ITEMID: 001-58307
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF CIVET v. FRANCE
IMPORTANCE: 1
CONCLUSION: Lack of jurisdiction (complaint inadmissible)
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 7. Mr Civet, a French national, was born in 1947 and is currently in custody at Aiton Prison.
8. On 6 October 1993 one of the applicant’s daughters, Mrs Isabelle Di Malta (née Civet), who was born in 1970, went to the police station with her mother, Mrs Liliane Civet, to complain that her father had raped her on several occasions. She stated that Mr Civet had sexually abused her a number of times at the family home, while her mother was out, between 1984 and 1987.
9. On 7 October 1993 another daughter of the applicant, Miss Aline Civet, born in 1972, also reported her father to the police for raping her a number of times at the family home, while her mother was out, when she was 16 years old.
10. On the same day Mr Civet was placed under judicial investigation on charges of rape of a minor by a legitimate ascendant (ascendant légitime). The applicant was immediately charged and remanded in custody by an investigating judge of the Saint-Etienne tribunal de grande instance.
11. The applicant went on hunger strike for the first time, for twelve days until 6 April 1994.
12. On 13 July 1994 the investigating judge informed the parties that the investigation appeared to be complete and that the case file would be sent to the public prosecutor for his views on whether a prosecution should be brought. However, the investigation continued after that date as the judge had granted an application by Mr Civet for supplementary investigative measures.
13. On 8 February 1995 the investigating judge informed the parties again that the investigation appeared to be complete, but granted a further application by the applicant for supplementary investigative measures.
14. On 10 May 1995 the investigating judge informed the parties for the third time that the investigation appeared to be complete. The case file was sent to the public prosecutor on 31 May 1995 for his views on whether a prosecution should be brought.
15. On 2 October 1995 the investigating judge made an order for the documents to be forwarded to the public prosecutor at the Lyons Court of Appeal, in order to conclude the investigation.
16. In a judgment of 24 November 1995 the Indictment Division of the Lyons Court of Appeal committed the applicant for trial at the Assize Court on several counts of rape of a minor by a legitimate ascendant. An appeal on points of law by the applicant was dismissed on 21 March 1996.
17. On 3 June 1994 the investigating judge dismissed an application for release submitted on 31 May 1994. In a judgment of 24 June 1994 the Indictment Division of the Lyons Court of Appeal upheld the order dismissing his application.
18. The applicant appealed to the Court of Cassation on points of law, but his appeal was dismissed on 4 October 1994 on the ground that he had failed to lodge his grounds of appeal within the statutory time.
19. On 5 August 1994 the investigating judge dismissed a further application for release, submitted on 2 August 1994, on the following grounds:
“[The applicant’s] two daughters have made grave allegations against him of sex offences classified as ‘serious crimes’ (de nature criminelle). Offences of this kind, committed against girls under the age of 15 by a legitimate ascendant, seriously prejudice public order. There is a risk that the victims and their mother will be intimidated. The applicant has numerous previous convictions.”
20. The Indictment Division of the Lyons Court of Appeal upheld that order in a judgment of 23 August 1994.
21. On 9 September 1994 the investigating judge refused a further application for release, submitted on 6 September 1994, stating:
“The charges are serious. These offences classified as ‘serious crimes’ are, by definition, seriously prejudicial to public order in that they inflict lasting damage on the physical, mental and psychological well-being of children. The applicant is known for his intemperance and violence and has numerous previous convictions.”
22. The applicant appealed. In a judgment of 4 October 1994 the Indictment Division of the Lyons Court of Appeal upheld the order of 9 September 1994.
23. In an order of 4 October 1994 the investigating judge extended the pre-trial detention for one year on the same grounds as those set out in the order of 9 September 1994.
24. On 17 August 1995 the investigating judge dismissed an application for release submitted by the applicant on 14 August 1995. The applicant appealed.
25. In a judgment of 1 September 1995 the Indictment Division of the Lyons Court of Appeal upheld the order on the grounds that, despite the applicant's denials,
“there is serious and strong evidence that he committed the rapes with which he has been charged. Given his attitude to the charges, there is a risk that, if released, he would be tempted to pressurise the victims, and indeed his wife, into retracting their statements. These violent crimes, even if not widely publicised, have caused serious prejudice to public order as far as the protection of children’s physical and psychological well-being is concerned. This prejudice, temporarily contained by remanding the applicant in custody, would recur if he were to be released, particularly as the investigation is almost complete. [The applicant], who is unemployed and has several previous convictions (for theft, handling stolen goods, misappropriation, driving while under the influence of alcohol and a hit-and-run offence), is described as a violent individual who presents a danger both to himself and others, particularly when under the influence of alcohol, and thus cannot provide sufficient guarantees that he will appear for trial. It therefore appears necessary to keep the accused in detention on remand in order to prevent him from reoffending, to protect public order from the consequences of these offences and to ensure that he remains at the disposal of the judicial authorities ...”
26. In an order of 29 September 1995 the investigating judge dismissed a further application for release, submitted on 25 September 1995. Mr Civet appealed.
27. In a judgment of 20 October 1995 the Indictment Division of the Lyons Court of Appeal upheld the order for the same reasons as those contained in its judgment of 1 September 1995.
28. On 27 June 1996 the Assize Court for the département of the Loire convicted the applicant of the offences charged and sentenced him to ten years’ imprisonment.
29. The relevant provisions of the Code of Criminal Procedure on pre-trial detention applicable at the material time are the following:
“In cases involving serious crimes (matière criminelle) and other major offences (matière correctionnelle), where the possible sentence is equal to or exceeds one year’s imprisonment in the case of an offence discovered during or immediately after its commission (délit flagrant), or two years’ imprisonment in other cases, and if the constraints of judicial supervision are inadequate in regard to the functions set out in Article 137, detention pending trial may be ordered or continued
(1) where detention of the accused pending trial is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on witnesses or victims, or collusion between accused and accomplices;
(2) where such detention is necessary to protect the accused, to put an end to the offence or to prevent its repetition, to ensure that the accused remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence.
Detention pending trial may also be ordered, in the circumstances set out in Article 141-2, where the accused deliberately fails to comply with the obligations imposed by judicial supervision.”
“Whatever the classification of the offence, an order for detention pending trial must set out the legal and factual reasons for the decision with reference to the provisions of Article 144 alone; the accused shall be informed orally of the order and be given a full copy of it, receipt being acknowledged by signature in the case file …”
“In cases involving lesser criminal offences (matière correctionnelle) pre-trial detention may not exceed four months. However, at the end of this period, the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article 145. No extension may be ordered for a period exceeding four months.
