ITEMID: 001-111525
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HAJNAL v. SERBIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1985 and lives in Subotica, Serbia.
6. On 8 August 2005 the applicant was arrested by the Subotica police and brought to their station concerning an alleged burglary. In their report the police stated that the applicant, together with a number of others, had been caught after the act and that several objects used for the commission of the alleged crime had been seized. The applicant gave a statement to the officers. According to the minutes of his interrogation, the applicant confessed to one count of attempted burglary, and then signed the document using his nickname, notwithstanding a prior reference in the same minutes noting that he was “illiterate”. The minutes further stated that, pursuant to Article 177 of the Code of Criminal Procedure (see paragraph 60 below), the applicant had read them, at his own request, and had had no objections.
7. On 17 August 2005, at around 4.00 a.m. according to his own estimate, the Subotica police again brought the applicant, together with several others, to their premises in order to question him about a criminal offence. There was no prior attempt to serve him with the summons. The Government maintained that the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence.
8. The applicant maintained that his lawyer, V.J.Đ., had been informed of this arrest by his relatives and had hence managed to arrive in time to briefly talk to him before the interrogation. The applicant apparently told V.J.Đ. that he had already been physically abused by the police, who had attempted to obtain his confession. V.J.Đ. himself stated that the applicant had seemed “mentally broken” and had been walking with a limp.
9. The subsequent police interrogation began at 1.35 p.m. and ended by 1.40 p.m., at which point the applicant was released. The Municipal Public Prosecutor (Opštinski javni tužilac) had been informed of the hearing at 8.30 a.m., but did not attend it. In the course of the interrogation the applicant was asked to give a statement concerning “a burglary of a store in Veliki Radanovac”. The applicant, however, declined to do so and noted that he had retained V.J.Đ. as his legal counsel. The minutes of the interrogation further stated that the applicant was “illiterate”, and bore his fingerprint instead of a signature. With reference to Article 177 of the Code of Criminal Procedure, the minutes, lastly, noted that the applicant had read them, at his own request, and had had no objections. The minutes were also signed by V.J.Đ.
10. The applicant maintained that he had been provided with no food whilst in police custody.
11. On 18 August 2005, at around 4.00 a.m. according to the applicant’s own estimate, he was brought, yet again, by the Subotica police to their premises, without having been previously summoned. The Government maintained that, just like before, the reason for this had been the danger that the applicant might otherwise have absconded or tampered with the evidence.
12. The applicant claimed that he had once again been beaten by the officers who had attempted to obtain his confession. The applicant apparently asked that V.J.Đ. be informed of his arrest, but the police ignored this demand. Instead, the applicant was provided with a legal aid lawyer, N.D., who, it is claimed, appeared only briefly to sign the minutes of the interrogation and left shortly thereafter.
13. The minutes in question contained: (i) an indication that the applicant was being charged with numerous counts of burglary; (ii) his detailed confession of how he had committed those offences; (iii) his statement to the effect that he did not want to retain V.J.Đ. as his legal counsel; and (iv) his declaration that he had given his statement in the absence of “any physical or mental coercion”.
14. The minutes further noted the questions posed by N.D., including whether the applicant was trying to protect anyone with his confession. The Municipal Public Prosecutor had been informed of the hearing on 17 August 2005 at 12.20 p.m., but did not attend it. Finally, the minutes stated that the applicant was “illiterate”, but then went on to note, with reference to Article 177 of the Code of Criminal Procedure, that he had read them, at his own request, and had had no objections. The applicant did not sign the minutes, having instead left his fingerprint. The interrogation lasted between 2.40 p.m. and 3.40 p.m., following which the applicant was released.
15. The applicant maintained that he had been provided with no food whilst in the police station.
16. On 24 August 2005, at around 5.15 a.m. according to his own estimate or at 9.00 a.m. according to official records, the police arrested the applicant once more, but, this time, ordered his detention for a period of 48 hours. The applicant received no prior summons. He was, however, provided with a detention order, which stated that he had been deprived of his liberty on suspicion of having committed numerous burglaries. The order relied on a number of provisions of the Code of Criminal Procedure (see paragraph 57 below), but did not contain any substantiation as to the factual circumstances warranting the applicant’s detention or his prosecution.
17. On the same day the police issued a report supplementing the criminal charges against the applicant, as well as another three defendants, concerning thirteen separate counts of burglary. The report included, inter alia, a description of the crimes and referred to the evidence obtained.
18. On the same day V.J.Đ. lodged an appeal on behalf of the applicant. Therein, inter alia, he maintained that the impugned detention order had been merely a template devoid of any meaningful reasoning. V.J.Đ. further informed the investigating judge that, following her son’s detention, the applicant’s mother had been contacted by a lawyer who had offered his services. In particular, the lawyer had said that he knew that the applicant had already retained V.J.Đ. but explained that it would be better for him to change legal counsel as this would facilitate his release from police custody.
19. On the same day the investigating judge of the Municipal Court (Opštinski sud) in Subotica rejected the above appeal. She recalled, inter alia, that on 18 August 2005 the applicant had been heard in the presence of his legal aid lawyer, that the prosecuting authorities had obtained several witness statements incriminating the applicant, and that the applicant had both been convicted of crimes in the past and had “continued committing crimes” thereafter. The judge lastly specified that there were six separate criminal cases pending concurrently against the applicant before the Municipal Court in Subotica, indicating that he had “committed” several property-related crimes in a short period of time. This, in turn, meant that, if released, the applicant was likely to re-offend and/or abscond.
20. Lastly, on the same day the applicant was examined by the on-duty doctor of the District Prison (Okružni zatvor) in Subotica, but “no disease was established, i.e. he was [deemed] healthy”. The Government provided a certificate to this effect issued by the prison doctor on 12 January 2011, as well as copies of the relevant medical protocol dated 24 August 2005. The said protocol, however, was mostly illegible.
21. On 25 August 2005 the Municipal Public Prosecutor’s Office in Subotica requested that a preliminary judicial investigation (istraga) be instituted against the applicant in respect of numerous counts of burglary, and proposed that his detention be extended.
22. On the same day the investigating judge instituted the proceedings sought and extended the applicant’s detention for an additional month. Before so doing, she invited the applicant to give a statement in the presence of V.J.Đ. and the Deputy Public Prosecutor and informed him about the evidence put forth by the prosecution. The applicant, however, refused to respond to the charges in question. He referred, instead, to the abuse suffered at the hands of the police, as well as the alleged breach of his procedural rights up to that point. In the reasoning as regards the applicant’s continued detention, inter alia, the judge stated that the applicant could, if released, re-offend, abscond or unduly influence the witnesses.
23. On 26 August 2005 the applicant’s continued detention was confirmed by the three-judge panel of the Municipal Court, which fully accepted the reasoning of the investigating judge.
24. On 30 August 2005 the Municipal Court’s three-judge panel confirmed the investigating judge’s decision to institute a preliminary judicial investigation.
25. In the following weeks the investigating judge heard many witnesses, including witnesses Đ.D. and P.D. On 1 September 2005 the former stated that his head had been slammed against the wall by the police in order to elicit his statement, whilst the latter recounted that he too had been threatened by the police with a baseball bat and for the same purpose.
26. On 16 September 2005 the Municipal Public Prosecutor’s Office indicted (optužilo) the applicant for the crimes in question.
27. On 4 October 2005 V.J.Đ. filed a formal objection against the indictment (podneo prigovor protiv optužnice), but on 6 October 2005 the three-judge panel of the Municipal Court rejected this objection.
28. On 21 November 2005 V.J.Đ. informed the Municipal Court that the applicant had recently been photographed by the police in prison. He requested clarification as to what had been the legal basis for this exercise, and expressed concern that the photograph could be used to unlawfully secure his client’s identification in the course of future identity parades. The Government submitted that the applicant had been photographed only once, on 25 August 2005, upon admission to the prison, and, further, that this photograph had been used solely for the purpose of supplementing his prison identity papers (lični list).
29. On 7 December 2005 V.J.Đ. wrote again to the Municipal Court, stating that on 26 August 2005, 18 November 2005 and 6 December 2005 he had visited the applicant in prison, and that each time prison staff had been present during their conversations. Indeed, they had been close enough to be able to both hear and see everything. V.J.Đ. requested an explanation as to why the applicant had not been entitled to unsupervised communication with his counsel. As it subsequently transpired, on 26 August 2005 the Municipal Court had issued a standing permit (stalna dozvola) to V.J.Đ., authorising him to visit the applicant in prison. The said permit stated that visits could last up to 30 minutes and take place under the supervision, i.e. in the presence, of an official to be designated by the prison governor. The Government maintained that the supervision in question meant visual observation only, not listening to the conversations between the applicant and his lawyer.
