ITEMID: 001-71042
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF REINPRECHT v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-4;No separate issue under Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1966 and lives in Graz.
10. On 6 May 2000 the Graz Regional Criminal Court (Landesgericht für Strafsachen) ordered the applicant's pre-trial detention on suspicion of attempted sexual coercion (geschlechtliche Nötigung). The court based the suspicion against the applicant on the statement of the victim, who had identified the applicant in an identity parade. Further, it considered that, given the applicant's criminal record, there was a risk that he might commit another offence similar to the one of which he was suspected (Tatbegehungsgefahr).
11. On 19 May 2000 the Graz Regional Court, after a hearing held in the presence of the public prosecutor, the applicant and his defence counsel, ordered that the applicant's pre-trial detention should continue. Referring to the testimony of the victim, it found that there was a reasonable suspicion against the applicant. Further, there was a risk that he might commit another offence similar to the one of which he was suspected. The court stated that the applicant had nine previous convictions, mainly for property-related offences, but recently also for violent crimes. The court found that, in the light of the applicant's recidivism and his character, the prolongation of his pre-trial detention was reasonable. The applicant appealed against this decision.
12. On 7 June 2000 the Graz Court of Appeal (Oberlandesgericht), sitting in private, dismissed the appeal and upheld the Regional Court's decision.
13. On 19 July 2000 the Graz Regional Court, after holding a hearing in the presence of the parties, dismissed an application for the applicant's release and ordered the continuation of his pre-trial detention. The applicant lodged an appeal against this decision.
14. On 20 July 2000 the applicant lodged another application for release. He stressed that there were no reasons to maintain his pre-trial detention.
15. On 26 July 2000 the public prosecutor's office (Staatsanwaltschaft) filed the bill of indictment. The applicant appealed against it.
16. On 2 August 2000 the Graz Regional Court, having held a hearing in the presence of the parties, ordered that the applicant's pre-trial detention should continue.
17. On 7 August 2000 the applicant appealed against this decision. He submitted that there was no reasonable suspicion against him as the testimony of the only witness for the prosecution had been contradictory.
18. On 17 August 2000 the Graz Court of Appeal, sitting in private, dismissed the applicant's appeal against the bill of indictment and the appeals against the Regional Court's decisions of 19 July 2000 and 2 August 2000. It found that there was no doubt about the credibility of the witness and that there was therefore a reasonable suspicion against the applicant. Further, it upheld the Regional Court's repeated finding that reasons for detention on remand (Haftgründe) existed.
19. On 18 September 2000 the applicant lodged a fundamental rights complaint (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof) against this decision. He submitted that there was no strong suspicion against him and that there were no reasons to maintain the detention on remand.
20. On 16 October 2000 the Supreme Court, sitting in private, dismissed the complaint. It found that there was no doubt about the credibility of the witness and that reasons for the applicant's detention on remand subsisted.
21. On 24 October 2000 the Regional Court, sitting with two professional and two lay judges, held a public hearing, convicted the applicant of attempted sexual coercion and sentenced him to two years' imprisonment.
22. On 8 March 2001 the Supreme Court rejected the applicant's plea of nullity.
23. On 8 May 2001 the Court of Appeal dismissed an appeal by the applicant, but allowed one lodged by the public prosecutor and increased the term of imprisonment to two years and six months.
24. Article 181 of the Code of Criminal Procedure (Strafprozeβordnung) establishes a system of periodic hearings for the review of pre-trial detention, which are to be conducted proprio motu. The relevant part of Article 181 provides as follows:
“1. Decisions ordering or continuing detention on remand and decisions of the court of second instance continuing detention on remand shall not be effective for longer than a certain period; the date of expiry shall be given in the decision. Prior to the expiry of the period of detention a hearing regarding the detention shall be held or the accused shall be released.
2. The period of detention shall,
(1) where detention on remand is ordered, be for fourteen days from the date on which the accused is arrested;
(2) where the first decision is taken to continue detention on remand, be for one month from the date of the decision;
(3) where a further decision is taken to continue detention on remand, be for two months from the date of the decision.
...”
An accused who is held in pre-trial detention has to be assisted by counsel (Article 41 of the Code of Criminal Procedure). Copies of all documents relevant for assessing the suspicion or the reasons for the detention must be served on the prosecution and the defence free of charge before the first hearing (Article 45a of the Code of Criminal Procedure).
25. The relevant part of Article 182 of the Code of Criminal Procedure provides:
“1. The investigating judge shall conduct the hearing regarding the detention; it is not open to the public. The accused, his counsel, the public prosecutor and the probation officer shall be informed of the date of the hearing.
2. The accused shall be brought before the judge at the hearing, unless this is impossible because of illness. He shall be represented by counsel.
...”
The court of appeal, when dealing with appeals against decisions of the investigating judge concerning pre-trial detention, takes its decision sitting in private pursuant to Article 114 of the Code of Criminal Procedure.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-100872
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GRABOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Mirosław Grabowski, is a Polish national who was born in 1987 and lives in Goleniów. He was represented before the Court by Mr J. Lachowicz, a lawyer practising in Szczecin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 September 2006 the applicant was placed in pre-trial detention in the course of criminal proceedings against him.
On 17 November 2006 a bill of indictment was filed with the Szczecin District Court against eight persons including the applicant. After the bill of indictment had been filed, A.K., the applicant's commonlaw wife, was allowed to visit him in prison.
On 3 January 2007 A.K. applied to be allowed to visit the applicant in prison. On the same date the court refused her request.
The trial began on 11 January 2007.
On 12 January 2007 the applicant's lawyer asked the court to allow the applicant to have prison visits from A.K. On 23 January 2007 the Szczecin District Court refused the request and informed the applicant that at this stage of the proceedings he could not receive prison visits. The refusal was motivated by the need to secure the proper conduct of the proceedings. The proceedings concerned several co-accused and the process of gathering evidence had not been finished. Even though A.K. was not a witness in the proceedings it was not possible to allow her to visit the applicant, at least until the key witnesses in the proceedings had been heard.
On 5 February 2007 the applicant's lawyer complained to the Szczecin Court of Appeal and to the Ombudsman. He stressed that the applicant was being refused all prison visits and that the District Court had not specified the duration of this prohibition.
On 26 February 2007, on the applicant's appeal, the Court of Appeal informed him that the District Court was competent to decide on prison visits for the applicant.
A.K.'s further applications for permission to visit the applicant in prison of 12 February, 20 March, 27 March and 3 April 2007 were dismissed.
On 29 March 2007 the Ombudsman informed the applicant that the refusal of family visits in prison was due to the complicated nature of the proceedings and the fact that several co-accused were involved. It would further appear that as soon as all the witnesses in the proceedings had been heard, the applicant would be allowed prison visits.
At the hearing held on 20 April 2007 the court allowed A.K.'s motion and agreed that she could visit the applicant in prison. The applicant states that she visited him on 21 April 2007.
Subsequently, A.K. was allowed to visit the applicant on numerous occasions.
On 16 October 2007 the District Court convicted the applicant as charged. On 21 April 2008 the Szczecin Regional Court quashed the firstinstance judgment and remitted the case.
The applicant was released on bail on 17 July 2008.
The proceedings are pending before the court of first-instance.
The relevant domestic law and practice concerning detainees' right to receive visitors in remand centres are stated in the Court's judgment in the case of Gradek v. Poland, no. 39631/06, §§ 21-25, 8 June 2010.


ITEMID: 001-5197
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SCHRIEDER v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Polish citizen, born in 1964. He resides in Copenhagen.

