ITEMID: 001-5188
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: O.N. v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Bulgarian national, born in 1957 and living in Vratsa.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
On 8 April 1975 the applicant was adopted by Mrs F. Under a contract concluded on 30 April 1975 the applicant undertook to provide daily care for Mrs F. and for her ill sister until the end of their lives and to pay 3,800 levs, in exchange of Mrs F.'s undertaking to transfer the ownership of her apartment to the applicant.
The applicant paid 3,800 levs and discharged his care obligations properly until the end of 1981 when his relations with Mrs F. deteriorated. Since 1981 the applicant and Mrs F. have been parties to several civil proceedings such as proceedings for annulment of the adoption, for enforcement and for rescinding of their 1975 contract and for payment of compensation. A judgment of 12 March 1986 established that the 1975 contract was to be considered rescinded.
2. The proceedings between 1987 and 1992
On 12 January 1987 the applicant brought an action before the Vratsa Regional Court (Окръжен съд) against Mrs F. and two other persons seeking, inter alia, restitution of the 3,800 levs paid and of the value of the care and services furnished by him under the 1975 contract. His action was based on the rule of prohibition of unjust enrichment (неоснователно обогатяване) as enshrined in Section 55 of the Law on Obligations and Contracts (Закон за задълженията и договорите).
The court heard numerous witnesses and experts who established the services performed by the applicant and their value. The court held its last hearing on 15 September 1989 and announced that the judgment would be delivered soon thereafter.
In 1991 the applicant twice addressed the court asking for a speedy delivery of the judgment. In February and June 1991 he also sought to amend his claim arguing that the sharp increase in inflation since 1989 had led to seven fold devaluation of the real value of the Bulgarian currency.

The judgment, which was dated 15 January 1991, was delivered on 8 July 1991.
The court found that the applicant was entitled to restitution of all that he had given under the 1975 contract. This right had arisen on 12 March 1986, the date on which the judicial decision confirming the rescission of the 1975 contract had been delivered. It was further established that the services performed by the applicant and the food, heating fuel and other products provided by him to Mrs F. and her sister for the period 1975 - 1981 amounted to 14,442.65 levs (the 3,800 levs paid by the applicant included), according to prices from the relevant period. The court therefore awarded to the applicant this amount, together with the established interest rate (законна лихва), to be counted as from 12 January 1987, the date of bringing of the applicant's action.

The parties appealed to the Supreme Court (Βърховен съд) which on 31 January 1992 quashed the Regional Court's judgment under Section 208 § 3(b) of the Code of Civil Procedure (Граждански процесуален кодекс) and returned the case for renewed examination as there had been certain procedural irregularities. The Supreme Court was composed of three justices, Mr Shivachev, Mr Belchev and Mrs Krasteva.
3. The proceedings before the Montana Regional Court
The referred case was taken by the Montana Regional Court as there was not a sufficient number of judges at the Vratsa Regional Court.
The Montana Regional Court held 13 hearings. At most of the hearings witnesses and experts were heard, evidence was admitted and oral submissions were made.
At the first hearing on 13 July 1992 the applicant stated the evidence on which he would rely. He later decided to request the appointment of an expert and submitted a motion in writing on 24 August 1992. The court granted the request by decision of 9 September 1992. On 25 September 1992 the expert's report was submitted to the court. The hearing listed for 5 October 1992 was adjourned as there was no confirmation that one of the defendants had received the summons.
On 15 October 1992 and 23 November 1992 the applicant made submissions in writing amending his claim to reflect the inflation and requested the appointment of another expert. On 24 November 1992 the request was granted.
On 14 December 1992 the proceedings were suspended due to the death of one of the defendants. The applicant was instructed to state whether he wished to pursue the action against the heirs and to provide their names and addresses. He did so on 18 January 1993. On 15 February 1993 the expert appointed by the court filed his report.
The fourth hearing took place on 22 March 1993. Both parties requested leave to submit further evidence and to question witnesses. The applicant requested additional reports from the experts. The hearing was adjourned.
On 17 May 1993 the court held a hearing. One of the experts and one of the witnesses for the applicant did not appear. The court decided to hold another hearing.
On 2 June 1993 the applicant requested in writing that additional questions be put to the experts. Their answers were filed with the court on 29 June 1993.
On 5 July 1993 the court held a hearing. An expert did not appear. The case was listed for a further hearing.
By written motion of 20 August 1993 the applicant increased the amount of the claim in view of the inflation and requested leave to question three additional witnesses.
The next hearing was on 20 September 1993. The applicant sought leave to put additional questions to one of the experts and requested an adjournment as one of his witnesses had not been able to attend.
On 12 October 1993 the applicant requested in writing leave to have another witness examined. On 19 October 1993 an additional expert's report was filed.
The hearing on 25 October 1993 was adjourned upon the request of the applicant who insisted on the questioning of a witness who had not appeared. On 25 October and 1 November 1993 the court rejected the applicant's request for additional questions to one of the experts.
On 17 November 1993 the applicant requested in writing leave to have re-examined a witness who had already been questioned.
At the hearing on 29 November 1993, the ninth hearing in the case, one of the witnesses was unable to attend. An expert's opinion which was due had not been filed. The court listed the case for a further hearing.
On 16 March 1994 the applicant made submissions in writing requesting further reports from the experts. This request was rejected.
The failure of a witness and of an expert to appear at the tenth hearing, which was held on 4 April 1994, prevented the conclusion of the proceedings.
On 19 April 1994 the applicant requested in writing leave to have two additional witnesses summoned and examined. The request was granted.
In the course of the eleventh hearing, on 9 May 1994, the applicant sought to increase the amount of the claim in view of the inflation. The case was adjourned as one of the defendants had not appeared and the relevant law required that all defendants be provided with an opportunity to comment on any amendment of the claim.
On 21 May 1994 the applicant successfully requested the court to order an additional expert's opinion. This was filed on 3 June 1994.
The hearing on 13 June 1994 could not conclude the proceedings for the same reasons as those, which caused the adjournment of the hearing of 9 May 1994.
On 20 June 1994 the applicant requested the further questioning of two witnesses. This was granted.
The last hearing before the Regional Court took place on 12 September 1994. Following all amendments of the amount of the claim, it was finally set by the applicant at 595,365.55 levs as he insisted that the price levels of 1994 should be used.
On 27 September 1994 the Regional Court delivered its judgment. It found that the applicant's right to restitution of what he had given under the 1975 contract had arisen on 12 March 1986. The court awarded to the applicant 15,036.33 levs, together with the established interest rate, to be counted as from 12 January 1987, the date of the submission of the applicant's action.
Addressing the applicant's argument that the inflation should be taken into account the court found, inter alia:
"... upon the rescission of a contract the parties are under the obligation to return whatever they have exchanged in order to restore the situation as it was prior to the execution of the contract. Therefore, the Court finds that the claim is well-founded for its part up to 15,036.33 levs ... and should be dismissed as ill-founded in its remaining part."
4. Appeal and review (cassation) proceedings
The applicant and the defendants appealed to the Supreme Court. On 3 January 1995 the applicant requested in writing a speedy examination of the case.
The appeal was examined by a chamber of the Court, which was composed of three justices, two of whom, Mrs Krasteva and Mr Belchev, had also participated in the examination of the case in 1992. The applicant did not request their removal. The Supreme Court heard the appeals on 17 February 1995.
On 7 March 1995 the Supreme Court dismissed the appeals. According to the Code of Civil Procedure the award of 15,036.33 levs plus interest became enforceable on the same date.
The Supreme Court found inter alia:
"The [Regional] Court correctly awarded restitution of the benefits on the basis of their value as of the moment of their bestowal, as this is the amount with which the [applicant] has actually become poorer. If the pecuniary equivalent of the furnished services were to be awarded under up-to-date prices, the [applicant] would have received more than that of which he was actually deprived. [In cases] of unjust enrichment the benefits bestowed are to be restituted up to the amount of the deprivation suffered."
In May 1995 the applicant and the defendants submitted to a five-member chamber of the Supreme Court petitions for review (cassation) (преглед по реда на надзора) against the judgments of 27 September 1994 and 7 March 1995.
A hearing was listed for 16 November 1995. It was adjourned until 18 January 1996 upon the applicant's request in view of the unavailability of his legal representative.
The hearing on 18 January 1996 was adjourned as the defendants had not been properly summoned.
The hearing eventually took place on 7 March 1996.
On 10 June 1996 the Supreme Court, sitting in a five-member chamber, dismissed the applicant's petition for review
The Court confirmed that according to the relevant law the applicant could not claim re-evaluation according to up-to-date prices.
Also, dealing with the applicant's complaint that the same justices decided twice in his case, the court stated inter alia:
"... the examination of the [second appeal] by the same chamber which had previously quashed the lower court's judgment and had returned the case to it under Section 208 § 3 of the Code of Civil Procedure not only is not a breach of procedure, but is desirable in view of the [chamber's] cognizance of the matter and the [need for] economy ... The grounds under Section 208 § 3 for returning a case to the first instance court are such that the [appellate] court does not decide on the merits."
