ITEMID: 001-95318
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PASKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1962 and lives in Vladivostok.
7. At the material time the applicant was a Navy officer and worked as a military journalist on the Russian Pacific Fleet's newspaper Boyevaya Vakhta (“Battle Watch”). The applicant's articles mainly focused on problems of environmental pollution and other issues related to the activity of the Russian Pacific Fleet.
8. According to the applicant, he also worked, on a freelance basis, for a Japanese TV station, NHK, and a Japanese newspaper, Asahi Simbun, and supplied their representatives, in particular accredited correspondents Mr T.Dz. and Mr T.O. with openly available information and video footage. The Government submitted in this connection, with reference to witness statements from the editor and deputy editor of Boyevaya Vakhta, that the applicant had not been entrusted with any task of cooperating with Mr T.O., apart from assisting the latter in visiting Russian military units and apprising him of the professional activities of Boyevaya Vakhta. According to the Government, any further contacts with Mr T.O. were maintained by the applicant of his own volition, and he did not report to his superiors on such contacts. The applicant insisted that his superiors had been aware of and accepted his contacts with Japanese journalists.
9. On 13 November 1997 customs officers at Vladivostok Airport searched the applicant, who was about to leave on an official trip to Japan, and seized a number of his papers, on the ground that they allegedly contained classified information. Thereafter the applicant was allowed to continue his trip.
10. On 20 November 1997 the Federal Security Service (Федеральная служба безопасности – “the FSB”) brought criminal proceedings against the applicant in connection with the above episode, and apprehended him on his return from Japan. The applicant was then escorted to pre-trial detention centre IZ 20/1 in Vladivostok, where he was detained until his first conviction on 20 July 1999.
11. During the night of 20 to 21 November 1997 the FSB searched the applicant's flat and seized his personal computer and a number of documents. The applicant's computer was returned to him some time later.
12. On 28 November 1997 the applicant was formally charged with treason through espionage. These charges were based on a preliminary expert opinion given by the Headquarters' 8th Department of the Pacific Fleet (Восьмое управление штаба Тихоокеанского флота), which concluded that some of the documents seized on 13 and 20 November 1997 contained State secrets.
13. On 29 September 1998 a bill of indictment was served on the applicant. It stated that the applicant had committed treason, through espionage, by having collected, kept and transmitted ten items of information classified as secret to two Japanese nationals in the period between 1996 and 20 November 1997. The information in question included a draft article by the applicant on the decommissioning of Russian nuclear submarines, a copy of a report on the financial situation of the Pacific Fleet, a copy of several pages of a manual on searching for and rescuing space craft by the Navy, a report on decommissioning and keeping afloat of Russian nuclear submarines, a questionnaire on re-processing of liquid rocket fuel, a list of accidents on Russian nuclear submarines, a copy of several pages of a report on decommissioning of weapons and armaments, a map of the territory of military unit no. 40752, and handwritten notes made by the applicant at a meeting held at the headquarters of the Pacific Fleet on 11 September 1997. The indictment further stated that the applicant had orally divulged information concerning the time and place of the departure of a trainload of spent nuclear fuel.
14. The indictment was based on reports of 22 December 1997 and 14 March 1998 prepared by four expert groups appointed by the General Headquarters' 8th Department of the Ministry of Defence (Восьмое управление Генштаба Министерства обороны).
15. By a judgment of 20 July 1999 the Pacific Fleet Military Court reclassified the offence and convicted the applicant of abuse of power, having found it unproven that the applicant had actually transmitted State secrets to foreign nationals. The applicant was sentenced to three years' imprisonment. By virtue of an Amnesty Act of 18 June 1999 the applicant was discharged from serving this sentence and released in the courtroom.
16. The applicant, his lawyers and the prosecuting party appealed against the first-instance judgment.
17. On 21 November 2000 the Military Section of the Supreme Court of Russia (Военная коллегия Верховного Суда РФ – “the Supreme Court”) quashed the judgment of 20 July 1999 on the grounds of the trial court'Pacific Fleet Military Court for a fresh examination.
18. On an unspecified date, following the Pacific Military Court's request, the General Headquarters' 8th Department of the Ministry of Defence appointed seven experts and the Ministry of Nuclear Energy appointed an expert. The experts were asked whether the items of information listed in the indictment contained State secrets.
19. On 14 September 2001 the experts submitted their report, stating that three out of the ten items in question were of “restricted distribution”, whilst the other seven contained State secrets. According to the applicant, in defining whether the disclosed information contained State secrets, the experts had applied the Ministry of Defence's unpublished Decree no. 055 of 10 August 1996, Presidential Decree no. 1203:95 of 30 November 1995 and section 5 of the State Secrets Act, enacted on 21 July 1993 and amended on 6 October 1997. In the applicant's submission, he had access to Decree no. 055, read it and signed a document to the effect that he had read it in the autumn of 1996.
20. On 25 December 2001 the Pacific Fleet Military Court convicted the applicant of treason through espionage under Article 275 of the Russian Criminal Code.
21. As regards the actus reus of the offence, the court found that in 1996-1997 the applicant had established friendly relations with a Japanese journalist, Mr T.O., and provided him with information, at the latter's requests, in exchange for regular payments. In August-September 1997, in his telephone conversations with the applicant, Mr T.O. had repeatedly expressed his interest in the military exercises that were being conducted by the Pacific Fleet at that time, especially their particular features and any differences from previous exercises. The judgment further stated:
“On 10 September 1997, on an official invitation, [the applicant], as a representative of the Boyevaya Vakhta newspaper, attended a meeting of the Military Council of the Pacific Fleet, where he learned that an appraisal of the results of the military exercises of the Pacific Fleet was scheduled for 11 September 1997.
On 11 September 1997 [the applicant], with the intention of obtaining classified information on the said exercises and subsequently transferring it to [Mr T.O.], arrived at the headquarters of the Pacific Fleet. Although he was not included in the list of persons authorised to participate in the appraisal of the tactical training exercises, the applicant attended the meeting and collected information disclosing the actual names of highly critical and secured military formations and units, including military-intelligence units, that had taken part in the exercises and information disclosing the means and methods of protection of classified data by radio electronic warfare units that had participated in the exercises. Under section 5 paragraphs 1 (6) and 4 (5) of the State Secrets Act of the Russian Federation (no. 5485-1) of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997, paragraphs 13 and 77 of the List of Information classified as State Secrets approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995, [the impugned information] was classified as State secrets.
For the same purpose, namely for communicating it to [Mr T.O.], the applicant then unlawfully kept this information ... On 20 November 1997 the handwritten notes made by [the applicant] during [the meeting of 11 September 1997] were found and seized at his place of residence.
...
According to a report by a forensic expert, the handwritten text in those notes was made by [the applicant], which the latter has not denied in court.”
22. The court based its findings on statements by a number of witnesses, five recordings of the applicant's telephone conversations with Mr T.O. made by the FSB in June-September 1997, and the expert report of 14 September 2001, insofar as it stated that the applicant's handwritten notes contained information classified as secret. In particular, the court noted with regard to the expert report of 14 September 2001:
“... The experts concluded that [the applicant's] notes contained, in summary fashion, information on the composition of the groups of the naval forces which had taken part in the exercises, [such information] disclosing the actual names of highly critical and secured military formations and units, including military intelligence units, which constituted a State secret under section 5, paragraph 1 (6) of the State Secrets Act of the Russian Federation (no. 5485-1) of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997 and paragraph 13 of the List of Information constituting State Secrets, approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995.
Also, the experts concluded that [the applicant's handwritten notes] in summary fashion ... disclosed information on the activities of radio electronic warfare units, and notably on means and methods of protection of classified data, which constituted a State secret under section 5, paragraph 4 (5) of the State Secrets Act of the Russian Federation, no. 5485-1 of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997 and paragraph 77 of the List of Information classified as State Secrets, approved by Decree no. 1203 of the President of the Russian Federation of 30 November 1995.
...
... The court finds that [the experts'] conclusions that [the applicant's] notes on the exercises contain information disclosing the actual names of highly critical and secured military formations and units of the Pacific Fleet, including military intelligence units and [information on] specific activities of radio electronic warfare units ... which constitutes State secrets, are consistent, well-reasoned and based on a correct application of the legislation ...”
23. The applicant confirmed that he had attended the meeting of 11 September 1997 and made summary notes of speeches and reports of its participants, but pleaded not guilty and argued that he had lawfully attended the said meeting, since he had the right to receive and impart information as a journalist. The applicant insisted that he had had no intention of transferring this information to Mr T.O. and had kept it in order to enrich his own knowledge on the latest developments in the Navy and to inform his subordinates thereof, and to report on the results of the military exercises in the Boyevaya Vakhta newspaper. The applicant stated that all his activities had fully complied with Russian legislation.
