ITEMID: 001-61122
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF WALSTON (No. 1) v. NORWAY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 on account of non-communication of lawyer's observations;No violation of Art. 6-1 with regard to the non-communication of the whole case-file;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicants were born in 1948 and 1945 respectively. They are a married couple. They live in Stryn, Norway.
9. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows.
10. In 1986 the applicants bought at the price of NOK 1 a property at Stryn in Western Norway. On the land was a large wooden house built in 1886, which had previously served as a hotel and school. In the mid-1980s the municipal authorities wished to destroy the building, which by then had been unoccupied for two decades. The applicants' initial plan was to renovate the building and then to sell it, but later they used the building as a hotel in the summer and rented it out to schoolchildren during the winter.
11. The renovation costs were initially estimated at NOK 3.5 million, of which approximately NOK 2.8 million was to be financed by mortgages. At the time it was difficult to obtain loans, but in the end the applicants were able to borrow from the Sandane Branch of the Bergen Bank, NOK 2.3 million, secured on the applicants' property in Stryn (gnr 45, bnr 108), and NOK 0.5 million, secured on their property (gnr 113, bnr 91 and 92) in Vågsøy. The Bergen Bank subsequently merged with Den norske Creditbank and became Den norske Bank (DNB) (hereinafter referred to as “the Bank”). Eventually the renovation, which was completed in 1988, became more extensive and expensive than expected, in part because of difficulties related to the installation of a fire prevention system. At an unspecified time in 1989 or 1990, the applicants stopped paying the mortgages and the interest on them, resulting in an overdraft of NOK 4 million. In addition, they apparently owed NOK 1.6 million to the State Fund for Development of Districts (Distriktenes Utbyggingsfond – hereinafter “the DUF”).
12. As the Bank considered that the applicants had failed to honour their obligations, it sought to have the applicants' property in Stryn and Vågsøy sold at an auction in order to recover its loans. In 1991 the Bank instituted proceedings for this purpose. On 31 March 1992 the proceedings concerning the property in Stryn were discontinued. In the meantime, on 8 January 1992 the Bank had obtained a decision by the Nordfjord Court of Execution and Enforcement (namsrett), the local district court, confirming an auction bid but that decision was later quashed by Gulating High Court (lagmannsrett) on 17 November 1993.
13. On 5 June 1992 the Bank again brought proceedings to have the Stryn property sold at auction, and on 16 June 1992 the Nordfjord Court of Execution and Enforcement granted the request.
14. In a complaint filed with the District Court on 19 May 1992 the applicants requested inter alia that Mr Justice Steintveit should stand down on account of his past employment with the Bergen Bank.
15. On 25 May 1992 Mr Justice Steintveit confirmed that he had been, for a period from July 1984 to January 1987, an employee of the Bergen Bank assigned to the Bank's legal department in Oslo. He had not deemed it necessary to inform the parties about this as he did not consider that it had any importance for his eligibility to sit in the case.
16. On 3 June 1992 the applicants submitted a complaint to the Nordfjord Court of Execution and Enforcement, asking Mr Justice Steintveit to stand down under Sections 108 and 109 of the Administration of Courts Act 1915 (Domstolloven) on the grounds that he had had close ties with the defendant Bank. On 12 June 1992 the complaint was returned to the applicants with an explanation that, at the time, no execution proceedings were pending before the court. On 2 September 1992 Mr Justice Steintveit informed the applicants that he could not see that his past employment relationship with the Bank was a reason for him to withdraw from the case.
17. On 3 November 1992 the Court of Execution and Enforcement granted a request by the applicants to have the auction proceedings suspended, pending a first instance decision in the proceedings mentioned under Section B below.
18. In April 1992 the applicants brought an action against the Bank, claiming compensation for breach of contract. According to the applicants, the Bank had undertaken to discharge their mortgage debts secured on the properties at Vågsøy which would have enabled them to earn money from their property during the years 1990 to 1992. The Bank brought a counter-action. At the opening of the oral hearing in January 1994, Mr Justice Steintveit asked the parties whether there were any objections to the District Court's composition. No objection was made. On 22 April 1994 the Nordfjord District Court (herredsrett), composed of Mr Justice Steintveit and two lay judges, unanimously found for the Bank, declaring that its mortgage securities were valid. The District Court noted that the Bank had agreed on 3 December 1990 to cancel the NOK 2.6 million mortgage security with respect to the property in Stryn. It further observed that on 28 November 1989 the DUF had requested the cancellation of the NOK 500,000 security with respect to the properties at Vågsøy but had withdrawn its request on 23 May 1991. In connection with the said request, the District Court referred to a letter of 22 April 1991 from the Bank manager to the DUF. The letter read:
“The question of to what extent the Bank has an obligation to remove the lien [on the Vågsøy property] has been considered at several levels within the Bank, including our legal department. We have also obtained a statement from an external Supreme Court Advocate who has been engaged by [the applicants]. No one has found any reason why the Bank should be required to follow the demands of the DUF.”
In its judgment the District Court criticised the Bank for having expressed itself in the way it did, affirming that there was insufficient basis in the contacts between the Bank and the applicants' lawyer at the time to draw such a conclusion. Despite this, the District Court found on the evidence before it that the mortgage securities remained valid.
Before the European Court the applicants have submitted that the letter of 22 April 1991 was kept secret from them “for over one year until 12 May 1992” (see at p. 9 of the 'Summary' attached to their observations of 19 October 2000), and also that they “did not discover the proof until they subpoenaed and received the documents during May 1997” (observations of 31 May 2002).
On appeal by the applicants, the judgment of the District Court was unanimously upheld by the High Court on 4 October 1995. On 7 May 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicants leave to appeal. It does not appear that the applicants challenged the proceedings before the District Court on account of Mr Justice Steintveit's participation.
19. On 25 January 1995 the Court of Execution and Enforcement decided to resume the auction proceedings relating to the applicants' property in Stryn which, as mentioned under Section A above, had been suspended on 3 November 1992. This decision was upheld by the High Court on 16 May 1995 and, on 7 July 1995, the Supreme Court's Appeals Selection Committee refused the applicants leave to appeal.
20. On 15 November 1995 the property in Stryn was sold at an auction. The applicants made the highest bid, between NOK 1.6 and 1.7 million, but since they were not able to offer security in time, the property went to the next highest bidder, the Bank, for approximately NOK 1.5 million, which was later confirmed on 8 March 1996 as stated below. The auction was followed by two sets of proceedings, one concerning Mr Justice Steintveit's refusal to withdraw, the other concerning the Bank's auction bid.
21. On 20 December 1995, in connection with proceedings relating to the confirmation of the Bank's auction bid, Mr Justice Steintveit of the Nordfjord Court of Execution and Enforcement decided to reject a further request made by the applicants that he withdraw from the proceedings. In his decision the judge stated that, from July 1984 to December 1986, he had been an employee of the Bergen Bank assigned to the Bank's legal department in Oslo. During this period he had not been involved with the applicants' loan agreement and both the agreement and the persons concerned had been unknown to him. Nor had he had any dealings with the former director of the local branch in Nordfjordeid who had pursued the case against the applicants. After ceasing to work with the Bank, the judge had maintained an ordinary customer relationship with it but had, beyond that, entertained no special links. On entering office as a judge in January 1987 he had, as a matter of caution, imposed on himself a rule not to deal with cases to which the Bank was a party for the next three years. The applicants' case was brought before the Court of Execution and Enforcement after the expiry of the three-year period. It had never been his opinion that his previous employment relationship with the Bank was a circumstance capable of calling into doubt his impartiality. Until the applicants' complaint of 12 December 1995, he had thought that they were of the same view. He saw no grounds for arriving at a different conclusion as regards his ability to sit.
22. The applicants appealed against this decision to the High Court, which upheld it on 29 March 1996.
23. The applicants subsequently sought to appeal against the High Court's decision but, on 3 June 1996, the Supreme Court's Appeals Selection Committee quashed the decision and gave a new decision to the effect that the appeal from the first instance court was to be dismissed by the High Court. It observed that, following the 8 March 1996 decision mentioned below, the procedure and the merits of that decision ought to have been challenged in the same appeal.
