ITEMID: 001-57675
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF EZELIN v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 9. Mr Roland Ezelin is a French national who lives at Basse-Terre (Guadeloupe). He practises as a lawyer (avocat).
10. On 12 February 1983 a number of Guadeloupe independence movements and trade unions held a public demonstration at Basse-Terre to protest against two court decisions whereby prison sentences and fines were imposed on three militants for criminal damage to public buildings. The applicant, who was Vice-Chairman of the Trade Union of the Guadeloupe Bar at the time, took part and carried a placard.
11. The Chief Superintendent of the Basse-Terre police drew up a report on the very same day and sent it to the local public prosecutor. The report, which had eleven appendices, gave the following account:
"While at the station,
I was informed in a radio message that the demonstration being held today by various independence movements in the Champ d’Arbaud, Basse-Terre, from 9 a.m. onwards, whose progress we were monitoring, had taken the form of a procession in town. Demonstrators had set off at 10.30 a.m. and were marching through the streets of the town chanting slogans hostile to the police and the judiciary. During the procession graffiti were daubed in paint on various buildings, in particular the Institut d’émission d’Outre-mer, known as the ‘Central Treasury’.
The group of 450-500 people which had left the Champ d’Arbaud had joined another group of 500 people, at the rue Schoelcher, forming a compact group of about a thousand people headed by the leaders, who announced over loudspeakers the slogans to be chanted. The following were recognised among these leaders:
Roland Thesauros (University of West Indies-Guiana); Luc Reinette, leader of the MPGI (Popular Movement for an Independent Guadeloupe), a former member of the GLA, who came out of prison after 10 May 1981; Max Safrano, presumed head of the ALN (National Liberation Army), against whom criminal charges had been brought and who had been released from Basse-Terre Prison the previous day; Fernand Curier of the UTS/UGTG Trade Union, recently (1 February 1983) sentenced by the Basse-Terre Court of Appeal to 15 days’ imprisonment and a fine of 10,000 francs; the sister of Joseph Samson, another person given the same sentence on 7 February 1983 by the Basse-Terre Criminal Court; Rosan Mounien, another member of the UTA/UGTG Trade Union;Marc-Antoine, convicted by the Basse-Terre Court of Appealon 7 September 1983 along with Alexander, ... and others,known to be particularly fanatical and determinedextremists, including one Rupaire, etc ... This processionwas now in the Cours Nolivos and was entering the rue de laRépublique and would soon be arriving in front of the policestation.
At this point I reported what was happening to the Chief Constable (call-sign ‘Polaire’), who was at the Law Courts with two squads of riot police which we had agreed to deploy at the bottom of the boulevard Félix-Eboué in order to bar access to the Law Courts and prevent any damage to the building and to the département council building.
At ten past eleven the demonstrators reached the police station and assembled in front of it.
While I made the necessary arrangements for countering any attack on the building, the demonstrators took up their position in front of the police station and were addressed by two leaders from outside the district who were unknown to the police officers present. The speakers, who spoke in Creole, urged the police officers to move up and join them. There followed a violent tirade against Police Officer Beaugendre, who was accused of betrayal, after which the crowd of demonstrators rhythmically chanted ‘BEAUGENDRE-MAKO! UN JOU OU KE PAYE’ (One day you will pay).
The following were identified among the demonstrators: Roland Thesauros, Luc Reinette, Max Safrano, Fernand Curier, Rosan Mounien, Rupaire, Marc-Antoine, Samson’s family (see report no. 1) and Dr Corentin (see report no. 7) and Mr Ezelin, a barrister; the two last-mentioned displayed a banner with the words ‘LAWYERS - DOCTORS’ (see report no. 7). The majority of demonstrators, however, including the most worked up and the most aggressive ones, were people from outside Basse-Terre, most of them from Grande-Terre island, it seemed, and consequently unknown to the police.
The demonstrators left the police station at about 11.30 a.m. and headed in the direction of the Law Courts and the council building. My Chief Constable, who was continuously kept informed of events, then told me that he had abandoned the idea of blocking the lower end of the boulevard Eboué with a police line - as we had agreed, with the aim of preventing the demonstrators from approaching the two danger spots, the Law Courts and the council building - because the demonstrators’ numerical superiority was too great.
The procession then went along the boulevard Félix-Eboué and eventually reached the Champ d’Arbaud, where it dispersed after having made two lengthy halts during which further speeches were made and slogans chanted by the crowd, firstly in front of the Law Courts in order to insult the judges and then outside the prison in order to demonstrate their solidarity with the imprisoned militants. After the demonstrators had gone past, it was found that they had taken advantage of these stops to paint offensive and insulting graffiti in green, red and black on the walls of the administrative buildings.
The investigation that was immediately undertaken failed to identify those responsible for defacing the buildings. According to information received, most of the graffiti were the work of girls who were not from Basse-Terre, no doubt to avoid recognition as far as possible. One of them was claimed to be a teacher from Pointe-à-Pitre, but this could not be positively established. The intelligence service (Renseignements généraux) confirmed that the persons responsible for the graffiti were among the demonstrators who arrived by coach from Pointe-à-Pitre. They did not know their identities.
I am accordingly sending you this report as it stands at present.
The case is receiving my officers’ full attention, however.
Any new development or information making it possible to identify the perpetrators would immediately be followed up and I would not fail to keep you informed."
12. A judicial investigation was commenced on 21 February 1983 into the commission by a person or persons unknown of offences of criminal damage to public buildings and insulting the judiciary.
13. On 24 February, the Principal Public Prosecutor at the Basse-Terre Court of Appeal wrote to the Chairman of the Guadeloupe Bar as follows:
"Please find enclosed a photocopy of a police report of 21 February 1983 from which it appears that Mr Ezelin, of the Guadeloupe Bar, took part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code." [See paragraph 23 below.]
"Would you kindly let me have your opinion of this case after hearing your colleague’s explanations."
14. In a letter of 14 March 1983 the Chairman of the Bar informed the Principal Public Prosecutor of the outcome of his investigations, as follows:
"... Mr R. Ezelin [had] not [been] carrying a banner with another person but [had been] carrying a placard on his own which bore the words ‘Trade Union of the Guadeloupe Bar against the Security and Freedom Act’.
No act, gesture or words insulting to the judiciary [could] be attributed to him.
His participation in a demonstration [had] therefore [been] confined to protesting at the use of the ‘Security and Freedom’ Act.
... ."
And he concluded:
"This being so, having regard to:
(a) the facts: even assuming the worst as regards Mr Ezelin, the report by [the] Chief Superintendent ... does not accuse him of any insulting gesture, act or words; and
(b) the provisions of Article 226 of the Criminal Code, it does not seem to me that my colleague Mr Ezelin can have incurred any liability in exercising his right to join a demonstration which had not been prohibited, carrying a placard with the words ‘Trade Union of the Guadeloupe Bar against the Security and Freedom Act’.
... ."
15. After a postponement, the applicant was summoned to appear before the investigating judge on 25 April 1983 in order to give evidence as a witness, and at the interview he stated that he had nothing to say on the matter.
16. On 19 May 1983 the judicial investigation ended with a discharge order on the ground that no evidence had been obtained which would make it possible to identify those responsible for the graffiti or for the insulting or threatening words uttered during the demonstration.
17. On 1 June 1983 the Principal Public Prosecutor sent the Chairman of the Bar a complaint against the applicant, which read as follows:
"Further to my letter of 24 February 1983 and our conversation of 31 May last, I wish to bring to your attention, under Article 113 of the Decree of 9 June 1972," - see paragraph 25 below - "the conduct of Mr Ezelin, whose name appears on the roll of the members of the Guadeloupe Bar.
In my earlier letter I sent you a photocopy of a police report of 21 February 1983 which gave an account of Mr Ezelin’s participation in a demonstration at Basse-Terre on 12 February 1983.
The aim of the demonstration was to protest against two court decisions, the first of which was given on 1 February 1983 by the Basse-Terre Court of Appeal against Fernand Curier and the other of which was given on 7 February 1983 by the Basse-Terre tribunal de grande instance against Gérard Quidal and Joseph Samson, who were charged with offences of criminal damage to public buildings.
During the demonstration, a number of particularly offensive graffiti were daubed in paint on the walls of the Law Courts calling one of the judges who had taken part in one of the decisions a fascist and calling all the judges ‘MAKO’ [pimps].
The demonstrators even chanted death threats on numerous occasions against police officers who witnessed the events.
The Basse-Terre investigating judge opened an investigation into the commission by a person or persons unknown of offences of criminal damage to public buildings, insulting the judiciary and aiding and abetting.
All the persons reported as having taken part in the demonstration were interviewed and they stated either that they had not seen anyone paint the graffiti or, at the very least, that they did not know who the people responsible were.
Only Roland Ezelin refused to answer the questions.
As the proceedings ended with a discharge order, I am sending you attached a photocopy of the record of his examination as a witness, the date of which had been delayed for more than a month in order to suit his convenience.
