ITEMID: 001-4549
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PEJCINOSKI v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant is an Austrian national, born in 1970. The second applicant is a Slovakian national, born in 1973. They are living in Vienna.
They are represented before the Court by Mr. Johannes Hock, a lawyer practising in Vienna.
On 27 October 1993 the second applicant filed a request for a residence permit, indicating that the first applicant and herself intended to get married.
On 20 March 1994 the Vienna Regional Government (Landesregierung) dismissed this request. It noted that under S. 2 of the 1992 Residence Act (Aufenthaltsgesetz) a quota for issuing new residence permits was fixed every year. In administering the quota, priority had to be given, inter alia, to cases of family reunion under S. 3 of the said Act, in which marriage with an Austrian citizen had already existed for at least one year at the time of the request. However, the second applicant did not fulfil this requirement.
On 5 April 1994 the applicants got married. It appears that they were already living together before their marriage.
On 11 April 1994 the second applicant, represented by counsel, filed an appeal. She referred in particular to the marriage which she and the first applicant had meanwhile concluded. She further submitted that the first applicant had been living in Vienna since 1979. He was employed as a worker and was able to maintain his family.
On 5 September 1994 the Federal Ministry for the Interior (Bundesministerium für Inneres) dismissed the appeal. It noted that the quota fixed under S. 2 of the 1992 Residence Act was already filled. According to S. 9 of the said Act, any requests which could not be based on a right to family reunion under S. 3 had to be dismissed.
On 4 October 1994 the second applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof). She submitted in particular that she had a right to a residence permit under S. 3 of the 1992 Residence Act in view of her marriage to an Austrian national.
On 5 October 1994 the second applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). She submitted that the decision refusing her a residence permit violated her right to respect for her private and family life. She argued in particular that S. 3 § 1 of the 1992 Residence Act granted non-national spouses of Austrian nationals the right to a residence permit. However, according to S. 3 § 2 the right was subject to the condition that the marriage had already lasted for a year at the time of lodging the request. Such a restriction of the right to a residence permit was contrary to Article 8 of the European Convention on Human Rights and was, therefore, unconstitutional. The impugned provision obliged an Austrian national and his foreign spouse to live separately for at least one year. It therefore interfered with their right to private and family life. It was not apparent that this interference served any of the legitimate aims set out in the second paragraph of Article 8 of the European Convention on Human Rights. Inasmuch as S. 3 § 2 of the 1992 Residence Act might serve to prevent fictitious marriages, the interference was disproportionate as it equally affected spouses truly wishing to lead a marital life. In her case, a separation from the first applicant would be particularly difficult as she was expecting a baby which would be born with a defect of the abdominal wall necessitating an operation immediately after its birth.
Also on 5 October 1994 the applicants’ daughter was born in Vienna.
On 6 October 1994 the first applicant requested the Constitutional Court to review the constitutionality of S. 3 § 2 of the 1992 Residence Act. He argued that the impugned provision had direct consequences for him. Adducing the same arguments as the first applicant he pleaded that the impugned provision was contrary to Article 8 of the European Convention on Human Rights. Further he argued that it also violated the principle of nondiscrimination as real marriages were treated in the same way as fictitious marriages.
On 27 November 1995 the Constitutional Court refused to deal with the second applicant’s complaint for lack of prospects of success.
Also on 27 November 1995 the Constitutional Court rejected the first applicant’s request. It found that S. 3 § 2 of the 1992 Residence Act was not addressed to or directed against the first applicant. That the impugned provision, being addressed to the second applicant as an alien, produced certain factual consequences for him did not suffice to entitle him to request the review of its constitutionality.
On 15 December 1995 the Administrative Court dismissed the second applicant’s complaint. It noted that it was uncontested that she had filed her request for a residence permit on 27 October 1993 while her marriage with the first applicant had only been concluded on 5 April 1994. As S. 3 of the 1992 Residence Act only conferred a right to a residence permit on the foreign spouse if the marriage with an Austrian national had already existed for a year at the time of filing the request, the second applicant could not rely on this provision.
This decision was served on the second applicant on 19 April 1996.


ITEMID: 001-95560
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WOLFGEHER AND TURULA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1957, 1959 and 1927, respectively, and live in Budapest. The first and second applicants are a married couple, and the third applicant is the second applicant's mother. They live together in the house which was the object of the litigation outlined below.
5. On 10 September 1992 two individuals brought an action against the applicants before the Budapest XX/XXI/XXIII District Court, requesting it to establish the invalidity of a contract and to order the applicants to vacate the house in which they lived.
6. Subsequently, several hearings took place and the opinion of an expert was obtained. Between 4 February 1997 and 20 May 1999 the case was suspended pending a related procedure before the land registry.
7. After several further hearings, on 30 June 2004 the District Court dismissed the action. On appeal, the Budapest Regional Court upheld the essence of the first-instance decision on 13 April 2005.
VIOLATED_ARTICLES: 6


ITEMID: 001-105016
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DEDIC v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Petr Dědič, is a Czech national who was born in 1973 and lives in Týn nad Vltavou. He was represented before the Court by Ms K. Petrusová, a lawyer practising in Prague.
On 29 October 1999 the applicant, who was working as a car mechanic, was dismissed from his job with immediate effect for underperforming in his duties.
On 7 December 1999 he brought an action requesting the court to find the dismissal invalid and the work contract still in effect.
On 15 January 2001 the first hearing was held before the Prague District Court. As the parties failed to reach an agreement and requested a report concerning the service of the dismissal, the hearing was adjourned.
On 8 June 2001 the applicant asked the court to summon his father and grandfather as witnesses.
On 18 February 2002 he informed the court that he had changed his legal counsel.
On 15 April 2002 the judge of the District Court invited the applicant to indicate the whereabouts of the witnesses he had proposed to be heard. On 6 May 2002 the applicant provided the information.
On 25 June 2002 the České Budějovice District Court, whose assistance was requested because of its proximity to the witnesses, held a hearing and heard three witnesses.
On 18 October 2002 the applicant applied to supplement his action by claiming compensation for unpaid salary from November 1999 to May 2000.
On 26 November 2002 the applicant sent a letter to the president of the Prague District Court in which he complained that the court had not ordered a new hearing to conclude the proceedings.
On 12 December 2002 the vice-president of the Prague District Court apologised for the delays and explained that they were caused by, among other things, the workload of the judge, difficulties with obtaining the report from the post office, and the assistance of the České Budějovice District Court.
On 16 December 2002 the District Court rejected the applicant’s application to supplement his action.
On 6 January 2003 the applicant again complained to the presidents of the Prague District Court and the Prague Municipal Court about the length of the proceedings.
On 27 January 2003 the vice-president of the Municipal Court apologised to the applicant; however, he found his complaint justified only with regard to the period from January to July 2000.
On 27 March 2003 the District Court rendered a judgment in which it found the dismissal invalid as it had not been served in accordance with the Labour Code. The judgment was served on the applicant on 3 June 2003.
On 29 July 2003 a judge of the Municipal Court declined to rule on the defendant’s appeal as the District Court had not fully decided on the action.
On 3 October 2003 the applicant lodged a constitutional appeal complaining that the proceedings before the lower courts had been lengthy.
On 5 November 2003, following a hearing, the District Court supplemented the first judgment and determined that the work contract was still valid. The judgment was served on the applicant on 24 February 2004, following his complaint of 13 January 2004.
On 13 January 2004 the applicant supplemented his constitutional appeal.
On 11 March 2004 the Constitutional Court rejected the applicant’s constitutional appeal. It held that the proceedings had indeed been lengthy but at that stage it would be unreasonable and redundant to interfere.
On 23 April 2004 the Municipal Court, following a hearing, upheld the first judgment and changed the supplementary judgment by holding that in the light of the wrongful dismissal the further validity of the working contract was self-evident.
On 2 and 7 July 2004 both parties filed an appeal on points of law.
On 28 June 2005 the Supreme Court quashed the second part of the judgment, remitted this issue to the Municipal Court and dismissed the remainder of the appeals.
On 15 November 2005 the Municipal Court, following a hearing, upheld the supplementary judgment of the District Court. The judgment became final on 13 January 2006.
On 3 January 2007 the applicant claimed compensation under Law no. 82/1998 for non-pecuniary damage arising from the excessive length of the above proceedings, which he evaluated at 300,000 Czech korunas (CZK) (approx. 10,925 euros (EUR)).
On 12 February 2007 the applicant supplemented his initial claim by asking for compensation for pecuniary damage incurred as legal costs.
In a letter of 17 September 2007 the Ministry of Justice acknowledged, referring to the case-law of the Court, that the proceedings, which had lasted more than six years, had been unreasonably lengthy and had suffered from administrative malpractice within the meaning of section 13 of Law no. 82/1998. The Ministry concluded, however, that the acknowledgment of the delays represented sufficient satisfaction for non-pecuniary damage. As for pecuniary damage, the Ministry rejected the claim for lack of any causal link.