On 30 July 1996 the defendants paid to the applicant the amount of 68,676 levs, which represented the principal sum due plus interest.
B. Relevant domestic law and practice
The relevant provisions of the Law on Obligations and Contracts read as follows:
Section 55
"Anyone who has received something without a causa or pursuant to a causa which has not realised or has ceased to exist, shall be under the obligation to return it..."
Section 57 § 2:
"If the object to be restituted has been ... consumed by the beneficiary when he already knew that he possessed it without causa, the latter owes its real value ... However, if the object [to be restituted] has been ... consumed by the beneficiary before the invitation [to return it] the latter owes only that of which he has benefited ..."
According to the practice of the Supreme Court (реш. No.65 от 8.12.1981г. на ОСГК на ΒС по гр.д. No. 30/81):
"The consequence of the rescission of a bilateral contract is that the parties shall return whatever they have exchanged in order to restore the situation as it was prior to the execution of the contract. The restitution is due because the contract which had been the legal ground of the exchange has ceased to exist. The restitution ... is due under Section 55 § 1 of the Law on Obligations and Contracts..."
The statutory default interest rate applicable to judicial awards is established by acts of the Council of Ministers (Министерски съвет). It was 6 percent per annum between 1987 and mid-1991 and was, thereafter and during the relevant period of time, equal to the basic interest rate, as established by the Bulgarian National Bank, increased by three points. At different periods of time between 1991 and 7 March 1995, when the judgment awarding 15,036.33 levs to the applicant became enforceable, the interest rate thus varied between 15 and 60 percent per annum.
Section 208 § 3(b) of the Code of Civil Procedure provides that the appellate court has to refer the case back for renewed examination by the lower court where the latter's judgment has been quashed because of a violation of the party's right to fully participate in the proceedings.


ITEMID: 001-59521
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF S.B.C. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;No violation of Art. 13
JUDGES: Nicolas Bratza
TEXT: 8. On 14 November 1978 the applicant was convicted of manslaughter and sentenced to three years in prison. He was released on parole on 14 April 1980. On 17 December 1996 he was arrested on suspicion of incest and indecent assault involving two of his daughters. On 18 December 1996 he was arrested on suspicion of other offences of rape and assault in relation to two of his daughters. On 19 December 1996 the Magistrates’ Court approved further remand of the applicant and on 20 December 1996 he was charged with two offences of rape and one offence of indecent assault concerning two of his daughters. Ultimately, the indictment preferred against him contained three counts of rape, three counts of indecent assault and one count of indecency with a child.
9. On 21 December 1996 the applicant applied for bail to the Magistrates’ Court. The court did not appreciate that section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) applied and a full bail application was heard. The court refused bail on the basis that it was feared that he might commit further offences and that he might interfere with witnesses or obstruct justice given the nature and seriousness of the charges. On 24 December 1996 he again appeared before the Magistrates’ Court and was remanded in custody. No bail application was made.
10. A further date was fixed for a bail application on 14 January 1997, the applicant having obtained an assurance of a surety from a captain in the territorial army with whom he could reside during his trial. On that date, the Magistrates’ Court was made aware of the applicability of section 25 of the 1994 Act and the hearing did not take place. On 15 or 16, 21 and 28 January and on 25 February 1997 the applicant appeared before the Magistrates’ Court. The Magistrates’ Court record for 25 February 1997 hearing noted, in the schedule dealing with exemptions to the right to bail, “no power to grant bail s25 CJPOA 94”. The applicant was tried on 20 June 1997, when he was acquitted on all charges and released.
11. Section 4 of the Bail Act 1976 as amended (“the 1976 Act”) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule 1 to the Act. Paragraph 2 of Schedule 1 provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
12. Pursuant to paragraph 9 of Schedule 1 to the 1976 Act, in taking the above decision, the court was to have regard to such of the following considerations, as well as to any other considerations, as appeared to that court to be relevant:
– the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);
– the character, antecedents, associations and community ties of the defendant;
– the defendant’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings; and
– except in the case of a defendant whose case was adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted.
13. According to paragraph 9A of Schedule 1 to the 1976 Act, if a defendant (who had been charged with murder, manslaughter, rape, attempted murder or attempted rape) was granted bail and representations had been made as regards the matters mentioned in paragraph 2 of Schedule 1, the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.
14. Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 10 April 1995 and provided as follows:
“1. A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings.
2. This section applies, subject to subsection 3 below, to the following offences, ... –
(a) murder;
(b) attempted murder;
(c) manslaughter;
(d) rape; and
(e) attempted rape.
3. This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments.”
15. Section 25 of the 1994 Act has been amended by section 56 of the Crime and Disorder Act 1998, which entered into force on 30 September 1998. Section 56 of the 1998 Act reads as follows:
“In sub-section (1) of section 25 of the 1994 Act (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences), for the words ‘shall not be granted bail in those proceedings’ there shall be substituted the words ‘shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it’.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-97627
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SHALIMOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1968 and is currently in detention.
5. According to the applicant, on 26 October 1998 he found a small-bore rifle and cartridges. He checked whether the rifle worked and then practised shooting. While doing this he was accompanied by his friend T. At one moment the applicant needed to go to the toilet and went over to some bushes near the road. Behind the bushes he came face to face with two strangers, later identified as E. and D., who allegedly behaved aggressively towards him. According to the applicant, one of the strangers was holding an object in his hand which the applicant took for a gun. Fearing for his life, he fired at one of them in self-defence and left. Soon he joined T., who was waiting for him at some distance. The applicant told T. that he had fired into the river.
6. Later the same day the applicant separated the breechblock from the rifle and threw them both into the river.
On 27 October 1998 E. and D. were found shot dead and criminal proceedings were instituted.
7. On 30 October 1998 the applicant was arrested on suspicion of the murder of E. and D. The applicant confessed to firing at D. in self-defence.
8. On 31 October 1998 investigating prosecutor Z. conducted a videotaped on-site reconstruction of the events. During the reconstruction the applicant asked to be represented by a lawyer. This request was rejected by prosecutor Z.
9. On 2 November 1998 the Yenakiyevo Prosecutor ordered the applicant's pre-trial detention on the ground that he was suspected of having committed a crime punishable by imprisonment and that he might abscond. The applicant's detention was extended on several occasions by the prosecutors: to three months on 21 December 1998, to five months on 25 January 1999 and to six months on 25 March 1999, without indicating any grounds for the detention.
10. On 4 November 1998 K. was appointed as the applicant's lawyer.
11. Between 2 November 1998 and 27 April 1999 the investigation conducted several different forensic examinations and questioned several witnesses. In ordering a medical examination, the investigator requested the expert to check whether the findings of the examination corresponded to the applicant's statements as to the circumstances of the crime.
12. On 27 April 1999 the applicant requested that Ms P. be appointed his lawyer. This request was granted.
13. From 27 April to 1 July 1999 the applicant and his lawyer were given time to study the case file materials. On several occasions they requested extension of the period of access to the case file.
14. On 1 July 1999 the bill of indictment was completed by the investigation and referred to the Donetsk Court of Appeal (the Donetsk Court), acting as a first-instance court.
15. On 15 July 1999 the applicant was committed for trial. The Donetsk Court also continued to remand him in custody having decided to leave the chosen preventive measure without changes.
16. On 10 December 1999 the court ordered two additional forensic examinations in respect of the victims and the weapon which had been used to commit the crime.
17. An additional forensic medical examination in respect of the victims was concluded on 14 June 2000.
18. An additional ballistic examination was concluded on 5 January 2001.
19. On 1 March 2001 the judicial examination of the applicant's case was resumed. The Donetsk Court also continued to remand the applicant in custody without indicating any grounds.
20. In September 2001 the Vice-President of the Donetsk Court of Appeal, in reply to a complaint from the applicant that he was not being allowed family visits, informed him that the hearing in his case had been fixed for 14 January 2002 and that he would be allowed a family visit after his case had been decided.
21. On 14 to 17 January 2002 the Donetsk Court held hearings in the case and questioned several witnesses. Witnesses T. and K. failed to appear before the court.
22. On 21 January 2002 the Donetsk Court decided to refer the criminal case for further investigation on the grounds that prosecutor Z., who had been in charge of the investigation, did not have legal power to conduct the investigation; that the investigators had not located the breechblock of the rifle; that it had not been proved beyond doubt that the applicant had intentionally killed E. and D.; and that the investigators had not fully checked the circumstances of the applicant's confession. The court also continued to remand the applicant in custody without indicating any grounds.
23. On 28 January 2002 the Donetsk Regional Prosecutor's Office lodged an appeal against the decision of 21 January 2002.
