ITEMID: 001-71740
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NAGY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1957 and lives in Kerecsend, Hungary.
5. On 1 March 2001 criminal investigations were instituted against 30 suspects, including the applicant (a businesswoman) on suspicion of several counts of tax fraud, involving the issue of some 250 fictitious invoices. The applicant’s company was concerned in each count of fraud. The material of the ensuing investigation amounted to 2,180 pages.
6. On 10 April 2001 tax investigators searched the applicant’s house for documents and arrested her. The applicant alleges that the tax investigators’ behaviour was harsh and insensitive in that they hindered her for several minutes from providing her minor son with a spray-inhaler when he suffered an asthma attack during the search. Moreover, she submits that, on her arrest, she was forcibly seated in the authority’s car, in which the tax investigators touched her inappropriately and made abusive remarks.
She was kept in police custody for three days.
7. On 18 July 2001 the applicant lodged a complaint about the tax investigators’ conduct. On 23 August 2001 the Heves County Investigating Office refused to proceed with the complaint, considering that the investigators had carried out the search and the arrest in accordance with the law. The Office noted that the applicant had complained about the incident only after a delay of more than three months. On 12 October and 15 November 2001 and 4 March 2002, respectively, the Eger District and the Heves County Public Prosecutor’s Office and the Attorney General’s Office dismissed the applicant’s further complaints.
8. On 30 May 2002 the police again searched the applicant’s house.
In her submissions to the Court filed on 11 February 2004, the applicant stated that on that occasion she had been ill-treated by the police officers and that the latter had not allowed the emergency medical staff, which had been called to her son on account of another asthma attack, to enter the house.
On 12 March 2003 the Investigating Office discontinued the investigation into the incident. On 18 April 2003 the Eger District Public Prosecutor’s Office finally dismissed the applicant’s complaint.
9. Meanwhile, on 28 April and 18 October 2001, 17 January 2002 and 28 April 2003, the applicant was interrogated by the Heves County Criminal Directorate of the Tax Authority. Moreover, between April 2001 and May 2003 altogether 31 suspects were interrogated on various occasions. More than 40 witnesses were heard and several house searches and confrontations of witnesses took place. Furthermore, 14 opinions were obtained from expert accountants.
10. On 5 May 2003 the proceedings were discontinued against six suspects.
11. On 12 June 2003 a bill of indictment was preferred. The applicant was charged with 30 counts of tax fraud and 12 counts of document forgery.
12. The first hearings were scheduled by the Eger District Court for 28 and 29 October 2004. The proceedings have been pending at first instance ever since.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101062
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BARC COMPANY LIMITED v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Luis López Guerra
TEXT: 1. The applicant company, Barc Company Limited, is a Limited Liability Company registered in Malta. It was represented before the Court by Bindmans LLP, lawyers practising in London.
2.
3. On 22 June 1990 civil proceedings in relation to a block of apartments were instituted by CGB against GA, BA and RA as directors and on behalf of A. Ltd and RA also in his own personal capacity.
4. On 20 January 1998 the Civil Court found in favour of CGB.
5. On appeal, on 24 February 1998 CGB requested the Court of Appeal to join the applicant company to the proceedings in substitution of RA, since it had inherited his rights and liabilities. The applicant company and the other defendants objected on the basis that an extraneous person could not be introduced at that stage of the proceedings.
6. By an interim decision of 8 July 1998 the Court of Appeal ordered the appellants to submit to the registry a copy of the relevant deed of transfer.
7. On 18 January 2000, following the relevant verification, namely that on 12 May 1995 BA, on behalf of the applicant company, had acquired one of the apartments at issue in the proceedings, the Court of Appeal accepted the request for substitution. It noted that the relevant deed of transfer explicitly stated that the vendors (RA and his spouse) were assigning to the purchaser all the litigation rights pertaining to them in the present lawsuit. Consequently, the request was justified.
8. The civil proceedings before the Court of Appeal remained pending throughout the following proceedings.
9. On 7 April 2000 the applicant company instituted constitutional redress proceedings. It complained under Article 6 of the Convention that the Court of Appeal decision of 18 January 2000 had deprived it of a double degree of jurisdiction in the proceedings in question, since it had only become part of the proceedings at the appeal stage. In consequence, it had not been given the opportunity to submit evidence and pleadings or to cross-examine witnesses.
10. On 30 June 2000 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant company's claims. It held that by means of the contract dated 12 May 1995 the applicant company had bought the apartment at issue, together with any litigation rights according to law in the relevant proceedings. By means of this deed the applicant company undertook the duties and rights held by its predecessor RA and therefore it could not be considered a distinct entity. Moreover, this transfer of rights and obligations had taken place when the proceedings were still pending before the first-instance court and, at the time, the applicant company had not made any request for substitution. Thus, the Civil Court found that the claim was manifestly ill-founded, all the more so since Article 6 of the Convention did not guarantee a right of appeal against a decision in civil matters. It only stated that where such a right existed it should be in conformity with the guarantees under Article 6.
11. On 10 July 2000 the applicant company appealed.
12. On 20 June 2005 the Constitutional Court upheld the first-instance judgment. It reiterated that the applicant company had fully taken over the rights and duties of its predecessor according to law and that it was the applicant company's duty to lodge a request to be substituted in the acts of the proceedings. However, as acknowledged by the applicant company, it had chosen not to intervene at that stage as it was not in its interests. It was paradoxical that at that stage the applicant company had chosen not to intervene to protect its interest and that now it was claiming that its right had been breached because it had not been a party to the first-instance proceedings. The Constitutional Court considered that since the applicant company had been at fault in failing to safeguard its interests at the time, it could not claim a breach of the Convention at this stage. Moreover, in this light, it was evident that the applicant company had been acting in bad faith.
13. On 17 October 2005 the applicant company made a request for a retrial.
14. On 13 February 2006 this request was rejected as null and void, it having been introduced after the three-month time-limit set by law.
15. On 18 October 2005 the applicant company instituted a new set of constitutional redress proceedings. It complained that the procedure adopted by the Court of Appeal resulting from its interim decisions of 8 July 1998 and 18 January 2000 was not provided for in the Code of Organisation and Civil Proceedure and was therefore “extra legem” (not covered by law). In consequence it had breached the applicant company's right to a fair trial under Article 6 of the Convention.
16. On 18 May 2006 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant company's claims. It expressed doubt as to whether the applicant company could institute these proceedings, since the matters at issue had been or could have been invoked in previous proceedings. However, even on the merits the complaint was manifestly ill-founded. It considered, as had the previous constitutional jurisdictions, that it was for the applicant company to request to be substituted into the proceedings in order to safeguard its interests. Moreover, the procedure adopted by the Court of Appeal was not new. The transfer of litigation rights as a concept and its application was clearly enshrined in the Maltese Civil Code. The applicant company knew exactly what rights and duties it was purchasing on signing the deed of 12 May 1995 and was aware of the pending proceedings. In consequence, it could have opted not to purchase the said property if the conditions were not to its liking. Indeed, in the proceedings in question the applicant company could not be considered distinct to its predecessor RA. Upon the assignment of interests RA was divested of his litigation rights and no longer had any interest in the case, this juridical interest being now vested in the applicant company as owner of the apartment and the litigation rights pertaining to it. Ultimately, the court considered that the application was an abuse of process both because the impugned legal issues were clearly established in domestic procedure and because the applicant company should have made its complaint in its first set of proceedings and not in a new set of proceedings with the aim of stalling the judicial process. In consequence, finding the application to be frivolous and vexatious, the court ordered the applicant company to pay additional costs.
