ITEMID: 001-106419
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HRDALO v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1958 and lives in Dubrovnik.
6. On 27 November 2003 the Government of Croatia appointed the applicant Head of the Dubrovnik-Neretva County State Administration Office with effect from 1 January 2004.
7. Meanwhile, on 30 June 2002 the applicant’s neighbour Mrs I.Š.-H. filed a criminal complaint against him with the police authorities in Dubrovnik. She alleged that on 29 June 2002 the applicant had demolished a separating wall erected between their backyards by her husband and broken one of the windows of her house. In her statement of 13 January 2003, Mrs I.Š.-H. added that during the incident of 29 June 2002 the applicant had also shouted that she and her family should come out so that he could kill them.
8. On 12 December 2003 the Metković Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Metkoviću) indicted the applicant before the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) accusing him of the criminal offences of uttering threats and damaging another’s property, and invited the court to issue a penal order in accordance with section 446 of the Criminal Procedure Act (see paragraph 21 below).
9. On 18 December 2003 a single judge of the Dubrovnik Municipal Court issued a penal order (kazneni nalog) against the applicant under section 446 of the Criminal Procedure Act, finding him guilty as charged and imposing a prison sentence of two months, suspended for two years. The applicant was not informed of, and did not participate in, those proceedings. The order was served on the applicant on 3 January 2004.
10. On 9 January 2004 the applicant lodged an objection (prigovor) against the penal order arguing that he had not committed the criminal offences for which he had been convicted, and that he had not been given an opportunity to defend himself and present evidence.
11. On 8 May 2006 the Dubrovnik Municipal Court set aside its penal order of 18 December 2003 and dropped the charges against the applicant under section 353 of the Criminal Procedure Act without any further explanation.
12. Meanwhile, by a decision of 17 March 2004 the Government of Croatia removed the applicant from his position as Head of the Dubrovnik-Neretva County State Administration Office on the grounds that he had been found guilty of a criminal offence by the judgment of the Dubrovnik Municipal Court of 18 December 2003. The decision reads as follows:
D E C I S I O N
“Nikša Hrdalo is hereby relieved of his duties as Head of the Dubrovnik-Neretva County State Administration Office.
R e a s o n s
Section 52(3) of the State Administration System Act provides that the heads of the regional offices of the State administration are appointed and removed by the Government of Croatia upon a proposal of the State secretary of the Central Public Administration Office on the basis of a previously conducted public competition.
By a decision of the Government of Croatia ... of 27 November 2003 Nikša Hrdalo was appointed Head of the Dubrovnik-Neretva County State Administration Office.
By judgment no. K 386/03 of the Dubrovnik Municipal Court of 18 December 2003, Nikša Hrdalo was found guilty of a criminal offence against the rights and freedoms of man and the citizen defined in Article 129 § 2 of the Criminal Code and classified as uttering threats, in conjunction with a criminal offence against property defined in Article 222 § 1 of the Criminal Code and classified as damaging another’s property. [As a consequence, he] received ... a prison sentence of two months and fifteen days, suspended for two years.
Having regard to foregoing, the State secretary of the Central Public Administration Office considered that keeping Nikša Hrdalo as Head of the Dubrovnik-Neretva County State Administration Office could harm the probity of the civil service.
In accordance with the above, the State secretary of the Central Public Administration Office proposed that the Government of Croatia relieve Nikša Hrdalo of his duties as Head of the Dubrovnik-Neretva County State Administration Office. The Government of Croatia accepted this proposal.
That being so, it was decided as indicated in the operative part.”
The operative part of the decision was published in the Official Gazette of the Republic of Croatia no. 36/2004 of 22 March 2004.
13. On 18 March 2004 the daily newspaper Slobodna Dalmacija reporting from the Government’s meeting of 17 March 2004, reported on the applicant’s removal from office. A small article entitled “Removals and appointments [Razrješenja i imenovanja]” in its relevant part read as follows:
“In Dubrovnik-Neretva County the Government relieved Nikša Hrdalo, the incumbent Head of the State Administration Office, of his duties. ... Nikša Hrdalo was relieved of his duties because of a non-final judgment imposing a ... prison sentence of two months and fifteen days, suspended for two years, for a criminal offence against a freedom of man.”
14. On 31 March 2004 the same daily published an article entitled “Removed because of a non-existent ‘judgment’ [Smijenjen zbog nepostojeće presude]?”, which described the circumstances surrounding the applicant’s removal from office and gave him the opportunity to present his view.
15. On 20 April 2004 the applicant brought an administrative action in Administrative Court against the Government of Croatia challenging the decision on his removal.
