ITEMID: 001-114666
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HARABIN v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria
TEXT: 6. The applicant was born in 1957 and lives in Bratislava.
7. The applicant is a Supreme Court judge. He was the president of the Supreme Court between 1998 and 2003. Between July 2006 and June 2009 he was the Minister of Justice. Since 23 June 2009 he has again been the President of the Supreme Court.
8. The Supreme Court of the Slovak Republic has been entered in the official register of the Statistical Office as a budgetary organisation, its activity being justice and the judiciary. For the purpose of national accountkeeping it has been classified in the Statistical Register of Organisations as falling within the sector of central public administration. Its budget forms a separate chapter of the State budget in accordance with section 9(1)(f) of Law no. 523/2004 on Budgetary Rules in Public Administration (“the Public Administration (Budgetary Rules) Act 2004”).
9. Following the entry into force of the Audit Act 2001 (for further details see below), the Ministry of Finance carried out financial controls of the Supreme Court in 2004 and 2007.
10. Between 23 January 2009 and 27 April 2009 the Ministry of Finance carried out a governmental audit at the Supreme Court, focused on the use of public funds and efficiency of financial management during 2007, and on the manner in which the shortcomings identified during the previous financial control had been eliminated. On 16 April 2009 the preliminary report was submitted to the Supreme Court, then headed by its VicePresident. Subsequently, in September and October 2009 and March 2010 the Director of the Supreme Court submitted to the Ministry of Finance documents indicating what measures had been taken aimed at elimination of the shortcomings found, and how those measures had been implemented. The documents were signed by the applicant as President of the Supreme Court.
11. On 21 July 2010 the Minister of Finance instructed a group of auditors to carry out an audit at the Supreme Court pursuant to section 35a(1) of the Audit Act 2001. Its aim was to examine the use of public funds, efficiency of financial management, use of State property and to check on compliance with measures which had been indicated in the course of the preceding audit of 2009.
12. The applicant in his capacity as President of the Supreme Court did not allow the Ministry’s auditors to carry out the audit on 29 July 2010, or on 2, 3 and 4 August 2010.
13. On 2 August 2010 the applicant asked the President of the Supreme Audit Office (Najvyšší kontrolný úrad) to carry out a check on how public funds were administered and used by the Supreme Court. He referred to the above instruction of the Minister of Finance and to Constitutional Court judgment PL. 97/07. The reply he received, dated 27 August 2010, stated that the Constitution guaranteed the independence of the Supreme Audit Office, and that it had no spare capacity for additional supervisory activities in 2010.
14. By letters dated 3 and 6 August 2010 the applicant informed the Minister of Finance that Ministry of Finance auditors lacked the power to carry out the audit. The applicant argued that it was the Supreme Audit Office which had the authority to supervise the administration of public funds by the Supreme Court.
15. On 11 August 2010 the Ministry of Finance issued a decision fining the applicant 995.81 euros (EUR), on the ground that by refusing the audit he had failed to comply with his obligations under the Audit Act 2001. The applicant lodged an objection. On 29 September 2010 the Minister of Finance decided to discontinue the proceedings, on the ground that his ministry lacked the power to sanction the applicant as a judge.
16. In parallel, by a decision issued on 11 August 2010, the Ministry of Finance fined the Supreme Court EUR 33,193.91 for failure to comply with its obligations under the Audit Act 2001. On 29 September 2010 the Minister of Finance dismissed the objection to the decision on the fine lodged by the Supreme Court.
17. On 18 January 2011 the Bratislava Regional Court quashed the above two decisions and returned the case to the Ministry of Finance. It held that the Supreme Court was the highest body within the ordinary judiciary, and that it did not engage in public administration. The relevant provisions of the Audit Act 2001 did not extend to it. Public funds administered by the Supreme Court formed a part of the budget approved by Parliament. Monitoring of the use of those funds lay therefore with the Supreme Audit Office. On 28 April 2011 the Supreme Court upheld the first-instance judgment.
18. In July and December 2011 the Supreme Court did not allow the Ministry of Finance to carry out an audit. Reference was made to the aforesaid judgments of the ordinary courts. On 27 February 2012 the Ministry of Finance fined the Supreme Court EUR 33,193.91 on that account. Reference was made, inter alia, to Constitutional Court decision PL. ÚS 92/2011 of 29 June 2011 (for further details see below).
19. On 23 April 2012, following a parliamentary election, the newly appointed Minister of Finance, upon the advice of a special commission, allowed the Supreme Court’s objection and quashed the fine of 27 February 2012. The Minister’s decision referred to the judgments of the Bratislava Regional Court and the Supreme Court, which were considered binding. The Constitutional Court proceedings, filed as PL. ÚS 92/2011, concerned a different issue, namely establishing whether the President of the Supreme Court had committed a disciplinary offence. The Constitutional Court’s decision in those proceedings had no legal effect on the judgments of the Regional Court or Supreme Court.
20. From 2 February to 26 April 2012 the Supreme Audit Office carried out an audit at the Supreme Court, focused on financial management under the corresponding chapter of the State budget and the closing accounts for 2011.
21. On 18 November 2010 the Minister of Justice initiated disciplinary proceedings against the applicant before the Constitutional Court. She did so upon a submission by the Minister of Finance and also following a notification by a police investigator who had dismissed the latter’s criminal complaint against the applicant, while holding that the applicant’s conduct might be qualified as a disciplinary offence.
22. The submission indicated that the applicant had four times prevented a group of auditors from the Ministry of Finance from carrying out an audit at the Supreme Court in July and August 2010. The audit had been focused on use of public funds and other State property, efficiency of financial management, and elimination of the shortcomings which had been identified in the previous audit by Ministry of Finance auditors in 2009. It was proposed that the applicant should be sanctioned by a reduction of his yearly salary by 70%, as by preventing the audit from taking place he had committed a serious disciplinary offence.
23. On 16 March 2011 the applicant submitted arguments in writing. He maintained that he had acted in conformity with the law and the Constitution, as the relevant law could not be interpreted as allowing the Ministry of Finance to carry out an audit of the Supreme Court. The applicant submitted detailed arguments in support of that view. In particular, he submitted that the Supreme Court functioned on the basis of a budget approved by the Parliament. Responsibility for audit of the use of those funds lay with the Supreme Audit Office. Governmental audit and other measures had no legal basis and were contrary to the principle of independence of the judiciary. The Supreme Court was neither a public administration body nor a central authority within the meaning of the relevant provisions of the Audit Act 2001. The applicant also relied on the Venice Commission Report on the Independence of the Judicial System and on Constitutional Court decision PL. ÚS 97/07 of 20 September 2007.
24. The differing views as to which body was entitled to carry out the audit at the Supreme Court concerned interpretation of the relevant law. The applicant expressed the view that the Ministry of Finance and the Ministry of Justice had attempted to cast doubt on the management of public funds which had been allocated to the Supreme Court in a separate chapter of the State budget, with a view to undermining the economic independence of that court. The disciplinary proceedings initiated against the applicant pursued the aim of sanctioning him for his opinions on the law.
25. On 17 March 2011 the Minister of Justice challenged three constitutional judges for bias, on the ground that they had had a personal relationship with the applicant for several years and that they had been nominated to posts in the judiciary and public administration by the same political party. She pointed out that there had been earlier decisions in which two of those judges had been excluded for similar reasons.
26. On 5 April 2011 the applicant challenged four different constitutional judges for bias. In particular, he argued that Judge G. had made negative statements about the applicant’s professional skills in the context of the election of the President of the Supreme Court. The applicant noted that there had been statements in decision II. ÚS 5/03 of 19 February 2003. That decision had been given by a chamber of the Constitutional Court which included Judge G.
27. As regards Judge O., the applicant submitted that he had made several negative statements in the media about the applicant. Thus in 2000 that judge had stated, at the time as chairman of a parliamentary committee, that the way the applicant had acted as President of the Supreme Court was such that the interest of the judiciary would be best served by replacing him. In a different statement Mr O. had indicated that the applicant could be removed under the law in force and in compliance with the Constitution. In different proceedings involving the applicant a chamber of the Constitutional Court had excluded Judge O. (decision I. ÚS 352/2010 of 20 October 2010).
28. The applicant further objected that Judge L. was a member of the same chamber to which Judges G. and O. belonged. Their relations were not neutral.