17. On 25 May 2006 the applicant appealed.
18. By a judgment of 6 June 2006, the Constitutional Court dismissed the appeal as null and void, since no appeal lay against judgments declaring applications frivolous and vexatious. Moreover, it was clear that the same appeal was yet another attempt to further stall the proceedings and was a clear abuse of process. The applicant company''s actions were undoubtedly and outrightly an abuse of process and the first-instance court had been perfectly justified in declaring the application frivolous and vexatious. It ordered the applicant to pay double the costs due.
19. Article 1469 of the Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows:
“The assignment or sale of a debt, or of a right or of a cause of action is complete, and the ownership is ipso jure acquired by the assignee as soon as the debt, the right or the cause of action, and the price have been agreed upon, and, except in the case of a right transferable by the delivery of the respective document of title, the deed of assignment is made.”


ITEMID: 001-88365
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: RENNISON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Michael Rennison, is a British national who was born in 1950 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 1 February 2000. His claim for widows’ benefits was made on 21 October 2000 and was rejected on 16 November 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-58587
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF NEWS VERLAGS GmbH & Co. KG v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 12. The applicant, a limited liability company with its seat in Tulln, is the owner and publisher of the magazine News.
13. In December 1993 a series of letter bombs was sent to politicians and other persons in the public eye in Austria. Some of the addressees were severely injured.
14. On 10 December 1993 B., a right-wing extremist, was arrested on suspicion of having been involved in the so-called letter-bomb campaign. He was taken into detention on remand. Preliminary investigations were instituted against him on suspicion of attempted murder and of having committed offences under the National Socialism Prohibition Act (Verbotsgesetz – “the Prohibition Act”). He was later charged with offences under the Prohibition Act and with having aided and abetted assault.
15. In December 1993 the applicant company published a special issue and later an article in one of the regular issues of its magazine News, dealing with the letter-bomb campaign, the activities of the extreme right and, in particular, the suspect B. The respective reports were illustrated with several pictures of B. The cover page of the special issue for instance showed a small picture of B., subtitled in big letters “The Mad World of Perpetrators”. Under the headline “Terror for the Führer” a full-page picture showed B. together with two other persons. According to the comments, this picture was taken in a courtroom, where B. stood up in protest when the verdict was pronounced against his “Führer”, the neo-Nazi leader G.K. Furthermore, it was stated that, when G.K. was sentenced to ten years' imprisonment, his companions, including B., swore vengeance. According to another comment on the same page, these companions who had been supposed to be harmless lunatics were now arrested as bomb terrorists. The cover page of the second issue carried the headline “Victims and Nazis” and showed a large picture of one of the victims and a smaller picture of B. and two others. The victim was quoted as saying: “I want to meet the perpetrators.” At the bottom of the page the words “Nazi scene uncovered” appeared. In the article, a further picture of B. and another suspect, R., was shown. According to the comment, it had been taken on the occasion of the trial of the neo-Nazi leader G.K. The comment went on to state that R. and B., who had both wished to succeed G.K., were now suspected of having dispatched the bombs. Moreover, a wedding picture of B. was published. The comment accompanying it stated that, according to the investigations of the police, B. and R. had probably collaborated in order to organise the letter-bomb campaign. In the article itself, B. was described as pathologically ambitious, one of the most brutal members of the neo-Nazi scene and the possible successor to the neo-Nazi leader G.K.
16. On 21 January 1994 B. brought proceedings under section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company, requesting that the latter be prohibited from publishing his picture in connection with reports on any criminal proceedings against him. He also requested a preliminary injunction (einstweilige Verfügung) to that effect.
17. On 9 March 1994 the Vienna Commercial Court (Handelsgericht) dismissed B.'s application for a preliminary injunction.
18. The court observed that section 78 of the Copyright Act prohibited publishing a person's picture if the publication violated that person's legitimate interests. However, where criminal proceedings were conducted against the person concerned, that interest had to be weighed against the public interest in receiving information. As the present case related to very serious offences based on anti-democratic, subversive ideology, the publication of a suspect's picture was justified in principle. Further, the court found that it did not have to examine whether the accompanying comment violated B.'s right to respect for his private life as he had failed to indicate which passages of the articles at issue might go beyond the limits of acceptable reporting.
19. On 22 September 1994 the Vienna Court of Appeal (Oberlandesgericht), upon B.'s appeal, issued a preliminary injunction prohibiting the applicant company from publishing B.'s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault through letter-bomb attacks.
20. The Court of Appeal pointed out that section 78 of the Copyright Act was directed against the abuse of pictures in public. Section 78 sought above all to prevent a person from being disparaged by the publication of a picture, or his private life being made public or his picture being used in a way giving rise to misinterpretation, or in a disparaging and degrading manner. Further, the court observed that section 78 of the said Act did not define the term “legitimate interests”, thus conferring discretion on the courts in order to enable them to take the particular circumstances of each case into account. It also required the courts to weigh the interest of the person concerned in the protection of his or her picture against the publisher's interest in conveying information.
21. The Court of Appeal went on to say that, in assessing whether a person's legitimate interests within the meaning of section 78 of the Copyright Act had been violated, not only the picture itself, but also the accompanying text had to be taken into account. Also, a person suspected of having committed an offence had a legitimate interest in not being denounced in public by the publication of a picture in connection with a disparaging text. In the present case, the contested publication constituted not only a gross insult, but also a serious violation of the presumption of innocence. Quoting some headlines and comments from the articles at issue, the Court of Appeal noted that the applicant company had called B. a “perpetrator” of the letter-bomb attacks, a “Nazi”, a “terrorist for the 'Führer'” and a companion of the neo-Nazi G.K. who had been sentenced to ten years' imprisonment. These gross violations of B.'s legitimate interests justified a prohibition on the publication of his picture in the context of the criminal proceedings which were at the time conducted against him.
22. Despite this line of reasoning, the judgment had the effect of prohibiting the publication of B.'s picture not only in connection with a text that was prejudicial but – even more restrictively – in connection with reports on the criminal proceedings against him irrespective of the accompanying text.
23. On 22 November 1994 the Supreme Court (Oberster Gerichtshof) rejected both parties' extraordinary appeals on points of law (außerordentlicher Revisionsrekurs), finding that they did not raise any important legal issues. As to the applicant company's appeal, it found that section 7a of the Media Act (Mediengesetz), to which the applicant company had referred in its submissions, did not lead to the result that a suspect's legitimate interests could not be violated by the publication of his picture. There was thus no contradiction with section 78 of the Copyright Act. Further, there were no clear indications in the present case that the public interest justified the publishing of B.'s picture. Thus, the appellate court's decision was not based on a gross misinterpretation of the law.