Where the accused has not previously been sentenced for a serious crime (crime) or other major offence (délit) to a non-suspended term of imprisonment exceeding one year and where the sentence that may be passed on him does not exceed five years, the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding two months.
In other cases the accused may not be kept in detention for longer than one year. However, in exceptional circumstances the investigating judge may decide at the end of that period to extend the detention, for a period not exceeding four months, by a reasoned order made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That order is renewable by means of the same procedure. Nevertheless the accused may not be kept in detention for more than two years where the sentence to which he is liable does not exceed five years.
The orders referred to in the first and second paragraphs of this Article shall be made after the public prosecutor and, if applicable, the accused or his lawyer have submitted their observations.”
“In cases involving serious crimes (matière criminelle) an accused cannot be held in detention for more than one year. However, the investigating judge may, at the end of that period, decide to prolong detention for a period not exceeding one year in a decision made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That decision is renewable by means of the same procedure.
The provisions of this Article shall apply until the disposal order is made.”
“Whatever the classification of the offence, the accused may be released, subject or not to judicial supervision, by means of an order made by the investigating judge of his own motion after the public prosecutor has submitted his observations, provided that the accused undertakes to attend for procedural purposes whenever required to do so during the investigation and to keep the investigating judge informed of all his movements.
The public prosecutor may also apply at any time for the accused to be released. The investigating judge shall rule within five days of such an application.”
“Whatever the classification of the offence, the accused or his lawyer may at any time lodge with the investigating judge an application for release, subject to his giving the undertakings referred to in the preceding Article.
The investigating judge shall communicate the file immediately to the public prosecutor for his submissions.
The investigating judge shall take a decision, in an order setting out the legal and factual reasons for the decision with reference to the provisions of Article 144, not later than five days following communication of the file to the public prosecutor. However, where a decision has still to be taken on a previous application for release or on an appeal against an earlier order refusing release, the five-day period shall not start to run until the date of the decision of the investigating judge or indictment division.
Where release is granted, it may be made subject to judicial supervision.
If the investigating judge fails to give a decision within the period laid down in the third paragraph, the person concerned may apply directly to the indictment division, which after receiving the Principal Public Prosecutor’s reasoned submissions in writing, shall give a decision within twenty days of the application to it, failing which the accused shall automatically be released unless an order has been made for particulars of his application to be verified. The public prosecutor is likewise entitled to apply to the indictment division in the same eventuality.”
“An application for release may also be made by any accused for any reason and at any stage in the proceedings …”
“Any judicial authority which has to rule, pursuant to Articles 141-1 and 148-1, on an application for a judicial supervision order to be discharged in whole or in part or for release shall give its decision after hearing the prosecution and the accused or his lawyer; an accused who is not in detention and his lawyer shall be given notice by registered letter at least forty-eight hours before the date of the hearing.
The judicial authority to which the application has been made, depending on whether it is an authority of first or second instance, shall give its decision within ten or twenty days of receipt of the application. However, where on the date of receipt of the application a decision has still to be taken on a previous application for release or on an appeal against an earlier decision to refuse release, the ten- or twenty-day period shall not start to run until the date of the decision of the relevant judicial authority; if no decision has been given by the end of that period, the judicial supervision or detention pending trial shall be terminated and the accused, unless detained for another reason, shall automatically be released.
The judicial authority’s decision shall be enforceable immediately notwithstanding any appeal; where the accused remains in detention, the indictment division shall give its decision within twenty days of the appeal, failing which the accused, unless detained for another reason, shall automatically be released.”
“When four months have elapsed since his last appearance before the investigating judge or a judge delegated by the investigating judge, an accused or his lawyer may, provided no disposal order has been made, apply for release directly to the indictment division, which shall decide as laid down in the last paragraph of Article 148.”
“In the event of a breach of the law, judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies can be set aside on an appeal on points of law to the Court of Cassation lodged by the public prosecutor or by the party adversely affected, according to the distinctions made hereafter.
Such an appeal shall be lodged with the Criminal Division of the Court of Cassation.”
“The Criminal Division, when hearing an appeal on a point of law against a judgment of the indictment division concerning pre-trial detention, shall rule within three months of the file’s being received at the Court of Cassation, failing which the accused shall automatically be released.
The appellant or his lawyer shall, on pain of having his application dismissed, file his pleading setting out the grounds of appeal within one month of the file’s being received, save where exceptionally the President of the Criminal Division has decided to grant an extension of eight days. After the expiry of this time-limit, no new grounds may be raised by him and no further pleadings may be filed.
As soon as the pleading has been filed, the President of the Criminal Division shall set the case down for hearing.”
“Judgments of indictment divisions and judgments of trial and appeal courts against which no ordinary appeal lies and which comply with the formal requirements laid down by statute can be quashed only on grounds of a breach of the law.”
“Such judgments shall be declared null and void if they are not delivered by the prescribed number of judges or have been delivered by judges who have not attended all the hearings in the case. Where several hearings have been held in one and the same case, the judges who have taken part in the decision shall be presumed to have attended all of them.
Such judgments shall also be declared null and void if they have been delivered without submissions having been heard from the public prosecutor.
Subject to the exceptions laid down by law, judgments which have not been delivered, or in respect of which the proceedings have not been conducted in open court, shall also be declared null and void.”
“Judgments of indictment divisions and judgments against which no ordinary appeal lies shall be declared null and void if they contain no reasons or if the reasons are insufficient and do not enable the Court of Cassation to exercise its power of review and to ascertain that the law has been complied with in the operative provisions.
The same rule shall apply in the event of a failure or refusal to rule either on one or more applications by the parties or on one or more applications by the public prosecutor.”
“The Court of Cassation shall be able to quash a judgment without remitting it to the Court of Appeal if quashing it does not entail a rehearing of the merits.
It may also, when quashing a judgment without remitting it to the Court of Appeal, dispose of the case where the facts, as found and assessed by the tribunals of fact in the exercise of their exclusive jurisdiction, allow it to apply the appropriate rule of law.
