ITEMID: 001-86674
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PECENKA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Svatopluk Pečenka, is a Czech national who was born in 1930 and lives in Branky. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a judgment of 30 May 1995 the Vsetín District Court (okresní soud), following the applicant’s action of 5 September 1994, ordered an agricultural and commercial cooperative in liquidation to pay CZK 454,765.66 (EUR 18,149) to the applicant. On 22 January 1996 the Ostrava Regional Court (krajský soud) upheld the first instance judgment which became final on 14 June 1996.
On 17 October 1996 and 16 April 1997 respectively, the defendant paid CZK 2,957.34 (EUR 118) and CZK 3,979 (EUR 159) to the applicant who, on 17 June 1997, applied to the District Court for enforcement of the above judgment by way of the compulsory satisfaction of the claim in the amount of CZK 50,000 (EUR 1,995) from the defendant’s bank’s account. On 23 June 1997 the court ordered the enforcement. The order became final on 11 July 1997.
On 12 January 1998 the applicant informed the District Court that the bank had not yet paid him anything from the defendant’s account. By a letter of 20 January 1998 the bank informed him that on 25 July 1997 it had transferred CZK 7,220.40 (EUR 288) to his account.
On 25 January 1998 the enforcement proceedings terminated under Article 307 § 3 of the Code of Civil Procedure.
On 30 June 1997 the Ostrava Regional Commercial Court (krajský obchodní soud) declared the defendant bankrupt.
On 12 February 1998 the applicant submitted his unsettled claims of CZK 447,545 CZK (EUR 17,861) against the bankrupt’s estate.
On 10 December 2004 the Regional Court adopted a resolution to distribute the bankrupt’s estate, the applicant being granted CZK 98,900 (EUR 3,947). On 30 December 2004 the applicant appealed to the Olomouc High Court (vrchní soud). It appears that the proceedings are still pending.
Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings
Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.
On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention.
Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.
Under Article 305 of the Code of Civil Procedure the court shall notify the entitled party and the financial institution of the finality of the resolution whereby it has ordered the enforcement of a decision; it shall serve the notification on the financial institution by personal delivery.
Article 307 § 3 provides, inter alia, that if the receivable being recovered, and incidentals thereto, the debt has not been paid in full, the financial institution shall carry out the enforcement of the decision also on the day following the day on which such an amount of funds is credited to the account, which is required for the entitled party’s full satisfaction. If the above does not take place within six months of the service of the notification under Article 305, the financial institution shall carry out the enforcement from additionally credited funds also on the day that follows the expiry of the above period of time, or, as applicable shall notify the entitled person that no funds were in the liable party’s account. The financial institution shall debit the receivable to the account, and pay it to the entitled person, also if such funds do not suffice to satisfy the entitled party in full.


ITEMID: 001-84649
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BOHAC v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Josef Boháč, is a Czech national who was born in 1926 and lives in Ústí Nad Labem. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
i. Proceedings against T.N.
According to the Government, on 4 March 1993 the applicant sued a certain T.N. in the Ústí nad Labem District Court (okresní soud).
On 21 September 2004 the District Court granted the applicant’s action ordering T.N. to pay CZK 7,500 (EUR 263) to the applicant.
According to the applicant, as T.N. had not paid the sum at issue, he requested the District Court, in April 2005, to execute the judgment. Apparently, the execution proceedings have not yet been terminated.
ii. Proceedings against B.K.
In his application form, the applicant submitted that in 1996, he had brought an action for damages against a certain B.K.
The Government denied that such an action had been filed.
In his observations in reply, the applicant said that he had filed a criminal complaint against B.K. at the Ústí nad Labem Town Police Office (Policie – město) which subsequently instituted criminal proceedings against B.K.’s accomplice.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-72033
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ELLI POLUHAS DÖDSBO v. SWEDEN
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8
JUDGES: András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
TEXT: 8. In 1938 the applicant married an Austrian national of Ukrainian origin who had entered Sweden that same year. Five children were born of the marriage. The family lived in Fagersta, where the applicant’s husband worked as a sales manager until his death on 11 May 1963. His ashes were buried in a family grave at a cemetery in Fagersta. The grave has room for at least eight other urns. The contract on the burial plot is to expire on 31 December 2019, but will automatically be renewed for twenty-five years when a new burial takes place there. Moreover, the person in possession of the right to the burial plot when the contract is about to expire is entitled to renew it.
9. In 1980 the applicant moved to Västerås to be closer to her children. The distance between Fagersta and Västerås is 70 kilometres.
10. On 15 August 1996 the applicant requested the cemetery authorities (Västanfors-Västervåla Kyrkogårdsförvaltning) to allow the transfer of her husband’s urn to her family burial plot in Stockholm, which had been established in 1945 and had room for thirty-two urns. The applicant’s parents were buried there and the applicant intended to be buried there after her death. Stockholm is situated 180 kilometres from Fagersta. The applicant submitted in addition that she had no connection to Fagersta any more, that all her children agreed to the removal and that she was sure her husband would not have objected to the transfer.
11. By a decision of 16 September 1996, her request was refused by the authorities in deference to the notion of “a peaceful rest” under the Funeral Act (Begravningslagen, 1990:1144).
12. On appeal, the County Administrative Board in Västmanland (Länsstyrelsen i Västmanlands Län) upheld the refusal.
13. The applicant appealed to the County Administrative Court in Västmanland (Länsrätten i Västmanlands Län) which, by a decision of 5 September 1997, found against her. It stated as follows:
“Pursuant to Chapter 1, section 6, of the Funeral Act, remains or ashes which have been buried in a cemetery may not be removed from a burial plot in order to be buried in another burial plot. However, permission may be granted if there are special reasons therefor and the place to which the remains or ashes are to be removed has been determined.
According to the explanatory notes to the Act (Prop. 1990/91:10, pp. 35-37), the decision on a request for the removal of remains or ashes shall be restrictive, having regard to the deceased’s right to a peaceful rest. Determination [of such a request] should be guided by the wishes expressed by the deceased whilst alive. As a general rule, it must be assumed that such a wish, if expressed, was taken into account when the burial took place. The paramount condition for allowing a transfer is obviously that it would not contravene the wishes expressed by the deceased when alive. Moreover, some connection between the deceased and the intended destination would usually be required.
In the present case [the applicant’s husband] worked as a sales manager at the Fagersta factory until 1958. He died on 11 May 1963, and the urn containing his ashes was placed in grave no. 208/017, quarter no. 208, in Västerfors. [The applicant’s husband] came from Ukraine and had a Catholic Church tradition. It appears that he did not express any wishes about his burial when he was alive.
The County Administrative Court makes the following assessment:
Making an overall assessment, the County Administrative Court finds that [the applicant’s husband] did not have a closer natural connection to Stockholm than he had to Fagersta. No other reasons have been submitted which could justify the disturbance of the peace of the grave after thirty-four years.”
14. The applicant’s request for leave to appeal was refused by the Administrative Court of Appeal in Stockholm (Kammarrätten i Stockholm) on 29 October 1997, and by the Supreme Administrative Court (Regeringsrätten) on 22 February 2000.
15. The applicant died on 21 February 2003. In accordance with her wishes, she was buried in her family burial plot in Stockholm.
16. Domestic provisions of relevance to the present case are to be found in the Funeral Act 1990 (Begravningslagen – “the Act”), which came into force on 1 April 1991. Previously, they were contained in the Funeral Service Act 1957 (Lagen om jordfästning m.m.).