29. Finally, Judge H. had been convicted of a criminal offence, that of failure to pay tax, and had ignored the document of 31 December 2007 in which the Constitutional Court (in plenary session) had invited him to consider his position as a constitutional judge. The applicant had criticised Judge H. on several occasions earlier on that ground. He therefore feared that that judge would lack impartiality in his respect.
30. In reply to the applicant’s objection all the judges stated that they did not consider themselves biased. Judge G. indicated that the decision on which the applicant relied contained no statements about his professional skills and that she had never made any such statements personally. Judge O. stated that his involvement in different proceedings concerning the applicant was not a relevant reason for his exclusion. Judge L. considered irrelevant the applicant’s argument based on the fact that he belonged to the same chamber as Judges G. and O. Judge H. rejected the applicant’s objection concerning his standing to act as a constitutional judge as unsubstantiated. He acknowledged that the applicant enjoyed freedom of expression, which included the freedom to make critical remarks about constitutional judges. Such criticism did not affect the ability of Judge H. to carry out his duties in an impartial manner.
31. On 10 May 2011 the Constitutional Court found that the seven judges challenged by the parties were not excluded from dealing with the case. The fact that four of those judges (including Judges O. and H.) had earlier been excluded from other sets of proceedings involving the applicant could not affect the position. The Constitutional Court had found in particular that the determination of the disciplinary offence allegedly committed by the applicant was within the exclusive jurisdiction of its plenary session. Excessive formalism and overlooking the statements of the individual judges posed the risk that the proceedings would be rendered ineffective. Examination of the case by a plenary session of the Constitutional Court represented a guarantee that constitutional principles, including independence, would be respected. Furthermore, all the constitutional judges had pledged to decide cases independently and impartially, to the best of their abilities and conscience.
32. On 10 May 2011 the Constitutional Court declared the Ministry of Justice representation admissible.
33. On 13 June 2011 the applicant again challenged the constitutional judge, H. He argued that the Constitutional Court had excluded that judge in different proceedings, in which the applicant had been involved as President of the Supreme Court (III. ÚS 257/11).
34. The applicant further challenged the Minister’s standing to initiate disciplinary proceedings against him. He relied on the Bratislava Regional Court judgment of 18 January 2011 and the Supreme Court judgment of 28 April 2011 (see paragraph 17 above), and argued that he had not acted in a manner contrary to the law.
35. On 15 June 2011 the Constitutional Court heard the parties and two witnesses.
36. On 29 June 2011 the Constitutional Court (plenary session in which all thirteen judges took part) found the applicant guilty of a serious disciplinary offence (závažné disciplinárne previnenie) under section 116(2)(c) of the Judges and Assessors Act 2000. In particular, the applicant had failed to comply duly, conscientiously and in timely fashion with his obligations relating to court administration as laid down in section 42(2)(a) of the Courts Act 2004 and section 14(2)(a) in conjunction with section 35d(7) of the Audit Act 2001, in that he had four times prevented a group of auditors of the Ministry of Finance from carrying out an audit at the Supreme Court in July and August 2010.
37. The Constitutional Court imposed a disciplinary sanction on the applicant under section 117(5)(b) of the Judges and Assessors Act 2000, which consisted of a 70% reduction of his annual salary.
The applicant indicated that that sanction corresponded to EUR 51,299.96.
38. In the reasons for its decision the Constitutional Court referred to its decision PL. ÚS 97/07 of 26 September 2007 and examined the case from the point of view of the principles of independence of the judiciary, independence of judges, and separation of powers.
39. It held that any external audit in respect of the judicial branch of power had to be limited. Any such audit must have an unequivocal legal basis and a clearly defined scope. Those criteria had been met in the case under consideration.
40. In particular, the Constitutional Court referred to sections 2(2) and 35a(1) of the Audit Act 2001, and noted that the Slovak Statistical Office had entered the Supreme Court in the register of public administration bodies. That register had been established in accordance with rules applicable within the European Union pursuant to Council Regulation (EC) No. 2223/96. As an organisation using public funds the Supreme Court was therefore to be considered a public administration body within the meaning of section 2(2)(c) of the Audit Act 2001. At the same time, it was a central authority within the meaning of section 2(2)(p) of the Audit Act 2001, as it administered part of the State budget.
41. These matters did not affect the position of the Supreme Court as the highest judicial authority within the system of ordinary courts. The Supreme Court’s independence in that respect was ensured by constitutional and other legal rules, irrespective of how it was financed. The way the Supreme Court was financed and subsequent monitoring of how it used public funds did not therefore affect its independence as a judicial authority.
42. The position of the Supreme Court as regards its administration and functioning was similar to that of other legal persons using public funds. The audit which the Ministry of Finance had intended to carry out did not therefore threaten the judicial independence of the Supreme Court, as it exclusively related to the way public monies had been spent and how State property was administered, including audit of the elimination of the shortcomings which had been identified in the course of the previous audit, in 2009.
43. The Constitutional Court considered it irrelevant that the ordinary courts were of a different legal opinion as to the power of the Ministry of Finance to carry out an audit, and that they had quashed the decision by which the Minister of Finance had imposed a fine on the Supreme Court.
44. In accordance with section 32(3) of the Constitutional Court Act 1993, the decision was taken by a secret vote. It indicated that for that reason judges’ separate opinions would not be attached to it.
45. In respect of the above proceedings the applicant further submitted that one of the constitutional judges who had found him guilty of a serious disciplinary offence, Mr K., lacked impartiality. That judge had been an unsuccessful candidate in the election in which the applicant had been elected President of the Supreme Court. Mr K. had subsequently challenged that election before the Constitutional Court. The applicant had not challenged Judge K., as he had expected that the latter would withdraw, as he had in several other constitutional proceedings to which the applicant was or had been a party.
46. In 2006, following a submission by two former employees of the Supreme Court, the applicant, in his capacity as Minister of Justice, ordered the Ministry of Justice to conduct a check of how the Supreme Court was complying with the legislation and regulations governing civil servants. The applicant initiated disciplinary proceedings against the then President of the Supreme Court, who had refused to allow the check to be conducted. The Constitutional Court discharged the President of the Supreme Court in proceedings filed as PL ÚS 97/07 (see paragraphs 94-98 below).
47. In addition to the above submission of 18 November 2010 the then Minister of Justice made three other representations in which she asked the Constitutional Court to find the applicant guilty of serious disciplinary offences.
48. In the representation dated 25 November 2010 it was imputed to the applicant that he had failed to ensure the allocation of cases to judges within the Supreme Court by means of random assignment. On 11 May 2011 the Constitutional Court declared the representation admissible (proceedings PL. ÚS 93/2011). It dismissed the Minister’s and the applicant’s requests for exclusion of constitutional judges on the basis of the same facts as in the disciplinary proceedings relating to the present case. The proceedings were stayed on 14 December 2011 pending the outcome of the proceedings before the Court on the present application.
49. In her representation of 28 November 2011 the Minister of Justice imputed serious disciplinary offences to the applicant on six counts. They related to allocation of cases to judges. The Minister relied, inter alia, on the Constitutional Court’s finding of 18 October 2011, concluding that a party’s right to a hearing by a tribunal established by law had been breached as a result of a change in Supreme Court judges.
50. In the context of the proceedings on that representation (PL. ÚS 116/2011) the Minister of Justice challenged three judges for bias. The applicant raised a similar objection in respect of five different judges. On 14 December 2011 the Constitutional Court excluded two of the judges challenged by the Minister of Justice and one of the judges challenged by the applicant (Judge H.). Those judges had been excluded earlier, in different sets of proceedings, because of their relationship with the applicant or their attitude towards him. It further dismissed the applicant’s request for exclusion of Judges K. and O., as no majority had been reached in the vote. Finally, it held that the other three judges challenged by the parties had not been shown to lack impartiality. The decision indicated that several constitutional judges had criticised the decision taken in proceedings file no. PL. ÚS 92/2011 not to exclude any of the judges challenged by the parties. The view was expressed that although the four judges who had been found to lack impartiality in earlier sets of proceedings due to their relation to or attitude towards the applicant were excluded from the proceedings filed as PL. ÚS 116/2011, the plenary session of the Constitutional Court would still have enough judges to decide on the Minister’s representation of 28 November 2011. Six judges joined dissenting opinions to that decision. On 11 April 2012 the Constitutional Court decided that it was not appropriate to stay the proceedings filed as PL. ÚS 116/2011.