…”
31. The Court of Cassation has acknowledged that the assessment of the facts of a case by indictment divisions is a matter falling within their exclusive jurisdiction, but verifies that they have addressed “essential” (péremptoires) grounds, including those based on Article 5 § 3 of the Convention (Court of Cassation, Criminal Division (“Cass. Crim.”), 20 October 1987, Bull. Crim. no. 356; 12 April 1995, appeal no. 95-80,328; see also Cass. Crim., 2 September 1997, appeal no. 97-83,234). The Criminal Division of the Court of Cassation reviews the reasoning of indictment divisions in order to satisfy itself that it complies with statutory requirements, and ascertains that the reasons given by the tribunals of fact for their decisions regarding the length of pre-trial detention are adequate and consistent (see Cass. Crim., 20 June and 16 July 1996, appeals nos. 9681,557 and 96-82,086 respectively; see also Cass. Crim., 2 September 1998, appeal no. 98-83,322). Where an indictment division omits to address in its judgment a pleading by an appellant to the effect that there has been a violation of Article 5 § 3 of the Convention, the Court of Cassation will find that the judgment has no legal basis and quash it (see Cass. Crim., 12 December 1995, appeal no. 95-84,949; and 14 May 1996, appeal no. 9681,045; see also Cass. Crim., 18 May 1998, appeal no. 98-81,085). In exercising its power of review, the Court of Cassation has delivered judgments in the following terms, in particular:
“The courts must address ‘essential’ grounds raised in pleadings submitted to them; all judgments must contain reasons justifying the decision reached, and giving inadequate reasons is tantamount to giving no reasons.
It appears from the judgment appealed against and the documents exhibited in the proceedings that [C.W.], a Belgian national extradited from Spain, was charged by the investigating judge on 18 May 1991 with several counts of fraud and with infringing the Act of 24 January 1984 on money-lending and on the same day was ordered to be detained pending trial. An order was made on 16 September 1991 extending pre-trial detention for four months from 18 September 1991. On 19 November 1991 the investigating judge ordered him to be released subject to judicial supervision and on payment, before release, of security in the amount of 4,500,000 francs. 100,000 francs of that amount was intended to ensure that he appeared for subsequent proceedings and up to a ceiling of 4,400,000 francs to guarantee payment of ‘compensation for the damage caused by the offence, the expenses incurred by the State and fines’; that order was not complied with, since the defendant paid only 2,563,000 francs of the required security; on 15 May 1992 the investigating judge dismissed an application by [W.] for the judicial supervision order to be discharged in part and extended the pre-trial detention for four months from 18 May 1992, ‘subject to activation of the order for his release that was made on condition that a security in the amount of 4,500,000 francs was paid in advance’; in an order of 16 September 1992, against which the defendant appealed, the pre-trial detention was extended for a further period of four months with effect from 18 September 1992.
In upholding that order [extending the pre-trial detention, following non-payment of the sum set by way of security], the Indictment Division, after referring to the offences with which [C.W.] had been charged and to the fact that the order of 19 November 1991 releasing him subject to judicial supervision had become final, stated: ‘The discussion initiated by [W.]’s lawyer of the criteria for pre-trial detention has no place here; it is of no relevance now that the defendant’s release has been ordered subject to judicial supervision and that his detention is being extended as a result of his own acts and therefore does not violate the rules laid down by the Convention for the Protection of Human Rights and Fundamental Freedoms.’ The Indictment Division added: ‘As a subsidiary consideration, his failure to comply with the conditions accepted by him suggests that were he to be released today, he would not appear for trial.’
However, in reaching that decision and not addressing the pleading submitted to it, in which reliance was placed on a violation of Article 5 § 3 of the above-mentioned Convention, according to which everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial, and in failing to set out the considerations of law and of fact which, under Article 144 of the Code of Criminal Procedure, justified extending pre-trial detention, the rules on which (as laid down by Article 145-1 of that Code) do not provide for any exception, the Indictment Division infringed the aforementioned provisions and principle and deprived its decision of a legal basis.
The decision must therefore be quashed. For these reasons, the Court quashes and sets aside …” (Cass. Crim., 20 January 1993, Bull. crim. no. 32)
“… [D.Z.] submitted before the Indictment Division that he had been continuously detained, since being charged, for four years and six months, during which the only measures taken by the investigating judge had been: at the end of 1994, to arrange a confrontation with the witnesses who had implicated him; between November 1994 and January 1996, to instruct experts to identify the victims who had died in 1992; and, during 1996, to take further witness statements. The length of his detention had thus been justified neither by the complexity of the case nor by his own conduct.
In upholding the order appealed against, the Indictment Division stated that despite [D.Z.]’s denials, there was strong evidence that he had committed the offences with which he was charged; that detaining him was the sole means of ensuring until the trial that no pressure was brought to bear on witnesses and that the accused, who had no regular employment and no fixed address, appeared for trial; and that the investigating judge’s refusal of the application for release therefore had to be upheld, notwithstanding the length of time already spent in detention, which had been justified by the difficulties encountered by the judge in carrying out his task and especially in identifying the deceased.
But by confining itself to referring, in order to justify the length of detention, to an investigative measure carried out by an expert and omitting to address the main arguments in the pleading submitted to it, the Indictment Division infringed the principles alluded to above.
The decision must therefore be quashed. For these reasons, the Court quashes and sets aside …” (Cass. Crim., 22 July 1997)
“ … Regard being had to Article 593 of the Code of Criminal Procedure, read together with Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
The courts are required to address the main arguments in the pleadings submitted to them.
In dismissing [J.E.]’s application for release, the Court of Appeal in its judgment went no further than stating that the charges of aggravated rape of which he stood accused had caused exceptional and continuing prejudice to public order and that keeping him in detention was the only means of preventing him from bringing pressure to bear on the victim or evading justice by taking refuge outside French territory, since judicial supervision was inadequate for that purpose.
However, in reaching that decision without addressing the defendant’s pleading in which reliance was placed on a violation of Article 5 § 3 of the European Convention on Human Rights, which provides that everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial, the Indictment Division deprived its decision of a legal basis.
The judgment must therefore be quashed. For these reasons, and without its being necessary to examine the other grounds of appeal, the Court quashes and sets aside …” (Cass. Crim., 18 May 1998, appeal no. 98-81,085)
32. The Criminal Division of the Court of Cassation also quashes judgments for non-compliance with statutory formalities laid down on pain of nullity (Cass. Crim., 25 April, 21 August and 15 November 1995, appeals nos. 95-80,682, 95-83,124 and 95-84,543 respectively) and errors of law in the interpretation and application of the Code of Criminal Procedure (Cass. Crim., 11 January, 15 February, 27 February and 10 May 1995, appeals nos. 94-85,155, 94-85,570, 94-85,957 and 95-80,975 respectively).
33. Lastly, having regard to the provisions inserted into the Code of Criminal Procedure by Law no. 96-1235 of 31 December 1996, which came into force on 31 March 1997, the Court of Cassation now quashes judgments of indictment divisions which do not make clear why judicial supervision would be inadequate in a particular case or do not give any special reasons why the investigation should be continued (Cass. Crim., 6 and 19 August 1997, appeals nos. 97-82,955 and 97-38,014 respectively) or any indications of when the investigation is likely to be completed (Cass. Crim., 19 August 1997, cited above).


