ITEMID: 001-109103
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BRESLAVSKAYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Ms Valentina Vladimirovna Breslavskaya, is a Ukrainian national who was born in 1973 and lives in Donetsk. She is represented before the Court by Mr D. Medvedskiy, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent Mr Yuriy Zaytsev, succeeded by Ms Valeria Lutkovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 August 2009 the applicant, who was working at the time as an international train manager, was detained on suspicion of attempted crossborder smuggling of goods, following a conspiracy by a group. She remained in detention, on the basis of judicial decisions, until she was convicted, on 22 July 2010, by the Voroshylivskyy District Court of Donetsk. By this verdict the court found the applicant guilty as charged and sentenced her to five years’ imprisonment, suspended for three years, and placed her on probation. She was released at the conclusion of the hearing.
The applicant is suffering from a number of kidney, stomach and spinal problems and has a long history of various gynaecological health problems. Thus, since 1994, when she had her left ovary, right fallopian tube and a benign breast tumour removed, she has been being monitored by the Donetsk Regional Cancer Treatment Centre (Донецький обласний протипухлинний центр, hereafter “the Cancer Treatment Centre”).
On 29 August 2009 the applicant (who had been in detention since 25 August, see above) was examined at the Cancer Treatment Centre. The doctor recommended that she undergo additional examination and, if necessary, treatment in their centre.
On the following day, 30 August 2009, the applicant was taken to Gorlivka Town no. 2 Hospital (“the Gorlivka Hospital”), where she underwent inpatient treatment for pyelonephritis (inflammatory kidney disease) for two days.
On 31 August 2009, after her discharge from the Gorlivka Hospital, the applicant was taken back to the Cancer Treatment Centre, where she underwent another medical examination.
From 1 to 14 September 2009 the applicant was hospitalised in the Donetsk Regional Clinical Territorial Medical Association (Донецьке обласне клінічне територіальне медичне об’єднання, hereafter referred to as “the Donetsk Regional Clinic”) for treatment in respect of a number of chronic kidney, gastric and gynaecological conditions. She was examined by doctors including a neuropathologist, a gastroenterologist, a gynaecologist, and an endocrinologist, was prescribed the necessary treatment, and its implementation was monitored. When the applicant was discharged from the hospital it was recommended that she have a further examination by a kidney specialist in about two months’ time.
An X-ray on 9 or 11 September 2009 identified a suspicious shadow on the applicant’s lung. On 14 September 2009 a tuberculotherapist diagnosed her with pneumonia and tuberculosis and prescribed non-specific antibacterial therapy for two weeks, to be followed by an X-ray examination and another consultation.
On 2 October 2009 the administration of the Pre-Trial Detention Centre (“the SIZO”) informed the applicant’s representative in reply to his inquiry that having regard to its limited resources it was not able to provide the applicant with medical treatment in full compliance with the doctors’ recommendations.
From 12 October 2009 to 15 April 2010 the applicant underwent inpatient treatment for tuberculosis in the SIZO medical unit, which consisted of several courses of antibacterial therapy. According to the information submitted by the Government (not commented on by the applicant), she was also examined by tuberculotherapists, including from the Donetsk Regional Tuberculosis Hospital, on 9 October and 8, 11, 16, 17 and 19 December 2009, as well as on 19 February and 15 April 2010. Furthermore, on 24 September, 6 October and 14 December 2009, as well as on 16 February and 13 April 2010, the applicant underwent X-ray examinations. According to the Government, the applicant then recovered from tuberculosis. They referred in this connection to the conclusion of the Donetsk Regional Tuberculosis Hospital of 15 April 2010, according to which the applicant’s radiograph of 13 April 2010 showed post-tuberculosis residual changes in her lungs. Subsequent medical monitoring was recommended in that regard. The applicant however stated that she was still suffering from tuberculosis.
Meanwhile, on 7, 8 and 24 December 2009 the applicant was again examined by the Cancer Treatment Centre specialists, who diagnosed nodal mastopathy and ovarian cyst and recommended anti-inflammatory therapy, additional examination and surgery at their centre.
From 15 April until her release on 22 July 2010 the applicant underwent inpatient treatment in the SIZO medical unit for gastric ulcer, gastroesophageal reflux disease, osteochondrosis and residual encephalopathy.
According to information from the Public Health Ministry, issued on 9 September 2010 at the request of the Government Agent, the applicant had no contact with the Cancer Treatment Centre after 22 July 2010.
From 19 October to 9 November 2010 she was hospitalised in the Kharkiv Regional Urology and Nephrology Clinical Centre for urolithiasis of the left kidney.
On 20 January 2011 the applicant underwent ovarian surgery in the Gynaecology Department of Donetsk Municipal Hospital no. 17, from which she was discharged on 27 January 2011 “in a satisfactory state of health”.


ITEMID: 001-79621
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PETRIE AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The following, who are British citizens, are named as applicants:
Patrick Petrie born in 1968 and resident in London,
Paul O’Toole born in 1966 and resident in Dudley
Darren Nash born in 1970 and resident in Herne Bay;
Robert Kakoo born in 1973 and resident in London.
The application is presented by Ms I Nembhard, a solicitor practising in London.
In November 1997, the four applicants were serving sentences of imprisonment in HM Prison Parkhurst.
On 8 November, an incident occurred in the prison involving three members of staff and a number of prisoners. The first applicant claimed that a prison officer had hit him on the head with a radio causing him to fall to the ground with a bleeding head. An altercation had ensued in which three prison officers received injuries. Six prisoners, including the applicants, were escorted to the segregation unit.
At about 8 a.m. on 9 November 1997, officers entered the first applicant’s cell in full riot gear. They punched him, kicked him and swore at him, calling him a “scumbag” and a “black bastard”. He was pinned to the ground and handcuffed. A female officer cut off his clothes with scissors. Once he was naked a pair of boxer shorts was pulled on him and he was removed to the prison yard. The officers continued kicking and beating him and threw him face down on the ground in a puddle. He was placed kneeling in a prison van and taken to HM Prison Albany nearby where the beating continued. He was placed in segregation and the officers threw food and water at him. He was forced to eat off the floor.