24. On 14 March 2002 the Supreme Court quashed the decision of the Donetsk Court of 21 January 2002 and remitted the case to it for examination. The court noted that the prosecutor did have power to conduct the investigation, and that the investigators had searched for the breechblock of the rifle but that after three years it was not possible to remedy the situation with regard to the missing item. The court further noted that the first-instance court should have verified the circumstances of the applicant's confession in the trial proceedings. The court maintained, lastly, that the issue as to whether there was sufficient evidence on which to convict the applicant should be decided by the first-instance court during the examination of the case on the merits.
25. On 15 April 2002 the applicant was committed for trial. The Donetsk Court also continued to remand the applicant in custody without indicating any grounds.
26. By a letter of 12 September 2002, the Acting President of the Donetsk Court, in reply to the applicant's complaint, informed him, among other things, that due to the illness of Judge S., who had originally dealt with his case, the case had been transferred to Judge D. on 1 March 2001 and was scheduled for examination on 14 January 2002. Following the remittal of the case to the court on 4 April 2002 the case was scheduled for 5 August 2002 and then, due to the illness of Judge D., postponed to 9 September 2002.
27. On 24 September 2002 the Donetsk Court found the applicant guilty of two murders motivated by hooliganism and sentenced him to fifteen years' imprisonment. The court found that both victims had been killed by the same weapon, which could have been the rifle used by the applicant (conclusive identification was not possible without the missing breechblock). The court established, inter alia, that no other gun had been found at the site of the crime or elsewhere in the neighbourhood, that T. had heard several shots while the applicant had been behind the bushes and that the applicant had behaved normally immediately after the incident and had not shown any signs of agitation. The court further examined the procedural shortcomings of the pre-trial investigation and disregarded the pieces of evidence, including the videotaped reconstruction of events of 31 October 1998, which had been obtained in violation of the applicant's right to defence.
28. The applicant appealed against the judgment of 24 September 2002 challenging, among other things, the testimonies of witness K. and interpretation of evidence by the court.
29. By a separate ruling of the same day, the Donetsk Court brought to the attention of the Donetsk Regional Prosecutor's Office the procedural violations committed by prosecutor Z. during the pre-trial investigation, including refusing the applicant a lawyer during the videotaped reconstruction of events. As a result of that ruling, prosecutor Z. was found disciplinarily liable.
30. Following the applicant's conviction, he was allowed to see his mother and his wife. He had in total thirteen family visits between 25 September 2002 and 30 October 2003.
31. On 4 February 2003 the Donetsk Court gave a ruling rejecting the applicant's request for access to the audio records of the hearings. The applicant appealed.
32. On 26 February 2003 the Donetsk Court examined the applicant's complaints concerning the records of the hearings and dismissed them.
33. On 15 May 2003 the Supreme Court quashed the rulings of 4 and 26 February 2003.
34. On 7 August 2003 the Donetsk Court rejected the applicant's challenge of the court and his request for access to the audio records. The court also examined the applicant's objections to the minutes of the hearings and dismissed them.
35. On 2 October 2003 the Supreme Court upheld the judgment of 24 September 2002.
36. In 2002-2003 the applicant and his representative made number of requests to the Donetsk Court of Appeal for receiving copies of the documents from his criminal case file. In reply, they were informed that only copies of the court judgment and respective decisions by the higher courts on his appeal were furnished to the defendant. As to other documents, the court informed that the applicant or his representative could have access to the case file and could copy the documents from it.
37. On 16 January 2004 the Debaltsevo Prosecutor's Office refused to institute criminal proceedings against prosecutors Z. and N. following a complaint by the applicant that his right to defence on 31 October 1998 had been violated and that the prosecutors had claimed bribes from him in return for closing the case against him. It was established that prosecutor Z. had been subject to disciplinary sanctions for the above violation of the applicant's right to defence. As to the allegations of proposed bribes, the investigator rejected this complaint as unsubstantiated.
38. By letters of 29 October 2004 and 8 September 2005, the Supreme Court informed the applicant that there were no grounds for an extraordinary review of his case.
39. The Code of Criminal Procedure 1960 (prior to 21 June 2001) provided:
Article 236-3
Appeal against the prosecutor's arrest warrant
“The detainee, his defender or legal representative may appeal against the prosecutor's arrest warrant to the relevant district (city) court...
The appeal may be lodged directly with the court or through the administration of the pre-trial detention centre, which must send the appeal to the relevant court within twenty-four hours of its receipt.”
Article 263
Rights of the defendant during the trial
“In the court proceedings the defendant has the right:
...3) to lodge requests...”
Article 273
Procedure for rendering rulings in the court sittings
“In all matters decided by the court during the trial, the court gives a ruling. Rulings on ... selection, change or cancellation of a preventive measure ... decided by the court in camera and drawn in form of a separate document signed by all judges.
Rulings rendered by the court during the trial shall be pronounced... “
Article 274
Selection, termination or change of a preventive measure in court
“During the court proceedings, if there are any grounds to do so, the court may by its ruling change, cancel or select a preventive measure in respect of the defendant ...”
40. The above-mentioned Article 236-3 was excluded from the CCP on the basis of the Code of Criminal Procedure Amendment Act of 21 June 2001. By the Amendment Act, the new procedure of ordering and maintaining detention at the pre-trial stage has been introduced:
Article 165
General provisions on the procedure of application, cancellation and change the preventive measure
“A custodial preventive measure shall be applied only by motivated judge order or court ruling...”
Article 165-2
Procedure for the selection of a preventive measure
“...In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor's consent he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person.
The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained.
In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality.
Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order:
(1) refusing to select the preventive measure if there are no grounds for doing so;
(2) selecting a preventive measure in the form of taking of a suspect or accused into custody.
The court shall be entitled to select for the suspect or accused a non-custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her.
The judge's order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge's order.”
41. Relevant parts of articles 263, 273 and 274 of the Code remained unchanged after the amendments of 21 June 2001.
42. Other relevant domestic law concerning pre-trial detention and investigation is summarised in the cases of Solovey and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27 November 2008) and Shavel v.Ukraine ((dec.), no. 25486/03, 8 January 2007).
43. Under section 12(1) of the Pre-Trial Detention Act 1993, permission for relatives to visit a detainee (in principle, once a month for one to two hours) can be given by the authorities of the place of detention, but only with the written approval of an investigator or a court dealing with the case depending on whether it is the investigation or the trial stage.
44. Relevant provisions of the Code of Criminal Procedure 1960 read as follows:
Section 162
Visiting a detainee
“Visits of relatives or other persons to a detainee can be allowed by a person or an institution that deals with the case. The duration of the visit shall be fixed from one to two hours. The visit can be allowed, as a rule, not more than once a month.”
Section 345
Granting relatives permission to visit a convicted person
“Prior to entry of the judgment into force, the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convicted person, upon their request, permission to visit the detained convicted person.”
VIOLATED_ARTICLES: 13
5
6
8
VIOLATED_PARAGRAPHS: 5-3
6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-81209
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZHECHEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
JUDGES: Peer Lorenzen
TEXT: 6. The applicant is the chairman of the association “Civil Society for Bulgarian Interests, National Dignity, Union and Integration – for Bulgaria” („Гражданско общество за български интереси, национално достойнство, единение и обединение – за България“ – “the association”).
7. The association was founded on 19 December 1996 in Plovdiv. At a meeting on that date the founders adopted its articles and elected its management bodies. The applicant was elected as its chairman.
8. The association's articles read, as relevant:
“1. [The association] is a Bulgarian patriotic nonprofit organisation. It shall be DEMOCRATIC in form and NATIONAL in content.
OBJECT: mass, historically and morally enlightening, societal and political, cultural and educational, scientific and research, sport and technical, publishing, advertising, charitable and all other types of activities and services which are allowed (not prohibited) under the [Persons and Family Act of 1949] in respect of nonprofit associations.
2. [The association] is founded with the aims of: uplifting the Bulgarian spirit; protecting the Bulgarian interests and creating a wealthy, prosperous and patriotic nation; elevating, developing and preserving the Bulgarian national dignity; uniting the Bulgarian identity within and outside the boundaries of the promised Bulgarian land, under the flag of historical truth; protecting and restoring the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria.
3. [The association] is for the creation of a people's court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years. ...
4. [The association] is for a wide discussion ... of the illegal trampling and repealing of our first constitution after our liberation in 1878, the most democratic Constitution of Tarnovo and the imposition of the present [Constitution]...
[The association] is for the reinstatement (possibly with amendments) of the unlawfully abolished 'CONSTITUTION OF TARNOVO'...
[The association] is for ... changing the form of government of Bulgaria, for the returning of H.M. KING SIMEON II to the motherland and the throne. ...
8. ... The core of the [association's] activity shall be the spiritual unification of all Bulgarians, contacts with and consolidation of the Bulgarian Diaspora, establishment of sincere relations with ... all Bulgarians outside Bulgaria, and, in the international relations – point one shall be: abolition (opening) of the border between Bulgaria and Macedonia...”
