ITEMID: 001-60974
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LESNIK v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1940 and lives in Košice. He is a businessman.
10. On 2 December 1991 the applicant requested the Košice City Prosecutor’s Office to bring criminal proceedings against H., a businessman from the Czech Republic whom he suspected of having committed fraud. The request was examined by various authorities but no criminal proceedings were brought.
11. On 4 December 1992 the applicant complained to the police that two unknown men had left a message at the entrance to his flat saying that they would break his hands if he did not “abstain from writing”. On 13 April 1993 the applicant complained to the police that a shot had been fired through a window in his flat. He claimed that he was being harassed because he had written articles about several former members of the Communist Party. Subsequently the applicant was informed that the police could not identify the perpetrators.
12. On 5 April 1993 the applicant complained to the head of the Košice Telecommunications Authority that, following a change of the central switchboard, telephone conversations at his agency were frequently interrupted. The applicant stated that there was a noise on the telephone prior to the interruption of a call which was similar to that which had formerly occurred when telephone calls were tapped by the communist secret police. He requested that the fault be remedied.
13. On 10 June 1993 a police investigator brought criminal proceedings against the applicant on the ground that he was suspected of having stolen goods from H. The decision was based on a written communication by the district prosecutor in Semily (Czech Republic).
14. On 1 November 1993 the applicant asked the Košice Regional Prosecutor to discontinue the criminal proceedings against him. In his letter the applicant complained, without providing further details, that the police investigator dealing with his case had obtained information on him by unlawfully tapping his telephone. He requested that criminal proceedings be brought against a person or persons unknown for illegal telephone tapping.
15. On 6 December 1993 the applicant addressed a letter to P., the Košice I district prosecutor. The letter contained, inter alia, the following statements:
“Since you have not succeeded, comrade prosecutor, in attaining your aims in one area, you continue energetically, in accordance with the practice of the [former] State Security agents, to fabricate another case [against the applicant] as you have learned to do under the so-called infallible socialist law. On this occasion I can assure you, however, that I have not bowed to the high representatives of the former political system and, in particular, the [former] State Security agents who paid at least as much attention to my person as you do now. I do not intend today to let myself be intimidated, especially not by individuals such as yourself, a person with a dubious past, not to speak of [your] other qualities ...
It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity, professionalism and respect for the law. I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself ... to be an almighty lord of the Tatra [Mountains] and the Váh [River] and, as such, beyond anyone’s reach as you are, for the time being, under the protective hand of comrade [M.]. Abuse of the law may have very unpleasant consequences for you. For the time being, I will only mention some of the abuses which do not call for any comments.”
16. In the letter the applicant further stated that the addressee was responsible for the dismissal of his criminal complaint against H. and the institution of criminal proceedings against him in 1993, and that he had unlawfully ordered the tapping of his telephone.
17. P. submitted the letter to his hierarchical superior, the Košice Regional Prosecutor. In a letter of 17 March 1994 the latter informed the applicant that it had not been established that P. had given an order to tap his telephone or that he had otherwise acted unlawfully.
18. In the meantime, on 7 March 1994, the applicant complained to the General Prosecutor that P. had committed an offence in that he had misused his authority. The letter read, inter alia, as follows:
“[P.] accepted the request of [H.’s lawyer] ... that no criminal proceedings would be brought against [H.] in Slovakia notwithstanding that sufficient evidence existed to do so ... Of course, money paid by [H.] with a view to covering up his fraudulent activity also played a role in the matter. It would therefore be worth examining in this context whether [an offence of bribery was not committed] ...
Following a ... threat ... by ... an investigator from the Košice I Investigation Office in the context of the case of [H.] ... I went to the aforesaid office on 10 June 1993. After I had rejected an ‘agreement’ which was proposed to me, [the investigator], a former State Security agent, accused me of having stolen [goods from H.] in 1991. Thus [P.] has been unwilling to bring proceedings against [H.] since 1991, and has arranged, through a police investigator who can easily be blackmailed, for proceedings to be brought against me in revenge for the justified complaints I had lodged against him. [P.] did so contrary to [the relevant provisions of the Code of Criminal Procedure] because so far ... there is no evidence before [the relevant authorities] from which to conclude with sufficient certainty that I stole anything from [H.] Subsequently I realised that my telephone, which was also used by my detective agency, had been tapped contrary to Article 88 of the Code of Criminal Procedure.”
19. On a petition by P., the General Prosecutor’s Office agreed that criminal proceedings be brought against the applicant for insulting a public prosecutor. The case was transferred to a public prosecutor in Liptovský Mikuláš. On 2 June 1994 the applicant was charged with insulting a public official in his letters of 6 December 1993 and 7 March 1994 mentioned above.
20. In a letter of 5 September 1994 addressed to the Košice Regional Prosecutor’s Office, the applicant expressed the view that the purpose of the harassment to which he was subjected in 1992 and 1993 had been to make him withdraw his criminal complaint against H. He requested that an investigation be opened.
21. In September 1994 the newspaper Necenzurované noviny published an article by a third person describing the applicant’s case in detail. It was entitled “How the Red Plague operates in Eastern Slovakia” and contained quotations from the applicant’s letters. The relevant parts read as follows:
“... It is on this basis that the district prosecutor’s office in Liptovský Mikuláš started a prosecution against [the applicant] on 2 June 1994. In order to give the reader an idea of what is possible in [Slovakia], I will quote the text which, according to public prosecutor [L.], constitutes a criminal offence.
In his message of 7 March 1994 addressed to the General Prosecutor in Bratislava, [the applicant] stated in respect of [public prosecutor P.] that in the criminal case of [H.] he had deliberately acted wrongly so that ‘he could satisfy his friend [M.] from Košice, the former President of the Košice City Court whom the City Committee of the Communist Party of Slovakia had identified as a key official and who is now [H.]’s lawyer, that no criminal proceedings would be brought against [H.] in Slovakia notwithstanding that sufficient evidence existed to do so ... Of course, money paid by [H.] with a view to covering up his fraudulent activity also played a role in the matter. It would therefore be worth examining in this context whether the facts do not fall under Articles 161 and 162 of the Criminal Code [which govern the offence of bribery]’.
In the same document [the applicant] stated: ‘Subsequently I realised that my telephone, which was also used by my detective agency, had been tapped contrary to Article 88 of the Code of Criminal Procedure.’
In a letter dated 6 December 1993 and addressed to public prosecutor [P.], [the applicant] stated among other things: ‘Since you have not succeeded, comrade prosecutor, in attaining your aims in one area, you continue energetically, in accordance with the practice of the [former] State Security agents, to fabricate another case as you have learned to do under the so-called infallible socialist law. On this occasion I can assure you, however, that I have not bowed to the high representatives of the former political system and, in particular, the [former] State Security agents who paid at least as much attention to my person as you do now. I do not intend today to let myself be intimidated, especially not by individuals such as yourself, a person with a dubious past, not to speak of [your] other qualities ...’
In the same letter [the applicant] went on: ‘It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity, professionalism and respect for the law. I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself to be an almighty lord of the Tatra [Mountains] and the Váh [River] and, as such, beyond anyone’s reach since you are, for the time being, under the protective hand of comrade [M.]. Abuse of the law may have very unpleasant consequences for you. For the time being, I will only mention some of the abuses which do not call for any comments.’
Thus, on the basis of these statements, prosecutor [L.], on the instructions of [the General Prosecutor], started a prosecution against [the applicant]. Every decent person must be astonished to learn of such stupid behaviour.”
