ITEMID: 001-110236
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GUTIERREZ DORADO AND DORADO ORTIZ v. SPAIN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicants, Mr Antonio Gutiérrez Dorado and Ms Carmen Dorado Ortiz, are Spanish nationals who were born in 1952 and 1927 respectively and lived in Malaga. They were represented before the Court by Mr F.J. Leon Diaz, a lawyer practising in Sarajevo, and Mr P. Troop, barrister in London.
2. On 27 August 2010, the second applicant died. On 5 October 2010, the first applicant informed the Court that he wished to pursue the application both on his behalf and on behalf of his late mother, the second applicant.
4. In July 1936, Mr Dorado Luque, who was the grandfather of the first applicant and the father of the second applicant and a Member of the Spanish Parliament belonging to the socialist party (“PSOE”), was forcibly taken away by military forces in circumstances that have not yet been fully established. On 18 July 1936, he was travelling on a train from Madrid to Malaga. Armed forces took him away with two other persons (another Member of Parliament and the British consul in Malaga). They were transferred to the garrison of “San Rafael” in Cordoba. The British Consul was immediately released. Mr Dorado Luque and the other man were detained until at least 28 July 1936 because Mr Dorado Luque’s signature appears as a witness on the death certificate of another detainee who apparently died in the garrison (Joaquín Garcia-Hidalgo Villanueva, a journalist and ex-Socialist Member of Parliament).
5. The applicants have no reliable information as to their relative’s fate after 28 July 1936.
6. In early August 1936 a dead body was discovered which had documents with Mr Dorado Luque’s name in the pockets. The autopsy stated that he died “as a result of firearm injuries with serious wounds in the brain and liver”. The dead body was registered in the obituary book as Mr Dorado Luque. On 5 August 1936, the civil registry judge decided that there was insufficient evidence to conclude that the corpse was that of Mr Dorado Luque and made an entry in the civil registry of Cordoba that the body was that of an “unknown man”.
7. On 15 October 1977, after the death of Francisco Franco, an Amnesty Law was passed by the newly established Spanish Parliament which granted immunity from prosecution to everyone who had committed any offence for political reasons prior to 15 December 1976.
8. In 1979, the applicants assisted Mr Dorado Luque’s wife, Josefa Ortiz Lara (their mother and grandmother respectively) in the proceedings to obtain official confirmation of Mr Dorado Luque’s disappearance, a necessary procedural step before Mrs Josefa Ortiz Lara could obtain her widow’s pension in accordance with the applicable law. Spanish authorities dismissed her request for widow’s pension arguing that she could not be entitled to widow’s benefits as there was no evidence of her husband’s death in the civil registry books.
9. In 1981, Mrs Josefa Ortiz initiated a procedure for voluntary declaration of death before the courts of Malaga. The procedure lasted until 1993. On 10 March 1993 the first instance court no. 1 of Malaga, after confirming that Mr Dorado Luque had disappeared and that his fate and whereabouts were unknown, ordered that his death be recorded in the civil registry books. The judge established 30 July 1936 as the date of death. Mrs Josefa Ortiz was finally entitled to perceive her widow’s pension.
10. On 22 May 2006, the second applicant brought a criminal complaint before the Juzgado de Instrucción no. 2 of Cordoba (investigating Judge). She complained about the abduction and possible murder of Mr Dorado Luque in 1936 amounting to war crimes for which there were no statute of limitations. On 11 August 2006, the investigating Judge ruled against the applicant stating that the facts complained of amounted to a “hypothetical simple murder” which was subject to a statute of limitations of 20 years under the Criminal Code. As to the possibility that war crimes or crimes against humanity could not be time-barred, the Judge said that this could only apply after 2003 when the criminal code was amended in that sense and that the new rule could not be retrospectively applied to crimes which had already been time-barred by then.
11. The second applicant appealed to the Audiencia Provincial of Cordoba. On 16 October 2006, the Audiencia Provincial dismissed the appeal and confirmed the decision of the investigating Judge. The appellate court stated that the current constitutional regime prevented the prosecution of crimes committed during the Civil War since such claims would be contrary to the conciliatory nature of the Spanish constitutional framework and would only serve at “reviving old wounds or remove the embers of civil confrontation”.
12. The second applicant filed an amparo appeal against this decision before the Constitutional Court. On 14 April 2008, the Constitutional Court declared the appeal inadmissible for being devoid of constitutional content.
13. The second applicant, on 14 December 2006, together with several victims’ associations, filed a complaint before the Audiencia Nacional in Madrid. They complained that their relatives had suffered systematic enforced disappearances as well as possible systematic killings as part of a deliberate and calculated plan to eliminate a sector of the population. On 28 August 2008, the Audiencia Nacional’s Investigating Judge no. 5, in a preliminary investigation, ordered several public and private institutions to submit information on individuals disappeared after 17 July 1936 as a result of the Civil War and the subsequent Franco regime.
14. On 16 October 2008, the Investigating Judge issued a ruling accepting jurisdiction, in so far as the crimes had been committed against high-level national institutions and the form of Government (military rebellion of 1936 and the subsequent enforced disappearances). The ruling stated that all the facts complained of were not to be considered in isolation but rather within the wider context of the planned, massive repression by the Franco regime which began on 18 July 1936 against political opponents, carried out in a systematic manner which could amount to crimes against humanity as provided by the Spanish Criminal Code (Article 607 bis of the Criminal Code in force). The Investigating Judge further pointed out that the practice of enforced disappearances was used systematically to make it impossible to identify the victims and therefore prevent any judicial action against the perpetrators. He further noted that the whereabouts and fate of thousands of people that had been detained by the authorities were still unknown. These were continuous crimes because no information had been given to the families of the disappeared. The distress and anguish suffered by the relatives of the victims who still did not know the whereabouts and fate of their beloved ones amounted to a violation of Article 3 of the Convention (with reference to Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001IV).
15. The Public Prosecutor appealed against the Investigating Judge’s decision, requesting the closure of the proceedings.
16. On 7 November 2008, the plenary of the Audiencia Nacional (criminal division) ordered all proceedings related to exhumations of mass graves to be suspended until final decision.
17. On 18 November 2008, the Investigating Judge no. 5 issued a decision relinquishing jurisdiction and advising the complainants to pursue their complaints before provincial courts. After receiving evidence that all the officials suspected (including Francisco Franco) had died, he declared their criminal responsibility extinguished. Complaints for the same facts alleged against other possible suspects would fall within the jurisdiction of the territorial courts competent in respect of the different mass graves (among which the territorial courts of Cordoba). In its decision, the Investigative Judge reiterated that these crimes should be prosecuted as the continuing crime of enforced disappearance and that there could be no application of the statute of limitations. He pointed out that the lack of official ex officio investigation for many years coupled with the numerous obstacles introduced by the Public Prosecutor to the opening of an investigation was in conflict with the ECHR and the PACE resolution 1463 of 3 October 2005 on enforced disappearances.
18. On 2 December 2008, the plenary of the Audiencia Nacional (criminal division) declared its lack of jurisdiction to investigate these crimes. The Audiencia Nacional noted that the crime of military rebellion had never fallen within its jurisdiction.
19. The family of Mr Dorado Luque initiated several parallel initiatives to the judicial procedures to clarify his disappearance. On 7 June 2006, the second applicant sent a petition to the competent military tribunal requesting information about the detention and whereabouts of Mr Dorado Luque. On 4 July 2006, the military tribunal responded stating that they had no information about him.
20. On 8 August 2007, the Cordoba Municipal Council dismissed the applicants’ petition to permit the exhumation of the body of Mr Dorado Luque from a mass grave identified in a pit of the cemetery in Cordoba. The local authorities argued that there were 39 tombstones above the mass grave and they had no authorization to remove them from the next of kin of the individuals buried there.
21. On 12 September 2007, pursuant to a petition by the applicants, the prison authorities of Cordoba issued a certificate confirming that Mr Dorado Luque had been detained there from 19 to 26 July 1936. The certificate stated that the reasons for the detention were “unknown” and that he was released upon orders from the military commander of Cordoba and surrendered to the Guardia Civil on 26 July 1936.
22. On 3 October 2008, the first applicant privately hired the services of forensic experts. In accordance with the Historical Memory Law (Law enacted in 2007), the first applicant was granted public funds (EUR 19,686.40) by the Ministry of the Presidency to assist in the process of searching and recovering the remains of his grandfather. The forensic experts located a mass grave in the cemetery of “La Salud” in Cordoba where allegedly the corpse of Mr Dorado Luque might be buried according to the 1936 inscription in the cemetery obituary book. Although the Audiencia Nacional’s Investigative Judge no. 5 had issued a specific order to the courts in Cordoba stating that the forensic works regarding the exhumation of Mr Dorado Luque were authorized, the Municipal Council of Cordoba issued an order to suspend all works. The forensic works have been suspended since then.
23. On 30 November 2009, the Ministry of the Presidency issued a decision denying the granting of further funds for the exhumation of the remains of Mr Dorado Luque.
24. It is submitted by the applicants that provincial courts, including the courts in Cordoba, are dismissing complaints by individuals disregarding the arguments of the Audiencia Nacional’s Investigating Judge no. 5 in its decision on relinquishment.


