ITEMID: 001-5765
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ZYSKO v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish national, born in 1949, residing in Racibórz
In 1994 the applicant wrote a letter to the Regional Office (Urząd Wojewódzki) in which he requested that his wish to abandon his Polish citizenship be acknowledged. He formulated at this occasion various complaints about, in his view, catastrophic situation of the country, about poverty of growing parts of population due to ruinous economic policies and about a number of other social and political issues. He also wrote a letter to the Chancellery of the President of Poland, requesting to be divested of his citizenship.
On an unspecified date criminal proceedings were instituted against the applicant on charges of arson.
On 17 September 1996 the Racibórz District Prosecutor submitted a motion to the Katowice Regional Court, requesting that an order be given for the applicant’s placement at a psychiatric institution.
On 30 September 1996 the Katowice Regional Court, after a hearing held on that date in the presence of the applicant, his lawyer and a prosecutor, committed the applicant to a mental hospital. The court established that criminal proceedings had been instituted against the applicant on suspicion of arson. As doubts had arisen as to the applicant’s mental health, the prosecutor appointed experts in order to establish his condition. The experts requested that the applicant undergo a psychiatric observation, and, after the observation had been completed, submitted their report. They concluded that on account of psychiatric illness he could not be held criminally responsible, within the meaning of Article 25 § 1of the Criminal Code applicable at that time, and that he posed a threat to public order. The prosecutor had subsequently requested the court to order the applicant’s committal to a psychiatric institution. The court further stated that in the light of the evidence gathered in the investigations the applicant was, beyond any doubt, an author of the criminal offence in question (“analizując dowody zgromadzone w toku śledztwa Sąd uznał, że nie budzi wątpliwości, iż podejrzany jest sprawcą zarzucanego mu czynu”). The court further considered that the prosecutor’s request was supported by unequivocal conclusions of the experts.
The applicant lodged an appeal, arguing that he had not been given the access to the full text of the medical expert opinion, that the charges against him were supported only on circumstantial evidence and his guilt had not been established, and challenged the experts’ argument that his wish to emigrate had been motivated by his mental illness.
On 16 October 1996 the Katowice Court of Appeal, in a session in the presence of a prosecutor, dismissed the applicant’s appeal. The court stated that the evidence allowed for a finding that the applicant had committed the offence concerned. The court referred in this respect to the applicant’s confession made in the investigations, and to the testimony of a fireman who had been leading action of the fire brigade. In his view, the applicant’s apartment had deliberately been put on fire. He had also found five bottles with petrol in the apartment. The court further had regard to the medical expert opinion to the effect that the applicant, who suffered from paranoid syndrome, could not be criminally responsible on psychiatric grounds and that he should be committed to a hospital as he posed a genuine and serious threat to public order. The court concluded that, in view of the fact that the applicant who had never before been under any psychiatric treatment, was uttering threats that he would escalate his violent actions, the conclusions of the lower court were justified.
Subsequently the applicant was placed in a psychiatric hospital. On an unspecified date he requested the Ombudsman to lodge a cassation appeal against this decision.
On 21 April 1997 the Ombudsman lodged a cassation appeal against the decision of the Katowice Court of Appeal. The Ombudsman argued that the Court of Appeal had failed to inform the applicant and his lawyer about the date of the hearing which was held before that court on 16 October 1996. The applicant had thus been deprived of his defence rights.
On 2 June 1997 the Supreme Court quashed the decision of the Court of Appeal, considering that in view of the fact that the applicant’s lawyer had not been informed about the date and time of the latter court’s session of 16 October 1996, and that the applicant’s interests had not been properly presented and defended in the proceedings. The Supreme Court ordered that the case be remitted to the Court of Appeal for reconsideration.
Apparently later the applicant submitted a request to be discharged from the psychiatric hospital to the Katowice Regional Court.
On 23 July 1997 the Katowice Court of Appeal, having again examined the applicant’s appeal against the decision of the Regional Court of 30 September 1996, upheld the decision. The court took into consideration that the evidence gathered in the investigations conducted by the prosecution allowed for a conclusion that the applicant had been the author of the offence concerned, as shown by his own confession and by the testimony of the witness J.K., relied on by the lower court. The court further referred to the medical expert opinion of psychiatrists from Rybnik hospital who, having regard to the results of a clinical observation of the applicant, established that he had been suffering from paranoid syndrome, and that in view of his illness he posed a serious and genuine threat to legal order. The court concluded that the decision of the lower court was well-founded. The court finally observed that, in the light of the letter of the Chief Physician of the Rybnik Hospital of 25 June 1997, apparently concerning the applicant’s condition at that time, a judicial review of the applicant’s detention, provided for by Article 197 of the Code of Enforcement of Sentences, was called for.
By a letter of 16 March 1998 the Katowice Regional Court informed the applicant that a decision concerning his request for release would be given as soon as the medical expert opinion was submitted to the court.
On 22 April 1998 the applicant complained that the proceedings concerning his request for release lasted too long.
In reply, the Katowice Regional Court, in a letter of 4 May 1998, informed the applicant that the decision would be given as soon as the experts appointed to prepare an opinion as to his continued detention submit their final report. They had been urged by the court to speed up their progress, to no avail. In view of their failure to react, the court had requested them again to accelerate their work.
On 8 June 1998 the Katowice Regional Court, having questioned the experts, decided that the applicant’s detention should be maintained as he still presented a threat to public order.
The applicant and his lawyers lodged appeals against this decision, submitting that, in the view of the applicant’s condition the maintaining of the applicant’s detention had ceased to serve any purpose, and that the decision to detain him had been “politically motivated”.
On 8 July 1998 the Katowice Court of Appeal declined to examine the appeal, considering that under Article 25 of the Code of Enforcement of Sentences it was the Regional Court, composed of one professional judge and two lay judges, which was competent to rule on the applicant’s appeal.
On 31 August 1998 the Katowice Regional Court upheld the decision of 8 June 1998. The court considered that the first-instance court had been thorough in its assessment of the evidence, in particular in respect of the expert medical opinions of psychiatrists W.G. and W.Z., the conclusions of which they had reiterated at a hearing on 8 June 1998, indicating that the applicant’s detention should be maintained. The court further considered that the conclusions of this expert report, contrary to the appearances (“wbrew pozorom”), were identical with statements contained in another medical expert opinion drawn by psychiatrists A.J.S. and K.K.K. who had stated that the applicant’s personality had certain paranoiac characteristics. They had further argued that, since the applicant had been uttering threats, he should remain in detention. The court therefore concluded that their conclusions actually strengthened the conclusions of the other two experts. The court went on to state that in view of the applicant’s past conviction for uttering threats and arson and the fact that during his detention in the hospital he had been submitting numerous complaints to various institutions, his further detention was called for as he had not ceased to pose a serious and genuine threat to legal order.
On 6 July 1998, the applicant requested that criminal proceedings be instituted against certain experts involved in his case. On 9 December 1998 the Racibórz District Prosecutor, to whom the case had been transferred as the prosecutor in whose jurisdiction the proceedings should be conducted, requested that the investigations be conducted by another prosecuting authority, refused to do so. The applicant appealed, and on 29 January 1999 the Katowice Regional Prosecutor set this decision aside.