51. On 3 August 2011 the Minister of Justice initiated a new set of disciplinary proceedings, on the ground that the applicant had failed to lodge an appeal in the civil proceedings in which the first-instance court had ordered the Supreme Court, as the authority representing the State who was the defendant, to pay compensation for non-pecuniary damage to the plaintiffs, amounting to one million euros (proceedings filed as PL. ÚS 6/2012). On 11 April 2012 the Constitutional Court, in a similar decision to that of 14 February 2011 in proceedings filed as PL. ÚS 116/2011, excluded Judge H. and two other judges, dismissed the applicant’s request for exclusion of Judges K. and O., and held that the three other judges challenged did not lack impartiality. On 25 April 2012 the Constitutional Court admitted the Minister’s representation and dismissed the applicant’s request for the proceedings to be stayed.
52. The applicant further submitted a compilation of media articles and transcripts of broadcasts covering the period from 30 July 2010 to 19 June 2011. It is 101 pages long and relates mainly to the differences of opinion as to what authority should carry out the audit of the Supreme Court and the ensuing disciplinary proceedings against the applicant, including statements by the Minister of Finance and the Minister of Justice.
53. In particular, the applicant indicates a press conference on 18 November 2010 at which the Minister of Justice stated that she had initiated disciplinary proceedings, as she considered that by not allowing the auditors to carry out their task the applicant had acted contrary to the law. The Minister was persuaded that such an audit would not in any way undermine the Supreme Court’s independence. The audit concerned exclusively the use of public funds, and the applicant’s position cast serious doubt on the trustworthiness and functioning of the judiciary as a whole. The Minister of Justice stated that she had made the representation on the initiative of the Minister of Finance and also on the basis of information she had obtained from the files of the Anti-Corruption Office. Two articles published on 4 August 2011 quoted the statement “I consider that [the applicant] has committed a serious disciplinary offence” which the Minister of Justice had made when commenting on the representation she had made relating to the applicant’s failure to appeal against a first-instance judgment.
54. Pursuant to Article 124, the Constitutional Court is an independent judicial authority authorised to protect compliance with the Constitution. It comprises thirteen judges (Article 134). No remedy lies against its decisions (Article 133).
55. Article 136 § 3 entitles the Constitutional Court to carry out disciplinary proceedings against the President and Vice-President of the Supreme Court and the General Prosecutor. Article 131 § 1 lists such proceedings among those where the Constitutional Court decides at a plenary session.
56. Pursuant to Article 141a § 1, the President of the Supreme Court presides over the Judicial Council of the Slovak Republic.
57. Pursuant to Article 145 § 3, the President and Vice-President of the Supreme Court are appointed by the President of the Slovak Republic from among the Supreme Court judges proposed by the Judicial Council.
58. Under Article 147 § 1 the President of the Slovak Republic has to remove a judge upon the Judicial Council’s proposal, inter alia, on the basis of a decision by a disciplinary chamber that the judge has acted in a manner incompatible with the exercise of judicial function.
59. Article 56 §§ 1 and 2 provide for the possibility of punishing a criminal offender by a pecuniary penalty. Its amount may vary from EUR 160 to EUR 331,930.
60. Article 394(1) and (3) provides for allowing proceedings leading to a final judgement or penal order to be reopened when the existence of new facts is established. A finding by the Court concluding that the fundamental rights of an accused have been breached by a decision of a court or public prosecutor or in proceedings preceding such a decision is to be considered as a new fact within the above meaning, provided that its negative consequences cannot be redressed by other means.
61. Section 4(2) provides that the Constitutional Court has the power to proceed and take decisions at a plenary session subject to the participation of at least seven judges.
62. Pursuant to section 4(3), at plenary sessions the Constitutional Court takes decisions by a majority of all judges. Where such a majority is not achieved, the matter under consideration is to be dismissed.
63. Section 16 governs the disciplinary liability of constitutional judges. Disciplinary proceedings against a Constitutional Court judge are conducted by a disciplinary chamber composed of three judges of that court. The judge concerned may lodge an objection to a disciplinary chamber’s decision within fifteen days. The objection is to be decided upon by a plenary meeting of the Constitutional Court.
64. Pursuant to section 27(1), a judge of the Constitutional Court is excluded from dealing with a case where there can be doubts about his or her impartiality in view of his relation to the subject matter of the proceedings, the parties or their representatives. The judge concerned has to inform the President of the Constitutional Court of the reasons for his or her exclusion without delay (section 27(2)).
65. Section 28(1) entitles a party to challenge a judge for bias. Pursuant to section 28(2), where the Constitutional Court is to determine a case at a plenary session, the decision on his or her exclusion for bias is to be taken at the plenary session; the judge concerned does not take part in the vote. If no majority is obtained, the President’s vote is decisive. Section 28(3) provides for the same way of proceeding where a judge declares himself or herself biased.
66. Under section 31a, except where otherwise provided or where the nature of the matter at hand precludes their application, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure are to be applied accordingly in proceedings before the Constitutional Court.
67. Section 32(3) provides that decisions in proceedings under Article 136 §§ 2 and 3 of the Constitution are taken by a secret vote.
68. Pursuant to section 74e, special legal rules are to be applied in an appropriate manner to disciplinary proceedings against the President and Vice-President of the Supreme Court and the General Prosecutor. Reference is made to the Judges and Assessors Act 2000.
69. Part Three deals with disciplinary liability of judges in general and governs disciplinary proceedings.
70. Section 116(2)(c) qualifies as a serious disciplinary offence repeated breaches of obligations in the context of administration of a court under special law, continued breach of duties of a court office holder (súdny funkcionár) despite earlier warning, or a breach of duties of a court office holder such as to pose a serious threat to the trustworthiness and functioning of the judiciary.
71. Under section 116(3)(b) a serious disciplinary offence committed by a judge who has earlier been sanctioned for a serious disciplinary offence is deemed incompatible with that judge’s continuing in office.
72. Section 117(5) provides for the following sanctions for serious disciplinary offences or for minor offences which, at the same time, have the nature of a serious disciplinary offence:
a) transfer of the judge to a lower court;
b) reduction in salary by 50% to 70% for a period of three months to one year;
c) removal from the post of president or vice-president of a court if a serious disciplinary offence has been committed under section 116(2)(c) of the Judges and Assessors Act 2000 (by virtue of section 117(6) this sanction is not applicable to the President and Vice-President of the Supreme Court); and
d) publication of a decision indicating that a judge had failed to provide information about an increase in his property as required by the law.
73. Section 117(7) provides that the sanction for a serious disciplinary offence which is deemed incompatible with a person’s continuing as a judge has always to be the removal of that person from his or her post as a judge.
74. Pursuant to section 119(2), disciplinary proceedings against the President and Vice-President of the Supreme Court are carried out by the Constitutional Court.
75. Section 119(9) and (10) provides that while first-instance chambers dealing with judges accused of disciplinary offences (other than the President and Vice-President of the Supreme Court) comprise three judges, those dealing with such cases at second level consist of five judges.
76. Section 120(2)(a) lists the Minister of Justice as one of the persons entitled to submit a representation for disciplinary proceedings to be brought against a judge.
77. Section 121(1) allows a person concerned to challenge for bias a judge of a disciplinary chamber. The matter is to be decided by a different disciplinary chamber at the same level or, where that is not possible, a second-instance disciplinary chamber (sub-section 2). Where the number of judges lacking impartiality prevents a disciplinary chamber from deciding, the election of a disciplinary chamber for that purpose and its composition are to be decided upon by the Judicial Council (sub-section 3).
78. An appeal is available against a decision of a first-instance disciplinary chamber, and is to be examined by an appellate disciplinary chamber (section 131(1) and (3)).
79. The judge concerned may request reopening of disciplinary proceedings within three years of the final disciplinary chamber’s decision taking effect (section 132(1)).
80. Section 150(2) provides that the provisions of the Code of Criminal Procedure relate to disciplinary proceedings in an appropriate manner unless the Judges and Assessors Act 2000 provides otherwise.