This attitude therefore strengthens, in my opinion, the view that Mr Ezelin, who was acquainted with the purpose of the demonstration (cf. photocopies of the leaflets distributed during it), wanted, by taking part in it, to associate himself in exemplary fashion with a political organisation’s criticisms of the judiciary in Guadeloupe and that, at all events, neither the death threats nor the insulting graffiti directed against judges before whom he argued cases surprised him on this occasion or even shocked him as a barrister.
His refusal to reply to the investigating judge as a witness displays, moreover, an attitude of contempt for justice.
In these circumstances I consider that there has been in this case a breach under Article 106 of the Decree of 9 June 1972" - see paragraph 25 below - "and I accordingly would ask you to kindly bring disciplinary proceedings against Mr Ezelin before the Bar Council.
... ."
18. At a disciplinary hearing held under Article 104 of Decree no. 72-468 of 9 June 1972 (see paragraph 25 below), the Bar Council adopted the following decision on 25 July 1983:
"...
At the request of the Principal Public Prosecutor, the Chairman of the Bar has already given an opinion dated 14 March 1983 as to the first series of charges against Mr Ezelin. It appears both from that opinion and from further explanations obtained from Mr Ezelin that he took part in the relevant demonstration in response to a call by the Trade Union of the Guadeloupe Bar, of which he is one of the leaders, in order to protest against the use of the direct-committal procedure" - obviating the need for a preliminary judicial investigation - "and the continuation in force of the so-called Security and Freedom Act, which has since been repealed. It does not appear from the judicial investigation that Mr Ezelin committed a breach of Article 106 of the Decree of 9 June 1972 in connection with taking part in the aforesaid demonstration or that any disciplinary sanction can consequently be imposed on him.
The inquiries made into these events have, moreover, been brought to an end with a discharge order that has now become final.
As regards the second series of charges against Mr Ezelin, it appears both from the judicial investigation and from Mr Ezelin’s explanations that his refusal to make a statement to the investigating judge was prompted by anxieties based on Article 105 of the Code of Criminal Procedure" - see paragraph 24 below - "and a concern to comply with Article 89 of the Decree of 9 June 1972," - see paragraph 25 below - "as some of the persons summoned by the investigating judge in connection with the events on which his evidence was being sought had previously consulted him as a lawyer.
It is true, as Mr Ezelin maintained, that in a letter of 24 February 1983 the Principal Public Prosecutor informed the Chairman of the Bar that Mr Ezelin ‘[had taken] part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code’.
Mr Ezelin, having been informed of this charge, was thus justified in relying on the provisions of Article 105 of the Code of Criminal Procedure.
While it may seem regrettable that Mr Ezelin did not make clearer to the judge his reasons for refusing to make a statement, it does not appear to the board that this refusal may be regarded as contempt for justice and the judiciary. Moreover, if it had been deemed sufficiently serious to amount to obstructing the normal course of the proceedings in question, the investigating judge would not have failed to avail himself of the provisions of Article 109 of the Code of Criminal Procedure" - see paragraph 24 below - "nor the prosecution to make the appropriate applications before the discharge order was made closing the investigation proceedings in connection with which Mr Ezelin had been summoned as a witness.
Consequently, having regard to the evidence, to Mr Ezelin’s explanations and to his usual excellent professional conduct, the board considers that there is no occasion to impose any disciplinary sanction on Mr Ezelin,
For these reasons,
The Bar Council, acting in its disciplinary capacity and at first instance,
Decides
1. There is no occasion to impose any disciplinary sanction on Mr Roland Ezelin on account of the matters of which it was seised by the Principal Public Prosecutor on 1 June 1983.
2. The board recommends the Chairman of the Bar to remind both Mr Ezelin and the whole of the Bar of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats may be involved.
... ."
19. The Principal Public Prosecutor appealed to the Basse-Terre Court of Appeal against this decision. At the hearing he asked the Court to impose on the applicant the disciplinary penalty of a warning.
20. On 12 December 1983 the Court of Appeal reversed the Bar Council’s decision and imposed the disciplinary penalty of a reprimand on Mr Ezelin, a heavier penalty than a warning:
"...
It is established that on 12 February 1983 Mr Ezelin took part in a demonstration in the streets of Basse-Terre.
The police report and appended documents make it clear beyond contradiction that the acknowledged purpose of the demonstration, which was organised by the independence movements in the département, was to protest noisily against the recent sentences of three militants to 15 days’ imprisonment and a FRF 10,000 fine for damage to administrative buildings."
[There followed a summary of the report reproduced in paragraph 11 above.]
"It is not alleged that Mr Ezelin took part in this demonstration any more actively than by his constant presence and by carrying a placard.
Following those events a judicial investigation was opened into the commission by a person or persons unknown of offences of damage to public buildings, insulting the judiciary and aiding and abetting. Mr Ezelin was summoned as a witness by the investigating judge, together with a number of other persons recognised by the police officers. After he had taken the oath, his examination is recorded as follows:
‘You explain to me the circumstances of the events which have given rise to this case. I have nothing to say on the matter.
After an intervention: I repeat that I have nothing to say on the matter.
Question: Were you present at the demonstration which took place on 12 February last in the streets of Basse-Terre? If so, did you see anybody painting anything on the walls of various buildings in the town?
Answer: I have nothing to say on the matter.
Read, confirmed and signed together with me and the registrar.’
It appears from the foregoing that Mr Ezelin, avocat at the Court of Appeal and member of the Bar Council, participated in the whole of the demonstration which took place in the aforementioned, undisputed circumstances.
During this demonstration serious threats were continually made against a police constable and insults uttered against various other persons, including a judge of the Court of Appeal, a well-known regional figure and the judiciary as a whole, and the walls of the Law Courts and of the département council building opposite were covered with particularly offensive and insulting graffiti directed against the same persons.
It is beyond doubt that Mr Ezelin, who formed part of the procession, notably when it halted in front of the police station, the Law Courts and the prison, could not have failed to see these insulting and offensive graffiti being painted in very large letters on all the walls of the Law Courts - the place of work of judges and barristers alike - and of the council building, and that he could not have failed to hear the threats and insults that were unceasingly directed against the same people.
He was there in his capacity as an avocat, since he carried a placard announcing his profession, and at no time did he dissociate himself from the demonstrators’ offensive and insulting acts or leave the procession.
Such misconduct on the part of a member of the Bar publicly proclaiming his profession cannot be justified - as has been submitted on his behalf - by personal beliefs or trade-union instructions, and it amounts to a breach of discretion under Article 106 of the Decree of 9 June 1972.
Furthermore, Mr Ezelin, when examined as a witness by the investigating judge, refused to give evidence about matters of which he had knowledge, without giving any reason.
He thus contravened the provisions of Article 109, third paragraph, of the Code of Criminal Procedure, which are binding on all citizens and of whose requirements he could not, as a lawyer, be unaware.
Seeing that Mr Ezelin contravened a statutory provision and showed a lack of discretion, he rendered himself liable to the disciplinary sanctions listed in Article 107 of the Decree of 9 June 1972." [See paragraph 25 below.]
"Having regard to the unanimously favourable opinion of his professional conduct, the Court considers that the penalty should be a reprimand.
For these reasons,
Having regard to sections 22 et seq. of Act no. 71-1130 of 31 December 1971 and Articles 104 et seq. of Decree no. 72-468,
Sitting in public as a full court,
Sets aside the decision taken on 25 July 1983 by the Council of the Bar of the département of Guadeloupe at the Basse-Terre Court of Appeal, sitting as a disciplinary board,
Sentences Mr Ezelin, of that Bar, to the disciplinary penalty of a reprimand; and
Awards costs against him.
... ." (Gazette du Palais, 9 February 1984, jurisprudence, pp. 76-77)
21. The applicant appealed on points of law. He argued in particular that the disciplinary sanction imposed on him infringed Articles 10 and 11 (art. 10, art. 11) of the Convention.
On 19 June 1985 the Court of Cassation (First Civil Division) delivered a judgment dismissing the appeal. It said, inter alia:
"...
The Court of Appeal ... did not hold [Mr Ezelin] liable in virtue of a collective responsibility for criminal offences committed by other demonstrators but stated that during the demonstration, whose purpose was to protest noisily against recent criminal sentences, insults had been uttered and offensive graffiti daubed on all the walls of the Law Courts, directed against the judiciary as a whole and against a judge of the Court of Appeal by name and a well-known figure in the département who practised as a barrister. The Court of Appeal added that Mr Ezelin, who was at the demonstration as an avocat and had heard the threats and insults and seen the offensive graffiti daubed on the walls of the Law Courts, the place of work of judges and barristers alike, did not at any time express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts. It was entitled to infer from this that the behaviour was a breach of discretion amounting to a disciplinary offence. ...
...
