ITEMID: 001-67574
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: OZCAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Emrah Özcan, is a Turkish national, who was born in 1971 and lives in Istanbul. He is represented before the Court by Ms E. Keskin, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1997 the applicant's brother, Ali Özcan, was performing his military service as a gendarmerie soldier in the Gendarmerie Training Regiment No. 13 in the Kırkağaç district within the province of Manisa.
On 26 February 1997 a gendarme soldier, Hakan Çetin, who was serving in Regiment No. 1, had committed suicide by shooting himself with his G3 rifle.
On 27 February 1997 at 8 p.m. a gendarme soldier, Fatih İnekçi, found the applicant's brother dead in a building which was used to hold meetings with the food suppliers to the Regiment (“the commission building”). Fatih İnekçi immediately informed his superiors about the incident.
At around 8.50 p.m. the Kırkağaç public prosecutor and a doctor arrived at the scene of the incident. The body was officially identified by the officers who were present. The public prosecutor conducted an examination of the scene of the incident and the body. In his report, he described the room and noted the details of the rifle and the position of the body. The G3 automatic rifle, together with the spent bullet case and the bullet were sent to the laboratory for the ballistic examinations. Photographs of the scene and the body were taken from several angles. The prosecutor further took statements from the witnesses, including the gendarme soldier Fatih İnekçi, who had found the body.
Fatih İnekçi stated the following:
“I am responsible for the management of the commission building. The doors of the building are generally locked. There are two sets of keys for this building; I keep one of the sets and the other set is kept by the gendarme soldier Tuncer. I suppose Ali Özcan might have taken the key from Tuncer. Ali Özcan began working at the secretary's office in our regiment only ten days ago. Tonight, at around 8 p.m., while I was on my way to the dormitories, I noticed that the light in the commission building was on. I went to turn the light off and also to inspect the building. I tried to open the door but realised that the door was locked. I then opened the door using my key. When I entered the building, the light in the corridor was on and I realised that the door had been locked from inside. The key was left in the lock. I entered the room on the right side of the corridor and switched the light on. In that room I saw a body lying on the floor. Without looking at who he was, I left the building and informed the duty sergeant Levent Yağbasan. Together we returned to the commission building. At the beginning I was not able to identify the body. Then my colleagues told me that it belonged to Ali Özcan. Ali was a very quiet and shy person. He never talked to others about his personal problems.”
Gendarme sergeant Levent Yağbasan stated the following:
“Today I was the duty officer at the Regiment's station. At around 8 p.m., Fatih İnekçi told me that a soldier had shot himself in the next building. I went to the place of the incident together with him. We saw the body lying on the floor. His brain was scattered all around the room. We informed our duty superior officer about the incident and he also arrived at the scene. Shortly after that we reported the incident to the prosecutor. Ali Özcan was from the 13th regiment.”
Gendarme soldier Hakan Biberci stated the following:
“I have been serving in the 13th regiment as a secretary. The commission building has two sets of keys. Fatih İnekçi keeps one set of these keys. The other set is generally kept by me or by Tuncer Adamcıl who is also a gendarme soldier. Tuncer started working in a different regiment last week and was therefore replaced by Ali Özcan. From time to time we gave the keys to Ali Özcan. I spent the whole day with him in the office of the 13th regiment. We talked about our work at the secretary's office. I noticed that he looked stressed but he did not tell me what was bothering him. He only said that he was stressed. He did not mention anything about committing suicide. Tonight at around 6 p.m. we had dinner together. He seemed normal. After dinner, he told me that he wanted to go to the office and asked for the keys. I handed the keys to him. These are the keys with which the door of the commission building was locked from inside. He had borrowed the keys to go to our office. He never told me that he was going to go to the commission building. He was a quiet person who did not have any problems with any of the soldiers or the officers here. He once told us that his father had passed away and that his elderly mother had been looking after him. He never mentioned having problems with his family.”
Gendarme soldier Ali Avcı stated the following:
“Ali Özcan and I were trained together in the 13th regiment at the beginning of our military service. After a certain period, he commenced serving at the secretary's office and I began serving as an instructor. We had dinner together at 6 p.m. this evening. Ali Özcan told me that he was stressed. I asked him whether he had received any letters lately and he replied that he had not received any. He told me that he was bored. He was a quiet person. He would not talk much about his family. He had never mentioned suicide.”
Gendarme Captain Hüseyin Bakır, the commander of the 13th Division, stated the following:
“Ali Özcan was serving in my regiment as a secretary. Today I left the Regiment at around 5 p.m. and went home. I was informed about the incident around 8 p.m. I do not know whether he had any problems with his family or why he might have committed suicide.”
Subsequently, the doctor examined the body at the scene of the incident. According to his findings, the G3 rifle was between Ali Özcan's legs. The spent bullet case was found at an approximate distance of 50 cm from the body and the bullet was lodged in the ceiling. The rifle had been adjusted for single firing. There were no other bullets in the charger of the rifle. The rifle had blood stains on it. The body was still dressed in military uniform. The doctor noted the presence of a bullet entry hole under the chin, measuring 9.5 x 6 cm. The bullet had followed a vertical trajectory, destroying the chin and the brain, and then exited at the left apex of the skull. There were traces of gunpowder between the thumb and the index finger of the left hand. No other marks were observed on the body. Both hands had blood on them. At the time of the examination, the body was still warm and rigor mortis had not set in. There were no signs of poisoning. According to the doctor, Ali Özcan had shot himself at a point-blank range and died as a result of brain trauma. The doctor concluded that a full autopsy was not necessary since the cause of the death was without doubt the destruction of the skull and the brain.
On 28 February 1997 the deceased person's uncle was called to the Regiment, and Ali Özcan's body and his personal belongings were handed over to him.
On 28 February 1997 the Kırkağaç public prosecutor issued a decision of non-jurisdiction as the incident had taken place within military premises. He therefore transferred the case file to the office of the Izmir military prosecutor. The military prosecutor appointed a gendarme officer as rapporteur to investigate the case. During the investigation, the military authorities established that the G3 rifle, which Ali Özcan had used to shoot himself, had in fact belonged to the gendarme officer Fatih İnekçi, who had hidden his rifle in the commission building.
On 1 March 1997 the rapporteur took statements from six gendarmes concerning the incident. Ali Avcı, Hüseyin Bakır and Hakan Biberci mainly repeated their statements taken by the Kırkağaç public prosecutor on the day of the incident. The rapporteur took a further statement from the gendarme soldier Fatih İnekçi, who had found the body of Ali Özcan. He asked him to explain the reason as to why he had left his G3 rifle in the commission building contrary to military orders. He was reminded that according to the rules, he was obliged to confine his rifle in the rifle storehouse. Mr İnekçi explained that he had hidden his rifle in the commission building in order to prevent other soldiers from stealing parts of his rifle. He further maintained that there were no bullets in his rifle when he had hidden it in the commission building. The rapporteur also took a statement from the gendarme soldier Sertan Tapıklama, who was serving in the same regiment. He stated that he knew Ali Özcan quite well. He described Ali as a shy person, who did not like talking. Since Ali Özcan had wanted to serve in the south-east of Turkey, he was frustrated when he was assigned to work as a secretary in the administration division.
On the same day, the rapporteur prepared his report. Taking into account that there were no bruises or other signs on the body of Ali Özcan to indicate the use of force or resistance, and the fact that he might have been affected by the suicide which had taken place the day before, the rapporteur concluded that he had committed suicide. The rapporteur further advised that Fatih İnekçi be prosecuted for disobedience to military orders as he had failed to keep his rifle in the storehouse contrary to military orders.
On 14 March 1997 the Directorate of Izmir Criminal Police Laboratory reported that the bullet which had been sent for ballistic examination had been fired by the G3 rifle which had been found at the scene of incident.