ITEMID: 001-95504
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KAYGAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants, Mr Serdar Tamer Kaygan, Ms E Kaygan and Mr A. Kaygan, are Turkish nationals who were born in 1968, 1962 and 1994 respectively and live in Istanbul. They were represented before the Court by Mr K. Tacar Çağlar, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The second applicant, whose regular check-ups during her pregnancy were carried out by a private hospital, gave birth to the third applicant on 31 January 1994. The third applicant was born with serious disabilities.
On 27 January 1995 the applicants initiated civil proceedings before the Ankara Court of First Instance (hereinafter “the Ankara court”) against the hospital and doctors, claiming pecuniary and non-pecuniary damage.
On 10 July 1995 the Ankara court requested an expert report from the Ministry of Health as to the liability of the defendant hospital and the doctors. The report was delivered on 19 September 1996 and found that no negligence was attributable to the defendant party. Subsequently four more medical reports, drawn up by various specialist bodies on 19 April 1998, 11 March and 8 December 1999 and 1 March 2001, were submitted to the Ankara court. It was established in these reports that the hospital and the doctors involved had in fact been partly responsible for the third applicant’s disabilities, which had been assessed at 100%.
On 7 November 2000 the applicants lodged a second case with the Ankara court, requesting additional compensation for non-pecuniary damage.
On 12 December 2000 the Ankara court ordered the two cases to be joined and on 16 May 2001 it awarded the applicants their claim in full for both cases. The defendant party appealed.
On 21 December 2002 the Court of Cassation upheld the judgment in respect of the award granted for the first case and quashed in so far as it concerned the second case. Relying on Article 126 of the Code of Obligations, the Court of Cassation held that the second case had been introduced out of time since the first and second applicants had been aware of the serious disabilities and their extent when the third applicant was born. Thus, any claim had had to be introduced within five years of the third applicant’s date of birth. The case was remitted to the Ankara court.
On 19 July 2002 the Ankara court confirmed in its earlier judgment and held that it was only by having regard to the report dated 8 December 1999 that the third applicant’s disability had been established at 100%. Therefore the applicants’ further claims had been introduced within the statutory time-limit. The case file was transferred to the Grand Chamber of the Court of Cassation’s Civil Division (Hukuk Genel Kurulu).
On 11 December 2002 the Grand Chamber of the Court of Cassation quashed the judgment of the Ankara court. In its decision it discussed in detail the concept of damage, when it arose and when the statutory time-limit for claiming damages had started to run for the instant case. It noted in particular that the seriousness of the third applicant’s disability had been visible at birth on 31 January 1994 and, according to medical reports, would not change in time for better or worse. Therefore the five-year statutory time-limit for claiming damages ought to have started running at birth.
The applicants appealed. On 28 May 2003 the Grand Chamber of the Court of Cassation’s Civil Division dismissed the appeal. The case was remitted to the Ankara court, which held on 9 October 2003 that there was no need to issue a new judgment concerning the applicants’ first claim, which had already become final, whereas their second claim had been introduced outside the statutory time-limits, as established by the Court of Cassation.
The applicants appealed in respect of the costs and fees.
On 3 March 2005 the Court of Cassation amended the part of the judgment concerning the applicants’ costs and fees but upheld the merits.
The applicants were notified of the judgment on 20 April 2005.


ITEMID: 001-69289
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ZGODKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Ewa Zgódka, is a Polish national who was born in 1956 and lives in Mińsk Mazowiecki.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 February 1990 the applicant lodged a compensation claim with the Warsaw District Court (Sąd Rejonowy w Warszawie).
The proceedings were terminated on 25 April 2000. On 9 April 1998, the date on which the application was lodged with the Court, they were pending before the Warsaw District Court.
On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-97493
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HOLLAND v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Peter Holland, is a British national who was born in 1958 and lives in Stockholm.
2. On 31 January 2005 the applicant was convicted by the District Court (tingsrätten) of having harassed a woman with whom he previously had been living and of threatening her new partner. He was given a suspended sentence and a fine. The applicant appealed against the judgment to the Svea Court of Appeal (hovrätten) where a hearing was held on 31 January 2006. In a judgment of 14 February 2006, the Court of Appeal upheld the lower court's judgment in full. On 12 April 2006 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.
3. On 24 April 2006 the applicant lodged an application with the Court (application no. 17504/06) in which he complained under several Articles of the Convention that the criminal trial against him had been flawed in various ways. In particular, he claimed that he had never been informed of the charges against him in English, although he had requested this during the preliminary investigation, that the courts had not presumed him innocent, that the trial had been unfair since the Supreme Court had refused leave to appeal and that he had been punished without law as the courts had taken into account the possible motives of the people involved. On 12 June 2007 the application was declared inadmissible by a Committee as being manifestly ill-founded.
4. Subsequently, on 28 September 2007, the applicant complained to the Chancellor of Justice (Justitiekanslern) that the tape recordings from the oral hearing before the Court of Appeal had been destroyed. He submitted that he needed the tape recordings in order to complain to the Court and that the destruction of the tapes hindered him from effectively exercising this right in accordance with Article 34 of the Convention. Moreover, he claimed that the time-limit of two months “after the final hearing” for destroying the records according to Swedish law was too short and not in accordance with Sweden's obligations under Articles 35 of the Convention, which afforded individuals a period of six months to complain to the Court.
5. In its reply dated 9 October 2007, the Chancellor of Justice first observed that the tape recordings from the Court of Appeal's hearing on 31 January 2006 had been destroyed at some point in May 2006 and the applicant had requested a copy of the recordings in October 2006. It then noted that, according to the Ordinance on Cases and Matters before the General Courts (förordning [1996:271] om mål och ärenden i allmän domstol; hereafter “the Ordinance”), a person who requested a copy of a tape recording from a hearing had the right to obtain it and it was possible to have the copy as soon as the protocol from the hearing had been finalised. However, the tape recordings had to be kept for two months following judgment in the case or, if the judgment was appealed against, until final judgment or decision had been rendered. In the applicant's case, the Chancellor of Justice observed that the Court of Appeal had not destroyed the tape recordings until after the Supreme Court had refused leave to appeal. Consequently, it had acted in accordance with the law. The Chancellor further considered that the two months time-limit imposed under Swedish law could not be considered insufficient for an individual to obtain a copy of the tape recording if he or she wanted to complain to the Court.