The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested on 30 November 1990 and charged with rape allegedly committed earlier the same day. On 1 December 1990 he was given a statutory hearing before the City Court of Copenhagen (Københavns Byret) during which the applicant was represented by counsel (N). Following this hearing the court decided to remand the applicant in custody for 13 days.
On 14 December 1990 the applicant was released by the City Court whereas the charge against him was upheld.
During the period from the arrest until March 1991 the police investigated the case. The police interrogated the applicant and interviewed the victim and various witnesses. Furthermore, the police carried out technical examinations at the scene of the crime and collected various technical declarations concerning a number of effects connected with the crime. Examinations were also carried out of the applicant’s and victim’s bodies to ascertain traces, if any, deriving from the crime.
An indictment was drawn up on 4 March 1991 and the case was set down for trial by the City Court of Copenhagen on 27 May 1991. However, the police did not succeed in serving the indictment on the applicant and it appears from the court records of the court session on 27 May that the court had been notified by telephone that the applicant was hospitalised in Poland. The case was therefore adjourned pending another summons.
The case was then set down for trial on 27 November 1991. However, the police did not succeed in serving the indictment on the applicant, informing him of the time of the trial. Despite various investigations carried out by the police it was not possible for the police to establish the applicant’s whereabouts. It appears from the court records of the session on 27 November 1991 before the City Court that the judge decided to adjourn the case pending determination of the applicant’s residence.
Concurrently another case against the applicant was pending, in which he was charged with, and wanted in connection with, a large number of offences against property committed together with others. On 16 August 1991 City Court of Copenhagen had ordered the applicant, among others, to be remanded in custody as there was a strong suspicion that he had committed offences against property. The applicant was not present at the hearing, and the public prosecutor stated that the suspects, among them the applicant, were probably to be found in Poland. In its decision the court emphasised, inter alia, the lack of ties with Denmark of the suspects, including the applicant, and the contradictory statements made by the suspects. It appears from the decision of the court that the suspects were to be brought before the court within the 24 hours from being brought to Denmark. The warrant for the arrest which was issued did not, however, concern the rape offence against the applicant.
On 17 January 1992 the applicant was apprehended at the border crossing at Frankfurt/Oder in Germany. He was arrested on the ground of an expected Danish request for extradition. On the same date, Interpol in Germany (Wiesbaden) notified Interpol in Denmark (Copenhagen) thereof, and thus the Danish authorities received notice of the apprehension.
A new warrant of arrest was issued on 22 January 1992. It appears from this that the applicant was to be taken into custody and brought before the court within 24 hours from being brought to Denmark. Also this warrant related to the offences against property only and did not concern the rape offence.
On the same day the Copenhagen police requested the Ministry of Justice to make a request for extradition of the applicant for prosecution in Denmark. In that connection, the police stated that he was provisionally charged with theft, forgery, assisting in forgery and rape.
On 29 January 1992 the Danish Ministry of Justice submitted their request for extradition to the German Ministry of Justice. It appears from the letter submitted to the German authorities that the applicant was provisionally charged with theft, forgery, assisting in forgery and rape.
On 22 February 1992 the German authorities requested further information for their processing of the extradition case, including the rape case.
On 6 March 1992 the Danish Ministry of Justice replied, giving an account of the case, including the rape offence. The Ministry of Justice requested that the extradition also include the rape offence although the warrant of arrest of 22 January 1992 from the City Court of Copenhagen did not include this offence. In that connection the Ministry of Justice stated that the applicant had been provisionally charged with rape and held in custody on the basis of that charge. The Ministry of Justice stated further that under Danish law extradition for prosecution for several offences could be effected although a warrant of arrest concerned only one of the offences charged. Moreover, the Ministry of Justice maintained that Section 12 § 2 (a) of the Convention on Extradition was to be construed accordingly.
On 29 April 1992 the German Ministry of Justice granted the request for extradition in so far as it concerned the offences against property, but not in so far as it concerned the rape offence, as the German authorities found that the conditions of the Convention on Extradition were not satisfied in respect of this offence.
During the period from the apprehension in Germany on 17 January 1992 until 18 May 1992 the applicant was detained in Germany with a view to extradition for prosecution in Denmark. While he was detained in Germany the respondent Government submit that the applicant had contact with his defence counsel in the rape case, N. According to a letter from counsel, the applicant had expressed a desire for extradition to Denmark as quickly as possible so that he could appear in the criminal case. The applicant denies that he had any contact with N during his imprisonment in Germany.
The applicant was extradited to Denmark on 18 May 1992 for prosecution of the offences against property. By judgment of 8 September 1992 by the City Court of Copenhagen, he was found guilty thereof and sentenced to imprisonment for 1 year and 6 months.
On 12 November 1992 the Copenhagen police requested the City Court to suspend the rape case until it could be resumed pursuant to Section 14 § 1 (b) of the European Convention on Extradition. The police stated that the reason for this was that the German authorities had refused extradition for prosecution of the rape offence. The police consequently requested a provisional conclusion of the case by the court and an award of fees to counsel.
On 20 November 1992 the City Court adjourned the case. The court awarded a fee of DKK 3,800 plus VAT to the assigned counsel, N, who had previously been awarded a fee of DKK 7,500 plus VAT on 27 November 1991. These amounts were to be provisionally covered by the Treasury.
The applicant was released on parole on 15 January 1993 with a two-year probation period as concerns a residual sentence of 182 days. There were no special conditions for the release on parole preventing the applicant from leaving the country immediately.
On 2 February 1995 the Copenhagen police resumed the rape case and recommended the District Public Prosecutor for Copenhagen to drop it on the ground of insufficient evidence. The police maintained that more than 4 years had passed since the time of the offence, and that it was presumed that the statements which would be made during a trial would hardly be able to form a basis for conviction.
However, on 8 March 1995 the District Public Prosecutor for Copenhagen decided that prosecution in the case should proceed due to the nature of the offence.
Thus, on 13 March 1995 the case was again forwarded to the City Court of Copenhagen. The Copenhagen police requested that the case be set down for trial quickly. The case was set down for trial on 15 May 1995.
The indictment was served on the applicant on 2 May 1995.
On 15 May 1995 the applicant’s case was heard by the City Court of Copenhagen. The court decided to appoint a new defence counsel, J, to the applicant. During the trial the applicant and 4 witnesses were heard. In addition to other documentary evidence a report prepared by the Legal Pathology Institute (Retspatologisk Institut) was read out in court. Following an evaluation of the available evidence the applicant was found guilty of the charge brought against him. He was sentenced to 1 year’s imprisonment. It appears from the judgment that the applicant was ordered to pay costs, including a fee of DKK 10,000 plus VAT to the appointed counsel, J. It further appears from the judgment that the fees of DKK 7,500 plus VAT and DKK 3,800 plus VAT awarded to the previously assigned counsel, N, and provisionally covered by the Treasury, were to be finally covered by the applicant.
The applicant appealed against the conviction, claiming acquittal, and by notice of appeal of 29 May 1995 the public prosecutor counter-appealed the sentence, claiming a more severe sentence.
On 19 July 1995 the High Court of Eastern Denmark (Østre Landsret) received an extract of the case from the public prosecutor, and on 7 August 1995 the High Court notified the public prosecutor and the defence counsel that the trial had been set down for 16 October 1995.
On 16 October 1995 the case was tried by the High Court. During the proceedings the applicant was heard as well as 3 of the witnesses from the City Court proceedings. The statement of the fourth witness was read out in the court. Furthermore, an additional witness was heard. On the basis thereof the High Court, which pronounced judgment immediately following the trial, upheld the judgment of the City Court of Copenhagen. The applicant was ordered to pay the costs before the High Court.
