ITEMID: 001-79907
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: CEKU v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Haki Ceku, is a Serbian national who was born in 1955. He is currently in detention in Lingen prison in Germany. He was represented before the Court by Mr M. Dollmann, a lawyer practising in Nierstein, Germany.
On 30 August 1985 the applicant committed an armed robbery, killing a money courier and a bystander who had tried to prevent him from fleeing.
On 19 November 1987 the applicant was arrested in Spain, where he subsequently served a prison sentence for other criminal offences.
On an unspecified date the German authorities requested the applicant’s temporary surrender according to Article 19 § 2 of the European Convention on Extradition (see Relevant law below) for the purpose of conducting criminal proceedings against him. As the applicant had already served the main part of his Spanish prison sentence, the public prosecutor expected that the Spanish authorities might abstain from requesting the applicant’s return to Spain following termination of criminal proceedings in Germany. On 7 September 1999 the applicant was extradited to Germany.
On 7 March 2000 the Hanover Regional Court (Landgericht) convicted the applicant of two counts of murder and severe robbery, found that his guilt was of a particular gravity (besondere Schwere der Schuld), and sentenced him to life imprisonment. With regard to the gravity of the applicant’s guilt, the Regional Court noted that the applicant had committed several serious criminal offences within a short period of time. By shooting two persons he had fulfilled three criteria qualifying his actions as murder (killing from greed and in order to make another crime possible or cover it up). Furthermore, he had committed a severe robbery.
Following the applicant’s conviction in Germany, the Spanish authorities abstained from requesting his return to Spain. The applicant later on requested the Spanish authorities to demand a diplomatic assurance from the German authorities not to impose a life sentence on him. The Spanish authorities rejected this request on the grounds that the extradition proceedings had been terminated. The applicant is currently serving his prison sentence in a prison hospital in Germany.
In 1994 the applicant was diagnosed as being infected with HIV. The applicant assumes that he contracted the virus in the end of the 1980s when he had to undergo several operations during his detention in Spain.
According to an expert opinion submitted by the medical expert Dr M. on 26 October 2005, the applicant suffered from full-blown AIDS. While the applicant did not suffer from any acute new diseases, his immune deficiency could be expected to progress, entailing the risk of severe HIV-associated infections. The poor state of the applicant’s immune system was probably due to the fact that the applicant had, in the past, not always taken the prescribed anti-viral medication, as he had suffered from side effects and from a subjective inability to swallow the medication. The difficulty to regularly administer medication considerably shortened the applicant’s life-expectancy. A further limitation derived from the severe immune deficiency, which could, at any time, entail serious opportunistic infections or tumours. Under these circumstances, the expert estimated the applicant’s life expectancy to approximately two years. This estimation could only be revised if it was possible to successfully implement a therapy which was regularly taken by the applicant.
According to the applicant’s submissions, he had, in the meantime, been admitted to intensive care, as his state of health had dramatically deteriorated.
On 9 May 2005 the Osnabrück Regional Court, sitting as an execution of sentence chamber (Strafvollstreckungskammer), having heard the applicant, the public prosecutor and the prison authority, rejected the applicant’s request for the remainder of his sentence to be suspended under section 57a of the Criminal Code (see Relevant law below).
On 24 June 2005, on the applicant’s complaint, the Oldenburg Court of Appeal (Oberlandesgericht) quashed this decision on the ground that the Regional Court had failed to determine from which date on the applicant would be eligible for parole, having regard to the gravity of his guilt, and remitted the case to the Regional Court.
On 5 December 2005 the Regional Court, once again, rejected the applicant’s request. It noted that the applicant had served 15 years of his sentence on 31 May 2005. It determined that the gravity of the guilt – notwithstanding other possibilities of suspending the sentence – warranted the execution of the sentence for two further years as from 15 May 2005.
The Regional Court found that the gravity of the applicant’s guilt required serving a considerably longer period than the minimum sentence of fifteen years. It further noted that the applicant had not shown any remorse and that he had not attempted to expiate his deeds. There was no indication of a positive development of the applicant’s personality.