24. As regards the applicant's argument that he had the right to freedom of expression, and was therefore entitled to attend the meeting of 11 September 1997, the court noted that the right to information was not absolute and could be limited by law for the protection of national security. Under national law, military personnel's right to information was limited in the interests of military service and, in particular, such personnel had an obligation not to disclose state or military secrets. As a serving officer, the applicant was bound by the legal provisions regulating the way in which servicemen accessed, collected, kept, imparted and published information classified as secret, and the way they communicated with foreign nationals.
25. The court also rejected the applicant's argument that he had made the impugned notes with a view to their publication in Boyevaya Vakhta. In this respect the court noted that the applicant had been fully aware of the relevant regulations which prohibited publication of information disclosing the actual names of military formations and units, and there had therefore been no practical use for such information in the applicant's publications.
26. The court further examined the conclusions of the expert report of 14 September 2001 in respect of the other items of information imputed to the applicant, compared them with the other materials of the case and rejected them as unreliable. In particular, the court stated that some of the pieces of information imputed to the applicant, including the list of accidents on Russian nuclear submarines and the map of the territory of military unit no. 40752, could be found in public sources, such as a military reference book on submarines, or a Greenpeace report. In this respect the court noted that receiving, keeping and disseminating publicly accessible information was not punishable under the Russian legislation in force and that there was no practical need to classify information which could be found in public sources.
27. The court thus acquitted the applicant of all the other charges listed in the indictment, some of them having been waived by the prosecuting party.
28. In view of the fact that the applicant had a minor child, no criminal record and positive professional references and decorations, and given that his offence had caused no damage, since he had not transferred the impugned information, the court referred to the “special-circumstances” clause of Article 64 of the Russian Code of Criminal Procedure and sentenced the applicant to a term below the statutory minimum, namely, four years' imprisonment in a strict-security correctional colony, and deprivation of a military rank.
29. In their appeal submissions the defence complained, inter alia, that the experts who had drafted the report of 14 September 2001 had relied on unpublished Decree no. 055 of the Ministry of Defence in asserting the classified nature of the impugned information. The defence argued that the use of Decree no. 055 by the experts had resulted in the incorrect application of the State Secrets Act by the first-instance court. They further argued that the State Secrets Act had been applied retrospectively, since there had been no list of information constituting State secrets at the time of the commission of the offence in question. The defence also contended that, in any event, the information contained in the applicant's notes had been accessible from public sources.
30. On 25 June 2002 the Supreme Court of Russia upheld the applicant's conviction on appeal, having excluded a reference to the unlawfulness of his presence at the meeting of 11 September 1997 and to the general unlawfulness of his off-duty contacts with foreign nationals.
31. The Supreme Court noted that the question whether the applicant's handwritten notes had contained State secrets had been thoroughly and objectively examined in the first-instance judgment. It confirmed that the trial court had based its judgment on the expert report of 14 September 2001, which had stated that “information disclosing the actual names of highly critical and secured military formations and units and information on the presence among the participants in the military exercises of the military intelligence units and information on the means and methods of protection of classified data [constituted] State secrets under section 5, paragraphs 1 (6) and 4 (5) of the State Secrets Act of the Russian Federation (no. 54851) of 21 July 1993, as amended by Federal Law no. 131-FZ of 6 October 1997, paragraphs 13 and 77 of the List of Information classified as State Secrets, approved by Decree of the President of the Russian Federation no. 1203 of 30 November 1995, and paragraphs 129 and 240-1 of ... Decree of the Ministry of Defence no. 055”. The appellate court further noted that, when assessing the expert report of 14 September 2001, the trial court had rejected a number of its conclusions in which the experts had groundlessly stated that some of the impugned items of information had contained State secrets. The Supreme Court thus concluded that the first-instance court had critically assessed the expert report of 14 September 2001 and had only relied on those conclusions which had been objectively confirmed during the trial.
32. The Supreme Court also upheld the first-instance finding that the applicant's intent to transfer the impugned information to Mr T.O. had been proved by the recordings of his telephone conversations with the latter. The court further rejected the applicant's argument that the information in his handwritten notes could have been found in public sources. In that connection it stated – with reference to the trial court's finding – that “no data concerning the actual names of highly critical and secured military units, ships and formations, and, in particular, military intelligence units, the means and methods of radio electronic warfare, as contained in [the applicant's] handwritten notes, [was] openly published”.
33. The court also rejected the applicant's argument that Decree no. 055 had been unlawfully applied in his case, holding that this decree had been operative on the date that the applicant had committed his offence and was still in force.
34. Finally, as regards the applicant's argument that the law had been applied retrospectively in his case, the Supreme Court noted:
“According to the decision of the Constitutional Court of Russia of 20 December 1995, ... the requirements of Article 29 § 4 of the Constitution of the Russian Federation are implemented in the State Secrets Act of the Russian Federation of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets. Later, on 30 November 1995, the List of Information classified as State secrets was enacted by Decree no. 1203 of the President of the Russian Federation.
Since collecting and keeping secret information for its transfer to a foreign citizen, committed by [the applicant], [was] a continuing criminal offence which was brought to an end on 20 November 1997, the [first-instance] court rightly applied the aforementioned legal instrument as well as the State Secrets Act, as amended on 6 October 1997, in the examination of his case.”
35. The applicant unsuccessfully applied for supervisory review of his conviction.
36. On 23 January 2003 the applicant was released on parole.
37. Article 275 (High Treason) of the Russian Criminal Code, in force as of 1 January 1997, provides that high treason, that is, espionage, disclosure of State secrets, or assistance otherwise provided to a foreign state, a foreign organisation, or their representatives, by way of hostile activities undermining the external security of the Russian Federation, committed by a Russian citizen, shall be punishable by twelve to twenty years' imprisonment and confiscation of property.
38. Article 29 § 4 of the Russian Constitution provides that everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means and that a list of information constituting State secrets is to be defined by a federal statute.
39. Federal Law on State Secrets no. 5485-1 (“the State Secrets Act”) was enacted on 21 July 1993 and entered into force on 21 September 1993. Section 5 provided:
“The following information may be classified as State secrets:
(1) information in the military field:
...
[information] about the location, actual names, organisational structure, armament, numerical strength of troops ...
...
(4) information in the field of intelligence, counter-intelligence and operational and search activities:
...
[information] about the means and methods of protection of classified data ...”
40. Section 9 set out the procedure for classifying information as State secrets. Authority to classify information was delegated to heads of State agencies. The law itself did not contain the list of such officials which was to be approved by the Russian President. The latter was also to approve the List of Information classified as State secrets, which was to be officially published. State agencies whose heads were competent to decide to classify information were to draw up extended lists of information that was to be classified as State secrets. The State Secrets Act did not specify whether such “extended lists” could be made public.
41. On 16 March, 26 and 27 October 1995 the State Duma, noting that the absence of the list of classified information “deprived the law-enforcement agencies of a legal basis for the performance of their duty to protect the security of the State, community and individuals”, repeatedly petitioned the Government to prepare for the President's approval a draft decree containing the list of classified information.
42. On 30 November 1995 the President approved Decree no. 1203 on the List of Information classified as State Secrets. Paragraphs 13 and 77 of the list provided for the classification of “information disclosing the location, actual names, organisational structure, armament and numerical strength of troops, which is not subject to open declaration in accordance with the international obligations of the Russian Federation” and “information disclosing measures which are planned and/or being carried out to protect information from unauthorised access, foreign technical intelligences services and leaks through technical channels”. They also designated the Ministry of the Interior, the Ministry of Defence and several other State agencies as bodies authorised to classify such information.
43. On 6 October 1997 Federal Law no. 131-FZ amending the 1993 State Secrets Act was enacted. The amendment was published and became operative on 9 October 1997. Section 5 of the State Secrets Act was amended to read:
“State secrets shall include: ...
(1) information in the military field:
...
[information] about the location, actual names, organisational structure, armament, numerical strength of troops ...
...
(4) information in the field of intelligence, counter-intelligence and operational and search activities:
...
[information] about the means and methods of protection of classified data ...”
44. On 20 December 1995 the Russian Constitutional Court examined the compatibility of the Criminal Code of the RSFSR, then in force, with the Russian Constitution, in so far as the former established criminal liability for State treason, and stated:
“... It follows that the State may classify as State secrets information in the field of defence and economic and other activities, disclosure of which is capable of undermining the national defence and security of the State. In this connection Article 29 § 4 of the Russian Constitution provides that the list of information constituting State secrets is to be enacted in the form of a federal statute. The State may also determine the means and methods for the protection of State secrets, including by way of establishing criminal liability for its disclosure and communication to a foreign State.