On 25 October 1995 the applicant petitioned the Ministry of Justice for leave to appeal to the Supreme Court (Højesteret).
The opinion of the public prosecution on this petition was presented to the applicant on 5 January 1996.
By letters of 22 January and 7 February 1996 the applicant submitted his supplementary comments on the matter.
On 27 February 1996 the Ministry of Justice rejected the request for leave to appeal.


ITEMID: 001-71412
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PACHLA v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Zbigniew Pachla, is a Polish national who was born in 1953 and lives in Dobromierz. He is represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 August 1998 the applicant was arrested by the police.
On 27 August 1998 the Świdnica District Court remanded him in custody on a charge of attempted extortion. On 23 November 1998 the applicant was released from detention.
On 29 December 1998 the Świdnica District Prosecutor stayed the criminal proceedings against the applicant as his co-accused, a certain Mr J.J., had gone into hiding. On 11 June 1999 the prosecution service resumed the proceedings in order to prepare an extradition request in respect of J.J., who had been arrested in Belgium. On the same date the proceedings were stayed again.
In August 2003 the bill of indictment was submitted to the Świdnica District Court.
On 6 October 2003 the Świdnica District Court ordered that the applicant be remanded in custody for a period of three months. It found that the applicant had not collected the court’s summons and that he did not reside at the address indicated to the prosecution. In those circumstances a copy of the bill of indictment could not be served on the applicant and the hearing could not commence. Consequently, the District Court found that the applicant had obstructed the proceedings.
On 21 October 2003 the applicant was arrested and placed in detention. On 24 October 2003 the applicant’s lawyer appealed against the detention order of 6 October 2003. On 30 October 2003 the Świdnica Regional Court quashed the impugned detention order. The applicant was released on the same day.
It appears that the proceedings are pending before the Świdnica District Court.
In August 1999 the applicant published the first issue of the “Information Bulletin of the Citizens’ Anticorruption Association OSA”. In the article entitled “The prosecutor’s son breaks the law” the applicant alleged that a prosecutor S.S. influenced the outcome of the criminal proceedings against his son, who had been involved in a traffic accident.
On 9 August 1999 S.S. brought a private prosecution against the applicant, alleging that he had been defamed. He requested the Wałbrzych District Prosecutor to take over the prosecution, arguing that the public interest so required.
On 26 August 1999 the Ząbkowice Śląskie District Prosecutor opened the investigation into the case. On 14 December 1999 the prosecutor lodged a bill of indictment with the Wałbrzych District Court. The applicant was indicted on the charge of defamation under Article 212 § 1 of the Criminal Code. In particular, the prosecutor alleged that in the bulletin the applicant imputed to S.S. “unlawful behaviour in order to lower him in public opinion and undermine public confidence in his capacity to perform the duties of a prosecutor”.
On an unspecified date in 2000 the Wałbrzych District Court transmitted the case to the Świdnica District Court which had jurisdiction to hear it.
On 19 January 2001 the Świdnica District Court convicted the applicant under Article 212 § 2 of the Criminal Code of defamation committed through the mass media. It sentenced him to ten months’ imprisonment suspended for three years.
The applicant appealed against his conviction but his appeal was dismissed on 4 September 2001 by the Świdnica Regional Court.
Article 14 provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”
Article 87 lists the sources of law. That provision reads, in so far as relevant, as follows:
“1. The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. ...”
Article 91 of the Constitution, in its relevant part, states:
“1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.
2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.”
Article 79 § 1 of the Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
Article 190 of the Constitution, insofar as relevant provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
Article 212 §§ 1 and 2 of the Criminal Code 1997 provides as follows:
“§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics, as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding 1 year.
§ 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding 2 years.”
In 2005 a constitutional complaint was lodged with the Constitutional Court against Articles 212 § 2 and 213 § 2 of the Criminal Code. A claimant in that case, who had been convicted on the basis of these provisions, alleged that they were incompatible with Article 54 of the Constitution read in conjunction with Article 31 § 3 and Article 14 of the Constitution. The case was registered under no. SK 43/05 and currently the proceedings on the merits of that complaint are pending.
Article 521 of the Code of Criminal Procedure provides as follows:
“The Prosecutor General or the Ombudsman may lodge a cassation appeal against any final and enforceable judicial decision.”
Article 523 § 2 of the Code of Criminal Procedure stipulates that a defendant may not lodge a cassation appeal in cases where a suspended prison sentence has been imposed.
Article 540 § 2 of the Code of Criminal Procedure 1997 provides for reopening of the proceedings following a judgment of the Constitutional Court. It provides as follows:
“The proceedings shall be reopened to the benefit of the accused when as a result of the Constitutional Court’s judgment a provision of law which served as the basis for conviction or conditional discontinuation [of the proceedings] was abolished or amended.”
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.
Section 2, in so far as relevant, reads as follows:
Section 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms:
“A party who has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.
Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”
Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-95605
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DAVID AQUILINA v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr David Reuben Aquilina, is a Maltese national who lives in Fgura. He was represented before the Court by Dr A. MifsudBonnici, a lawyer practising in Valletta.
In September 2005 the applicant was sued for an amount of money which he allegedly owed the plaintiffs in respect of a purchase he made from them. He thus became a party to civil proceedings before the Small Claims Tribunal (“SCT”).
On 12 December 2007 the SCT found against the applicant. It noted that the contractual agreements undertaken were not ideal. However, it was not competent to decide whether such agreements could have been made or not. It was solely competent to decide whether the applicant owed the sum of 1,500 Maltese Liras (MTL) to the plaintiffs. Finding that the versions of the parties were diametrically opposed the court considered that it had to base itself on the credibility of their testimonies. It found that, on the one hand, the plaintiffs had been coherent in their submissions throughout the three separate hearings. On the other hand, the applicant’s testimony had been contradictory and in its view false. It noted, inter alia, that the applicant claimed that on signing the initial agreements he had not understood what he was signing and that he would consequently have to make payment. This notwithstanding, he had started making regular payments by means of a standing order. When asked about the latter he had replied that he did not know what such a thing was, notwithstanding that it was general knowledge that such an order could only be made at the request of the account holder. The court was of the view that his claim that he was illiterate and that he did not understand what had been going on was only an excuse to avoid the obvious.
On 14 July 2006, the applicant instituted constitutional proceedings claiming a violation of Article 6 of the Convention. He complained that the SCT was not an impartial tribunal in view of its composition, namely an adjudicator, who was a lawyer appointed on a part-time basis for a term of office of five years, and who could in the meantime continue to practise as a lawyer before the ordinary courts. This system left room for prejudice against lawyers who might have been the adjudicator’s opponents in previous or future litigation, or advantages for clients represented by the same firm as that of the adjudicator, together with any other likes and dislikes among colleagues of the same profession acting in the same courts of law, as was the case in Malta. The fact that the adjudicators were not obliged to take the oath administered to judges and magistrates sitting in the ordinary courts was a matter of further concern.
On 31 May 2007 the Civil Court (First Hall) rejected the applicant’s claim as the system was safeguarded by the possibility of challenging adjudicators or of their withdrawing ex officio.
The applicant appealed.
On 13 June 2007 the Constitutional Court upheld the first-instance judgment. Noting that the guarantees of impartiality were best respected by the ordinary courts having full-time judges, it considered that although it would have been preferable that such adjudicators did not continue to practise their profession, the fact that they did so did not mean that the SCT lacked objective impartiality. Although it could be envisaged that in certain circumstances, as mentioned by the applicant, an issue could arise, the applicant’s complaint in the present case was in the abstract.