22. On 7 November 1994 the applicant stated before the prosecutor in Liptovský Mikuláš that he had intended to criticise P. for his wrongful actions but not to insult him. He further informed the public prosecutor dealing with the case that he had not written any newspaper article on the issue, but had merely provided the author with the relevant documents.
23. On 8 November 1994 the Košice Regional Prosecutor submitted a document to the district prosecutor’s office in Liptovský Mikuláš indicating, with reference to the relevant register, that the Košice I district prosecutor had not ordered the tapping of the applicant’s telephone between 1992 and 1994.
24. On 23 November 1994 the Liptovský Mikuláš district prosecutor indicted the applicant before the Liptovský Mikuláš District Court on the charge of insulting a public official. On 25 November 1994 the Liptovský Mikuláš District Court transferred the case to the Košice I District Court for reasons of jurisdiction. As the public prosecutor affected by the applicant’s statements was responsible for the same district, the Košice Regional Court, on 9 March 1995, transferred the case to the Trebišov District Court.
25. On 25 April 1995 the Trebišov District Court issued a penal order in which it convicted the applicant of attacking a public official, on the ground that, in his letters of 6 December 1993 and 7 March 1994, he had insulted a public prosecutor. The court sentenced the applicant to four months’ imprisonment suspended for a probationary period of one year.
26. The applicant appealed against the order. The case was assigned to another judge. On 25 June 1996 the Trebišov District Court convicted the applicant under Article 156 § 3 of the Criminal Code of insulting a public official and sentenced him to four months’ imprisonment suspended for a probationary period of one year. The judgment stated, in particular, that in his letters the applicant had alleged that the public prosecutor had deliberately acted improperly as regards the applicant’s request of 1991 for criminal proceedings to be brought against H.; that the public prosecutor had done so at the request of the lawyer representing H.; and that H. had paid a sum of money for this purpose. The District Court also noted that the applicant had accused P. of having been unwilling to uphold his criminal complaint, of having ordered criminal proceedings to be brought against him and of having his telephone illegally tapped.
27. The judgment further stated that the applicant had not shown that the public prosecutor in question had failed to act in accordance with the law. The court therefore concluded that the applicant’s statements were defamatory and grossly offensive.
28. The District Court did not accept the applicant’s defence that the sole purpose of his letters had been to have his request for criminal proceedings to be brought against H. dealt with appropriately. The court noted that, besides the two letters in question, the applicant had sent a considerable number of other complaints concerning the same issue which, however, had contained no defamatory or offensive remarks. Both the Košice Regional Prosecutor’s Office and the General Prosecutor’s Office had dealt with the applicant’s complaints and had dismissed them as being unsubstantiated.
29. The applicant appealed, both personally and through his lawyer. He alleged that the purpose of his remarks had been to prevent further delays in the proceedings concerning his criminal complaint of 1991, and not to offend P. He further claimed that the statements in question were not offensive and did not constitute an offence.
30. On 24 September 1996 the Košice Regional Court dismissed the appeal after hearing evidence from the applicant and asking him to substantiate his allegations.
31. The Regional Court found that in the statements made in his letters of 6 December 1993 and 7 March 1994 the applicant had grossly insulted a public prosecutor without justification. In particular, it stated that the applicant had failed to substantiate his allegation that H. had paid a sum of money in order to prevent criminal proceedings being brought against him and reiterated that the General Prosecutor’s Office had not established that P. had acted unlawfully in this or any other respect.
32. The Regional Court further considered defamatory and grossly offensive the applicant’s statements that the public prosecutor had acted in accordance with the practice of the former State Security agents, had a dubious past, not to speak of his other qualities, and possibly considered himself to be an almighty lord of the Tatra Mountains and the Váh River who was “beyond anyone’s reach”.
33. In the Regional Court’s view, the applicant had failed to show that he had a justified reason to make such statements. The court did not accept the applicant’s argument that he had doubts about the past and qualities of the public prosecutor because the latter had studied socialist law, had failed to take appropriate action on the applicant’s criminal complaint of 1991, and initiated criminal proceedings against him.
34. In its judgment the Regional Court pointed out that the applicant had not been hindered in seeking redress before the appropriate authorities for the actions of P. which he considered inappropriate or unlawful. It held, however, that by making defamatory and offensive remarks the applicant had committed an attack against a public official within the meaning of Article 156 § 3 of the Criminal Code. The Regional Court upheld the sentence which the District Court had imposed on the applicant.
35. On 28 October 1996 the Košice IV District Office revoked the trading licence under which the applicant had been authorised, inter alia, to run a detective agency, on the ground that he had been convicted of an offence. On 12 December 1996 the Košice Regional Office dismissed the applicant’s appeal against this decision.
36. On 4 June 1997 the Košice Regional Court quashed the administrative decisions concerning the revocation of the applicant’s trading licence and remitted the case to the Košice Regional Office. In its judgment the Regional Court noted that both administrative authorities, deciding at lower instances, had failed to establish any relevant legal grounds for their decisions.
37. On 18 November 1997 the Trebišov District Court issued a decision noting that the applicant had not committed any offence during the probationary period and stating that he was to be considered as not having been convicted.
38. As from 1 January 1998 the relevant law was amended in that persons wishing to run private security agencies were required to obtain the approval of the police headquarters. The applicant did not ask for such approval and returned his trading licence of 7 January 1993, under which he had been allowed to run a detective agency, to the Košice IV District Office on 3 June 1998. In the meantime, on 18 February 1998, he registered with the relevant authorities as running a different business. He attached a certificate indicating that his criminal record was clean and received a new trading licence on 6 April 1998.
39. Article 156 § 3 of the Criminal Code provides that a person who utters grossly offensive or defamatory remarks in respect of a public official relating to that official’s exercise of his or her powers shall be punished by up to one year’s imprisonment or a fine.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-69606
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KRUMPEL AND KRUMPELOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicants are spouses. They were born in 1935 and 1938 respectively and live in Bratislava.
5. In 1990 the applicants concluded a contract with M., the owner of a building company. M. undertook to sell a plot of land to the applicants and to build a family house for them. The applicants paid 600,000 Slovakian korunas (SKK) to M.
6. M. failed to comply with the contract. The applicants therefore revoked it on 28 January 1991.
7. On 5 February 1991 the applicants sued the company of M. before the Považská Bystrica District Court. On 26 April 1991 the court discontinued the proceedings as the applicants had not paid the court fee.
8. In 1991 criminal proceedings were brought against M. as he was suspected of fraud. The applicants declared that they wished to claim damages from M. in the context of the criminal proceedings.
9. On 18 August 1991 the applicants sued M. for damages before the Považská Bystrica District Court. On 16 March 1992 the District Court discontinued the proceedings. The decision stated, with reference to Article 83 of the Code of Civil Procedure, that the applicants had also claimed damages in the context of the criminal proceedings against M. and that those criminal proceedings were pending. On 25 May 1992 an appellate court dismissed the applicants’ appeal.
10. In the meantime, on 23 October 1991, a public prosecutor froze property of M.’s company, the value of which corresponded to SKK 2,185,000, with a view to securing the claims of 21 aggrieved persons.
11. On 28 December 1992 M.’s mother returned SKK 50,000 to the applicants. In a written statement of 10 February 1995 M. admitted his debt in respect of the applicants.