... Article 109 of the Code of Criminal Procedure lays a duty on any person heard as a witness to give evidence; and by Article 106 of the Decree of 9 June 1972, any infringement of statutes or regulations constitutes a disciplinary offence, irrespective of the investigating judge’s power to fine a witness who refuses to give evidence. The Court of Appeal found that in reply to the questions put by the investigating judge, and in particular the question: ‘Were you present at the demonstration in the streets of Basse-Terre on 12 February 1983?’, Mr Ezelin said merely: ‘I have nothing to say on the matter’. It added that Mr Ezelin gave no reason to explain this attitude. It was entitled to infer from this that Mr Ezelin, who had thus refused to give evidence without justifying his refusal on the basis of Article 105 of the Code of Criminal Procedure or of professional confidentiality, had committed a breach of the law and of discretion vis-à-vis the investigating judge and that these amounted to a disciplinary offence. The Court of Appeal thus justified its decision in law, and none of the limbs of the ground of appeal is well-founded ... ." (Gazette du Palais, 11-12 October 1985, pp. 16 and 17)
22. The following provisions of French law need to be set out:
23.
"Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court, in a manner likely to impair the authority or independence of the judiciary, shall be liable to imprisonment for not less than one month and not more than six months and a fine of not less than 500 francs and not more than 90,000 francs or to only one of these two penalties."
24.
"An investigating judge in charge of an investigation and judges and senior police officers (officiers de police judiciaire) acting on judicial warrants shall not, with the intention of preventing the exercise of the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt."
"Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence, subject to the provisions of Article 378 of the Criminal Code [duty of professional confidentiality].
If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and impose on him a fine of not less than 2,500 francs and not more than 5,000 francs. If the witness subsequently appears, however, he may, if he apologises and provides an explanation, be excused this penalty by the investigating judge, after the public prosecutor has made submissions.
The same penalty may, on an application by the prosecutor, be imposed on a witness who, although he has appeared, refuses to take the oath and to give evidence.
... ."
25.
"An avocat must not, in any matter, make any disclosure in breach of professional confidentiality. He must, in particular,respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation."
"The Bar Council sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll, list of trainees or list of honorary avocats."
"Any contravention of statutes or regulations, infringement of professional rules or breach of integrity, honour or discretion, even relating to non-professional matters, shall render the avocat responsible liable to the disciplinary sanctions listed in Article 107."
"The disciplinary penalties shall be:
A warning; A reprimand; Suspension for a period not exceeding three years; Striking off the roll of avocats or list of trainees or withdrawal of honorary status.
A warning, a reprimand and suspension may, if so provided in the decision in which the disciplinary penalty is imposed, entail loss of membership of the Bar Council for a period not exceeding ten years.
The Bar Council may further order, as an ancillary penalty, that any disciplinary penalty shall be publicly displayed on the Bar’s premises."
"The Chairman of the Bar, either on his own initiative or on an application from the Principal Public Prosecutor or on a complaint by any party affected, shall inquire into the conduct of the avocat concerned. He shall then either discontinue the proceedings or refer the matter to the Bar Council.
If he has received a complaint, he shall inform the complainant. If the facts were reported to him by the Principal Public Prosecutor, he shall notify the latter.
... ."
26. Avocats are bound by the oath they take when entering upon their duties. The wording of the oath is given in section 1 of the Act of 15 June 1982:
"I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner."
Before that Act came into force, the oath was worded as follows:
"I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner, with respect for the courts, the public authorities and the rules of the Bar, and neither to say nor to publish anything contrary to statute, regulations, morals, the security of the State, or public order." (Article 23 of the Decree of 9 June 1972)
An avocat who took the oath before the Act of 15 June 1982 came into force is deemed to have taken it in its current form.
27. In a judgment of 9 June 1964 the Court of Cassation (First Civil Division) held that the avocat’s oath "also [bound] him in all circumstances not to deviate from the respect due to the courts and to the public authorities; ...". (Juris-Classeur périodique 1964, II, no. 13797, note by J.A.)
Moreover, in a judgment of 30 June 1965 (Criminal Division, Bouvier) the Court of Cassation held that an avocat, while being entitled to protest at any infringement of the rights of the defence, must refrain from any expression which would reflect on the honour or discretion of a judge.
VIOLATED_ARTICLES: 11


ITEMID: 001-4980
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: L.N. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Netherlands national, born in the Netherlands in 1956. He is in prison in Heerhugowaard (the Netherlands). He was formerly resident in the town of Alkmaar.
He is represented before the Court by Ms Ties Prakken, a lawyer practising in Amsterdam.
A.


ITEMID: 001-76128
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VUKOVIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1952 and lives in Celje.
6. On 12 April 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 17 December 1997 the applicant instituted proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 3,720,000 Slovenian tolars (approximately 15,500 euros) for the injuries sustained.
Between 16 April 1998 and 19 December 2003 the applicant lodged eleven preliminary written submissions and/or adduced evidence.
Of the four hearings held between 10 September 1998 and 15 January 2004, none was adjourned at the request of the applicant.
During the proceedings, the court appointed a medical expert and two traffic experts.
Between 20 July 2001 and 1 December 2003 the court twelve times urged a preparation of one of the expert opinions and the applicant eight times requested that this expert opinion be provided.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 19 February 2004.
8. On 20 February 2004 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 30 September 2005 the Celje District Court issued a decision correcting the judgement.
On 20 December 2005 it handed down a supplementary judgement (dopolnilna sodba). On 5 January 2006 the applicant appealed also against the supplementary judgement.
The proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68618
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF RIEG v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1954 and lives in Laupheim (Germany).
7. On 17 January 1997 at 18.45 p.m. the car of which the applicant is the registered owner was caught in Austria by a radar-trap exceeding the speed limit by 26 km/h.
8. On 12 March 1997 the Dornbirn District Administrative Authority (Bezirkshauptmannschaft) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) to disclose within two weeks the full name and address of the person who had been driving her car at the material time on 17 January 1997.
9. On 24 March 1997 the applicant replied that Mr J.S. [first and family name in full], living in Mostar, Bosnia-Herzegovina had been the driver.
10. On 17 April 1997 the Dornbirn District Administrative Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,500 Austrian schillings (ATS) with two days' imprisonment in default.
11. The applicant filed an objection against this decision.
12. On 22 September 1997 the District Administrative Authority dismissed the applicant's objection and issued a penal order (Straferkenntnis) confirming its previous decision. It found that the applicant had failed to give complete information as requested in the order of 12 March.
13. The applicant appealed on 1 October 1997 submitting in particular that she had replied to the District Administrative Authority's order, but had been unable to find out the exact address of Mr J.S. Further, she claimed that the obligation under section 103 § 2 of the Motor Vehicles Act to disclose the driver of her car violated the presumption of innocence and her right not to incriminate herself. Finally, she pointed out that she was a German national and that German law did not contain a comparable obligation of the registered car owner to disclose who had been driving the car at a specified time.
14. On 26 November 1997 the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal. As to the applicant's complaint that the obligation under section 103 § 2 of the Motor Vehicles Act violated the right not to incriminate oneself and the presumption of innocence, it noted that the relevant sentence of that provision had constitutional rank.
15. On 30 December 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She repeated the complaint as to the alleged violation of her right not to incriminate herself.
16. On 9 June 1998 the Constitutional Court declined to deal with the applicant's complaint for lack of sufficient prospects of success.
17. On 30 June 2000 the Administrative Court (Verwaltungsgerichtshof) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake.
18. The applicant was not prosecuted for exceeding the speed limit.
19. Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows:
's right to require such information shall take precedence over the right to refuse to give information.”
20. The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985 quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself.
21. In its judgment of 29 September 1988 the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the constitution, but had found that this was not the case.
22. Section 134 § 1 of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000 could be imposed on a person who violates the regulations of this Act.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67017
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ESTOK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ladislav Eštok, is a Slovakian national, who was born in 1959 and lives in Košice.
summarised as follows.
The applicant had been employed as a car mechanic with a private entrepreneur until 5 January 1994 when he was dismissed with immediate effect for an alleged serious breach of work discipline.
In a letter of 10 January 1994 the applicant informed his employer that he considered the dismissal void and insisted that his employment continue.
The applicant challenged the validity of his dismissal before the Košice II District Court (Okresný súd).
On 20 June 1994 the District Court held a hearing. Immediately after the hearing, the applicant's lawyer obtained a copy of the minutes of it.
On 23 June 1994 the District Court ruled that the dismissal was void for formal reasons. In particular, it did not state with the requisite clarity and certainty why the applicant was to be dismissed. The ruling became final and binding on 16 September 1994.
In January 1995 the applicant took another set of civil proceedings against the above entrepreneur. He maintained that, as the dismissal of January 1994 was void, his employment continued. He was however neither being assigned any work nor being paid any salary. He claimed financial compensation for the wages thus lost.
On 9 October 1996 the District Court took a decision on the action. It observed that, at the hearing held on 20 June 1994 in the proceedings concerning the validity of the dismissal, the applicant had declared that he no longer wished to be employed by the defendant. In such a case the applicant was entitled to financial compensation for wages lost in a period limited under Article 61 (3) (b) in conjunction with Articles 45 (1) and 46 (1) (f) of the Labour Code to two months following the void dismissal, i.e. until March 1994 (“the first period”). The District Court calculated the amount payable in respect of this period and ordered that the defendant pay this amount to the applicant. The ruling concerning the first period became final and binding on 29 November 1996. The District Court finally dismissed the action insofar as it was claimed compensation for the wages allegedly lost in the subsequent period.