24. On 8 March 1996, the Nordfjord Court of Execution and Enforcement, sitting with a single assistant judge, confirmed the sale to the Bank of the property in Stryn.
25. The applicants appealed to the High Court, which, after holding a hearing on 11 August 1997, upheld the decision by a judgment dated 2 September 1997. The High Court further rejected the applicants' contention that the first instance judge had been disqualified.
26. On 20 March 1998 the Supreme Court's Appeals Selection Committee refused the applicants leave to appeal.
27. In November 1995 the Bank made a fresh application to the Court of Execution and Enforcement for the compulsory sale of the applicants' property in Vågsøy. The applicants objected and again challenged the first instance judge's eligibility to adjudicate their case and requested him to withdraw.
By decision of 25 June 1996, the judge rejected their request and granted the Bank's application. The judgment included the following reasons:
“The plaintiff has sent notice that a claim for enforcement will be made if the claim is not complied with. The said notice is in accordance with the requirements laid down in section 4-18 of the Enforcement Act (tvangsfullbyrdelsesloven). The application has been lawfully served on the defendants.
As explained above, the defendants have had objections to the application for forced sale. The court finds it appropriate to deal firstly with the objection concerning ability to sit.
The said objection is linked to the circumstance that the undersigned judge has been employed by [the Bank].
The employment relationship that has been invoked concerns the fact that the undersigned was employed as a lawyer in the Legal Department of [the Bank], Oslo, for a period from July 1984 to December 1986. During this period I had nothing to do with the loan commitment to Møyfrid and Michael Walston. I had no knowledge of either the matter or the persons until the case was submitted to me in my capacity as judge. Nor did I, as an employee of the Oslo office, have anything to do with the persons in the Bank who processed the loan commitment to Walston. Since my resignation I have maintained my relationship as a client of [the Bank], ...but have otherwise had no special connection with the Bank or its employees.
Several disputes between the parties deriving from the loan commitment have been brought before the courts. The underlying dispute was heard by the undersigned judge on 22 April 1994, and a final and enforceable decision for the Bank was taken by the High Court in its judgment of 4 October 1995.
The Walstons omitted to call the undersigned's impartiality into question during the district court's hearing of the main case, even though they had been explicitly informed of the employment relationship as early as during the preparatory proceedings in 1992. However, their objection was put forward in a written plea dated 12 December 1995 by their counsel, Mr Fjeld, during the hearing of other enforcement proceedings between the same parties, cf. case no. 95-00301 C. On that occasion, the objection was not upheld by the district court, and after a further interlocutory appeal, the Appeals Selection Committee of the Supreme Court decided on 3 June 1996 that the question of disqualification could not be the subject of an interlocutory appeal because it could serve as a ground of appeal in the event of an appeal proper against the affirmation order.
Since, on the previous occasion, the defendants raised the point that the undersigned withdrew from other cases involving [the Bank], I wish to mention briefly that on entering office as a judge in January 1987 I chose to impose a precautionary rule upon myself. This consisted in my refraining, for a period of three years, from hearing cases in which [the Bank] was a party. I chose to take the date on which the case came to court as the starting point for the three-year period, and the application of this rule led to my finding it appropriate to withdraw from a few cases. The case between Møyfrid and Michael Walston and the Bank came to court after the expiry of the self-imposed three-year limit.
On the basis of the above, I the undersigned would conclude that my former employment relationship with [the Bank] cannot be regarded as a special circumstance which might serve to weaken confidence in my impartiality. Until their counsel's, Mr Fjeld's, written plea of 12 December 1995 in case no. 95-00301C, it was my understanding that Møyfrid and Michael Walston also took the same view.
Accordingly, the request that the undersigned judge disqualify himself from the case is rejected.
As regards the objection concerning the ground for enforcement, the court refers to the judgment of 22 April 1994 of the Nordfjord District Court. Point 2 of the conclusion of the judgment on the counter-claim reads as follows:
'2. The mortgage bond from Møyfrid and Michael Walston, in the amount of NOK 500,000, judicially registered on 10 July 1986 and secured on the property gnr. 113, bnr. 91 and 92 in Vågsøy, is binding on Møyfrid and Michael Walston and may be used as a ground for enforcing recovery of the debt they owe to Den norske Bank AS.'
The judgment is now a final and enforceable decision since the High Court has upheld it and the Appeals Selection Committee of the Supreme Court has refused leave to appeal on 7 May 1996 ....
Accordingly, the court finds that the objections raised by Møyfrid and Michael Walston concerning the ground for enforcement have been the subject of a final and enforceable decision and that the ground for enforcement may thus serve as the basis of the application for forced sale. As regards the objections indicated by the defendants regarding the ground for enforcement independently of the outcome in the Supreme Court, the said objections have not been specified and consequently the court has no cause to deal with them.
The court finds that the conditions for forced sale are fulfilled and grants the application. ...
C o n c l u s i o n:
1. The request that District Judge Gunnar Steintveit disqualify himself ... is rejected.
2. The application for forced sale of [the property] ... in the Vågsøy municipality is granted.
3. Enforced payment is to be effected by a forced sale with the help of an assistant, cf. section 11-12 of the Enforcement Act.
4. The decision regarding forced sale is to be judicially registered in respect of the property ... in the Vågsøy municipality.”
28. On 21 July 1996 the applicants appealed against this decision to the High Court, stating inter alia:
“The appeal is firstly limited to point 1 of the conclusion- the issue of the disqualification of the judge of the Court of Execution and Enforcement (District Court judge). However, were the appellants to succeed on this point, this will necessarily result in the last three items in the conclusion also being quashed, since the case will thus have been dealt with by a disqualified judge.
The appeal is grounded on a misapplication of law.
Since it is a holiday period and the office is almost completely closed, and because the undersigned counsel will be absent from the office in July for work-related reasons, the appeal submitted within the time-limit of 24 July will have to be brief. A supplementary written plea will be prepared, and I take the liberty of requesting that the time-limit for submitting such a plea be set for the end of the court vacation, 15 August 1996.”
29. In the proceedings the High Court received from the applicants' lawyer extensive observations dated 23 August and 5 September 1996, and from the Bank's lawyer observations dated 10 September 1996. The latter led the applicants' lawyer to submit further comments on 23 September 1996, developing further arguments on the issue of disqualification, including on the District Court judge's awareness of the applicants' objection to his participation. It further contained the following observations:
“The legal system does not differentiate between more and less 'serious' cases. Neither on the basis of the amount or the type of case can one say that a judge who is on the 'borderline' as regards qualification should be 'passable' in certain minor cases, but not in major ones.
In this litigation, too, there are various serious questions that may be brought up for consideration. And in any circumstance it is the judge of the Court of Execution and Enforcement who ultimately determines whether a given offer is to be confirmed or not.
As regards the property in Vågsøy, it remains to be resolved whether the mortgage bond concerned is of a subsidiary nature, i.e. whether it is 'only' security for any uncovered debts from the hotel operations in Stryn. In that event, it is necessary to ascertain how much [the Bank] will recover in Stryn – in one way or another – before ascertaining whether there is any residual amount to be covered by selling the property in Måløy.
And before that stage is reached, various preliminary assessments and decisions may have to be made in which the judge's qualification is not a question of secondary importance.
In the second paragraph on page 1 of the reply [of 10 September 1996], it is stated that 'the appellants have a debt to [the Bank] of over NOK 6,000,000' – in other words, over six million kroner!!
I admit that I am new to this litigation and may not have a full overview of absolutely every detail. But amounts of this nature almost knock me flat since they in no way whatsoever resemble the amounts that I have so far been able to note in this litigation.
That is why the adversary party is now being pressed upon to give an account of and to substantiate the manner in which it has computed this claim. Then there is the question whether the adversary party contends that this entire amount has been secured by the mortgage bond, or merely parts of it.
The significance of this question is enormous. When, at some point in the future, the Gulating High Court in all likelihood sets aside the confirmation of the give-away price for the hotel in Stryn (pursuant to the previous Enforcement Act), it will be relevant to realise assets in a business-like manner in order to settle accounts with [the Bank].