ITEMID: 001-23875
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MACHNIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Henryk Machnik, is a Polish national who was born in 1954 and lives in Gdynia, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991 the applicant lent USD 4,400 to M.Z. and R.Z. When the debtors failed to return the above sum, the applicant, on 31 May 1991, sued them before the Gdańsk Regional Court (Sąd Wojewódzki). On 1 October 1991 the Regional Court allowed his claim.
On 4 November 1991 the applicant asked the Bailiff of the Drawsko Pomorskie District Court (Komornik Sądu Rejonowego) to institute enforcement proceedings. On 26 November 1991 the District Court partially exempted the applicant from the enforcement fee.
On 6 May 1992 the applicant asked the bailiff for the second time to institute enforcement proceedings. However, the bailiff discontinued the proceedings, as the applicant had failed to pay the required fee.
On 16 September 1993 the District Court exempted the applicant from the total cost of the enforcement proceedings.
On 14 October 1993 the applicant again asked the bailiff to attach M.Z.'s immovable property. The bailiff requested the applicant to submit certain documents. The applicant complied with this request. On 17 November 1993 he asked the bailiff for the fourth time to institute enforcement proceedings. On 29 November 1993 the bailiff ordered the applicant to pay the court fee. As the applicant failed to pay, the bailiff dismissed his application on 11 January 1994.
On 30 November 1993 the applicant lodged a complaint with the Drawsko Pomorskie District Court against the actions taken by the bailiff (skarga na czynności komornika). He submitted that those actions had been incorrect and unlawful. On 5 January 1994, the court dismissed his complaint. It held that the exemption had only concerned his application of 4 November 1991 and that the applicant had to apply again for an exemption from the court fee.
On 1 February 1994 the District Court exempted the applicant from the required court fee.
On 8 February 1994 the applicant asked the bailiff for the fifth time to enforce the judgment of 1 October 1991. On 14 March 1994 the bailiff attached M.Z.'s immovable property with a view to selling it at a public auction.
On 12 July 1994 the bailiff made a detailed evaluation of M.Z.'s property. On 12 September 1994 the first public auction was held. It was unsuccessful, as the bailiff was not able to sell M.Z.'s property.
On 7 November 1994, at the second auction, the applicant bought the property in question. However, he failed to honour the sales transaction and on 12 December 1994 the District Court held that his right to acquire the property had expired.
On 23 September 1996 the bailiff discontinued the enforcement proceedings on the ground that the applicant had failed to comply with the necessary formal requirements. Subsequently, he also decided that the applicant should pay the required enforcement fee. On 29 November 1996 the Drawsko Pomorskie District Court dismissed the applicant's appeal against these decisions.
On 15 December 1997 the applicant asked the Bailiff of the Drawsko Pomorskie District Court for the sixth time to institute enforcement proceedings. The bailiff replied that the application was incomplete and refused to examine it.
On 22 February 1998 the applicant filed his seventh application for enforcement. On 3 April 1998 the Bailiff ordered the applicant to complete his application.
On 29 April 1998 the bailiff attached the debtors' immovable property. On 11 May 1998 the Bailiff informed the applicant that he would discontinue the proceedings unless the applicant submitted information concerning the debtor's assets. It appears that on 24 January 1999 the bailiff discontinued the enforcement proceedings.
Under Article 767 et seq. of the Code of Civil Procedure (Kodeks Postępowania Cywilnego), a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings (skarga na czynności komornika). He may, in particular, seek a ruling as to whether the bailiff's actions were correct, i.e. taken in accordance with a writ of execution, and lawful, i.e. whether the means of enforcement applied in a given case were provided by law. Such a complaint is examined by a district court under the provisions of Volume II of the Code of Civil Procedure relating to enforcement proceedings.


ITEMID: 001-58592
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF ZIELINSKI AND PRADAL & GONZALEZ AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 as regards the fairness of the proceedings;Violation of Art. 6-1 as regards the length of the proceedings;Not necessary to examine Art. 13;Damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: A. Bacquet;Gaukur Jörundsson;Luzius Wildhaber
TEXT: 9. Mr Zielinski, Mr Pradal, Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta are French nationals who were born in 1954, 1955, 1956, 1953, 1955, 1948, 1949, 1957, 1950, 1954 and 1957 respectively. They live in the départements of Meurthe-et-Moselle (Mr Zielinski), Moselle (Mr Pradal), Bas-Rhin (Ms Mary) and Haut-Rhin (all the other applicants) and work for social-security bodies in Alsace-Moselle.
10. On 28 March 1953 the representatives of the social-security offices of the Strasbourg region signed an agreement with the regional representatives of the trade unions. Under the agreement, a “special difficulties allowance” (indemnité de difficultés particulières – “IDP”) was introduced for the staff of social-security bodies on the ground that applying the local law of the départements of Haut-Rhin, Bas-Rhin and Moselle was a particularly complicated task. The agreement specified that the allowance was equal to twelve times the value of one salary “point” as laid down in the national agreement covering social-security staff.
The Minister of Employment and Social Security approved the agreement in a letter of 2 June 1953. The agreement was accordingly implemented as expected.
11. Following two amendments of 10 June 1963 and 17 April 1974 concerning the method of calculating salaries and the classification of jobs, changes which affected the value of the point, the boards of the socialsecurity bodies reduced the IDP, which was set at the equivalent of six points in 1963 and 3.95 points in 1974, instead of twelve points as provided in the 1953 agreement. Further, the IDP was not taken into account for the purpose of calculating the annual Christmas bonus (treizième mois) payable under the national collective agreement.
12. In 1988, however, several social-security bodies decided to incorporate the IDP into their basis for calculating annual allowances, with five years’ retrospective effect. The Regional Health and Social Affairs Department, the supervising authority for these public bodies, quashed the decisions authorising the transfer of the funds needed to make these payments to staff.
13. Applications were made to five industrial tribunals by 136 staff members of the social-security offices concerned, seeking to have the 1953 agreement implemented strictly and to be paid the corresponding salaries backdated to 1 December 1983 (claims in respect of pay being statutebarred after five years).
14. In judgments of 22 December 1989 and 26 April 1990 (Sarrebourg industrial tribunal, miscellaneous activities division), 20 December 1989 (Sarrebourg industrial tribunal, executive staff division) and 10 April and 12 June 1990 (Forbach industrial tribunal, executive staff division) the officials’ claim for back payment of the IDP on the basis of twelve times the value of the point was dismissed.
15. In judgments of 23 April and 14 May 1990 (Forbach industrial tribunal, miscellaneous activities division) and 19 March 1990 (Sarreguemines industrial tribunal, executive staff division) the Sarreguemines Health Insurance Office (Caisse primaire d’assurance maladie – “CPAM”) was ordered to pay the officials the amounts sought in back payment of the IDP as calculated on the basis of twelve points.
16. In twenty-five judgments of 26 February 1991 concerning 136 officials, the Metz Court of Appeal gave judgment in their favour. The representatives of the State – the prefect of the region and, on the latter’s authority, the Regional Director of Health and Social Affairs – appealed on points of law.
17. On 30 July 1991 the Minister of Social Affairs withdrew the ministerial approval given on 2 June 1953. On 8 July 1992 the Minister of Social Affairs revoked that withdrawal of approval.
18. In three judgments of 22 April 1992 the Court of Cassation quashed in part the twenty-five judgments given by the Metz Court of Appeal on 26 February 1991 in the actions brought by the 136 officials. The court considered that the change of classification in 1963 had resulted in the disappearance of the reference index in the 1953 agreement. It consequently remitted the cases to the court below to determine whether a practice had been established or, if none had been, to determine the value that the reference index would have reached had it been retained.
19. The Court of Cassation directed that the case should be reheard by the Besançon Court of Appeal.
20. The Colmar Court of Appeal, with which appeals concerning the IDP had also been lodged, delivered judgments on 23 September 1993 in which it held, having regard to the terms of the Court of Cassation’s judgments of 22 April 1992, that the reference index had disappeared and that a practice had been established of paying the IDP at 3.95 times the value of the point since the amendment of 17 April 1974.
21. In a judgment of 13 October 1993 the Besançon Court of Appeal, after rehearing the case pursuant to the Court of Cassation’s decision, held that the agreement of 28 March 1953 was lawful, that it had not lapsed and that no other practice had been established. It consequently ordered that the IDP should be calculated on the basis of 6.1055% of the minimum wage, which percentage corresponded to the amount of the IDP as calculated on the basis of twelve points at 1 January 1953. The Besançon Court of Appeal said, in particular:
“As the 1953 agreement has not been denounced and the IDP must continue to be paid, the only issue to be resolved, after the partial quashing of the judgments delivered by the Metz Court of Appeal, is the new method of calculating the allowance in 1963, which may be based either on a practice or, failing that, on the determination of the value which the reference index would have reached on each due date of the allowance if that index had been retained.
… The unilateral change made in 1963 to the method of calculating the IDP cannot have given rise to a practice which, moreover, would itself have been unilaterally changed in 1974 in breach of the relevant rules. …
If the reference index disappears, it is necessary to create a linking index in accordance with the contracting parties’ intention.
The method adopted by the social-security offices in 1963 and 1974, whereby the amount of the IDP was regarded as being fixed and was divided by the new value of the point to obtain the number of points necessary for calculating the IDP, disregards the general growth of salaries and has resulted in a progressive erosion of the IDP, as is shown by studies of the progression of the IDP compared with basic pay which the plaintiffs adduced in evidence.