On 28 April 1999 the Supreme Court refused to re-open the proceedings in which the applicant’s placement at the mental hospital had been ordered, finding that the legal requirements had not been met.
On 2 August 1999 the Katowice Regional Court held a hearing at which it examined the applicant’s request for release, submitted at an unknown date. The court, having regard to doubts as to the applicant’s current health, and in accordance with the applicant’s request, ordered that an opinion of a specialised research institution be sought. The applicant subsequently underwent twelve-weeks observation in the hospital of the Psychiatry Institute of the Warsaw Medical Academy in Pruszków hospital.
On 16 December 1999 the Ruda Śląska District Prosecutor discontinued the investigations against the experts, considering that they had no case to answer. The applicant’s appeal was subsequently transmitted to the Ruda Śląska District Court. On 19 January 2000 the court upheld this decision.
On 21 February 2000 the Katowice Regional Court ordered the applicant’s release.
The conditions for detention of persons of unsound mind who are not responsible on medical grounds were laid down in the Criminal Code, as it stood at the material time:
"If it has been established that a person has committed an offence in a state of mental disorder [excluding his criminal responsibility], and his remaining at liberty entails a serious danger to public order, the court shall commit him to a mental hospital or another appropriate institution."
"In cases provided for in Article 99 (...) the period of detention is not determined in the decision of the committal to the psychiatric institution; the court shall order the release if the detention ceases to be necessary."
According to the case-law of the Supreme Court, a threat to public order is to be determined on the basis of a situation obtaining at a time when the offender’s detention in the psychiatric institution is imposed. The assessment of the existence and the degree of such threat should be made in the light of a medical expert opinion. For a decision ordering detention in a psychiatric hospital to be given, it is not necessary that it is expressly stated in the medical expert opinion that it would pose a threat to public order if the offender were to remain at liberty. It suffices that such a conclusion could be drawn from the medical expert opinion taken as a whole (Orzecznictwo Sądu Najwyższego, Izba Karna i Wojskowa 1974, item 47).
A threat to public order is considered serious if an offender’s remaining at liberty gives rise to a risk of an unlawful act being committed by him (Orzecznictwo Sądu Najwyższego, Izba Karna i Wojskowa 1972, item. 183).
Article 197 of the Code of Execution of Sentences, applicable at the relevant time, reads:
"1. A director of a medical institution is obliged to keep the court informed of the detainee’s health and of the progress in treatment.
...
3. The court, at intervals of not longer than six months, shall decide, on the basis of a medical opinion, on the necessity to maintain further security measures."


ITEMID: 001-101038
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: FIMIANOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: The applicant, Mr Vladimir Antonov Fimianov, is a Bulgarian national who was born in 1940 and lives in Montana. He was represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.
On 2 September 1996 the applicant's son died while he was completing his military service as a private in the Bulgarian army (the “private”).
On 3 September 1996 the private's commanding officer informed the applicant that his son had accidentally electrocuted himself when, together with two other army privates, he had tried to open a transformer in an electrical substation. The private's body was delivered to his family later the same day. While preparing the body for burial his family discovered various wounds, bruises and an alleged cigarette burn.
The applicant's son was buried on 4 September 1996.
A preliminary investigation was opened into the death of the applicant's son on 2 September 1996.
An autopsy was performed on 3 September 1996. The autopsy report contained the following information in respect of the death of the applicant's son:
“On 2 September 1996 at around 6 p.m. in the village of Bozhurishte, while [the private was] working with a high voltage transformer and at a moment when he was standing holding a metal rod, he received an electric shock. ... The immediate attempts to resuscitate him were unsuccessful.”
The autopsy concluded the following:
“The death of the [private] was caused by severe cardiovascular failure resulting from the effects of electricity on the body. This [finding] is supported by the place where the death occurred, the signs on the body of a quick death such as cyanosis of the face; spotted haemorrhaging under the mucous membranes of the eyelids, under the pleurae of the lungs, under the outer coating of the heart and under the mucous membrane of the renal pelvis; significant blood stagnation in the internal organs; swelling of the brain and the lungs; and, in particular, the presence of an electrical burn mark in the area of the right palm.”
On 28 November 1996 the Sofia regional military prosecutor's office terminated the preliminary investigation into the death of the applicant's son. It concluded that on 2 September 1996 the private, together with two other army privates, had decided to remove the cover of an electrical transformer at an electrical substation with the aim of stealing copper cables. In the process, the private had used a metal rod to lever the cover open, but when he touched it he had been electrocuted. Based on the findings of the medical report and the testimonies of the two army privates who had witnessed the event, the public prosecutor's office concluded that there was a lack of evidence of an offence and terminated the preliminary investigation. A technical report into the incident had also been commissioned, which reached the following conclusion:
“the three [army privates] entered the building of the [electrical] substation without the necessary qualifications and training and were operating there [in an environment of] 20,000 volts [of electricity]”.
A letter dated 29 November 1996 was sent to the private's mother informing her of the decision of the public prosecutor's office.
On 18 July 2000 the applicant appealed against that decision. He argued that the investigation had been superfluous, its findings inconclusive and that it had failed to satisfactorily address and account for all the bruises and wounds found on the body of his son.
On 28 December 2000 the military appellate prosecutor's office quashed the decision of 28 November 1996 and remitted the case for further investigation. As a result, witnesses were once again questioned during January 2001.
The results of the additional preliminary investigation were presented to the applicant on 12 February 2001.
On 22 February 2001 the preliminary investigation into the death of the applicant's son was once again terminated by the Sofia regional military prosecutor's office, whose decision was upheld by the military appellate prosecutor's office on 6 March 2001.
On the next day, 7 March 2001, the Military Court of Appeal, sitting in camera, upheld the above decisions to terminate the preliminary investigation into the death of the applicant's son. The applicant was informed of this in a letter dated 14 March 2001. The letter was sent by registered post on 16 March 2001, but it is unclear when it was received.
Subsequently, the applicant petitioned the Chief Public Prosecutor's Office to request the reopening of the preliminary investigation. The petition was dated 2 May 2000 (“02.05.00” in the document), but the applicant himself indicated on the copy he provided to the Court that he had made a mistake in the date. In it the applicant referred to his appeal of 18 July 2000 and argued that the subsequent investigation had also been flawed as it had failed to comply with the instructions given by the higher prosecutor's office. Thus, he asked the Chief Public Prosecutor's Office to quash the decisions of the Sofia regional military prosecutor's office and the military appellate prosecutor's office and to propose the reopening of the preliminary investigation on the basis of the amendments of the Code of Criminal Procedure of 2 May 2000 (“02.05.00” in the document). The applicant filed his petition on an unknown date, but in order to process it the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 14 May 2001; it was sent on the 16th.
On 14 June 2001 the supreme cassation public prosecutor's office rejected the applicant's petition and informed him that preliminary investigations terminated by court decisions were not subject to reopening. On the same day, the supreme cassation public prosecutor's office sent the case file back to the regional military prosecutor's office.
