ITEMID: 001-5453
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: FINDLATER v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is engaged in the retail sale of handguns in Glasgow. He paid £2,600 for the goodwill of the business in 1993. The consequences of the 1997 Firearm Amendment legislation - the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”; see below) - are that the applicant is unable to derive handgun-related income from his business, and that the value of the goodwill and assets of the business has depreciated. The applicant received compensation pursuant to the legislative schemes in respect of his stock of handguns. No compensation is payable for the reduction in value of the applicant’s business.
By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...
18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.


ITEMID: 001-59853
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF DEVLIN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Nicolas Bratza
TEXT: 8. In June 1991, the applicant applied for a position as an administrative assistant with the Northern Ireland Civil Service, the lowest grade in the non-industrial civil service. He passed a written test but was not invited for interview at that stage. In 1992, the applicant was invited for interview, and was informed on 15 September 1992 that he was being recommended for appointment “subject to the satisfactory outcome of various pre-appointment enquiries”. He was informed on 21 October 1992 that he had been unsuccessful. No reasons were given.
9. The applicant believed that the decision not to appoint him must have been taken on grounds of his religious beliefs – he is a Catholic and a member of an association known as the Irish National Foresters – and not for any legitimate security ground. A number of his relatives are involved in public service in various capacities, and neither he nor any member of his family had ever been involved in any form of criminal activity. He had some unpleasant encounters with the police, but there was no question of proceedings against him. On one occasion, the applicant lodged a complaint about his treatment by the police, which was resolved when the applicant was informed that the officers involved would be “spoken to”. According to the applicant, a further incident with the police occurred about a week after he was informed that his job application had been unsuccessful: a police officer at a vehicle checkpoint in Cookstown referred to the unsuccessful job application.
10. The applicant made an application, through the Fair Employment Commission, to the Fair Employment Tribunal, alleging discrimination contrary to the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”). The Northern Ireland Civil Service affirmed that the refusal had been made on security grounds, and claimed that the 1976 Act did not therefore apply.
11. On 21 September 1993, the Secretary of State for Northern Ireland issued a certificate under section 42 (2) of the 1976 Act, certifying that the refusal of employment to the applicant was an act “done for the purpose of safeguarding national security and of protecting public safety”.
12. The applicant attempted to challenge the Secretary of State’s decision to issue the section 42 certificate by way of an application for judicial review in the High Court. Leave to apply for judicial review was granted on 4 January 1994.
13. In the affidavits sworn on behalf of the Secretary of State, it was stated that, in accordance with the usual procedure, the security questionnaire completed by the applicant had been forwarded to the Royal Ulster Constabulary (“the RUC”), which had provided security information relating to the applicant. This information was such that the assessing officer in the Department’s security branch had recommended that the applicant was unsuitable for employment in the Northern Ireland Civil Service.
14. After an unsuccessful application for discovery, the application for judicial review was dismissed by Mr Justice Kerr in the High Court on 6 September 1995. After referring, inter alia, to the judgment of Mr Justice McCollum of 3 December 1991 in the case of Tinnelly & Sons Limited and Others and McElduff and Others (judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1633), he considered that:
“the effect of section 42 (1) as enacted is to remove entirely from the sphere of Fair Employment legislation acts done for the purpose of safeguarding national security and protecting public order or safety. ... [There] may be occasions when the Secretary of State will choose not to invoke his powers under section 42 (2) and the Tribunal may investigate whether the act complained of was done for all or any of the purposes specified under Section 42 (1). Where a certificate has been validly issued under Section 42 (2), however, I do not believe that the Tribunal retains any role in the hearing or adjudication of the complaint.”
15. By virtue of the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”), it is unlawful for an employer to discriminate against a person on grounds of religious belief or political opinion in relation to employment in Northern Ireland, inter alia, by dismissing him or subjecting him to any other detriment.
16. By virtue of section 24 of the 1976 Act (as amended by the Fair Employment (Northern Ireland) Act 1989), a complaint of unlawful discrimination may be presented to the Fair Employment Tribunal, which is established by statute to investigate complaints of unlawful discrimination on grounds of religious belief or political opinion.
17. Section 42 of the 1976 Act (as amended) provides as follows:
“(1) The Fair Employment (Northern Ireland) Acts shall not apply to an act done for the purpose of safeguarding national security or protecting public safety or public order.
(2) A certificate signed by, or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for the purpose mentioned in sub-section (1) shall be conclusive evidence that it was done for that purpose.
(3) A document purporting to be a document such as is mentioned in sub-section (2) shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate.”
18. The Northern Ireland Constitution Act 1973 (as amended by the 1976 Act) provides as follows in section 19:
“(1) Subject to sub-section (4) below it shall be unlawful for a Minister of the Crown ... and any authority or body listed ... in ... Schedule 1 to the Parliamentary Commissioner Act (Northern Ireland) 1969 ... to discriminate, or aid, induce or incite another to discriminate, in the discharge of functions relating to Northern Ireland against any person or class of persons on the grounds of religious belief or political opinion. ...
(4) This section does not apply to any act or omission which is unlawful by virtue of the Fair Employment (Northern Ireland) Act 1976 or would be unlawful but for some exception made by virtue of Part V of that Act.”
19. Schedule 1 to the Parliamentary Commissioner Act (Northern Ireland) 1969 lists the departments and authorities subject to investigation by the Parliamentary Commissioner. The list includes the Northern Ireland Civil Service Commission and all Government Departments, including the Department of Finance and Personnel. However, section 42 of the 1976 Act falls within Part V of that Act. Accordingly, where a section 42 certificate has been issued (claiming an act was done for the purpose of safeguarding national security or protecting public safety or public order), section 19(1) of the Northern Ireland Constitution Act 1973 (as amended) has no effect.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103333
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SANDOR TIBOR HORVATH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Sándor Tibor Horváth, is a Hungarian national who was born in 1942 and lives in Budapest. He was represented before the Court by Mr G. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 March 2007 the applicant, at the material time a member and activist of the Workers’ Party (Munkáspárt), a registered left-wing political party, was convicted by the Pest Central District Court under section 269/B (1) of the Criminal Code of the offence of having worn a totalitarian symbol in public. The court observed that the applicant had worn a five-pointed red star and a sickle-and-hammer logo on several occasions of public appearance. The court refrained from imposing a sentence for a probationary period of one year. On 10 June 2008 the Budapest Regional Court upheld this judgment.