12. In 1996 the charges against M. were enlarged to comprise economic offences which had no bearing on the applicants’ claim and which the accused had allegedly committed in the context of the dissolution of the former Czech and Slovak Federal Republic.
13. Following the enlargement of the charges against M. his bank account was blocked in the context of the criminal proceedings.
The Government submitted that the sum blocked amounted to SKK 8,885,006.
The applicants submitted, with reference to an article published in a weekly, that the Bratislava Regional Prosecutor had given his consent, in 1997, to unblock the account in which approximately SKK 64 millions had been deposited. The article further states that most of the money had subsequently been transferred abroad. In another article published in the same weekly the General Prosecutor confirmed that he had intended to start disciplinary proceedings against the Regional Prosecutor in that regard. However, the prosecutor had resigned from his post.
14. On 11 February 1998 the Bratislava Regional Prosecutor indicted M. before the Bratislava Regional Court. On 21 June 1999 the Regional Court returned the case to the public prosecutor for further investigation.
15. On 14 September 2001, the applicants made a written submission to the Bratislava Regional Court which was dealing with the criminal charges against M. The Regional Court interpreted the submission as a civil claim for damages and transferred it to the Považská Bystrica District Court.
16. A new indictment against M. was filed with the Bratislava Regional Court on 3 December 2001. The indictment concerned numerous offences and, in addition to M., two other persons.
17. On 28 February 2002 the criminal judge decided to deal separately with several aspects of the case, including those which were relevant for the determination of the applicants’ claim.
18. On 13 August 2003 a Považská Bystrica District Court judge informed the applicants, in reaction to their above submission of 14 September 2001, that criminal proceedings against M. were still pending and that Article 83 of the Code of Civil Procedure prevented the court from dealing with a civil action for damages in the same case. The applicants were invited to inform the court whether they maintained their action and were instructed how to rectify formal shortcoming in their submission.
19. In a letter of 5 September 2003 the applicants replied that their above letter of 14 September 2001 had been meant for the judges dealing with the charges against M. and that they were aware that they could not have separate civil proceedings for damages brought against M. as the criminal proceedings against him were still pending.
20. In the meantime, on 14 March 2003, the applicants complained to the Constitutional Court about a violation of their right to a hearing without unjustified delay.
21. On 19 September 2003 the Považská Bystrica District Court judge informed the Constitutional Court about the contents of her above letter to the applicants of 13 August 2003. No reference was made to the applicants’ reply of 5 September 2003.
22. On 25 September 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision states:
“It follows from ... the submission of the District Court that, at present, proceedings are pending before it upon the initiative of the [applicants]... The subject-matter of those proceedings is the claim for damages against [M.] which the applicants have also submitted in the context of the criminal proceedings before the Regional Court. The applicants therefore have, provided that they overcome the obstacle of litis pendens and bring their [civil] action in compliance with the formal requirements as instructed by the District Court, a different effective remedy at their disposal in the context of proceedings before a civil court...
In the Constitutional Court’s view, an action for damages is an effective remedy in respect of [the applicants], as a [civil] claim for compensation by persons who have suffered damage may form the basis of their own case in respect of which (unlike persons who join criminal proceedings with a claim for damages) they enjoy the guarantee of ... a hearing without undue delay...
It follows that the alleged failure of the Regional Court to proceed with [the criminal case against M.] speedily can have no bearing on the applicants’ constitutional right to a hearing without undue delay... In the circumstances, it is the applicants’ claim for damages which is to be considered as their case; determination of such a claim is not the purpose of the criminal proceedings and, in addition, the applicants can claim damages before a civil court provided that they comply with the statutory requirements...”
23. On 24 November 2004 the Bratislava Regional Court convicted M. in proceedings concerning the charges which were not related to the applicants’ claim. M. was sentenced to 10 years’ imprisonment and the court ordered him to compensate SKK 58 million to the Ministry of Finance. The convicted persons appealed and the proceedings are pending before the Supreme Court.
24. The Bratislava Regional Court is expected to start determining the remaining charges against M. (which concern fraud in respect of more than 20 individuals including the applicants) in the course of 2005.
25. Article 43(1) and (2) provides, inter alia, that a person who has suffered damage, as a result of a criminal offence, can claim compensation from the accused person and request that the court, in a judgment convicting the accused person, order the latter to compensate for such damage.
26. In criminal cases falling within the jurisdiction of regional courts, the court decides, according to the nature of the matter under consideration, whether or not an injured person should be allowed to participate in the proceedings (Article 44(2)). Such decision is taken, as a rule, at the main hearing. In accordance with the Supreme Court’s case-law, an injured party may be prevented from participating in the proceedings for important reasons only, for example where it is required for protection of a State secret.
27. Article 47(1) provides that a claim for damages may be secured, up to an amount corresponding to the estimated damage, on the property of the accused where a justified fear exists that compensation for damage caused as a result of an offence will be jeopardised or rendered difficult.
28. Pursuant to Article 228(1), where a court convicts the accused person of an offence as a result of which damage to third persons was caused, it shall, as a rule, order the convicted person to compensate for such damage, provided that the relevant claim was filed in time.
29. Under Article 229(1), a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence exceeding the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged.
30. Article 83 of the Code of Civil Procedure provides that, once proceedings have been brought, no other judicial proceedings can be instituted in the same matter.
31. In accordance with the Supreme Court’s practice under this provision, the filing of a claim for damages in the context of criminal proceedings is to be considered as the bringing of proceedings, within the meaning of the relevant provisions of the Code of Civil Procedure, and it constitutes an obstacle of litis pendens where a civil action is filed after the corresponding claim has been submitted in the context of criminal proceedings (Collection of Supreme Court’s Decisions and Opinions, 22/1979, p. 192).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69313
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF I.I. v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1962 and lives in Shoumen.
10. At approximately 2 a.m. on 31 January 1998 the applicant allegedly took part in a violent incident in a bar in his home town of Shoumen. It seems that the police were alerted about the incident, intervened and questioned some of the participants and the other persons present on the spot, without making arrests.
11. At approximately 7.30 p.m. on 31 January 1998 the applicant allegedly took part in another violent incident in a restaurant in Shoumen. Apparently during this second incident a Mr P.P. was beaten, robbed, abducted and threatened with violence. Later that evening Mr P.P. complained to the police.
12. In the late evening of 31 January 1998 the applicant went to the Regional Police Department in Shoumen for questioning in connection with the incidents. At 11.55 p.m. he was questioned as a witness. He submits that during the following days he was kept under arrest in the police department. According to the Government, the applicant was not deprived of his liberty at that time.
13. On 1 February 1998 criminal proceedings were opened against the applicant and seven other persons on suspicion that they had robbed Mr P.P., had deprived him of his liberty and had coerced him to pay them money.
14. On 2 February 1998 an investigator ordered the applicant's preliminary detention for a period of twentyfour hours, starting to run at 3.30 p.m. on that day, on suspicion that on 31 January 1998 he had committed abduction and unlawful deprivation of liberty, contrary to Article 142 § 2 of the Criminal Code (“the CC”). The order stated that the applicant had been arrested immediately after having committed the alleged offence, in accordance with Article 202 § 1 (1) of the Code of Criminal Procedure (“the CCP”). Despite the applicant's insistence to meet the investigator, he was not brought before him at that time.
15. On 3 February 1998 a prosecutor extended the applicant's preliminary detention for three more days, starting to run from the day of the extension. The same day the applicant was allowed to meet a lawyer.
