ITEMID: 001-107739
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF PETROV AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: André Potocki;Ganna Yudkivska;Mark Villiger
TEXT: 4. The applicants were born in 1955, 1953 and 1946 and live in Gorlivka, Rovenky and Kryvyy Rih, respectively.
5. The applicants instituted separate sets of civil proceedings against their employers mainly claiming occupational disability allowances.
6. On 23 September 1999 the first applicant, a former miner, instituted civil proceedings in the Mykytivsky District Court of Gorlivka (“the Mykytivsky Court”) against his former employer, a State-owned mine, seeking recalculation of his occupational disability payment.
7. Between September 1999 and August 2003 the Mykytivsky Court reconsidered the case on three occasions. Its judgments of 2 June and 14 November 2000 and 15 October 2001 were quashed by the Donetsk Regional Court on 24 July 2000, 26 February 2001 and 25 February 2002 for procedural irregularities and legal and factual errors. Accordingly, the case was remitted for fresh examination.
8. On 18 April 2003 the Mykytivsky Court replaced the respondent in the case upon the applicant’s request. In particular, the court ordered another company, the mine’s successor, to stand as a respondent. The court also ordered the local social security fund to take part in the proceedings as a co-respondent.
9. On the same day the Mykytivsky Court delivered a judgment, ordering the fund to make monthly payments in respect of the applicant’s occupational disability. By a separate procedural decision, the applicant’s claims against the other co-respondent were left without consideration as the applicant withdrew them in the course of the court hearing.
10. On 18 December 2003 the Donetsk Regional Court of Appeal quashed the judgment of 18 April 2003 and ordered reconsideration of the case.
11. On 20 April 2006 the Supreme Court quashed the decision of the Court of Appeal, finding that the latter had not complied with the rules of procedure.
12. On 27 July 2006 the Court of Appeal reconsidered the case and adopted a new judgment reducing the payments awarded to the applicant by the first-instance court.
13. On 22 January 2008 the Kyiv Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal and confirmed the judgment of 27 July 2006.
14. The applicant unsuccessfully tried to challenge the courts’ decisions in an extraordinary appeal, which was rejected by the Supreme Court on 18 May 2009.
15. According to the Government, out of fifty-two scheduled hearings, twenty-four were adjourned for various reasons. In particular, the hearings were adjourned twice because of the failure of the applicant to appear, twenty times due to the failure of the respondents or their representatives to appear, and twice because of both parties’ failure to appear. Additionally, two hearings were adjourned as the judge was absent for health and business reasons. On several occasions the courts had to renew, at the applicant’s and the respondent’s request, the term for lodging an appeal which resulted in a delay of about three months. Lastly, due to the expert examination ordered at the applicant’s request, the consideration of the case was delayed for about six months.
16. According the applicant, the hearings were adjourned twenty-three times due to the failure of the respondents or their representative to appear. The applicant also indicated that the case had not been heard between 10 May 2002 and 7 February 2003 as the presiding judge’s mandate had expired.
17. On 23 June 1998 the second applicant, then a miner, instituted civil proceedings in the Rovenky Town Court of Lugansk Region (“the Rovenky Court“) against her employer, a State-owned mine, asking the court to order the mine to issue her a certificate confirming that she had received an occupational injury.
18. In the course of the proceedings the applicant amended her claims on several occasions. In particular, she sought compensation for pecuniary and non-pecuniary damage, resulting from her injury, to be paid by the mine and the local social security fund.
19. Between June 1998 and May 2003 the Rovenky Court reconsidered the case on two occasions. Its judgments of 24 November 1998 and 6 May 2003 were quashed by the Lugansk Regional Court on 14 January 1999 and 29 January 2004, respectively, for procedural irregularities and failure to accurately establish the circumstances. Accordingly, the case was remitted for fresh examination.
20. By the judgment of 24 February 2006, the Rovenky Court rejected the applicant’s claims as unsubstantiated. Following two reconsiderations of the case on appeal, the judgment was eventually confirmed by the Lugansk Regional Court of Appeal on 28 November 2007.
21. On 5 March 2008 the Supreme Court rejected the applicant’s appeal in cassation, finding no fault on the part of the lower courts.
22. According to the Government, out of sixty-eight hearings scheduled in the course of the proceeding, eleven were adjourned because of the failure of the applicant or her representative to appear, eight due to the respondents’ or their representatives’ failure to appear or requests to adjourn hearings, and three because all the parties failed to appear.
23. According to the applicant, she attended all the hearings; her representative failed to appear at only two hearings and was later dismissed by the applicant.
24. On three occasions the courts had to renew, at the applicant’s and respondents’ requests, the term for lodging an appeal which resulted in a delay of about four months.
25. On 26 July 2002 the applicant, then a miner, instituted civil proceedings in the Ternivsky District Court of Kryvyy Rih (“the Ternivsky Court”) against two State-owned companies who were the successors of his former employer, a State-owned mine, and the local social security fund, seeking recalculation of his occupational disability payments and compensation for pecuniary and non-pecuniary damage.
26. In the course of the proceedings the applicant amended his claims on several occasions. The amendments mainly concerned the amounts he claimed.
27. Between July 2002 and November 2007 the Ternivsky Court reconsidered the case on three occasions. Its judgments of 5 July 2004, 6 March 2006 and 23 August 2007 were quashed by the Dnipropetrovsk Regional Court of Appeal on 4 November 2004, 5 October 2006 and 29 November 2007, respectively, for procedural irregularities and legal and factual errors. Accordingly, the case was remitted for fresh examination.
28. The applicant’s appeal in cassation against the decision of 29 November 2007 was rejected by the Supreme Court on 11 March 2008.
29. The case is currently pending before the Ternivsky Court.
30. Out of sixty-three hearings scheduled between 26 July 2002 and 6 December 2010, five were adjourned because of the failure of the applicant or her representative to appear, eighteen were adjourned due to the respondents’ or their representatives’ failure to appear, six times both parties failed to appear. On four occasions the hearings were adjourned for the presiding judge was busy with another case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23646
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MAGNUSSON v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Gunilla Magnusson, is a Swedish national, who was born in 1950. She was represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the step-grandmother of two boys, T and L (born respectively in August 1989 and June 1992) and is married to their paternal grandfather. Since the boys’ parents separated in 1995, they have been living with their mother C. Until May 1996 she and the boys only had sporadic contacts with the applicant and their grandfather. Thereafter the boys, mostly L., visited them from time to time during weekends, normally one at the time. During the weekend of 27 February to 1 March 1998 T. visited them by himself. The same night, he, together with his brother, told his mother and her co-habitant about sexual touching committed by the applicant.
