ITEMID: 001-100395
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CHIS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1953 and lives in Bucharest.
5. The applicant worked as chief of the catering division of TAROM company (the Romanian Air Transport company), a State-owned company. In 1990, by a Government decision, the catering branch of TAROM became a new company, CASROM. In 1998 CASROM merged into the COMCHIM company, a private company. In 2004 that company changed its name into ROMAQUA.
6. On 8 February 1990 the applicant was dismissed from his job. He challenged that decision and on 9 November 1992 the Ilfov District Court ordered CASROM to reinstate the applicant in his previous job or in an equivalent post, and TAROM to pay him 154,043 Romanian lei (ROL) as overdue salary for the period February 1990 to September 1992, and also to pay him salary until effective reinstatement. That judgment became final on 28 May 1993.
7. On 6 June 1996 the applicant lodged an action against TAROM and CASROM for payment of salary until effective reinstatement and for bringing the amount of ROL 154,043 up-to-date in accordance with inflation. On 3 February 2005 the Bucharest Court of Appeal, by a final decision, ordered TAROM to pay the applicant that amount indexed to take account of inflation.
8. In March and April 2004, and then in April 2005, the bailiff sought to attach the company's financial assets in several banks in respect of the salaries due. Those seizures were endorsed by the courts.
9. On 28 April 2004 the Bucharest District Court declared that the judgment of 9 November 1992 could be enforced.
10. On 19 May 2004 TAROM lodged an objection to execution, alleging that the applicant's right to request enforcement of that judgment had become time-barred. The Bucharest County Court upheld that request by a final decision of 17 June 2005, declaring that the applicant's right to request enforcement of the judgment of 9 November 1992 was time-barred.
11. On 23 March 2007 the Bucharest County Court dismissed as time–barred an action by the applicant for payment of salaries from 1990 to 1999 and of other pecuniary rights related to his employee capacity. However, on 27 September 2007 the decision was quashed by the Bucharest Court of Appeal and the case sent for fresh consideration. No information on the outcome of the proceedings is available to the Court.
12. On 26 April 2007 the Bucharest County Court dismissed an action by the applicant for payment of salary and connected rights from 1999 onward, for lack of responsibility of TAROM. The court considered that the applicant should have taken action against COMCHIM/ROMAQUA. That judgment became final.
13. On 13 March 1995 the applicant sought comminatory damages from CASROM for noncompliance with the judgment of 9 November 1992.
14. On 13 June 1996 the Bucharest District Court set comminatory damages of ROL 50,000 per day until the applicant's effective reinstatement. The court held that CASROM had systematically refused to reinstate the applicant. That judgment became final on 9 June 1997.
15. On 5 December 1997 the applicant requested quantification and payment of comminatory damages.
16. On 11 January 1999 the Bucharest District Court upheld his request and set to ROL 69,250,000 the amount corresponding to damage for non-compliance between 5 October and 14 December 1998. On 6 October 1999 Bucharest County Court upheld that judgment.
On 16 November 1999 ROMAQUA paid that amount.
17. On 5 June 1999 the applicant sought again quantification and payment of comminatory damages.
18. On 20 December 2000 the Bucharest District Court ordered the debtor to pay ROL 54,627,890, of which ROL 10,467,750 was comminatory damages for 14 December 1998-15 November 1999 and ROL 44,160,140 was indexation of the damages set on 11 January 1999. On 26 April 2001 the Bucharest County Court declared the debtor's appeal null and void for non-payment of court fees.
On 21 May 2001 ROMAQUA paid that amount.
19. On 22 October 1999 the Bucharest County Court ordered COMCHIM to pay the applicant ROL 200,000,000 for non-pecuniary damage caused by the refusal to comply with the court orders.
20. On 13 March 2001 the Bucharest Court of Appeal upheld that judgment.
21. On 3 September 2002 COMCHIM paid the applicant ROL 395,900,000, representing the updated above-mentioned amount.
22. However, on 17 December 2002 the Supreme Court of Justice quashed the previous decisions and sent the case back to the County Court.
23. After retrial, on 24 November 2003 the County Court dismissed the action on the grounds that it had been objectively impossible for the debtor to comply with the obligation to reinstate the applicant because of the reorganisation of the company.
24. On 9 June 2004 the Bucharest Court of Appeal allowed an appeal by the applicant, quashed the previous judgment and ordered ROMAQUA to pay the applicant ROL 500,000,000 for nonpecuniary damages. It considered that the “objective impossibility” had not been proved and that in any case it could not justify non-compliance. That judgment became final on 27 January 2006.
25. On 26 August 2004 Bucharest District Court attached ROMAQUA's financial assets in a bank. On 3 February 2005 the Bucharest Court of Appeal upheld that interlocutory judgment.
26. On 1 September 2004 ROMAQUA paid ROL 500,000,000.
27. On 27 September 2004 ROMAQUA objected to the execution, submitting that it had already paid ROL 395,900,000 and that the execution should have been continued only for the remaining until ROL 500,000,000. On 14 July 2005 the Bucharest County Court, by a final decision, upheld the objection and annulled the execution insofar as it concerned the payment of ROL 395,900,000 in the applicant's favour.
28. According to the applicant, ROMAQUA had not claimed the difference that it had paid.
29. On 8 August 2002 the applicant lodged an action against the Ministry of Justice, seeking pecuniary and non-pecuniary damages for length of the proceedings related to his dismissal. On 4 November 2002 the Bucharest County Court dismissed his action, considering that the Ministry of Justice bore no responsibility for the alleged facts. That judgment became final on 18 March 2004.
30. On 11 June 1993 CASROM invoked the impossibility to reinstate the applicant in a post corresponding to his qualifications and offered him the post of night watchman, which was rejected by the latter.
31. On 6 June 1995 TAROM paid ROL 154,043 for salaries for the period February 1990 to September 1992, as ordered by the judgment of 9 November 1992, as well as ROL 217,563 for salaries until 30 June 1993.
32. On 17 March 1999 COMCHIM reinstated the applicant.
33. On 12 November 2004 TAROM paid ROL 4,235,986,868 for due and updated salaries.
34. On 20 June 2005 the bailiff also received for the applicant ROL 340,000,000 from TAROM, in compliance with the judgment of 9 November 1992, representing salaries from 15 February 1990 to 17 March 1999 indexed.
35. On 1 July 2009 the Bucharest District Court allowed a request by TAROM and ordered the applicant to return the amount of 457,598.68 new Romanian lei (RON). The court considered that TAROM had paid all the debt. The applicant appealed and the proceedings are still pending.
36. In 1991 and then in 1992 the applicant passed two competitions for a post within the Financial Control Office. Following refusal by that institution to employ him, the applicant brought court proceedings.
37. On 14 December 1995 Bucharest District Court ordered the Financial Control Office to employ the applicant as from 20 October 1992 and to pay him ROL 2,000,000 for damages and ROL 100,000 for court fees. That judgment became final on 30 May 1997.
38. In 1999 the courts declared that the judgment had become enforceable and that it could be enforced. However, the applicant was not employed allegedly because he was a collaborator of the former State Security Department (Securitate). By a decision of 25 September 2007 the National Council for the Study of the Archives of the Securitate declared that the applicant had not been a collaborator.
39. On 25 February 2008 the applicant sought again employment with the Financial Control Office. On 27 March 2008 the bailiff enjoined that institution to employ the applicant. However, the Financial Control Office considered that the applicant's right to request enforcement was time-barred.
40. On 9 May 2008 the bailiff certified in an official record the institution's refusal to employ the applicant and considered necessary to apply a pecuniary penalty for delay in enforcement.
41. On 12 May 2008 the applicant brought proceedings against the Financial Control Office, seeking from the court to order that institution to employ him as from 20 October 1992, as ordered by the judgment of 14 December 1995, and to pay him damages.
42. On 16 June 2008 the Bucharest District Court rejected his request to be employed as res judicata. It further held that his right to request enforcement of that judgment was time-barred.
43. On 22 September 2008 the Bucharest County Court allowed an appeal by the applicant, quashed the previous judgment and send the case back for a fresh consideration. On 23 June 2009 the Bucharest Court of Appeal upheld that judgment by a final decision.
44. The proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114786
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KULIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 5. The applicant was born in 1983 and is serving a prison sentence in the Sverdlovsk Region.
6. On an unspecified date the applicant was charged with several counts of sexual abuse of two boys of minor age. On 31 March 2005 he was arrested and remanded in custody. He was held in a temporary detention centre in Nizhniy Tagil. The cell where he was detained was allegedly overcrowded. On 20 May 2005 the applicant was released, pending trial, on his own recognisance.
7. On 27 May 2006 the applicant was again placed in custody. He was held in remand prison no. IZ-66/1 in the Sverdlovsk Region, where he remained until 8 August 2006. The applicant was detained in cell no. 235 measuring 31.5 square metres.