The applicant filed a second petition with the Chief Public Prosecutor to request the reopening of the preliminary investigation, dated 25 July 2001. In order to process it, the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 13 September 2001; it was sent on the 18th.
On 9 October 2001 the supreme cassation public prosecutor's office once again rejected the applicant's petition but also informed him that the decisions to terminate the preliminary investigation were correct in so far as there was a lack of evidence of an offence.
The relevant provisions of the Criminal Code and of the Code of Criminal Procedure, as well as the practice of the domestic courts, have been summarised in the inadmissibility decision in the case of Nenkov v. Bulgaria (dec.) (no. 24128/02, 7 October 2008).


ITEMID: 001-22728
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BALCI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Osman Balcı, is a Turkish national, who was born in 1960 and lives in Elazığ. He was represented before the Court by Mr Tevfik Demirel, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 December 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a non-commissioned officer, was a member of the Revolutionary Islamic Opinion (Devrim Yanlısı İslami Görüş). He was involved in disseminating the extreme religious ideology together with his wife. He established contacts with persons who adopted this ideology. He had an antisocial character and his wife carried an Islamic scarf.
The applicant was considered as an undisciplined and insubordinate soldier. He received a written warning for being undisciplined and was sentenced to three days’ confinement for disobedience.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-76175
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KUTLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1922 and lives in İstanbul.
5. In 1997 the Bakırköy Municipality expropriated land (plot nos. 154/36 and 154/3) belonging to the applicant in İstanbul. A committee of experts assessed the value of the land and the relevant amount was paid to the applicant when the expropriation took place.
6. On 9 January 1997 the applicant filed two separate actions for additional compensation with the Bakırköy Civil Court of First Instance.
7. In respect of plot no. 154/36, the first-instance court, on 16 October 1997, awarded the applicant additional compensation of 1,768,970,000 Turkish liras (TRL) (approximately 8,840 euros (EUR)), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 10 January 1997. On 31 March 1998 the Court of Cassation upheld the judgment of the first-instance court. On 21 October 1998 the Municipality’s request for a rectification of the decision was dismissed by the Court of Cassation. This latter decision was served on the applicant on 30 November 1998.
8. In respect of plot no. 154/3, the first-instance court, on 20 May 1998, awarded the applicant additional compensation of TRL 6,487,209,968 (approximately EUR 23,000), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 9 January 1997. On 1 December 1998 the Court of Cassation upheld the judgment of the firstinstance court. On 10 June 1999 the Municipality’s request for a rectification of the decision was dismissed by the Court of Cassation. This latter decision was served on the applicant on 2 August 1999.
9. In the meantime, on 7 April 1999 the Municipality paid the applicant, in total, TRL 15,972,726,000 (approximately EUR 39,438) covering additional compensation, interest, costs and expenses.
10. The relevant domestic law and practice are outlined in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25), and Akkuş v. Turkey judgment of 9 July 1997 (Reports 1997-IV, §§ 13-16).


ITEMID: 001-110783
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KARAKASOGLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 1. The applicants, Ms Semra Karakaşoğlu and Ms Sündüs Karakaşoğlu, are Turkish nationals who were born in 1965 and 1947 respectively and live in Istanbul. They were represented before the Court by Mr A. Yazıcıoğlu, a lawyer practising in Istanbul.
3. The first applicant is the daughter of the second applicant. On an unspecified date, the first applicant issued a cheque in the name of the second applicant. Subsequently, in April 2004, alleging that she had lost the cheque, the second applicant applied to the Kadıköy Commercial Court to have it cancelled. The cheque was accordingly cancelled by the Kadıköy Commercial Court.
4. In the meantime, a third person, Ms H.K.Ç. (hereinafter referred to as “the creditor”), who is the niece of the second applicant, presented the cheque in question to the bank for payment; however, she was informed that the cheque had been cancelled. The creditor then applied to the Istanbul Execution Office and alleged that the second applicant had endorsed the cheque in her name to pay a debt to her. The amount of the cheque in dispute was 70,000 Turkish liras (TRY) and the due date was set at 12 August 2004. On 8 October 2004 a payment order was sent to the applicants. On 12 October 2004 the applicants filed an objection with the Execution Office, stating that they did not have a debt to the creditor and alleging that the creditor had stolen the cheque from their house.
5. Thereafter, the creditor initiated proceedings before the Istanbul Commercial Court, requesting the annulment of the objection filed by the applicants. Relying on section 67 of the Execution and Bankruptcy Act (Law no. 2004), she further claimed compensation amounting to 40% of the sum due, as the applicants had denied paying their debt in an unjust manner.
6. On 18 October 2004 the applicants initiated another set of proceedings before the Istanbul Commercial Court, seeking a declaratory judgment to the effect that they did not have any debt to the creditor in respect of the cheque in question. They also requested the creditor to pay them compensation amounting to 50% of the sum in dispute for acting in bad faith. On 29 June 2005 the Istanbul Commercial Court rejected the applicants’ case on account of insufficient evidence. In its decision, the court held that the applicants had failed to provide the basis of an arguable claim in support of their allegations. On 24 April 2006 the Court of Cassation quashed the judgment of the first-instance court, holding that that court should have examined whether the refusal to pay the amount due had caused unjust enrichment to the applicants. The case was accordingly remitted to the Istanbul Commercial Court.
7. On an unspecified date, the Istanbul Commercial Court decided to join the two cases. During the hearings held before the Commercial Court, the applicants were represented by a lawyer and were able to put forward all their arguments. The court also heard witness statements. In her submissions before the court, the creditor maintained that she had lent TRY 70,000 to the second applicant and had in return taken a cheque with a due date set for 12 August 2004. She further claimed that in order to avoid paying the cheque, the second applicant had applied to the court to have it cancelled. On 14 November 2007 the Commercial Court held that as the creditor was in possession of a cheque, the burden of proof lay on the applicants to prove that they did not have a debt to her. Having regard to the case file as a whole, the court decided that the applicants had failed to prove that they did not have any debt to the creditor. It therefore dismissed the case initiated by the applicants and annulled their objection against the payment order. Pursuant to section 67 of Law no. 2004, the court further ordered the applicants to pay compensation, amounting to 40% of the sum due, for unjustly filing an objection against the payment order. On 30 June 2008 the Court of Cassation upheld the judgment of the first-instance court. A request by the applicants for rectification was subsequently rejected and this final decision was served on the applicants on 11 January 2009.
8. Section 67 of the Execution and Bankruptcy Act (Law no. 2004) provides that the court may order the payment of compensation amounting to at least 40% of the sum in dispute, upon a request by the other party, if at the end of execution proceedings it concludes that the debtor has unjustly filed an objection against the payment order, or that the creditor acted in bad faith in initiating the execution proceedings.


ITEMID: 001-93123
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BEVZ v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1950 and lives in Monastyryshche, Cherkassy region, Ukraine.
5. On 31 May 2002, following complaints by several persons about the applicant, the local police launched an investigation into alleged fraud. The relevant decision begins as follows: “From 2000 to 2001 [the applicant], as the head of [a private company, N.], received money from [the listed persons] under the pretence [that she would provide them with] employment abroad, swindling and abusing their confidence, [...]”.