6. The applicant wrote a second letter to the Chancellor of Justice on 9 April 2008 in which he repeated that he considered the time-limit for the destruction of tape recordings to be in conflict with Sweden's obligations under Articles 34 and 35 of the Convention. However, in a letter dated 16 April 2008, the Chancellor of Justice referred to its previous letter and clarified that it did not consider that the relevant Swedish legislation was in violation of Sweden's obligations under the Convention.
7. According to Chapter 6, Article 6 of the Code of Judicial Procedure (Rättegångsbalken, 1942:740) accounts which are given as evidence at a hearing shall be recorded on tape or, if the accounts can be assumed to be of importance to the case, written down.
8. Section 19 of the Ordinance stipulated that, if someone requested information on the contents of a tape recording which had been made in accordance with Chapter 6, Article 6 of the Code of Judicial Procedure, he or she should be given a copy of that recording, unless the court considered that there were special reasons to furnish the person with a transcript instead. When a transcript was made, its accuracy had to be attested and a copy of the transcript should be included in the case file.
9. Moreover, according to section 20 of the Ordinance, a tape recording had to be kept for two months after the court ruled in the case. However, if the decision or judgment was appealed against, the tape recordings had to be kept until the case had been adjudicated through a domestic judgment or decision which had gained legal force.


ITEMID: 001-23833
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HURTIG v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Per-Runo Hurtig, is an Swedish national, who was born in 1926 and lives in Hammerdal. He was represented before the Court by Mr U. Jacobson, a lawyer practising in Stockholm.
The applicant retired on 1 December 1991. On 1 January 1992 he applied for the first time for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). Claiming that he was in need of assistance and had extra expenses due to problems with the urine tract, the intestines and the back, he requested a disability allowance as from April 1991. By a decision of 16 March 1992 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Jämtland rejected the application, finding that the applicant's needs or costs were not such as to make him eligible for disability benefits. The applicant appealed, and by judgments of 18 June 1992 and 15 June 1993, respectively, the County Administrative Court (länsrätten) of the County of Jämtland and the Administrative Court of Appeal (kammarrätten) in Sundsvall upheld the Office's decision. On 3 February 1994 the Supreme Social Insurance Court (Försäkringsöverdomstolen) refused leave to appeal.
The applicant applied anew in November 1994. The Office dismissed the application on 30 November 1994 and the County Administrative Court dismissed the appeal on 20 March 1995, both without an examination on the merits, finding that the matter had already been finally determined.
A third application was lodged by the applicant, assisted by legal counsel, on 5 January 1996. He submitted a medical certificate issued on 19 December 1995 by Dr Stefan Gedda, chief physician at Östersund hospital, which purportedly indicated that his need of assistance existed already in the 1980s, i.e. before he retired. He also claimed that he had needs and costs which he had failed to state in the earlier proceedings. The third application should thus be examined on the merits, as the previous ones had been determined on insufficient evidence.
By a decision of 30 January 1996 the Office again dismissed the case without an examination on the merits, finding that the matter was res judicata due to the earlier court examination.
On 24 June 1996, upon appeal, the County Administrative Court quashed the Office's decision, finding that, as the applicant had invoked new circumstances, his application should be examined on the merits under the 1962 Act.
On 17 January 1997 the Office rejected the application, finding that the applicant's needs or costs due to the impairment that had occurred before the age of 65 were not such as to make him eligible for disability benefits.
The applicant appealed on 26 January 1997 and requested the County Administrative Court to hold an oral hearing during which Dr Gedda should be heard. He also wished to present his own submissions orally.
The applicant has claimed that he was contacted by the court in August/September 1998. Allegedly, the court suggested that a hearing could be held on 29 September 1998 but later stated that it had been postponed. No evidence of these contacts has been submitted, however.
By a judgment of 17 May 1999 the County Administrative Court decided that an oral hearing was not necessary. It further rejected the appeal against the Office's decision on disability benefits, agreeing with the reasoning given by the Office. In regard to the request for a hearing, the court noted that Dr Gedda had been furnished with a copy of the Office's investigation and had stated that he had no objections to the Office's assessment.
The applicant appealed to the Administrative Court of Appeal and complained about the lack of an oral hearing before the County Administrative Court. He maintained, inter alia, that, before examining the case, that court should have given him an opportunity to make further submissions in the case.
On 14 September 2000 the Administrative Court of Appeal refused the applicant leave to appeal. On 13 September 2001 the Supreme Administrative Court (Regeringsrätten) also refused him leave to appeal.
According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses.
A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court.
The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”). Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of section 9, that a party's request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party's understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


ITEMID: 001-71343
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF RUDENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Damage, costs and expenses - global award
TEXT: 4. The applicant was born in 1951 and lives in the village of Kosharivka, the Kharkiv region, Ukraine.
5. In 2000 the applicant instituted proceedings in the Kupyansk Town Court against the Joint Stock Company “Kupyanskyi Liteinyi Zavod” (the “KLZ”), in which the State held about 41% of the share capital. She sought the recovery of salary arrears. On 18 December 2000 the court awarded her UAH 1,400 in salary arrears and other payments.
6. On 22 January 2001 the Kupyansk Town Bailiffs’ Service instituted enforcement proceedings in respect of that judgment.
7. In 2001 the applicant filed an application with the labour disputes commission of the KLZ, seeking recovery of salary arrears. On 17 May 2001 the labour disputes commission allowed the applicant’s claims and ordered the KLZ to pay the applicant UAH 857 in arrears. On 23 May 2001 the commission issued a certificate in respect of its decision of 17 May 2001, which had the same status as a writ of execution issued by a court.
8. On 8 June 2001 the Kupyansk Town Bailiffs’ Service instituted enforcement proceedings in respect of the commission’s decision.
9. In June 2001 the applicant instituted proceedings in Kupyansk City Court against the KLZ, seeking compensation for non-pecuniary damage. On 5 July 2001 the court found against the applicant. On 25 October 2001 the same court rejected the applicant’s request for leave to appeal for failure to comply with procedural formalities. The applicant did not appeal against this decision.
10. On 8 July 2002 the Bailiffs’ Service informed the applicant that the decisions of 18 December 2000 and 17 May 2001 could not be executed due to the large number of enforcement proceedings against the KLZ and the fact that the procedure for the forced sale of assets belonging to the debtor company had been suspended because of the moratorium on the forced sale of property belonging to State enterprises introduced by the Order of the President of Ukraine of 23 May 2001.
