ITEMID: 001-115383
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SOPIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 5. The applicant was born in 1954 and lived in Moscow until his arrest.
6. On 11 May 2010 the applicant was arrested on suspicion of aggravated fraud. The prosecutor’s case was that between November 2004 and April 2005 he, with at least fifteen others, had fraudulently assumed ownership of premises and a plot of land which belonged to a private legal entity in St. Petersburg. The criminal proceedings had been pending since 2005 without any apparent progress, with the criminal case having been closed, reopened, stayed and transferred between various investigating authorities on a number of occasions, until in January 2010 it was assigned to a large group of investigators from the Main Investigation Department of the Investigation Committee of the Russian Federation in Moscow.
7. Moscow investigators lodged a request with the Kuybyshevskiy District Court of St. Petersburg for authorisation of the applicant’s remand in custody. The request was supported by a certifying statement issued by a high-ranking police official. The relevant parts of the statement read as follows:
“As a result of investigation and search operations, such as ‘gathering of data’ and ‘questioning’, it has been established that ...
[The applicant] is an active member of the inter-regional organised criminal community headed by ‘Vasya Bryanskiy’ [Mr V.], which has for a long time been active in the territory of the North-Western and Central Federal Circuits. [The applicant] is a direct subordinate of the leader of [that criminal community], Mr V., with whom he has been committing serious and very serious crimes.
[The applicant] has extensive corrupt contacts with State bodies and with various law-enforcement agencies in St Petersburg, Moscow and other towns in the country.
[The applicant] is a founder of three limited-liability companies; [he] owns a car ... He has substantial financial resources, a travel passport ...; he occasionally travels abroad for business meetings or vacations, [with the most recent visits to] ... Israel [in 2009], Finland... in 2010, Riga ... in 2010 [and] Frankfurt am Main ... in 2010.
According to the available information, if [the court decides] to apply to [the applicant] a measure of restraint other than arrest, [he], understanding his role in a criminal group and the gravity of the crime committed [by him], will take every possible step to obstruct the establishment of the truth in the case, will bribe or threaten witnesses, and will move to another country to avoid criminal responsibility.”
8. On 13 May 2010 the Kuybyshevskiy District Court authorised the applicant’s placement in custody, having held as follows:
“[The applicant] is accused of a serious crime against property for which the criminal law establishes punishment of imprisonment for more than two years. The particular circumstances of the crime of which he is accused, committed by an organised group over a lengthy period of time and causing extensive damage to the victims, demonstrate a crime of a particularly audacious nature and thereby an increased danger to society.
The materials presented contain statements by suspect P. and victim T., connecting [the applicant] to the crime he is accused of. At the same time, the victim stated that on a number of occasions, when the documents confirming the transfer of title to the immovable property had been signed, [the applicant] had threatened her and her mother with a gun, thus breaking their will to resist the unlawful actions committed against them. All this was part of the plan which had been developed to take over their property. Given the victim’s fear for her life and limb, these circumstances forced her initially to give incomplete statements. In the court’s opinion, this is a sign that the individuals involved in the offence influenced the victim with the aim of obstructing the proceedings in the criminal case.
Having regard to the above-mentioned and given the particular circumstances of the crime with which [the applicant] is charged, the significance of the crime and its consequences, the fact that [the applicant] owns a gun (the fact which he has not disputed in the court hearing), his connections in State bodies and law-enforcement agencies, and also the fact that at the material time certain of the perpetrators of the crime committed by that group have not yet been identified, the court has sufficient grounds to conclude that [the applicant], who has a travel passport and relatives living permanently outside Russia, is liable to abscond from the investigation and trial, to threaten victims, witnesses and other participants in the criminal proceedings, or may, in other ways, hinder the proceedings in the case.
Information about [the applicant’s] character is not absolute and sufficient to dismiss the [investigator’s] request [for the applicant’s detention] or to apply a more lenient measure of restraint. The court takes into account that [the applicant] is suffering from a number of illnesses and that he is an elderly person; however, there is no evidence that [the applicant’s] state of health precludes his detention, and the court did not receive any proof that [the applicant] is the only caregiver for his relatives.
The materials presented to the court demonstrate that there is sufficient evidence that the crime took place and that [the applicant] may be involved; as well as evidence that the investigating authorities complied with the procedure for the arrest of the suspect (Articles 91 and 92 of the Russian Code of Criminal Procedure) and brought charges against him as prescribed by Section 23 of the Russian Code of Criminal Procedure. At the same time, the task of establishing the guilt of the accused is outside the competence of the court at this stage of the criminal proceedings ...
By virtue of Article 108 § 1.1 of the Russian Code of Criminal Procedure in the absence of grounds listed in sub-paragraphs 1-4 of paragraph 1 of Article 108 of the Russian Code of Criminal Procedure a [court] cannot authorise detention of an individual suspected of or charged with a crime proscribed by Article 159 of the Russian Criminal Code [the fraud], if that crime was committed in connection with business activities.
Having studied the presented materials, the court finds that the crime proscribed by Article 159 § 4 of the Russian Criminal Code with which [the applicant] is charged does not fall within the sphere of business activities, as the intentions of the members of the organised criminal group were aimed at unlawfully taking over title to the premises and a plot of land which belonged [to a private legal entity] which has no connection to any form of business activities.”
9. The applicant and his lawyer appealed, arguing that the detention order lacked any grounds and was based on mere assumptions in the absence of any evidence that the applicant, an elderly and seriously ill person with solid family ties, intended to abscond or reoffend. They further argued that the detention was unlawful, as Russian law did not permit the detention of individuals accused of fraudulent acts committed in the sphere of business activities, which was the offence with which the applicant was charged.
10. On 17 June 2010 the St. Petersburg City Court upheld the detention order, having endorsed the District Court’s reasoning.
11. On 6 July 2010 the Basmanniy District Court of Moscow accepted the investigator’s request for an extension of the applicant’s detention, having authorised it until 17 September 2010. The District Court reasoned as follows:
“The investigating authorities have charged [the applicant] with a socially dangerous act, a serious criminal offence for with the criminal law prescribes punishment in the form of no less than two years’ imprisonment.
presented, and the information about [the applicant’s] character, the court finds that there are sufficient grounds to conclude that, if released, [the applicant], being charged with [a serious offence], fearing the punishment for that serious offence, [and] being in possession of a travel passport [and] having relatives in foreign countries, will prefer to abscond from the pre-trial investigation and trial; that [he] is liable to influence witnesses and other participants in the criminal proceedings, given that he has acquired specific information about the course of the investigation; that he may destroy evidence for which the investigators are looking now; if released, [the applicant] may develop, together with his accomplices who have not yet been identified by the investigation or in respect of whom search warrants, including international ones, have been issued, a method of working against the investigators’ actions aimed at the establishment of the truth in the case.
The above-mentioned circumstances and information are well-founded, real and are corroborated by personal data about [the applicant] who has a travel passport [and] sufficient financial resources, as he is the head of a number of legal entities, and has, on a number of occasions in recent years, travelled abroad, including to visit his daughter in Denmark. That information was received in the course of operational search actions performed within the criminal proceedings. The above-mentioned data runs contrary to the arguments by the defence that the investigator’s request for an extension of [the applicant’s] detention is not based on any evidence or matters of fact.
In these circumstances there are grounds cited by Article 97 of the Russian Code of Criminal Procedure for an authorisation of detention, which, in its turn, shows that the grounds taken into account when [the applicant’s] placement in custody was authorised ... are still present and it is still necessary to apply that measure of restraint. Therefore, the request by the defence for the application of a more lenient measure of restraint unconnected to detention, including bail in the amount of 2,000,000 Russian roubles (RUB), should be dismissed because a new [lenient] measure will not exclude the possibility that the applicant will abscond from the investigation, including by leaving Russia, or will commit other acts in order to resist the investigation in the present criminal case, which is currently at the pre-trial stage.