The other applicants were assaulted in a similar manner. The second applicant, O’Toole, was made to stand facing the wall. When he tried to look round, his head was smashed against the wall. The officers grabbed his hair and genitals.
Following allegations by the prison officers concerning the applicants’ conduct, the applicants stood trial, inter alia, for causing grievous bodily harm, violent disorder and affray.
In May 1999, the jury acquitted all four applicants.
The applicants lodged civil claims, inter alia, for assault and malicious prosecution.
Following a hearing before judge and jury in the High Court in June 2003, the first applicant succeeded in his claims of assault and malicious prosecution, and the other applicants succeeded in claims of misfeasance based on incidents of assault. The jury found, inter alia, that the prison officers had wrongly alleged that the first applicant was involved in the assault on the prison officers on 8 November, doing so deliberately without any honest belief in what they alleged and that the prison officers had punched and kicked him on 9 November during his transfer to another prison. The jury awarded GBP 36,000 to the first applicant, and GBP 10,000, 9,000 and 9,000 respectively to the other three applicants. The jury also made an award of GBP 15,000 in exemplary damages to be shared by the applicants.
After the conclusion of the civil proceedings, the applicants’ solicitor wrote to the Prison Service requesting a formal investigation into the allegations of abuse by prison officers. On 25 July 2003, the Prison Service indicated that it had commissioned an investigation by a prison governor from outside the area, Governor Robson of HM Prison Standford Hill. Though the applicants’ solicitor contested his independence, the internal investigation proceeded. On 7 October 2003, the Prison Service replied that Governor Robson did not work in the area and was not subject to any line management from that area in respect of his functions as governor or investigator. It was satisfied that the investigation would be carried out fairly and impartially and would be independent without supervision of control from anyone else. It would be decided later how widely the findings of the investigation would be disclosed.
On 28 May 2004 the Prison Service informed the applicants’ solicitor that the investigation was completed. It stated that the report would not be disclosed. Following a threat of legal proceedings, the report was provided to the applicants’ solicitor on 29 November 2004.
According to the report, prison officers emphatically denied the allegations and new evidence had become available, namely statements by other prison staff and by three prisoners who supported the accounts of staff. It noted that there had been extremely damaging inconsistencies in the account at trial of one officer but that there had also been inconsistencies in the accounts of the complainants which did not appear to have been challenged in the civil trial. It considered that there was little, and thereby insufficient evidence, apart from the minor injuries to the complainants, to substantiate their allegations of assault and fabrication of dishonest allegations. As regarded the first applicant, it concluded that it was unlikely and not independently substantiated that he had been assaulted in an unprovoked attack by a prison officer on 8 November or that he had been assaulted on 9 November when being transferred in full view of the Governor, the Independent Board of Visitors and other senior managers.
On 5 January 2005, the applicant’s solicitor wrote to the Prison Service making a formal request for a properly independent investigation into the applicant’s allegations. On 7 February 2005 the Prison Service refused that request.
In line with the Robson Report, no criminal or disciplinary sanctions have been commenced against any officer.


ITEMID: 001-61138
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF GUTFREUND v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Georg Ress
TEXT: 8. By a penal order of 8 October 1997, the applicant was fined 1,000 French francs (FRF) for an assault on his wife that did not incapacitate her from work. On 8 December 1997 he applied to the Saverne Police Court to have that order set aside.
9. On 3 July 1998 the applicant was served by a court bailiff with a summons requiring him to attend the Police Court on 15 September 1998 to answer a charge of “intentional assault entailing no unfitness for work” on 24 July 1997. The offence was classified as a “Class 4 minor offence” and carried a maximum fine of FRF 5,000 under Article 131-13 of the Criminal Code.
10. On 11 August 1998 the applicant lodged a legal-aid application with the legal-aid office of the Saverne tribunal de grande instance, in accordance with the provisions of the Legal Aid Act of 10 July 1991 and its implementing decree of 19 December 1991.
11. He furnished evidence, which the legal-aid office accepted, that his monthly income was FRF 2,423. In accordance with section 4 of the 1991 Act, he claimed to be entitled to full legal aid.
12. A committee of the legal-aid office presided over by R. (as attested by a letter of November 2000 from the registry of the Saverne tribunal de grande instance) dismissed the application on 27 October 1998 as being “manifestly inadmissible, since it concern[ed] a Class 4 minor offence”.
13. On 13 November 1998 the applicant appealed against that decision to the President of the Saverne tribunal de grande instance.
He said that in a similar case the Strasbourg tribunal de grande instance had construed the decree differently and granted legal aid. In an order of 16 September 1998, the Strasbourg tribunal de grande instance had noted a conflict between the decree and the Act and stated that to resolve it the decree had to be construed in the light of the purpose of the Act.
14. The appeal was heard by R., now sitting in his capacity as the President of the Saverne tribunal de grande instance. He upheld the impugned decision in an order of 27 November 1998, against which French law afforded no right of appeal (section 23, sub-paragraph 2, of the Act of 10 July 1991).
He gave a number of reasons for dismissing the applicant’s appeal:
“... although section 10 of the aforementioned Act [of 10 July 1991] provides that ‘legal aid shall be granted ... before all courts’ ..., it does not require it to be granted in all types of proceedings.
... the table appended to Article 90 of the decree and to which the decree refers for the calculation of counsel’s remuneration only contemplates an accused receiving assistance in the police court for Class 5 minor offences.
... that restriction cannot be due to an oversight on the part of the public authorities.
... it is not for either the legal-aid office or the president of the court concerned unilaterally to extend the scope of rules in respect of which no appeal has been made to the Conseil d’Etat.
... it is perfectly clear that the relevant table is restrictive in scope.”
15. On 15 December 1998 the applicant, assisted by a lawyer, attended the hearing at the Saverne Police Court. In a judgment delivered that same day, the court found him guilty of assault entailing no unfitness for work, but decided not to impose a penalty.