Whether or not a general settlement is possible will naturally depend on such questions as
a. what is the debt to the [Bank] in Stryn that is secured by a mortgage bond?
b. what is the amount of the total claim against the Walston family ?
c. can a forced sale be effected at all in the Vågsøy municipality until a further financial settlement has been reached in Stryn ?; cf. evidence: 1. Letter of 14 July 1986 from [the Bank] to the Walstons, affirming that the bond in the present case is merely in the nature of 'formal collateral'; regardless of how many subsequent judgments have been pronounced to the effect that the Walstons are not entitled to have the said bond discharged under the prevailing circumstances.
In considering these questions – and several others that may arise during the further hearing of the case – it is naturally not of secondary importance who the judge is.”
30. On 9 October 1996 the Bank's lawyer filed additional observations, which were not communicated to either the applicants or their lawyer, until they were notified of the High Court's decision of 3 December 1996 mentioned below. The 9 October 1996 document read:
“I refer to the written plea of 23 September 1996 from the appellants. The plea gives rise to a need for some clarification, but most of the content has been commented on previously.
On page 2 the appellants contend that the major grounds given for the decisions in this and another case contain direct errors that have allegedly been revealed. It is not correct, however, that Mr Justice Steintveit has given any inaccurate information in this case.
The District Court Judge has been aware of the objections that have been raised since 1992, but he was not aware that specific objections relating to disqualification had been raised in those cases where it is so contended. Here I refer to page 4, penultimate paragraph, of the plea, from which it appears that their counsel, Mr Howlid, did not raise during the main hearing any objections relating to disqualification, despite the fact that the Walstons allegedly instructed him to do so.
It is completely incomprehensible to me that the Walstons now claim that their counsel, Mr Howlid, acted contrary to his instructions in the District Court when they themselves were present when it happened and did not protest in any way.
As regards consideration of the disqualification issue in the High Court, I abide by what I have said previously about the matter. The High Court was not requested, either in the written plea or in court, to deal with the disqualification issue, as it was contended both by Lise Kvinsland, counsel, in the written plea and by Møyfrid Walston that, since there would be a completely new trial in the High Court, it was not necessary to get a ruling on the merits of this issue. Thus there was no adjudication of any claim that the District Court had made a procedural error due to disqualification and that the District Court's judgment should therefore be quashed and the case referred back to it for fresh examination. It is however correct that Møyfrid Walston stated that she was still of the view that the judge was disqualified.
As regards the question whether or not the mortgage bond is of a secondary nature, I refer to the security agreement according to which all the mortgaged properties are to secure any and all indebtedness between the parties. The amount of the debt was dealt with in the main case. In this context it is not necessary to document whether or not it exceeds NOK 6 million (the figure was the result of an oversight) as it is sufficient to point out that after depreciation and the grant from the Regional Development Fund, the outstanding debt was NOK 2.3 million, and that after depreciation no interest or instalment payments have been made with the exception of an insignificant instalment. Given that the bid established for the property in Stryn is for NOK 1 550 000, it goes without saying that the question whether the bond is of a secondary nature or not is of no importance.
Evidence: 1. Ruling by the Nordfjord Court of Execution and Enforcement of 8 March 1996 in case no. 95-00301 C.
The correct amount of the debt is:
Principal and interest as per 1 October 1996 NOK 4,627,781.80
Costs awarded, etc., with interest NOK 322,796.45
Expenses NOK 11,630.00
Sum NOK 4,962,208.25
I apologise for any inconvenience that my oversight may have caused.
The property in Stryn has been sold for an amount that is considerably less than the principal. Thus it is obvious that the question whether or not the mortgage bond is secondary is of no importance in this case. However, the fact is, as noted above in the security agreement, that all the properties are to secure any and all indebtedness between the parties, so it is permissible to realise any or all of the mortgaged property, cf. section 1-12, first paragraph, of the Mortgages and Pledges Act (panteloven).
If it is probable that the amount realised by selling the properties would exceed the amount necessary to cover the mortgagee's claim, a specific calculation must be made and a proper sequence for such realisation must be drawn up, as provided in section 11-19 of the Enforcement Act. Section 84 of the former Enforcement Act made some provision for a similar procedure.
At any rate it is only in cases where there is a danger of excessive coverage that it is necessary to draw up any sequence in connection with realisation. There is no such danger in the present case.
Written plea in 4 – four – copies.”
31. On 25 October 1996 the applicants' lawyer ceased to represent them. By a letter of 5 November 1996, referring to the Vågsøy case, the applicants informed the High Court of this fact and requested it to provide them with “a copy of all documents in the interlocutory appeal case directly to [them]”. In another letter of the same date they requested “all the documents concerning” the Stryn case.
In a letter of 22 November 1996 to the High Court, they renewed their request for the production of documents in both cases, invoking the approaching time-limit for making supplementary submissions in the Stryn case. They added that their former lawyer had refused to provide them with the documents.
32. On 3 December 1996 the High Court upheld the District Court's decision of 25 June 1996. It had particular regard to the fact that, while employed by the Bank, Mr Justice Steintveit had not been involved with the loan agreement concerned, and that a considerable time had elapsed between the date of his leaving the Bank (1986) and the date when the Bank requested the compulsory sale of the applicants' property (1995). Moreover, the Bank was a large company with branches all over the country, whose employees – one might expect – would have a less personal relationship to their employer than would normally be the case with smaller companies. While Mr Steintveit was assigned to the Oslo branch, the loan agreement had been arranged at the local branch in Sandane. Furthermore, the applicants had not disputed his ability to sit in 1994 when he dealt with the dispute regarding the underlying circumstances.
33. On 4 December 1996, the day after its above-mentioned decision, the High Court transmitted to the applicants a copy of the case-file. On 5 December they complained to the High Court about the procedural error, stating the following:
“We refer to the letter dated 4 December 1996 in which we were finally sent the documents in the interlocutory appeal case. This in fact occurred one day after the ruling on the interlocutory appeal was given.
This is a serious procedural error on the part of the Gulating High Court for which we hold the judges responsible.
The reason why we asked to be sent the documents in the case was because Mr. Trygve Fjeld is no longer our lawyer.
We did not have an overview of the documents that had been submitted to the court and, in order not to suffer legal prejudice, it was imperative for us to obtain the documents from the court. See letters of 5 November 1996 and 25 November 1996.
As I now look through the documents that we received today, I see that several things are missing and we are seeing a written plea by Mr. Eriksen dated 9 October 1996 for the first time.”
34. Subsequent to further exchanges, on 10 December 1996 the High Court sent to the applicants copies of their lawyer's writ of appeal and supporting arguments dated 23 August 1996. As regards the Bank's lawyer's submissions of 9 October 1996, the High Court explained that, since the submissions did not contain any information of importance to the case, they had not been communicated until notification of the High Court's decision. As their lawyer at that time had ceased to represent them, it had not been sent to him.
35. On 22 December 1996 the applicants appealed to the Supreme Court's Appeals Selection Committee, requesting that the High Court's decision be quashed and that the case be referred back to it for a fresh examination. On this occasion the applicants requested to be given until 6 January 1997 to supplement their appeal, which they did on that date, setting out their arguments, notably on alleged procedural errors on account of Mr Justice Steintveit's participation and the High Court's omission to communicate case-documents, and attaching an analysis of procedural errors allegedly committed by the Nordfjord Court of Execution and Enforcement.
36. The applicants complained that, in the proceedings before the High Court, the latter had given a decision on 3 December 1996 without having communicated the case-documents to them, as requested on 5 November 1996 and again on 22 November 1996. The applicants were then not aware of the observations of 9 October 1996 submitted by the Bank's lawyer, on which they had comments of importance for the outcome of the case. The observations had contained an admission to the effect that the District Court judge had since 1992 been aware of the applicants' objections to his dealing with their case. Moreover, whilst the Bank's observations of 10 September 1996 had stated that the applicants' debts had exceeded NOK 6 million, those of 9 October had indicated that they amounted to barely NOK 5 million.
37. On 4 February 1997 the applicants submitted additional observations commenting on a writ filed by the Bank on 29 January 1997 and expressing their wish that the issue of the judge's ability to sit be given careful examination. Moreover, they informed the Supreme Court that because of the shortage of time they had not been able to finalise the attachments to their analysis of 6 January 1997, and that these would be sent by ordinary mail on 5 February 1997.