Section 4 of the Small Claims Tribunal Act, Chapter 380 of the Laws of Malta, reads as follows:
(1) The Tribunal shall be presided over by an adjudicator sitting alone:
Provided that more than one adjudicator may be appointed to sit in any of the said Tribunals, but only one adjudicator shall sit in any one case.
(2) Adjudicators shall be appointed by the President acting in accordance with the advice of the Prime Minister. A person shall not be qualified to be appointed as Adjudicator unless he has practised as an advocate in Malta for a period or periods amounting in the aggregate to not less than seven years.
(3) A person shall be disqualified from being appointed an adjudicator if such person -
(a) is a member of the House of Representatives; or
(b) is a member of a Local Council; or
(c) is an undischarged bankrupt; or
(d) has been sentenced by any court to imprisonment for any term or has been found guilty by any court of any of the crimes in Titles III, V or VI of Part II of Book First of the Criminal Code.
(4) (a) Adjudicators shall receive such remuneration as the Prime Minister may by notice in the Gazette determine and such remuneration shall be a charge on the Consolidated Fund; such remuneration shall not during the tenure of office of an Adjudicator be altered to his disadvantage.
(b) During the term of their appointment, Adjudicators shall be precluded from the exercise of their profession in cases before the Tribunal.
(5) Adjudicators shall be appointed for a term of five years and, on the lapse of their term, they shall not be eligible for reappointment:
Provided that if the office of Adjudicator is vacant or if the Adjudicator is unable to perform the functions of his office, then, until a person has been appointed and has assumed the functions of that office, those functions shall be performed by any other Adjudicator in office or by such other person qualified for appointment as Adjudicator as may be appointed to act as Adjudicator by the President acting in accordance with the advice of the Prime Minister. Such person shall continue to act for the period of his appointment or, if no such period is specified, until his appointment is revoked by the President acting in accordance with the advice of the Prime Minister.
(6) In the exercise of his functions under this Act, an Adjudicator shall not be subject to the control or direction of any other person or authority. An Adjudicator may not be removed from office except in the manner and for the reasons provided for in article 97(2) of the Constitution, and any law or regulation made pursuant to article 97(3) of the Constitution for the purposes of article 97(2) thereof shall apply mutatis mutandis to the procedure for the presentation of an address and for the investigation and proof of the inability or misbehaviour of an Adjudicator under the provisions of this article.
In so far as relevant, section 7 of the Act reads as follows:
“The Tribunal shall determine any claim or counterclaim before it principally in accordance with equity”.


ITEMID: 001-98037
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MUTSOLGOVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants are:
Ms Zakhidat Mutsolgova, born in 1946;
Mr Adam Mutsolgov, born in 1943;
Mr Magomed Mutsolgov, born in 1973;
Ms Aminat Buzurtanova, born in 1982, and
Ms Dzhannat Mutsolgova, born in August 2003.
6. The applicants live in the town of Karabulak, in the Ingushetiya Republic. The first and second applicants are the parents of Mr Bashir Mutsolgov, born in 1975. The third applicant is his brother. The fourth and fifth applicants are Bashir Mutsolgov's wife and daughter.
7. At the material time the fourth and the fifth applicants together with Bashir Mutsolgov lived at 83 Oskanova Street in the town of Karabulak, Ingushetia. The first and second applicants lived in a house nearby, about 50 metres away.
8. The applicants were not eyewitnesses to Bashir Mutsolgov's abduction and the following account of events is based on the witness statements collected by them after his disappearance and on other documents furnished by them to the Court.
9. At about 3.20 p.m. on 18 December 2003 Bashir Mutsolgov, who was heading from the grocery store to his home, met a neighbour, Kh. Kh. The men were talking next to Bashir Mutsolgov's house when a white VAZ-2121 (“Niva”) vehicle with blacked-out windows and a dark blue VAZ-2106 car pulled over. Although the vehicles' registration plates were covered with mud, the Niva had part of its number, “26”, visible. Five to eight masked men in camouflage uniforms emerged from the cars. They were armed with AK assault rifles and spoke unaccented Russian. The men ran up to Bashir Mutsolgov and Kh. Kh. and hit the latter in the face so that he fell to the ground. They then forced Bashir Mutsolgov into the white Niva vehicle. According to the statement by V.G., Bashir Mutsolgov was forced to the ground and then put in the Niva vehicle. Kh. Kh. submitted in his statement that, before being forced into the Niva vehicle, Bashir Mutsolgov had been hit with a rifle-butt in the stomach.
10. Bashir Mutsolgov's neighbour, Ya. Kh., heard a noise and looked out of the window of her house. She saw across the street a group of men throw Bashir Mutsolgov into the white Niva vehicle. After that the vehicles with Bashir Mutsolgov drove away in the direction of the Karabulak department of the interior (“the GOVD”) and the local road police station (“the GAI station”) located about 700-900 metres from Bashir Mutsolgov's house.
11. A number of other local residents witnessed the abduction of Bashir Mutsolgov. In particular, prior to arriving at Bashir Mutsolgov's house, the white Niva vehicle had caused a traffic accident with two minivans which both had about 25-30 passengers on board. The passengers in the minivans, as well as their drivers, including V.G., and the crowd gathered at the place of the accident witnessed the abduction of Bashir Mutsolgov by a group of armed masked men.
12. One of the local residents, M. B., was driving past the applicants' house when he saw a group of armed men throw a man into a white Niva vehicle. Several minutes later, passing by the GAI station, he informed the on-duty officer Ch. about the incident and told him that two vehicles, a white Niva and a dark blue VAZ with the abducted man, were driving behind him on the same road. Ch. stopped the two cars. A man of Slavic appearance, about 35-40 years old, got out of the white Niva vehicle. He spoke unaccented Russian and produced a special permit of the Regional Operational Headquarters of the Federal Security Service (“Региональный Оперативный Штаб Федеральной Службы Безопасности”), prohibiting any search of the permit owner and his vehicle. The man introduced himself as an officer of the FSB and ordered Ch. to let the two vehicles through. Ch. recognised him as the man who had been introduced to him as an FSB officer during an investigation into an explosion in Karabulak, and who had participated in the investigation together with other FSB officers. Having checked the permit, Ch. let the two vehicles pass. From the GAI station the two vehicles took the Baku-Rostov highway and drove in the direction of the town of Magas, Ingushetia.
13. The applicants have had no news of Bashir Mutsolgov since 18 December 2003.
14. The above description of the events of 18 December 2003 is based, among other things, on the applicants' application form dated 13 January 2006; written statements by V.G. and M.B of 22 September 2005; written statements by Ya.Kh. and Kh. Kh. made on 22 September 2005; a written statement by the third applicant made on 14 October 2005; written statements by the first and second applicants dated 6 December 2005, and a hand-drawn map of the premises at Oskanova Street in Karabulak with detailed indications of the objects and persons at the time of the abduction and the direction taken by the abductors.
15. In their statements the first to third applicants referred to the time of Bashir Mustolgov's abduction as approximately 3.30 p.m.; according to the statements by Kh. Kh. and Ya. Kh., it occurred “at about 3 p.m.” According to all witness and applicants' statements submitted to the Court, there had been five to eight abductors who had arrived in a white Niva and a dark blue VAZ vehicle; Bashir Mutsolgov had been put into the white Niva vehicle.
16. The Government submitted that on 18 December 2003 at about 4.20 p.m., a group of unidentified armed men in camouflage uniforms had forced Bashir Mutsolgov into a white Niva vehicle near house no. 83 at Oskanova Street in Karabulak and had taken him to an unknown destination.