16. On 24 June 2004 the Government of Croatia submitted their reply to the applicant’s action. That reply was not forwarded to the applicant. The relevant part of the Government of Croatia’s reply read as follows:
“...The decision which is the subject of this administrative dispute does not disclose any breach of law raised by the plaintiff. The decision to relieve Nikša Hrdalo of his duties as Head of the Dubrovnik-Neretva County State Administration Office was adopted in accordance with section 52(3) of the State Administration System Act. ...
It is undisputed that, by judgment no. K 386/03 of the Dubrovnik Municipal Court of 18 December 2003, Nikša Hrdalo was found guilty of a criminal offence against the rights and freedoms of man and the citizen – uttering threats – defined in Article 129 § 2 of the Criminal Code, in conjunction with a criminal offence against property – damaging another’s property – defined in Article 222 § 1 of the Criminal Code, and that he received ... a prison sentence of two months and fifteen days, suspended for two years.
The plaintiff argues that the present case concerns a penal order issued in accordance with section [446] of the Criminal Procedure Act, to which he objected within the statutory time-limit, and that therefore there is no final judgment [against him] which could constitute an impediment to recruitment to the civil service set out in section 8 of the Civil Servants Act.
However, the plaintiff ignores the fact that his removal from office was not owing to the existence of impediments to recruitment to the civil service set out in section 8 of the Civil Servants Act. The discovery that, at the time of recruitment to the civil service or at the time of appointment to the position of Head of the Dubrovnik-Neretva County State Administration Office, an impediment set out in section 8 of the Civil Servants Act had existed, would have resulted in the termination of employment in the civil service by operation of law, pursuant to section 118 ... of the Civil Servants Act. However, the present case does not concern such circumstances or the termination of employment in the civil service. Rather, [it concerns] the plaintiff’s removal from his position as Head of the State Administration Office ..., where the impugned decision is not based on impediments to recruitment to the civil service but on circumstances concerning the plaintiff which were considered liable to ... harm the probity of the State Administration Office and the entire civil service. Criminal proceedings pending against a head of a State administration office may give a negative impression to the public and arouse suspicion as regards the diligent and lawful conduct of those employed in the State administration office run by such a person.
The plaintiff contests the right of the Government of Croatia to remove a head of [a State administration] office at their own discretion ...
Contrary to the plaintiff’s argument, we consider that the Government of Croatia are entitled to remove a head of a State administration office at their own discretion because that is undoubtedly provided for by section 52 of the State Administration System Act. ...
Given that the contested decision was adopted in the procedure and in the manner prescribed by law, and that grounds ... for quashing or declaring [it] null and void do not exist, we propose that the Administrative Court dismiss the action as unfounded.”
17. On 15 September 2004 the Administrative Court dismissed the applicant’s action finding that the contested decision of 17 March 2004 had been based on section 30(4) of the Government of Croatia Act (see paragraph 23 below) and section 52(3) of the State Administration System Act (see paragraph 22 below). The relevant part of the Administrative Court judgment reads as follows:
“... the said laws indisputably show that the Government of the Republic of Croatia ... are entitled to remove a head of a State administration office ... at their own discretion ...
... in the reasoning for their decision, the defendant authority [that is, the Government of Croatia] ... stated the circumstances which influenced that decision. In particular, having regard to the complaints submitted about the plaintiff’s work, and the fact that criminal proceedings are pending against him before the Dubrovnik Municipal Court ... for a criminal offence against the rights and freedoms of man and the citizen (the criminal offence of uttering threats defined in Article 129 § 2 of the Criminal Code), in conjunction with a criminal offence against property (the criminal offence of damaging another’s property defined in Article 222 § 1 of the Criminal Code), the State secretary of the Central Public Administration Office in its proposal ... of 15 March 2004 considered that the plaintiff should be relieved of [his] duties as Head of the State Administration Office because keeping him in that position could harm the probity of the civil service. That proposal was accepted by the defendant authority which, at the session held on 17 March 2004, adopted a decision on his removal. Contrary to the plaintiff’s arguments, by doing so [the defendant authority] did not examine ... whether his [career in the] civil service should be terminated pursuant to section 118 of the Civil Servants Act, in which case it should be taken into account whether or not a civil servant had been convicted by a final judgment of a criminal offence against the rights and freedoms of man and the citizen. However, pending criminal proceedings for such a criminal offence, or even the adoption of a non-final judgment, may, given the position of the head of a State administration office, harm the probity of the office run by such a person and the entire civil service. Namely, the conduct of the plaintiff which led to the institution of those criminal proceedings, and its negative connotations in the public perspective, harms his personal reputation and may arouse suspicion among citizens as regards the diligent and lawful operation of the State administration office run by such a person.”
18. On 15 January 2005 the applicant lodged a constitutional complaint against the Administrative Court’s judgment alleging violations of, inter alia, his constitutional rights to a fair hearing, presumption of innocence, and respect for his dignity, reputation and honour. He argued that he had been removed from office on the basis of a non-final conviction secured in criminal proceedings of which he had not been aware and in which he had not had the opportunity to participate.