16. The Legal Aid Act (Law no. 91-647 of 10 July 1991) provides:
“Natural persons whose means are insufficient to enable them to assert their rights in the courts may be granted legal aid. ...”
“In order to qualify for full legal aid, applicants must show that their monthly resources are less than 4,400 francs.”
“Legal aid shall be granted for both contentious and uncontentious proceedings, to bring or to defend a claim before all courts or in connection with the hearing of a minor in accordance with Article 388-1 of the Civil Code.
...”
“Each legal-aid office or department thereof referred to in section 13 shall be presided over by a judge from the seat of the tribunal de grande instance or court of appeal, as the case may be.
...”
“The decisions of a legal-aid office, a department thereof or the president of the office or department may be referred to the president of the tribunal de grande instance, court of appeal or Court of Cassation, as the case may be, ... or his or her delegate.
No appeal shall lie against the decisions of these authorities.
...”
17. Decree no. 91-1266 of 19 December 1991 implementing Law no. 91-647 of 10 July 1991 provides, inter alia:
“Decisions of offices established at the seat of a tribunal de grande instance ... shall be referred to the president of the tribunal de grande instance where the office was set up.
...”
18. Article 90 of the decree stipulates that the State’s contribution to the remuneration of lawyers acting for recipients of full legal aid shall be determined by reference to a series of criteria set out in a table appended to the decree. The sole reference in the table to the category of “proceedings for minor offences” is “assistance to the accused in the police court (Class 5)”.
19. A bill on access to the law and justice, intended to reform, inter alia, the legal-aid system, is currently before Parliament.
20. There have been no decisions of the Court of Cassation on the grant of legal aid to persons prosecuted for minor offences not falling into Class 5 (and which therefore are not included in the table appended to the aforementioned decree of 19 December 1991).
21. At the material time, the table was construed differently by different courts. Thus, as the parties have noted, the order made on 27 November 1998 by the President of the Saverne tribunal de grande instance contradicted an order made a few months earlier (on 16 September 1998) by the President of the Strasbourg tribunal de grande instance.
22. In an order of 22 September 2000, the President of the Béthune tribunal de grande instance ruled that legal aid could not be refused to a person charged with a Class 4 minor offence simply because the table appended to Article 90 of Decree no. 91-1266 of 19 December 1991 only provided for assistance to be given to the accused in the police court in connection with Class 5 minor offences.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81696
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SAMARDZIC AND AD PLASTIKA v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The first applicant was born in 1975 and lives in Beograd. The second applicant is a joint stock company with its seat in Beograd.
5. On 11 October 1991 the second applicant directly instituted enforcement proceedings in the Novi Sad Commercial Court (Trgovinski sud u Novom Sadu) against a certain company V.
6. On 30 October 1991 the court issued an enforcement order. Since V. filed an objection, the case was transformed into civil proceedings.
7. The second applicant amended its claim on four occasions: on 4 May and 19 November 1993, 9 February and 12 October 1994.
8. On 15 February 1995 the court gave a judgment in the second applicant’s favour, accepting its claim in part. On 6 October 1995 the court gave a supplementary judgment (dopunska presuda) in the case.
9. On 30 May 1996 the Beograd High Commercial Court (Viši Trgovinski sud u Beogradu) quashed the first-instance judgment and remitted the case because of factual shortcomings.
10. By this time, four different judges had been assigned to hear the second applicant’s case, the last change of judges having occurred on 23 January 2003.
11. On 11 November 2004 the court appointed an expert, ordering him to prepare his opinion within 30 days. This expert submitted his opinion on 14 October 2005.
12. The court subsequently held hearings on 30 November 2005, 25 January and 13 February 2006. The hearing scheduled for 20 December 2005 was adjourned because the second applicant failed to appear.
13. On 13 February 2006 the court closed the main hearing and gave a judgment dismissing the second applicant’s claim.
14. On appeal, on 3 November 2006 the Beograd High Commercial Court again quashed the first-instance judgment and remitted the case.
15. In the resumed proceedings, on 8 December 2006 the Novi Sad Commercial Court stayed the proceedings because, meanwhile, on 22 March 2006 the Zrenjanin Commercial Court (Trgovinski sud u Zrenjaninu) had opened bankruptcy proceedings against the second applicant.
16. The proceedings resumed on 16 February 2007, when the Novi Sad Commercial Court declared that it no longer had territorial jurisdiction in the matter and sent the case file to the Zrenjanin Commercial Court.
17. Article 10 provides that “[t]he parties have the right to have the ruling of the court in respect of their claims and proposals within a reasonable time” and, further, that “[i]t is incumbent upon the court to conduct the proceedings without undue delay ...”
18. Articles 242, 243 and 245 of this Code incriminate “abuse of office” (zloupotreba službenog položaja), “judicial malfeasance” (kršenje zakona od strane sudije) and “official malfeasance” (nesavestan rad u službi), respectively.
19. The substance of Articles 359, 360 and 361 corresponds to that of the provisions of the Criminal Code 1977 mentioned above.
20. This Code entered into force on 1 January 2006, thereby repealing the Criminal Code 1977.
21. Article 172 § 1 provides that a legal entity (“pravno lice”), which includes the State, is liable for any damage caused by one of “its bodies” (“njegov organ”) to a “third person”.
22. Under Articles 199 and 200 of the Obligations Act, inter alia, anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (“prava ličnosti”) may, depending on their duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70729
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF YETKINSEKERCI v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1951 and lives in Gaziantep.
7. On 3 September 1997, 79 packages of powder (subsequently found to be starch) were found in the belly tank of the apparently unladen lorry which the applicant had just brought into the United Kingdom. The applicant was arrested, and on 4 September 1997 he was charged with knowingly being involved in the attempted import of a controlled drug (diamorphine). He was convicted on 25 March 1998 and sentenced to 14 years’ imprisonment. His application for leave to appeal arrived at the Criminal Appeals Office on 23 April 1998, and leave to appeal and legal aid were granted on 22 March 1999.