On 2 January 2008 the applicant brought a civil action for compensation in respect of pecuniary and non-pecuniary damage against the Ministry.
On 30 June 2008 the District Court dismissed the action finding that apart from during the period from January to July 2000 the courts had acted in reasonable time. The court further reasoned that labour disputes should be decided quickly owing to their consequences on the personal and social life of the claimants, but underlined that in the present case the invalidity of the dismissal had been pronounced already in May 2004. The overall length was only slightly beyond the appropriate length and thus the acknowledgement of the violation of the applicant’s right represented sufficient satisfaction.
On 27 January 2009 (served on 17 March) the Municipal Court upheld this judgment. It reiterated that, in the light of the actual complexity of the case, the length of the proceedings had been inappropriate but only to a small extent.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic ((dec.), no. 40552/02, §§ 11- 24, 16 October 2007).


ITEMID: 001-75734
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MUCKOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (inadequate reasoning);Not necessary to examine Art. 6-1 (alleged lack of access to court);Violation of Art. 6-1 (length);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1939 and lives in Bratislava.
5. In 1989 the applicant’s daughter was seriously injured in a road traffic accident. The driver, who had been originally accused and convicted of having negligently caused bodily harm in that accident, was acquitted by a judgment of 20 February 1992. A driver of a different vehicle, who was an employee of the Ministry of the Interior, was subsequently accused of an offence in the context of that accident.
6. The applicant submits that, due to misconduct on the part of the State officials, the criminal proceedings lasted an excessively long time and that, until the liability of the drivers involved had been determined, the insurance company refused to compensate her for her daughter’s injuries. As a result the applicant became heavily indebted and she was in a difficult situation.
7. On 18 June 1992 the applicant filed a claim for damages with the Ministry of Justice.
8. On 25 June 1992 the Ministry of Justice informed the applicant that her action had been transmitted to the Bratislava I District Court which had jurisdiction to deal with the case. In her action the applicant claimed, with reference to the State Liability Act, compensation from the Ministry of the Interior for damage resulting from the above facts. The applicant also claimed protection of her personal rights and sought compensation for nonpecuniary damage in this respect.
9. On 29 June 1995 the District Court allowed the applicant’s request that the General Prosecutor’s Office be joined as the second defendant in the case.
10. In a judgment of 19 September 1996 the District Court decided to deal in a separate set of proceedings with the applicant’s claim for protection of her personal rights. It further dismissed the claim for damages under the State Liability Act of 1969. The court established that the defendants, as specified in the action, lacked standing in the case as the action should have been filed against the State. The judgment was served on 27 November 1996.
11. On 12 December 1996 the applicant appealed specifying that her action was aimed against the Slovak Republic, represented by the Ministry of the Interior and the General Prosecutor’s Office.
12. On 30 April 1997 the Bratislava Regional Court quashed the first instance decision to dismiss the claim under the State Liability Act of 1969.
13. In a decision of 18 September 1997 the Bratislava I District Court accepted the above specification of the defendant by the applicant.
14. On 11 June 1998 the District Court dismissed the claim under the State Liability Act of 1969. It did not find it established that there was a causal link between the actions of the authorities concerned and the alleged damage. In addition, the General Prosecutor’s Office lacked standing to act on behalf of the State as the applicant claimed.
15. On 28 July 1998 the applicant appealed.
16. A hearing before the Bratislava Regional Court was held on 3 February 1999.
17. On 23 March 1999 the Supreme Court dismissed the applicant’s request for three Regional Court judges to be excluded from dealing with the case.
18. On 26 May 1999 the Regional Court adjourned the case as it had not yet obtained, from a different court, a criminal file relating to the accident in which the applicant’s daughter had been injured. On 5 August 1998 the Ministry of Justice admitted, in reply to the applicant’s complaint, that undue delays had arisen in that context.
19. On 23 June 1999 the Bratislava Regional Court upheld the relevant part of the Bratislava I District Court’s judgment of 11 June 1998.
The court noted that the applicant claimed that she had suffered damage as a result of erroneous actions of police and public prosecutors who had been involved in the investigation into the accident in which her daughter had been injured in 1989. Due to the misconduct of the authorities concerned, she had been unable to obtain compensation promptly from the insurance company. As a result, she had become indebted and her and her children’s life had been affected.
20. In its judgment the court of appeal established that the applicant’s claim for damages did not fall under the State Liability Act of 1969 and that the claim had to be examined under the legislation in force at the time of the accident. At that time, however, the law did not permit the applicant to recover. In any event, the documents included in the relevant criminal file did not indicate that the authorities concerned had acted in an incorrect manner thus causing any damage to the applicant. Finally, the Regional Court noted that the decision in the case was important for clarifying the interpretation and application of the relevant law by the courts. It therefore allowed an appeal on points of law to be lodged against its judgment.
21. On 13 September 1999 the applicant filed an appeal on points of law. She pointed out that she was indigent and requested that an attorney be appointed to represent her free of charge.
22. On 1 February 2000 the Vice-President of the Bratislava I District Court admitted that there had been undue delays in the proceedings concerning her action and offered an apology to her.
23. On 14 April 2000 the Bratislava I District Court, to which the above request of 13 September 1999 fell to be examined, rejected the applicant’s motion for free legal representation. It held that the statutory requirements were not met as the applicant’s claim and the previous judicial proceedings indicated that her claim was devoid of any prospect of success. Thus the applicant did not meet the requirements for exemption from the obligation to pay the court fee and, consequently, the court could not appoint a legal representative to represent her free of charge. Reference was made to Article 30 (1) of the Code of Civil Procedure. On 9 May 2000 the applicant appealed.
24. The Bratislava Regional Court upheld the first instance decision on 30 November 2000. In addition to the reason invoked by the District Court, the appellate court held that the applicant received a pension of 5,470 Slovak korunas (SKK) a month, and that the protection of her rights did not require that a lawyer be appointed to represent her free of charge. In particular, the cassation proceedings did not allow for a review of the assessment of the relevant facts. Finally, in the event that practising lawyers refused to represent the applicant, it was open to her to ask the Slovak Bar Association to assign a lawyer to represent her in the proceedings.
25. On 16 March 2001 the applicant informed the District Court of the name of the lawyer representing her in the cassation proceedings. However, the advocate did not accept the applicant’s appointment of her as she worked for the defendant Ministry.
26. On 4 May 2001 the applicant requested the Minister of Justice to assist her in finding a suitable lawyer.
27. On 19 September 2001 the applicant was again asked to appoint a lawyer to represent her in the cassation proceedings. On 21 September 2001 the applicant replied that she had used all remedies available and that she saw no chance of having the matter resolved before the Slovakian authorities.
28. On 29 October 2001 the Supreme Court discontinued the proceedings on the appeal on points of law on the ground that the applicant was not represented by an attorney as required by the law. The Supreme Court’s decision was served on the applicant on 10 December 2001.
29. As stated above, the applicant’s claim relating to the protection of her personal rights and compensation in this respect, which formed a part of her original action of 18 June 1992, was dealt with by the Bratislava I District Court in a separate set of proceedings as from 19 September 1996.
30. On 1 April 1997 the District Court invited the applicant to substantiate her claim. On 13 April 1997 the applicant replied that she claimed non-pecuniary damage of SKK 700,000 and SKK 1 million respectively from the Ministry of the Interior and from the General Prosecutor’s Office on the ground that those authorities had acted in an unlawful manner in the context of their examination of the accident in which her daughter had been injured in 1989. She explained that, as a result of the actions of the defendants, her dignity had been diminished, she had found herself in a difficult material situation and she had suffered a trauma.
31. On 6 July 1997 the District Court invited the applicant to pay a court fee of SKK 72,000. That amount was based mainly on the sums which the applicant had claimed as compensation.
32. On 17 July 1997 the applicant requested that she be exempted from the obligation to pay the fee as she was indigent. She explained that she was a retired widow and that she was still paying off a debt which she had been obliged to contract with a view to reducing the impact on her life of the accident in question. The applicant stated that her only income was an old-age pension of SKK 4,704 a month and that she owned no property.
33. On 24 July 1997 the District Court rejected her request. While accepting that the applicant was indigent, the court found, with reference to Article 138 (1) of the Code of Civil Procedure, that her action was clearly devoid of any prospect of success. On 17 October 1997 the applicant appealed.
34. The Bratislava Regional Court upheld the District Court’s decision on 16 July 1998. The decision stated that a claim is devoid of any prospect of success when allegations contained in a plaintiff’s action do not permit the establishment of the existence of a justified claim or where a plaintiff contests issues on which a binding decision has been given in a different set of proceedings. Reference was made to Articles 135 (1) and 159 (2) of the Code of Civil Procedure.