It is mainly the parishes of the Church of Sweden which are responsible for burial grounds (Chapter 2, section 1, of the Act) and for decisions concerning, inter alia, graves and burials. It is also in the first instance for the church authorities to determine requests to move the remains or ashes of a deceased person (Chapters 5, 6 and 7 of the Act). A decision may be appealed to the county administrative board (Chapter 11, section 6, of the Act). Further appeals lie with the competent administrative court of appeal and, subject to the granting of leave to appeal, with the Supreme Administrative Court (Chapter 11, section 7, of the Act).
When a person dies, his or her wishes concerning cremation and burial should, as far as possible, be followed (Chapter 5, section 1 of the Act). This was also the rule under the Funeral Service Act 1957, the legislation applicable at the time of the applicant’s husband’s death. If there is a dispute between the survivors about where the burial should take place, it is for the county administrative board to decide (Chapter 5, section 4, of the Act).
Once remains or ashes have been buried, moving them from one place to another is in principle not allowed. However, permission to move remains or ashes may be granted if special reasons exist and if the place to which they will be moved has been clearly stated (Chapter 6, section 1, of the Act). However, the grave must not be opened in such a way that the remains or ashes are damaged (Chapter 2, section 13, of the Act).
The provisions of Chapter 6, section 1, of the Act are based on respect for the sanctity of the grave. This is also why the provisions regarding the removal of remains and ashes are restrictive; a deceased’s grave must be left in peace and may only be disturbed under special circumstances. According to the explanatory notes to the Act (Government Bill 1990/91:10, p. 35), the removal of remains or ashes may be permitted if a mistake occurred at the time of burial, if the remains of a husband, wife, parent or young child are to be brought together or, in some cases, if a refugee or immigrant wishes to take the remains of a deceased relative back to his or her country of origin. The deceased’s own wishes should serve as guidance for the transfer decision. When such wishes are not known, regard should be had to the deceased’s attachment to the place where he or she is buried. As a rule, removal should not be permitted if the deceased is buried in a place where he or she was active for a large part of his or her life. If, however, the cemetery is situated in a place where the deceased lived only temporarily, removal may be permitted.
In addition, the deceased should have had some connection with the place to which the remains are to be removed. According to the explanatory notes (ibid., pp. 36-37), examples of such a connection could be that the deceased grew up in that place, had relatives or a family grave there, or perhaps had a holiday home there. As regards husbands and wives, it may be permitted to move one of the deceased’s remains to bring them together in a common grave, especially if the one who died last cannot, for some reason, be buried in the same place as the first. Particular regard may be had to the wishes of the last survivor concerning the common burial place.
17. In 1994 the Supreme Administrative Court ruled on several cases concerning the interpretation of Chapter 6, section 1, of the Act (Regeringsrättens Årsbok 1994 ref. 93 I-IV). These judgments reveal a restrictive interpretation. For instance, the fact that the surviving relatives have moved, that there is a long distance between the burial place and their new home, or that public transport to a burial place may be lacking, are not considered to be sufficient grounds for a transfer. In three cases the Supreme Administrative Court, referring to the explanatory notes to the Act and the reasons stated in the requests, found that those reasons were not sufficient to permit removal of the deceased’s remains or ashes. These cases concerned, respectively, a fiancée who wanted to move her fiancé’s remains, a husband who wanted to move his wife’s remains, and a daughter who wanted to move her father’s remains. In another case, however, which concerned a mother’s request to move her child’s remains to her husband’s burial place, the Supreme Administrative Court found that there were sufficient reasons to allow the transfer.
In the case concerning a daughter’s request to move her father’s remains, the former wanted to bury the latter in the same cemetery as the one in which her recently deceased mother had chosen to be buried. The Supreme Administrative Court noted that the complainant’s father had lived and worked in Malmö, and was buried there in his grandfather’s family grave. Having regard to the father’s connection to Malmö, the Supreme Administrative Court found no reason to presume that his burial there had been a mistake, and it held that there were no other sufficient reasons, after thirty years, to permit the removal of the remains.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-102711
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MEHMET NURİ ÖZEN AND OTHERS v. TURKEY [Extracts]
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto
TEXT: 5. The applicants are Turkish nationals.
6. They are all serving sentences in Turkish high-security prisons, where the authorities refused to dispatch their letters written in a language other than Turkish. They all brought proceedings before the competent domestic courts to oblige the prison authorities to dispatch their letters, but to no avail.
7. At the time they lodged their applications, the applicants were serving their sentences in the F-type prison in Tekirdağ or the Bolu prison highsecurity prison.
8. On 14 January 2008 the Disciplinary Board at the applicant’s prison proceeded, in accordance with section 68 § 3 of Law no. 5275 on the execution of sentences and preventive measures (“Law no. 5275”), to check a letter the applicant had written to another prisoner in Kurdish. After reminding him that letters should in principle be written in Turkish, they informed him that they could not have the letter translated, for lack of staff, so they were unable to ascertain, as required under Rule 122 § 1 of the Regulations on prison management and the execution of sentences (“the Prison Regulations”), whether the content of the letter was “inoffensive”. They therefore decided to return the letter to the applicant.
9. On 28 January 2008, on the basis of the case file, the Bolu enforcements judge dismissed the applicant’s appeal against that decision.
10. On 12 February 2008 the Bolu Assize Court, also dismissed an appeal lodged by the applicant against that decision.
11. On 21 and 26 September 2007 the Disciplinary Board decided to keep one letter written by each of the applicants in Kurdish. Arguing that the prison had neither the staff nor the money to have them translated, they explained that the letters could be sent once they had been translated, at the applicants’ expense, by a sworn translator and their content had been found to be inoffensive.
12. On 6 November 2007, based on the case file, the Tekirdağ enforcements judge dismissed an appeal lodged by the applicants. That decision was reached after the judge examined the public prosecutor’s submissions, according to which “it [was] necessary to have the correspondence – which was written in a language other than the official language – translated in order to have it verified in accordance with section 68 § 3 of Law no. 5275; there [were] no legal provisions requiring the prison to cover the cost of the translation; as the interested parties themselves had not paid for a translation, there [was] nothing unlawful about the impugned decisions”.
13. On 19 and 27 November 2007, based on the case file, the Tekirdağ Assize Court dismissed an appeal lodged by the applicant against that decision, having found no legal or procedural defect.
14. On 10 October 2007 the Disciplinary Board decided, pursuant to section 68 § 3 of Law no. 5275 and Rule 91 § 3 of the Prison Regulations, to seize a letter the applicant had written to his mother in Kurdish. They explained that they had been unable to decipher the content of the letter because the prison staff did not understand Kurdish.
15. On 22 November 2007, based on the case file, the enforcements judge dismissed an appeal lodged by the applicant. That decision was reached after the judge examined the public prosecutor’s submissions, according to which “it [was] necessary to have the correspondence – which was written in a language other than the official language – translated in order to have it verified in accordance with section 68 § 3 of Law no. 5275; the prison [had] no budget for translation costs. As the interested party had not paid for a translation himself, there [was] nothing wrong with the impugned decision”.
16. On 18 December 2007, based on the case file, the Assize Court dismissed an appeal lodged by the applicant against that decision, having found no legal or procedural defect.
17. On 2 May 2008, the Disciplinary Board decided not to send a letter the applicant had written to his mother in Kurdish, because they were unable to have it translated and thus to understand its content and determine whether it was “inoffensive”.
18. On 26 May 2008 they reached a similar decision concerning a letter written by the applicant to his sister in Kurdish.
19. On 20 May and 18 June 2008 respectively, on the basis of the case file, the Bolu enforcements judge dismissed the applicant’s appeal against those decisions not to send his letters, considering that the Board’s decisions were fully in keeping with section 68 § 3 of Law no. 5275 and Rule 123 § 1 of the Prison Regulations, as it had not been possible to determine whether the content of the letters matched any of the criteria set forth in section 68 § 3 of Law no. 5275.