38. On 6 February 1997 the Supreme Court's Appeals Selection Committee rejected the applicants' appeal.
39. As regards the applicants' complaint about the High Court's omission to communicate the observations of 9 October 1996, the Committee reiterated that the Bank had in a previous case a legally enforceable judgment according to which the mortgage securities invoked were binding on the applicants and could be used as a ground for compulsory sale of the properties for recovery of debts that they had vis-à-vis the Bank. Moreover, the appeal before the High Court had been limited to the question of the first instance judge's impartiality. Thus, the Committee found, the observations of 9 October 1996 contained no information of any importance for the decision to be taken by the High Court. It concluded that the High Court's omission to communicate the observations did not constitute an error of procedure for the purposes of Article 401, second paragraph of the Code of Civil Procedure (tvistemålsloven). Nevertheless, the Committee added, a party's pleadings should as a rule be communicated to the other party or the latter's representative.
40. As regards the High Court's omission to respond to the applicants' request for a copy of all the appeal documents, the Committee recalled that, under Article 135 of the Code of Civil Procedure, the parties may request copies of those documents which concern the case. It observed that in the circumstances at hand, where the case had long since been ready for adjudication by the High Court, the latter was not wrong in deciding the case before transmitting a copy of the bulky case-file to the applicants. In any event, this could not constitute an error of procedure which affected the High Court's decision.
41. According to the applicants, subsequent to the above decision, the Supreme Court returned to them their observations of 4 February 1997, with the enclosures, stating that a decision had already been taken in the case.
42. Article 135 of the Code of Civil Procedure reads:
“The parties are entitled to examine at the office of the court, court minutes and documents relating to the suit, and may demand copies of them.”
43. Article 401, second paragraph, provides:
“In the event that new factual information, which is not obviously without significance, has been invoked, the court shall inform the adversary party thereof. Should it find reason to do so, the court may submit the matter for comment to the court which has taken the decision under challenge.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70733
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ACCARDI AND OTHERS v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Salvatore Accardi, Mr Stefano Manzini and Mrs Teresa D’Antonio, are Italian nationals, born in 1943, 1963 and 1960 respectively. The first two applicants are currently in Florence Prison, while the third is in Monza Prison. Mr Accardi was represented before the Court by Mr L. Bisori, a lawyer practising in Florence; Mr Manzini and Mrs D’Antonio were represented by Mr M. Fusi, also a lawyer practising in Florence.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant and the third applicant are the parents of minors X and Y, twins born on 25 December 1991. The parents live apart. The third applicant lives with the second applicant.
Following a complaint lodged by the first applicant alleging that X and Y had been subjected to sexual abuse by their mother and the second applicant, the Florence Criminal Court decided to place the children in State care. In October 1997 the court ordered that the children be returned to the family of their father, who was living with Mrs P at the time. However, in January 1998 X informed his schoolteacher that Y had been subjected to further abuse, this time by the children’s father. Proceedings were instituted against the three applicants on charges of sexual abuse of minors.
On 21 September 1998 the Florence investigating judge (giudice per le indagini preliminari - GIP) decided to hear evidence from X and Y in camera (incidente probatorio). The hearing took place on 16 October 1998 in the presence of the investigating judge and a psychologist, Mrs B. The applicants, their lawyers and the representative of the Public Prosecutor’s Office were in an adjacent room behind a two-way mirror, enabling them to hear what was being said and observe the conduct of the witnesses. During the hearing Mrs B. put some of the questions to the children.
X confirmed having been abused by their mother and the second applicant, and gave details of the sexual abuse to which Y had allegedly been subjected by their father. Y was also questioned by Mrs B. However, when the psychologist asked her to specify what used to happen with her parents, Y replied that she was too ashamed. The investigating judge then decided to leave the hearing room and follow the questioning from behind the two-way mirror. Y subsequently gave some details concerning the abuse perpetrated by the first and second applicants. When she became very upset, the questioning was discontinued.
On 25 May 1999 the applicants were committed for trial before the Florence Criminal Court.
The proceedings took place in camera. Three hearings were held, on 10, 16 and 18 November 1999. Numerous witnesses who had been in contact with X and Y at the time of the events were questioned. The court ordered the videotape of the hearing of 16 October 1998 to be produced.
In a judgment of 18 November 1999 the Florence Criminal Court sentenced each of the applicants to twelve years’ imprisonment.
The court noted that there were two types of evidence that weighed against the defendants. First, there were the statements made by X and Y at the hearing on 16 October 1998; second, there was the evidence of the persons questioned during the proceedings, who had second-hand knowledge of the events detailed by the victims, having been taken into their confidence. While the victims’ statements ranked first in importance, the hearsay evidence had a role to play in checking the consistency of the versions provided by X and Y with the other particular circumstances of the case.
In the view of the court, the details provided by X and Y demonstrated that they had indeed been subjected to abuse, as it would have been difficult for children so young to invent details of sexual practices known only to adults. As the videotape of the hearing of 16 October 1998 showed, X and Y, through their general demeanour and the nature of their replies, displayed signs of profound unease and great distress when confronted with the memory of their painful experiences. Their statements therefore constituted strong evidence in the case against the defendants.
It further emerged from the evidence given during the proceedings that X and Y had recounted details of the abuse to third parties, such as members of their host family, the first applicant’s live-in partner, a home teacher and a schoolteacher. According to the schoolteacher and to a social worker, X and Y showed signs of disturbed behaviour, a finding confirmed by memoranda from the social services department. This evidence corroborated the children’s statements, with the result that the applicants were found guilty.
The applicants appealed.
The first applicant confined himself to challenging the assessment of the evidence and the interpretation of the statements made by X and Y.
The second and third applicants argued that, in the course of the proceedings at first instance, the court had declined to hear evidence from an expert witness instructed by the defence who would, they contended, have been able to shed light on the circumstances surrounding the children’s statements, in order to establish whether and to what extent those circumstances might have influenced their version of events. Furthermore, the court should have ordered a psychologist’s report on the children to determine whether they showed signs of having been sexually abused. The second and third applicants also requested that the children be questioned again in the presence of child psychology experts, not just about the abuse itself, but also about the existing family relationships.
According to the second and third applicants, it was likely that the children, whose early years had been spent in a difficult and precarious situation, had simply witnessed the sexual practices of the adults and later imagined that they had themselves been involved in the acts in question. This explanation was especially plausible, they argued, given that the questions put by Mrs B. at the hearing of 16 October 1998 had been of a leading nature. They further submitted that the investigating judge had prevented the parties from asking the children questions.
The second and third applicants appended a psychologist’s report to their notice of appeal which concluded that, in view of the manner in which they had been obtained, the children’s statements should not have been used as the sole basis for convicting the defendants.
By a judgment of 28 September 2000, the Florence Court of Appeal reduced the third applicant’s sentence to nine years’ imprisonment. It upheld the remainder of the decision at first instance.
The Court of Appeal observed that the versions of X and Y contradicted each other in places. In addition, the children had been vague as to when exactly the abuse had taken place. However, the defence’s argument that the children had confused reality and imagination was unfounded, bearing in mind the nature of the details recounted by X and Y and the signs of distress they had manifested during and after the hearing. Furthermore, the children could not have been expected to open up completely to a psychologist they had just met and to a judge – the investigating judge – whom they did not know. Accordingly, the statements made at the hearing of 16 October 1998 needed to be assessed in conjunction with the details confided by the children to people around them, who had been questioned during the proceedings at first instance. That process placed the contradictions in context and proved that the abuse complained of had been perpetrated by the applicants.
The Court of Appeal observed further that there were no grounds for doubting the children’s ability to describe their experiences, and that their statements had been, by and large, consistent. In the light of those considerations, there had been no need for a psychologist’s report on the children, who had already been kept under observation for a long time by a psychologist employed by the social services department. A further hearing would have been no more than a re-run of the hearing of 16 October 1998. In that connection the Court of Appeal stressed that the applicants and their lawyers had taken part in the hearing in question and had had the opportunity of asking the children any questions they considered necessary to their defence, through the intermediary of the investigating judge.