19. On 12 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint and served its decision on him on 29 November 2006. The relevant part of that decision reads as follows:
“The complainant further alleges a violation of Article 28 of the Constitution which provides that everyone shall be [presumed] innocent and no one may consider him guilty of a criminal offence until his guilt has been established by a final court judgement.
The contested judgment was not delivered in proceedings in which the complainant’s guilt was being determined, but [in proceedings] where the lawfulness of [an] administrative decision ... was examined.
The Constitutional Court therefore finds that the complainant’s [right] provided for in Article 28 of the Constitution has not been breached by the contested judgment.
...
The complainant also alleges a violation of Article 35 of the Constitution, which guarantees to everyone respect for, and legal protection of, his personal and family life, dignity, reputation and honour.
The Constitutional Court finds that the complainant’s [right] provided for in Article 35 of the Constitution had not been breached by the contested judgment because that judgment and the prior decision were rendered in lawfully conducted proceedings and are based on relevant legislation.”
20. The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows:
“Everyone shall be [presumed] innocent and no one may consider him guilty of a criminal offence until his guilt has been established by a final court judgement.”
“Everyone shall be guaranteed respect for, and legal protection of, his personal and family life, dignity, reputation and honour.”
21. The relevant part of the Criminal Procedure Act (Official Gazette of the Republic of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999, 112/1999, 58/2002, 143/2002 (corrigendum), 62/2003 (consolidated text) and 115/2006), which was in force between 1 January 1998 and 1 January 2009, reads as follows:
A judgment dismissing the charges shall be adopted in the event that:
1) the court has no jurisdiction in the matter;
2) the proceedings were conducted without having been requested by an authorised prosecutor;
3) the prosecutor dropped the charges during the trial;
4) the required request or consent for prosecution has not been provided, or the authorised person or State body has withdrawn the request or consent;
5) the defendant has already been finally convicted or acquitted in respect of the offence in issue or the criminal proceedings against him or her have been terminated ...;
6) the defendant is exempt from criminal prosecution owing to amnesty or pardon, or if criminal prosecution has become barred owing to statutory limitation or the existence of other circumstances excluding criminal prosecution.”
“In respect of criminal offences under the competence of a single judge and where the State Attorney has learned of a criminal offence from a reliable criminal complaint, he or she may ask in an indictment that a court issue a penal order (kazneni nalog) whereby the court shall impose on the defendant a sentence or an alternative measure without holding a trial.
...”
22. The relevant provision of the State Administration System Act (Zakon o sustavu državne uprave, Official Gazette of the Republic of Croatia nos. 75/1993, 48/1999, 15/2000, 59/2001, 190/2003 (consolidated text), 199/2003 and 79/2007), as in force at the material time, read as follows:
“The head of the regional State administration office is appointed and removed by the Government of Croatia upon a proposal of the State secretary responsible for public administration on the basis of a previously conducted public competition.”
23. The relevant provision of the Act on the Government of the Republic of Croatia (Zakon o Vladi Republike Hrvatske, Official Gazette nos. 101/1998, 15/2000, 117/2001, 199/2003 and 77/2009 – “the Government of Croatia Act”), which entered into force on 5 August 1998, reads as follows:
“A decision (rješenje) shall be adopted on appointments or dismissals or other individual matters within the Government’s purview.”
24. The Civil Servants Act (Zakon o državnim službenicima i namještenicima, Official Gazette no. 27/2001) was in force between 30 March 2001 and 1 January 2006.
25. Section 8(1) set out impediments to recruitment to the civil service and provided that such an impediment existed in respect of a person who had been convicted by a final judgment for, inter alia, a criminal offence against the rights and freedoms of man and the citizen, or a criminal offence against property.
26. Section 118 provided that a civil servant’s employment was to be terminated by operation of law, inter alia, when the judgment by which he or she had been convicted for a criminal offence referred to in section 8(1) of the same Act became final, or when it was discovered that an impediment referred to in the same section had existed at the time of recruitment.
27. Sections 52-59 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) provide for the remedy of reopening of proceedings before the Administrative Court and regulate the procedure following a petition for reopening. In particular, section 52 reads as follows:
“Proceedings ... shall be reopened upon a petition by a party:
1) if the party learns of new facts or discovers, or gains the opportunity to use, new evidence on the basis of which the dispute would have been resolved more favourably for him or her had these facts or evidence been presented or used in the previous court proceedings;
...
3) if the decision was based on a judgement rendered in a criminal or civil case and that judgement was later set aside by another final court decision;
...
A reopening shall be allowed on the grounds set forth in subsections (1) and (5) of this section, only if the party was unable, through no fault of his or her own, to raise these grounds in the previous proceedings.”
28. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis.
29. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows:
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional Protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first-instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph (1) of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59881
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF OLSTOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Georg Ress
TEXT: 8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. On 14 December 1993 the applicant was arrested by the police. On 16 December 1993 the Starogard Gdański District Prosecutor (Prokurator Rejonowy) charged the applicant with the commission of robbery together with three accomplices and remanded him in custody. The charges related to a brutal assault of a businessman who had been attacked with a baseball bat and tear gas and robbed of 122,864 zlotys.
10. On 22 February 1994 the Gdańsk Regional Court (Sąd Wojewódzki) decided to extend the applicant’s detention. On 1 March 1994 the applicant appealed against that decision to the Gdańsk Court of Appeal (Sąd Apelacyjny). On 16 March 1994 the appellate court dismissed the appeal. It rejected the applicant’s contention that the Regional Court’s decision referred only in general terms to the reasons justifying his detention. In addition, the appellate court considered that the evidence taken from one of the witnesses gave rise to reasonable suspicion that the applicant had committed the robbery.
11. On 24 May 1994 the Gdańsk Regional Court decided to extend the applicant’s detention until 1 September 1994. It considered that the evidence showed that the applicant had probably committed the criminal offence with which he was charged. The court pointed out that several pieces of evidence remained to be taken, including the psychiatric examination of the applicant. It also considered that the fact that the investigation in the case was not concluded at that stage could not be attributed to the inactivity of the prosecuting authorities. On 27 May 1994 the applicant appealed to the Gdańsk Court of Appeal against that decision. On 15 June 1994 his appeal was dismissed.
12. On 29 August 1994 the Gdańsk District Prosecutor filed with the Gdańsk Regional Court a bill of indictment. However, the Regional Court returned it to the District Prosecutor instructing him to elaborate its reasoning.
13. On 10 November 1994 the Gdańsk Regional Court dismissed an application for release made by the applicant. The court noted, inter alia, that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which constituted a significant danger to society (znaczny stopień społecznego niebezpieczeństwa). It also observed that the applicant’s son was cared for by his cohabitee, who was assisted by her parents and the applicant’s mother. The applicant appealed that decision.
14. On 15 and 21 November 1994 the applicant applied to the Gdańsk Regional Court for release from detention.
15. On 28 November 1994 the Gdańsk District Prosecutor re-submitted a bill of indictment to the Gdańsk Regional Court.
16. On 5 December 1994 the applicant again applied to the Gdańsk Regional Court for release from detention but his application was dismissed on 6 December 1994.
17. On 14 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 10 November 1994.
18. The applicant made a fresh application for release but it was on 17 January 1995 dismissed by the Gdańsk Regional Court. The court noted that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence, which caused the significant danger to society. It also rejected the applicant’s contention that he should be released because he had already spent a long period of time in detention waiting for a hearing and pointed out that a hearing in his case was fixed for 23 February 1995.
19. On 25 January 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 17 January 1995. The appellate court referred to several pieces of evidence collected in the case, which in its opinion pointed to the applicant’s guilt. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged and observed that, in view of the length of a sentence, which could be imposed on him for the commission of that offence, his detention was not excessively long.
20. On 23 February 1995 the Gdańsk Regional Court dismissed an application for release made by the applicant. On the same date the first hearing in the case was held. It was adjourned until 24 April 1995.
21. On 1 March 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 23 February 1995 rejecting his application for release from detention. The appellate court referred, inter alia, to the significant danger to society caused by the criminal offence with which the applicant was charged and the fact that it carried a penalty exceeding five years’ imprisonment.
The court further noted that the applicant had not submitted any evidence showing that the situation of his family called for his release. It also pointed out that the length of the proceedings before the Regional Court was excessive. In that connection, the appellate court recalled that a period of three months had elapsed between the date on which the bill of indictment had been submitted to the trial court and the date of the first hearing. In addition, the first hearing had been adjourned for two months and only one day was reserved in the Regional Court’s calendar for the second hearing which, in the appellate court’s opinion, would result in a further adjournment as it would be impossible to take evidence from all four suspects in the case on a single day. The Gdańsk Court of Appeal finally recommended that the proceedings in the case be expedited.
22. On 24 April 1995 a hearing was held before the trial court.
23. On 19 May 1995 the Vice-President of the Gdańsk Court of Appeal replied to the applicant’s letter of 8 April 1995 in which he had complained, inter alia, about a delay in the proceedings. The Vice-President advised the applicant that he was not in position to interfere with the proceedings and that only an independent court was competent to decide whether his detention on remand was justified.
Furthermore, the Vice-President observed that a hearing held on 23 February 1995 had been adjourned because of the absence of counsel. In addition, during a hearing held on 24 April 1995 evidence was taken from the defendants and eight witnesses. The inability to hold hearings at shorter intervals resulted from the heavy workload of judges and the lack of courtrooms. The Vice-President considered that, although the applicant’s case disclosed a certain delay, it was not significant. He also advised the applicant that the President of the Gdańsk Regional Court had been informed about the necessity to expedite proceedings in criminal cases.
