated on several occasions with the criminal-investigation department in drug-trafficking cases. He persuaded A. to collaborate with the police too. The applicant was unaware of this. The criminal-investigation department and the public prosecutor's office were informed.
A. introduced C. to the applicant in August 1997. The latter paid C. an unspecified sum of money as remuneration for his services.
At the end of August C.'s boat, on which A. and an undercover member of the criminal-investigation department were also present, took delivery of a consignment of drugs from another boat off the coast of Brazil. C. then sailed the boat to the Portuguese port of Figueira da Foz, where the drugs were unloaded and stored in a warehouse.
On 29 September 1997 A. transported the drugs by car to a farm in Salvaterra de Magos that the applicant had purchased in the meantime. The drugs were unloaded and stored in the farm. After A.'s departure, the criminal-investigation department, which had been monitoring the entire operation, arrested the applicant and seized 1,833 kg of cocaine.
Unlike A. and C., who were not prosecuted, the applicant was accused of drug trafficking and criminal association.
In a judgment of 22 December 1998, the Benavente Criminal Court found the applicant guilty of the offences and sentenced him to nineteen years' imprisonment. The court established the facts of the case primarily on the basis of statements by A. and C. and the members of the criminal-investigation department who had taken part in the operation. All of these witnesses appeared at the trial. The court also based its decision on documents found in the applicant's possession, containing several names and telephone numbers and a list of sums of money. With regard to the applicant's allegations that he had been the subject of incitement, the court emphasised that A. and C. had not acted as agents provocateurs but as undercover agents. According to the court, their activities had been confined to informing the criminal-investigation department of the operation's progress and they had never incited the applicant to commit an offence that would not otherwise have been committed.
The applicant appealed against this judgment to the Evora Court of Appeal. In a judgment of 12 July 2000, the Court of Appeal rejected the applicant's submission concerning A.'s and C.'s conduct. Referring to Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, pp. 1452 et seq.), the Court of Appeal emphasised that A. and C. had acted as undercover agents and not as agents provocateurs, and that the evidence in issue was therefore admissible. It did however quash the applicant's conviction on the charge of criminal association and reduced his sentence to ten years' imprisonment.
The applicant appealed on points of law. In a judgment of 13 December 2000, the Supreme Court dismissed the submission concerning A.'s and C.'s conduct. Like the lower courts, the Supreme Court held that they had acted as undercover agents and not as agents provocateursnotably the undercover agents' intervention, warranted a reduction of the applicant's sentence to nine years' imprisonment.
The applicant then requested clarification (aclaração) of this judgment in respect of the distinction between undercover agents and agents provocateurs. However, the Supreme Court, in a judgment of 7 February 2001, dismissed this request, holding that there was nothing to be clarified.
The prevention of drug trafficking is governed by Legislative Decree no. 15/93 of 22 January 1993, as amended by Law no. 45/96 of 3 September 1996.
Article 59 of this legislative decree provides that a criminal investigation agent or a third party acting under the supervision of the criminal-investigation department who, in the course of preliminary inquiries and without revealing his identity, accepts an offer for or transports narcotics or other psychotropic substances shall not be liable to prosecution in respect of such conduct. These persons' actions require authorisation from the relevant judicial body, to which they must report.
Article 126 of the Code of Criminal Procedure states:
“1. Evidence obtained through torture, the use of force or any kind of physical or psychological duress shall be invalid and inadmissible.
2. Evidence obtained by any of the following means shall be deemed to have been obtained by physical or psychological duress even where the victim has consented thereto:
(a) ill-treatment, assault, any other method, hypnosis, cruelty or deceit that vitiates free will or freedom of choice;
...
4. Where evidence is obtained by means that constitute a serious criminal offence under this Article, it may be used only for the purpose of prosecuting those responsible for obtaining it in that way.”