8. The Court of Appeal dismissed the applicant’s appeal on 6 March 2001. As to sentence it found as follows:
“76. ... The points ... are, first, that no diamorphine was imported and that seems to us to be the most important point, namely that this was an offence of attempt and not of actual importation.
77. Second, that the appellant appears to have occupied a lowly position in what was undoubtedly an extensive chain, stretching from source abroad into this country.
78. Third, it is said that there was no evidence that he knew of the quantity involved. However, in that respect, in a massive importation of this kind, it is not usual to investigate how far an appellant was privy to the actual amount involved, bearing in mind that it would obviously have been an extremely substantial importation.
79. Fourth, the point is made that he is isolated from his country of origin, serving a sentence in England.
80. Fifth, that his age is 49, he is of previous good character and family responsibilities also militate for mercy.
81. We attach some slight importance to the fourth element. So far as the fifth is concerned it is not one in which of a case of this kind we regard appropriate and to take into consideration [sic].
82. Finally, counsel has advanced upon us the argument that this appeal has taken, as it undoubtedly has taken, an unconscionably long time to come on, for reasons which are no fault of the appellant or his advisers, but appear to have related to administrative difficulties within this court. He makes reference in that respect to Article 6 of the Convention on Human Rights. However, it is not necessary to invoke that Article for the court to take into account, if it considers it appropriate, a delay of that kind.
83. We consider that, absent any reason for reduction of an unusual kind, had this importation been an importation of diamorphine, as the appellant no doubt believed it to be, a sentence of 18 years could have been expected. It does appear that, on the basis that it was simply an attempt, the judge reduced the level of sentence to the order of 14 years, bearing in mind the appellant’s apparent position in the chain.
84. In our view, a somewhat greater allowance could well have been made, allowing this with the fact that the defendant has spent a time of some anxiety, no doubt, waiting for longer than he should, in order to see whether his sentence would be reduced, we consider that it is appropriate to reduce the sentence of 14 years imposed to one of 12 years’ imprisonment. The appeal upon the sentence will be successful to that extent.”
9. The applicant was released after having served approximately one half of the 12 year sentence, and deported to Turkey.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5844
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: THORKELSSON v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicants are Icelandic nationals, born in 1937 and 1932, and reside in Mosfellsbær, Iceland. Before the Court they are represented by Mrs Erla S. Árndóttir, a lawyer practising in Reykjavík.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are master house builders. In 1985 they established the limited liability company Trésmiðjan K 14 hf. together with three other persons. The applicants and one of the other persons formed the company's Board of Directors. They were on the company's payroll and worked there on carpentry. The first applicant is a member of the Association of Master Carpenters in Reykjavík. None of the applicants has been a member of the Reykjavík Carpenters' Union or other trade union during the period under reference. The applicants paid premiums to the Construction Workers' Pension Fund until the end of 1989. As of that time they commenced paying premiums to the Free Pension Fund. In April 1991 the Construction Workers' Pension Fund filed a request to Trésmiðjan to pay the company's part of the premiums with respect to the applicants. The company rejected payment as the applicants had shifted to the Free Pension Fund and thereby done their legally prescribed duty of payment to a pension fund.
In October of 1993 the United Pension Fund, which had then taken over the rights and duties of the Construction Workers' Pension Fund, instituted proceedings against Trésmiðjan before the Reykjavík District Court, claiming payment of premiums in respect of the period from November 1989 until December 1992. The company disputed the claim, arguing, inter alia, that an interpretation of the provisions of the Act on Employment Terms of Wage Earners and Obligatory Pension Insurance 1980 (Act No. 55/1980, hereinafter referred to as “the 1980 Act”) to the effect that there was an obligation to participate in the United Pension Fund, would be incompatible with the right to freedom of association and the right to property as protected by the Icelandic Constitution, the Convention and Protocol No. 1 thereto.
By a judgment of 3 March 1995 the District Court ordered Trésmiðjan to pay to the United Pension Fund the premiums claimed by it.
The company appealed against the above judgment to the Supreme Court, which, by 3 votes to 2, upheld the District Court's judgment on 26 September 1996. The minority voting for acquitting the company of the pension claim relied, inter alia, on Article 11 of the Convention.
The majority's reasoning included the following observations:
“... from the above follows that the 1980 Act contains an unequivocal legal duty for the entire population to belong to a pension fund. The aim of this legislation is to promote public welfare and, inter alia, to base the right to life insurance on the most possibly equal conditions. Such general limitations under the law are not in conflict with the human rights provisions of the Icelandic Constitution .... Being employers the appellants were according to ... section 2 of the 1980 Act required to pay their employees' premiums and are therefore rightly considered as parties to the present case. It has been shown that the appellants engage in business operations falling within the plaintiffs' field of work. They have not referred to the Ministry of Finance any dispute about payments being made to the plaintiffs. The fact that the plaintiffs have not done so does not weaken their case.
The appellants plead that, in addition to the fact that their employees have been paying a premium to the Free Pension Fund, they have met the duty for pension guarantee in accordance with the 1980 Act. They consider that according to Article 73 of the Constitution, which applied to the freedom of association at the time when the case was before the District Court, and Article 11 of the Convention, cf. Act No. 62/1994 incorporating the Convention, they could at least have discharged their duty towards any pension fund had the Ministry of Finance ratified its Regulations. The plaintiffs maintain, with reference to section 3 of the 1980 Act, that the appellants' wage-earners cannot select a fund for themselves as they work in the field to which participation of plaintiffs extend and are thus naturally parties thereto.
The plaintiffs are a pension fund functioning in accordance with the 1980 Act. The appellants' employees were parties of The Construction Workers' Pension Fund being one of the funds merged with the plaintiffs. It has not been shown that the plaintiffs are unable to secure the appellants' wage earners the annuity rights provided for under the 1980 Act. Thus, their compulsory participation in a pension fund does not prevent them from purchasing additional rights from other instances. It follows from the above that pension funds like that of the plaintiffs are established under the law for the benefit of the funds' participants and in order to achieve a social aim, but this is a question of joint insurance funds. The legislators have considered that, if one were to be able to join and leave the funds at will, there would be a risk that this social aim would risk not be achieved and that the interests of other holders of rights in the fund would be set aside. Under the present circumstances, it is considered that the appellants have not shown that the restrictions on the employees' choice of pension fund, ... is inconsistent with the former provisions of the Constitution on the freedom of association, cf. the current provisions of paragraph 2 of Article 74 of the Constitution. ...