35. On 2 September 1998 the applicant filed an appeal on points of law. On 4 November 1998 she requested an attorney to be appointed to represent her free of charge in the cassation proceedings. The District Court rejected her request, on 20 November 1998, on the ground that the applicant did not meet the statutory requirements. Reference was made to the above decisions given by the District Court and the Regional Court. On 16 August 1999 the Supreme Court discontinued the cassation proceedings concerning the Bratislava Regional Court’s decision of 16 July 1998 as the applicant was not represented by an attorney as required by the law.
36. On 2 September 1999 the Bratislava I District Court invited the applicant to pay a court fee in respect of her claim for protection of her personal rights. On 20 September 1999 the applicant again requested that she should be exempted from the obligation to pay the fee. The District Court discontinued the proceedings relating to this request, on 27 January 2000, on the ground that a final decision on the issue had already been given. On 16 February 2000 the applicant appealed. On 8 April 2000 the Bratislava Regional Court upheld that decision.
37. On 1 February 2000 the Vice-President of the Bratislava I District Court admitted that there had been undue delays in the proceedings concerning her action.
38. On 14 December 2000 the Bratislava I District Court delivered a decision by which it discontinued the proceedings concerning the claim for protection of the applicant’s personal rights on the ground that the applicant had failed to pay the court fee.
39. On 2 February 2001 the applicant appealed. The Regional Court upheld the first instance decision on 30 March 2001.
40. The following provisions of the Code of Civil Procedure are relevant in the present case.
41. Article 30 (1) provides that courts may appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests. Pursuant to paragraph 2 of Article 30, the president of the court’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of the party’s interests so requires.
42. Article 135 (1) provides, inter alia, that courts are bound by decisions of competent authorities that a criminal offence, a minor offence or a different administrative offence has been committed, by decisions concerning the perpetrator of such an offence as well as by decisions determining a person’s status.
43. Under Article 138 (1), the presiding judge may grant a party’s request for waiver of court fees where it is justified by the situation of such a party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success.
44. Article 159 (2) provides, inter alia, that the operative part of a judgment which has become final is binding on the parties to the proceedings as well as on all authorities.
45. Article 241 (1) provides, inter alia, that in proceedings on an appeal on points of law the plaintiff must be represented by an advocate unless he or she has legal qualification.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90332
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NOVIK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1969 and lives in Kyiv.
6. On 30 November 2006 the applicant was apprehended by the police in Kyiv under the international arrest warrant issued by the General Prosecutor’s Office of Belarus.
7. On 1 December 2006 the Pechersky District Court of Kyiv ordered the applicant’s detention for forty days pending an official request for his extradition to Belarus and in order to effect his transfer to the law enforcement authorities of Belarus.
8. On 4 December 2006 the applicant appealed against the decision of 1 December 2006. He contended that the first instance court had not taken into account his state of health and the fact that he, together with his wife and three minor children, had been residing in Ukraine for a long period of time, and that the court had not examined the applicant’s submissions concerning his political persecution in Belarus.
9. On 7 December 2006 the Kyiv City Court of Appeal rejected the applicant’s appeal against the decision of 1 December 2006. It held that the first instance court had duly taken into account the applicant’s state of health. However, it took the view that his family situation was irrelevant for the case and that the applicant’s allegations of political persecution in Belarus were unsubstantiated.
10. On 8 December 2006 the Deputy Prosecutor of the Republic of Belarus submitted an official request to the General Prosecutor’s Office of Ukraine, seeking the applicant’s extradition to Belarus.
11. By letter of 25 December 2006 the Deputy Prosecutor General of Ukraine informed the Belarusian Deputy Prosecutor General that the applicant would not be extradited on the ground that, under Ukrainian law, the charges against the applicant did not carry imprisonment.
12. On 27 December 2006 the applicant was released from detention.
13. Relevant domestic law and practice is summarised in the case of Soldatenko (Soldatenko v. Ukraine, 2440/07, §§ 21-29 and 31, 23 October 2008).
VIOLATED_ARTICLES: 5


ITEMID: 001-119465
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF GAVULA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Paul Lemmens
TEXT: 5. The applicant was born in 1977 and lives in the village of Berezhinka, Ukraine.
6. At 3 p.m. on 6 February 2003 the applicant was arrested in an apartment rented by his acquaintance and alleged accomplice D., and taken to a police station. At the police station he was allegedly handcuffed, beaten and according to the applicant, had his nose broken.
7. On the same day between 9 p.m. and 10 p.m. the applicant was questioned. He admitted to having robbed an apartment.
8. Criminal proceedings for robbery were instituted against the applicant; it is unclear whether this was done before or after his arrest. It was noted that on 6 February 2003 at around 12.20 a.m. the applicant, together with some other individuals, had threatened K. with a knife and taken 12,800 United States dollars (USD) from her.
9. The Government submitted that the applicant was in fact arrested on 7 February 2003.
10. On 10 February 2003 the Dniprovskiy District Court of Kyiv (“the Dniprovskiy Court”) ordered that the applicant be placed in pre-trial detention on the grounds that he was accused of committing a serious crime and could abscond or hinder the investigation if at liberty.
11. On 1 April 2003 the same court extended the term of the applicant’s detention until 7 June 2003 since “there were no grounds for the applicant’s release and his detention was necessary for carrying out further investigations (expert examinations etc.)”.
12. Between May 2003 and September 2007 the criminal case against the applicant was presented to the court for consideration but referred back for further investigation on five subsequent occasions (18 June 2004, 11 February and 10 June 2005, and 6 February and 5 September 2007). On the first occasion (18 June 2004) the court decided that the applicant’s case could not be considered separately from the cases of Kr. (another alleged accomplice of the applicant) and D., and that further investigative measures such as a reconstruction of events and confrontations between the accused and the witnesses should be carried out. On each occasion the court also decided that the applicant should remain in pre-trial detention.
13. On 11 December 2006 and 15 January 2007 the Dniprovskiy Court denied the applicant’s requests for release. The court held, without elaborating further, that the applicant was accused of committing a serious crime and, if released, could “continue his criminal activity”, abscond or hinder the investigation.
14. On 30 May 2008 the same court again referred the case back for further investigation. On 4 September 2008 the Kyiv City Court of Appeal quashed that decision and remitted the case to the first-instance court. The court also decided that the applicant should remain in pre-trial detention.
15. On 18 February 2009 the Dniprovskiy Court rejected the applicant’s request to have P. as his legal representative on the basis that he did not hold an advocate’s licence. The decision was not subject to appeal.
16. On 3 September 2009 the Dniprovskiy Court, upon a request by the prosecutor, ordered a forensic psychological and psychiatric examination of the applicant. In her request the prosecutor stated that the applicant had behaved aggressively and improperly. The court noted that on numerous occasions the applicant had actively interrupted a court hearing, giving instructions as to who should be cross-examined and what evidence should be considered. When his requests were rejected, he began to shout and swear. The applicant was removed from a courtroom on two occasions.
17. In order to carry out a forensic examination the applicant was allegedly detained in a special ward of a psychiatric hospital. According to an expert report dated 20 October 2009, the applicant had no mental illnesses either at the time of the report or when the crime was allegedly committed.
18. On 1 March 2010 the Dniprovskiy Court sentenced the applicant to eight and a half years’ imprisonment for robbery committed together with other persons. The criminal cases against each defendant were considered separately. The applicant was represented by his mother and by a lawyer, Da. In court the applicant denied committing the offence and refused to answer any questions. The court referred to his statements, given at the investigation stage of the proceedings, in which he had made a partial confession. In particular, on 6, 7, 9, 13 and 16 February 2003 the applicant had stated that at the material time he had been working in a flower shop run by D. Kr., who also worked in the shop, had told him that K. (D.’s acquaintance) had been keeping a lot of money at home and that he proposed to rob her. On 6 February 2003 the applicant followed K.’s son home from school. When K. opened the door to let her son in, the applicant threatened her with a knife and took USD 12,800 from her. At that time another witness, T., was also in the apartment. On leaving, the applicant lost a balaclava he was wearing. He joined Kr., who was waiting for him in a car, and they split the money. Kr. gave him USD 4,155 and told him that D. should be given USD 4,000.
19. Some of the statements were given in the presence of the applicant’s lawyer, Ka. They were further confirmed by confrontations held between the applicant, D. and other witnesses.
20. In court K.’s statements were read out. T., A. (a woman who saw a man running out of K.’s house and losing his balaclava), M., and Kr.’s wife were all cross-examined as witnesses. A. said that she could not recall the man’s face but described his clothes and other features such as age and height. M. gave evidence that at around 3 p.m. on 6 February 2003 the police arrived at the apartment she rented with D. The applicant and D. left together with some police officers. At around 8 p.m. the police officers returned and seized the applicant’s bag in which there was the sum of USD 4,155. Kr.’s wife told the court that her husband Kr. was missing and that she did not know of his whereabouts.