On 8 July 2008 the European Court of Human Rights adopted a judgment in a case introduced by another individual on account of a conviction similar in nature (Vajnai v. Hungary, no. 33629/06, 8 July 2008). The Court held that prosecution for having worn a red star amounted to a violation of that applicant’s freedom of expression enshrined in Article 10 of the Convention. In pursuit of this judgment, on 10 March 2009 the Supreme Court’s review bench acquitted the defendant in that case holding that his incriminated act no longer represented danger to society.
Act no. IV of 1978 on the Criminal Code provides:
“(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment.
(2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.”
“(1) Any person who (a) disseminates, (b) uses in public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red star, or a symbol depicting any of them, commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine.
(2) The conduct prescribed under paragraph (1) is not punishable if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events.
(3) Paragraphs (1) and (2) do not apply to the insignia of States which are in force.”
Act No. XIX of 1998 on Criminal Procedure provides:
“(1) [... R]eview proceedings may be initiated ... if ... (a) a person ... was convicted ... in breach of the substantive provisions of criminal law ...”
“(1) The rules of third-instance proceedings (Chapter XV) shall be applicable to the conduct of the review proceedings ...”
“(1) The third-instance court may reverse the second-instance court’s judgment and adopt a lawful decision if the second-instance court gave its judgment in breach of the [substantive] provisions of criminal law ... provided that the findings of fact are well-founded or their deficiency could be rectified before the third-instance court.”
In case no. Bhar.II.2/2010/4 (judgment of 5 March 2010) which concerned the prosecution of a Mr F. for having displayed a red star, the Pécs Court of Appeal examined in detail whether or not Mr F.’s conduct represented any danger to society – an element inherent in the notion of a crime within the meaning of section 10 of the Criminal Code (see above) – and this in particular in the face of the Vajnai judgment cited above.


ITEMID: 001-80593
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BÜLBÜL v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 3. The applicant was born in 1963 and lives in Ankara. At the time of the events, he was the provincial leader of HADEP (Halkın Demokrasi Partisi - People's Democracy Party) in Ankara.
4. On 18 November 1998 the military judge sitting on the bench of the Ankara State Security Court ordered the applicant's detention in absentia. According to the detention order, the applicant was suspected of aiding and abetting an illegal organisation, the PKK (the Kurdistan Workers' Party).
5. On 19 November 1998 police officers conducted a search in the Ankara office of HADEP and the applicant was taken into police custody. In the search and arrest protocol, which was signed by the applicant, it was explained that the applicant was taken into custody pursuant to the detention order issued the day before by the Ankara State Security Court. Following his arrest, the applicant was brought before the military judge of the Ankara State Security Court and, on his order, was placed in detention on remand.
6. On 26 November 1998 the applicant filed an appeal against the detention order and requested his release.
7. On 27 November 1998, having regard to the nature of the offence and the state of the evidence, the Ankara State Security Court -composed of three judges including a military judge- dismissed the applicant's appeal.
8. On 8 December 1998 the public prosecutor at the Ankara State Security Court filed a bill of indictment against the applicant, charging him with aiding and abetting the PKK under Article 169 of the Criminal Code.
9. On 12 July 1999 the applicant was released pending trial.
10. On 24 February 2000 the Ankara State Security Court convicted the applicant of aiding and abetting the PKK and sentenced him to three years and nine months' imprisonment.
11. While the proceedings were pending before the Court of Cassation, on 21 December 2000 new legislation (Law No. 4616), which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999, came into force. Accordingly, on 23 January 2001 the Court of Cassation quashed the judgment of the first-instance court.
12. On 2 May 2001 the Ankara State Security Court suspended the proceedings against the applicant. According to Law No. 4616, these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within five years of the court's decision to suspend the proceedings.
13. It appears from the documents in the file that no charges have been brought against the applicant during the period of suspension.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-77901
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HEGYESI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr János Hegyesi, is a Hungarian national who was born in 1975 and lives in Budapest. He is represented before the Court by Mr G. Magyar, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 2002 criminal proceedings were instituted against the applicant and his accomplices. They were charged with lethal bodily assault. After the Budapest Public Prosecutor’s Office had preferred a bill of indictment in the case, at 8.45 a.m. on 6 February 2004 the Budapest Regional Court held a hearing and prolonged the applicant’s pre-trial detention until the delivery of the first-instance decision on the merits. The applicant’s lawyer appealed.
At 2 p.m. on the same day the court held another hearing (a ‘session on bail’ (óvadéki ülés)) in the presence of inter alia the applicant, his lawyer and the public prosecutor, concerning the applicant’s request for release on bail with a surety of 2 million Hungarian forints. In its decision rejecting the request, the Regional Court stated that it had held a ‘session on bail’ and found that the applicant’s appearance for trial could only be secured if his detention was maintained. The applicant and his lawyer immediately appealed.
In the subsequent reasoning of his appeal to the Budapest Court of Appeal, the applicant’s lawyer argued that the applicant’s detention was unjustified and that the request for release on bail had been dismissed in unlawful proceedings. He alleged that the Regional Court had not actually held a session on bail as required by section 147(3) of the New Code of Criminal Procedure, or if it had done so, it had failed to hear the prosecutor, the defendant, the lawyer or the person proposing the bail.
On 9 March 2004 the Court of Appeal dismissed the applicant’s appeal, both in respect of the prolongation of the detention and the dismissal of the request for release on bail.
Section 147(3) of Act XIX of 1998 on the New Code of Criminal Procedure provides:
“... The court shall decide on the proposed bail and its acceptance during a session at which it shall hear the public prosecutor, the defendant, the defence attorney and the person who has proposed to put up the bail surety. If, despite notification, the defence attorney fails to appear for the session, the court may hold the session in his absence.”


ITEMID: 001-113299
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF NAJAFLI v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1967 and lives in Baku.