In order for the common intention of the parties to be carried out, the allowance must be the same for officials in the three départements, irrespective of their category, and the benefits acquired by employees must be retained.
A comparison of the IDP with the minimum wage is revealing. … In January 1990, for instance, the IDP as calculated on the basis of 3.95 points, the point having a value of FRF 38.652, amounted to FRF 152.67, whereas if it had been calculated on the basis of 6.1055% of the statutory minimum wage (SMPG), which was then set at FRF 5,596, the IDP would have been FRF 341.66.
…”
22. The Court of Appeal accordingly ordered a fresh hearing to enable the plaintiffs to calculate the amounts of back pay to which they were individually entitled.
23. During the passage through Parliament of a bill on public health and social welfare, which began on 26 October 1993, the government took the initiative of tabling an amendment. The debates on that amendment, which became section 85 of the eventual Act, took place mainly on 30 November 1993 in the National Assembly and 13 December 1993 in the Senate. Clause 85 of the bill was adopted.
24. Section 85 of the Act provided that, subject to any court judgment to the contrary that had become final on the merits, the amount of the IDP introduced by the agreement of 28 March 1953 for staff of the socialsecurity bodies administering the general social-security scheme and their dependent institutions in the départements of Bas-Rhin, Haut-Rhin and Moselle would, with effect from 1 December 1983, be set at 3.95 times the value of the point as determined under the pay agreements and paid twelve times a year, notwithstanding any provisions to the contrary in collective or individual agreements that were in force on the date of commencement of section 85.
25. An application was made to the Constitutional Council by a number of members of parliament who considered, in particular, that section 85 of the Act contravened the principle of the separation of powers in that it represented an interference by the legislature with pending court proceedings and that, further, the section in issue, which related to employment law, was unconnected with the purpose of the Act.
26. In a decision of 13 January 1994 the Constitutional Council held that the legislative provisions complained of were not unconstitutional, on the following grounds:
“In setting the amount of the ‘special difficulties’ allowance at 3.95 times the value of the point as determined by applying pay agreements of 8 February 1957, with retrospective effect from 1 December 1983, the legislature intended to stop further conflicting decisions being given by the courts and thereby prevent fresh disputes arising whose outcome might adversely affect the financial stability of the social-security schemes in issue.
The legislature expressly preserved the position of persons who had obtained a court decision that had become final on the merits. There is nothing in the Act to warrant the inference that the legislature departed from the principle that criminal provisions must not have retrospective effect. The legislature was entitled, subject to compliance with the aforementioned principles, to make use, as it alone could do in the circumstances, of its power to make retrospective provisions in order to resolve, in the general interest, situations that had arisen from the conflicting court decisions mentioned above. That being so, the impugned provisions are not contrary to any rule, nor do they offend any constitutional principle. …”
27. Section 85 of the Act (Law no. 94-43) was consequently held to be constitutional. The Act was promulgated on 18 January 1994.
28. On 15 February 1995 the Court of Cassation, ruling on the appeal brought by the Sarreguemines CPAM, the prefect of the Lorraine region and the Alsace Regional Director of Health and Social Affairs against the Besançon Court of Appeal’s judgment of 13 October 1993, quashed that judgment in part, without ordering a rehearing by another court of appeal, in the following terms:
“... However, section 85 of the Act of 18 January 1994 sets the amount of the IDP, for each payment period, at 3.95 times the value of the point resulting from the application of the pay agreements concluded in accordance with the national collective agreement of 8 February 1957 covering the staff of social-security bodies. In that the judgment under appeal adopts a different method of calculation from the one laid down in the aforementioned provision, it must be quashed.
In accordance with Article 627, second paragraph, of the New Code of Civil Procedure, the case should be disposed of by applying the appropriate rule of law.
For these reasons …:
Quashes the judgment delivered on 13 October 1993 by the Besançon Court of Appeal but only in so far as that court held that the IDP should be calculated on the basis of 6.1055% of the statutory minimum wage;
Holds that it is unnecessary to order a rehearing of the case;
Holds that the amount of the IDP must be set, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies;
…”
29. In a judgment of 2 March 1995 the Court of Cassation likewise dismissed, in similar terms, the appeals on points of law brought against the Colmar Court of Appeal’s judgments of 23 September 1993.
30. On 15 and 17 April 1991 Mr Zielinski and forty-seven other officials, represented by an officer from the French Democratic Labour Confederation (Confédération française démocratique du travail – “CFDT”) likewise applied to the industrial tribunal seeking payment of arrears of the IDP (assessed at FRF 31,131.11 for the applicant) and an order that this allowance should in future be calculated on the basis of twelve points as provided in the 1953 agreement.
31. Before the Metz industrial tribunal the prefect of the region and the Director of Health and Social Affairs challenged the officials’ arguments and sought to have the proceedings stayed pending the Court of Cassation’s ruling on the appeals in the identical cases that had given rise to the Metz Court of Appeal’s twenty-five judgments of 26 February 1991.
32. On 28 June and 12 July 1991 the second applicant and forty-eight other officials, represented by the CFDT officer, lodged identical claims with the Metz industrial tribunal.
33. In judgments of 4 December 1991 (Mr Zielinski) and 21 October 1992 (Mr Pradal) the Metz industrial tribunal awarded the plaintiffs back payment of the allowance and found that the IDP should be calculated on the basis of twelve monthly points, in accordance with the 1953 agreement. It held, inter alia:
“The agreement lays down that this allowance is equal to twelve times the value of the point, set by the national agreement covering the staff of social-security bodies.
In the wake of changes made to the latter agreement in amendments of 10 June 1963 and 17 April 1974 concerning the method of calculating salaries and the classification of jobs and the effects of those changes on the value of the point, the boards of the bodies that signed the 1953 agreement decided to keep the IDP at a constant value by means of adjustments.
It is established that those adjustments had the effect of reducing the IDP to the equivalent of six and then 3.95 points.
The terms of the 1953 agreement are precise and the basis of twelve points could not be changed unilaterally.
The social-security bodies should have denounced the agreement if they considered that the adjustments made in 1963 and 1974 resulted in an excessive burden.
Such a change must be disregarded unless the parties agreed it in advance, and the silence of the other signatories to the agreement cannot be regarded as signifying their approval (Article L. 143-4 of the Labour Code) ...” (wording of the judgment of 4 December 1991)
34. Acting on the authority of the prefect of the region, the Director of Health and Social Affairs appealed against those judgments.
35. In judgments of 19 April (Mr Pradal) and 20 April (Mr Zielinski) 1993 the Metz Court of Appeal upheld the industrial tribunal’s judgments, holding that the allowance had been changed unilaterally in breach of the Collective Agreements Act of 1950, on the following grounds in particular:
“In the final analysis, the calculation of this allowance must be based on the value of the point as determined under the amendments of 10 June 1963 and 17 April 1974 and those in force on each occasion when the allowance becomes payable.
By Article 1134 of the Civil Code, lawfully concluded agreements are legally binding on those who have made them. They can only be revoked by common consent or on grounds permitted by law. Similarly, by Article 135-1 of the Labour Code, collective employment agreements are binding on all those who have signed them.
…
There is no escaping the fact that the agreement of 28 March 1953 has not been denounced by any of the parties. It must consequently continue to be implemented and the two reductions in the multiplier were imposed in breach of both Article 1134 of the Civil Code and the provisions governing collective employment agreements.
The allowance must consequently be paid on the basis of twelve points, as provided in the aforesaid agreement.
…”
36. On 2 March 1995 the Court of Cassation gave judgment as follows on the appeal brought by the prefect and the Director of Health and Social Affairs against the Metz Court of Appeal’s judgments of 19 and 20 April 1993 (in respect of Mr Zielinski and Mr Pradal) and also against two other judgments, of 21 April and 6 September 1993, 150 officials being concerned in all.
“As to the application of section 85 of the Act of 18 January 1994 (Law no. 94-43) on public health and social welfare:
…
Section 85 of the Act of 18 January 1994 (Law no. 94-43), however, which is applicable to pending proceedings, including those pending before the Court of Cassation, is intended, in the absence of agreement between the parties, to remedy the disappearance of a reference index and thus enable the amount of an allowance to be calculated. This legislative provision, on whose application the parties were able to present argument, does not amount to an intervention by the State in proceedings between it and private individuals. It does not call in question final court decisions and has been declared to be constitutional by the Constitutional Council. It follows that the provision is not contrary to Article 6 § 1 or Article 13 of the European Convention on Human Rights and Fundamental Freedoms.
As to the ground, raised of the Court’s own motion, notice having been given to the parties:
Having regard to section 85 of the Act of 18 January 1994 (Law no. 94-43) on public health and social welfare,
In reaching its decision that the amount of the so-called special difficulties allowance must be calculated on the basis of twelve points as provided in the agreement of 28 March 1953 and that the value of the point must be that adopted for the calculation of pay in the collective agreements in force, the Court of Appeal held that there was no contractual provision which made the retention of the chosen index conditional upon retention of the classification in force at the time of the agreement and that to decide the contrary would be to add to the terms of the agreement, which were perfectly clear and precise, and to alter its nature. It added that the agreement in dispute did not exclude taking into account changes in the value of the point that resulted from the grading reorganisation and that accordingly the value of the point as determined under the amendments of 10 June 1963 and 17 April 1974 had to be adopted for calculating the IDP. It noted, further, that the new methods of calculating the IDP that had been adopted following the classification changes in 1963 and 1974 had not been agreed on by all the signatories to the agreement of 28 March 1953 and that as the agreed index remained applicable, it was unnecessary to determine whether an alternative practice existed. Lastly, it noted that the agreement of 28 March 1953 was a collective agreement which could be called in question only if it were revised or denounced, which it had not been.