On 4 March 1998 C reported the matter to the police. The next day the police carried out interviews of the boys, which were video recorded. On 26 March 1998, the boys underwent forensic examinations at the Ward for Forensic Medicine in Stockholm. The relevant reports are dated 26 March 1997 but, on an enquiry by the registry, the applicant’s lawyer stated that the correct year was 1998. As regards T the report concluded in the main that the boy seemed normal and that the observations made neither confirmed nor contradicted the information available. Similar observations were made in the report concerning L, except for certain particular observations made regarding his posterior parts and the somewhat reduced capacity of muscular contraction of his anus. In this respect it was stated that the precise cause could not be established with absolute certainty; but it could not be excluded that repeated intrusion of an object was a factor, though, according to scientific data, this phenomenon occurred in a little less than half of the children who had not been subjected to sexual abuse. The report concluded that the observations made neither contradicted nor with absolute certainty confirmed the information available.
On 23 April 1998 the applicant was interrogated. On 14 May 1998 the applicant and her defence counsel watched the video recordings at the police station and requested that T be interviewed once more. They did not request that any concrete questions be put to him but asked that he be questioned about his relationship with his brother, mother and father and, also, his attitude to physical contact generally. On 3 June 1998 T was again interviewed, with a video recording. The interviews of the boys were carried out by a police officer, without the presence of the applicant or her counsel or a psychologist.
According to the applicant’s lawyer, on 14 May 1998 the police acknowledged that the questioning had not been carried out by a specially trained police officer and that several leading questions had been put. Therefore, according to his letter of 14 August 2003 to the registry, on 14 May 1998 he requested the police to carry out a new investigation, with the participation of an expert in child psychology. The lawyer has not provided any documentary evidence in support of the aforementioned submissions. A memorandum by a police officer dated 14 May 1998, supplied to the Court by the applicant, stated:
“On the above-mentioned date the two video interviews of [T] and [L] have been shown to [the applicant] and her defence counsel, Mr Jan Thörnhammar.
After having seen both video interviews the counsel ... and [the applicant] wished that one further interview should be held with [T]. They did not indicate any concrete questions that they wished be put to [T]. On the other hand, they wished that [T] should be questioned about his relations with his brother [L] and with his mother [C] and with his father [R], as well as about any attitude he might have with regard to physical contact in general.
Another matter of concern to the defence was that [T] had stated something during the interview to the effect that he had recounted what had happened to him because he was anxious that someone at school should hear him talk about the incident for himself and ... that someone could hear him and believe that he had done something.”
The applicant’s counsel further submitted a summons of 10 November 1998 to a meeting at the local police station on 30 November 1998, at which she was to be notified of the conclusions of the investigation (Chapter 23, Article 18, of the Code on Judicial Procedure). The applicant’s counsel stated to the Court (in letter of 14 August 2003 mentioned above) that at that meeting “the defence demanded that the prosecutor should complete the investigation with statements from experts.”
On 8 March 1999 the relevant local District Court - after hearing the applicant, her husband and her employer, the boys’ mother and her co-habitant, but not the boys themselves (who were represented by a lawyer), and L’s primary school teacher, - convicted the applicant of having committed sexual abuse of T on one occasion and of L on at least one occasion, sentenced her to 3 months’ imprisonment and ordered her to pay certain sums in compensation to the boys. The video recorded police interviews of the boys, which constituted the main evidence against the applicant, were shown during the hearing and complete transcripts thereof were included in the written evidence.
As it appears from the District Court’s judgment, a starting point for its examination was its observation that the prosecution case was essentially based on the information provided by children, submitted in the form of video recordings or recounted before the court by other witnesses. There was no evidence that directly support the indictment and no observable physical consequences could be established. Thus, what was decisive for the question of guilt was whether one could rely on the children’s accounts in the light of what had otherwise emerged in the case. The District Court then went on to assess in detail the contents of the video recorded interviews, the credibility of the boys’ statements and their evidentiary value, against the background of other evidence in the case.
On 18 June 1999 the competent Court of Appeal upheld the District Court’s judgment, after taking oral evidence from the same persons and viewing the video recordings and after having rejected (by a separate decision of 27 May 1999, not appealed against) a request by the applicant for an expert in child psychology to comment on the police interviews of the boys.
On 16 September 1999 the Supreme Court refused leave to appeal.
Subsequently, on 30 November 1999, the applicant obtained an opinion by a Psychologist, Dr Egil Ruuth, whom her lawyer had requested to make a witness psychological assessment of the evidence gathered in the pre-trial investigation in the case. On the basis of the written case material, the video tapes and the District Court’s and the Court of Appeal’s judgments, the expert concluded:
“In the light of what has been stated above concerning the circumstances in which [T]’s and [L]’s statements to the effect that they had been subjected to sexual abuse by [the applicant] had originated, these are deemed to be unreliable, i.e. not based on self-experienced events.”
Domestic provisions of relevance in the present case are found in the Code of Judicial Procedure (hereinafter “the Code”) and in the Ordinance on Preliminary Investigations (Förundersökningskungörelsen, 1947:948; hereinafter “the Ordinance”).
A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, Article 10 of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not arise until a person has been informed of the suspicions against him in accordance with Chapter 23, Article 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel is present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, Article 11, of the Code).
When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, Article 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, Article 19, of the Code).
Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, Article 10, of the Code, a child’s custodian should be present whenever a child under the age of fifteen is questioned if this can be done without any harmful effects on the investigation.
Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of eighteen must be conducted in such a manner that there is no danger that the interviewed person might be harmed. Moreover, particular caution is to be observed when the questioning concerns sexual matters. Particular care should be taken in order to ensure that the interview does not cause distress and does not become more intimate than the circumstances require. Questioning should not occur more often than necessary having regard to the nature of the investigation and the best interests of the child.
Under section 18 interviews with children should (“bör”) be conducted by a person who is particularly suited to perform the task. In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child’s testimony.
Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, Article 4, of the Code). There is no corresponding provision applicable to children who are in the position of an injured party. In practice, however, such evidence is normally presented to the court in the form of a video recording of the police interview, which is played back during the court’s main hearing. In allowing this to take place, the court applies Chapter 35, Article 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise made out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and, on the other, the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances.


ITEMID: 001-104816
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KARTTUNEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Ulla Annikki Karttunen, is a Finnish national who was born in 1956 and lives in Helsinki.
2.
3. The applicant is an artist who exhibited her work “the Virgin-Whore Church” in an art gallery in Helsinki. On 14 February 2008 the exhibition was opened for invited guests and on 15 February 2008 it was opened to the public. The work included hundreds of photographs of teenage girls or otherwise very young women in sexual poses and acts. The pictures had been downloaded from free Internet pages and some of them were extremely violent or degrading.
4. On 15 February the police seized the pictures and the exhibition was closed down. On 21 February 2008 the police seized the applicant’s computer.
5. On 14 March 2008 the public prosecutor pressed charges against the applicant on two counts. His decision to press charges was based on the Deputy Prosecutor General’s (apulaisvaltakunnansyyttäjä, biträdande riksåklagaren) decision to press charges in the matter. He also requested, inter alia, that the seized pictures be confiscated.