By a decision dated 1 April 1997, the Izmir military prosecutor decided to discontinue the proceedings since the cause of death was clearly established as suicide. In his decision, the prosecutor stated that Ali Özcan had last been seen at the cafeteria where he had his dinner at 6 p.m. He had lately been telling his friends that he was bored at the secretary's office. On the day of the incident, his colleague Fatih İnekçi had left his G3 rifle in the office. At around 8 p.m. Ali Özcan was found dead by Fatih İnekçi in one of the rooms of the commission building. The military prosecutor further stated that the local public prosecutor and the doctor, who had arrived at the scene shortly after the incident, had taken statements from the gendarmes and prepared an incident report. After having reviewed all the evidence, the military prosecutor concluded that there were no indications which would lead him to conclude that the death had been caused by someone else's intent or negligence.
On 3 June 1997 the applicant filed an objection against this decision with the Izmir Military Court. In his petition, the applicant stated that he believed that his brother had been killed and that the investigation carried out by the military prosecutor had not been through enough to establish the true circumstances of his brother's death. He pointed out, inter alia, that his brother had been killed by a rifle which was issued to another soldier, namely Mr İnekçi. Furthermore, according to the applicant, there was nothing to suggest that his brother had a tendency to commit suicide. On the contrary, he had good relations with his family and friends.
On 17 June 1997 the Izmir Military Court examined the appeal lodged by the applicant. After having reviewed the evidence, including the ballistic reports of the rifle prepared by the Izmir Forensic Laboratory, the witness statements and the findings of the doctor, the court concluded that further investigations should be carried out in order to eliminate any doubts the deceased person's family may have. It requested the military prosecutor to conduct further investigations and clarify the following points:
Was it possible to open the door when it was locked from inside and the keys were still in it?
Was there any hostility between Fatih İnekçi and Ali Özcan?
When and why did Fatih İnekçi take his rifle from the rifle storehouse?
The soldier guarding the rifle storehouse at the time should be questioned about the time and the person removing Fatih İnekçi's rifle.
Was there any connection between the death of Ali Özcan and the suicide that occurred the previous day?
Which rifle had been issued to Ali Özcan by the army?
Did Ali Özcan have any psychological problems and did the public prosecutor consult Ali Özcan's family to verify whether he had any problems?
The case file was accordingly sent back to the office of the Izmir military prosecutor for further investigation.
On 23 July 1997 the military prosecutor conducted an on-site investigation at the scene of incident. He gave one set of keys to his secretary, who then went in the commission building and locked the door from inside. She left the keys in the lock. The military prosecutor then took the second set of keys and opened the door, which had been locked from inside by his secretary. They established that although the door was locked from inside and the keys were left in the lock, it was possible to open the door from outside by using the second set of keys.
The same day, the military prosecutor took a statement from Fatih İnekçi, who mainly repeated his previous statements taken on 27 February and 1 March 1997. He further maintained that he did not have any personal problems with Ali Özcan.
The prosecutor further questioned Hüseyin Bakır, who was the commander of the 13th Regiment. The commander stated that Ali Özcan had arrived at the regiment ten days prior to the incident. He described him as a shy and quiet person. The commander explained that he was in charge of controlling the rifles and that he conducted regular controls everyday. He had no idea how Ali had found a bullet, as normally new soldiers were not allowed to keep bullets in their rifles without supervision. He explained that all rifles were kept in the rifle storehouse. Following the incident, Ali Özcan's rifle was found in this storehouse. The commander indicated that he had further investigated whether there had been a problem between Ali and Fatih, however there was nothing to show that the two soldiers did not get along. Finally, Mr Bakır confirmed that there had been another suicide in Regiment No. 1 the day before. However he explained that it was impossible for Ali Özcan to have seen this incident as the area had been secured immediately after the incident.
The prosecutor then took statements from Ali Avcı, Sertan Tapıklama and Hakan Biberci, all gendarme soldiers from the 13th Regiment. These witnesses mainly reiterated their previous statements.
The prosecutor further heard evidence from two more gendarme officers, Murat Yağız and Can Atkın. Both stated that Ali Özcan had no problems with Fatih İnekçi and described him as a shy person. The witnesses further referred to another suicide which had occurred the day before Ali Özcan's death. They stated that this incident had taken place in another regiment and that they had not been allowed to approach the incident scene.
On 7 August 1997 the military prosecutor took statements from the relatives of Ali Özcan, namely from his cousins Duran Özcan and Niyazi Özcan, his sister Menevşe Özcan, and his nephew İsmail Kaya. The witnesses stated that Ali had no problems with his family and that they did not believe that he had committed suicide.
Having completed the investigation file, the Izmir military prosecutor transferred the case to the Izmir Military Court for re-examination.
On 25 September 1997 the Izmir Military Court, having examined the complete investigation file, concluded that a thorough investigation had been carried out into the incident, eliminating all uncertainties. While accepting that there seemed to be an undisciplined atmosphere within the regiment due to the fact that a gendarme soldier, namely Fatih İnekçi, was able to keep his rifle in his office rather than in the rifle storehouse, the court concluded that this fact was not in itself sufficient to establish a causal link with Ali Özcan's death. Basing itself on the results of the ballistic examination, the incident report, the autopsy findings and the witness statements, the Military Court concluded that Ali Özcan had committed suicide. It accordingly rejected the applicant's appeal and this decision was served on the applicant on 2 October 1997.


ITEMID: 001-77827
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NELYUBIN v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1948 and lives in Lipetsk. In 1994 he retired from military service.
8. In 2002 he sued the Military Service Commission of the Lipetsk Region (“the Military Commission”), seeking to recover the unpaid pension for the period from February 1994 to November 1998.
9. On 15 July 2002 the Pravoberezhniy District Court of Lipetsk granted him claim in full and awarded him 32,947.11 Russian roubles (“RUR”) in respect of the unpaid pension. In November 2002 the Military Commission paid him the amount awarded.
10. The applicant lodged a new claim against the Military Commission, seeking to recover damages incurred through belated payment of the pension.
11. On 27 January 2003 the Pravoberezhniy District Court granted his claim and awarded him RUR 145,835.69 in damages.
12. The Military Commission did not lodge an ordinary appeal against the judgment and it became binding and enforceable on 6 February 2003.
13. On 23 February 2003 the bailiffs’ service of the Pravoberezhniy District instituted enforcement proceedings.
14. On 20 May 2003 the Military Commission filed an application for supervisory review of the judgment, claiming that the civil-law provisions relating to compensation for damages were not applicable to pensions.
15. On 25 September 2003 the Presidium of the Lipetsk Regional Court held a supervisory-review hearing. It held that the first-instance court had correctly established the facts but erroneously applied the substantive law because the damages could only be recovered for the three years immediately preceding the judicial decision. On that ground it quashed the judgment of 27 January 2003 and rejected the applicant’s claim in full.
16. The Code of Civil Procedure of the Russian Federation provides as follows:
“1. The grounds for quashing or altering judicial decisions by appeal courts are:
...
(4) a violation or incorrect application of substantive or procedural law.”
“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
“1. Having examined the case by way of supervisory review, the court may...
(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination...
(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.”
17. Interim Resolution Res DH (2006) concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation, adopted by the Committee of Ministers on 8 February 2006, reads, in its relevant parts, as follows:
“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention...
Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003;
Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied...
Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts’ judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all;
Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation;
Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties’ right to rely on binding judicial decisions;
Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure...
CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court’s judgments;
ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final...
ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:
- continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law...
- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case;
- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law;
- to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57592
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF VAN DER SLUIJS, ZUIDERVELD AND KLAPPE v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 5-3;Non-pecuniary damage - financial award
TEXT: 12. Mr. van der Sluijs, Mr. Zuiderveld and Mr. Klappe, who were born in 1960, 1956 and 1955 respectively, reside in the Netherlands. In 1981, after being forcibly drafted as conscript soldiers in the Netherlands Armed Forces, they each refused, on account of their beliefs as conscientious objectors, to obey specific orders deriving from their obligation to perform military service. They were placed in detention by the competent military officers for suspected offences against the Military Penal Code (Wetboek van Militair Strafrecht). They were kept in custody and referred for trial before a military court.