17. Immediately after the abduction of Bashir Mutsolgov, at about 4 p.m. on 18 December 2003, Ya. Kh. alerted the first, second and third applicants about their relative's abduction. At about 4.20 p.m. the applicants complained about Bashir Mutsolgov's abduction to a number of local law enforcement agencies, including the GOVD. The authorities denied having arrested the applicants' relative.
18. On 24 or 25 December 2003 the third applicant's car was stopped by a grey VAZ-21099 vehicle with blacked-out windows and without number plates. Two men in camouflage uniforms got out of the vehicle, while the driver stayed inside. One of them, aged thirty to thirty-five and of Slavic appearance, approached the third applicant and identified himself as an FSB officer, but refused to provide his name. He carried a Makarov pistol – the usual equipment of members of the Russian “power structures”. He told the third applicant that he could provide him with information on the whereabouts of Bashir Mutsolgov in exchange for 300 United States dollars (USD). The officer described in detail the clothing worn by Bashir Mutsolgov on the day of his abduction.
19. Having received the money, the officer told the applicant that his brother had been abducted by a group of officers of the Ingushetia department of the FSB, the Chechnya department of the FSB and the Regional Department of the FSB in the North Caucasus (УФСБ по Республике Ингушетии, Чечне и Региональное Управление по Северному Кавказу). The officer told the applicant that after the abduction Bashir Mutsolgov had been taken to the Ingushetia department of the FSB in Magas and had been detained in a basement. The following day, presumably on 19 December 2003, Bashir Mutsolgov had allegedly been taken by two grey UAZ vehicles (“таблетка”) to the Khankala settlement in the Chechen Republic, where the main base of the Russian military forces was located. According to the officer, while in detention Bashir Mutsolgov had been subjected to beatings and torture with a view to making him confess to an unspecified crime he had not committed.
20. On an unspecified date in the end of December 2003 the third applicant met with an acquaintance who had come over with a young armed man in a camouflage uniform, who was carrying a pistol. The latter spoke Ingush and introduced himself as an officer of the FSB headquarters in Magas. In exchange for USD 200 he promised to find out more information about Bashir Mutsolgov. On the following day the applicant met with him again. According to the officer, on 18 December 2003 a man answering to the description of Bashir Mutsolgov had been brought to the FSB headquarters in Magas and taken into the building through a side entrance.
21. In mid-November 2004, when returning from his parents' home, the third applicant was allegedly approached by a young man in a camouflage uniform and a black knitted hat, who called the third applicant by name. He spoke Russian without accent. The man identified himself as an FSB officer and showed the third applicant a dark-red or brown certificate with a laminated picture. The third applicant could not read the man's family name on the certificate because it was dark and the latter was covering it with his fingers. Having showed the certificate the man told the third applicant that he was not going to identify himself because “if (the third applicant) fell into the hands of the FSB he would tell them everything”. While the man was talking, the third applicant noticed two grey VAZ vehicles and a white VAZ vehicle on the opposite side of the street. The man offered to give the third applicant the name of one of Bashir Mutsolgov's abductors in exchange for USD 5,000. The third applicant asked him to give the name of the officer who had shown Ch. a special permit at the GAI station, thinking that Ch. would be able to identify that officer during an eventual confrontation. The man agreed and the third applicant gave him USD 2,000 and Bashir Mutsolgov's picture, with the third applicant's mobile number written on its reverse side. The remainder of the amount was to be paid on receipt of the information.
22. On 18 December 2004 the third applicant allegedly received a call on his mobile. A man who did not identify himself told him that the person who had abducted Bashir Mutsolgov and shown the special permit at the GAI station was L.T., an officer of the FSB department in Kostroma. About two months later an unidentified person visited the third applicant at night to obtain the remaining USD 3,000 and allegedly told the third applicant that L.T. was serving in the FSB with the rank of lieutenant-colonel.
23. In their search for Bashir Mutsolgov the applicants also contacted, both in person and in writing, various official bodies, such as the Russian President, the Deputies of the Russian State Duma, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Republic of Ingushetia, the administration of the Republic of Ingushetia and departments of the interior and prosecutors' offices at different levels, describing in detail the circumstances of their relative's abduction and asking for help in establishing his whereabouts. The applicants retained copies of a number of those letters and submitted them to the Court.
24. Following the applicants' complaint about Bashir Mutsolgov's abduction, at about 6 p.m. on 18 December 2003 two law-enforcement officers arrived at the applicants' house. They introduced themselves as the head of the local department of the fight against organised crime (the RUBOP) and the district police officer. The officers interviewed an unspecified number of witnesses to the abduction of Bashir Mutsolgov.
25. According to the third applicant, on the same day he went to the Karabulak town prosecutor's office (“the town prosecutor's office”) to submit a written complaint about his brother's abduction. He was received by investigator O., who refused to accept his complaint and first called, in the third applicant's presence, the FSB department in Ingushetiya and asked them whether their officials had carried out special operations in Karabulak. O. then allegedly asked his interlocutor on the phone whether he could accept the third applicant's complaint about the abduction of his brother. O. then told the third applicant that, according his interlocutor, the FSB department in Ingushetiya had not carried out any special operations or arrests in Karabulak and that he had been allowed to accept the third applicant's complaint.
26. On 19 December 2003 the prosecutor's office of the Ingushetiya Republic (“the republican prosecutor's office”) forwarded the third applicant's complaint about the abduction of Bashir Mutsolgov to the town prosecutor's office for examination.
27. On 26 December 2003 the town prosecutor's office instituted an investigation into the abduction of Bashir Mutsolgov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given number 23520016 (in the submitted documents the number is also referred to as 2352016).
28. By a letter of 26 December 2003 the town prosecutor's office informed the third applicant that a criminal investigation into the abduction of Bashir Mutsolgov had been opened. The decision stated, in particular, that at about 4.20 p.m. on 18 December 2003 unidentified persons in camouflage uniforms, who had arrived in a Niva vehicle and a VAZ-2106 vehicle, had forced Bashir Mutsolgov into one of the vehicles near 83 Oskanova Street and had taken him to an unknown destination. By a letter of the same date addressed to the third applicant the latter, as well as “other relatives” of Bashir Mutsolgov, were requested to come to the town prosecutor's office for an interview and eventual recognition as victims in that criminal case.
29. On 26 December 2003 the second applicant complained to the military prosecutor's office of military unit no. 04062 that his son had been abducted by armed men in camouflage uniforms in several vehicles. He pointed out that when the abductors had been stopped at the GAI station, one of them had produced a special permit which had allowed the cars to pass without being checked. The second applicant also stated that he had managed to find out that Bashir Mutsolgov had been abducted by officers of the Ingushetia department of the FSB, the Chechnya department of the FSB and the Regional Department of the FSB in the North Caucasus; that he had been taken to the headquarters of the Ingushetia department of the FSB in Magas and put into a basement; that on the following day his son had been taken to the settlement of Khankala in the Chechen Republic, where he had been and was still detained. According to the second applicant that information had been provided by officers of the above-mentioned departments of the FSB who had asked that their names not be disclosed; they had also told the second applicant that Bashir Mutsolgov had been subjected to beatings and torture and pressurised to confess to an unspecified crime. The second applicant emphasised that both he and the first applicant were suffering because they knew nothing about their son's fate and had no information about what was being done about it by the investigating authorities.
30. On 30 December 2003 the third applicant was granted victim status in criminal case no. 23520016.
31. On 22 January 2004 the Ingushetia department of the FSB informed the military prosecutor's office of military unit no. 04062 that they had not arrested Bashir Mutsolgov and had no information concerning his whereabouts.