6. On 21 May 2008 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant of possessing and distributing sexually obscene pictures depicting children. The court found, by referring, inter alia, to Article 10 of the Convention and other Council of Europe conventions, that everybody had the right to freedom of expression as well as to freedom of the arts unless the exercise of these rights constituted a crime. Finding the applicant guilty was justified for the protection of morals. Moreover, the faces of many of the children or young women in the pictures were clearly recognisable and their reputation and right to private life had to be protected. Even though the applicant’s intention had not been to commit a criminal act but, on the contrary, to criticise easy access to child pornography, possessing and distributing sexually obscene pictures depicting children were still criminal acts. Their criminalisation was based on the need to protect children against sexual abuse as well as against violation of their privacy. As to the sanctions, the court noted that the applicant had intended to provoke general discussion about child pornography. Taking into account also the other circumstances, inter alia, that the crimes were minor and excusable, the court did not impose any sanctions on the applicant. Instead, the court ordered all the pictures to be confiscated.
7. By letter dated 19 June 2008 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), requesting that the charges be dismissed. She claimed that her work as an artist had to be equated with the work of a journalist or a scientist, and that she had therefore had a justification for the possession and distribution of the pictures in question.
8. On 6 March 2009 the Helsinki Court of Appeal upheld the District Court’s judgment. It found, inter alia, that the protection of the privacy of children took precedence over the applicant’s right to freedom of expression. The fact that the identity of the children was not known or that the pictures could be illegally obtained elsewhere did not remove the applicant’s criminal liability nor justify her acts.
9. By letter dated 5 May 2009 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal already presented before the Court of Appeal.
10. On 29 June 2009 the Supreme Court refused the applicant leave to appeal.
11. The Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in its section 12 the following:
“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act. Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”
12. In section 16 of the Constitution the freedom of science, the arts and higher education is guaranteed.
13. According to Chapter 17, section 18, of the Penal Code (rikoslaki, strafflagen; Act no. 39/1889, as amended by Act no. 650/2004):
“A person who manufactures, offers for sale or for rent, exports, imports to or through Finland or otherwise distributes sexually obscene pictures or visual recordings depicting
(1) children,
(2) violence or
(3) bestiality
shall be sentenced for distribution of sexually obscene pictures to a fine or imprisonment for at most two years.
An attempt is punishable.
The provisions in section 17, subsection 2 apply also to the pictures and visual recordings referred to in this section.
A person under 18 years of age and a person whose age cannot be determined but who can be justifiably assumed to be under 18 years of age is regarded as a child.”
14. Chapter 17, section 19, of the Penal Code provides that a person who unlawfully has in his or her possession a photograph, video tape, film or other realistic visual recording depicting a child referred to in section 18, subsection 4, having sexual intercourse or participating in a comparable sexual act or depicting a child in another obviously obscene manner shall be sentenced for possession of sexually obscene pictures depicting children to a fine or imprisonment for at most one year.


ITEMID: 001-57507
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF JAMES AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 6-1;No violation of Art. 13
JUDGES: C. Russo;Gaukur Jörundsson
TEXT: 10. The applicants are or were trustees acting under the Will of the Second Duke of Westminster. The first applicant, John Nigel Courtenay James, is a chartered surveyor resident in London. The second applicant, Gerald Cavendish the Sixth Duke of Westminster, resides at Chester. The third applicant, Patrick Geoffrey Corbett, is a chartered accountant resident in Sussex. The fourth applicant, Sir Richard Baker Wilbraham, is a banker in London. The fourth applicant was appointed as trustee on 31 December 1981 in place of the third applicant, who retired.
In the area of Belgravia in Central London, upon a site which was once farmland on the outskirts of the City of London, the Westminster family and its trustees have developed a large Estate comprising about 2,000 houses which has become one of the most desirable residential areas in the capital. The applicants, as trustees, have been deprived of their ownership of a number of properties in this Estate through the exercise by the occupants of rights of acquisition conferred by the Leasehold Reform Act 1967, as amended.
11. This legislation confers on tenants residing in houses held on "long leases" (over, or renewed for periods totalling over, 21 years) at "low rents" the right to purchase compulsorily the "freehold" of the property (the ground landlord’s interest) on prescribed terms and subject to certain prescribed conditions (see paragraphs 20 to 26 below). Under the system of long leaseholds, a tenant will typically purchase a long lease of property for a capital sum and pay a small or even nominal rent for it thereafter. The lease is a real-property interest, registerable in the Land Registry. The legislation in issue in the present case is not concerned with the ordinary system of rented tenure under which the tenant pays a "rack rent" reflecting the full annual value of the property. The landlord/tenant relationship under the ordinary system is regulated, for houses under a certain (rateable) value, by separate legislation in the form of the "Rent Acts", which provide machinery for fixing "fair rents" and provide certain security of tenure for tenants.
12. Two principal forms of long lease of residential property exist.
The first is a building lease, typically for 99 years, under which the tenant pays a "ground rent" - a low rent fixed by reference to the value of the bare site - and undertakes to erect a house on the site and in general also to deliver it up in good repair at the end of the lease.
The second is a premium lease where the tenant pays the landlord a capital sum or "premium" for a house provided by the landlord, and thereafter a rent. The duration of the lease is variable, as are the relative proportions of premium and rent. According to evidence submitted to the Court, the premium charged will typically take into account the building cost and an appropriate profit element. Factors entering into the calculation will normally include the length of the proposed lease, its terms (for example, whether sub-letting is allowed) and the state of the property at the time when the lease is granted. The method used to calculate the premiums under the leases concerned in the present case is described below (paragraph 27).
The distinction between the two types of lease is not clear-cut. For example, a "premium lease" may contain an obligation to carry out substantial repairs, alterations, additions or improvements to an existing property, and thus be analogous to a building lease. In any event, it is the almost invariable practice for the lease to contain a clause making the tenant responsible for all running repairs to the house during the currency of the lease and requiring him to yield up the property at the end of the lease in good repair.
The tenant holding a property under a long lease may normally sell the lease to a third party, who then acquires the tenant’s rights and obligations under the lease for the remainder of its duration. In practice, leases are commonly bought and sold on the property market without the landlord playing any part in the transaction. A tenant may normally also grant an "under-lease" of the property. As a matter of law, however, whether there is a right to sell the lease or sublet depends on the terms of the particular lease.
13. The capital value of the landlord’s interest in a property let on a long lease arises from two sources: firstly, the rent payable under the lease and, secondly, the prospect of reversion of the property to him at the end of the lease. At the beginning of a very long lease the value of the reversion may be very little and the total market value of the landlord’s interest may therefore amount to little more than the capitalised value of the rent. The capital value of the tenant’s interest arises from his right to occupy the house under the lease, and the time for which that right will subsist is of critical importance in relation to its value. At the beginning of a very long lease, the value of the tenant’s interest may be more or less equivalent to a "freehold" interest if the rent payable is a nominal one.