8. The Government provided the following description of the conditions of the applicant’s detention in the remand prison. The number of the inmates held in the cell varied from 24 to 32 persons. The applicant was provided with an individual sleeping place and bedding. The cell was equipped with a water supply as well as heating and sewage systems. The ventilation in the cell was in good working order. The temperature maintained in the cell was 240C during the summer. The toilet was separated from the living area of the cell by a 1.1metre-high partition which ensured sufficient privacy for the person using it. It was located at a significant distance from the nearest bed and the dining table. The applicant was allowed to take a shower once a week.
9. In support of their observations, the Government submitted a copy of the remand prison population register and certificates prepared by the administration of the remand prison and correctional facility in September and October 2009.
10. According to the applicant, the cell where he was detained was constantly overcrowded. Its population varied from 27 to 37 - and on one occasion reached 40 - inmates. There were 14 beds in the cell, one of which was used as a table. The applicant was not provided with any bedding. The ventilation system did not work. The cell was very hot and stuffy. The electric lighting was weak and it was impossible to read. The cell was infested with bed bugs and cockroaches. The toilet was located some 1.5 metres from the nearest bed and some 2 metres from the dining table. It was separated from the living area of the cell by a 1 metre-high partition which provided no privacy to the person using the toilet. The applicant was permitted to take a shower once every two weeks.
11. In support of his own submissions, the applicant provided the Court with the written statement of inmate S. who had been detained in the same remand prison in 2010.
12. Following the applicant’s conviction, from 15 August 2006 to 19 August 2009 he served a prison sentence in correctional facility no. IK-5 in the Sverdlovsk Region. The correctional facility measured 10,650 square metres in total. The applicant was detained in units 9 and 11. The number of detainees housed in the facility during the period in question varied from 1,718 to 2,095.
13. According to the Government, unit 9 measured 342.2 square metres (the living area measuring 191.5 square metres) and housed from 135 to 158 detainees. The sanitary area of the unit was equipped with nine wash basins and three toilets.
14. Unit 11 measured 345.6 square metres (with the living area measuring 180.1 square metres) and housed from 133 to 165 detainees. The sanitary area of the unit was equipped with eight wash basins and two toilets.
15. The applicant had been provided with underwear, clothes and shoes. He had received the necessary medical care. He had been allowed two family visits.
16. On several occasions in 2007 the applicant was placed in a disciplinary cell. The Government provided the following information as regards the number of inmates sharing the disciplinary cell from a copy of the relevant population register.

17. The disciplinary cells were provided with a toilet located some 3 metres from the dinner table and separated from the living area of the cell by a 1 metre-high partition. The water supply and the sewage, ventilation and heating systems were in good working order. The average temperature in the disciplinary cells ranged from 18 to 220C.
18. All detainees, before being placed in a disciplinary cell were subjected to a full body search and were also searched (fully clothed) before and after each session of daily exercise. These searches were not monitored by video camera.
19. The applicant was allowed to use the shower facilities, which comprised twelve shower units.
20. According to the applicant, unit 9 measured 190 square metres and housed from 145 to 165 detainees. The sanitary area of the unit was equipped with four wash basins and three toilets. Unit 11 measured 180 square metres and housed from 145 to 165 detainees. The sanitary area of the unit was equipped with five wash basins and two toilets. Shower facilities were made available to the detainees once a week for two and a half hours during which time they were used by up to 150 inmates so each person had around one minute in which to take a shower. During the day, the inmates were allowed to move freely only within the unit they were assigned to and within an adjacent area of 300 square metres – together with the inmates assigned to two other units. There had been 450 inmates, in total, sharing the three units.
21. As regards the applicant’s placement in a disciplinary cell, he provided the following information.

22. While in detention in the disciplinary cells, the applicant had not been provided with his own bed and had to take turns with other inmates to sleep. The toilet was located some 1.5 metres away from the dining table and separated from the living area of the cell by a 1 metre-high partition, which offered no privacy to the person using it. The toilets were dirty and foul-smelling. The applicant had been subjected to a full body search twice a day before and after the outside exercise periods, when all the inmates were taken into the hallway and forced to undress. The searches were monitored by personnel through video cameras – on many occasions by female warders. In winter the temperature in the hallway did not exceed 180C. The disciplinary cells were infested with parasites. The food and medical care were of poor quality.
23. The applicant further provided a written statement by inmate Sl., who submitted that approximately 150 inmates had been assigned to each unit in the correctional facility and that each unit measured approximately 200-250 square metres. The bunk beds in the dormitories were arranged in three tiers. The shower facilities comprised ten shower units and some 40 to 60 inmates were allowed two and a half hours in which to use them.
24. On 19 October 2009 the Office of the Prosecutor General of the Russian Federation prepared a report concerning the applicant’s allegations regarding the conditions of his detention. The Head of the Department for the Supervision of Sentences summed up the results of the inquiry as follows:
“In the course of the inquiry, the prosecution authorities established that [the applicant], while detained in cell no. 235 in [the remand prison] and also in [the correctional facility] had not been provided with the statutory personal space of 4 and 2 square metres respectively. However, this violation resulted from the overcrowding of the facilities caused by circumstances beyond the control of the administration. Accordingly, such conditions cannot be viewed as amounting to torture, inhuman or degrading treatment in contravention of Article 3 of the Convention.”
25. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with their own sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
26. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male prisoners in correctional colonies.
VIOLATED_ARTICLES: 3


ITEMID: 001-98379
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NOVIKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1977 and lives in Klaipėda.
5. Following a report to the police by two witnesses, D.K. and S.N., on 22 April 1998 a pre-trial investigation was started regarding several crimes. The investigation of other crimes was joined to the case on various dates. Ultimately 11 different crimes were investigated. On 28 April 1998 the applicant's place of residence was searched. On 30 July 1998 the seizure of the applicant's assets was ordered. However, according to the Government, no assets were discovered. On 17 August 1998 the applicant was questioned as a suspect. On 8 September 1999 the applicant was officially informed of the accusations, questioned as an accused and ordered not to leave his place of residence. On 13 August 2001 the public prosecutor again informed the applicant of the accusations against him and questioned him. On 20 August 2001 the investigation was officially concluded and, as of that date until 21 December 2001, the applicant and his co-accused had the possibility to acquaint themselves with the case file. On 29 December 2001 the public prosecutor concluded the pre-trial investigation in the case by issuing the final bill of indictment and transferred the case to the courts.
6. The Government specified that the case file consisted of 10 volumes and concerned 9 victims and 10 defendants facing 11 charges. The Government also submitted that, in the course of the pre-trial investigation, D.K. and S.N. had disappeared in June 1998. They were found abroad and returned to Lithuania in November 1998, but absconded again after June 1999. The authorities later received information that D.K. had been killed in March 2000. S.N. was never found again.
7. On 14 January 2002 the Klaipėda Regional Court set the dates for trial. The court held 39 hearings, 17 of which were adjourned because one of the parties, other than the applicant, failed to be present. Several hearings were postponed because one of the co-accused went missing. On 29 January 2003 the court separated the part of the case which concerned the missing co-accused, and continued the examination of remainder of the case. The hearing of 1 September 2003 was delayed until 15 September 2003 as the applicant's lawyer had died and a replacement had to be organised. On 9 December 2003 the applicant failed to appear at the hearing and it was postponed until 17 December 2003, when it was decided to continue the examination of the case in his absence. The court took into account the fact that the applicant had already submitted his final statement at the hearing of 28 November 2003.
8. On 19 January 2004 the Klaipėda Regional Court sentenced the applicant to five years' imprisonment for an organised burglary with 3 other co-accused. He was acquitted of several charges: two due to a lack of evidence and another for being time-barred. The court examined the testimonies of 7 witnesses and 4 victims, as well as the submissions of the police and other evidence. It found that the applicant had not provided any credible evidence to negate the testimonies of the various witnesses. D.K. and S.N.'s testimonies given during the pre-trial investigation were read out at the hearings. One of the co-accused, M.M., also gave a deposition incriminating the applicant. M.M. was sentenced by the same judgment but he was dispensed from carrying out the sentence on mitigating grounds.
9. On 19 January 2005, after four hearings, the Court of Appeal upheld the conviction of the applicant. The court noted that the applicant's request to question D.K. and S.N. had been dismissed because the former had died and the latter was missing. Their testimonies during the pre-trial investigation were read out during the court hearings in accordance with procedural law and were evaluated in the context of all other evidence and the testimonies of other witnesses. No substantial discrepancies in their submissions existed. The court was able to take into consideration the submissions of these two witnesses, as not only testimony given during hearings, but also that given during pre-trial investigations may be legitimate and relevant for the case under examination. These testimonies were not treated as superior to the other evidence in the case. As regards the submissions of the co-accused M.M., the court also noted that his submissions had been assessed in the context of all other evidence and the relevant procedural rules had been observed. Moreover, there was nothing to put in doubt his mental state and his ability to recollect the facts. The Court of Appeal concluded that the court of first instance had properly assessed all the evidence in the case and clarified the discrepancies. Therefore the case had been thoroughly examined. No bias or unfairness was disclosed in the latter's decision.