32. On 22 January 2004 the investigators in criminal case no. 23520016 issued a statement concerning the progress of the investigation. The document provided, inter alia, a detailed description of the circumstances of Bashir Mutsolgov's abduction and stated that he had not committed any crimes and that his name had not been on the authorities' wanted list. According to the document, the investigation had questioned a number of witnesses to the abduction, including officer Ch. and M. B. The document, in so far as relevant, continues as follows:
“...
In his explanation of 20 December 2003 officer Ch. of the GOVD submitted that on 18 December 2003, while he was on duty at the Kursk-I GAI station,... between 4 and 5 p.m., he was approached by an acquaintance M.B. who had told him that ... he was being followed by a green VAZ-2106 vehicle and a white Niva vehicle; he saw a man being forced into one of those vehicles - those vehicles had been closely following M.B.
Ch. ordered the two vehicles to stop. The Niva vehicle was in front and was followed by a VAZ-2106 vehicle; neither of them had registration plates. The driver of the Niva vehicle had got out and had shown [Ch.] a special permit exempting the vehicles and the persons inside from checking. Ch. recognised the driver as an officer of the Ingushetiya department of the FSB, whom he had seen earlier in connection with various incidents, most recently at the scene of a crime at 6 Chkalova Street, where, as a result of an explosion, a GOVD officer, T., had had his hand torn off. Ch. did not know the family name of the FSB officer but could identify him at any time. Ch. described [that officer's] distinctive marks.
At his interview on 21 January 2004 Ch. gave a similar statement.
Witness M.B. in his explanation and during his interview on 21 January 2004 submitted that on 18 December 2003, at about 4.20 p.m., when he had been driving towards the centre of Karabulak,... four armed persons had stepped into the road and stopped the traffic. At the same moment, their accomplices had forced a young man, who had previously been held in the VAZ-2106 vehicle, into the white Niva and taken him away; M.B. had informed the GAI station located near the GOVD about this. The on-duty officer had stopped vehicles without licence plates, checked their documents and let them through. In answer to M. B.'s question why he had let them pass, the officer answered that he knew one of them as an FSB officer. From [Ch.'s] explanation M.B. understood that the FSB officers had not abducted but arrested Bashir Mutsolgov. M.B. would not be able to identify those persons because they had been wearing masks....
According to a certificate of the head of the GOVD dated 29 December 2003, on 18 December 2003 Bashir Mutsolgov, born in 1975, had been taken to an unknown destination by officers of the power structures...”
33. In a letter of 26 January 2004 the military prosecutor's office of military unit no. 04062 informed the second applicant that the examination of his complaint had established that officers of the Ingushetia and Chechnya departments of the FSB had not participated in the abduction of Bashir Mutsolgov. According to the letter, the military prosecutor's office of the United Group Alignment (the UGA military prosecutor's office) had forwarded a request for assistance in the search for Bashir Mutsolgov to the Regional Operational Headquarters of the FSB.
34. On 25 February 2004 the republican prosecutor's office informed the second applicant that they had studied the case concerning the abduction of Bashir Mutsolgov and had issued instructions for the investigation aimed at establishing the identity of the perpetrators of his abduction. According to the letter, the authorities were verifying the thesis of possible involvement of the FSB officers in the abduction and his detention in Khankala.
35. On 12 April 2004 the second applicant complained about Bashir Mutsolgov's abduction to the head of the FSB of the Russian Federation and the Prosecutor General. He described in detail the circumstances of his son's abduction by armed men in camouflage uniforms in several vehicles and pointed out that when the abductors had been stopped at the GAI station one of them had produced a special permit which had allowed the vehicles to pass without a check. The second applicant also stated that he had managed to find out that his son had been abducted by officers of the Ingushetia department of the FSB, the Chechnya department of the FSB and the Regional Department of the FSB in the North Caucuses; that he had been taken to the headquarters of the Ingushetia department of the FSB in Magas and put in a basement; that on the following day his son had been taken to the settlement of Khankala in Chechnya, where he was still detained. According to the second applicant, that information had been provided to him by officers of the above-mentioned departments of the FSB, who had asked him not to disclose their names; they had also told the second applicant that Bashir Mutsolgov had been subjected to beatings and torture and pressurised to confess to an unspecified crime. Lastly, he stressed that both he and the first applicant had experienced enormous suffering because of the lack of news about their son and the investigating authorities' failure to take any measures to find him or to identify the perpetrators.
36. By a letter of 11 May 2004 the republican prosecutor's office informed the second applicant that his complaint about the abduction of Bashir Mutsolgov had been forwarded to the town prosecutor's office for examination.
37. By a letter of 20 May 2004 the town prosecutor's office informed the second applicant that they had opened a criminal investigation into his son's abduction; that they were verifying the information submitted by the second applicant during the preliminary investigation, and that he would be given any relevant information in due course.
38. On 26 May 2004 the republican prosecutor's office wrote to the second applicant that the town prosecutor's office had opened a criminal investigation into his son's abduction and that operational and search measures were under way. The letter stated the investigation of the criminal case was under the control of the republican prosecutor's office.
39. By a decision of 26 June 2004 the town prosecutor's office suspended the investigation in criminal case no. 23520016 for failure to identify the perpetrators and establish Bashir Mutsolgov's whereabouts; the operational and search measures aimed at identification of the culprits were to be continued.
40. In a letter of 1 August 2004 the third applicant requested the town prosecutor's office to provide him with information on the status and the progress in the investigation into his brother's abduction.
41. On 3 November 2004 the third applicant wrote to the town prosecutor's office seeking detailed information on the investigation in case no. 23520016 and access to the case file.
42. By a decision of 5 November 2004 the town prosecutor's office refused his request, stating that the third applicant would be allowed to have detailed information concerning the investigation and access to the case file materials only when the investigation was complete. In a letter of the same day the town prosecutor's office notified the third applicant accordingly and provided him with copies of three procedural decisions issued by it: the decision to open the criminal investigation; the decision to grant the third applicant victim status, and the decision to suspend the investigation.
43. On 11 November 2004 the third applicant requested the town prosecutor's office to reopen the investigation in case no. 23520016 and to carry out additional investigative measures. In particular, he asked the authorities to compile a photofit image of one of the abductors based on the statements by officer Ch. and to conduct an identification procedure.
44. By a decision of 12 November 2004 the town prosecutor's office granted the third applicant's request concerning the photofit image. The decision also stated that the third applicant was to be notified of it. It is unclear whether the requested investigative measures have been carried out by the authorities.
45. On 12 November 2004 the republican prosecutor's office informed the third applicant that the investigation in criminal case no. 23520016 had been resumed on an unspecified date.
46. On 18 December 2004 the third applicant wrote to the town prosecutor's office, submitting that on that day an unidentified man had told him on the phone that one of Bashir Mutsolgov's abductors was Mr L. T., an officer of the Kostroma Region department of the FSB. In connection with that information the third applicant requested the authorities to carry out the following investigative measures in criminal case no. 23520016: establishing whether L.T. was indeed an FSB officer in the Kostroma region; establishing whether he had been stationed in Ingushetia on 18 December 2003; having his photograph identified by officer Ch. and carrying out of a confrontation between officer Ch. and officer L.T. Lastly, the third applicant requested to be informed about the results.
47. By a decision of 20 December 2004 the town prosecutor's office granted the third applicant's request. On the same date the third applicant was informed about it. It is unclear whether the investigating authorities took any of the requested measures.
48. On 20 December 2004 the town prosecutor's office informed the third applicant that the investigation in criminal case no. 23520016 had been resumed on an unspecified date.