In the light of the above the conclusion in the present case is that the appellants shall pay on behalf of their wage-earners the annuity contribution claimed by the plaintiffs...”
On 21 February 1997 the District Court placed Trésmiðjan under bankruptcy administration, at a request made by the United Pension Fund on account of the Supreme Court's order that the company pay its arrears in pension contributions.
The 1980 Act (Act No. 55/1980 on the Employment Terms of Wage Earners and Obligatory Pension Insurance) contained in its section 2 the following provision:
“All wage earners and self-employed persons have the right and duty of membership of the pension fund of the members of the relevant profession or occupation, which shall function in accordance with laws enacted on that particular fund or a regulation approved by the Ministry of Finance. Any employer is obliged to withhold his employees' pension fund contributions from their wages and to return them to the fund with his own obligatory contribution, in accordance with the rules on contribution payments laid down in the regulation on the relevant fund or in law. The Ministry of Finance, having obtained the opinion of the Icelandic Confederation of Employers, the Icelandic Federation of Labour and/or other concerned parties, shall decide on any dispute as to what fund the contributions shall be paid.”
Section 3 provided:
“The duty of pension insurance shall be performed by participation in the pension funds provided for in Section 2 to the extent possible, and in accordance with the rules of the individual funds relating to membership. A person not automatically entitled to membership of a fund provided for in section 2 shall select a pension fund that is permitted under the rules of the individual funds. If this duty is not performed in this manner, it shall be performed by contributions to the pension fund indicated by the deciding authority under section 2, and by an agreement concluded with the pension fund in question.”
On 1 July 1998 the 1980 Act was replaced by the Act on Mandatory Insurance of Pension rights and on the Activities of Pension Funds 1997 (Act no. 1929/1997, hereinafter referred to as “the 1997 Act”), containing comprehensive provisions on the general framework for compulsory pension insurance. One objective of the new legislation was to increase the freedom of choice of pension funds for persons who were not subjected to collective agreements. Following the changes brought about by its section 2, persons who, like the applicants, do not receive wages under a collective agreement, may chose not to contribute to the United Pension Fund but may instead select another pension fund.


ITEMID: 001-4756
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: JODKO v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Lithuanian national of Polish origin, born in 1961. At present he is detained in the Rasų prison in Vilnius.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
On 13 March 1996 the Vilnius Regional Court convicted the applicant of murder. He was sentenced to 11 years’ imprisonment. On 27 March 1996 the applicant was served with a written copy of the first instance judgment. The applicant appealed.
On 15 May 1996 the Court of Appeal held a hearing at which the applicant’s counsel was present. The court dismissed the appeal, finding that the first instance court had properly decided the case.
In early 1997, the applicant approached the prison administration, asking why he had received no written version of the appellate decision of 15 May 1996. The Ministry of Justice informed him that on 22 May 1996 the Court of Appeal had in fact sent a written version of the appellate decision to a special hospital of the Ministry of Interior where, at the time, the applicant had been detained. The applicant applied to the Ombudsman, who confirmed that the hospital had received the decision on 23 May 1996. The Ombudsman advised the applicant to ask the hospital management about the alleged disappearance of the written decision. The applicant appears not to have approached the hospital management subsequently.
Following the applicant’s demand, on 13 March 1997 the Court of Appeal sent him a written version of the decision of 15 May 1996. On 11 April 1997 he was furnished with another copy of the decision. The applicant expressed his intention to file a cassation appeal in the case but was informed by the Supreme Court that he had not complied with the three months’ time-limit to file a cassation appeal under Article 419 of the Code of Criminal Procedure.

On 17 February 1999 the applicant applied to the Ministry of Justice, complaining that he had been denied access to the Supreme Court. The Ministry of Justice advised the applicant to apply to the Supreme Court for leave to file a cassation appeal out of time pursuant to Article 120 of the Code of Criminal Procedure. There is no indication that the applicant subsequently requested that leave.
B. Relevant domestic law
Pursuant to Article 379 § 4 of the Code of Criminal Procedure, a decision of the appellate court dismissing an appeal is pronounced in open court. Reasons must be given. In its final form a written version of the decision must be prepared within 3 days after its pronouncement. Pursuant to Article 386 § 1 of the Code, within 7 days following its adoption the appellate decision must be transmitted, for execution, to the court which gave the first instance judgment. Under Article 401 § 1 of the Code the first instance court is then required to furnish a copy of the first instance judgment to the prison administration (no time-limits are set by domestic criminal procedure in this respect). Article 401 § 1 also provides that, where the first instance judgment is amended or quashed, a written version of the appellate decision must also be sent to the prison for the defendant’s information.
Under Article 419 of the Code of Criminal Procedure, a cassation appeal can be filed within three months after the first instance judgment becomes effective. Pursuant to Article 398 § 2 of the Code, if the appeal against the first instance judgment is dismissed at appellate instance, the first instance judgment becomes effective on the date when the appellate decision was taken.
Article 418 § 2 of the Code lays down the requirements for a cassation appeal. Pursuant to the above provision, a cassation appeal should include references to the name of a cassation court, the case and decision at issue, the substance of the decision and the reasons for appealing against it, and the appeal claims.
Article 421 § 2 of the Code of Criminal Procedure stipulates that, provided that a cassation appeal complies with the above requirements, a senior judge of an appellate court or cassation court should order the transmission of the case-file from the lower court. Within seven days following receipt of the case-file, a senior cassation court judge must issue an order accepting the appeal for consideration.

Pursuant to Article 120 § 1 of the Code of Criminal Procedure, a time-limit that was missed for an important reason can be reinstated by a court upon the request of the person concerned.


ITEMID: 001-118968
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: D.T. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr D.T., is a Netherlands national who was born in 1968 and lives in Tilburg. He is represented before the Court by Mr J.F.M. Wasser, a lawyer practising in Tilburg.