The lease, however, is a wasting asset. As a lease progresses, the value of the tenant’s interest in the property diminishes, whilst the value of the landlord’s interest increases. At the end of the lease, the tenant’s interest ceases to exist and the buildings, including improvements and repairs made, revert to the landlord without any compensation to the tenant.
The sum of the values of the landlord’s and tenant’s respective interests is less than the freehold value of the property with vacant possession, since neither the landlord alone nor the tenant alone can offer a third party the freehold with such possession. If, however, the reversion is sold to the occupying tenant, who can then merge both interests into a simple freehold, its value is greater than the investment value to a third party purchasing the reversion subject to the existing lease. In free market transactions, it is usual for the vendor and the purchaser to share this additional value, known as the "merger value", in agreed proportions.
14. The long-leasehold system of tenure has been widely used in England and Wales, and in particular was associated with much urban development in the nineteenth century following the industrial revolution.
15. From about 1880 onwards, demands began to be made for "leasehold enfranchisement", that is the right for tenants to purchase compulsorily the freehold of their holdings. Between 1884 and 1929, a number of unsuccessful Bills to grant some measure of leasehold enfranchisement were introduced into Parliament.
16. Demand for reform of the law revived soon after the Second World War and in 1948 a Committee (the Leasehold Committee) was appointed by the Lord Chancellor to consider various aspects of the leasehold question.
In their report, presented to Parliament in 1950 (Command Paper Cmd 7982), the majority of the Committee came out against giving tenants a right of enfranchisement. They concluded that there were both general objections of principle and practical obstacles to such a course of action. They further believed that "leasehold enfranchisement ... would not be in the public interest" (paragraph 100). They did, however, recommend that occupying tenants of houses under a certain rateable value should have security of tenure under the Rent Acts.
The minority report of the Committee drew attention to the strong and bitter sense of injustice felt by long leaseholders in the case of building leases and recommended that certain occupying tenants should have a right of leasehold enfranchisement by compulsory purchase.
The Labour Government of the day did not have time to put forward any permanent legislation following the Leasehold Committee’s report. The Conservative Government elected in 1951 accepted the majority view of the Committee, and its recommendations were enacted in the Landlord and Tenant Act 1954 ("the 1954 Act"). In broad terms, the effect of this Act was - and still is - that on the expiry of a long residential lease the tenant should have the right to continue occupying the house as a sitting tenant under the Rent Acts, paying a "fair rent" as defined in those Acts and enjoying the security of tenure afforded by the ordinary rent legislation. This privilege is transferable on death to other members of the tenant’s family residing in the property.
17. Public discussion of the matter continued. In 1961, claims were made in Parliament that leaseholders were being subjected to hardship as a result of the onerous terms which landlords were asking for the sale of reversions or for the extension or renewal of existing leases. Enquiries were made by the Government who invited the bodies representing professions most experienced in the field (solicitors, surveyors, auctioneers, estate and property agents) to report on the practice of ground landlords in this respect. In July 1962, a White Paper was published presenting a summary of their assessments (Residential Leasehold Property - Command Paper Cmnd 1789). In general, the professional bodies appeared to find that the existing system worked adequately, although there was widespread dissatisfaction among tenants as to the limited nature of the interest they held.
18. For some years compulsory enfranchisement had been part of Labour Party policy. After the election of a Labour Government in 1964, a further White Paper was published in 1966 setting out the Government’s proposals for reform including a scheme of compulsory enfranchisement (Leasehold Reform in England and Wales - Command Paper Cmnd 2916). The grounds on which the Government considered reform to be necessary were set out as follows:
"The purpose
1. This White Paper is concerned with residential long leases particularly those granted originally in the latter half of the last century. In the case of long leases, experience has shown that the system has worked very unfairly against the occupying leaseholder. The freeholder has provided the land; but in the great majority of cases it is the leaseholder or his predecessor in title who at their own expense have built the house on the land. Whether this is so or not in all cases, it is almost universally true that over the years it is the lessee and his predecessors who have borne the cost of improvements and maintenance, and these will probably have cost far more than the original building itself. At their expense the leaseholders have preserved it as a habitable dwelling and have used it as such, and not unnaturally, an occupying leaseholder who at the end of the term has lived in it for such a period of years regards it as his family home. It is in such cases quite indefensible, if justice is to be done as between freeholder and occupying leaseholder, that at the end of the term, the law should allow the ownership of the house to revert to the freeholder without his paying anything for it so that he gets not only the land but also the house, the improvements and everything the leaseholder and his predecessors have added to it.
2. The Government has decided that a solution must be found to right this injustice. In the Government’s view the basic principle of a reform which will do justice between the parties should be that the freeholder owns the land and the occupying leaseholder is morally entitled to the ownership of the building which has been put on and maintained on that land.
3. Two circumstances make reform a matter of urgency. First, most people buy their house on mortgage and for them the leasehold system works particularly harshly. A purchaser on mortgage may pay virtually the freehold price for a lease with a good many years to run but as he reaches the end of his mortgage term he will feel a sharpening sense of injustice. He will realise that after he has discharged the mortgage he will have an interest far less valuable than it was when he bought it, and difficult to sell because a subsequent purchaser may not be able to get a mortgage. This is the reality now confronting many owner occupiers who purchased their houses on setting up home immediately after the war. Second, a great many leasehold estates were built in the second half of the nineteenth century when landowners used their monopoly power to prevent development taking place on other than leasehold terms. This occurred particularly in South Wales and in some English areas. These leases are beginning to fall in and the leaseholders are now experiencing the full harshness of the leasehold system.
The Plan
4. The Government will, therefore, introduce a Bill to give leaseholders with an original long lease greater security and to enable them to acquire the freehold on fair terms. The Bill will be based on the principle that the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder. It follows that the leaseholder will have the right to retain his house after the lease expires and the right to enfranchise his lease."
The White Paper contained details of the Government’s proposals to allow certain qualified leaseholders to acquire the freehold or obtain a fifty-year extension of their existing lease. The Government’s proposals as to the terms of enfranchisement were explained as follows in paragraphs 11 and 12 of the White Paper:
"11. Subject to provision for special cases, a qualified leaseholder will have the right at any time during the original term of the lease to acquire the freehold by buying out the landlord compulsorily. It is important to ensure that the price paid for enfranchisement is a fair price. But present market prices reflect the position under the present law which is inequitable to the leaseholder, and the price for enfranchisement must accordingly be based not on present market values but on the value of the land itself, including any development value attaching to it. The price of enfranchisement must be calculated in accordance with the principle that in equity the bricks and mortar belong to the qualified leaseholder and the land to the landlord.