20. On 6 June and 11 July 2008 respectively, basing itself on the case file, the Bolu Assize Court rejected the applicant’s complaint against these decisions, noting that the refusal to dispatch the letters had been based not on the fact that they were written in Kurdish but on the fact that their content was incomprehensible and therefore impossible to verify having regard in particular to the imperatives of order and security.
21. On 10 October 2007 the Disciplinary Board decided to seize a letter the applicant had written in Kurdish, in conformity with section 68 § 3 of Law no. 5275 and rule 91 § 3 of the Prison Regulations, on the grounds that they had been unable to decipher the content of the letter because the prison staff did not understand Kurdish.
22. On 20 November 2007, based on the case file, the enforcements judge rejected the applicant’s appeal. That decision was reached after the judge examined the public prosecutor’s submissions, according to which “it [was] necessary to have correspondence which was written in a language other than the official language translated, in order to have it checked in accordance with section 68 § 3 of Law no. 5275. The prison [had] no budget for translation costs. As the interested party had not paid for a translation himself, there [was] nothing wrong with the impugned decision.”
23. On 18 December 2007, based on the case file, the Assize Court dismissed an appeal by the applicant against that decision, finding that there had been no procedural defect or error of law.
24. On 21 January 2008, relying on Rules 91, 122 and 123 of the Prison Regulations, the Disciplinary Board decided not to send a letter the applicant had written in Kurdish. They explained that the prison had no staff to translate the letter and took note of the prisoner’s refusal to cover the cost of translation himself.
25. On 6 February 2008, based on the case file, the Kocaeli enforcements judge found that the Board’s decision was in conformity with prison Rules 91, 122 and 123.
26. On 28 February 2008, on the basis of the case file, the Kocaeli Assize Court rejected an appeal lodged by the applicant.
27. On 2 May 2008, the Disciplinary Board decided to refuse to send a letter the applicant had written to his father in Kurdish, on the grounds that they could not understand its content and determine, as required by Rule 122 § 1, whether it was “inoffensive”. After pointing out that correspondence should, in principle be written in Turkish, they explained that they did not have any staff to translate the letter.
28. On 20 May 2008, noting that the letter in question contained characters which were not in the Latin alphabet, the Bolu enforcements judge dismissed the applicant’s appeal, pointing out that while the right to correspondence was guaranteed, it was not unlimited, and that in this particular case it was not possible to ascertain whether the content of the letter fell within the scope of the restrictions set forth in section 68 § 3 of Law no. 5275.
29. On 10 June 2008 the Bolu Assize Court observed that the reason behind the decision not to send the letter was not the fact that it was written in Kurdish but the fact that its content was incomprehensible, making it impossible to carry out the verification provided for in section 68 § 3 of Law no. 5275.
30. Section 68 of Law no. 5275 of 13 December 2004 on the execution of sentences and preventive measures, published in the Official Gazette on 29 December 2004, reads as follows:
“1. With the exception of the restrictions set forth in this section, convicted prisoners shall have the right, at their own expense, to send and receive letters, faxes and telegrams.
2. The letters, faxes and telegrams sent or received by prisoners shall be monitored by the reading committee in those prisons that have such a body, or, in those which do not, by the highest authority in the prison.
3. If letters, faxes and telegrams to prisoners are a threat to order and security in the prison, single out serving officials as targets, permit communication between terrorist or criminal organisations, contain false or misleading information likely to cause panic in individuals or institutions, or contain threats or insults, they shall not be forwarded to the addressee.
Nor shall [letters, faxes and telegrams of the type described above] written by prisoners be dispatched.
...”
31. Rule 91 of the Prison Regulations of 20 March 2006 on prison management and the execution of sentences, published in the Official Gazette on 6 April 2006, reads as follows:
“1. Convicted prisoners shall have the right, at their own expense, to send and receive letters, faxes and telegrams.
2. The letters, faxes and telegrams sent or received by prisoners shall be monitored by the reading committee in those prisons that have such a body, or, in those which do not, by the highest authority in the prison.
3. If letters, faxes and telegrams to prisoners are a threat to order and security in the prison, single out serving officials as targets, permit communication between terrorist or criminal organisations, contain false or misleading information likely to cause panic in individuals or institutions, or contain threats or insults, they shall not be forwarded to the addressee.
...”
32. Rule 122 § 1 of the Prison Regulations reads as follows:
“In the framework of the right to send and receive correspondence under section 91 above, letters, faxes and telegrams written by prisoners shall be handed, in open envelopes to the staff responsible for surveillance and security, who shall transmit them to the reading committee ... A ‘seen’ stamp shall be affixed to those letters which, upon examination, appear inoffensive. [Such letters] shall be placed in envelopes and given to the postal services ...”
33. Rule 123 of the Prison Regulations reads as follows:
“1. Those incoming or outgoing letters which are not considered inoffensive by the reading committee shall be transmitted to the Disciplinary Board within 24 hours. If the Disciplinary Board finds a letter to be offensive in full or in part, the letter shall be kept until the time-limit for filing a complaint or an objection has expired, without the original being altered or destroyed. If a letter is found to be offensive in part, the original shall be kept by the prison authorities and a photocopy delivered – with the offending passages struck out in such a way as to be illegible – together with the Board’s decision. If the whole letter is found to be offensive, only the decision of the Disciplinary Board is delivered. The Disciplinary Board’s decision shall become final upon expiry of the time-limit for applying to the enforcements judge, which shall start to run on the date of delivery. If the matter is sent before the enforcements judge, his decision shall become final upon expiry of the time-limit for appeal, which shall start to run on the date of the decision of the enforcements judge. If an appeal is made to set aside the decision of the enforcements judge, the decision of the court examining the appeal shall apply.
2. The notice given to the prisoner must inform him that if no complaint is lodged with the enforcements judge within fifteen days of the Disciplinary Board’s decision being served, or if no appeal against the decision of the enforcements judge is lodged with the Assize Court within one week of its being served, the decision of the Disciplinary Board shall become final, and that the letter concerned will be forwarded after the offending passages have been deleted and rendered illegible, or that the whole letter is considered offensive and will not be delivered.
3. Those letters considered offensive in full or in part shall be kept by the prison authorities for use if an appeal is lodged at the national or international level.”
34. On 13 October 2009 the Prison Service of the Ministry of Justice sent public prosecutors and prison governors as well as enforcements judges, a circular concerning translation costs. Referring to Articles 8 and 10 of the European Convention on Human Rights, the relevant passages read as follows:
“There are certain things we wish to bring to your attention ..., in order to put a stop to any uncertainty concerning the exercise of the right to receive or send publications, letters, faxes or telegrams written in a dialect or language other than Turkish ....
...
Examination of prison budgetary practices reveals that there is no budget provision for the translation into Turkish of periodical or non-periodical publications and correspondence written in a dialect or language other than Turkish. If a prison is unable to provide this service using local resources, it is possible to solve the problem by charging the cost to the “purchase of services” budget head, under the sub-head ‘purchase of other services’, which includes the item ‘expenditure on translations not counted as author’s rights’.
In this connection,
1. It is sufficient to provide a “summary report” summarising the general content of documents such as periodical or non-periodical publications, letters, faxes and telegrams written in a language other than Turkish;
2. If there are prison staff with a knowledge of the language or dialect concerned, they should be asked to prepare the summary report;
3. If the problem cannot be resolved in the manner described in the preceding paragraph, it is possible, for a ‘reasonable’ fee:
(a) to make use of local resources and, at this stage, take advantage of the skills of staff working in other administrative entities;
(b) if that also proves impossible, to have recourse to reliable persons in the area or district who are familiar with the language or dialect concerned.”