13. Exemption may be obtained from compulsory military service on the ground of conscientious objection, both before and after active military service has begun. The procedure for requesting such exemption is laid down in the Conscientious Objection to Military Service Act (Wet Gewetensbezwaren Militaire Dienst) and a Ministerial Decree of 31 July 1970. In particular, where military criminal proceedings are in progress against a conscript serviceman who has applied for the status of conscientious objector, they may be stayed before, and must be stayed once, the Advisory Board on Conscientious Objectors has commenced its enquiries (section 4 sub-section 3 of the Act). After the Advisory Board has stated its opinion, the Minister of Defence may grant recognition as a conscientious objector (section 7). The entitlement to conduct criminal proceedings for failure to obey orders or military regulations or for failure to report for enlistment lapses automatically upon recognition of the accused’s conscientious objection (section 10).
In the present case, Mr. van der Sluijs requested to be granted the status of conscientious objector only in the final stages of his appeal before the Supreme Military Court (see paragraph 25 below), whereas Mr. Zuiderveld and Mr. Klappe never at any moment did so (see paragraphs 26-34 below).
14. Criminal procedure for the military land and air forces, including in particular the matter of arrest and detention on remand, is governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land-en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. Offences under military criminal law, which applies equally to conscript servicemen such as the applicants and to volunteers, are tried at first instance before a Military Court (Krijgsraad). There may be an appeal to the Supreme Military Court (Hoog Militair Gerechtshof) and ultimately a (cassation) appeal on points of law to the Supreme Court (Hoge Raad) of the Netherlands.
15. Every officer and non-commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty (Article 4 of the Military Code). The resultant detention is not to exceed twenty-four hours (Article 5).
The commanding officer may order a suspected serviceman to be placed or kept in custody on remand if (a) there is a serious risk of absconding or (b) there are important reasons of public safety requiring immediate deprivation of liberty or (c) this is necessary in connection with the maintenance of military discipline among other servicemen (Article 7, second paragraph). Such a detention order may be made against a serviceman suspected of any offence set out in the Military Penal Code or any offence in respect of which detention on remand is permitted under the civilian Code of Criminal Procedure, with the exception of those offences of which the Military Court takes no cognisance (Article 7, fourth paragraph). An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom, or is likely to be given a sentence of shorter duration than that of the detention on remand (ibid.). Detention must be terminated once the grounds for it cease to exist (Article 7, fifth paragraph). All cases of detention exceeding four days shall be reported by the commanding officer to the commanding general (Article 7, sixth paragraph).
Where detention has lasted fourteen days, the suspected serviceman may petition the competent Military Court to fix a term (liable to extension) within which the commanding general must either decide whether the case is to be referred to a Military Court or else terminate the detention. The Military Court has to rule on the petition without delay, after hearing the authority empowered to refer the case, the auditeur-militair (see paragraph 20 below) and the suspected serviceman, who may have the assistance of an adviser (Article 13).
16. If, after receiving the advice of the auditeur-militair and, "if possible" ("zo mogelijk"), after the suspected serviceman has been heard, the commanding general or a senior officer (hoofd officier) designated by him to act on his behalf considers that the case should be tried by the Military Court, the serviceman shall be referred for trial before that Court (Article 11). On the other hand, the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter (Article 12). Regulation No. 27/7 of the Ministry of Defence explained the effect of these provisions as follows (translation from the Dutch):
"In military penal procedure, as distinct from civilian procedure, the decision to prosecute in a case is not taken separately by the prosecuting authority, the auditeur-militair, but by a military authority. That authority is the commanding general or the senior officer he has appointed to act on his behalf, i.e. the referring officer ... Thus, the auditeur-militair is merely an advisory body at this stage, although the obtaining of his advice and the giving of that advice by him are mandatory."
Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody; the grounds for detention set out in the second and fourth paragraphs of Article 7 (see paragraph 15 above) apply pari passu (Article 14). If, against the advice of the auditeur-militair, the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial, the auditeur-militair may take the matter to the Supreme Military Court (Article 15). No appeal is provided for in the contrary case.
According to the Government, it has now become standard procedure to apply the above provisions of the Military Code in the following manner. Where detention on remand has been ordered, the suspected serviceman is always heard by the auditeur-militair and any referral to the Military Court takes place shortly thereafter, on average four to five days after the arrest. In view of the requirements of Article 14 of the Military Code, the auditeur-militair’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in Article 7 are fulfilled. Thus, the standard written form used by the auditeur-militair for the purposes of transmitting his advice to the referring officer contains, inter alia, a paragraph as to whether the suspect should "be released or be placed or kept in custody". Practice has evolved to the point where the advice of the auditeur-militair is invariably followed and generally regarded as binding.
17. Detention maintained or ordered in the decision referring the serviceman for trial may not exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained by virtue of the referral decision must be heard by the officier-commissaris (see paragraph 21 below) as speedily as possible and in any event within four days of referral; in this connection, the accused may be assisted by an adviser (Article 33, first paragraph). Before extending detention, the Military Court must give the accused or his adviser the opportunity to submit argument (Article 33, second paragraph).
As soon as the grounds for the detention cease to exist, release must be ordered (Article 34, first paragraph). In the period between referral and commencement of the trial, power to order release is exercisable by the auditeur-militair, or by the Military Court at the request of either the officier-commissaris or the detained serviceman himself (Article 34, second paragraph). The Military Court, in deciding on such requests, will hear the auditeur-militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time (Article 34, third paragraph).
18. If the accused is in custody at the first hearing, the Military Court will decide, after being addressed by the auditeur-militair, whether or not the nature and circumstances of the case require his continued detention during the trial (Article 151). The Court may direct the accused’s release from detention on remand at any later stage in the proceedings, either of its own motion or at the request of the auditeur-militair or the accused himself (Article 156).
19. A serviceman in custody may request release or suspension of his detention under Article 219 of the Military Code in proceedings before the Supreme Military Court pending the decision on his appeal, and under section 5 of the Military Cassation Act (Militaire Cassatiewet) in proceedings before the Supreme Court pending the decision on his appeal on points of law.
20. The auditeur-militair has the function of prosecuting authority before the Military Court (Article 126, first paragraph). No serving member of the armed forces may appear as auditeur-militair or substitute auditeur-militair (Article 126, third paragraph). The auditeur-militair and his substitute may be replaced by an acting auditeur-militair (plaatsvervanger - Article 126, second paragraph) who may be a military officer, but such replacement was said by the Government to occur only in exceptional circumstances. Auditeurs-militair (including substitutes and acting ones) are appointed, and dismissed, by the Crown on a joint proposal from the Ministers of Justice and Defence; they must possess a law degree (Article 126, fourth and sixth paragraphs). Under the terms of Article 276, second paragraph, of the Military Code, they are obliged to comply with instructions given to them in their official capacity by the Minister of Justice. However, according to the Government, this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and, at least in recent years, no Minister of Justice has acted or interfered in a concrete case on the basis of Article 276.
The auditeur-militair is bound by his oath to act honestly and impartially (Articles 368 and 370). He must attend the hearings of the Military Court (Article 290) but he does not take part in the Court’s deliberations. He is under a general duty to assist the Military Court, as well as the commanding general, with reports, observations and advice in relation to military justice when required to do so (Article 278). He is not under the supervision of the Military Court or the Supreme Military Court in the discharge of his duties, save that the Supreme Military Court has the power to reprimand him should he fail strictly to observe statutory time-limits (Article 297).
21. Attached to each Military Court is at least one officier-commissaris who is in charge of the preliminary investigation of cases (Article 29). An officier-commissaris is an officer or former officer of the armed forces with the rank of captain or higher and is appointed for a fixed term of at least one year by the commanding general (ibid.). While he may at the same time be a member of the Military Court, this is not usually the case. His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary (Articles 29, 48 and 78). A hearing by the officier-commissaris has the same force as a hearing by the Military Court (Article 161). During his enquiries, he is under a duty to apply himself equally to discovering the accused’s innocence and to obtaining proof or admission of guilt (Article 62). Like the auditeur-militair, he is bound by his oath to act honestly and impartially (Articles 368 and 370).