12. It follows, and the Bill will so provide, that where there is no development value (and often there will not be) the fair price for enfranchisement will be the value of the freehold interest of the site, subject to the lease and its extension of 50 years. This will completely disregard the value of the building on reversion."
19. Thereafter, following their re-election in 1966, the (Labour) Government introduced a Bill into Parliament to give effect to their proposals. During the Parliamentary proceedings, the (Conservative) Opposition accepted the principle, enunciated in their 1966 Election Manifesto, that there should be legislation "to allow ground leaseholders to buy or rent their houses on fair terms except where the property is to be developed", but they opposed the terms in the Bill as being confiscatory. They argued that the case for basing the price of enfranchisement solely on the site value rested on a wholly false argument that the house belonged to the leaseholder. In fact, he had only purchased a right to live in it for a specified period. Market prices should be paid for what belonged to the landlords.
In the parliamentary debates on the Bill, members of all political parties expressed the view that the 1954 Act, which provides security of tenure (see paragraph 16 above), had not succeeded in relieving the hardship or injustice caused to tenants at the expiry of long leases. Two of the reasons given were the continuing liability of the tenant to pay freshly assessed rents and the potential burden of heavy claims for dilapidations which some landlords used as a means of persuading tenants to give up their statutory right of possession.
One criticism which was made of the provisions of the Bill was that it did not distinguish between "deserving" and "undeserving" tenants and did not provide machinery for a court or tribunal to determine whether it was reasonable to make an enfranchisement order in favour of the tenant. The reason given for rejecting this criticism was the concern that, in view of the very large number of houses held on long leases, a system whereby the reasonableness of the enfranchisement would have to be established in each individual case would inevitably give rise to considerable uncertainty, to delay, to litigation in many cases and, no doubt in some tenants, to the feeling that it might be too expensive to venture on the uncertain exercise.
Another point raised in the debates arose from the fact that, under the Bill, the right of enfranchisement would be restricted to the tenants of houses under a certain value. It was argued that if the leasehold system worked unjustly for the reasons suggested by the Government, then logically it must work unjustly in respect of all tenants, regardless of the value of the house. The reasons put forward by the Government spokesmen for confining the applicability of the legislation to houses below a certain value were essentially as follows:
(a) it was appropriate for legislation improving the position of leaseholders to apply to the same class of property as the Rent Acts;
(b) the Government had tried to define the cases of greatest hardship which justified them in rectifying existing contracts; the precedent had therefore been followed of the limits set by the Rent Acts; whilst it might be argued on grounds of logic and consistency that no limit should be set, that would involve rectification to an unnecessary degree;
(c) to a degree the Government were influenced by the large capital gains which could be made by some tenants if the limits were removed entirely.
After extensive debate in both Houses of Parliament, the Bill introduced by the Government was duly enacted as the Leasehold Reform Act 1967. There were about one and a quarter million dwellinghouses occupied by long leaseholders in England and Wales in 1967. It was estimated at the time by the Government that all but one or two per cent fell within the scope of the enfranchisement scheme introduced by the Act. Subsequently, as a result of an amendment introduced in 1974, a band of more valuable houses within this remaining one or two per cent was also made susceptible of enfranchisement (see paragraph 21 (b) below).
20. The legislation governing leasehold enfranchisement now consists of the Leasehold Reform Act 1967 ("the 1967 Act"), as amended by the Housing Act 1969 ("the 1969 Act"), the Housing Act 1974 ("the 1974 Act"), the Leasehold Reform Act 1979, the Housing Act 1980 ("the 1980 Act") and the Housing and Building Control Act 1984. This legislation provides occupying tenants of "houses" let on long leases in England and Wales with the right to acquire the freehold of the house, or an extended lease, on certain terms and conditions. The term "house", as defined, includes semi-detached and terrace houses but not flats and maisonettes (section 2 of the 1967 Act).
21. The following, in broad terms, are the principal conditions which must be satisfied before the tenant of a house becomes entitled to the right of acquisition conferred by the Act:
(a) The tenancy must be a "long" tenancy, that is either for a term certain of 21 years or more or for a lesser term once it has been renewed for periods totalling over 21 years (sections 1 and 3 of the 1967 Act).
(b) With certain exceptions not relevant for present purposes, the "rateable value" of the house (that is, the notional annual rental value fixed for local taxation purposes) must not exceed £750, or £1,500 if the house is in Greater London (section 1 of the 1967 Act as amended by section 118 of the 1974 Act). The original rateable-value limits fixed in the 1967 Act (£200 and, for Greater London, £400) were revised (in effect being raised to £500 and £1,000, respectively) by the 1974 Act to take account of the country-wide rating revaluation carried out in 1973. The 1974 Act further extended the scope of the enfranchisement scheme under the 1967 Act by bringing in houses of a still higher rateable value (between £500 and £750 and, for Greater London, between £1,000 and £1,500), in respect of which, however, a different purchase price was payable (see paragraph 23 below). Certain even more valuable properties, being outside the global rateable-value limits, remain outside the ambit of the legislation altogether.
(c) The annual rent must be a "low" rent, that is less than two-thirds of the rateable value (sections 1 and 4 of the 1967 Act).
(d) The tenant must occupy the house as his only or main residence and must have done so for at least three years prior to the time when he gives notice of his desire to exercise his rights under the Act (section 1 of the 1967 Act as amended by section 141 and schedule 21 of the 1980 Act - the 1967 Act originally provided for a five-year minimum period).
22. Where the above conditions are satisfied the tenant has two rights:
(a) he can obtain a fifty-year extension of the lease at a rent representing the letting value of the ground (without buildings), the rent being subject to revision after 25 years (sections 14 and 15 of the 1967 Act);
(b) he can purchase the freehold on the terms outlined below (section 8 of the 1967 Act).
The tenant can set in motion the procedure for exercising his right to purchase the freehold at any time up to the original term date of the lease, but not thereafter (section 16 of the 1967 Act).
23. No price or premium is payable for an extended lease other than the rent.
On the purchase of a freehold, a price is payable to the landlord as determined in accordance with one or other of two bases of valuation. These are referred to as the "1967 basis of valuation", which was introduced by the 1967 Act (as amended by the 1969 Act), and the "1974 basis of valuation", which was introduced by the 1974 Act. The 1967 basis applies to less valuable properties, and the 1974 basis to the small percentage of more valuable properties (see paragraphs 19 in fine and 21 (b) above) brought within the scope of the legislation for the first time by the 1974 Act. The essential features of the two bases of valuation may be summarised as follows:
(a) The 1967 basis of valuation applies to properties with a rateable value of up to £500, or £1,000 if the house is in Greater London. The price payable is the amount which the house, if sold on the open market by a willing seller, might be expected to realise on the assumptions, inter alia, that (i) the tenant has exercised his statutory right to obtain an extension of the lease for fifty years, and (ii) the purchaser is someone other than the tenant (section 9 of the 1967 Act, section 82 of the 1969 Act and section 118 of the 1974 Act). The effect of the assumption as to the extension of the lease is that the tenant pays approximately the site value, and pays nothing for the buildings on the site. The assumption that the purchaser is someone other than the tenant, introduced by the 1969 Act, also excludes any element of "merger value" from the price (see paragraph 13 above). This basis of valuation reflects the policy outlined in the 1966 White Paper (see paragraph 18 above).