9. On an unspecified later date the association submitted to the Plovdiv Regional Court an application for registration.
10. The Plovdiv Regional Court refused the application in a judgment of 6 June 1997. It held:
“[According to] clause 2 of [its articles], [the association] intends to protect and restore the coat of arms of the Bulgarian Kingdom as a coat of arms of Bulgaria. According to clause 3 of the articles, the association is for the establishment of a 'people's court to judge those responsible for the gravest economic, spiritual, moral and demographic crisis of the Bulgarian society, Bulgarian banking and Bulgarian statehood since 9 September 1944, in particular the period 1994, 1995, 1996 and the following years'. Clause 4 of the articles provides for a debate on the repealing of the Constitution of Tarnovo and the adoption of the [C]onstitution [of 1991] which is presently in force.
The goals which have been enumerated thus far are sufficient to refuse the association's registration. They are clearly political in nature and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990].”
11. The applicant, acting in his capacity of chairman of the association, appealed to the Supreme Court of Cassation. He argued, inter alia, that the association's aims were not political, but goals which could be pursued by every citizen.
12. Following an amendment to the Code of Civil Procedure of 1952 providing that the judgments of the regional courts were no longer appealable before the Supreme Court of Cassation, but before the newly established courts of appeals, on 1 April 1998 the Supreme Court of Cassation forwarded the applicant's appeal to the newly created Plovdiv Court of Appeals.
13. On 10 March 1999 the Plovdiv Court of Appeals upheld the lower court's judgment. It held as follows:
“The articles of [the association] contain provisions which are contrary to the ... Constitution of the Republic of Bulgaria. For instance, clause 2 of the articles provides for the restoration of the coat of arms of the Bulgarian Kingdom as the country's coat of arms. Clause 4 provides for a change of the form of government from republic to monarchy and for the restoration of the Constitution of Tarnovo [of 1879]. Clause 8 of the articles – abolition of the border between Bulgaria and [the former Yugoslav Republic of] Macedonia. These goals, as formulated in the above-cited clauses, run counter to Articles 1, 2 § 2 and 164 of the Constitution. Moreover, the association indeed has political goals, whereas by Article 12 § 2 of the Constitution associations may not pursue political goals and carry out political activities that are characteristic solely of political parties.”
14. The applicant appealed on points of law to the Supreme Court of Cassation. He argued that the lower court had incorrectly held that the association's aims were contrary to the Constitution. Furthermore, the association did not pursue political aims, because it was not aspiring to accede to power. The courts' refusal to register it was an infringement of its founders' freedom of expression.
15. On 17 May 1999 the Supreme Court of Cassation directed the applicant to specify the grounds on which he sought the quashing of the judgment below. In line with these instructions, the applicant submitted additional observations. He reiterated his contention that the association's aims were not political, because it was not seeking to accede to power through elections or otherwise, or exercise it. Its aims were characteristic of the civil society and were to be achieved through other, nonpolitical means. Furthermore, the association's articles did not provide for the creation of a people's court, it did not in fact object to the new coat of arms of Bulgaria and was not seeking to change the form of government from republic to monarchy. These were erroneous findings of the lower court. Finally, the association was seeking to achieve the spiritual union of all Bulgarians, not the abolition of the border between Bulgaria and the former Yugoslav Republic of Macedonia.
16. On 11 October 1999 the Supreme Court of Cassation upheld the Plovdiv Court of Appeals' judgment in the following terms:
“The [lower court] correctly found that the goals set out in clauses 2, 3 and 4 of the association's articles have a certain political tenor and are characteristic of a political party, whose registration is to be carried out under the Political Parties Act [of 1990]. These goals are contrary to Articles 1, 2 § 2 and 12 § 2 [of the Constitution of 1991].”
17. The relevant provisions of the Constitution of 1991 read as follows:
“Bulgaria is a republic with a parliamentary form of government.”
“The territorial integrity of the Republic of Bulgaria shall be inviolable.”
“...
3. Parties shall facilitate the formation of the citizens' political will. The manner of forming and dissolving political parties, as well as the conditions pertaining to their activity, shall be established by law.
4. No political parties shall be formed on ethnic, racial, or religious basis, nor parties which seek to accede to power by force.”
“1. The citizens' associations shall serve to further and safeguard their interests.
2. Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.”
“1. Citizens may freely associate.
2. Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited.
3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.”
“The Coat of Arms of the Republic of Bulgaria shall depict a gold lion rampant on a dark gules shield.”
18. At the material time this Act („Закон за лицата и семейството“), the relevant provisions of which were superseded by new legislation in 2001, regulated the formation, status and dissolution of nonprofit legal entities, i.e. associations and foundations. Its pertinent provisions were:
“An association shall acquire legal personality after its entry in the register [kept by] the Regional Court.”
“An association shall be registered pursuant to an application by [its] management committee [to which shall be enclosed] a resolution for its founding and its articles of association, signed by the founders...”
“Associations shall be managed in accordance with [their] articles of association, which must contain provisions in respect of [their] name, aims, means...”
19. At the material time this Act („Закон за политическите партии“), which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties. Its relevant provisions read as follows:
“1. Citizens may freely associate in political parties to influence the formation and expression of the political will of the people through elections or other democratic means.
...
3. Other organisations and movements may also carry out political activities within the bounds set by the Constitution and the laws.”
“A political party may be formed [by] not less than fifty enfranchised citizens.”
“1. A public organisation which has not been registered as a political party may not carry out the activity of a political party.
2. A [public organisation] which has not been registered as a political party may not carry out organised political activities [on the premises of] enterprises, government agencies and organisations.
3. 'Organised political activities' shall mean the holding of meetings, demonstrations, assemblies and other forms of campaigning in favour of or against a political party or an election candidate.
4. If a public organisation ... clearly carries out the activity of a political party, the regional prosecutor shall propose that it be dissolved or [re]register as a political party within one month.
5. If the organisation under the foregoing subsection does not cease its political activity or [re]register as a political party, it shall be dissolved...”
20. The Act also regulated the manner in which political parties were financed, providing for certain upper limits on the donations that they could receive and prohibiting their receiving anonymous donations and donations from foreign states and organisations (section 17).
21. Only political parties (and coalitions of such parties), and not associations, may participate in parliamentary, presidential, local and European elections and nominate candidates (section 41(2), (3) and (4) of the Electing of Members of Parliament, Municipal Councillors and Mayors Act of 1991 („Закон за избиране на народни представители, общински съветници и кметове“), section 43(1) of the Electing of Members of Parliament Act of 2001 („Закон за избиране на народни представители“), section 3(1) and (2) of the Electing of a President and a VicePresident of the Republic Act of 1991 („Закон за избиране на президент и вицепрезидент на републиката“), section 35(1) of the Local Elections Act of 1995 („Закон за местните избори“), and section 48(1) and (3) of the Electing of Members of the European Parliament Act from the Republic of Bulgaria of 2007 („Закон за избиране на членове на Европейския парламент от Република България“)).
22. In a judgment of 21 April 1992 (реш. № 4 от 21 април 1992 г. по к.д. № 1 от 1991 г., обн., ДВ, бр. 35 от 28 април 1992 г.) the Constitutional Court stated, inter alia, that “political activities that are characteristic solely of political parties”, within the meaning of Article 12 § 2 of the Constitution of 1991, were defined by Article 11 § 3 thereof as those which facilitate “the formation of the citizens' political will” through “elections or other democratic means”, as specified by section 1(1) of the Political Parties Act of 1990. The court also stated that “what was essential for this type of political activity [was] the direct participation in the process of forming the bodies through which, according to the Constitution, the people exercise[d] its power”. Of course, the activities of a party in connection with upcoming elections embraced the holding of meetings, assemblies and other forms of public campaigning in support of the party and the candidates nominated by it, which were also activities aimed at “forming” the citizens' political will.
23. The Constitution of 1879 was the first written constitution of Bulgaria, adopted by a Constituent National Assembly on 16 April 1879, shortly after the creation of Bulgaria as an independent State in 1878. It was repealed in 1947. It provided for constitutional monarchy (Articles 4, 5, 9, 10 and 12), with a directly elected parliament and universal suffrage (Article 86), a government accountable to the parliament (Article 153), and separation of powers (Articles 9, 12 and 13). It prohibited torture (Article 75 § 2) and punishment without law and due process (Articles 73 and 75 § 1), enshrined the right to property (Articles 67 and 68), the right to respect for one's home and correspondence (Articles 74 and 77), and the freedoms of the press and of assembly and association (Articles 79, 81, 82 and 83).
VIOLATED_ARTICLES: 11


ITEMID: 001-89793
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: POWERACT INDUSTRIES v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant company, Poweract Industries, is a private company which is based in Hong Kong. It is represented before the Court by Mr S. Tepe, a lawyer practising in Mersin.
On 13 March 2002 the applicant company participated in a tender held by the Mersin Enforcement Office (İcra Müdürlüğü). There were no other participants and the applicant company bought 17,000 telephones that had been imported by another private company which had later disappeared without making payment.