VIOLATED_ARTICLES: 8


ITEMID: 001-77231
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DOGMOCH v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Mohammad Yassin Dogmoch, has German and Syrian nationality. He was born in 1941 and lives in Beirut in Lebanon. He was represented before the Court by Mr W. Bub, a lawyer of the law firm Bub, Gauweiler & Partner practising in Munich, Germany.
The applicant is a businessman with professional activities in Germany and throughout the Arab world. Since 1995 the applicant entertained professional contacts with two businessmen from Mannheim, Germany, named S. and K. In the beginning of 2000 the Mannheim Public Prosecutor suspected the latter of having set up an extensive fraudulent scheme. According to the allegations brought out against them, between 1994 and 1999 S. and K. pretended to own industrial drilling machines, which they sold to a number of leasing companies although these drilling machines did not exist and the damage remained with the leasing companies. These incidents, which became known as the “Flowtex-scandal”, stirred a considerable amount of media attention and are regarded as a pre-eminent example of commercial delinquency in German history.
On 16 February 2000 the criminal investigation judge (Ermittlungsrichter) at the Mannheim District Court (Amtsgericht), in the investigation proceedings against S., K. and two alleged co-offenders, and upon the Public Prosecutor’s request, ordered the applicant’s assets, amounting to 60,800,000.00 Deutschmarks (DEM), to be frozen pursuant to sections 111b subsections 2 and 5, 111d, 111e subsection 1 of the Code of Criminal Procedures in conjunction with section 73 subsection 1, second sentence, subsection 3, and section 73a of the Criminal Code (attachment in rem, dinglicher Arrest, see relevant domestic law below). That court found that, according to the preliminary investigations, a sum of DEM 60,800,000.00 deriving from the fraudulent sales had been transferred to the applicant’s enterprise and from there to his personal property. There was the risk that the applicant would try to transfer the assets abroad in order to prevent the execution of claims brought out later by aggrieved third parties.
On 8 May 2000 the Mannheim District Court, in a decision naming the applicant as a person charged with an offence (Beschuldigter), modified and extended the attachment of the applicant’s assets to the amount of DEM 102,800,000.00. Relying on statements given by S. and K. during the preliminary investigations, the District Court found the suspicion to be confirmed that the applicant had knowingly received money derived from fraudulent transactions. Accordingly, there was the suspicion that the applicant had committed the offence of money-laundering. The money was subjected to the claims of aggrieved third parties according to the provisions of civil liability.
On 16 June 2000 the Mannheim Regional Court (Landgericht), on the applicant’s complaint, upheld the attachment of DEM 60,800,000.00 and lifted the attachment of additional DEM 42,000,000.00. That court confirmed that there was strong evidence given by the statements of S. and K. that the applicant had participated in the fraudulent actions. The measure taken was proportionate, moreover, it could be expected that he would try to deprive the aggrieved leasing companies of the assets.
On 19 September 2000 the Mannheim Regional Court upheld its previous decision.
On 23 November 2000 the Mannheim Regional Court rejected the applicant’s request to be heard personally. According to that court, the applicant and his counsel had been well informed about all circumstances which raised suspicions against him. In her written submissions to that court, the applicant’s counsel had tried to cast doubts on the credibility of the main offenders S. and K. She had laid out in detail the applicant’s point of view regarding all circumstances of the cash flow and had tried to rebut the incriminating evidence. As the applicant’s point of view had been clearly and unambiguously submitted in writing, the chamber saw no need to hear him orally.
With regard to the right to a fair hearing as guaranteed by Article 103 subsection 1 of the Basic Law, the Regional Court found as follows:
“The attachment of assets pursuant to section 111d, 111b subsection 5 in conjunction with sections 73 f. of the Criminal Code in order to safeguard third persons’ claims is ordered by court decision. According to section 33 subsection 4 sentence 1 of the Code of Criminal Procedure, the order to seize property in order to safeguard the claims of aggrieved parties is issued without hearing the person charged of the offence, as a prior hearing could enable him to transfer the property and thus to thwart the aim of the safeguarding measure. This practice has been approved of by the Federal Constitutional Court.... During the ensuing complaint proceedings...the right to a fair hearing was fully taken account of. Pursuant to section 309 subsection 1 of the Code of Criminal Procedure, the decision on the complaint is taken without an oral hearing. Accordingly, the decision is taken in written proceedings. ...It follows that the fair hearing has to be granted in written proceedings. For special reasons the court of complaint can decide to hear oral statements.
According to the chamber, these regulations do neither in general nor in this specific case run contrary to Article 103. With the aid of his counsel Dr. W., the defendant has made full use of the opportunity to submit his statements, which were fully taken into account, in the written proceedings. There were no obstacles which prevented him from using this form of communication to fully and objectively depict the incidents. Neither the alleged actions to the detriment of the leasing companies nor the alleged participation of the defendant were of such a nature that a personal and oral statement given by the defendant would have been more suited to provide a correct assessment of his actions than a written statement and would thus have been preferable for the chamber. The defendant’s acts of participation did not have an ambiguous content; they did not concern exceptional or borderline circumstances which would have necessitated the defendant’s personal presence and hearing in order to assess them. Contrary to the defendant’s counsel’s opinion, it was not only necessary to weigh the statements given by the two main suspects K. and S. against the defendant’s own statements. On the contrary, it was necessary to weigh a number of other circumstances, which, taken on their own, justified the attachment order.... Accordingly, they were no “special reasons” justifying to hear the defendant personally.”
On 31 July 2001 the Mannheim District Court upheld the attachment of an amount of DEM 39,000,000.00 and lifted the attachment of DEM 21,800,000.000. On the basis of the results of the preliminary investigations, the District Court confirmed the existence of a strong suspicion that the applicant had aided the transfer and concealment of assets. It further confirmed that an oral hearing was neither legally prescribed nor necessary in order to safeguard the applicant’s right to a fair hearing.
On 30 January 2003 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint against the decision of the Mannheim Regional Court of 23 November 2000 and – indirectly – against section 111b of the Code of Criminal Procedure for adjudication for lack of prospect of success.
With respect to the right to a fair hearing, the Federal Constitutional Court found as follows:
“The constitutionally guaranteed right to a fair hearing includes the right to information, the right to lodge requests and to submit statements, and the right that the courts take into account the submitted statements. According to the consistent case-law of the Federal Constitutional Court, Article 103 section 1 of the Basic Law does not grant the right to be heard in a specific form, in particular, in an oral hearing. Accordingly, it is up to the legislator to decide to which extent he wishes to grant the right to an oral hearing in specific proceedings.
According to section 309 subsection 1 of the Code of Criminal Procedure the decision on the complaint is taken without an oral hearing, that is to say in written proceedings. The complaint court is not prevented from orally hearing witnesses or experts in the course of their investigations pursuant to section 308 subsection 2 or to hear oral statements given by the parties to the proceedings. However, it has the discretion to decide whether it deems such measures necessary. There is no indication that it did not make correct use of this discretion, the more so, as the applicant has failed to establish what he would have stated differently in case of an oral hearing.”
This decision was served on the applicant’s counsel on 17 February 2003.
On 17 March 2003 the Mannheim Public Prosecutor issued an indictment against the applicant. The criminal proceedings against the applicant have been suspended on 14 June 2006 in view of the applicant’s inability to plead.
The order that the applicant’s assets amounting to DEM 39,000,000.00 be frozen remains in force.