24. Supplementing his application of 21 January 1994, B. had in the meantime filed an alternative claim (Eventualbegehren), requesting that the applicant company be ordered to refrain from publishing his picture in connection with such statements as had been made in the articles at issue and which he listed in detail.
25. On 19 April 1995 the Vienna Commercial Court, in the main proceedings, granted B.'s alternative claim, ordering the applicant company to refrain from publishing B.'s picture where the publication was likely to violate B.'s legitimate interests, namely in connection with statements in which B. was referred to as the perpetrator of the letter-bomb attacks or as being involved in terror or letter-bomb attacks, or in connection with such statements – listed in detail – as had been made in the articles at issue.
26. The court found that the publication of B.'s picture together with the accompanying text constituted not only a gross insult, but also a serious violation of the presumption of innocence. These gross violations of B.'s legitimate interests justified a prohibition on publishing his picture in the context of the criminal proceedings against him, but only if he was referred to as the perpetrator of the offences or if otherwise the rules of objective reporting were violated. Having regard to the seriousness of the charges brought against B. and the notoriety of the victims, the public interest in B.'s appearance outweighed his interest in not having his picture published as long as such reports did not overstep the boundaries of objective journalism. Further, the court emphasised that it did not intend to sanction reporting (Wortberichterstattung) as such. It repeated that, when assessing a person's claim under section 78 of the Copyright Act, the text accompanying the pictures was of importance. It made a difference whether a person, along with the publication of his picture, was stigmatised as the perpetrator of a crime or whether an objective report on the criminal proceedings against him was given.
27. On 30 August 1995 the Vienna Court of Appeal dismissed the applicant company's appeal but granted B.'s appeal. It ordered the applicant company to refrain from publishing B.'s picture in connection with reports on the criminal proceedings against him on suspicion of having committed offences under the Prohibition Act and of having aided and abetted assault through letter-bomb attacks.
28. The court recalled the reasons given in its decision of 22 September 1994 (see paragraphs 20-21 above) concluding once again that the publication of B.'s picture in the context of the accompanying comments had constituted a gross violation of his legitimate interests, which justified a prohibition on publishing his picture in the context of the criminal proceedings against him. It added that the onus was not upon B. to specify the statements which the applicant company had to refrain from publishing in connection with the pictures since, in general, new accusations were published in the course of the proceedings, and there was no interest in repeating the previous ones. Thus, the Commercial Court's judgment was worded too narrowly.
29. On 24 October 1995 the Supreme Court rejected the applicant company's extraordinary appeal on points of law. It found that the applicant company undoubtedly had a right to impart information about the proceedings conducted against B. However, the right to impart information had to be distinguished from the right to publish pictures of B., which had to be balanced against B.'s interest in the protection of his picture. Even the publication of a picture accompanied by a correct statement of facts, which violated neither section 7a nor section 7b of the Media Act, could infringe the legitimate interests of the person concerned. Finally, the Supreme Court, referring to Article 10 of the Convention, found that the applicant company's right to freedom of expression had not been violated, since it had not been prohibited from reporting on the proceedings, but only from publishing B.'s picture in that context.
30. In December 1995 a first-instance court acquitted B. of the charges of assault but convicted him of offences under the Prohibition Act. The criminal proceedings against B. received extensive news coverage. Contrary to the applicant company, other newspapers remained free to publish B.'s picture.
31. On 18 December 1995 the Vienna Court of Appeal, in proceedings brought by B. under section 7b of the Media Act, found that the applicant company had violated the presumption of innocence and ordered it to pay 50,000 Austrian schillings by way of compensation to B. The court found that in its articles of December 1993 the applicant company had referred to B. as the perpetrator of the “letter-bomb terror”.
32. The relevant provision of the Copyright Act reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured.
...”
This provision has been interpreted in the Supreme Court's case-law. In particular the Supreme Court found that in determining whether the publication of a person's picture violated his or her “legitimate interests” regard was to be had to the accompanying text. Where the publisher of the picture claimed that there was a public interest in its publication, the courts had to carry out a weighing of the respective interests involved. As regards reporting on criminal cases, the Supreme Court constantly held that there was no predominating public interest in the publication of the suspect's picture if it had no additional independent information value. The only effect was that the intensity of such reporting was increased by joining the suspect's picture and, thus, made his or her appearance known to the public at large (see for instance, MuR 1990, p. 224; SZ 63/75, p. 373; MuR 1995, p. 64; MuR 1996, p. 33).
33. The relevant provisions of the Media Act read as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 200,000 schillings; additionally, section 6(1), second sentence, shall apply.
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1)1 is such as to give rise to an interference with the victim's strictly private life or to his or her exposure,
2. in the case of subsection (1)2 relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim's advancement.
...”
“(1) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty, or as the offender and not merely a suspect, the victim shall have a claim in damages against the owner of the medium (publisher) for the injury suffered. The award of damages shall not exceed 200,000 schillings; additionally, section 6(1), second sentence, shall apply.
...”
VIOLATED_ARTICLES: 10


ITEMID: 001-4987
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LIE AND BERNTSEN v. NORWAY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The first applicant, Mr Randolf Lie is a Norwegian citizen, born in 1936, and lives at Sandsli, Norway. The second applicant, Mr Tomm Berntsen, also a Norwegian citizen, was born in 1954 and lives in Alicante, Spain. The first applicant is represented by Mr Ole Reinert Berg-Olsen, a lawyer practising in Bergen, Norway. The second applicant is represented by Mr Birger Nilsen, a lawyer practising in Oslo, and by Mr Tyge Trier, a lawyer practising in Copenhagen, Denmark.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
In 1981 the applicants, together with two other persons, founded a limited liability company, Videoproduksjon A/S, which in 1983 was renamed VIP Scandinavia A/S (hereinafter referred to as VIP). The first applicant was Chairman of the company board during most of the period between the summer of 1983 and July 1987; between June and December 1986 he was a board member and the managing director. The second applicant was the managing director and a board member during a large part of the period between the autumn of 1983 and March 1987. In addition, the applicants were major shareholders in VIP.
The company's trade consisted of acquiring media rights within television and home video industry. It developed into becoming a large-scale holder of film rights for television, cinemas and hotels in various countries. Until the end of 1984, its business was largely concentrated on this kind of activities. While the company experienced a considerable expansion in its trade, its share capital increased from NOK 50,000 in 1981 to NOK 70 million in 1987. To a large extent, new emissions of shares were used as a means to acquire capital for the purchase of other firms and to cover the running of the company and its financial costs. Approximately 30 emissions of shares took place from 1981 to 1987.
In January 1986, VIP merged with the company Media Vision A/S, increasing the number of employees from 50 to 1,500. From being a relatively small company VIP became a mother company of a large diversified corporation with more than 100 subsidiary companies involved in a number of different types of activities.
In March 1987, VIP failed to present within the prescribed time-limit the accounts for 1986. Following the discovery of a large unexpected deficit, debt settlement proceedings were opened in July 1987.