6. Officially the applicant was not charged and participated in the proceedings as a witness. However, according to her, by January 2003 she had participated in a number of confrontations with victims. Furthermore, on 7 June 2002 her house had been searched by the authorities.
7. From 4 July to 26 December 2002 the investigation was stayed eight times due to the applicant’s illness. Apparently no other investigative steps were taken during this period. Subsequently, it was held by the District Court that the reasons relied on by the investigator in his relevant decisions to stay the proceedings during this period could be applied to an accused only.
8. On 9 January 2003 the police instituted two sets of criminal proceedings against the applicant on suspicion that she had committed abuse of authority and forgery. Subsequently other sets of proceedings which had been instituted against the applicant on the related charges were joined to the main proceedings; the latter eventually incorporated nine sets with a total of sixteen counts.
9. The applicant continued to be interrogated as a witness up to 29 January 2003 when she was formally charged and gave a written undertaking not to abscond.
10. By 23 June 2003 the investigation was completed and the case was transferred to the Monastyryshche District Court (“the District Court”).
11. On 7 July 2003 the preliminary court hearing was held.
12. On 23 September 2003 the applicant was arrested.
13. On 25 September 2003 the investigator issued an attachment order over the applicant’s car and other items of property.
14. The next day the District Court ordered the applicant’s detention on remand. Subsequently, on 16 October 2003 the Cherkassy Regional Court of Appeal quashed this order and the applicant was released.
15. On 1 October 2003 the District Court remitted the case for additional investigation.
16. On 10 October 2003 the investigator ordered a forensic technical examination of a document in the case. The expert report was completed by 29 October 2003.
17. From 30 October 2003 to 18 July 2005 the investigation was stayed because of the applicant’s illness. Nevertheless, within this period the domestic authorities carried out additional forensic technical examinations and applied to the Russian authorities for legal assistance. The expert report was completed within a month and the international letter rogatory was executed within two months.
18. By 5 September 2005 the additional investigation was completed and the case was transferred to the District Court.
19. On 6 October 2005 the preliminary court hearing was held.
20. On 23 October 2006 the prosecutor dropped the charges against the applicant on two counts as her guilt had not been proven.
21. On 4 December 2006 the District Court remitted the case for an additional investigation.
22. On 27 February 2007 the Cherkassy Regional Court of Appeal quashed this decision and remitted the case to the first-instance court for fresh consideration.
23. From 23 August to 26 November 2007 the proceedings were stayed because of the applicant’s illness. The relevant court decisions stated that the proceedings had been stayed and eventually resumed upon the applicant’s requests. These decisions were not subject to appeal.
24. On 8 July 2008 the prosecutor dropped the charges against the applicant on four further counts as the investigation had been conducted in breach of the rules of criminal procedure.
25. The proceedings are still pending before the District Court. In addition to thirty-two hearings held between 6 October 2005 and 18 August 2008, five were cancelled due to the prosecutor’s and judge’s illness or prior engagements, seven due to the victims’ and witnesses’ failure to appear before the court, and seven due to the applicant’s counsel’s failure to appear before the court. Once, on 22 November 2005, none of the participants mentioned attended the court hearing. In view of the parties’ (victims and witnesses especially) systematic failure to appear before it, on nine occasions the District Court ordered their attendance at the court hearings to be secured by the police.
26. During the proceedings against her, the applicant complained to different State authorities about the length thereof, but to no avail.
27. According to a letter of 10 November 2008 from the Monastyryshche Central District Hospital, from 2002 to 2008 the applicant underwent in-patient medical treatment, namely, from 6 to 15 April 2002, from 11 to 26 February and from 8 to 13 October 2003, and from 1 to 16 November 2004.
28. According to the applicant, her written undertaking not to abscond and the attachment order of 25 September 2003 are still in place.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-23569
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GRASSL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Franz Grassl, is an Austrian national, who was born in 1975 and lives in Kallham, Austria. He is represented before the Court by Mr. Postlmayr, a lawyer practising in Mattighofen, Austria.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 July 1995 the applicant caused a road accident.
On 17 August 1995 the Braunau District Authority (Bezirkshaupt-mannschaft) summoned the applicant as he was suspected of having driven a car in a state of drunkenness. However, he did not obey the summons. On 4 October 1995 he commented on the suspicion against him.
On 23 January 1996 the District Authority issued an order imposing a fine of ATS 10,000 on the applicant for having driven his car in a state of drunkenness. A test carried out had shown that the applicant had had an alcohol level in his breath of 0.51 milligrams per litre (the legal limit is 0,25 milligrams per litre).
On 12 February 1996 the applicant, who was assisted by counsel of his own choice, filed an appeal; he requested an oral hearing.
On 16 September 1996 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat - “the IAP”) served a summons for a hearing on 23 October 1996 on the applicant’s counsel.
On 15 January 1997 the IAP, after having held a hearing on 23 October 1996, dismissed the applicant’s appeal.
On 20 February 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).
On 10 October 1997 the Constitutional Court quashed the IAP’s decision. It found that the decision was based on an unconstitutional provision which provided that Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) did not apply in road-accident proceedings. According to Section 20, if the extenuating circumstances outweigh the aggravating circumstances, the imposed fine may be reduced to the half of the statutory minimum fine. This decision was served on the applicant’s counsel on 5 November 1997.
On 19 November 1997 the IAP, sitting with a single member, dismissed the applicant’s appeal. It found that the requirements of Section 20 of the Code of Administrative Offences were not met.
On 12 January 1998 the applicant lodged a complaint with the Constitutional Court against this decision. He stressed that the IAP had failed to hold a hearing in the second set of the proceedings upon his appeal despite his request in his appeal of 12 February 1996. He also complained that the decision had not been pronounced in public.
On 25 February 1998 the IAP submitted its observations in reply. It argued that the applicant had waived his right to a public hearing and a pronouncement in public as he had agreed at the end of the hearing of 23 October 1996 that no hearing for the pronouncement of the decision should be held.
On 27 August 1998 the applicant amended his complaint, now stating that the composition of the IAP was unlawful as that member had already decided on his appeal in the first set of the proceedings. Therefore, he challenged that member of the IAP for bias.
On 1 December 1998 the Constitutional Court refused to deal with the case for lack of prospects of success.
On 19 March 1999 the applicant requested that the case be transferred to the Administrative Court and on 28 May 1998 he supplemented his complaint. On 14 July 1999 the IAP submitted its observations in reply.
On 31 March 2000 the Administrative Court dismissed the applicant’s complaint. It found that there was no indication of bias of the member of the IAP. As regards IAP’s failure to hold a hearing in the second set of the proceedings it found that the applicant had failed to file a new request to hold a hearing. This decision was served on 2 May 2000.
Section 51e of the Code of Administrative Offences (Verwaltungs-strafgesetz), as far as relevant, reads as follows:
“... 2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal.
3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the beginning of the hearing. ...”