As to the manner in which the hearing of 16 October 1998 had been conducted, the Court of Appeal noted that Mrs B. had adapted her approach to the degree of participation and cooperation of the children. The psychologist had thus put more specific questions to X, who appeared to be more open than Y.
The applicants lodged an appeal on points of law.
The first applicant complained first of all that the questioning of X and Y had been invalid, observing that the questions had been put to the children by Mrs B. rather than by the investigating judge, and had been put in a leading manner. The first applicant further submitted that the Court of Appeal had lent excessive weight to the evidence of persons with only second-hand knowledge of the facts, and argued that the reasons given for the judgment of 28 September 2000 had been illogical and contradictory.
The second and third applicants objected that their convictions had been unsafe, on the ground that no decisive proof had been produced. They referred in particular to the decision not to question the victims again or to order a psychologist’s report on the children and another one to determine whether X and Y had been fit to give evidence. The second and third applicants also alleged that the reasons given for the judgment of 28 September 2000 had been illogical and contradictory, as their guilt had not been proven beyond any reasonable doubt.
In a judgment of 22 February 2002, deposited with the registry on 24 April 2002, the Court of Cassation dismissed the applicants’ appeals, finding that the Court of Appeal had given logical and correct reasons for its findings on all the points at issue.
The Court of Cassation observed that it had been for the trial and appeal courts to decide whether further evidence (such as the expert reports requested by the defendants) was required, and that a further hearing of the children had not been necessary. Moreover, the questioning of X and Y had been conducted by the investigating judge, not by Mrs B.; the fact that some questions had been put directly by the psychologist was irrelevant. In any event, under Italian law, failure to adhere to the methods laid down for questioning did not invalidate the proceedings.


ITEMID: 001-69142
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GORDYEYEV v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Vladimir Mikhaylovych Gordyeyev, is a Belarusian national who was born in 1957 and lives in Baranovitchi, Belarus. He was represented before the Court by Mr J. Woźniak and Mr W. Hermeliński, lawyers practising in Warsaw, Poland. The respondent Government were represented by their Agents, Mr K. Drzewicki, and subsequently by 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 16 June 1997 the Prosecutor of the Republic of Belarus in the Brest Region (Следователь Прокуратуры Республики Беларусь Ђрестскoй области) ordered that the applicant be detained in connection with charges of forgery of documents and selling a stolen car that had meanwhile been laid against him. The prosecuting authorities further issued a search warrant in respect of the applicant. Having established that the applicant had left the country, the Belarusian authorities issued in his respect an international search and arrest warrant.
On 7 July 1997 the Prosecutor of the Republic of Belarus, relying on Article 66 of the Agreement of 26 October 1994 between the Republic of Poland and the Republic of Belarus on Legal Assistance and Legal Relations in Civil, Family, Labour and Criminal Matters (Umowa między Rzecząpospolitą Polską a Republiką Białoruś o pomocy prawnej i stosunkach prawnych w sprawach cywilnych, rodzinnych, pracowniczych i karnych) (“the 1994 Agreement”), asked the Polish Ministry of Justice to extradite the applicant.
On 18 July 1997 the applicant was arrested in Warsaw under the above-mentioned international search and arrest warrant and, on the next day, brought before the Warsaw District Court (Sąd Rejonowy). The court, having regard to the provisions of the 1994 Agreement, ordered that the applicant be detained pending extradition until 18 August 1997.
On 29 July 1997 the District Court prolonged the applicant's detention until 18 October 1997.
On 11 August 1997 the Warsaw Regional Prosecutor (Prokurator Wojewódzki) asked the Warsaw Regional Court (Sąd Wojewódzki) to issue a ruling as to whether the applicant's extradition to Belarus was permissible.
On 9 September 1997 the applicant applied for asylum.
On 15 September 1997 the applicant's lawyer requested the Regional Court to adjourn consideration of the extradition request until the termination of the asylum proceedings. Alternatively, the applicant's lawyer requested that the court rule against the applicant's extradition. He also requested the applicant's release.
On 18 September 1997 the Regional Court considered the matter. In view of a formal shortcoming in the extradition request, it decided to ask the Belarusian authorities, through the Ministry of Justice, for rectification of that shortcoming. That request was submitted to the Ministry on 25 September 1997. The Regional Court further asked the Minister of the Interior and Administration for information on whether the applicant had applied for asylum in Poland. It also dismissed the applicant's request for release, considering that there was a risk that he would leave Poland.
On 23 September 1997 the Regional Court requested the Ministry of the Interior and Administration to provide information on the asylum proceedings.
On 28 September 1997 the applicant requested the Regional Court to release him on bail. He argued that the charges against him were unsupported by any evidence and that they in fact constituted a form of punishment for his political activities in a Belarusian opposition movement. That application was referred to the Warsaw Regional Prosecutor who, at that stage of the procedure, was competent to deal with it. On 8 October 1997 the Regional Prosecutor refused to release the applicant on the grounds that the charges against him had been sufficiently supported by evidence produced by the Belarusian authorities and that there was a risk that he would go into hiding.
The applicant appealed to the Warsaw Prosecutor of Appeal (Prokurator Apelacyjny) on 17 October 1997. He argued that he had never gone into hiding, which, he added, was clearly shown by the fact that his stay in Poland was, and had been, legal, that he had had a place of residence and that he had worked in Poland. He also stressed that he had suffered from depression and had received treatment in Poland. On 3 December 1997 the Prosecutor of Appeal upheld the decision of the Regional Prosecutor.
In the meantime, on 16 October 1997, the Warsaw Regional Court granted the Regional Prosecutor's application for the applicant's detention to be prolonged. The Court ordered that the applicant be held in custody until 18 January 1998.
The applicant appealed on 23 October 1997. He submitted, inter alia, that, pursuant to Article 535 § 4 of the Code of Criminal Procedure (“the 1969 Code”), his detention should have been lifted because the requesting State had not produced the necessary evidence in support of the extradition request within one month. He stressed that the Regional Court's request for the rectification of formal shortcomings had still not been forwarded to the Belarusian authorities. It was posted, after 7 days, to the Ministry of Justice, which subsequently decided that it had no competence to deal with the matter and referred it to the State Prosecutor (Prokurator Krajowy). The State Prosecutor decided that he had no competence to handle it either. He referred it back to the Ministry of Justice on 20 October 1997. The applicant concluded that his detention was no longer lawful.
On 31 October 1997 the contested decision was upheld by the Warsaw Court of Appeal (Sąd Apelacyjny). The court stressed that the applicant's detention was the only preventive measure which could ensure the proper conduct of the extradition proceedings.
On 13 November 1997 the Regional Court again requested the Ministry of Justice to enquire with the Belarusian authorities about rectification of their extradition request.
On 25 November 1997 the Ministry of the Interior and Administration informed the Regional Court that the asylum proceedings were pending.
On 16 January 1998 the Regional Prosecutor submitted to the Warsaw Regional Court supplementary information produced by the Belarusian authorities.
In the meantime, on 13 January 1998, the Warsaw Court of Appeal had prolonged the applicant's detention until 18 April 1998. It relied, inter alia, on the risk that the applicant would go into hiding.
The applicant appealed to the Supreme Court (Sąd Najwyższy) on 19 January 1998. He asked to be released on bail and argued that his detention had been unlawful because the Belarusian authorities had not yet rectified shortcomings in their request for extradition. He alleged, inter alia, a violation of Article 535 § 4 of the 1969 Code and a breach of Article 5 § 3 of the Convention.
On 24 March 1998 the Supreme Court rejected the appeal. It considered that the lifting of the applicant's detention was not, as he claimed, mandatory pursuant to Article 535 § 4 of the 1969 Code because the application of that provision was excluded by a special rule laid down in Article 541. In consequence, the applicable provision was Article 73 of the 1994 Agreement, under which the lifting of detention in such circumstances was optional. The Supreme Court also observed that the prolongation of detention was necessary in order to ensure the proper conduct of the extradition proceedings in view of the risk that the applicant would go into hiding. Lastly, the Supreme Court pointed out that there had been no circumstances in the case which would justify the applicant's release pursuant to Article 218 of the 1969 Code.