When determining the issue of the extension of [the applicant’s] detention, the court takes into account his permanent residence in St. Petersburg, his family situation and the state of his health. The court did not receive any evidence, including from the defence, showing that [the applicant] is unfit for detention in the conditions of the temporary detention facility where he may receive necessary medical assistance; [the applicant] did not complain about the quality of the medical care received [in detention]; [the applicant] also explained that he is not in need of any medicines, including those which are necessary to treat his diabetes.
Moreover, the court takes into account a large number of actions which the investigating authorities have to take to complete the investigation of the criminal case; it finds that the period of extension requested by the investigator is well-founded and reasonable.
While assessing the present request for an extension the court does not find that the investigation is ineffective or delayed. In the court’s opinion, the length of the pre-trial investigation is caused by objective factors, such as the nature of the offences under investigation, the large volume of written evidence which requires extensive and time-consuming examination and analysis, and the need to authorise and perform complex expert examinations.”
12. On 2 August 2010 the Moscow City Court upheld the order of 6 July 2010, concluding that the District Court’s findings were reasonable and based on evidence provided by the investigating authorities. The City Court also noted that the District Court had thoroughly assessed the applicant’s personal situation and the state of his health, but had correctly concluded that the grounds for his detention outweighed the arguments for his release.
13. A further request by an investigator for an extension of the applicant’s detention was accepted by the Basmanniy District Court on 13 September 2010, with reasoning similar to that employed by the District Court in its previous decision. The applicant’s detention was extended until 17 December 2010.
14. On 20 October 2010 the Moscow City Court dismissed the applicant’s lawyers’ arguments that the extension of the detention was unreasonable and ill-founded. The City Court supported the District Court’s findings that the applicant was liable to abscond and obstruct justice if released.
15. On 15 December 2010 the Basmanniy District Court again extended the applicant’s detention for an additional three months, that is until 17 March 2011. It dismissed the applicant’s and his lawyers’ arguments that the investigators had delayed the criminal proceedings by failing to take any action in the procedure in months, that the applicant had no intention of absconding threatening witnesses or destroying evidence, particularly given that he had voluntarily handed over to the investigators every piece of material evidence which had been in his possession, that his travel passport had also been given to the investigators, and that his family situation, the state of his health and his character warranted his release. The District Court’s reasoning was identical to that in the two previous detention orders.
16. A week later police officials provided the Investigation Department with a memorandum which, in so far as relevant, read as follows:
“According to the available information, if [the court decides] to apply to [the applicant] a measure of restraint other than arrest, [he], understanding his role in a criminal group and the gravity of the crime committed [by him], will take every possible step to obstruct the establishment of the truth in the case, will bribe or threaten witnesses, and will move to another country to avoid criminal responsibility.”
17. On 9 February 2011 the Moscow City Court upheld the detention order of 15 December 2010 on appeal.
18. On 14 March 2011 the Basmanniy District Court found it reasonable to remand the applicant in custody for a further period, until 11 May 2011. The District Court considered that the length of the pre-trial investigation in the case was objectively justifiable by complex procedural actions, including a number of expert examinations which the investigators had to perform. In the District Court’s opinion, the applicant’s release on bail or on his own recognisance would not eliminate the risk that he would abscond and/or tamper with witnesses or destroy evidence. Having examined the medical evidence presented by the defence in support of the argument that the applicant was seriously ill, the District Court concluded that the applicant was still fit for detention.
19. The applicant and his lawyer appealed.
20. In the meantime, on 25 March 2011 the pre-trial investigation was closed and the applicant lodged a written request for the case file to be provided to him and his lawyers for study as soon as possible.
21. At the beginning of April 2011 the applicant and his lawyers started studying the case file materials. On a number of occasions they complained to the investigators that they had not been served with the subsequent volumes of the case file and that they had thus been forced to adjourn their reading of the file.
22. On 20 April 2011 the Moscow City Court upheld the detention order of 14 March 2011, finding no grounds to question the lawfulness and reasonableness of the District Court’s findings.
23. On 4 May 2011 the Moscow City Court extended the applicant’s detention until 17 September 2011, reasoning as follows:
“Despite [the applicant’s] age and the facts that he has not been convicted before, that he is registered and permanently resides in St. Petersburg, that he is a national of the Russian Federation, that he is not under psychiatric or drug abuse supervision, that he is suffering from a number of illnesses, [and] that his character has been assessed positively, I find that the necessity to apply to him the measure of restraint chosen earlier has not ceased to exist at the material time, as he has been charged with a serious criminal offence which, according to the prosecution, he committed as a member of an organised criminal group, certain of whose members have not yet been identified, and four of whose members absconded from the investigation and court and [were placed] on the international wanted persons’ list; in this regard, the court accepts the investigator’s arguments that there are sufficient grounds to conclude that if released [the applicant] will abscond from the pre-trial investigation and trial, will continue his criminal activities, will threaten witnesses and other parties to the criminal proceedings, will destroy evidence, and will interfere with justice in the criminal case in other ways.”
24. The extension order was upheld on appeal on 25 May 2011 with the appellate court accepting the City Court’s reasoning.
25. On 9 June 2011 the applicant informed the investigators that he had read the entire case file.
26. On 22 July 2011 the Moscow Main Investigation Department sent the case to the St Petersburg Main Investigation Department, given that the majority of the victims and witnesses lived in St Petersburg, where the criminal offences had allegedly been committed. On 8 August 2011 investigators in St Petersburg took over the case. On 14 September 2011 a senior investigator of the St Petersburg Main Investigation Department issued a decision authorising the reopening of the pre-trial investigation. In the same decision, having noted that the maximum period for detaining the applicant had expired and that the long-term detention had negatively affected the applicant’s health, the senior investigator authorised his immediate release on a written undertaking not to leave the town. The applicant was released the same day.
27. It appears that the criminal proceedings against the applicant are still pending.
28. The Russian legal regulations of detention are explained in the judgment of Isayev v. Russia, no. 20756/04, §§ 67-80, 22 October 2009.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-79482
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KNYAZHICHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Loukis Loucaides
TEXT: 6. The applicant was born in 1952 and lives in the town of Bataysk of the Rostov Region.
7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума).
8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (3,100 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period.
9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,952 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid.
10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court.
11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened.
12. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003.
13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).
14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal.
15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The case was transferred to the Presidium for the examination on the merits.
16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium.
17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence. The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination.
18. On 22 April 2004 the Town Court examined the case anew. In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted that multiplier.
19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from 2004, pay him 4,567.5 Roubles monthly, with subsequent readjustment.
20. The judgment of the Town Court was not appealed against and became final.
21. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review.
22. The CCivP, in the relevant part, provides as follows:
“1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.”
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
“2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.”
“2. The President of the...regional...court...may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.”
“The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61661
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KACMAR v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 13;No violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 9. The applicant leased premises in a house owned by Kovospracujúci podnik, a State owned company with registered office in Prešov. He ran his business there. In April and May 1991 the applicant claimed that the relevant provisions of the State Property Transfer Act of 1990 (Act No. 427/1990) entitled him to purchase the part of the house which he leased.
10. On 12 June 1991 the Prešov District Commission for Denationalisation of State-Owned Property decided that the applicant was not entitled, under the State Property Transfer Act of 1990, to be given priority in purchasing the premises leased by him.
11. On 6 June 1991 the applicant filed an arbitration request claiming tht Kovospracujúci podnik should be ordered to conclude a purchase contract with him under Act No. 427/1990 in respect of the two premises leased by him and having the surface of 47.7 and 34.9 square metres respectively. The applicant further claimed that the purchase contract was to be determined pursuant to Section 8 of Act No. 427/1990.
12. On 16 July 1991 the Regional Arbitration Court (Krajská štátna arbitráž) in Košice delivered a decision the operative part of which reads:
“The defendant – Kovospracujúci podnik, a State owned enterprise in Prešov is obliged to conclude a purchase contract with [the applicant] who has leased two premises situated ... in the building located in Prešov, Hlavná ulica 79 and having a surface area of 47.7 and 34.9 square metres respectively. The purchase contract shall concern the above premises and is to be concluded under Section 16(2) of Act No. 427/1990 within ten days from the final effect of this decision, it being understood that the purchase price will be determined pursuant to Section 8 of Act No. 427/1990.”