Teixeira de Castro, cited above, contains the following description of the current Portuguese case-law and legal theory in this matter (p. 1460, §§ 26-27:
“Subject to certain conditions, the Supreme Court accepts the use of 'infiltrators' in the fight against drug trafficking (judgments of 12 June 1990, BMJ no. 398, p. 282; 14 January 1993, Col. Jur. (STJ), 1993-I, p. 270; 5 May 1994, Col. Jur. (STJ), 1994-II, p. 215 ...; ... 22 June 1995, Col. Jur. (STJ), 1995-II, p. 238; 6 July 1995, Col. Jur. (STJ), 1995-II, p. 261; and 2 November 1995, Col. Jur. (STJ),1995-III, p. 218).
Legal writers in Portugal (and in other European countries) draw a distinction, under the generic term of 'infiltrators', between an 'undercover agent' and an 'agent provocateur'. The former is someone who confines himself to gathering information, whereas the latter is someone who actually incites people to commit a criminal offence. In Portugal, under the law in force at the material time, legal experts regarded evidence obtained by 'undercover agents' as admissible, but were more reserved about evidence obtained by 'agents provocateurs' (see, for example, Costa Andrade, Sobre as proibições de prova em processo pènal, Coimbra, 1992, pp. 220 et seq., and A.G. Lourenço Martins, Droga. Prevenção e tratamento. Combate ao tráfico, Coimbra, 1984, pp. 154 et seq., and, more recently, 'Droga e direito', Aequitas, Editorial Noticias, 1994, pp. 278 et seq.).”
Following Teixeira de Castro, several judgments by the Supreme Court and decisions by courts of appeal and courts of first instance established that evidence obtained through the actions of an agent provocateur was inadmissible under Article 126 § 2 (a) of the Code of Criminal Procedure.


ITEMID: 001-21975
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SLOTS v. DENMARK
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Aage Slots, is a Danish national, born in 1927 and living in Frederiksberg, Denmark. He is represented before the Court by Mr C. Harlang, a lawyer practising in Copenhagen.
The respondent Government are represented by their agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1982 the applicant owned a certain real estate in Copenhagen and furthermore controlled, through incorporated companies, a number of wine and tobacco businesses. One of the companies for which the applicant stood surety experienced financial difficulties and was eventually declared bankrupt. The applicant’s personal financial situation was affected thereby and on 26 February 1982 the customs authorities requested the Probate Court of the Maritime and Commercial Court of Copenhagen (Sø- og Handelsrettens skifteretsafdeling) to open bankruptcy proceedings against him. A number of court sessions were subsequently held following which the applicant was declared bankrupt by decision of 17 May 1982. Furthermore, the Court appointed, provisionally, two official receivers.
The applicant appealed against the above decision to the Supreme Court (Højesteret). However, on 15 June 1982 the Appeals Committee of the Supreme Court (Højesterets Anke- og kæremålsudvalg) upheld the decision.
On 8 July 1982 the Probate Court appointed two official receivers to sort out the applicant’s estate in bankruptcy and to settle the accounts. A total of 28 court sessions were subsequently held between July 1982 and October 1984 with a view to determine the applicant’s assets, to decide on the applicant’s objections to the sale of real property, mortgage deeds and stocks, his objections to a manager who was temporarily hired to take care of the ongoing business, his objections to one of the official receivers and to an assisting judge, to decide on the applicant’s request to have a counsel appointed, to consider the creditor claims submitted, to discuss accountant fees, and to settle other disputes related to the bankruptcy. During sessions held on 27 November and 17 December 1984 as well as on 21 January 1985 the official receivers’ draft accounts were discussed. The applicant had objections to 21 items listed in the accounts. Eventually, as no agreement could be reached, the Probate Court approved the accounts including the fees to be paid to the official receivers and the principles of distribution by decision of 20 June 1985. It appears from the transcript of the decision that a few questions were left open regarding some amounts, which the official receivers had not been able to recover. The Probate Court stated that if it should prove necessary, these questions could be dealt with later pursuant to section 149 of the Bankruptcy Act (Konkursloven).