On 26 April 2002, after the sale became final, the applicant company requested delivery of the telephones. The Mersin Enforcement Office refused delivery on the ground that the Customs Office had requested, in a letter dated 25 January 2002, that the sale and delivery procedure be annulled on account of outstanding customs duty.
On 2 May 2002 the applicant company filed a complaint with the Office of the Mersin Enforcement Judge (İcra Tetkik Mercii Hakimliği) and requested delivery of the telephones as well as the annulment of the Mersin Enforcement Office’s decision.
On 7 May 2002 the Judge of the Mersin Enforcement Office held that, in accordance with the relevant provisions, the Customs Office could have requested cancellation of the tender before it became final, whereas the law did not provide for the annulment of a tender after the sale had become final.
On 14 May 2002 the Mersin Enforcement Office notified the Customs Office of the above-mentioned decision and requested delivery of the telephones to the applicant company.
On 6 June 2002 the applicant company sent a letter to the Customs Office, requesting delivery of the telephones.
The telephones had still not been delivered when the application was lodged with the Court.
The applicant company’s criminal complaints against three customs officers were to no avail.


ITEMID: 001-89269
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ZÖHRE AKYOL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1958 and lives in Ankara.
5. On 1 November 1990 the applicant had an accident while entering a lift in the Balıkçıoğlu Business Centre in Ankara. The applicant subsequently learned that the lift had been under repair at the material time, despite the lack of any warning signs to this effect in the building, and that the accident had been caused by her attempt to operate the lift under those circumstances.
6. Following the accident the applicant was taken to the Ankara Numune Hospital where she received medical treatment. According to the report drawn up by an orthopaedist in that hospital on 20 August 1991, the applicant suffered a thoracic vertebral fracture as a result of the accident, was unfit for work for 45 days and was required to undergo 180 days of treatment.
7. Criminal proceedings were subsequently brought against the two workers who had been repairing the lift at the time (case no. 1990/986), on charges of causing injury through professional negligence.
8. On 11 March 1993 the Ankara Criminal Court acquitted the workers, holding that they were not responsible for the injuries which the applicant had suffered.
9. The Ankara public prosecutor then brought criminal proceedings before the Ankara Criminal Court of First Instance against the manager and the concierge of the Balıkçıoğlu Business Centre, on charges of causing injury through negligence (case no. 1993/678).
10. Meanwhile, on 8 April 1992 the applicant brought civil proceedings (case no. 1992/284) before the Ankara Civil Court against the management of the Balıkçıoğlu Business Centre and Elmas Elektrik Sanayi Ticaret A.Ş. (the lift maintenance company), seeking compensation for the pecuniary and non-pecuniary damage that she had suffered as a result of the accident.
11. On 4 February 1993 the first-instance court dismissed the case in so far as it concerned the management of the Balıkçıoğlu Business Centre, as the latter had no legal status.
12. Following the decision of 4 February 1993, on 24 May 1993 the applicant brought a second case before the Ankara Civil Court against the owners of the apartments in the Balıkçıoğlu Business Centre and its manager (case no. 1993/452).
13. Case no. 1993/452 was subsequently joined to case no. 1992/284.
14. On 2 February 1994 the Ankara Civil Court ordered that the file concerning case no. 1993/678 be obtained from the Ankara Criminal Court.
15. Between 2 February 1994 and 22 March 1995 the Ankara Civil Court postponed the hearings pending receipt of the aforementioned file.
16. On 22 March 1995, after receiving the file in question, the firstinstance court decided to await the outcome of the criminal proceedings.
17. On 3 March 2000 the applicant’s representative informed the firstinstance court that on 2 November 1999 the criminal proceedings had been terminated as the statutory timelimit under Article 102 of the Criminal Code had expired.
18. Between 3 March 2000 and 21 March 2001, the Ankara Civil Court collected further evidence in the case.
19. On 21 March 2001 the first-instance court decided to send the case file to an expert for an assessment of the amount of pecuniary damage allegedly sustained by the applicant as a result of the accident.
20. On 25 April 2001 the expert submitted his report.
21. Subsequently, on 17 October 2001 the applicant filed a petition with the first-instance court, amending the amount of compensation she had previously claimed, in order to reflect the expert’s findings in his report of 25 April 2001.
22. On 21 May 2002 the Ankara Civil Court ordered Elmas Elektrik Sanayi Ticaret A.Ş. and the owners of the apartments in the business centre to pay compensation to the applicant for the pecuniary and non-pecuniary damage she had suffered.
23. On 12 May 2003 the Court of Cassation quashed the judgment of 21 May 2002. It noted that one of the persons ordered to pay compensation was not an apartment owner in the business centre at the time of the accident and that the first-instance court should have duly established the names of the owners before rendering its judgment. The Court of Cassation further noted that the applicant’s petition of 17 October 2001 should have been served on all the defendants.
24. On 10 December 2003 the Court of Cassation dismissed the parties’ requests for rectification of its decision of 12 May 2003.
25. On 22 March 2005 the Ankara Civil Court rendered a new judgment in the light of the Court of Cassation’s decision of 12 May 2003, ordering Elmas Elektrik Sanayi Ticaret A.Ş. and seven persons who were apartment owners at the time of the accident to pay the applicant compensation in the amount of 3,145,941,990 Turkish liras (TRL), with interest running from 1 November 1990.
26. On 23 June 2005 the Court of Cassation upheld the judgment of 22 March 2005.
27. On 6 December 2007 the applicant received a payment of 21,032.60 new Turkish liras (TRY).
VIOLATED_ARTICLES: 6


ITEMID: 001-57883
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF SARAIVA DE CARVALHO v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
TEXT: 7. Born in 1936, Mr Otelo Saraiva de Carvalho is a Portuguese citizen who lives in Oeiras. At the material time he was a lieutenant-colonel in the Portuguese army.
8. On 10 June 1984 he was arrested and held in pre-trial detention on a charge of founding and leading a terrorist organisation, which is an offence under Article 288 of the Criminal Code; he was suspected of being one of the founders and leaders of the "FP 25 de Abril" (Popular Forces 25 April), a group that had claimed responsibility for several bomb outrages, armed attacks and murders.
9. On 30 December 1984 the judge of the Lisbon Criminal Investigation Court (tribunal de instrução criminal) to whom the case had been assigned closed the adversarial investigation and sent the file to the public prosecutor’s office.
10. On 7 January 1985 the prosecutor delivered his charges (acusação). He accused the applicant and several of his co- defendants of having drawn up a comprehensive plan under which, by means of the "FP 25 de Abril", they would seize power by force and overthrow the State’s institutions. He emphasised that Mr Saraiva de Carvalho was one of the instigators of the scheme.
11. In accordance with section 59 of Law no. 82/77 of 6 December 1977 on the administration of justice, section 8 of Legislative Decree no. 269/78 of 1 September 1978 and Article 365 of the Code of Criminal Procedure (see paragraph 26 below), the file was sent, together with the prosecution’s submissions, to the Lisbon Criminal Court (tribunal criminal) so that the judge responsible for the case, Mr Antonio Salvado, could issue the despacho de pronúncia or de não pronúncia.
12. On 22 January 1985 Mr Salvado issued a despacho de pronúncia. After noting that there had been no irregularities during the judicial investigation or any other impediment to a trial of the merits, he rejected the prosecution’s charges in respect of four of the co-defendants on the ground that the evidence gathered was not sufficient to enable a reliable assessment to be made of the probability of guilt ("a prova indiciária recolhida ... é insuficiente para ... permitir a formulação de um sério juizo de probabilidade sobre a sua culpabilidade"). On the other hand, he accepted the charges relating to Mr Saraiva de Carvalho and seventy-two other defendants and decided to keep all but three of them in pre-trial detention.
The applicant did not appeal against the despacho under Article 371 of the Code of Criminal procedure (see paragraph 26 below).
13. The trial began on 7 October 1985 before the Fourth Division of the Lisbon Criminal Court, which was composed of three judges and was presided over by Mr Salvado. The proceedings took up no fewer than 263 sittings of the court.
14. At the hearing on 8 October the applicant lodged an appeal with the Lisbon Court of Appeal challenging the compatibility of the provisions cited earlier (see paragraph 11 above) which empowered one and the same judge both to issue the despacho de pronúncia and to try the case with Article 32 para. 5 of the Portuguese Constitution and Article 6 para. 1 (art. 6-1) of the Convention.
He argued that in making such an order, the judge formed a view of an accused’s guilt in advance that was likely to influence him when giving judgment on the merits.
On the same day, the Criminal Court held the appeal to be admissible and decided to refer it to the higher court together with any appeal against the judgment it would itself be delivering.
15. On 20 May 1987 the Criminal Court held that the applicant was a leading member of the "FP 25 de Abril" but not one of their founders and sentenced him to fifteen years’ military imprisonment (presídio militar), of which one year, ten months and fifteen days were immediately remitted under an amnesty. It acquitted sixteen of his co-defendants and sentenced the others and Mr Saraiva de Carvalho jointly and severally to pay the State 1,000 million escudos.