2. Criminal Investigation
On 20 October 1987 the State Prosecutor for Hordaland ordered the Bergen police to open an investigation into alleged criminal activity within VIP and certain other companies involved. On 10 November 1987, the police interrogated the applicants for the first time. The investigations, which lasted three and a half years, concerned suspicion that the applicants were guilty of serious fraud (Articles 270 and 271 of the Penal Code) and of serious breach of trust (Articles 275 and 276) inter alia in relation to the issuing and sales on the stock market of 76,200 invalid VIP shares in order to meet the company's financial needs; the issuing of 120,000 invalid VIP shares and their transfer to a bank, subsequently replaced as security by 120,000 equally invalid shares; partial implementation of an agreement to the effect that 170,000 of the applicants' own VIP shares were sold to Media Vision A/S illegally at a fixed and too high a price. Furthermore, they were suspected of serious embezzlement (Article 255 and 256) in relation to NOK 1.5 million profits derived from an agreement concluded by the applicants without the board's knowledge giving them a right to repurchase VIP shares at a fixed price. The applicants were moreover suspected of a number of other offences, including various violations of the accounting legislation, insider trading (second applicant only) and tax evasion,
The Public Prosecutor of Hordaland began to acquaint himself with the case as soon as he received the first recommendation from the police in September 1990. Only when he received the last such recommendation in May 1991 could he gain a complete picture of the case. He then decided that it was too complex to be dealt with by his office and in July 1991 transferred the case to Økokrim (the National Authority for Investigation and Prosecution of Economic and Environmental Crime in Norway). This is a separate central police and prosecuting authority, set up in 1989 - in order to bring together a broad range of expertise for the investigation of complex cases of economic crime - and fully operative since 1991.
In the course of the investigations, the police heard 81 witnesses and collected some 30-shelf metres of documents, in part by seizure, in part by voluntary means. The official case documents extended to some 5-shelf metres. Altogether 11 persons were charged; of whom 3 were finally indicted. At the time, the VIP case was the most extensive case of economic crime ever investigated by the Norwegian police.
3. Criminal Proceedings
On 16 December 1992 an indictment was served on the applicants. In January 1993 the charges concerning insider trading were dropped. A second indictment was served on 8 November 1993. In January 1994 it was decided not to pursue charges relating to tax evasion and violation of accounting legislation. Those concerning serious embezzlement were also dropped. According to the Government, in some instances this was motivated by the state of the evidence, but in most instances it was done in order to simplify and expedite the proceedings. The indictments were replaced by other indictments on 27 January 1994 by which the applicants were charged inter alia with fraud contrary to Articles 275 and 276 of the Penal Code.
On 13 April 1994 the Bergen City Court (Bergen Byrett) scheduled the case to be examined as from 15 August 1995. The main hearing opened on 21 August 1995 and involved a total of thirty-six court days. The applicants were heard as well as twenty-seven witnesses.
In decisions of various dates between 20 October 1993 and 26 January 1994 Økokrim, the Ministry of Justice and the City Court refused the second applicant's requests for reimbursement of his travel and subsistence expenses - amounting to NOK 973,664 in connection with travelling from Spain to Norway. Moreover, Økokrim refused his requests for photocopies of the case documents being sent to his address in Spain.
By judgment of 28 November 1995 the City Court acquitted the applicants with respect to some of the charges against them but convicted them of violations of Articles 270 and 271 of the Penal Code and of various provisions of the Limited Liability Companies Act 1976 (Aksjeloven - Law of 4 June 1976 no. 59) on account of the issuing and sales of shares without the required authority from the company's governing board. Pursuant to Article 52 (1) of the Penal Code it deferred the issue of sentencing pending a probationary period of two years. The latter conclusion, which meant that no sentence would be imposed provided that the applicants did not re-offend within the prescribed period, was based on the City Court's finding of violation of Article 6 § 1 of the Convention. It observed that, since the entire case had lasted from 20 October 1987 until 28 November 1995, approximately a period of eight years, the requirement in Article 6 that proceedings be concluded within a "reasonable time" had been violated. The applicants were not ordered to pay any costs.
The Prosecution appealed against the City Court's judgment, contesting principally its findings as to sentencing and, in the alternative, the applicants’ acquittals on certain charges. In their cross-appeal the applicants challenged their convictions by the City Court.
By judgment of 14 March 1997, Gulating High Court (lagmannsrett), sitting with Mr Justice Pedersen, Mr Justice Lunde and Ms Justice Midtgaard, together with 4 lay judges, acquitted the applicants of the charges of serious breach of confidence under Article 276, cf. 275, of the Penal Code but convicted them of various charges under Articles 270 and 271 and a number of provisions of the Limited Liability Companies Act. It sentenced them to three and a half years’ imprisonment of which three years were suspended with a probationary period of three years. They were not ordered to pay costs.
As regards sentencing, the High Court's judgment included the following reasons:
“The High Court has concluded that the time elapsed - approximately 10 years before a final judgment can be expected - is too long, and that the time spent prior to the date in the summer of 1993 when the summary of evidence was made available and the final indictment of 27 January 1994 must essentially be attributed to the prosecution. In view of the complexity of the case, - owing, inter alia, to the extensive documentation resulting from investigations of a large number of companies - it must be accepted that the police investigations were planned from the outset to have considerable scope. The amount of time spent at this stage must therefore be viewed against the background of the whole complex of cases. The High Court has therefore no particular comment to make on the time spent up to September 1990, when the charge was transmitted to the Public Prosecutor. However, in the High Court's view, the prosecuting authority has not been able to establish the existence of special circumstances that could justify the excessive lapse of time until the summary of evidence and the final indictment were made available. Had the case been processed with reasonable expediency, it should have been possible to set the case down for trial by the end of 1991, at the latest.
The final indictment and the summary of evidence were not available until January 1994. In the view of the High Court it seems reasonably clear that the case should have been tried by the City Court by the end of 1994. A period of six months to one year must be regarded as sufficient for the defence lawyers’ preparation of the case. The City Court has an independent responsibility for ensuring that the case be tried within a reasonable time. The High Court nevertheless places reliance on the fact that the City Court had to give due consideration to the defence lawyers’ requests for time for preparation of the case. All factors taken into consideration, the defence lawyers’ many initiatives in relation to the attempts by the prosecuting authority to set a date for the trial must also be seen as reflecting a wish to delay the trial by making exaggerated demands for preparation time. The additional period of approximately one year that elapsed before the case came before the City Court must therefore be attributed to the indicted persons. For the sake of the record, it should be mentioned in this connection that the Gulating High Court was able to offer an earlier date that was not convenient to the defence lawyers.
Taken as a whole, the High Court finds that 3 of the 9½ years that have now been spent on the case cannot be regarded as part of ‘reasonable time’, and that the indicted persons could not be held directly responsible for this. This fact must have major consequences for the sentence.
...
… Had the case been tried within a reasonable time, a longer custodial sentence would have been appropriate. The High Court finds, with reference to the long time that has elapsed, that a considerable part of the sentence must be made conditional, but the High Court will not make the sentence wholly conditional or grant a conditional deferral of sentence, as was done by the City Court. The general deterrent effects are considered to be of major importance in this regard.”
The applicants sought to appeal against the High Court’s judgment to the Supreme Court. They maintained that, in view of the excessive duration of the criminal proceedings against them, the issue of sentencing could be deferred or, at least, they should be given suspended sentences. In any event, they considered that, in view of the nature of the offences, their sentences to 3½ years’ imprisonment were too severe. The prosecution requested the Supreme Court to reject the appeal. The Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) allowed the appeal in as far as it concerned the issue of sentencing.