24. The next hearings in the case took place on 25 May and 5 July 1995. The Government submitted that on the latter date the applicant’s cohabitee recanted her testimony and explained that she had been persuaded by the applicant to testify that he had been with her when the robbery had been committed.
25. On 25 July 1995 the Gdańsk Regional Court rejected as unsubstantiated the applicant’s challenge to one of the judges considering his case.
26. On 28 September and 16 November 1995 the Regional Court held hearings in the case.
27. On 16 November 1995 the Gdańsk Regional Court rejected an application for release made by the applicant. On 29 November 1995 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court observed that the proceedings in the applicant’s case had been expedited and that they should end before 21 December 1995. It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged.
28. On 7 and 21 December 1995 hearings in the case took place.
29. The applicant made a further application for release but it was dismissed on 4 January 1996 by the Gdańsk Regional Court. On 17 January 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court referred, inter alia, to the fact that the evidence collected in the course of the proceedings showed that charges laid against the applicant were sufficiently justified. In addition, the alleged criminal act was drastic and involved the theft of a significant sum of money. The court noted that the proceedings had been recently expedited and pointed out that a hearing scheduled for 24 January 1995 had been adjourned “for objective reasons”. Moreover, the next hearing was fixed for 24 January 1996.
30. The next hearings were held on 24 January and 2 February 1996.
31. On 2 February 1996 the Gdańsk Regional Court rejected an application for release lodged by the applicant. On 14 February 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. It considered that the evidence in the case pointed at the applicant and his co-defendants. Furthermore, the court agreed with the applicant’s submission that the proceedings in his case had already taken a significant period of time. However, it considered that, in view of the nature of the charges laid against the applicant, that period was not excessive. The appellate court further noted that only two witnesses remained to be heard in the case.
32. On 21 March, 9 and 26 April 1996 hearings were held before the Regional Court.
33. On 28 April 1996 the Gdańsk Regional Court rejected an application for release made by the applicant. On 15 May 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against that decision. The appellate court recalled the significant danger to society caused by the criminal offence with which the applicant was charged. It also pointed out that although the detention had lasted already thirty months, the trial court had not failed to try to expedite the proceedings. In that connection, it observed that five hearings had been held since the beginning of 1996 and that the trial court was not responsible for the failure to conclude the proceedings. Furthermore, the Court of Appeal was of the opinion that the worsening financial situation of the applicant’s family did not constitute a ground for his release and observed that the applicant’s wife was helped by social services.
34. Between 30 April and 12 July 1996 six hearings took place before the trial court.
35. On 25 July 1996 the Gdańsk Regional Court rejected an application for release made by the applicant together with his counsel. On unspecified dates the applicant and his counsel lodged separately appeals against that decision.
36. On 7 August 1996 the Gdańsk Court of Appeal dismissed the appeal lodged by the applicant’s counsel against the Regional Court’s decision of 25 July 1996. The court pointed out that the applicant was charged with a criminal offence, which carried “a heavy load of social harmfulness” (wysoki ładunek społecznej szkodliwości), especially in view of the manner in which it had been committed. Moreover, a severe penalty, which could be imposed for the commission of such an offence, justified the detention. The court also stated that although the judicial proceedings in the case were substantially delayed, they would be probably concluded shortly.
37. On 28 August 1996 the Gdańsk Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 25 July 1996. The appellate court referred to the grounds for its decision of 7 August 1996. In addition, it pointed out that the proceedings in the case had reached the final stage, as there had been a hearing fixed for 2 September 1996 and only two witnesses had been called to testify on that date.
38. On 7 November 1996 a hearing took place.
39. On 23 November 1996 the Gdańsk Regional Court rejected an application for release made by the applicant.
40. The next hearings were held on 26 November, 6 and 11 December 1996.
41. On 30 December 1996 the Gdańsk Regional Court transmitted the case-file to the Supreme Court (Sąd Najwyższy), together with a request that the applicant’s detention on remand be extended.
42. On 16 January 1997 the Supreme Court decided to extend the applicant’s detention until 30 April 1997. The court firstly observed that there existed in the applicant’s case general legal grounds for detaining him on remand. It considered that, although the question of guilt would be decided by the trial court, the evidence collected in the course of the proceedings pointed towards the applicant’s guilt.
Moreover, the Supreme Court pointed out that although the proceedings in the case had lasted so far more than three years, they had reached the final stage already in 1995. However, thirteen out of twenty hearings scheduled in 1996 had been adjourned for reasons over which the trial court had no influence. In addition, the counsel acting in the case were responsible for eleven adjournments. The Supreme Court based its decision to extend the applicant’s detention on Article 222 § 4 of the Code of Criminal Procedure which provided for the prolongation of detention because of “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. It also pointed out that the proceedings could end in the near future after just a few additional hearings. Finally, the court recommended that additional defence lawyers be appointed in the case in order to avoid adjournments of hearings caused by the ill-health of counsel.