Turning to the applicant’s illness, the Regional Court considered that the applicant’s state of health played an important role. Referring to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), the Regional Court found that the applicant could not be deprived of the possibility of being released from prison while still alive. It would be incompatible with human dignity to reduce the possibility of release to a remaining life-span spent in physical decline and approaching death.
Referring to the expert opinion submitted by Dr M. and to a further expert opinion submitted by the Regional Health Authority on 4 January 2005, the chamber estimated the applicant’s life expectancy to two years. However, this assessment was based on the assumption that the applicant did not regularly take his prescribed medication. The life expectancy could be prolonged if it was possible to successfully implement a therapy which was regularly taken by the applicant.
Taking into account the above circumstances, the chamber considered that the gravity of the applicant’s guilt warranted a further execution of the sentence for two years.
Apart from these considerations, the chamber considered that a suspension of the sentence could not be justified having regard to the interest in public security. The Chamber noted that the applicant had, during his detention, on several occasions threatened prison staff, although these threats had not been followed by any actions. According to an expert report drafted by the prison’s psychological service on 13 December 2004 the applicant did not show any remorse or feelings of guilt. He felt innocently convicted and tried to minimise his guilt. The fact that during the last months the applicant had calmed down was not due to any feeling of remorse, but to his progressing illness. The psychological service concluded that the applicant posed a considerable danger to the public. The Regional Court followed this assessment.
According to the Regional Court, the applicant’s state of health would not hinder him from committing even serious crimes. Furthermore, there was the risk that the applicant could have lost any restraint, as he had nothing left to lose.
On 4 January 2006 the Oldenburg Court of Appeal confirmed the Regional Court’s decision and rejected the applicant’s complaint. Insofar as the applicant complained about the circumstances of his extradition, his complaint was unfounded. During the extradition proceedings the length of the execution of the sentence had not been limited to fifteen years.
On 6 June 2006 the Federal Constitutional Court, sitting as a chamber of three judges, refused to admit the applicant’s complaint against the decision of the Oldenburg Court of Appeal of 4 January 2006 and of the Osnabrück Regional Court of 5 December 2005 for adjudication.
The Constitutional Court considered that the applicant’s submissions only partly fulfilled the admissibility requirements laid down in sections 23 § 1 and 92 of its Rules of Procedure. It noted, in particular, that the applicant had failed to submit the Regional Health Authority’s expert opinion, the submissions of the prison authorities and the expert opinion by the psychological service on which the Regional Court had to a considerable degree based its decision.
Insofar as the applicant complained that the circumstances of his extradition had been incompatible with the Rule of Law, his submissions did not suffice for an examination by the Constitutional Court. The content of the terms on which the States had agreed prior to the extradition was only reported in a very general way; the applicant had failed, in particular, to submit or to report the content of a decision taken in May 2000 by an unspecified Spanish authority, which eventually made possible the execution of the sentence in Germany.
The Federal Constitutional Court considered the remainder of the applicant’s complaint to be unfounded. The Federal Constitutional Court confirmed that the respect for human dignity demanded that any convicted person had to be granted the concrete and, in principle, realistic chance to regain his or her personal liberty.
With respect to the circumstances of the applicant’s case that court found as follows:
“The impugned decisions are, provided the further proceedings are conducted in a constitutional way, to be regarded as still compatible with the Constitution.
aa) The Constitution did not oblige the lower courts to immediately suspend the remaining prison sentence. A release after having served a fifteen years’ prison sentence would have complied with the procedure prescribed in case of an execution of a life sentence without particular gravity of the defendant’s guilt (section 75a subsection 1 sentences 1 and 2 of the Criminal Code). In the present case, however, the first instance court had established the particular gravity of the guilt, and the execution of sentence chamber has faultlessly confirmed the subsistence of this guilt, having regard to the criminal offences committed by the complainant.