(b) The 1974 basis of valuation applies to properties with rateable values of over £500 and up to £750, or over £1,000 and up to £1,500 if the house is in Greater London. The price payable is the amount which the house, if sold on the open market by a willing seller, might be expected to realise on the assumption, inter alia, that at the end of the tenancy the tenant had the right to remain in possession of the house under the 1954 Act, that is as a statutory tenant paying a "fair rent" reflecting his occupation of the house (see paragraph 16 above - section 9 of the 1967 Act as amended by section 118 of the 1974 Act). In principle, this basis of valuation is more favourable to the landlord and is intended to provide a price approximately equivalent to the market value of the site and house, assuming it to be tenanted under the 1954 Act; it also allows the landlord a share of the "merger value".
However, in a case where a tenant had obtained a fifty-year extension of the lease and subsequently, before expiry of the original term date of the tenancy, applied for the freehold, it was held by the Lands Tribunal (see paragraph 25 below) that the assessment of the compensation had to be on the basis of the tenant having extended his lease (Hickman v. Phillimore Estate (1985) Estates Gazette, Vol. 274, p. 261). In such circumstances, therefore, the landlord receives substantially less than the above market value in compensation. The Government recognised at the hearings before the Court that this decision had identified a loophole in the 1974 Act that needed to be cured by amending legislation. The Court has since been informed by the Government that the decision of the Lands Tribunal has been set down for appeal.
Special provisions apply for extinguishing any intermediate lease where the occupying tenant claiming enfranchisement does not hold his lease direct from the freeholder (schedule 1 to the 1967 Act). These provisions do not, however, appear to be relevant in the present case.
24. The tenant may, at any time before the price of the property has been fixed, institute a procedure to have the rateable value of the house adjusted for the purposes of the legislation so as to leave out of account the value of structural improvements carried out by himself or his predecessors (section 118 and schedule 8 of the 1974 Act). The County Court is competent to determine disputes as to whether improvements are within the scope of the scheme and, since the 1980 Act came into force, there has been a right of appeal to the High Court from such decisions.
25. The legislation lays down procedures for carrying the relevant transactions into effect and for determining disputes. Where the tenant wishes to acquire the freehold, he must first give the landlord written notice of his desire to do so (section 8 of the 1967 Act). Disputes over the tenant’s entitlement to acquire the freehold under the Act and related matters are within the jurisdiction of the County Court (section 20 of the 1967 Act). In such proceedings, the County Court has powers to penalise in costs a tenant who is guilty of unreasonable delay or default in the performance of the obligations arising from the notice of enfranchisement (ibid.). In default of agreement, the price payable is now subject to determination by a local Leasehold Valuation Tribunal, with a right of appeal to the London-based Lands Tribunal which forms part of the High Court (section 142 and schedule 22 of the 1980 Act). Before the 1980 Act came into force, disputes as to price were within the jurisdiction of the Lands Tribunal (section 21 of the 1967 Act). It is open to a landlord who believes that the enfranchising tenant is deliberately or unnecessarily delaying the process of enfranchisement to refer the matter to the Leasehold Valuation Tribunal (or, formerly, to the Lands Tribunal). Regulations prescribe a timetable for completion of the purchase after the price has been determined (paragraph 6 of Part I of the schedule to the Leasehold Reform (Enfranchisement and Extension) Regulations 1967, S.I. 1967 No. 1879).
26. For the purpose of assessing the price payable, the house is valued as at the date of the tenant’s notice to the landlord of his desire to acquire the freehold (sections 9 (1) and 37 (1) (d) of the 1967 Act), and not as at the date when the valuation is being carried out.
27. In transactions completed between April 1979 and November 1983, the tenants of some 80 long leasehold properties forming part of the residential Estate in Belgravia (London) which the Westminster family and its trustees have developed (see paragraph 10 above) exercised their powers under the contested legislation to acquire compulsorily the applicants’ interest as freehold owners of the properties. These transactions related to 77 properties held on "premium" leases and 3 properties held on "building" leases (see paragraph 12 above). The applicants explained that under the practice followed by the Estate at the time, the premiums were calculated on the following basis: first the rent under the lease was fixed as a percentage of the estimated market rent obtainable and then the premium was the calculated capitalised value of the balance of the estimated market rent over the term of the lease. The relevant properties were valued on the 1967 basis in 28 transactions and on the 1974 basis in 52 transactions (see paragraph 23 above).
As time passes, according to the applicants, the 1974 Act will affect an increasingly higher ratio of properties on their Estate. Since November 1983, another 43 enfranchisements have taken place, bringing up to a total of about 215 the number of properties enfranchised on the Estate under the leasehold reform legislation to date. The applicants estimate that there are likely to be between 500 to 800 further enfranchisements on their Estate in the future.
28. In each of the 80 transactions the subject of the present case, the price paid was fixed by negotiation. The applicants were advised by their legal advisers that they had no grounds for disputing the right of any of the tenants to acquire the freehold, and that they could not reasonably hope to obtain a higher price for any of the relevant properties in proceedings before the Lands Tribunal or, in respect of the more recent transactions, a Leasehold Valuation Tribunal.
29. The applicants drew attention to the following features of the individual transactions in question:
(i) in no case except 3 was the property built either by the tenant who enfranchised or by the tenant’s predecessors;
(ii) in only 6 cases was the property occupied by members of the tenant’s family continuously since the date of creation of the lease;
(iii) the period of occupation of the tenant prior to the date of his or her notice to acquire had varied from three to thirty-five years; in 34 out of the 80 instances, it had been under eight years;
(iv) in all the cases, the tenant was entitled to security of tenure, subject to the conditions laid down by the Rent Acts, upon expiry of the lease (see paragraph 16 above);
(v) the period between the tenant’s notice (the relevant date for assessment of the price - see paragraph 26 above) and completion of the sale varied between one and thirteen years, and in 34 of the 80 transactions was more than five years;
(vi) the unencumbered freehold value of the properties (as assessed by the applicants) varied from £44,000 to £225,000, whereas the price paid for enfranchisement by the tenant varied from £2,500 to £111,000;
(vii) the value of the unexpired portion of the lease to the tenants was said to be up to £153,750 - without taking into account the right to enfranchise;
(viii) in 15 cases, the tenant sold the lease, after making the claim but before enfranchising, with the benefit of the right to enfranchise;
(ix) in at least 25 out of the 80 cases, the tenant who enfranchised did not remain in occupation of the property, but sold the freehold within one year of acquiring it, and in 9 of these cases did not occupy after enfranchisement at all;
(x) the profits said to have been made by the tenants on such onward sale varied from £32,000 to £182,000, with at least 7 cases where the tenant made over £100,000; in particular in one case, the tenant who had come into occupation three months before publication of the 1966 White Paper (see paragraph 18 above) - and who had paid a low price (£9,000) for the lease, without prospect of enfranchisement at that time - was able to buy the freehold at 28 per cent of its proper value (as assessed by the applicants), and sold it less than a year later for a profit of 636 per cent - a profit of £116,000.