On 6 July 1985 the applicant, represented by a lawyer, appealed to the Supreme Court against the part of the Probate Court’s decision that concerned the official receivers’ fees which the applicant claimed reduced. Written pleadings were submitted and a court session was held between July and October 1985. On 15 October 1985 the applicant’s lawyer informed the court that he withdrew from the case. Four court sessions were held between November 1985 and 20 February 1986 during which a new lawyer represented the applicant. On the latter date a final hearing was scheduled to take place on 22 September 1986. However, on 18 August 1986 the new lawyer informed the court that he had withdrawn from the case. On 19 August and 13 October 1986 the case was adjourned awaiting the applicant engaging another lawyer. In a court session on 3 November 1986 the final hearing was re-scheduled to take place on 7 December 1987 though the applicant had had not succeeded in finding a new lawyer. Pre-trial hearings were held on 5 and 12 October 1987. The scheduled final hearing on 7 December 1987 had to be adjourned due to the applicant’s hospitalisation. On 1 February 1988 the final hearing was re-scheduled to take place on 31 August 1988. However, also this hearing had to be adjourned due to the applicant’s hospitalisation and the final hearing was re-scheduled to take place on 28 October 1988. On 2 November 1988 the Supreme Court pronounced judgment upholding the Probate Court’s decision of 20 June 1985 concerning the fees to the official receivers.
Subsequently, supplementary income accrued to the estate. Accordingly, pursuant to Section 154 of the Bankruptcy Act, on 12 March 1992 the official receivers submitted an additional draft account as well as an additional statement of distribution. The Probate Court inserted a notice, which was published in the Danish Official Gazette on 11 April 1992, summoning to a final hearing on 29 April 1992 and stating:
“The additional draft account and the list of distribution can be examined in the Probate Court during a period of 14 days before the final hearing. Provided that the drafts are approved of, and not appealed against within the time limit, the bankruptcy proceedings are terminated ... and the distribution of the dividend will take place on 29 May 1992.”
By decision of 21 May 1992 the Probate Court approved the additional draft account and the additional statement of distribution. It follows inter alia of the court records:
“A notice of the completion of the bankruptcy proceedings is to be published in the Danish Official Gazette.
The bankruptcy proceedings are terminated.”
Thus, the Probate Court inserted a notice, which was published in the Danish Official Gazette on 27 May 1992 stating:
“By decision of 21 May 1992 the Probate Court approved the additional draft account and the additional statement of distribution in the bankruptcy proceedings concerning [the applicant].”
On 17 June 1992, the applicant appealed against this decision to the High Court of Eastern Denmark (Østre Landsret) opposing to the principles of distribution.
Between July and September 1992 a dispute concerning the fee to be paid to the High Court for the applicant’s appeal was determined. Subsequently, written pleadings on the merits were submitted. In a court session held on 11 February 1993 the applicant’s request for an expert opinion was refused. It appears that the applicant thereafter changed lawyer three times. At a pre-trial hearing on 13 January 1994 the High Court dismissed the applicant’s appeal since neither the applicant nor a representative appeared. However, at a court session held on 18 February 1994 it was established that the applicant by mistake had not been informed by his lawyer of the court session on 13 January 1994. Accordingly, the High Court restored the case. On 8 September 1994 the proceedings were transferred to preparation in writing and adjourned until 3 November 1994 pending the applicant’s written pleadings. On 15 December 1994 the final pleadings were scheduled to take place on 7 September 1995. By judgment pronounced on 14 September 1995 the High Court dismissed the applicant’s appeal for the following reasons:
“The principles of distribution became final by the Probate Court’s decision of 20 June 1985. The Probate Court’s decision now appealed against [by the applicant] only approves an additional statement of distribution to the creditors according to the aforesaid principles.
Accordingly, [the applicant] is now precluded from appealing against the principles of distribution.”
By letters of 16 September 1996 and 26 November 1997 the applicant requested the official receivers to inform him when the final closure of the bankruptcy estate was to take place. It appears that he did not receive a reply thereon.
B. Relevant domestic law
The relevant provisions of Chapter 18 of the Bankruptcy Act concerning the completion of bankruptcy proceedings and the distribution of dividend read as follows:
Section 149
“On the basis of a recommendation from the official receiver, the Probate Court may decide that a final account, and distribution, if any, of an amount not yet collected, ... or any other specifically limited parts of the estate, shall be deferred to the period after the completion of the bankruptcy proceedings.”