11. By two decisions of 28 January 2005, the Bailiffs’ Service discontinued the enforcement proceedings on the ground that the decisions had been enforced in full.
12. The applicant did not challenge these decisions of the Bailiffs’ Service before the domestic courts.
13. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, §§ 18-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91117
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KAPRYKOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1966 and lives in Poznań.
6. He is a recidivist offender. He served a number prison sentences in various detention establishments in Poland.
7. Since 1996 the applicant has been suffering from epilepsy marked by frequent (daily) seizures and encephalopathy accompanied by dementia. He also suffers from ulcers and syphilis. He has been classified by the social security authorities as a person with a “first-degree disability making him completely unfit to work” (pierwszy stopień inwalidztwa całkowicie niezdolny do pracy).
8. On 7 November 2000 the Białystok District Court (Sąd Rejonowy) appointed neurology and forensic medicine experts to produce a report on the applicant’s health in connection with a criminal case pending at that time against him. The experts examined the applicant’s medical records and the preceding psychological and forensic medicine reports. The extracts from these documents revealed that since 1996 the applicant had been suffering from epilepsy accompanied by very frequent seizures and from a personality disorder. He had made several suicide attempts. During one medical interview, the applicant had stated that he could not obtain the necessary medical treatment in prison and that his cellmates ignored his epileptic fits. The doctors, who had examined the applicant in the past, agreed that he could remain in prison provided that he received specialised psychiatric treatment on a permanent basis.
9. On 11 July 2001 the Białystok District Court appointed new medical experts to draft a report on the applicant’s health. The experts found that the penitentiary medical care system could no longer offer the applicant the necessary treatment. They emphasised that his continuous incarceration might put his health and life at risk. It was further indicated that the applicant should obtain a more detailed diagnosis from a specialised clinic and, perhaps, undergo brain surgery.
10. It appears that the applicant was first remanded in custody on 30 May 1998.
11. From 13 April 1999 until 23 June 1999 and from 20 July 1999 until 4 January 2000 he was detained in Poznań Remand Centre.
12. It appears that in 2000 he was admitted for several days to an unspecified prison hospital.
13. On 10 January 2001 the applicant was committed to Gdańsk Remand Centre where he received medical treatment in the neurology ward. Doctors emphasised the need to provide the applicant with permanent specialised medical care and to ensure his constant supervision by another person.
14. On 5 April 2001 he was transferred to Białystok Remand Centre.
15. On 3 August 2001 the applicant was released home.
16. On 17 September 2001 he was again remanded in custody in connection with a new criminal case against him. From that day until 30 October 2001 he was detained in Poznań Remand Centre.
17. On 28 February 2002 he was granted conditional release from prison.
18. On 5 September 2002 the applicant was once more remanded in custody. He was committed to an unspecified detention facility.
19. From 28 April until 5 August 2003 the applicant was at liberty.
20. On 5 August 2003 the applicant was again remanded in custody. From that day until 30 November 2007 he was in continuous detention either in ordinary detention facilities or in prison hospitals.
21. During that time he was detained in Poznań Remand Centre during four separate periods: (1) from 5 until 27 August 2003; (2) from 18 May until 12 July 2005; (3) from 5 January 2006 until an unspecified date, presumably 20 March 2006; and (4) from 9 May until 30 November 2007.
22. It appears that apart from Poznań Remand Centre the applicant was detained in the following facilities: from 28 August 2003 until 21 April 2004 in Wrocław Prison; from 22 April 2004 until an unspecified date in Białystok Remand Centre; subsequently in Śrem, Białołęka, Radom and Jelenia Góra Remand Centres; from 19 September until 19 October 2004 in the Szczecin Remand Centre hospital and immediately afterwards in Stargard Szczeciński Prison; from an unspecified date in January 2005 in Bydgoszcz Remand Centre; from 10 January until 4 April 2005 in the Gdańsk Remand Centre hospital; from 12 July until 4 October 2005 in Wronki Prison; from 4 October 2005 until 5 January 2006 in the Gdańsk Remand Centre hospital; from 20 March until 19 April 2006 in the Bydgoszcz Remand Centre hospital; from 29 June 2006 until 9 May 2007 in the Czarne Prison hospital.
23. The applicant submitted that in Poznań Remand Centre he was committed to a general and not medical wing. He had shared his cells with healthy prisoners, who, as he submitted, had ignored his epileptic fits and had not offered him any help in his daily routines. The applicant also submitted that he had been humiliated in front of his fellow inmates because, as a result of his seizures, he had often lost consciousness and had wet himself.
24. On 1 December 2007 the applicant was released and he is currently at liberty.
25. From 19 September until 19 October 2004 the applicant was detained at the internal disease ward of the Szczecin Prison hospital. He was administered Gabitril as a main drug in his treatment.
26. From 10 January until 4 April 2005 he was detained in the neurology ward of the Gdańsk Remand Centre hospital. He was prescribed Gabitril and Neurotrop as the main drugs in his treatment and it was suggested that he should regularly undergo neurological examinations.
27. From 18 May until 12 July 2005, during his detention in Poznań Remand Centre, the applicant was examined twice by a neurologist and sixteen times by the remand centre’s in-house doctor.
In addition, from 24 June until 12 July 2005 he was placed under medical observation in the Poznań Remand Centre hospital. At the hospital new generic drugs were administered to the applicant in place of Gabitril, which was an expensive medicine.
28. From 4 October 2005 until 5 January 2006 the applicant was once more admitted to the neurology ward of the Gdańsk Remand Centre hospital, where he resumed taking Gabitril.
29. From 20 March until 19 April 2006 he was detained in the surgery ward of the Bydgoszcz Remand Centre hospital because he had developed gallstones.
30. From 29 June 2006 until 9 May 2007 the applicant was detained in Czarne Prison hospital, where he was admitted to the ward for the chronically ill. Gabitril was administered to him during this time.
On his release from the hospital, the doctors considered the applicant to be in a good overall shape and self-sufficient. It was recommended that he be assigned a bottom bunk bed, be put on a diet and continue the pharmacological treatment prescribed, comprising Gabitril. It was also stressed that the applicant be placed under 24-hour medical supervision.
31. Between 9 May and 30 November 2007, when the applicant was detained in Poznań Remand Centre, he continued taking Gabitril. It appears that he was examined eighteen times by the remand centre’s in-house doctors.
32. Copies of medical records furnished by the applicant reveal that towards the end of 2007 his epilepsy was still severe, although, his epileptic seizures were less frequent. Moreover, his personality disorder continued to manifest itself in that the applicant sometimes experienced hallucinations. Most of the time, however, he was suffering from serious dementia.