On 26 November 1996 the applicant lodged an appeal. On 2 December 1996 he submitted the reasons for it. He challenged the District Court's judgment of 9 October 1996 only insofar as it had dismissed his claim, i.e. in relation to period after March 1994. He maintained that he had never made any statement to the effect that he was not interested in continuing to be employed by the defendant. There was no record of any such statement in the copy of the minutes of the hearing of 20 June 1994 that had been obtained by his lawyer.
On 30 March 1998 the Košice Regional Court (Krajský súd) quashed the challenged part of the District Court's judgment and remitted the relevant part of the action (i.e. pertaining to the period after March 1994 only) to the latter for reexamination. It noted that there was a discrepancy between the contents of the original version of the minutes of the court hearing of 20 June 1994 that was held in the respective courtfile and the copy of these minutes that had been submitted by the applicant. Contrary to the applicant's copy, the version held in the courtfile contained a record of a statement by the applicant that he had no longer wished to be employed by the defendant. The Regional Court instructed the District Court to reexamine the matter after having clarified this discrepancy.
The District Court held further hearings on 24 June, 29 July and 16 December 1998.
On 24 February 1999, following another hearing held on the same day, the District Court determined again the remaining part of the applicant's action. Despite all efforts, it was not possible to establish with certainty the legal nature of the applicant's statement at the hearing of 20 June 1994 as regards his further employment with the defendant. No conclusion could therefore be drawn from it and the relevant facts of the case had to be and in fact were established by means of other documentary evidence and several testimonies that were available. The District Court made a distinction between the period from March to 16 September 1994 when the District Court's judgment of 23 June 1994 concerning the validity of the dismissal had become final and binding (“the second period”) and the period after that date (“the third period”). As for the second period, the applicant was entitled to compensation. The District Court calculated the amount payable and ordered that the defendant pay this amount to the applicant. As for the third period, the District Court finally decided that the existence and scope of any entitlement to compensation would be determined in another set of proceedings opened for this purpose under a separate filenumber. The defendant challenged this judgment by an appeal.
On 17 November 1999 the Regional Court quashed the District Court's judgment of 24 February 1999 insofar as it concerned the second period. It found that the District Court had not supported its determination of the amount payable in respect of this period by adequate reasoning and that it had failed to establish the facts relevant for this determination sufficiently.
On 18 October 2000 the District Court again determined the amount payable monthly to the applicant by way of compensation for wages lost in the second period and ordered that the defendant pay this amount to the applicant. The applicant and the defendant appealed on 1 and 6 December 2000 respectively.
On 26 April 2002 the Regional Court determined the appeals. It found that the District Court had sufficiently established the facts of the case. The District Court had however erred in its calculation of the amount payable and the Regional Court adjusted the calculation. No appeal lay against this judgment.
The separate set of proceedings which had been opened pursuant to the District Court's judgment of 24 February 1999 in order to determine the applicant's claims pertaining to the third period is still pending.
On 15 July 2003 the applicant seized the Constitutional Court (Ústavný súd) with a complaint (sťažnosť) under Article 127 of the Constitutional Court as in force from 1 January 2002. He objected that the length of the proceedings concerning his action of 1995 had been excessive and invited the Constitutional Court to find a violation of his right under Article 48 (2) of the Constitution to a hearing without unjustified delay, to order the District Court to proceed with his case speedily, to award him 80,000 Slovakian korunas (SKK) by way of just satisfaction and to order that the District Court reimburse his legal costs.
On 5 December 2003 the Constitutional Court found that the District Court had violated the applicant's above constitutional right. It ordered that the District Court proceed with the case without delay and awarded the applicant SKK 50,000 by way of just satisfaction in respect of nonpecuniary damage. The Constitutional Court also ordered that the applicant's legal costs be reimbursed. The Constitutional Court took into consideration the whole duration of the proceedings since 1995 when the action had been lodged. The subjectmatter of these proceedings was not of a particular complexity. The nature of the dispute called for special diligence. The applicant contributed to the overall length of the proceedings to some extent, in particular by not having formulated his early submissions with adequate clarity. The District Court did not deal with the case effectively which was shown inter alia by the fact that its judgments of 9 October 1996 and 24 February 1999 had to be quashed as the relevant facts had not been established sufficiently. Moreover, the applicant's claim in relation to the third period was still pending. The Constitutional Court determined the amount of just satisfaction on an equitable basis referring to Article 41 of the Convention.
Article 48 (2) provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Prior to 1 January 2002 there was no “effective remedy” within the Convention meaning in Slovakia as regards this right (see, mutatis mutandis, Bánošová v. Slovakia (dec.), no. 38798/97, 27 April 2000).
As from 1 January 2002, the Constitution has been amended in that, inter alia, natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).


ITEMID: 001-5446
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: STRECIWILK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish national, born in 1953 and living in Dzwola, in Poland.
On 15 May 1993 the applicant had a car accident in which C.Ł., a passenger of his car, died as a result of injuries, and R.M., another passenger, suffered serious injuries. Apparently on 16 May 1993 criminal proceedings were instituted against the applicant on charges of causing a traffic accident occasioning death and serious bodily harm.
On 4 November 1994 the first hearing was held before the Janów Lubelski District Court in these proceedings. Subsequently the court held four further hearings. At the last one, on 29 December 1994, the District Court convicted the applicant of causing a traffic accident occasioning death and serious bodily harm. The court heard eight witnesses, including R.M., persons who had immediately arrived at the scene of the accident and had taken the applicant and other victims out of the car.
The court established that on the critical date the applicant, while driving his car, had met R.M. and J.F. They had intended to spend some time in a beer bar in C. As the bar had been closed, the applicant had proposed to see his friend S.K., but, as he had no alcoholic beverages at home, the applicant and R.M. had gone to a shop in G. They had drunk some vodka, and later an unspecified amount of beer, first at S.K.’s place and later in a shop in C. On their way back home the applicant had stopped to pick up C.Ł. Shortly afterwards the applicant had lost control of the car, driven off the road into a ditch alongside it, and there hit a concrete water pipe. As a result of the crash, C.Ł. suffered grave injuries and subsequently died. R.M. also suffered serious injuries, including a brain concussion. The court further observed that three hours after the accident, the applicant had a blood test taken, which showed that he had 0,8 pro thousand alcohol in his blood. The court further considered that the applicant’s arguments according to which it had not been him who had been driving, but C.Ł., amounted only to an inept attempt of burdening the victim with the responsibility for the accident, which did not find support in any other evidence. In particular, the testimony of persons who had taken the injured passengers out of the badly damaged car, clearly indicated that the applicant had been in the driver’s seat. Their testimony was logical and corresponded to each other. In establishing the facts the court further had regard to an expert opinion of R.N., a physician, and to a further expert report of D.K., a specialist in traffic problems. The court also took into consideration a medico-psychiatric report on the applicant as well as a report of a psychologist.
The court sentenced the applicant to two years of imprisonment. The enforcement of the sentence was stayed for five years of probation. The court considered that the applicant’s personality and the fact that he did not have any criminal record militated for the staying of the enforcement of the sentence. He had also shown contrition proportionate to the tragic consequences of his offence. The court further observed that a significant factor which had bearing on its position as regards the staying of the sentence was the fact that the applicant had five dependants: four children and a wife who had serious mobility problems. Thus, the societal aims of the sentence would be best served if the enforcement of the prison sentence was stayed. The court also imposed on the applicant a fine of 20,000,000 (old) Polish zlotys, and forbade him to drive for eight years.
Both the prosecutor and the applicant lodged appeals against this judgment. At the hearing held on 20 March 1995, the Tarnobrzeg Regional Court quashed the part of the judgment staying the enforcement of the sentence. This judgment subsequently became final.
On 7 March 1996 the Rzeszów Court of Appeal reopened the proceedings against the applicant on the ground that the second-instance court had considered the appeals against the judgment of 29 December 1994 despite the fact that the applicant’s lawyer had not attended the hearing held before the Tarnobrzeg Regional Court on 20 March 1995, whereas his presence would have been necessary in order to ensure an effective defence of the applicant’s procedural rights. The court also ordered the case to be reconsidered by the Tarnobrzeg Regional Court.
On 15 April 1996 the Tarnobrzeg Regional Court reconsidered the prosecutor’s and the applicant’ s appeal against the judgment of 29 December 1994. The court quashed the part of the judgment by which the prison sentence had been stayed and that relating to imposition of the fine. The remainder of the judgment was upheld.
The applicant’s lawyer lodged with the Regional Court a cassation appeal to the Supreme Court against this judgment, arguing in particular that the first-instance court had failed to give convincing grounds for its judgment, in particular by failing to adduce circumstances which had led it to a de facto increase in the sentence by quashing the part staying its enforcement for a period of five years. On 31 July 1996 the Regional Court declared the cassation appeal admissible.