21. The court also noted that the applicant had complained of ill-treatment by the police. In particular, the applicant stated that his initial statements had been given under duress and that he had changed them as soon as there was no longer a threat to his life and health. Referring to a decision by the prosecutor of 27 March 2008 and subsequent court judgments (see paragraphs 33-35 below), the court found the applicant’s complaints unsubstantiated. The court also noted that the applicant had been provided with appropriate medical assistance whilst in detention.
22. Lastly, the court indicated that on 11 February 2005, 10 June 2005, 6 February 2007 and 5 September 2007 the criminal case had been referred back by the court for further investigation for non-compliance with the court’s instructions of 18 June 2004, in particular, the failure to institute criminal proceedings against D. and Kr., who was currently missing. On 23 October 2008 D. had signed an undertaking not to abscond as she was pregnant. The criminal case against D. was under investigation.
23. On 6 August 2010 and 1 November 2011 respectively the Kyiv City Court of Appeal and the Supreme Court of Ukraine upheld the applicant’s sentence.
24. On 26 March 2011 the applicant was released on probation.
25. According to the applicant, during the period between August 2003 and April 2004 (December 2004 according to the Government) he complained that police officers had subjected him to physical and psychological abuse and had misappropriated his gold ring, mobile telephone and clothes.
26. On 28 December 2006 the Dniprovskiy District Prosecutor’s Office (прокуратура Дніпровського району в м. Києві), having considered a complaint by the applicant forwarded to it by the court, refused to institute criminal proceedings against the police officers. Police officers P.A. and P.S. were questioned. They denied any ill-treatment of the applicant.
27. On 26 June 2007 the Dniprovskiy Court, in the applicant’s presence, overturned that decision and referred the case back for further examination. In court, the applicant did not complain of having been ill-treated but said that police officers had stolen his belongings (clothes, mobile telephone and a ring). The court noted that it should be established at what point the applicant’s belongings had been seized and under which circumstances.
28. On 12 July 2007 the prosecutor’s office again refused to institute criminal proceedings against the police officers.
29. On 30 August 2007 that decision was overturned by the Kyiv City Prosecutor’s Office (прокуратура м. Києва) which referred the case back for further examination. It was noted that the instructions of the Dniprovskiy Court of 26 June 2007 had not been complied with.
30. On two occasions between September 2007 and January 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers but these refusals were set aside by a senior prosecutor.
31. On 30 January 2008 the Dniprovskiy District Prosecutor’s Office again refused to institute criminal proceedings. The applicant stated that the police officers “had resorted to violence” and had misappropriated his mobile phone and a revolver. The police officers gave evidence that neither they nor the other police officers had subjected the applicant to ill-treatment. It was noted that there was no medical evidence to suggest that the applicant had sustained any injuries.
32. On 17 March 2008 the Dniprovskiy District Prosecutor’s Office reversed its decision of 30 January 2008.
33. On 27 March 2008 the prosecutor’s office again rejected complaints by the applicant. It was established that there was no medical evidence in support of his allegations.
34. The applicant appealed against that decision to the Dniprovskiy Court. He complained that there had been no legal right for the police to seize his personal belongings. He also stated that he had been “beaten, tortured and subjected to physical and psychological abuse” without giving any further details.
35. On 3 June 2009 the prosecutor’s decision of 27 March 2008 was upheld by the Dniprovskiy Court. The court held that the applicant’s complaints had been properly examined and were unsubstantiated. On 2 September 2009 the Kyiv City Court of Appeal upheld the decision of 3 June 2009. On 17 January 2010 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law since copies of court judgments submitted by the applicant had not been properly certified.
36. The applicant submitted to this Court three undated photographs as part of his evidence. On the first and third photos his nose appears to be straight; on the second one it is bent. The applicant also submitted a medical certificate stating that in April 2011 he had been diagnosed with posttraumatic nasal deformation which impeded his breathing. On 15 April 2011 the applicant had his nasal bones repositioned.
37. Between 26 February 2003 and August 2010 the applicant was detained in the SIZO no. 13. Upon his arrival the applicant was examined by a doctor, to whom he did not mention anything about any injuries.
38. The applicant stated that he had been detained in a cold and damp cell infested by cockroaches. The bedding was dirty and torn, and the toilets and sink were filthy. The applicant submitted photos on which it could be seen that the cell was dirty and that there were dark brown stains on the ceiling and walls.
39. On 19 November 2007 the applicant’s mother complained to the head of the SIZO medical ward that the applicant was suffering from headaches and a pain in his right kidney, both of which needed treatment. She also alleged that on 6 February 2003 the applicant had been “tortured and beaten by police officers”.
40. On 21 December 2007 the applicant was examined by a urologist. He was diagnosed with chronic pyelonephritis and crystalluria, and was recommended outpatient treatment.
41. In January 2008 the applicant complained about the conditions of his detention to the Ministry of Health of Ukraine.
42. By letter of 12 March 2008 the Kyiv Department of Execution of Sentences informed the applicant that he had been detained in a cell measuring 52.06 square metres with eighteen other people. The cell had a toilet which was separated from the main living area by a one-metre-high partition. The cell was disinfected once a week. The bedding was in a reasonable condition. Insulation had been added to the windows and the cell (no. 10) had been refurbished.
43. On 17 March 2008 the applicant was examined by a general practitioner. It was concluded that his state of health was satisfactory.
44. On 21 May 2008 the applicant was examined by a cardiologist and an ophthalmologist. No pathological conditions were discovered. On 28 May 2008 he was examined by a urologist in Kyiv City Hospital no. 3. It was concluded that the applicant did not need any specialist treatment.
45. On 30 May 2008, following complaints by the applicant, the Department of Execution of Sentences concluded that the conditions of the applicant’s detention met the current legal requirements. The applicant was detained together with three other people in cell no. 40, which measured 9.9 square metres. The applicant was permitted to shower once a week. In May 2008 there was a disinfection and clean-up of rodent-infested areas. It was noted that the maximum capacity of the SIZO was 2,850 persons; however, on some days there were nearly 3,200 detainees. The applicant received the requisite medical assistance.
46. In a letter of 2 June 2008, the Kyiv City Prosecutor’s Office informed the applicant that he had been detained in cell no. 10 together with sixteen other detainees. The cell measured 49.59 square metres.
47. On 4 June 2008 the applicant, following a letter from the Court, asked the head of the SIZO to provide him with copies of documents from his case file and copies of his medical records.
48. According to the Government, on 17 June 2008 the SIZO sent a copy of the applicant’s medical records to his mother. The Government also submitted a copy of a statement written by the applicant dated 17 October 2008 on which he confirmed having received “copies of medical documents (six pages)”.
49. On 23 July 2009 the applicant’s lawyer, Da., complained to the SIZO administration that the applicant had lost 8-10 kilograms in weight in a two-week period and had severe stomach pains. He requested that the applicant be diagnosed and given appropriate medical treatment. It is unclear whether that complaint was ever addressed.
50. The applicant lodged numerous unsuccessful complaints challenging the decision to institute criminal proceedings against him and requesting that criminal proceedings be instituted against various authorities.
51. By letter of 16 April 2012 the applicant submitted to the Court that police officers and prosecutors had contacted him requesting that he appear as a witness in the criminal proceedings against Kr. and D. The applicant also alleged that police officers had threatened to institute new criminal proceedings against him if he did not withdraw his application to the Court.
52. A visit to Ukraine by a delegation of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“the CPT”) took place from 9 to 21 September 2009, during which the delegation inspected the Kyiv SIZO.
53. The relevant parts of the CPT report read as follows:
“100. ... With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates ...
101. The vast majority of the cells holding male prisoners were seriously overcrowded (for example, 52 prisoners in a cell measuring some 50 m² and containing 40 beds; 32 prisoners in a cell measuring 33 m² and containing 20 beds). ...
Because of the human mass, ventilation was almost non-existent and the cells were very hot and stuffy. The level of hygiene was also highly unsatisfactory: in some cells the delegation saw cockroaches, and prisoners also referred to the presence of mice and rats. The in-cell sanitary installations (a partitioned toilet and sink) were generally in a decrepit state and were clearly not sufficient for the numbers of inmates held in the larger cells.
The negative consequences of the deplorable material conditions described above were compounded by the fact that some prisoners had spent lengthy periods of time at the SIZO .... In the CPT’s view, the combination of negative factors to which a large number of prisoners were subjected at the Kyiv SIZO (overcrowding, appalling material conditions and levels of hygiene, and practically non-existent activity programmes) could easily be described as inhuman and degrading treatment.
...
106. In the light of the above remarks, the CPT recommends that at the Kyiv SIZO:
...