10. On 28 June 2005 the Supreme Court, in oral proceedings, dismissed the cassation appeal lodged by the applicant. The court observed that the reading of the testimonies of the two missing witnesses had been justified ihad been in accordance with the domestic law. The court .
11. Article 6.272 § 1 of the Civil Code allows a civil claim to be made for pecuniary and non-pecuniary damage arising from the unlawful actions of investigating authorities or courts in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty. According to recent domestic case-law, this provision may also allow claims for damages arising from the excessive length of criminal proceedings. In particular, by a judgment of 6 February 2007, the Supreme Court awarded an individual damages under this provision on account of the excessive length of criminal proceedings which had been instituted in 1998 and discontinued in 2004 (see Norkūnas v. Lithuania, no. 302/05, §§ 26 and 30, 20 January 2009). Other relevant domestic law concerning domestic remedies for the excessive length of civil proceedings is reproduced in the judgment of Četvertakas and Others v. Lithuania (no. 16013/02, § 20-22, 20 January 2009).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4562
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: J.C.B. v.  THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Dutch national, born in 1952, and is currently detained in the Netherlands. He is represented by Ms T. Prakken, a lawyer practising in Amsterdam.
On 22 December 1993, the Drugs Enforcement Agency (DEA) of the United States of America informed the Netherlands customs authorities that the ship named N.N. had left the harbour of Santa Marta (Colombia) for Amsterdam, where it would arrive on 2 January 1994. According to this information, this ship was transporting about fifteen kilograms of cocaine which had been bought by two Dutchmen, who had also recruited the ship’s crew. The two Dutchmen, possibly dressed as maintenance engineers, would take the cocaine from the ship in Amsterdam. The information, which the DEA classified as 99% certain, further contained a physical description of the two Dutchmen concerned.
On the basis of this information, the Dutch customs authorities, in consultation with the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst - “FIOD”), decided that the Customs Office of Amsterdam (Douane Post Amsterdam Surveillance), on the basis of its general powers of control under the General Customs and Excise Act (Algemene Wet inzake Douane en Accijnzen), would on 2 January 1994 place the ship N.N. under observation and would carry out an intensified control of the people leaving the ship and their possible vehicles.
On 2 January 1994, the ship N.N. was moored in the Amsterdam harbour area. Observation of that area revealed that around 8 p.m. a Peugeot personal car with two passengers arrived. These two persons, who were not carrying any luggage, shortly visited the ship and, still without luggage, left the ship and drove away in the Peugeot, which was then followed by customs officers in two cars.
When, at some point, a stop signal was given from one of the two cars which were following the Peugeot, the latter sped away. Shortly after, the two passengers of the Peugeot car abandoned the vehicle and were pursued on foot by four customs officers. One of the two persons got away and the other one, the applicant, was involved in a shoot-out with the customs officers. In the course of the shooting, one the customs officers, Mr H., was fatally injured. The applicant was slightly injured. On his arrest, the applicant was found to be wearing two jackets, containing in total about 10 kilograms of cocaine. The person who had escaped had left behind two jackets, which contained a similar quantity of cocaine.
By summons of 30 March 1994, the applicant was ordered to appear on 13 April 1994 before the Regional Court (Arrondissementsrechtbank) of Amsterdam on drug and manslaughter charges.
On 13 April 1994, the Regional Court rejected a request by the defence for a reconstruction of the shooting and granted their request an adjournment, as a certain forensic report had only recently been made available to the defence.
On 21 June 1994, the Regional Court ordered that evidence be taken by the investigating judge (rechter-commissaris) from the experts mentioned in a letter dated 9 June 1994 from the defence. It adjourned its further examination for a maximum period of three months and referred the case to the investigating judge.
On 1 September 1994, the Regional Court heard the applicant and considered a request by the defence for another adjournment in order to obtain further relevant forensic and other information. Having deliberated, the court partially granted the request by the defence and, consequently, adjourned its examination for a further three month period and referred the case to the investigating judge. It requested the latter to have the bullet tips R300 and R301 examined for deformations, to take evidence from the three persons who had seen the bullet tips fall from the clothes of Mr H., and to do whatever he considered useful and necessary in the interest of the examination of the applicant’s case.
On 25 September 1994, the Regional Court resumed its examination and, following a request by the prosecution, adjourned its examination until 15 December 1994, when it heard the applicant and the parties’ final pleas.
In its judgment of 28 December 1994, the Regional Court convicted the applicant of manslaughter and narcotics offences and sentenced him to twenty years’ imprisonment. As regards the charge of manslaughter, the Regional Court did not find it established that the applicant had acted in self-defence. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.
On 8 May 1995, the Court of Appeal took oral evidence from the applicant, the customs officers E.B., F.d.B. and G.d.R. involved in the pursuit and shooting of 2 January 1994, the experts R.B. and H.M. of the Netherlands Forensic Laboratory concerning the forensic examination of the clothes of H. and the weapons and ammunition used in the shooting, and from the officers R.H., A.P. and J.P. of the forensic police (technische recherche) involved in the initial technical investigation.
After the hearing of these persons, the defence requested a further forensic examination in Germany, the necessary technical equipment only being available there, in order to examine whether the lead-free ammunition used had been in contact with a human body and the clothes, and a further examination of the traces of the ammunition. The Court of Appeal rejected this request, holding:
<Translation>
“… the necessity <of the defence request> has not been established. In this respect the court has taken into consideration that the Forensic Laboratory at Rijswijk has extensively examined the clothes and other items, as appears from the report of 25 March 1994, in which it is stated, inter alia, that all micro-chemical test reactions for lead and copper at the bullet entry perforations have been positive. It further appears from the statement of the expert R.B. that such an examination can no longer be regarded as useful. The Court further finds not a single (factual) point of departure in the present case-file or in the trial proceedings so far conducted which might support the accused’s contentions that, firstly, the victim H. would have been hit by a lead-free bullet from a weapon of one of his colleagues and, secondly, that a lead-content bullet has ended up in an improper way between the victim’s clothes where it was <subsequently> found by staff of the Forensic Laboratory.”
On 6 June 1995, the prosecution informed the Court of Appeal that the co-accused C. had been extradited from Spain to the Netherlands on 23 May 1995. The defence did not wish to react to this information. After having heard the parties’ final pleadings, the Court of Appeal closed its examination.
In its judgment of 19 June 1995, the Court of Appeal quashed the judgment of 28 December 1994, convicted the applicant of manslaughter and of having acted contrary to the prohibition under Article 2 of the Opium Act (Opiumwet), and sentenced him to twenty years’ imprisonment.
The Court of Appeal rejected the argument by the defence that the principle of proper intentions (beginsel van zuiver oogmerk) had been violated by the customs officers and that, on this basis, the prosecution should be declared inadmissible. The defence argued that the customs officers had used their powers for another purpose than that for which they are intended by following the Peugeot car, whereas the two passengers of this car had a different modus operandi from that predicted by the DEA. According to the defence, there had thus not been a reasonable suspicion of guilt within the meaning of Article 27 of the Code of Criminal Procedure (Wetboek van Strafvordering). The pursuit at issue was only carried out in order to see whether or not the applicant and the other person had taken the cocaine from the ship.
After having considered the evidence before it, the Court of Appeal concluded that the customs officers involved in the events at issue had acted in accordance with, and had not exceeded, their powers under the relevant statutes, i.e. the General Customs and Excise Act and the Opium Act.
The defence had further argued that the applicant’s right to a fair trial within the meaning of Article 6 of the Convention had been breached in that the Court of Appeal had failed to respect the principle of equality of arms when it refused
A. to order a counter-expertise in Germany in order to verify whether only lead-content bullets had been fired at H.;
B. to take evidence from the persons who, in the V. hospital, had handled the clothes of H.;
C. to take further oral evidence from the customs officers E.B., F.d.B. and G.d.R. after their testimony of 8 May 1995; and
D. to order a reconstruction of the events at issue.
On these points, the Court of Appeal held, inter alia:
<Translation>
“In the course of the judicial investigation the accused has alleged that the police has committed fraud in its investigation and/or has manipulated the investigation by putting, after the shooting, one or more bullets shot by the accused, and which, in contrast to the bullets shot by the custom officers, contained lead, between the victim’s clothes and/or in the body bag in which his body was placed and transported to the Forensic Medical Laboratory and/or by smearing lead on the victim’s clothes on those places where that clothing was perforated by one or more bullet entries. The above contention has been repeated by the accused in his pleadings of 6 June 1995.
Taking this into account, the accused’s requests, as set out under A-D, appear to be based on obtaining a further investigation into the correctness of this contention.