On 12 August 1996 the Tarnobrzeg Regional Prosecutor lodged its pleadings in the cassation proceedings with the Supreme Court, submitting that the applicant’s argument according to which the Tarnobrzeg Regional Court had failed to sufficiently justify this part of the decision by which the staying of the sentence had been quashed, was well-founded. However, this could not in itself be regarded as a sufficient ground for the quashing of the contested judgment by way of a cassation judgment, as this shortcoming did not amount to a flagrant breach of procedural provisions of the Code of Criminal Procedure, justifying that the judgment be quashed by the Supreme Court.
On 23 August 1996 the applicant lodged additional pleadings with the Supreme Court.
On 19 February 1997 the Supreme Court quashed the judgment of the Tarnobrzeg Regional Court of 15 April 1996 and remitted the case for reconsideration.
On 23 September 1997 the Tarnobrzeg Regional Court, having reconsidered the case, quashed the part of the first-instance judgment by which the court stayed the enforcement of the sentence. It upheld the remainder of the judgment.
The applicant filed again a cassation appeal against this judgment with the Supreme Court. He submitted that the first-instance court had been in flagrant breach of law in that it had refused to call a specialised institute in order to give a comprehensive forensic expert opinion, such as to include both medical aspects of the case and considerations of specialists in traffic problems, in order to reconstruct the course of material events and establish the facts of the case. It was further stated that the court had relied on an opinion of an expert in traffic issues which was incomplete, as shown by the fact that its author had indicated that an expert report should be submitted to the court in order to assess the exact degree of the applicant’s drunkenness at the material time.

On 8 June 1998 the Supreme Court dismissed a cassation appeal considering it unfounded. The court stressed that the applicant’s request to have a further expert opinion prepared had been in fact aiming at having the facts of the case established, and at having them assessed by an expert, whereas this was a cardinal duty of the court in criminal proceedings. It was not for any expert to take the place of the court in this respect. As regards the complaint that the expert opinion relied on by the court had been incomplete, the Supreme Court considered that it had contained a detailed analysis of circumstances which had led the expert to the conclusion that the applicant had been driving the car at the time of the accident, and that the applicant had not advanced any arguments capable of effectively calling these conclusions into question. As to the assessment of the applicant’s inebriated state, it was true that the expert had stated that his conclusions had been rather an estimate. However, the applicant’s state had also been established on the basis of the blood test taken several hours after the accident, which permitted a conclusion that his alcohol intake had been higher than permitted by law. As regards this part of the cassation appeal which called into question the reasonableness of the assessment of evidence given by witnesses R.M. and W.B. , it was not for the cassation court to assess the ability of the witnesses to reconstruct the material events. This was a task of the first-instance court which had had direct contact with the witnesses and had been in the best position to appreciate their submissions. The first-instance court had done so, and the appellate court had accepted its conclusions. In the light thereof, the Supreme Court found no grounds, which would cast doubt on their correctness.
On 15 April 1999 the Supreme Court dismissed the motion to reopen the proceedings, considering that the applicant’s allegations that witnesses W.B. and R.M. suffered from alleged psychiatric ailments sufficient to call into question their abilities of perception did not constitute a ground justifying the reopening of the proceedings, as defined by law.


ITEMID: 001-93650
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LEON AND AGNIESZKA KANIA v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicants were born in 1929 and 1936 respectively and live in Mielec.
5. In 1978 the craftsmen’s cooperative (spółdzielnia rzemieślnicza) “Wielobranżowa” established its seat next to the applicants’ home. It was engaged in a wide range of commercial activities, including various maintenance services for lorries, metal cutting and grinding machines and other small-scale operations in the iron and steel industry.
6. On an unspecified date in 1985 the applicants instituted administrative proceedings to have the cooperative cease its activities. They alleged that the level of noise and pollution emitted by the cooperative exceeded a tolerable level.
7. On 25 March 1986 the Mielec District Office ordered the liquidation of the craftsmen’s cooperative “Wielobranżowa” by the end of 1995 or alternatively that it switch to activities that did not cause a nuisance. During the remaining months of 1986 the cooperative was to adapt its activities in order to comply with the rules on the protection of the environment and the emission of noise.
8. On 5 September 1986 the Director of the Department for Architecture of the Provincial Office in Rzeszów upheld that decision. The applicants appealed, contesting the lengthy period foreseen for the cooperative’s liquidation and urging its shutdown.
9. On 29 July 1987 the Supreme Administrative Court dismissed their appeal (thus the decision of 5 September 1986 became final).
10. On 30 May 1988 the applicants again lodged a complaint with the Provincial Office in Rzeszów alleging that the daily operations of the cooperative caused unbearable noise and were life-threatening for people living in the vicinity.
11. On 3 June 1988 the Director of the Department for the Environment of the Provincial Office in Rzeszów issued a decision establishing the maximum level of noise to be emitted.
12. Due to the non-compliance of the cooperative with the established noise-level limits, by a decision of 31 August 1989 the Director of the Department for the Environment of the Provincial Office in Rzeszów ordered the cooperative to suspend the operation of all its technical devices. The cooperative appealed to the Minister of the Environment.
13. On 25 February 1997, as the time-limit for the cooperative’s liquidation established by the decision of 1986 had expired, the applicants lodged a motion with the District Office in Mielec to have the decision of 5 September 1986 executed.
14. On 9 April 1997 the applicants sent a letter to the Director of the Department for the Environment of the Provincial Office in Rzeszów repeating their allegations with regard to the unacceptable noise and pollution emitted by the cooperative. They invoked the decision of 25 March 1986 ordering the cooperative to cease its activities.
15. On 9 May 1997 in response to their above request the Provincial Office in Rzeszów stated that all documents issued between the years 1974 and 1986 had been destroyed, and thus the decision invoked by them no longer existed. Subsequently the Provincial Office referred the case to the District Office in Mielec to determine its factual circumstances.
16. On 3 June 1997 the District Office in Mielec carried out an inspection of the cooperative.
17. On 5 June 1997 the Provincial Office informed the applicants about the state of their case.
18. On 18 July 1997 the District Office in Mielec notified the applicants of an extension of the time-limit granted to settle their case.
19. On 14 August 1997 the District Office in Mielec referred the case to the President of Mielec to decide on the legality of the cooperative’s activities.
20. On 19 August 1997 the District Office in Mielec informed the applicants about the state of their case.
21. On 26 August 1997 the District Office in Mielec informed the applicants that there were no grounds for the cooperative’s liquidation. It also requested the State Fire Services (Państwowa Straż Pożarna), the Provincial Inspectorate for Environmental Protection in Rzeszów, and the State Sanitary Inspectorate (Państwowa Inspekcja Sanitarna) to carry out an inspection of the cooperative. The inspections took place on 3 and 10 September and 30 October 1997, as well as on 20 January 1998. It was established that the cooperative’s activities did not cause a nuisance.
22. On 22 October 1997 the applicants submitted to the District Office in Mielec an original copy of the decision of 5 September 1986.
23. On 2 December 1997 the applicants sent a letter to the President of Mielec requesting the liquidation of the cooperative. Their request was transferred to the District Office in Mielec, which in a letter of 22 January 1998 informed the applicants that there were no grounds for the cooperative’s shutdown, having regard to the results of the inspections carried out in 1997 and 1998.
24. On 4 and 30 March 1998 the Provincial Inspectorate for Environmental Protection in Rzeszów checked the level of noise emitted by the cooperative. It was found that it exceeded the permissible threshold.
25. In a letter of 27 April 1998 addressed to the Director of the District Office in Mielec the Rzeszów Province Governor ordered the execution of the decision of 5 September 1986 on the basis of those documents which had not been destroyed. On the same day the Provincial Office in Rzeszów informed the applicants about the state of their case.
26. On 12 May 1998 the District Office in Mielec reprimanded (udzielił nagany) the cooperative and ordered it to bring its activities into compliance with the established noise-levels.
27. On 6 May 1998 the cooperative filed a motion with the Provincial Office in Rzeszów to have the decision of 3 June 1988 amended in respect of the permissible level of noise.
28. On 27 May 1998 the District Office in Mielec informed the applicants about the state of their case.
29. On 19 June 1998 the Provincial Inspectorate for Environmental Protection in Rzeszów carried out an inspection of the cooperative’s premises and found the level of noise emitted to be in conformity with the permissible threshold.
30. On 30 June 1998 the District Office in Mielec informed the applicants that there were no grounds to begin enforcement proceedings.
31. On 10 September 1998 the Director of the Department for the Environment of the Provincial Office in Rzeszów established the noise threshold at a lower level. The applicants appealed to the Minister of the Environment.
32. On 15 February 1999 the Minister of the Environment quashed the decision of 10 September 1998 and remitted the case, initiating proceedings for amending the decision of 3 June 1988 in respect of the permissible level of noise.
33. On 23 February 1999 the Provincial Inspectorate for Environmental Protection in Rzeszów carried out an inspection and found the level of noise emitted by the cooperative to be in conformity with the threshold. On 21 April 1999 an additional inspection was carried out with the same results.