- strenuous efforts be made to decrease the overcrowding and to distribute prisoners more evenly amongst the available accommodation, the objective being to offer a minimum of 4 m² of living space per prisoner;
- measures be taken to ensure, as a matter of priority, access to natural light and adequate ventilation in prisoner accommodation;
- efforts be made to renovate the prisoner accommodation and ensure an adequate level of hygiene;
- prisoners be guaranteed access to adequate quantities of essential personal hygiene products and cleaning products for their cells ...”
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
6-1
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-105446
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MULDER-VAN SCHALKWIJK v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Ms Hendrika Wilhelmina Mulder-van Schalkwijk, is a Netherlands national who was born in 1952 and lives in Utrecht. She was represented before the Court by Ms N.A. de Leon-van den Berg, a lawyer practising in Utrecht.
2
3. The applicant is the widow of the late Mr Marinus Antonius Mulder. Mr Mulder was born in 1954. He died on 11 March 2007 of a gunshot wound.
4. The applicant and her late husband lived in the Ondiep district of Utrecht. At the relevant time, Ondiep was an inner-city area beset by social problems including disorder caused by juvenile street gangs.
5. In the evening of 11 March 2007, towards eight o’clock, the applicant telephoned the police to report a disturbance caused by a group of youths outside the front door of the Mulders’ residence. Mr Mulder and his friend, Mr T.W., both of whom had been drinking heavily, got into a fight with the youths, who would not be persuaded to take themselves elsewhere. They were fought to the ground. Both were hurt. Mr Mulder was bleeding from his nose and from the back of his head. They were freed by the applicant and by Mr T.W.’s daughter, Ms S.W.
6. Mr Mulder then went indoors where the applicant attended to his injuries. Mr Mulder then grabbed a baseball bat which he kept in the hallway of his house and took it back into the street with him. His attackers having left, he smashed the baseball bat against the ground; it broke into two pieces.
7. Mr Mulder was passed by a police officer on a motorcycle. He tried to attract the officer’s attention but the officer did not stop. Two other police officers rode by on motorcycles; both failed to stop when signalled by Mr Mulder and turned the nearest corner. Annoyed at their failure to heed his signals, Mr Mulder then followed them around the corner.
8. One of the two motorcycle-borne police officers who had followed the first was an officer identified in the documents made available to the applicant only as Officer W201 (his real name, where it appeared, being blacked out).
9. Questioned afterwards, Officer W201 stated that he had been stationary but still astride his motorcycle, which he was in the process of parking on its side stand, when he had seen a man with a bloody face and wearing a wild expression approach him holding a large knife above his body in an underhand grip, poised to strike downwards. Caught in an awkward position and fearing that the man would stab him in the neck, where he was protected by neither his protective clothing nor his helmet, Officer W201 had drawn his service pistol and fired at close range.
10. The applicant states that Officer W201 fired entirely without warning in a situation where Mr Mulder posed no immediate threat.
11. The bullet hit Mr Mulder in the chest, passing through his heart and out through his back. Mr Mulder staggered a few paces, dropped the knife and fell to the ground. Other police officers, who had by now arrived on the scene, tried to resuscitate him but were unsuccessful. After the arrival of the ambulance, a few minutes later, the ambulance crew determined that life was extinct and there was nothing more to be done; they covered Mr Mulder’s body with a white sheet and left.
12. The site was immediately cordoned off by the police. It proved necessary to restrain members of the public, some of whom tried to force their way through the cordon while others called the police officers “murderers” and “killers”.
13. At 9.30 p.m. the same evening an officer of the National Police Internal Investigations Department (rijksrecherche) was ordered to take over the investigation from the Utrecht police force. The officer arrived on the scene at 9.55.
14. Technical investigations were carried out on the spot by forensic experts of the Amsterdam-Amstelland police force between 9.30 p.m. that evening and 3.30 a.m. the following morning. This is reflected in an official National Police Internal Investigations Department report.
15. Beginning on 12 March 2007, overall responsibility for the investigation was vested in a public prosecutor (officier van justitie) of the Utrecht Regional Court who had no ties with the police station to which Officer W201 belonged. It was this public prosecutor who ordered officer W201’s identity to be withheld from the public in view of the likelihood of threats to his safety.
16. Beginning on 18 March 2007 the investigation was conducted by the Amsterdam-Amstelland police force, though still under the responsibility of the National Police Internal Investigations Department.
17. On 11 March 2007, at 8.47.44 p.m., the applicant telephoned the police to report a group of rowdy youths outside her front door. Her husband, Mr Mulder aforementioned, and his friend Mr T.W. were trying to persuade the youths to leave; this however was proving difficult because the group was growing bigger as other youths, summoned by telephone, joined them. The police telephonist informed the applicant that there would be a police presence shortly; in the meantime, if things got out of hand, the applicant was to call again using the emergency number.
18. At 8.54.09 p.m. a woman whose name and telephone number are not recorded called the police on the emergency number to report that fighting had broken out. This information was passed on to a police patrol unit.
19. At 8.56.13 p.m. a woman whose name and telephone number are not recorded called the police on the emergency number to report fighting at a slightly different location (just around the corner from the first reported fight). This too was passed on to patrolling police officers.
20. At 8.57.08 p.m. a patrolling police officer, having arrived on the spot, reported that a fight had taken place between two gangs of youths.
21. At 8.57.35 p.m. a police officer reported a man with a knife. Almost immediately afterwards, the police officer asked for an ambulance to be sent immediately as there had been a shot fired.
22. Interviews of witnesses began the day after the fatal shooting. Except as otherwise stated, all witnesses were interviewed by an officer or officers of the National Police Investigation Department; their statements, in so far as relevant to the case before the Court, are summarised below.
23. The first to be interviewed was Officer O., at five minutes past midnight. He had arrived at the same time as Officer W201 on a motorcycle and had witnessed events from close by. He had seen a man with a knife making stabbing movements and run towards Officer W201. He had seen Officer W201 draw his service weapon and fire. He estimated the distance between the two at the time when the shot was fired as one metre. Officer W201 had tried to resuscitate the man but had desisted when he saw someone approach him with a piece of wood. Officer O. had taken Officer W201 across the road and made him sit down on the kerb, and had reported the events to the police station by radio.
24. Mr T.W. was interviewed at 1.55 a.m. He had got into the fight with the youths alongside Mr Mulder. He had seen Mr Mulder leave his house holding a shiny object and pursue the youths around the corner, where the police officers on motorcycles had already gone. He had then heard a bang from around the corner; when he arrived there, Mr Mulder was lying on the ground with a policeman trying to resuscitate him.
25. Police Officer H., interviewed at 1 p.m., stated that he had heard a colleague on the radio call out that there was someone brandishing a knife. He had arrived after the shot had been fired and had tried to resuscitate him.
26. Police Officer W201 was heard as a witness, but cautioned that he was not required to incriminate himself. He stated that he had had to draw his weapon three weeks before, when a burglar who had been caught red-handed had threatened him with a screwdriver and a crowbar; he had managed to resolve the situation without firing by kicking the man to the ground. A few years earlier he had disarmed someone of a cocked pistol with which the latter had just committed a robbery; this had required Officer W201 to threaten to draw his own service weapon.
27. On the evening of 11 March 2007 Police Officer W201 had been patrolling with Police Officer O. on a BMW F650 motorcycle. His service pistol had a round chambered. When trouble was reported in the area where the shooting later took place, he had gone there, followed by Officer O. Arriving there, he had seen a group of people and had heard shouting; he had stopped to investigate. As he was shifting gear into neutral and making to park the motorcycle on its side stand, a man had come running towards him from the right, shouting threats and abuse. After checking that the motorcycle was in neutral gear, Officer W201 had looked up and seen that the man was five or six metres away. The man’s face had been covered in blood, he had been wearing a furious expression and he had brandished a knife with a large blade. Officer W201 had pointed at the man and shouted at him to drop the knife; the man had not reacted but had continued towards Officer W201. Feeling threatened, and holding the motorcycle upright against his left leg, he had drawn his pistol and fired. The man had staggered and fallen, still holding the knife. Officer W201 had then parked the motorcycle on its side stand and had attempted to administer first aid. It was only then that he realised that he had shot the man. There had been a smell of alcohol.
28. Officer W201 remembered little after that. Police colleagues had taken him off to the police station.
29. Officer H., interviewed at 3 p.m., had been the first police motorcyclist to arrive in the area. He had pursued a youth, then returned when he had heard about a knife. He had seen a man lying on the ground. He had seen Officer W201’s motorcycle parked on its side stand. He had helped administer first aid to the man.
30. Officer O. was interviewed a second time at 3.15. He confirmed his earlier statement and that of Officer W201. He added that he too had drawn his service pistol.
31. Officer S., a woman police officer, was questioned at 5.30 p.m. She had arrived after the shot had been fired. She and another woman police officer, Officer Ha., had followed the applicant home to take a statement from her. The applicant had told her about the trouble caused by the youth gangs and about Mr Mulder’s tendency to become aggressive when drunk. Others had been in the house at that time; the atmosphere had turned threatening and the two police officers had had to be escorted out of the house.