Section 85 of the Act of 18 January 1994 (Law no. 94-43), however, lays down the amount of the so-called special difficulties allowance, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective agreement of 8 February 1957 covering the staff of social-security bodies. In so far as they adopt a method of calculating the amount of this allowance that differs from the one laid down in the aforementioned enactment, the judgments under appeal must be quashed.
In accordance with Article 627, second paragraph, of the New Code of Civil Procedure, the case should be disposed of by applying the appropriate rule of law.
For these reasons:
Quashes the judgments delivered in these cases on 19, 20 and 21 April and 6 September 1993 by the Metz Court of Appeal but only in so far as that court held that the amount of the so-called special difficulties allowance must be calculated on the basis of twelve points, the value of the point being that adopted for the calculation of pay in the collective agreements currently in force;
Holds that it is unnecessary to order a rehearing of the cases;
Holds that the amount of the IDP must be set, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies;
...”
37. On 17 August 1990 (Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber and Mr Cossuta) and 28 August 1990 (Ms Memeteau) the applicants applied to the industrial tribunal on the basis of the 1953 agreement seeking payment of arrears of the IDP and calculation of that allowance on the basis of twelve points in future. No compromise having been reached at the conciliation hearing on 18 December 1990, the case was referred to the adjudication panel on 9 April 1991.
38. In nine judgments of 2 July 1991 the Colmar industrial tribunal allowed the applications on the following grounds:
“... The agreement signed on 28 March 1953 ... introducing the special difficulties allowance (IDP) of twelve points is still in force and has acquired the force of law.
On 2 June 1953 the Ministry gave its approval to the agreement.
Following changes to the classification of the staff of social-security bodies in 1963 and 1974, this allowance was reduced by decision of the Common Interests and Coordination Department of the Social Security Offices.
This department, an advisory body which was not a signatory to the 1953 agreement, took that unilateral decision and had it approved by the social-security regional head office and the boards of the local offices.
Those changes are consequently not binding [on the plaintiffs], especially as in the letter of 11 February 1989 the Ministry of Solidarity, Health and Social Welfare stated that the agreement must be fully implemented.
Apart from the changes in the value of the point that were made unilaterally, no subsequent changes were made to the 1953 agreement by the signatory parties.
Clause 63 of the national collective agreement – schedule 7 – provides: ‘This agreement cannot in any circumstances constitute a ground for reducing benefits acquired by staff at the date of signature.’
The 1953 agreement consequently remains applicable in its entirety.
...”
39. The Colmar CPAM and the prefect of the Alsace region, who was represented by the Alsace Regional Director of Health and Social Affairs, appealed against those judgments on 10 September 1991.
40. On 12 July 1994 the Colmar Court of Appeal set the case down for hearing on 18 October 1994. On 30 September 1994, after the appellants had filed submissions in which they relied on the Act of 18 January 1994, the applicants lodged their pleadings in reply.
41. In nine decisions of 18 May 1995 the Colmar Court of Appeal gave judgment against the applicants on the ground that:
“... pursuant to [section 85 of the Act of 18 January 1994 (Law no. 94-43)], the judgment appealed against must be set aside, as the claim covers a period after 1 December 1983. ...”
42. On 13 and 17 July 1995 the applicants appealed on points of law to the Court of Cassation. They filed their full pleadings on 13 October 1995 and a supplementary pleading on 10 February 1996. Pleadings in reply were filed on 22 December 1995. The reporting judge, who was appointed on 1 February 1996, submitted his report on 16 February 1996.
43. In a judgment of 18 June 1996, after a hearing on 6 May 1996, the Court of Cassation declared the applicants’ appeals inadmissible as follows:
“... in matters in respect of which the parties are not required to be represented by a member of the Conseil d’Etat and Court of Cassation Bar the appeal on points of law and subsequent procedural steps must be made, taken, handed over or sent by the party himself or by any representative with special authority to act.
The notices of appeal submitted by the parties do not contain even a summary statement of the grounds of appeal, and the pleadings that do contain such a statement, which were dispatched within the three-month period laid down in Article 983 of the New Code of Civil Procedure, were all drawn up by a representative who produced no special authority to act.
The appeals are accordingly inadmissible. ...”
44. The national, regional and local health-insurance offices have a public-service mission (Constitutional Council decision no. 82-148 DC of 14 December 1982), and this explains both why they are vested with special governmental powers and why they come under the supervision of the minister responsible for social security. They manage the compulsory social-security scheme, with a budget of their own distinct from that of the State.
The minister in charge of social security is responsible for overseeing them, a task in which he is assisted by departments of his ministry, namely a central department and regional departments of health and social affairs, together with a national inspectorate of social affairs. The minister is also represented by the prefects of the départements or regions in their capacity as persons exercising State authority and as delegates of the government, the direct representatives of the Prime Minister and each of the other ministers.
The power of supervision is exercised firstly over persons, it being possible, on certain grounds, to dissolve or suspend the entire board of a social-security office, dismiss or require the resignation of certain members of such a board, and give or withhold consent to the appointment of managerial staff, as well as draw up lists of suitable candidates. The power of supervision also extends to decisions, the regional ministerial departments having the power to quash or suspend, on certain grounds, decisions of boards or directors of local social-security bodies and also to oppose decisions of national bodies. Certain special decisions of socialsecurity offices are also subject to an approval procedure, namely constitutional and procedural rules and collective agreements laying down staff regulations and the rules governing retirement.
Lastly, social-security bodies are under the supervision of the Minister for Economic Affairs and Finances, being subject to monitoring by regional Treasury officials and the Court of Audit and also to audits by the national Inspectorate of Public Finances.
45. The relevant section of the Act reads as follows:
“Subject to any court decisions to the contrary that have become final on the merits, the amount of the so-called special difficulties allowance introduced by the agreement of 28 March 1953 for staff of the social-security bodies administering the general social-security scheme and their dependent institutions in the départements of BasRhin, Haut-Rhin and Moselle shall, with effect from 1 December 1983 and for each payment period, be set at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies, notwithstanding any provisions to the contrary in collective or individual agreements in force on the date of publication of this Act. It shall be paid twelve times a year. With effect from the same period, the annual Christmas bonus shall be increased so as to reflect the amount of the so-called special difficulties allowance awarded in respect of the month of December.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70847
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF CHEREMSKOY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary and non-pecuniary damage, costs and expenses - financial award
TEXT: 4. The applicant was born in 1934 and lives in the city of Snizhne, Ukraine.
5. On 12 June 2000 the Snizhne City Court ordered the State Holding Company “Torezantratsit” to pay the applicant UAH 3,448.60 in salary arrears and other payments.
6. On 26 June 2000 the Torezk City Bailiffs’ Service instituted enforcement proceedings in respect of that judgment.
7. On 2 March 2004 the Bailiffs’ Service informed the applicant that the judgment of 12 June 2000 could not be executed due to the large number of enforcement proceedings against the debtor, and that the procedure for the forced sale of assets belonging to the debtor has been suspended due to the moratorium on the forced sale of property belonging to State enterprises introduced by the Law of 29 November 2001.
8. On 28 October and 22 December 2004, respectively, the full amount of the judgment debt was paid to the applicant in two instalments of UAH 2,679.70 and 768.90.
9. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91501
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KUDESHKINA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
TEXT: 6. The applicant was born in 1951 and lives in Moscow. At the material time she had been working as a judge for 18 years.
7. From 6 November 2000 the applicant held judicial office at the Moscow City Court.
8. In 2003 the applicant was appointed to sit on a criminal case concerning abuse of powers by a police investigator, Mr Zaytsev. He was accused of carrying out unlawful searches while investigating a case of large-scale customs and financial fraud involving a group of companies and, allegedly, certain high-ranking state officials.
9. In June 2003 the court, composed of the applicant as judge and two lay assessors, Ms I. and Ms D., began to examine the case. During the hearing on 26 June 2003 the court invited the public prosecutor to present evidence for the prosecution. He replied that the court had failed to ensure the attendance of the prosecution witnesses and objected to the manner in which the proceedings were being conducted. On the following day, Friday 27 June 2003, he challenged the applicant as judge on the grounds of bias which she had allegedly shown when questioning one of the victims. Other parties to the proceedings, including the victim in question, objected to the challenge. On the same day the lay assessors dismissed the challenge, following which the public prosecutor challenged both lay assessors. The parties to the proceedings objected to the challenge and it was dismissed. On the same day the prosecutor filed another challenge to the lay assessors on the grounds of bias, which was also dismissed by the applicant on the same day.
10. On Monday 30 June 2003 both lay assessors filed a motion to withdraw from the proceedings.
11. On 1 July 2003 the public prosecutor declared that the minutes of the proceedings were being kept incorrectly and requested access to the records. The court refused his motion, on the grounds that the minutes could be accessed within three days of their completion.