16. At 3 p.m. on 5 February 1998 the applicant was brought before an investigator and charged with having instigated others to commit unlawful deprivation of liberty in a manner endangering the health of the victim and also to commit extortion through threats of murder accompanied by light bodily injury. The investigator ordered his pretrial detention. The same day a prosecutor from the Shoumen Regional Prosecutor's Office confirmed the investigator's decision to detain the applicant.
17. Immediately after the charging the applicant was questioned in the presence of his counsel. The applicant stated that he understood the charges against him. His counsel asked to be allowed access to the casefile. The investigator allegedly refused.
18. On 11 February 1998 the applicant submitted an appeal against his pretrial detention. He claimed that he had not committed the alleged offences and that the accusation against him was not supported by the available evidence.
19. The Shoumen Investigation Service sent the applicant's appeal to the Shoumen Regional Court on 12 February 1998 together with the casefile. It arrived in the court on 16 February 1998.
20. The appeal was examined by the Shoumen Regional Court on 4 March 1998 in an open hearing in the presence of the applicant and his counsel. Counsel referred to the alleged lack of evidence against the applicant and, in addition, noted that the applicant had a permanent address, a job, and two children. Counsel also presented a medical certificate issued by the Shoumen Regional Hospital which indicated that the applicant was suffering from myasthenia and post-traumatic encephalopathy, for which he had been hospitalised in June 1997, and also from psoriasis. Counsel argued that the latter required better sanitary conditions than those in the cell of the Investigation Service where the applicant was being held.
21. The court rejected the appeal. It held that in proceedings against the imposition of detention it could not go into issues relating to the accusation and the evidence against the applicant, as that had to do with the merits of the criminal case against him. The only relevant arguments of the applicant were those pertaining to his health. The court further held that the applicant had failed to prove that he was suffering from psoriasis and that the other diseases indicated by him were neurological and required no particular conditions of treatment. It also briefly noted that the applicant had been detained under Article 152 § 4 (1) of the CCP and that there were no grounds for releasing him, in view of the impending investigative actions and the ascertaining of the truth.
22. On 30 April 1998 the Shoumen Regional Prosecutor's Office decided to release the applicant on bail, reasoning that the applicant's health had worsened during his stay in custody. In particular, his psoriasis had intensified due to the poor sanitary conditions and the lack of sunlight in his cell. Moreover, the investigation had almost been completed and the applicant had a permanent address and a job, which reduced the chances of him absconding or impeding the investigation.
The applicant posted bail the same day and was released.
23. On 19 April 1999 the Shoumen Regional Prosecutor's Office decided to discontinue the criminal proceedings against the applicant and to drop the charges against him. It reasoned that the accusation against the applicant had not been proven.
24. After he appeared for questioning in the evening of 31 January 1998 the applicant remained on the premises of the Shoumen Regional Police Department. The following day or the day after that he was transferred to the detention facility of the Shoumen Regional Investigation Service. He remained there until 30 April 1998, when he was released.
25. There the applicant was held in an underground cell with no windows. Its door was made of solid metal, with a small aperture allowing the guards to inspect the cell. There was an opening above the door which was closed with a wirenet; that was the only conduit for fresh air to the cell. The floor of the cell was nearly eighty centimetres below the floor of the hallway.
26. According to the applicant, the size of the cell was approximately six square meters. During the time which the applicant spent in the cell it was occupied by three to four detainees.
27. One of the walls of the cell was oozy and covered with mould.
28. The cell was lighted by a single electric bulb situated above the door. Its switch was in the hallway and it allegedly remained on twentyfour hours a day. According to the applicant, the light coming from the bulb was not sufficient to allow him to read.
29. The detainees were sleeping on a concrete platform which was about forty centimetres above the floor level and was covered with wooden planks. The planks were covered only with blankets. There was no bed linen. It seems that the cell contained no other pieces of furniture.
30. The applicant, as well as the other detainees, was allowed to go out of the cell for five minutes two or three times a day – in the morning and in the late afternoon – to wash themselves and to use the toilet. It seems that the detainees could also leave the cell when they wished to write a request to the investigator, the prosecutor or the court. In that case they were allowed to stay in the hallway to write.
31. The size of the toilet room, which was at the other end of the hallway, was approximately six square meters and there were three Asiantype toilets in it, with no screens between them and between them and the three sinks, with the result that all inmates had to relieve themselves in each other's presence.
32. The detainees had to use a bucket in the cell to relieve themselves outside the toilet visits. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities.
33. The toilet was also used as a bathroom. The detainees were allowed to bathe once a week, for ten minutes. There was no shower and they had to take hot water from a pail containing fifteen or twenty litres, which they mixed with cold water from the tap. The detainees had to pour water over their bodies with the mugs they were using for eating.
34. According to the applicant, the food, which was served in the cell twice a day, was of poor quality.
35. On the third or fourth day after his arrest the applicant's psoriasis aggravated. His skin got covered with massive eczema. He informed the facility's paramedic about this and asked to have medicines brought from his home. It seems that he had to apply his medication five or six times a day, but was not allowed to keep it in the cell and could only apply it twice a day, during the toilet visits. The applicant alleges that, as a result, he started to develop psoriatic arthritis: his joints swelled, he started feeling pain in his ankles, and could not move the fingers of his right hand.
36. On 17 March 1998 the applicant requested to be examined by a dermatologist. His request was granted. During the examination the doctor found that as a result of the bad sanitary conditions in which the applicant was being kept the rashes on his skin had aggravated. The applicant was prescribed injections, which apparently were regularly administered by the detention facility's paramedic at the door of the applicant's cell.
37. The CPT visited Bulgaria in 1995 and again in 1999 and 2002. Although the Shoumen Investigation Service detention facility was not visited on any of these occasions, all reports included general observations about problems in all Investigation Service facilities.
38. In this report (CPT/Inf (97) 1) the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a toilet and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to 510 minutes or not allowed at all; no other form of outofcell activity was provided to persons detained.
39. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.
40. The CPT also noted that family visits were only possible with permission and that as a result detainees' contact with the outside world was very limited. There was no radio or television.
41. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation's assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country's difficult financial circumstances.
42. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for 30 minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pretrial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency.
43. In this report (CPT/Inf (2002) 1) the CPT noted that new rules, providing for better conditions, had been enacted but had not yet resulted in significant improvements.
44. In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention in Investigation Service premises had remained generally the same as those observed during the CPT's 1995 visit, including as regards hygiene, overcrowding and outofcell activities. In some places the situation had even deteriorated.
45. In this report (CPT/Inf (2004) 21) the CPT noted that most Investigation Service detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded.
46. Despite the CPT's recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”.
47. Article 142 § 2 of the CC provides that the offences of abduction and false imprisonment carry a penalty of up to ten years' imprisonment.
48. By Article 142a § 4 of the CC, the offence of false imprisonment in a manner endangering the health of the victim is punishable by three to ten years' imprisonment.
49. By Article 213a § 2 (1), (2) and (4) of the CC, extortion through threats of murder or severe bodily injury, when it is accompanied with light bodily injury and is committed by two or more persons, is an offence punishable by to two to eight years' imprisonment and a by a fine of three to five thousand levs.
50. Article 21 § 1, read in conjunction with Article 20 § 3 of the CC, provides, as relevant, that a person who instigates another to commit an offence is subject to the same punishment as the principal, account being taken of the nature and the degree of his participation.