The decision acquired final binding effect on 8 August 1991.
13. On 9 October 1991 the applicant concluded a purchase contract with Kovospracujúci podnik and paid the purchase price. The contract comprised several premises the total surface area of which was 145 square metres and also real estate with a surface area of 883 square metres. Subsequently Kovospracujúci podnik was placed in liquidation.
14. On 23 July 1992 the liquidator claimed that the proceedings leading to the decision of the Regional Arbitration Court of 16 July 1991 be re-opened. The liquidator argued that the requirements of the State Property Transfer Act of 1990 had not been met. On 25 February 1994 the Košice Regional Court dismissed the request. The decision stated that the liquidator had submitted no new relevant facts which could not have been invoked in the original proceedings and that, accordingly, the statutory requirements for re-opening the proceedings had not been met.
15. On 31 January 1995 the Prešov District Court declared the purchase contract of 9 October 1991 void ex tunc at the initiative of the Prešov District Prosecutor. The District Court found that in the contract the parties had not explicitly agreed on the date of transfer of the ownership as required by the relevant law and that the lawyer of Kovospracujúci podnik had exceeded his power in that he had also included in the contract premises which had not been leased by the applicant.
16. On 20 December 1995 the Košice Regional Court upheld the District Court’s judgment. The Regional Court found that the contract did not specify the property in question with sufficient certainty and that this resulted in conflicts between the applicant and another person who had purchased the remaining part of the house from Kovospracujúci podnik. With the consent of the parties the Košice Regional Court discontinued the proceedings in respect of the claim that Kovospracujúci podnik and the applicant should restore to each other everything which had been the subject of the contract of 9 October 1991.
17. On 19 December 1995 the applicant requested the Prešov District Court to enforce the decision delivered by the Regional Arbitration Court in Košice on 16 July 1991. He relied on Article III (7)(a) of Act No. 519/1991, Section 763(1) of the Business Code and Section 42a(6) of the Arbitration Act.
18. In December 1995 and in March 1996 the applicant submitted a new draft purchase contract for signature to the liquidator of Kovospracujúci podnik with reference to the arbitration court’s decision of 1991. On 22 April 1996 the liquidator asked the applicant in writing to submit a supplement to the draft contract as well as an expert opinion.
19. On 9 April 1996 the person who had purchased the other part of the house claimed that the co-ownership of the house be dissolved and that the share owned by Kovospracujúci podnik be transferred to his ownership. On 22 April 1996 the Prešov District Court granted the claim with reference to Article 142(1) of the Civil Code and ordered the plaintiff to pay 188,496.61 Slovakian korunas (SKK) to Kovospracujúci podnik. The liquidator of the latter waived his right to appeal and the judgment became final on 2 May 1996. It was not served on the applicant as he was not a party to the proceedings.
20. On 17 May 1996 the applicant requested the grant of an interim measure prohibiting Kovospracujúci podnik from concluding any contracts for the transfer of the property in question. On the same day the Prešov District Court granted the request. On 7 February 1997 the Košice Regional Court reversed the first instance decision as, at the time of its delivery, Kovospracujúci podnik no longer owned the property.
21. On 23 May 1997 the applicant complained about a violation of his property rights to the Constitutional Court. On 1 July 1997 the latter rejected the petition for lack of jurisdiction.
22. On 26 May 1997 the applicant requested the Prešov District Court to consider the new owner of the house as defendant in the enforcement proceedings brought on 19 December 1995.
23. On 4 June 1997 the Prešov District Court, responding to the applicant’s above request of 19 December 1995, ordered the enforcement of the decision of the Regional Arbitration Court of 16 July 1991 in that it imposed a fine of SKK 5,000 on the owner of the house with reference to Article 351 of the Code of Civil Procedure. The District Court expressed the view that the obligation to conclude a purchase contract had passed ex lege to the new owner of the house following the transfer of ownership to him. The proceedings were discontinued so far as they concerned Kovospracujúci podnik, as the latter no longer owned the property. The owner of the house appealed.
24. On 15 August 1997 the Prešov Regional Court quashed the District Court’s decision of 4 June 1997. The Regional Court did not find it established that the obligation imposed by the arbitration court in 1991 had been transferred to the new owner of the house. It therefore instructed the first instance court to ask the applicant and the liquidator of Kovospracujúci podnik whether they agreed to a change of defendant. Failing such an agreement, there could be no change of defendant.
25. As to the merits of the applicant’s claim for enforcement, the Regional Court’s decision stated:
“... it is not possible to proceed pursuant to Article 351 of the Code of Civil Procedure or by any other means of enforcement of a decision where the decision to be executed imposes an obligation to make a certain declaration of intent [prejav vôle] within the meaning of Article 80(b) of the Code of Civil Procedure (for example to conclude a purchase contract). In such a case Section 161(1) of the Code of Civil Procedure is not applicable ... but Article 161(3) is to be applied, according to which final judgments imposing the declaration of intent replace such a declaration of intent. Accordingly, on the basis of such a judgment it is not possible to claim its judicial enforcement where the person concerned fails to comply with the obligation imposed, and it is not possible to have recourse to Article 351 of the Code of Civil Procedure...”
26. On 6 November 1997 the Prešov District Court dismissed the applicant’s request for change of defendant as the liquidator of Kovospracujúci podnik disagreed with the proposal. The statutory requirements for granting the applicant’s request had thus not been met.
27. In a separate decision delivered on 6 November 1997 the Prešov District Court dismissed the applicant’s request for enforcement of the Košice Regional Arbitration Court’s decision of 16 July 1991. In particular, the District Court’s decision stated:
“...a decision relating to a declaration of intent may be relied on by the person at whose request it is made and is given effect to as a document reflecting a legal act, in accordance with the legal rules in force. The decision is submitted to the competent legal authority, where necessary, with a view to registering or making public the intent of the person against whom the proceedings have been brought. Such a decision may not be the subject either of judicial enforcement or of execution by an execution officer.
The Košice Arbitration Court’s decision of 16 July 1991 ... cannot be enforced as it lacks a material element of enforceability. Where proceedings concern a declaration of intent in respect of a contract, the operative part of the decision on the merits of the case must contain all essential elements of such a contract ... Where one of such elements is omitted, the decision on the merits cannot be enforced pursuant to Article 161(3) and such a shortcoming cannot be remedied by any other means of enforcement.
In the present case [the dispute concerns] a purchase contract. The definition of the purchase price is, along with its object, one of the essential elements of such a contract. Reference [in the Arbitration Court’s decision of 16 July 1991] to Section 16 of Act No. 427/1990 does not mean that the [vendor’s] declaration of intent which was to be replaced was sufficiently certain as required by Section 37 of the Code of Civil Procedure.
In the case under consideration it is Article 161(3) and not Article 161(1) of the Code of Civil Procedure which is applicable... This means that on the basis of a judgment [replacing the declaration of intent of a party] ... it is not possible to claim judicial enforcement and it is not possible to proceed pursuant to Section 351 of the Code of Civil Procedure.”
28. The applicant appealed. He argued, inter alia, that the arbitration court’s decision of 16 July 1991 had not replaced the declaration of intent of the defendant company but had obliged its representatives to conclude a contract with the applicant.
29. On 18 December 1997 the Prešov Regional Court upheld the District Court’s decisions of 6 November 1997. The Regional Court noted that it was not possible to change defendants in the context of enforcement proceedings as a decision could be enforced only in respect of the person against whom it was delivered. The new owner of the house did not become the general successor to Kovospracujúci podnik which still existed. By purchasing the house the new owner was not, therefore, liable for the original owner’s contractual obligations.
30. As regards the applicant’s request for enforcement of the arbitration court’s decision of 16 July 1991, the Prešov Regional Court fully subscribed to the views expressed by the first instance court. In particular, the Regional Court’s decision stated that a decision ordering a party to conclude a purchase contract replaced the intent of the vendor to do so. In respect of such decisions, Article 161(3) was relevant, according to which, once they were of binding and final effect, such decisions replaced the intent of the party concerned. Enforcement of such decisions under Articles 161(1) and 351 of the Code of Civil Procedure was excluded.