However, by virtue of the above Constitutional provision, criminal liability for disclosure of State secrets to a foreign State is justified only on condition that the list of information constituting State secrets is established in an officially published and publicly accessible federal statute. Pursuant to Article 15 § 3 of the Constitution, no law-enforcement decision, including conviction by a court, may be grounded on an unpublished legal instrument.
The requirement of Article 29 § 4 of the Russian Constitution is implemented in the State Secrets Act of 21 July 1993, which defines the notion of State secrets and lists the information classifiable as State secrets.
Accordingly, establishing criminal liability for disclosure of State or military secrets to a foreign State is not incompatible with Articles 15 § 3, 29 § 4 and 55 § 3 of the Russian Constitution.”
45. On 29 December 1999 the St Petersburg City Court acquitted Mr Nikitin, a former naval officer, of charges under Articles 275 (High treason) and 283 § 1 (Divulging of information constituting State secrets) of the Russian Criminal Code (case no. 78-000-29). Mr Nikitin was accused, in particular, of having collected in August 1995, and having transferred in September 1995, information constituting State secrets. The court held as follows:
“... By virtue of the constitutional provisions, a list of information constituting State secrets was to be defined by a federal statute ...
There was no such statute at the time that Mr Nikitin committed the alleged offences; Decree no. 1203 of the President of the Russian Federation of 30 November 1995 was the only legal instrument which began regulating legal relations in the field of the protection of State secrets.
...
The State Secrets Act of the Russian Federation of 21 July 1993, which was subsequently subjected to considerable amendments, constitutes the federal statute mentioned in Article 29 § 4 of the Russian Constitution.
...
However, the Russian Constitution prescribes the definition of the list of information constituting State secrets by a federal statute. This requirement of the Constitution was only complied with in full when the State Secrets Act was amended in November 1997 to include in section 5 the list of information constituting State secrets instead of the list of information which could be classified as State secrets, which was mentioned in the [original version] of the Law.
By virtue of section 9 (4) of the Act, the list of information constituting State secrets must be approved by the President. ... By virtue of section 9 (4) of the Act in its version of 21 July 1993 and as amended on 6 October 1997 [the list] will be published and may be revised as and when needed.
...
An analysis of section 5 of the Act (irrespective of its different versions) indicates that [the Act] itself does not establish any degree of secrecy; in other words it does not classify any information, since it is in accordance with a special procedure provided for in section 9 of the Act that information can be classified as secret ...
This also means that, in its original version, section 5 of the Act cannot serve as the sole basis for charging [a person] with espionage or disclosure of State secrets. It must be supplemented with other legal instruments.
It is [in particular] Decree no. 1203 of the Russian President of 1995 which [was] used in the present case as [a legal instrument] in addition to section 5 [of the State Secrets Act] ...
The materials of the case reveal that Mr Nikitin ended his activity ... in September 1995.
The Presidential Decree of 30 November 1995 had not yet entered into force ...
Accordingly, section 5 of the Act (in the version that existed at the time when the defendant committed the acts imputed to him) cannot be used as a basis for bringing formal charges without supplementary legal instruments which would have formed a proper legal basis for an accusation ... such legal instruments can be applied on condition that they were officially published and entered into force prior to the commission of the acts imputed to Mr Nikitin.
... In view of the above, the court finds that any citizen of the Russian Federation... does not (did not) have any real possibility of determining whether information constitutes a State secret unless such information is included in the list of information constituting a State secret defined by a federal statute or approved by a decree of the Russian President ...
...
The new version of the State Secrets Act ... of 6 October 1997 brought the Act into compliance with the requirements of the Constitution, and consequently, only then did it become possible to apply section 5 of the State Secrets Act independently, that is, without referring to the List of Information classified as State Secrets enacted by decree of the Russian President on 30 November 1995.
Accordingly, in the period from 12 December 1993 until 30 November 1995 there was no statutory definition of information constituting State secrets, and therefore classifying any information as secret during the period under consideration ... was arbitrary and not based on law.”
46. On 17 April 2000 the Supreme Court of Russia upheld Mr Nikitin's acquittal in the following terms:
“Having acquitted Mr Nikitin for the lack of constitutive elements of a criminal offence in his acts, the [first-instance] court proceeded from the premise that between 12 December 1993 and 30 November 1995 there had been no statutory definition of information constituting State secrets, with the result that the qualification of Mr Nikitin's acts by the investigating bodies had not been based on law.
...
By virtue of Article 29 § 4 of the Russian Constitution, which was enacted on 12 December 1993 and was in force during the period when Mr Nikitin committed the alleged offences, the list of information constituting State secrets was to be defined in a federal statute. Such a list was first defined in the federal law introducing changes and amendments to the State Secrets Act of the Russian Federation of 6 October 1997.
Taking into account that during the period when Mr Nikitin committed the alleged acts, there was no list of information constituting State secrets that met the requirements of the Constitution, the information that he had collected... and disclosed ... cannot be said to have contained State secrets ... As the actus reus of the offences under Articles 275 and 283 of the Criminal Code refers only to acts involving State secrets, the same acts involving other information cannot be held to be high treason and disclosure of State secrets ...
...
... The [State Secrets] Act [in its 1993 version] could not have been applied to Mr Nikitin as it did not contain the list of information constituting State secrets, since section 5 of that Law referred only to information that could be classified as State secrets. However, Article 29 § 4 of the Constitution required that the said list be established in a federal statute. As section 5 of the State Secrets Act of 21 July 1993 and Article 29 § 4 of the Constitution refer to different subjects, the court cannot agree with the argument of [the prosecuting party] to the effect that the difference between these provisions is merely semantic ...”
47. On 25 July 2000 the Supreme Court of Russia quashed on appeal, and remitted for a fresh examination to a trial court, the sentence of Mr Moiseyev, a former employee of the Russian Ministry of Foreign Affairs, who had been charged with offences under Article 275 of the Russian Criminal Code. It found as follows:
“In finding [the applicant] guilty of the offence under Article 275 of the Criminal Code, the [first-instance] court noted that ... between early 1994 and 3 July 1998 [the applicant] had ... communicated information and documents containing State secrets to the South Korean intelligence service. The [first-instance] court only gave a general list of information and documents ..., without specifying which information and documents [the applicant] had communicated, and when. As the offences imputed to [the applicant] were continuous and spanned the period from 1992-1993 to July 1998, during which time the Russian laws evolved, the determination of these issues is of crucial importance for the case.
Pursuant to Article 29 § 4 of the Constitution ... the list of information constituting State secrets was to be defined in a federal statute. Such a list was first established in the federal law of 6 October 1997 introducing changes and amendments to the State Secrets Act of the Russian Federation. Hence, until that date there was no list of information constituting State secrets that met the requirements of the Constitution. As there is no indication in the judgment about the time when [the applicant] transmitted the information and documents, it is impossible to reach the correct conclusion as to which of the offences imputed to the applicant were committed during the period when the federal law containing the list of State secrets and compatible with the requirements of the Constitution was in force.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-72689
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BACEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Janko Bačev, is a Macedonian national who was born in 1966 and lives in Skopje, the former Yugoslav Republic of Macedonia.
In 1996, after two unsuccessful requests for rectification of the defects in his apartment and compensation for deficiency in its size (26 June and 22 September 1995), the applicant instituted civil proceedings against the construction company (“the company”) to restore or to pay for the damage caused. On 1 June 1999 the court rejected his claim, finding that it had been withdrawn due to his failure to attend two hearings. On 18 September 1999 this decision became final.
On 7 April 2000 the applicant instituted civil proceedings for damages against the company claiming that his apartment was of inadequate quality and smaller than was specified in the contract.
On 29 November 2000 the Basic Court Skopje I Skopje (Основен суд) dismissed the applicant’s claim. It found that on 23 September 1991 the applicant had entered into agreement with the company for construction of the apartment. On 6 June 1995 the company had transferred the apartment into the applicant’s possession. Minutes had been drawn up in which the defects had been noted and accepted by the applicant and the company.
The court referred to the Law on obligations (Зaкон за облигациони односи) according to which in case of defects, the buyer/acquirer’s rights expired one year after notifying the vendor i.e. the one responsible for the construction. It held that the applicant’s claim for damages was time barred as it was lodged before the court more than one year after he had first notified the company about the defects (June 1995). The court dismissed the applicant’s argument that the absolute time bar of five years for damage claims had not expired. It found it irrelevant that the claim was submitted within the absolute time bar as he failed to comply with the relative time bar of three years which ran from the moment when he became aware of the damage and that the company was responsible. The court also dismissed the applicant’s claim that the civil proceedings instituted in 1996 suspended the time bar as his claim had been rejected as being withdrawn.