The losses claimed by the applicants to have been sustained through having to sell on the statutory terms as opposed to open-market conditions range from £1,350 to £148,080 on each transaction, and total £1,479,407 for properties in respect of which the 1967 basis of valuation obtained and £1,050,496 for properties in respect of which the 1974 basis of valuation obtained.
NON_VIOLATED_ARTICLES: 13
14
6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-110156
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF CHMURA v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1973 and lives in Skarżysko-Kamienna. He was suspected of having participated in an organised criminal gang.
6. On an unspecified date NA, who was a Bulgarian national allegedly involved in procuring prostitution, filed a criminal complaint concerning his abduction and robbery.
7. On 19 April 1999 NA was heard by the prosecutor. He testified that he had been abducted, severely beaten and robbed by several men who had demanded protection money based on the income of foreign prostitutes working under his supervision. NA had identified the applicant as one of his attackers from a photograph.
8. On 23 April 1999 NA identified the applicant during an identity parade. On the same day the applicant and NA were confronted. During the confrontation NA reiterated that he had been severely beaten and robbed by the applicant and his accomplices who had demanded protection money from him. The applicant claimed to be innocent. He stated that he knew NA because he had seen him several times in front of a bar frequented by prostitutes.
9. On 16 July 1999 NA was summoned to testify as a witness in the case. The summons sent to his Bulgarian address was returned with the information that NA was resident in Poland. It appears that subsequently the authorities were unable to locate NA. The investigation was adjourned in order to obtain evidence from another Bulgarian national (ZA) by means of legal assistance from the Bulgarian authorities.
10. On 12 February 2002 the applicant was arrested on suspicion of having kidnapped and robbed NA in November 1998, while acting in an organised criminal gang led by LC. He was charged accordingly and detained on remand on the same day.
11. On 20 February 2002 the applicant was served with the written grounds for his statement of charges. The document stated that in light of the evidence gathered during the investigation, particularly the testimonies of PK (another victim) and NA, there was a reasonable suspicion that the applicant had participated in the abduction and robbery of NA.
12. Simultaneously, in February 2002, the police were still trying to trace NA in order to summon him for further questioning. It appears that he had not returned to Bulgaria and that he had changed his place of residence in Poland. An arrest warrant had been issued for him in a different criminal case in which he was a suspect. On 18 March 2002 the Kielce Regional Prosecutor decided to summon NA for questioning. On the same date NA was arrested and transported for questioning.
13. On 18 March 2002 the applicant’s counsel submitted his power of attorney to the Kielce District Court. On the following day a copy of that document was transmitted to the Regional Prosecutor.
14. On 19 March 2002 the Regional Prosecutor heard NA. NA undertook to appear before the Kielce Regional Court on 11 April 2002 to give evidence.
15. On 19 March 2002 the Kielce Regional Prosecutor requested the Kielce Regional Court to hear NA, pursuant to Article 316 § 1 of the Code of Criminal Procedure (“the CCP”). The prosecutor justified his request by the risk that it might not be possible to hear NA at the trial and submitted that the latter’s testimony would be important for the outcome of the case. NA had been heard by the prosecutor on several occasions during the investigation. However, his whereabouts were not established until 18 March 2002. NA had not been residing at the address indicated to the authorities in 1999 and his current address in Poland remained unknown. The prosecutor’s request also contained a list of suspects and their defence counsel, including the applicant’s counsel.
16. On 20 March 2002 the Kielce Regional Court granted the prosecutor’s request to hear NA on 11 April 2002 and decided to notify the applicant, the other co-accused and their counsel of the hearing.
17. On 2 April 2002 the Kielce Regional Prosecutor informed the applicant’s counsel that he and his client could consult the case file of the investigation from 12 April 2002 and that the date for the final consultation was fixed for 22 April 2002.
18. The applicant submitted that his counsel had not been notified about the hearing scheduled for 11 April 2002 but that he had learned about it by chance and had appeared at it. The Government maintained that the applicant’s counsel had been duly informed.
19. On 11 April 2002 a judge of the Kielce Regional Court heard NA. The hearing was video recorded. The applicant’s counsel requested that the hearing be adjourned on the grounds that he had not had the opportunity to consult the case file of the prosecution, at least as regards the part concerning the previous statements of NA. The prosecutor opposed those requests and submitted that the case file had not been made accessible due to the need to protect the witness. The prosecutor acknowledged that the case file would be made accessible to all authorised persons as from the following day. The court refused the request for adjournment since it was not competent to decide on the issue of access to the case file of the investigation without the prosecutor’s prior permission. The counsel maintained that hearing the witness without his having consulted the case file would in effect prevent him from defending his client. The court decided to proceed with the hearing of NA. The applicant, his counsel and some of the other co-accused left the courtroom in protest.
20. During the hearing NA described the events in which the applicant and his associates had been allegedly involved. He stated that he recognised the applicant as one of the persons who had committed the alleged offences. Subsequently, he replied to questions put by the prosecutor and two of the accused.
21. On 26 April 2002 the prosecution filed a bill of indictment with the Kielce Regional Court. The applicant was charged with having participated in a criminal gang and with having abducted, deprived of liberty and robbed NA on 2 November 1998. Other members of the same criminal gang were charged with extortion, robbery, kidnapping and profiting from prostitution.
22. The trial started in July 2002 and the court held in total twelve hearings up to 28 May 2003. The trial court made several attempts to summon NA to the hearings with the assistance of the police. It also sought the assistance of the Bulgarian embassy in Poland in tracking down NA. All efforts failed. At the hearing held on 13 May 2003 the trial court decided to show the video recording of the hearing of 11 April 2002 at which NA had given his testimony.
23. On 4 June 2003 the Kielce Regional Court convicted the applicant of having participated in an organised criminal group and of having abducted, deprived of liberty and robbed NA. LC and other members of the gang were also convicted. The applicant was sentenced to four years’ imprisonment and a fine. The court based its judgment to a decisive extent on the testimony of NA, who had identified the applicant and the other coaccused as the persons who had abducted him.