2. The Netherlands Government (“the Government”) are represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is the father of R., a girl born in 1998. The applicant and R.’s mother have since split up.
5. On 21 January 2003, when R. was five years old, her mother contacted the police on account of a suspicion that her daughter had been sexually abused by the applicant. She alleged that on Sunday 19 January 2003, upon her return from having spent the weekend with her father, R. had told her that the applicant had performed sexual acts with her during that weekend. The mother was invited to report the crime at another time to specialised police investigators.
6. On 3 February 2003 the mother reported the alleged sexual abuse of R. to two investigators specialised in the investigation of alleged sexual offences. The statement was recorded on tape.
7. On 26 February 2003 R. was interviewed by a specialised police sergeant in a child-friendly studio during which she told about the sexual, non-penetrating, abuse. The interview was recorded on videotape, minutes were drawn up containing a summary of the interview, and a verbatim record was also produced.
8. R.’s grandmother was interviewed by police on 24 March 2003. She confirmed that R. had told her mother about the sexual abuse.
9. On 14 April 2003 the applicant was questioned by police as a suspect. He denied the sexual abuse, but did confirm that on the night of 18 January 2003 R. had lain next to him in his bed. Subsequently the applicant was taken into police custody.
10. The applicant was brought before the investigating judge (rechter-commissaris) on 17 April 2003. The investigating judge ordered the applicant’s detention on remand on the same day, but suspended this detention immediately.
11. On 21 July 2003 the investigating judge appointed C., a professor of law and psychology, in order for him to assess the abovementioned studio interview of R. On 24 September 2003 C. issued a report. He had found nothing wrong in the way the studio interview had been conducted, but did note a number of peculiarities in R.’s statement. He further wrote that there was no suitable experience-based method to establish the truthfulness of witness statements, and added that the method of Criteria-Based Content Analysis (“CBCA”) used by some psychologists was not fit for this purpose. He advised not to bring the case before a court yet but first to have a developmental-psychological investigation carried out by a child psychologist into the possible causes of R.’s sexualised behaviour. On 26 January 2004 the investigating judge appointed child psychologist L. and child psychiatrist A.R. in order for them to report on the reliability of the statements made by R. during the studio interview. Their examination concluded that it was highly unlikely that R.’s statements had been made up or that words had been put into her mouth.
12. The investigating judge subsequently asked the experts L. and A.R. whether they agreed with C. that a developmental-psychological investigation into the reasons for R.’s sexualised behaviour ought to take place. L. replied that the conclusions reached by her in her original report were not so much based on a CBCA analysis but on a wider developmental-psychological investigation as indicated by C.
13. The applicant was charged with having sexually abused R. during the period of 17 until 19 January 2003. Following a hearing held on 8 February 2005, the ‘s-Hertogenbosch Regional Court (rechtbank) convicted the applicant on 22 February 2005 of an attempt to perform acts with a child under the age of twelve, consisting of the sexual penetration of that child’s body, and of having sexually abused his minor child several times. He was sentenced to a partially suspended prison term of twenty-four months. After these proceedings, the applicant changed counsel.
14. At no point during the proceedings at first instance did the applicant request the hearing of R. as a witness.
15. On 3 March 2005 the applicant lodged an appeal with the ‘sHertogenbosch Court of Appeal (gerechtshof). On 10 March 2005 counsel for the applicant requested that several witnesses, including R., be heard. By letter of 21 September 2005 the Advocate General (Advocaat-Generaal) at the Court of Appeal informed counsel of his decision not to summon R. as a witness. He considered that the interest of the protection of R.’s private life should prevail over the applicant’s interest in having her examined as a witness. The applicant nevertheless maintained his request for the hearing of R.
16. At his request, counsel for the applicant was provided with a copy of the videotape of the studio interview of R. and he requested W., a professor of psychology, to give his opinion on the reliability of R.’s statements. In his report of 15 October 2005 W. concluded that the recommendations of C. – with which W. concurred – had not been followed up, and that this failure impeded a proper assessment of the reliability of R.’s statements. Although it was true that the experts L. and A.R. had not based their reply to the question concerning the reliability of R.’s statements exclusively on a strict CBCA analysis, it could nevertheless not be said that a wider investigation into the possible reasons for R.’s sexualised behaviour had been conducted.
17. The first hearing before the Court of Appeal was held on 17 October 2005. Counsel for the applicant once more requested that R. be heard as a witness, preferably at a hearing in the presence of the applicant, but alternatively at a hearing where the applicant was not present, or by the investigating judge. This request was rejected by the Court of Appeal, which noted that R., who was now nearly eight years old, had been subjected to an extensive studio interview when she was five years old. It found that R.’s interest in not being compelled to relive possible traumatic experiences outweighed the interest of the defence in questioning R. or having R. questioned. It took into account that the defence had had the opportunity to view the videotape of the studio interview and that four experts had examined the interview and had reported on it. The Court of Appeal considered that this constituted sufficient compensation for the lack of the opportunity for the defence to question R. on appeal. The hearing was adjourned in order for a number of other witnesses and experts to be summoned.
18. By letter of 7 March 2006 counsel for the applicant repeated the request for R. to be called as a witness.
19. In the course of the second hearing, which took place on 13 March 2006, R.’s mother and grandmother were heard, L., A.R. and W. were heard as expert witnesses, and part of the videotape of the studio interview with R. was played back. Counsel for the applicant requested that a developmental-psychological examination of R. as advised by the experts C. and W. be carried out, and he repeated the request for R. to be heard, if need be by means of a studio interview in the course of which the defence would have the opportunity to put questions to her, or to have questions put to her. The Court of Appeal adjourned the hearing in order to consider counsel’s requests.