Article 103 subsection 1 of the Basic Law provides that in the courts, everyone is entitled to be heard in accordance with the law (Anspruch auf rechtliches Gehör).
According to section 111b, subsection 2 of the Code of Criminal Procedure, the attachment of assets may be ordered if there are reasons for assuming that the conditions of forfeiture or for confiscation have been fulfilled. According to subsection 5, this also applies if forfeiture may not be ordered because the assets are subject to claims brought out by the aggrieved party.
Section 73 subsection 1, sentence 1 of the Criminal Code provides that the court shall order the forfeiture of any object which has been acquired by a perpetrator or accessory as a result of an unlawful act. According to sentence 2, this shall not apply to the extent that the assets are subject to claims brought out by the aggrieved party.
If the forfeiture of a particular object is impossible due to the nature of what was acquired or for some other reasons, the court shall order the forfeiture of the sum of money which corresponds to the value of that which was acquired (section 73a of the Criminal Code).
Section 33 subsections 3 and 4 of the Code of Criminal Procedure provide that the concerned person is not heard prior to the issue of an order of seizure or other measure, if this would endanger the purpose of such order. According to section 309 subsection 1, the decision on the complaint shall be taken without an oral hearing. According to section 308 subsection 2, the court of complaint may order investigations or conduct them itself.


ITEMID: 001-83476
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MATIA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1956 and lives in Kosice.
5. The applicant is a sports journalist. On 18 November 1997 a local daily newspaper published an article containing negative remarks about the applicant's professionalism, ethics and education.
6. On 26 January 1998 the applicant brought a libel action in the Košice II District Court (Okresný súd) against the chief editor of the daily and “his office”. He sought a judicial order that the defendants publish a correction of the libellous information. In the course of the action there have been several corporate and personal changes on the side of the defendants causing ambiguity as to their standing to be sued in the case.
7. On 25 March and 18 May 1998, respectively, the District Court invited the applicant to submit further information and to pay the court fee. The applicant complied on 2 April and 26 May 1998, respectively.
8. On 21 December 1998 the applicant amended the action and submitted a further specification of who the defendants were.
9. On 22 March 1999 the District Court ruled that the modification of the scope of the action was impermissible. On 30 December 1999 the Košice Regional Court (Krajský súd) overturned this decision on the applicant's appeal and approved the modification.
10. Between 1 October 1998 and 2 October 2001 the District Court held 3 hearings that were adjourned due to the absence of the defendant. Another 2 hearings were scheduled but did not take place because the judge was absent for health reasons.
11. On 21 August 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He contended that the length of the proceedings in his action was excessive and claimed 935,000 Slovakian korunas (SKK) in damages.
12. On 16 April 2003 the Constitutional Court found that there had been a violation of the applicant's right to a hearing “without undue delay” (Article 48 § 2 of the Constitution) and within a “reasonable time” (Article 6 § 1 of the Convention) in his action. The Constitutional Court ordered that the District Court proceed with the matter promptly; pay the applicant SKK 40,000 by way of compensation in respect of nonpecuniary damage; and reimburse the applicant's legal costs. The subjectmatter of the proceedings was neither legally nor factually complex. The applicant had caused no delays and what was at stake for him called for special diligence. However, for almost 3 years, the District Court had proceeded with the case inefficiently.
13. Between 12 December 2002 and 1 February 2005 the District Court took several decisions ascertaining who the defendants in the action were and correcting clerical errors in those decisions. The applicant challenged these decisions by way of appeals (odvolanie) and appeals on points of law (dovolanie). The latter were declared inadmissible on 25 August and 21 October 2005 as, in the circumstances, no such remedy was available.
In this period, the District Court sought information from the Registry of Inhabitants concerning the address of one of the defendants and requested that court mail be served on him by the police.
14. According to the applicant, in the meantime the newspaper in question ceased to exist.
15. On 23 January 2006 the District Court requested the applicant to identify the defendants of his action in accordance with the applicable procedural requirements and the current state of affairs. He responded on 2 February 2006. The District Court then made further inquiries into who was to be sued in the case.
16. On 15 June 2006 the District Court held a hearing. It was adjourned and the applicant was again requested to specify who the defendants were. The proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100686
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF MANGOURAS v. SPAIN
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-3
JUDGES: Alejandro Saiz Arnaiz;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Georgieva;Giovanni Bonello;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen
TEXT: 13. The applicant was born in 1935 and lives in Greece.
14. On 13 November 2002 the ship Prestige, flying the flag of the Bahamas, was sailing in the Spanish exclusive economic zone off the coast of Galicia, carrying 70,000 tonnes of fuel oil. At a distance of 28 miles from Cape Finisterre it sent out an SOS after sustaining sudden and severe damage which produced a leak and caused the contents of its tanks to spill into the Atlantic Ocean.
15. As the Prestige was in danger of sinking, the maritime authorities launched a large-scale operation to rescue its crew. The ship was adrift and was approaching the coast, spilling its cargo into the sea. The applicant, who was the ship’s Master, was taken by helicopter to the offices of the Corunna (A Coruña) harbourmaster, where he was arrested.
16. The spillage of the ship’s cargo caused an ecological disaster whose effects on marine flora and fauna lasted for several months and spread as far as the French coast. The shores of the Atlantic coast of Cantabria and Galicia were severely polluted by the numerous waves of oil which were washed up. The oil spill blackened beaches and cliffs, destroyed marine life, adversely affected water quality and had an immediate environmental impact on numerous animal species. It caused damage to protected natural areas and had considerable repercussions on several sectors of the economy in the regions concerned, particularly on fishing, commerce and tourism.
17. By a decision of 17 November 2002, the Corunna no. 4 investigating judge remanded the applicant in custody and set bail at 3,000,000 euros (EUR), after finding that the facts of the case disclosed sufficient indicative evidence to justify opening a criminal investigation. While acknowledging that the oil spill had been caused by an accident, the judge said that some of the information in the file, although still provisional at that stage in the proceedings, suggested that the applicant had been at fault in several respects, in particular in failing to cooperate sufficiently with the port authorities when they had tried to take the vessel in tow. The applicant’s conduct could constitute an offence of causing damage to natural resources and the environment and one of failing to comply with the instructions of the administrative authorities. In the judge’s opinion, the seriousness of the offences in question and the fact that the applicant was a foreign national who had no particular ties with Spain justified the high sum set for bail. The relevant part of the decision reads as follows:
“The information obtained discloses indicative evidence – still provisional at the preliminary investigation stage – of an offence of causing damage to natural resources and the environment for the purposes of Article 325 and, possibly, Article 326 of the Criminal Code, and of an offence of failure to comply with the instructions of the administrative authorities, punishable under Article 556 of the Code. The investigation has produced sufficient indicative evidence to suggest that Mr Apostolos Mangouras could be criminally responsible for the offences in question. In view of the penalties laid down in the Criminal Code for these offences, and the fact that the application provided for in Article 504 bis § 2 and Article 539 of the Code of Criminal Procedure was made at the mandatory hearing, an order should be made, in accordance with Articles 503 and 504 of that Code, for the accused’s pre-trial detention as a preventive measure, accompanied by the right for the accused to communicate with others and the possibility of release on bail.
The reasonable indications referred to above emerge from the documents in the case file and, in particular, from detailed examination of the testimony of the witnesses who appeared this morning. All the evidence indicates that the severe damage to the Prestige was caused by the unforeseeable phenomenon of a storm surge, but that actions were taken which could form the basis of a criminal prosecution, as indicated in the previous paragraph.