Section 20 of the Code of Administrative Offences (Verwaltungs-strafgesetz), as far as relevant, reads as follows:
“If the extenuating circumstances considerably outweigh the aggravating circumstances, or if the accused is under age, the minimum fine may be reduced to the half of the amount.”


ITEMID: 001-83573
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HAZIRCI AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect)
TEXT: 11. On the same day, the Üsküdar Forensic Medicine Department (hereinafter: “FM department”), relying on the aforementioned medical reports, concluded that the injuries rendered the applicant unfit for work for a week.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-60808
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF HOPPE v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 14+8
JUDGES: Ireneu Cabral Barreto
TEXT: 10. The applicant was born in 1957 and lives in Herne. In April 1990 a daughter, Svenja, was born to the applicant and his wife. In December 1992 the applicant and his wife separated. Svenja stayed with her mother. In 1994 the applicant's wife instituted divorce proceedings before the Wuppertal District Court (Amtsgericht). She requested that parental authority over Svenja be granted to her. The applicant applied for joint parental authority. Furthermore, the applicant requested that his right of access to Svenja be determined by a decision of the court. In these and the related proceedings, both spouses were represented by counsel.
11. On 19 October 1994 the Wuppertal District Court, following hearings on 22 June and 17 October 1994, decided that, pursuant to Article 1634 of the Civil Code (Bürgerliches Gesetzbuch) (see paragraph 31 below), the applicant was entitled to see Svenja every second Saturday as well as on St Stephens day, Easter Monday and Whit Monday.
12. The District Court reaffirmed the principle that to maintain personal relations between a father and his child, subject to the best interests of the child, was a decisive factor when determining the right of access. Against this background, the District Court considered that the applicant's previous and extensive rights of access had, at least for the time being, to be reduced to visits once per fortnight. All the experts heard in the proceedings, i.e. the psychological expert (report of 14 June 1994), the therapeutic pedagogue and a social worker of the Barmen Diaconate Institution (Diakonisches Werk), gave evidence that the four-year old child was exposed to a conflict of loyalty, which she experienced as a strong pressure, and that she could not cope with this situation. While it was true that Svenja was fond of the applicant and would be in a position to see him without fear if her parents managed to create an atmosphere which took the pressure off her, they had not been able to do so. The frequency of visits requested by the applicant could not, for the time being, be handled by Svenja. Although the applicant was aware of his daughter's problems, he was incapable of accepting restrictions on access and did not show concern for the child's psychological health. Svenja's mother had not yet managed to give Svenja such a feeling of security as to permit her to visit the applicant without feelings of fear. Svenja therefore needed the intervals of two weeks as times of rest in her mother's household.
13. On 4 November 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal (Oberlandesgericht).
14. On 24 November 1994 the Court of Appeal informed the parties of its intention to decide in a written procedure. The applicant stated his preference for an oral hearing.
15. On 9 March 1995 the Düsseldorf Court of Appeal, after having granted the parties legal aid, amended the District Court's decision, increasing the applicant's right of access by ruling that every first visiting weekend per month the applicant was entitled to see Svenja from Saturday morning until Sunday evening. The remainder of his appeal was dismissed.
16. The Court of Appeal confirmed the findings of the District Court according to which a regular visit every second week best suited the child's welfare. In so deciding, the Court of Appeal had particular regard to the impact of the parents' difficult relations which were in conflict with the best interests of the child; the parents were not yet in a position to have a calm and objective discussion on questions relating to the right of access. On 21 February 1995 an attempt at organising a dialogue between the parents at the Parents' Counselling Service (Elternberatungsstelle) of the local Youth Office (Jugendamt) had failed. As long as there was no agreement between the parents, any visit was an emotional strain for the child. The applicant's right of access had therefore to be assessed in the context of the continuing conflict between the parents.
17. The Court of Appeal further found that the regular visits decided upon by the District Court best suited both the applicant's wishes and the child's welfare. The exercise of the right of access had functioned well since October 1994. In particular, the child had calmed down and her sleep was no longer troubled. The Court of Appeal, in agreement with the parties, further considered the report, dated 19 January 1995, of a social worker of the Elberfeld Diaconate Institution which had been obtained in the context of parallel proceedings concerning the exercise of parental authority. According to this report, no abnormality in Svenja's behaviour had been observed. The Court of Appeal found that this encouraging development did not yet permit a significant extension of the applicant's right of access. However, taking a cautious approach, the visit on the first weekend of every month could be extended to include one overnight stay. Having regard to the psychological expert's opinion of 14 June 1994, the objections previously raised by Svenja's mother were no longer valid. Should Svenja experience any problems, her mother would have to see to it that the child would consider the visits with an overnight stay as a usual matter. Any further contacts, such as overnight stays between every Wednesday and Thursday, routine telephone conversations and common holidays, were not yet possible, but could be envisaged in case the decision on access would prove successful.
18. The applicant referred the case to the Federal Constitutional Court (Bundesverfassungsgericht). On 13 June 1995 a panel of three judges of that Court refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).
19. The Federal Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance. In accordance with the case-law of that Court, both the right of access of a parent not entitled to parental authority and the right to exercise parental authority granted to the other parent were protected by the right to respect for family life under the Basic Law (Grundgesetz). The possibility, pursuant to Article 1634 § 2 of the Civil Code (see paragraph 31 below), to limit or exclude the right of access, if it was necessary for the child's welfare, guaranteed an adequate protection of the child's constitutional rights and ensured that the courts' decisions in the matter were governed by the child's best interests.
20. Furthermore, the Federal Constitutional Court found that the decision of the Court of Appeal did not disclose any fundamentally flawed views on parental rights. Thus, the Court of Appeal had considered the child's welfare. The reasoned decision that the visits could only gradually be extended could not be objected to from a constitutional point of view. Furthermore, there was no indication that the procedural requirements were not met. In particular, the applicant had not shown that, following the failure of a conversation between the former spouses at the Parents Counselling Service, the Court of Appeal was prevented from reaching the conclusion that a fresh hearing would not permit any new findings.
21. On 3 April 1996 the Wuppertal District Court granted the applicant, at his request, an increased right of access in that he was now entitled to see his daughter every second weekend between Saturday morning and Sunday evening and also for a period of two weeks of summer holidays. The District Court observed that the right of access such as that presently granted to the applicant enabled him to be sufficiently informed about Svenja's well-being and to have contacts with her, and also satisfied his daughter's need to be with her father.
On the appeal of the child's mother, the Düsseldorf Court of Appeal amended this decision on 28 June 1996. It revoked the arrangement concerning the summer holidays but extended the applicant's visiting right to every weekend, after having heard the then six-year old Svenja, her parents and a representative of the Wuppertal Youth Office.
22. On 24 October 1994 the Wuppertal District Court, following an oral hearing on 17 October 1994, granted the parents' divorce on the ground of the breakdown of the marriage and awarded the mother, pursuant to Article 1671 of the Civil Code (see paragraph 32 below), parental authority over Svenja.