34. On 19 May 1999 the District Office in Mielec informed the applicants about the state of their case.
35. On 18 June 1999 the Regional Construction Inspector informed the applicants that there were no grounds to begin enforcement proceedings.
36. On 12 July 1999 the Minister of the Environment quashed the decision of 3 June 1988 and discontinued the proceedings in the case since, according to a test performed on 21 April 1999, the level of noise emitted by the cooperative was in conformity with the established noise threshold.
37. Subsequently, the applicants lodged a motion to have their case reexamined. On 5 August 1999 the Minister of the Environment upheld the decision of 12 July 1999. The applicants lodged an appeal with the Supreme Administrative Court.
38. On 29 October 1999 the Regional Construction Inspector upheld his opinion given on 18 June 1999.
39. On 27 April 2000 the Regional Construction Inspector transferred the case to the District Construction Inspector, requesting that an inspection of the cooperative’s premises be carried out. The inspection took place on 11 May 2000. It was found that the cooperative was not acting in violation of the binding provisions of the construction law, although it had failed to produce valid documents concerning vehicle weighing equipment.
40. On 8 June 2000 the Regional Construction Inspector informed the applicants about the state of their case.
41. On 10 August 2000 the applicants lodged a motion with the Mielec District Municipality to have the decision of 5 September 1986 executed and the cooperative liquidated. They further requested that, in accordance with Section III (Chapter II) of the 1966 Law on enforcement proceedings in administration (ustawa o postępowaniu egzekucyjnym w administracji), a fine be imposed on the cooperative for non-implementation of a legally binding decision.
42. On 1 September 2000 the District Construction Inspector requested the cooperative to acquire valid documents for the vehicle weighing device. The applicants filed a complaint against this decision. On 23 October 2000 the Regional Construction Inspector quashed the decision and remitted the case for re-examination. On 23 November 2000 the District Construction Inspector again ordered the cooperative to acquire documents for the weighing device. The applicants filed a complaint. On 5 February 2001 the decision was upheld by the Regional Construction Inspector.
43. On 5 September 2000 the District Construction Inspector ordered the applicants to supplement their motion of 10 August 2000 with the decision of 5 September 1986 joined by an enforcement clause. On 26 October 2000 the District Construction Inspector returned the motion due to the applicants’ failure to submit those documents.
44. On 17 November 2000 the Supreme Administrative Court quashed the contested decision of 5 August 1999 and remitted the case for reconsideration.
45. On 20 December 2000 the Minister of the Environment again upheld its decision of 12 July 1999. On 3 February 2001 the applicants appealed to the Supreme Administrative Court, contesting the results of the test performed on 21 April 1999.
46. On 19 February 2001 the Regional Construction Inspector informed the applicants about the state of their case.
47. On 18 April 2001 the District Construction Inspector requested the cooperative to produce additional documents for the vehicle weighing equipment.
48. On 25 May 2001 the District Construction Inspector informed the District Office in Mielec that the cooperative had acquired the requisite documents for the equipment.
49. On 4 September 2001 the District Office in Mielec suspended the proceedings until the question whether the level of noise emitted by the cooperative was in conformity with the threshold had been examined by the Supreme Administrative Court.
50. On 9 October 2002 the Supreme Administrative Court quashed the decision of 12 July 1999 due to procedural shortcomings.
51. On 26 May 2003 the Provincial Inspectorate for Environmental Protection in Rzeszów carried out an inspection on the cooperative’s premises and found that the level of noise emitted was in conformity with the relevant provisions.
52. On 7 July 2003 the applicants filed a motion with the District Office in Mielec requesting to have the decision of 25 March 1986 enforced and the cooperative liquidated. Their request was transferred to the District Construction Inspector.
53. On 23 July 2003 the District Prosecutor decided to join the proceedings concerning the cooperative’s shutdown.
54. On 7 August 2003 the District Construction Inspector ordered the District Office in Mielec and the applicants to provide the original copy of the decision of 25 March 1986.
55. On 12 August 2003 the applicants lodged a complaint with the Principal Construction Inspector about the administrative authorities’ inactivity with regard to the cooperative continuing its activities. The complaint was transmitted to the Regional Construction Inspector on 25 August 2003.
56. On 5 September 2003 the District Office in Mielec discontinued the proceedings concerning the level of noise emitted by the cooperative.
57. On 7 October 2003 the Regional Construction Inspector found that the applicants’ complaint about inactivity was well-founded and informed the applicants about his intention to lodge a motion with the District Construction Inspector to have administrative enforcement proceedings instituted.
58. On 14 October 2003 the Regional Construction Inspector gave the District Construction Inspector an instruction to implement the decision of 5 September 1986.
59. On 21 October 2003 the District Construction Inspector ordered that the cooperative be liquidated.
60. On 14 November 2003 the Regional Construction Inspector again found their complaint about the non-execution of the decision well-founded and informed the applicants that the motion to have the decision of 1986 enforced had already been lodged with the District Construction Inspector.
61. On 10 December 2003 an on-site inspection took place on the cooperative’s premises.
62. As a result of the above, in a letter of 29 December 2003 the District Construction Inspector stated that some of the cooperative’s buildings had not been constructed in conformity with the law. He further stated that the vehicle weighing device was to be destroyed.
63. On 4 February 2004 the applicants lodged a complaint with the Principal Construction Inspector complaining about the excessive length of the enforcement proceedings, the inactivity of the District Building Inspector and, further, the authorities’ failure to dismantle the cooperative’s buildings.
64. On 18 February 2004 the cooperative lodged a motion with the Regional Construction Inspector to have the decision of 5 September 1986 declared null and void and its execution suspended.
65. On 27 February 2004 the District Construction Inspector initiated the enforcement proceedings, imposed a fine on the cooperative and issued a document joined by an enforcement clause ordering dismantlement of the weighing equipment.
66. On 15 March 2004 the cooperative filed an objection with regard to the enforcement proceedings. On 22 March 2004 the District Construction Inspector decided to overrule their objection.
67. On 30 April 2004 the Regional Construction Inspector discontinued the proceedings for annulment, finding that the competent authority to examine the case was the Principal Construction Inspector. Their complaint was thus subsequently transferred for reply to the Principal Construction Inspector.
68. On 10 May 2004 the Regional Construction Inspector quashed the decision of 22 March 2004 and discontinued the enforcement proceedings, finding that the enforcement clause had not been issued in accordance with the decision of 5 September 1986. The applicants failed to appeal.
69. On 20 October 2004 the Principal Construction Inspector refused to suspend the decision of 5 September 1986 and, in addition, found no grounds for its annulment.
70. On 28 October 2004 the cooperative informed the District Construction Inspector that it had terminated its commercial activities on 25 September 2004.
71. On 25 November 2004 the Principal Construction Inspector upheld his own decision of 20 October 2004 (after having reconsidered the case). The applicants failed to appeal to the Supreme Administrative Court, although it was open to them to do so.
72. On 29 November 2004 the District Construction Inspector conducted an on-site inspection on the cooperative’s premises. It found that the cooperative had ceased its activities and that the vehicle weighing device had been destroyed. Thus, the proceedings were regarded as completed. The record of the inspection was signed by the applicants without reservation. A subsequent inspection on 18 May 2006 did not provide any evidence indicating that the cooperative had resumed its activities.
For a presentation of the relevant domestic law, see Kaniewski v. Poland, no. 38049/02, 8 February 2006; Koss v. Poland, no. 52495/99, 28 March 2006; and Borysiewicz, no. 71146/01, 1 July 2008.
The relevant domestic remedies for nonenforcement of a final administrative decision are listed in the Law of 17 June 1966 on enforcement proceedings in administration (ustawa o postępowaniu egzekucyjnym w administracji). In particular, Section III applies to the execution of non-pecuniary obligations. Chapter II in so far as relevant (Articles 119 et seq.) provides for a possibility of imposing a pecuniary penalty on an individual or a natural person compelling him to comply with an imposed obligation.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
The relevant provisions on acoustic pollution levels emitted into the environment are provided for by the Law of 27 April 2001 on the protection of the environment (Ustawa o ochronie środowiska). Article 113 of the said Law gives the Minister of the Environment the authority to determine permitted external noise-reception levels by reference to the main user of each of the areas. By the Regulation of 29 July 2004 the Minister of the Environment (Rozporządzenie Ministra Środowiska) established permissible noise thresholds for different areas marked on the city development plans, to be issued by the competent administrative authorities.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71439
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TUQUABO-TEKLE AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (estoppel);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant Goi Tuquabo-Tekle was born in 1963 and her son Adhanom Ghedlay Subhatu in 1978. Mrs Tuquabo-Tekle’s husband, Tarreke Tuquabo, was born in 1952, and their children Tmnit and Ablel in 1994 and 1995, respectively. These applicants live in Amsterdam. The applicant Mehret Ghedlay Subhatu – a daughter of Mrs Tuquabo-Tekle – was born on 12 November 1981 and lives in Adi Hanso, Eritrea.