30. Between 9 December 2005 and 21 March 2006 four hearings were held or adjourned before the Municipal Court.
31. In the presence of the Deputy Public Prosecutor, the applicant described the abuse which he had suffered whilst in police custody, and gave a physical description of the officer who had engaged in his ill-treatment on 17 August 2005. The applicant added that on this day he had sustained injuries to his legs and back, and had also been temporarily unable to hear on his left ear. Upon release the applicant went to a local hospital but was denied treatment because he had forgotten to bring his medical insurance card. When the applicant returned with this card, however, the hospital staff told him “to come back tomorrow”. On 18 August 2005, having been beaten by the officers once again, the applicant asked for V.J.Đ. to be informed of his arrest, but officer D.M. refused to do so. Officer M.V. was also present. The applicant explained that he had, ultimately, been coerced into signing a statement already prepared by the police without his participation. At one point, N.D., his police-appointed lawyer, appeared in the interrogation room merely in order to stamp and sign the same statement. As regards the charges against him, the applicant specifically denied some of them whilst in respect of others he refused to answer questions.
32. Officer D.M. stated that the minutes of 17 and 18 August 2005 were accurate, that he had not personally seen the applicant being abused or even heard anything to that effect. The officer also had no recollection as to whether the applicant had been duly summoned to appear before the police, but recalled that the applicant had constantly moved around, which was why he had been difficult to find.
33. Officer M.V. noted that he had not taken part in the interrogation of 17 August 2005, and had only a vague recollection of the interrogation which had taken place the next day. In particular, he remembered that the applicant had said that he did not want to retain V.J.Đ. as his counsel since the latter had always advised him to give no statements to the police and he had already had enough of the repeated arrests and interrogations. M.V. had no information to offer as to whether the applicant had been duly summoned to appear before the police, but recalled that the applicant’s police-appointed lawyer had been present throughout the interrogation. Finally, M.V. affirmed that the applicant’s statement was accurately recorded in the minutes of his interrogation, and added that he had personally informed the applicant of their content before he signed them.
34. More than a dozen witnesses were subsequently heard before the Municipal Court, some of whom confirmed that they had “bought merchandise” from the applicant. Witness R.K. further stated, inter alia, that in August of 2005 he had seen several persons fleeing a crime scene in a red car.
35. Witness L.K., however, stated that the police had beaten him with a baseball bat in order to force him to confess to a number of crimes, as well as to incriminate the applicant. In support of this allegation he provided the Municipal Court with a copy of a medical certificate documenting his injuries of 18 August 2005.
36. Witness Đ.D. stated that he had accompanied the applicant from the police station to the hospital, on which occasion he had seen that the applicant had been injured and had been “walking with a limp” (see paragraphs 8 and 31 above).
37. Witness N.D. stated that he had been invited by the police to act as the applicant’s legal aid lawyer on 18 August 2005. Prior to the interrogation, he had had a conversation with the applicant who had informed him that he had already retained legal counsel. The applicant was nevertheless willing to accept N.D. as his lawyer on that occasion only and in order to be released (da idem odavde). The applicant then confessed, in some detail, to the crimes in question. N.D. admitted that he had not inspected the case-file since the applicant had refused to communicate with him as regards the substance of the charges at issue, re-affirming that he had already retained a lawyer for this purpose. N.D. added that the applicant had had no visible injuries at that time, and that he had warned the applicant that the confession given to the police would be used as evidence against him. Officer M.V. interrogated the applicant. He did so by posing questions concerning specific places, burglaries and stores. N.D. lastly noted that he had not seen in his 33 years of practice a confession such as the applicant’s, and had therefore asked the applicant whether he was “protecting anyone”. The applicant had maintained that he was not.
38. Witness M.D. denied any connection to the applicant, but stated that he too had been physically abused by the police on a number of occasions. M.D. also provided a medical certificate in this regard.
39. On 22 March 2006 the Municipal Court decided to exclude the applicant’s statement of 18 August 2005 from the case file. It explained, inter alia, that there was indeed evidence to the effect that the applicant had been repeatedly arrested without having first been properly summoned which, in and of itself, indicated a sort of police harassment aimed at obtaining his confession. Further, there was no doubt that the applicant had chosen V.J.Đ. as his legal counsel and had never revoked this authorisation. The police, nevertheless, questioned the applicant in his chosen counsel’s absence, and appointed a legal aid lawyer for no apparent reason.
40. On 4 April 2006 the District Court (Okružni sud) in Subotica quashed this decision and declared the applicant’s statement of 18 August 2005 legally valid. It noted that, as indicated in the minutes of the same date, the applicant had specifically said that he did not want V.J.Đ. to act as his legal counsel. The issue of whether the applicant was duly summoned was irrelevant, and the conditions for the appointment of a legal aid lawyer were clearly fulfilled. The applicant was also properly advised of his procedural rights.
41. On 10 April 2006 officer Z.T. stated that on 8 August 2005 he had indentified a red car, which had apparently been seen leaving the crime scene, and had arrested the four or five persons whom he and his colleague had found in or around it. These persons were subsequently taken by other officers to the police station.
42. On 13 April 2006 the Municipal Court heard the parties’ closing arguments, found the applicant guilty of having, effectively, committed eleven burglaries, i.e. ten between 15 June 2005 and 7 August 2005 and one on 8 August 2005, and sentenced him to one and a half years’ imprisonment for a single crime of “extended burglary” (jedno produženo krivično delo teške krađe). The Municipal Court further observed that there were six separate criminal cases pending concurrently against the applicant and considered this as an aggravating circumstance in sentencing. The applicant’s detention was prolonged until the judgment in his case became final. The Municipal Court also noted that, in the meantime, it had already reviewed and extended the applicant’s detention on 16 September 2005, 13 October 2005, 12 September 2005 and 14 February 2006, and that each time its decisions had been confirmed by the District Court on appeal. As regards the applicant’s conviction concerning the burglaries committed between 15 June 2005 and 7 August 2005, the Municipal Court took note of the applicant’s confession of 18 August 2005, recalled that he had been found in possession of stolen property, and emphasised that several witnesses had confirmed that they had bought such property from the applicant. Concerning the burglary of 8 August 2005 the Municipal Court relied on the applicant’s confession of the same date and the statements given by witnesses R.K and Z.T. Testimony indicating that certain witnesses had been ill-treated by the police in order to incriminate the applicant was either dismissed as irrelevant or simply ignored.
43. On 23 May 2006 the Municipal Public Prosecutor’s Office lodged an appeal, seeking a harsher sentence.
44. On 29 May 2006 and 7 June 2006 V.J.Đ. filed an appeal on behalf of the applicant, noting, inter alia, that: (i) his statement of 18 August 2005 had been obtained as a result of police brutality and in the absence of his chosen counsel, there being no other evidence which could have warranted a conviction; (ii) the police-appointed lawyer had never offered any genuine legal representation to the applicant and had instead been there to assist the police in their interrogation; (iii) the applicant’s complaints of ill-treatment had simply been ignored by the Municipal Public Prosecutor’s Office; (iv) the prison staff had not allowed the applicant free communication with his chosen counsel; (v) the six separate criminal proceedings which had been pending concurrently against the applicant could not lawfully have been taken into account as an aggravating circumstance, but that since they were this amounted to an implied breach of the applicant’s right to be presumed innocent.
45. On 27 June 2006 the District Court rejected the appeals lodged by the parties.
46. On 25 July 2006 V.J.Đ. filed an appeal on points of law (zahtev za vanredno ispitivanje zakonitosti pravosnažne presude) on behalf of the applicant, re-stating his submissions made earlier.
47. On 15 November 2006, however, the Supreme Court (Vrhovni sud) rejected this appeal.
48. On 23 February 2007, having served his sentence imposed by the Municipal Court, the applicant was released from the District Prison in Novi Sad.
49. Article 65 of this Code reads as follows:
“(1) Whoever acting in an official capacity uses force or threats or other inadmissible means ... with intent to extort a confession or another statement from an accused, a witness, an expert witness or another person, shall be punished with imprisonment of from three months to five years.
(2) If the extortion of a confession or a statement is aggravated by extreme violence or if the extortion of a statement results in particularly serious consequences for the accused in the criminal proceedings, the offender shall be punished by a minimum of three years’ imprisonment.”