31. In 1998 the applicant was ordered to move his business out of the premises in question. On 26 April 1999 the Prešov District Court ordered the applicant to pay SKK 513,187 plus default interest to the owner of the premises as compensation for their prior use.
32. Pursuant to Article 142(1), courts may terminate co-ownership of property at the request of one of the co-owners. When it is not practicable to divide the property, its ownership shall be transferred to one or several co-owners for appropriate compensation. Practical use of the property should be borne in mind.
33. Article 142(2) provides, inter alia
34. Under Article 142(3), the termination of co-ownership may not be detrimental to persons possessing rights attached to the real property concerned.
35. Under Article 80(b), a claim by way of judicial proceedings may concern the fulfilment of an obligation resulting from the law, from a legal relationship or from a violation of law.
36. Article 161(1) and (2) provides that a judgment is enforceable after the expiry of the time-limit set for complying with the obligation imposed by it or, when it does not impose an obligation, after it becomes final.
37. Under Article 161(3), final judgments ordering a party to make a declaration of intent have the effect of such a declaration.
38. Article 351(1) provides that courts may, in the context of enforcement proceedings, fine parties who fail to comply with obligations imposed by a decision which is to be enforced.
39. Pursuant to Article 351(2), the payment of a fine under the first paragraph of Article 351 does not exempt the party concerned from liability for damage.
40. Under Article 351(3), courts shall allow the party concerned to take steps with a view to restoring the previously existing conditions at the cost of the other party when the latter fails to comply with the obligation imposed by the decision to be enforced and thereby brings about a change in the situation. Courts may take appropriate measures with a view to assisting the party concerned in having the original situation restored.
41. Act No. 519/1991 of 18 December 1991 amends the Code of Civil Procedure. Article III(7)(a) provides that arbitration courts’ decisions remain enforceable unless the rights in question have lapsed.
42. Section 42a(6) provides that a decision imposing an obligation other than the payment of a sum of money can be enforced by means of a fine of up to 100,000 korunas. Such fines can be imposed repeatedly.
43. The Business Code entered into force on 1 January 1992. Section 763(1) provides that legal relations which came into being prior to its entry into force and the rights resulting there from are governed by legal rules existing prior to the entry into force of the Business Code.
44. Section 8 provides that real estate and buildings the ownership of which is to be transferred under this Act are to be valued in accordance with the relevant price regulations.
45. Under Section 16(1) and (2), persons who, by 1 October 1990, leased premises the ownership of which is to be transferred have the right to purchase those premises. In such a case, no public sale is to be held and the State organisation concerned shall conclude a purchase contract with the tenant.
46. Section 16(3) provides that the purchase price is to be determined pursuant to Section 8 of Act No. 427/1990.
47. Act No. 111/1990 on State-owned company (Zákon o štátnom podniku) was adopted on 19 April 1990. Under Section 2(1), State-owned companies carry out their activities autonomously and on their own account. Section 5(1) provides that State-owned companies are legal persons which take legal actions on their own behalf and incur liability for such actions. Under paragraph 2 of Section 5, State-owned companies do not assume liability for obligations of the State or of other persons. The State does not assume liability for obligations of a State-owned company unless the law otherwise provides.
48. In accordance with the Supreme Court’s case-law, judgments imposing an obligation to conclude a purchase contract replace the vendor’s declaration of intent to conclude such a contract. There is, therefore, no reason for applying Article 351 of the Code of Civil Procedure in proceedings concerning the enforcement of such judgments (Collection of opinions, conclusions, analyses and assessments of judicial practice, No. IV, p. 796).
49. Where a court’s judgment is to replace the declaration of intent of a party to a purchase contract concerning real property, the contents of the contract has to be specified in the operative part of the judgment or a reference must be made therein to an attached written version of such a contract. Such contract thus becomes a part of the operative part of the judgment. Where the real property is not sufficiently specified and where the operative part of a judgment does not contain information about the purchase price, the judgment cannot replace the declaration of intent of a party to conclude a purchase contract (Collection of Judicial Decisions and Standpoints of the Supreme Court, No. 53/1991).
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89005
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GÜLEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 5. The applicants were born in 1942 and 1931 respectively and live in Germany.
6. In connection with an ongoing investigation against activist members of the illegal armed organisation Devrimci-Sol (the “Revolutionary Left”), on 17 April 1992 police officers from the Anti-Terrorism Branch of the Istanbul Security Directorate conducted an operation in three buildings located in different areas of Istanbul. The applicants’ daughter, Ayşe Gülen Uzunhasanoğlu, was killed during this operation. According to the police reports, police officers arrived at the building located in Erenköy at about 2.30 a.m. Ayşe Gülen Uzunhasanoğlu was living on the third floor of this building. The police officers, wearing bulletproof vests, took the necessary safety measures outside the building. Four of the officers went upstairs to flat no. 9 and rang the bell. There was no answer, and the officers forced the door open. Shots were fired from one of the rooms. Despite the officers’ call to surrender, the firing continued and a clash broke out, lasting approximately thirty minutes. When the firing ceased, the police found the dead bodies of two women; one in the bathroom and another in the living room, the latter being later identified as Ayşe Gülen Uzunhasanoğlu. It was observed that there was a Beretta gun next to Ayşe Gülen Uzunhasanoğlu’s body. As the police also found explosives in the flat, a bomb disposal team was called to the scene and the flat was evacuated. Once the apartment was secured, the Kadıköy public prosecutor was informed about the incident. The prosecutor arrived at the scene of the incident at about 9.30 a.m. and prepared a scene of incident report in which he noted that photographs of the bodies had been taken; that a sketch map of the flat had been drawn and that fingerprints of the bodies had been taken. The report further indicated that a semi-automatic Italian Beretta 7.65 mm pistol, its magazine and cartridges, 3 Kalashnikov cartridges, 90 cartridges of 7.62 mm, 7 bullet cases of 7.65 mm, 23 bullet cases of 5.56 mm, 90 bullet cases of 9 mm, several hand made bombs and material to manufacture explosive devices had been found. The prosecutor further examined the bodies in the presence of a medical expert. The preliminary examination of the bodies revealed that there were several bullet entry and exit holes on both corpses. The bodies were subsequently taken to the Istanbul Forensic Medicine Institute for autopsy. Following the inspection of the flat by the public prosecutor, the premises were sealed by the police.
7. On 27 April 1992 ballistic examinations of the Beretta pistol, the bullet cases and cartridges collected from the incident scene were conducted by two experts from the Regional Criminal Police Laboratory. According to their report, the seven 7.65 mm bullet cases had been fired by the Beretta pistol found at the scene of the incident. The report further concluded that the 52 bullet cases of 9 mm and the 23 bullet cases of 5.56 mm, which had been sent for examination, had been fired from the guns of the police officers.
8. On 28 April 1992 a criminal complaint was filed against Mr Necdet Menzir, the Head of the Istanbul Security Directorate at the time, and the police officers who had been involved in the three operations conducted on 17 April 1992.
9. On 4 May 1992 the first applicant applied to the Kadıköy public prosecutor and requested that the flat which had been sealed after the incident be returned to her. On 20 May 1992 the public prosecutor sent a letter to the Kadıköy Magisrates Court requesting that the keys of the flat be returned to the applicants.
10. On 15 May 1992 three experts from the Forensic Medicine Institute conducted an examination of Ayşe Gülen Uzunhasanoğlu’s clothes and prepared a report which held that, if short-barrelled firearms had been used during the incident, Ayşe Gülen Uzunhasanoğlu had been shot at from a distance of more than 3540 metres. However, if Ayşe Gülen Uzunhasanoğlu had been shot at with long-barrelled firearms, then the distance would have been more than 75100 metres. The experts further explained that it was impossible to determine the exact range of the shootings in view of the information at their disposal.
11. On 27 May 1992 the Istanbul Forensic Medicine Institute delivered the autopsy report on the applicants’ daughter. The report described ten bullet wounds on the body, eight of which had been fatal. It was also established that the body had not been shot at from point-blank range. The report concluded that the cause of death was internal bleeding due to bullet wounds.