32. Officer Ha. was interviewed the following day, 13 March 2007, at 10.10 a.m. She had arrived after the shot had been fired and had helped to cordon off the area. She had met the applicant, who had told her that Mr Mulder had come home drunk and there was a baseball bat missing from the hallway. She had accompanied the applicant home; when other inhabitants of the neighbourhood started to arrive, the atmosphere had turned emotional.
33. Ms V.P., interviewed on 13 March 2007 at 10.15 a.m., was the wife or companion of Mr T.W. She had been told by her daughter, Ms S.W., that Mr T.W. and Mr Mulder had been beaten up and Mr Mulder had been shot.
34. The applicant was interviewed on 13 March 2007 at 2.15 p.m. She stated that the neighbourhood had deteriorated since the decision had been taken to demolish it; longtime residents had left and youth gangs, previously unknown, had come from elsewhere to make trouble.
35. She related how she had called the police to complain about the youths in front of her house. She described the fight between Mr Mulder and told how Mr Mulder had gone after the youths with the baseball bat. She had heard the shot, but not seen it fired. She had been very surprised to learn that Mr Mulder had had a knife; she did not understand and was not aware of a knife being missing from her kitchen.
36. Ms S.W., interviewed on 14 March 2007 at 9.45 a.m., was the daughter of Mr T.W. She confirmed her father’s statement. She described the way in which Mr Mulder had held the knife in an underhanded grip, behind his forearm; she had tried to take it from him but had not been able to.
37. Mr F.D., interviewed on 15 March 2007 at 3.03 p.m., lived across the street from the applicant and Mr Mulder. He had seen Mr Mulder fight the youths, enter his home and come back outside with a piece of wood and he had seen the three police officers pass on motorcycles. He had heard, but not seen, the shot fired; he had heard a woman screaming; and he had seen the police raise a tent.
38. Ms C.B., an eleven-year-old girl, was interviewed on 15 March 2007 by a female vice squad officer belonging to the Flevoland police force, with a male vice squad officer of the Utrecht police force in attendance. She stated that she had followed the events from her bedroom window. She said, without being asked, that the police officer had held a weapon and pointed it at a man who had not been holding a knife. Under questioning, she stated that the police officer had held the weapon in both hands and the man might perhaps have been holding a knife after all. She had not seen the police officer straddling a motorcycle. This interview was transcribed by an officer of the National Police Internal Investigations Department.
39. Ms M.J.M. was interviewed on 16 March 2007 at 10.28 a.m. She lived just across the road from the applicant and Mr Mulder.
She had seen a group of people including two women. One of the women had been wearing a blouse in a red and white floral pattern; Ms M.J.M. had subsequently been told that that was the wife of the later victim, holding a knife. Her sister-in-law, visiting with her husband, had drawn her attention to it. She had heard the shot, but not seen it.
40. Ms J.H., interviewed on 16 March 2007 at 10.40 a.m., lived in the same street as the applicant and Mr Mulder. She had seen two police motorcyclists passing and had heard the shot fired. Very shortly afterwards she had seen a young woman get into a car and drive away. This woman had been wearing something pink or red.
41. Ms M.P., who was interviewed on 16 March 2007 at 2.05 p.m. by the Utrecht police (i.e. not by the National Police Internal Investigation Department), was the Mulders’ next-door neighbour. She had seen Mr Mulder getting beaten up by the youths. She had seen the baseball bat but no knife, and she had not seen the applicant holding anything.
42. Mr M.T., interviewed on 16 March 2007 at 2.39 p.m. also by the Utrecht police, had witnessed a man being beaten up. He had gone home to go to bed. He had later been woken by his wife who had told him that Mr Mulder had been shot dead.
43. Mr M., interviewed on 16 March 2007 at 4.40 p.m. by the Utrecht police, was the companion of Ms M.P. He had witnessed the fight, but had seen neither a baseball bat nor a knife.
44. Ms M.P. was interviewed anew on 22 March 2007 at 3 p.m., this time by an officer of the National Police Internal Investigation Department. She confirmed the statement which she had made earlier to the Utrecht police.
45. Ms M.J.M., who had said earlier that she had seen a woman with a knife, was interviewed again on 28 March 2007 at 1.55 p.m. She again stated that she had seen a woman with a knife, wearing a blouse in a floral design, standing next to another woman whom she could not identify. She had not seen the knife handed over. She drew a picture showing the two women in front of the house inhabited by the applicant and Mr Mulder.
46. Mr P.C.M. was interviewed on 28 March 2007 at 6.52 p.m. He had been visiting his sister Ms M.J.M. He had seen two men and two women, he had seen a man striking the ground with a baseball bat, which a woman had picked up and taken indoors. He had seen a police officer pass on a motorcycle and a man shouting to draw his attention, and he had heard a shot shortly after the police officer had turned the corner.
47. Ms S.H. was interviewed on 28 March 2007 at 7.55 p.m. She was the wife of Mr P.C.M. and sister-in-law of Ms M.J.M. She had seen a woman with a knife during the fighting. She had seen another woman pick up the baseball bat. She had seen the police officers on motorcycles turn the corner and heard the shot.
48. The applicant was interviewed again on 2 may 2007 at 10.10 a.m. She stated that she had got Mr Mulder out of the fight and taken him indoors to clean him up. He had been drunk. He had picked up a baseball bat and taken it out, then broken it on the pavement. She had then picked up the longer piece and disposed of it.
49. The first police officer had ridden past on a motorcycle. Mr Mulder had tried to make him stop and shouted to draw his attention. Two others had ridden past. Mr Mulder had gone after them, followed by the applicant. The applicant had just turned around to close the door when she had heard the shot fired. She had run to the corner. She had seen Mr Mulder lying on the pavement. A police officer had stopped her getting any closer.
50. The applicant had been wearing black trousers and a sweater in black and white stripes. Ms S.W. had been wearing tight trousers and, as she recalled, a brown sweater. She knew nothing of a blouse in a red and white floral print and there had been no other women present.
51. When it was suggested to her that Ms S.W. might have had a knife, she stated that she had not seen any knife that evening. Ms S.W. and Mr T.W. had told her about the knife afterwards.
52. Interviewed again later that day, the applicant stated that she had moved to another dwelling. She was prepared to show her kitchen knives to the police. Photographs of knives were included in the file.
53. Mr T.W. was interviewed anew on 4 May 2007 at 10 a.m. He had seen Mr Mulder holding a baseball bat in his left hand and a knife in his right. He did not remember where the applicant and Ms S.W. had been at that moment. Nor did he recognise the knife. He had been drunk that night.
54. Ms S.W. was interviewed on 9 May 2007 at 11.45 a.m. She and the applicant had intervened in the fight. After fighting had stopped, she had seen Mr Mulder holding a baseball bat. He had gone round the corner. She thought that the applicant might have gone back indoors at that point. She had seen a police officer pass on a motorcycle and had tried to wave him down. At that point she had seen Mr Mulder holding a knife. She had tried unsuccessfully to take it from him. He had been holding it by the grip, blade upwards, inside his lower arm. He had been overwrought. She did not know where the knife had come from; maybe from one of the youths. Nor did she understand how Officer W201 could have felt threatened; she thought the distance between him and Mr Mulder had been approximately five metres, but she admitted that she had not seen the shot fired.
55. Officer E.V. had submitted a written statement (see below). Interviewed on 23 May 2007 at 3.30 p.m., he stated that he had seen Mr Mulder get drunk and become aggressive in a football club canteen.
56. Ms J.H. was interviewed a second time on 7 June 2007 at 1.30 p.m. She stated that she had seen a woman aged between 22 and 27, wearing grey and pink, run after the youths, get into a car and drive away at high speed.
57. Ms B.C.Z. was interviewed on 12 June 2007 at 1.45 p.m. She had been visiting her friend Ms J.H. She had heard two shots fired. She and Ms J.H. had gone to the window. They had seen a woman leaving the house of the applicant and Mr Mulder; the woman had got into a car and driven off, then returned later with a man in a different car. Together they had entered the applicant’s home.
58. Police Officer W201 was interviewed by the investigating judge (rechter-commissaris) on 27 June 2007. He confirmed what he had said earlier. He was still very upset by what had happened.
59. Officer B.H. submitted a written statement, dated 15 March 2007, of the events as he had witnessed them. He had been patrolling in a police car when he was informed of the disturbance caused by the youths. He had heard shouts about a knife on the police radio. Having arrived, he learned that a man had been shot; the man had been breathing heavily. He had tried to resuscitate the man. When the ambulance arrived, it had driven over the knife. The man having died in the meantime, the ambulance crew had covered the body with a white sheet and left.