22. Following his failure to register in due time as a conscript serviceman, Mr. van der Sluijs was arrested on 13 March 1981 and transferred to a military house of detention. Upon his arrival, he refused to put on a military uniform and to take receipt of a weapon. He persisted in his refusal although his hierarchical superior pointed out to him that in doing so he committed the criminal offence of insubordination (Article 114 of the Military Penal Code). The commanding officer then confirmed the arrest, the grounds relied on being a serious risk of his absconding and the need to maintain discipline among other servicemen (Article 7 of the Military Code - see paragraph 15 above).
On 16 March, he appeared before the auditeur-militair. On 18 March, in accordance with the advice of the auditeur-militair, the designated senior officer referred the applicant for trial before the Military Court, while deciding that he should be kept in custody on the same grounds as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 16 above).
23. On 19 March, the auditeur-militair addressed a request to the Military Court that the applicant be kept in detention upon expiry on 1 April of the fourteen-day maximum period allowed for under the law (Article 31 of the Military Code - see paragraph 17 above) as the grounds prevailing on 18 March were still valid in his view.
On 20 March, the applicant was heard by the officier-commissaris (Article 33, first paragraph, of the Military Code - ibid.).
On 25 March, he appeared before the Military Court. Counsel for Mr. van der Sluijs submitted that his client’s detention was unlawful since the requirements of Article 5 § 3 (art. 5-3) of the Convention had not been complied with, in particular because the officier-commissaris was not vested with autonomous power to decide on the accused’s detention. The Military Court rejected the applicant’s arguments and prolonged the detention by a thirty-day term. Thereafter his detention was regularly prolonged by the Military Court.
24. The trial took place before the Military Court on 21 May. On 3 June, the applicant was convicted of acts of insubordination and sentenced to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom.
25. Mr. van der Sluijs then appealed to the Supreme Military Court. Pending his appeal, he sought suspension of his sentence for a period of two weeks for personal reasons (Article 219 of the Military Code - see paragraph 19 above). The Supreme Military Court rejected that request on 1 July.
On 30 July, he requested the Supreme Military Court to suspend criminal proceedings and order his release in view of his application to be recognised as a conscientious objector (section 4 of the Conscientious Objection to Military Service Act - see paragraph 13 above). Such an application was in fact introduced with the Ministry of Defence on 4 August. On 12 August, he was heard by the Supreme Military Court, which, two days later, suspended criminal proceedings and, conditionally, the detention. Subsequently, upon recognition by the Minister of Defence of his conscientious objection, criminal proceedings lapsed and his release became final (section 10 of the above-mentioned Act - ibid.).
26. Mr. Zuiderveld was arrested on 14 February 1981 on a charge of failing to register in due time as a conscript serviceman (Article 150 of the Military Penal Code) and was transferred to a military house of detention. On 16 February, he refused to put on a military uniform and to take receipt of a weapon. He persisted in his refusal although his hierarchical superior pointed out to him that he was thereby committing the criminal offence of insubordination (Article 114 of the Military Penal Code). The commanding officer then confirmed the arrest, the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen (Article 7 of the Military Code - see paragraph 15 above).
On 17 February, the applicant was heard by the auditeur-militair. Later that day, in accordance with the advice of the auditeur-militair, the designated senior officer referred him for trial before the Military Court, while deciding that he should be kept in custody on the same grounds as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 16 above).
27. On 18 February, he was heard by the officier-commissaris (Article 33, first paragraph, of the Military Code - see paragraph 17 above).
On 25 February, on request by the auditeur-militair, the Military Court prolonged the applicant’s detention by thirty days upon expiry on 2 March of the fourteen-day maximum period allowed for under the law (Article 31 of the Military Code - ibid.). Neither Mr. Zuiderveld nor his lawyer availed himself of the opportunity to submit argument (Article 33, second paragraph - ibid.).
On 25 March, the Military Court examined a further request by the auditeur-militair for prolongation of the detention. At this hearing, counsel for Mr. Zuiderveld submitted that his client’s detention was unlawful since the requirements of Article 5 § 3 (art. 5-3) of the Convention had not been complied with, in particular because the officier-commissaris was not vested with autonomous power to decide officier-commissaris was not vested with the autonomous power to decide on the accused’s detention. The Military Court rejected the applicant’s arguments and prolonged the detention by a further thirty-day term.
Thereafter his detention was regularly prolonged by the Military Court.
28. Trial hearings took place before the Military Court on 27 and 29 May. The applicant once more submitted, inter alia, that his detention was unlawful for failure to comply with Article 5 § 3 (art. 5-3) of the Convention. The Court, on 29 May, rejected his arguments and maintained his detention.
On 11 June, Mr. Zuiderveld was acquitted of the charge of failure to register for military service but convicted of acts of insubordination. He was sentenced to eighteen months’ imprisonment, the time spent on remand to be deducted therefrom.
29. The applicant then appealed to the Supreme Military Court.
On 16 September, the Supreme Military Court quashed, for a procedural defect, the Military Court’s decision of 29 May prolonging the detention. Holding that the detention had accordingly been unlawful from 1 June onwards, the Supreme Military Court ordered Mr. Zuiderveld’s release.
On the same day, the Minister of Defence suspended the remainder of the sentence.
On 2 December, the Supreme Military Court reversed the judgment of the lower court with reference to its reasoning; the Supreme Military Court also found the applicant guilty, but reduced the sentence to one of fourteen months’ imprisonment, the time spent in custody on remand between 14 February and 1 June to be deducted therefrom.
30. The applicant entered an appeal on points of law with the Supreme Court. On 22 June 1982, the Supreme Court set aside the sentence of the Supreme Military Court and referred the case back to that Court (Nederlandse Jurisprudentie, 1983, no. 413).
On 29 September, the Supreme Military Court sentenced Mr. Zuiderveld to 214 days’ imprisonment, the time spent in custody on remand, which also totalled 214 days, to be deducted therefrom.
31. Mr. Klappe was arrested on 28 January 1981 on a charge of failing to register in due time as a conscript serviceman (Article 150 of the Military Penal Code) and transferred to a military house of detention. On 29 January, he refused to put on a military uniform and to take receipt of a weapon. He persisted in his refusal although his hierarchical superior pointed out to him that in doing so he committed the criminal offence of insubordination (Article 114 of the Military Penal Code). The commanding officer then confirmed the arrest, the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen (Article 7 of the Military Code - see paragraph 15 above).
On 30 January, the applicant appeared before the auditeur-militair. Later that day, the designated senior officer referred him for trial before the Military Court, while deciding that he should be kept in custody on the same grounds as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 16 above).
32. The applicant was also heard by the officier-commissaris on 30 January (Article 33, first paragraph, of the Military Code - see paragraph 17 above).
On 11 February, following a request by the auditeur-militair for extension of the detention (Article 31 of the Military Code - ibid.), the applicant appeared before the Military Court. Counsel for Mr. Klappe submitted that his client’s detention was unlawful since the requirements of Article 5 § 3 (art. 5-3) of the Convention had not been complied with, in particular because the officier-commissaris could not be regarded as a judicial officer for the purposes of that provision. The Military Court rejected the applicant’s arguments and prolonged the detention by a thirty-day term.
On a further request by the auditeur-militair, this decision was renewed by the Military Court on 11 March.
33. The trial took place before the Military Court on 26 March. On 8 April, the applicant was convicted of insubordination and failure to register for military service and sentenced to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom.
34. The applicant appealed to the Supreme Military Court. On 27 April, he requested the suspension of his sentence for one day in order to address a political meeting on 1 May (Article 219 of the Military Code - see paragraph 19 above). The Supreme Military Court acceded to this request on 28 April.