It should be stressed that the steps taken hitherto and the conclusions to be drawn for the purposes of this decision are of a wholly provisional nature and that many further steps and much more expert evidence will be needed in order to fully elucidate the facts. However, it is clear at this stage that the Prestige did not have any emergency towing equipment or that if it did, it was not in working order, as demonstrated by the recordings of conversations. It is also clear that the ship’s Master, by repeatedly ignoring the instructions of the port authorities, hampered meaningful joint efforts to lessen the extremely serious risks.
It appears that the Master of the Prestige refused for almost three hours to cooperate and subsequently continued to do so indirectly, creating difficulties by refusing to take the necessary steps to ensure effective towing of the vessel or to start the engine so that the ship could advance, however slowly. These events occurred within the country’s 24-mile limit and, by definition, within the 200-mile zone. It is true, as already indicated, that further investigative elements are required, in particular the ship’s log, which has been urgently requested, and that it will be necessary to verify all the other information contained in the recordings of conversations, transcripts of which appear to be in the possession of the Cape Finisterre control centre.
Without prejudice to all of the above, the accused’s detention could be dispensed with subject to bail being furnished in the amount of three million euros. In the court’s view, the security in question is justified in view of the seriousness of the offences concerned and the heavy sentence they carry and also because the investigation is in the early stages, the accused’s release could impede the investigation, the case has clearly caused a major public outcry and, in addition to the issues of criminal responsibility raised, there are significant civil liability issues at stake involving substantial sums. Furthermore, Mr Mangouras has no ties in Spain and could leave the country at any time and thus evade prosecution. For all the reasons outlined above it is necessary and unavoidable, in the present circumstances, to fix bail. Bail cannot, for the time being at least, be replaced by a less restrictive measure.”
18. On 19 November 2002 the applicant requested his release and, in the alternative, the reduction of bail to EUR 60,000 to reflect his personal situation. He also submitted that his advanced age should be taken into account. In a decision of 27 November 2002, the Corcubión (Corunna) no. 1 investigating judge refused the applicant’s request. The judge took the view that the seriousness of the offences of which the applicant stood accused justified his continued pre-trial detention and that the latter measure was exceptional, subsidiary, temporary and proportionate in nature and thus satisfied the remaining criteria laid down by the case-law of the Constitutional Court. As to the amount set for bail, the judge stated that the applicant’s appearance at trial was vital in order to elucidate the sequence of events following the leak in the vessel. He also reiterated the arguments of the first investigating judge to the effect that the seriousness of the offences, the public outcry caused by the marine pollution, the applicant’s Greek nationality, the fact that his permanent address was abroad and the fact that he had no ties with Spain justified setting a high level of bail in order to rule out any risk that the applicant might fail to appear.
19. On 7 December 2002 the same investigating judge confirmed the decision, rejecting an application from the applicant to set it aside (recurso de reforma).
20. An appeal by the applicant was dismissed on 3 January 2003 by the Corunna Audiencia Provincial subject to the posting of bail in the amount of EUR 3,000,000. The Audiencia Provincial noted the outcry caused by the alleged offences and took the view that the impugned decision was not open to criticism on any account, “including with regard to the amount of bail”.
The Audiencia Provincial stressed that the prima facie evidence taken into consideration by the investigating judge in ordering the applicant’s pretrial detention concerned serious offences, that it was too early to rule on whether the offence had been committed intentionally and that the applicant’s detention pursued the legitimate aim of preventing the risk of his absconding, a risk closely linked to the seriousness of the alleged offence and his lack of any particular ties in Spain. It referred in that regard to the category of offences in question and the severity of the likely sentence, the fact that the accused’s presence was essential to the investigation, the possibility that the trial might collapse if he absconded and the public outcry surrounding the established facts.
The Audiencia Provincial dismissed the ground of appeal based on the applicability of Article 230 of the United Nations Convention on the Law of the Sea of 10 December 1982, holding that the provision in question referred only to administrative offences relating to pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which only monetary penalties could be imposed, and not to wilful and serious acts of pollution in the territorial sea.
21. On 6 February 2003 the Corcubión (Corunna) no. 1 investigating judge recorded the lodging of a bank guarantee in an amount corresponding to the sum set for bail, which was provided as a one-off, spontaneous humanitarian gesture by the London Steamship Owners’ Mutual Insurance Association Limited (“the London P&I Club”), which insured the ship’s owner. Accordingly, on 7 February 2003, the judge ordered the applicant’s provisional release after eighty-three days in detention, subject to the following conditions:
“(a) that [the applicant] supply an address in Spain;
(b) that he report every day before 1 p.m. to the police headquarters corresponding to the address supplied;
(c) that he remain in the country and surrender his passport to the court’s registry.”
22. On 28 May 2003 the London P&I Club and the ship’s owner, Mare Shipping Inc., paid out EUR 22,777,986 in compensation for the damage for which they were civilly liable within the limits laid down by Article V of the 1992 International Convention on Civil Liability for Oil Pollution Damage (“the CLC 1992”, see paragraph 54 below).
23. Relying on Article 17 of the Constitution (right to liberty and security), the applicant lodged an amparo appeal with the Constitutional Court. While he did not appeal against his pre-trial detention, for which he considered sufficient reasons to have been given, the applicant complained of the amount set for bail, arguing that it had been excessive and disproportionate in view of his financial circumstances and had made any prospect of provisional release unrealistic. He alleged that the amount had been fixed without account being taken of his personal circumstances, in disregard of the requirements of the court’s case-law.
24. By a reasoned decision (auto) of 29 September 2003, the Constitutional Court declared the appeal inadmissible. It began by observing that, according to its case-law, the fact that the applicant had been released did not render the amparo appeal devoid of purpose, given that “... in the event of a breach of the fundamental right asserted, the [c]ourt should allow the appeal and grant the applicant amparo relief”.
25. However, on the merits, the Constitutional Court ruled as follows:
“... Article 531 of the Code of Criminal Procedure stipulates that the amount set for bail should take into account, among other factors, the nature of the offence, any previous convictions and other circumstances that might prompt the accused to seek to evade justice. According to the case-law of the European Court of Human Rights, the object of bail is to secure the presence of the accused at the trial ... and the amount should act as a deterrent against any wish to abscond.
...
The rulings given in the instant case concerning the amount of bail and the refusal to reduce it provided ample reasons based on the primary objective of securing the accused’s presence at the trial, the seriousness of the offences in question, the national and international disaster caused by the oil spill, the fact that the accused is a nonnational and the fact that he has no ties in Spain.
These circumstances led the courts to consider that the risk of flight could only be reduced by setting such a high sum for bail ... They also took into consideration the accused’s personal and financial circumstances and his professional environment. ... In fixing bail at a level such as to dispel any wish to abscond, they further took account of other aspects of the accused’s personal situation, namely his Greek nationality, the fact that his permanent address is abroad and the fact that he has no ties whatsoever in Spain.
It follows that bail was fixed on the basis of criteria of proportionality ... The exceptional amount reflects the exceptional nature of the situation.”
26. Subsequently, in March 2005, the Spanish authorities authorised the applicant’s return to his country of origin, where he is now living, on condition that the Greek authorities ensured his compliance with the periodic supervision to which he had been subject in Spain. The applicant is therefore required to report every two weeks to a police station on the island of Icaria, where he was born, or in Athens, where his children live.
27. The criminal proceedings are currently pending before the Corcubión (Corunna) no. 1 investigating judge.
28. The relevant provision of the Spanish Constitution reads as follows:
“Everyone has the right to liberty and security. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law.”