In his pleadings counsel has taken the position that it cannot be considered excluded that - what he calls - the fatal shot at the victim H. has been fired by one of his colleagues.
Taking this into account, the request by counsel appears to be based on obtaining a further investigation into the correctness of that contention …
The court considers the above requests as follows:
The expert R.B. of the Forensic Laboratory of Rijswijk has carried out a so-called shot-remains investigation of the coat and jeans of H., the results being given in the report of 25 March 1994, and a further investigation into soiling, spotted on the front side of the left sleeve of the coat, the results of which are stated in the additional report of 8 July 1994 (file II).
An expert-witness heard during the trial on appeal, the aforementioned R.B., has stated … that the shot-remains investigation … standard is aimed at searching for (traces of) lead-containing ammunition, that the clothes (coat and jeans) have not been tested for lead-free ammunition, that such tests can still be carried out, but that it has appeared during the tests already carried out that around the places in the clothes, where it concerned a bullet entry (by which the court understands the damage caused by shots at the clothing, in respect of which the conclusion in the report is probable bullet entry damage), so many traces of lead, characteristic for lead-containing ammunition, were present that these traces, if there would be traces of lead-free ammunition, would mask the latter traces, and further that when one rubs a lead object against another object, thus leaving behind lead traces, these would be friction traces (veegsporen), but the traces of lead found on the clothes of H. were not friction traces.
Further taking into consideration that the aforementioned R.B. has stated to the investigating judge … that the lead-free ammunition of the type Action III used by customs officials “does not really leave that many traces”, the court is of the opinion that in all reasonability it is not to be expected that by a (yet to be ordered) investigation of <the> coat and/or jeans of H. for possible traces of lead-free ammunition, also if this investigation is to be entrusted to the Federal Forensic Institute (Bundes Kriminaltechnisches Institut) in Wiesbaden <Germany>, no facts or circumstances will appear, which (could) entail an indication that shots with one or more lead-free projectiles have been fired at the victim H.
Consequently, the court finds that the necessity of the investigation to be carried out by the <German> Federal Forensic Institute, requested by the suspect, has not been established; so that it will reject this request, in which <decision> the court further considers on the above grounds that such an investigation would not serve a useful purpose; so that it cannot be said that by rejecting this request the suspect’s right to counter-expertise is violated. … .”
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), complaining inter alia that the Court of Appeal had rejected his argument that the customs officers involved in the events of 2 January 1994 had exceeded their powers of investigation and that the Court of Appeal had failed to order a further examination of the clothes of the victim in Germany in order to verify whether or not lead-free bullets had been fired at him.
By judgment of 13 May 1997, the Supreme Court rejected the applicant’s appeal in cassation.
Insofar as the applicant argued that the customs officers had exceeded their powers under the General Customs Act for the purpose of investigating acts contrary to the Opium Act, the Supreme Court held that the existence of “a reasonable suspicion” that acts contrary to the Opium Act are committed does not constitute a bar to the exercise by customs officers of their powers of control under the General Customs Act provided that the exercise of the latter powers respects the guarantees to which an accused is entitled. The Supreme Court concluded that the Court of Appeal had correctly rejected this argument.
As to the applicant’s complaint that the Court of Appeal had rejected a request for a further examination of the victim’s clothes, the Supreme Court held that this complaint could not lead to cassation and that this finding, in view of Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), required no further reasons as the complaint did not prompt a determination of legal issues in the interests of legal unity and legal development.


ITEMID: 001-93866
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YEVGENIY KORNEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1960 and lives in Kurgan.
6. On 27 December 2000 the Ketovskiy District Court of the Kurgan Region found the applicant guilty of kidnapping for profit and sentenced him to five years’ imprisonment conditional on three years’ probation. Neither the applicant nor the prosecutor appealed.
7. On an unspecified date the applicant asked the Kurgan Regional Court for supervisory review of the judgment of 27 December 2000. He alleged that the court had erred in defining his actions as kidnapping for profit. He further challenged the findings of the trial court as to the circumstances of the matter. He claimed that he had freed the kidnapped victim of his own will and should have been exonerated from the kidnapping charges as provided for in the Russian Criminal Code.
8. By a letter of 10 October 2003, the Kurgan Regional Court informed the applicant that the supervisory-review proceedings had been instituted and that the Presidium would examine his application on 20 October 2003. According to the stamp on the letter, it reached the penitentiary establishment where the applicant was serving a prison sentence on 23 October 2003. The applicant indicated that the letter had been handed over to him on 27 October 2003.
9. On 30 October 2003 the applicant sent written submissions to the Kurgan Regional Court.
10. In December 2003 the applicant received the text of the Presidium’s decision on his application for supervisory review. The hearing had taken place on 20 October 2003. The court had reviewed the applicant’s case and granted his application in part. It had reclassified the charges as simple kidnapping. The sentence, however, had remained unaffected.
11. On 7 August 2001 the applicant was arrested, together with Mr T. and Mr Z., by officers of the Organised Crime Unit on suspicion of extortion.
12. On 10 August 2001 the applicant was formally charged and remanded in custody.
13. On 21 January 2002 the Kurgan Town Court of the Kurgan Region convicted the applicant and Mr Z. of extortion and sentenced the former to six years’ imprisonment. The applicant appealed.
14. On 26 March 2002 the Kurgan Regional Court upheld the conviction on appeal.
15. According to the applicant, on 7 August 2001 during and after the arrest he was beaten up by the police officers.
16. On 8 August 2001 the applicant was placed in the temporary detention facility (ИВС) located within the police station. On admission he was examined by an officer on duty and a paramedic, who did not observe any injuries on his body. The applicant did not bring an oral or written complaint about the alleged beatings.
17. On 10 August 2001 the applicant was transferred to remand centre no. 43/1 of Kurgan. On arrival he was examined by a general practitioner who noted several bruises in the lumbar region measuring 1 by 1 cm and 3 by 2 cm. A relevant entry was made in the applicant’s medical file.
18. It appears that on the same day the administration of the remand centre prepared a report concerning the applicant’s injuries and forwarded all the relevant materials to the prosecutor’s office for further inquiry. According to a certificate issued by the remand centre on 16 August 2007, the copies of those materials stored at the remand prison had been destroyed after the expiry of the time-limit for their storage on 20 January 2006 and 27 March 2007.
19. On 5 March 2002 the applicant complained to the Kurgan Regional Prosecutor that he had been beaten up by police officers on 7 August 2001.
20. On 27 March 2002 the deputy prosecutor of Kurgan issued a decision refusing to institute criminal proceedings into the applicant’s allegations of ill-treatment. The prosecutor based his findings on the statements made by the alleged perpetrators, who denied the applicant’s allegations, and the medical documents from the applicant’s file. In particular the prosecutor stated as follows:
“The inquiry conducted did not confirm the [applicant’s] allegations. The police officers Ch., M. and K. ... denied that they had put any pressure on [the applicant]. Upon arrival at [the temporary detention facility], he did not complain that he had been beaten up by the police officers... According to [the applicant’s] medical file, upon his arrival at [the remand centre]... several bruises were noted in the lumbar spine area. However, according to the certificate, issued by the head of [the temporary detention facility], upon his placement [there] [the applicant] had been examined and questioned by an officer on duty as to whether he had any injuries. [The applicant] had not complained of his condition or had any visible injuries. Nor had the results of the applicant’s examination by a paramedic on 8 August 2001 been any different. When transferred to [the remand centre], [the applicant] did not complain of his condition either. Accordingly, the injuries noted at [the remand centre] cannot have been caused by the [police officers] in the circumstances described by [the applicant].”
21. The applicant complained to a court, claiming that the scope of the prosecutor’s inquiry had been insufficient because he had never been interviewed by a prosecutor with regard to his allegations of ill-treatment.
22. On 31 December 2002 the Kurgan Town Court upheld the prosecutor’s decision, finding that the scope of the inquiry had been adequate given the lack of evidence supporting the applicant’s allegation of ill-treatment. In particular, the court found as follows:
“The Kurgan prosecutor’s office carried out a proper investigation into the allegations concerning the use of unlawful investigation techniques by the police officers. Messrs M., Ch., and K. were questioned. They explained that they had not put any physical or psychological pressure on [the applicant] during his arrest. [The applicant] did not confess to the crime. It is true that on [10] August 2001 after his transfer from [the temporary detention facility] to [the remand prison] bruises on the small of [the applicant’s] back were detected. However, earlier, when [the applicant] had been brought to [the temporary detention facility], he had been examined and questioned by an officer on duty. At that time [the applicant] had no injuries and did not complain of the alleged ill-treatment or his condition. Having regard to those facts, the Kurgan prosecutor’s office drew a justified conclusion that the [bruises] detected upon the applicant’s arrival at [the remand prison] could not have been caused by the policemen in the circumstances described by [the applicant]. There are no other materials in the court’s possession to prove that the policemen had committed any unlawful acts vis-à-vis [the applicant].”