81. Section 35(1) provides that the presidents of courts ensure management and administration of their courts in accordance with the Courts Act 2004.
82. Under section 42(2)(a) presidents and vice-presidents of courts are obliged to carry out the duties of their office conscientiously and to discharge those duties in due and timely fashion as the authority responsible for the management and administration of courts.
83. Pursuant to section 74(1)(c), presidents ensure the economic, material and financial aspects of the functioning of courts.
84. The Law on Financial Control and Internal Audit (“the Audit Act 2001”) governs the financial control, internal and governmental audit in respect of use of public funds and other activities of public administration bodies. It provides for the powers of the Ministry of Finance and other public administration authorities in the sphere of financial control and internal and governmental audit, as well as for the rights or obligations of persons who are subjected to such control or audit.
85. Pursuant to section 2(2)(c), read in conjunction with section 3 of Law no. 523/2004 to which it refers, public administration bodies are legal persons appearing on the register of organisations of the Statistical Office and which are classified, in accordance with the rules in force within the European Union, as playing, inter alia, a central administration role.
86. Section 2(2)(p) defines as a central authority a public administration body which administers a separate chapter of the State budget.
87. Section 14(2)(a) obliges entities and their employees subject to audit to set up conditions permitting a financial audit and to abstain from any action which might threaten the setting up and smooth conduct of such an audit.
88. Section 35a(1)(a), as in force since 1 June 2008, entitles the Ministry of Finance to audit central authorities in the context of governmental audit.
89. Pursuant to section 35b, its purpose is to monitor and assess the financial management, efficiency and appropriateness of the use of public funds and human resources, security of information systems and their functioning, availability and completeness and correctness of information on financial transactions and economic management, as well as the manner in which shortcomings identified during earlier audits have been eliminated.
90. Section 35d(7) provides that obligations under, inter alia, section 14(2)(a) are incumbent equally on the body subject to audit and its employees.
91. Pursuant to section 35d(8), persons subject to audit are obliged, inter alia, to inform the auditor in writing within the period set in the audit report whether and how they have taken into consideration the recommendations formulated in the report, and what measures they have taken with a view to eliminating the shortcomings identified during the audit.
92. Section 1 defines the Supreme Audit Office as a State body which is independent and bound only by law when carrying out its control activities.
93. Pursuant to section 2(1)(a) the Supreme Audit Office controls the management of funds from budgets which under the relevant law are approved by the National Council or the Government.
94. Proceedings PL. ÚS 97/07 concerned a representation in which the applicant, then the Minister of Justice, initiated disciplinary proceedings against the President of the Supreme Court. The alleged disciplinary offence concerned the latter’s refusal to allow a group of supervisors of the Ministry of Justice to check how the Supreme Court was complying with the legislation and regulations governing civil servants.
95. In its decision of 26 September 2007, adopted at a plenary session, the Constitutional Court concluded that the facts in issue did not amount to a serious disciplinary offence within the meaning of section 116(2)(c) of the Judges and Assessors Act 2000.
96. The Constitutional Court expressed the view that the principle of independence of the judiciary implied that the Ministry of Justice must not influence, by its supervisory or other activities, the internal situation within the judiciary. It was the main task of the State administration to serve the courts in the discharge of their duties by providing the necessary material, logistical and organisational support at the level required for the efficient functioning of the judiciary.
97. In the case under consideration, allowing such check was beyond a constitutionally acceptable interpretation of the supervisory powers of the Ministry of Justice. It would result in the President of the Supreme Court being deprived of guarantees linked to the relations between the judiciary and State administration.
98. Lastly, the decision stated that the President of the Supreme Court had refused to allow the check on the basis of his legal opinion as to the relevant statutory provisions, and that he had so informed the Minister of Justice. The request under consideration therefore related to a difference of opinion as regards the interpretation and application of the relevant law. Such an issue, however, could not be the subject matter of disciplinary proceedings. Such proceedings must not be allowed to bring about a weakening of the principles of separation of powers and independence of the judiciary.
99. The applicant relied on the following decisions on exclusion of constitutional judges who had been involved in proceedings leading to the imposition of a disciplinary sanction on him in the present case.
100. On 3 April 2007 the Constitutional Court (Third Chamber) excluded Judge K. from a case to which the applicant was one of the parties. In his statement Judge K. explained that he and the applicant had been candidates for election as President of the Supreme Court in 2003 and that that election had been the subject matter of earlier proceedings before the Constitutional Court. In its decision (III. ÚS 72/07) the Constitutional Court admitted that further involvement of Judge K. might raise doubts as to his objective impartiality.
101. On 7 February 2008 the Constitutional Court excluded Judge H., at his own request, from a case with a bearing on the applicant (decision III. ÚS 49/08). It noted in particular that Judge H. considered himself biased due to the applicant’s public and personal statements about him.
102. On 7 June 2011 a chamber of the Constitutional Court excluded Judge H. from a case in which the Supreme Court was a defendant and where the applicant was acting on the latter’s behalf (decision III. ÚS 257/2011). The chamber held that the critical statements of the applicant in respect of Judge H. justified the conclusion that from an objective point of view the latter was not impartial. The decision also stated that the situation was different from that in the above-mentioned disciplinary proceedings against the applicant, as there was no risk that the Constitutional Court would be unable to deal with the case because of the exclusion of several judges.
103. On 21 June 2011 the Third Chamber of the Constitutional Court excluded Judge H. from different proceedings to which the applicant was a third party (decision III. ÚS 292/2011) despite his statement that he did not consider himself biased. The chamber held that the critical remarks of the applicant in respect of Judge H. justified the applicant’s fear that that judge might not decide on the case in an impartial manner.
104. The recommendation was adopted on 17 November 2010. Its relevant parts provide:
“5. Judges should have unfettered freedom to decide cases impartially, in accordance with the law and their interpretation of the facts ...
11. ... Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts ...
13. All necessary measures should be taken to respect, protect and promote the independence and impartiality of judges ...
22. ... In their decision making judges should be independent and impartial ...
32. The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges’ independence and impartiality ...
60. Judges should act independently and impartially in all cases, ensuring that a fair hearing is given to all parties ...
61. Judges should adjudicate on cases which are referred to them. They should withdraw from a case or decline to act where there are valid reasons defined by law, and not otherwise ...
69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.”
105. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Their relevant part reads as follows:
“2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
106. The Magna Carta of Judges (Fundamental Principles) was adopted by the Consultative Council of European Judges (CCJE) in November 2010. It provides in paragraph 1 that the mission of the judiciary is to guarantee the very existence of the rule of law, and thus to ensure the proper application of the law in an impartial, just, fair and efficient manner. Pursuant to paragraph 2, judicial independence and impartiality are essential prerequisites for the operation of justice.
107. The Bangalore Draft Code of Judicial Conduct 2001 was adopted by the Judicial Group on Strengthening Judicial Integrity, and it was revised at the Round Table Meeting of Chief Justices held in The Hague in November 2002. The relevant principles contained therein read as follows:
“Value 2: IMPARTIALITY
Principle:
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
Application:
2.1 A judge shall perform his or her judicial duties without favour, bias or prejudice.
2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary ...
2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where
2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; ...
Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.”
108. In March 2007 the Judicial Group on Strengthening Judicial Integrity adopted the Commentary on the Bangalore Principles of Judicial Conduct. Its relevant parts read as follows:
“81. The generally accepted criterion for disqualification is the reasonable apprehension of bias. Different formulae have been applied to determine whether there is an apprehension of bias or prejudgment. These have ranged from ‘a high probability’ of bias to ‘a real likelihood’, ‘a substantial possibility’, and ‘a reasonable suspicion’ of bias. The apprehension of bias must be a reasonable one, held by reasonable, fair minded and informed persons, applying themselves to the question and obtaining thereon the required information. The test is ‘what would such a person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would such person think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly’. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasize that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by other judges of the capacity or performance of a colleague ...