43. On 27 and 28 February 1997 hearings were held before the Regional Court.
44. On 3 March 1997 the Gdańsk Regional Court convicted the applicant of robbery and sentenced him to eight years’ imprisonment, a fine and disenfranchisement for a period of six years. The applicant appealed against that judgment to the Gdańsk Court of Appeal.
45. On 12 November 1997 a hearing took place before the appellate court.
46. The next hearing was held on 27 November 1997. The Government asserted that on that occasion one of the most important witnesses testified that the applicant’s mother had put on her pressure to submit false evidence.
47. On 28 November 1997 the applicant made a new application for release but it was on 3 December 1997 dismissed by the Gdańsk Court of Appeal.
48. On 5 January 1998 the court received an expert opinion. On 13 January 1998 the applicant’s legal aid counsel asked the court to exempt him from defending the applicant.
49. On 17 June 1998 the Gdańsk Court of Appeal quashed the judgment of the trial court and remitted the case to the prosecution service instructing it to carry out further investigation. On the same date the applicant was released from detention.
50. The Government submitted that on 3 December 1998 the victim of the robbery informed the Gdańsk Regional Court that he would not take part in the crime scene reconstruction because he had received threats to his life and family and was therefore afraid of the perpetrators of the crime.
51. On 17 March 1999 the Starogard Gdański District Prosecutor filed with the Gdańsk Regional Court a new bill of indictment against the applicant.
52. The hearing held on 30 July 1999 before the Gdańsk Regional Court was adjourned. The Government submitted that the adjournment resulted from the applicant’s failure to attend the hearing.
53. On 16 August 1999 the applicant withdrew a power of attorney from his counsel.
54. On 3 September, 8 October and 26 November 1999 hearings took place. On two latter occasions they were adjourned because of the absence of some of the accused.
55. The next hearings were held on 11 January, 25 February and 24 March 2000. The Government submitted that the first and the third of those hearings were adjourned because the applicant failed to appear before the court. The applicant averred that he attended all hearings except for two occasions, when he was prevented from appearing before the court by ill-health.
56. The proceedings are still pending.
57. At the material time, the Code of Criminal Procedure 1969 (“the Code”) listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code provides as follows:
“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
58. Furthermore, the Code allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provides as follows:
“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”
59. Article 225 of the Code provides:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”
60. Article 217 of the Code, before it was amended on 1 January 1996, provided in so far as relevant:
“Detention on remand may be imposed if:
1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or
2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or
3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or
4. the accused was charged with the commission of an act which constituted a significant danger to society.”
61. Article 218 provides:
“If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when:
(1) it may seriously jeopardise the life or health of the accused; or
(2) it would entail hardship for the accused or his family.”
62. Until 4 August 1996, when the Code was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.
63. Article 222 of the Code, as applicable after 4 August 1996, provides in so far as relevant:
“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”
64. Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-80541
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TAŞATAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
TEXT: 4. The applicant was born in 1945 and lives in Istanbul.
5. On 3 August 1983 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the expropriated land and this amount was paid to him when the expropriation took place.
6. Following the applicant's request for increased compensation, on 5 November 1993 the Küçükçekmece Civil Court of First Instance awarded him additional compensation plus interest at the statutory rate running from the date of the expropriation.
7. On 5 November 1993 the Court of Cassation quashed the judgment of the first-instance court in respect of the commencement date for the calculation of the interest.
8. On 21 July 1994 Küçükçekmece Civil Court of First Instance confirmed its previous judgment.
9. On 10 October 1994 the Court of Cassation upheld the aforementioned judgment.
10. In the meantime, the applicant initiated execution proceedings (icra takibi) against the General Directorate of Highways via the Istanbul Bailiff's Office in order to enforce the payment of the compensation awarded by the first instance court.
11. On 6 January 1998 the applicant was paid 6,846,778,000 Turkish liras (TRL).
12. On 19 July 1999 the applicant filed an action with the Ankara Civil Court of First Instance and requested compensation for the loss sustained as a result of late payment and inflation, pursuant to Article 105 of the Code of Obligations.
13. On 28 December 1999 the Ankara Civil Court of First Instance dismissed the applicant's request. On 12 May 2000 the Court of Cassation upheld the aforementioned judgment.
14. According to the letter dated 5 April 2004 from the Istanbul Bailiff's Office, the General Directorate of Highways still owed TRL 625,000,000 (EUR 384) to the applicant.
15. Referring to the General Directorate of Highways' letter dated 27 July 2005, the Government claimed that they had paid the total amount due and that the Bailiff's office had struck out the case concerning the enforcement proceedings.
