ITEMID: 001-105444
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DOBROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Valentin Anatolyevich Dobrov, is a Belarusian national who was born in 1964 and lives in Dnipropetrovsk. He was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yu. Zaytsev, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a businessman and a political opposition supporter in Belarus, who participated in protest rallies following the constitutional referendum in 2004 and the presidential elections in March 2006 (and was briefly arrested and allegedly beaten up by the police after the last-mentioned event), provided financial support to one of the opposition parties, and initiated some entrepreneurs’ protest actions at a local level. From March 2006 onwards he and his wife allegedly received anonymous threats. In 2007 the financial police allegedly demanded from the applicant a bribe of 50,000 United States dollars (USD) not to institute criminal proceedings against him, about which he complained to the State Security Committee. The threats against him allegedly became more serious thereafter.
In December 2008 the applicant left Belarus for an unspecified country.
Since March 2009 he has been living in Ukraine.
In June 2009 the applicant was charged in absentia in Belarus with illegal entrepreneurial activities (a criminal offence).
On 3 June 2009 the Minsk Regional Prosecutor’s Office decided to remand him in custody and on the following day the applicant was declared wanted by the police.
On 9 June 2009 he applied to the Ukrainian Migration Service for refugee status.
On 24 June 2009 he was notified that his application had been rejected and appealed.
On 15 July 2009 the State Committee of Nationalities and Religions of the Migration Service sent a letter to the Citizenship, Immigration and Individuals’ Registration Department in the Dnipropetrovsk region instructing it to register the applicant at the address indicated in Dnipropetrovsk pending the examination of his appeal till 14 August 2009. The outcome of the appeal proceedings is unknown.
On 15 July 2009 the applicant was additionally charged in Belarus with the creation and management of a criminal organisation and tax evasion in respect of particularly large sums. On the same day the Minsk Regional Prosecutor’s Office again decided to remand him in custody and on 17 July 2009 he was again declared wanted by the police.
During July 2009 the applicant was arrested four times by the Ukrainian police at the request of the Belarus authorities and subsequently released, with his last release dated 3 August 2009.
On 23 July 2009 the Belarus Prosecutor General lodged an official request for the applicant’s extradition, which remains pending before the Ukrainian authorities. The request contained the following assurances:
- the applicant would not be prosecuted for any other crime committed before the extradition without the consent of the General Prosecutor’s Office of Ukraine;
- he would not be removed to a third country without the consent of the General Prosecutor’s Office of Ukraine;
- he would not be subjected to torture, inhuman or degrading treatment or punishment;
- after the termination of the criminal proceedings or after serving his sentence, if one was imposed, the applicant would be free to leave Belarus;
- the request for extradition was not made in order to prosecute the applicant for political, racial, religious or ethnic reasons.
On 7 August 2009 the applicant requested the European Court of Human Rights to prohibit the Ukrainian Government from extraditing him to Belarus, alleging that there was a risk that he would be subjected to ill-treatment by Belarus law-enforcement officials and would not enjoy the benefit of a fair trial.
On 10 August 2009 the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that the applicant should not be removed to Belarus unless and until the Court had had the opportunity to consider the case further. At the same time, a factual request was sent to the Government with questions, in particular whether the Ukrainian authorities had received any assurances in respect of the applicant and whether they had had or would have regard to the risk of the applicant’s ill-treatment in Belarus.
On 12 August 2009 the Prosecutor General of Belarus supplemented the assurances that the applicant would be ensured a fair trial and that he would be provided with adequate medical treatment if needed.
By a letter of 21 August 2009 the Prosecutor General of Ukraine informed the Government’s Agent that relations between Ukraine and Belarus in the extradition domain were quite positive. In particular, between 2004 and 2009 Ukraine extradited to Belarus sixty-five people charged with criminal offences or for execution of sentences. None of those extraditions was followed by any complaints from the extradited individuals, their representatives or non-governmental organisations concerning any violations of their rights. Therefore, the Ukrainian Prosecutor General considered that there were no reasons not to trust the assurances from his Belarus counterpart. The above-mentioned letter also contained the following statement:
“In connection with Mr Dobrov’s application to the European Court of Human Rights and having regard to the Court’s requirement under Rule 39 of the Rules of Court to suspend his extradition, the Prosecutor General’s Office of Ukraine guarantees that this person will not be extradited to law-enforcement authorities of the Republic of Belarus until the Court has considered the case.”
In their reply of 21 August 2009 to the Court’s factual request the Government noted that the Prosecutor General of Ukraine had not yet decided on the applicant’s extradition to Belarus and that the Ukrainian authorities would take into account any risks of violation of the applicant’s rights under the Convention in case of his extradition. The applicant commented that those assurances were insufficient.
On 21 October 2009 the President of the Chamber decided to maintain until further notice the interim measure indicated under Rule 39 of the Rules of Court and to give priority treatment to the above application in accordance with Rule 41 of the Rules of Court.
On 29 October 2010 the Government informed the Court about new legislation enacted in June 2010 (see Domestic Law part below) and requested the Court to lift the interim measure indicated in the case. They maintained that the new procedure was directly available to the applicant, the courts were authorised to refuse his extradition if they considered that it would violate his Convention rights, and that GPO decisions on extradition could no longer be enforced immediately.
The applicant disagreed, claiming that under the newly introduced extradition procedure it was impossible to suspend decisions to extradite.
In the light of the parties’ submissions, on 5 January 2011 the President of the Chamber decided to discontinue application of the interim measure indicated under Rule 39 of the Rules of Court.
On 13 April 2011 the applicant presented a letter from one of the opposition leaders, Mr S. Shushkevich, confirming the applicant’s involvement in opposition activities.
The parties have not informed the Court about any decision on extradition taken by the GPO in the applicant’s case to date.
On 17 June 2010 the Amendment Act introduced a new chapter to the Code of Criminal Procedure regulating proceedings for extradition to and from Ukraine. Relevant articles of this new chapter provide, among other things, as follows:
Article 466. Refusal to extradite a person
“A decision not to extradite a person to a foreign state may be taken if:
...
5 the person’s extradition is incompatible with the obligations of Ukraine under international treaties to which Ukraine is a party...”
Article 467. Decision on a request for extradition
“...If a decision to extradite a person is taken ..., the person shall be issued with a copy of the decision. If such a decision has not been challenged before a court within seven days, the authorities shall organise the actual extradition of the person to the relevant authorities of the foreign state.”
Article 468. Procedure for appeal against a decision to extradite a person
“A decision to extradite a person may be appealed against by the person concerned, his or her defence counsel or legal representative before a local court...
An appeal shall be examined in a single-judge formation within ten days of the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, and his or her defence counsel or legal representative if the latter participates in the proceedings.
...
Following the examination, the judge shall take a reasoned decision to:
1 reject the appeal;
2 allow the appeal and quash the decision to extradite.
...
An appeal against the judge’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned, his or her defence counsel or legal representative, within seven days of the date of delivery of the impugned decision. The lodging of an appeal against the judge’s decision with the court shall suspend its entry into force and its execution.”


ITEMID: 001-95132
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: STICHTING VOOR EDUCATIE EN BEROEPSONDERWIJS ZADKINE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Stichting voor Educatie en Beroepsonderwijs Zadkine (hereafter “the applicant institution”) is a foundation (stichting) possessing legal personality under Netherlands law and domiciled in Rotterdam, Netherlands. It was represented before the Court by Mr W.E. Pors, a lawyer practising in The Hague, Netherlands.
The facts of the case, as submitted by the applicant institution, may be summarised as follows.
The applicant is an educational institution that provides adult education and secondary vocational training at a number of locations in the Rotterdam area. Although primarily dependent on Government funding, the applicant institution is a private legal entity. In matters of funding and tuition fees, the applicant institution is bound by law.
In so far as the applicant institution could not command income from private sources, it depended on Government grants paid by the Minister of Education, Culture and Sciences (Minister van Onderwijs, Cultuur en Wetenschappen, “the Minister”); the necessary powers were delegated to, and exercised by, a Deputy Minister (staatssecretaris). The precise amount of public money payable to each educational institution was calculated annually by dividing a sum of money budgeted for educational institutions collectively by the total number of students registered across the country and multiplying the resulting figure by the number of students per institution. A detailed formula was applied which made allowance for, among other things, individuals in part-time education.
It was possible for students to register for more than one course at the same time.
On 12 July 2002 and again on 14 October 2003 the Deputy Minister granted Government funding to the applicant institution. The precise amounts were calculated in accordance with the law in force, based on information provided by the applicant institution itself.
The applicant institution had in both years reported a number of students as having registered for more than one course, tuition fees for the additional courses to be met by it from its own budget instead of by the students themselves. The applicant institution admits that in actual fact there was no provision for additional tuition fees in its books.
In early 2002, following findings of irregularities, the Deputy Minister ordered an investigation into the accounting practices of educational institutions that provided adult education and secondary vocational training. All such educational institutions were asked to clarify their reporting practices. This investigation became known as the “Self-Cleansing Investigation” (Zelfreinigend Onderzoek).
The applicant institution stated to the investigators, as relevant to the case before the Court, that a number of students had entered for more than one course at the same time. They were counted as separate students in respect of each course – meaning that, for the purpose of calculating the applicant institution’s share of Government funds, a number of individual students were counted for two or more – the additional tuition fees being covered by the applicant institution itself out of its private funds.