12. In the course of the investigation, the public prosecutor took statements from the police officers who had taken part in the operation on 17 April 1992, from two neighbours of Ayşe Gülen Uzunhasanoğlu and from the first applicant.
13. On 24 June 1997 the Kadıköy public prosecutor filed a bill of indictment with the Kadıköy Assize Court against 15 police officers for having killed Ayse Gülen Uzunhasanoğlu. The charges were brought under Articles 31, 33, 49, 251, 281, 450 and 463 of the Criminal Code. The applicants intervened in the proceedings.
14. On 14 November 2000 the Kadıköy Assize Court, finding that there were no grounds for imposing any punishment on the defendants, acquitted the police officers. The court held that the officers had acted within the scope of their duties and had remained within the limits of legitimate self-defence, in accordance with section 16 of Law no. 2559 on the duties and powers of the police.
15. On 14 November 2001 the Court of Cassation denied the applicants leave to appeal.
16. A description of the relevant domestic law at the material time and international law can be found in Erdoğan and Others v. Turkey (no. 19807/92, §§ 5158, 25 April 2006).
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-92219
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YARMOLA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: 4. The applicant was born in 1948 and lives in the town of Yevpatoriya, Ukraine.
5. On 8 December 1999 the Chornomorsk District Court of the Autonomous Republic of Crimea (“the District Court”) fined the applicant UAH 136 for having exercised commercial activity without a licence and ordered the confiscation of 268.5 tonnes of the waste metal collected by him.
6. On 22 December 1999 the same court, following the protest of the Chrornomorsk District Prosecutor of the Autonomous Republic of Crimea, quashed this decision and terminated the administrative proceedings against the applicant. The case file was transferred to the Chornomorsk District Prosecutor’s Service of the Autonomous Republic of Crimea for a decision on account of the applicant’s criminal liability for tax evasion.
7. On 22 January 2000 the Head of the Chornomorsk Tax Inspectorate refused to institute criminal proceedings against the applicant.
8. On 27 January 2000 the District Court examined the same case file again and fined the applicant UAH 136 for having exercised commercial activity without a licence and ordered the confiscation of 268.5 tonnes of the waste metal collected by him. The applicant lodged an appeal with the Supreme Court of the Autonomous Republic of Crimea.
9. On 27 April 2000 the Chornomorsk Bailiffs’ Service, noting that proceedings were pending before the Supreme Court of the Autonomous Republic of Crimea, ordered the suspension of the enforcement proceedings in respect of the decision of 27 January 2000. However, the Yevpatoriya Tax Inspectorate sold the waste metal.
10. On 10 May 2000 the Supreme Court of the Autonomous Republic of Crimea quashed the decision of 27 January 2000 and terminated the proceedings on the ground that the same facts had already been examined by the court.
11. On 19 April 2002 the District Court ordered the restitution of the 268.5 tonnes of the waste metal to the applicant.
12. On 20 August 2002 the same court, following the applicant’s request, modified the ruling of 19 April 2002 and ordered the State Treasury to pay the applicant UAH 89,410 in compensation for the waste metal sold by the Tax Inspectorate.
13. The applicant challenged the Bailiff’s inactivity in enforcing the ruling of 19 April 2002 on numerous occasions before the domestic authorities.
14. In September 2002 the applicant lodged his claim for compensation for damage caused by the administrative proceedings against him and the confiscation of his property with the District Court. On 10 December 2003 the District Court ordered the State Treasury to pay the applicant UAH 3,000. On 14 July 2004 the Court of Appeal of the Crimea modified this decision and ordered the same amount to be paid to the applicant from the State Budget.
15. The ruling of 19 April 2002, as amended by the ruling of 20 August 2002, and the judgment of 10 December 2003 were enforced in August 2004.
16. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine, no. 67534/01, §§ 16-19, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, §§ 20-25, 29 June 2004.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-70070
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: VAN OFFEREN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Harry van Offeren, is a Netherlands national who was born in 1965 and lives in ‘s-Hertogenbosch. He is represented before the Court by Mr W. Bos, a lawyer practising in Eindhoven.
In its judgment of 13 September 1999, following criminal proceedings on appeal, the Court of Appeal (gerechtshof) of ‘s-Hertogenbosch quashed the impugned judgment of the Regional Court (arrondissementsrechtbank) of ‘s-Hertogenbosch of 21 January 1999, convicted the applicant of having transported between 1 June 1998 and 8 October 1998 one or more quantities of cocaine, of having held on 9 October 1998 about 640 grams of cocaine, of having held on 9 October 1998 – in preparation of drug offences – about 535 grams of a substance [mannitol] destined to dilute cocaine, of having unlawfully held on 9 October 1998 firearms and ammunition, and of social security fraud. It acquitted the applicant of the remaining charges, including trafficking cocaine. It sentenced the applicant to four years and six months imprisonment less the time spent in pre-trial detention. This judgment became final after an initially lodged appeal in cassation to the Supreme Court (Hoge Raad) was withdrawn on 24 September 1999.
In the meantime, on 21 December 1998, the public prosecutor had summoned the applicant to appear before the Regional Court of ‘sHertogenbosch in order to be heard on the prosecutor’s request for an order for the confiscation of illegally obtained advantage (vordering tot ontneming van wederrechtelijk verkregen voordeel) within the meaning of Article 36e of the Criminal Code (Wetboek van Strafrecht), which had been assessed by the public prosecutor, on the basis of a criminal financial investigation (strafrechtelijk financieel onderzoek) carried out and closed on 18 December 1998, at a total amount of 357,059 Netherlands guilders (NLG; corresponding to EUR 162,026.31).
At the hearing held on 13 September 1999 before the Regional Court on the prosecution’s application for a confiscation order, the applicant argued that, although he had been convicted of four offences for which a fifth-category fine could be imposed, namely three offences under the Opium Act (Opiumwet) and one offence under the Weapons and Ammunition Act (Wet Wapens en Munitie), he had not obtained any benefits by or through these offences. He had only traded in cars and gold, not in drugs. In so far as the request for a confiscation order was based on illegally obtained advantage by or through trafficking cocaine, the applicant argued that it could not be held that he had committed this offence as the Court of Appeal had acquitted him of that charge and that, therefore, the imposition of a confiscation order on that basis would be in violation of his right to be presumed innocent under Article 6 § 2 of the Convention.
In its ruling of 25 October 1999, the Regional Court rejected the applicant’s arguments and issued a confiscation order in the amount of NLG 357,059 to be replaced, in case of lack of payment or impossibility of recovery, by thirty months detention.
The applicant filed an appeal against this ruling with the Court of Appeal of ‘s-Hertogenbosch.
Hearings were held before the Court of Appeal on 7 March 2002 and 8 July 2002, in the course of which it noted the contents a number of documents, including two financial reports drawn up on 17 December 1998 and a further financial report drawn up on 2 July 1999 by the Financial Criminal Investigation Unit of the North Brabant Regional Police, according to which the applicant had had considerable revenues from an untraceable/unknown source, in any event not from a traceable legal source. The applicant maintained that he had only traded in cars and gold, but not in cocaine. The Court of Appeal further heard seven witnesses – including Mr F. whom the prosecution suspected of perjury (meineed) and in respect of whom the procedure concerning a suspicion of perjury by a witness as set out in Article 295 of the Code of Criminal Procedure (Wetboek van Strafvordering) was applied – on the applicant’s business activities.
In its decision of 25 September 2002, the Court of Appeal quashed the ruling of 25 October 1999 and imposed a confiscation order in the amount of EUR 162,026.31, to be replaced – in case of lack of payment or impossibility of recovery – by eighteen months’ detention. In so far as relevant, this decision reads as follows:
“It has been argued on behalf of [the applicant] that there exist insufficient indications that [he] would have committed (in brief) cocaine trafficking.
The court rejects this defence. In its judgment of 13 September 1997 having become final, this court has convicted [the applicant] of, inter alia, transport of cocaine in the period between June and October 1998, possession of about 640 grams of cocaine, and possession of the diluent mannitol. Cocaine trafficking must be regarded as an offence similar to the offences under the Opium Act found proved.