23. On 1 July 2003 the Kurgan Regional Court dismissed the applicant’s appeal against that decision.
24. The parties to the criminal proceedings, including the defendant and his or her counsel and the prosecutor, may ask a superior court for supervisory review of judgments rendered by the courts of first or second levels of jurisdiction (Article 402 of the Code of the Criminal Procedure (the “CCrP”).
25. In the event that the court decides to open supervisory-review proceedings, it should notify the interested parties of the date, time and place of the hearing within 30 days. The parties to the proceedings should inform the court if they wish to participate in the hearing. The parties present at the hearing may make oral submissions to the court (Article 407 of the CCrP).
26. The court may uphold, amend or quash any of the earlier judgments on the matter, discontinue the proceedings or remit the matter for fresh consideration to a trial or appeal court (Article 408 of the CCrP). In particular, a judgment will be quashed if there is an inconsistency between the conclusions reached by the court in the judgment and the facts established (Articles 409 and 379 of the CCrP).
27. The court is not bound by the scope of the application for supervisory review and may consider the matter in its entirety. It may commute the sentence or reclassify the offence as a less serious one (Article 409 of the CCrP). It cannot, however, increase the sentence or reclassify the charges as a more serious offence (Article 405 of the CCrP).
28. In response to a complaint of a criminal offence, the investigator is under obligation to verify the complainant’s allegations (Article 144 of the CCrP).
29. Should there be sufficient grounds to believe that a crime had been committed, the investigator initiates a criminal investigation (Article 145 of the CCrP).
30. The complainant may appeal against the investigator’s refusal to open a criminal investigation to the investigator’s superior, a prosecutor or a court (Article 148 of the CCrP).
VIOLATED_ARTICLES: 3
6


ITEMID: 001-72873
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CSAKY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
TEXT: 4. The applicant was born in 1977 and lives in Budapest.
5. On 26 February 2002 criminal proceedings were instituted against the applicant, a college student, on a charge of extortion, which had allegedly been committed the day before. On 27 February 2002 he was arrested.
6. On 28 February 2002 the Budapest Police Department heard the applicant, explaining that criminal proceedings were being conducted against him and three other defendants on suspicion of having participated in the sequestration and beating of a certain Mr K., and of having forced him to sign a false statement of debt, conduct punishable under sections 175 and 323 of the Criminal Code.
7. Between 27 February 2002 and 21 March 2003, the defendants were interrogated on several occasions; moreover, several confrontations took place between the defendants themselves and between them and the victim. In particular, the applicant was interrogated on five occasions during this period. Also in the same period, the police heard 17 witnesses and the victim on altogether 14 occasions. Furthermore, experts in toxicology, haemogenetics and dactyloscopy were appointed, along with a forensic medical expert and an expert on physical evidence. The police were collecting evidence from banks, telephone companies, the land registry and the register of passenger cars.
8. Meanwhile, on 2 March 2002 the Pest Central District Court ordered the applicant’s pre-trial detention, referring to the danger of his absconding, in particular in view of the fact that he had not been living at his registered address for more than two years. Additional reference was made to the risk of collusion. On 11 March 2002 the Budapest Regional Court dismissed his appeal.
9. The applicant was assisted by defence counsel of his choice and was initially held at the Gyorskocsi Police Detention Facility. His detention was prolonged on 26 March and 24 May 2002 on the ground of a risk of absconding and collusion. These decisions were confirmed on 30 April and 12 June 2002, respectively. The courts held that the seriousness of the charges against the applicant alone sufficed to establish the risk of absconding.
10. On 9 August 2002 the Regional Court dismissed the applicant’s request for release. On 10 September 2002 that court’s appellate bench rejected his appeal. His further complaint of 15 September 2002 was to no avail.
11. On 27 September 2002 the applicant’s detention was again prolonged, essentially on the ground of a risk of absconding. The court noted that the risk of collusion was diminishing, since the applicant had confessed to his crime.
12. Meanwhile, from July 2002 onwards, the applicant’s behaviour in detention became more and more erratic; in particular, on one occasion he attacked a fellow inmate. In July and October 2002 as well as July, August and September 2003 the applicant was repeatedly committed, for shorter periods, to the Asylum for the Criminally Insane (“IMEI”) with a view to having his mental status observed by expert psychiatrists. Eventually, it was concluded that he suffered from a psychosis.
13. On 18 December 2002 and 17 January 2003, the renewed requests for release of the applicant, who from October 2002 onwards was detained at Budapest Penitentiary, were dismissed.
14. On 27 February and 26 June 2003 the Supreme Court prolonged the applicant’s detention on the basis of the risk of his absconding.
15. Given his increasingly disturbed state of mind, on 14 April 2003 the applicant’s case was disjoined from that against his accomplices.
16. On 24 July 2003 the Budapest Regional Court ordered the applicant’s release on bail. On 11 August 2003 the Budapest Court of Appeal overruled this decision, making reference to the danger of the applicant’s absconding, given the seriousness of the charges against him.
17. On 24 September 2003 the investigation against the applicant was closed. The case-file, communicated to the applicant on 20 October 2003, consisted of some 1,500 pages.
18. From 17 October 2003 onwards, the pre-trial detention of the applicant, by then diagnosed with chronic paranoid schizophrenia, was effected in the IMEI for the treatment of his condition. In response to complaints filed by the applicant’s father, the Penitentiary Supervisory Department of the Attorney General’s Office specified that the applicant had been committed to the IMEI on medical grounds, since he had shown psychotic symptoms at the Budapest Penitentiary; that, after examinations, the IMEI were of the opinion that his further treatment was necessary; and that forensic experts had repeatedly examined him. On 9 December 2003 the Budapest Court of Appeal confirmed the applicant’s committal to the IMEI.
19. On 28 October and 3 December 2003, the applicant’s detention was again prolonged by the Regional Court on the ground of a risk of absconding, given the seriousness of the charges against him. These decisions were upheld on 24 November 2003 and 2 February 2004 by the Court of Appeal.
20. On 1 December 2003 a bill of indictment was preferred. The applicant was charged with complicity in kidnapping and severe bodily assault, offences punishable under sections 170 and 175/A of the Criminal Code, as modified by Act no. 2 of 2003.
21. On 11 February 2004 another expert psychiatrist was appointed. On 4 March 2004 the expert informed the Regional Court that the applicant’s prolonged observation was warranted.
22. On 24 May 2004 the Budapest Regional Court dismissed the applicant’s renewed request for release on bail. On 8 July 2004 the Court of Appeal dismissed his appeal.
23. On 15 July 2004 the IMEI presented its observations on the applicant’s mental state. On 14 September 2004 the forensic psychiatrist submitted his opinion.
24. The applicant was eventually released from the IMEI on 19 October 2004. His pre-trial detention having been lifted, the applicant was ordered not to leave town.
25. The Regional Court ordered further psychiatric examinations of the applicant. Since he did not appear at an examination scheduled in December 2004, it had to be rescheduled for 1 March 2005.
26. Relying on the findings of the forensic psychiatrists, on 14 June 2005 the Regional Court suspended the proceedings in view of the fact that the applicant was not mentally capable of standing trial.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-95818
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF IPTEH SA AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The first applicant, Ipteh SA, is a company incorporated in Moldova. The other applicants are Worldway Limited (“the second applicant company”) – a company incorporated in the United Kingdom and holder of 35.29% of the shares of the first applicant; Kapital Invest SA (“the third applicant company”) – a company incorporated in Romania and holder of 49.63% of the shares of the first applicant; and Ion Rusu (“the fourth applicant”) – a Romanian national born in 1962, living in Iaşi and holder of 11.72% of the shares of the first applicant company.
6. At the end of the 1990s, Ipteh SA and a third company, I., were owners of a six-floor building located on the main boulevard of Chişinău (“the building”). Both companies were State-owned and had as their only asset different parts of the building.
7. In 1999 the State decided to privatise the companies and sold their shares to a private company, U.
8. In 2000 and 2001 the new owner of the companies transferred all parts of the building to the first applicant company.
9. Also in 2000 the former director of the first applicant company challenged the privatisation in the courts. However, his action was dismissed by a final judgment of the Economic Court of the Republic of Moldova of 11 July 2000, the courts having found that the privatisation had been legal in all respects.
10. In July 2001 the fourth applicant bought 141,772 shares in the first applicant company.
11. In August 2001 the second applicant company bought the rest of the shares of the first applicant company.
12. In August 2006 the first applicant company issued 510,000 new shares and sold them to the third applicant company.
13. On an unspecified date in 2002 the Prime Minister requested the Prosecutor General's Office to conduct an investigation into the lawfulness of the privatisation. On 17 February 2002 the Prosecutor General informed the Prime Minister that he had verified the lawfulness of the privatisation and had found it to be “in strict compliance with the legislation in force”. The Prosecutor General also informed the Prime Minister that the lawfulness of the privatisation had been thoroughly verified during the proceedings ending with the final judgment of 11 July 2000.