50. Article 3 provides, inter alia, that all State bodies and agencies shall respect the right of all persons to be presumed innocent unless and until their guilt has been established by a final court decision.
51. Article 4 § 1 provides, inter alia, that a suspect, when first questioned, shall be informed of the charges and evidence against him.
52. Article 12 prohibits, inter alia, any and all violence aimed at extorting a confession or a statement from the suspect and/or the accused, or indeed any other person involved in the proceedings.
53. Articles 18 § 2 and 178 provide that a court decision may not be based on evidence obtained in breach of domestic legislation, or in violation of ratified international treaties, and that any such evidence must be excluded from the case file.
54. Articles 19, 20, 46 and 235, read in conjunction, provide, inter alia, that formal criminal proceedings (krivični postupak) may be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, such as the one at issue in the present case, the authorised prosecutor is the Public Prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed. It makes no difference whether the Public Prosecutor has learnt of the incident from a criminal complaint filed by the victim or another person, or indeed even if he has only heard rumours to that effect.
55. Article 224 provides, inter alia, that a criminal complaint may be filed in writing or orally with the competent Public Prosecutor, as well as that a court of law, should it receive a complaint of this sort, shall immediately forward it to the competent Public Prosecutor.
56. Article 61 provides that should the Public Prosecutor decide that there is no basis to press charges, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”.
57. Articles 5 § 2, 142, 144 § 1, 227 and 229, taken together, provide, inter alia, that a suspect may be arrested by the police, without an attempt to be summoned first, if: (i) he is in hiding or there is a danger of him absconding; (ii) there are circumstances indicating that he may tamper with evidence or influence witnesses and/or other participants in the criminal proceedings; and (iii) there are grounds to believe that he may re-offend. The suspect must, however, then either be brought before an investigating judge, within, in principle, a maximum of eight hours, or be formally detained by the police, which detention cannot exceed forty-eight hours. In the latter case, the suspect must be served with the provisional detention order within two hours as of his arrest and may lodge an appeal against it with the investigating judge who shall have to decide upon it within another four hours. Should the appeal be rejected and after the forty-eight hours have expired, the suspect shall either be released or brought to the investigating judge for questioning. The investigating judge shall have the power to order the suspect’s detention for up to one month.
58. Articles 5 § 1, 71, 72, 226 §§ 8 and 9, 227 § 2 and 228 § 1, read in conjunction, provide, inter alia, that a person arrested by the police shall have the right to remain silent, as well as the right to be heard in the presence of his chosen counsel, or, in the absence thereof and depending on the seriousness of the charges, be provided with a legal aid attorney paid for by the State. If the arrested person’s interrogation has been carried out in accordance with the law, his statement given on this occasion may be used as evidence in the subsequent criminal proceedings.
59. Articles 228 § 1, 229 § 5 and 226 § 8, taken together, further provide that, inter alia, the person arrested by the police shall have the right to contact his lawyer, directly or through family members, including by means of a telephone.
60. Article 177 §§ 1 and 4 provides, inter alia, that a person arrested by the police shall be entitled to read the minutes of his interrogation before he signs them, or have those minutes read to him. Should the person in question be illiterate, he shall be allowed to use his right hand index fingerprint instead of a signature.
61. Article 228 § 7 provides, inter alia, that the suspect shall be entitled to request that his medical examination be ordered by the investigating judge. The investigating judge’s decision to this effect, as well as the medical doctor’s subsequent opinion, shall be included in the case file.
62. Article 75 §§ 2 and 5 provides that a defendant, whilst in detention, shall have the right to confidential communication with his legal counsel. This communication may be supervised only during the pre-indictment stage of the proceedings, and even then only by means of visual, not audio, monitoring.
63. Article 193 provides that the costs of criminal proceedings shall include, inter alia, the defence counsel’s fees, whilst Article 196 § 1 states that should the court find the defendant guilty it shall order him to reimburse all costs.
64. Article 225 § 4 provides that general complaints (pritužbe) concerning the conduct of police operations may be filed with the competent Public Prosecutor.
65. Article 560 § 1 (3) provides, inter alia, that a person who due to an unlawful action undertaken by a State body or an error on its part has been deprived of his liberty in the absence of proper legal basis (neosnovano) shall be entitled to recover any damages suffered.
66. In accordance with Article 414 of the Code of Criminal Procedure 2001, as amended in September 2009, the re-opening of a criminal trial may be sought where the Constitutional Court or an international court has found that the convicted person’s rights have been breached in the trial.
67. Articles 157, 199 and 200 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction (see, for instance, judgment no. 3879/03 adopted by the First Municipal Court in Belgrade on 29 April 2004, which has, in its relevant part, been upheld by the Supreme Court on 25 May 2006, awarding compensation for, inter alia, an implied breach of the presumption of innocence under Article 200; see also judgment no. 2939/01 rendered by the Municipal Court in Šabac on 20 February 2002, which was ultimately confirmed by the Supreme Court on 21 April 2004, ordering the cessation of discriminatory treatment and the publication of an apology under Articles 157 and 199).
68. Article 172 § 1 provides that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of “its bodies” to a “third person”. This provision includes State liability for any judicial or police misconduct and/or malfeasance (see, for example, the judgments of the Supreme Court of 10 November 2002, Rev. 6203/02, and 10 April 2003, Rev. no. 1118/03).
69. The Government provided the Court with case-law indicating that a plaintiff complaining about the lawfulness of his detention, as well as the related issues concerning his private life, including the unlawful taking of photographs, had been able to obtain redress before the domestic courts. Specifically, on 21 February 2006 the Municipal Court in Novi Sad, inter alia, applied Article 200 of the Obligations Act, recognised the alleged breaches of Articles 5 and 8 of the Convention, and ordered the respondent State to pay the plaintiff a specified amount of compensation (Pbr. 1848/05). On 8 November 2006 the District Court in Novi Sad upheld this judgment and increased the compensation awarded (Gž. br. 3293/06).
70. The relevant sections of this report read as follows:
“203. The CPT’s delegation heard numerous allegations of deliberate physical ill-treatment of persons deprived of their liberty by the police throughout Serbia. Some of the allegations concerned ill-treatment at the time of or immediately following apprehension, whereas others related to ill-treatment during police questioning and, more particularly, during interrogation by officers of the criminal police. Many detainees interviewed by the delegation alleged that they had been slapped, punched, kicked or beaten with batons during police custody. A number of allegations received included recent accounts of beatings on the palms of the hands or soles of the feet, the placing of a plastic bag over the detainee’s head to cause temporary asphyxiation, or the infliction of electric shocks on different parts of the body. The ill-treatment alleged was in several cases of such a severity that it could well be considered to amount to torture.
... Further, in almost all of the police stations visited in Belgrade, the delegation found baseball bats and similar non-standard and unlabelled objects in offices used for interrogation purposes.
204. The information at the CPT’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill-treated by the police in Serbia at the time of their apprehension and during the first hours in police custody. The number and severity of allegations of police ill-treatment received calls for urgent action by the national authorities ...
206. As regards fundamental safeguards against ill-treatment of persons deprived of their liberty by the police (e.g. the right to have the fact of one’s detention notified to a close relative or third party; the rights of access to a lawyer and a doctor), at present their practical implementation leaves a lot to be desired; the CPT has made detailed recommendations in this area ...”
71. The relevant sections of this report read as follows:
“13. The number of allegations of ill-treatment by the police heard by the CPT’s delegation in the course of the 2007 visit was lower, and the ill-treatment alleged less severe, than during the Committee’s first periodic visit in 2004.
That said, the delegation did receive a number of allegations of physical ill-treatment (consisting of punches, kicks, truncheon blows, blows with a thick book or with a wet rolled newspaper, and handcuffing to fixed objects in a hyper-extended position) during questioning by criminal police officers, in order to obtain confessions or other information. It would appear that juveniles suspected of serious criminal offences are particularly exposed to physical violence. Further, the delegation received some accounts of verbal abuse and threats during questioning ...
14. Most of the allegations of ill-treatment related to periods some time before the delegation’s visit; consequently, any injuries which might have been caused by the ill-treatment alleged would almost certainly have healed in the meantime ...
15. It should also be noted that, in several police stations visited (e.g. in Bor, Inđija, Kovin, Petrovac na Mlavi, Negotin and Ruma), the delegation again found – in offices used for police interviews – various non-standard issue items (such as baseball bats, iron rods, wooden sticks, thick metal cables, etc). The CPT reiterates its recommendation that any non-standard issue objects be immediately removed from all police premises where persons may be held or questioned. Any such items seized during criminal investigations should be entered in a separate register, properly labelled (identifying the case to which they refer) and kept in a dedicated store.