12. On 3 July 2003 the applicant allowed the withdrawal of both lay assessors, having found as follows:
“At the hearing the lay assessors I and D declared their withdrawal from the proceedings, on the grounds that they were unable to participate in the examination of the case because of the [public prosecutor’s] biased and discourteous behaviour towards them and due to the perverse environment at the hearing, for which he is responsible and which made them ill.”
13. According to the applicant, the Moscow City Court President, Ms Yegorova, then during the proceedings called the applicant to her office and asked her about the details of the proceedings, putting certain questions regarding the conduct of the trial and the decisions on the above motions.
14. The parties disagree on the circumstances of the applicant’s withdrawal from the case. According to the applicant, the Moscow City Court President removed her from sitting in the case on 4 July 2003, the day after the lay assessors’ withdrawal. According to the Government, the case remained with the applicant until 23 July 2003, when it was withdrawn from her by the Moscow City Court President on the grounds that she had delayed forming a new court composition and that there was a risk of further delay in view of her request for annual leave from 11 August to 11 September 2003, filed on 22 July 2003.
15. On 23 July 2003 the Moscow City Court President assigned the case to judge M.
16. The applicant subsequently sat as a judge in several other criminal cases.
17. In October 2003 the applicant submitted her candidature in general elections for the State Duma of the Russian Federation. Her election campaign included a programme for judicial reform.
18. On 29 October 2003 the Judiciary Qualification Board of Moscow granted the applicant’s request for suspension from her judicial functions pending the elections in which she was standing as a candidate.
19. On 1 December 2003 the applicant gave an interview to the radio station Ekho Moskvy, which was broadcast on the same day. She made the following statements:
“Ekho Moskvy (EM): ... it has come to our knowledge that an acting judge of the Moscow City Court has expressed criticism of the existing judicial system and mentioned certain instances of pressure being exerted on the court ...
Olga Kudeshkina (OK): Indeed. Years of working in the Moscow City Court have led me to doubt the existence of independent courts in Moscow. Instances of a court being put under pressure to take a certain decision are not that rare, not only in cases of great public interest but also in cases encroaching on the interests of certain individuals of consequence or of particular groups.
...
EM: So what about that case in which you were confronted with such bare and ruthless pressure, what was it?
OK: Some of you have probably heard about the criminal case concerning the smuggling of furniture which was subsequently sold in the large Moscow shopping centres ‘Tri Kita’ and ‘Grand’. The damage caused by this crime, as the investigation has revealed, amounted to several million roubles. Among those who came within the sights of the investigators, led by Zaytsev, were extremely influential and prominent people. This case received great publicity after the Prosecutor General hastily withdrew the file from the investigation unit of the Ministry of the Interior and charged the investigator Zaytsev [with abuse of official powers].
EM: So you examined Zaytsev’s case, and not that of the furniture dealers?
OK: Yes, [the case] against Zaytsev. First the Moscow City Court examined the case and acquitted him. What is more, the court expressly stated in the judgment that the office of the Prosecutor General itself sometimes failed to conform to, or was in direct breach of, the law. The reputation of the Prosecutor General’s Office had been publicly challenged.
EM: And the judgment was quashed, as I remember?
OK: Yes, it was. The Panel of the Supreme Court reversed the judgment and remitted it to the Moscow City Court for a fresh examination.
EM: And you received the case?
OK: Yes. The Panel of the Supreme Court in its decision indicated the points to be taken account of in the new proceedings.
EM: So far as I know you were unable to hear the case to the end ... What happened?
OK: In the course of the examination the case was withdrawn from me by the Moscow City Court President, Yegorova, without any explanation.
...
EM: What happened just before the withdrawal?
OK: During the hearing the court was considering the evidence for the prosecution and started to cross-examine the victims. However, the public prosecutor, a representative of the Prosecutor General’s Office, must have reckoned that the victims’ testimonies ran contrary to the prosecution’s version of events. He therefore attempted to bring the proceedings to naught. In 20 years in the judiciary this was the first time that I was confronted with such behaviour ... he was trying to keep the court within the strict bounds of the questions he thought the court ought to ask the victims ... if the court went beyond these limits he started challenging the court and bombarding it with unreasoned requests.
...
EM: ... what are judges supposed to do in such a situation, when a party to the proceedings acts in breach of the law? Can you seek help, support or at least advice?
OK: Yes, the court ... could request the Prosecutor General to replace the public prosecutor on the grounds of undue conduct in the proceedings. But at that very moment the court president called me to her office.
EM: How come the court president could intervene in the proceedings?
OK: Of course she could not. Criminal procedure in Russia is adversarial; in accordance with the law the court acts neither for the prosecution nor for the defence ... Here, it was expressly brought home to me that the President of the Moscow City Court and the agent of the Prosecutor General’s Office had common cause in this case.
...
EM: ... do you think this case was exceptional or is this a widespread phenomenon?
OK: No, as far as I am aware, this is not the only case where the courts of law are used as an instrument of commercial, political or personal manipulation. This is a dangerous state of affairs because no one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone ... I do realise what kind of statement I have just made. But if all judges keep quiet this country may soon end up in a [state of] judicial lawlessness.”
20. On 4 December 2003 two newspapers – Novaya Gazeta and Izvestiya – published interviews with the applicant.
21. The interview with Novaya Gazeta, in so far as relevant, read as follows:
“... Over the past 20 years working in the courts of law I have ... dealt with various cases: civil, criminal and administrative. Having examined hundreds, if not thousands, of cases ... I have seen a bit of everything, I know the judicial system inside out. I would not have imagined anything like what happened between me and Yegorova. In Siberia, by the way, the courts are much purer than in Moscow. There you cannot imagine such brutal manipulation and would not be talking about corruption to such an extent.
...
This was not a conflict, but unprecedented pressure on justice. Yegorova called me several times, whenever the prosecutor thought that the proceedings were not going the right way; on the last occasion I was called out of the deliberations room, which is unheard of. Never in my life had I been shouted at like that. I would not have gone if I knew what I was being called for. ...
It was that conflict which made me consider changing my career, should I succeed in the elections. There is a job for me in the highest legislative body, namely the problems of justice. I doubt that any provincial courts would harbour scandals as outrageous as those in the Moscow City Court, but this a question of degree, while the problems are more general.
A judge, although defined by law as the embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president. The mechanism of how a decision is imposed on a judge is not to contact [the judge] directly: instead, a prosecutor or an interested person calls the court president, who then tries to talk the judge into a ‘right’ decision, first gently, by offering advice or a professional opinion, then pushing him or her more strongly to take the ‘correct’ decision, that is, one that is convenient to somebody. A judge, on the other hand, is dependant on the president for the daily basics, such as accommodation grants, bonuses, and also the distribution of cases between the judges. The president can always find a flaw in the judge’s work if he or she wishes (as simple as exceeding judicial time-limits, a situation impossible to avoid in practice, given the volume of work). On these grounds the president may seek termination of the judge’s office, which is decided upon by the qualification board, usually controlled by the same court bureaucrats. ... in reality a court still more often than not takes the position of the prosecution. The courts then become an instrument of commercial, political or personal manipulation.
No one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone. Today it is investigator Zaytsev, investigating the smuggling of furniture, tomorrow it may be any one of us ...”
The interview with Izvestiya, in so far as relevant, read as follows:
“Izvestiya: Why did you decide to stand for election?
OK: Looking around, one is just stunned by the lawlessness. The law applies quite strictly to ordinary people, but this is not the case when it comes to persons holding important posts. But they break the law too. I would like to participate in making laws that would provide for real independence of the judicial power ...
Izvestiya: What does the pressure look like in practice?
OK: There is a kind of consultation, legal advice, usually in cases of great public interest. Sometimes this has a healthy pretext, such as academic debate. The judge expresses his position, and the deputy president replies. The court president rarely speaks to the judges directly. Through such conventions the court administration tests each judge to see how flexible he is, so that when it comes to [the allocation of cases] they know who can be entrusted with a delicate case and whom to avoid.
...
Izvestiya: So how exactly was pressure exerted on you?
OK: The public prosecutor exerted pressure on me. You put a question to the victim, and he immediately challenges you. In 20 years of practice I have not seen anything like it. Zaytsev was accused of abuse of official powers. He carried out a search without authorisation from a prosecutor. The law allows this in urgent cases, but the investigator must report to the prosecutor within 24 hours. Zaytsev reported to the prosecutor [in time], and it was for the court to verify whether there had indeed been any urgency in conducting those searches. Therefore it was necessary to examine the criminal case files against the firms ‘Grand’ and ‘Tri Kita’ who were dealing in furniture. Through his constant objections, however, the public prosecutor would not allow the court to touch this subject ...”
22. On 7 December 2003 the general elections took place. The applicant was not elected.
23. On 24 December 2003 the Judiciary Qualification Board of Moscow reinstated the applicant in her judicial functions as of 8 December 2003.
24. On 2 December 2003 the applicant lodged the following complaint with the High Judiciary Qualification Panel:
“I request that the President of the Moscow City Court, Olga Aleksandrovna Yegorova, be charged with a disciplinary offence for exerting unlawful pressure on me in June 2003, when I was presiding in the criminal proceedings against P.V. Zaytsev. She demanded that I give an account on the merits of this case while its examination was underway, and that I inform her about the decisions the court was about to take; she even called me out of the deliberations room for that purpose. [She] insisted on removing certain documents from the case file, forced me to forge the minutes of the hearing, and also recommended that I ask the lay assessors not to turn up for the hearing. Following my refusal to bow to this unlawful pressure [she] removed me from the proceedings and transferred the case to another judge.