The court is of the opinion, noting the quantity of cocaine held by [the applicant], the proved transport of cocaine ..., the possession of a diluent, and the CID (Criminele Inlichtingen Dienst; Criminal Intelligence Service) information in the case-file, that there exist sufficient indications that [the applicant] has committed the offence of cocaine trafficking.
The court considers wholly incredible the [applicant’s] explanation for his frequent visits to the attic he had rented ... (where the cocaine had been concealed) that every time he would exchange there a 9 mm. Walther pistol for an easier to handle Beretta calibre 6.35.
In addition it appears from the property analysis (vermogensvergelijking) prepared by the police (first and second financial reports of [17 December 1998 of] the Financial Criminal Investigation Unit of the North Brabant Regional Police) that [the applicant], in the period between 1 January 1997 and 31 May 1998, held a considerable capital consisting, inter alia, of jewellery and cars where [the applicant], during that period, was in receipt of welfare benefits.
[The applicant] and his counsel have stated before the court in the [present] proceedings on appeal that the different cars, which according to the prosecution belonged to [the applicant], would have been financed by the witness F. and would in fact belong to the latter, which statement was confirmed in full by the witness F. in the [present] proceedings on appeal.
However, the court is of the opinion that it has appeared from the [present] appeal proceedings and, in particular, from the different statements from the perjury procedure in respect of F. that the ... [latter’s] statement must be regarded as wholly incredible. [The applicant’s] version has, in the opinion of the court, not been established. Noting this, the Court considers that no other conclusion can be reached than that [the applicant] has purchased these cars with own capital.
[The applicant] has tried during the [present] appeal proceedings to demonstrate that, to the extent that there would be any capital, this [capital] would have been obtained from the (illegal) trade in gold and cars.
However, in the court’s opinion, it has not been demonstrated in the examination in court that [the applicant] would actually have been engaged in that trade and that it would have generated such profits that thereby [the applicant’s] abovementioned capital could be explained. In this, the court takes into account that [the applicant’s] allegation that there would be great differences in the price of gold in the Netherlands and Belgium has, as appears from information provided by the police, turned out to be untrue. [The applicant’s] statement will be put aside by the Court as incredible.
On grounds of the above, the court finds that it cannot be concluded otherwise than that there are sufficient indications that [the applicant] has been engaged, during the period from 1 January 1997 to 31 May 1998, in violating the prohibition set out in Article 2 .... of the Opium Act and that [the applicant] has derived benefit from this trafficking in cocaine to an amount to be determined below.”
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), complaining that the imposition of the confiscation order on the basis of an offence of which he had been acquitted violated his right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention.
In his advisory opinion, the Procurator General to the Supreme Court considered, referring to the Supreme Court’s case-law on this point, that the imposition of the confiscation order did not infringe the applicant’s rights under Article 6 § 2 of the Convention.
On 9 December 2003, the Supreme Court dismissed the applicant’s complaint in cassation, holding:
“The complaint does not provide grounds for overturning the ruling of the Court of Appeal (kan niet tot cassatie leiden). Having regard to Article 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since the complaint does not give rise to a need for a determination of legal issues in the interest of legal unity or legal development.”
However, on the basis of an ex officio examination of the impugned ruling, the Supreme Court decided to quash the impugned ruling in part, i.e. in so far as the Court of Appeal had imposed alternative detention. It rejected the remainder of the appeal in cassation.
Article 36e of the Criminal Code (Wetboek van Strafrecht) provides:
1. Upon the application of the Public Prosecutions Department any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the state in order to deprive him of illegally obtained advantage.
2. Such an order may be imposed on a person as referred to in paragraph 1 who has obtained advantage by means of or from the proceeds of the said criminal offence or similar offence or offences for which a fifth-category fine may be imposed, in connection with which there exist sufficient indications that they were committed by him.
3. Upon the application of the Public Prosecutions Department any person who has been found guilty of an indictable offence for which a fifth-category fine may be imposed and against whom, in connection with his being suspected of that offence, a criminal financial investigation has been instituted, may be ordered in a separate judicial decision to pay a sum of money to the state in order to deprive him of illegally obtained advantage if, having regard to that investigation, it is likely that other indictable offences led in any other way to the convicted person obtaining illegal advantage.
4. The judge shall determine the amount which the illegally obtained advantage is estimated to represent. Advantage shall be taken to include cost savings. The value of goods which the court deems to form part of the illegally obtained advantage may be estimated to be its market value at the time the decision is taken or may be estimated by reference to the yield to be obtained through public auction if the amount must be recovered. The court may order that the amount to be paid shall be less than the estimated advantage.
5. Goods shall be taken to mean all objects and property rights.
6. In determining the amount which the illegally obtained advantage is estimated to represent, legal claims from disadvantaged third parties awarded by a court shall be deducted.
7. In imposing the order account shall be taken of orders to pay a sum of money by way of deprivation of illegally obtained advantage imposed under previous decisions.”
The possibility to deprive a person of proceeds of crime was introduced in 1983 by the Financial Penalties Act (Wet Vermogenssancties). On 1 March 1993, the Act of 10 December 1992 on the extension of the possibilities to apply the measure of illegally obtained advantage and other financial penalties (Wet tot verruiming van de mogelijkheden tot toepassing van de maatregel van ontneming van wederrechtelijk verkregen voordeel en andere vermogenssancties) entered into force. One of the changes brought about by this Act was that the proceedings on the measure of deprivation of illegally obtained advantage were disconnected from the principal criminal proceedings, inter alia, in order to prevent situations in which issues concerning illegally obtained advantage would overshadow and affect the duration of the principal criminal proceedings.
It established a specific procedure – separate from the criminal proceedings taken against a suspect – for imposing a confiscation order under Article 36e of the Criminal Code. This specific procedure is set out in Articles 511b - 511i of the Code of Criminal Procedure (Wetboek van Strafvordering). The legislator’s choice for this setting was to express that it concerned a continuation of the criminal prosecution of the convicted person, the purpose being to determine the sanction to be imposed (Kamerstukken (Parliamentary Documents) II, 1989/90 session, 21,504 no. 3, p. 14). The confiscation order procedure is neither designed nor intended for the determination of a criminal charge, but for the detection of illegally obtained proceeds, to determine the pecuniary value thereof and, by way of a judicial confiscation order, to deprive the beneficiary of these proceeds. The aim pursued by the possibility of imposing confiscation orders is twofold; in the first place to remedy an unlawful situation and, secondly, to bring about a general crimepreventive effect by rendering crime unattractive on account of an increased risk that proceeds of crime will be confiscated.
Pursuant to Article 511b § 1 of the Code of Criminal Procedure, a request for a confiscation order under Article 36e of the Criminal Code must be filed by the public prosecutor with the Regional Court as soon as possible and not later than a maximum of two years after a convicting judgment handed down in the substantive criminal proceedings by the first instance trial court. It is not required that, when filing such a request, the conviction must have obtained the force of res iudicata.
Article 311 § 1 of the Code of Criminal Procedure obliges the public prosecutor to indicate – in case this has not yet been done – when delivering the closing speech (requisitoir) before the first instance trial court in the substantive criminal proceedings whether the prosecution intends to seek a confiscation order in case of a conviction. The purpose of this obligation is to prevent a situation that a convicted person is confronted, at the latest two years after his conviction by a first instance court, with a request for a confiscation order, and to express that a confiscation order procedure does not constitute a fresh, second prosecution based on the same facts but is to be understood as a separate part of the earlier substantive criminal proceedings and that the prosecution does not stop after the end of the substantive criminal proceedings but is pursued in the confiscation order procedure.
The notion of “similar offence or offences” under Article 36e § 2 of the Criminal Code relates to offences of a similar nature as those having formed the object of the criminal proceedings against the accused, such as for instance drug offences, property offences and offences involving forgery and fraud.