...
19. As stressed by the CPT in the report on its first visit to Serbia, it is axiomatic that judges must take appropriate action when there are indications that ill-treatment by the police may have occurred. In this connection, it should be noted that some persons interviewed during the 2007 visit alleged that the investigating judges before whom they had been brought with a view to being remanded in custody ignored their complaints of police misconduct ...”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-87884
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NADROSOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Partly inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1976 and lived until his arrest in Rostov-on-Don. He is now serving his sentence in a correctional colony in the town of Bataysk.
7. On 29 October 2000 two police officers accompanied by a person in civilian clothes approached the applicant at a bus stop. According to the applicant, the civilian punched him and the police officers held his hands behind his back in an armlock, hit him with a rubber truncheon on his head and back, body searched him and pushed him into a police car. They took the applicant to the Proletarskiy District police station. The applicant submitted that the beatings had continued at the station with a view to forcing him to confess to a theft.
8. The Government, relying on similar written statements made on 2 and 8 August 2005 by police officers A. and Av. and a written statement drawn up by the applicant’s co-defendant, Mr P., disputed the applicant’s description of events. They alleged that on 29 October 2000 he had been arrested on suspicion of having robbed truck drivers and had been taken to a police station. The relevant part of the statements read as follows:
“On 29 October 2000, after midnight, on an order of an officer on duty, I drove to the following address:... due to a call about a robbery in progress. As a result of the operation, data was gathered, victims’ statements and explanations were recorded, and a certain police officer arrested Mr Nadrosov and Mr P. on suspicion of the crime and brought [them] to the police station. At present, due to the remoteness of the events, I cannot recall whether I questioned them and what they stated. I would like to add that on 29 October 2000, at 8.00 a.m., my shift ended and I left the police station. I took no further part in that police case. I strongly object to Mr Nadrosov’s statements that police officers injured him in the police station; at present I cannot recall whether Mr Nadrosov raised any complaints about the actions of the police officers.”
“... after that, police officers arrived at the [bus] stop and arrested certain participants in that brawl; I was among them. After I had been taken to the Proletarskiy District police station, Rostov-on-Don, the police officers informed me that I was suspected of having committed a robbery. Of course, I denied my guilt, stating that at night I was with my friends and that I had not committed any crime... After that, the police officers placed Mr Nadrosov, whom I did not know and who was also arrested by policemen on suspicion of the robbery, in my cell. I was not present when Mr Nadrosov was searched. I would also like to note that the police officers did not beat Mr Nadrosov in my presence... As I am aware, on 29 October 2000 Mr Nadrosov complained that he did not feel well, due to which he was sent from the Proletarskiy District Police Department to a hospital. Subsequently, I saw Mr Nadrosov in a courtroom...”
9. On 30 October 2000 an ambulance was called for the applicant. Emergency doctors drew up a report noting that he had an injury to the left kidney and a closed injury on the left side of the chest. The applicant was taken to a hospital.
10. At the hospital doctors again examined the applicant and diagnosed him with “an injury to the lumbar region and a closed chest injury”. The applicant explained that he had sustained the injuries when he had fallen from “the height of his own stature” on 29 October 2000. The medical report issued in the hospital also indicated that the applicant had had numerous subdermal haematomas measuring up to 2 centimetres in diameter in the left subcostal area.
11. On the same day the applicant underwent a laparocentesis, a surgical puncture to diagnose injuries to and remove fluid from internal organs, as a result of which his diagnosis was confirmed.
12. On the morning of 31 October 2000 the applicant was discharged from the hospital and taken back to the detention unit at the police station. On his admittance to the unit the applicant was examined and the following injuries were recorded on him: “an injury to the soft tissues of the left side of the chest and stomach, an injury behind the right ear, an injury to the right leg”.
13. On 2 November 2000 the applicant’s mother complained to the Proletarskiy District Prosecutor that the applicant had been severely beaten up by the police. She also alleged that her requests for a forensic medical examination of the applicant had been futile. She applied for an examination which would establish the nature and cause of the applicant’s injuries.
14. On 10 November 2000 an assistant of the Proletarskiy District Prosecutor issued a decision not to institute criminal proceedings in connection with the applicant’s claim of ill-treatment. The reasoning of the one-page decision, in full, read as follows:
“According to explanations by Mr Ya., on 29 October 2000 he was an investigator on duty in the police department. On an order of the head of the task unit of the Proletarskiy District Police Department of Rostov-on-Don, he received materials of a case pertaining to a robbery of truck drivers... The materials contained information requiring institution of criminal proceedings under Article 162 § 2 of the Criminal Code of the Russian Federation. He instituted criminal proceedings and began the pre-trial investigation. Mr Nadrosov... was among the suspects.
[Mr Ya.] drew up an arrest record in respect of Mr Nadrosov at 7.00 p.m., when he was brought to his office. Before that [Mr Ya.] performed other investigating actions, such as questioning victims. Mr Nadrosov committed the crime on 29 October 2000, thus his arrest was carried out in timely fashion.
He questioned Mr Nadrosov as a suspect and as an accused. During all their interviews the investigator used no physical or psychological pressure. Mr Nadrosov testified willingly. [Mr Nadrosov] did not make any complaints or requests in the course of the interviews. [Mr Ya.] did not see injuries on him. [Mr Ya.] did not see the police officers beat [Mr Nadrosov] up. Nor did [Mr Nadrosov] make any requests when he was served with the bill of indictment. Moreover, during the robbery Mr Nadrosov had had a fight with the truck drivers, who had actively defended themselves, and he could have sustained injuries then.
No physical or moral pressure was applied to Mr Nadrosov during the pre-trial investigation. His guilt was completely proven.
A policeman, Mr K., also totally denied that he had used any physical or psychological pressure on Mr Nadrosov.
In connection with the above-mentioned, there is no objective evidence, save for... a complaint about Mr Nadrosov’s beatings. The actions of the police officers of the Proletarskiy District Police Department do not contain any elements of a crime as prescribed by Articles 285, 288 of the Criminal Code of the Russian Federation.”
15. On the same day the assistant prosecutor sent a letter to the applicant’s mother informing her that her request for institution of criminal proceedings against the police officers had been refused. He also noted that the decision could be appealed against to a higher-ranking prosecutor.
16. On an unspecified date the applicant’s mother complained to the Rostov-on-Don Town Prosecutor that the applicant had been ill-treated and about the refusal to institute criminal proceedings against the police officers. She once again asked for a forensic medical examination of the applicant. According to the applicant, no response followed.
17. The applicant was committed to stand trial before the Proletarskiy District Court of Rostov-on-Don.
18. The applicant’s lawyer complained to the District Court that the police officers had severely beaten the applicant up and asked it to examine the applicant’s medical records. He insisted that the statement which the applicant had originally made to the police about the nature of his injuries had been given in fear of reprisals and did not reflect the truth of what had happened to him.
19. On 13 April 2001 the Proletarskiy District Court of Rostov-on-Don found the applicant guilty of aggravated robbery and sentenced him to nine years’ imprisonment. As to the applicant’s ill-treatment complaint, the District Court refused to call for or examine medical documents pertaining to the applicant’s beatings. However, it heard the truck drivers, an emergency doctor who had been called to the applicant on 30 October 2000, and the police officer who had investigated the applicant’s criminal case. The truck drivers confirmed that they had been attacked by several men, including the applicant, but they did not recall hitting the applicant in defence. The emergency doctor stated that she had been called to the applicant who had been complaining of severe pain in the back as a result of a fall from a bench. She had examined the applicant and had not discovered any visible injuries. The applicant had not complained to her of beatings by the police. The investigator testified that the applicant had complained of ill-treatment by the police and that she had examined “necessary documents” pertaining to his complaint. Relying on the witnesses’ testimony, the District Court dismissed the applicant’s complaint of beatings as unfounded.
20. The applicant appealed against the judgment. In his statement of appeal he alleged, inter alia, that he had been severely beaten up by the police officers. He also complained that the District Court had refused to examine the medical evidence corroborating his allegations of ill-treatment.
21. On 21 August 2001 the Rostov Regional Court upheld the conviction, endorsing the reasons given by the District Court. The Regional Court also found that the applicant’s allegations of ill-treatment were “not convincing” because they had been refuted by the statements of the emergency doctor and the fact that the applicant had initially stated that he had sustained an injury as a result of a fall from a height.
22. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party.
VIOLATED_ARTICLES: 3


ITEMID: 001-105566
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SRBIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicant, Mr Krešimir Srbić, is a Croatian national who was born in 1966 and lives in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š, Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a follower of the Hare Krishna movement.
Following a criminal conviction for robbery, the applicant began serving a seven-year prison term on 13 January 2003 in Sisak Prison.
During 2006 he was transferred to Lepoglava State Prison. On 21 April 2008 the applicant was transferred to Turopolje Prison and on 22 July 2008 he was transferred to Zagreb Prison.
On 20 September 2008 he was transferred back to Sisak Prison. He alleged that between 24 November and 19 December 2008 he was placed in a cell without heating and that on 13 December 2008 ten bottles of water were taken from him. On 12 January 2009 the applicant was placed in a cell with smokers, although his doctor had recommended that he be placed in a non-smoking cell.
According to the applicant, he is a vegetarian but for the first six months of his incarceration there was no possibility of receiving vegetarian meals in Sisak Prison. Furthermore, although the applicant was able to buy grains, oats and similar food from the prison canteen, he was not allowed to have a spoon, so he was unable to consume such food. The food provided to him by the prison authorities consisted almost entirely of carbohydrates.
Furthermore, he suffered from a cyst in his mouth and although surgery was recommended by a prison doctor, this recommendation has not yet been followed. The applicant submitted a medical certificate dated 16 October 2009 showing that on 20 September 2008 when he arrived in Sisak Prison he weighted 97 kilograms but by 16 October 2009 he weighed only 81 kilograms.
On 27 October 2009 the applicant handed over a letter addressed to the Court to a prison officer. On 28 October 2009 he was told that letters had to be handed over unsealed. On 29 October 2009 a copy of the Convention and registration details concerning his case pending before the Court were taken from the applicant.
On 12 January 2010 the applicant was transferred to Zagreb Prison. He alleges that upon arrival all his personal belongings were taken from him, including his glasses, contact lenses and the following golden jewellery: three diamond earrings; a necklace; a diamond ring; and a Hare Krishna rosary with a swastika on it which he had previously been allowed to keep. When he attempted to ask for his glasses or contact lenses to be returned to him, two prison guards took him out of the cell and hit and kicked him several times all over his body. Later on the same date, the applicant complained to the prison’s medical personnel but they refused to provide him with any medical care. The applicant alleges that he complained about the incident to the Head Office of the Prisons Administration of the Ministry of Justice but that no steps have been taken in relation to his complaint.
When a sentence-execution judge of the Zagreb County Court was visiting the prison, the applicant complained of his rosary being taken away from him. Her response was that his religious symbols were not allowed. When he later checked whether his golden jewellery was still in the prison safe, he discovered that his property was no longer there. He complained to the Head Office of the Prisons Administration and on 10 May 2010 received an answer that these objects had never been recorded as having been taken from him.
The applicant alleges that the prison authorities requested that he hand over all letters addressed to the Court and to the national authorities unsealed.
The relevant provisions of the Service of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
“(1) An inmate may lodge a request for judicial review of any acts or decisions unlawfully refusing him, or limiting, any of the rights guaranteed by this Act.
(2) Requests for judicial review shall be decided by the sentence-execution judge.”
Section 42
(1) A sentence-execution judge protects the rights of prisoners, supervises the legality of the execution of a prison term and ensures equality of prisoners before the law.
(2) A sentence-execution judge takes acts and decides in respect of:
...
2. Judicial review of [prisoners’] rights by deciding on appeals lodged against a decision of a prison governor in cases prescribed by this Act;
...”
“(1) Proceedings before a sentence-execution judge are initiated at first instance upon a request by a party or by a judge and at second instance upon an appeal.
(2) A sentence-execution judge acts so as to, according to basic principles, ensure the effective protection of the rights and interests of the prisoner concerned. ... The judge shall allow the parties to submit their observations about the facts [presented by] and allegations put forward by the opponent, and to present new facts and call for evidence.
(3) The parties to the proceedings are the prisoner and the prison or penal institution.
(4) A prisoner has the right to a lawyer of his or her own choice. Such a lawyer shall have qualifications required for a defence lawyer in criminal proceedings. When a prisoner does not ensure legal representation within twenty-four hours, the proceedings shall continue without legal representation.
(5) A prisoner may ask for a legal-aid lawyer when he does not have sufficient means to pay for legal representation and is not able to represent his own interests.
(6) A sentence-execution judge may consult all official documents concerning a prisoner, pay a visit to the prison or penal institution concerned and establish the relevant facts in any other manner.
(7) A sentence-execution judge may hold a hearing in appropriate premises of a prison or penal institution.”
“A prisoner may lodge an appeal against decisions of a prison governor to a sentence-execution judge within eight days ...”
(1) Parties to the proceedings, a prisoner’s representative and the persons listed in Article 380 §§ 1 and 2 of the Code of Criminal Procedure may lodge an appeal against a decision of a sentence-execution judge adopted at first instance ...
(2) The appeal shall be lodged with a sentence-execution judge, who shall immediately forward it to a judicial panel of a county court. That panel shall decide within eight days ...”


ITEMID: 001-111175
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KESKINEN AND VELJEKSET KESKINEN OY v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The first applicant was born in 1967 and lives in Töysä. The applicant company has its seat also in Töysä.
6. The applicants organised in February 2005 an ice fishing competition for which the entrance fee was 20 euros. This was the seventh time that the competition had been organised by the applicants. They had rented in 2004 a lake, into which they had put 5,551 marked salmon. One of them weighed five kilos, 50 about three kilos, 500 about two kilos and 5,000 about one kilo. The winners of the competition were those three men and three women who caught the most fish. In addition, anybody who caught a marked salmon would win a prize according to its weight. The fisher of the five-kilo salmon would win one million euros, the fisher of a three-kilo salmon would receive a gift certificate worth 20,000 euros, the fisher of a two-kilo salmon a gift certificate for 2,000 euros and the fisher of a one-kilo salmon a gift certificate of 200 euros. Each participant could buy only one entrance ticket and was allowed to use only one rod and hook.
7. The ice fishing competition was a mass event in which 27,731 persons participated. Of the 5,551 marked salmon, 2,188 were caught. The following gift certificates were given away: three 20,000-euro gift certificates, 48 2,000-euro gift certificates and 2,137 200-euro gift certificates.
8. When the previous fishing competition had been organised in 2003, the Ministry of the Interior had asked the applicant company to clarify the nature of the competition. It had concluded in March 2003 that the competition was to be considered partly as a lottery, within the meaning of the Lotteries Act (arpajaislaki, lotterilagen), in that the fishers of marked salmon would be given separate prizes. This interpretation was sent for information to the county administrative board (lääninhallitus, länsstyrelsen) and the local police department. The fishing competition in 2003 did not have any legal consequences for the applicants.
9. The preparations for the 2005 event started in 2004 and they involved a large number of local persons, including the police. The Ministry of the Interior again asked the applicant company to clarify the nature of the competition. On 17 and 21 January 2005 the Ministry concluded that the event might constitute a lottery within the meaning of the Lotteries Act. This view was communicated to the local police and the leading county police officials. The applicants duly informed the police about the event well in advance. The police never prohibited the event even though they had the right to do so if organising an event was illegal.
10. Criminal proceedings were brought against the applicants in 2006. The public prosecutor brought charges against the first applicant, inter alia, for having organised, in connection with an ice fishing competition, a lottery without a proper permit because the outcome of the fishing competition was partly based on luck. Moreover, the public prosecutor asked that the profit gained from the offence committed by the applicant company be forfeited to the State.
11. On 5 June 2006 the Seinäjoki District Court (käräjäoikeus, tingsrätten), after having held an oral hearing, dismissed all charges against the first applicant as well the forfeiture request against the applicant company. The court found that the lottery had been illegal, but the fact that the provisions in question had not been clear, that similar events had been organised before and that the authorities had not prevented the event from taking place, led the court to conclude that the first applicant’s misinterpretation of the law was excusable.
12. The public prosecutor appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), reiterating his charges and requesting that an oral hearing be held. He requested that two civil servants from the Ministry of the Interior be heard about the role of the Ministry in general as well as in the present case, including the question of intent and the applicants’ reactions to the Ministry’s queries and guidelines. As to the forfeiture, an oral hearing was needed in order to assess evidence and the amount of profit gained.