6. The applicant was a journalist and the editor-in-chief of a newspaper named Boz Qurd.
7. On 9 October 2005 a number of opposition parties held an unauthorised demonstration in Baku. The applicant, together with five other journalists, was present at the demonstration to report on the events. The applicant was not wearing a special blue vest identifying him as a journalist, but he was wearing a journalist badge on his chest.
8. During the dispersal of the demonstration by the police, the applicant and his colleagues were beaten up and received various injuries. According to the applicant, he told the police officers that he was a journalist and asked them to stop. The applicant was hit on the head and lost consciousness following his beating.
9. The applicant was taken to hospital the same day. On 26 October 2005 he received a medical certificate with a diagnosis of closed cranio-cerebral trauma, concussion and soft-tissue damage to the crown of the head.
10. On 10 July 2006 the applicant obtained a medical certificate from Baku City Polyclinic no. 19. That certificate indicated that the applicant had been registered as a patient diagnosed with closed cranio-cerebral trauma and concussion, and that his condition required long-term treatment.
11. The six journalists who had been beaten up on 9 October 2005 lodged a joint criminal complaint. On 9 November 2005 the Sabail District Police Department instituted criminal proceedings under Article 132 (beating) of the Criminal Code. On 22 December 2005 the case was re-qualified under Article 163 (obstruction of the lawful professional activity of journalists) of the Criminal Code and transferred to the Sabail District Prosecutor’s Office.
12. On 12 January 2006 the applicant was questioned by the investigator in charge of the case. The applicant stated that he had been beaten with truncheons by a group of police officers while he was observing the demonstration as a journalist. The applicant also stated that he did not know the police officers who had hit him, although he did know the police officers who were in charge of the police unit. The applicant submitted a photo of an officer (A.V.) who was the head of the Riot Police Regiment of the Baku Police Office. The applicant’s version of the events was also confirmed by statements from two other journalists, E.M. and N.A., who were present at the relevant time at the place of the incident.
13. According to the Government, on 28 January 2006 the investigator ordered a forensic examination of the applicant, but the applicant did not appear for this examination. No copy of any decision in this respect was submitted by the Government to the Court. The applicant alleged that he had not been informed of this decision by the investigator.
14. By a letter of 2 February 2006, the investigator in charge of the case requested the Sabail District Police Department to identify the police officers who had hit the applicant. In reply to the investigator’s letter, on 25 February 2006 the Head of the Sabail District Police Department wrote that they had not been able to identify the relevant police officers, however they would continue to take measures in this respect and inform the investigator of any result.
15. On 1 March 2006 the investigator heard A.V., who denied involvement in the applicant’s beating. A.V. stated that neither he nor the police officers under his supervision had done anything unlawful to the applicant in his presence.
16. On 9 March 2006 the Sabail District Prosecutor’s Office investigator issued a decision suspending the criminal proceedings until the perpetrators of the beating had been identified. The investigator relied on the fact that the police officers allegedly involved in the applicant’s beating had not been identified. As to A.V.’s alleged involvement, the investigator relied on A.V.’s statements, noting that the latter had not carried out any unlawful actions against the applicant.
17. The applicant was not provided with any information concerning the criminal investigation until May 2006. On 9 May 2006 the applicant contacted the Sabail District Prosecutor’s Office investigator and inquired about the state of the proceedings. The investigator informed him that the criminal investigation had been suspended on 9 March 2006, but did not provide the applicant with a copy of the decision suspending the investigation.
18. On 12 May 2006 the applicant lodged a complaint with the Sabail District Court. He complained that the investigator had failed to provide him with a copy of the decision suspending the investigation, thus making it impossible for him to lodge a proper complaint against it. He also asked the court to quash this decision and remit the case for investigation. He insisted, in particular, that the group of police officers who had hit him had been under A.V.’s command, and that the photo of A.V. taken at the time of the incident had been submitted to the police.
19. On 26 May 2006 the Sabail District Court dismissed the applicant’s complaint, finding that the decision suspending the investigation had been lawful and had been sent to the applicant on 9 March 2006. The decision was silent as to A.V. and his alleged role in the applicant’s beating. It appears that the court did not hear any witness at the hearing.
20. On 1 June 2006 the applicant lodged an appeal reiterating his previous complaints. In particular, he argued that the suspension of the investigation, for which the reason given was that it was impossible to identify the policemen who had beaten him, was wrong, and that the investigation authorities knew who the perpetrators were. In this connection, he noted that he and other journalists had specifically identified A.V., who was present at the scene of the incident at the relevant time.
21. On 13 June 2006 the Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s decision of 26 May 2006.
22. On 9 November 2006 the applicant lodged a separate civil action against the Ministry of Internal Affairs, asking for compensation for pecuniary and non-pecuniary damage caused by his beating on 9 October 2005. He relied on Articles 3, 10 and 11 of the Convention.
23. On 20 November 2006 the Sabail District Court refused to admit the action for non-compliance with the formal requirements. The court held that the applicant had failed, in particular, to provide a forensic report showing the cause of the injuries and had not supplied a copy of any document showing that a police officer had been found responsible for the applicant’s beating. The court also noted that the applicant had failed to identify actual individuals, rather than the Ministry of Internal Affairs in general, as defendants.
24. On 6 December 2006 the applicant appealed against the first-instance court’s inadmissibility decision, reiterating his previous complaints.
25. On 26 January 2007 the Court of Appeal upheld the Sabail District Court’s decision of 20 November 2006.
26. On 14 June 2007 the Supreme Court upheld the decisions of the lower courts.
27. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows:
“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”
28. Police officers may use special equipment when, inter alia, it is considered that a person who is behaving dangerously may cause damage to himself or people around him (Article 26.II). “Special equipment” is defined as truncheons, arm-restraining instruments, tear gas, rubber bullets, water cannons and other means (Articles 1). Physical force, special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed. The police authorities must carry out an inquiry into every incident involving the use of physical force, special equipment or firearms, and must issue a pertinent opinion on its lawfulness (Article 26.VII). Unlawful use of force by a police officer entails the officer’s responsibility under the relevant legislation (Article 26.IX).