The decision was served on the applicant on 6 March 2001.
On 21 March 2001 the applicant appealed this decision indicating the reasons in general terms. He stated:
“Being dissatisfied with the Basic Court decision ... I lodge this appeal in time on account of: substantive infringement of the civil procedure; erroneous and incomplete establishment of the facts and wrong application of the substantive law. I will submit the explanation of the grounds with a subsequent submission.”
In a submission lodged on 27 March 2001, the applicant inter alia contested the court’s findings that the agreement concluded with the company was of a commercial nature (contract for construction) and that consequently, the court had wrongly applied the national law concerning the time bar. He also referred to the minutes drawn on 3 July 1995 in which the company acknowledged the defects and committed itself to remedying them by 10 July 1995, as allegedly newly discovered evidence that could influence the time bar. He argued that the lower court had wrongly interpreted the law in respect of the relevance to the time bar of the civil proceedings terminated in 1996.
On 28 June 2001 the Appellate Court of Skopje dismissed the applicant’s appeal. It inter alia found that:
“the plaintiff [the applicant] filed his appeal in time, but he submitted the reasons and the rationale of his appeal after expiration of the time limit of 15 days...as the appeal does not provide any reasoning, the court considered the judgment on the basis contained in the appeal and within its ex officio capacity to determine substantial infringements of the procedure and the correct application of the law...”
It went further on to conclude that
“...the first instance court had properly established that the claim was time barred as the term of five years had expired...”
It also held that the trial court had correctly applied the substantive law as the facts had been properly and fully established. It also, inter alia, repeated the parts of the lower court’s decision concerning the agreement between the applicant and the company; the time when the apartment was transferred into the applicant’s possession and the dates when the applicant had notified the company about the shortcomings and asked for rectification or compensation.
On 2 November 2001 the Republic Public Prosecutor’s Office informed the applicant that there were no statutory grounds for submitting a request for the protection of legality (барање за заштита на законитоста) before the Supreme Court.
According to section 106 of the Law on Civil Proceedings (Закон за парничната постапка), if a party concerned fails to attend a hearing or to take another action in the proceedings and consequently loses the right to do so, the court shall uphold that party’s request to perform that action subsequently (restoration to previous state of affairs) if it finds a reasonable explanation for the failure.
When the restoration in the previous state of affairs is granted, the proceedings are restored to the state before the failure had occurred and all other decisions in that respect are considered void.
Section 334 provides that, inter alia, parties can appeal the first instance decision within 15 days from the date of service of the trial court decision, if not otherwise regulated by law.
According to section 337, the trial court shall by decision summon the appellant to correct or supplement the appeal if on the basis of the information provided, it cannot be determined which judgment is complained of or if the appeal was not signed. It the appellant does not comply with the court’s instruction within the time-limit given, the latter shall reject the appeal as incomplete. In case of other deficiencies, the trial court shall transmit the appeal to the Appellate Court without summoning the appellant to correct or to complete it.
Section 340 § 2 prescribes inter alia, the following substantial infringements of procedure: if the court was improperly composed or the judgment was adopted by a judge or a lay-judge who had not participated at the trial hearing; if the judgment was adopted by a judge or a lay-judge who had to be removed by virtue of law, i.e. who was removed by a court decision; if the court decided a case which fell outside its competence ratione materiae; if the court wrongly ruled as to its competence ratione loci; if contrary to the law, the court decided in absentia, on the basis of a confession or a denial; if the party concerned was deprived of the opportunity to participate in the proceedings by unlawful conduct, in particular due to a lack of service; if contrary to the law, the court rejected the party’s request for an interpreter; if the court decided without a public hearing which was compulsory; if a person, lacking capacity to stand as a litigant, participated in the proceedings, or the legal entity acting as litigant was not represented by an authorised person, or if a legally incapable person was not represented by the statutory representative, or if the legal or statutory representative did not have the adequate authorisation; if the court decided on a case in which another proceedings were pending, or if it was res judicata, or if a court settlement had been concluded; if the public was excluded contrary to the law; if the impugned decision contained deficiencies which made its review impossible, in particular if it was illegible, contradictory, lacked reasoning or did not provide reasons for the relevant findings of fact or if they were unclear or contradictory.
Section 342 prescribes that the substantive law is wrongly applied if the court did not apply the relevant statutory provision or if it failed to apply it properly.
Section 351 § 2 provides that the Appellate Court assesses the trial court decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial infringement of the civil procedure and the correct application of the law.


ITEMID: 001-107653
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BEIERE v. LATVIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1934 and lives in the parish of Saldus in Latvia.
6. On 6 November 2001 the executive director of the municipality where the applicant resided, V.D., lodged with the Saldus District Court an application for a private prosecution against the applicant and her husband for offences which at the relevant time were proscribed by sections 156 and 157 of the Criminal Law (defamation and bringing into disrepute). The complaint appears to have been based on three letters that the applicant had sent to the council of the local municipality in which it had been alleged that V.D. had given false testimony in courts to the applicant’s detriment, that V.D. was a liar who did not deserve to be working in an official position, and that V.D. had hidden the will left by the applicant’s sister-in-law.
7. On 9 November 2001, having considered V.D’s complaint, a judge of the Saldus District Court decided to initiate criminal proceedings against the applicant for defamation of a representative of public authority (section 271 of the Criminal Law as in force at the relevant time). Offences under section 271 of the Criminal Law were subject to public prosecution.
8. On 8 January 2002 an out-patient psychiatric assessment was carried out on the applicant in a psychiatric hospital located in Jelgava. The assessment was carried out by a commission composed of several medical professionals. The commission was unable to arrive at a definite conclusion concerning the applicant’s psychiatric condition.
9. According to the Government, on 4 April 2002 the applicant was officially charged with defamation of V.D. No documents have been provided in that connection by either of the parties. On the same day an authorisation (orderis) was issued to sworn attorney M.D. According to the authorisation, M.D. was authorised to “participate in the pre-trial investigation” to assist the applicant. The applicant claims that she never appointed M.D. to represent her interests. Nothing in the copy of the authorisation submitted by the Government indicates that the applicant was made aware of its existence or of M.D.’s role in the proceedings.
10. On 22 April 2002 a prosecutor of the Saldus Distric Public Prosecutor’s Office requested the Saldus District Court to order a residential psychiatric-psychological assessment of the applicant to be carried out in a psychiatric hospital in Rīga. The prosecutor indicated that there were grounds to believe that the applicant had not been capable of understanding the consequences of writing the letters in issue. The prosecutor also stated that during the out-patient psychiatric assessment of 8 January 2002 it had been impossible to establish the applicant’s psychiatric condition with certainty.
11. On 2 May 2002 a single judge of the Saldus District Court issued a decision authorising the applicant’s placement in a psychiatric hospital. The decision noted that the judge had heard statements from the prosecutor and from M.D. The decision also stated that the applicant had refused to report for a residential examination voluntarily, but no details were given. The Government have not suggested that the applicant was ever requested to report voluntarily for a residential assessment. Lastly, the decision noted that it could be appealed against to the Kurzeme Regional Court but that the lodging of such an appeal did not suspend the execution of the decision. The decision also ordered the Saldus District police to transport the applicant to a psychiatric hospital in Rīga and guard her during the course of the examination.
12. According to the applicant, on 9 May 2002 some ten to twelve police officers arrived at her home and announced to her that she had five minutes to get ready to leave. She was taken to a psychiatric hospital in Rīga and was told only after arriving there of the existence of the Saldus District Court judge’s decision of 2 May 2002. She had not received a copy of that decision. The Government did not dispute this account.
13. The applicant submits that the conditions in the hospital were unbearable: she was placed together with people who were mentally ill, drug addicts and people with sexually transmitted diseases, and the toilets in the hospital were flooded and impossible to use. She also submits that prior to 22 May 2002 – when, according to her, she was first seen by a psychiatrist – she was questioned by another doctor in a “political” manner. She also submits that her brain was scanned and that she was injected with unknown substances against her will.
14. At some later date (probably on 12 May 2002) the applicant submitted an appeal against the decision of the Saldus District Court. The applicant pointed out that she had not been informed that a hearing concerning her placement in a psychiatric hospital would take place, and had not participated in that hearing; she accordingly requested that the decision of the first-instance court be quashed.