24. The trial court underlined that NA had been heard at the preparatory stage of the proceedings pursuant to Article 316 § 3 of the CCP at the prosecutor’s request, having regard to the risk that it might not be possible to hear him at the main hearing. NA was a Bulgarian national and did not have a permanent abode in Poland. The court had unsuccessfully attempted to summon him to appear at the main hearing, but the police’s efforts to locate him had been in vain. The court noted that the applicant’s counsel had requested permission to consult the case file and to adjourn the hearing of NA; however that request was refused in view of the prosecutor’s objection. In this respect the trial court found that the applicant and his counsel had freely forfeited the opportunity to put questions to NA. In the court’s view, even without knowledge of the case file, they could have put questions to the witness in relation to the content of his testimony.
25. On 23 October 2003 the applicant’s counsel lodged an appeal against the judgment. He complained, relying on Article 6 § 1 of the Convention, that the applicant’s defence rights had been breached in that the trial court and the prosecutor had deprived him of the opportunity to have access to the case file of the prosecution prior to the only hearing of the main witness. He maintained that he could not have put questions to the witness without knowing the content of the file, in particular the witness’ previous testimony. In that way he was deprived of a possibility to pinpoint major differences in the statements of NA given at various stages of the investigation. The applicant’s counsel submitted that the case file had been ready before 11 April 2002, as all investigative actions, except for the hearing of NA, had already been completed. The applicant’s counsel argued that this had made the whole trial unfair and that the prosecutor’s actions had amounted to a deliberate hindering of his procedural rights. Moreover, the authorities had allowed NA to leave the country by releasing him and returning his passport although he had committed other offences. Lastly, the applicant’s counsel pointed to certain factual inconsistencies in the statements of NA related, inter alia, to the date of the alleged abduction as well as the applicant’s role in it.
26. On 26 February 2004 the Kraków Court of Appeal dismissed the appeal. It noted that the testimony of NA was the key evidence for the applicant’s conviction. With regard to the allegations that the applicant’s defence rights had been breached, the Court of Appeal established that the applicant and his counsel had been duly summoned and had appeared at the hearing of NA. It reiterated that the decision whether to allow access to the case file at the investigation stage of the proceedings lay with the prosecutor, and that ensuring the confidentiality of the materials at that stage had been important for the outcome of the investigation. It was for this reason that the CCP authorised the applicant’s counsel to examine the case file only at the final stage of the investigation. The fact that the applicant and his counsel were to take part in the hearing of the witness did not make it obligatory for the prosecutor to allow them access to the case file. The prosecutor had noted during the court session on 11 April 2002 that the accused would be progressively allowed to examine the case file as from the following day.
27. The Court of Appeal further noted that it transpired from the minutes of the hearing that the applicant’s counsel had requested the adjournment of the hearing with a view to consulting all the evidence in the case file. However, granting such a request would have resulted in a significant delay. It was therefore reasonable for the prosecutor to have refused leave on account of concerns for NA’s safety, having regard to the fact that some members of the gang were still at large and that the testimony of that witness was the key evidence in the case. In those circumstances the Court of Appeal found that the court had not acted in bad faith when it went ahead with the hearing of NA in accordance with Article 316 § 3 of the CCP.
28. The Court of Appeal observed that had the applicant’s counsel considered it necessary to consult the statements of NA made during the investigation prior to the hearing of NA, and knowing the date fixed for that hearing, he should have filed the relevant request in advance in order to enable the prosecutor to rule on the request. However, the applicant’s counsel failed to do so and thus deprived himself of the possibility to appeal against the prosecutor’s refusal.
Moreover, had the applicant’s counsel been present at the hearing of NA, nothing would have prevented him from putting questions to the witness on the basis of the information he had obtained from his client or with respect to the contents of the witness’ testimony given at the hearing. The Court of Appeal concluded that there had been no violation of Article 6 § 1 of the Convention in the case, and the trial court had correctly found that the counsel and the accused had the right, but not the obligation, to participate in the hearing of a witness carried out under Article 316 § 3 of the CCP. By leaving the courtroom they had waived their right to participate in the hearing of the witness. Further, the Court of Appeal considered in detail the issue of the alleged lack of consistency in NA’s statements with regard to the applicant’s role in the abduction; however, it rejected them as illfounded.
29. On 22 July 2004 the applicant’s counsel lodged a cassation appeal with the Supreme Court. He raised similar complaints to those set out in his appeal, maintaining that his lack of knowledge of the content of the case file had made the applicant’s defence illusory.
30. On 8 December 2004 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.
31. Article 316 § 3 of the 1997 Code of Criminal Procedure reads as follows:
“If there is a danger that the witness cannot be heard at the hearing, a party or the prosecutor or other body conducting proceedings may submit a request to have the witness heard by a court.”
32. Article 156 § 5 of the Code concerns access to the file during investigation. It provides:
“Unless otherwise provided by law, during the preparatory proceedings parties, defence counsel and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings. With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-90973
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF EVAGOROU CHRISTOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 8 - Right to respect for private and family life
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1925 and lives in Nicosia.
8. The applicant lived with her family in Kalogrea, a village in the District of Kyrenia. During the 1974 intervention, the Turkish military troops evicted the applicant and her family from their home and forced them to leave Kyrenia and flee to the south.
9. The applicant alleged that until 7 September 1999, when the properties were transferred to her children, she had been the owner of ten plots of land in Kalogrea, two of which had one house each on them. One of these houses had been the applicant’s home. It was an ancestral house built in 1916, comprising huge, spacious rooms, two bedrooms, a living room, a kitchen and a bathroom. It had two levels and a huge yard. It was built of stone, had marble floors and a titled roof, and wooden doors and windows. The second house was the applicant’s holiday home, built in 1958 and situated in the locality known as Roukania. It had two spacious bedrooms and was very close to the sea (about 50 metres).
10. In support to her claim to ownership, the applicant produced affirmations of ownership issued by the Department of Lands and Surveys of the Republic of Cyprus, stating that she was the legal and registered owner of the two houses and of the pieces of lands registered under the plots nos. 260, 268, 45, 119/5, 119/6, 164.9, 121/2/3, 122/2/4, 359/1 and 425.
The applicant also produced certificates of registration for eight of the ten properties at issue.
11. The applicant claimed that she had been prevented from returning to her home and properties because the Turkish military authorities had continuously occupied and used them.
12. On 9 December 1990 the applicant made an attempt to return to her home and property in Kyrenia and in the Kalogrea Village by participating in a convoy of cars of fellow refugees intending to return home. The demonstration organisers had informed the Commander of the United Nations (UN) forces in Cyprus of their intentions.
13. The applicant and her fellow refugees stopped at the check point in the "buffer zone", on the main road linking Nicosia and Famagusta. There, they asked the UN officer on duty to be allowed to return to their homes, property and villages. They requested the same officer to forward their demand to the Turkish military authorities. The officer replied that the latter had refused their request.
VIOLATED_ARTICLES: 8
P1
VIOLATED_PARAGRAPHS: P1-1