The fact that the lower courts assumed that the complainant was dangerous also militated against an immediate release. The constitutional complaint does not sufficiently explain why the complainant’s illness should exclude this dangerousness. Quite apart from the fact that the complainant could commit criminal offences with minimal physical effort by using a firearm, the opinion submitted by the expert Dr M. does not show any acute pathological findings, notwithstanding the high probability of contracting serious diseases in the future.
bb) The finding that the particular gravity of the complainant’s guilt required that the sentence be executed for two further years is still acceptable from a constitutional point of view, taking into account the reservations mentioned by the court and provided that the further proceedings are conducted in a constitutional way.
The lower courts have not misjudged the constitutional standards and were, in particular, aware of the fact that it would be incompatible with human dignity to reduce the concrete and in principle realistic chance of release to a remaining life-span spent in physical decline and approaching death. Apart from the fact that the life-expectancy of two years as estimated by the expert Dr M. is not completely exhausted by the envisaged further execution of the sentence for two years, the courts were allowed to take into account the possibility of a prolongation of the life-expectancy, provided medication could be successfully implemented with the complainant’s collaboration.
...The complainant does not have a positive legal prognosis. In the case of criminal offences which are sanctioned by a life sentence, as is the case with murder, the need for public security has a high importance when establishing a legal prognosis. A suspension of the sentence must not lead to recidivist murders. It does not appear entirely far-fetched when the lower courts assumed that the complainant’s dangerousness was enhanced by the fact that he had nothing left to lose. It is difficult for the Constitutional Court to examine this matter as the applicant did not submit the comments made by the psychological service and by the prison authority. This concerns in particular the question whether it would have been necessary to hear an external expert.
The determination of the prospective duration of execution is still acceptable, as the possibility to react to a change of the relevant circumstances – as would be required by the constitution – is expressly reserved. It has to be assumed that the prison authorities will, without delay, inform the public prosecutor and the chamber in charge of the execution of sentences in case of any changes of the relevant circumstances, in particular of the complainant’s life expectancy and legal prognosis. In order to prepare his release, it will also have to be considered to grant relaxation measures in the execution of sentence.”
This decision was served on the applicant’s counsel on 17 June 2006.
Article 19 of the European Convention on Extradition (ETS no. 24) reads as follows:
“(1) The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested.
(2) The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement between the Parties.”
In 1977 the German Federal Constitutional Court ruled that the respect for human dignity (Article 1 § 1 of the Basic Law) required that any person serving a life-sentence must have, in principle, a chance to regain personal liberty (1 BvL 14/76, published in the official collection of the decisions of the Federal Constitutional Court, volume 45, p. 187).
In order to implement this decision, the German legislator introduced the following section into the Criminal Code:
“(1) The court shall suspend execution of the remainder of a punishment of imprisonment for life and grant probation, if:
1. fifteen years of the punishment have been served;
2. the particular gravity of the convicted person’s guilt does not require its continued execution; and
3. the requirements of Section 57 subsection (1), sent. 1, nos. 2 and 3 are present.
Section 57 subsection (1), sent. 2 ... shall apply accordingly.”
The provisions referred to above read as follows:
“(1) The court shall suspend the execution of the remainder of a fixed term of imprisonment and grant probation, if:
1. ...
2. this can be justified upon consideration of the security interests of the general public; and
3. the convicted person consents.
To be considered in making the decision shall be, in particular, the personality of the convicted person, his previous history, the circumstances of his act, the importance of the legal interest threatened in case of recidivism, the conduct of the convicted person while serving his sentence, his living conditions and the effects which can be expected as a result of the suspension.”
The relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) read as follows:
“Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. The reasons must be stated; the requisite evidence must be specified.”
“The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.”
According to the consistent case-law of the Federal Constitutional Court, a complainant is obliged to submit all relevant material within the statutory time-limit of one month.


ITEMID: 001-84462
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KUCEROVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova
TEXT: The applicant, Ms Jaroslava Kučerová, is a Czech national who was born in 1952 and lives in Sedlčany. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Administrative proceedings concerning compensation in respect of the livestock, fixtures and fittings
On 4 July 1997 the applicant filed with the Ministry of Agriculture a petition seeking the determination of the person liable for compensation in respect of the livestock, fixtures and fittings. On the same day the Ministry’s competent regional department in Benešov commenced administrative proceedings.