15. On 24 May 2002 the Kurzeme Regional Court adopted a decision whereby it dismissed the applicant’s appeal. At the hearing the court heard submissions from the lawyer, M.D., and a public prosecutor. M.D. supported the applicant’s appeal and alleged that the decision of the first-instance court had been unlawful. The prosecutor considered that the decision had been adopted lawfully and was justified by the applicant’s persistent refusal to respond to any summonses sent to her or to sign the statement of charges brought against her. He furthermore informed the court that the applicant’s assessment would be completed within one week of the date of the hearing in the appeal court. The appeal court considered that the first-instance court had adopted its decision in full conformity with the requirements of section 191 of the Code of Criminal Procedure (see below, paragraph 26), under which the presence of the suspected or accused person at the court hearing concerning that person’s placement in a psychiatric hospital was not mandatory. The court considered that the actual implementation of the decision of the Saldus District Court had not been sufficiently considerate, since the applicant had been forced to leave her household and domestic animals without any supervision. Nevertheless, the court took into account that the Saldus District Public Prosecutor’s Office had taken certain steps to ensure that the applicant’s property would be looked after during her stay at the psychiatric hospital, and it therefore considered that it was not “expedient” to terminate the assessment of the applicant’s psychiatric health.
16. On 28 May 2002 the applicant sent a request to the Prosecutor General. She asked him to lodge a complaint against the Saldus District Court’s decision of 2 May 2002 and the Kurzeme Regional Court’s decision of 24 May 2002. On 7 June 2002 a prosecutor from the Office of the Prosecutor General replied to the applicant, indicating that the decision of 24 May 2002 was final and therefore no appeal lay against it.
17. On 31 May 2002 the applicant was released from the hospital upon completion of her psychiatric assessment.
18. On the same day a commission consisting of three certified psychiatrists and one certified psychologist issued a report concerning the applicant’s psychiatric health and psychological state. The principal conclusion of the experts was that the applicant suffered from persistent delusions about being persecuted by communists and various other persons, including officials of her local municipality. They also found that the applicant was egocentric and her ability to objectively and adequately assess reality and her own behaviour was impaired. The overall conclusion was that the applicant “was unable to take account of her actions and to control them and [was to be] considered to have been in a state of mental incapacity (nepieskaitāma) with regard to the offence she was accused of”. It was recommended that the applicant should undergo out-patient psychiatric treatment.
19. On 28 June 2002 a public prosecutor of the Saldus District adopted a decision to discontinue the criminal proceedings against the applicant. The decision indicated that the applicant “had committed” the criminal offence mentioned in section 271 of the Criminal Law and that her guilt had been proved by all the materials obtained during the pre-trial investigation. However, taking into account the applicant’s mental incapacity and the fact that there was no need to order her compulsory treatment in a psychiatric hospital, the criminal proceedings were terminated.
20. On 22 January 2004 the applicant submitted a civil-law complaint to the Rīga City Ziemeļu District Court. She complained about being held in the psychiatric hospital and indicated that it was still unclear to her why she had been held there. The complaint was directed against the hospital and contained a request for 2,000 Latvian lati (LVL) in compensation for restriction of the applicant’s liberty and for harm done to her honour and reputation.
21. On 25 March 2004 the applicant submitted an additional complaint about, inter alia, the conditions in the hospital. She also named as additional defendants the two doctors who had observed her. The applicant further noted that while detained she had “had no possibility to appeal against the decisions of the [judge of the Saldus District Court] or the public prosecutor, which [she] had not received” and that she had not been allocated a lawyer, in contravention of the law. In another complaint dated 5 April 2004 the applicant complained, inter alia, that she had not been summoned to the hearing of the Saldus District Court, had had no possibility to defend herself and had not been sent a copy of the decision. The amount of compensation requested was increased to LVL 10,000.
22. The first-instance court rejected the applicant’s claim by a judgment on the merits which was adopted on 1 November 2004. The court pointed out that the applicant’s liberty had been restricted in accordance with decisions of a public prosecutor and a court and accordingly the deprivation of liberty had not been unlawful. It was further noted that since the psychiatric hospital where the applicant had been held had received a certificate which attested to its compatibility with the standards set forth in Latvian legislation, the applicant’s complaints regarding the conditions in the hospital were ill-founded. The applicant’s complaint about the alleged impossibility of appealing against the decisions of the public prosecutor and the Saldus District Court was not addressed in the judgment.
23. On 8 November 2004 the applicant lodged an appeal against the judgment of the first-instance court. On 3 December she supplemented her appeal. She complained, inter alia, about having been held in a psychiatric hospital for an excessive length of time despite having been “completely healthy”. The applicant also reiterated her complaint that she had been unable to appeal against the decision to place her in a psychiatric hospital because she had not been informed of that decision, and that she had not been summoned to the relevant court hearing.
24. On 27 January 2005 the Rīga Regional Court rejected the applicant’s appeal. That court held that the applicant’s constitutional right to liberty had not been violated because she had been placed in the psychiatric hospital in accordance with the law. It also held that the applicant’s placement in the hospital had been “proportionate” (“samērīgs”) with the aim to determine whether she had “realised and understood the nature and consequences of her actions”. The applicant’s complaint about her purported inability to appeal against the court order requiring her placement in the psychiatric hospital was not addressed.
25. On 23 May 2005 the Senate of the Supreme Court, in a preparatory meeting (rīcības sēde), rejected the applicant’s appeal on points of law. The Senate pointed out that the applicant had failed to indicate any violations of material or procedural norms.
26. At the relevant time the placing of suspects or accused persons in medical institutions was governed by Article 191 of the Code of Criminal Procedure (in force until 1 October 2005), which provided as follows:
“If during the performance of a ... forensic psychiatric assessment there arises a necessity to observe and test the suspect or accused person, the public prosecutor can adopt a reasoned decision and place him in an appropriate medical institution. If the suspect or the accused person is not in detention, he may only be placed in a medical institution on the basis of a decision by a judge or by a court. ...”
27. Pursuant to Article 98 of the Code of Criminal Procedure, the participation of defense counsel was compulsory during a trial before the first-instance court, as well as during a pre-trial investigation in cases concerning, inter alia, persons “unable to exercise their rights to defence because of mental defects”. If the person in question had not chosen a legal representative, the prosecutor or the court had an obligation to ensure the participation of defence counsel.
28. Article 97 obliged defence counsel to use “all legal means and methods” to provide the necessary legal assistance to their clients. To that end counsel had a right to meet with their client alone, to take part in various procedural actions, to lodge complaints and requests, and to submit evidence.
29. Article 2221 provided as follows:
“The suspect, the accused person or their representative may appeal against a decision of a judge concerning ... placement in a medical institution ...
Such appeal may be lodged within seven days of the time when the person in question has become aware ... of the placement in a medical institution...
Such appeal ... shall be heard by a higher court, which shall adopt a decision to quash the judge’s decision or to leave it unchanged. A decision shall be adopted no later than seven days after a complaint ... has been received at the court, in the presence of the person who has lodged the appeal ... and the prosecutor. The decision of the court shall be final and not subject to appeal.”
30. In a judgment of 29 October 2003 the Constitutional Court of Latvia declared section 271 of the Criminal Law, under which the applicant had been indicted, unconstitutional as being inconsistent with freedom of speech. In accordance with that judgment, section 271 became invalid on 1 February 2004.
31. Section 2352 of the Civil Law provides: “If someone unlawfully deprives another person of their personal liberty, they shall restore the liberty and shall, at the discretion of a court, give full compensation thereof, including compensation for non-pecuniary damage”.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-57894
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF KEMMACHE v. FRANCE (No. 3)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1
TEXT: 6. Mr Michel Kemmache, a French national, is currently serving a nine-year prison sentence at Draguignan (Var). Previously he resided at Pantin where he was employed as a hotel receptionist. At one time he had been the manager of the hotel and before that the director of several companies in which he owned shares. These consisted of gaming clubs, hotels and restaurants.
7. Mr Kemmache’s detention from 11 June to 10 August 1990 was ordered in connection with criminal proceedings conducted in the French courts from 16 February 1983 (when he was arrested and charged) to 6 February 1993 (when his appeal on points of law against conviction was dismissed). During this time the applicant underwent four periods of detention before being tried (from 16 February to 29 March 1983, from 22 March 1984 to 19 December 1986, from 11 June to 10 August 1990 and from 14 March to 25 April 1991).
In a judgment of 27 November 1991, the Court found that there had been a breach of Article 5 para. 3 and Article 6 para. 1 (art. 5-3, art. 6-1) of the Convention (Series A no. 218).
8. On 13 August 1985 the Indictment Division of the Lyons Court of Appeal indicted the applicant on charges of knowingly aiding and abetting "the importation and use on French territory of counterfeit foreign bank notes" and knowingly aiding and abetting the commission of the related offence of "unlawful circulation of such counterfeit bank notes within the customs area". It committed the applicant for trial in the Alpes-Maritimes Assize Court and issued a delivery into custody order (ordonnance de prise de corps) directing that the accused "[was to] be taken to or held at the prison" within the jurisdiction of that court.