As to the particular circumstances, they were as follows.
I was appointed to examine the case against Zaytsev, and the court, acting in a bench with two lay assessors, I and D, started its examination.
Having started the trial, the court questioned a number of victims. The public prosecutor who was representing the Prosecutor General’s Office clearly decided that this questioning was not favourable to the prosecution and therefore did everything possible to disrupt the hearing. For no reason he challenged me as a judge, the lay assessors and the whole composition of the court. His motions were made in a manner that was humiliating, offensive and insulting to the court, and were clearly untrue. Soon after the challenge was rejected by the court, the Moscow City Court President Yegorova called me to her office.
In violation of Article 120 of the Constitution and section 10 of the Law ‘On the Status of a Judge in the Russian Federation’, the Moscow City Court President demanded an explanation from me as to why the lay assessors and I were putting one or other question to the victims in the trial and why one or other motion by the parties was refused or accepted. In my presence the Moscow City Court President had a telephone conversation with the [First Deputy Prosecutor General], who had issued the indictment against Zaytsev. Yegorova informed [the First Deputy Prosecutor General] that the judge was being called to account with regard to what was going on in the proceedings.
Back in my office I told the lay assessors what had happened. By then they were already reduced to despair by the repeated groundless objections and insulting challenges against them on the part of the public prosecutor, and they therefore considered it impossible to continue to take part in the proceedings. One of the assessors, Ms I., was seeking medical assistance for a health problem. For these reasons they decided to withdraw from the proceedings and to state frankly in their request that the reason for their withdrawal was the pressure put on them by the agent of the Prosecutor General’s Office.
At the court’s following meeting the lay assessors announced their withdrawal on the above grounds. Their written requests were given to me to be enclosed in the file, and the court adjourned for deliberations.
I was again called from the deliberations room by the Moscow City Court President, Yegorova. This time she demanded that I explain what we were doing in the deliberations room and what decisions we were going to take. Her main point was that there should have been no mention in the assessors’ written requests that the reason for their withdrawal was pressure being exerted on the court. The Moscow City Court President also insisted on excluding from the hearing minutes any mention of the behaviour by the public prosecutor which the assessors had regarded as pressure. In essence, Yegorova was pushing me to forge the case file. Moreover, she proposed that I ensure that the assessors did not turn up for the hearing, literally ‘ask them not to come to the court any more’. The aim was obvious – if the assessors [did] not appear the proceedings themselves [would] fall apart. It seemed that for some reason [she] did not want the case to continue to be examined in this composition. The unlawfulness of the Moscow City Court President’s actions was obvious.
I followed none of her instructions. The lay assessors’ requests were included in the file, the court allowed their withdrawal and stated that the reason for it was the pressure being applied by the Prosecutor General’s Office. The hearing minutes reflected everything that happened in the proceedings.
Once I signed [the minutes] Yegorova withdrew the case from me and transferred it to another judge without stating reasons.
I consider that such acts on the part of the Moscow City Court President, Olga Alexandrovna Yegorova, are incompatible with the status of a judge and undermine judicial authority, and are thus destructive for justice, for which she must be held liable. This is what I hereby request from the High Judiciary Qualification Panel of the Russian Federation.”
25. On 15 December 2003 Ms D., one of the lay assessors who had, on 3 July 2003, withdrawn from the criminal case against Mr Zaytsev, sent a letter to the High Judiciary Qualification Panel in support of the applicant:
“Further to the publication of an interview with judge Kudeshkina ... I decided to write you because I participated in Zaytsev’s case as a lay assessor.
I entirely support everything judge Kudeshkina said in her interview.
During the trial the [public prosecutor] did everything to prevent the court from hearing the case. He was rude and aggressive to the court; in his interventions and requests he deliberately misrepresented what was going on in the proceedings, and he repeatedly filed objections to the court composition. These motions were made in a humiliating, even obnoxious manner. By doing so he was exerting pressure on the court, to force it to give a judgment that was convenient to him, or, alternatively, to set the court hearing at naught.
I was appalled by that, but what was my surprise when I learned about the pressure also being exerted on judge Kudeshkina by the court President!
We, the assessors, were there when, during the interval, judge Kudeshkina received a phone call from the court President to come and see her. After some time judge Kudeshkina came back, she was upset and depressed. To our question she replied that the court President Yegorova had accused her that the court was reluctant to examine the case; that the lay assessors were asking the victims the wrong questions; and that she had suggested that judge Kudeshkina arrange for the lay assessors not to appear at the court proceedings.
... On the following morning ... both Ms I. and I decided to withdraw from the proceedings.
At the start of the hearing on that day the public prosecutor, before he was called by the court, began with a motion in which he, in essence, again degraded and insulted me by repeating [a] comment made by [the victim] outside the courtroom about me ... he did not react to the reproof by the judge.
After that ... I declared that I withdrew from sitting in the proceedings on the grounds of the public prosecutor’s rude and offensive behaviour, which could not be defined as anything but pressure on the court. Ms I. then withdrew as well.
Before the trial I had never met anybody [involved in the proceedings]: not the judge, not Zaytsev, not the public prosecutor, not the defence counsel; I had no personal interest in the case. The public prosecutor’s behaviour was therefore inexplicable and came as a shock to me.
At about 6 p.m. judge Kudeshkina was called out from the deliberations room where the court was taking a decision. It was the court President who called her...
On the following day ... judge Kudeshkina told us that the court President had shouted at her, demanding that she refrain from enclosing [the assessors’] withdrawal requests in the file and not refer in the court’s decision to the reason for the withdrawal.
Ms I. and I were shocked by what was going on. First it was the public prosecutor who put pressure on us at the hearing, and then it turned out that the [court President] joined in.
What a surprise it was when the [court’s Deputy President] came into the deliberations room and started trying to persuade me and Ms I. not to comment on the public prosecutor’s behaviour in the court decision, but to state in our requests and in the court decision that we withdrew on medical grounds. She said that they would invite me and Ms I. to take part in other proceedings.
Ms I. and I refused to change our requests, and after the Deputy President left the court issued the decision [to allow withdrawal] which reflected what had happened.
I have been a lay assessor before, I have taken part in several other proceedings, but this was the first time that I came across such pressure being exerted on the court.
I request you to look into the above events and to take action against the [court’s President and her Deputy].”
26. On 16 December 2003 the other lay assessor who had withdrawn, Ms I., sent a similar letter to the High Judiciary Qualification Panel.
27. Similar allegations were made by Ms T., a court secretary, in a letter to the President of the Supreme Court of the Russian Federation. She related her participation in Zaytsev’s case and volunteered to testify that the applicant had indeed been frequently called up by the court president and had been distressed because of the intrusion in the court proceedings. She also complained about the unacceptable behaviour of the public prosecutor, who had forced, in her opinion, the lay assessors to withdraw.
28. Following the applicant’s complaint of 2 December 2003, the High Judiciary Qualification Panel appointed Mr S., a judge of the Moscow City Commercial Court, to examine the allegations against Ms Yegorova.
29. The Government submitted a copy of a report prepared by Mr S. and submitted to the High Judiciary Qualification Panel, which contained the following conclusions:
– during the hearing of the criminal case against Zaytsev the applicant herself consulted Ms Yegorova, seeking advice on the conduct of the proceedings in view of the public prosecutor’s behaviour;
– further communications between the applicant and Ms Yegorova and, on another occasion, the deputy court president, took place in private and their content could not be established;
– there was insufficient evidence that Ms Yegorova exerted pressure on the applicant, since both Ms Yegorova and the deputy court president denied the allegations;
– Ms Yegorova transferred the criminal case file against Zaytsev to another judge on the grounds that Ms Kudeshkina “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president’s advice on the case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina, in connection with the examination of Zaytsev’s case and other criminal cases”.
30. On 11 May 2004 the High Judiciary Qualification Panel reported to the President of the Supreme Court their findings concerning the complaint against Ms Yegorova. He decided, without elaborating on the reasons, that there were no grounds for charging Ms Yegorova with a disciplinary offence.
31. On 17 May 2004 the High Judiciary Qualification Panel decided to dispense with disciplinary proceedings against Ms Yegorova. No copy of this decision was provided to the Court. On the same day the applicant was informed by letter that her complaint against the court president had been examined and that no further action was considered necessary.
32. In the meantime, on an unidentified date prior to the applicant’s above reinstatement in the judicial function, the President of the Moscow Judicial Council sought termination of the applicant’s office as judge. He applied to the Judiciary Qualification Board of Moscow, alleging that during her election campaign the applicant had behaved in a manner inconsistent with the authority and standing of a judge. He claimed that in her interviews she had intentionally insulted the court system and individual judges and had made false statements that could mislead the public and undermine the authority of the judiciary. The applicant filed her objections.
33. The hearing before the Judiciary Qualification Board of Moscow was scheduled for 24 March 2004, but was then adjourned until 31 March 2004, at the applicant’s request, on health grounds. It was subsequently adjourned for the applicant’s failure to appear until 14 April 2004, then until 28 April 2004, 12 May 2004 and, finally, 19 May 2004.