51. The general rule of Bulgarian criminal procedure is that a person may be deprived of liberty within the context of pending criminal proceedings if he or she has been charged with an offence. By Article 146 of the CCP, a measure to secure appearance before the competent authority has to be imposed in respect of every person charged with having committed a publicly prosecutable offence. Pretrial detention (see paragraphs 5558 below) and house arrest are those measures which involve deprivation of liberty.
52. However, a person may also be taken into custody if he or she is suspected of having committed a publicly prosecutable offence punishable with imprisonment (at the relevant time), but there is not enough evidence to bring charges. The circumstances in which this may occur are limited and, as relevant here, include the case where a person “has been caught during or immediately after the commission of the [alleged] offence ...” (Article 202 § 1 (1) of the CCP).
53. The arrestee has to be brought immediately before an investigator who has to inquire into the circumstances surrounding the arrest, to institute or refuse to institute criminal proceedings, and to make an order for the “preliminary detention” or for the release of the arrested person (Стефан Павлов, Наказателен процес, Особена част, Сиби, 1996, стр. 4647). By Article 203 §§ 1 and 2 of the CCP, the investigator may impose “preliminary detention” for a maximum of twentyfour hours, which could, in certain circumstances, be extended by a prosecutor to up to three days. If no charges are brought against the detainee within this timelimit, he has to be released immediately upon its expiry (Article 203 § 3).
54. Section 70(1)(1) of the Ministry of Internal Affairs Act allows the detention of a person who is suspected of having committed a criminal offence. The detention may not last longer than twentyfour hours (section 71 of the Act) and must be based on a written order (section 72(1) of the Act).
55. At the relevant time and until the reform of the CCP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody. The investigator's decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2529 of the Court's judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II).
56. Article 152 of the CCP, as in force at the relevant time, provided as follows:
“1. Pretrial detention shall be imposed [in cases where the charges concern] a serious intentional crime.
2. In the cases falling under paragraph 1 [detention] may be dispensed with if there is no risk of the accused evading justice, obstructing the investigation, or committing further crimes.
3. ...
4. In cases [where the charges do not concern a serious intentional crime] pretrial detention shall be imposed if the charges concern a crime punishable with imprisonment, if:
(1) there is a danger of the accused's absconding, obstructing the course of justice, or committing further crimes. ...”
57. According to the Supreme Court's practice, Article 152 § 1 required that a person charged with a “serious intentional crime” be detained pending trial. The only exception was provided for by Article 152 § 2, under which an accused could be released if it was clear beyond doubt that there was no danger of his absconding or committing further crimes. By contrast, where detention was imposed under Article 152 § 4 (1), the danger of the accused's absconding or committing an offence had to be “real”, as opposed to “hypothetical” (опред. № 1 от 4 май 1992 г. по н.д. 1/1992 г. на ВС II н.о.; опред. № 24 от 23 май 1995 г. по н.д. № 268/1995 г. на ВС І н.о.).
58. Article 93 § 7 of the CC provides that a “serious crime” is one punishable by more than five years' imprisonment.
59. Article 152a of the CCP, as in force at the material time, provided as follows:
“(1) The detainee shall be immediately provided with a possibility of filing an appeal with the competent court against the [imposition of detention]. [The appeal must be filed] not later than seven days after the [imposition of detention]. The court shall consider the appeal in an open hearing to which the [detainee] shall be summoned. The hearing shall take place not later than three days after the receipt of the appeal at the court.
(2) The appeal shall be filed though the organ which has ordered the detention ... .
(3) The court['s ruling shall not be] subject to appeal ...”
60. The Supreme Court has held that it was not open to the courts, when examining appeals against pretrial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order (опред. № 24 от 23 май 1995 г. по н.д. № 268/1995 г. на ВС І н.о.).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-85867
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MAUDSLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Norman Maudsley, is a British national who was born in 1946 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 6 August 2000. On 26 July 2001 the applicant made a claim for widows’ benefits. On 4 October 2001 he was informed that his claim had been disallowed as he was not a woman. On 5 October 2001 the applicant made a request for reconsideration. On 15 October 2001 the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The 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 Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-70132
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF H.N. v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1946 and lives in Norway.
8. In 1987 the applicant married a Polish national M.C. In 1989 M.C. gave birth to their first daughter A. Subsequently, their son B was born in 1992 and their second daughter C in 1994.
9. The applicant and his family lived in Norway. The household also included S.C., the son of M.C. born in 1980 of her previous marriage.
10. On 22 November 1994 M.C. was committed to a psychiatric institution for more than two months. According to the applicant she was diagnosed with “a clear paranoid psychosis”.
11. S.C. suffered from development disorders caused by “massive rejection” by his mother.
12. On 31 March 1998 the applicant and M.C. separated. Subsequently, they filed for divorce.
13. On 15 June 1998 the Inderøy District Court granted the applicant the custody of A, B and C. Moreover, the court granted M.C. visiting rights. She was allowed to visit the children in their house once a week and every second weekend after giving the applicant a three-day written notice. At the same time, the court issued a restraining order prohibiting M.C. from visiting the children in their schools. The applicant and M.C. were both granted parental authority.
14. On 17 July 1998 the Trondheim Regional Court dismissed M.C.'s appeal against the District Court's decision.
15. On 28 August 1999 M.C. abducted A, B and C and took them to Poland.
16. On 31 August 1999 the applicant applied to the Polish Ministry of Justice – designated as a Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the children.
17. On 9 September 1999 M.C. applied to the Warsaw District Court for a decision declaring that A, B and C were habitually resident in Warsaw. She also applied for a restraining order prohibiting the applicant from removing the children from Poland.
18. On 24 September 1999 the applicant's application for the return of the children was submitted by the Polish Central Authority to the Warsaw District Court.
19. On 5 October 1999 the Warsaw District Court stayed the proceedings concerning the application lodged by M.C. The court's decision was based on Article 16 of the Hague Convention.
20. On 22 November 1999 a Polish translation of an expert opinion obtained by the Inderøy District Court on 4 October 1999 was submitted to the Polish Ministry of Justice.
21. On 25 November 1999 the Warsaw District Court held a hearing in a case concerning the applicant's application for the return of the children. M.C., whose lawyer did not attend the hearing, informed the court that she would like to submit later certain documents confirming that she and her children had been ill-treated by the applicant. The hearing was adjourned until 6 December 1999.
22. On 6 December 1999 the court requested an expert opinion on the relationships between the children and their parents and on whether the return of the children to the applicant would lead to psychological or physical damage to the children. The hearing was adjourned until 10 January 2000.
23. On 7 December 1999 the applicant, M.C. and the children were interviewed by the Warsaw Family Consultation Centre, which was responsible for preparing the expert opinion.
24. On 5 January 2000 the Inderøy District Court granted the applicant parental authority in respect of A, B and C and changed M.C.'s visiting rights. It considered that M.C. had unlawfully taken the children to Poland.
25. On 10 January 2000 the hearing before the Warsaw District Court was adjourned sine die because the expert opinion was not ready.
26. The expert opinion was submitted on 2 February 2000. It had six pages and ended with the following conclusion:
“The emotional ties of the children with both parents still exist but are disturbed as a result of conflicts in the family environment. The father's attitude to the children does not raise any problems and the mutual relationships between him and [B] and [C] are correct.
However, significant problems exist in the relationship between the father and [A], who partly identifies herself with her mother and whose attitude to the father is dictated by [the mother]. Therefore, transferring her to the care of the father may be difficult.