90. Depending on the circumstances, a reasonable apprehension of bias might be thought to arise (a) if there is personal friendship or animosity between the judge and any member of the public involved in the case; (b) if the judge is closely acquainted with any member of the public involved in the case, particularly if that person’s credibility may be significant in the outcome of the case; (c) if, in a case where the judge has to determine an individual’s credibility, he had rejected that person’s evidence in a previous case in terms so outspoken that they throw doubt on the judge’s ability to approach that person’s evidence with an open mind on a later occasion; (d) if the judge has expressed views, particularly in the course of the hearing, on any question at issue in such strong and unbalanced terms that they cast reasonable doubts on the judge’s ability to try the issue with an objective judicial mind; or (e) if, for any other reason, there might be a real ground for doubting the judge’s ability to ignore extraneous considerations, prejudices and predilections, and the judge’s ability to bring an objective judgment to bear on the issues. Other things being equal, the objection will become progressively weaker with the passage of time between the event which allegedly gives rise to a danger of bias and the case in which the objection is made ...
Doctrine of necessity
100. Extraordinary circumstances may require departure from the principle discussed above. The doctrine of necessity enables a judge who is otherwise disqualified to hear and decide a case where failure to do so may result in an injustice. This may arise where there is no other judge reasonably available who is not similarly disqualified, or where an adjournment or mistrial will work extremely severe hardship, or where if the judge in question does not sit a court cannot be constituted to hear and determine the matter in issue. Such cases will, of course, be rare and special. However, they may arise from time to time in final courts of small numbers charged with important constitutional and appellate functions that cannot be delegated to other judges.”
109. In 2010 the General Assembly of the European Network of Councils for the Judiciary (ENCJ) adopted a declaration approving the ENCJ report “Judicial Ethics - Principles Values and Qualities”. The principles included in the report comprise, among others, the following:
“Impartiality and people’s perception of impartiality are, with independence, essential to a fair trial.
The impartiality of the judge represents the absence of any prejudice or preconceived idea when exercising judgment, as well as in the procedures adopted prior to the delivery of the judgment ...
To guarantee impartiality, the judge:
- Fulfils his judicial duties without fear, favouritism or prejudice;
- Adopts, both in the exercise of his functions and in his personal life, a conduct which sustains confidence in judicial impartiality and minimises the situations which might lead to a recusal;
- Recuses himself from cases when:
he cannot judge the case in an impartial manner in the eyes of an objective observer;
he has a connection with one of the parties or has personal knowledge of the facts, has represented, assisted or acted against one of the parties, or there is another situation which, subjectively, would affect his impartiality; ...
A judge has a duty of care to prevent conflicts of interest between his judicial duties and his social life. If he is a source of actual or potential conflicts of interest, the judge does not take on, or withdraws immediately from, the case, to avoid his impartiality being called into question.” ...
110. At a meeting in Istanbul the European Association of Judges, at the request of the Association of Slovak Judges, considered developments in the legislation concerning the judiciary and the Government’s proposed legislative amendments. The relevant parts of the resolution adopted on 4 September 2011 read:
“7. The European Association of Judges underlines once again that independence has to be accompanied by accountability. Under the pretext of accountability, however, this should never result in the other powers of the state gaining undue influence on the judiciary. Transparency of procedures and proper reasoning of decisions are a means of guaranteeing accountability and increasing trust in the judiciary ...
8. ... Disciplinary proceedings, or importantly, the threat of such proceedings, must not risk being misused by placing improper pressures on the judge concerned. Accordingly international documents not only place the jurisdiction to hold disciplinary procedures on a court or an independent body, but also promote the establishment of an independent body or person to initiate such procedures (Art. 69 of the Recommendation CM/Rec (2010)12, para. 68, 69 and 77 ii and iii CCJE Opinion 3 (2002) and Art. 6 of the Magna Charta of Judges (fundamental principle). To place the power to commence proceedings with a member of the government infringes the balance of powers. Such an arrangement does not help to increase trust in the judiciary and may increase the suspicion of political interference. What is necessary are quick and fair proceedings before a disciplinary court.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108645
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SMOLIK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Criminal offence);Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 5. The applicant was born in 1989 and is currently serving a prison sentence.
6. In the afternoon of 12 May 2004 a minor, K., was found dead in his apartment, with several knife wounds. On the same day the local prosecutor’s office instituted criminal proceedings in connection with the murder.
7. The applicant (14 years old at that time) was a school acquaintance of K. Before the incident, K. had invited the applicant to his home on many occasions.
8. At 5 p.m. on the same day the police visited the applicant’s home. In the presence of his mother the applicant confessed and the police took him to the police station.
9. The police did not draw up arrest order and the applicant did not have his procedural rights explained to him on that day, as required by Article 106 of the Code of Criminal Procedure. According to the applicant, he was questioned about the incident and subjected to ill-treatment by the police.
10. At 7.50 p.m. on the same day the applicant was examined by a medical expert, who reported abrasions on the applicant’s hand, back, waist and shoulder. The expert opined that the injuries were light and had been inflicted between twenty-four hours and six hours before the examination. The applicant remained in police custody.
11. At 9.30 a.m. on 13 May 2004 the applicant was given access to a lawyer he had chosen himself. His procedural rights were explained to him, including the right to remain silent and not to incriminate himself, to be informed of the charges against him, to have a meeting with a lawyer before being questioned, to seek to examine evidence, to seek withdrawal of an investigator, to participate in investigative actions, and to lodge complaints.
12. Between 11.05 a.m. and 3.40 p.m. that day an investigator from the prosecutor’s office questioned the applicant in the presence of the lawyer and a teacher. During that questioning the applicant stated that he had entered the victim’s apartment, using a key he and a schoolmate had stolen from K. beforehand; the applicant’s plan was only to steal money, but when K. arrived unexpectedly and a fight broke out between them he grabbed a knife and stabbed him several times; he then took money and left the apartment.
13. At 5.10 p.m. on 13 May 2004 an investigator from the prosecutor’s office drew up an arrest order in respect of the applicant, relying on Articles 106 and 115 of the Code of Criminal Procedure.
14. On 15 May 2004 the applicant was questioned once again. In the presence of the lawyer the applicant confirmed his previous statements.
15. On 16 May 2004 the local court remanded the applicant in custody as a preventive measure and noted, inter alia, that the applicant had been arrested as a suspect at 5.10 p.m. on 13 May 2004. At the court hearing the applicant was represented by the lawyer. They both submitted, inter alia, that the applicant had acknowledged guilt.
16. On 6 July 2004 the applicant’s father requested that criminal proceedings be instituted against the police officers, claiming that after arrest the applicant was subjected to ill-treatment, and that the lawyer was allowed in only the next morning.
17. On 15 July 2004 a forensic medical expert confirmed the conclusions of the medical expert of 12 May 2004.
18. On the same day the applicant was questioned once again in the presence of the lawyer. He was clear that it was K. who had initiated the fight and that all he could remember was when he found himself holding a knife and K. lying on the floor: he was really scared then. He further submitted that after he was arrested police officers had beaten him up, thus making him confess in detail.
19. On 17 July 2004 the investigator of the local prosecutor’s office refused to institute criminal proceedings into the alleged ill-treatment for lack of corpus delicti.
20. On 18 July 2004 the applicant was further questioned in the presence of the lawyer. The applicant once again stated that he could not remember what happened during the fight with K. until the moment when the latter was lying dead on the floor.
21. Following the completion of the investigation the case was referred to court for the applicant to be tried.
22. On 5 November 2004 the Mykolayiv Region Court of Appeal (“the trial court”), having regard to the applicant’s complaints of ill-treatment, ordered additional inquiries in relation to those allegations.
23. On 12 November 2004 the local prosecutor once again refused to institute criminal proceedings into the alleged ill-treatment for lack of corpus delicti.
24. When questioned by the trial court, the applicant admitted that he had entered K.’s apartment and stolen the money. He could not explain how the murder was committed, as he could not remember what had happened.
25. On 26 November 2004 the trial court found the applicant guilty of aggravated murder and robbery and sentenced him to fifteen years’ imprisonment. The judgment was based on the self-incriminatory statements made by the applicant on 13 May 2004 and later and other documentary, oral and material evidence. In the operative part of the judgment the trial court ordered that the term of imprisonment be counted from 12 May 2004.
26. The applicant and his representative appealed against that judgment, alleging, inter alia, that the applicant had committed the murder when mentally disturbed and in a fight with the victim. They further insisted that the applicant’s procedural rights had been infringed, as he had been subjected to ill-treatment and his status as an arrested person had not been formalised straight after the arrest.