Section 152
“Dividend will be distributed to the creditors when the Probate Court has approved the draft accounts and the statement of distribution, and when the time limit for appeal has expired without an appeal having been initiated.”
Section 154
“Amounts, which have been paid in or are released to the advantage of the estate after its completion, will be distributed to the creditors according to the principles of distribution previously approved of by the Probate Court. An additional account must be submitted by the official receiver to the Probate Court...”
Section 155
“The Probate Court inserts a notice of the completion of the bankruptcy proceedings to be published in the Danish Official Gazette (Statstidende)...”


ITEMID: 001-79608
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NESTAK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Violation of Art. 6-2;Violation of Art. 6-1 (impartial tribunal);Not necessary to examine Art. 6-1 (procedural unfairness);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1979 and lives in Moravské Lieskové.
6. On 6 April 2000, at around 1.30 a.m., two individuals robbed a gambling house in Liptovský Mikuláš. They were masked with stockings pulled over their heads and entered the club after closing time. They forced the last remaining employee to hand over cash and a stock of cigarettes by threatening him with a starting pistol and an electric paralyser.
7. On 6 April 2000, after 6 a.m., the police detained and subsequently charged the applicant and his former classmate and friend, R., with armed robbery within the meaning of Article 234 §§ 1and 2 (b) of the Criminal Code (CC). The applicant who was assigned an ex officio lawyer did not appeal against the charge.
8. At his first interrogation R. confessed to having committed the robbery together with the applicant and gave all relevant details. The applicant only confessed to having planned and prepared the robbery. According to him he had withdrawn from the plan at the last minute because he had become anxious. He had driven R. to the scene and had agreed to wait for him in a place agreed upon, but R. had not come to that place.
9. In his subsequent interrogation before a judge of the Liptovský Mikuláš District Court (Okresný súd) the applicant repeated the above version. He did not know the person who had committed the robbery with R. and had no explanation as to why R. wished to inculpate him. The applicant added that he had a debt which he intended to pay off from the proceeds of the planned robbery. He and R. had previously wanted to burgle a holiday cottage, but had abandoned the idea after a light had gone on inside. The applicant also stated that he was a self-employed entrepreneur and could settle his debt using money from his business or obtained from his father.
10. On 7 April 2000 the District Court remanded the applicant in detention. Testimonies of R. and a witness and other evidence provided a basis for a strong suspicion against the applicant. Even assuming that he had not taken part in the robbery as such, his involvement had in any event amounted to the offence of aiding and abetting under Article 10 § (c) of the CC. As the motive of his actions was his need to obtain money to pay off his debt, it could be presumed that, if released, the applicant would carry on his criminal activities to achieve that objective. This rendered his detention justified under Article 67 § 1 (c) of the Code of Criminal Procedure (CCP). On 12 April 2000 the District Court corrected clerical errors in the decision.
11. The applicant filed a complaint (sťažnosť) against his detention arguing that he had no previous convictions and that the weapon had been used by R.
12. On 16 May 2000 the Žilina Regional Court (Krajský súd) dismissed the applicant’s complaint observing that the testimony of R. and documentary evidence justified the suspicion that the applicant had been at least an accomplice to the robbery. It was true that he had no previous convictions but, at the same time, it was clear from his own submissions that his objective was to obtain money to discharge his debt. The reasons for detaining him, as established by the District Court, were therefore valid.
13. On 19 June 2000 the applicant discharged his lawyer and appointed a new one.
14. On 22 June 2000 the applicant was indicted to stand trial in the District Court on charges of conspiracy and robbery (Articles 9 § 2 and 234 §§ 1 and 2 (b) of the CC).
15. On 6 July 2000 the applicant’s new lawyer lodged a petition for the applicant’s release. He relied on extracts from the applicant’s accounting books and argued that the recent profits of his business were sufficient to settle the applicant’s debt. There was therefore no need to detain him.