16. On 25 November 1987 the Lisbon Court of Appeal (tribunal de relação) dismissed appeals by the prosecution and thirty-seven of the defendants, including Mr Saraiva de Carvalho.
Unlike the Criminal Court, it held that the applicant was also one of the founders of the "FP 25 de Abril". It consequently increased the sentence to eighteen years’ military imprisonment, two years and three months of which were immediately remitted under the amnesty. The court upheld the sum to be paid.
17. As regards the complaint based on Article 6 para. 1 (art. 6-1) of the Convention (see paragraph 14 above), the court pointed out that the drafting history showed that the purpose of section 59 of the aforementioned Law no. 82/77 was precisely to ensure that investigating judges did not give rulings on the offences into which they had to inquire; that was why the legislature had vested in the trial judge and not the investigating judge the power to issue the despacho de pronúncia, which entailed assessing and classifying the offences charged.
18. An appeal by Mr Saraiva de Carvalho to the Supreme Court (Supremo Tribunal de Justiça) was dismissed on 22 June 1988. Referring to its case-law, the court held that the provisions complained of by the applicant were not incompatible with Article 32 para. 5 of the Constitution; a judge issuing a despacho de pronúncia was not bound by the view taken at that stage of the proceedings and had complete freedom when giving judgment on the merits, so that his impartiality was in no way jeopardised.
On the other hand the court held that the applicant was only a leader of the "FP 25 de Abril" and accordingly reduced the sentence to seventeen years’ imprisonment.
19. Finally, the applicant applied to the Constitutional Court (Tribunal constitucional). Reiterating the submissions he had made in the other courts, he argued in particular that the despacho de pronúncia was the key decision in the prosecution. The fact that it was taken by a judge who subsequently sat on the trial court violated Article 32 para. 5 of the Constitution, which established an absolute separation between judicial investigation, prosecution and trial; it also, he submitted, undermined the court’s impartiality, as the judge in question would be prejudiced against the defendant when he came to consider the merits.
20. In its judgment of 15 February 1989 the Constitutional Court emphasised the need to distinguish between the indictment, which was the responsibility of the public prosecutor’s office, and the despacho de pronúncia. The latter was designed solely to verify the probability of guilt in order to avoid a trial where there was no prima facie evidence. It was thus a decision on the viability of the indictment and did not entail any prejudice on the part of the judge when the merits were being considered. It consequently served as a filter and a safeguard. Even if his legal classification of the facts was different, a judge did not act as a prosecutor. In the instant case Mr Salvado could not be accused of partiality merely because he had issued the despacho de pronúncia. It would have been different if in his decision he had gone beyond the scope of the prosecution’s charges and had made substantial alterations to them. In that case, which was not the one before it, the distinction between the indictment and the despacho de pronúncia would have been lost as the judge would have encroached on the prerogatives of the public prosecutor.
The Constitutional Court did, however, allow the appeal on another ground, not adduced before the European Court of Human Rights (see paragraphs 27 and 28 below), which related to a lack of reasons in the judgment at first instance. It accordingly remitted the case to the Supreme Court for the appropriate steps to be taken.
21. On 23 February 1989 the prosecution sought clarification of certain passages in the judgment and applied for rectification of clerical errors in it. On 12 April the Constitutional Court ordered the rectifications, allowed one item in the application for clarification and provided the particulars sought.
22. On its rehearing of the case on 17 May 1989 the Supreme Court quashed the Lisbon Court of Appeal’s judgment of 25 November 1987 and remitted the case to that court for a fresh assessment of the facts.
The applicant was provisionally released that same day.
23. On 13 September 1989 the Lisbon Court of Appeal delivered a new judgment; the prosecution and several defendants, including the applicant, appealed against it on points of law to the Supreme Court.
On 19 December 1990 the Supreme Court allowed the appeals in part and varied the impugned decision accordingly.
Mr Saraiva de Carvalho and seven of the co-defendants appealed to the Constitutional Court against the Supreme Court’s judgment. The outcome of the proceedings is still awaited.
24. Under Article 32 para. 5 of the Constitution,
"Criminal proceedings shall be accusatorial, the trial and investigative measures laid down by law being governed by the adversarial principle."
25. Under Article 288 of the Criminal Code,
"1. Anyone promoting or founding a terrorist group, organisation or association shall be punishable by five to fifteen years’ imprisonment.
2. ‘A terrorist group, organisation or association’ shall be understood to include any group of two or more persons, who, acting in concert, set out to undermine national integrity and independence or prevent, change or impair the functioning of State institutions as established by the Constitution; or to force the authorities to do something, refrain from doing something or tolerate something being done; or to intimidate certain persons or groups or the entire population by committing offences
...
(e) which entail the use of bombs, grenades, firearms, explosive substances or devices, incendiary material of any kind or parcel or letter bombs.
...
4. Where [the members of] a group, organisation or association ... are found in possession of one of the items mentioned in sub-paragraph (e) of paragraph 2 with a view to achieving its criminal ends, the sentence within the minimum and maximum limits shall be increased by one-third."
26. The relevant provisions of the Code of Criminal Procedure in force at the time - a new code took effect on 1 January 1988 - were the following:
"Where the judicial investigation discloses prima facie evidence of the commission of a punishable offence, of the identity of the person who committed it and of his liability, the public prosecutor’s office, if it has the standing (legitimidade) to do so, shall deliver its charges."
"Where the prosecution is brought by the public prosecutor’s office or, as the case may be, by the assistente, the file shall immediately be submitted to the judge in order that he may issue his despacho de pronúncia or de não pronúncia within eight days."
"The despacho de pronúncia shall contain
1. the name, occupation and address, if known, of the defendants or the necessary information to identify them;
2. an exact description of the offences which they are considered to have committed and the capacity in which they acted;
3. any special or general aggravating or extenuating circumstances;
4. an indication of the statute creating the offence and providing for penalties;
5. any decision relating to the accused’s provisional release which, in accordance with the law, prolongs or alters the previously existing situation;
6. the information prescribed in Articles 354, 356 and 357, where necessary, and the order to communicate information concerning the accused to the criminal records office;
7. the date and the judge’s signature.
..."
"The public prosecutor’s office, a private prosecutor and the accused may appeal against a despacho de pronúncia. The public prosecutor’s office and a private prosecutor may appeal against a despacho de não pronúncia ..."
Section 59 of Law no. 82/77 of 6 September 1977 on the administration of justice provides:
"The Criminal Court shall be competent for the pronúncia, the trial and the subsequent phases in respect of criminal cases, subject to sections 63, 67 and 70."
Article 8 of Legislative Decree No. 269/78 of 1 September 1978 implementing the aforementioned Law provides:
"The judges of the Criminal Court shall be competent for the pronúncia or its equivalent, the trial and the subsequent phases in respect of cases to be tried under the ‘de querela’ procedure or which are reserved to the court sitting as a bench."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22983
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: POSOKHOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Sergey Vitalyevich Posokhov, is a Russian national who was born in 1966 and lives in Taganrog. He is represented before the Court by Mr Aleksandr Kiryanov and Ms Yekaterina Kiryanova, lawyers practising in Taganrog.
On 5 July 1996, the applicant was arrested and detained on suspicion of having committed a serious breach of customs regulations.
On 8 July 1996, he was remanded in pre-trial custody by the decision of an investigative officer approved by the Public Prosecutor of Taganrog.
After two extensions of the detention, on 26 December 1996, the applicant was released.
On an unspecified date, the applicant lodged an application to the Constitutional Court seeking a declaration of the unconstitutionality of Articles 122 and 90 of the Code of Criminal Procedure which empowered investigative authorities to arrest suspects without judicial authorisation. The applicant’s position was that any period of detention longer than forty-eight hours should be ordered by a court, as required by Article 22 § 2 of the Constitution.
On 2 April 2001, the Constitutional Court dismissed the applicant’s case as inadmissible under the Law on the Constitutional Court. The court agreed that Article 22 § 2 of the Constitution made periods of detention longer than forty-eight hours possible only if ordered by a judge. However, the Constitution enacted in 1993 contained a transitional provision preserving the existing procedure for pre-trial detention pending the updating of the relevant laws. The court noted that despite the fact that over seven years had elapsed since the Constitution was passed, the lawmaker had failed to bring the detention procedure in line with the basic law of the country. Nevertheless, the applicant had been affected by this situation for only two and a half years – the period between the enactment of the Constitution and the applicant’s arrest – and, for this reason, could not be regarded as a victim of the alleged breach.
On 17 May 2000, the applicant filed an application to the North Caucasian Transport Prosecutor requesting that criminal proceedings be opened against the investigator who had dealt with his case. It was alleged that the investigator had been aware of the applicant’s innocence but had abused his authority by initiating an unfounded criminal prosecution.
As no reply was received from the North Caucasian Transport Prosecutor, on 11 June 2000, the applicant filed a complaint to the Prosecutor General. The applicant asked that the subordinate prosecutor be punished for negligence.