The rules of evidence that apply in criminal proceedings, as set out in Articles 338-344a of the Code of Criminal Procedure, are not applicable to a confiscation order procedure. In that procedure it is for the public prosecutor to establish a prima facie case that there are sufficient indications that the person concerned has committed one or more similar offences within the meaning of Article 36e § 2 of the Criminal Code having generated illegally obtained advantage. It is for the person concerned to rebut the prosecutor’s case. The judge will decide the case on the basis of a balancing of probabilities, comparable to the standard of proof applicable to civil proceedings.
The fact that the rules of evidence applicable to criminal proceedings do not apply to the confiscation order procedure entails that – if in criminal proceedings an accused has been partly convicted and partly acquitted of the charges brought against him – in a subsequent confiscation order procedure the judge may impose a confiscation order against the person concerned which is not only based on the offence(s) of which he has been convicted, but also on the similar offence(s) of which he has been acquitted but in respect of which the judge is satisfied, on a balance of probabilities, that there exist sufficient indications that he has committed them.
Pursuant to Article 511f of the Code of Criminal Procedure, the judge can derive the assessment of the actual amount of illegally obtained advantage under Article 36e of the Criminal Code only from the contents of “legal means of evidence” (wettige bewijsmiddelen). Article 339 of the Code of Criminal Procedure defines “legal means of evidence" as the personal observations of the judge, statements of the accused, statements of a witness, statements of an expert, and written materials (such as, for instance, judicial decisions, and formal minutes and records). However, unlike the requirement in criminal proceedings that a conviction can only be based on evidence that is corroborated by other evidence, the assessment of the amount of illegally obtained advantage in a confiscation order procedure can be based on only one evidentiary item, such as for instance a formal record containing the statement of the person concerned.
In a judgment handed down on 1 April 2003 and published in the Netherlands Law Reports (Nederlandse Jurisprudentie; “NJ”), the Supreme Court held, in so far as relevant:
“3.3. In its ruling of 22 May 2001, NJ 2001, no. 575, the Supreme Court considered the following:
- The provisions of Article 36e of the Criminal Code and [Articles 551b – 511i] of the Code of Criminal Procedure concern the imposition of a measure on the person convicted of a punishable offence, namely the obligation to pay a sum of money to the State for the purposes of confiscating illegally obtained advantage. This does not constitute a penalty, but a measure aimed at the deprivation of illegally obtained advantage. The fact that the imposition of that measure has been given a place in a criminal procedure does not alter its special character.
- That special character is also expressed in the requirements set for imposing it. These requirements are less strict than those that must be met for imposing a [criminal law] penalty. The regulations on evidence that apply to criminal proceedings do not apply in their full extent. This entails that offences included in a criminal charge having resulted in an acquittal can still form the basis for the imposition of a (confiscation) measure. Also in such a case, the judge must determine either that there exist sufficient indications that a similar offence or similar offences, referred to in Article 36e § 2 of the Criminal Code for which a fine of the fifth category may be imposed, has/have been committed by the person concerned, or that it is plausible that the other similar offences, referred to in Article 36e § 3 of the Criminal Code, have in any way resulted in the illegal obtaining of advantage by the person concerned. Such a determination is preceded by the procedure regulated in Articles 511b et seq. of the Code of Criminal Procedure. This serves as a guarantee that the judge, who must determine a request for a confiscation order filed by the prosecution department, will only do so after he has examined whether, and has found that, the statutory conditions, inter alia whether there are indications within the meaning of the second paragraph [of Article 36e] or plausibility within the meaning of the third paragraph [of Article 36e], have been met.
- The above entails that the circumstance that the suspect has been acquitted of specific offences does not automatically constitute an obstacle for considering those offences, in the framework of the confiscation procedure, as “similar offences” or “offences for which a fifth-category fine may be imposed” as referred to in Article 36e § 2 of the Criminal Code.
3.4. The Supreme Court adds that this is not incompatible with Article 6 § 2 of the Convention as, in the procedure regulated by Article 511b et seq. of the Code of Criminal Procedure, the person concerned is provided with the opportunity to defend himself, including the possibility to argue that and why there exist insufficient indications that the similar offence or similar offences for which a fifth-category fine may be imposed, as meant in Article 36e § 2 of the Criminal Code, has/have been committed by [him], or that it is not plausible that the other punishable offences, within the meaning of Article 36e § 3 of the Criminal Code, have resulted in the illegal obtaining of advantage by [him]. The fact that the procedure on a ... [request for a confiscation order] must be regarded as a separate part or a continuation of a same [set of] criminal prosecution [proceedings] that can lead to conviction and sentence (see Hoge Raad, 5 December 1995; NJ 1996; no. 411) does not prompt a different finding.
3.5. Considering that it has neither been argued nor appeared that the opportunity, referred to in [the above paragraph] 3.4., has not been provided in the instant case, the decision of the Court of Appeal does not disclose an incorrect interpretation of the law.”


ITEMID: 001-75788
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: LIEKIS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Kęstutis Liekis, is a Lithuanian national who was born in 1970 and lives in Kaunas. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 May 2000 the applicant was arrested and questioned as a suspect in the context of criminal proceedings for robbery. Another person, LJ, was suspected of being his accomplice.
On 4 May 2000 the Kaunas City District Court ordered the applicant’s detention on remand for 10 days.
On 11 May 2000 the court extended the term of his remand in custody for two months.
On 24 May 2000 the applicant’s remand was varied by the decision of a prosecutor, and he was placed under house arrest.
On 8 August 2000 the bill of indictment was confirmed, and the case was transmitted for trial.
On 31 May 2001 the Kaunas City District Court adjourned the trial as LJ had absconded.
On the same date the court ordered the applicant’s bail - with the written obligation not to leave. It was indicated in the bail decision that appeal lay to the Kaunas Regional Court against that order, but the applicant did not appeal.
On 7 March 2003 the court renewed the examination of the case against the applicant.
On 16 May 2003 he was acquitted.
On 12 August 2003 the Kaunas Regional Court dismissed the prosecutors’ appeal challenging the acquittal.
On 24 February 2004 the Supreme Court rejected the prosecutors’ cassation appeal. That decision was final.


ITEMID: 001-61231
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LUORDO v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Violation of Art. 8;Violation of Art. 6-1;Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1928 and lives in Druento (Turin).
10. In 1982 the Asti District Court made an order for the compulsory winding up of a commercial partnership formed by the applicant's wife in 1980.
11. On 16 November 1984 the same court made an order declaring the applicant personally bankrupt on the ground that he was a de facto partner.
12. On an unspecified date the trustee in bankruptcy filed a list of the bankrupt estate's debts with the registry.
13. On 21 November 1984 the judge assigned to the case gave the trustee in bankruptcy leave to intervene in proceedings that had been brought by a bank, SPT, for the forced sale of the applicant's house.
14. On 27 November 1984 he gave the trustee in bankruptcy leave to lodge tax appeals with the Tax Commissioners (Commissione Tributaria) in respect of sums claimed by the Turin and Asti tax authorities from the applicant's partnership.
15. Between 15 and 28 December 1984 the judge gave the trustee in bankruptcy permission to withdraw sums from the current account of the bankrupt estate for the payment, inter alia, of fees due to the trustee and an expert.
16. On an unspecified date in 1985 an initial attempt to sell the applicant's house at auction failed.
17. On 26 March 1985 the trustee in bankruptcy lodged a report. On 28 March 1985 the President of the District Court summoned G.Z. to appear in order to establish whether he was a partner of the applicant. G.Z. was heard on 26 April 1985.
18. On 10 June and 6 September 1985 the judge authorised the trustee in bankruptcy to make payments covering, inter alia, an expert's fees and the costs of publication of various notices.
19. On 21 January 1986 the judge gave permission for a lawyer to be instructed to act in the aforementioned proceedings concerning the applicant's house.
20. On 10 March 1986 the judge gave the applicant permission to draw his pension and on 21 March 1986 authorised the trustee in bankruptcy to settle proceedings that had been brought by S.G. for an order for the restitution of certain movables that were part of the bankrupt estate.
21. On 6 August 1986 the judge authorised the trustee in bankruptcy to enter into a loan agreement in respect of a building included in the bankrupt estate.