23. The District Court found that the issue of parental authority had been determined on the basis of what was in the best interest of the child. Having regard to the statements of the psychological expert in the proceedings concerning the applicant's right of access, the District Court noted that Svenja's mother educated and looked after her daughter in an atmosphere of love and understanding and took an intense interest in ensuring her well-being. According to the District Court, the conditions for the joint exercise of parental authority, requested by the applicant, were not met. In particular, the parents' relations with each other regarding Svenja, as well as their relations with Svenja, were not free of conflict. The applicant was not ready to accept that Svenja's living situation had changed following her parents' separation. As a four-year-old child, she needed a stable life without being torn between different apartments and different styles of education. The Court noted that, notwithstanding the applicant's interest in Svenja's well-being, he failed to see that his wishes obstructed Svenja's psychological development.
24. On 12 December 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal.
25. On 15 December 1994 the Court of Appeal requested Svenja's mother as well as the competent Youth Office to comment on the applicant's submissions on appeal. On 19 January 1995 the Elberfeld Diaconate Institution, upon the instructions of the competent Youth Office, submitted a report. The report contained arguments in favour of granting the applicant increased access rights. The parties were given the opportunity to comment upon that report in writing. The applicant stated his preference for an oral hearing.
26. On 9 March 1995 the Düsseldorf Court of Appeal refused to grant the applicant free legal aid and dismissed his appeal.
27. The Court of Appeal observed that the mutual willingness of the parents to co-operate, namely to continue of their own will to bear common responsibility for their child, was an essential condition for a reasonable joint exercise of parental authority. It was obvious that the joint exercise of parental authority by disagreeing parents would be a source of ongoing litigation which, as experience had shown, was detrimental to the child. In the present case the parents, in particular the child's mother, did not accept a sharing of responsibilities. In the proceedings regarding the applicant's right of access, which had been pending since March 1993, the parents had continuously had major disagreements, and the attempt at a dialogue in the framework of the Parents' Counselling Service had finally failed in February 1995. Therefore, if parental authority could solely be exercised by one of the parents, it had to be awarded to the child's mother for the reasons set out in the District Court's judgment. The applicant had not raised any serious objections to the reasoning set out in that judgment.
28. The Court of Appeal also considered that an oral hearing with the parties was not necessary, the relevant facts resulting clearly from the case-file.
29. On 13 June 1995 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant's constitutional complaint.
30. The Federal Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance. It recalled that when courts had to decide on the attribution of parental authority following the parents' divorce, they had to balance the positions of both parents without encroaching upon the parental priority in educational matters. In such cases, the courts were not, therefore, subject to the strict conditions in respect of interfering with parental rights. The legislator and, in application of the relevant legal provisions, the courts were entitled to transfer the main responsibility for the education of a child to one parent if the conditions for the joint exercise of parental authority were not met. Furthermore, according to the Federal Constitutional Court, the Court of Appeal's view that the conditions for ordering the joint exercise of parental authority were not met in the instant case could not be objected to from a constitutional point of view. Moreover, there was nothing to show that the Court of Appeal should have conducted further inquiries.
31. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (Court's translation):
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
32. Article 1671 §§ 1 and 2 of the Civil Code (Court's translation) provide as follows:
“1. If the parents divorce, the family court decides to which of the parents parental authority over a common child should be awarded.
2. The court makes that determination on the basis of the best interests of the child; consideration shall be given to the child's ties, especially to his or her parents and brothers and sisters.”
33. The statutory provisions on parental authority and access are to be found in the Civil Code (Bürgerliches Gesetzbuch). They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl) 1997, p. 2942), which came into force on 1 July 1998.
34. Article 1626 § 1 reads as follows (Court's translation):
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. Parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
35. Exclusive parental authority now represents the exception to the rule of joint exercise of parental authority. Article 1671 (Court's translation) provides:
“Where parents exercising joint parental authority are separated not merely temporarily, each parent may make an application to the family court to be awarded sole parental authority or part of sole parental authority.
The application shall be allowed where
1. the other parent agrees, unless the child has completed the age of fourteen and objects to such sharing or
2. it may be expected that the withdrawal of joint parental authority and its transfer to the petitioner is in the best interests of the child.”
NON_VIOLATED_ARTICLES: 14
6
8
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101891
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF IVAN KUZMIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 6-1
JUDGES: Anatoly Kovler;Ganna Yudkivska;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1973 and lives in Stavropol.
7. At the material time the applicant was a physical education teacher in School no. 15 in Stavropol.
8. At about 10 a.m. on 5 June 2001 police officer B. and trainee Ch. went to the applicant's school and asked him to go with them to the police station to give an explanation with regard to a complaint by a parent, alleging that the applicant had hit his son. The policemen did not produce a summons to appear or an arrest warrant. The applicant agreed to go with them.
9. On arrival at the police station the applicant saw a red Moskvich car near the entrance and three men nearby. One of them was police officer P. and another was subsequently identified as former chief of police G.
10. B. and Ch. were the first to go up the stairs and into the office. The applicant followed them and G. was behind him. G. pushed the applicant in the back. The applicant turned round and asked him why he had done that. G. replied that since the applicant considered himself tough enough to beat his pupils, he should take him on instead. With these words G. hit the applicant twice in the chest with the palm of his hand. Then the applicant was pushed into an office and G. told him that he had two options, either to apologise to the pupil's father and pay damages, or to be reported to the Ministry of Education and fired. In reply, the applicant denied that he had ever beaten the pupil. G. said that he had no time to deal with the matter and left, while B. and Ch. stayed.
11. Officer B. took the applicant's statement and asked him to sign it. The applicant spotted an incorrect recording of his words, crossed a sentence through and signed the paper. B. got angry, jumped up from the table and hit the applicant in the face. Protecting his face with his hands, the applicant turned round to leave the office.
12. B. ordered Ch. to stop the applicant, search him and put him in a cell, because their discussion was not yet over. Ch. pulled the applicant out of the office into the hallway and put him against the wall. The applicant told B. that he needed to call the school and tell them that he would be late. B. and Ch. started beating him; the applicant fought back. B. stepped behind his back, bent his arms and pushed his head down, then made him lie on his stomach and handcuffed him. Claiming that the applicant had broken his glasses, Ch. kicked him twice in the left shoulder. B. put the applicant in a cell behind bars and locked himself in the office with Ch. After a while P., a former classmate of Ch., arrived at the police station.
13. B. and Ch. took the applicant to T., an investigator with the Promyshlennyi district prosecutor's office, where he stayed until 5 p.m. The applicant was then allowed to call the school. At 5.15 p.m. the headmaster and two teachers picked him up. The applicant was taken to city hospital no. 4 by ambulance. He underwent treatment in hospital until 28 June 2001.
14. On 6 June 2001 the applicant lodged a complaint of ill-treatment in police custody and unlawfulness of his detention there with a district prosecutor's office. He submitted, inter alia, that police officers had beaten him, handcuffed him and put him in a cell in order to make him confess to a crime he had not committed.