9. In 1989, after the death of her first husband and during the civil war, Mrs Tuquabo-Tekle fled from Ethiopia to Norway, where she applied for asylum. She submitted that she had been harassed and detained by the Ethiopian authorities on account of her husband’s activities for the Eritrean People’s Liberation Front. Although denied asylum, she was granted a residence permit on humanitarian grounds in 1990. Her eldest child, Adhanom, had stayed behind in Addis Ababa with a friend of his mother’s, and she had left her other two children, Mehret and Michael, in the care of an uncle and their grandmother (in what subsequently became the State of Eritrea). After permission was granted by the Norwegian authorities for the children to reside with Mrs Tuquabo-Tekle, and with the assistance of those authorities and the UNHCR, her son Adhanom entered Norway in October 1991. It did not prove possible at that time to procure the departure of the other children from Eritrea, but it was Mrs Tuquabo-Tekle’s intention to bring them to Norway later.
10. In June 1992 Mrs Tuquabo-Tekle married Mr Tuquabo, who was living in the Netherlands where he had been admitted as a refugee. On 19 July 1993 Mrs Tuquabo-Tekle and her son Adhanom moved to the Netherlands to live with Mr Tuquabo. Mrs Tuquabo-Tekle was granted a residence permit in order to reside in the Netherlands with her husband on 21 July 1993. Two children, Tmnit and Ablel, were subsequently born to the couple.
11. On 16 September 1997, Mrs Tuquabo-Tekle and Mr Tuquabo filed a request for a provisional residence visa (machtiging tot voorlopig verblijf) for Mehret, in an attempt to have their (step)daughter, who was then fifteen years old, join them in the Netherlands. Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights.
12. On 25 March 1998 the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) rejected their request. The Minister concluded that there were no grounds to authorise family reunion in the Netherlands since the close family ties (gezinsband) between Mrs Tuquabo-Tekle and her daughter were considered to have ceased to exist and such ties had never existed between Mr Tuquabo and his stepdaughter. Ever since Mrs Tuquabo-Tekle had left Eritrea, Mehret had been living with an uncle and her grandmother; she was deemed to have been integrated into the latter’s family and thus no longer actually belonged to Mrs Tuquabo-Tekle’s family unit (gezin). There was no indication that this situation could not be maintained. Moreover, after marrying Mr Tuquabo, Mrs Tuquabo-Tekle had started a new family unit in the Netherlands to which her daughter had never belonged. Furthermore, the couple had not shown that they had been sufficiently involved with the upbringing and care of their (step)daughter. According to the information available, it was Mrs Tuquabo-Tekle’s parents who had custody of Mehret.
13. On 20 April 1998 Mrs Tuquabo-Tekle and Mr Tuquabo filed an objection (bezwaar) through counsel with the Minister of Foreign Affairs, emphasising that Mehret could no longer lead a normal existence in Eritrea now that she had reached marriageable age and her grandmother had decided that, for that reason, Mehret should stop going to school. There were, moreover, sound reasons why Mrs Tuquabo-Tekle had been unable to bring her daughter to Norway or the Netherlands prior to September 1997. At the time when she had been granted leave to remain in Norway and permission to be joined by her children, contacts with Eritrea were impossible and it was for this reason that only Adhanom, who had been in Ethiopia at the time, was able to go to Norway. In September 1992 Mrs Tuquabo-Tekle had travelled to Eritrea but it had not proved possible to obtain travel documents for Mehret, as there were not yet any official bodies equipped to issue passports in Eritrea and the authorities in Ethiopia refused to do so for Eritrean citizens. The family’s housing situation in the Netherlands had posed a further problem: despite the fact that they had been placed on a waiting list and had been issued with a certificate of urgency (urgentieverklaring), no rental accommodation suitable for a family of two adults and four children was available. Once it had become possible to obtain a passport for Mehret and more spacious accommodation had been obtained, the application for a provisional residence visa was lodged. Moreover, Mrs Tuquabo-Tekle and her husband had been sending money to Eritrea on a regular basis, initially by courier as bank transactions were impossible.
14. On 21 January 1999 the Minister rejected the objection, reiterating that the close family ties between Mrs Tuquabo-Tekle and her daughter had ceased to exist. Mrs Tuquabo-Tekle and her husband had not shown that they had made a substantial parental or financial contribution to Mehret’s upbringing. Furthermore, the couple had not sufficiently shown why, in view of Mehret’s age, she could not remain in the care of her uncle or her grandmother, if necessary supported financially by her family from the Netherlands. The Minister did not find it established that serious attempts had been made to arrange for Mehret to come to the Netherlands as soon as possible: Mrs Tuquabo-Tekle had been legally resident in the Netherlands since July 1993 but the request for Mehret to be allowed to join her had not been lodged until September 1997. Contrary to what the applicants appeared to contend, under the applicable legal provisions a lack of adequate accommodation would not have stood in the way of a provisional residence visa being granted. It appeared that Mrs Tuquabo-Tekle and her husband had let the inexpediency of Mehret’s presence in their cramped accommodation prevail over the desire to reunite Mehret with her mother as soon as possible. Thus, the Minister concluded, the child’s integration into the uncle’s and grandmother’s family could not be considered to have been a temporary measure.
15. On behalf of Mehret, Mrs Tuquabo-Tekle and Mr Tuquabo lodged an appeal against this decision of the Minister, through counsel, with the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Amsterdam, on 16 February 1999. In these proceedings, the Minister of Foreign Affairs argued, inter alia, that from 1994 it had been possible to request and obtain a passport in Eritrea.
16. On 17 January 2000 the Regional Court dismissed the appeal. It held that Mrs Tuquabo-Tekle had failed to show that her close family ties with her daughter had been maintained. It also found that, following her departure in 1989, Mrs Tuquabo-Tekle had no longer exercised parental authority over her daughter in the sense of being intensively involved with her daughter’s upbringing or of taking decisions in this regard. The Regional Court agreed with the Minister of Foreign Affairs that the (step)daughter of Mrs Tuquabo-Tekle and Mr Tuquabo should be deemed to have become integrated into the family of her uncle and grandmother. The Regional Court attached importance to the fact that the couple had only requested to have their (step)daughter join them in the Netherlands on 16 September 1997, and that they had failed to provide any documentary evidence to substantiate their claim that, even after 1994, it had remained impossible to obtain a passport for Mehret in Eritrea.
17. When assessing whether the State’s actions had been in compliance with the requirements of Article 8 of the Convention, the Regional Court addressed the question whether the refusal to grant Mehret a provisional residence visa, as such, constituted a violation of that provision. It pointed out that its task was to strike a fair balance between the interests of the applicants and those of society as a whole (the latter interest being served by a restrictive immigration policy). It found that no obligation for the State to allow family reunion on its territory could be derived from Article 8 of the Convention. It further considered that there were no objective reasons why the family members in the Netherlands could not pursue family life with Mehret in Eritrea.
18. The Regional Court’s decision was final and not subject to appeal.
19. At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1994 (“the Act” - Vreemdelingenwet 1994). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case.
20. As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa (machtiging tot voorlopig verblijf). Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.
21. The Government pursue a restrictive immigration policy owing to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.
22. The admission policy for family reunion purposes was laid down in Chapter B1 of the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994). It provided that the spouse, a minor child born of the marriage and actually belonging to the family unit, and a minor child born outside the marriage but actually belonging to the family unit (such as a child from an earlier relationship of either spouse or a foster child) could be eligible for family reunion, if certain further conditions (relating to matters such as public policy and means of subsistence) were met.
23. The person with whom a family member was seeking to be reunited in the Netherlands had to have suitable accommodation available to him or her on a permanent basis. This requirement was not imposed on Netherlands nationals, on refugees who had been admitted or on holders of a residence permit for the purposes of asylum.
24. The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question whether the close family ties can be deemed to have been severed is addressed on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to have the child join him or her as soon as possible and his or her efforts to do so, and the length of time that the child has lived in a family other than with the parent. The burden of proving that the close family ties between parent and child have not been severed lies with the parent residing in the Netherlands. The longer the parent and child have been separated, the heavier the burden of proof on the person in the Netherlands becomes. It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the Netherlands sooner.
25
VIOLATED_ARTICLES: 8


ITEMID: 001-104549
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ELCOMP SP. Z O.O. v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. On 10 March 2003 the applicant company lodged a claim for payment of 153,977.48 Polish zlotys (PLN) (EUR 38,500) against a company R. with the Warsaw Regional Court. The case was to be examined by way of a summary procedure.
6. On 18 March 2003 the court ordered the applicant company to pay PLN 2,337.30 (EUR 580) in court fees for lodging its claim.
7. On 25 March 2003 the applicant company filed a motion for exemption from court fees. It argued that its revenue in previous years had decreased significantly and that it had had to pay overdue taxes and debts to its creditors. The applicant company further indicated that it did not own any property of significant value. On 1 April 2003 it submitted to the court its financial report for 2002, tax declarations CIT-8 for 2001 and CIT-2 for 2002, its bank account statements and information concerning its property and the number of employees.