Nevertheless, the existing disturbances in the behaviour of [A] show that the father will better guarantee a proper functional development in future."
27. On 24 February 2000 the Warsaw District Court held a hearing.
28. The next hearing took place on 2 March 2000. The Warsaw District Court allowed an application for the return of the children lodged by the applicant and ordered M.C. to return them to the applicant. As M.C. declared that she would appeal this decision, the court granted the applicant visiting rights pending the outcome of the appellate proceedings. During the hearing the counsel for the applicant asked the judge to take the children away from M.C. and place them in a child care facility as there was a risk that M.C. would hide the children. However, the judge refused the request as she considered that such a risk did not exist.
29. Subsequently, M.C. lodged with the Warsaw Regional Court an appeal against the District Court's decision of 2 March 2000.
30. On 30 May 2000 the Warsaw Regional Court held a hearing. The counsel for M.C. submitted a medical certificate confirming that she was sick and could not attend the hearing. The court adjourned the hearing until 4 July 2000.
31. On 4 July 2000 the Warsaw Regional Court dismissed an appeal lodged by M.C. During the hearing M.C. and her lawyer declared that the children would be hidden.
32. On 27 July 2000 the enforcement proceedings began. The bailiff (komornik) requested M.C. to return the children but she refused.
33. On 31 July 2000 the applicant paid 1,600 Norwegian kroner to the bailiff.
34. On 14 September 2000 the bailiff referred the case file to the Warsaw District Court.
35. On 19 October 2000 the court held the first hearing in the enforcement proceedings. M.C. did not attend it. She submitted a medical certificate confirming that she was sick.
36. The next hearing before the Warsaw District Court was held on 23 November 2000. The court adjourned the hearing as it considered that it was necessary to hear both parties to the proceedings.
37. On 5 December 2000 the Polish Central Authority informed the Norwegian Central Authority about the District Court's decision of 23 November 2000. The applicant submitted that the Polish Central Authority had not informed him that he should have attended the hearings held on 19 October and 23 November 2000 and that he had not received summonses from the Warsaw District Court to attend them.
38. On 7 January 2001 the applicant was examined in Warsaw by a court expert in psychology.
39. On 8 January 2001 the Warsaw District Court held a hearing. The court ordered M.C. to return the children to the applicant within seven days. It also decided that if she did not comply with the order she would be punished with a 1,000 Polish zlotys fine or a ten-day prison term in default. The court also ordered the bailiff to take the children away from M.C. by force if they were not returned within seven days.
40. M.C. appealed the District Court's decision of 8 January 2001 but her appeal was dismissed on 6 March 2001 by the Warsaw Regional Court.
41. On 2 April 2001 the bailiff sent to the District Committee for the Protection of the Rights of the Child in Warsaw a written request for their assistance in the enforcement of the District Court's order to take the children away from M.C. by force. The request referred to Article 1092 of the Code of Civil Procedure and included information that the bailiff would enforce the court's order on 19 April 2001 at 1 p.m. at M.C.'s house in Warsaw.
42. On 4 April 2001 the Norwegian Central Authority passed to the Polish Central Authority the applicant's concerns that M.C., who had already hidden the children in the past, might hide them again and asked whether it was possible to take any measures to prevent this and in particular to bring forward the date of enforcement of the court order.
43. On 9 April 2001 the Polish Central Authority replied in the following terms:
“I would like to inform you that there is no possibility [of executing] the Court decision in another way. It is true that the Court of Justice is allowed to [take preventive] measures but the execution of the measures will be held on the same bases as the [substantive] decision. Mr. N (...)'s anxieties have been transmitted to the proper court.
The [execution of the decision] may not take place before the established date.”
44. On 17 April 2001 the applicant had a meeting with the bailiff. He informed the applicant that following his request of 2 April 2001 he had contacted the Committee. He had been advised that it would not send a representative to assist in the enforcement of the court's decision on 19 April 2001. In addition, a person speaking on behalf of the Committee had made the following statement to the bailiff:
“You understand that I do not agree with that and the mother of the children will be immediately informed about the date and time of the enforcement.”
45. According to the applicant, the bailiff did not take any steps to speed up enforcement of the court's order.
46. On 19 April 2001 the bailiff assisted by two police officers and accompanied by a social worker, the applicant and the Norwegian consul came to the M.C.'s house to enforce the court order. However, neither M.C. nor the children were present. M.C.'s mother, who lived in the house, informed the bailiff that M.C. and the children “had left around 12 April 2001 for an unknown destination”.
47. Subsequently, the police authorities in Poland and Norway were informed that M.C. had abducted the children and was hiding them in Poland.
48. On 31 August 2001 the Norwegian Central Authority submitted to its Polish counterpart details of M.C.'s bank account held in Warsaw into which she was receiving her pension from Norway.
49. On 17 September and 14 November 2001 the Norwegian Central Authority inquired of the Polish Central Authority about developments in the search for the applicant's children but received no reply.
50. On 12 December 2001 the Norwegian Central Authority submitted to the Polish Central Authority a third request for information about developments in the applicant's case. The request was signed by two senior officers of the Authority.
51. On 19 December 2001 the Polish Central Authority informed its Norwegian counterpart that details of M.C.'s bank account had been passed to the prosecution service, which was investigating this lead. It also advised the Norwegian authorities about new legislation which since 27 September 2001 had made a guardian (kurator sądowy) responsible for the enforcement of court decisions allowing applications for the return of children. Therefore, on 14 December 2001 the Warsaw District Court had allowed an application lodged by the applicant's lawyer and had decided that a guardian should take the children away from M.C. when her address was established.
52. On 6 April and 18 June 2002 the applicant wrote to the Chief Police Commissioner in Warsaw asking for help in finding his children but did not receive any reply.
53. On 9 July 2002 the applicant received a telephone call from S.C., at that time aged 22, who was on holiday in Poland. S.C. informed him that A was visiting M.C.'s aunt in Warsaw. The applicant immediately contacted the police authorities in Norway and Poland while S.C. kept A under observation.
54. On 10 July 2002 A. returned to the applicant's house in Norway.
55. On 9 September 2002 the Warsaw District Court asked an elementary school in Warsaw whether B and C were attending it. On 28 October 2002 the court asked the local educational authority in Warsaw whether the children were attending any of the schools managed by it.
56. On 20 December 2002 the Norwegian Minister of Justice sent a letter to his Polish counterpart asking him to look into the applicant's case.
57. On 23 January 2003 a meeting of representatives of institutions engaged in the search for the children took place in Warsaw. It was organised by the Polish Ministry of Justice.
58. On 29 January 2003 the Warsaw District Court asked the Social Security Board where M.C. was collecting her pension.
59. On 10 February 2003 the court requested two other elementary schools whether B and C were attending them. On the same day it was informed by the International Police Cooperation Bureau in Warsaw that M.C. had made a phone call from Warsaw to Norway.
60. On 17 February 2003 the Warsaw District Prosecutor informed the Warsaw District Court that M.C. had been arrested in Białystok, Poland several months before.
61. On 18 February 2003 the Polish Ministry of Justice replied to the letter of 20 December 2002. The reply referred to the conduct of the proceedings in the applicant's case and the fact that M.C. was being prosecuted on charges of forgery of documents and use of false identity. She was under police supervision and was not allowed to leave Poland.