29. Police officers may use physical force, special equipment or firearms only in the event of absolute necessity or necessary self-defence, after all other means of coercion have failed to produce the required result, and depending on the gravity of the offence and the character of the offender (Article 27.I.1). Anyone injured as a result of the use of physical force, special equipment or firearms must be provided with the necessary medical aid (Article 27.I.5). The police officer must report to the relevant police authority, in writing, on the occasions he or she used physical force, special equipment or firearms (Article 27.I.7). The relevant prosecutor must also be informed of any such use of force within twenty-four hours (Article 27.I.8).
VIOLATED_ARTICLES: 10
3
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-83995
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KACHANOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1960 and lives in Shakhtаrsk, the Donetsk region.
5. On 20 October 2000 the Shakhtаrsk City Court (Шахтарський міський суд Донецької області) awarded the applicant 4,815.28 hryvnyas (UAH) in salary arrears and compensations from his former employer, the Municipal Communal Service Department (“the Company,” Шахтарське міське госпрозрахункове управління комунального господарства).
6. This judgment was not appealed against, became final and the enforcement proceedings were instituted to collect the judgment debt.
7. On 7 April 2003 the Company was declared bankrupt and subsequently liquidated.
8. The applicant unsuccessfully attempted to seek compensation from the Bailiffs for their failure to enforce the judgment.
9. The judgment remains unenforced to the present date.
10. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4868
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: WITZSCH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a German national, born in 1939 and living in Fürth. He is a secondary school teacher.
He is represented before the Court by Mr W. Heim, a lawyer practising in Nürnberg.
A.
On 27 February 1996 the Fürth District Court (Amtsgericht) convicted the applicant of disparaging the dignity of the deceased (Verunglimpfung des Andenkens Verstorbener) pursuant to section 189 of the Penal Code (Strafgesetzbuch). It sentenced him to four months’ imprisonment, suspended on probation.
In its decision, the District Court found that in November 1994 and February 1995, the applicant had written letters to Bavarian politicians, in which he had complained about a planned amendment of section 130 of the Penal Code on the punishment of incitement to hatred (Anstachelung zum Rassenhass), expressly penalising the denial of national socialist mass killing. To those letters, the applicant had attached a statement in which he had denied the existence of gas chambers and the mass killing therein and had thereby denied the victims’ particular cruel fate. The court observed that, according to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht) and the Federal Court of Justice (Bundesgerichtshof), the mass killing of Jews and other persons in gas chambers and inter alia in the Auschwitz concentration camp was a historical fact (historische Tatsache). The court further considered that, by denying this specific form of homicide, he had disparaged the dignity of the deceased. In this respect, it noted that the applicant had called the envisaged reform “antidemocratic special legislation” (antidemokratisches Sondergesetz), and had stated that political parties in the Federal Diet were “no longer abiding by the rule of law and encouraging an antidemocratic demon” (so weit von rechtsstaatlichem Denken entfernt und einem antidemokratischen Ungeist Tür und Tor geöffnet haben). He had further referred to “historical lies” (Geschichtslügen) and had qualified the gas chambers as “so-called gas chambers”.
The court further noted that an application for prosecution had been lodged in time.
In fixing the sentence, the District Court noted that the applicant had previously been convicted of disparaging the dignity of the deceased, however, that conviction had not yet become final at the time of the material offence.
In these and the following proceedings, the applicant was assisted by defence counsel.
On 3 July 1996 the Nürnberg-Fürth Regional Court (Landgericht) dismissed the appeals lodged by the applicant and by the Public Prosecutor. As regards the applicant’s argument that he had not intended to deny the existence of gas chambers, the Regional Court considered that the contents of the letters objectively amounted to such a denial. In particular, he had used the term "historical lies" concerning the gassing in concentration camps, which was a historical fact and commonly known (offenkundig). No taking of evidence had therefore been necessary. Moreover, having regard to the documents before it, the Regional Court confirmed that the application for prosecution had been lodged in time.
On 31 July 1997 the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) dismissed the applicant’s appeal on points of law. The Court of Appeal confirmed the findings of the lower courts, in particular that, as the mass killing in the concentration camps was a notorious historical fact, no taking of evidence concerning this point was necessary. Moreover, the procedural questions relating to the application for prosecution had been correctly determined.
On 23 September 1997 the Federal Constitutional Court decided not to admit the applicant’s constitutional complaint.
B. Relevant domestic law
Section 189 of the Penal Code provides as follows:
“Anybody disparaging the memory of the deceased shall be punishable with imprisonment not exceeding two years or with a fine.”
Pursuant to section 194 of the Penal Code, such an offence is prosecuted upon application by a relative of the victim of the offence.
Section 130 of the Penal Code concerns the criminal offence of incitement to hatred. According to section 130(1), in the version as amended on 28 October 1994 and entered into force on 1 December 1994, anybody who incites to hatred, or violence or arbitrary acts, against parts of the population in such a manner as to disturb the public peace shall be punishable by imprisonment for a term of three months to five years. Section 130(2) relates to publications inciting to hatred. Section 130(3) makes it a punishable act to approve, deny or minimise acts of genocide under the national socialist regime in public or at an assembly.


ITEMID: 001-58192
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF TWALIB v. GREECE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1+6-3-b;Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos
TEXT: 6. The applicant is a Tanzanian national born in 1957 and currently resident in Tanzania. He is a seaman.
In 1986 he was convicted in Greece of drug-related offences and sentenced to imprisonment. He was released in November 1989 and expelled from Greece.
7. On 16 February 1990 a Mr G.C. was arrested at Athens Airport for transporting drugs. A telephone number was found on him which, when traced, turned out to be that of a hotel in Piraeus where the applicant, having returned to Greece, was staying at the time. This hotel was visited by the police.
The applicant was found to be in possession of a forged passport. It appears, however, that no drugs and no other incriminating evidence were found in his possession.
8. The applicant was arrested and taken to Athens the same day and interrogated by the police. According to an official report, the applicant claimed not to understand Greek but to speak English, and he was assisted by a police officer, H.L., who was an English-speaker and acted as interpreter.