14. On an unspecified date in 2003 the President of Moldova requested the Prosecutor General's Office to examine the possibility of challenging the privatisation of 1999. In a letter of 26 June 2003 the Prosecutor General informed President V. Voronin that the transaction had been lawful and that there were no grounds to challenge it. Moreover, he indicated that after the entry into force of the new Code of Civil Procedure on 12 June 2003 it had become impossible to bring an appeal in cassation against the final judgment of 11 July 2000.
15. On 19 April 2007 the Prosecutor General's Office instituted proceedings on behalf of the State in which it contested the lawfulness of the 1999 privatisation of the first applicant company and of company I. on the ground that two Government regulations concerning the sale of State- owned shares had been breached. In particular, the Prosecutor argued that the size of the down payment made by company U. was smaller than the one provided in the regulations and that the final price offered for the shares had been too low. The Prosecutor relied on Article 50 of the Civil Code as a legal basis for his action (see paragraph 16 below). As a consequence of the alleged illegality of the privatisation, the Prosecutor's Office also sought the annulment of all the subsequent transfers and issues of shares as a result of which the second, third and fourth applicants had become shareholders of the first applicant company.
16. The applicants opposed the action and argued, inter alia, that it was time-barred and contrary to the principle of legal certainty. They submitted that the provision of Article 86 of the old Civil Code exonerating the Prosecutor from observing the three-year time-limit when lodging actions in the interest of the State was contrary to Article 6 of the Convention and made reference to Dacia SRL v. Moldova (no. 3052/04, 18 March 2008). They also submitted that the lawfulness of the privatisation had been confirmed by a final judgment of 11 July 2000 with the power of res judicata and that they were bona fide buyers who had been discriminated against with respect to other companies which had obtained State property in similar conditions and whose privatisations had not been contested later by the State. They also challenged the presiding judge on grounds of lack of impartiality and argued that in the proceedings which had ended with the final judgment of 11 July 2000 he had been successfully challenged on such grounds. However, the challenge was dismissed.
17. On 10 June 2008 the Chişinău Economic Court ruled in favour of the Prosecutor General's Office in the absence of the third and fourth applicants, who had not been summoned. The court dismissed the applicants' objection concerning the existence of a final judgment of 11 July 2000. The court did not dispute the applicants' submission that the proceedings of 2000 had had a similar subject matter; however, it dismissed the objection on the ground that that judgment had been adopted in proceedings in which the Prosecutor General's Office had not been involved. The court also dismissed the applicants' objection concerning the Statute of Limitations, arguing that according to Article 86 of the Civil Code an action by the Prosecutors in the interest of the State could not be time-barred.
18. The applicants appealed on the basis of the same arguments which were put before the first-instance court. They also complained that not all of them had had the possibility to take part in the proceedings and that the judge had lacked impartiality.
19. On 28 August 2008 the Supreme Court of Justice heard the applicants' appeal. During the proceedings, the applicants challenged judge N.M. from the panel and expressed doubts as to the manner in which the President of the Supreme Court, Judge I.M., had composed the panel. On the same day, the Supreme Court dismissed the appeal and upheld the judgment of the first-instance court.
20. The Supreme Court relied on provisions of the old Civil Code in order to dismiss the applicants' objection concerning their status as good faith buyers. In particular, the court argued that according to the old Civil Code property obtained unlawfully from the State could be claimed back irrespective of the fact that it had been obtained by a bona fide buyer. However, when examining the problem of the Statute of Limitations, the Supreme Court agreed with the applicants' objection concerning Article 86 of the old Civil Code (see paragraph 16 above). Nonetheless, the court stated for the first time in the proceedings that since the Prosecutor had introduced his action after the entry into force of the new Civil Code, the rules concerning limitations in time contained in that Code should apply. The Supreme Court expressed the opinion that the Prosecutor's action concerned the declaration of the absolute nullity of the privatisation and that therefore, in accordance with the provisions of Article 217 of the new Civil Code, it could not be limited in time. The Supreme Court also dismissed the objection concerning the existence of a final judgment in respect of the same problem on the same grounds as the first-instance court and dismissed the objection concerning the non-participation of some of the applicants in the proceedings.
21. On 3 October 2008, the Government decided to privatise the building again and an auction for the sale of the building was scheduled for 5 November 2008. It appears that the building was not sold on that date and the Court has no information as to the subsequent development of the events.
22. It does not appear from the facts of the case, as submitted by the parties, that the applicants have been repaid the value of their initial investment.
23. The relevant provisions of the Civil Code, in force at the moment of the privatisation, provide:
A contract which is contrary to the law shall be null and void ...
When a contract is declared null and void, each party must return to the other party everything received from it on the basis of the contract ...
The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations.
The competent court ... shall apply the limitation period whether or not the parties request such application.
Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim.
If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected.
The limitation period does not apply:
...
(2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”.
24. The relevant provisions of the new Civil Code, in force after 12 June 2003, read as follows:
(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has extinguished or is in the process of execution.
(1) The absolute nullity of a legal act can be invoked by any person having an interest. The court can invoke it on its own motion...
(3) An action to declare the absolute nullity is not limited in time.”
25. In a judgment of 20 April 2005 (case nr. 2ra-563/05) the Supreme Court of Justice dismissed the plaintiff's contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that, therefore, the provisions of the old Civil Code were applicable.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-113940
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KONTIĆ-DRAŠČIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicants, Ms Marina Kontić-Draščić and Ms Brankica Kontić-Draščić, are Croatian nationals, who were born in 1987 and 1949 respectively and live in Rijeka. They were represented before the Court by Mr M. Žugić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On an unspecified date J.K.D., the first applicant’s father and the second applicant’s husband, entered into an employment contract with the Hanseatic Shipping Company Ltd, registered in Cyprus, pursuant to which he was employed as a sailor on a vessel for six months starting from 19 September 1998. The contract specified that the employer’s insurance covered death in service and that the contract was governed by the laws of the Republic of Cyprus, and designated Limassol, Cyprus as the forum for dispute resolution. The vessel was insured in the United Kingdom.
4. On 7 October 1998 J.K.D. died while the vessel was in the Pacific Ocean.
5. The applicants brought a civil action in the Rijeka Commercial Court (Trgovački sud u Rijeci) on 27 May 1999 against the owner of the ship and the insurance company. They sought damages in connection with the death of their husband and father, claiming that his death had occurred as a result of a lack of adequate medical treatment. As regards the jurisdiction of the Croatian courts in the matter, they considered that where a death had occurred outside the territory of Croatia, the Croatian courts had jurisdiction because the actual damage – the suffering of the deceased’s close relatives residing in Croatia caused by the death and the resulting loss of support – nonetheless occurred in Croatia.
6. On 19 August 2004 the Rijeka Commercial Court awarded the applicants USD 151,114 and rejected the rest of their claim of USD 119,997. That judgment was upheld by the High Commercial Court (Visoki trgovački sud Republike Hrvatske) on 3 February 2006.
7. On 6 March 2006 the defendants lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske).
8. At a plenary session of the Civil Division of the Supreme Court on 26 February 2007, the Supreme Court endorsed its previous practice concerning claims for damages in connection with the death of a close relative which occurred outside Croatia. According to that approach, the Croatian courts had no jurisdiction in such matters. The explanation for this was that where a death had occurred outside Croatia the associated damage had also occurred outside Croatia. As the jurisdiction of the Croatian courts depended on the question of where damage had occurred, in cases where a death (and therefore the resulting damage) had occurred outside Croatia, the Croatian courts did not have jurisdiction, even when the claimant was a Croatian national.
9. Pursuant to that approach, on 18 July 2007 the Supreme Court declared the applicants’ civil action inadmissible for lack of jurisdiction. The relevant part of the decision reads:
“The dispute concerns non-contractual liability for damage with a foreign element. Therefore, section 53(1) of the Conflicts of Law Act (the “Act”) ... is relevant to the question of whether the Croatian courts have jurisdiction in the matter.
Under section 53(1) of the Act, in disputes concerning non-contractual liability for damage the Croatian courts have jurisdiction if it is prescribed under sections 46 and 50-52 of that Act or if the damage was caused on Croatian territory.
Jurisdiction for this dispute is not prescribed under sections 46 and 50-52 of the Act, and therefore it must be assessed whether the damage was caused on Croatian territory.
As to the question of where the damage occurred within the meaning of section 53 of the Act, the plenary session of 26 February 2007 of the Civil Division of this court took the view that the occurrence of damage comprises .... death ..., and that where the damage concerns .... the death of a person abroad, then it is to be understood that the damage the claimant is seeking in that connection occurred abroad, irrespective of the fact that certain categories of damage occurred in Croatia.