On 10 September 1999 the regional department issued a decision holding that the municipality of Vrtochovy Janovice was the person liable for compensation.
On 1 December 2000 the municipality made an agreement with the applicant and a certain M.L. on the provision of compensation. The compensation was to be allocated to the entitled persons by granting one-third to the applicant and two-thirds to M.L.
On 18 February 2002 the Land Fund (pozemkový fond) and the applicant made an agreement on financial compensation in respect of the livestock, fixtures and fittings.
2. Judicial proceedings concerning compensation in respect of the livestock, fixtures and fittings
On 6 December 2000 the applicant brought an action against the Land Fund claiming that the compensation in respect of the livestock, fixtures and fittings was insufficient.
On 12 April 2002 the Benešov District Court (okresní soud) dismissed the applicant’s action. On 8 July 2002 the Regional Court partly quashed and partly upheld the first instance decision, and sent the relevant part of the case back to the District Court. In the reasoning of its decision the Court noted that the applicant had supplemented her action through her appeal in respect of the compensation for the property not surrendered, but not in respect of the compensation for the livestock, fixtures and fittings. The Regional Court’s decision became final on 29 July 2002.
On 12 August 2002 the District Court stayed the proceedings. On 17 December 2002 the Prague Regional Court (krajský soud) quashed this decision.
On 10 February 2003 the District Court decided that it was not territorially competent to deal with the applicant’s action, which should be transferred to the Prague 1 District Court (obvodní soud). The latter, however, did not agree with the referral of the case to it and, on 26 July 2003, submitted the case to the Prague Municipal Court (městský soud). On 23 September 2003 the latter held that the disagreement of the District Court, that the case be transferred to it, was well-founded.
In a judgment of 14 October 2005 the District Court, to which the case had been remitted, dismissed the applicant’s claims. The applicant appealed.
It appears that the proceedings are pending before the Regional Court.
3. Proceedings concerning the passage of the title to real estates
On 10 September 1997 the applicant brought before the District Court an action against R.V. seeking to decide on the passage of the title to certain real estates to her and two other persons.
On 20 August 1998 the District Court discontinued the proceedings.
On 30 November 1998 the Regional Court quashed this decision and remitted the case to the District Court which, in a judgment of 1 July 1999, rejected the applicant’s action. On 31 December 1999 the Regional Court quashed this judgment and sent the case back to the District Court which, on 19 June 2001, again dismissed the applicant’s action.
On 23 January 2002 the Regional Court, upon the parties’ appeals, quashed the rulings on the merits and on the costs of the proceedings, and remanded the case to the District Court which, on 4 February 2003, upon the applicant’s withdrawal of her action, stayed the proceedings. This decision became final on 22 March 2003.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-57855
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF MIAILHE v. FRANCE (No. 1) (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 13 December 1991, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12661/87) against the French Republic lodged with the Commission under Article 25 (art. 25) by three French nationals, Mr William Miailhe, who also has Philippine nationality, his mother Victoria, née Desbarats, and his wife Brigitte, née Damade, on 11 December 1986.
2. In a judgment of 25 February 1993 ("the principal judgment") the Court found that there had been a breach of Article 8 (art. 8) of the Convention, as house searches and seizures by the customs had infringed the applicants’ right to respect for their private life and their correspondence (Series A no. 256-C, pp. 87-91, paras. 28-40 and point 2 of the operative provisions).
Only the question of the application of Article 50 (art. 50) in the case remains to be determined. For the facts of the case, reference should be made to paragraphs 6-15 of the principal judgment (ibid., pp. 78-83).
3. As the question of awarding just satisfaction was not ready for decision, although the criminal proceedings against Mr and Mrs Miailhe had already ended, it was reserved in whole in the principal judgment. The Court invited the Government and the applicants to submit in writing, within three months, their observations on the matter and, in particular, to notify it of any agreement they might reach (ibid., p. 91, para. 44 and point 4 of the operative provisions).
4. The Registrar received the applicants’ memorial on 25 May 1993, the Government’s memorial on 14 September and the observations of the Delegate of the Commission on 21 October.