It is also stated in the report that the applicant was questioned about the matters that had led to his arrest and about the forged passport found in his possession. He provided full particulars of his movements following his expulsion from Greece three months earlier (see paragraph 6 above) but denied all involvement in drug trafficking.
The police questioned him again the following day. The police officer H.L. again acted as interpreter.
9. On 18 February 1990 the applicant was brought before the public prosecutor, who instituted criminal proceedings against him for forgery and various drug-related offences. The applicant does not dispute that he was assisted by an interpreter on this occasion.
The applicant was then brought before the investigating judge, who read out the charges to him.
It appears from an official report of this event that the applicant was assisted before the investigating judge by a lawyer who spoke English and acted as interpreter.
10. On 20 February 1990 the applicant again appeared before the investigating judge, to whom he made a statement. It appears from an official report that he was assisted by Mr A., a lawyer practising in Athens, and by an English-speaking clerk of the court who acted as interpreter.
The investigating judge ordered the applicant to be detained on remand.
11. On 21 June 1991 the applicant and three co-accused appeared before a three-judge Chamber of the Athens Court of Appeal (trimeles efetio), the court competent to hear the case at first instance in view of the seriousness of the charges. A court-assigned interpreter was present. The applicant stated that he was defended by Mr A. and, since Mr A. was not present (being at that time on strike), he asked for an adjournment. The co-accused made similar requests. The case was adjourned.
12. The applicant and his co-accused appeared before the same court again on 12 July 1991. A court-appointed interpreter was present. As the applicant’s lawyer, Mr L., was absent, the court asked the lawyer of one of the co-accused, a Mr N., to act for the applicant as well. This Mr N. agreed to do, and it appears from the official record of the hearing that “a short interval” was ordered to enable him to study the applicant’s case file.
13. On 16 July 1991 the three-judge Chamber of the Athens Court of Appeal found the applicant guilty of importing and transporting drugs and using forged documents. It sentenced him to life imprisonment and a fine of 6,000,000 drachmas for the drug-related offences and to eight months’ imprisonment for having used forged documents.
The applicant appealed.
14. The appeal was heard by the five-judge Chamber of the Athens Court of Appeal on 18 March 1993, which, as a matter of general principle of the Greek law of criminal procedure, was empowered to review all questions of fact and of law in the case. The applicant was again assisted by a court-assigned interpreter and was defended by Mr E.L., a lawyer provided by a humanitarian organisation.
15. The court convicted the applicant only of collusion in the importation and transport of drugs and the use of forged documents and acquitted him on the remainder of the charges. It sentenced him to twelve years’ imprisonment for the drug-related offences and three months’ imprisonment for the use of forged documents, and imposed a fine of 5,000,000 drachmas. The judgment was delivered on the day of the hearing but finalised (katharographi) on 4 May 1993. According to the minutes of the appeal hearing, the president of the court duly informed all the accused, including the applicant, of the time-limit for filing an appeal on points of law, and this information was interpreted for the benefit of the applicant.
16. The applicant lodged an appeal on points of law on 26 March 1993, by filling in a standard appeal form which he handed in to the prison authorities. In the space reserved for grounds of appeal the applicant stated that these would be submitted in due course by his counsel. On the same form he mentioned Mr P. under the heading “Lawyer to whom notifications should be made”.
17. On 8 June 1993 the applicant, through the prison authorities, addressed a petition to the public prosecutor at the Court of Cassation (Arios Pagos) enquiring whether legal-aid counsel could be appointed to assist him in the preparation of his appeal. The prison authorities acknowledged receipt of this petition.
18. On 12 July 1993 the Court of Cassation declared the applicant’s appeal on points of law inadmissible on the ground that no grounds of appeal had been submitted.
19. On 4 April 1994 the applicant addressed a second petition to the public prosecutor at the Court of Cassation, referring to his financial situation and enquiring about any developments in his case. The prison authorities acknowledged receipt.
20. On 27 April 1994 the applicant was informed by the prison authorities that his appeal had been dismissed.
21. In a letter of 23 February 1995 to the Agent of the Government, the deputy public prosecutor at the Court of Cassation stated that he had not been able to trace any petition from the applicant to either the president or the public prosecutor at the Court of Cassation asking for legal aid. He further submitted that the courts were under no legal obligation to appoint legal-aid counsel for accused persons who appealed on points of law. Nor was any other public authority. Consequently, even if the applicant had submitted a petition for legal aid, the authorities of the Court of Cassation would have been under no obligation to reply.
22. Article 340 § 1 of the Code of Criminal Procedure provides that in cases of the most serious category of criminal offence (kakouryimata) the president of the first-instance court must assign counsel to an accused who is not represented. Counsel is chosen from a list of lawyers drawn up by the local Bar in January of each year. Counsel is to be appointed at least three days before the hearing, if the accused so requests, by a letter to the public prosecutor or the president of the trial court, and is given access to the case file.
Article 376 of the Code of Criminal Procedure provides that in cases concerning the most serious category of crime the president of the appellate court must appoint counsel for an undefended accused if the latter so requests. Article 340 § 1 applies mutatis mutandis.
23. Article 473 §§ 1 and 3 of the Code of Criminal Procedure provides that persons who appeal on points of law must lodge their appeal within ten days from the finalisation of the judgment (katharographi), i.e. the entering of the judgment in a special book kept at the registry of the criminal court. According to Article 474 of the Code, the appeal must be lodged by making a declaration to that effect before one of various public authorities, including the governor of the prison where the appellant is detained. An official report is drawn up, which must contain the grounds of the appeal. Article 473 § 2 of the Code provides for a further twenty-day period within which an accused may appeal on points of law against conviction by making a declaration to that effect to the public prosecutor at the Court of Cassation.
24. Article 510 of the Code of Criminal Procedure contains an exhaustive enumeration of the grounds for appealing on points of law. These include a number of procedural irregularities in addition to errors in the interpretation or application of substantive criminal law. Pursuant to Articles 476 § 1 and 513 § 1 of the Code of Criminal Procedure, as interpreted by the Court of Cassation, an appeal on points of law which does not state any grounds is inadmissible (Court of Cassation decisions no. 1438/1986, Pinika Hronika, vol. 37, p. 170; no. 73/1987, Pinika Hronika, vol. 37, p. 314; and no. 182/1987, Pinika Hronika, vol. 37, p. 605).