In its judgment of 19 August 1997, the Supreme Court, by 4 votes to 1, decided to modify the sentence ordered by the High Court to a suspended sentence with a probationary period of two years, in accordance with the Articles 52-54 of the Penal Code.
Mrs Justice Gussgard, with whom the majority agreed, stated:
“I have reached the conclusion that the appeal must be upheld so that the whole prison sentence be suspended.
By way of introduction, I should like to point out that even though the Supreme Court has been vested with full powers to review the evidence concerning the question of guilt, the factual basis for the Supreme Court will in such an extensive case as this one not be as good as that of the High Court. In this connection I mention that the case was heard over 26 days and that 30 witnesses were heard. The state of the evidence warrants giving the assessments made by the High Court considerable weight with respect to the contentious issues of importance to sentencing. In the present case this is of particular importance for the assessment of the questions related to the duration of proceedings.
The case concerns particularly serious matters and very large amounts of money. Even though no economic loss has arisen directly as a result of the offences, there must have been a considerable risk of such loss being incurred by the injured parties and by others. The central provisions in the Limited Liability Company Acts concerning the expansion of capital have been neglected. Had it been known that invalid shares had been issued in a company registered on the Stock Exchange, it could have had important repercussions on confidence in the company, irrespective of whether the formal requirements were subsequently fulfilled and its shares were then considered valid. Both the companies’ shareholders and its creditors could have suffered losses.
...
Even though those convicted were acquitted of the charges of breach of trust, the breach of confidence which they committed vis-à-vis the company by abusing their positions must be taken into account in sentencing.
Those convicted have strongly emphasised that they did not act in order to obtain a personal gain. The High Court has not considered this as an adequate description of the situation, something to which I agree. They had considerable share-holding positions in the company and occupied prominent posts. Were the company to have had a financial crisis this would undoubtedly have strongly affected them financially and would have had a great importance for their reputation.
As regards offences of the kind for which [the applicants] have been found guilty, the starting-point must be that a long and unconditional prison sentence should be imposed. I find no reason for departing from the assessment made by the High Court that they should receive the same sentence and I refer to the High Court’s statements at this point. The length of the prison sentence, on which the High Court unanimously has decided, cannot be seen as disproportionate and should in my view be maintained. On the other hand, as already mentioned, I have reached the conclusion that the sentence as a whole should be suspended.
This is exclusively due to the long period which has elapsed. As regards the relationships between Norwegian criminal law and Articles 6 § 1 and 13 of the Convention, I here refer to the decision in Norsk Retstidende (‘NRt’) 1996, p. 173. As in that case, I find no reason to consider in more detail whether the length of the proceedings must be deemed incompatible with Article 6 § 1.
The parties agree that the late autumn of 1987 is the starting-point for the period to be taken into consideration in the assessment of the length of time. It has taken nearly 10 years to bring the case to the point of a legally enforceable judgment. This in itself is a very long period. In the above-mentioned decision of 1996, it is stated that, in as far as the duration of the proceedings in an extensive case of economic crime is necessary, the length cannot be given particular importance in sentencing. Nevertheless, I suppose that this must be subject to qualification in cases of particularly long periods, save if the length is mainly caused by the convicted person’s own conduct, for instance where s/he has been evasive and where for this reason it has not been possible to hear the case within a reasonable time.
The duration of proceedings in our case is due to several factors. The High Court has made an extensive assessment of this question and has concluded that 3 of the 9½ years which the case at that time had taken, could not be regarded as ‘reasonable time’ and could not be attributed to the conduct of those convicted. But it was also stated that a part of the time used was caused by the defence's own conduct, notably steps which apparently were attempts to delay the decision to set the case down for trial. Approximately a year of the time spent was attributed to the defendants.
One point which was disputed during the proceedings before the Supreme Court was how one should consider the time spent on matters which did not lead to indictment before the Court. When the police, in a case concerning economic crime, have received a report from the trustees in bankruptcy or, as here, from a debt settlement board, pointing to suspicious circumstances in several matters, the police must be given a reasonable time to investigate the case as a whole, without the accused being able to invoke, as a rule, unreasonable length of time solely on the basis that some of the matters of which they were suspected did not lead to formal indictment. In the case before us the investigations were carried out, inter alia, into the companies’ accounting and those investigations were time-consuming. I find it clear that the time spent on such investigations in principle cannot have any impact on sentencing in a situation where the company was insolvent and where there was suspicion relating to several offences. I note that the indictment of 16 December 1992 concerned extensive breaches of Article 286, second sentence, cf. first sentences, cf. Article 288 (1) and other provisions, charges which were later dropped in the interest of economy of the procedure. Even though the assessment obviously cannot be based on the assumption that those convicted were guilty with respect to matters which were not adjudicated, one would have to take into account in the assessment of the duration of the proceedings that it concerned investigations of a large business corporation and that it inevitably took time to identify the criminal offences in question.
It thus clearly appears that an extensive and time-consuming investigation was necessary and that, when this was finalised, there remained a considerable task for the prosecution in connection with the preparation of the indictment and for the defence lawyers. In any event, even the prosecution agrees that the duration of the proceedings has been too long and that this must carry weight in sentencing. The delay, which was caused by the fact that the case was taken over by Økokrim in 1991, must be to the benefit of the accused. Otherwise, I see no reason to deal with the particular matters which have or may have delayed the proceedings.
Those convicted have been found guilty of particularly serious offences, but in my view there are no penal policy considerations which suggest that, 10 years after the investigations started, they should serve a prison sentence.”
In his dissenting opinion Mr Justice Tjomsland stated:
“I share the [above] views as regards the offences committed by those convicted. I further agree that the duration of the proceedings must be given considerable importance in sentencing. The High Court has in my view done so to the extent required when it decided that 3 of the 3½ years of the prison-sentences should be suspended. In my opinion there is moreover reason to consider that the defence must be deemed responsible for a greater share of the unnecessary time consumption than considered by the High Court.”
4. Compensation proceedings
On 7 October 1997 the first applicant submitted a request to Gulating High Court for compensation of pecuniary and non-pecuniary damage under Articles 445 and 446 of the Code of Criminal Procedure. In the first place, he claimed NOK 150,000 in compensation for incurred and future legal costs in connection with his application to the European Commission of Human Rights concerning the length of the criminal proceedings against him. Secondly, he sought NOK 450,000 in compensation for non-pecuniary damage.
In a decision of 20 November 1997, the High Court, sitting with Mr Justice Pedersen, Mr Justice Lunde and Ms Justice Midtgaard, rejected the entirity of the claim.
The first applicant subsequently challenged the High Court’s decision before the Appeals Selection Committee of the Supreme Court. By decision of 26 March 1998, the Committee rejected the appeal.
As regards the claim for compensation of legal costs, the Appeals Selection Committee unanimously agreed with the High Court that the application to Strasbourg was not necessary in order to expedite the national proceedings and that, accordingly, the conditions for compensation under Article 445 of the Code of Criminal Procedure were not fulfilled.