9. Mr Kemmache had been at liberty since 19 December 1986 and no longer subject to court supervision since 4 October 1988, when, on 11 June 1990, he reported to Nice prison to be taken into custody. In so doing he was complying with the delivery into custody order of 13 August 1985 and Article 215-1 of the Code of Criminal Procedure, as the trial in the Assize Court had been set down for 12, 13 and 14 June 1990.
10. One of his two co-accused, Mr Klaushofer, sought the adjournment of the proceedings on the ground that his lawyer, who had been designated by the authorities to act for him on 8 June 1990, had not been able to familiarise himself with the case-file. Mr Kemmache joined this application, whereas the third co-accused, Mr Ceccio, opted to be tried immediately.
The Assize Court allowed these applications by a decision of 12 June and ordered the separation of the cases. Mr Ceccio was, accordingly, the only one of the accused to be tried on 12 and 13 June 1990.
11. On 12 June 1990 Mr Kemmache applied to the Assize Court for his release. On 13 June his application was rejected on the following grounds:
"...
The application to have the proceedings adjourned was made not only by Stephan Klaushofer, but also by Michel Kemmache.
The delivery into custody order executed on 11 June 1990 remains in force throughout the trial proceedings.
In view of the sentence which he risks, the accused is not able to provide sufficient guarantees that he will appear for trial.
Mere court supervision, even subject to the payment of a security, appears at this stage of the proceedings inadequate to ensure that the accused Kemmache will appear for trial.
In addition, the risk of pressure being brought to bear on witnesses cannot be ruled out.
..."
12. On 18 June 1990 the applicant filed a further application for release with the Indictment Division of the Aix-en-Provence Court of Appeal; he relied in particular on Article 5 paras. 1, 2, 3 and 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4) and also on Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
By a decision of 4 July 1990 the Indictment Division ordered his release subject to court supervision and to the payment of a security set at 800,000 French francs (FRF). FRF 400,000 of this amount was intended to ensure that he appeared for trial and the remainder to guarantee payment of such costs and fines as he might be required to pay. It considered, inter alia:
"...
Michel Kemmache was committed for trial in the Alpes-Maritimes Assize Court by a decision of the Indictment Division of the Lyons Court of Appeal of 13 August 1985.
He is detained pursuant to the delivery into custody order issued with that decision.
...
Michel Kemmache had been released on 8 December 1986 and it would not therefore appear that his detention is necessary unless there are new considerations justifying such a step.
However, it seems that the case is ready for trial at a forthcoming session of the Assize Court.
Given the numerous disruptions to these proceedings as a result of the use by the accused persons of all the available means to delay the trial, it is necessary to take steps to ensure that Kemmache appears for trial.
To this end his release must be subject to court supervision and to the obligation to pay a security.
Kemmache had previously paid two securities amounting to a total of FRF 800,000 in accordance with a court supervision order.
By a decision of 4 October 1988 the Alpes-Maritimes Assize Court ordered the lifting of the court supervision order and the repayment of the securities on the ground that, purely as a matter of law, since the time-limit for giving judgment had expired, the court supervision order had automatically to be rescinded.
In his memorial Michel Kemmache indicated that there had been no significant change in the guarantees that he could provide to ensure his appearance for trial.
He is still an employee of the company ‘Société Nouvelle Hôtelière de Pantin’, in which he has shares and the only alteration had been in his family circumstances.
The security should therefore be set at FRF 800,000, an amount which he had earlier been in a position to pay and which corresponds to his financial circumstances in view of his salary, and above all his position as partner.
..."
13. On 26 July 1990 the Indictment Division varied the conditions for the payment of the security to allow it to be paid in monthly instalments of FRF 100,000.
14. On 30 July 1990 Mr Kemmache filed an application for release with the Indictment Division. It was dismissed on 8 August 1990 on the following grounds:
"...
Kemmache, who was at liberty and not subject to court supervision surrendered to be taken into custody the day before he was due to appear in the Assize Court, in accordance with the provisions of Article 215-1 of the Code of Criminal Procedure. By virtue of those provisions the delivery into custody order continues to produce its effects until the final determination of the charges set out in the indictment.
Kemmache’s release was ordered by a decision of 4 July 1990. It follows that he is no longer detained pursuant to the delivery into custody order, but because he has failed to satisfy the conditions of court supervision requiring him to pay the first instalment of the security prior to his release.
The case is ready for trial at a forthcoming session of the Assize Court. Given the numerous disruptions to these proceedings and in particular the use by the accused persons of all the available means to delay the trial, it is necessary to take steps to ensure that Kemmache appears for trial. To this end his release must remain subject to court supervision and to the obligation to pay a security.
As was noted in the decision of 4 July 1990 the amount of the security corresponds to Kemmache’s financial circumstances and in particular to his position as a partner in the ‘Sté Nouvelle Hôtelière de Pantin’; he has not shown that his businesses have failed, as he maintained in his pleadings, or that he has insufficient funds to pay the sum fixed as security.
..."
15. On 10 August 1990, after paying the first instalment of the security, FRF 100,000, Mr Kemmache was released.
16. On 5 September 1990 the Indictment Division again refused to lift the court supervision order.
17. The applicant paid a second instalment of the security on 10 September 1990. He subsequently reported to the principal public prosecutor at the Aix-en-Provence Court of Appeal stating that he was not in a position to pay the remaining instalments and that he was ready to surrender to custody.
18. By three decisions of 22 November 1990 the Criminal Division of the Court of Cassation dismissed Mr Kemmache’s appeals against the decision of the Assize Court of 13 June 1990 and those of the Indictment Division of 4 July and 8 August 1990.
In the first it held, inter alia, as follows:
"...
... the delivery into custody order, properly executed, constitutes authority for detention which remains valid until the final determination of the charges set out in the indictment, without its being necessary to order its continuation where the accused’s case is separated from other proceedings and adjourned to a subsequent session.
..."
In the second and third decision, it found that:
"...
... as Michel Kemmache was lawfully detained, his release ordered by the impugned decision could be made subject to a court supervision order pursuant to the combined provisions of Articles 138 and 148 of the Code of Criminal Procedure ... [and] ... according to the terms of Article 5 para. 3 (art. 5-3) of the ... Convention ..., release may be conditioned by guarantees to ensure that the accused will appear for trial.
..."
19. On 25 April 1991 the Alpes-Maritimes Assize Court sentenced the applicant to a fine of FRF 2,600,000 and eleven years’ imprisonment, the latter term being reduced to nine years on 21 May 1992 by the Var Assize Court, to which the case had been remitted.
The appeal on points of law lodged against that last decision was dismissed by the Court of Cassation on 3 February 1993.
20. In proceedings concerning serious offences (matière criminelle), "[the decision indicting the accused] shall include an order for the accused’s delivery into custody ..." (Article 215 of the Code of Criminal Procedure - "CCP").
21. Under Article 215-1 CCP:
"An accused who is not in remand custody must surrender to be taken into custody not later than the day before the trial hearing in the Assize Court ...
The delivery into custody order shall be enforced against him if, having been duly summoned through administrative channels to report to the registry of the Assize Court and without a legitimate excuse, he fails to appear on the appointed day to be examined by the President of the Assize Court. The same applies in the situation provided for in Article 141-2 [, that is if he deliberately fails to comply with the conditions of court supervision]."
According to the case-law of the Court of Cassation (see paragraph 18 above), the delivery into custody order, lawfully executed, constitutes authority for detention which remains valid until the final determination of the charges set out in the indictment.
22. Any remand prisoner may apply for his release "in whatever circumstances" and "at any stage in the proceedings", including therefore the trial proceedings. Where the case has been referred to the trial court it is for that court to rule on the application for release. Before committal for trial in the Assize Court and in between Assize Court sessions, such applications are heard by the Indictment Division (Article 148-1 CCP).
23. In such circumstances the decision dismissing an application for release must give specific reasons in accordance with the conditions laid down in Article 145 CCP (crim. 16 December 1971, Recueil Dalloz (D.) 1972, p. 318; 15 September 1979, Bulletin criminel no. 258; 7 August 1990, ibid. no. 296, D. 1991, sommaires, p. 210), in other words "set out the considerations of fact and of law on which it is based ... with reference to Article 144".
Under Article 144 CCP, in proceedings concerning serious offences, detention on remand may be ordered or continued:
1. where it "is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims, or collusion between the accused and accomplices";
2. where it "is necessary to preserve public order from the prejudice caused by the offence or to protect the accused, to cause the offence to cease or to prevent its repetition or to ensure that the accused remains available to the judicial authorities".