15. On the same day a medical expert from the Stavropol Bureau for Forensic Medical Expert Studies examined the applicant. According to report no. 1560, the expert observed the following injuries to the applicant's body: an abrasion on the right cheekbone, a moderate swelling of the left temple, cheek and periorbital (eye cavity) area, purple bruises on both eyelids, several bruises on the left shoulder blade, abrasions on the left shoulder and right wrist, and neck instability. In the expert's assessment, the injuries had been caused by the impact of hard blunt objects, probably on 5 June 2001. The expert took into account that before the incident of 5 June 2001 the applicant had suffered from epileptic seizures and post-traumatic encephalopathy, noting that his pre-existing condition had nothing to do with the injuries sustained on that day.
16. On 13 September 2001 the investigator issued a decision refusing to institute criminal proceedings in respect of the applicant's allegations of ill-treatment. Relying solely on the statements by B., Ch. and P., the investigator found that while at the police station the applicant had used obscene language to them and had been warned that he would be detained for insulting State officials. He had continued to engage in verbal abuse and was then told that he was under arrest. While trying to escape, the applicant had hit Ch. and broken his glasses. The police officers had applied physical force to restrain the applicant and handcuffed him. The cell within the police station was locked and senior operational officer Bi., who had the keys, was away at that time. The investigator concluded that B. and Ch. had acted lawfully and that the applicant had not been placed in detention.
17. On 14 March 2002 the prosecutor at the Prosecutor General's Office quashed the decision of 13 September 2001 and ordered a more thorough investigation. In particular, he directed that confrontations be arranged between P. and the applicant and between Bi. and the applicant, and that other people who might have seen P. on 5 June 2001 be identified and examined.
18. On 7 May 2002 the investigator issued a new decision refusing to institute criminal proceedings in respect of the ill-treatment of the applicant. It repeated word for word the decision of 13 September 2001, the only difference being that it was not stated whether the applicant had actually been placed in the cell.
19. The applicant contested the prosecutor's decision before a court. On 29 August 2002 the Promyshlennyi District Court dismissed his complaint. However, on 27 November 2002 that judgment was quashed on appeal by the Stavropol Regional Court, which ordered a new examination of the matter by the District Court.
20. On 21 January 2003 the District Court allowed the applicant's complaint, finding that the prosecutor's decision had been made prematurely and without detailed analysis of the applicant's submissions. On 16 May 2003 the Regional Court quashed that judgment on appeal, noting that the District Court had breached the principle of equality of arms in that it had not examined police officers B. and Ch. The matter was remitted for fresh consideration.
21. On 18 June 2003 the District Court found that the prosecutor's decision of 5 May 2002 refusing to institute criminal proceedings had been unlawful, because it had been based on the materials of the criminal case against the applicant rather than on the applicant's own submissions. The District Court directed that the prosecutor carry out an appropriate inquiry into the applicant's allegations of ill-treatment. On 13 August 2003 the Stavropol Regional Court upheld that judgment on appeal.
22. On 10 October 2003, with reference to the statements made by B. and Ch., the investigator refused to open a criminal investigation into the applicant's allegations. On 27 October 2003 the supervising prosecutor quashed the decision of 10 October 2003 for failure by the investigator to carry out an inquiry properly, and ordered further examination of the matter.
23. On 31 October 2004 the investigator at the Promyshlennyi District Prosecutor's Office, issued a new decision refusing to institute criminal proceedings in respect of the alleged ill-treatment of the applicant. He heard statements from the headmaster and two teachers from the applicant's school, who testified that they had seen an abrasion on his temple and bruises on both wrists when they arrived at the police station on 5 June 2001. B. and Ch. maintained that the applicant had attacked Ch. when trying to escape after B. had told him that he would be detained for insulting a State official. P. stated that he had seen the applicant hitting Ch. in the face. G. denied that he had hit the applicant on the stairs or that he had told him to apologise to the pupil's father or else face dismissal. The investigator found that the use of force and handcuffs against the applicant had been lawful because the applicant had committed “a crime” against Ch. The injuries had been caused to the applicant when putting a stop to his criminal behaviour, detaining him and neutralising his resistance.
24. The applicant contested the investigator's decision before a court, exposing inconsistencies in the statements by B., Ch. and P. He said that he had not committed any crime and that there was no evidence that he had.
25. On 24 November 2004 the District Court allowed the applicant's complaint and set aside the investigator's decision of 31 October 2004 as unlawful and unreasoned. The District Court found that there were discrepancies in the statements by the police officers which called for a more detailed investigation. On 2 March 2005 the Regional Court upheld that judgment on appeal.
26. According to the Government, on 28 April 2005 the investigator again refused to open a criminal investigation. His decision was quashed by the District Court on 19 January 2006. On 4 October 2007 the case file was transferred to the Regional Prosecutor's office. On 27 October 2007 the investigator in charge of the case decided to close the inquiry. His decision was quashed by his superior on 18 March 2008 and the inquiry was resumed. It appears that the proceedings are still pending.
27. On 13 August 2001 the investigator instituted criminal proceedings against the applicant. He was charged with assaulting police trainee Ch. on 5 June 2001.
28. On 19 November 2001 the supervising prosecutor closed the case against the applicant. The prosecutor found that the only evidence against the applicant was the statements by B. and Ch. The statement made by P. was not reliable because he said that he had gone to the police station on 6 June rather than 5 June, and because, in the applicant's submission, P. had only appeared after the fight in the hallway was over.
29. On 14 March 2002 the supervising prosecutor quashed the decision of 19 November 2001. The proceedings against the applicant were reopened and the case file was transferred to the District Court for trial.
30. On 7 May 2002 the District Court fixed the first hearing for 10 June 2002.
31. The Government provided the following information in respect of the development of the trial:
32. On 26 May 2003 the District Court found the applicant guilty as charged and sentenced him to one year's imprisonment, suspended. The guilty verdict was founded on the statements by Ch., B., P. and Bi., the medical expert report of 6 June 2001 which recorded injuries to Ch.'s face and neck, and physical evidence, namely Ch.'s broken glasses. With respect to the applicant's injuries, the District Court determined that they had been caused unavoidably when his violent behaviour towards Ch. was stopped. The District Court also noted that there was no detention cell at the police station, but a cupboard, which remained locked at all times, officer Bi. being the key-holder.
33. On 1 August 2003 the Regional Court quashed the conviction, finding substantial deficiencies in the District Court's reasoning, and thus determining that the District Court had not established legal grounds for applying handcuffs and physical force to the applicant. Although B. had claimed that he had intended to arrest the applicant for insulting a State official, that claim was not supported by any report of an administrative offence. Furthermore, the District Court had not verified the lawfulness of B.'s bringing the applicant into the police station, given that his superior had merely asked B. to make enquiries at the applicant's school. In the Regional Court's view, the District Court should have taken into account that liability for assault on a State official only arises in the event of resistance to lawful demands by that State official.
34. As regards the applicant's injuries, the Regional Court pointed out that the District Court had not elucidated the discrepancies in the statements by B. and Ch. as to how they had been caused. They had claimed that the applicant had banged his head against the floor, walls and door, but this would not have been possible if the applicant had been lying handcuffed on the floor.
35. Finally, the Regional Court noted that the District Court had premised its findings on the medical report concerning Ch. That report had previously been declared inadmissible evidence because the examination had already been carried out on 6 June 2001 whereas the criminal case against the applicant was instituted only on 13 August 2001.