The report of the Self-Cleansing Investigation, which synthesised the submissions of the various educational institutions, came out on 23 October 2002. It was forwarded to Parliament in December 2002.
An investigating committee, known as the “Schutte Committee” after the name of its chairman Mr G.J. Schutte (a former member of Parliament), was set up and tasked with, among other things, examining specific cases of abuse with a view to the recovery of monies paid to educational institutions in excess of their entitlement.
In July 2002 and again in October 2003 the Deputy Minister responsible granted the applicant institution a share of the available funds based on the applicant institution’s own figures.
On 1 April 2004 the Schutte Committee published its report, entitled “Share and share alike: Investigation into irregularities in the funding of higher education and secondary vocational education” (Eerlijk delen: Onderzoek naar onregelmatigheden in de bekostiging van het hoger onderwijs en het middelbaar beroepsonderwijs), which among other things singled out particular educational institutions which had received funding in excess of their entitlement. The applicant institution was among those mentioned.
On the same day the Schutte Committee informed the applicant institution that it had found the applicant institution to have received funding unlawfully and would advise the Deputy Minister to recover the sums concerned.
On 11 November 2004 the Deputy Minister gave a decision modifying the earlier decisions of July 2002 and October 2003. This decision was based on the findings of the Schutte Committee of which the applicant institution had been informed on 1 April 2004. It stated that the applicant institution had unlawfully waived tuition fees but had received Government funding in respect of the students concerned. The grants for the latter two years were reduced retrospectively, the applicant institution being ordered to repay 435,584 euros (EUR) which would be set off against the funding due in 2005.
The applicant institution submitted an administrative objection (bezwaar) to the Deputy Minister.
A hearing was held before an advisory board on 31 May 2005. On 7 July 2005 the Deputy Minister gave a decision dismissing the objection.
The applicant institution appealed to the Regional Court (rechtbank) of Rotterdam.
The Regional Court gave its decision on 10 March 2006. It established as fact that the applicant institution had misreported the number of students and obtained government funding exceeding its entitlement, so that the Deputy Minister had, in principle, the right under section 4:49 of the General Administrative Law Act (Algemene wet bestuursrecht) to reclaim the excess. Nonetheless the Regional Court quashed the Deputy Minister’s decision on the following grounds: the applicant institution’s lack of good faith had not been proved; the Deputy Minister had been aware of the applicant institution’s reporting methods (or ought to have been so aware) at the time when the subsidies were granted; and the repayment order was disproportionate in the light of, firstly, a policy rule according to which repayment would not be demanded if it could be shown from bookkeeping records that the additional tuition fees were adequately covered by the applicant institution itself using funds obtained from non-governmental sources, and secondly, the finding that the applicant institution’s income from non-governmental sources appeared adequate and the students concerned had actually followed the courses, so that there was no misapplication of public funds.
The Deputy Minister appealed to the final appellate Court: Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). The Chamber of the Administrative Jurisdiction Division appointed to hear the case included Councillor D., an ordinary councillor of the Council of State, and two extraordinary councillors. It held a public hearing on 26 September 2006 and gave its decision on 14 February 2007.
The Administrative Jurisdiction Division quashed the Regional Court’s decision.
It found as a matter of fact that the applicant institution did not deny having misreported the number of students to be counted for the Government subsidy.
Admittedly the Deputy Minister had been aware of the applicant institution’s misreporting as early as October 2002 when the report of the “Self-Cleansing Investigation” became available, but the funding decision of July 2002 antedated this report. The Deputy Minister had therefore been unaware of the said misreporting when the decision of July 2002 was taken, from which it followed that that decision could lawfully be reconsidered in the light of information subsequently becoming available.
As regards the subsidy grant of October 2003, it had transpired at the Administrative Jurisdiction Division’s hearing that the funding decision had been provisional and might have to be revisited in the light of the outcome of further investigations, in particular the investigation of the Schutte Committee. That being so the Deputy Minister had been entitled to reconsider the latter grant of subsidy also.
The Deputy Minister’s decision had not been disproportionate as that expression had to be understood in the light of the Administrative Jurisdiction Division’s case-law. In particular, while it might have been the case that the applicant institution could have evaded its obligations to repay the excess subsidy by means of a simple administrative expedient, that was not a fact that the Deputy Minister had failed to take into account but which would have required a deviation from otherwise quite reasonable Government policy.
The Adult Education and Vocational Training Act, as relevant and applicable at the time of the events complained of, provided as follows:
“1. If the need arises as a result of the fixing of the State budget, the Minister (sc. of Education, Culture and Sciences) may, within eight weeks after the budget has been fixed, make corrections to the State contribution. The Minister shall inform the competent authority of a correction as referred to in the first sentence within eight weeks after the State budget has been fixed. The correction shall be set off against the State contribution for the year concerned or paid in that year.
2. If it appears from the [institution’s] annual statement, from the statement of the accountant [as to the reliability of the annual statement], an investigation [into the propriety of the institution’s expenditure and the efficiency of its management, ordered by the Minister] or an investigation [by an accountant appointed by the Minister] that the State contribution was determined on incorrect grounds or was improperly spent, the Minister may make corrections to the State contribution within one year after receiving the annual statement. The Minister shall inform the competent authority of any correction as referred to in the first sentence within one year after receiving the annual statement. The correction shall be set off against the State contribution for the following year or paid in that year.”
“1. Any person wishing to be able to use educational and examination facilities shall have themselves registered as a student by the competent authority. ...”
“Registration shall not be made conditional on any monetary contribution other than those regulated by or pursuant to the law.”
The School and Tuition Fees Act, as relevant and applicable at the time of the events complained of, provided as follows:
“1. Tuition fees shall be payable in order to follow publicly-funded training on courses.
2. Any persons wishing to be admitted to training on a course shall have themselves registered in order to follow training in a particular year of the course.
3. Registration shall not take place unless and until proof has been submitted that the tuition fee due has been paid or will be paid.
4. The tuition fee referred to in the first paragraph, the charging and payment thereof, and the registration referred to in the second paragraph shall be regulated by delegated legislation (algemene maatregel van bestuur). ...”
“If the competent authority of a non-State school (bijzondere school) or a municipal school or course does not abide by the rules set by or pursuant to this Act, the Minister may decide that public funding (vergoeding uit de openbare kas) shall be withheld in whole or in part.”
The delegated legislation referred to in section 6(4) of the School and Tuition Fees Act is the 2000 School and Tuition Fees Schedule. As relevant and applicable at the time of the events complained of, it provided as follows:
“In this schedule, the following expressions shall have these meanings:
student (cursist): a person following a course (degene die een opleiding volgt) ...
...
person owing the tuition fee (cursusgeldplichtige): a student or, if he or she is a minor, their legal representative; ...” [emphases in the original]
“1. An application to register as a participant for a course can be submitted only by the person from whom the tuition fee shall be due on the ground of such registration. ...
4. Registration shall not take place unless and until:
the tuition fee has been paid, unless section 13 applies [sc. an exemption limited to persons less than eighteen years of age in certain cases];
an arrangement for deferred payment has been agreed ...”
“1. The tuition fee shall be payable (verschuldigd) by the person owing the tuition fee. ...”
The General Administrative Law Act contains the following substantive provisions relevant to the case before the Court:
“1. The expression ‘subsidy’ shall mean: any claim to financial means issued by an administrative body with a view to particular activities of the claimant, not being payment for goods or services supplied to the administrative body.
...
4. [The following legal provisions relating to subsidies] shall apply by analogy to the funding of education and research.”
“1. An administrative body may revoke a subsidy award or change it to the detriment of the recipient:
on the ground of facts or circumstances of which, at the time the subsidy was awarded, it could not reasonably be aware and based on which the subsidy would have been set lower than the sum actually awarded;
if the award of subsidy was incorrect (onjuist) and the recipient of the subsidy knew this or ought to have been aware of it; ...”
“Subsidy monies and advances that have been paid but were not owed may be recovered in so far as the lapse of time after the day on which the subsidy was awarded ... is less than five years.”
The Council of State is composed of ordinary and extraordinary councillors. Its tasks include advising the Government and Parliament on proposed legislation and acting as appellate court of administrative jurisdiction. The judicial function is exercised by the Administrative Jurisdiction Division.
Ordinary councillors may be called to take part in both of the Council of State’s functions, unlike extraordinary councillors who participate only in the Council’s jurisdictional tasks.
For a detailed description of the Council of State’s organisation and functions, see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, ECHR 2003VI.
Councillors sitting as judges of the Administrative Jurisdiction Division in a particular case may be challenged on the ground of facts or circumstances which may affect their impartiality (section 8:15 of the General Administrative Law Act in conjunction with section 39(1) of the Council of State Act (Wet op de Raad van State)).
Judicial decisions of the Administrative Jurisdiction Division shall be based on the statement of grounds of appeal (beroepschrift), the documents submitted, the findings of the preliminary investigation, and the examination of the case at its hearing. The Administrative Jurisdiction Division is explicitly empowered to supplement the facts and the law ex officio (section 8:69 of the General Administrative Law Act in conjunction with section 39(1) of the Council of State Act).


ITEMID: 001-100492
LANGUAGEISOCODE: ENG
RESPONDENT: MNE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MIJUSKOVIC v. MONTENEGRO
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1971 and currently lives in Budva.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 26 April 1998 the applicant and V.K. married and on 12 October 1998 their twins, A and B, were born.
8. On 5 June 2003, due to marital problems, the applicant moved back to her parents' house in Nikšić, together with the children.