On 3 April 1998 the Ministry of the Interior and Administration informed the Regional Court that the applicant's request for asylum was being examined by the Ministry of Foreign Affairs.
On 9 April 1998 the Warsaw Court of Appeal prolonged the applicant's detention until 18 July 1998. It considered that the original grounds for keeping him in custody were still valid and that there were no grounds for releasing him, as provided in Article 218 of the 1969 Code. It stressed that there were justified fears that the applicant would go into hiding because he had already been wanted under the international search and arrest warrant. The applicant's appeal against that decision was dismissed by the Supreme Court on 27 May 1998. The Supreme Court considered that the applicant's continued detention was necessary in order to secure the proper conduct of the extradition proceedings, taking into account that the asylum proceedings were still pending.
The Regional Court's session scheduled for 17 April 1998 was cancelled due to an illness of the presiding judge.
On 16 June 1998 the Regional Court held a session. It adjourned its examination of the extradition request since the applicant had applied to the Minister of the Interior and Administration for reconsideration (wniosek o ponowne rozpatrzenie sprawy) of the decision refusing to grant him asylum. The court also dismissed the applicant's request for release.
On 29 June 1998 the Ministry of the Interior and Administration notified the Regional Court that the asylum proceedings should be terminated by October 1998.
On 9 July 1998 the Supreme Court prolonged the applicant's detention pending extradition until 31 December 1998. It emphasised that the asylum proceedings were still pending.
On 23 October 1998 the Regional Court requested the Ministry of the Interior and Administration to provide information on the progress of the asylum proceedings. On 9 November 1998 the Ministry replied that the applicant's asylum request had been rejected by the final decision of 9 October 1998.
The Regional Court's session scheduled for 7 December 1998 was cancelled.
On 16 December 1998 the Regional Court held a session. It adjourned the consideration of the extradition request since the applicant had in the meantime applied for review of the unfavourable asylum decisions by the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 22 December 1998 the Supreme Court prolonged the applicant's detention pending extradition until 31 March 1999. It stressed that the delay in the extradition proceedings had been caused by circumstances which could not be attributed to the court before which those proceedings were pending.
On 2 February 1999 the Supreme Administrative Court informed the Regional Court that the asylum proceedings were still pending.
On 25 March 1999 the Supreme Court prolonged the applicant's detention until 18 July 1999. It considered that the extradition procedure had been prolonged on account of circumstances for which the Polish judicial authorities could not be held responsible. In particular, it emphasised that the need to await the outcome of the asylum proceedings brought by the applicant had made it impossible for them to rule on the extradition request. Were the applicant to be granted asylum, he could not be extradited pursuant to the relevant provisions of the Code of Criminal Procedure. The court went on to find that the relevant material strongly supported a reasonable suspicion that the applicant had committed the offences with which he had been charged and concluded that the previous reasons for his detention were still valid.
On 20 April 1999 the Supreme Administrative Court informed the Regional Court that the asylum proceedings were still pending.
On 14 July 1999 the Supreme Court ordered that the applicant be held in detention pending extradition until 18 January 2000. It considered, inter alia, that keeping him in detention was necessary pending the asylum proceedings.
On 28 July 1999 the applicant requested the Regional Court to order his release. That request was rejected on 5 August 1999.
On 30 December 1999 the Regional Court made an application to the Supreme Court for prolongation of the applicant's detention pending extradition until 30 April 2000. On 11 January 2000 the Supreme Court refused that application.
On 17 January 2000 the Regional Court ruled that the applicant's extradition was permissible. It observed that the applicant had been charged with an ordinary criminal offence of appropriation of property. It also found that the applicant's allegations of his persecution on account of his activities in the Belarusian opposition group had not been corroborated by evidence. It also noted in this respect that the applicant's inconsistent submissions indicated that he had attempted to avoid criminal responsibility for the offence in question. On the same date the Regional Court prolonged the applicant's detention until 1 March 2000.
The applicant appealed to the Court of Appeal on 22 January 2000. He alleged, among other things, a breach of Articles 3 and 6 § 1 of the Convention. He maintained that all available sources, for example reports of international human rights organisations and daily press materials, consistently showed Belarus as a country that did not respect fundamental human rights. Reported instances of unlawful arrests and unfair trials, as well as of beating and maltreatment were so wide-spread that they justified the applicant's fears that if he were extradited, he would be denied a fair trial and would be subjected to inhuman and degrading treatment in Belarusian prisons. Lastly, the applicant submitted that he had already informed the Polish authorities that between 10 and 20 October 1996 he had been arrested by the Belarusian police in connection with his participation in an anti-government demonstration. In his opinion, all those circumstances showed that the request for extradition was made for the purpose of punishing him for his political activities.
The Court of Appeal upheld the contested decision on 18 February 2000.
On the same day the applicant asked the Court to apply Rule 39 of its Rules of Procedure and to stop his extradition to Belarus. That application was rejected on 21 February 2000.
On 23 February 2000 the Warsaw Court of Appeal gave a decision fixing the final deadline for the applicant's detention in the extradition proceedings for 31 July 2000. That decision was upheld on appeal on 18 April 2000.
The applicant was extradited to Belarus on 28 April 2000.
On 9 September 1997 the applicant, while in detention pending extradition, applied to the Minister of the Interior and Administration for asylum in Poland. He submitted that for many years he had been a member of a Belarusian dissident organisation, i.e. the People's Belarusian Front “Restitution” (Ludowy Front Białoruski “Odrodzenie”) and that, because of his political activity, he risked revenge from the State authorities. He further alleged that the charges against him were based on entrapment by a former officer of the KGB.
The Minister of the Interior and Administration, pursuant to section 10 § 1 of the Aliens Act, requested the Minister of Foreign Affairs to issue an opinion on the applicant's request. On 24 August 1998 the Minister of Foreign Affairs objected to the grant of asylum. This decision was upheld on appeal on 29 September 1998. The Minister of Foreign Affairs, having made relevant inquiries, found no reliable evidence of the applicant's alleged activities in the opposition movement in Belarus. It also observed that the applicant had applied for asylum only after he had been detained with a view to extradition, while he had had sufficient time to do so earlier.
On 21 April 1998 the Minister of the Interior and Administration rejected the applicant's request for asylum. He upheld his decision on 9 October 1998. The Minister found that the actions of the Belarusian prosecuting authorities against the applicant had not been politically motivated. He observed that there had been many inaccuracies in the applicant's account given in support of his asylum request. He also considered that the applicant lacked even basic knowledge about the opposition group of which he had allegedly been a member. The Minister further observed that the applicant had applied for asylum only after he had been placed in detention pending extradition despite the fact that during the period of his alleged persecution he had been in Poland on a few occasions. It noted that at the relevant time the applicant had left Belarus legally and that he had travelled back to his home country on two occasions. Furthermore, he did not apply for asylum immediately after he had entered Poland, but instead took steps to regularise his stay in Poland. Those facts indicated, in the Minister's view, that the applicant had no reason to fear for his life or limb and that his application for asylum constituted an abuse of the relevant procedures.
On an unspecified date in October 1998 the applicant appealed to the Supreme Administrative Court against the unfavourable decisions of both Ministers.
On 21 December 1999 the Supreme Administrative Court dismissed the applicant's appeal. It upheld the findings of the Ministers and considered that the applicant could not be granted asylum as he had not demonstrated that he had been persecuted in Belarus on account of his alleged political activities in the opposition movement.
In his application of 18 February 2000 the applicant stated that during his detention his correspondence had been opened and intercepted by the Polish authorities. He has not submitted any documentary or other evidence in support of his submissions.
In his application of 18 February 2000 the applicant submitted that if he were extradited to Belarus, he would be exposed to a serious risk of torture and be denied a fair trial. He relied on the fact that he was a member of the People's Belarusian Front “Restitution” and that he had received from that organisation a silver medal for his activity. He further produced a copy of the document entitled “Information of the Belarusian Helsinki Committee on Violation of Human Rights in December 1997- January 1998”. In the opinion of the authors of that document, the Belarusian authorities were responsible for several physical attacks on persons criticising President Lukashenko, as well as on independent journalists. Those attacks were carried out by unknown persons. Culprits had not been found. The authorities had also made some attempts to discredit their political opponents by, for instance, bringing criminal proceedings against them. That document also described the very difficult conditions of detention in Belarusian prisons.