As to the claim for compensation for non-pecuniary damage caused by the length of the criminal proceedings, the Appeals Selection Committee found, by 2 votes to 1, that there were no grounds for upholding this claim. Mr Justice Gjølstad and Mr Justice Tjomsland voted in favour of rejection, while Mr Justice Bugge voted against.
The majority quoted from passages in the Supreme Court's judgment of 19 August 1997 dealing with the reasons why the proceedings had lasted for nearly 10 years. Bearing this in mind, the majority based its assessment of the compensation issue on the Supreme Court’s finding that the criminal proceedings had exceeded by 3 years what could be considered a reasonable time. The majority first considered that the protraction of the proceedings of approximately 3 years must have caused great inconvenience to Mr Lie. In this connection, the majority emphasised the State's responsibility for ensuring that criminal proceedings be concluded within a reasonable time. On the other hand, the majority considered that a significant factor in the case at hand was that the prison sentence, because of the excessive duration of the proceedings, had been suspended. Had the case been investigated and adjudicated within a reasonable time it could be presumed, on the basis of the Supreme Court’s judgment, that they still would have to serve a prison sentence of 3½ years. As a consequence of the fact that the proceedings had lasted 3 years beyond what would have been reasonable, he had been released from a great burden of having to serve a very long prison sentence.
The majority further stated:
“[I]t would not be correct, when making the very broad assessment foreseen by the statutory provisions, to disregard the penal-law consequences of the duration of the proceedings in the determination of a claim for compensation of nonpecuniary damage. Apart from the claim with respect to costs, no claim has been made for compensation of pecuniary damage in relation to the length of the proceedings. Also in previous cases where the Supreme Court has found that the requirement of reasonable length of criminal proceedings has been violated, it has attached significance to whether the length has been taken into account in sentencing in making its assessment of whether non-pecuniary compensation should be award as ‘a remedy’ in accordance with Article 13 of the Convention (see the above-mentioned decision reported in NRt 1996, p. 173).
In the light of this, the majority, like the High Court, finds that given the importance attached to the duration of the proceedings in the sentencing, there were no special circumstances in the present case suggesting that it would be reasonable to make an award for compensation of non-pecuniary damage.”
The minority, Mr Justice Bugge, observed that it was primarily the general interest of penal policy, which justified reducing the sentence on the ground of excessive duration of criminal proceedings. The rules on compensation for non-pecuniary damage in Article 446 of the Code of Criminal Procedure were based on different considerations. It was, as was also stated in the provision, a tool for providing the person, who had suffered a disproportionate damage as a result of prosecution, economic compensation for the injury or other non-pecuniary damage which the person had suffered. The rule was related to other statutory provisions on compensation for non-pecuniary damage, in particular Article 3-5 of the Damage Compensation Act. Under the Code of Criminal Procedure it was nevertheless a condition that such compensation from the State appeared reasonable in the particular circumstances (Article 445) and that there were particular reasons for the State to grant such compensation (Article 446). Mr Justice Bugge noted that the majority was of the view that the special burden, which Mr Lie had suffered, was sufficiently compensated by his being released from his duty to serve the prison sentence. However, in Mr Justice Bugge’s opinion, penal policy considerations and the justifications for compensation for nonpecuniary damage should be kept apart.
5. Revision proceedings
On 17 April 1998 the first applicant requested that his compensation claim, rejected by the Appeals Selection Committee of the Supreme Court on 26 March 1998, be given a fresh examination by the Committee so as to amend the earlier decision. He submitted that Mr Justice Tjomsland, because of his previous participation and views expressed in the appeal on sentencing, should have withdrawn from taking part in the ensuing compensation case. The first applicant invoked Sections 108 and 106, subsection 8, of the Administration of Courts Act and Article 6 § 1 of the Convention. Considering that there was no legal basis for amendment, the Committee proposed to examine the request as one for revision, to which the applicant did not object.
On 14 September 1998, the Committee, sitting in a different composition than in the compensation proceedings, refused to grant revision of the decision of 26 March 1998. It recalled that, as a rule, the same judges who examined the question of guilt should determine compensation claims of the kind in issue. While the preparatory works for Article 447 of the Code of Criminal Procedure did not contain any justifications for this arrangement, the latter could not as such be deemed incompatible with Article 6 § 1 of the Convention. Thus, under the relevant law, a judge's previous participation in the criminal case against a person claiming compensation was not of its own an obstacle to the judge's taking part in the compensation case. Under Section 108 of the Administration of Courts' Act, the purpose of which provision was to secure the confidence of the public in the impartiality of the judiciary, a judge would not be prevented from taking part solely on the ground that he or she had adjudicated a case concerning the same parties (NRt 1997, p. 1141). The same applied where the new case arose from the same factual background (NRt Tjomsland had not been required under Section 108 of the Administration of Courts' Act to withdraw from consideration of the compensation case.
b. Relevant domestic law
Article 270 of the Penal Code provides:
“A person shall be liable for punishment if he by intent seeks to obtain for himself an unjust enrichment
by causing, strengthening or exploiting a delusion, unlawfully delude someone into an action resulting in damage or a risk of damage for him or the one on whose behalf he is acting, or
The penalty for fraud is fines or imprisonment of up to 3 years. The same applies to aiding and abetting such conduct.”
Under Article 271, a person who is found guilty of serious fraud shall be punished by up to 6 years’ imprisonment and may also be liable to pay fines. The same applies to the aiding and abetting of such an offence.
Article 445 of the Code of Criminal Procedure reads:
“Even though the conditions in Article 444 are not fulfilled, the court may award the accused compensation for particular or disproportionate damage occasioned by the criminal proceedings if this would be reasonable in the circumstances.”
Article 446 states:
“If the conditions for compensation under Article 444 or Article 445 are fulfilled, the court may, if it is warranted by particular reasons, award the accused a suitable sum in compensation for the infringement or other damage of non-pecuniary character which he has sustained in connection with the criminal proceedings.”
Article 447(3), third sentence, provides:
“For the examination of a request for compensation, the court should in as far as possible be constituted with the judges who adjudicated the criminal case.”
The relevant provision of Section 106 of the Administration of Courts Act (domstolloven - Law of 13 August 1915 no. 5) reads:
“No one shall sit as a judge or lay judge
…
8. if he has previously been involved in the case as arbitrator or as a lower-court judge, lay judge or clerk.”
Section 108 provides:
“Nor may a person sit as a judge or a lay judge if there are other particular circumstances which are liable to weaken the confidence in his impartiality. This applies in particular if a party requests that he withdraws on this ground.”


ITEMID: 001-57672
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF VERNILLO v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1
JUDGES: N. Valticos;R. Pekkanen
TEXT: 10. Mr Generoso Vernillo and his wife Maria, née Siciliano, are Italian nationals who live at Pomigliano d’Arco, near Naples.
11. On 10 October 1967 they bought a three-room flat in Nice from Mr Ange Torzuoli and his wife (their aunt) for a down payment of 10,000 French francs (FRF) followed by monthly payments of FRF 100 to the vendors during their lifetimes and to the survivor of the two, without any reduction on the death of the first. The amount of the monthly payments was to be increased if the national family consumer price index rose by 5% or more. If a single instalment was not paid on the due date and a formal notice to pay remained without effect a month later, the contract would automatically be rescinded if those to whom the payments were due so wished.