At a hearing on 17 June, the applicant once more requested his release, invoking Article 5 § 3 (art. 5-3) of the Convention.
The Supreme Military Court delivered judgment on 1 July. It rejected the applicant’s request for release, holding that a decision on the alleged breach of Article 5 § 3 (art. 5-3) of the Convention was not within its competence. On the other hand, the Supreme Military Court reversed the judgment of the lower court with reference to its reasoning, but, also finding the applicant guilty, imposed an identical sentence of eighteen months’ imprisonment subject to deduction of the time spent in custody on remand.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-104883
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BARANYAI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: The applicant, Mr Zoltán Baranyai, is a Hungarian national who was born in 1973 and lives in Mosonmagyaróvár. He was represented before the Court by Mr J. Palatinus, a lawyer practising in Mosonmagyaróvár. When introducing the application, the applicant was serving a sentence in Budapest Prison. The respondent Government were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 September 2002 the Mosonmagyaróvár District Court imposed on the applicant a cumulative sentence of nine years and four months’ imprisonment. This sentence corresponded to his convictions for the offences of abuse of firearms, forging documents, robbery, assault on an official person and escape from detention.
In 2006 the applicant was serving his sentence in Veszprém Prison. Between 8 and 15 March 2006 he was treated at Tököl Prison Hospital, where his left leg was operated on 10 March. On 15 March, while he was waiting for transport back to Veszprém Prison, a penitentiary officer handcuffed him to a pipe of the Prison Hospital’s heating system situated in the corridor. The applicant states that he had to wait in this position for five hours, during which time he could not properly sit down, drink or go to the toilet, was mocked by the passers-by, and his freshly operated leg was hurting badly.
On 15 May 2006 he filed a complaint with the prosecution authorities. Having investigated the incident, on 14 September 2006 the Pest County Public Prosecutor’s Office issued a memorandum in which it stated that the measure, not denied by the Tököl Prison administration, was unlawful and might be capable of leading to a violation of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
Subsequently, the Pest Surroundings Investigation Office instituted an investigation for abuse of official power.
After remittals, on 1 October 2007 the Budapest Military Public Prosecutor’s Office discontinued the investigation. Relying on testimonies given by witnesses, documentary and medical evidence, and an experiment, the Office held that – although the findings of fact corroborated the applicant’s complaint, and the officer in charge had already been sanctioned in disciplinary proceedings – it could not be proven that the applicant was subjected to the impugned measure with an intention to cause him unlawful disadvantage, which was a sine qua non condition of the offence of abuse of official power. On 16 November 2007 the Military Chief Public Prosecutor’s Office dismissed the applicant’s complaint.
The applicant did not file a private bill of indictment under section 199 of the Code of Criminal Procedure against the penitentiary officer responsible, nor did he file with the investigating judge a request, under section 191(3) of the Code, for the resumption of the criminal proceedings in pursuit of his allegations.
On 6 April 2010 the Pest County Regional Court acknowledged, in a judgment adopted in regard to the applicant’s civil action for compensation against Tököl Prison, that the measure applied to him had been unlawful and amounted to inhuman treatment and awarded him 400,000 Hungarian forints (1,500 euros) plus accrued interests in compensation. The appeal proceedings are still pending.


ITEMID: 001-71859
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GRITCO v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Margareta Gritco, is a Moldovan national who was born in 1940 and lives in Chişinău.
The applicant and her husband were married in 1959.
On 10 June 1998 the applicant’s husband placed 14,600 Moldovan lei (MDL) on a three-month deposit account in a private bank, with 16% annual interest.
On 27 July 1998 he asked the bank for early termination of the contract and the repayment of his money. The bank did not comply with his request.
The applicant’s husband brought an action against the bank, seeking the termination of the deposit contract and the repayment of his money and interest.
By a judgment of 6 October 1998 the Râşcani District Court ruled in favour of the applicant’s husband and ordered the bank to pay him MDL 16,000. On 22 October 1998 the judgment became final and enforceable.
On 14 June 1999 the National Bank of Moldova issued a decision suspending the bank’s licence. It also ordered liquidation procedures to be commenced and appointed an administrator for that purpose.
In 1999 the applicant’s husband brought a new action against the bank, seeking compensation for inflation. On 28 July 1999 the Râşcani District Court ruled in his favour and ordered the bank to pay him MDL 20,262. On 13 August 1999 the judgment became final and enforceable.
On 22 October 1999 the applicant’s husband asked the administrator to enforce the judgments of 6 October 1998 and 28 July 1999. The latter did not reply to his request.
On an unspecified date, the applicant’s husband brought an action against the National Bank, seeking the payment of the money owed to him by the private bank. He argued that the National Bank was the regulatory authority in respect of all financial institutions and should be held responsible for the bankruptcy of the private bank.
On 9 June 2000 the Râşcani District Court dismissed the applicant’s husband’s action. It found that the National Bank was not responsible for the private bank’s obligations towards its clients. On 7 November 2000 the Chişinău Regional Court dismissed his appeal against the judgment of 9 June 2000. By a final judgment of 6 February 2001 the Court of Appeal dismissed the applicant’s husband’s appeal on points of law.
On 10 February 2001 the applicant’s husband died. On 16 August 2001 the applicant received an inheritance certificate and became the sole owner of his part of their joint property.
On an unspecified date, the applicant’s husband sent a letter to the Ministry of Justice and complained about the non-enforcement of the judgments in his favour. On 6 July 1999 the Ministry readdressed the letter to the President of the Râşcani District Court and requested the court to respond to the applicant’s request. On 24 September 1999 the President of the Râşcani District Court and the Bailiff replied to the applicant’s husband that the bank did not have money in its accounts or other assets. They also informed him that the enforcement warrants had been given to the administrator of the bank, who should ensure their enforcement.
On 22 October 1999 the applicant’s husband’s requested the administrator to enforce the judgments. On 25 October 1999 the latter informed him that the bank was subject to a liquidation procedure and that the judgments could not be enforced.
Following the applicant’s complaint to the Parliament about the non-enforcement of the judgments, on 2 May 2001 the National Bank informed her that the payment would be made as soon as the loans, which had been previously granted by the bank, were reimbursed and that the administrator had initiated numerous proceedings for their reimbursement. It also informed her that the National Bank could not be held responsible for a private bank’s obligations towards its clients.
On 9 July 2001 and 5 November 2001 the Administration of the President replied to the applicant’s complaints about the non-enforcement of the judgments and informed her that the Parliament of the Republic of Moldova had created a working commission, with the aim of examining the situation of bankrupt banks and the mechanism of reimbursement of deposited money.
The relevant domestic law was set out in Sîrbu and Others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, § 12, 15 June 2004.


ITEMID: 001-97370
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MARIA VIOLETA LAZARESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1926 and lives in Bucharest.
5. In 1950 the State seized under Decree no. 92/1950 on nationalisation the building situated in Bucharest, Cobălcescu no. 36, property of the applicant's ancestor.
6. On 1 June 1999 company R.V., a State-owned company responsible for the management of property belonging to the State, sold a 104,98 sq. m. flat of the building and the appurtenant land to the tenants, V.D and D.M., under Law no. 112/1995.
7. On 20 November 2002, the applicant sought annulment of the contract before the Bucharest Court of First Instance requesting the court to declare the nationalisation of her property unlawful and to order its return to her.
8. On 9 September 2005, the Bucharest Court of Appeal, in the operative part of a final decision, dismissed as groundless an appeal on points of law by the applicant. In the reasoning of the judgment the court considered that although the seizure was null and void the bona fide principle should apply to the tenants who bought the flat from the State, who at that time was its legal owner.
9. On an unknown date the applicant lodged an application with the administrative authorities for restitution in kind of the property under Law no. 10/2001 governing immovable property wrongfully seized by the State. Since she had not received any answer, she brought court proceedings against the Mayor of Bucharest seeking to have him ordered to issue a reasoned decision upon her request. She also claimed a daily pecuniary penalty until execution.