Until 1 September 1998, i.e. the date on which the Law of 6 June 1997 (commonly referred to as the “new Code of Criminal Procedure”) entered into force and repealed the 1969 Code, the rules governing detention and extradition proceedings were contained in the latter statute.
Article 218 of the 1969 Code read:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1) it may seriously jeopardise the life or health of the accused; or
(2) it would entail excessively serious repercussions for the accused or his family.”
Article 534 § 1 read:
“Extradition shall be refused if a person to be extradited is a Polish national or has been granted asylum in Poland.”
Article 535 § 4 specified:
“If information contained in a request for extradition is insufficient and the court or the prosecutor has asked for it to be supplemented and if, within one month following the date on which [the requesting State] has been served with the request for supplementary information, [that State] has not produced the necessary documents or information, detention shall be lifted.”
Article 541 § 1 provided:
“The provisions of this Chapter shall not apply if an international agreement, to which the Republic of Poland is a party, provides otherwise.”
Article 66 of that Agreement reads, in so far as relevant:
“1. Upon a request and subject to the provisions of this agreement, the Contracting Parties undertake to surrender to each other persons who are on their territory in order to proceed against them for an offence or to carry out a sentence.”
Article 70 reads:
“If the information communicated [by the requesting Contracting Party] is not sufficient to allow [the requested Contracting Party] to rule on a request for extradition, the requested Contracting Party may ask for the information to be supplemented. To this end, the requested Contracting Party may fix a time-limit of up to one month [for the receipt thereof]. If there are important grounds [for doing so], that time limit may be prolonged for a [further] month on the request of the requesting Contracting Party.”
Article 71 provides:
“After the receipt of the request for extradition, the requested Contracting Party shall promptly take steps to detain the person concerned. This shall not apply to cases where it is evident that extradition is not admissible under this agreement.”
Article 73 lays down the following:
“The requested Contracting party may release the person detained pursuant to Article 71 if no supplementary information has been produced within the time-limit laid down in Article 70.”


ITEMID: 001-102186
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ISMAYILOVA v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1953 and lives in Baku.
6. On 22 January 1998 the applicant was issued an occupancy voucher (yaşayış orderi) to an apartment in a recently constructed residential building in Baku on the basis of the Baku City Executive Authority's order of 19 January 1998.
7. At the same time, the applicant became aware that the apartment was occupied by M. and his family, who were internally displaced persons (“IDP”) from Lachin, a region under occupation of Armenian military forces following the Armenian-Azerbaijan conflict over Nagorno-Karabakh.
8. According to the applicant, despite her numerous demands, M. refused to vacate the apartment noting that he was an IDP and he had no other place to reside in.
9. On an unspecified date in 1999, the applicant lodged a lawsuit with the Yasamal District Court asking the court to order the eviction of M. and his family from the apartment.
10. On 9 June 1999 the Yasamal District Court granted the applicant's request. The court held that the applicant was the sole lawful tenant of the apartment on the basis of the occupancy voucher of 22 January 1998 and, therefore, the apartment was unlawfully occupied by M. and his family. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within ten days after its delivery.
11. According to the applicant, M. and his family refused to comply with the judgment and the competent authorities did not take any measures to enforce it.
12. It appears from the case file that in 2008 the applicant lodged compensation proceedings against the State Committee for Refugees and Internally Displaced Persons claiming EUR 72,000 for unlawful use of her flat by an IDP family. On 7 May 2008 the Yasamal District Court dismissed the applicant's claim as unsubstantiated. On 7 July 2008 the Court of Appeal and on 10 November 2008 the Supreme Court upheld the Yasamal District Court's judgment of 7 July 2008.
13. At the time of the latest communication with the applicant, the judgment of 9 June 1999 in the applicant's favour remained unenforced.
14. The relevant domestic law is summarised in Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
VIOLATED_ARTICLES: 6


ITEMID: 001-23701
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MAZSA and PAPP v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr István Mázsa and Mr Sándor Papp, are Hungarian nationals, who were born in 1959 and 1958, respectively, and live in Becsehely and Galambok, Hungary. They are represented before the Court by Mr L. Noll, a lawyer practising in Nagykanizsa, Hungary. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1987 the applicants instituted proceedings before the Tapolca District Court seeking damages from a company and its board members. On 28 April 1989 the court allowed their action. On appeal, on 8 June 1990 the Veszprém County Regional Court modified the first-instance judgment and reduced the amount of damages awarded. This judgment became final.
The judgment was not executed.
On 7 July 1993 the defendants requested the District Court to re-open the case as the final judgment had been based on false information. On 14 April 1994 the court accepted their request and ordered the case to be re-opened.
On the applicants’ appeal, on 24 June 1994 the Regional Court annulled the first-instance order and remitted the case to the District Court, holding that the defendants had failed to append the documents cited in their request.
Subsequently, the District Court again ordered the re-opening of the case. The applicants’ appeal against this order was dismissed on 19 April 1996 by the Regional Court.
On 23 February 1999 the District Court annulled the final judgment of 8 June 1990 and ordered the defendants to pay a reduced amount of damages to the applicants.
On the appeals of both parties, on 27 August 1999 the Regional Court modified parts of the first-instance judgment of 28 April 1989 in so far as they concerned the applicants and upheld the final judgment of 8 June 1990.
A copy of the decision of 27 August 1999 was received, with a view to its despatch, at the Tapolca District Court on 28 September 1999. It was posted by registered mail at the Tapolca Post Office on 30 September 1999. On Friday, 1 October 1999 it was received at the Nagykanizsa Post Office with a view to its delivery.
The Government have submitted the avis de réception attached to the letter containing the decision. They maintain that the handwritten date of service appearing on the avis de réception is 1 October 1999. A letter sent by the Legal Directorate of the Hungarian Postal Service corroborated that the decision was served on the applicants’ lawyer on that date.
The applicants have submitted a copy of the decision which was allegedly stamped on arrival at their lawyer’s office on Sunday, 10 October 1999.
The Government submit that no postal delivery takes place on Sundays in Hungary.


ITEMID: 001-61572
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HAAS v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)
TEXT: 9. The applicant, who was born in 1964, states that he was born from a relationship between his mother and a certain P., a civil law notary (notaris). Although his mother had wanted to marry, P. had not; neither had the two ever lived together. P. had not recognised (erkenning) the applicant. Nevertheless, he made regular payments towards the applicant's care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant's mother, went on day trips with him. The applicant called P. “Daddy”.
10. P. died on 19 August 1992 without leaving a will. His body was cremated. A nephew, K., was identified as his sole heir.
11. The applicant brought civil proceedings against K., seeking an order that K. hand over P.'s estate. The applicant argued that he had had “family life” with P. within the meaning of Article 8 of the Convention, and that the Netherlands legal provisions relating to the position of “illegitimate” and unrecognised children infringed Article 14.
12. The Arnhem Regional Court (arrondissementsrechtbank) rejected the applicant's claim by a judgment of 23 December 1993. It considered that the difference contained in Netherlands legislation on succession between children with and children without legally recognised family relationships (familierechtelijke betrekkingen) did not constitute an unjustified interference in the “family life” of “illegitimate” unrecognised children. In view of the rights and interests of third parties in relation to an inheritance, legal certainty required that only persons with a demonstrable legal family connection with the deceased be able to inherit. An “interference” with any “family life” the applicant might have had with P. was thus “in accordance with the law” and “necessary in a democratic society”. In the light of these considerations, the Regional Court did not find it necessary to determine whether or not P. was the applicant's biological father.
13. The applicant appealed to the Arnhem Court of Appeal (gerechtshof), complaining of the Regional Court's interpretation of Articles 8 and 14 of the Convention, as well as of the fact that the Regional Court had declined to rule on the issue of paternity.