An official of the Prosecutor General’s Office forwarded the applicant’s complaint to the North Caucasian Transport Prosecutor, whose staff on 11 July 2000 issued an order refusing the applicant’s initial complaint about the investigator.
The applicant considered that the Prosecutor General’s Office did not have the right to transmit his complaint to the official complained about and on this ground issued proceedings against the Prosecutor General’s Office. He requested that the decision to transmit be found unlawful and invalidated.
The case was examined and dismissed on 22 June 2001 by the Taganrog Town Court. The court found that the Prosecutor General’s Office had not breached the law by forwarding the complaint, and that it gave a reply on the substance of the applicant’s allegations.
On appeal, this decision was upheld by the Rostov Regional Court on 9 January 2002.
According to Section 40 of the Federal Constitutional Law on the Constitutional Court of 24 June 1994, all applications reaching the court are registered unless they manifestly fall outside the court’s competence, do not meet formal requirements, are lodged by an improper person or are not accompanied by a fee. The registry of the court may inform an applicant that his or her application is not compatible with the above requirements, but the applicant has the right to insist that a decision to that effect be taken by the court.
According to Section 42 of the Law, a decision as to whether or not an application should be accepted for consideration (prinyatie obrashcheniya k rassmotreniyu) is taken by the court’s plenary. Only those cases which fall within the court’s jurisdiction, are not inadmissible in accordance with the Law, and do not repeat issues previously addressed by the court, are accepted for consideration.
Pursuant to Section 71 of the Law, the court’s final decision on the substance of a case is called a postanovleniye (a judgment). If a judgment declares a law unconsitutional, the effect of the judgment cannot be overcome by a re-enactment of the law.
All other decisions given in the course of constitutional proceedings are called an opredeleniye (a decision).


ITEMID: 001-100181
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: JULARIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Vlado Jularić, is a Croatian national who was born in 1960 and lives in Zagreb. He was represented before the Court by Mr D. Bučanac, a lawyer practising in Velika Gorica. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was placed in pre-trial detention in Zagreb Prison (Zatvor u Zagrebu) on 17 June 2001 following the institution of criminal proceedings against him on charges of double murder.
The applicant alleged that, on 20 August 2001, he had been severely beaten in Zagreb Prison by Ž.P., a prison guard.
The Government alleged that, on 20 August 2001, the applicant had first been taken to Zagreb Prison Hospital (Bolnica za osobe lišene slobode, hereinafter “the ZPH”) where he had undergone a psychiatric examination. After he had been taken back to his cell, the applicant had called Ž.P. and asked to be given a tranquilizer injection in the prison medical unit. Ž.P. had taken the applicant to the medical unit where the applicant had started to shout and had ignored warnings to stop. Even after he had received the injection, the applicant had continued to shout and insult Ž.P. and a member of the prison health care staff, Z.P., who was present at the scene. He had then started walking towards the toilets and had smashed the glass in one of the windows with his hand.
Ž.P. had followed the applicant and caught him in the toilets, where a fight between them had broken out. The applicant had punched Ž.P. and struck him whilst pinning him against a wall.
Meanwhile, Z.P. had called the prison officer on duty. Two officers, I.T. and M.P., had arrived at the scene and found the toilet doors stuck. After I.T. had forcefully opened the doors, he had seen the applicant striking Ž.P. whilst pinning him against a wall. The applicant had ignored warnings by the officers to stop and had continued to shout and push Ž.P. I.T., and then Ž.P., had used force in order to restrain the applicant. They had struck the applicant four or five times on the back and five or six times on the legs all with rubber truncheons. Because the incident had occurred in a small closed area, the applicant had also received some head wounds which had not been caused by rubber truncheon blows.
The applicant had then been examined by the prison doctor and taken to hospital.
The medical file showed that he had suffered bruising to his face, chest, shoulders, back, left upper leg and both knees. He was prescribed rest, pain killers and Heparin gel.
The applicant complained to the prison authorities, the Ministry of Justice and the Zagreb County Court (Županijski sud u Zagrebu).
On the same day Ž.P., I.T. and M.P. submitted their reports on the incident to the prison governor. Further to this, Z.P. and the prison doctor, G.Š., who had examined the applicant, gave their statements. A statement was also taken from the applicant.
On 21 August 2001 the Head of the Prison Security Service submitted his report on the incident to the prison governor who, in turn, submitted a report to the Ministry of Justice Administration for the Execution of Criminal Sanctions.
On 22 August 2001 the prison governor told the Zagreb County Court about the incident, because the criminal proceedings against the applicant were still pending before that court.
Further statements were taken from the applicant, Ž.P., and I.T. before an employee of the Ministry of Justice.
On 3 September 2001 disciplinary proceedings were instituted against Ž.P., I.T. and the Head of the Prison Security Service. On 25 January 2002 the proceedings were terminated on the grounds that they had been instituted on the basis of the statements given by the prison officers, which were considered to be unlawful evidence.
In the criminal proceedings against him, on 24 May 2002 the applicant was found guilty of murder and causing grievous bodily harm. He was sentenced to fourteen years' imprisonment. On 13 January 2003 the applicant was transferred to Lepoglava State Prison (Kaznionica u Lepoglavi, hereinafter “the LSP”).
The applicant's medical record from the LSP shows that in 1991, during the Homeland War in Croatia, he had suffered from a gunshot wound to his heart and lungs. Afterwards, on several occasions, he suffered from pericarditis (inflammation of the pericardium, the membrane forming the outer covering of the heart), the last time he suffered from this was in 1997. Since 1992 he has been receiving treatment for post-traumatic stress disorder (“PTSD”).
Since his arrival at the LSP the applicant has regularly been examined by the ZPH doctor. Thus, he was examined by the doctor on seventeen occasions in 2003, on thirty occasions in 2004, on thirty-four occasions in 2005, on thirteen occasions in 2006, on seventeen occasions in 2007, on six occasions in 2008 and on two occasions in 2009. He was also treated for PTSD (with pharmacotherapy); hemorrhoids; gingivitis (inflammation of the gums); dermatitis; chronic pericarditis; acute rhinopharyngitis; acute conjunctivitis; acute laryngitis; influenza; angina pectoris; umbilical hernia; chronic gastritis; neck pain; chest-wall tumour; and lumboischialgia (back pain).
The applicant stayed in the ZPH from 17 June to 13 July 2001 and was treated for PTSD with pharmacotherapy. The discharge letter indicates that he did not show signs of psychosis or suicidal intentions.
He was again treated in the ZPH from 20 August to 23 August 2001 in connection with the injuries he had suffered on 20 August 2001 (see above). Subsequently, from 23 August to 1 October 2001 he was treated at the Neuropathology Ward.
On 10 May 2002 he was examined by the ZPH doctor in connection with pericarditis. Laboratory tests were taken, as well as lung and heart X-ray examinations and an electrocardiogram. On 17 December 2002 he was again examined by the ZPH doctor and was prescribed pharmacotherapy in connection with the PTSD.
The applicant was hospitalised in the ZPH from 27 April to 31 May 2004 and was treated for chronic gastritis, liver lesions, hyperlipidemia (increased cholesterol), fibrothorax (fibrosis of the pleural space surrounding the lungs), PTSD and heartburn.
From 26 August to 8 September 2009 he was treated for angina pectoris, gastritis, hyperlipidemia and post-thoractomry syndrome (post-operative chest pain).
On 28 January 2003 the applicant was taken to Varaždin General Hospital (Opća bolnica Varaždin) in connection with heart pain. He was prescribed medication.
On an unspecified date he was examined by an otorhinolaryngologist in the Šalata Clinical Centre in Zagreb (Klinički bolnički centar Šalata).
On 19 July 2004 he was taken to the Ivanec Medical Centre in connection with pharyngitis (inflammation of the throat). He was examined by a psychiatrist from the Ivanec Medical Centre on 20 January 2005 and by another doctor on 26 May 2005 (for heart problems).
The applicant was treated by a cardiologist at Varaždin General Hospital on 17 February and 6 October 2005.
He was examined by a radiology and neuroradiology specialist at the Radiology, Neurology and Cardiology Clinic in Zagreb on 9 March 2007.
On 21 March 2007 he was examined by a neurosurgeon and generalist at Varaždin General Hospital.
On 1 March 2007 the applicant petitioned the Varaždin County Court judge responsible for the execution of sentences (sudac izvršenja Županijskog suda u Varaždinu), seeking his temporary release on health grounds. He explained that he had been wounded in the heart and lungs which had had permanent and life-threatening consequences. Furthermore, he had suffered from severe back and neck pain. The judge ordered the opinion of a medical expert, who established that the applicant was totally disabled. The applicant suffered from heart disease, permanent degenerative deterioration of his spine and various chronic ailments. His opinion was that there were no indications that surgery was necessary and he recommended physiotherapy. There was no worsening of the applicant's chronic medical condition.
On 4 May 2007 the Varaždin County Court judge responsible for the execution of sentences refused the applicant's request. This decision was upheld by a three-judge panel of the Varaždin County Court on 5 June 2007.