Therefore, [in accordance with] section 53(1) of the Act the Croatian courts do not have jurisdiction in this dispute.
...”
10. On 12 December 2007 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the above judgment of the Supreme Court which was dismissed on 10 September 2008.
11. The relevant provision of the Conflicts of Law Act (Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima, Official Gazette nos. 53/1991, 88/2001 – “the Act”) reads as follows:
“(1) The Croatian courts have jurisdiction in cases concerning claims for damages if ... the damage was caused on Croatian territory.
...”
12. The relevant part of judgment no. Rev-2390/1994-2 of the Supreme Court of 3 September 1997 reads:
“ ... According to the reasoning of the lower courts, which this court also endorses, damage is caused, within the meaning of [section 53(1) of the Act], when [a person] has been injured, death has occurred or an object has been damaged ...
The event at issue (a road accident), concerning the person in respect of whose death the claimants brought their action, occurred in Austria, and therefore the damage was caused in Austria and not in Croatia.
It follows that the courts correctly interpreted section 53 § 1 of the Act and that they therefore ... rightly declared the civil action inadmissible for lack of jurisdiction.”
13. The relevant part of Practice Direction no. Su-IV-46/7 of the Civil Division of the Supreme Court of 26 February 2007 reads as follows:
“... the Supreme Court confirms its practice [stated in] judgment 139 Rev-2390/94 of 3 September 1997, published in the Collection of Decisions 1/98 [on 30 June 1998], which reads:
The damage was caused when the [person] was injured, death occurred or an object was damaged.
Therefore, if the event at issue, concerning the person in respect of whose death the claimants brought their action, occurred abroad, the damage also occurred there, disregarding the fact that the expenses of the burial occurred in Croatia.”


ITEMID: 001-78984
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RUSSIAN CONSERVATIVE PARTY OF ENTREPRENEURS v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of P3-1 in respect of the applicant party and the second applicant;No Violation of P3-1 in respect of the third applicant;Violation of Art. 13 in respect of the applicant party and the second applicant;No violation of Art. 13 in respect of the third applicant;Violation of P1-1 in respect of the applicant party;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - financial award (applicant party);Costs and expenses award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant party, the Russian Conservative Party of Entrepreneurs (Российская консервативная партия предпринимателей), is a nationwide political party established under the laws of the Russian Federation.
The second applicant, Mr Aleksandr Anatolyevich Zhukov, was born in 1949 and lives in Smolensk. He stood as one of the applicant party's candidates for the 1999 elections to the State Duma.
The third applicant, Mr Viktor Sergeyevich Vasilyev, was born in 1959 and lives in Moscow. He was a supporter of the applicant party.
9. On 24 September 1999 the applicant party nominated 151 candidates for the elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral parliament.
10. On 15 October 1999 the Central Electoral Commission of the Russian Federation (Центральная избирательная комиссия РФ – “the CEC”) confirmed receipt of the applicant party's list of candidates. The applicant party paid the election deposit.
11. On 3 November 1999 the CEC refused to register the applicant party's list, with reference to sections 24(1), 47 (6) (d), 51 (11) and 91 (2) of the Elections Act. The CEC established that seventeen candidates had submitted substantially inaccurate information about their income and property and struck them off the list. One of them was the number two candidate on the list. On that ground the CEC decided:
“2. To refuse the registration of the federal list of candidates to the State Duma of the Russian Federation nominated by [the applicant party] because of the withdrawal [выбытие] of the candidate listed as number two in the nationwide section of the accepted federal list of candidates.”
12. The applicant party appealed to a court against the CEC's refusal to register it.
13. On 10 November 1999 the Civil Division of the Supreme Court of the Russian Federation, acting as a first-instance court, upheld the CEC's decision to remove from the list the candidates who had made false representations, but declared unlawful the CEC's refusal to register the list in its entirety. The court interpreted the term “withdrawal” in section 51(11) of the Elections Act as meaning only a candidate's voluntary withdrawal of his or her own free will. The court therefore held that the provision should not apply to a situation where one of the top three candidates had been struck off the list by the CEC.
14. The CEC appealed against that judgment. The applicant party submitted its observations on the CEC's grounds of appeal.
15. On 22 November 1999 the Appeals Division of the Supreme Court of the Russian Federation upheld the judgment of 10 November 1999. The court thoroughly analysed the wording of the Elections Act and agreed that the word “withdrawal” in section 51(11) of the Act should only refer to situations where the candidate's name had been taken off the list of the candidate's own free will or at the request of the candidate's electoral union.
16. On the same date the CEC allowed the registration of the applicant party's list of candidates.
17. On 26 November 1999 a deputy Prosecutor General of the Russian Federation lodged an application for supervisory review with the Presidium of the Supreme Court of the Russian Federation. The prosecutor argued that “withdrawal” was a generic term which applied to any situation where a candidate was struck off the list, be it the expression of will of the candidate himself, of his electoral union, or of the CEC. Hence a candidate's exclusion as a result of the CEC's decision should count as “withdrawal” and thus render section 51(11) of the Elections Act applicable.
18. On 8 December 1999 the Presidium of the Supreme Court of the Russian Federation granted the application for supervisory review and quashed the judgment of 22 November 1999. The court followed the line of reasoning suggested by the deputy Prosecutor General. The court emphasised that the exclusion of a candidate from the list as a result of the CEC's decision was only a specific instance of “withdrawal” and that the CEC's refusal to register the list had therefore been lawful.
19. On 9 December 1999 the CEC annulled its earlier decisions, refused the registration of the applicant party's list and ordered the applicant party's name to be removed from the ballot papers. The applicant party appealed against the CEC's decision to the Supreme Court of the Russian Federation. On 18 December 1999 the Supreme Court of the Russian Federation dismissed the applicant party's complaint. The court found that pursuant to the judgment of the Presidium of the Supreme Court of the Russian Federation, the CEC had no discretion in the matter and it was obliged as a matter of law to refuse the registration of the applicant party's list.
20. On 19 December 1999 the elections to the State Duma took place. The applicant party was not listed in the voting papers.
21. On 25 April 2000 the Constitutional Court of the Russian Federation, acting on an application by a group of Russian MPs, declared unconstitutional the part of section 51(11) of the Elections Act which provided for the refusal or cancellation of a party's registration in the event of the withdrawal of one of the top three candidates on the list.
22. The Constitutional Court stressed that the right to stand for election was an individual rather than a collective right. However, the contested provision made the exercise of that right conditional on the consistent presence of the top three candidates on the list, which amounted to a restriction on the other candidates' right to stand for election and on the citizens' right to vote for them. It violated the principle of equality between the candidates because it only applied in the event of withdrawal of one of the top three candidates but not of those in lower positions on the list. Such a restriction could not be justified by the special role played by the top three candidates, who were usually political heavyweights, in the electoral campaign and it did not serve any legitimate aim listed in the Constitution.
23. Moreover, withdrawal of one of the top three candidates had a disproportionately crippling effect on the electoral union or bloc, which forfeited the right to stand for election through no fault of its own. On the other hand, it made it difficult for the top three candidates to leave an electoral union whose platform had changed to the point of being inconsistent with their own views. It also encroached on the active voting rights of the electorate, depriving them of an opportunity to vote for the candidates and impairing the formation of a representative spectrum of members of Parliament.
24. Finally, the Constitutional Court noted that the refusal or cancellation of registration was essentially a sanction imposed on an electoral union or bloc. Sanctions could only be inflicted for violations of the electoral laws and should be proportionate to the violation. However, the contested provision made it possible to sanction electoral unions, blocs and other candidates who had not committed any violation, and this was incompatible with the general principles of justice and rule of law.
25. The Constitutional Court also ruled that the finding that section 51(11) was unconstitutional was of no consequence for the State Duma elections of 19 December 1999 and could not be relied upon to seek a review of their results.
26. On 4 May 2000 the Constitutional Court of the Russian Federation disallowed the applicant party's application for review of the compatibility of section 51(11) with the Constitution, because the subject-matter of the application was essentially the same as the matter adjudicated on 25 April 2000.
27. In 2001 the applicant party lodged an application with the Presidium of the Supreme Court of the Russian Federation to review the judgment of 8 December 1999 in the light of a new circumstance, namely the ruling of the Constitutional Court.
28. On 7 February 2001 the Presidium of the Russian Federation Supreme Court refused the applicant party's application. The court ruled that the ruling of the Constitutional Court was not a new circumstance under domestic law and that, in any event, the applicant party had failed to comply with the procedural time-limit of three months for lodging its application for a review.
29. On 30 July 2000 the applicant party applied to the CEC to have its election deposit paid back.
30. In a letter of 24 August 2000, the CEC informed the applicant party that the election deposit had been credited to the federal budget and could not be repaid. The CEC maintained that the decision of the Constitutional Court did not apply to the 1999 elections and that there was consequently no ground for returning the election deposit.