36. On 19 August 2003 the District Court set down the trial for 2 September 2003. The Government provided the following information with regard to the development of the proceedings:
37. On 16 May 2005 the District Court again found the applicant guilty as charged and sentenced him to one year's imprisonment, suspended. It relied on the same evidence as before.
38. On 26 August 2005 the Regional Court quashed the conviction, noting that the District Court had listed the evidence submitted by the defence but had not explained why it had rejected that evidence. Moreover, the District Court's finding as to the reliability of P.'s testimony was not sufficiently reasoned, given that P. had been Ch.'s classmate for several years and that they had initially attempted to hide that fact from the investigation. The District Court had not ascertained the legal basis for the applicant's detention at the police station after he had given the statement on the matter in connection with which his attendance had been required. No report of an administrative offence of insulting a State official had been compiled and a decision had been made not to bring a criminal prosecution against the applicant for that offence. Accordingly, the District Court should have clarified under what lawful order the police officers had detained the applicant at the police station. Finally, the Regional Court pointed out that the District Court had failed once again to consider the admissibility of the medical report concerning Ch.'s injuries. The Regional Court remitted the matter for fresh examination.
39. On 30 September 2005 the District Court fixed the trial for 12 October 2005. The court chose to proceed without a preliminary hearing of the matter. The applicant appealed. By a final decision of 22 February 2006 the Regional Court upheld the decision of 30 September 2005 on appeal.
The Government provided the following information with regard to the development of the proceedings:
40. On 25 September 2007 the trial was completed at the District Court.
41. On 1 October 2007 the District Court acquitted the applicant. The court found, inter alia, that B. and Ch. had had no legitimate grounds to take the applicant to the police station or to question him there and that Ch. had sustained injuries as a result of the applicant's resistance to unlawful actions by the police officers. Furthermore, the court disregarded the testimonies by witnesses B., Ch., P. and Bi. noting that they had made false statements in order to evade responsibility for their unlawful acts.
42. According to the Government, on 17 December 2007 the Regional Court upheld the applicant's acquittal on appeal.
43. The Civil Code of the Russian Federation provides as follows:
“1. Damage caused to a person as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful pre-trial detention ..., unlawful administrative arrest... be compensated [by the State] ... in full, irrespective of the fault of the [police], prosecutor's office or the court.”
“Compensation for non-pecuniary damage shall be afforded irrespective of the fault of the tortfeasor if:
... the damage is caused to a person as a result of his unlawful conviction, unlawful criminal prosecution, unlawful pre-trial detention ..., unlawful administrative arrest ...”
44. The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain etc.). However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code.
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
6-1


ITEMID: 001-76876
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KARLSSON AND OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Gunnar Karlsson, Ms Siv Jönsson, Mr Uno Karlsson and Ms Margareta Gustavsson are Swedish nationals who were born in 1945, 1944, 1950 and 1945, respectively, and live in Sweden. They are represented before the Court by Mr Christian Holmsten, a lawyer practising in Vaasa. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
In November 1992 and March 1995, a forest in Kerklax in the municipality of Maxmo, owned by S., a relative of the applicants, was sold to a company Österbottens Träd Ab for FIM 88,633.70 (EUR 14,907) and 13,317.10 (EUR 2,240) respectively.
On 14 July 1995, S. died. The applicants became beneficiaries of his estate.
On 9 January 1996 the applicants filed a criminal complaint with the police in Vörå, Finland (which later became Korsholm police) against O., S.’s brother. They alleged that the sales of 1992 and 1995 were not executed by S., but by O. for his own or his son R.’s benefit. They submitted various documents to support their allegations.
On 23 January 1996 one witness was questioned. On 11 March 1996 the police interrogated O., who told the police that the proceeds of the sales of the forest were paid to his son R. According to the pre-trial investigation report the police questioned the applicants on 31 March 1998, 7 April 1998, 12 August 1998 and 28 August 1999. In these interviews the applicants stated that they sought damages from O. and/or R.
On 28 August 1999 the police interrogated R., who lived in Sweden, by telephone. R. was never heard in person by the police.
On 31 August 1999 the police concluded their investigations. On 2 May 2000 the public prosecutor lodged charges against O. and R. before the District Court (käräjäoikeus, tingsrätten) of Korsholm. On 15 June 2000 the court held a hearing. On 29 June 2000 the District Court convicted O. and R., who had denied the charges, of aggravated theft and aggravated receiving of stolen goods respectively, and sentenced them to seven months’ and six months’ conditional imprisonment respectively. The court ordered them jointly to pay damages to the applicants.
O. and R. appealed to the Court of Appeal (hovioikeus, hovrätten) of Vaasa. On 8 May 2001 it held an oral hearing. On 7 June 2001 the court reversed the judgment of the District Court, acquitting O. and R. and quashing the decision on damages. The appellate court excluded the pre-trial statement by R. as it had not been obtained from him in person but by telephone. Furthermore, it found that there was not enough evidence of any criminal conduct concerning the forest sale of 1992. As to the sale of 1995, the court found that it was unclear who had signed the contract.
On 19 July 2001 the applicants applied for leave to appeal from the Supreme Court, claiming, inter alia, that the Court of Appeal should have referred the case to the District Court for reconsideration. When the court excluded R.’s pre-trial statement as evidence, R. was allegedly able to tailor his statements before the domestic courts to fit the statements of the complainants and witnesses. They further claimed that the pre-trial investigation, which had lasted over three and a half years, had not been carried out properly.
On 18 October 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
Section 2, subsection 1 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag; Act no. 449/1987) provides that the police or another investigation authority shall carry out a pre-trial investigation when, on the basis of a report made to it or otherwise, there is reason to believe that an offence has been committed.
According to section 5 of the said Act (Act no. 692/1997) the civil-party claim of the injured party has to be clarified in the pre-trial investigation, if the injured party has requested the public prosecutor to pursue his/her claim at the trial.
Section 6 of the said Act provides that a pre-trial investigation shall be carried out without undue delay.
Section 22 of the said Act (as in force at the relevant time) provided that a person to be interrogated had to be present in person. However, in cases of minor significance, a suspect could give his/her statement through an attorney or by telephone, provided that he/she did not deny the alleged offence.
Under Chapter 3, section 1 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål; Act no.689/1997) a civil claim arising from the offence for which a charge has been brought, may be heard in connection with the charge. If such a claim is lodged separately, the provisions on civil procedure apply.
Section 9, subsection 1 of the said Act provides that on the request of the injured party, the public prosecutor shall pursue the civil claim of the injured party, arising from the offence for which the charge has been brought if this is possible without major inconvenience and if the claim is not manifestly ill-founded. Under subsection 2 the injured party shall lodge his/her request during the pre-trial investigation or with the prosecutor. He/she shall also provide an account of the circumstances on which the claim is founded.
Section 21 of the Constitution of Finland (perustuslaki, grundlagen; Act no. 731/1999) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority. This section is equivalent to section 16 of the repealed Constitution Act of Finland of 1918 (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time.