14. Four witnesses were heard before the Court of Appeal: the applicant, his mother, a friend of his mother and the person who had been the applicant's co-guardian (toeziend voogd). The latter two stated that they were convinced that P. was the applicant's biological father and that he had never denied this fact to them but had, on the contrary, assured them that the applicant would be well provided for. The applicant's mother stated that she had not known any man other than P. until nine years after the applicant's birth, and that P. had referred to the applicant in public as “my son” or “my little boy”. In reply to K.'s argument that he had not been aware of the applicant's existence, the applicant stated that K.'s mother, who was a sister of P., had been so aware and had met the applicant.
15. In the proceedings before the Court of Appeal the applicant also submitted a number of photographs showing himself in the company of P. and his mother.
16. On 20 June 1995 the Court of Appeal gave judgment, dismissing the appeal. While it acknowledged that a situation where a court was unable to determine a case like the present one led to an unsatisfactory outcome for the applicant, the Court of Appeal saw no possibility of departing from the recent case-law of the Supreme Court (Hoge Raad) to the effect that it went beyond the jurisprudential task of the judiciary to determine the consequences of the possible incompatibility of Netherlands law with Article 14 of the Convention taken in conjunction with Article 8 (judgment of 24 February 1995, reported in Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1995, no. 468).
17. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which was dismissed on 17 January 1997. The Supreme Court held that, although an inability to inherit based solely on the ground of illegitimacy would be contrary to Article 8 taken in conjunction with Article 14, objective and reasonable grounds could exist to justify other kinds of restrictions on the intestate succession of “illegitimate” children. It then noted that in 1982 a law had come into force aimed at bringing the position of “illegitimate” recognised children into line with the requirements enunciated by the Court in Marckx v. Belgium (judgment of 13 June 1979, Series A no. 31). During the debate on the bill in Parliament, the then Minister of Justice had declared that the question of the position of “illegitimate” unrecognised children in relation to their biological fathers was a valid one, but that it fell to be dealt with in the planned reform of the law of succession.
18. Since then a number of attempts had been made to bring about this reform and, at the time of the Supreme Court's examination of the present case, a bill was before Parliament. It thus appeared that the legislature was of the view that a reform of the law of succession required the making of important political choices and that the legislative process had not yet come to an end. From this, the Supreme Court concluded in the first place that the absence in Netherlands law at the time of a rule making “illegitimate” unrecognised children the heirs of their biological fathers was not based solely on illegitimacy but on the difficulty, inherent in a reform of legislation, of reaching a sound balance between all the interests involved in the law of succession. Secondly, it followed that the choices to be made fell beyond the scope of the judiciary's jurisprudential tasks and that it was not possible to anticipate legislative developments by judgment. The judgment of the Supreme Court was published in NJ 1997, no. 483, with a critical annotation by a learned author.
19. Under Article 4:879 § 1 of the Civil Code (Burgerlijk Wetboek –“CC”), only those persons who have a legally recognised family relationship (familierechtelijke betrekking) with a person who has died intestate may inherit from that person.
20. Legally recognised family relationships between a father and a child exist where a child is born to a married couple or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the CC). An “illegitimate” child will have a legally recognised family relationship with its father (who does not have to be the biological father) if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 of the CC).
21. Moreover, according to Article 1:215 of the CC, a legally recognised family relationship will also come into existence with the granting of letters of legitimation if it is established that the father, having died before the child was born and without having recognised it, was aware of the pregnancy and had intended to marry the mother.
22. According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings (or their descendants) will inherit from him (Article 4:901 of the CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a of the CC).
23. Within one year of the death of the father, a minor child with whom the late father had no legally recognised family relationship may request that an obligation be imposed on the father's heirs to make a lump sum available for his care and upbringing. In the determination of this amount, the court dealing with the request may not exceed the legally reserved portion of the estate (wettelijk erfdeel) to which the child would have been entitled had he had a legally recognised family relationship with his father (Article 1:406 § 5 of the CC).
24. This is an elaboration of the principle enunciated in Article 1:394 §1 of the CC that, where there is no legally recognised family relationship between a father and his child, the former is only bound to provide maintenance (levensonderhoud) for the child until it has come of age. The legally reserved portion of an estate is that part of a person's estate which will be attributed, according to the rules of intestacy, to the heirs who are direct descendants or ascendants, and which the testator is unable to dispose of by way of donation when alive, or by will.
25. On 20 March 1996 a bill was presented in Parliament aimed at amending, inter alia, the law of descent (afstammingsrecht; Tweede Kamer (Lower House) 1995-1996, 24 649, nos. 1-2), and on 1 April 1998 a change to the Civil Code came into force. It introduced a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 of the CC) which may be requested by the mother or the child. A declaration of paternity has retroactive force to the time of the child's birth, but it does not adversely affect any rights acquired in good faith by third parties.
26. According to the explanatory memorandum to the bill, the possibility of having paternity determined judicially exists in all neighbouring countries. The absence of this possibility could be in conflict with Article 8 of the Convention taken in conjunction with Article 14, since it could lead to a situation where a child was deprived of a father if the latter were unwilling to recognise it. It was felt that this defect could not be remedied by the fact that a request for determination of a parental maintenance contribution could be made against the father pursuant to Article 1:394 § 1 of the CC.
NON_VIOLATED_ARTICLES: 13
14
8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-70363
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GOLOVIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic and Convention proceedings) - partial award
TEXT: 4. The applicant was born in 1953 and lives in the town of Genichesk, the Kherson region, Ukraine.
5. In 1999 the applicant instituted proceedings in the Genicheskyi District Court against Mr S. (a private person) seeking recovery of a debt. On 20 August 1999 the court found for the applicant and ordered Mr S. to pay him UAH 6,975 (around 1,152 euros – “EUR”).
6. On 30 August 1999 the Genicheskyi District Bailiffs' Service instituted enforcement proceedings in respect of the judgment of 20 August 1999.
7. According to the applicant, the judgment of 20 August 1999 has been enforced in part and he was paid UAH 3,000 (around EUR 496).
8. In December 2000 the applicant lodged a complaint with the Genicheskyi District Court about the Bailiffs' Service's inactivity in respect of the enforcement of the judgment of 20 August 1999. On 16 January 2001 the court found for the applicant, declared the Bailiffs' Service's inactivity unlawful and ordered the immediate seizure of the property of Mr. S.
9. In March 2001 the applicant instituted proceedings in the Genicheskyi District Court against the Bailiffs' Service seeking compensation for non-pecuniary damage allegedly caused by the failure of the Bailiffs' Service to enforce the judgments of 20 August 1999 and 16 January 2001.
10. On 4 May 2001 the court found for the applicant and ordered the Bailiffs' Service to pay the applicant UAH 5,500 (EUR 909) in compensation for non-pecuniary damage. The court held that due to the failure of the Bailiffs' Service to immediately seize the property of Mr S., as it had been ordered by the judgment of 16 January 2001, the latter had sold a substantial part of his property. The court further held that the Bailiffs' Service had failed to sell the part of the debtor's property, which had been seized.
11. On 25 May 2001 the Genicheskyi District Bailiffs' Service instituted enforcement proceedings in respect of the judgment of 4 May 2001. On 20 November 2001 the Kherson Regional Department of Justice appointed the Novotroitskyi District Bailiffs' Service to be responsible for the enforcement of the aforementioned judgment.
12. On 29 July 2002 the Novotroitskyi Bailiffs' Service informed the applicant that the Genicheskyi Bailiffs' Service was being funded from the State Budget and it did not have its own assets suitable for seizure.
13. On 14 June 2002 the Novotroitskyi Bailiffs' Service applied to the Genicheskyi District Court seeking the interpretation of the way in which the judgment of 4 May 2001 should be enforced. On 7 August 2002 the court refused this application, stating that the judgment needed no further interpretation or clarification.
14. On 29 December 2002 the Novotroitskyi Bailiffs' Service discontinued the enforcement proceedings and returned the execution writ to the applicant on the grounds that the Genicheskyi Bailiffs' Service did not have its own assets and was financed by the Ministry of Justice.
15. The applicant did not challenge the decision of the Novotroitskyi District Bailiffs' Service of 29 December 2002 before the domestic courts.
16. The judgment of 4 May 2001 remains unenforced.
17. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1