31. On 26 April 2001 the applicant party brought a civil action against the CEC for the return of the election deposit.
32. In a judgment of 6 September 2001, the Basmanniy District Court of Moscow dismissed the applicant party's action. The court based its decision on a provision of the Elections Act to the effect that the election deposit could not be repaid if the party's list had not been registered in accordance with section 51(11) of the Act. The court held that the applicant party's request for the return of the deposit on the basis of the Constitutional Court's ruling was in fact a disguised request for a review of the election results, which had been expressly prohibited by the Constitutional Court.
33. On 10 June 2002 the Moscow City Court upheld on appeal the judgment of 6 September 2001.
34. The Constitution of the Russian Federation guarantees to the citizens of the Russian Federation the right to elect and to stand for election to State and municipal bodies (Article 32 § 2).
35. The Federal Law on Elections of Deputies to the State Duma of the Russian Federation Federal Assembly (no. 121-FZ of 24 June 1999 – “the Elections Act”) provided at the material time as follows:
“1. No later than ten days after the submission of the lists of signatures ([or] upon receipt of the election deposit in the special account of the Central Electoral Commission) and of other documents required for the registration of the federal list of candidates, the Central Electoral Commission shall make a decision to register the federal list of candidates or a reasoned decision to refuse to register the said list...
6 ... Grounds for a refusal shall include:
(d) [“(г)” in the original] inaccuracy of information submitted by candidates, electoral unions or blocs in accordance with the present Federal Law, provided that such inaccuracy is substantial (inaccuracy of information in respect of specific candidates on the federal list of candidates of an electoral union or bloc may only be a ground for the exclusion of the candidates in question from the approved federal list)...”
“11. If the number of candidates, registered candidates and candidates excluded from the federal list of candidates of their own motion or by virtue of a decision of the electoral union or electoral bloc exceeds 25 per cent of the total number of candidates in the approved electoral list or if withdrawal of one or more candidates listed in the top three positions in the nationwide section of the approved federal list of candidates occurs (except in the event of compelling circumstances as described in subsection 16 of this section), the Central Electoral Commission shall refuse to register the federal list of candidates or shall cancel such registration.
15. ...[If] the registration of the federal list was cancelled pursuant to subsection 11 of this section..., all expenses incurred by the electoral commission in connection with the preparation and organisation of elections shall be reimbursed by that registered candidate, electoral union or electoral bloc.”
“7. ...If... a registered candidate withdraws on his own initiative or a candidate, registered candidate or the federal list is withdrawn by the electoral union or electoral bloc (with the exception of cases described in section 51(15) of this Federal Law) ... [or] registration of a candidate or of the federal list is refused (except on the grounds set out in section 91(2) of this Federal Law) ..., the election deposit that has been paid shall be returned by the electoral commission to the appropriate electoral fund no later than ten days after an application (notice) to that effect is submitted to the Central Electoral Commission ... by the electoral union, electoral bloc, candidate, or registered candidate, or after the registration is refused.”
“2. An electoral commission may refuse to register a candidate or a federal list of candidates if:
(а) it is established that the information submitted by the candidate or an authorised representative of an electoral union or bloc under this Federal Law is substantially inaccurate ...”
36. On 29 December 1999 the CEC approved, by the above decree, the general election results. It appears from the appendices to the decree that 28 political parties and blocs took part in the elections, of which six passed the requisite 5% threshold for representation in Parliament. 66.8 million voters cast their votes in the election, representing 61.85% of the voting population. 3.3% of voters voted “against all candidates”.
37. The relevant parts of Resolution 1320 (2003) adopted by the Parliamentary Assembly on 30 January 2003, read as follows:
“1. The holding of free, equal, universal, secret and direct elections at regular intervals remains a sine qua non [condition] for recognising a political system as democratic...
5. The Assembly considers that the code constitutes a major step towards harmonising standards for the organisation and observation of elections and in establishing procedures and conditions for the organisation of the electoral process...
8. The Assembly considers that, as a reference document not only for member states but also for itself, the code would reinforce the impact and the credibility of the electoral observation and monitoring activities conducted by the Council of Europe.”
38. The relevant parts of the declaration adopted by the Committee of Ministers on 13 May 2004 at its 114th Session, read as follows:
“The Committee of Ministers...
Recalling the importance of the effective implementation of the principles of Europe's electoral heritage: universal, equal, free, secret and direct suffrage...
Recognises the importance of the Code of Good Practice in Electoral Matters, which reflects the principles of Europe's electoral heritage, as a reference document for the Council of Europe in this area, and as a basis for possible further development of the legal framework of democratic elections in European countries;
Calls on governments, parliaments and other relevant authorities in the member states to take account of the Code of Good Practice in Electoral Matters, to have regard to it, within their democratic national traditions...”
39. The Code of Good Practice was adopted by the European Commission for Democracy through Law (Venice Commission) at its 51st (Guidelines) and 52nd (Report) sessions on 5-6 July and 18-19 October 2002 (Opinion no. 190/2002, CDL-AD (2002) 23 rev.).
40. Guidelines on Elections provide as follows:
“The five principles underlying Europe's electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals.
3.1. Freedom of voters to form an opinion
a. State authorities must observe their duty of neutrality. In particular, this concerns:
i. media;
ii. billposting;
iii. the right to demonstrate;
iv. funding of parties and candidates.
b. The public authorities have a number of positive obligations; inter alia, they must:
i. submit the candidatures received to the electorate;
ii. enable voters to know the lists and candidates standing for election, for example through appropriate posting.
iii. The above information must also be available in the languages of the national minorities.
c. Sanctions must be imposed in the case of breaches of duty of neutrality and voters' freedom to form an opinion.
3.2. Freedom of voters to express their wishes and action to combat electoral fraud
i. voting procedures must be simple;
ii. voters should always have the possibility of voting in a polling station...
vii. at least two criteria should be used to assess the accuracy of the outcome of the ballot: the number of votes cast and the number of voting slips placed in the ballot box...
x. polling stations must include representatives of a number of parties, and the presence of observers appointed by the candidates must be permitted during voting and counting...
xiii. counting must be transparent. Observers, candidates' representatives and the media must be allowed to be present. These persons must also have access to the records;
xv. the state must punish any kind of electoral fraud.”
41. Explanatory Report reads as follows:
“3. Free suffrage
26. Free suffrage comprises two different aspects: free formation of the elector's opinion, and free expression of this opinion, i.e. freedom of voting procedure and accurate assessment of the result.
3.1 Freedom of voters to form an opinion
a. Freedom of voters to form an opinion partly overlaps with equality of opportunity. It requires the state – and public authorities generally – to honour their duty of even-handedness, particularly where the use of the mass media, billposting, the right to demonstrate on public thoroughfares and the funding of parties and candidates are concerned.
b. Public authorities also have certain positive obligations. They must submit lawfully presented candidatures to the citizens' votes. The presentation of specific candidatures may be prohibited only in exceptional circumstances, where necessitated by a greater public interest. Public authorities must also give the electorate access to lists and candidates standing for election by means, for instance, of appropriate billposting...
3.2. Freedom of voters to express their wishes and combating electoral fraud
27. Freedom of voters to express their wishes primarily requires strict observance of the voting procedure. In practice, electors should be able to cast their votes for registered lists or candidates, which means that they must be supplied with ballot papers bearing their names and that they must be able to deposit the ballot papers in a ballot box. ... Electors must be protected from threats or constraints liable to prevent them from casting their votes or from casting them as they wish, whether such threats come from the authorities or from individuals; the state is obliged to prevent and penalise such practices.”
42. The relevant part of the summary of the findings of the Final Report on the parliamentary elections in the Russian Federation (19 December 1999), prepared by the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE/ODIHR), reads as follows:
“In general, and in spite of episodic challenges that could have undermined the general integrity of the process as a whole, the State Duma elections marked significant progress in consolidating representative democracy in the Russian Federation. They reflected a political environment in which voters had a broad spectrum of political forces from which to choose.
A solid turnout demonstrated a respectable level of public confidence in the process, and the final result showed a significant increase in the representative share of overall voter support actually included in the State Duma.
The electoral laws governing the process had improved significantly with each successive election and were found to be consistent with commonly recognized democratic principles, including those formulated in the OSCE Copenhagen Document of 1990. This legal framework provided a sound basis for the conduct of orderly, pluralistic and accountable elections.
The law provides the framework for parties and blocs to enter the political arena on an equal basis and provides a foundation for maintaining a level playing field for political participants. In particular, the law provided a basis for equal access to free media time for all participants, and instituted rigid parameters for enforcing accountability measures and controlling the use of campaign funds.
The political campaigns were competitive and pluralistic with 26 parties and blocs ultimately competing on the federal list and 3 to 24 candidates appearing on ballots for the single-mandate constituency races...”
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 13