The Government did not submit any medical documents or information regarding the applicant’s health condition or his treatment.
33. On 27 February 2004 a new report was drafted by experts in psychology, psychiatry and neurology, who had been appointed by the Poznań Regional Court (Sąd Okręgowy) in the course of social security proceedings for a disability benefit. The experts found that the applicant was suffering from epileptic seizures a number of times per week, sometimes even several times per day. He had also been diagnosed with encephalopathy accompanied by dementia, and also with ulcers and syphilis. The experts concluded that, even though the applicant could at that time perform basic daily activities such as washing, dressing, eating and the toilet without help, he was nevertheless too handicapped to act autonomously in making decisions or in undertaking more demanding daily routines. The experts were of the opinion that the applicant was incapable of being self-reliant and that he required, at least for the time being, direct and permanent care from another person.
34. On 31 May, 28 June and 6 July 2005 the applicant lodged with the penitentiary administration complaints about his medical treatment in prison. He claimed that he had only received information stating that his complaints had been referred to the “competent authorities” (do właściwych organów). In the Government’s submission, all three complaints had been examined by competent authorities, including the Chief Doctor of the Regional Inspectorate of the Prison Service (Naczelny Lekarz Okręgowego Inspektoratu Służby Więziennej) and considered ill-founded.
35. On 11 August 2005 the applicant complained to the Regional Inspectorate of the Prison Service that he had been prescribed Polish generic medicine in place of Gabitril, a more effective drug. That complaint was considered ill-founded because at the time when his medicines had been changed the applicant had been under close medical supervision at the prison hospital and his health had not deteriorated.
36. Article 68 of the Constitution, in its relevant part, reads:
“1. Everyone shall have a right to have his health protected.
2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation...”
37. Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:
“1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge.
...
4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence.
5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular
1) to provide immediate medical care because of a danger to the life or health of a sentenced person;
2) to carry out specialist medical examinations, treatment or rehabilitation of sentenced person;
3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence...”
38. On the basis of Article 115, paragraph 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003.
Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of liberty provide, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services to persons deprived of liberty.
Paragraph 1 of this Ordinance further provides:
“2. In a justified case, if the medical services as enumerated in subparagraph 1 cannot be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty, in particular due to the lack of specialised medical equipment, such medical services may be provided by public health care establishments.
3. In a case as described in subparagraph 2, the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [provided by the public healthcare establishments] are necessary...”
Paragraph 7 of the October 2003 Ordinance states:
“1. The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse...
2. The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital’s director or by a delegated prison doctor.
...
6. In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor...”
39. The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of health care establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It entered into force on 17 October 2003.
40. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice.
Under Article 6 of the Code of Execution of Criminal Sentences (“the Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence.
Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to execution of prison sentences are examined by a competent penitentiary court.
The remainder of Article 7 of the Code reads as follows:
“3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the publication or the service of the decision; decision [in question] shall be published or served with a reasoned opinion and instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority who had issued the contested decision. If [that] authority does not consider the appeal favourably, it shall transfer it together with the case file and without undue delay to the competent court.
4. The Court competent for examining the appeal can cease the enforcement of the contested decision...
5. Having examined the appeal the court shall rule on upholding the contested decision, [its] quashing or changing; the court’s decision shall not be a subject of an interlocutory appeal.”
In addition, under Article 33 of the Code of the Execution of Criminal Sentences (“the Code”) a penitentiary judge is entitled to make unrestricted visits to detention facilities, to be acquainted with documents and provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of liberty without the presence of third persons and to examine their applications and complaints.
Article 34 of the Code in its relevant part reads as follows:
“1. A penitentiary Judge shall quash an unlawful decision [issued by, inter alia, the Governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of liberty.
2. An appeal to the penitentiary court lies against the decision of a penitentiary judge...
4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of a person concerned] of that fact, and, if necessary, shall order the release of the person concerned.”
Finally, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. The detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on the manner of proceeding with applications, complaints and requests of persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych) (“the August 2003 Ordinance”).
41. Article 23 of the Civil Code contains a non-exhaustive list of the so-called “personal rights” (prawa osobiste). This provision states:
“The personal rights of an individual, such as in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 paragraph 1 of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take steps necessary to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
42. Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“... [T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
43. In addition, Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort.
Article 417 § 1 of the Civil Code provided:
“The State Treasury shall be liable for damage (szkoda) caused by an agent of the State in carrying out acts entrusted to him.”
After 2004 amendments Article 417 § 1 of the Civil Code provides:
“The State Treasury or [as the case may be] a self-government entity or other legal person responsible for exercising public authority shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
44. In their submissions on the admissibility and the merits of the case the Government referred to the judgment of the Koszalin Regional Court (Sąd Okręgowy) of 30 May 2006 and the Supreme Court (Sąd Najwyższy) of 28 February 2007 in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights.
45. On 30 May 2006 the Koszalin Regional Court awarded compensation for non-pecuniary damage in a case which had been brought by a certain N.S., a non-smoker detained with smoking inmates (IC 650/04). The plaintiff alleged that by forcing him to be a passive smoker the authorities had breached his right to an environment free from cigarette smoke and had caused him mental suffering. He also alleged that as a result of passive smoking his allergies had increased and his overall immune system had been weakened.
46. The domestic court examined the case under Articles 444 and 445 of the Civil Code. It was observed that the notion of damage under those provisions was linked with the liability ex delicto based on the fault (wina) of the person who had caused the damage. The provisions relied on concerned both material and non-material damage. The former was defined as a physical injury or health disorder resulting from an unlawful act or omission. The latter could be manifested by negative mental experiences suffered by the plaintiff as a result of his physical injury or health disorder. In both cases the burden of proof rested on the plaintiff.
The Koszalin Regional Court observed that according to the Ordinance of 26 November 1996 on the principles for the permitted use of tobacco in closed establishments under the Minister of Justice (Rozporządzenie w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych Ministrowi Sprawiedliwości) (“1996 Ordinance”) persons detained in remand centres and prisons could smoke only inside the selected cells designated for smokers.
It was held that the administration of the remand centre where the applicant had been detained with smokers had acted in breach of the 1996 Ordinance and Article 68 of the Constitution. The court found that the plaintiff had not proved any material damage, namely the physical injury or health disorder. He had however suffered non-material damage resulting from an unlawful interference with his right to protect himself from passive smoking. The court awarded the plaintiff PLN 5,000.
47. On 28 February 2007 the Supreme Court recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment.
That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions.