27. On 24 February 2005 the Supreme Court held a hearing in the case and the applicant submitted that there had been an accomplice, A., in K.’s apartment who had committed the murder. He alleged that he had been afraid to tell the truth earlier because he had been threatened by the accomplice, who was much older than him.
28. The Supreme Court rejected the applicant’s submissions, finding that the applicant’s guilt had been well established by the evidence in the case file and there had been no indication that the applicant’s rights had been violated in the course of the investigation. However, it changed the applicant’s sentence for robbery, reclassifying it as theft.
29. On 17 June 2005 the prosecutor’s office instituted an investigation of the applicant’s allegations concerning involvement of the accomplice A. in the crimes.
30. On 10 February 2006 the investigation was terminated as no evidence of A.’s involvement had been obtained.
31. The relevant part of Article 29 of the Constitution reads as follows:
“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. ...
Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”
32. The relevant provisions of the Code read as follows:
“A person shall be considered a suspect if:
1) he/she has been arrested on suspicion of having committed a crime;
2) in his/her respect a preventive measure has been applied until a decision has been made to bring that person to the proceedings as an accused.
A suspect is entitled to know what he/she is suspected of; to give evidence or refuse to give evidence and answer questions; to have defence counsel and a meeting with him before the first questioning; to challenge the lawfulness of his/her arrest before the court ...
It shall be stated in the arrest order or the decision to apply a preventive measure that the suspect has had his or her rights explained.”
“The participation of defence counsel during the inquiry and the preliminary investigation and during consideration of the criminal case in the first-instance court is obligatory:
1) in the cases concerning a person who is suspected of or charged with a crime committed at the age of less than eighteen years, – from the moment when such a person is considered a suspect or when such a person has been charged with the crime; ...”
“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:
1. if the person is discovered whilst or immediately after committing an offence;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.
For each case of a suspect’s arrest, the body of inquiry shall be required to draw up an arrest order (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.
A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of inquiry shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.
If the arrest is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days of receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.
The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful.
The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.
Preliminary detention of a suspect shall not last for more than seventy-two hours.
If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.”
“An investigator may arrest and question a person suspected of a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.
“... If a minor has not attained the age of sixteen ... a pedagogue ... may be invited ... to be present during the introduction of charges against a minor and his questioning ...”
33. The relevant provisions of the Compensation Act (as worded at the relevant time) can be found in the judgment of Afanasyev v. Ukraine (no. 38722/02, § 52, 5 April 2005).
34. The relevant extracts from the report read as follows:
“38. It appears from the information gathered during the 2005 visit that the prompt and accurate recording of a person’s detention (i.e. from the moment he/she is obliged to remain with the Internal Affairs staff) remains a considerable area of concern. The delegation’s findings revealed that, in many instances, periods of detention (from several hours up to one day) went unrecorded in the protocols of detention. At the same time, custody registers often contained incorrect data, and on occasion, misleading information. By way of illustration, the register of a district police station indicated that a person was detained there for two hours while it was subsequently established that the person in question was in fact held at the police station concerned for three days. Resolute action is required on the part of the Ukrainian authorities to put an end to this state of affairs.
The CPT recommends that steps be taken immediately to ensure that whenever a person is deprived of liberty by the Militia, for whatever reason, this fact is formally recorded without delay. Further, once a detained person has been placed in a cell, all instances of his/her subsequent removal from the cell should be recorded; that record should state the date and time the detained person is removed from the cell, the location to which he/she is taken and the officers responsible for taking him/her, the purpose for which he/she has been removed from the cell, and the date and time of his/her return.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-78167
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TRZCIALKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1975 and lives in Warsaw.
5. On 7 January 2000 he was arrested and placed in police custody.
6. On 9 January 2000 the Wołomin District Court ordered that the applicant be detained for three months on suspicion of having committed fraud as a result of which third parties had disposed of their property, valued at 362,840 zlotys (PLN), to their detriment. The court based its detention order on a reasonable suspicion that the applicant had committed the offence and on the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings.
7. On an unknown date the applicant lodged an appeal against this decision. On 25 January 2000 the Warsaw Regional Court dismissed his appeal.
8. Subsequent decisions as to the extension of the applicant’s pre-trial detention were taken on 31 March, 27 June, 29 August and 7 December 2000 and on 13 March 2001.
9. On 29 May 2001 a bill of indictment against the applicant and one other suspect was lodged with the Wołomin District Court. The applicant was charged with fraud as a result of which third parties had disposed of their property, valued at PLN 362, 840, to their detriment.
10. Subsequent decisions as to the extension of the applicant’s pre-trial detention were taken on 8 June 2001, 23 August 2001, 3 October 2001, 25 October 2001, 6 December 2001, 27 March 2002, 25 June 2002, 30 August 2002 and 25 November 2002.
11. In principle, in all the above-mentioned decisions the courts relied on the same grounds for detention as those given in the first detention order. In some the courts also referred to the complexity of the case, the need to conduct further investigation, the probable collusion between the applicant and other suspects (later: the co-accused) and the probable exertion of unlawful pressure on witnesses by the applicant. In particular, the courts indicated that a high risk of collusion existed since one of the suspects still remained at large and his whereabouts had not yet been established.
12. The applicant appealed against the decisions extending his detention on several occasions. All of his appeals were dismissed.
13. On 23 August 2001 the first hearing was held before the Wołomin District Court. Subsequent hearings were held on 13 September 2001, 3 October 2001, 25 October 2001, 6 December 2001, 19 December 2001, 17 January 2002, 24 January 2002, 22 February 2002, 6 March 2002, 22 March 2002, 3 April 2002, 18 April 2002, 8 May 2002, 28 June 2002, 19 September 2002, 27 November 2002, 18 December 2002, 16 January 2003 and 22 January 2003. At a hearing on 28 June 2002 the Wołomin District Court remitted the case to the Wołomin District Prosecutor so that shortcomings in the investigation could be corrected.
14. On many occasions the applicant requested that his detention pending trial be lifted or that a more lenient preventive measure be applied. Each time his request was dismissed. The decisions to that effect were given by the Wołomin District Court (on 9 February 2000, 19 October 2000, 6 November 20000, 21 November 2000, 18 June 2001, 21 July 2001, 1 October 2001, 3 October 2001, 25 October 2001, 25 January 2002 and 1 August 2002) or by the Wołomin District Prosecutor (on 4 April 2000, 8 May 2000, 20 June 2000, 6 September 2000 and 18 May 2001). These decisions relied on a reasonable suspicion that the applicant had committed the offence and the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. In some decisions it was stressed that the whereabouts of all the persons involved in committing the offence had not yet been established. Many of the decisions were, however, very laconic; for example, the decision of 1 August 2002 included only four lines of reasoning. The applicant appealed unsuccessfully against those decisions on several occasions.
15. On 13 February 2003 the Wołomin District Court decided to apply police supervision in place of pre-trial detention. It also prohibited the applicant from leaving the country. In the reasoned grounds for its decision, it stated that, bearing in mind the progress made in collecting evidence, the risk that the applicant would obstruct the proper conduct of proceedings had ceased to exist. On the same day the applicant was released from detention.
16. On 7 June 2003 the Warsaw District Court again ordered that the applicant be remanded in custody from 6 June 2003 until 6 September 2003. It justified its decision by a reasonable suspicion that the applicant had committed the offence and the severity of the likely penalty. It also referred to the necessity to secure the proper conduct of proceedings.
17. The applicant remained detained until 20 October 2003 as transpires from a document issued by the detention centre on the applicant’s release.
18. Hearings were held on 9 June 2003, 26 June 2003, 12 September 2003, an unknown date in December 2003 and 8 January 2004.
19. On 30 January 2004 the Wołomin District Court sentenced the applicant to six years’ imprisonment and ordered that payments be made to the victims on account of the damage incurred. On 30 March 2004 the applicant appealed.
20. On 29 September 2004 the Warsaw Regional Court quashed the judgment and remitted the case to the first-instance court.
21. On 2 March, 31 May and 20 June 2005 hearings were held before the Warsaw District Court (which had assumed jurisdiction of the case).
22. On 20 September 2005 the Warsaw District Court sent the case back to the Wołomin District Court so that the applicant’s case could be joined to that of other defendants in the same proceedings.