49. On 10 August 2005 the third applicant wrote to the town prosecutor's office seeking access to the case file materials in criminal case no. 23520016 and permission to make copies of them.
50. On 13 August 2005 the town prosecutor's office informed the third applicant that his request for access to the case file had been refused and that the applicant would be allowed to have access to it only when the investigation was complete.
51. It appears that the investigation into the abduction of Bashir Mutsolgov is still pending.
52. On 26 December 2003 the town prosecutor's office instituted a criminal investigation into the abduction of Bashir Mutsolgov under Article 126 § 2 of the Criminal Code. The case file was assigned the number 23520016.
53. On 30 December 2003 the third applicant was granted victim status in connection with the proceedings in case no. 23520016.
54. On being questioned as a victim on 30 December 2003, the third applicant submitted that on 18 December 2003 at about 3 p.m. unidentified persons wearing masks had abducted and taken away his brother, Bashir Mutsolgov. According to eyewitnesses to the abduction, about five unidentified persons had arrived in two blue VAZ-2106 vehicles without number plates and a white Niva vehicle whose number plates were covered with mud but the number 26 was visible on it.
55. During an additional interview as a victim the third applicant explained that on 18 December 2004, at about 10 a.m. a person unknown to him had called him on his mobile phone and had stated that one of the abductors of the third applicant's brother had been L. T., officer of the Kostroma regional or town department of the FSB.
56. According to the Government, Ya.Kh., interviewed on an unspecified date, stated that at about 3.50 p.m. on 18 December 2003 she had been in her house at 82 Oskanova Street, Karabulak. Looking out of the window she had seen several unidentified armed men in masks and camouflage uniforms force Bashir Mutsolgov into a Niva vehicle and leave thereafter in the direction of Ordzhonikidzevskaya. Ya.Kh. would not be able to identify those persons.
57. M.B., questioned as a witness on an unspecified date, submitted that at about 4.20 p.m. on 18 December 2003 he had been driving along Oskanova Street. As he was passing the Tashkent café, he had seen four unidentified people step into the road and stop the traffic. Other unidentified people put a young man into a white Niva vehicle and went off with him towards the Ordzhonikidzevskaya settlement, the VAZ-2106 vehicle following the Niva. When the two vehicles turned into Ryumakova Street, M.B. told an on-duty police officer at the Kursk-I GAI station what he had seen. The police officer had checked the documents of the drivers and passengers in the vehicles and let them through. In reply to M.B.'s question as to why they had not been stopped, the police officer answered that an FSB officer of the Ingushetiya department of the FSB had been in one of the vehicles.
58. According to the Government, officer Ch., questioned as a witness on an unspecified date, stated that on 18 December 2003 he had been on duty at the GAI station in Karabulak. M.B. applied to him, saying that armed persons driving two vehicles without number plates had arrested Bashir Mutsolgov and had been taking him in the direction of the GAI station. When Ch. stopped those vehicles the driver of the Niva showed a special permit allowing unhindered passage for his vehicle. Ch. did not pay attention to the name on the permit, as the driver was an officer of the Ingushetiya FSB department whom Ch. had previously met, most recently on 30 September 2003 at the scene of a crime at 6 Chkalova Street in Karabulak.
59. During an additional interview as a witness Ch. confirmed his earlier statement in full but submitted that, owing to the time which had elapsed since the abduction of Bashir Mutsolgov, he would not be able to identify the FSB officer who had shown him the special permit.
60. According to the Government, officers L., B., Ki., T., O. and Ka. of the GAI station, interviewed as witnesses, made statements similar to those given by officer Ch.
61. According to the Government, L.T., interviewed as a witness on an unspecified date, stated that, as a senior officer of the Kostroma regional department of the FSB, he had been stationed in Ingushetiya from 15 July to 1 November 2003. On 18 December 2003 he had been at his permanent post in the Kostroma Region.
62. The Government further submitted that unspecified authorities had requested that the Ingushetiya department of the FSB provide information in connection with officer Ch.'s statements. From their reply it followed that officers of that authority had not been at the crime scene at 6 Chkalova Street, Karabulak.
63. With a view to establishing Bashir Mutsolgov's whereabouts and obtaining information on whether he had been arrested or prosecuted, the investigation sent out requests [поручение] to numerous authorities, including unspecified prosecutors of the Ingushetiya Republic, heads of the FSB departments in the North Caucasus and the UGA military prosecutor's office. According to the replies of those State bodies, he was not under arrest or criminal prosecution and his whereabouts were unknown.
64. From the replies of the GOVD, and the remand centres in the Argunskiy, Nozhay-Yurtovskiy, Urus-Martanovskiy, Kurchaloyskiy, Itum-Kalinskiy, Sharoyskiy, Leninskiy, Shatoyskiy, Oktyabrskiy, Gudermesskiy and Groznenskiy districts, as well as several remand centres in the North Ossetia-Alania Republic, it followed that Bashir Mutsolgov was not detained in those detention facilities.
65. The investigation in the case concerning Bashir Mutsolgov's abduction had been repeatedly suspended for failure to identify those responsible and subsequently resumed with a view to verifying new information. It found no evidence that Bashir Mutsolgov had been abducted by State officials or that he was not alive. The investigation in case no. 23520016 was pending.
66. Despite specific requests by the Court, the Government refused to furnish any copies from the investigation file in case no. 23520016. They claimed that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure and would “breach the rights of the parties to the criminal proceedings”. Neither did the Government indicate the exact dates or provide any further details of the witness' interviews and other investigative measures referred to in their submissions to the Court.
67. On 14 March 2005 the third applicant complained to the Karabulak Town Court (“the Town Court”) that the investigation in criminal case no. 23520016 was ineffective. He submitted, among other things, that it had taken the district prosecutor's office an unjustifiably long time to launch the investigation; that the main witness, officer Ch., had only been questioned a month after the opening of the investigation and that the district prosecutor's office had failed to take the most basic investigative steps in due time. In particular, they had failed to interview some witnesses and to compile a photofit image of the abductor who had shown the special passage permit at the GAI station. Despite the information concerning L.T., the investigation had failed to check it with the relevant FSB departments. On a more general level, the third applicant complained that he had had to beg for each and every investigative measure and that the investigating authorities had carried them out only after numerous requests from him, which was demonstrated by his voluminous correspondence with the town prosecutor's office. Lastly, the third applicant stressed that the numerous omissions in the investigation had made it impossible to solve his brother's abduction and to identify and punish the persons responsible for it, and that the culprits had been able to conceal the traces of their crime forever. He also averred that those omissions had been in breach of the European Convention on Human Rights.
68. By a decision of 26 May 2005 the Town Court dismissed the third applicant's complaint as unfounded. The court found that, having received the third applicant's complaint about the abduction of Bashir Mutsolgov on 19 December 2003, the town prosecutor's office, had sent a query to the Ingushetiya department of the FSB on the same day to find out whether they had arrested the applicant's brother. The reply to that query had been received only on 26 December 2003 and on the same day the town prosecutor's office had instituted criminal proceedings into the abduction. The town prosecutor's office could not have instituted the proceedings earlier; it had had first to satisfy itself that Bashir Mutsolgov had not been lawfully arrested.
69. In respect of the remainder of the third applicant's complaints, the Town Court held as follows:
“...As to the submission about the belated interviewing of officer Ch., who had seen one of the abductors, the following should be noted.