5. At the deliberations on 25 November 1993 Mrs E. Palm, substitute judge, replaced Mr L. Wildhaber, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1 of the Rules of Court).


ITEMID: 001-84198
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BRINZEVICH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Mikhail Vasilyevich Brinzevich, is a Russian national who was born in 1981 and lives in Arkhangelsk. He was represented before the Court by Mr I. Ilyin and Mr M. Sitilin, lawyers practising in Arkhangelsk. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new Representative, Mrs V. Milinchuk.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 October 2003 the Lomonossovskiy District Court of Arkhangelsk convicted the applicant of inflicting grievous bodily harm that had caused the victim’s death and sentenced him to thirteen years and six months’ imprisonment in a high-security colony. As the applicant was indigent, Mr Ilyin was appointed by the local bar association to represent him in the proceedings.
On 22 October 2003 Mr Ilyin lodged a statement of appeal.
The appeal hearing was initially scheduled for 17 November 2003. On that day the applicant submitted a handwritten statement of appeal to the Arkhangelsk Regional Court. Invoking Article 6 of the Convention, he asked the court to have Mr Ilyin appointed as his counsel at the appeal hearing.
By a letter of 17 November 2003, Mr Ilyin and the director of the detention centre where the applicant was being held were advised that the appeal hearing had been adjourned until 5 December 2003.
On 5 December 2003 the Arkhangelsk Regional Court examined the case on appeal in the absence of the applicant’s lawyer. It heard submissions by the judge rapporteur and oral submissions by the applicant and the public prosecutor, and upheld the judgment of 15 October 2003.
On 19 February 2004 the Arkhangelsk Regional Court rejected Mr Ilyin’s application for supervisory review of the conviction on the ground that the applicant’s right to defence had not been violated by the Regional Court.
On 18 March 2004 the President of the Arkhangelsk Regional Court dismissed Mr Ilyin’s appeal against the decision of 19 February 2004.
On 26 October 2006 a deputy prosecutor of Arkhangelsk Region lodged an application for supervisory review (надзорное представление) with the Arkhangelsk Regional Court against the conviction on the ground that the applicant’s case had been examined by the Regional Court in the absence of the applicant’s lawyer.
On 20 December 2006 the Presidium of the Arkhangelsk Regional Court granted the prosecutor’s application. In particular, the Presidium found as follows:
“According to Article 409 § 2 of the Code of Criminal Procedure, an appeal judgment must be quashed if the supervisory-review court finds that the appeal judgment was issued in breach of the requirements of the Code of Criminal Procedure which affected or could have affected the correctness of the judgment.
According to Article 47 § 4 (8) of the Code of Criminal Procedure, an accused has the right to legal assistance, which must be provided free of charge in the circumstances described in the Code.
In his supplementary statement of appeal of 10 November 2003... [the applicant] requested that the advocate Mr Ilyin take part in the appeal proceedings. The advocate Mr Ilyin did not attend the appeal hearing, despite having been properly notified of its date, time and place.
It appears from the Regional Court’s appeal judgment of 5 December 2003 that [the applicant] did not waive his request for participation of the advocate Mr Ilyin in the appeal proceedings. The appeal court did not take measures to ensure the presence of that advocate or to secure participation of another advocate in the appeal proceedings, which fell short of the requirement of Article 50 § 2 of the Code of Criminal Procedure ... This breach is a ground for quashing the appeal judgment concerning [the applicant] and remitting the case for a new appeal hearing.
In the new hearing the appeal court must take measures to ensure that parties can exercise their legal rights...”
The proceedings are currently pending before the Arkhangelsk Regional Court.
Article 50 establishes that the investigator, the prosecutor or the court have a duty to provide the suspect or accused with legal-aid counsel upon his or her request.
Article 51 establishes that counsel must imperatively be appointed by the investigator, prosecutor or court if the suspect or accused has not waived his right to legal assistance.
Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in the appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”
In a number of cases (no. 608п04, decision of 13 October 2004; no. 931п2004пр, decision of 26 January 2005; and no. 144п05, decision of 6 April 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsels in the appeal proceedings whereas the legal representation of the accused was obligatory.