16. On 11 July 2000 the District Court informed the applicant that a request for his release had been submitted on his behalf by a lawyer but that it could not be processed because the lawyer had not shown that he had a valid power of attorney from the applicant. On the same day the previous lawyer informed the District Court that his power of attorney had been terminated and that the applicant had new legal representation.
17. On 17 July 2000 the District Court held a private session (neverejné zasadnutie) to examine the petition of 6 July 2000 for the applicant’s release. The session was attended by a public prosecutor, but neither the applicant nor his lawyer was present. The District Court dismissed the petition. It referred to a previous statement by the applicant according to which it was the applicant who had proposed to R. that they should find a way to obtain money. The fact that the applicant had income from his business was not new. However, the information submitted by him as to the amount of his earnings was inconsistent and had no impact on the necessity to keep him in detention.
18. On 26 July 2000 the applicant complained of the decision of 17 July 2000 to the Regional Court. He argued that at the time of his remand he had not had detailed information about his financial situation. He now had such information and it showed that his financial standing had improved and was better than expected.
19. On 16 August 2000 the Regional Court held a private session to decide on the applicant’s complaint. It was attended by the prosecutor but not by the applicant and his lawyer. The Regional Court dismissed the complaint. It considered that the concern that the applicant might commit further offences was still justified. He had a debt which he could not repay and the evidence available indicated that this was the reason why he and R. had decided to carry out the robbery. As for the extracts from the accounting books which he had submitted, it could not be established whether they related to the business of the applicant or his father’s.
20. On 25 September 2000 the District Court held a hearing (hlavné pojednávanie) in the case. It took evidence from the applicant and R. and examined depositions of four witnesses.
The applicant again petitioned for release arguing that he had sufficient means to pay off his debt and that the initial reason for detaining him therefore no longer existed. His petition was dismissed as the court found no new relevant facts which would invalidate the reasons for the applicant’s detention as set out in the earlier decisions.
The hearing was adjourned until 23 October 2000 in order to await a judgment of the Nové Mesto nad Váhom District Court in a different criminal trial against R.
21. On 28 September 2000 the applicant filed a complaint against the dismissal of his petition for release. He argued that the courts had not convincingly refuted his argument that he had sufficient means to settle his debt. The applicant further complained of a violation of his right to be presumed innocent in that in their previous decisions the courts had expressed the view that he had committed the robbery despite the fact that he had not yet been convicted.
22. On 11 October 2000 the Regional Court held a private session to consider the applicant’s complaint. It was attended by the prosecutor in the absence of the applicant and his lawyer. The Regional Court dismissed the complaint holding that:
“The accused was indicted for complicity in robbery ... The evidence which has been taken so far has proved that the accused Nešťák committed that offence as he needed money to pay off his debts (“...bolo preukázané, že obžalovaný Nešťák uvedeného trestného činu dopustil sa z dôvodu, že potreboval peniaze ...”). On this basis the authorities dealing with the case established that [the applicant’s] detention was necessary within the meaning of Article 67 § 1 (c) of the Code of Criminal Procedure, as the specific fear persisted that the accused would continue criminal activities in case of his release.
Having examined the challenged decision and the reasons for the complaint against it, the Regional Court [considers] that the danger still exists that the accused will continue committing offences in case of his release regardless of his argument that his financial situation has improved and that he can pay off the debt. The Regional Court reached this conclusion also having regard to the fact that the accused had been tried by the District Court in Nové Mesto nad Váhom on 25 September 2000 and the District Court in Liptovský Mikuláš adjourned the hearing only because the judgment of [25 September 2000] had not become final and [the District Court in Liptovský Mikuláš] may be required to impose a consolidated penalty. The above thus shows that the accused has a tendency to commit offences regardless of his financial situation. The risk that, if released, he may continue to commit further offences with a view to obtaining financial means therefore still persists.
The way in which the offence was committed also indicates the extent to which the accused is corrupt. This confirms the conclusion that he could commit further offences.”