60. Officer B.H. had later gone into the applicant’s home; he and woman police officers S. and Ha. had been able to leave only with difficulty. They had been addressed as “killers” by persons present in the house.
61. Officer E.V. submitted a written statement dated 16 March 2007. He had known Mr Mulder personally. Mr Mulder had told him about the nuisance caused by the youth gangs; Officer E.V. had advised him to call the police or mobilise the neighbourhood to involve the police in the matter. Mr Mulder had subsequently told him that the annoyance caused by the youth gangs had decreased as a result.
62. Officer He. submitted a written statement also dated 16 March 2007. He had been the emergency aid co-ordinator at the time. He had been patrolling in a car when he had heard shouting about a knife on the radio, and later that there had been a shooting incident. Arriving at the scene of the incident, he had seen a man lying in the recovery position and a motorcycle parked next to him. He had been directed towards Officer W201, who had been seated on the kerb across the street and obviously in great distress. He had had Office W201 taken to the police station and had had the area cordoned off in order to preserve it for forensic investigation. He had had Officer O. removed to a different police station from that where Officer W201 had been taken, so that he could be de-briefed. When the situation threatened to get out of hand – he mentioned a professional criminal who had telephoned his henchmen – he had summoned up reinforcements.
63. Officer Ha. submitted a written statement dated 19 March 2007. It relates how she and her woman colleague S. had accompanied the applicant to her home. The applicant had told them that she had called the police in anticipation of her husband’s return, expecting him to be drunk, and had described the fight with the youths. Mr Mulder had gone back into the house, after which the baseball bat had been gone. She had heard, but not seen, the shot. When other people had crammed into the applicant’s home, the atmosphere had turned aggressive.
64. Skin and clothing samples taken from Mr Mulder’s body were tested by a forensic expert of the Amsterdam-Amstelland police force for the presence and concentration of gunshot residue. In a report dated 7 May 2007 it was determined that the fatal shot had been fired from a distance of between half a metre and one metre and a half.
65. Officer W201’s service weapon and the spent cartridge and bullet found at the scene of the shooting incident were examined by a forensic expert of the Amsterdam-Amstelland police force. A report dated 9 May 2007 concluded “with virtual certainty” (met aan zekerheid grenzende waarschijnlijkheid) that the cartridge and bullet had been fired using that particular weapon.
66. Mr Mulder’s body was subjected to autopsy at the Netherlands Forensic Institute (Nederlands Forensisch Instituut; “NFI”) on 13 March 2007. Following the autopsy, the body was released to Mr Mulder’s next-of-kin for disposal.
67. Samples of body tissue and fluids were taken and examined by a toxicologist. In the resulting report, dated 29 May 2007, it is stated that alcohol was found in Mr Mulder’s femoral blood, in a concentration of 2.25 milligrammes per millilitre, and in his urine, in a concentration of 2.75 milligrammes per millilitre. These amounts were quite enough to have influenced Mr Mulder’s consciousness and behaviour.
68. The knife found on the ground close to Mr Mulder’s body was tested at the NFI. In a report dated 20 June 2007 it was found to bear DNA matching that of Mr Mulder. There was a chance of 1 in 200 million that the DNA was someone else’s, and no match had been found among the DNA profiles stored in the national database.
69. Photographs were made of the scene of the incident, both before and after Mr Mulder’s body was removed; some show Mr Mulder’s body, both clothed and naked. Others identify objects such as the spent cartridge, the bullets and blood spots. The investigation file also contained detailed street plans showing the location, in so far as they can be determined, of vehicles and witnesses at relevant times.
70. On 19 April 2007 the National Police Internal Investigations Department officer conducting the investigation sought permission to tap fixed-line and mobile telephones used by witnesses to the shooting incident, including the applicant, Mr T.W. and Ms S.W., in the hope that information thus obtained might clarify, in particular, the identity of the woman whom certain other witnesses had seen holding a knife.
71. A preliminary judicial investigation (gerechtelijk vooronderzoek) was opened on 23 April 2007.
72. On 16 May 2007 the same officer requested the termination of the measures, since they had yielded no usable information.
73. The coroner (lijkschouwer) arrived on 12 March 2007 at 1 a.m. and examined Mr Mulder’s body. He found that the likely cause of death was a gunshot wound caused by a projectile passing through the body.
74. Other official reports summarise interviews by telephone with other witnesses who had known Mr Mulder in life and with the ambulance crew.
75. One report, dated 22 May 2007, relates that further attempts were made to interview Ms S.W. anew but that these had been abandoned after they had proved unfruitful.
76. On 11 July 2007 in the early afternoon officers of the National Police Internal Investigations Department determined the lines of sight from the window of Ms C.B.’s bedroom (see paragraph 38 above).
77. It is also recorded in official reports that the precise trajectory of the bullet could not be determined for lack of sufficient reference points, and that a reconstruction of the incident took place on 1 November 2007 in a shed outside Utrecht.
78. On 24 January 2008 the Advisory Board on Police Use of Firearms (Adviescommissie Politiëel Vuurwapengebruik), informed of the public prosecutor’s provisional intention not to prosecute, issued an advisory opinion. It stated, among other things, that Ms C.B.’s statement was unusable, inter alia because she had volunteered the information that she had not seen any knife without waiting to be asked. Conversely, the statements of Officer W201 and Officer O. were considered plausible.
79. The Advisory Board considered that since Officer W201 had not warned Mr Mulder that he might fire, his use of his firearm had not conformed with official instructions, but it had constituted legitimate self-defence in the circumstances. It was noted in this connection that police officers were expected to resist violence rather than evade it; seen in this light, and even assuming that flight had been an option open to Officer W201, it was completely understandable that Officer W201 had first attempted to persuade Mr Mulder to desist and drop the knife rather than flee.
80. The public prosecutor’s intention not to prosecute Officer W201 was thus endorsed.
81. On 6 March 2008 the public prosecutor wrote to the applicant’s counsel informing him of the decision not to prosecute Officer W201.
82. On 16 May 2008 the applicant, through her counsel, lodged a written complaint against this decision with the Amsterdam Court of Appeal. She alleged that Ms C.B.’s statement (paragraph 38 above) cast doubt on the version of events according to which officer W201 had been constrained in his actions through standing astride his motorcycle. Be that as it might, Officer W201 had placed himself in an awkward position through failing to maintain sufficient distance from Mr Mulder despite the threat posed by the latter. The net result of not prosecuting Officer W201 was moreover to deny the applicant the opportunity to be heard as a victim and claim damages as an injured party.
83. On 20 November 2008, following a hearing in camera during which Officer W201 was heard in the absence of the applicant or her counsel, the Court of Appeal gave a decision declaring the complaint unfounded. It was sufficiently established that Officer W201 had acted in legitimate self-defence; the investigation had been extensive, detailed and independent.
84. The standard service firearm issued to the Netherlands police is a version of the German-made Walther P5 double-action semi-automatic pistol. It fires 9x19 mm (also known as 9 mm parabellum or 9 mm Luger) cartridge rounds.
85. The weapon has a number of safety features, including an internal firing-pin retaining mechanism which prevents the firing-pin from striking the primer of the cartridge unless the trigger is pressed all the way through. This enables the weapon to be carried safely with a round chambered and ready for immediate use while preventing its being fired accidentally.
86. Standing advice to police officers is to carry the weapon with a round chambered so as to have it ready for immediate use in case of need.
87. The relevant domestic law is set out in Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 249-267, ECHR 2007...


ITEMID: 001-23857
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ROZSA v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Stefan Rozsa, is a German national who was born in 1945 and lives in St. Augustin. He was represented before the Court by Mr F. Kloevekorn, a lawyer practising in Bonn. The respondent Government were represented by their agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 February 1996 the applicant crossed the border between Hungary and Austria. A considerable amount of cigarettes which he had failed to declare to the customs authorities were found in his car. The cigarettes were seized and criminal proceedings were opened against him.
According to the Government, the applicant, when he was apprehended, was cautioned in writing that he could request a hearing of his case by a trial board (Spruchsenat). In case of simplified proceedings the request would have to be made in the objection against the provisional penal order (Strafverfügung), in other cases it could be made at any time before the start of the oral hearing.
On 13 March 1996 a provisional penal order was issued, finding the applicant guilty of attempted smuggling and attempted breach of the State's tobacco monopoly and imposing a fine on him. The order contained information stating that the applicant could file an objection against it and that he could request the further proceedings including the hearing to be held by a trial board.
The applicant lodged an objection (Einspruch). He did not request that his case be heard by a trial board.
On 4 December 1997 the Vienna Customs Office (Hauptzollamt), as tax offences authority of first instance, held a hearing.