12. On 18 July 1977 the applicants were served with a formal notice to pay arrears and co-ownership service charges, about FRF 7,000 in all, but they did not act on it.
13. On 12 December 1977 Mr and Mrs Torzuoli summoned Mr and Mrs Vernillo before the Nice tribunal de grande instance. They asked the court to declare that the sale was automatically rescinded through the fault of the defendants. The latter filed pleadings on 5 May 1978 and the plaintiffs - who had been granted three extensions of time by the judge responsible for preparing the case for trial - did so on 20 September 1978.
On 27 March 1979 the applicants filed pleadings in reply. Their lawyer died and they instructed another one.
14. On 20 June 1979 Mr Torzuoli died. On 21 October 1980 his widow asked the court to formally acknowledge her wish to continue with the proceedings. On 14 January 1981 the judge responsible for preparing the case issued an order certifying that it was ready for trial.
15. The public hearing took place on 10 March 1981. In a judgment of 16 June 1981 the court refused to declare that the contract of sale was rescinded.
16. On 31 July 1981 Mrs Torzuoli appealed to the Aix-en-Provence Court of Appeal and the case was entered in the court’s list on 28 September 1981. The respondents filed their pleadings on 11 March 1982 and the appellant filed hers on 13 April and 27 July 1982. The order certifying that the case was ready for trial was made on 18 March 1983, and the hearing took place on 27 April 1983.
17. On 29 June 1983 the Aix-en-Provence Court of Appeal reversed the decision of the court below and granted a declaration that the sale was rescinded through the fault of the applicants.
18. On 6 January 1984, this judgment having been notified to them, Mr and Mrs Vernillo appealed to the Court of Cassation.
On 4 June 1984 they filed their supplementary pleadings, and on 18 June these were served on the respondent, who replied on 2 November 1984. The same month, the case was allocated to the Third Civil Division and the reporting judge appointed. The latter produced his report on 7 December 1984 and the Advocate-General to be responsible for the case was assigned on 29 January 1985.
19. On 5 June 1985 the Court of Cassation dismissed the appeal on the following grounds:
"...
Having found that Mr and Mrs Vernillo had not within one month complied with the formal notice to pay of 18 July 1977, which ontained a reminder of the clause providing for automatic rescission of the contract, and had not within the same period made any genuine, serious offers to pay at least the sums which they acknowledged they owed, the court below, in response to the submissions and except for the misinterpretation of the detailed figures produced by Mr and Mrs Vernillo, legitimately decided that the sale was rescinded.
Moreover, having noted that by the terms of the contract of sale ny instalments due or other sums paid by the date of the formal notice to pay would, in the event of rescission of the sale, remain the property of the beneficiaries by way of compensation, without prejudicing their right to sue for recovery of any amounts due, the court below applied these contractual provisions without misinterpreting them.
For these reasons, the Court of Appeal’s decision was justified in law.
... ."
20. The Government relied on the following three provisions of the New Code of Civil Procedure:
"The proceedings may be voluntarily resumed in the manner prescribed for the submission of the grounds of defence.
If they are not resumed voluntarily, they may be recommenced by way of summons."
"If counsel for one of the parties has not carried out the procedural steps within the time allowed, referral of the case to the court and termination of the preparation of the case for trial may be ordered by the judge [responsible for preparing the case for trial] of his own motion or on an application by another party; in the latter case the judge shall have a discretion to refuse the application in an order setting out his reasons and which shall be final."
"The case shall be prepared for trial under the supervision of a judge of the division of the court to which it has been allocated, as provided in Articles 763-787 and in the following provisions.
(D[ecree] no. 85-1330, 17 Dec. 1985, Art. 12, with effect from 1 January 1986) Where a case appears to be urgent or to be ready for trial within a short time, the presiding judge of the division to which it has been allocated shall fix the date and time at which it will be called; on the appointed day, matters shall proceed as provided in Articles 760-762."
21. By Article L 781-1 of the Code of Judicial Organisation,
"The State shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice.
... ."
This provision can be relied on not only in a non-contentious application (recours gracieux) to the Minister of Justice, but also - subsequently or at the outset - for the purpose of instituting contentious proceedings.
22. According to Ministry of Justice statistics, the Ministry received 267 applications between 1973 and 1987. Ninety-seven of these were successful; 134 were refused; no action was taken on 15 of them; and 21 were still under consideration at 31 December 1987. In 6 applications - of which 5 had failed and 1 was pending - the complaint concerned the length of proceedings.
23. During the same period, likewise according to the Ministry of Justice, 77 cases came before the courts. The plaintiffs were unsuccessful in 25 cases and successful in 19, the compensation awarded totalling FRF 16,294,573. Two claims had been settled and 31 applications remained to be heard.
In a bankruptcy case which had lasted for about seventeen years (Fuchs c. Agent judiciaire du Trésor public) the Paris Court of Appeal ordered the State to pay FRF 50,000 in damages. Its judgment of 10 May 1983 contained the following reasons:
"The court’s delay in giving judgment and the persistent silence maintained by the bankruptcy judge and the court vis-à-vis the receiver of the Fuchs company amounted to a breach of duty, and the decision subsequently given on 3 June 1975 stemmed from an error in assessing the situation as submitted to the court.
The breach of duty and the error in assessment are particularly serious on account of the factual and procedural circumstances with which the court was fully acquainted and which clearly made it imperative to terminate rapidly a bankruptcy that was no longer justified. These were flagrant breaches amounting to gross negligence in the functioning of the system of justice and they entail the State’s liability;
... ."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87090
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LENKAUSKIENE v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: The applicant, Jūratė Lenkauskienė, is a Lithuanian national, who was born in 1957 and lives in Kaunas. She ran a business supplying brokerage services.
The applicant was represented before the Court by Mr G. Zavtrakovas, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms Elvyra Baltutytė.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 December 2000 the Kaunas City District Court convicted the applicant of conspiracy in forging an important official document (Articles 18 § 6 and 207 § 2 of the Criminal Code as then in force). The court found inter alia that the applicant had agreed with SK, a police officer acting under cover pursuant to a “criminal conduct simulation model”, in accordance with the Operational Activities Act 1997, to falsify a number of stamps on SK’s passport for a fee of 1,200 Lithuanian litas (“LTL”; about 350 euros [“EUR”]). The simulation model, authorised by the Deputy Prosecutor General on the basis of information obtained by the police, had mentioned that the applicant was engaged in forging passports and visas and organising travel to the United States of America, for specific fees. It therefore authorised SK, over a period of a year, to obtain such forged documents from the applicant and her accomplices.
The District Court held that the applicant had conspired with other people, the co-defendants RB and GD, in this matter. The court examined the simulation model and its application in detail and questioned SK, who had also been questioned by defence counsel. Moreover, the court had taken testimony from the applicant and her co-defendants and admitted the secretly recorded conversations between SK, RB and the applicant, the legality of which had not been challenged by her. The applicant was sentenced to eighteen months’ imprisonment and fines in a total of LTL 2,500 (about EUR 724).