34. On 19 May 2004 the Judiciary Qualification Board of Moscow examined the Moscow Judicial Council’s request. The applicant was absent from the proceedings, apparently without any valid excuse. The Judiciary Qualification Board of Moscow decided that the applicant had committed a disciplinary offence and that her office as a judge was to be terminated in accordance with the Law “On the Status of Judges in the Russian Federation”. The decision, in so far as relevant, read as follows:
“During her election campaign, in order to win fame and popularity with the voters, judge Kudeshkina deliberately disseminated deceptive, concocted and insulting perceptions of the judges and judicial system of the Russian Federation, degrading the authority of the judiciary and undermining the prestige of the judicial profession, in violation of the Law On the Status of Judges in the Russian Federation and the Code of Honour of a Judge in the Russian Federation.
Thus, in November 2003, when meeting with [members of her] constituency, judge Kudeshkina stated that the Prosecutor General’s Office exerts unprecedented pressure on judges during examination of a number of criminal cases by the Moscow City Court.
In the live broadcast of her interview with the radio station Ekho Moskvy on 1 December 2003, judge Kudeshkina stated that ‘years of working in the Moscow City Court have led me to doubt the existence of independent courts in Moscow’; ‘a judge, although defined by law as an embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president’; ‘the courts of law are used as an instrument of commercial, political or personal manipulation’; ‘if all judges keep quiet this country may soon end up in a [state of] judicial lawlessness.’
In the interview with the newspaper Izvestiya of 4 December 2003, judge Kudeshkina stated: ‘looking around, one is just stunned by the lawlessness. The law applies quite strictly to ordinary people, but this is not the case when it comes to persons holding important posts. But they break the law too – although they are not subject to liability’; ‘the court administration tests each judge to see how flexible he is, so that when it comes to [the allocation of cases] they know who can be entrusted with a delicate case and whom to avoid’.
In another interview with judge Kudeshkina, published in Novaya Gazeta on 4 December 2003, she also stated that ‘in Siberia, by the way, the courts are much purer than in Moscow. There you cannot imagine such brutal manipulation and would not be talking about corruption to such an extent’; ‘I doubt that any provincial courts would harbour scandals as outrageous as those in the Moscow City Court, but this a question of degree, while the problems are more general’; ‘a judge, although defined by law as an embodiment of judicial power and independent in this capacity, in fact often finds himself in a position of an ordinary clerk, a subordinate of a court president. The mechanism of how a decision is imposed on a judge is not to contact [the judge] directly, instead a prosecutor or an interested person calls the court president, who then tries to talk the judge into a ‘right’ decision, first gently, by offering advice or a professional opinion, then pushing him or her more strongly to take the ‘correct’ decision, that is, one that is convenient to somebody’; ‘in reality a court still more often than not takes the position of the prosecution. The courts then become an instrument of commercial, political or personal manipulation. No one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone’.
In so doing judge Kudeshkina knowingly and intentionally disseminated in civil society false and untruthful fabrications about the arbitrariness allegedly prevailing in the judicial sphere; that, in dealing with specific cases, judges find themselves under constant and undisguised pressure exercised through the court presidents; that the court presidents pre-test to what extent one or other judge may be controlled in order to determine who could be entrusted with delivering a knowingly unjust judgment in a case; that no one can be sure that his case is examined by an impartial tribunal; that judges in fact betray the interests of justice by adopting the position of the prosecution in most cases; that a judge in this country is not independent and honest, but [is] a typical subordinate public servant; that in this country we have complete lawlessness, and judicial chaos.
The above-mentioned statements by judge Kudeshkina are clearly based on fantasies, on knowingly false and distorted facts.
However, dissemination by a judge of such information poses a great public danger because it signifies deliberate slandering of the authority of the judiciary and intentional undermining of the prestige of the judicial profession, and also promotes incorrect ideas about corrupted, dependent and biased judicial authorities in this country, which leads to the loss of public trust in the fairness and impartiality of examination of cases brought before the courts of law.
As a result, the false information imparted to civil society by judge Kudeshkina, a member of the judiciary of Russia, undermined public confidence that the judiciary in Russia are independent and impartial; consequently, many citizens were lead to believe, erroneously, that all judges in this country are unprincipled, biased and venal, that in exercising their functions they only pursue their own mercenary ends or other selfish goals and interests.
...
In support of her unsubstantiated and groundless attempts to defile the judicial system of our country, judge Kudeshkina referred [in her interviews] to the criminal case against P.V. Zaytsev, in which she had earlier acted as judge.
She referred to the same case in her complaint to the High Judiciary Qualification Panel of the Russian Federation.
...
According to the note of the President of the High Judiciary Qualification Panel (ref. no. BKK-7242/03 of 17 May 2004), the High Judiciary Qualification Panel of the Russian Federation carried out an enquiry to verify the allegations made by judge Kudeshkina in her complaint; the President of the Supreme Court of the Russian Federation concluded, on the basis of the above, that there were no grounds to grant her request.
Thus, the allegations of interference with judge Kudeshkina’s exercise of judicial function have not been confirmed by the conclusions of the enquiry.
The Qualification Board of Moscow notes that judge Kudeshkina did not make these allegations during the period when she was examining the case against Zaytsev, but nearly half a year later, during and immediately after the election campaign. Therefore the Panel considers that the dissemination by judge Kudeshkina of false and untrue information is based only on her subjective conjectures and personal insinuations.
Besides, in making her statements in the media judge Kudeshkina disclosed specific factual information concerning the criminal proceedings in the case against Zaytsev, before the judgment in this case had entered into legal force.
...
[The Law on the Status of Judges in the Russian Federation and the Code of Honour of a Judge in the Russian Federation] obliged her to refrain from any public statements discrediting the judiciary and the justice [system] in general.
...
In sum, the Judiciary Qualification Board of Moscow finds the actions of judge Kudeshkina to have degraded the honour and dignity of a judge, discredited the authority of the judiciary [and] caused substantial damage to the prestige of the judicial profession, thus constituting a disciplinary offence.
In choosing the disciplinary sanction to be imposed on judge Kudeshkina the qualification board takes into account that in making her statements [she] dishonoured the judges and the judicial system of Russia; she disseminated false information about her colleagues; she traded the dignity, responsibility and integrity of a judge for a political career; demonstrated bias when hearing a case; preferred her own political and other interests to the values of justice; abused her status as a judge in propagating legal nihilism and causing irreparable damage to the foundations of judicial authority. ...”
35. The decision indicated that it could be challenged before a court within 10 days of being served.
36. The applicant applied to the Moscow City Court, contesting the decision of the Judiciary Qualification Board of Moscow.
37. On 13 September 2004 the applicant filed a request with the President of the Supreme Court to transfer her case from the Moscow City Court to another court, on the grounds that the former would lack impartiality.
38. On 7 October 2004 the Moscow City Court, composed of a single judge, began to examine the case. The applicant first challenged the judge on the grounds that he was a member of the Moscow Judicial Council and was thus directly associated with the other party to the proceedings. She further claimed that the Moscow City Court, in any composition, would lack independence and impartiality because the impugned statements were specifically concerned with that court and its President. This request was examined on the same day and was refused, on the grounds that it was not possible to transfer the case to another judge within the same court and that only a higher court was entitled to transfer the case to another court. The applicant lodged a request seeking to have the case adjourned pending the Supreme Court’s decision on her request for transfer of the case; this was also refused.
39. On 8 October 2004 the Moscow City Court upheld the decision of the Judiciary Qualification Board of Moscow. It found that the applicant’s statements in the media were false, unsubstantiated and damaging to the reputation of the judiciary and the authority of all law courts. It also established that the applicant had publicly expressed an opinion prejudicial to the outcome of a pending criminal case. It concluded that the applicant had abused the right to freedom of expression out of political ambition, that she had publicly denied the rule of law and that such conduct was incompatible with holding judicial office. The court dismissed the applicant’s argument that the decision was taken in her absence, having found that after many adjournments she had failed to present the court with any document certifying the reasons for her absence. It also dismissed her objection that at the time of the election campaign her duties as a judge were suspended and held that, during the suspension, she was still bound by the rules of conduct applicable to judges. Concerning the applicability of the Code of Honour of a Judge in the Russian Federation, the court decided that it was in force and legally binding at the material time and could be applied in this case.
40. The applicant filed an appeal with the Supreme Court.
41. On 25 October 2004 the applicant received a letter from judge R. of the Supreme Court, informing her that transfer of the case from the Moscow City Court was refused on the grounds that it would be contrary to the rules of jurisdiction.
42. On 19 January 2005 the Supreme Court of the Russian Federation, ruling at final instance, upheld the judgment of 8 October 2004, having reiterated the earlier findings by the Judiciary Qualification Board of Moscow and the Moscow City Court. On the question of the alleged lack of impartiality by the Moscow City Court, which considered the case at first instance, it found that the applicant had not made any relevant complaints in the proceedings before the Moscow City Court and was therefore barred from raising this objection on appeal.
43. Law No. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides:
“1. A judge must strictly observe the Constitution of the Russian Federation and other laws.
2. In exercising his or her powers, and also in his or her conduct outside the office, a judge must refrain from anything that would derogate from the authority of the judicial power or the dignity of a judge or cast doubts on his or her objectivity, fairness and impartiality.”