25. Under Article 509 § 2 of the Code of Criminal Procedure, the appellant may submit “additional grounds” of appeal by lodging a supplementary pleading with the Principal Public Prosecutor at the Court of Cassation not later than fifteen days before the hearing. However, according to the settled case-law of the Court of Cassation, “additional grounds” may be taken into account only if at least one admissible and sufficiently substantiated ground is set out in the initial notice of appeal (Court of Cassation decisions nos. 242/1951, 341/1952, 248/1958, 472/1970, 892/1974, 758/1979, Nomiko Vima 1980, p. 56, 647/1983, 1438/1986 and 1453/1987, Pinika Hronika, vol. 38, p. 191). Notwithstanding this case-law, an accused may use the time allowed by Article 473 § 2 of the Code (see paragraph 23 above) to supplement an appeal on points of law lodged with one of the authorities mentioned in Article 474 of the Code where the notice of appeal does not contain any “sufficiently substantiated grounds of appeal”.
26. Under Article 513 § 3 of the Code of Criminal Procedure, the parties to an appeal on points of law must be represented by counsel at the hearing before the Court of Cassation. The Court of Cassation has held that the Code of Criminal Procedure does not provide for legal aid for appeals on points of law and that Article 6 § 3 (c) of the Convention does not apply to proceedings before the Court of Cassation as these do not entail the determination of a criminal charge (Court of Cassation decisions no. 381/1982, Pinika Hronika, vol. 32, p. 928; no. 724/1992, Pinika Hronika, vol. 32, p. 656; and no. 1368/1992).
27. Pursuant to Article 546 § 2 of the Code of Criminal Procedure, a conviction becomes final when there is no appeal against the relevant decision, or when the accused has not availed himself of the possibility of appealing, or when the accused has appealed within the time provided by law and his appeal has been dismissed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-89862
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MIROSHNIK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1955 and resides in the village of Akimovka, the Zaporizhzhya region, Ukraine.
6. In December 1998 the applicant was dismissed from the military forces.
7. On 8 June 1999 the Zaporizhzhya Garrison Military Court (“the Zaporizhzhya Court”) ordered the Zaporizhzhya Regional Military Enlistment Office to pay the applicant 1,260.91 Ukrainian hryvnyas (UAH) for his uniform expenses for the period up to 31 December 1998.
8. On 11 February 2000 the enforcement proceedings were discontinued because of the debtor’s lack of funds and because, according to Article 5 of the Economic Activities of the Armed Forces Act, the property of the Armed Forces could not be used to enforce a court decision.
9. According to the applicant, on 16 October 2001 the decision was enforced in part by the debtor. At 21 August 2007 the decision had not been enforced in full.
10. In June 1999 the applicant instituted proceedings in the Zaporizhzhya Court against his former employer, the Akimovskiy District Military Enlistment Office, claiming an allowance due to him for the period of January-February 1999. The applicant stated that though he was officially dismissed on 31 December 1998, he had actually left the forces on 16 February 1999.
11. On 23 June 1999 the court found for the applicant and awarded him UAH 442.03 for the unpaid allowance to be paid by the Enlistment Office.
12. On 17 August 1999 the South Regional Military Court quashed that decision and remitted the case for a fresh consideration.
13. On 3 November 1999 the Zaporizhzhya Court found against the applicant.
14. On 7 December 1999 the South Regional Military Court upheld that decision.
15. On 11 July 2000 the Supreme Court quashed the decisions of 3 November 1999 and 7 December 1999 upon a protest, lodged by the President of the Supreme Court (at the applicant’s request), and remitted the case for a fresh consideration.
16. The applicant lodged an additional claim asking to change the date of his dismissal and requesting the payment of an insurance premium, compensation for pecuniary and non-pecuniary damage, and the enforcement of the decision of 8 June 1999.
17. On 3 November 2000 the Zaporizhzhya Court, considering the case in the applicant’s presence, changed the date of his dismissal and ordered the Enlistment Office to pay him UAH 791.78 for the unpaid allowance and other payments.
18. The applicant did not appeal against the decision.
19. In a letter of 30 January 2004, the applicant informed the Court that the decision of 3 November 2000 had been enforced in full, without specifying the date of enforcement.
20. In August 2000 the applicant instituted proceedings in the Zaporizhzhya Court against the Enlistment Office and the Ministry of Defence with claims similar to those in the second set of proceedings.
21. On 31 August 2000 the court returned the applicant’s claim, stating that he had failed to pay the court fee and to enclose any evidence in support of his claim as required by the legislation.
22. The applicant neither appealed against that decision nor submitted his claim anew.
23. In November 2000 the applicant instituted proceedings in the Central Regional Military Court against the Ministry of Defence contesting the lawfulness of his dismissal from the military service and seeking compensation for damage. The applicant also clamed that the defendant had been unlawfully ignoring the court decisions in his favour.
24. On 12 December 2000 the court returned the applicant’s claim for res judicata reasons, stating, in particular, that such a claim had already been considered by the courts.
25. On 23 January 2001 the Supreme Court quashed that decision and remitted the case for a fresh consideration, finding that the applicant’s claim had not been considered by the courts before.
26. On 5 March 2001 the Central Regional Military Court returned the applicant’s claim for failure to indicate all the requisites of the claim, and to enclose any evidence in its support, as required by the legislation.
27. The applicant states that this decision was sent to him too late to enable him to appeal against it within the fixed time-limit. The applicant did not submit any request for an extension of the time-limit for appeal.
28. On 12 April 2001 the Supreme Court rejected an appeal by the applicant against the decision of 5 March 2001 under the extraordinary review procedure.
29. The relevant domestic law regarding enforcement of court decisions is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004)
30. The relevant provisions of the Constitution read as follows:
“The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine.
Influencing judges in any manner is prohibited ...”
“In the administration of justice, judges are independent and subject only to the law ...”