9. On 22 July 2004 the Social Care Centre in Nikšić (“the NSCC”) issued a decision regulating V.K.'s access to A and B.
10. It would appear that during this period V.K. had been seeing the children in accordance with this decision.
11. On 5 January 2005 V.K. took the children for the winter holiday and subsequently refused to return them to the applicant.
12. On 8 March 2005 the NSCC ordered that the children be returned to the applicant and entrusted the enforcement of that order to the Social Care Centre in Budva (“the BSCC”).
13. On 14 March 2005 the BSCC, with police assistance, attempted to enforce the order in question, but it appears that V.K.'s parents physically prevented that from happening.
14. Between April and June 2005, at the applicant's requests, the NSCC issued three additional decisions, urging V.K. to surrender the children. They provided that should V.K. fail to comply with the applicant's custody rights he would be fined, and that, ultimately, forcible enforcement might be called for.
15. On one occasion thereafter V.K. brought the children to the BSCC but refused to surrender them to the applicant, claiming that the children did not want to live with her.
16. There is no evidence in the case file indicating that V.K. had been fined or, indeed, that a forcible transfer of custody had been attempted again.
17. On 23 June 2003 V.K. lodged a claim with the Court of First Instance in Kotor, seeking the dissolution of his marriage to the applicant as well as custody of the children.
18. On 1 September 2003 the applicant lodged a counter-claim to the same effect.
19. On 9 March 2004 the presiding judge joined the two claims into a single set of proceedings.
20. On 5 January 2006 the Court of First Instance: (i) dissolved the marriage, (ii) granted custody of the children to the applicant, and (iii) ordered V.K. to pay monthly child maintenance.
21. On 5 May 2006 the High Court upheld that judgment and it thereby became final.
22. On 12 September 2006 the Supreme Court dismissed V.K.'s appeal on points of law (revizija).
23. On 12 June 2006 the applicant submitted a request for the enforcement of the final judgment.
24. On 22 June 2006 the Court of First Instance in Kotor issued an enforcement order whereby V.K. was given three days to surrender the children to the applicant. He was also warned that if he failed to comply he could be fined or even subjected to a forcible transfer of custody.
25. On 21 July 2006 the High Court upheld this order.
26. On 26 February 2009 the applicant submitted a request for a review (kontrolni zahtjev; see paragraph 46 below) with the Court of First Instance, seeking execution of the enforcement order.
27. On 5 March 2009 the execution judge (izvršni sudija) informed the President of the court that as it was “impossible to reach an agreement [...] by which the children would be surrendered” to the applicant, the bailiff was ordered to enforce “without delay” the fine of EUR 500 in respect of V.K. He finished his report by stating “that it [was] impossible to say when and how the enforcement proceedings at issue shall be concluded”.
28. On 7 March 2009 the bailiff made an attempt to enforce the fine, but it was to no avail due to the verbal and physical resistance of V.K.'s parents. Subsequently, the bailiff requested the President of the court to release her of the duty to enforce the fine.
29. On 9 March 2009 V.K. was informed that the forcible payment of the fine would be executed on 13 March 2009. On 12 March 2009 V.K.'s father paid the fine imposed.
30. On 17 March 2009 the Court of First Instance issued another enforcement order requesting that the children be surrendered to the applicant within three days, failing which V.K. would be fined EUR 1,000.
31. On 10 September 2009, after the application had already been communicated to the respondent Government, the Court of First Instance issued a decision specifying that the order would be enforced on 8 October 2009, if need be, by means of a forcible transfer of custody.
32. On 8 October 2009 V.K. refused to surrender the children, who, apparently, also resisted the transfer. The BSCC representative proposed that a forcible transfer of custody be postponed and the judge accepted to do so.
33. On 23 October 2009, when the enforcement was to be attempted again, V.K. proposed that it be adjourned until the court had decided on his request for custody (see paragraphs 36-38 below), or that an interim period be allowed, with the participation of a family psychologist, to help the children to adapt to the new situation. The BSCC representative also suggested that a transitional period be allowed before the enforcement. The applicant insisted on the enforcement. The house was searched, but the children were not found. The applicant was invited to submit a proposal as to how the judgment could be further enforced as well as to inform the court on her possibility to provide the necessary labour force for the enforcement (“eventualnog obezbjeđenja potrebne radne snage”). At the same time, the police were invited to establish the whereabouts of the children.
34. On 30 November 2009, during another attempt at enforcement, the children refused to go with the applicant, claiming that she had not treated them properly. After V.K.'s parents, who had resisted the enforcement, were removed, the judgment was enforced and the children were finally surrendered to the applicant.
35. The applicant maintained that as of 5 January 2005 until 30 November 2009 she had only had sporadic and brief contact with her children, mostly in-between school classes and, even then, in the presence of V.K. or his father.
36. On an unspecified date V.K. instituted a new civil complaint, seeking sole custody of the children.
37. On 1 June 2009 the Court of First Instance ruled in his favour and ordered the applicant to pay monthly child maintenance. In so deciding, the court took account of an informal conversation that an expert psychiatrist had had with the children. The psychiatrist's conclusion was that A and B wanted to live with their father, that it would be stressful for them to be taken away from their present home, but that their mother needed to be allowed regular access. When specifically asked whether the children had been negatively directed towards their mother by their father, the expert responded by saying that “it [was] obvious that the children had been negatively directed towards their mother by an adult person”. The court noted that the children had been living with their father, contrary to the final judgment rendered in 2006, but that they had adapted to it and liked it. Finally, the court concluded that “the factual situation [had] lasted for far too long” and that it was in the children's interest to verify the situation.
38. On 15 September 2009 the High Court in Podgorica quashed this judgment and remitted the case to the Court of First Instance.
39. On 16 February 2007 V.K. was found guilty of domestic violence, the victim being the applicant, and was sentenced to three months in prison, suspended for a period of two years. On 28 June 2007 the High Court in Podgorica overturned that judgment and dismissed the charges as the criminal prosecution had become time-barred.
40. On 7 December 2007 the Court of First Instance in Kotor acquitted V.K. of charges of child abduction (oduzimanje maloljetnog lica) concluding that “[...] although the said acts of the accused contained all the elements of the criminal offence he had been charged with, the said offence represented an act of minor significance”. On 28 May 2008 the High Court in Podgorica upheld that judgment and it thereby became final.
41. The relevant provisions of the Constitution read as follows:
Article 149
“The Constitutional Court shall ...
(3) ... [rule on a] ... constitutional appeal ... [filed in respect of an alleged] ... violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted ...”
42. This Constitution entered into force on 22 October 2007.
43. The relevant provision of the Constitutional Court Act read as follows:
Article 48
“Constitutional appeal can be filed against an individual decision of a state body [...] for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted.”
44. Articles 49-59 provide additional details as regards the processing of constitutional appeals.
45. This Act entered into force on 4 November 2008.
46. Relevant provisions of this Act read as follows:
Article 2 § 1
“The party and the intervener in civil matters [...] shall have the right to judicial protection in the event of violation of the right to trial within a reasonable time [...].”
Article 3
“Legal remedies for the protection of right to trial within a reasonable time shall be:
Request to accelerate the proceedings (hereinafter referred to as the request for review);
Action for fair redress.”
Article 17
“If the judge notifies the president of the court that certain procedural measures will be undertaken ... no later than four months after the receipt of the request for review, the president of the court shall notify the party thereof and thus finalise the procedure upon the request for review.”
Article 23 § 1
“If the president of the court acted pursuant to Article 17 [...], the party cannot file another request for review in the same case before the expiry of the period specified in the notification [...].”
Article 24 § 1
“If the president of the court [...] does not deliver [...] notification on the request for review to the party [...] pursuant to Article 17 the party may lodge an appeal [...].”
Article 31
“Fair redress for the violation of the right to trial within a reasonable time may be realised by:
payment of monetary compensation for the damage caused by the violation of the right to trial within a reasonable time, and/or
by publishing the judgment that the right of the party to a trial within a reasonable time has been violated.”
Article 33 § 3
“The action [for fair redress] ... shall be filed with the Supreme Court no later than six months after the date of receipt of the final and legally binding decision on the request for review within the procedure of enforcement of the decision.”
Article 40
“The Supreme Court shall be obliged to make a decision on the action no later than four months after the date of receipt of the action.”
Article 44
“This Act shall apply also to judicial proceedings instituted before the entry into force of this Act but after 3 March 2004.
In cases referred to in paragraph 1 above, in the determination of a legal remedy for violations of the right to trial within a reasonable time, the violations of the right which occurred after 3 March 2004 shall be established.
When establishing the violation of the right referred to in paragraph 2 above, the Court shall also take into consideration the length of the judicial proceedings prior to 3 March 2004.”
47. This Act entered into force on 21 December 2007, but contained no reference to the applications involving procedural delay already lodged with the Court.
48. Between 1 January 2008 and 30 September 2009 the courts in Montenegro considered one hundred and two requests for review. Two requests were withdrawn and eight were being examined. In the same period, twenty-two actions for fair redress were submitted, out of which sixteen actions were dealt with and six were still being examined. In one case the courts awarded the plaintiff non-pecuniary damages for the length of civil proceedings.
49. Four of the requests for review, among the copies provided by the Government, concerned the length of enforcement proceedings. In two cases the plaintiffs were informed that the proceedings would be terminated within the next four months. There is no information in the provided documents as to whether these time-limits were complied with. In one case it is unclear whether the enforcement was not undertaken due to some prior obligations of the parties, and in another case the judge notified the plaintiff that the enforcement had since taken place.