29. The relevant provisions of the Criminal Code in force at the material time stipulated as follows:
“Notwithstanding the provisions of the preceding Articles, convicted persons who have reached the age of 70 or who reach that age while serving their sentence, and who satisfy the requirements laid down [by the law], with the exception of the requirement to have served three quarters or, where appropriate, two thirds of [the sentence], may be granted conditional release.
...”
“Any person who ... causes or produces, directly or indirectly, emissions, discharges ... into ... inland or maritime waters or groundwater ... likely to severely upset the balance of natural systems, shall be liable to a term of imprisonment of between six months and four years, a day-fine payable for between eight and twentyfour months and a prohibition of between one and three years on carrying out his or her occupation. Where there is a risk to persons’ health the term of imprisonment shall be in the upper half of the range.”
“The commission of any of the acts described in the previous Article shall entail a more severe sentence when accompanied by:
a. illegal operation of an industrial or other activity using facilities which have not obtained the necessary administrative authorisation or approval; or
b. failure to comply with the express instructions of the administrative authority aimed at remedying or putting an end to the activities referred to in the previous Article; or
c. falsification or concealment of information on the environmental implications of the activities in question; or
d. hampering of the administrative authorities’ inspection activities; or
e. a risk of irreversible or catastrophic damage; or
f. illegal pumping of water while restrictions are in place.”
“The penalty imposed for an offence referred to in this Chapter shall be in the lower half of the range where the offence was the result of gross negligence.”
30. The second paragraph of Article 325 of the Criminal Code, as amended in November 2003, provides:
“2. Persons who knowingly release, discharge or introduce ionising radiation or other substances into the air, soil or maritime waters ... in quantities such as to cause death or illness ... with irreversible effects, shall be liable to a term of imprisonment of between two and four years in addition to the penalty for causing personal injury.”
31. The relevant provision of the Code of Criminal Procedure reads as follows:
“In determining the nature and amount of the security, consideration should be given to the nature of the offence, the social circumstances of the accused and any previous convictions, together with any other circumstance which may increase or reduce the incentive to evade justice.”
32. The Environmental Liability Act (Law no. 26/2007 of 23 October 2007) regulates operators’ responsibility to prevent and remedy environmental damage in accordance with Article 45 of the Constitution and the precautionary and “polluter pays” principles.
33. An increasing tendency has been observed at European level to use the criminal law as a means of enforcing the environmental obligations imposed by European Union law.
34. In 1998 the Council of Europe opened for signature the Convention on the Protection of the Environment through Criminal Law (ETS No. 172). To date, however, only thirteen States have signed the Convention and Estonia is the only country to have ratified it. The text includes the following provisions:
Article 2 – Intentional offences
“1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law:
a. the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which:
(i) causes death or serious injury to any person, or
(ii) creates a significant risk of causing death or serious injury to any person;
b. the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes or is likely to cause their lasting deterioration or death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants;
c. the unlawful disposal, treatment, storage, transport, export or import of hazardous waste which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;
d. the unlawful operation of a plant in which a dangerous activity is carried out and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;
e. the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants,
when committed intentionally.
2. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the offences established in accordance with paragraph 1 of this Article.”
Article 3 – Negligent offences
“1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law, when committed with negligence, the offences enumerated in Article 2, paragraph 1 a to e.
2. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall only apply to offences which were committed with gross negligence.
3. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall not apply to:
– sub-paragraph 1.a.ii. of Article 2,
– sub-paragraph 1.b. of Article 2, in so far as the offence relates to protected monuments, to other protected objects or to property.”
Article 6 – Sanctions for environmental offences
“Each Party shall adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to make the offences established in accordance with Articles 2 and 3 punishable by criminal sanctions which take into account the serious nature of these offences. The sanctions available shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment.”
35. In its report on sea pollution of 30 March 2005, the Committee on the Environment, Agriculture and Local and Regional Affairs of the Parliamentary Assembly of the Council of Europe stated as follows:
“...
167. Four lines of thought must be pursued:
(a) The excessively absolute principle of freedom of navigation must be revised, as it is no longer appropriate in the context of present-day transport flows. Legally speaking, this would open the way for passive control and ultimately active control, at least in zones subject to risk. The issue of the responsibilities of control bodies could be considered at the same time.
(b) A State which has suffered pollution damage caused by a ship must be able to demand reparation from the State whose flag that ship flies where it is established that the damage results completely or partly from the flag State’s failure to exercise any effective monitoring of the vessel causing the damage.
(c) Article 230 of the Convention on the Law of the Sea must be amended to make clearer the possibility of penalties of imprisonment for the most serious pollution offences.
(d) An international maritime criminal court must be set up. In the same way that the notion of crimes against humanity finally yielded the creation of the International Criminal Court, it cannot be excluded in the future that states may eventually enshrine the notion of ‘crime against the environment’, drawing the consequences, in legal terms, of the idea put forward by some of establishing the sea as the common heritage of humanity.”
36. The issue of environmental crime has also been debated for many years within the European Union.
37. In its judgment, the Chamber referred to Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollution and on the introduction of penalties for infringements, which makes ship-source discharges in breach of Community law a criminal offence. The Directive further requires that both criminal and administrative penalties be imposed if the persons concerned are found to have committed or participated in the act with intent or as a result of negligent behaviour. The Directive, adopted in response to the sinking of the Erika and of the Prestige, specifically provides that the member States must implement it by 1 March 2007. It was therefore not intended to apply to events having occurred prior to that date.
38. In any event, Directive 2005/35/EC applies to discharges occurring, inter alia, in the exclusive economic zone or equivalent zone of a Member State, from any ship with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used at the material time only on government non-commercial service. The member States must take the necessary measures to ensure that infringements are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties.
39. In its judgment of 3 June 2008 in Case C-308/06 Intertanko and Others, the Court of Justice of the European Communities (“the ECJ”), having been called upon to examine a challenge to the validity of Directive 2005/35/EC, found that the concept of “serious negligence” provided for in many national legal systems could only refer to a patent breach of a duty of care (paragraph 76 of the judgment). The ECJ further held that “serious negligence” within the meaning of the Directive should be understood as entailing an unintentional act or omission by which the person responsible committed a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation (paragraph 77).
40. In the wake of the ECJ judgments of 13 September 2005 and 23 October 2007, which annulled respectively Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law and Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, which supplements Directive 2005/35/EC (referred to in the Chamber judgment), the Commission put forward a proposal for a directive on the protection of the environment through criminal law. The European Union legislative process culminated in the adoption of Directive 2008/99/EC. Recital 3 in the preamble to the Directive states that the availability of criminal penalties demonstrates social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. It also makes an explicit link between the need for criminal penalties and past experience in the field of environmental protection.
41. The Directive in question requires Member States to treat as criminal offences certain activities that breach European Union environmental legislation, including:
(i) unlawful shipment of waste;
(ii) trade in endangered species or in ozone-depleting substances;
(iii) conduct causing significant deterioration of a habitat within a protected site;
(iv) significant damage to the environment caused by the treatment, disposal, storage, transport, export or import of hazardous waste (including oil and gas, waste oils, sewage sludge, metals or electrical or electronic waste); and
(v) significant damage to the environment caused by the unlawful discharge of materials or ionising radiation.
42. Member States are required to subject these offences to effective, proportionate and dissuasive criminal penalties and to ensure that companies can be held liable for offences carried out by individuals on their behalf.
43. For its part, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage is aimed at establishing a framework of environmental liability based on the “polluter pays” principle, with a view to preventing and remedying environmental damage.
44. The relevant Articles of this Convention, which was ratified by Spain on 15 January 1997, read as follows:
“...
3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred.
...
6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.
7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organisation or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed.
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“1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.