23. On 22 December 2005 the Wołomin District Court held a hearing.
24. The proceedings are pending before the Wołomin District Court.
25. For a presentation of domestic law, see Kozik v. Poland, no. 25501/02, judgment of 18 July 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-97496
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: IYISAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicant, Mr Hayri Iyisan, is a Turkish national who was born in 1947 and lives in Adana. He was represented before the Court by Mr H Tepe, a lawyer practising in Ankara. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J Gladstone of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to the United Kingdom in 1970. He was granted leave to enter and remain, which permitted him to work in the United Kingdom. On 12 January 1975 he was granted Indefinite Leave to Remain.
In December 1972 the applicant married a British citizen. His wife was born in Cyprus in 1952 but she came to the United Kingdom when she was twelve years old, while Cyprus was still under British control. She speaks Turkish.
The applicant and his wife have a daughter, who was born in the United Kingdom on 12 January 1976. She is a British citizen. She married in 2001 and has two children, born on 30 August 2002 and 1 May 2006, who are also British citizens. Her husband's family are Turkish and she travels to Istanbul approximately once a year to visit them.
On 19 September 2001 the applicant was convicted of the importation of controlled drugs. Together with two accomplices, he had imported 7.1 kilograms of pure heroin, worth GBP 426,000. Although it was the applicant's first offence, the sentencing judge noted that he had organised the importation and although he had pleaded guilty, he had only done so at a late stage. He was sentenced to thirteen years' imprisonment but was not recommended for deportation. He did not appeal against sentence or conviction.
On 6 September 2006 the Secretary of State for the Home Department wrote to the applicant, asking him to submit reasons why he should not be deported. The applicant's representations were considered but on 15 March 2007 the Secretary of State advised the applicant that he intended to deport him on the ground that his deportation would be conducive to the public good. On 19 March 2007 the applicant was issued with a Decision to Make a Deportation Order. The applicant appealed to the Asylum and Immigration Tribunal (“AIT”). In a decision dated 15 August 2007, the AIT dismissed the appeal, holding, inter alia, that the applicant's crime was too serious for his deportation to be found to be disproportionate, notwithstanding the interference with his private and family life in the United Kingdom. On 11 September 2007 the AIT decided not to make an order for reconsideration. The applicant considered renewing his application to the High Court, but counsel advised him that it would be virtually impossible to challenge the AIT's decision.
On 5 December 2007 the applicant was served with a deportation order. He was deported to Turkey on 7 January 2008.
Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
A person who has been deported may apply to have the deportation order revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provide that:
“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion
(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or
(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees.
will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”


ITEMID: 001-99871
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SIKIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Dispute;Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Dispute;Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1965 and lives in Vinkovci.
5. On 13 November 2001 the Vukovar State Attorney's Office (Općinsko državno odvjetništvo u Vukovaru) indicted the applicant in the Vukovar Municipal Court (Općinski sud u Vukovaru) of the criminal offence of abuse of position and authority (zlouporaba položaja i ovlasti). On 11 December 2001 a representative of the State Attorney's Office withdrew the charges against the applicant, stating that the facts of the case did not show that the applicant had committed any criminal offence liable to public prosecution. Hence, the Municipal Court dismissed the charges against him on 11 December 2001. The relevant part of this judgment reads as follows:
“In respect of the defendant Hrvoje Šikić ...
Pursuant to Article 353(3) of the Code of Criminal Procedure,
the indictment is dismissed
that he:
on the night of 10 to 11 December 1999, in Vukovar, in his capacity as vice-chief of traffic crime-scene investigation and as chief constable of the Vukovar Police Station, after [having received] a report of a road accident caused by police officer M.V. while driving a police car ...[and] with the intention of helping M.V. avoid responsibility [for the accident] and to conceal the whole incident, did not allow the obligatory on-site inspection to be carried out although he had personally visited the site of the accident and ordered the officers in charge, S.M. and R.M., not to register the said accident in the events register. He certified the register with his signature, thus confirming that during the shift there had been no incidents to be registered, although he knew that it was not true
...
Reasoning
...
At a hearing held on 11 December 2001 the Deputy Vukovar Municipality State Attorney, G.D., withdrew the charges against the defendant ... on grounds that he had not committed the said criminal offence, or any other criminal offence liable to public prosecution.
...”
6. On 29 October 2001 a criminalist of the Vukovar Police Station (Policijska postaja Vukovar) drew up a report on the events of the night of 10 to 11 December 1999. On 30 October 2001 the applicant was removed from his post. On the same day the Vukovar-Srijemska Police Department lodged a request with the Vukovar Police Station that disciplinary proceedings against the applicant be instituted. On 11 December 2001 the applicant made his statement to an officer of the Vukovar-Srijemska Police Department (Policijska uprava vukovarko srijemska), in the presence of his counsel. However, subsequently no disciplinary proceedings were instituted against the applicant. Instead, in a decision of 7 January 2002 the Minister of the Interior (Ministar unutarnjih poslova Republike Hrvatske), on the basis of the police reports and the written record of the applicant's statement given on 11 December 2001, dismissed the applicant with effect from 31 January 2002 on the ground that in respect of the road accident which had occurred on the night of 10 to 11 December 1999 he had acted contrary to his duties as a policeman. The applicant lodged an appeal on 18 February 2002 and the impugned decision was quashed by the Administrative Court (Upravni sud Republike Hrvatske) on 12 September 2002.
7. In a fresh decision of the Minister of the Interior on 8 January 2003 the applicant was again dismissed with effect from 31 January 2002. It was found that on the night of 10 to 11 December 1999, in his capacity as vice-chief for traffic crime-scene investigation and as chief constable of the Vukovar Police Station, he had disregarded his duties in relation to a road accident caused by a police car. After arriving at the scene, the applicant had let those implicated leave the scene of the accident without calling the crime-scene team in order to carry out an on-site inspection. He had further failed to institute adequate proceedings against the perpetrator of the road misdemeanour. He had also instructed the police officers involved to make a deal concerning compensation to the injured party. Furthermore, he had signed the events register, in respect of that night, stating that there had been no incidents to report. Afterwards, he had allowed and arranged for the unauthorised repair of the police car.
The relevant part of the decision reads as follows:
“As a police officer the defendant ... was under a duty to control and supervise the legality of the acts of other police officers. However, as to the incident in question he acted entirely contrary to this duty and thus allowed the person who had caused the road accident in question to avoid responsibility for it, which clearly shows a disregard for his duties ...
Furthermore, the defendant violated laws regulating the [police] service in that he acted contrary to section 176 of the Road Safety Act (Zakon o sigurnosti prometa na cestama, Official Gazette no. 59/1996) which requires drivers who have been implicated in a road accident causing lesser material damage to vehicles to immediately remove those vehicles from the road in order to enable the unhindered movement of traffic and to inform the nearest police station of the accident and to wait for the arrival of an official authorised to carry out an on-site inspection.
Section 123 (2) of the Police Act (Zakon o policiji) provides that obstruction of duties under paragraph 1 of that section amounts to a transgression of police authority or disregard for the same when a police officer is, according to that Act, obliged to apply [his authority, the obstruction] of which has then caused damage to natural or legal persons or State bodies.
As to the case in question, it has been clearly established that the defendant, as a police officer, failed to carry out his police duties in the manner prescribed by the Police Act.
It has also been clearly established that [this] caused damage, both non-pecuniary, (to the reputation of the police), and pecuniary, by causing delays in the proceedings, the lack of sanctions against the perpetrator of a traffic misdemeanour as well as damage to the police vehicle which was not repaired in an adequate manner.
The material damage was caused by a transgression and disregard of police duties by Hrvoje Šikić in that he failed to enforce a fine, in accordance with the Road Safety Act, against the driver of the police car, M.V. ...”
8. On 14 February 2003 the applicant appealed against the above decision to the Administrative Court, challenging the decision on his dismissal. He argued that his right to be presumed innocent had been violated because in the criminal proceedings against him the charges against him which concerned the same facts as those that had served as a basis for his dismissal had been withdrawn. He further complained that prior to adopting a decision on his dismissal the Ministry of the Interior had not conducted any proceedings and had not given him an opportunity to be heard in these proceedings, to question witnesses or adduce evidence. He did not ask for an oral hearing before the Administrative Court.