50. In no case have the plaintiffs attempted to file an appeal following notifications rendered in accordance with Article 17 of the Act.
51. With regard to the case-law, following the action for fair redress, there were two such actions, among the provided copies, in which the plaintiffs had sought redress due to the length of enforcement proceedings. One was declared inadmissible because the plaintiff had not previously made use of a request for review, and the other was rejected as premature as the plaintiff had filed his action before the expiration of the time-limit set in the notification.
52. Article 68 of this Act provides that, after obtaining the opinion of the SCC, the court shall decide who will be granted custody of the children, if there is no agreement between the parents in that respect. Exceptionally, the court can also decide on the child's contact with a parent who has not been granted custody if the other parent prevents him/her from seeing the child. The court shall change these decisions if the circumstances so require.
53. Article 333 provides that in proceedings relating to the custody of children, the court shall ex officio decide on interim measures for the protection and living arrangements of the children.
54. Article 343 provides for urgency in forcible enforcements and the need to protect children as much as possible. If the enforcement cannot be achieved through fines, children shall be taken and given to the parent who was granted custody.
55. This Act entered into force on 1 September 2007, thereby repealing the Family Law Act 1989. Article 375, however, provides for an identical provision with regard to forcible enforcement, as per the previous Act.
56. Article 4 § 1 provides that the enforcement court is obliged to proceed urgently.
57. Under Article 47, if needed, the bailiff may request police assistance; should the police fail to provide such assistance, the enforcement court shall inform the Minister of Internal Affairs, the Government, or the competent parliamentary body.
58. Articles 224-227 contain, inter alia, provisions relating to the enforcement of final child custody judgments.
59. Article 225, while placing special emphasis on the best interests of the child, provides, in particular, that there shall be an initial period of three days for voluntary compliance with a child custody order. Beyond that, however, fines should be imposed and, ultimately, if necessary, the child should be taken forcibly by the court, in co-operation with the Social Care Centre.
60. Pursuant to Article 7 § 1 the police are obliged to assist other State bodies in the enforcement of their decisions if there is physical resistance or such resistance may reasonably be expected.
VIOLATED_ARTICLES: 8


ITEMID: 001-97621
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KHAMETSHIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-3-d
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1972 and lives in Yaroslavl.
6. On 23 June 2002 the applicant tried to smuggle alcohol to his friends, who were detained in prison. When police officers Mr S. and Mr A. tried to arrest him he apparently resisted the arrest. Subsequently, the applicant was accused of assaulting officer S.
7. In October 2002 the applicant was charged with violence against a public official. The investigator in the Zavolzhskiy district prosecutor's office of Yaroslavl noted in his decision that the applicant had committed an administrative offence of smuggling prohibited goods to detainees; he had resisted lawful arrest during the commission of that offence; the latter act constituted a criminal offence punishable under Article 318 of the Criminal Code. The investigator's decision also contained a list of procedural rights under Article 47 of the Russian Code of Criminal Procedure (see paragraph 20 below). It appears that the applicant was given a copy of the above decision.
8. During the preliminary investigation, officer S. explained that on 23 June 2002 when together with officer A. he was patrolling in the vicinity of the prison they had noticed the applicant and two other persons throwing certain objects over the prison wall. When they had attempted to arrest them, the applicant and others had assaulted them and tried to escape. Officer A confirmed his fellow officer's statement.
9. The applicant disagreed with their version of the events and claimed in essence that the police officers had been drunk and had beaten him up and shot his friend.
10. At the trial, on 5 November 2002 the applicant made a written statement declining the services of his counsel. He declared that this waiver was not based on any “financial considerations” and that he would continue to ensure his own defence. The hearing was adjourned because certain witnesses, including officers S. and A., had not answered the court summons.
11. Thereafter, the trial court received a note of a telephone conversation between the court registry and A.'s grandmother. The latter explained that Mr A. had resettled to Moscow for permanent residence; that she had informed him on 5 November 2002 about the court summons and that he had asked her to inform the court that he maintained his earlier statement and could not attend the trial because his wife was about to be admitted to a maternity hospital.
12. On 11 November 2002 the trial judge received a note of a telephone conversation between the court registry and investigator M., who informed the judge that Mr A. had reportedly moved to the Moscow Region without giving his new address; Mr S. was still an officer and was living at the same address.
13. On 15 November 2002, noting the officers' absence, the trial judge enquired with the parties as to the admission in evidence of the officers' pre-trial statements. As can be seen from the trial verbatim record, both the prosecutor and the applicant consented to the reading out of the officers' pre-trial statements.
14. The court also referred to the statements from the prison guard Mr P., who had been on duty that day and had seen several persons throwing certain objects over the prison wall. The court also heard guard K., who had been patrolling at the territory of the prison and had seen the bottles being thrown over the prison wall. According to two medical reports, Mr S. and Mr A. were sober on 23 June 2002 and Mr S. had various injuries on his body. During a pre-trial identification, he had pointed to the applicant as his assailant.
15. The court rejected as unreliable the applicant's version of the events, which was supported by three witnesses on his behalf. The court also dismissed the fourth witness's allegation that one of the officers had been drunk on 23 June 2002.
16. By a judgment of 18 November 2002, the Zavolzhskiy District Court of Yaroslavl convicted the applicant as charged and sentenced him to three years and six months' imprisonment.
17. The applicant appealed contending that the court had not given a proper weight to the fact that despite the summons Mr S. and Mr A. had not appeared before the trial court and thus had not been examined at the trial.
18. On 14 January 2003 the Yaroslavl Regional Court upheld the judgment in the following terms:
“The court rightly founded the judgment on the testimonies by S. and A. because those testrroborated by other evidence presented in the judgment, such as the medical report indicating that S. had [injuries], P.'s statement..., K.'s statement...The reference to the failure of S. and A. to appear before the court on the summons is not a valid reason for annulment of the judgment because the court obtained the parties' opinion on the possibility of reading out their depositions in view of their absence from the trial; [the applicant] did not object to the reading out...”
19. In 2003 the Regional Court dismissed the applicant's request for supervisory review of the above judgments. In 2007 the Prosecutor of the Yaroslavl Region applied for supervisory review, considering that there was no corpus delicti and that there was no case to answer against the applicant. On 25 October 2007 the Acting President of the Regional Court dismissed the prosecutor's application and refused leave to supervisory review.
20. Under Article 47 § 3 of the CCrP, a defendant has a right to adequate time and facilities for the preparation of his defence. Article 47 § 4 contains a list of procedural rights, including a right to legal assistance and to free legal representation in certain circumstances, a right to participate in hearings before first-instance and higher courts, to have access to the trial record and to lodge comments on it. During the first interview the defendant should be informed of the above procedural rights (Article 47 § 6).
21. All evidence should normally be presented at a court hearing during which the court should hear statements from the defendant, victim, witnesses and so on and examine physical evidence (Article 240). The reading of pre-trial depositions should only be allowable under Articles 276 or 281 of the Code (ibid).
22. Under Article 281 § 1 of the Code, in its version before 10 July 2003, the reading out of earlier statements made by the victim or witness was allowable if the parties gave their consent to it and if (i) there were substantial contradictions between the earlier and the later statements, or (ii) the victim or witness had not appeared before the trial court.
23. Sitting as a court of appeal in a criminal case examined by the first-instance court in 2003, the Supreme Court interpreted Article 281 as requiring consent from both parties only when it was the intention of the trial court ex officio to read out a pre-trial statement rather than a request from one of the parties (Appeal decision no. 3-74/03 of 19 February 2004).
24. In its admissibility decision of 27 October 2000 (no. 233-O), the Constitutional Court held that the reading out of pre-trial depositions should be considered as an exception to the court's own assessment of evidence and should not upset the procedural balance between the interests of the prosecution and those of the defence. If a party insists on calling a witness whose testimony may be important to the case, the court should take all available measures to ensure this witness's presence in court. When that witness is available for questioning, the reading out of his or her deposition should be considered inadmissible evidence and should not be relied upon. However, when the witness is not available for questioning, the defence should still be provided with appropriate procedural safeguards such as challenge to the read-out deposition, a request for challenge by way of examining further evidence, as well as pre-trial face-to-face confrontation between that witness and the defendant when the latter was given an opportunity to put questions to the former (see also the admissibility decision of 7 December 2006 (no. 548-O)).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-5927
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BEGHI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1967 and living in Milan. He is represented before the Court by Mr and Mrs Bonzio, lawyers practising in Milan.
The applicant is the owner of an apartment in Milan, which he had let to C.P.
In a registered letter of 22 November 1995, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 29 June 1996 and asked him to vacate the premises by that date.
On 17 May 1996, he served a notice to quit on the tenant, but he refused to leave.
In a writ served on the tenant on 18 June 1996, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
By a decision of 18 June 1996, which was made enforceable on the same day, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 June 1997.
On 2 July 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
On 9 July 1997, the applicant served notice on the tenant requiring him to vacate the premises.
On 18 July 1997, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 15 September 1997.
Between 15 September 1997 and 16 October 1998 the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 21 December 1998, after having reached a friendly agreement with the tenant, the applicant recovered possession of the apartment.