10. On 25 January 2007 the Bucharest County Court upheld in part her action and ordered the Mayor to issue a reasoned decision regarding the restitution of the building located in Bucharest, Cobălcescu no. 36 as the applicant requested. On 22 May 2007 the Bucharest Court of Appeal dismissed the Mayor appeal. There is no evidence in the file as to the course of the proceedings.
11. The relevant legal provisions and jurisprudence are set forth in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999-VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005-VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, ECHR 2005-XII (extracts)); and Tudor v. Romania (no. 29035/05, §§ 1520, 17 January 2008).
12. Measures in order to urge the award of compensation through the Proprietatea company have recently been adopted by the national authorities, especially in accordance with the Emergency Ordinance no. 81/2007.


ITEMID: 001-96998
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF STECHAUNER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant lives in Großau.
6. The applicant is a practitioner of general medicine. He has an individual contract (Einzelvertrag) with the Lower Austrian Health Insurance Board (Niederösterreichische Gebietskrankenkasse). The applicant has also obtained special diplomas in the areas of echocardiology and sonography and performs these types of examination on his patients.
7. One part of the individual contract between the applicant and the Lower Austrian Health Insurance Board is the Remuneration Regulation (Honorarordnung) which states that certain types of examinations will only be reimbursed if they are performed by a specialist doctor.
8. The Lower Austrian Health Insurance Board refused to reimburse echocardiologic and sonographic examinations as the applicant was not a specialist doctor but a general practitioner.
9. On 2 February 1998 the applicant claimed payment for echocardiologic and sonographic services amounting to 1,900.31 euros (EUR) for the third quarter of 1997 before the Joint Arbitration Committee (Paritätische Schiedskommission); on 23 April 1998 he submitted another claim for payment amounting to EUR 1,896.65 for the fourth quarter of 1997; at an unknown date this claim for payment was increased to EUR 1,944.57. On 6 July 1998 the applicant submitted a claim for payment of EUR 1,184.81 for the first quarter of 1998.
10. The Joint Arbitration Committee held hearings on 1 April 1998 and 16 September 1998.
11. As the Joint Arbitration Committee did not reach a decision because of a tie, the applicant filed an application for transfer of jurisdiction (Devolutionsantrag) to the Regional Appeals Commission (Landesberufungskommission) on 2 July 1998 and 7 October 1998, respectively.
12. Meanwhile, on 6 October 1998 the applicant had claimed payment for echocardiologic and sonographic services amounting to EUR 1,169.75 for the second quarter of 1998. At a later date this claim was reduced to EUR 1,098.63.
13. On 25 November 1998 the Regional Appeals Commission refused to grant the applicant’s claims concerning the third and fourth quarters of 1997 and the first quarter of 1998.
14. On 12 April 1999 the applicant complained to the Constitutional Court (Verfassungsgerichtshof) which, on 27 November 2000, set aside the decision of the Regional Appeals Commission of 25 November 1998. It found that the applicant’s right to have his case heard by an impartial tribunal had been violated as one of the assessors nominated by the Lower Austrian Medical Association had negotiated the disputed clause of the Remuneration Regulation. Consequently, the Regional Appeals Commission did not appear independent and impartial.
15. As regards the claim for the second quarter of 1998, the applicant had filed an application for transfer of jurisdiction to the Regional Appeals Commission on 6 April 1999 owing to a tie in the Joint Arbitration Committee. As at that time the applicant’s complaint against the decision of 25 November 1998 was pending before the Constitutional Court, the Regional Appeals Commission decided to stay the proceedings until the Constitutional Court had given its decision. On an unknown date the Regional Appeals Commission decided to join the proceedings in respect of all the applicant’s claims, that is to say; those for the third and fourth quarter of 1997 and for the first and second quarters of 1998.
16. After the Constitutional Court had set aside the Regional Appeals Commission’s decision of 25 November 1998, the newly composed Regional Appeals Commission again rejected the applicant’s claims on 19 September 2001.
17. The applicant complained to the Constitutional Court that there had not been a public hearing. The Constitutional Court set aside the contested decision for the lack of a public hearing in a decision of 25 November 2002.
18. On 26 November 2003 the Regional Appeals Commission held a public hearing. On 20 December 2004 the Regional Appeals Commission rejected the applicant’s claims, holding that it was up to the parties to the general agreement to limit direct reimbursement of certain services to specialist doctors. Such limitations served the planning and administration of affordable healthcare services and were objectively justified.
19. On 29 December 2004 the applicant complained to the Constitutional Court, alleging a breach of the principle of equal treatment and lack of independence and impartiality of the Regional Appeals Commission.
20. On 27 September 2005 the Constitutional Court found no violation of the right to a fair hearing and upheld the contested decision. It held that the assessors of the Regional Appeals Commission were independent in exercising their duties and that no circumstances giving rise to doubts about their impartiality or independence had arisen in the present case. In particular, none of the assessors of the Regional Appeals Commission had been involved in the conclusion of the general agreement or of the individual contract at issue in the proceedings. The mere fact that the assessors were members of Regional Medical Associations or Regional Health Insurance Boards which had provisions of the same content in their general agreements was not sufficient to cast doubt on their impartiality. This decision was served on counsel on 29 November 2005.
21. The relevant provisions of the Social Insurance Act (Allgemeines Sozialversicherungsgesetz) read as follows:
“341. (1) Relations between the health insurance boards on the one hand and independent medical practitioners and group practices on the other shall be governed by general agreements to be concluded with the local medical associations by the Association [of Social Insurance Boards] on behalf of the insurance boards. General agreements shall require the consent of the health insurance boards on behalf of which they are concluded. The Austrian Medical Association may conclude the general agreements on behalf of the medical associations concerned, with their consent ...
(3) The content of the general agreement shall be incorporated in the individual contract between the health insurance board and the doctor or group practice. Any provisions of the individual contract which are contrary to the provisions of the general agreement in force in the place in which the doctor or group practice is established shall be devoid of legal effect. ...
344. (1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land in individual cases. ...
(2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the local Medical Association and two by the Insurance Board, which is a party to the individual contract. ...
(4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. ...”
22. Section 345(1) governs the composition of the Regional Appeals Commission:
“345. (1) For each Land, a permanent Regional Appeals Commission shall be established. It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Justice Minister. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.”
23. The above version of section 345(1) of the Social Insurance Act entered into force on 1 September 2002. Before that date the Regional Medical Association and the Association of Social Insurance Boards each appointed two assessors to the Regional Appeals Commission and there had been no provision that members and employees of the parties to the general agreement would be excluded.
24. Under section 347(4) of the Social Insurance Act, the Regional Appeals Commission decides by a simple majority of votes; abstention from voting is not possible.
25. The assessors of the Regional Appeals Commission are appointed for a renewable period of five years. They are not subject to the hierarchical authority of the bodies which proposed their appointment (Article 20 of the Federal Constitutional Law).
26. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 § 4 of the Federal Constitutional Law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23283
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: WURM v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Mrs Lore Wurm, is a Austrian national, who was born in 1933 and lives in Bad Goisern. She is represented before the Court by Mr Rinner, a lawyer practising in Linz.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s husband ran a tanning factory in Upper Austria.
In 1990 the Wels Regional Court instituted criminal proceedings against the applicant her husband and three other accused. While the others were suspected of intentionally causing damage to the environment and of continuous aggravated fraud (schwerer gewerbsmässiger Betrug), the applicant was only suspected of the latter offence.
On 4 July 1990 the court carried out a judicial inspection (Lokalaugenschein) at the factory, and on 27 July 1990 the investigating judge questioned the applicant as a suspect. During the preliminary proceedings 70 witnesses were heard and two expert opinions on environmental matters were obtained.
On 12 January 1996 the investigating judge concluded the preliminary investigations and transmitted the file to the Wels Public Prosecutor’s Office.