9. On 15 May 2003 the Administrative Court upheld the decision on the applicant's dismissal. In his subsequent constitutional complaint of 18 August 2003 the applicant complained, inter alia, that his right to a fair trial and his right to be presumed innocent had been infringed. On 13 June 2007 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the complaint as being ill-founded. The relevant part of the decision reads:
“Article 28 of the Constitution provides:
Everyone is innocent and no one shall hold him or her guilty of a criminal offence until proved so in a final judgment by a court of law.
The case-file shows that the decision on dismissal and the judgment of the Administrative Court are not based on the applicant's criminal responsibility for a criminal offence, but on the finding that the applicant had transgressed his police authority and disregarded his duty, which resulted in a breach of the regulations on the [police] service and a lack of compliance with the duties within the competence of the Ministry of the Interior.
Relying on the principles established in its decision no. U-III-2220/2002 of 15 September 2004 (Official Gazette nos. 141/04 and 6/05), the Constitutional Court finds that, despite his acquittal in the criminal proceedings against him, the applicant's dismissal on the grounds under section 123 of the Police Act did not violate his constitutional right under Article 28 of the Constitution.”
10. Section 123 of the Police Act (Zakon o policiji, Official Gazette no. 129/2000) reads:
“...
The Minister of the Interior ... adopts a decision on dismissal from service after obtaining the opinion of the [officer's in question] hierarchical superior.
There is no right to an appeal against the decision under paragraph 3. Instead, administrative proceedings may be instituted before the Administrative Court of the Republic of Croatia.”
11. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) regulates the procedure before the Administrative Court. Section 34 provides as follows:
“The court decides administrative disputes in a non-public session.
The court may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue.
For the same reasons a party may ask that an oral hearing be held.”
12. The Constitutional Court's decision no. U-III-2220/2002 of 15 September 2004 (Official Gazette nos. 141/04 and 6/05), in so far as relevant, reads:
“The case-file shows that the judgments of the disciplinary courts and the Administrative Court did not rely on the applicant's criminal responsibility for a criminal offence, but found the applicant's conduct while not on duty, by which he had violated the rules of service and committed a grave breach of work discipline, improper.
...
The responsibility for grave breaches of work discipline in disciplinary proceedings may be established without a decision of a criminal court, irrespective of the possibility that a breach of work discipline may at the same time amount to a criminal offence. In disciplinary proceedings the features of a breach of work discipline are established and do not require that at the same time the requirements of a criminal offence are met. In that respect disciplinary responsibility is broader than criminal responsibility.
Therefore, despite his acquittal in the criminal proceedings against him, finding the applicant guilty of committing a grave breach of work discipline did not violate his constitutional right under Article 28 of the Constitution.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-61716
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF AMIHALACHIOAIE v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
JUDGES: Jean-Paul Costa
TEXT: 8. The applicant is a Moldovan national who was born in 1949 and lives in Chişinău (Moldova). He is a lawyer and Chairman of the Moldovan Bar Council.
9. In 2000 a group composed of members of parliament and the Moldovan Ombudsman sought a ruling from the Constitutional Court that the Lawyers (Organisation of the Profession) Act (Law no. 395-XIV) was unconstitutional. The Act laid down, inter alia, that all lawyers practising in Moldova should be members of the Bar Council, a national association of all lawyers from the local Bars. They argued that compulsory membership of the Bar Council was contrary to the right of freedom of association guaranteed by the Moldovan Constitution.
10. After consulting, inter alia, the Bar Council, which expressed the view that the Act was consistent with the Constitution, the Constitutional Court held in a decision of 15 February 2000 that the provisions making membership of the Moldovan Bar Council compulsory were unconstitutional.
11. The applicant criticised the Constitutional Court’s decision in a telephone interview he gave to A.M., a journalist on the Economiceskoe Obozrenie (“Economic Analysis”) newspaper.
12. In the February 2000 edition of the newspaper, A.M. published an article on the debate which the Constitutional Court’s decision of 15 February 2000 had sparked off among lawyers. He gave the following account of his telephone interview with the applicant:
“... After the Constitutional Court’s decision was made public, Economiceskoe Obozrenie put a series of questions to the Chairman of the Bar Council, Mr Gheorghe Amihalachioaie. His comments are tinged with emotion, no doubt because they were made in the heat of the moment:
‘The Constitutional Court’s decision will produce total anarchy in the legal profession’, said Mr Amihalachioaie. ‘You will see what will happen over the course of the next year. From now on, we no longer have a single system for organising the profession or a unitarian State. We have become accustomed to this – it is easier to live and work in chaos. Taxes are not paid, there is no supervision and, consequently, no ethics, no discipline and no responsibility.
In view of this, the question is whether the Constitutional Court is constitutional. In 1990 the United Nations adopted its Basic Principles on the Role of the Bar, which are fully guaranteed by our law. The legal profession is independent the world over. In Moldova it is subordinate to the executive, that is to say the Ministry of Justice. This is a serious breach of fundamental democratic principles.
The Constitutional Court did not take into account the judgments of the Strasbourg Court referred to by the Bar Council in its observations. The judges of the Constitutional Court probably do not regard the European Court of Human Rights as an authority. Am I to assume that they have acquired more experience in five years than the Strasbourg judges in fifty? We shall certainly be informing the Council of Europe that Moldova does not comply with the case-law or requirements of the European Court of Human Rights.’
According to Mr Amihalachioaie, lawyers have always been regarded as being at the forefront of the legal profession: ‘Despite everything, even after the Constitutional Court’s decision, the body of lawyers remains a force.’ ...”
13. In a letter of 18 February 2000, the President of the Constitutional Court informed the applicant that his remarks as reported in the Economiceskoe Obozrenie newspaper could constitute a lack of regard for the court within the meaning of Article 82 § 1 (e) of the Code of Constitutional Procedure and invited him to submit written observations on this point within ten days.
14. On 28 February 2000 the applicant submitted the requested observations. He said that he had only learned of the publication of his remarks from the letter of 18 February 2000 and confirmed having had a long telephone conversation with the journalist A.M. about the decision of 15 February 2000. He stressed, however, that his remarks had been misquoted and largely taken out of context. He added that, had A.M. submitted the article to him prior to publication, he would have checked the presentation of his remarks carefully and, accordingly, assumed full responsibility for them.
15. On 6 March 2000 the Constitutional Court issued a final decision pursuant to Articles 81 and 82 of the Code of Constitutional Procedure in which it imposed an administrative fine on the applicant in the sum of 360 Moldovan lei (equivalent to 36 euros).
It found that the applicant had made the following comments in the aforementioned interview: “The Constitutional Court’s decision will produce total anarchy in the legal profession. ... the question is whether the Constitutional Court is constitutional. ... The judges of the Constitutional Court ... do not regard the European Court of Human Rights as an authority.” It found that these comments showed a lack of respect on the applicant’s part for the Constitutional Court and its decision.
16. As the Constitutional Court’s decision was final, the applicant paid the sum of 360 lei into the Ministry of Finance’s account on 7 July 2000.
17. The relevant provisions of the Code of Constitutional Procedure read as follows:
“In order to protect the dignity of the Constitutional Court judges and the participants in the proceedings, and to secure appropriate conditions for the exercise of constitutional jurisdiction, the Court may take the measures provided for in Article 82.”
“1. In order to ensure the proper administration of constitutional justice, the Court may impose an administrative fine of up to twenty-five times the minimum monthly salary on anyone who:
(a) makes an unconstitutional statement, regardless of the manner of its expression;
(b) interferes with the procedural activity of the Constitutional Court judges, or attempts to influence them by non-procedural methods;
(c) refuses without due cause to comply with the orders of the judges of the Court in the prescribed manner or within the time allowed, or fails to comply with a judgment or advisory opinion of the Court;
(d) violates the judicial oath;
(e) displays a lack of respect for the Constitutional Court by refusing to obey orders of the presiding judge, violating disciplinary rules or committing other acts that show an obvious lack of regard for the Court and its procedure.
...”
18. Section 4 of the Press Act (Law no. 243-XIII of 26 October 1994) provides:
“Publishers of periodicals ... shall have a discretion as to the documents and information they choose to publish, but shall have regard to the fact that, since it carries with it duties and responsibilities, the exercise of these freedoms is subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
VIOLATED_ARTICLES: 10