ITEMID: 001-24017
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BEREZOVSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Zoryana Bortnovska
TEXT: The applicant, Mr Yuriy Alekseyevich Berezovskiy, is a Ukrainian national, who was born on 19 October 1937 in the Donetsk Region and lives in Yevpatoria, the Crimea. He is a retired officer of the prosecution service of Ukraine. The respondent Government were represented by their Agents, Ms Valeria Lutkovska, succeded by Ms Zoryana Bortnovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1964 the applicant commenced work in the prosecution service. On 22 March 1996 the applicant retired from the position of prosecutor-criminologist in the Department of Criminology of the Prosecution Service of the Crimea. However, he was re-appointed and continued working there until 1 January 1999. On that day he voluntarily retired. As from 22 March 1996 he started to receive his pension, calculated on the basis of Article 50-1 of the Law on the Prosecution Service and his years of service.
As from 1 July 1999, the Decree of the President of 16 April 1999 provided for a pay rise for the prosecution service employees in accordance with their respective ranks. The pay rise was given effect by two resolutions of the Cabinet of Ministers of 16 November 1999 and 13 December 1999.
In March 2000 the applicant applied to have his pension recalculated. On 4 April 2000 the Yevpatoria City Department for Social Protection refused to re-calculate the applicant's pension with reference to the applicant's period of work between 1996 and 1999. It based its decision on a letter, dated 7 March 2000, of the Ministry of Labour and Social Policy (No. 01-3/329-02-06), which provided inter alia that the Law on the Prosecution Service did not envisage the recalculation of pensions following a pay rise. The decision stated that there was no specific resolution of the Cabinet of Ministers dealing with the recalculation of pensions in the event of an intervening pay rise.
The applicant complained about this decision to the Ministry of Labour and Social Policy (“the Ministry”) in the Crimea. On 7 April 2000 the Ministry rejected the applicant's complaint, maintaining that the law did not provide for a recalculation of his pension. It also referred to a recommendation by the Supreme Court in a letter dated 5 June 2000 (No. 1-4/229). The Supreme Court recommended to the lower courts that the Decree of the President of 16 April 1999 and the Resolution of the Cabinet of Ministers of 13 December 1999 on pension recalculations were not applicable to persons who had became pensioners under Article 50-1 of the Law on Prosecution Service.
On 17 April 2000, the applicant instituted proceedings in the Yevpatoria City Court against the decision of the Yevpatoria City Department of Social Protection refusing him a higher pension. On 7 August 2000, the Yevpatoria City Court rejected his claims as being unsubstantiated, referring to the letter-recommendations of the Supreme Court of 18 May and 5 June 2000. In particular it held that:
“... The court has established that, Berezovskiy Y.A., a former employee of the prosecution service, being a pensioner, applied to the Department of Social Protection to have his pension recalculated. He maintained that, since the salaries of the prosecution service employees were to be increased in accordance with the Decree of the President of Ukraine, his pension should thereby be recalculated. The Department of Social Protection refused to recalculate his pension, grounding its decision on the absence of a special resolution of the Cabinet of Ministers in this connection. The Law of Ukraine on the Prosecution Service does not provide for a recalculation of a pension because of a raise in salaries. Since the Department of Social Protection acted in accordance with the explanations of the judicial bodies, the complaint of Berezovskiy against its actions is therefore unsubstantiated ....”
On 14 August 2000 the applicant lodged a cassation appeal against this decision. On 11 September 2000, the Supreme Court of the Crimea upheld it. In particular, it stated that:
“Having considered the case file, and having discussed the applicant's complaints set out in his cassation appeal and heard the explanations of Berezovskiy Y.A., the judicial chamber holds that it has no basis on which to allow his claims. The decision is in conformity with the legislation and evidence established in the course of the proceedings in the case.
In adopting its judgment, the court took into account that the applicable legislation, including the Law on the Prosecution Service, does not provide for a recalculation of pensions on account of changes to the salaries of prosecution service employees who retired from the service.
The applicant's complaints that the court decision was adopted on the basis of non-established factual circumstances and did not conform to legislation are unsubstantiated. The evidence was assessed in accordance with Article 62 of the Code of the Civil Procedure of Ukraine and there is no basis on which to declare the judgment erroneous.
The court's judgment is correct and substantiated. There are no grounds to annul this judgment.
As to the recommendations of the judicial bodies, the judicial chamber considers it necessary to exclude from the judgment of the court the reference to ... the letter of the Supreme Court of Ukraine with regard to this issue... as not being based on the law.
Resolves
To leave the decision of the Yevpatoria City Court of 7 August 2000 unchanged, and reject the complaints of Berezovskiy Y.A.
To exclude from the statement of reasons of the judgment the opinion and the reference of the court, with respect to the claim of Berezovskiy Y.A., to the recommendations of the Supreme Court of Ukraine to the judicial bodies,...”
The applicant complained about this decision to the Ministry of Labour and Social Policy of Ukraine. On 7 December 2000 it rejected the applicant's complaint, maintaining that the law did not provide for a recalculation of his pension. It also referred to a recommendation by the Supreme Court in a letter dated 5 June 2000 (No. 1-4/229). The Supreme Court recommended to the lower courts that the Decree of the President of 16 April 1999 and the Resolution of the Cabinet of Ministers of 13 December 1999 on pension recalculations were not applicable to persons who had became pensioners under Article 50-1 of the Law on Prosecution Service. It also referred to the letter-recommendation of 18 May 2000.
On 10 February 2001 the applicant wrote a letter to the Ministry of Justice [The Ministry of Justice of Ukraine is responsible for the registration of the legal acts of the bodies of State power] with regard to the legal validity of the recommendations of the Supreme Court as to the recalculation of his pension. On 20 March 2001 the Ministry of Justice responded that letters recommending certain courses of action, issued by State institutions, are not registered by the Ministry, since they are merely legal explanations pertaining to a particular matter.
On 16 October 2001 the applicant requested the Yevpatoria City Department of the Pension Fund to recalculate his pension since the entry of the Law of Ukraine “on the Introduction of changes to the Law on the Prosecution Service of 12 July 2001”.
On 17 October 2001 the Department of the Pension Fund recalculated his pension. He started to receive an increased pension of UAH 1,046.62.
On 15 July 2002 the Department of the Pension Fund recalculated the applicant's pension again due to the entry into force of the Decree of the President of Ukraine of 16 April 1999 and the internal normative acts of the General Prosecution Service. His pension was, accordingly, raised to UAH 1,347.18.
“Citizens have the right to social protection that includes the right to a provision in cases of complete, partial or temporary disability, the loss of the principal wage-earner, unemployment due to circumstances beyond their control, and also old age, and in other cases established by law.
This right is guaranteed by general mandatory State social insurance on the basis of the insurance payments of citizens, enterprises, institutions and organisations, and also from budgetary and other sources of social security, by the establishment of a network of State, communal and private institutions to care for persons incapable of work.
Pensions and other types of social payments and assistance, that are the principal sources of subsistence, shall ensure a standard of living not lower than the minimum living standard established by law.”
“... the time-in-service pension shall include the relevant postholder's salary, bonuses for the post occupied, time-in-service, and also other payments in accordance with Article 66 of the Law on Pensions.”
“Prosecutors and investigators with work experience of not less than 20 years, including those with work experience in the position of prosecutors and investigators of not less than 10 years, have the right to a pension for the time-in-service irrespective of their age...
Pensions assigned to employees of the prosecution service shall be recalculated following any increase in the salary of the relevant categories of prosecution officers and investigators. ... The provisions of this Article extend to retired employees of the prosecution service who, before the entry into force of this law, were assigned an old age pension, time-in-service pension or disability pension ..., irrespective of the time when they became pensioners, only work experience being taken into account, as required by this Article. ...” (This Law was amended by Article 50-1, in accordance with Law No. 3662-12 of 26.11.93, and Law No. 2663-III (2663-14) of 12.07.2001.)
This Law provided for the recalculation of pensions if a pay rise intervened (Article 69 of the Law).
Both texts envisaged pay rises for employees of the prosecution service as of 1 December 1999.
This recommendation, by way of a letter issued to the Presidents of the regional courts, stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with Article 50-1 of the Law on the Prosecution Service.
This recommendation, by way of a letter given to the Ministry of Labourg and Social Policy, stated that the recalculation of pensions shall not cover former employees of the prosecution service who received pensions in accordance with Article 50-1 of the Law on the Prosecution Service.
The applicant provided the Court with decisions in the cases of former prosecution service officers whose pensions were recalculated following judgments in their favour:
– a ruling from the Kyiv City Court of 15 November 2000 on the claim of Lenchevskiy F.S.;
– a ruling from the Kyiv City Court of 15 November 2000 on the claim of Buravliov I.I.;
– a decision from the Saky City Court of 26 April 2000 on the claim of Grechikhin V.F.;
– a decision from the Oktiabrsky City Court of Poltava of 21 April 2000 and the ruling of the Poltava Regional Court of 25 May 2000 upon the claim of Pleskach V.G; and
– a decision from the Yevpatoria City Court of 4 May 2000 upon the claim of Maslov I.V. (This judgment was quashed by the Supreme Court of the Crimea on 12 July 2000).
The applicant alleged that, in all of these cases, the claimants requested the recalculation of their pensions in view of the changes to the legislation concerning the salaries of prosecution service employees. He further maintained that their claims were allowed.