On 27 June 2007 the applicant again petitioned the Varaždin County Court judge responsible for the execution of sentences, seeking his temporary release on health grounds. The judge asked staff at the ZPH whether they were able to provide the applicant with adequate medical care and the answer was affirmative. The judge further found that Varaždin General Hospital was able to provide the applicant the required physiotherapy.
On 15 January 2008 the applicant again petitioned the Varaždin County Court judge responsible for the execution of sentences, seeking his temporary release on health grounds. The request was granted and the applicant's prison term was stayed from 23 April to 21 June 2008 on health grounds. It was established that the medical treatment being provided to the applicant had not led to any improvement in his health and that a further recommendation, which suggested a three-weeks course of physiotherapy at a health spa was not possible under prison conditions. On 11 June 2008 the judge extended the applicant's temporary release until 21 August 2008 on the grounds that the applicant was to undergo hernia and sinus surgery. On 19 August 2008 the judge extended the applicant's temporary release until 18 November 2008 in order for him to undergo psychiatric treatment. On 6 November 2008 the judge extended the applicant's temporary release until 18 January 2009 on the grounds that the applicant had to undergo nose surgery and treatment at a health spa.
On 14 January 2009 the judge extended the applicant's temporary release until 18 April 2009 on the grounds that the applicant had to undergo tumour-related surgery and physiotherapy.
On 27 April 2009 the judge extended the applicant's temporary release until 15 June 2009. On 4 June 2009 the judge extended the applicant's temporary release until 20 June 2009.
On 23 June 2009 the applicant again petitioned the Varaždin County Court judge responsible for the execution of sentences, seeking his temporary release on health grounds.
A further decision by the same judge to the same effect was adopted on 30 October 2009, allowing the applicant to be released on health grounds from 9 November to 13 December 2009.
Since the latter date the applicant has stayed in the LSP in a semi-open regime. He is placed in a cell measuring 20, 64 square metres together with three other inmates. He is confined to the cell between 11 p.m. and 6 a.m. and at 7 p.m. for a short period. Otherwise, he is free to spend his time in communal premises of outside in the prison's courtyard.
The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
“(1) Inmates shall have the right to complain about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...”
“(1) Inmates shall be provided with medical treatment and proper care of their physical and mental health...”
“...
(2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate's health.”
“(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor.
...”
...
(2) Temporary release may be allowed on the following grounds:
1) to an inmate suffering from a serious acute illness or whose chronic illness worsening and where his or her medical treatment is not possible in prison.
...”


ITEMID: 001-61548
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PALAU-MARTINEZ v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: András Baka;Gaukur Jörundsson
TEXT: 7. The applicant is a French citizen who was born in 1963 and lives in Alcira, near Valencia (Spain).
8. The applicant married in January 1983. She and her husband had two children, born in 1984 and 1989.
9. In August or September 1994 the applicant's husband left the matrimonial home and moved in with his mistress. In December 1994 the applicant petitioned for divorce.
10. By a judgment of 5 September 1996, the Nîmes tribunal de grande instance ruled on the divorce petition. It found, firstly, that a reading of the submitted documents had not established that the applicant's membership of the Jehovah's Witnesses had been the cause of the break-down in the couple's relationship, but that it had been attested that her husband had left the matrimonial home to live with his mistress, and had also prevented the applicant from working in the pizzeria they ran. Accordingly, it granted the divorce, attributing fault to the husband alone.
11. With regard to the children, the court decided that they would reside with their mother in Spain and that parental responsibility would be exercised jointly. The father was to have visiting and residence rights on an unrestricted basis and, in the absence of agreement, during the whole of the children's school holidays, provided that he collected them himself and escorted them back to their mother's home. It set the amount of the father's maintenance payments at 1,500 French francs (FRF) per month and per child.
12. On 21 November 1996 the applicant appealed against this judgment. She asked to be given access for one month during the children's summer holidays and one week during the Christmas and Easter holidays. She also renewed her request for a complementary allowance. In her pleadings in reply, the applicant complained that her ex-husband had not returned the children to her at the end of the 1997 summer holidays and had enrolled them in a school in Aigues-Mortes, where he lived with his new companion. She submitted that the father had influenced the children so that they would express a wish to live with him; she filed statements and photographs intended to show that she was bringing up her children with great care and that they were allowed to take part freely in any activity that interested them. She requested that a social inquiry report be drawn up.
13. The Nîmes Court of Appeal delivered judgment on 14 January 1998. It upheld the judgment with regard to the divorce pronouncement and awarded the applicant a complementary allowance of FRF 1,500 per month for three years. With regard to the children's place of residence, the court found as follows:
“The two under-age children, C., aged 13, and M., aged 8, currently live with their father in Aigues-Mortes, where they attend school.
This is a de facto situation which has been brought about by the father, who, contrary to the provisions of the appealed judgment, failed to return the children to their mother's home at the end of the summer holidays.
In justifying his behaviour, R. claims that he has acted in the children's interests, in order to remove them from the detrimental influence of their mother and her circle, who oblige them to practice the religion known as 'the Jehovah's Witnesses'.
Furthermore, R. has submitted a letter from child C., expressing the latter's wish to remain with his father, together with a medical certificate drawn up by Doctor D., a psychiatrist, on 7 January 1997, which states that child C. 'experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating' and that 'child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997'.
Finally, numerous other witness statements testified to the children's expressed wish not to return to Spain.
Séraphine Palau-Martinez does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion.
Admittedly, she has submitted numerous statements attesting to her affection for her children and showing that she provides for their well-being, and has filed group photographs in which her children appear happy.
Taken together, however, the submitted documents are not inconsistent with the arguments of R., who does not wish to deny the mother's maternal attributes but restricts himself to criticising the strict upbringing received by the children on account of their mother's religious convictions.
The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers' children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise.
It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect.
There is no reason to order a social inquiry report which, in the present circumstances, would serve only to unsettle the children.
In the light of the above analysis, the Court considers that, contrary to the lower court's decision, the two under-age children's place of residence should be their father's home, but that parental responsibility should continue to be exercised jointly.
Should no agreement be reached [between the parents], Séraphine Palau-Martinez will enjoy free right of access and the right to have the children to stay:
– for the whole of the February and All Saints holidays;
– for one month during the summer holidays;
– for half of the Easter and Christmas holidays, when it will be for the mother to collect the children from the father's home and for the latter to collect them from the mother's home; ...”
14. The applicant appealed on points of law. In particular, she complained that the Court of Appeal had reversed the first-instance judgment on the central ground that the rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers' children were open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise; in so deciding, it had done no more than apply a general and abstract ground and had failed to investigate whether, in reality, the children's upbringing was disrupted to an extent that justified changing their place of residence. She considered that this value judgment on the way in which she practised her religion, taken in abstracto, did not justify the court's decision. She added that the manner in which the court had asserted that it was in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembled a sect had been just as abstract. She also complained that the Court of Appeal had refused to grant her request for a social inquiry report. Referring to freedom of conscience and religion and to the rules of a fair hearing, she relied on Articles 9 and 6 of the Convention.
15. The Court of Cassation delivered its judgment on 13 July 2000. After summarising the grounds of the Court of Appeal's judgment, it ruled as follows:
“It is apparent from these findings and considerations that the Court of Appeal, which replied to the submissions without inconsistency, was not obliged to order a social inquiry report and did not interfere with Ms Palau-Martinez's freedom of conscience, ruled, on the basis of the evidence which it alone is empowered to assess, that the children's interests required that their father's home be established as their habitual place of residence; ...”
16. The relevant provisions of the Civil Code provide:
“Parental responsibility shall be exercised jointly by both parents. Failing an agreement or where the court considers that such an agreement goes against the child's interests, the court shall designate the parent with whom the children shall habitually reside.
Where it is necessary in the interests of the child, the court may confer parental responsibility on one of the two parents.
On their own initiative or at the court's request, the parents may submit their observations on the arrangements for exercising parental responsibility.”
“Prior to any interlocutory or final decision setting out the arrangements for the exercise of parental responsibility and visiting rights, or entrusting the children to a third party, the court may instruct any qualified person to draw up a social inquiry report. The aim of this document is to gather information on the family's material and moral situation, the conditions in which the children live and are brought up, and the measures which should be taken in their interests.
If one of the spouses disputes the conclusions of the social inquiry report, he or she may request a second expert opinion.
The social inquiry report may not be used in the divorce proceedings.”
VIOLATED_ARTICLES: 14
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-86523
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MCKENZIE  v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: The applicant, Mr Stuart McKenzie, is a British national who was born in 1937 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 14 March 2000. They had no children from the marriage. In June 2002 the applicant made a claim for widows’ benefits under the new system in place as from 9 April 2001. On 26 June 2000 the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before 9 April 2001. The applicant appealed on 25 July 2002 and on 16 August 2002 he was advised that he had no right of appeal.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.