31. Section 123 of the Code provided that garrison military courts, as first-instance courts, had jurisdiction over civil cases where military servicemen challenged the lawfulness of acts or decisions taken by military officials or military bodies as well as over other civil cases where military servicemen’s rights and freedoms were claimed to be violated, except for cases falling within the jurisdiction of the regional military courts. The regional military courts, as first-instance courts, had jurisdiction over civil cases where the lawfulness of acts or decisions taken by military officials or military bodies having the level of a military association or higher, were challenged.
32. In accordance with Sections 289 and 325 of the Code, appeals against decisions of military garrison courts were to be submitted to the military regional courts. Appeals against decisions of the military regional courts were to be submitted to the Supreme Court.
33. Sections 20, 38-1, 38-3 of the Act provided that the military courts were incorporated into the system of the general courts of Ukraine. They exercised judicial power in the Armed Forces of Ukraine and other military formations allowed by Ukrainian legislation. The judges of the military courts were elected by the Verkhovna Rada of Ukraine for ten years. The candidates, on passing a competitive examination the first time, were elected for five years. Only an acting officer in the army could become a judge of the military court.
34. Section 38-10 of the Act envisaged that the financing, logistics, maintenance and archiving of the military courts and the Military Chamber of the Supreme Court were performed by entities of the Ministry of Defence at the expense of the Ministry of Justice and the Supreme Court, using part of the State Budget allocated specifically for those purposes.
35. According to Section 38-11 of the Act the servicemen of the military courts were considered to be in military service and constituted a part of the staff of the Armed Forces of Ukraine. The judges of the military courts were awarded military ranks by the President of Ukraine upon the joint submission of the Minster of Justice and the Chairman of the Supreme Court (as regards the judges of the military garrison courts, military regional courts, and naval courts) or upon the sole submission of the Chairman of the Supreme Court (as regards the judges of the military chamber of the Supreme Court).
36. Section 43 of the Act provided that a military chamber was incorporated into the structure of the Supreme Court. According to Section 49 of the Act the chambers of the Supreme Court could consider cases as, inter alia, the court of appeal instance.
The Act was repealed on 7 February 2002.
37. According to Section 11 of the Act the independence of judges was guaranteed by the manner of their appointment, termination and suspension of their office; by the special procedure of awarding military ranks to the military judges; by the special procedure of administration of justice; by the secrecy of the decision-making process; by prohibition of interference with the administration of justice; by the establishment of the legal responsibility for contempt of court; by the judges’ right to resign; by the judges’ inviolability; by the provision of the technical and informational conditions necessary for the operation of the courts; by the material support and social welfare programs provided for the judges; by the special procedure of the courts’ financing; and by the system of judicial self-government.
38. Section 44 of the Act foresaw that judges of the military courts who needed to improve their living conditions were provided with an appropriate flat or house by the Ministry of Defence within the term of six months from the date of their appointment.
39. Section 3 of the Act provided that the Armed Forces of Ukraine were subordinate to the Ministry of Defence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22367
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: AYUNTAMIENTO DE MULA v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is the borough council of a town in the region of Murcia. It was represented before the court by Mr Enrique Martínez Miracle, a lawyer practising in Murcia.
The facts of the case, as submitted by the parties, may be summarised as follows.
Mula Borough Council said that it had been the owner of the castle situated in the town from time immemorial. There was evidence in the form of instruments disposing of municipal rights or interests in the castle dating back to 1855 and since 1918 Mula Borough Council had been registered in the cadastral register as the owner of the castle.
During the Spanish Civil War in 1936 the archives of the Mula Land Registry were destroyed in a fire. After the civil war, in 1942, María Concepción Pidal y Cicho de Guzmán, a member of the influential family of the Marquis of Pidal, had her name entered in the new register as the owner of “a very old castle and its external walls, all in an appalling state of ruin and destruction”, on the ground that she had inherited the property in 1932 from her mother.
In 1992 the heirs of the Marquise of Pidal brought an action before the Mula district judge no. 2 against Mula Borough Council for a declaration that they had title to the castle. In a judgment of 8 March 1993 the district judge found in their favour and declared that the property in the castle was vested in them.
Mula Borough Council appealed to the Murcia Audiencia provincial, which, in a decision of 3 June 1994 delivered after an adversarial hearing, overturned the judgment of the district judge. It accepted the Borough Council’s plea that it had acquired title by adverse possession since at least 1918 and dismissed the claimants’ action. The heirs of the Marquise of Pidal appealed on points of law to the Supreme Court which, by a judgment of 2 December 1998, overturned the decision of the Audiencia provincial, and upheld the judgment of the district judge.
Relying on Article 24 of the Constitution (right to a fair trial), Mula Borough Council lodged an amparo appeal with the Constitutional Court. The appeal was dismissed on 10 May 1999, as being manifestly ill-founded.


ITEMID: 001-79765
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LASKOWSKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1954 and lives in Czeladź.
7. She and her husband married in 1973. Their daughter was born in 1976. It appears that the applicant's husband abused alcohol and subjected her to psychological harassment over a long period of time. In the early 1980s that situation led to the applicant's nervous breakdown. She began receiving neurological treatment. In October 1993 she and her daughter left the matrimonial home. Nonetheless, the applicant's husband continued to harass her.
8. In November 1995 the applicant applied for a divorce order which was granted in March 1996. The divorce court found that the applicant's husband had been at fault in respect of the breakdown of their marriage.
9. In July 1996 the applicant began receiving psychiatric treatment. In January 1997 she was declared to have a “second degree of invalidity” and granted an invalidity pension on account of the state of her mental health. In March 1998 the applicant was declared entirely unfit for work.
10. On 26 February 1999 the applicant filed with the Będzin District Court a claim for maintenance in the amount of PLN 600 per month against her former husband. At that time she was in receipt of a gross monthly invalidity pension in the amount of PLN 388.82.
11. On 29 March 1999 the District Court gave judgment by default, allowing the applicant's claim in full.
12. Subsequently, the defendant filed an objection against the judgment by default. On 20 September 1999 the District Court quashed that judgment and ruled on the applicant's maintenance claim. It ordered the defendant to pay monthly maintenance in the amount of PLN 300 as of 1 April 1999.