The Government provided the Court with decisions in cases of former prosecution service employees whose claims for recalculated pensions were rejected as the legislation did not provide for such adjustments:
– a ruling from the Supreme Court of 4 September 2002 given by a chamber of 15 judges on the claim of Tyurin G.O.;
– a judgment of 25 January 2002 from the Chervonozavodsky District Court of Kharkov on the claims of Yurchenko B.T.;
– judgments of 24 July 2001 from the Chernigiv Regional Court of Appeal and the Desniansky District Court of Chernigiv of 21 March 2001 on the claims of Trofimov V.I.;
– a judgment of 2 July 2001 from the Darnytsky District Court of Kyiv on the claims of Doronkin Y.Y.;
– judgments of 11 June and 14 May 2001 from the Lviv Regional Court and the Galytsky District Court of L'viv on the claims of Yoffe M.A.;
– a judgment of 28 May 2001 from the Leninsky District Court of Kirovograd on the claims of Solonchenko O.D.;
– a judgment of 14 May 2001 from the Minsky District Court of Kyiv on the claims of Prykhodko O.F.;
– a ruling of 4 April 2001 from the Chernivtsi Regional Court and the judgment of 2 March 2001 from the Pershotravnevy District Court of Chernivtsi on the claims of Shkirko A.O.;
– a ruling of 4 December 2000 from the Donetsk Regional Court and the judgment from the Dzerzhinsky District Court of Donetsk Region on the claims of Lobayev A.A.;
– a ruling of 2 November 2000 from the Khmelnytsk Regional Court and the judgment from the Khmelnytsk City Court of 12 October 2000 on the claims of Ionova G.F.;
– a ruling of 6 September 2000 from the Chernivtsi Regional Court and the judgment from the Gertsayev City Court of 27 July 2000 on the claims of Kuchuk P.D.;
– a ruling of 12 July 2000 from the Supreme Court of the Crimea, rejecting the claims of Maslov I.V. for the recalculation of his pension, and quashing the judgment from the Yevpatoria City Court of 4 May 2000;
– a judgment of 7 June 2000 from the Leninsky District Court of Chernivtsi on the claims of Gordyushov P.T.;
– a ruling of 31 May 2000 from the Supreme Court of the Crimea on the claims of Zmeykina N.S.; and
– a ruling of 25 May 2000 from the Donetsk Regional Court and the judgment of 4 April 2000 from the Krasnolymansky City Court of the Donetsk Region on the claims of Valyk V.I.


ITEMID: 001-59527
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF BECK v. NORWAY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6
JUDGES: Nicolas Bratza
TEXT: 8. In the autumn of 1985 the applicant, together with three associates, started a business involving lactic cultures, purportedly for use in the cosmetic industry. It consisted of two limited liability companies, founded respectively in August and December 1985 and named Cosmesin Laboratorieprodukter A/S (“Cosmesin”) and Geneve A/S (“Geneve”). According to the Norwegian courts’ findings in the proceedings referred to below, the business was a fraudulent pyramid scheme by which Cosmesin purchased from a producer in Denmark freeze-dried concentrates of lactic acid bacteria at 100 Norwegian kroner (NOK) per bag (containing 0.5 grams), resold them to Geneve at NOK 240 per bag, which again sold them at the price of NOK 330 per bag to cultivators whom it had recruited, and after 15 weeks bought the cultivated products back at the price of NOK 625. The number of producers increased from 4 at the end of 1985 to 3,205 at the end of January 1987. Payments were made to a company in London. No goods containing the cultivated substances were ever marketed or produced. As of November 1986, the companies stopped bookkeeping.
9. On 27 January 1987 the Consumer Ombudsman (Forbrukerombudet) filed a complaint with the Director General of Public Prosecutions (Riksadvokaten) against Geneve and Cosmesin for defrauding several thousand persons who had invested in products from Geneve. The companies went into bankruptcy in February 1987. Between February and April 1987 the police received 335 complaints from cultivators in various parts of Norway. Further complaints were made in January 1988 and January 1989 respectively by a major bank and the tax authorities.
10. On 29 January 1987 the police interviewed the applicant as a witness, because of his role in the companies. On 30 January 1987 the police carried out searches of premises and confiscations. Such measures, including interviews of the persons involved, continued in February. On 20 February 1987 the applicant was arrested but then released on certain conditions. He then moved to Switzerland and, by a letter of 4 December 1987, his lawyer informed the police of his Swiss address and his preparedness to go to Oslo to meet police investigators if necessary.
Throughout 1987 investigations were conducted in Denmark, Sweden and England concerning the companies’ business connections and investments. In April 1989 the police held meetings with Swedish and English police authorities. In October 1991 and April 1992 the police interviewed 12 cultivators.
On 29 February 1988 the Probate Court (skifteretten) received the final report from the administrators of the estates of Cosmesin and Geneve. On 26 January 1989, the police received the tax authorities’ report on the tax and value-added tax (“VAT”) offences.
11. After the initial interviews mentioned above, one of the two leading figures in the criminal activity concerned, Mr D.R., disappeared. In November 1987 a search for him with an arrest warrant was made via Interpol. On 7 November 1990 he was arrested by the Spanish police. The Norwegian authorities requested his extradition on 23 November 1990. On 8 July 1991 he was released from custody in Spain, subject to a duty to report to the police. In early February 1992 he was extradited to Norway.
12. Following the issuing of indictments in August 1989, the case was submitted to the Oslo City Court on 4 September 1991.
13. On 19 February 1992 the City Court fixed 5 October 1992 for opening the trial hearing, rather than the earlier date of 22 April 1992, to which objection had been made by defence counsel, whilst accepted by the prosecution.
14. In the final indictments issued on 17 March 1992, the applicant was charged with the offences of serious fraud in relation to amounts totalling approximately NOK 25,000,000 (Articles 270 and 271 of the Penal Code), unlawfully drawing up cheques – in amounts totalling almost NOK 4,500,000 – on behalf of an insolvent company (Articles 285 and 288 of the Penal Code), and having disregarded statutory obligations relating to bookkeeping and the provision of information to the authorities relevant to VAT payments, with the resultant evasion of approximately NOK 3,500,000 (Article 286 of the Penal Code and section 72 of the VAT Act 1969 – merverdiavgiftsloven).
After holding a hearing over 20 days in October and November 1992, the City Court, by a judgment of 19 November 1992, convicted the applicant of all but the VAT charges, and sentenced him to 2 years’ imprisonment.
As regards sentencing, the City Court noted from the outset that the offences for which the applicant was convicted were punishable by up to 9 years’ imprisonment. It further stated that general considerations of crime prevention suggested that economic offences of the kind at issue warranted a severe penalty. As it appears from its reasoning, the City Court found the defendants’ conduct particularly reprehensible and emphasised that the suffering which they had caused to innocent cultivators must be viewed as an aggravating factor in sentencing. The City Court then went on to consider the question of mitigation, having regard to the following three factors:
“With the exception of D.R., the accused were of a young age at the time of the commission of the proscribed conduct. ... There were thus important years for settling down which elapsed between the criminal acts and judgment in the case.
Furthermore, the Court attaches some weight, albeit not a great deal, to the fact that the offences were committed at a time when banks were somewhat uncritical about giving loans. ... In the court’s view, had greater caution been displayed, the pyramid scheme would have been revealed earlier.
Finally the court attaches weight, to a not insignificant degree, to the fact that a long time has elapsed since the acts were committed. The prosecution transmitted the case to the Oslo City Court in December 1991 and final investigations concerning one aspect of the case as important as the value of the cultivators and their possible use went on as late as the first semester of 1992. Although it is correct that D.R. stayed abroad over long periods, the court could not see how this could justify the delays in the investigations. It is understood that the delays in the investigation were caused by a change of investigators in the case.
Notwithstanding that weight must be given to the long time that has elapsed since the acts were committed, the court finds that the sentencing must be severe.”
Two other co-defendants, including Mr D.R., who were considered to have played a more prominent role in the proscribed activity, were sentenced to 3 years’ imprisonment.
15. On 28 December 1992 the applicant sought to appeal to the Supreme Court, alleging a procedural error in the first instance proceedings and requesting a new trial. On 29 April 1993 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) admitted the appeal in as far as it concerned the procedural matter.
In the proceedings before the Supreme Court the applicant in addition asked for a reduction in sentence. After taking evidence on 14 December 1993 and holding a hearing on 6 September 1994, the Supreme Court rejected the appeal on 13 September 1994. As regards sentencing, it recalled that the City Court had taken into consideration as a mitigating circumstance the long time which had elapsed since the incriminated conduct. The Supreme Court held that, although more time had elapsed since the City Court’s judgment, it saw no reason for reducing the sentence.
16. The Code of Criminal Procedure (Act of 26 May 1981 No. 25), Chapter 18 on Criminal Investigation, contains the following provisions:
Article 226
“The purpose of the investigation is to obtain the necessary information for deciding whether an indictment should be preferred, and to serve as preparation for the trial of the case. ...
If a specific person is under suspicion, the investigation shall seek to clarify both the evidence against him and the evidence in his favour.
The investigation shall be carried out as rapidly as possible and in such a way that no one is unnecessarily exposed to suspicion or inconvenience.”
Article 249
“The question of preferring an indictment shall be decided as soon as the case is sufficiently prepared for this purpose.”