It follows from the materials available to the court that ... [on 26 December 2003] the head of the GOVD had been requested to carry out operational and search measures aimed at liberating Bashir Mutsolgov and identifying his abductors. Analogous requests had been sent to [various departments of the Ministry of the Interior] of the Ingushetiya Republic. On the same day the UGA prosecutor and the prosecutors of the NOAR and the Chechen Republic had been requested to verify whether any law-enforcement authorities responsible to them had arrested Bashir Mutsolgov. Those requests had been repeatedly sent to those authorities in January 2004.... Those requests could not have given an immediate result. Before interviewing witnesses it is necessary to identify them. As early as January 2004 the deputy prosecutor of the Ingushetiya Republic had issued a written direction to for witness Ch. to be interviewed. Those directions have been complied with in full and within the time-limits set...
...
The complainant also submits that, despite the information implicating L.T. in the crime, the investigation had failed to verify it. However, from the prosecutor's submissions it transpires that the check conducted by the prosecutor's office had established that L.T. had not been involved in the abduction of Bashir Mutsolgov.
The suspension of the investigation in view of the failure to identify the persons having committed the abduction of Bashir Mutsolgov is in accordance with the requirements of Article 208 of the CCP.”
70. The third applicant appealed against the decision, submitting that the Town Court's reasoning concerning the promptness of the institution of the investigation was absurd. In particular, applying that reasoning, the investigating authorities would be free not to institute a criminal investigation for months if the authority which they had requested to provide the information failed to reply in due time. He further challenged the court's finding that the investigation had carried out all necessary steps and had taken them in due time. In particular, he stressed that the investigation had not confronted officer Ch. and officer L.T., although the former expressly stated that he had seen L.T. at the scene of an explosion where L.T. was working in a group of FSB officers and had identified himself as an FSB officer. Lastly, the third applicant pointed out that the photofit image of the abductor seen by officer Ch. had been compiled only a year after the opening of the investigation and after the applicant's repeated requests.
71. On 5 July 2005 the Supreme Court of the Ingushetiya Republic dismissed the third applicant's appeal, having found that the investigating authorities had taken all necessary measures to find the missing man and those involved in the abduction.
72. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-105689
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VAN VELDEN v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;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 1948 and lives in Rotterdam.
6. On 14 November 2007 the applicant was caught in the act of trying to defraud a bank by withdrawing a sum of money from someone else’s bank account using a forged identity document. He was arrested and placed in police custody (inverzekeringstelling) for three days.
7. On 16 November 2007 an investigating judge (rechter-commissaris) placed the applicant in initial detention on remand (inbewaringstelling) for a term of fourteen days.
8. On 28 November 2007 the Regional Court (rechtbank) of The Hague, following a hearing in camera, dismissed the applicant’s request for suspension (schorsing) of his detention on remand (voorlopige hechtenis) and ordered the applicant’s further detention on remand (gevangenhouding) for a further ninety days. The applicant was at that time detained in the remand centre (huis van bewaring) of The Hague (north wing of Scheveningen prison).
9. On 5 December 2007 the applicant’s counsel lodged a single appeal against both the refusal to suspend the applicant’s detention on remand and the order for the applicant’s further detention on remand.
10. On 20 December 2007 the Court of Appeal (gerechtshof) of The Hague rejected the appeal under both heads as out of time.
11. On 14 January 2008 the unit manager of the north wing of Scheveningen Prison replied to a query from the applicant’s counsel in the following terms:
“Dear Mr Van Zundert,
We have received your letter concerning the Regional Court’s decision in good order.
In response to your request, I wish to inform you that the Regional Court took the decision in question on 28-11-2007. On 29-11-07 the document was posted from the Regional Court, on 30-11-2007 we received the document in the late Friday afternoon post, and on 03-12-07 the document was delivered to the prison inmates administration in the afternoon, and on 04-12-07 the document was handed to Mr Van Velden. (see the copy of the official delivery record (akte van uitreiking)) ...”
12. It appears that the Regional Court’s decision refusing to order the suspension of the applicant’s detention on remand was served on the applicant in writing on Tuesday 4 December 2007 at 3.40 p.m. A copy of the official delivery record was submitted by the applicant, annexed to the application.
13. After the case was communicated, the respondent Government submitted a copy of an official delivery record showing that the Regional Court’s order for the applicant’s further detention on remand was served on the applicant on 29 November 2007 at 11.39 a.m. The document bears the applicant’s signature acknowledging receipt.
14. The Government have also submitted a copy of a written notice of appeal, which is in the following terms (emphasis in the original):
“Regional Court of The Hague
Legal remedy notice (Akte rechtsmiddel)
...
On 5 December 2007 there appeared at the Registry of this Regional Court
W.H. van Zundert
Advocate practising in Rotterdam
who declared that he had been specifically empowered by the person named hereafter to make the following statement, and stated, in the name of
name van Velden
first names Robertus Gemma Maria
...
that he appealed against the decision and against the rejection of his request for suspension taken by the Regional Court in camera on 28 November 2007.”
The document is signed by Mr van Zundert and by the registrar of the Regional Court.
15. It appears from the Government’s submissions that the applicant was sentenced to a term of imprisonment from which the time which he had spent in detention on remand was deducted in its entirety (Article 27 of the Criminal Code (Wetboek van Strafrecht), see paragraph 18 below). The applicant does not deny this.
16. The Code of Criminal procedure (Wetboek van Strafvordering), in relevant part, provides as follows:
“1. An order for further detention on remand, or for the prolongation thereof, shall be in force for a period of up to ninety days, to be determined by the Regional Court, starting at the moment of its execution. ...”
“1. The suspect can lodge an appeal with the Court of Appeal against the Regional Court’s decision to order or extend his further detention on remand no later than three days after the execution thereof. ...”
2. Within the same time-limit, the suspect can appeal against an order to prolong his further detention on remand, but only if he did not appeal against the order for detention on remand, nor against an earlier prolongation order. ...”
“...
2. An order for detention on remand shall enter into force as of the moment at which the suspect is detained for the purpose of the execution of that order or as of the time at which the execution of a different order for detention on remand, given in the same case, ends, as the case may be. ...”
“...
2. The applicant who has sought the termination or suspension of his detention on remand may lodge an appeal against a refusal of that request with the Court of Appeal once, within three days of the service of that decision. The suspect who has appealed against a decision refusing a request for suspension of detention on remand cannot afterwards appeal against a decision refusing the lifting of detention on remand. The suspect who has appealed against a decision refusing a request for suspension of detention on remand cannot afterwards appeal against a decision refusing the suspension of detention on remand. ...”
“1. Except as otherwise provided by law, an appeal or appeal on points of law shall be introduced by a declaration to be made by the person making use of the legal remedy at the registry of the court by which or within which the decision has been given. ...”
“1. Legal remedies, as referred to in Article 449, can also be made use of through the offices of:
a. an advocate, if he or she declares that he has been specifically empowered for that purpose by the person making use of the legal remedy; ...”
“1. If the person who wishes to make use of a legal remedy is detained in a remand centre, prison or custodial clinic, ... then he can also make use of the legal remedies ... by means of a written declaration submitted to the person in charge of the institution.
2. The person in charge of the institution shall have this declaration entered in a register kept for that purpose without delay, and then forward it to the registry of the court by which, or within which, the decision has been given, stating the date of entry in the register. The date on which the legal remedy is made use of shall be deemed to be the date of the entry in the register. ...”
17. The General Time Limits Act (Algemene Termijnenwet), in relevant part, provides as follows:
“A time limit prescribed by law of at least three days shall, if necessary, be extended so that it shall comprise at least two days which are not a Saturday, a Sunday or a public holiday.”
18. Article 27 § 1 of the Criminal Code (Wetboek van Strafrecht) requires the courts when sentencing in all cases to deduct from the sentence the time which the convicted person has spent in police custody and detention on remand.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4