13. On 5 July 2006 the applicants also lodged an appeal in respect of the costs and expenses and requested that an oral hearing be held. They wanted two witnesses to be heard about the nature, content and organisation of the ice fishing competition. As to the forfeiture, they proposed to hear the applicant company’s financial manager about the financial outcome of the competition. If no oral hearing was held, the applicants were to be given a possibility to submit further comments.
14. Both parties were given an opportunity to comment on the other party’s letter of appeal.
15. On 8 August 2007 the Vaasa Appeal Court, inter alia, rejected the request for an oral hearing and sentenced the first applicant to 50 day-fines (13,300 euros) in respect of the breach of lottery provisions. As to the oral hearing, the court found that the facts and their background were undisputed, the written correspondence between the Ministry and the applicants had already been included in the District Court’s judgment and the role of the Ministry of the Interior as the supervisory and expert organ in lottery legislation matters had become apparent from the Lotteries Act. It was thus clearly not necessary to hold an oral hearing. Nor did the forfeiture require an oral hearing to be held. It was not necessary to provide the public prosecutor or the applicants with an opportunity to submit further comments. As to the merits, the court found that catching a marked fish was more due to luck than to the participants’ skills. Even a beginner could have caught a winning fish. The ice fishing competition thus fulfilled the criteria of a lottery within the meaning of the Lotteries Act. The provisions of the Lotteries Act were not especially difficult to understand and the first applicant had been well aware of the manner in which they were interpreted by the Ministry. As it could not be deemed that the first applicant had misinterpreted the law in an excusable manner, he was found guilty of a lottery offence. According to the court, the proper sanction, bearing in mind the first applicant’s guilt and the damaging effect of the offence, was thus 50 day-fines. The court estimated that the profit gained from the offence was 60,000 euros and ordered its forfeiture.
16. By letter dated 8 October 2007 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that an oral hearing be held or that the case be referred back to the Appeal Court for an oral hearing. They claimed, inter alia, that it had come as a complete surprise to them that the Appeal Court had not organised an oral hearing nor provided them with an opportunity to submit further observations.
17. On 3 March 2008 the Supreme Court granted the first applicant leave to appeal. The question of granting leave to appeal to the applicant company was postponed to be dealt with together with the merits of the first applicant’s appeal.
18. On 30 December 2008 the Supreme Court found that the case could have been decided by the Appeal Court without holding an oral hearing and for the same reason there was no need to hold an oral hearing in the Supreme Court. As to the merits, the court confirmed that the ice fishing competition was to be regarded as a lottery within the meaning of the Lotteries Act and that it had taken place without a permit. Bearing in mind the Ministry’s interpretation, the provisions of the Lotteries Act were not especially difficult to understand. The first applicant could thus not be deemed to have misinterpreted the law in an excusable manner. The court upheld the number of day-fines imposed but reduced the amount of each day-fine so that the 50 day-fines imposed amounted in total to 7,500 euros. As to the applicant company, the court refused leave to appeal.
19. Chapter 26, Section 14, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as amended by the Act no. 165/1998) provided at the relevant time:
“A main hearing shall be held in the appeal court, if a party to a civil case or the injured party or the defendant in a criminal case so requests.
However, a main hearing need not be held for the reason referred to in subsection 1, if
(1) in a civil case amenable to settlement, the opposing party has admitted the appellant’s request for a change;
(2) in a criminal case only the appellant has requested a main hearing and the case is decided in accordance with the appeal;
(3) the person requesting a main hearing has been satisfied with the decision of the District Court and the decision is not changed to his or her detriment;
(4) the appeal is manifestly ill-founded;
(5) only a procedural matter is to be decided in the case; or
(6) the holding of a main hearing is for another reason manifestly unnecessary.
The provisions in subsection 1 and in subsection 2(1) and 2(3) - (6) apply, in so far as appropriate, also when hearing an appeal lodged in a non-contentious civil case.”
20. According to Chapter 26, Section 15, of the same Code:
“An appeal court shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the district court or the findings of the district court in an inspection, or on new testimony to be admitted in the appeal court. In this event, the evidence admitted in the district court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment to the same.
If the evidence referred to in paragraph (1) cannot be readmitted in the main hearing, the decision of the district court shall not be changed for that part, unless the evidence for a special reason is to be assessed differently. However, a decision on a charge may be changed in favour of the defendant of a criminal case.”
21. Chapter 30, Section 20, subsection 1, of the same Code provides:
“Where necessary, the Supreme Court shall hold an oral hearing where the parties, witnesses and experts may be heard and other information admitted. The oral hearing may be restricted to a part of the case on appeal.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106599
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BUCHA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Mr Štefan Bucha, is a Slovakian national who was born in 1955 and lives in Žilina. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is a practising lawyer. By two decisions given on 13 September 2006 and 30 November 2006, the Constitutional Court appointed him to represent a claimant in two sets of constitutional proceedings brought under Article 127 of the Constitution and concerning an alleged breach of the claimant’s rights under Article 5 of the Convention and its constitutional equivalent. The appointment was made in the context of the claimant’s request for legal aid. In the decisions, reference was made to section 31a of the Constitutional Court Act 1993 and to Articles 30 and 138 of the Code of Civil Procedure. They specified that the applicant had been chosen as his office was in the town where the claimant was detained.
4. In written submissions to the Constitutional Court submitted on 16 August 2006 and 8 November 2006, the president of the ordinary court concerned argued that there had been no breach of the claimant’s rights.
5. On 19 October 2006 and 18 January 2007 the claimant informed the Constitutional Court that he insisted on an examination of his case at an oral hearing.
6. On 30 November 2006 and 20 March 2007 the Constitutional Court declared admissible the claimant’s complaints under Article 5 § 4 of the Convention and rejected the remaining claims. On the last-mentioned date it joined the two cases, to the extent that they had been declared admissible.
7. The president of the district court involved excused himself from the hearing scheduled for 27 March 2007. He cited a heavy workload and also the wish to avoid additional costs. He agreed to the hearing being held in the absence of any representative of his court. The applicant was not informed of that communication prior to the hearing.
8. On 22 March 2007 the applicant met his client, at the latter’s request, in order to complete the file and prepare the submissions which were to be made at the hearing.
9. On 27 March 2007 the Constitutional Court heard the applicant and his client. The applicant submitted documentary evidence and arguments in support of the claimant’s complaints. He also specified the claim in respect of his costs. It totalled 44,395 Slovakian korunas (SKK). That sum included SKK 9,536 in respect of the applicant’s representation of the claimant at the hearing before the Constitutional Court and time and costs relating to the applicant’s journey to Košice for the purpose of the hearing. The individual items claimed were based on the relevant provisions of Regulation 655/2004 governing the payment of fees and costs to lawyers.
10. By a judgment of 27 March 2007 the Constitutional Court found that Article 5 § 4 of the Convention had been breached on two occasions due to the fact that: (i) an ordinary court had not displayed due diligence in examining applications for release lodged by the applicant’s client; and (ii) a different court had failed to comply with the requirement of equality of arms when extending the claimant’s detention.
11. The Constitutional Court ordered, inter alia, that SKK 26,101 should be paid to the applicant for the costs of the claimant’s representation. The relevant part of its decision reads:
“The Constitutional Court, with regard to section 36(2) of the Constitutional Court Act 1993, considers ... it justified to make an award of SKK 26,101 in respect of the costs of the claimant’s legal representation... [It does not] grant the other costs claimed by the plaintiff’s representative, including the costs related to participation at the hearing held on 27 March 2007, the time of the return journey from Žilina to Košice, and travel and subsistence costs, as it does not consider them to have been necessarily incurred, as neither the representative nor the claimant put forward any facts in the course of the hearing which were unknown to the Constitutional Court on the basis of the claimant’s complaint and the files at its disposal.”
12. The judgment specified that the Constitutional Court had not considered documentary evidence which the applicant had submitted on behalf of his client in the course of the oral hearing, as that evidence had not concerned the subject-matter of the proceedings as determined by the decisions on the admissibility of the claimant’s complaints.
13. Article 47 § 2 of the Constitution guarantees to everyone the right to legal assistance in proceedings before courts, State authorities or public administration bodies under the conditions specified by law.
14. Proceedings before the Constitutional Court are governed by the Constitutional Court Act 1993 (“the 1993 Act”).
15. Pursuant to Section 20(2) of the 1993 Act, a person who wishes to bring proceedings before the Constitutional Court has to submit for a mandate in favour of the lawyer representing him or her in the proceedings unless the 1993 Act provides otherwise.