17. In the proceedings before the Court, the Government drew attention to certain case-law of the Norwegian Supreme Court, according to which a 64-year-old man had been sentenced to 8 years’ imprisonment for gross fraud and gross embezzlement totalling NOK 5 ,000,000 (Norsk Retstidende – “Rt”1964, p. 773); a man without a previous criminal record had been sentenced to 6 years’ imprisonment for economic crimes, including gross fraud, amounting to NOK 100,000,000 (Rt 1990, p. 641); a person had been sentenced to 4 years and 6 months’ imprisonment for gross fraud amounting to NOK 9,500,000 (Rt 1992, p. 106), and a person had been sentenced to 3 years’ imprisonment for gross fraud amounting to NOK 1,200,000 with respect to over 20 victims (Rt 1992, p. 1016).
The applicant drew the Court’s attention, inter alia, to Supreme Court rulings in which a lawyer’s secretary had been sentenced to 1 year and 4 months’ imprisonment for gross fraud and embezzlement with respect to NOK 1,100,000 (Rt 1995, p. 1962) and another decision where two men, aged 43 and 28, with previous criminal records, had been sentenced to 8 months’ imprisonment for gross tax fraud amounting to NOK 1,500,000 (Rt 1995, p. 250).
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-97271
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SYNGELIDIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;Flogaitis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Spyridon Flogaitis
TEXT: 5. The applicant was born in 1957 and lives in Athens. He is a businessman, who married M.A. on 20 September 2003. At the time of their marriage M.A. was already a member of the Greek parliament (MP). On 24 March 2004 their son was born.
6. At the end of 2004 the applicant's marriage broke down. It was pronounced dissolved by mutual consent by the Athens Court of First Instance on 7 July 2005.
7. The applicant and M.A. concluded an agreement on 14 December 2004 resolving issues of custody and access in relation to their son. These arrangements were endorsed by a formal decision of the Athens Court of First Instance of 20 January 2005 (decision no. 528/2005). In particular, M.A. was to have custody of the child until he came of age, and he was to live with her. The applicant was entitled to open access to his son, subject to the child's needs, and certain minimum periods and days of contact were specified. In fact, he was entitled to see his son every day between 5 p.m. and 8 p.m.
8. On a number of occasions the applicant was unable to have contact with his son in accordance with the provisions of the court's order.
9. On 20 October 2005 the applicant lodged an indictment with the prosecutor of the Athens Court of First Instance based on Article 232A of the Criminal Code. He requested the sum of ten euros by way of nominal compensation for the non-pecuniary damage which M.A.'s breach of decision no. 528/2005 had caused him, reserving his right to seek further compensation before the civil courts.
10. On 24 August 2006 the prosecutor of the Athens Court of First Instance referred the indictment to the prosecutor of the Supreme Court. The matter was referred to the Minister of Justice on 30 August 2006 for onward transmission by him to the President of the Greek parliament, so that leave of Parliament to bring the proceedings could be sought under Article 62 of the Greek Constitution. The file was received by Parliament on 3 October 2006.
11. On 28 November 2006 the Parliament's Ethics Committee gave the opinion that M.A.'s immunity should not be lifted. In its report the Committee considered that “one of the grounds provided for by Article 83 § 3 of Parliament's Regulations applied in this case”.
12. On 6 December 2006, by a majority of 107 votes to 68 following a secret ballot, Parliament, sitting in plenary session, refused to grant leave. No reasons were given for its decision.
13. In the meantime, on 31 March 2005, M.A. had brought criminal proceedings against the applicant for placing a security guard outside her building after having allegedly received telephone calls threatening him and his family. These proceedings were subsequently dismissed both at first instance and on appeal.
14. On 20 December 2005 the Athens Court of First Instance varied the custody arrangements. The court's order made specific provision for the payment of a 1,000-euro fine by M.A. should she breach any of its provisions (decision no. 9599/2005). M.A. has allegedly consistently failed to comply with these revised arrangements. On 20 March 2007 and 26 March 2007 the applicant lodged two further indictments with the prosecutor of the Athens Court of First Instance following alleged breaches of the court's decision. The applicant again sought compensation for non-pecuniary damage.
15. On 9 May 2007 the prosecutor of the Athens Court of First Instance referred the indictment dated 26 March 2007 to the prosecutor of the Supreme Court. The matter was referred to the Minister of Justice on 22 May 2007 for onward transmission by him to the President of the Greek Parliament, so that leave of Parliament could be sought under Article 62 of the Greek Constitution. On 22 May 2008 the Parliament's Ethics Committee decided that the request should be rejected without being placed before the full Parliament for consideration, on the basis that the request for waiver of immunity was substantially the same as the first request.
16. The relevant parts of the Greek Constitution provide:
“1. The members of parliament shall be elected for a term of four consecutive years, commencing on the day of the general elections...”
“1. A member of parliament shall not be prosecuted or in any way interrogated for an opinion expressed or a vote cast by him in the discharge of his parliamentary duties...
2. A member of parliament may be prosecuted only for libel, under the relevant law, after leave has been granted by Parliament...”
“During the parliamentary term members of parliament shall not be prosecuted, arrested, imprisoned or otherwise confined without prior leave granted by Parliament...
...No leave is required when members of parliament are caught in the act of committing a felony...”
17. The relevant parts of the Greek Criminal Code provide:
“Persons who are entitled, under the Civil Code, to compensation for damage for non-pecuniary harm and restoration of damage may join the criminal proceedings as civil parties”
“Anyone who intentionally fails to comply with a temporary order of a judge or court or with a provision of a court decision by which they are obliged to act or to refrain from acting...may be punished by up to one year's imprisonment...”
18. The relevant parts of the Greek Civil Code provide:
“Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused...”
“In the case of an unlawful act, the court may, irrespective of any award of compensation for pecuniary damages, award reasonable compensation ... for any non-pecuniary harm suffered...”
19. Articles 946 and 947 of the Civil Procedure Code also enable a court to punish non-compliance with a judgment or order by imprisonment or by a fine of up to 5,900 euros.
20. By virtue of Article 1048 of the Civil Procedure Code, a court may not order the imprisonment of a member of parliament during his or her mandate and for four weeks after the mandate expires.
21. Article 83 of the Regulations of Parliament provides as follows:
“1. Petitions by public prosecutors for leave to commence criminal proceedings against an MP under Article 61 § 2 and Article 62 § 2 of the Greek Constitution, having first been checked by the Supreme Court's prosecutor, shall be submitted to Parliament through the Minister of Justice and registered in a special book according to the order of their introduction...
...
3. Having heard the MP in respect of whom the lifting of immunity is sought, if he or she wishes to be heard... the relevant Committee shall examine, on the basis of the documents forming part of the request, whether the offence for which the lifting of the immunity is sought is related to the MP's political activity; whether the prosecution is politically motivated; or whether it is aimed at undermining the authority of Parliament or of the MP, or at obstructing, to a significant extent, the exercise of their functions, or at influencing the operation of Parliament or of the parliamentary group of which the MP is a member.
4. Within a fixed period set by the President of the Parliament, the Committee shall prepare a report without examining the veracity of the accusation...
...
5...after the Committee submits its report on the issue concerned, the petition shall be entered in the agenda of the Parliament in plenary session...
...
7. Parliament shall decide on the petition by means of a show of hands... The MP in respect of whom the lifting of immunity is sought, the presidents of the political parties or their substitutes if they wish, may give their opinion... Parliament may decide on the basis of a secret ballot if proposed by the President or by the president of the political party to which the MP belongs...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98184
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SKOBIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Ratko Škobić, is a citizen of Bosnia and Herzegovina and the Netherlands who was born in 1941 and lives in Rotterdam. The Government of Bosnia and Herzegovina (“the Government”) were represented by Ms M. Mijić, Agent, and Ms Z. Ibrahimović, Deputy Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
Prior to the dissolution of the Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicant deposited foreign currency in his five bank accounts at the then Jugobanka Sarajevo – Ekspozitura Bugojno and Privredna banka Sarajevo – Osnovna banka Bugojno (in what is today the Federation of Bosnia and Herzegovina) and Jugobanka Sarajevo – Filijala Banja Luka and Privredna banka Sarajevo – Osnovna banka Banja Luka (in what is today the Republika Srpska). In Bosnia and Herzegovina, as well as in other successor States of the SFRY, such savings are commonly referred to as “old” foreign-currency deposits (for the relevant background information see Suljagić v. Bosnia and Herzegovina, no. 27912/02, 3 November 2009).
In 1991/92 the balance in the applicant’s accounts (which included interest) was apparently in the region of 210,000 Dutch guilders (approximately 95,000 euros).
The applicant subsequently attempted to withdraw his savings on several occasions, but to no avail. It would appear that he has not obtained a verification certificate pursuant to the domestic legislation on “old” foreign-currency savings.
The relevant law and practice were outlined in Suljagić, cited above.


ITEMID: 001-96899
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: VAYSER v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Aleksey Vayser, is an Estonian national who was born in 1975 and lives in Tallinn. He was represented before the Court by Mr L. Olovjanishnikov, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a manager of B.E.I. Survey OÜ, a private limited company authorised to monitor the conformity of liquid fuels to applicable norms and to issue the pertinent certificates.
On 30 May 2003 Zh., who was interested in entering the liquid fuels business and explored the prices for their storage and certification, visited B.E.I. Survey OÜ and met the applicant. The latter gave Zh. a price list for the analyses performed by the company. According to Zh., the applicant told him that it was possible to issue certificates of conformity in respect of fuel that did not actually conform to the applicable quality standard if the fuel was to be sold in the countryside, in smaller places where there was no control. According to Zh., the applicant said that there would be “possibilities” if they could find a common language and that in such a case fuel samples could be brought by Zh. himself, otherwise a representative of the laboratory had to take the samples from the fuel tanks. The applicant told him that if he was not present he would be replaced by D., an expert in the company. Zh. agreed with the applicant that he would come the following week with the samples.