On 26 February 1998 the Vienna Customs Office issued a penal order (Straferkenntnis), finding the applicant guilty of attempted smuggling and of attempted breach of the State's tobacco monopoly. It imposed a fine of 28,000 Austrian schillings (ATS) on him with twenty-eight days' imprisonment in default. Further, it ordered the forfeiture of the cigarettes. The penal order informed the applicant of his right to appeal within a month from its service. Further, it stated that the appeal would be examined by the Finance Directorate for Vienna, Lower Austria and Burgenland (Finanzlandesdirektion) as tax offences authority of second instance. If the appellant so requested, the hearing of the appeal would be held and the decision be taken by the Regional Finance Directorate's appeals board (Berufungssenat).
On 25 April 1998 the applicant appealed. However, he did not request that the appeal be heard by the appeals board.
On 18 September 2000 the Regional Finance Directorate, as tax offences authority of second instance, dismissed the applicant's appeal.
On 19 October 2000 the applicant, represented by counsel, requested the Constitutional Court (Verfassungsgerichtshof) to grant him legal aid for the purpose of filing a complaint against the Regional Finance Directorate's decision. As grounds for the complaint he submitted that none of the authorities which had dealt with his case qualified as a tribunal within the meaning of Article 6 of the Convention, as both, the Customs Office and the Regional Finance Directorate, were purely administrative authorities. Moreover, the criminal proceedings against him had lasted unreasonably long.
On 23 October 2000 the Constitutional Court requested the applicant to supplement his legal aid request which the applicant did on 20 November 2000.
On 18 December 2000 the President of the Constitutional Court dismissed the applicant's request for legal aid on the ground that the complaint lacked prospects of success. He noted that there was no indication that the decision at issue was based on an unlawful provision or that the application of the law in the present case raised an issue of constitutional law. This decision was served on the applicant's counsel on 28 December 2000. The letter accompanying it informed the applicant that he remained free to lodge a complaint with the Constitutional Court within six weeks. If he wished to do so he had to be represented by counsel of his own choosing.
The applicant did not lodge a complaint with the Constitutional Court.
Under Article 130 of the Federal Constitution (Bundes-verfassungsgesetz) the Administrative Court decides, inter alia, on applications (Beschwerden) in which it is alleged that the administrative authorities have breached their duty to decide.
Article 132 of the Federal Constitution, in its relevant part, reads as follows:
“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.”
Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities' duty to decide. Its relevant part reads as follows:
“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged.
(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party's written request. ...”
In proceedings under the Tax Offences Act an application for transfer of jurisdiction to the superior authority is excluded.
Section 27 of the Administrative Court Act (Verwaltungsgerichtshof-gesetz) relating to the application against the administration's failure to decide read as follows:
“An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration's failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months. ...”
According to the Constitutional Court's judgment of 30 September 1989 (published in the official collection of that court's decisions, VfSlg 12167/89), the Administrative Court may receive applications against the administration's failure to decide under Article 132 of the Federal Constitution, taken in conjunction with section 27 of the Administrative Court Act, also where an authority of first instance has failed to give a decision within the statutory six-month time-limit, provided that no other remedy (such as a request for a transfer of jurisdiction) lies against the failure to decide (see Basic v. Austria, no. 29800/96, § 27, ECHR 2001-I).
The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated in the Tax Offences Act (Finanzstrafgesetz). The relevant provisions, as in force at the material time, contained the following rules.
Pursuant to section 58 § 1 (a) of the Tax Offences Act, the Customs Office, as a tax offences authority of first instance, is competent to conduct the proceedings concerning inter alia smuggling or breach of monopoly regulations. According to section 58 § 2 a trial board shall hold the hearing and give the decision where the relevant value exceeds a certain amount. As to other offences, it is up to the defendant to request a decision by the trial board. In case of so-called simplified proceedings such a request shall be made in the objection against the provisional penal order.
Pursuant to section 62 § 1 an appeal will be decided upon by the Finance Directorate as tax offences authority of second instance. According to section 62 § 2 an appeals board shall hold the hearing and give the decision on the appeal, if it is directed against the decision of a trial board or if the appellant so requests.
Section 66 regulates the organisation of the trial boards and the appeals boards. Its paragraph 1 provides that their members are not bound by any instructions. According to its paragraph 2, the trial boards consist of three members: a judge as chairperson, one member of the senior service of the tax authorities and one lay member. The appeals boards consist of four members: a judge as chairperson, one member of the senior service of the tax authorities and two lay members.
Pursuant to section 67 members of the above boards are appointed by the Federal President upon nomination by the Federal Government. Their term of office is six years.
Section 68 provides that each Regional Finance Directorate has to fix, for one year in advance, the number of trial boards and appeals boards, their chairpersons and members and the sequence in which members have to step in if a member is unable to sit. Each Regional Finance Directorate also has to allocate the business of the trial boards and the appeals boards for one year in advance.
Meanwhile, on 1 January 2003, a reform encompassing the appeal procedures in all tax matters has entered into force BGBl. (Federal Official Gazette) no. 97/2000. A new body, the Independent Finance Panel (Unabhängiger Finanzsenat) has been created to hear appeals. As to proceedings relating to tax offences, the provisions on trial boards have not changed, whereas the appeals board is now part of the Independent Finance Panel and its composition has changed: it consists of one of the Presidents of the Independent Finance Panel, one full-time member of the latter and two lay members. The term of office of the President and the other full-time members of the Independent Finance Panel is indefinite.


ITEMID: 001-88352
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PAUNOIU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1961 and lives in Oreovica (Serbia).
5. On 10 July 1995 the applicant was injured in a car accident caused by M.I. She claimed damages in criminal proceedings that were instituted against M.I.
6. In a final decision of 19 November 1998, the Piteşti Court of Appeal (“the Court of Appeal”) made awards in respect of pecuniary and non-pecuniary damage to both the applicant and her husband. It also ordered M.I. to pay a monthly amount to the applicant until her state of dependency ceased. On 7 July and 15 December 2000 the quantum of damages and the level of the monthly instalments to the applicant were brought up to date.
7. On 15 November 2002 an application by the Prosecutor General at the Supreme Court of Justice to have the judgments in the criminal proceedings quashed (recurs în anulare) was granted by the Supreme Court of Justice, which therefore set aside the award for damage in respect of the applicant’s husband.
8. On 21 September 1999 the applicant and her husband brought an action seeking the division of property that was jointly owned by M.I. and his wife. They alleged that the community of property between spouses had hindered the enforcement of the judgment in their favour, which concerned only M.I.
9. On 7 November 2000 the Piteşti Court of First Instance (“the Court of First Instance”) upheld their claims in part, severed the joint tenancy between M.I. and his wife, and allocated their apartment to M.I.
10. On 19 April 2001 the Argeş Regional Court (“the Regional Court”) struck out an appeal by M.I. and his wife because they had failed to pay the prescribed fee.
11. On 4 September 2001 the Court of Appeal by a final decision upheld an appeal by M.I. and his wife and quashed the judgment of the Regional Court, sending the case back for a fresh examination of their appeal. It found that M.I. and his wife had not been informed of the obligation to pay the fee or of the amount due.
12. After a retrial, on 29 April 2002 the Regional Court rejected the appeal of M.I. and her wife as groundless.
13. On 16 February 2004 the Court of Appeal by a final decision allowed a subsequent appeal by M.I.’s wife, on the ground that the courts had not examined her counterclaim, and quashed the judgment of the Regional Court. It retained the case for further consideration. On 22 November 2004 the same court decided that the case was within the competence of the Regional Court.
14. On 15 April 2005 the Regional Court upheld the appeal of M.I.’s wife and varied the judgment of 7 November 2000 as follows: it allowed the applicant’s claims but rejected her husband’s, it severed the joint tenancy between M.I. and his wife, and it allocated their apartment to M.I. to enable the applicant to recover her financial claims. The judgment was enforceable.
15. On 31 October 2005 the Court of Appeal upheld that judgment in a final decision.
16. Between 2001 and 2005 the applicant requested seven different bailiffs to enforce the judgment in her favour. The bailiffs took various steps, including requesting expert reports and putting M.I.’s apartment on sale by public auction.
17. On 12 June 2001 the Court of First Instance requested the Inspectorate of Police in Argeş to assign a police officer to accompany the bailiff to M.I.’s apartment. On 20 December 2002 it ordered M.I. to pay the judgment debt to the applicant, and stipulated that his apartment would be put on sale if he did not.
18. On 19 December 2005 the bailiff recorded that the applicant had received part of the amount due and had requested continued execution for the remainder.
19. On 29 December 2005 M.I. sold the apartment. The applicant and her husband lodged a civil action seeking a declaration that the sale contract was null and void on the ground that M.I. had attempted to become insolvent. On 19 October 2007 the Regional Court by a final decision dismissed the action as groundless.
20. On 10 November 2006 the applicant, through the bailiff, requested the court to validate a seizure of property. On 19 January 2007 the Court of First Instance rejected the application as being statute-barred.
VIOLATED_ARTICLES: 6