On 3 April 2001 the Kaunas Regional Court rejected the applicant’s appeal, holding inter alia that the lower court had objectively and thoroughly assessed the case, and that there was no proof that she had been incited to commit the offence.
On 8 May 2001 the applicant submitted a cassation appeal, claiming inter alia that she had not committed a crime but had been provoked by SK. She asserted that SK had taken the initiative in telephoning her 15 times over a few weeks in early 1999 and exerting psychological pressure. As a result, the applicant had met him twice, but there was nothing in their conversations (secretly recorded by SK) to prove her criminal involvement. Newspaper articles, however, alleged that she was part of a group of people who forged visas, and had sentenced her before the trial was over.
On 26 June 2001 the Supreme Court declared the cassation appeal by the applicant inadmissible in a decision which included the following passage:
“Only the factual circumstances established by the courts from the evidence are contested in the cassation appeal. It must be noted that the applicant, while alleging that she did not commit the crime she was sentenced for, does not request that the case be discontinued, but that it be returned for examination to the court of first instance, alleging that the pre-trial investigation was not thorough. Her allegation is merely a declaration as the appeal does not elaborate what specific circumstances were not examined by the court. The cassation appeal in essence is repeating the appeal claim, where it was also stated that the conclusions in the judgment did not correspond to the factual circumstances in the case. The submissions presented in this claim were examined in detail by the court of appellate instance and a reasoned decision was adopted.”
On 27 June 2001 the applicant submitted a further cassation appeal on the same grounds. On 16 October 2001 that appeal was again declared inadmissible by the Supreme Court on the same basis as before. In both cassation appeals the Supreme Court had heard the prosecution and defence before reaching its decision.
It appears that at some point the applicant’s prison sentence was amnestied, although she did pay the fines.
The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and criminal conduct simulation models, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37). Of particular note in that judgment is the description of the prosecuting authorities’ power to authorise criminal conduct simulation models, following an application by the police under the Operational Activities Act 1997 (ibid. § 32). The scope of this power has been developed by the case-law of the national courts, especially a Constitutional Court decision of 8 May 2002, in order to prohibit provocation or incitement by the police to commit an offence (ibid § 34).
The relevant provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas) read as follows:
“The judgment or decision in force can be appealed against and examined at the cassation instance, if:
the criminal law has been applied wrongly (Article 386 of the Code);
there has been a substantive breach of procedural law (Article 382 of the Code);
there has been a substantive breach of procedural law in the appellate instance: the appeal was not examined; the instructions given in the decision by the cassation court were not followed, or there have been other breaches of law which the cassation court could recognise materially.”
“The substantive breaches of the criminal procedural law are such violations of the requirements of the Code [of Criminal Procedure] which have impugned or restricted the rights of the parties to the case, or have in any other manner precluded the court from examining the case thoroughly, and have interfered with the adoption of a legitimate and well-founded decision.
The judgment shall be annulled if:
the right of the convicted person to have a lawyer has been violated;
the right to use the language that he understands or the right to have an interpreter has been violated;
the accused person was not informed of the accusation against him;
after the pre-trial investigation had been concluded, the accused has not been acquainted with the case, except if the accused has not been acquainted with all the material of the case due to circumstances foreseen in Articles 226 § 6 and 228 § 3;
the accused has not been handed over to the court;
the case has been examined by a court which has not had the relevant competence;
the case has been examined without the accused being present when [his presence] is mandatory according to the law;
the case has been examined by a court with an unlawful composition;
the parties ... have not been afforded a right to state their case;
the defendant has not been afforded the right to have the last word;
when adopting the judgment, the secrecy of the deliberations has been breached;
there was no protocol of the court hearing.”
“The persons listed in article 425 of this code have a right to be acquainted with the cassation appeal and the other materials in the case before the court.
The court of cassation examines the cases at a public hearing, except the cases foreseen in Article 16 of this Code.
On the appointed date, the President of the Panel opens the court hearing and announces which case, whose cassation appeal and against which court decision or judgment, will be examined. Further, the President verifies who appears at the hearing and if the persons named in Article 425 of this Code were informed about the hearing date. The President then announces the composition of the court and asks the persons present if there are any requests for the removal of any judges. Such requests are determined pursuant to the procedure set out in Articles 29-32 of this Code.
At the start of the hearing in a case, a judge on the Panel can point out that the cassation appeal does not raise any grounds for cassation, as set out in Article 418(1) of this Code, and thus the cassation appeal should be left unexamined. The President of the Panel then asks the opinion of the persons present at the hearing. Thereafter, the court leaves the room to deliberate, whereupon [the court] can decide to adopt the decision to leave the appeal unexamined and to discontinue the judicial process. Such a decision is announced to the persons present at the hearing.
If at the start of the hearing there were no grounds to leave the appeal unexamined, or if during the deliberations [the court] decided to continue with the hearing, the cassation appeal is then examined in essence.
The President of the Panel asks the persons present if there are any requests. The court adopts a decision regarding those requests.
One of the judges announces the essence of the case and the content of the judgment or decision and of the cassation appeal.
After this announcement by a judge, the public prosecutor, counsel and the persons convicted or acquitted, their legal representatives, the victim and his representatives have a right to make oral submissions. First to speak is the appellant. After the explanations of the parties to the case, the court gives the floor to the convicted or acquitted person, their counsel or legal representatives.
Having examined the case, the court leaves the room to deliberate. After adopting its decision, the court returns to the hearing room and the President of the Panel or another judge announces the resolution reached and explains the reasons. The reasoned decision is written up and signed by all members of the Panel not later than 7 days after the adoption of the decision.
If, after the case had been examined by the cassation court, the convicted person has to be released from detention, the decision shall be written and signed on the same day.
The protocol shall be written at the court hearing.”


ITEMID: 001-85557
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VACARENCU v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 4. The applicant, Mr Tudor Vacarencu, is a Moldovan national, who was born in 1945 and lives in the village of Sociteni.
5. In the 1970s the applicant bought from the local authorities a house that had been confiscated by the Soviet authorities from a third person after the Second World War. In 1993 the former owner claimed the house back and in accordance with Law no. 1225-XII, the local council recognised his property right over the house. The applicant was evicted from the house.
6. At the same time, the local council promised the applicant alternative accommodation, a promise which was not kept.
7. In March 2000, the applicant brought civil proceedings against the local council demanding compensation instead of the promised house.
8. On 14 November 2000, the Ialoveni District Court found in favour of the applicant and ordered the local council to pay him 52,797.00 Moldovan Lei (MDL) (approximately 5,000 euros (EUR)).
9. The Local Council appeals were dismissed by a final judgment of the Court of Appeal of 5 June 2001.
10. The applicant obtained an enforcement warrant which the bailiff failed to enforce.
11. In May 2002, the judgment of 5 June 2001 was quashed following revision proceedings and the proceedings reopened. The reopened proceedings ended with a final judgment of 13 July 2004, by which the local council was obliged to provide the applicant with accommodation. That judgment has not been enforced to date.
12. It appears from the documents submitted by the parties that the applicant has alternative accommodation in a neighbouring village, where he lives with his family.
13. The relevant domestic law is set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1