On 2 June 2003 Zh. reported to the police that conformity certificates for fuel not actually conforming to the applicable standard could be obtained from B.E.I. Survey OÜ. On the same day a criminal investigation was initiated into the suspected taking of bribes by the applicant and D. Zh. was interviewed as a witness and he agreed to co-operate with the police to simulate the offence of bribery.
On 3 June 2003 the chairperson of the Tallinn Administrative Court (halduskohus) authorised interception and undercover audio and video recording of conversations between Zh., the applicant and D., as well as simulation of the offence of bribery by Zh. in order to entrap the applicant. The authorisation was for a 15-day period and remained valid until 2 July 2003. It could be appealed against within 30 days.
On the same day the police officers took samples from fuel brought by Zh. According to him it was a mixture of fuels conforming and not conforming to the standards. A 1.5-litre plastic bottle with fuel was given to Zh. for the simulation of the offence.
In the afternoon of 4 June 2003 Zh. went to the applicant’s office and gave him the fuel sample for analysis, saying that he had 20 cubic metres of fuel on a truck and that customers who wished to buy it wanted to see a conformity certificate for it. Zh. and the applicant discussed the fee for the analyses; the applicant named different sums around 6,000 Estonian kroons (EEK; approximately 380 euros (EUR)), apparently on the basis of the price list. The applicant asked if Zh. wanted the true information about the quality indicators; Zh. replied in the affirmative adding that if anything did not match the applicant could give him a call. The applicant agreed. Zh. gave him EEK 3,000 (EUR 190) in cash without receiving an invoice.
The analyses in respect of the fuel were actually carried out by a laboratory of a different company, with the applicant’s company serving as intermediary.
In the evening of 4 June 2003 the applicant called Zh. and said that the results of the tests were not good and that several indicators were not in compliance with the applicable standard. He asked Zh. what he would propose and whether they would proceed. Zh. expressed certain doubts but then agreed with the applicant that the test results were not of substantial importance and added that the fuel would in any event be used in the countryside in tractors. They agreed to meet the next day.
On 5 June 2003 Zh. went to the applicant’s office. The applicant said that the analyses had been completed and that the results were bad. They agreed that there would be no problem if the fuel was to be used in tractors. The applicant gave Zh. a certificate indicating that the fuel conformed to the standard. He wrote his own and D.’s signatures on it. Zh. paid the applicant EEK 4,000 and received an invoice in the amount of EEK 3,307.85 (EUR 210).
On the same day the police searched the applicant’s office and seized the cash, the invoice, the certificate and some other documents. The applicant was interviewed as a suspect. He was represented by a lawyer throughout the criminal proceedings.
On 20 June 2003 the applicant concluded a plea-bargain agreement with the prosecution.
On 30 September 2003 the Tallinn City Court (linnakohus) examined the case. The applicant pleaded guilty to the charge of falsification of an official document but not that of taking a bribe. He alleged that the money he had received had been a fee received by his company. As the applicant did not plead guilty to all the charges, the court discontinued the summary proceedings and remitted the case to the prosecution with a view to proceeding on general grounds.
On 30 October 2003 the bill of indictment was drawn up. The applicant was charged with taking a bribe and falsification of an official document. According to the charges, he had taken a bribe in the sum of EEK 7,000 (EUR 450) from Zh. in return for issuing a certificate of conformity in respect of fuel that did not actually conform to the applicable quality standard. He had also forged the signature of D., an expert at B.E.I. Survey OÜ, on the certificate.
On 29 April 2004 the Tallinn City Court convicted the applicant as charged. He was sentenced to two years’ imprisonment, six months of which were to be served immediately and the remainder suspended.
According to the judgment, the applicant pleaded guilty to the falsification charge. He denied the charge of taking a bribe, arguing that Zh. had paid according to the price list and that the price for the analyses would have been EEK 7,000 regardless of their results. He had not been able to issue the receipt because the police had come in before. According to the applicant, he had stated higher quality indicators on the certificate because Zh. had asked him to do so. Zh. had explained that the fuel would be used for agricultural purposes, and according to the applicant such fuel could indeed be used, in compliance with the GOST (государственный стандарт; Soviet, later Commonwealth of Independent States, standard) norms, in tractors of Russian origin.
According to Zh., who gave evidence in court, the security police had provided him with a bottle of fuel which did not conform to the applicable quality standard and the bribe money. He had agreed with the applicant that certain indicators would be “improved” on the certificate.
The City Court also heard submissions from two witnesses from companies which had actually carried out the fuel analyses at the request of the applicant’s company, and two employees of the applicant’s company – the accountant and D., who stated that he had not signed the certificate in question. It also examined video and audio recordings of the meetings and conversations between Zh. and the applicant and various written evidence, including the transcripts of the recordings.
The City Court established that the applicant had falsified the fuel test results in respect of three indicators, whereas in the case of nine indicators no analyses had been made and random entries to match the applicable norms had been written on the certificate. Furthermore, the certificate had been falsified in that it indicated that D. had taken the sample from a certain vehicle – whilst in fact it had been Zh. who had brought a bottle containing the fuel – and the applicant had forged D.’s signature.
The court considered that the applicant’s explanations concerning the price of the analyses and of the certificate, as well as the sums on the invoice, were inconsistent. It examined his submissions at various stages of the proceedings, price lists and accounting documents and concluded that the whole amount of EEK 7,000 had to be considered as a bribe and not a payment for a service rendered to Zh. The court ordered the transfer back to the state budget of the sum of EEK 7,000 used by the authorities in the covert operation. In determining the applicant’s sentence, the City Court noted that he had discredited the officials and institutions authorised to certify the quality of liquid fuels.
The applicant appealed against the City Court’s judgment in so far as his conviction of taking a bribe was concerned. He did not challenge his conviction on the falsification charge. In respect of bribery, he argued that the City Court had been wrong to consider the money in question as a bribe. He also noted, in the context of the sentence given by the first-instance court, that the police had simulated the offence, that is, deliberately created the circumstances constituting an offence and had sought such a result. Therefore, the question arose as to who had been discredited. He admitted that simulating an offence was in principle authorised by law but insisted that in this case the police incitement had to be taken into account as a mitigating circumstance, because otherwise the offence might not have been committed.
On 26 May 2004 the Tallinn Court of Appeal (ringkonnakohus) dismissed the applicant’s appeal and upheld the City Court’s judgment. It held, inter alia, that the fact that the bribe had been offered in the course of simulation of an offence – a measure authorised under the law – had no effect on the question of the applicant’s guilt or his punishment. The court found that neither the police nor the undercover agent could be considered the instigators of the offence.
The applicant appealed against the Court of Appeal’s judgment, arguing that under the Surveillance Act (Jälitustegevuse seadus) the surveillance procedure could be started if there was information – and if this information was insufficient to initiate a pre-trial criminal investigation – concerning a criminal offence in the first degree being prepared or committed or having been committed, or concerning a criminal offence in the second degree having been committed intentionally, if the latter carried a sentence of at least three years’ imprisonment. Thus, there had to be sufficient information that an offence was being planned or committed. However, in the present case no offence had been being planned or committed and the criminal offence had been simulated without the existence of any of the information required by the Surveillance Act, such information having only been created by way of the simulation. Accordingly, there had been an incitement and there was good reason to believe that without it no offence would have been committed. He also reiterated that the simulation of the offence should have been considered as a mitigating circumstance.
On 18 August 2004 the Supreme Court (Riigikohus) refused the applicant leave to appeal.
Section 2 of the Surveillance Act (Jälitustegevuse seadus), as in force at the material time, provided that surveillance was unlawful unless carried out in cases and according to the procedure foreseen by that Act and in pursuance of the goals contemplated therein.
It further provided as follows:
“(1) The goal of surveillance shall be to gather information and perform other actions authorised by this Act that are necessary for:
1) prevention of criminal offences being prepared or committed;
2) discovering criminal offences that have been committed, finding persons who have committed criminal offences, compensating for damage caused by criminal offences and clarifying other circumstances that have an important bearing on criminal proceedings;
...”
“(1) The reasons for the commencement of the surveillance procedure are:
1) the need to establish truth in a criminal case;
...
3) information concerning a criminal offence in the first degree being prepared or committed or having been committed or concerning a criminal offence in the second degree having been committed intentionally if the latter carries a sentence of at least three years’ imprisonment, if this information is insufficient to initiate a pre-trial criminal investigation;
...”
Sections 12(2)(4) and 13 of the Act provided that the police could, with the authorisation of the Tallinn Administrative Court (halduskohus), simulate criminal acts in order to arrest a criminal offender or for the purpose of investigating a criminal offence.
The authorities authorised to carry out surveillance could include adults in temporary or permanent secret collaboration with their consent (section 14(1)).
Article 4 § 2 of the Penal Code (Karistusseadustik) provided that offences carrying a fine or a sentence of up to five years’ imprisonment were criminal offences in the second degree.
Section 294 § 1 of the Penal Code provided that the criminal offence of taking a bribe carried a sentence of one to five years’ imprisonment. Section 299 § 1 provided that the criminal offence of falsification of an official document carried a fine or a sentence of up to one year’s imprisonment.