20. At the third hearing, held on 20 March 2006, the Court of Appeal considered that a decision on counsel’s requests first required an examination of the question whether the hearing or a developmental-psychological examination of R. would be harmful to her health and well-being. It therefore appointed an expert. On 29 April 2006 this expert, L.-W., submitted a report in which she concluded that it might be possible for R. to be interviewed again, and especially if the treatment and/or therapy she was apparently receiving was related to the alleged sexual abuse, unless a new interview was considered prejudicial to the therapeutic process. It was for the therapist treating R. to assess whether a second interview would be harmful to R.’s health and well-being. However, on the point of the usefulness of a second interview, L.-W. considered that after three years it would be extremely difficult, and perhaps even impossible, to determine which parts of R.’s new statement would be based on accurate recollections and which would be coloured by the different conversations R. had had about the alleged abuse. In these circumstances, L.-W. advised against R. undergoing a second interview. As to the question whether a developmental-psychological examination would be harmful to R.’s health and well-being, L.-W. also referred to the therapist treating R.
21. A fourth hearing was held before the Court of Appeal on 15 May 2006 in the course of which the Court of Appeal requested the Advocate General to contact the therapists treating R. in order to be informed whether R. undergoing a new interview or a developmental-psychological examination would be harmful to her health and well-being. By letter of 21 June 2006 the two therapists treating R. informed the Advocate General that in their opinion a second studio interview would not be desirable in view of the developmental process R. was currently going through. Such an interview would put her in a position of once more having to identify her father as perpetrator of sexual abuse entailing the possible consequence of him being prosecuted. This would place too much pressure on R. and be harmful for her healing process. A second interview would disturb R.’s balance whereas peace and quiet and the building up of trust and stability in the family situation were of more importance for R.’s further general development. The therapists further informed the Advocate General that for the purpose of R.’s treatment a psychological examination was being conducted. They proposed that, if the mother agreed, the results of that examination could be submitted to the Court of Appeal.
22. At the fifth hearing, held on 3 July 2006, the Court of Appeal refused the request of the defence to hear R. as a witness, considering that – in view of the letter of 21 June 2006 from the therapists treating R. – there were serious reasons to presume that hearing her once more would be harmful to her health and well-being and that the prevention of that harm outweighed the importance of a new interview. The Court of Appeal did accede to counsel’s request for a developmental-psychological examination of R. to be carried out. This examination was to focus on the questions whether the sexualised behaviour displayed and comments made by R. prior to the weekend of 17-19 January 2003 were age-inappropriate and/or excessive, and whether indications of sexual abuse of R. having been committed by someone other than R.’s father could be deduced from R.’s sexualised behaviour and comments and/or from the environment in which she was growing up and/or from her development until that weekend.
23. At the sixth hearing, on 30 October 2006, the Court of Appeal appointed two psychologists and a psychiatrist to carry out the developmental-psychological examination. They issued a report on 20 November 2006. This report has not been submitted to the Court but it appears from other documents in the case file that it concluded that R. was not suffering from psychiatric problems and did not appear traumatised in her psycho-sexual development. Due to the passage of time and subsequent events it had not been possible to reply to the Court of Appeal’s questions relating to R.’s behaviour and experiences prior to the weekend of 17-19 January 2003.
24. At the final hearing before the Court of Appeal on 4 December 2006, counsel for the applicant repeated the request to call R. as a witness, given that in view of the conclusions reached in the developmental-psychological examination it did not appear that a new interview would be harmful to R.’s health and well-being. Counsel further argued that not hearing R. constituted a breach of Article 6 § 3 (d) of the Convention in that the defence had not been afforded the opportunity to put questions to R. whereas a conviction of the applicant would solely or to a decisive degree be based on R.’s statement. Moreover, insufficient counterbalancing measures had been taken, having regard to the fact that the expert C. had advised back in 2003 to conduct a developmental-psychological examination whereas such an examination had not been carried out until 2006, by which time it was no longer possible for certain questions to be answered.
25. On 18 December 2008 the Court of Appeal delivered its judgment. It maintained its decision as regards the hearing of R., considering that the fact that R. was apparently not suffering from psychiatric problems and did not appear traumatised in her psycho-sexual development did not alter the conclusions reached by the therapists treating her who had advised against a second interview. It further considered that, on the whole, sufficient compensation had been provided for the fact that R. had not been heard again and that the defence had not been given the opportunity of putting questions to her. This compensation consisted in particular of the studio interview conducted with R. by a specialised police sergeant – which interview had been found to be of good quality by the experts L, A.R., C. and W. and the video-tape of which had been put at the disposal of the defence as well as the experts and had been partially played back in court –; the reports drawn up by the experts C., L. and A.R., W. and the two therapists treating R.; and the appearance at hearings before the Court of Appeal of the experts L, A.R. and W. According to the Court of Appeal, the present case could be distinguished from those of P.S v. Germany (no. 33900/96, 20 December 2001) and Bocos-Cuesta v. the Netherlands (no. 54789/00, 10 November 2005), because in those cases the interviews with witnesses whom the defence was not able to question had not been videotaped. Conversely, it appeared from S.N. v. Sweden, (no. 34209/96, in particular § 52, ECHR 2002-V) that the existence and the viewing of a videotape of the interview of a minor might constitute important compensation enabling the defence to challenge the statements and the credibility of the witness. The developmental-psychological examination only having taken place in 2006 and, as a result, the obtaining of (uncoloured) information having been rendered more difficult, did not detract from the fact that this examination had provided insight into R.’s development and thus information relevant for the assessment of the studio interview. The Court of Appeal also took into account that the defence had only requested that R. be heard again as from 2005.
26. As to R.’s statement, the Court of Appeal considered that it was sufficiently clear from R.’s mother’s and grandmother’s statements that R. had not been pressured to denounce her father; that she had told her mother about the events on the same day they took place; and that it was unlikely that R. had been mistaken about the events and the person in issue so few hours after they had taken place. It further considered that, even though an assessment of the statement based on the method of CBCA could not give a decisive answer about the reliability of R.’s statement, it was, at least, likely that the statement had not been a deliberate lie (bewust gelogen). In this regard, the court also attached weight to the clinical assessment by the experts L. and A.R. that it was highly unlikely that R.’s statements had been made up or that words had been put into her mouth. Consequently, and having itself viewed the videotape, the Court of Appeal found R.’s statement to be reliable.