23. On 23 October 2000 the District Court held another hearing following which, on the same day, it found the applicant guilty as charged and sentenced him to five and a half years’ imprisonment.
The District Court noted that, at the pretrial stage of the proceedings, the applicant had admitted that he had come up with the idea of illegally obtaining money and that with R. they had explored the possibilities of doing so. At that time he had claimed that he had participated in preparing the robbery but had finally abandoned the idea of carrying it out. However, at the hearing, the applicant had changed his testimony and alleged that he had informed R. beforehand that he would not participate in the crime.
The District Court also noted that R. had described in detail how the offence had been committed. According to him the initiative to steal money had come from the applicant and the applicant had actually carried out the robbery with him. This version of facts was supported by other evidence, in particular by the statements of the employee of the club and two other witnesses. It was corroborated by police reports concerning the discovery of weapons and other items connected with the robbery and the booty. The District Court found no grounds to disbelieve the version of R. The applicant’s version was however not supported by any evidence and was thus unreliable.
24. The applicant appealed. He argued that the first-instance court had failed to establish adequately the relevant facts and to give convincing reasons for its conclusion. In particular it had relied exclusively on the statements of R. and had given no relevant reasons for rejecting the applicant’s version. There was no evidence showing that the applicant had actually committed the robbery and the District Court had failed to address his argument that there were inconsistencies in the submissions of R.
25. On 7 November 2000 the District Court dismissed another request for release lodged by the applicant.
26. On 10 November 2000 the applicant complained about the decision of 7 November 2000 and challenged the judges of the Regional Court dealing with his case. He contended that in the above decision of 11 October 2000 they had expressed the view that the applicant had a tendency to commit offences and, in that connection, referred to the judgment of the Nové Mesto nad Váhom District Court of 25 September 2000. That judgment, however, concerned R. and not the applicant. According to the applicant, in the circumstances, the impartiality of the Regional Court’s judges was open to doubt.
27. On 15 December 2000, under Article 31 § 5 of the CCP, a different chamber of the Regional Court found that the three Regional Court judges dealing with the applicant’s case were not biased. It acknowledged that the reference in the decision of 11 October 2000 to the judgment of 25 September 2000 was a mistake. However, that mistake had no impact on the determination of the charges against the applicant.
28. On 10 January 2001 the Regional Court modified the first-instance judgment in that it reduced to five years the sentence imposed on the applicant. The chamber of the Regional Court was composed of the same judges who had delivered the decision of 11 October 2000.
In its judgment the Regional Court addressed the applicant’s arguments. It found no discrepancy in the relevant part of the statements of R. indicating that he had committed the offence together with the applicant. Relying on the contents of the case file, the Regional Court upheld the conclusion that the applicant had initiated the offence and that he had committed it together with R.
29. On 10 January 2001 the Regional Court dismissed the applicant’s complaint against the decision of 7 November 2000. It noted that the applicant’s conviction had become final and that he was to start his sentence. In any event, at the relevant time the applicant’s detention under Article 67 § 1 (c) of the CCP had been justified.
30. On 25 August 2003 the Trenčín District Court released the applicant on parole.
31. Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms.
32. Under the Constitutional Court’s case-law (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties.
33. Pursuant to Article 17 § 2 no one shall be prosecuted or deprived of their liberty except for reasons and in a manner provided for by law.
34. Under Article 50 § 2 any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law.
35. Article 9 § defines criminal complicity. Pursuant to that provision if a criminal offence has been committed by a common action of two or more individuals, each of them is criminally liable as if he or she committed the offence alone.
36. The offence of robbery is defined in Article 234. It provides that anyone who uses violence or a threat of immediate violence against another with the intention to take hold of someone else’s property is to be punished by imprisonment of two to ten years (§ 1). Imprisonment of five to twelve years applies if a weapon is used (§ 2 (b)).
37. Article 2 lays down fundamental principles of criminal proceedings. Pursuant to its paragraph 2 a person against whom the proceedings are conducted cannot be considered guilty until convicted by a final judgment of a court of law.