On 19 September 1996 the Public Prosecutor preferred the indictment against the applicant, her husband and the other three accused.
On forty six days between 21 January and 20 October 1999 the Regional Court held trial hearings. The proceedings against one of the accused were continued separately. On the last-mentioned date the Regional Court convicted the applicant’s husband and two other accused of continuous aggravated fraud but acquitted the applicant.
On 27 December 1999 the written version of the court’s judgment was served upon the applicant.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."


ITEMID: 001-72633
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NAKHMANOVICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1957 and lives in Jambul, Kazakhstan.
9. On 28 October 1992 the Moscow police opened a criminal investigation into the theft of about four thousand million Russian roubles (approximately thirty-five million US dollars) from the Bank of Russia through the use of forged credit notes of the National Bank of Kazakhstan.
10. On 24 December 1992 the applicant was arrested at Moscow Airport on his arrival from Italy and taken into custody. On 26 and 27 December 1992 the applicant confessed to having conspired with Mr Smolenskiy, director of a Russian commercial bank, to steal the money.
11. On 28 December 1992 the applicant was released from custody.
12. On 23 November 1994 the applicant was charged with large-scale fraud, an offence under Article 147 § 3 of the Russian Soviet Federative Socialist Republic (RSFSR) Criminal Code, and ordered to be detained pending trial. As by that time the applicant had fled from Russia, his name was placed on the list of fugitives from justice.
13. On 20 March 1997 the applicant’s name was placed on the Interpol wanted list. On 11 September 1997 the Swiss police arrested the applicant in Lugano, Switzerland, with a view to extraditing him.
14. Upon receipt of the documents supporting the extradition request, the Swiss authorities decided on 29 January 1998 to extradite the applicant.
15. On 24 April 1998 the applicant was extradited to Russia, where he was placed in detention facility IZ-48/4 (“Matrosskaya Tishina”).
16. On 15 June 1998 the applicant’s counsel asked the Preobrazhenskiy District Court of Moscow to release the applicant. She submitted, in particular, that he had been detained in Switzerland on the basis of the arrest warrant of 23 November 1994 and had remained in custody for more than nine months. In Kazakhstan, his country of nationality, the criminal proceedings against him had been discontinued on the ground that no criminal offence had been committed. In any event, after six years’ investigation the investigators had gathered all the available evidence including statements by witnesses, and the applicant could not therefore interfere with the establishment of the truth. Finally, his release was necessary on medical grounds because his health had seriously deteriorated in detention.
17. On 25 June and 8 July 1998 the hearings listed before the Preobrazhenskiy District Court were adjourned because the applicant had not been brought to the court.
18. On 13 July 1998 a deputy Prosecutor General of the Russian Federation authorised an extension of the applicant’s detention pending trial until 8 September 1998, that is, for a total of twelve months from the date of his initial detention in Switzerland. The continued detention was justified by reference to the gravity of the offence, the risk that the applicant might abscond and the international obligations undertaken by the Russian authorities in the extradition proceedings.
19. On 14 July 1998 the Preobrazhenskiy District Court took statements from the applicant and his lawyer and from the prosecutor and held that the detention had been imposed and subsequently extended on valid grounds and in compliance with the Code of Criminal Procedure. Accordingly, no grounds for applying a different measure of restraint had been made out.
20. On 3 August 1998 the Moscow City Court upheld the decision of 14 July 1998. The court reiterated in general terms the finding that the applicant’s detention was lawful.
21. On 29 July 1998 the Prosecutor General authorised an extension of the applicant’s detention pending trial until 8 March 1999, that is, for a total of eighteen months. The applicant submitted that no separate extension order had been issued and that the new authorisation had been printed on top of the authorisation of 13 July 1998. He further submitted that he had not been notified of the extension until 10 September 1998.
22. On 22 October 1998 the applicant’s counsel challenged the extension before the Preobrazhenskiy District Court. She submitted, in particular, that there was no indication that the applicant had committed an offence on Russian territory; that the authorised period of his detention had expired on 8 September 1998, whereas the applicant had not been notified of the subsequent extension until two days later; and that there was no actual risk that the applicant would abscond or interfere with the investigation.
23. On 13 November 1998 the Preobrazhenskiy District Court dismissed the challenge. It held that there were no grounds for lifting or varying the preventive measure imposed on the applicant, as the detention period had been extended in accordance with the law. The court found that it was not competent to review the lawfulness of, and grounds for, the applicant’s placement into custody because that issue had already been determined in the decision of 14 July 1998 (see paragraph 19 above).
24. On 23 November 1998 the applicant’s lawyers lodged an appeal. They submitted, in particular, that domestic law permitted the extension of detention beyond the ninemonth period only in “exceptional circumstances”, whereas in the present case neither the Prosecutor General, who had authorised the extension to eighteen months, nor the District Court that had reviewed his decision, had pointed to any such circumstance.
25. On 9 December 1998 the Moscow City Court upheld the decision of 13 November 1998. The court reiterated that the detention period had been extended lawfully because the applicant had been charged with a serious offence. No other reasons for the continued detention were given.
26. On 29 December 1998 a new charge was added: the applicant was accused of forging and making use of a State document, an offence under Article 196 § 1 of the RSFSR Criminal Code.
27. On 14 January 1999 the Prosecutor General’s Office decided to sever the case against the applicant from that against Mr Smolenskiy, the applicant’s co-accused.
28. On 4 March 1999 the case file and the bill of indictment were deposited with the Zamoskvoretskiy District Court of Moscow in preparation for trial.
29. On 22 March 1999 the District Court set the case down for hearing on 6 April 1999. The hearing was subsequently adjourned three times.
30. On 7 May 1999 the District Court found that the applicant’s right to consult his lawyers had been unlawfully restricted, with the result that the defence’s requests for discontinuation of the proceedings, the applicant’s release, the summoning of additional witnesses and the exclusion of certain evidence had not been examined. The court referred the case back to the pre-trial stage (стадия назначения к слушанию).
31. On 20 May 1999 the Zamoskvoretskiy District Court found that the case against the applicant had been unlawfully severed from the case against Mr Smolenskiy. The court considered that the prosecution should complete the investigation into Mr Smolenskiy’s offences and that the charges against both co-defendants should be examined together. The court ordered the case to be referred back for additional investigation. The prosecution appealed against the decision.
32. On 18 June 1999 the criminal proceedings against Mr Smolenskiy were discontinued for lack of evidence.
33. On 7 July 1999 the Moscow City Court upheld the decision of 20 May 1999. The court also established other procedural defects: in particular, it ordered that the lawfulness of the discontinuation of criminal proceedings against Mr Smolenskiy be reviewed and that the applicant’s bill of indictment be updated accordingly.
34. On 19 July 1999 the applicant’s case file was returned to the Prosecutor General’s Office.
35. On 23 July 1999 the Prosecutor General’s Office lodged an application for supervisory review (протест в порядке надзора) against the decisions of 20 May and 7 July 1999 with the Presidium of the Moscow City Court. The prosecution claimed that, in referring the case back for additional investigation, the courts had failed to take into account the imminent expiry of the authorised detention period and had also violated the applicant’s right to have the charge against him determined within a reasonable time.
36. In July 1999 the applicant’s lawyer complained about the unlawfulness of her client’s continued detention to the director of the remand centre where the applicant was being held, the deputy Minister of Justice in charge of the Prisons Administration Department (ГУИН Министерства юстиции РФ), the Minister of Justice, the acting Prosecutor General and the Preobrazhenskiy District Court (on 26 July 1999). She requested the applicant’s release, claiming that his detention after 24 July 1999 had been unlawful as no further extension had been authorised.
37. On 28 July 1999 a senior legal adviser from the Prosecutor General’s Office informed the Prisons Administration Department that from the date on which the deputy Prosecutor General had lodged an application for supervisory review the applicant’s detention had been “accounted for by the Moscow City Court”. The authorities of the remand centre relayed this information to the applicant’s lawyer.