62. On 28 February 2003 the Białystok District Prosecutor informed the Warsaw District Court that the prosecution service had lodged with the Białystok District Court a bill of indictment against M.C. She was charged with the forgery of documents as she had apparently adopted false identities for herself and for B and C.
63. On 15 April 2003 a guardian took B and C away from M.C.
64. On 16 April 2003 the children were returned to the applicant.
65. The Hague Convention was published in the Polish Official Journal on 25 September 1995. Article 7 of the Hague Convention reads, in so far as relevant:
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) To discover the whereabouts of a child who has been wrongfully removed or retained;
(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) To exchange, where desirable, information relating to the social background of the child;
(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
Pursuant to Article 11:
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
66. Article 1092 of the Code, which was repealed on 26 September 2001, provided as follows:
“When taking away a person who is a subject of parental authority or who is in care, the bailiff shall be specially careful, and shall do everything to protect such a person from physical or moral harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102787
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SCHUMMER v. GERMANY (No. 1)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 7-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1959 and lives in Freiburg.
6. On 6 March 1985 the Stuttgart Regional Court convicted the applicant of two counts of rape and abduction and of one count of attempted rape and deprivation of liberty committed in 1984. It sentenced him to five years' imprisonment and ordered his placement in preventive detention pursuant to Article 66 of the Criminal Code (see paragraphs 35-36 below). The court found that the applicant, acting with full criminal responsibility, had raped two young women and had attempted to rape another woman all of whom he had taken with him in his car. It further noted that the applicant had previously been convicted by juvenile courts of attempted rape and of rape; in respect of the second offence he had been placed in a psychiatric hospital.
7. The applicant served his full prison sentence in Freiburg Prison. He was then placed in preventive detention, executed in that same prison, for the first time on 27 June 1989; he had thus served ten years in preventive detention by 26 June 1999.
8. The continuation of the applicant's preventive detention was ordered by the Freiburg Regional Court on several occasions.
9. On 11 December 2001 the Freiburg Regional Court, in judicial review proceedings under Article 67e of the Criminal Code (see paragraph 38 below), refused to suspend the applicant's preventive detention and grant probation.
10. The Regional Court considered that the applicant's continued preventive detention was necessary because there was still a risk that the applicant, owing to his criminal tendencies, might commit serious offences resulting in considerable psychological or physical harm to the victims if released (Article 67d § 3 of the Criminal Code; see paragraph 40 below). Since the court's last order of 18 June 1999, to the reasoning of which it referred, no circumstances leading to a more positive conclusion had become known.
11. The Regional Court had consulted a psychological expert on the question whether there was a risk that the applicant, if released, might commit offences by which his victims would suffer serious physical or mental harm. However, the expert could only submit a view on the basis of the case file as the applicant had refused to talk to her.
12. The Regional Court further noted that in his report of 11 November 1991 a neurologic expert had found that the applicant suffered from a personality disorder which had resulted in his acts of sexual aggression. The Regional Court acknowledged that the applicant had accepted social-therapeutic treatment from August 1985 until June 1988. However, he had then terminated that treatment. In 1992 the detention authorities had proposed certain relaxations in the conditions of the applicant's detention, but the applicant had refused to cooperate. In his report of 12 April 1999 the neurologic expert had found that the applicant still suffered from the said personality disorder. In recent years the applicant had refused any therapy. Therefore, there was nothing to indicate that the applicant was no longer dangerous. In any event, his release could only be taken into consideration after his conditions of detention had been relaxed, combined with a successful social-therapeutic treatment.
13. The Regional Court further stated that it did not consider the new version of Article 67d of the Criminal Code of January 1998 (see paragraph 40 below) to breach constitutional law in so far as it applied also to persons convicted prior to that change in the law.
14. By a decision of 21 March 2002, served on the applicant on 2 April 2002, the Karlsruhe Court of Appeal, fully endorsing the reasons given by the Regional Court, dismissed the applicant's appeal. In particular, contrary to the applicant's submission, it considered that Article 67d of the Criminal Code, read in conjunction with section 1a of the Introductory Act to the Criminal Code (see paragraph 40 below), which entered into force on 31 January 1998, were constitutional. The prohibition on retrospective punishment did not apply to orders of preventive detention, which did not constitute a penalty, but a measure of correction and prevention. In view of the fact that there was a risk that the applicant, if released, might commit sexual offences similar to those he had previously committed, his continued detention was not yet disproportionate.
15. On 29 April 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions ordering his continued preventive detention even on completion of the tenyear period. He argued that these decisions were based on Article 67d § 3 of the Criminal Code, as amended in 1998, under the terms of which the duration of a convicted person's first period of preventive detention was extended retrospectively from a maximum period of ten years, applicable prior to the change in the law, to an unlimited period of time. Therefore, this provision violated the prohibition on retrospective punishment under Article 103 § 2 of the Basic Law, the prohibition of retrospective legislation enshrined in the rule of law, his right to liberty under Article 2 § 2, second sentence, of the Basic Law and the principle of proportionality (see paragraph 32 below).
16. On 22 March 2004 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 664/02) as it was ill-founded. Referring to its leading decision given on 5 February 2004 in relation to the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 before this Court), it found that Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, as amended on 26 January 1998, were constitutional.
17. On 12 July 2006 the Freiburg Regional Court, having consulted a psychiatric expert, W., again refused to suspend the applicant's preventive detention and grant probation under Article 67d § 3 of the Criminal Code.
18. On 11 December 2006 the Karlsruhe Court of Appeal dismissed the applicant's appeal. The Court of Appeal endorsed the Regional Court's view that there was still a risk that the applicant, if released, might commit serious offences resulting in considerable psychological or physical harm to the victims.
19. The Court of Appeal had regard to the report of 16 March 2006 by psychiatric expert W., who, having examined the applicant and the case file, had considered the applicant liable to reoffend. According to the expert, the applicant still suffered from a personality disorder which had, in the past, manifested itself by violent sexualised behaviour.
20. The Court of Appeal observed that the expert's negative prognosis was based on a limited factual basis in respect of the applicant's personal development after his offences. The expert had only found that the applicant's personality disorder had not been cured by therapy, without assessing whether this disorder would still manifest itself in similar offences in the future. It was for the prison authorities and the regional courts to extend the basis for a prognosis by therapeutic measures and by granting relaxations in the conditions of detention. However, such therapeutic measures had not been taken in the applicant's case in the past years, even though an expert had already made specific proposals for such measures in 1991 and again in 1999. The applicant had refused a dialogue with the prison authorities on his therapy, but it was for the prison authorities to make reasonable offers of treatment and to grant relaxations in the conditions of the applicant's detention, which it had failed to do. However, without testing and preparing the applicant for release in the course of relaxations in his conditions of detention, there was a risk that he would commit serious sexual offences if released.
21. On 16 January 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued preventive detention violated his right to liberty, the prohibition of retrospective punishment, the prohibition of double punishment for the same offence and the prohibition of inhuman treatment. He argued, in particular, that by the further execution of preventive detention against him, he had been treated as a mere object of State action in disregard of his human dignity. Moreover, his right to a fair trial had been breached, in particular in that the criminal courts had failed to decide on his continued preventive detention within the statutory time-limit.
22. On 26 April 2007 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 157/07).
23. It found that the applicant's complaint was inadmissible for non-exhaustion of domestic remedies in so far as he had complained about the Regional Court's failure to decide on his continued preventive detention already in 2003, as prescribed by Article 67e §§ 1 and 2 of the Criminal Code (see paragraph 38 below). The applicant had failed to apply for judicial review of this failure to comply with the statutory time-limit.