2. For the purposes of this Article, ‘maritime casualty’ means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.”
“In exercising their rights and performing their duties under this Part, States shall not discriminate in form or in fact against vessels of any other State.”
“1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea.
2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea.
3. In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognised rights of the accused shall be observed.”
45. With regard to detention of seafarers and their release, UNCLOS provides:
“1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.”
“1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.
2. The application for release may be made only by or on behalf of the flag State of the vessel.
3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time.
4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.”
46. The provisions concerning detention and release of vessels and crews have been interpreted by the International Tribunal for the Law of the Sea (“the Tribunal”). In doing so, the Tribunal has laid down a number of criteria in order to determine what constitutes a reasonable bond within the meaning of Article 73 of UNCLOS taken in conjunction with Article 292 of that Convention. Hence, it is interesting to examine the approach taken by the Tribunal in cases relating to the detention of a foreign national by the coastal State and the fixing of the amount of bail. However, it should be borne in mind, firstly, that the Tribunal, unlike the Court, is tasked with striking a balance between the competing interests of two States rather than the interests of an individual and those of a State. Secondly, the issues brought before the Tribunal concern the detention and release of both crews and vessels. Thirdly, unlike the instant case, which is about an environmental disaster, the vast majority of cases before the Tribunal concern fisheries-related violations. In its judgment of 6 August 2007 in the case of Hoshinmaru (Japan v. the Russian Federation), the Tribunal summarised the principles it applies in deciding what constitutes a reasonable bond. The relevant extracts reads as follows:
“82. The Tribunal has expressed its views on the reasonableness of the bond in a number of its judgments. In the Camouco case it stated: ‘the Tribunal considers that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form’ (ITLOS Reports 2000, p. 10, at p. 31, para. 67). In the Monte Confurco case it added that: ‘This is by no means a complete list of factors. Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them’ (ITLOS Reports 2000, p. 86, at p. 109, para. 76). In the Volga case it stated that: ‘In assessing the reasonableness of the bond or other security, due account must be taken of the terms of the bond or security set by the detaining State, having regard to all the circumstances of the particular case’ (ITLOS Reports 2002, p. 10, at p. 32, para. 65). In the Juno Trader case the Tribunal further declared: ‘[t]he assessment of the relevant factors must be an objective one, taking into account all information provided to the Tribunal by the parties’ (ITLOS Reports 2004, p. 17, at p. 41, para. 85).
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89. The proceedings under Article 292 of [UNCLOS](Monte Confurco, ITLOS Reports 2000, p. 86, at pp. 108-109, para. 74). However, the Tribunal wishes to emphasise that in so doing it is by no means acting as a court of appeal (Monte Confurco, ITLOS Reports 2000, p. 86, at p. 108, para. 72).”
47. It is clear from the foregoing that, in assessing the reasonableness of the bond, the Tribunal takes three factors into consideration: (i) the gravity of the alleged offences; (ii) the penalties imposed or imposable under the laws of the detaining State in so far as they are reasonably proportionate to the gravity of the alleged offences; and (iii) the value of the detained vessel and of the cargo seized. In doing so, the Tribunal is mindful of its duty not to prejudice the merits of the case, which are decided domestically. However, the Tribunal considers that it is not prevented from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond.
48. BIMCO is an independent shipping association with a membership composed of shipowners, managers, brokers, agents and many other stakeholders with vested interests in the shipping industry. BIMCO is one of the third-party interveners in the present case. On 23 March 2009 BIMCO published a report on the treatment of seafarers which is interesting in several respects.
49. Firstly, the report identifies fourteen cases where sanctions were taken against the seafarers involved before any deliberate act or negligence had been admitted or proven in court. The period examined runs for eleven years from 1996 until 2007 and the cases dealt with – which include the Mangouras (or Prestige) case – involve twelve coastal States. The report concludes that: (i) the use of criminal sanctions against seafarers is a worldwide phenomenon, by no means restricted to particular countries or regions; (ii) although the rules are fair, their application is unjust, often flying in the face of the presumption of innocence; and (iii) while there are relatively few cases, the issues involved clearly illustrate that there are continuing problems with respect to the unfair treatment of seafarers.
50. Secondly, the report examines a range of instruments in connection with the treatment of seafarers, including international conventions, the Universal Declaration of Human Rights and a number of regional and national instruments. In the last category, particular attention is given to the European Union legal framework and to the law in France, the United States of America, Canada and the United Kingdom. In its conclusions, BIMCO observes that the test generally applied in those instruments is gross negligence, with punishment ranging from fines to imprisonment.
51. Finally, this report was examined by the Legal Committee of the International Maritime Organization (IMO) at its 95th session from 30 March to 3 April 2009. As regards the fair treatment of seafarers, the minutes of the Legal Committee record the following:
“The Committee agreed that the Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, adopted by the Legal Committee, and the Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, adopted by IMO’s Maritime Safety Committee, should be strictly applied by States so that a proper balance could be achieved between the need, on the one hand, for a thorough investigation of maritime accidents and, on the other hand, the protection of the rights of seafarers.
Many delegates noted that the issue of fair treatment of seafarers was the direct responsibility of port, coastal and flag States, the State of the nationality of the seafarers, shipowners, and seafarers. States were obliged to treat seafarers fairly, pursuant to the Universal Declaration of Human Rights and regional human rights instruments, as well as under national law. There was also a consensus that States should comply with the Guidelines on Fair Treatment of Seafarers adopted by the Legal Committee.”
52. The Guidelines on Fair Treatment of Seafarers are attached to the observations of the third-party interveners in the present case.
53. This Convention which, together with the Protocol thereto, was ratified by Spain on 6 July 1984, has been amended on several occasions, most recently in July 2007 (entry into force December 2008). Annex I to the Convention relates to the prevention of pollution by oil following collision or stranding. The Convention, which is a combination of two treaties adopted in 1973 and 1978, constitutes the main instrument covering prevention of pollution of the marine environment by ships from operational or accidental causes.
54. This Convention governs the liability of shipowners for oil pollution damage. It sets up a system of strict liability for shipowners and a system of compulsory liability insurance. The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship.
“1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.
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4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:
(a) the servants or agents of the owner or the members of the crew;
(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;
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unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
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“...
2. The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.
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55. The Protection and Indemnity Clubs were set up by shipowners themselves to provide cover against various risks including those arising out of pollution caused by their vessels. They are governed by general conditions (the London P&I Rules), the relevant parts of which read as follows:
9.28 – Omnibus Rule
“9.28.1 Liabilities, losses, costs and expenses incidental to the business of owning, operating or managing Ships which and to such extent as the Committee in its sole discretion shall consider fall within the scope of this Class,
9.28.1.1
“20.1 The Association may, but shall in no case be obliged to, provide on behalf of an Assured security to prevent arrest or obtain release from arrest or otherwise in respect of an entered Ship and if it does such Assured shall upon first demand made at any time by the Association in writing arrange such counter-security (which expression may in the Association’s sole discretion include a deposit of cash with the Association) as the Association may require and (with or without such counter-security having been required or arranged) shall indemnify the Association against all liabilities and expenses incurred by the Association in consequence of the security originally provided by the Association. In the event that the Assured does not arrange such counter-security as may have been required or does not indemnify the Association as aforesaid, the Association, without prejudice to its other rights, shall be entitled to retain any amounts which would otherwise be recoverable by such Assured, notwithstanding that the same may have no connection with the liability in respect of which the original security was provided and may relate to other periods of cover before or after that liability was incurred by the Assured or to another entered Ship. The provision of security by the Association shall be without prejudice to the Association’s liability to the Assured for the claim in question.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3