16. Pursuant to section 30(1) of the 1993 Act, an oral hearing shall be held in proceedings concerning, inter alia, natural or legal persons’ complaints brought under Article 127 of the Constitution. The Constitutional Court may refrain from holding an oral hearing, subject to the parties’ agreement, where it cannot be expected that relevant new information will be obtained thereby (subsection 2 of section 30). Section 30(3) of the 1993 Act entitles the parties and their representatives to attend oral hearings.
17. Pursuant to section 31(a) of the 1993 Act, unless the 1993 Act provides otherwise or unless it is excluded by the nature of the matter, the provisions of the Code of Civil Procedure and of the Code of Criminal Procedure are to be used by analogy in proceedings before the Constitutional Court.
18. Section 36(1) of the 1993 Act provides that parties to proceedings before the Constitutional Court have to bear their costs and expenses. Subsection 2 of section 36 entitles the Constitutional Court, where justified and in accordance with the outcome of the proceedings, to order a party to fully or partially reimburse the costs and expenses of the other party.
19. Article 30 provides that courts should appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests.
20. Article 138 § 1 provides, inter alia, that courts may grant a party’s request for waiver of court fees where it is justified by the situation of the party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success.
21. Article 140 § 2 provides that where a lawyer was appointed to represent a party to proceedings, the State shall pay that lawyer’s fees and reimburse his or her costs.
22. Article 142 § 1 authorises courts to grant to a party who was fully successful in an action the reimbursement of the costs which were necessary for the effective exercise or protection of his or her rights vis-à-vis the unsuccessful party.
23. Section 18(1) obliges lawyers to protect and pursue the rights and interests of their clients and to abide by the latter’s instructions. Such instructions do not bind lawyers where they run contrary to generally binding legal rules. Subsection 2 of section 18 obliges lawyers to diligently use all legal means which they consider beneficial for their client. At the same time, lawyers should respect the principles of efficiency and economy while providing legal services.
24. Section 20(2) provides that, without prejudice to section 21, a lawyer is entitled to refuse to provide legal services unless he has been appointed under special rules, such as Articles 30 and 31 of the Code of Civil Procedure.
25. Section 21 enumerates situations in which a lawyer is obliged to refuse to provide legal services. Thus, under point (e), a lawyer has to refuse to provide legal services where he or she is unable, because of heavy workload or long-term absence, to duly protect the rights and interests of the client.
26. Pursuant to section 25, when a lawyer has been appointed under the legal aid scheme to assist a client, the remuneration for his legal services is to be paid by the State.
27. Under section 56(1), a breach of an obligation under the Advocacy Act 2003 or an internal regulation of the Bar Association attributable to a lawyer is qualified as a disciplinary offence. The sanctions for such offences are listed in subsection 2 of section 56. They include a written warning, public reprimand, a fine, suspending the right to practice as a lawyer for a period from six months to three years and being struck off from the roll.
28. With reference to section 31a of the Constitutional Court Act 1993, taken in conjunction with Articles 30 and 138 § 1 of the Code of Civil Procedure, the Constitutional Court has held that it may appoint a lawyer to represent a natural or legal person, at that person’s request, provided that this is justified by the claimant’s situation and that the case is not clearly devoid of any prospect of success.
29. In judgment II. ÚS 78/03 of 9 September 2004 the Constitutional Court ruled that the right to reimbursement of costs which were properly incurred is a part of the fundamental right to legal assistance. However, it did not find a breach of that provision in a situation where the ordinary court involved, while applying Article 142 § 1 of the Code of Civil Procedure, had made no award in respect of costs. The Constitutional Court held that the law provided for discretion in the assessment of whether the costs claimed were necessarily incurred. It concluded that the very essence of the claimant’s right under Article 47 § 2 of the Constitution had not been affected.
30. In judgment II. ÚS 176/03 of 17 June 2008 the Constitutional Court found a breach of a person’s right to a hearing within a reasonable time. That person was represented by the present applicant. The Constitutional Court ordered the reimbursement of the applicant’s fees and costs. The sum awarded also took into account the claimant’s representation at the hearing held before the Constitutional Court and time and costs relating to the applicant’s journey to the seat of the Constitutional Court for the hearing.
31. In accordance with the Supreme Court’s practice (for example, decision 4 Obo 51/93 of 31 January 1993), courts should assess whether costs incurred are reasonable. They should grant reimbursement of expenses which were necessary for the exercise or protection of a party’s right.


ITEMID: 001-5501
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SAHIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Turkish national, born in 1958 and currently imprisoned in Aydın. He is represented before the Court by Mrs Bengül Ekler Kavak and Mr İsmail Kavak, lawyers practising in İzmir.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 April 1991 the applicant was taken into custody by police officers from the İzmir Security Directorate on suspicion of being a member of the PKK.
On 30 April 1991 the İzmir State Security Court ordered the applicant’s detention on remand.
On 1 July 1991 the public prosecutor attached to the İzmir State Security Court filed a bill of indictment against the applicant and eleven other accused. He charged the applicant with being a member of the PKK and with involvement in bombing of a fuel station. The prosecutor requested that the applicant be convicted and sentenced under Article 168/2 of the Turkish Criminal Code and Article 5 of Law 3713.
On 28 September 1993 the İzmir State Security Court convicted the applicant on account of his involvement in the PKK and the bombing of a fuel station. The court sentenced the applicant to 12 years and 6 months’ imprisonment under Articles 59, 168/2 and 264/6 of the Turkish Criminal Code and Article 5 of Law 3713.
On 18 January 1995 the Court of Cassation quashed the judgment of 28 September 1993 on procedural grounds.
At a hearing on 31 October 1995 the İzmir State Security Court refused the applicant’s request for release pending trial. The court considered that the applicant’s detention on remand was necessary having regard to the serious nature of the alleged offences, the date on which he had been detained on remand and the state of evidence.
At a hearing on 27 November 1995 the court again rejected the applicant’s request for release pending trail on the same grounds.
On 29 November 1995 the applicant filed an objection with the İzmir State Security Court against the refusal of his request for release pending trail. The applicant emphasised that his detention pending trial constituted a violation of his rights guaranteed under Article 19 of the Convention and Article 5 of the European Convention on Human Rights.
On 1 December 1995 the İzmir State Security Court convicted the applicant on account of his involvement in the PKK and organising and planning to bomb a fuel station. The court sentenced him to 12 years and 6 months’ imprisonment in respect of the first offence under Article 168/2 of Turkish Criminal Code and Article 5 of Law 3713 and to 5 years and 6 months and 20 days imprisonment, together with a fine of 200,000 Turkish liras, in respect of the second offence under Article 264/6 of Turkish Criminal Code and Law 3506. The court did not reply to the applicant’s objection of 29 November 1995. The court also convicted and sentenced eleven other accused.
On 10 July 1997 the Court of Cassation upheld the judgment of the İzmir State Security Court.
B. Relevant domestic law and practice
i. Article 19 of the Constitution provides:
“Everyone has the right to liberty and security of person.
A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.
Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”
ii. The relevant provision of the Turkish Criminal Code reads as follows:
Article 168
“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.
The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”
Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in section 3 of the Act are increased by one half.
iii. Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only…”


ITEMID: 001-67150
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF WODITSCHKA AND WILFLING v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The first applicant was born in 1979 and lives in Vienna.
5. On 19 July 2000 the Vienna Regional Court (Landesgericht für Strafsachen) convicted the first applicant under section 209 of the Criminal Code of having committed homosexual acts with an adolescent and sentenced him to a fine of ATS 4,500 (approximately EUR 330) with 75 days’ imprisonment in default. The sentence was suspended on probation. The Regional Court found that, in September 1999, the first applicant, who was then twenty years old, had had about ten homosexual contacts with a sixteen-year-old. In determining the sentence the court had regard to the applicant’s confession and his young age as a mitigating circumstance, as well as to the repetition of the offence as an aggravating circumstance.
6. On 13 November 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the first applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision.
7. The second applicant was born in 1964 and lives in Traiskirchen.
8. On 7 August 2001 the Wiener Neustadt Regional Court ordered the second applicant’s detention on remand on suspicion of having committed homosexual acts with an adolescent contrary to section 209 of the Criminal Code.
9. On 24 August 2001 the Wiener Neustadt Regional Court convicted the second applicant under section 209 of the Criminal Code and sentenced him to fifteen months’ imprisonment, fourteen of which were suspended on probation. It found that, from March 2001 until his arrest, the second applicant had a homosexual relationship with a seventeen-year-old. In determining the sentence the court had regard to the applicant’s confession as a mitigating circumstance, as well as to the repetition of the offence and a previous conviction as aggravating circumstances.