27. The Court of Appeal quashed the judgment of the Regional Court, convicted the applicant of an attempt to perform acts with a child under the age of twelve, consisting of the sexual penetration of that child’s body, and of sexual abuse of his minor child, and sentenced him to a partially suspended term of imprisonment of twenty months. It based this conviction on R.’s statement made during the studio interview, the statement of the applicant that during the weekend in question he had been alone with R. and had lain next to her in bed, and the statement of R.’s mother and grandmother about what R. had told them after the weekend and the way in which R. had told it.
28. On 18 December 2006 the applicant lodged an appeal on points of law (cassatie) alleging a breach of Article 6 of the Convention in that he had not been afforded an opportunity to put questions to R. He also complained that his conviction had wrongly been based on the statement of R., while sufficient supporting evidence was lacking.
29. By judgment of 17 November 2009 the Supreme Court rejected the appeal on points of law. As regards the complaint that the applicant’s request to examine R. as a witness had been refused, the Supreme Court noted that pursuant to article 288 § 1 sub (b) of the Code of Criminal Procedure (Wetboek van Strafvordering), a court may decide not to proceed to the hearing of a witness if there are serious reasons for presuming that the making of a statement at a hearing of the court would be harmful to the health and well-being of the witness and if the prevention of that harm outweighed the importance of the possibility to have the witness examined at the hearing. The Supreme Court continued as follows:
3.4.1. The Court of Appeal has not negated the above ... In its considerations about the evidence it has set out the reasons why it found that compensation enabling an effective defence was provided for the inability to examine the victim as a witness. Seen also against the background of that finding ... the rejection of the request [to examine the victim as a witness] has been sufficiently reasoned.
3.4.2. The Court of Appeal has based that rejection on its opinion that there were serious reasons for assuming that another interview could be harmful to the health and well-being of the victim. In reaching that opinion the Court of Appeal based itself on the views of the experts treating the victim. The Court of Appeal further considered that the contents of the subsequent report of the [developmental-psychological examination] did not lead to a different conclusion, but that, on the contrary, it supported the views of the abovementioned experts.”
30. The Supreme Court rejected the complaint about the use of R.’s statement in evidence, considering that that complaint overlooked the finding of the Court of Appeal – which finding had not been disputed in the appeal on points of law and had been confirmed by the Supreme Court – that sufficient compensation had been provided for the lack of opportunity to examine the witness.
31. Finally, the Supreme Court found ex proprio motu that the proceedings before it had exceeded the reasonable time requirement and for that reason it quashed the judgment of the Court of Appeal in so far as the imposed sentence was concerned. It sentenced the applicant to a partially suspended prison term of eighteen months.


ITEMID: 001-69158
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: FISCHBACH-MAVROMATIS v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Silvia Fischbach-Mavromatis, is a German national, who was born in 1958 and lives in Ehingen (Germany). She was represented before the Court by Beck, Krist and Bubits, a partnership of lawyers practising in Mödling (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Departement at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 March 1997 officers of the Burgenland Regional Police Authority (Landesgendarmeriekommando) carried out speed controls on the Federal Road No. 65 in the course of which the applicant's car was found to be speeding. The Jennersdorf District Administrative Authority was informed accordingly of the offence.
On 13 May 1997 the District Administrative Authority ordered the applicant to disclose pursuant to Section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) the full name and address of the person who had driven her car 31 March 1997 at a specified time on Federal Road No. 65.
On 5 June 1997 the District Administrative Authority issued a provisional penal order against the applicant in which it sentenced her under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 1,500 (with 72 hours' imprisonment in default) as she had failed to give the requested information within the set time-limit.
The applicant, assisted by counsel, filed an objection (Einspruch) against this decision. She submitted that she should be given the photo taken when the speeding offence was committed as she could not remember who drove her car at the relevant time. In any event, she could not be convicted of the offence under Section 103 § 2 and 134 of the Motor Vehicles Act as this offence - like all administrative offences - could only be committed in Austria whereas she was residing in Germany.
On 4 November 1997 the District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 1,500 (with 72 hours' imprisonment in default). The Authority found that the applicant had failed to give the information requested and that Austrian administrative law, including administrative criminal law, was applicable because the place where the offence had been committed was in Austria since the applicant had to give the requested information to the Jennerdorf District Administrative Authority.
The applicant appealed to the Burgenland Independent Administrative Panel (Unabhängiger Verwaltungssenat). She reiterated the arguments made in her objection.
On 1 December 1997 the Independent Administrative Panel dismissed the applicant's appeal. Referring to the Administrative Court's case-law it found that the District Administrative Authority had been right when stating that Austrian administrative criminal law was applicable as the offence at issue (failure to disclose information) had been committed in Austria. Furthermore it had not been necessary to send the photo taken when the speeding offence was committed as the applicant, under the Motor Vehicles Act, had been under the obligation to record who had been using her car, possibly with the help of a “car user diary” (Fahrtenbuch).
On 13 January 1998 the applicant lodged a complaint against the Independent Administrative Panel's decisions with the Constitutional Court and requested the court to hold a hearing. She complained, inter alia, that the administrative criminal proceedings violated her right not to incriminate herself as guaranteed by Article 90 § 2 of the Federal Constitution. She also complained that her conviction violated her property rights as guaranteed by Article 1 of Protocol No. 1.
On 9 June 1998 the Constitutional Court refused to deal with the applicants' complaint for lack of prospect of success.
On 24 June 1998 the Constitutional Court, upon the applicant's request, transferred the case to the Administrative Court.
On 20 November 1998 the Administrative Court refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake.
This decision was served on the applicant's counsel on 15 January 1999.
Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows:
's right to require such information shall take precedence over the right to refuse to give information.”
The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985, quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits, inter alia, that a suspect be obliged on pain of a fine to incriminate himself.
In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights, but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the Constitution, but found that this was not the case.
Section 134 § 1 of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000 with up to six weeks' imprisonment in default could be imposed on a person who violates the regulations of this Act.