38. Basic legal rules concerning exclusion of judges are encompassed in Article 30. Judges should be excluded from taking part in steps in criminal proceedings if their impartiality is open to doubt on account of their link to the subject-matter of the proceedings, the persons directly concerned, the legal representatives or the prosecuting authorities involved (paragraph 1). After the bill of indictment (obžaloba) is lodged, judges should be excluded who at the pre-trial stage of the proceedings took part in deciding on the detention of the indicted person (paragraph 2).
39. Article 31 governs the procedure on exclusion of biased judges. If judges themselves declare that they are biased, the question of their exclusion is to be resolved by a chamber of a superior court (paragraph 1). In other situations the question of exclusion is to be decided by the body concerned (paragraph 2). If a Regional Court sits as a court of appeal, the exclusion of its judges is to be determined by a different chamber of the same court (paragraph 5).
40. Detention on remand is governed by the provisions of Articles 67 et seq. A person charged with a criminal offence (obvinený) can be detained inter alia when there are reasonable grounds for believing that he or she would continue criminal activity, complete an attempted offence or commit an offence which he or she prepared or threatened to commit (Article 67 § 1 (c)).
41. Article 68 § 1 provides that a person can be remanded in custody only after he or she has been charged. The detention order
42. Under Article 72 § 1 an investigator, a prosecutor or a judge has to examine at every stage of the criminal proceedings whether the reasons for detention persist. When the reasons for detention fall away, the detainee has to be released immediately.
43. Private sessions (neverejné zasadnutie) of courts in criminal matters are governed by the provisions of Chapter 15. Article 240 stipulates that decisions are to be taken in private if the law does not envisage their being taken at a hearing (hlavné pojednávanie) or in a public session (verejné zasadnutie).
44. Pursuant to Article 241 the president of the chamber notifies the public prosecutor that the court is to hold a private session as a rule at least three days in advance.
45. Under Article 242 a private session requires the permanent presence of all members of the court’s chamber and of a minutes recorder (paragraph 1).
46. Until 1 October 2002, unless the law provided otherwise, the presence of the public prosecutor at a private session was possible but not obligatory (paragraph 2). As from 1 October 2002 this provision was abolished by virtue of Act No. 422/2002 Coll.
47. The presence of any other person at a private session is excluded (former paragraph 3, now paragraph 2).
48. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics.
49. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction.
50. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.
51. In an action of 26 June 2002 a married couple asserted a claim against the Ministry of Justice for financial compensation for non-pecuniary damage caused to them by detention on remand and criminal proceedings against them, which ended with their acquittal. The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary.
The action was examined on appeal by the Banská Bystrica Regional Court under file number 16Co 256/05. In its judgment of 7 July 2006 the court interpreted the claim as a claim for protection of personal integrity under Article 11 of the Civil Code. It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness. Relying on the judgment of the Supreme Court of 20 October 2005 file number 5Cdo 150/03, the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal. The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive. The above claim was thus not accepted, unlike other claims made in the same action (compensation for lost profit, legal costs and infringement of the presumption of innocence).
52. Further details concerning protection of personal integrity under Articles 11 et seq. of the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04, 13 June 2006).
53. Article 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides.
54. Under the terms of Article 135 civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence has been committed and by whom (paragraph 1). Other questions which normally fall to be decided by other authorities can be decided by a civil court. However, if the competent authorities decided upon such a question, the civil court will adopt their decision (vychádza z ich rozhodnutia).
55. The Act lays down rules for State liability for damage caused by unlawful decisions (Part (Časť) One) and wrongful official conduct (Part Two).
56. The general scope of State liability for damage caused by unlawful decisions is defined in section 1 (1). Pursuant to this provision the State is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings. However, decisions concerning detention and sentencing are excluded.
57. Special rules concerning State liability for damage caused by decisions on detention are embodied in sections 5 et seq. The State is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted (section 5 (1)).
58. Section 18 (1) renders the State liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions.
A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question.
The Act does not allow for compensation for non-pecuniary damage unless it is related to a deterioration in a person’s health (for further details, see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).
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