It may also be ordered, in the circumstances provided for in Article 141-2, "where the accused deliberately fails to comply with the conditions of court supervision".
24. The powers conferred on the investigating judge by Articles 139 and 140 are, whatever the circumstances, vested in the court with jurisdiction as defined by Article 148-1 (Article 141-1 CCP).
The relevant court may therefore place the accused under court supervision and, at any moment, impose on him one or more new conditions, revoke conditions entirely or in part, vary one or more conditions or accord an occasional or temporary derogation from the obligation to comply with certain conditions (Article 139 CCP). It may also, at any moment, direct that the court supervision order be lifted (Article 140 CCP).
25. A court supervision order may require the accused to lodge a security, the amount of which and the time-limits for the payment of which, as a single payment or in instalments, are fixed, inter alia, having regard to his financial circumstances (Article 138 CCP). The object of this security is to guarantee (Article 142 CCP):
1. the accused’s presence for all the steps of the proceedings and for the execution of the judgment, and, where appropriate, the enforcement of other obligations imposed on him;
2. the payment in the following order of: (a) the costs incurred by the party seeking damages, reparation for the damage caused by the offence and sums owed in restitution, and maintenance payments, where the accused is facing proceedings for their non-payment; (b) costs incurred by the prosecuting authority; (c) fines.
26. If the accused deliberately violates the conditions of the court supervision order, the competent court may, whatever the length of the prison sentence risked, order his detention on remand. The delivery into custody order is then executed by order of the President of the Assize Court or, in between sessions, the President of the Indictment Division (Article 141-2 CCP).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-89291
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BIC v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant, Mr Jozef Bič, is a Slovakian national who was born in 1953 and lives in Košice.
5. On 17 May 1999 the applicant filed an action with the Košice I District Court. He challenged the validity of several legal acts relating to the purchase and subsequent donation of a flat in which he had earlier lived with his former wife.
6. On 19 May 1999 the judge invited the defendants to submit their comments on the action. The applicant was invited to pay the court fee. Two defendants submitted their comments in June and July 1999 respectively.
7. On 27 August 1999 the judge asked the applicant to pay a supplement to the court fee. She also requested files from a different court. The applicant paid the sum due on 8 September 1999.
8. On 7 October 1999 the third defendant submitted comments on the action.
9. A hearing was held on 28 March 2000. The case was adjourned.
10. On 2 May 2000 the court heard the parties. The court admitted a further defendant to the proceedings. That defendant submitted observations on the applicant’s action on 25 May 2000.
11. On 14 July 2000 the case was adjourned as two defendants had to be summoned. The same defendants failed to appear on 26 September 2000. The court imposed a disciplinary fine on one of them as he had failed to excuse his absence.
12. On 24 October 2000 the case was again adjourned due to the absence of the second defendant. It was not established that the summons had been duly served. On 31 October 2000 that defendant informed the court of her new address in the Czech Republic.
13. On 3 December 2001 the judge requested that the second defendant be heard by a Czech court. On 27 February 2002 the Ministry of Justice of the Czech Republic informed the District Court that the defendant resided at her address in Košice (Slovakia) at that time.
14. On 30 April 2002 the District Court dismissed the applicant’s action.
15. The applicant appealed on 30 May 2002.
16. On 7 June 2002 the District Court judge invited the applicant to pay the fee for the appellate proceedings. She also invited the defendants to comment on the appeal. The defendants replied between 20 June 2002 and 11 July 2002.
17. In the meantime, on 19 June 2002, the applicant asked for an exemption from the obligation to pay court fees. On 2 July 2002 the District Court granted the request.
18. The appeal was submitted to the Košice Regional Court on 16 July 2002.
19. The Regional Court held hearings on 10 October 2002 and 7 November 2002. On the latter date it quashed the first-instance judgment. The file was returned to the District Court on 16 December 2002.
20. At the judge’s request of 18 December 2002 the applicant specified his claim on 9 January 2003.
21. On 20 March 2003 the District Court again dismissed the applicant’s action.
22. The applicant appealed on 2 May 2003 and the file was transferred to the Regional Court on 4 July 2003.
23. On 1 March 2004 the Regional Court scheduled a hearing for 18 March, which was later postponed until 22 April 2004.
24. On 22 April 2004 the Regional Court upheld the District Court’s decision on the merits. It quashed the part of the decision as regards costs and remitted the case to the District Court.
25. On 3 June 2004 the file was transferred to the District Court which issued its decision on costs on 28 July 2004.
26. Two of the defendants appealed and the case file was transferred to the Regional Court on 7 October 2004.
27. On 29 December 2004 the Regional Court upheld the District Court’s ruling on costs. The decision was served on the applicant’s lawyer on 2 February 2005, and thus became final.
28. The applicant filed a complaint with the Constitutional Court alleging a violation of Article 6 § 1 of the Convention in that there had been unjustified delays in the proceedings before the District Court.
29. On 11 June 2003 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing without unjustified delay. The Constitutional Court held that the case was not complex and that by his conduct the applicant had not contributed to the length of the proceedings. As to the conduct of the District Court, the Constitutional Court found that it had remained inactive without any justification from 31 October 2000 to 3 December 2001, that is for approximately 13 months.
30. The Constitutional Court noted that the applicant had claimed 80,000 Slovakian in this respect.
VIOLATED_ARTICLES: 6


ITEMID: 001-107203
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ARVELO APONTE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: No violation of Art. 8;No violation of Art. 13
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1964 in Caracas (Venezuela) and currently lives in Amsterdam.
6. On 17 March 1996 the applicant flew from Venezuela to Frankfurt. At the airport, German officials discovered 691.6 grams of cocaine on one of the applicant’s travelling companions, on the basis of which the applicant and her companions were arrested. On 21 October 1996 the Frankfurt am Main Regional Court (Landesgericht) convicted the applicant of participation in the deliberate importation of 691.6 grams of cocaine and sentenced her to two years and six months imprisonment. The applicant did not appeal the judgment. She was granted early release on 25 August 1997 and, on the same day, was expelled from Germany to Venezuela. The German authorities did not impose an exclusion order on the applicant.
7. In 2000 the applicant travelled as a tourist to the Netherlands where she met and started a relationship with a Netherlands national, Mr T. On 27 October 2000, a request for advice on her eligibility for a provisional residence visa (machtiging tot voorlopig verblijf) for the purpose of stay with Dutch partner was filed on behalf of the applicant. Such a visa entitles the holder to enter the Netherlands in order to apply for a residence permit for a stay exceeding three months. An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit. On 9 April 2001, a positive advice was issued.
8. The applicant subsequently returned to Caracas where she applied for a provisional residence visa at the Netherlands mission. According to the applicant, the question whether she had ever been convicted of a criminal offence was not raised in the procedure on her request for a provisional residence visa and, being unaware that this would be relevant, she had not volunteered this information either.
9. Following the transmission of a positive advice of the Netherlands Aliens Police Service (Dienst Vreemdelingenpolitie) to the Netherlands mission in Caracas, in which the latter were requested to inform the applicant that, in order to quality for a residence permit, she would be required to sign a formal statement to the effect that she had never been the subject of criminal proceedings and/or a criminal conviction (antecedentenverklaring; hereinafter “declaration on criminal antecedents”), the applicant was provided on 27 April 2001 with a provisional residence visa by the Netherlands Minister of Foreign Affairs. According to the applicant, the information about the declaration on criminal antecedents was not given to her when she received the provisional residence visa at the Netherlands mission in Caracas.
10. On 2 May 2001 the applicant returned to the Netherlands where, to date, she has been cohabiting with Mr T.
11. On 11 May 2001 the applicant filed a request for a temporary regular residence permit (verblijfsvergunning regulier voor bepaalde tijd) for the purpose of stay with her Netherlands partner Mr T. When she was confronted with the prescribed declaration on criminal antecedents, she refused to sign it and her conviction in Germany came to light.
12. On 15 August 2001, the applicant was informed of the Minister’s intention (voornemen) to declare her an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring). The applicant was given the opportunity to react to this intention in the course of an interview conducted by the Aliens’ Police (vreemdelingenpolitie) on 28 August 2001.
13. On 16 October 2001, the prosecution department at the Amsterdam Regional Court (arrondissementsparket) was requested to consider whether the facts of which the applicant had been convicted in Germany constituted a criminal offence under Dutch law and whether the sentence imposed was comparable to the sentence that would be imposed by a Netherlands judge if the offence had been committed in the Netherlands. In its reply of 6 March 2002, the prosecution department stated that participation in the deliberate importation of cocaine constituted a serious criminal offence (misdrijf) under Dutch law, attracting a prison sentence of up to 12 years’. It further stated that the applicant, if she were convicted in the Netherlands, would probably be sentenced to 15 to 24 months’ imprisonment on the understanding that a judicial examination and determination of sentence obviously depended on the specific circumstances of each individual case.