“A judge who has committed a disciplinary offence (a breach of this Law and of the Code of Judicial Ethics to be adopted by the All-Russian Judicial Congress) may, with the exception of the judges of the Constitutional Court of the Russian Federation, receive a disciplinary penalty in the form of:
– a warning; [or]
– early termination of judicial office.
The decision to impose a disciplinary penalty must be taken by the judicial qualification board that has competence to examine the question of termination of office of a particular judge at the time of that decision.
...”
44. The Code of Honour of a Judge in the Russian Federation, as adopted by the Judicial Council of the Russian Federation on 21 October 1993 and approved by the Second All-Russian Judicial Congress in July 1993, provides:
“A judge must refrain from anything that would derogate from the authority of judicial power. He or she shall not cause damage to the prestige of his or her profession in order to pursue personal ends or the interests of another person.”
“... A judge must not make any public statements, comments or press publications concerning cases under examination by a court before a final judicial decision enters into force. A judge must not publicly, outside the professional framework, challenge court judgments that have entered into legal force or the acts of his or her colleagues.”
“A judge may participate in public life so long as this does not cause damage to the authority of the court and proper discharge by the judge of his or her professional duties.”
45. Section 14 of the Law “On the Status of Judges in the Russian Federation” provides as follows:
“1. Judicial office may be terminated on the following grounds:
...
(7) pursuing activities incompatible with holding judicial office;”
46. The Code of Civil Procedure of the Russian Federation provides as follows:
“1. The Supreme Court of the Russian Federation examines as a court of first instance civil cases concerning:
...
(3) contestation of decisions to terminate or to suspend the status of a judge or the status of a retired judge; ...”
47. Section 26 of the Federal Law of 14 March 2002 “On the Bodies of the Judicial Community” provided that disputes concerning the termination of the status of a judge fell within the jurisdiction of the courts of the subjects of the Russian Federation.
48. On 2 February 2006 the Constitutional Court held in its decision No. 45O:
“Jurisdiction in cases concerning contestation of decisions by judicial qualification panels of the subjects of the Russian Federation on the termination or suspension of the status of a judge or the status of a retired judge must be determined in accordance with paragraph 1(3) of Article 27 of the Code of Civil Procedure of the Russian Federation, which provides that only the Supreme Court of the Russian Federation may examine, as a court of first instance, civil cases concerning the contestation of decisions to terminate or to suspend the status of a judge or the status of a retired judge.”
49. The Code of Criminal Procedure of the Russian Federation provides:
“1. The case must be examined by one and the same judge or by a court bench in one and the same composition.
2. If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.”
50. Law No. 3132-I of 26 June 1992 “On the Status of Judges” provides:
“1. The Court President, at the same time as exercising judicial powers in the respective court and the procedural powers conferred on court presidents by Federal Constitutional Laws and Federal Laws, carries out the following functions:
(1) organises the court’s work;
...
(3) distributes duties between the President’s deputies and, in accordance with the procedure provided for by Federal Law, between the judges; ...”
51. The instruction on the courts’ internal document management in force at the material time provided that the court President was responsible for the court’s clerical and office management.
52. As a matter of common practice, a court President distributes cases lodged with a court between the judges of that court.
VIOLATED_ARTICLES: 10


ITEMID: 001-4838
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: VIRAGOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Slovak national born in 1966. She is unemployed and resides in Banská Bystrica.
A.
The applicant and her husband agreed to transfer the tenancy of an apartment situated at Tatranská Street 46 in Banská Bystrica to an individual. The latter orally promised to the applicant that her family could move to a smaller apartment situated at Javornícka Street 22 in Banská Bystrica.
On 27 July 1994 the applicant and her husband signed a formal agreement according to which the right to use the apartment situated at Tatranská street 46 would be transferred to the aforesaid individual as from 1 September 1994. Section III § 3 of the agreement stated that the applicant and her husband were liable to pay the rent until the agreement became operative, and that after the transfer their address would be Javornícka street 22. The agreement was signed in the presence of a representative of the co-operative which owns the apartment situated at Tatranská street 46.
Subsequently the applicant found out that her family could not move into the apartment situated at Javornícka street 22 as it was occupied by another person. She therefore challenged the agreement of 27 July 1994 before the Banská Bystrica District Court (Okresný súd - “the District Court”) on the ground that the individual concerned had made her sign the agreement under false pretences.
On 14 June 1996 the District Court dismissed the applicant’s action. At the hearing a representative of the co-operative concerned stated that the applicant and her husband had signed the agreement of their own free will and without any reservations. Neither this witness nor the three other witnesses heard by the court were in a position to confirm the applicant’s allegation that she had been promised the right to live in the apartment situated at Javornícka street 22. Since there was no evidence which supported the applicant‘s allegation, the court concluded that the applicant had failed to show that she and her husband had concluded the agreement under circumstances which could affect its validity within the meaning of Sections 37 § 1 and 39 of the Civil Code (see “Relevant domestic law“ below).
The applicant appealed. She alleged that the individual who had offered them the deal had acted in a fraudulent way and invoked Sections 3, 37 § 2 and 39 of the Civil Code.
On 30 October 1996 the Banská Bystrica Regional Court (Krajský súd - “the Regional Court“) upheld the District Court’s judgment of 14 June 1996. The Regional Court found that the District Court had established all relevant facts of the applicant’s case with sufficient certainty, and that it had assessed them correctly from the legal point of view. In particular, the Regional Court noted that two witnesses had confirmed that the applicant and her husband had signed the agreement of their own free will. It found no evidence indicating that the agreement was void for any of the reasons set out in Sections 37 and 39 of the Civil Code.
In the Regional Court’s view, Section III § 3 of the agreement of 27 July 1994 referred to Javornícka street 22 as the applicant’s future address solely in the context of arrangements regarding the advance payments of the rent for the apartment situated at Tatranská street 46 until the applicant’s departure from that apartment. The Regional Court held it therefore for irrelevant that the applicant could not actually move into the apartment situated at Javornícka street 22.
On 23 March 1998 the District Court ordered the applicant to vacate the apartment situated at Tatranská street 46. On 30 July 1998 the Regional Court upheld this decision. Both courts established, with reference to the reasons set out in their judgments of 14 June and 30 October 1996 respectively, that the applicant and her husband had transferred the right to use the apartment in question to another individual and concluded that they lived in it without any legal ground.
B. Relevant domestic law
The following provisions of the Civil Code are relevant in the present case:
Section 3 § 1 provides that the exercise of civil rights and obligations must not, unless there is a relevant legal ground for it, interfere with justified rights and interests of others and that it must not be contrary to boni mores.
Under Section 3 § 2, public authorities shall ensure that civil rights and obligations are not infringed.
Pursuant to Section 37 § 1, for a legal act to be valid, it has to be carried out freely, with serious intention, certainly and clearly.
Under Section 37 § 2, any legal act the subject of which cannot be attained is to be considered as being void.
Section 39 provides that a legal act is void if, by its nature or contents, it is contrary to or circumvents the law, or if it is contrary to boni mores.


ITEMID: 001-106248
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PANASYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
TEXT: The applicant, Mr Igor Yevgenyevich Panasyuk, is a Ukrainian national who was born in 1971 and is currently serving a life sentence in prison. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
In June 2001 the applicant and several other persons were arrested on suspicion of having committed a number of serious crimes including murders and robberies. According to the applicant, he was not provided with a lawyer at the initial stages of the investigation.
On 14 and 21 March 2002, a journalist D. published an article in the local newspaper M. concerning the criminal proceedings against the applicant. The article began by referring to the investigator in charge, who expressed the opinion that the applicant “was the head of the group and could have become a good manager in other circumstances”. Later on, the article reported on the criminal activity of the applicant and his accomplices in a confirmatory manner and without any reservation or qualification. The article referred to the applicant by his real name whereas the names of the other persons were changed. It finished with the words of the same investigator, who remarked that “the applicant’s gang” might have done much more if the applicant had not been arrested.
On 15 May 2003 the Zaporozhzhya Court of Appeal found, inter alia, that the applicant had organised an armed gang and participated in the perpetration of murders, robberies and other less serious crimes. The court sentenced him to life imprisonment with confiscation of property. The judgment was based on a number of expert opinions as well as on oral, documentary and material evidence.
On 23 June 2003 the applicant appealed in cassation, alleging, among other things, that his procedural rights had been violated as a result of the above article.
On 20 November 2003 the Supreme Court, acting as a court of cassation, upheld the judgment of 15 May 2003 as substantiated, finding that there had been no procedural irregularities in the proceedings in question. The decision of the Supreme Court was pronounced in the presence of the applicant and his lawyer.
Article 62 of the Constitution reads as follows:
“A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty. ...”
According to Article 344 of the Code, a copy of the judgment of the first-instance court shall be delivered to the convicted or acquitted person within three days after its pronouncement in the courtroom.
Article 377 of the Code provides requirements to the structure of the decision taken by the court of appeal.
According to Article 379 of the Code, the decision of the court of appeal shall be pronounced in the courtroom. If the preparation of the decision requires much time, the court may pronounce only operative part of the decision. In that case, the full text of the decision shall be prepared and pronounced to the participants of the proceedings during five days after the pronouncement of the operative part. The time of the pronouncement of the full text of the decision shall be indicated in its operative part which was prepared earlier.
Article 400-2 of the Code provides that the decision of the court of cassation shall be prepared and pronounced in accordance with the requirements of Articles 377 and 379 of the Code.