The Supreme Court dismissed the cassation appeal in so far as it related to the allegation of inadequate medical care. In this connection the Supreme Court upheld the judgments of the first and second-instance courts which had found no causal link between the deterioration of the plaintiff’s health and the quality of medical care provided to him in detention.
In so far as the cassation appeal related to the allegation of overcrowding and inadequate conditions of the plaintiff’s detention the Supreme Court quashed the second-instance judgment in which the applicant’s claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article 448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff’s personal rights had not been infringed. The case was remitted to the appeal court.
48. On 6 December 2007 the Wrocław Court of Appeal held that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee’s personal rights. On the other hand, the court observed that in the light of the Supreme Court’s established case-law, a trial court did not have a duty to award compensation for each personal right’s infringement. One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party. The Court held that in relation to the overcrowding, no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded. Ultimately, the case was dismissed.
VIOLATED_ARTICLES: 3


ITEMID: 001-95857
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF IVANOVSKI AND OTHERS v. "THE FORMER YOUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. In 1995 the applicants concluded a sales contract with three individuals buying shares from the A. company (“the company”).
7. On 13 September 1996 the first applicant brought a civil action requesting the Skopje Court of First Instance (“the first-instance court”) to order the company to register the sales contracts in its book of shareholders and to provide them with a certificate of title. On 22 November 1996 the second applicant and Mr Mile Stojčevski joined the first applicant's claim. During the proceedings, the applicants specified their claim on three occasions.
8. Between 25 June 1997 and 27 November 1998, the first-instance court ordered four adjournments, none of which was requested by the applicants.
9. On 11 January 1999 the first-instance court dismissed the applicants' claim finding that they had failed to comply with the applicable legislation and that the company had not had a capacity to stand in the proceedings. It also dismissed their request of 27 May 1998 for an interim measure prohibiting the vendors to dispose of the shares.
10. On 12 April 2000 the Skopje Court of Appeal partly upheld the applicants' appeal of 3 November 1999 and remitted the case for a renewed examination.
11. On 18 December 2001 the first-instance court dismissed the applicants' claim. The decision was served on them on 22 August 2002.
12. On 19 March 2003 the Skopje Court of Appeal dismissed the applicants' appeal. They were served with the decision on 7 May 2003.
VIOLATED_ARTICLES: 6


ITEMID: 001-88766
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KANIECKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Henryk Kaniecki, is a Polish national who was born in 1950 and lives in Gnojno. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 September 1991 the Kielce Governor (Wojewoda Kielecki) granted the applicant’s neighbour permission to build a fish pond. The applicant submitted that the pond was built in breach of the permit and that it dammed the water on his plot of land. In consequence, he could not use his land for agricultural purposes.
The applicant appealed against this decision but the appeal was finally dismissed on 11 February 1993 by the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 14 April 1993 the Kielce Governor initiated, upon the applicant’s request, proceedings for annulment of the permit.
On 29 April 1993 the Kielce Governor ordered the applicant’s neighbour to carry out work on the pond. The applicant appealed.
On 7 September 1993 the Minister of the Environment (Minister Ochrony Środowiska) quashed the impugned decision and remitted the case.
On 3 December 1993 and 29 August 1994 the Kielce Governor held hearings in the case.
On 6 September 1994 the Kielce Governor dismissed the applicant’s request for the permit to be annulled.
The applicant appealed, but on 15 January 1995 the Minister of the Environment upheld the decision.
The applicant lodged a complaint with the Supreme Administrative Court.
On 17 December 1996 the Supreme Administrative Court quashed the decision and remitted the case.
On 12 March 1997 the Kielce Governor held a hearing and on 26 March 1997 he gave a decision in which he again refused to annul the permit.
The applicant’s appeal was dismissed on 9 September 1997 by the Minister of the Environment.
On 9 October 1997 the applicant lodged a complaint with the Supreme Administrative Court.
On 17 December 1999 the Supreme Administrative Court quashed the impugned decision and remitted the case.
On 10 May 2000 the Kielce Governor transferred the case to the Mayor of Busko-Zdrój (Starosta). On 8 September 2000 an expert inspected the pond.
On 22 May 2000 the applicant wrote a letter to the Kielce Governor about the manner in which the authorities had been handling his case and submitted that a further delay in the proceedings could result in him lodging a case with the European Court. On 6 June 2000 the Governor replied to his letter, apologising for the fact that the proceedings had been lengthy. However, he considered that the delays had occurred at the judicial stage before the Supreme Administrative Court.
On 27 July 2000 the Mayor of Busko held a hearing.
On 11 September 2000 the applicant complained to the Mayor of Busko about the length of the proceedings.
On 17 and 23 January 2001 the Mayor held hearings. On 21 May 2001 an expert inspected the pond.
On 28 February 2002 the Mayor of Busko gave a decision granting permission to keep the pond and to dam the water.
The applicant appealed and on 9 May 2002 the Kielce Governor quashed the impugned decision and remitted the case.
On 23 August 2002 the Mayor of Busko gave a decision granting permission as before.
On 11 October 2002 the Świętokrzyski Governor again quashed the decision and remitted the case.
On 28 October 2002 the Mayor held a hearing.
On 11 March 2003 the Mayor of Busko carried out an inspection of the property.
It is impossible to establish the course of the proceedings thereafter.
Under Article 35 of the Code of Administrative Procedure of 1960 (“the Code”) an administrative authority should give a decision on the merits of a case within two months. If that time-limit has not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new timelimit.
Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal with the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent future such delays.
Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about the fact that an administrative authority had failed to issue a decision.
On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force. Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints of inactivity on the part of an authority.
Section 26 of the Act provided:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
Section 34 of the 1995 Act set out the requirement of the exhaustion of available remedies before lodging a complaint with the Supreme Administrative Court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the abovementioned Article 37 of the Code of Administrative Procedure.
Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question.
The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is wellfounded, an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.


ITEMID: 001-58184
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF LAGHI v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Luciano Laghi, an officer in the revenue police, lives in Bressanone (Bolzano).
8. On 24 July 1985 he instituted proceedings in the Consiglio di Stato for judicial review of a decision of the Ministry of Finance assigning him to a rank lower than the one to which he considered himself to be entitled. He also sought a stay of execution of that decision.
9. In a decision of 5 November 1985 the Consiglio di Stato allowed the application for a stay of execution. After a hearing on 2 February 1988 the Consiglio di Stato ordered the Ministry of Finance to produce various documents.
10. In a judgment of 8 March 1994, the text of which was deposited with the registry on 14 July 1994, the Consiglio di Stato gave judgment against the applicant.