14. By decision of 21 March 2002, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s request for a residence permit. The Deputy Minister further declared the applicant an undesirable alien entailing the imposition of a ten-year exclusion order, as it had appeared that the applicant had been convicted on 22 October 1996 by the Frankfurt am Main Regional Court of participation in the deliberate importation of cocaine for which she had been sentenced to two years and six months’ imprisonment. Having noted the contents of the letter of 6 March 2002 of the prosecution department at the Amsterdam Regional Court, the Deputy Minister found that the judgment of the Frankfurt am Main Regional Court did not substantially differ from the judgment that would have been passed by a Netherlands court. While acknowledging that the exclusion order constituted an interference with the applicant’s right to respect for her family life, the Minister considered that this was justified in the interests of public safety (openbare orde) and the prevention of crime, and that the general interests of the State thus outweighed those of the applicant.
15. On 14 May 2002, the applicant lodged an objection (bezwaar) against the decision. She argued that, as she had been granted a provisional residence visa, she had a legitimate expectation that she would be granted a residence permit as well. She further argued that a Dutch court would have passed a much more lenient sentence than the German court had done and that forcing her to leave would constitute an unjustified interference with her right to respect for family life now that she had been legally residing in the Netherlands since 2 May 2001.
16. As a decision to impose an exclusion order is immediately enforceable and an appeal against such a decision does not enjoy automatic suspensive effect, the applicant applied on 4 June 2002 to the Regional Court (rechtbank) of The Hague for a provisional measure (voorlopige voorziening) in order to stay her expulsion pending the objection proceedings.
17. The applicant and her partner married in Amsterdam on 7 February 2003. On 11 April 2004 a son was born of this marriage. The applicant had decided that, in view of her age, it would be unwise to wait too long before conceiving a child, despite her uncertain residence status.
18. In the meantime, on 31 March 2004, the applicant was heard on her objection lodged on 14 May 2002 before an official board of enquiry (ambtelijke commissie). This board also put questions to her husband who attended the hearing, who stated inter alia that he had a reasonable command of Spanish but that he did not wish to settle in Venezuela given the bad economic situation there. The applicant stated inter alia that she was in contact with her mother and two brothers who were living in Venezuela.
19. On 7 June 2004 the Minister for Immigration and Integration (Minister van Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice) dismissed the applicant’s objection on the grounds that the applicant could not claim a legitimate expectation to be granted a residence permit on the basis of the provisional residence visa and that a Dutch court would have imposed a sentence approaching the sentence handed down by the German court. Furthermore, the Minister held that the interference with the applicant’s family life was justified in order to protect public safety (openbare orde) and to prevent crime in view of the applicant’s drug-related conviction, and that there were no objective obstacles standing in the way of the applicant’s husband and child following her to Venezuela.
20. On 8 July 2004, the Regional Court of The Hague sitting in Amsterdam – unaware of the fact that the applicant’s objection had been determined on 7 June 2004 – granted the provisional measure that she had requested on 4 June 2002. As its requests of 3 February 2004 and 25 March 2004 to the Minister for information about the state of affairs in the objection proceedings had remained unanswered, it concluded that apparently the Minister did not attach great weight to the applicant’s speedy removal from the Netherlands and therefore granted the provisional measure.
21. By 9 June 2004 the applicant had already filed an appeal with the Regional Court of The Hague against the dismissal of her objection, raising largely the same grounds and elaborating her claim that she was unlikely to have been sentenced to more than six months’ imprisonment had she been tried by a Dutch court. She based this assertion on a document containing indicative guidelines for the determination of sentences for drug couriers, in use by judges in the Netherlands. A sentence of less than six months in the applicant’s case would have meant, according to the regulations in force, that she would have been eligible for a residence permit.
22. On 20 August 2004, after a hearing held on 13 August 2004, the Regional Court of The Hague sitting in Amsterdam denied the applicant’s appeal. The court agreed with the Minister that there was no question of a legitimate expectation. It further found that, based on the advice of the public prosecution department, the Minister had correctly estimated the length of the sentence that a Dutch court would have handed down. As regards Article 8 of the Convention, the court held that the interference with the applicant’s family life was justified in order to protect public safety and to prevent crime and that there were no objective obstacles to the applicant and her family continuing their family life in Venezuela. In this context it considered that the conviction concerned a narcotics offence, that – although eight years had elapsed since this conviction whereas the applicant had not reoffended since – this did not affect the serious nature of this offence and that – unlike the situation in the case of Boultif v. Switzerland, (no. 54273/00, ECHR 2001IX) – the applicant had never held a residence permit. It further took into account that the applicant’s marriage and the birth of her child were posterior to the decision to impose an exclusion order and found that there were no objective obstacles for the applicant and her family to continue their family life in Venezuela. It therefore concluded that the public interest outweighed the personal interests of the applicant and her family.
23. On 14 September 2004 the applicant appealed the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State; “the Division”) on largely the same grounds. The applicant also argued that the Regional Court had merely carried out a marginal assessment (marginale toetsing) by examining the reasonableness of the decision of the Minister to deny the applicant’s claim under Article 8 of the Convention, whereas the matter should have been considered on the merits as well. The applicant further claimed that the Regional Court had misinterpreted the principle of objective obstacles to the family starting anew in Venezuela.
24. The applicant also petitioned the President of the Administrative Jurisdiction Division for a provisional measure on 15 September 2004. The President denied the request as there were no grounds on which to assume that the impugned decision would be overturned on appeal.
25. On 15 February 2005 the Administrative Jurisdiction Division rejected the further appeal, holding:
“What has been raised in the grievances does not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to article 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.”
No further appeal lay against this ruling.
26. The applicant currently still resides in the Netherlands and has never reoffended.
27. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act.
28. On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.
29. According to the transitional rules, set out in article 11 of the Aliens Act 2000, an application for a residence permit which was being processed at the time this Act entered into force was to be considered as an application under the provisions of the Aliens Act 2000. Because no transitional rules were set for the substantive provisions of the aliens’ law, the substantive provisions under the Aliens Act 2000 took effect immediately.
30. The Netherlands Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian reason (article 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention constitutes an obligation under an international agreement.
31. As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may the holder travel to the Netherlands and apply for a residence permit for the Netherlands. An application for a provisional residence visa is in principle assessed on the basis of the same criteria as a residence permit.
32. The admission policy for family formation (gezinsvorming) and family reunion (gezinshereniging) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a Netherlands national is in principle eligible for admission, if certain further conditions relating to matters such as public policy and means of subsistence are met.
33. Pursuant to article 3.20 of the Aliens Decree 2000, a residence permit for the purposes of family reunion or family formation can be refused if the alien constitutes a threat to public order or national security. In this respect, article 3.77 § 1(c) of the Aliens Decree 2000 reads in its relevant part that a threat to public order exists when:
“c. the alien has been convicted of a criminal offence and sentenced to either a non-suspended prison sentence or custodial measure, a community service order or non-suspended financial penalty, or if, in relation to a criminal offence, the alien has accepted an out-of-court settlement or if a punishment order has been issued against him by a public prosecutor.”
Article 3.77 § 2 of the Aliens Decree 2000 provides that, in applying Article 3.77 § 1(c), also violations of public order committed outside of the Netherlands are taken into account, provided that they constitute a serious criminal offence (misdrijf) under Dutch law.
34. A past criminal conviction is not permanently held against the person concerned. Like the delays that apply to a request to lift an exclusion order, a past conviction is no longer held against a petitioner for a residence permit once a period of ten (for drugs or violent offences) or five (for other offences) years has elapsed, provided that the petitioner has not reoffended.
35. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she has been convicted of a serious offence carrying a prison sentence of three years or more, or poses a danger to public order. An exclusion order entails a ban on residing in or visiting the Netherlands. An exclusion order is immediately enforceable and the person on whom it is imposed is informed at the time of notification of this decision that he or she is obliged to leave the Netherlands immediately, that is within 24 hours.
36. An exclusion order can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect.
37. Article 91 § 2 of the Aliens Act 2000 provides as follows:
“If the Administrative Jurisdiction Division of the Council of State finds that a complaint raised does not provide grounds for overturning [the impugned ruling], it may, in giving reasons for its decision, limit itself to that finding.”
38. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 4,500 euros.
39. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for an uninterrupted period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.
NON_VIOLATED_ARTICLES: 13
8