13. On 25 October 1999 the applicant lodged an appeal against the first-instance judgment. She requested the District Court to exempt her from the court fees and to appoint a legal-aid lawyer in the appeal proceedings. She submitted that she was unable to represent herself during the proceedings due to stress related to her presence in the court. She further submitted that she could not afford a lawyer.
14. On 28 October 1999 the District Court dismissed her application for a legal-aid lawyer. It considered that assistance of a legal-aid lawyer was necessary only in complex cases or where a party to the proceedings was incapable of defending his/her interests. However, in the present case those conditions had not been met. It further found that the content of the applicant's submissions to the court supported the finding that she was capable of effectively representing herself.
15. On 19 November 1999 the applicant filed an interlocutory appeal (zażalenie) against the decision of 28 October 1999. She referred to the stress caused by her participation in the proceedings. She further submitted that she was receiving psychiatric treatment, had been granted an invalidity pension on account of her mental health and was regularly taking various medicines. Those medicines significantly affected her memory, concentration and the ability to express her thoughts clearly. Furthermore, she submitted that she was not an educated person and that her friends had assisted her in preparation of the court's submissions. Thus, she considered that legal aid was necessary in order to enable her to defend her interests adequately in the proceedings.
16. On 7 December 1999 the Katowice Regional Court dismissed the interlocutory appeal. It endorsed the reasoning of the District Court. In addition, it held that the applicant had not submitted any proof to the effect that she had been receiving psychiatric treatment.
17. The applicant submits that the case-file of the maintenance proceedings included a medical certificate issued on 12 May 1999. That certificate attested that the applicant has been regularly treated in a psychiatric clinic since 1996.
18. On 2 February 2000 the Katowice Regional Court, following a hearing, dismissed the applicant's appeal against the District Court's judgment of 20 September 1999. The court instructed the applicant that a cassation appeal was not provided for in the present case.
19. On 10 March 2000 the applicant requested the Regional Court to appoint a legal-aid lawyer with a view to filing a cassation appeal.
20. On 23 March 2000 the Regional Court informed the applicant that a cassation appeal in her case was not provided for by law and inquired whether she wanted to pursue her legal aid application. On 31 March 2000 the applicant replied in the affirmative.
21. On 14 April 2000 the Regional Court dismissed her application for legal aid. It considered that a cassation appeal in her case could not be lodged as a matter of law, and thus there was no need to provide her with legal assistance. On 2 May 2000 the applicant filed an interlocutory appeal against that decision.
22. On 1 June 2000 the Regional Court rejected her interlocutory appeal as inadmissible in law. Her further appeals were rejected on 6 July and 16 August 2000.
23. On 28 July 2000 the Regional Court informed the applicant that she had been previously advised that a cassation appeal in her case, which could only concern the amount of maintenance, was not available. She was further informed that in the case of a change of circumstances she could seek an increase of her maintenance.
24. On 29 August 2000 the applicant in person lodged a cassation appeal against the Katowice Regional Court's judgment of 2 February 2000. On 14 September 2000 the Regional Court rejected her cassation appeal. It considered that, pursuant to Article 393 § 2 of the Code of Civil Procedure, the cassation appeal in her case was not available as it concerned the amount of maintenance. It also found that the cassation appeal had not been lodged by a lawyer and within the statutory time-limit of one month from the date of the service of the second-instance judgment.
25. On 27 September 2000 the applicant filed with the Supreme Court an interlocutory appeal against the decision of 14 September 2000.
26. On 18 January 2001 the Supreme Court dismissed the applicant's interlocutory appeal. Firstly, it held that, contrary to the position of the Regional Court, the applicant's cassation appeal, which concerned the issue of her entitlement to maintenance, was allowed in accordance with the provisions of the Code of Civil Procedure as applicable at the relevant time. It found that the applicant's case did not concern the issue of the amount of maintenance, which was excluded from the Supreme Court's jurisdiction. However, the applicant's cassation appeal was inadmissible on two other statutory grounds invoked by the Regional Court, namely non-compliance with the applicable time-limit and compulsory legal representation in cassation appeal proceedings.
27. Article 45 § 1 of the Constitution provides as follows:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
28. At the relevant time, Article 117 § 1 of the Code of Civil Procedure (“CCP”), provided, in so far as relevant:
“§ 1. A party [to the proceedings] exempted partly or entirely from court fees, may request that an advocate or a legal adviser be appointed for him/her. ... The court shall grant that request, if it considers that the participation of an advocate or a legal adviser in the case is necessary.
...
§ 2. The provision of the preceding paragraph is also applicable to a party who enjoys a statutory exemption from the court fees, provided that that party demonstrates, by way of the declaration referred to in Article 113 § 1, that the fees of the advocate or legal adviser would entail a reduction in his/her and his/her family's standard of living.”
29. At the relevant time Article 111 § 1 (1) of the CCP provided that a party seeking maintenance was statutorily exempted from court fees.
30. Article 113 § 1 of the Code of Civil Procedure, in the version applicable at the material time, stipulated:
“An individual may ask the court competent to deal with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family's standard of living. Such a declaration shall contain details concerning his family, assets and income. It falls within the court's discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested.”
31. The Code of Civil Procedure lays down the principle of mandatory assistance of a lawyer in cassation appeal proceedings. Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser. Cassation appeals lodged by a litigant in person would be rejected.
32. Article 393 of the Code of Civil Procedure, in the version applicable until 30 June 2000, provided, in so far as relevant:
“No cassation appeal may be lodged in cases:
1) ...
2) relating to maintenance, when it concerns its amount,
...”
Following the amendments to the Code which entered into force on 1 July 2000, no cassation appeal may be lodged with the Supreme Court in all cases relating to maintenance (Article 392¹ § 2 (1)).
33. Pursuant to Article 168 § 1 of the CCP if a party to the proceedings did not perform a procedural measure (czynność procesowa) within the relevant time-limit through no fault of his/her own, the court shall grant leave to perform such measure outside the prescribed time-limit at the party's request. Article 169 § 3 of the CCP stipulated that the relevant measure shall be performed simultaneously with lodging the request.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1