22. On 19 December 1986 the judge gave permission for a lawyer to be instructed to act in proceedings brought by P.C. contesting the bankrupt estate's liabilities.
23. On 23 March and 3 December 1987 the judge authorised the payment of various costs necessarily incurred in the proceedings.
24. On 16 December 1987 the trustee in bankruptcy sought an order for the replacement of the chairman of the Creditors' Committee following the latter's death.
25. On 22 December 1987 the judge refused permission for the sale by private contract (vendita a trattativa privata) of immovable property from the bankrupt estate on the ground that the Insolvency Act did not permit private sales of immovable property.
26. On 28 December 1987 the judge authorised the payment of a carer's allowance to the applicant's wife.
27. On 21 January 1988 he authorised the trustee in bankruptcy to return the deposit that had been paid on the proposed sale by private contract.
28. On 4 May 1988 the judge granted an application by O.D.S., one of the applicant's partners, for restitution of sums paid by a company, CPI, for services she had rendered.
29. On 28 June and 3 and 17 November 1988 he authorised the payment of advertising costs and taxes incurred on the sale of a building from the bankrupt estate.
30. On 8 February 1989 the judge authorised the payment of part of the fees of the lawyer acting in the proceedings brought by P.C.
31. On 3 March 1989 he authorised the payment of a tax liability and on 2 June 1989 of sums relating to the sale of the aforementioned building.
32. On 15 May 1991 he authorised the payment of the lawyer's fees incurred in the proceedings for the forced sale of the applicant's house and on 7 June 1991 the inclusion of a sum belonging to O.D.S. in the assets of the bankrupt estate.
33. On an unspecified date in September 1991 the trustee in bankruptcy intervened in tax enforcement proceedings (procedura di esecuzione esattoriale) brought by the Druento Tax Collector's Office (Esattoria) for the recovery of sums due on the sale of the applicant's house. Ultimately, the sale did not go ahead; on 13 November 1991 the judge authorised payment of the lawyer who had acted in the proceedings.
34. On 7 December 1991 the judge authorised the part payment of seniority pay (trattamento di fine rapporto) to the applicant.
35. On 28 April 1992 the judge appointed a valuer to value the applicant's assets and on 4 July 1993 authorised the payment of the costs thereby incurred.
36. On 12 May 1994 he appointed a new chairman to the Creditors' Committee at the request of the trustee in bankruptcy (who had made a like request on 16 December 1987).
37. On 10 January 1995 a further attempt was made to sell the applicant's house at auction, without success.
38. On 14 February 1995 the trustee in bankruptcy reported on the state of the proceedings at the judge's request. In particular, he said that all the assets of the bankrupt estate apart from the applicant's house had been sold. He also reserved the right to make a further proposal for the sale of the property at auction.
39. On 3 March 1995, in response to a request by the judge on 17 February 1995, the trustee in bankruptcy explained that there had been no partial distribution (ripartizione parziale) of the assets among the creditors because appeals were still pending before the Tax Commissioners.
40. As the applicant's house had been unlawfully occupied in the interim by D.L. and S.B., the judge ordered their eviction in a decision (decreto di rilascio) of 13 April 1995. On 14 April 1995 he asked the trustee in bankruptcy to produce a draft proposal for the partial distribution of the assets.
41. On 15 May 1995 the trustee in bankruptcy reported that the appeals to the Tax Commissioners had been successful and lodged a draft proposal for the partial distribution of the assets. Two days later he was authorised by the judge to transfer the current account of the bankrupt estate to another bank.
42. On 23 October 1995 the judge ruled that the draft proposal for the partial distribution of the assets could be implemented.
43. The following day D.L. moved out of the applicant's house. However, on an unspecified date S.B., who in the meantime had appealed against the judge's order of 13 April 1995, proposed to settle the dispute by undertaking to purchase the house.
44. On 14 December 1995 the trustee in bankruptcy filed a report.
45. On 6 February 1996 the judge fixed 19 April 1996 as the date for the auction of the applicant's house.
46. On an unspecified date the applicant sought a composition with the creditors. His application was declared inadmissible on 1 April 1996 on the ground that it did not satisfy the conditions laid down by section 124 of the Bankruptcy Act.
47. On 5 April 1996 the applicant asked the judge to refer to the Constitutional Court the question of the legitimacy of the system of proprietorial and personal disabilities to which bankrupts were subject and, in particular, sections 48, 49 and 50(3) of the Bankruptcy Act and Articles 350, 393, 407, 2382, 2417, 2488 and 2516 of the Civil Code. In a decision of 17 April 1996, the judge rejected that application as being manifestly ill-founded, holding that the legislature's decision to give the creditors' proprietorial interests precedence over those of the bankrupt did not entail a violation of the debtor's rights guaranteed by the Constitution.
48. In an application lodged with the registry on 17 April 1996, the applicant sought a stay of the order of 6 February 1996 for the sale of his house.
49. On 19 April 1996 the sale of the applicant's house by auction was adjourned to 21 April, when it was sold.
50. On 22 April 1996 the trustee in bankruptcy resigned. The District Court appointed a replacement the following day, who lodged a report on 11 October 1996.
51. On 3 May 1996 the applicant appealed to the Court of Cassation, with a view to having the order for the sale of his house set aside. According to information he has provided, his appeal was dismissed as being out of time.
52. On 12 December 1996 the judge appointed a valuer to carry out a valuation before title to the applicant's house was transferred to the successful bidder. The transfer was effected by a court order of 7 July 1997.
53. In a decision of 25 September 1998 the judge approved accounts that had been submitted by the trustee in bankruptcy.
54. On 5 October 1998 he authorised payment of the trustee in bankruptcy's fees.
55. On 23 March 1999 he approved the final proposal for the distribution of the assets, noting that the applicant had sufficient means after the sale of his house to honour his debts and bring the bankruptcy to an end.
56. On 17 July 1999 the judge terminated the bankruptcy.
57. The relevant provisions of the Bankruptcy Act (Royal Decree no. 267 of 16 March 1942) read as follows:
“The bankruptcy order divests the bankrupt of the rights to administer or to deal with assets that were in existence at the date of the said order. ...”
“Legal proceedings concerning disputes over property issues arising in respect of assets forming part of the bankrupt estate shall be taken or defended by the trustee in bankruptcy.
The bankrupt shall only be entitled to intervene in the proceedings in so far as they concern an allegation of criminal bankruptcy on his part or if permitted by law.”
“Correspondence addressed to the bankrupt must be passed to the trustee in bankruptcy, who shall be empowered to retain correspondence concerning property interests. The bankrupt may consult the correspondence. The trustee in bankruptcy shall keep the content of correspondence not relating to such interests confidential.”
“The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge, the trustee in bankruptcy and the creditors' committee when summoned unless he is prevented from doing so on legitimate grounds and has been given leave by the judge to send a representative.
If the bankrupt fails to comply with a summons, the judge may order that he be brought by the police.”
“A public register of the names of bankrupts shall be held at the registry of each district court. Names shall be deleted from the register by order of the district court. Bankrupts shall be subject to the disabilities laid down by law until such time as their name has been deleted from the register.”
“The bankrupt's property shall be administered by the trustee in bankruptcy from the moment it is recorded in the inventory of such assets drawn up by the trustee in bankruptcy ...”
58. The relevant provisions of the Civil Code are worded as follows:
“The following may not be appointed as guardians or, if already appointed, must cease to act in that capacity:
... a bankrupt whose name has not been deleted from the bankruptcy register.”
59. Article 393 essentially prevents disqualified bankrupts from acting as trustees in bankruptcy until their names have been deleted from the bankruptcy register.
60. Articles 2382, 2399, 2417 and 2516 of the Civil Code prohibit a bankrupt from being appointed as a director or trustee in bankruptcy of a commercial or cooperative company or as a representative of the debenture holders in a public company.
61. Article 2 of Presidential Decree no. 223 of 20 March 1967, as amended by Law no. 15 of 16 January 1992, essentially provides for the suspension of the bankrupt's electoral rights for the duration of the bankruptcy proceedings and, in any event, for a period not exceeding five years from the date of the bankruptcy order.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1