10. On 7 September 2001 the second applicant was released from detention on remand.
11. On 23 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the second applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. Upon the Public Prosecutor’s appeal it changed the sentence to the effect that only ten out of fifteen months of imprisonment were suspended on probation.
12. Subsequently the second applicant was granted a stay of the execution of his sentence. On 7 July 2002 he requested a pardon and a further stay of execution pending the decision on his request for pardon. On 11 July 2002 the Wiener Neustadt Regional Court granted a further stay of execution.
13. On 23 September 2002 the Federal President, upon the second applicant’s request, granted him a remission of the remaining sentence.
14. Article 209 of the Criminal Code, in the version in force at the material time, read as follows:
“A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.”
15. On 21 June 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.
16. On 10 July 2002 Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002.
17. The Court notes that the legal situation has remained unchanged since 9 January 2003, when it gave its L. and V. v. Austria judgment (nos. 39392/98 and 39829/98, ECHR 2003-I). For a more detailed description of the law, the Constitutional Court’s judgments concerning Article 209 of the Criminal Code and the parliamentary debate relating to the issue, it therefore refers to the said judgment (§§ 17-33).
VIOLATED_ARTICLES: 14
8


ITEMID: 001-120501
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: EFTHYMIOU AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
TEXT: A list of the applicants and their representatives is set out in the appendix.
The facts of the cases, as submitted by the parties, may be summarised as follows.
The applicants are relatives of Greek-Cypriot men, reservists or serving in the army, who went missing in July-August 1974 following the invasion of northern Cyprus by Turkish armed forces. These men were listed as missing persons, the information being given to the Red Cross and the United Nations.
The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”) and identified from 2010 onwards after DNA and other analyses.
According to the information submitted by the Government, in November 2010, a special unit in the police had been established, under instructions by the Attorney-General of the “TRNC” (the “Turkish Republic of Northern Cyprus”) to initiate investigations into the deaths of the persons whose remains were found. This unit currently consists of 15 persons, including four interpreters and received technical assistance from experts. Files were opened and investigations commenced in a number of cases (including those considered in the Charalambous and others v. Turkey (dec.), no. 46744/07, 3 April 2012).
On 10 January 2012, police headquarters gave instructions to local police stations to send information about the missing persons identified in their districts and how they met their deaths. On 15 August 2012, the special unit contacted the CMP to request files of all the missing persons who had been identified, as well as maps and photographs.
In the present cases, the police attempted to contact the applicants and invited those whom they located to attend to give their statements. The applicants’ legal representatives were informed of these contacts. Some legal representatives refused to accept the competence of the “TRNC” police to investigate and declined co-operation. A number of applicants attended the police station but were only prepared to submit a pre-prepared brief statement or copy of their application form. An announcement with contact details was prepared with a view to inviting members of the public to come forward with information about the deceased but was still awaiting publication in the Greek Cypriot press. The investigations were ongoing.
The applicants variously submitted that they had co-operated with the police, attending to give statements and offering information or that the summons to attend the police station had served no point in light of the statements submitted to the Court and thus disclosed unjustifiable harassment. Some applicants had declined to sign new statements when the police refused to allow them to keep copies. The applicants and their representatives doubted the efficiency or good faith of the “TRNC” police, or the genuineness of their investigative efforts.


ITEMID: 001-82106
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BATINOVIC AND POINT-TRADE, D.O.O. v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The first applicant, Mr Joko Batinović, is a Croatian national who was born in 1948 and lives in Ploče. The second applicant, Point-Trade, d.o.o., is a limited liability company with its seat in Imotski. The applicants were represented before the Court by Palić and Šurjak Law Offices, Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were shareholders of the Croatia Bank, which is a joint stock company with its seat in Zagreb (“the Bank”). The Bank was entirely owned by private individuals and companies.
On 23 February 1999 the Council of the Croatian National Bank (Savjet Hrvatske Narodne Banke, “the HNB”) adopted a decision to appoint a temporary manager for the Bank. According to the Banks Act, from the date of the service of such decision, all powers of the management board, the supervisory board and the shareholders’ assembly were transferred to the temporary manager. Subsequently, on 23 August 1999 the HNB prolonged the appointed temporary manager’s mandate for another two months.
Meanwhile, on the basis of an expert opinion indicating the Bank’s financial losses, on 18 June 1999 the HNB proposed to the Government to commence the process of sanation and restructuring of the Bank in line with the domestic legislation.
According to the above proposal, on 23 September 1999 the Government adopted the Decision on Sanation and Restructuring of the Croatia Bank (“the Decision”). From that date, all shares of the shareholders were withdrawn and annulled. Following the process of sanation, the Bank was to issue new shares, all to the name of the State Agency for Securing Deposits and Sanation of Banks (Državna agencija za osiguranja štednih uloga i sanaciju banaka).
In late 1999 the applicants filed separate petitions for review of constitutionality and legality (prijedlog za ocjenu ustavnosti i zakonitosti) of the Decision. They complained that the Decision violated their property rights as shareholders of the Bank. They also claimed that the Bank had been in good standing and that the Decision had therefore been arbitrary and, in any event, unnecessary.
On 30 January 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) discontinued the proceedings because the law on which the Decision was based had meanwhile been abrogated.
The Law on Sanation and Restructuring of Banks (Zakon o sanaciji i restrukturiranju banaka, Official Gazette no. 44/1994 of 3 June 1994, “the Sanation and Restructuring Act”), insofar as relevant, read as follows:
“The procedure of sanation and restructuring shall take place when a bank shows potential losses ... of more than 50% of the amount of its share capital, if the HNB deems such procedure feasible and economically justifiable.
The decision on sanation and restructuring of a bank shall be given by the Government of the Republic of Croatia on the basis of a proposal by the HNB.”
The Sanation and Restructuring Act was abrogated on 23 May 2000 (Zakon o prestanku važenja zakona o sanaciji i restrukturiranju banaka, Official Gazette no. 52/2000 of 23 May 2000).
The Decision on Sanation and Restructuring of the Croatia Bank (Odluka o sanaciji i restrukturiranju Croatia Banke d.d., Zagreb, Official Gazette nos. 98/1999 of 27 September 1999 and 53/2000 of 26 May 2000; “the Decision”), insofar as relevant, reads as follows:
“It is established that on 31 May 1999 the Bank has
(a) risky placements and potential obligations in the amount of 1,809 million kunas, including potential losses of 517 million kunas:
(b) doubtful and disputed claims ... in the amount of 446 million kunas;
(c) business losses incurred in 1998 and between 1 January and 31 May 1999 in the amount of 622.2 million kunas.
On the day of the publication of this Decision all existing shares of the Bank shall be withdrawn and annulled. The Bank shall issue new shares in the amount of 217 million kunas, which shall be entirely owned by the Agency.”
The Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 11/2001 of 7 May 2001) provides as follows:
“The right of ownership is guaranteed.
1. Property may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to its market value.
2. The exercise...of property rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.
The Constitutional Court of the Republic of Croatia:
- shall decide on the conformity of statutes with the Constitution;
- shall decide on the conformity of subordinate legislation with the Constitution and statutes;
- may decide on the constitutionality of statutes or subordinate legislation which are no longer in force, provided that from the moment of their abrogation until the submission of an application or a petition to institute the proceedings not more than one year has passed.”
The Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”), insofar as relevant, provides as follows:
“Every individual or legal person has the right to request the institution of proceedings to review the constitutionality of statutes or subordinate legislation....
“The Constitutional Court shall commence proceedings within one year after the petition has been lodged.”
The relevant part of section 19 (1) of the Courts Act (Zakon o sudovima, Official Gazette nos. 3/1994, 100/1996, 131/1997 and 129/2000) as in force at the material time reads as follows:
Commercial courts... adjudicate disputes concerning establishment, functioning and dissolution of commercial companies as well as disputes concerning dispositions with membership and membership rights in such companies...”
In its judgment Pž-6234/04-2 of 21 December 2004 the High Commercial Court (Visoki trgovački sud) adopted a judgment, which insofar relevant reads as follows:
“It is declared that A.K. ... is a shareholder of Croatia Bank d.d. Zagreb and holder of rights in respect of 1,517 shares of nominal value of 200 HRK each..., and therefore entitled to both the property rights deriving from these shares and all the rights acquired through the investment of capital in Croatia banka d.d. from its foundation until the present day...”