38. On 4 August 1999 the Minister of Justice sent a letter to the acting Prosecutor General, the relevant part of which read as follows:
“...on 19 July 1999 the case file was received by the Prosecutor General’s Office from the Zamoskvoretskiy District Court of Moscow... [The applicant’s] detention period expired on 23 July 1999.
According to the information from the Prosecutor General’s Office, the [the applicant’s] detention period was suspended in connection with the lodging of the application for supervisory review ... and the transfer of the applicant to the Moscow City Court.
I consider that this approach by the officials of the Prosecutor General’s Office is incompatible with the Constitution of the Russian Federation and its criminal-procedure laws.
...For instance, the criminal-procedure laws do not provide for suspension of the renewed detention period pending examination of an application for supervisory review of the decision to refer the case back for additional investigation... This means that the examination of final judgments, decisions or rulings by means of [supervisory] review does not suspend either the enforcement of the judgment or the [additional] pre-trial investigation if the case has been referred back for additional investigation [by a court decision].
...Accordingly, in the present case, [the lodging of an application for supervisory review] suspended not the detention period, but the additional investigation, as it is inconceivable that suspension of the detention period in such a case would be conducive to the implementation of a citizen’s right to liberty and personal integrity enshrined in Article 22 of the Constitution.
...In this connection the legislature made provision, in Article 97 of the RSFSR Code of Criminal Procedure, for one and only one option for extending the detention period if a case is referred back for additional investigation, namely that such extension must be authorised by the prosecutor supervising the investigation.”
The Minister of Justice invited the Prosecutor General to report within one day on whether the applicant’s detention pending trial had been extended as provided for in Article 97 of the Code of Criminal Procedure.
39. On 5 August 1999 a deputy Prosecutor General wrote to the Minister of Justice stating that his office had received the case file on 20 July 1999 and that he had lodged an application for supervisory review without “having taken on the case” (“не принимая дело к своему производству”). The letter did not refer to any extension of the applicant’s detention.
40. On the same day Mr L., the prosecutor supervising the lawfulness of the enforcement of criminal penalties, sent a faxed request to the remand centre where the applicant was being held, requesting that the applicant should not be released until the Moscow City Court had examined the application for supervisory review.
41. On 12 August 1999 the Presidium of the Moscow City Court quashed the decisions of 7 and 20 May and 7 July 1999 on procedural grounds and remitted the case to the Zamoskvoretskiy District Court for examination on the merits by a differently composed bench.
42. On 16 August 1999 a judge of the Preobrazhenskiy District Court discontinued the proceedings in connection with the complaint concerning the unlawfulness of the applicant’s detention because “on 13 August 1999 the [applicant’s] case had been referred to the Zamoskvoretskiy District Court for trial”.
43. On 6 October 1999 the case file was returned to the Zamoskvoretskiy District Court. The commencement of the trial was scheduled for 25 November 1999 but was adjourned on three occasions because certain documents from the Prosecutor General’s Office were missing or because the presiding judge was involved in other proceedings.
44. On 20 January 2000 the Zamoskvoretskiy District Court ordered the case to be referred back to the Prosecutor General’s Office for additional investigation. It held that the preventive measure imposed on the applicant (detention pending trial) “should remain unchanged”.
45. On 4 February 2000 the Investigations Department of the Ministry of the Interior resumed the investigation. On the same day the applicant was released subject to an undertaking that he would not leave the city.
46. In March 2000 the applicant applied for permission to return home. After permission had been granted, he left for Kazakhstan on 12 March 2000.
47. On 3 March and 12 April 2000 the Investigations Department of the Ministry of the Interior asked the Prosecutor General to extend the authorised term of the investigation. On 20 March and 27 April 2000 a deputy Prosecutor General refused a further extension because “the applicant’s whereabouts could not be established”.
48. On 20 April and 7 June 2000 the applicant’s lawyers asked the investigators to inform them of the situation with regard to the criminal proceedings against the applicant; their requests received no response.
49. On 7 June 2000 the applicant’s lawyers also requested the prosecution to discontinue the criminal case against the applicant, referring to a decision of 28 April 2000 by the Kazakhstan prosecutors to discontinue the criminal proceedings. On 27 June 2000 the acting head of the department for supervision of investigations of particularly serious cases in the Prosecutor General’s Office refused their request on the ground that the offence had been committed on Russian territory and that there were no legal grounds for discontinuing the proceedings against the applicant.
50. According to the Government, the criminal proceedings against the applicant in Russia had been discontinued on 28 April 2000 by a decision of the Investigations Department of the Ministry of the Interior, on the ground that the applicant’s involvement in the offence could not be proved. The decision indicated, in particular, that “further proceedings in the case [had been] impossible because the Prosecutor General’s Office [had] refused a further extension of the authorised investigation period”. On an unspecified date the investigator had allegedly informed the applicant of that decision by telephone, but had been unable to send a copy of the decision to the applicant because he had not known his address. In June 2000 the same information had allegedly been communicated to Ms Orozalieva, the applicant’s lawyer.
51. On 16 January 2004 Ms Orozalieva asked the Investigations Department of the Ministry of the Interior for a copy of the decision to discontinue the criminal proceedings against the applicant. She indicated that she had learnt of its existence in October 2003, during a conversation with a senior investigator dealing with particularly serious cases in the Prosecutor General’s Office.
52. On 17 February 2004 the deputy head of the Investigations Department of the Ministry of the Interior replied to her that “on 27 December 2000 case file no. 81684 [had been] sent to the Prosecutor General’s Office and [had] not yet been returned to the Investigations Department of the Ministry of the Interior; the documents [could not] therefore be provided”.
53. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (Law of 27 October 1960, “the old CCrP”).
54. “Preventive measures” or “measures of restraint” (меры пресечения) included an undertaking not to leave a town or region, personal surety, bail and detention pending trial (Article 89). A decision ordering detention pending trial could be taken by a prosecutor or a court (Articles 11, 89 and 96).
55. At the material time – before the amendments of 14 March 2001 – detention pending trial was authorised if the accused had been charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case. If the accused had been charged with a serious or particularly serious criminal offence – a category which included large-scale fraud – he could be remanded in custody on the sole ground of “the dangerous nature of the crime” (Article 96).
56. The detainee or his representative could challenge the detention order before a court. The judge was required to review the lawfulness of, and grounds for, the order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The judge could either dismiss the challenge or set aside the pre-trial detention and order the detainee’s release (Article 220-1).
57. After arrest the suspect was placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” was two months, but it could be extended up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels. No extension of detention “pending investigation” was possible beyond eighteen months. The period of detention “pending investigation” was calculated up to the day when the prosecutor sent the case to the trial court (Article 97).
58. From the date on which the prosecutor forwarded the case to the trial court, the defendant’s detention was “before the court” (or “during trial”). Within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either (1) to set the trial date; (2) to refer the case back for additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). Upon receipt of the case file, the judge had to determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230) and to rule on any application by the defendant for release (Article 223).
59. The trial court could refer the case back for additional investigation if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “pending investigation” and the relevant time-limit continued to apply. If, however, the case was referred back for additional investigation but the investigators had already used up all the time authorised for detention “pending investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date on which he received the case file. Subsequent extensions could be granted only if the detention “pending investigation” had not exceeded eighteen months (Article 97).
60. If the authorised detention period had expired and no information about an extension order had been communicated to the director of the remand centre, the latter had to release the detainee by his own decision (Article 11). A prosecutor and his deputy had a duty to release anyone who had been detained unlawfully or after expiry of the detention period authorised by law or by a judicial decision (Article 11 and also section 33 § 2 of the Federal Law on Prosecutors’ Offices in the Russian Federation, no. 2202-I of 17 January 1992).
61. The investigator could issue a reasoned decision discontinuing the criminal proceedings, which he had to sign and date. A copy of the decision had to be sent to the prosecutor. At the same time the suspect and the victim had to be informed of the decision in writing and have the procedure for lodging an appeal explained to them (Article 209).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1