24. In so far as the applicant had complained about his continued preventive detention for a period exceeding ten years, his complaint was ill-founded. His continued preventive detention on the basis of Article 67d § 3 of the Criminal Code, as amended in 1998, was constitutional. The criminal courts had further respected the principle of proportionality in respect of deprivations of liberty in their decisions.
25. On 31 July 2009 the Freiburg Regional Court, reviewing the necessity of the applicant's continued detention, decided that the applicant was to remain in preventive detention as, owing to his criminal tendencies, he was still liable to commit serious offences resulting in considerable psychological or physical harm to the victims.
26. On 31 August 2009 the Karlsruhe Court of Appeal quashed that decision and remitted the case to the Freiburg Regional Court. It found that the Regional Court had not sufficiently established the facts on which it had based its decision and had failed to hear the medical expert, who had submitted a report in writing on its request, also in person at the hearing.
27. On 11 June 2010 the Federal Constitutional Court dismissed the applicant's request of 15 May 2010 that the Constitutional Court, by way of an interim injunction, request the Regional Court to order the applicant's immediate release and declare whether the Court's findings in its judgment in the case of M. v. Germany, no. 19359/04, were applicable to other detainees (file no. 2 BvQ 34/10). It found that the applicant had failed to explain why he could not be expected to await the decisions to be taken by the courts responsible for the execution of sentences on his further detention.
28. On 8 July 2010 the Freiburg Regional Court again decided not to suspend the applicant's preventive detention and grant probation.
29. On 10 September 2010 the Karlsruhe Court of Appeal declared the applicant's preventive detention terminated and ordered his supervision of conduct. The Court of Appeal, referring to a leading decision of the Federal Court of Justice of 12 May 2010 (see paragraph 41 below), argued that it was possible to interpret the Criminal Code so as to comply with the Convention as interpreted by this Court in the case of M. v. Germany. Accordingly, it found that in relation to preventive detention the application of a new statutory provision retrospectively to the detriment of the person concerned was prohibited and the law in force at the time of the offence had to be applied. As Article 67d § 1 of the Criminal Code, in its version in force at the time the applicant committed his offences, provided that the first period of preventive detention could not exceed ten years, the applicant's preventive detention was terminated and the applicant was to be released.
30. The Karlsruhe Court of Appeal further found that the applicant had no claim for damages under the Act on Compensation for Measures of Criminal Prosecution (Gesetz über die Entschädigung für Strafverfolgungs-maßnahmen). A claim for damages under Article 5 § 5 of the Convention or official liability proceedings had to be brought in the civil courts.
31. The applicant was released on 10 September 2010 and has been submitted to constant surveillance by five police officers since then.
32. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court's judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions relevant to the present case can be summarised as follows:
33. The German Criminal Code distinguishes between penalties (Strafen) and socalled measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Preventive detention (Article 66 et seq. of the Criminal Code) is classified as a measure of correction and prevention. The purpose of such measures is to rehabilitate dangerous offenders or to protect the public from them. They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq.). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article 62 of the Criminal Code).
34. The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention. The penalty is determined by the law which is in force at the time of the act (Article 2 § 1 of the Criminal Code); if the law in force on completion of the act is amended before the court's judgment, the more lenient law applies (Article 2 § 3). On the other hand, decisions on measures of correction and prevention are to be based on the law in force at the time of the decision unless the law provides otherwise (Article 2 § 6).
35. The sentencing court may, at the time of the offender's conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).
36. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year's imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1).
37. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person's preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person's conduct (Führungsaufsicht) commences with suspension.
38. Pursuant to Article 67e of the Criminal Code the court (i.e. the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended on probation. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this timelimit is two years (paragraph 2 of Article 67e).
39. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).
40. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.
41. By a decision of 12 May 2010 (file no. 4 StR 577/09) the Federal Court of Justice (fourth senate), in a decision concerning a retrospective order of preventive detention (nachträgliche Sicherungsverwahrung), found that the Criminal Code was to be and could be interpreted so as to comply with Article 7 § 1 of the Convention as interpreted by this Court in its judgment in M. v. Germany, no. 19359/04. Under Article 2 § 6 of the Criminal Code (see paragraph 34 above), decisions on measures of correction and prevention were to be based on the law in force at the time of the court's decision unless the law provided otherwise. Article 7 § 1 of the Convention, in its interpretation by this Court, was such a law which provided otherwise as the Court had considered that preventive detention was to be qualified as a penalty for the purposes of Article 7 to which the prohibition of retrospective punishment applied (the fifth senate of the Federal Court of Justice, in its decision of 21 July 2010, file no. 5 StR 60/10, disagreed with the fourth senate on that point in relation to a different provision on retrospective preventive detention). Therefore, court decisions concerning orders of preventive detention had to be based on the law in force at the time of the offence.
42. Referring, in particular, to these findings of the Federal Court of Justice, several Courts of Appeal found in cases comparable, as regards the temporal course of events, to the M. v. Germany case that the abolition of the maximum period of ten years laid down in Article 67d § 1 of the Criminal Code in its version in force before 31 January 1998 could not be effected retrospectively and therefore still applied to preventive detention ordered in relation to offences committed prior to that date. As a consequence, these courts declared terminated the preventive detention of the detainees concerned whose first period of preventive detention had been executed beyond that maximum period and ordered their release (see, in particular, Frankfurt am Main Court of Appeal, decision of 24 June 2010, file no. 3 Ws 485/10; Hamm Court of Appeal, decision of 6 July 2010, file no. 4 Ws 157/10; Karlsruhe Court of Appeal, decision of 15 July 2010, file no. 2 Ws 458/09; and Schleswig-Holstein Court of Appeal, decision of 15 July 2010, file no. 1 Ws 267/10).
43. On the contrary, several Courts of Appeal considered that the Court's findings in the case of M. v. Germany could not be applied at present by the domestic courts responsible for the execution of sentences as the Criminal Code as it stood did not permit its interpretation in compliance with Articles 5 and 7 of the Convention. Section 1a § 3 of the Introductory Act to the Criminal Code had expressly stipulated that the abolition of the maximum duration of ten years for a first period of preventive detention also applied to persons who had committed the offences in question prior to the entry into force of that abolition and had thereby unambiguously authorized the application of the amended law with retrospective effect. It was therefore for the legislator to execute the Court's judgment in the M. case. These Courts of Appeal accordingly did not terminate the preventive detention of the persons concerned (see, in particular, Celle Court of Appeal, decision of 25 May 2010, file no. 2 Ws 169-170/10; Stuttgart Court of Appeal, decision of 1 June 2010, file no. 1 Ws 57/10; Koblenz Court of Appeal, decision of 7 June 2010, file no. 1 Ws 108/10; Nuremberg Court of Appeal, decision of 24 June 2010, file no. 1 Ws 315/10; and Cologne Court of Appeal, decision of 14 July 2010, file no. 2 Ws 428/10). Several of these Courts of Appeal subsequently submitted such cases to the Federal Court of Justice for a preliminary ruling under a new provision of the Court Organisation Act (section 121 § 2 no. 3) in force since 30 July 2010, which is aimed at securing a uniform case-law of the German courts on that issue (see, for instance, Koblenz Court of Appeal, decision of 30 September 2010, file no. 1 Ws 108/10).
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