8. On 25 April 2003 the Warsaw Regional Court dismissed the application for exemption. It found that the applicant company had generated substantial gross income (przychód) in 2001 (PLN 4,892,956.09) and 2002 (PLN 1,144,221.34) and would be able to pay PLN 2,300 in court fees.
9. On 15 May 2003 the applicant company appealed. It submitted that on 13 February 2003 it had filed a motion for insolvency. However, the motion had been rejected because the company had insufficient assets to cover the costs of the insolvency procedure.
10. On 17 October 2003 the Warsaw Court of Appeal dismissed the appeal. It underlined that the documents produced by the applicant company indicated that from January to April 2003 it had spent the amount of approximately PLN 800,000 and it had still possessed cash in its cash desk. The court also stressed that commercial entities should have set aside the resources necessary to fund potential litigation.
11. On 30 December 2003 the applicant company paid PLN 2,337.30 in court fees.
12. On 19 January 2004 the Warsaw Regional Court issued an order for payment as sought by the applicant company. The defendant company filed an objection to the order and subsequently the applicant company’s claim was to be examined by way of the ordinary procedure.
13. On 13 February 2004 the Regional Court ordered the applicant company to pay a further PLN 7,011.70 (EUR 1,750) in supplementary court fees.
14. On 11 March 2004 the applicant company filed an application for exemption from supplementary court fees. It submitted copies of the following documents concerning its financial situation: a financial report for 2003, a tax declaration CIT-2 for 2003, bank account statements, VAT-7 declaration for 2003, cash reports for 2003 and information on its property and the number of employees.
15. On 18 March 2004 the Warsaw Regional Court dismissed the application for exemption. It found on the basis of the documentary evidence that from 1 January to 30 November 2003 the applicant company had generated PLN 5,611,522.45 in gross income. The court noted that the applicant company had sustained a loss, but that that was not a sufficient ground to exempt it from court fees. It emphasised that as the applicant company had carried out commercial activity on a large scale, it should have earmarked funds for litigation purposes. On 5 April 2004 the applicant company appealed.
16. On 19 May 2004 the Warsaw Court of Appeal dismissed its appeal, concurring with the reasons given by the Regional Court. It found that in 2003 the applicant company had generated gross income and had possessed enough funds to pay court fees. The Court of Appeal underlined that the applicant company had not demonstrated that it had been in a difficult financial situation; on the contrary, in its appeal it admitted to having funds to pay its debts to the State Treasury.
17. On 29 June 2004 the applicant company paid PLN 7,011.70 in court fees.
18. On 8 November 2004 the Warsaw Regional Court gave judgment. It dismissed the applicant’s company claim against the company R. on the grounds that the relevant limitation period had expired.
19. On 6 December 2004 the applicant company lodged an appeal against the Regional Court’s judgment. On 16 December 2004 it applied for exemption from court fees for pursuing its appeal in the amount of PLN 9,348.90 (EUR 2,330). The applicant company submitted that the current state of its accounts had proved its disastrous financial situation.
20. The Warsaw Regional Court instructed the applicant company to submit, on pain of dismissal of its motion, copies of the following documents: the financial report for the period from 1 January to 31 October 2004, the tax declaration CIT-9 for 2003, the tax declaration CIT-2 for the period from 1 January to 30 November 2004, information about all bank accounts of the applicant company and extracts thereof, information on all transactions made on each account within the last three months, tax declaration VAT-7 for the period from 1 January to 30 November 2004 and information on its property and the number of employees.
21. On 10 January 2005 the applicant company submitted the following declarations: tax declaration CIT-2 for the requested period, declaration CIT-8 for 2003, extract from a bank account of 12 August 2004 and a declaration of the Cooperative Bank in Wyszków of 24 November 2004. It also stated that it did not own any real property.
22. On 11 January 2005 the Warsaw Regional Court dismissed the application for exemption. It found that the applicant company had failed to substantiate its assertion that it had been unable to pay the court fees. It noted that the applicant company had failed to submit all requested documents concerning its financial standing. The court stressed that the applicant company had still carried out its commercial activity on a large scale and that in the period between 1 January and 30 November 2004 it had generated a significant gross income in the amount of PLN 632,655.34 (EUR 158,163).
23. Moreover, the court noted that the applicant company had produced only the cash report for one day (30 November 2004) despite the court’s request to submit all reports for the period between 1 January and 30 November 2004. In the court’s view, that failure might indicate the applicant company’s intention to hide profits that had been actually made. The court had also regard to the declaration of the Wyszków Cooperative Bank that for a long period of time there had been no financial operations on the applicant company’s bank account. In this connection, the court found that the applicant company must have carried out its financial operations in cash since it had been obliged to keep a record of all income and expenses. The court underlined that a commercial entity should not claim that the refusal to exempt it from payment of court fees had constituted a limitation of its rights when it had not earmarked any funds for potential litigation and had carried out its financial operations in such a manner as to avoid the payment of court fees.
24. On 27 January 2005 the applicant company appealed. It argued that the losses in the relevant period had exceeded the company’s gross income and pointed to a significant debt owed to the tax office.
25. On 6 April 2005 the Warsaw Court of Appeal dismissed the appeal. The court found that the applicant company had incurred substantial costs and expenses exceeding its generated gross income, which showed that it had not been properly managed. It also found that since the beginning of the proceedings the applicant company should have put aside money for the costs of future proceedings as it had been still carrying out its commercial activity.
The Court of Appeal noted that the applicant company had failed to produce all the requested documents (inter alia, the financial report for the period from 1 January to 31 October 2004 and the VAT-7 declaration for the relevant period). In this connection, it stressed that it was impossible to evaluate the financial situation of the applicant company. Furthermore, the cash report concerned one day only (30 November 2004), while the Regional Court had specifically requested a report for the period between 1 January and 30 November 2004. In respect of the declaration of the Cooperative Bank, the court noted that the company must have carried out its operations in cash or have had accounts in other banks.
26. On 13 July 2005 the Warsaw Regional Court rejected the applicant company’s appeal against the first-instance judgment of 8 November 2004 for failure to pay court fees required for proceeding with its appeal.
Other facts as submitted by the applicant company
27. According to the certificate of the tax office of 24 June 2005, the applicant company owed PLN 300,000 to the tax office.
28. On 29 July 2005 the applicant company was exempted from court fees in civil proceedings instituted against it by another company.
29. On 24 April 2003 and 8 March 2005 the Warsaw District Court dismissed the applicant’s company’s requests to institute insolvency proceedings because its assets had been considered insufficient to cover the costs of proceedings, not to mention the debts that the company had accumulated. In the most recent of these decisions the court established that the applicant company had owed money to four companies and the tax office. The liabilities due from its creditors were unenforceable in spite of several sets of proceedings instituted by the applicant company. The company’s assets deposited in its bank account amounted to PLN 2,000; in addition, the company owned old forms for production of vacuum cleaners worth a total amount of PLN 1,300. In sum, the court considered that the applicant company would not be able to satisfy any of its debtors; thus, the insolvency proceedings would be devoid of purpose.
30. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also the judgment delivered by the Court on 10 January 2006 in the case of Teltronic-CATV v. Poland, no. 48140/99, §§ 20-33).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86901
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ARTSYBASHEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1971 and lives in Makiyivka.
5. On 25 August 1997 criminal proceedings were instituted against the applicant and two other individuals on suspicion of murder. On the same date the applicant was arrested and remanded in custody.
6. In December 1997 the applicant was committed for trial.
7. On 19 March 1998 the Chervonogvardiysky District Court of Makiyivka (Червоногвардійський районний суд м. Макіївка) remitted the case to the investigative authorities for additional investigation.
8. On 31 August 1998 the additional investigation was terminated and the case was referred back to the District Court.
9. On 21 May 1999 the District Court convicted the applicant of aggravated murder and sentenced him to eleven years’ imprisonment.
10. On 20 July 1999 the Donetsk Regional Court (Донецький обласний суд) quashed the judgment and remitted the case for additional pre-trial investigation.
11. On 15 December 1999 the additional investigation was terminated and the case was referred to the District Court.
12. On 2 June 2000 the District Court remitted the case for additional investigation.
13. In September 2000, after the additional investigation was terminated, the case was referred back to the District Court.
14. On 27 October 2000 the District Court again remitted the case for additional investigation.
15. In February 2001 the case was referred to the Regional Court to act as a first-instance court.
16. On 24 July 2001 the Regional Court convicted the applicant of aggravated murder and sentenced him to fourteen years’ imprisonment.
17. On 11 July 2002 the Supreme Court upheld the judgment.
18. Throughout the course of the proceedings some thirty-two hearings were scheduled by the trial court. Some twelve of them were adjourned on account of one or more of the five witnesses’ failures to appear. Two hearings were adjourned in view of the authorities’ failure to bring the applicant, who was kept in custody, before the court. On seven occasions the hearings were postponed on account of the judge’s ill health.
VIOLATED_ARTICLES: 6