16. However, in a letter dated 14 October 2005, the Bailiff's office stated that the General Directorate of Highways still owed 652 New Turkish liras to the applicant.


ITEMID: 001-57466
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF DE JONG, BALJET AND VAN DEN BRINK v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (victim);Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 14+5;Not necessary to examine Art. 13 and 18;Non-pecuniary damage - financial award
TEXT: 12. Mr. de Jong, Mr. Baljet and Mr. van den Brink, who were born in 1958, 1953 and 1960 respectively, reside in the Netherlands. In 1979, after being drafted as conscript servicemen in the Netherlands Armed Forces, they each refused, on account of their beliefs as conscientious objectors, to obey specific orders deriving from their obligation to perform military service. They were thereupon placed under arrest by their respective commanding officers for suspected offences against the Military Penal Code (Wetboek van Militair Strafrecht). They were kept in custody and referred for trial before a military court.
13. The procedure for obtaining exemption from military service on the ground of conscientious objection is laid down in the Conscientious Objection to Military Service Act (Wet Gewetensbezwaren Militaire Dienst) and a Ministerial Decree of 31 July 1970.
Under the terms of the Ministerial Decree, if a request for recognition as a conscientious objector is lodged with the Minister of Defence within thirty days of conscription the conscript will be given leave pending the decision. Where, on the other hand, active service has exceeded thirty days, leave is not automatically granted in view of the need to investigate any possible abuse of the right to rely on the Conscientious Objection to Military Service Act. In such cases, the commanding officer will first consult with the conscript service department at the Ministry of Defence.
Where military criminal proceedings have been instituted against a conscript serviceman who has applied for the status of conscientious objector, they may be stayed pending a decision by the Minister on the request (section 4 sub-section 3 of the Conscientious Objection to Military Service Act). The decision in this respect will depend upon the particular circumstances, having regard, inter alia, to the time that has elapsed between the conscription and the lodging of the request. Proceedings must, however, be stayed once the Advisory Board on Conscientious Objectors has commenced its enquiries (section 4 sub-section 3). After the Advisory Board has stated its opinion, the Minister may grant recognition as a conscientious objector (section 7). The Minister’s decision is subject to appeal (section 8). The entitlement to conduct criminal proceedings for failure to obey orders or military regulations or for failure to report for enlistment lapses automatically upon recognition of the accused’s conscientious objection (section 10).
14. Criminal procedure for the military land and air forces, including in particular the matter of arrest and detention on remand, is governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land-en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. Offences under military criminal law, which applies equally to conscript servicemen such as the applicants and to volunteers, are tried at first instance before a Military Court (Krijgsraad). There may be an appeal to the Supreme Military Court (Hoog Militair Gerechtshof) and ultimately a (cassation) appeal on points of law to the Supreme Court (Hoge Raad) of the Netherlands.
15. Every officer and non-commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty (Article 4 of the Military Code). The resultant detention is not to exceed twenty-four hours (Article 5).
The commanding officer may order the suspect to be placed or kept in custody on remand if (a) there is a serious risk of absconding or (b) there are important reasons of public safety requiring immediate deprivation of liberty or (c) this is necessary in connection with the maintenance of military discipline among other servicemen (Article 7, second paragraph). Such a detention order may be made against a serviceman suspected of any offence set out in the Military Penal Code or any offence in respect of which detention on remand is permitted under the civilian Code of Criminal Procedure, with the exception of those offences of which the Military Court takes no cognisance (Article 7, fourth paragraph). An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom, or is likely to be given a sentence of shorter duration than that of the detention on remand (ibid.). Detention must be terminated once the grounds for it cease to exist (Article 7, fifth paragraph). All cases of detention exceeding four days shall be reported by the commanding officer to the commanding general (Article 7, sixth paragraph).
Where detention has lasted fourteen days, the suspected serviceman may petition the competent Military Court to fix a term (liable to extension) within which the commanding general must either decide whether the case is to be referred to a Military Court or else terminate the detention. The Military Court has to rule on the petition without delay, after hearing the authority empowered to refer the case, the auditeur-militair (see paragraph 19 below) and the suspected serviceman, who may have the assistance of an adviser (Article 13).
16. If, after receiving the advice of the auditeur-militair and, "if possible" ("zo mogelijk"), after the suspected serviceman has been heard, the commanding general or a senior officer (hoofd officier) designated by him to act on his behalf considers that the case should be tried by the Military Court, the serviceman shall be referred for trial before that Court (Article 11). On the other hand, the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter (Article 12). Regulation No. 27/7 of the Ministry of Defence explained the effect of these provisions as follows (translation from Dutch):
"In military penal procedure, as distinct from civilian procedure, the decision to prosecute in a case is not taken separately by the prosecuting authority, the auditeur-militair, but by a military authority. That authority is the commanding general or the senior officer he has appointed to act on his behalf, i.e. the referring officer ... Thus, the auditeur-militair is merely an advisory body at this stage, although the obtaining of his advice and the giving of that advice by him are mandatory."
Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody; the grounds for detention set out in the second and fourth paragraphs of Article 7 (see paragraph 15 above) apply pari passu (Article 14). If, against the advice of the auditeur-militair, the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial, the auditeur-militair may take the matter to the Supreme Military Court (Article 15). No appeal is provided for in the contrary case.
According to the Government, it has now become standard procedure to apply the above provisions of the Military Code in the following manner. Where detention on remand has been ordered, the suspected serviceman is always heard by the auditeur-militair and any referral to the Military Court takes place shortly thereafter, on average four to five days after the arrest. In view of the requirements of Article 14 of the Military Code, the auditeur-militair’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in Article 7 are fulfilled. Thus, the standard written form used by the auditeur-militair for the purposes of transmitting his advice to the referring officer contains, inter alia, a paragraph as to whether the suspect should "be released or be placed or kept in custody". Practice has evolved to the point where the advice of the auditeur-militair is invariably followed and generally regarded as binding.
17. Detention maintained or ordered in the decision referring the serviceman for trial may not exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained by virtue of the referral decision must be heard by the officier-commissaris (see paragraph 20 below) as speedily as possible and in any event within four days of referral; in this connection, the accused may be assisted by an adviser (Article 33, first paragraph). Before extending detention, the Military Court must give the accused or his adviser the opportunity to submit argument (Article 33, second paragraph).
As soon as the grounds for the detention cease to exist, release must be ordered (Article 34, first paragraph). In the period between referral and commencement of the trial, power to order release is exercisable by the auditeur-militair, or by the Military Court at the request of either the officier-commissaris or the detained serviceman himself (Article 34, second paragraph). The Military Court, in deciding on such requests, will hear the auditeur-militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time (Article 34, third paragraph).
18. If the accused is in custody at the first hearing, the Military Court will decide, after being addressed by the auditeur-militair, whether or not the nature and circumstances of the case require his continued detention during the trial (Article 151). The Court may direct the accused’s release from detention on remand at any later stage in the proceedings, either of its own motion or at the request of the auditeur-militair or the accused himself (Article 156).
19. The auditeur-militair has the function of prosecuting authority before the Military Court (Article 126, first paragraph). No serving member of the Armed Forces may appear as auditeur-militair or substitute auditeur-militair (Article 126, third paragraph). The auditeur-militair and his substitute may be replaced by an acting auditeur-militair (plaatsvervanger - Article 126, second paragraph) who may be a military officer, but such replacement was said by the Government to occur only in exceptional circumstances. Auditeurs-militair (including substitutes and acting ones) are appointed, and dismissed, by the Crown on a joint proposal from the Ministers of Justice and Defence; they must possess a law degree (Article 126, fourth and sixth paragraphs). Under the terms of Article 276, second paragraph, of the Military Code, they are obliged to comply with instructions given to them in their official capacity by the Minister of Justice. However, according to the Government, this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and, at least in recent years, no Minister of Justice has acted or interfered in a concrete case on the basis of Article 276.
The auditeur-militair is bound by his oath to act honestly and impartially (Articles 368 and 370). He must attend the hearings of the Military Court (Article 290) but he does not take part in the Court’s deliberations. He is under a general duty to assist the Military Court, as well as the commanding general, with reports, observations and advice in relation to military justice when required to do so (Article 278). He is not under the supervision of the Military Court or the Supreme Military Court in the discharge of his duties, save that the Supreme Military Court has the power to reprimand him should he fail strictly to observe statutory time-limits (Article 297).
20. Attached to each Military Court is at least one officier-commissaris who is in charge of the preliminary investigation of cases (Article 29). An officier-commissaris is an officer or former officer of the armed forces with the rank of captain or higher and is appointed for a fixed term of at least one year by the commanding general (ibid.). While he may at the same time be a member of the Military Court, this is not usually the case. His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary (Articles 29, 48 and 78). A hearing by the officier-commissaris has the same force as a hearing by the Military Court (Article 161). During his enquiries, he is under a duty to apply himself equally to discovering the accused’s innocence and to obtaining proof or admission of guilt (Article 62). Like the auditeur-militair, he is bound by his oath to act honestly and impartially (Articles 368 and 370).
21. By virtue of the Constitution of the Netherlands, the Convention forms part of and has primacy over domestic legislation, whether earlier or subsequent.
Under the ordinary criminal law, by virtue of Articles 89 and following of the Code of Criminal Procedure, compensation may be recovered for the consequences, both material and non-material, of wrongful detention. No comparable clauses are contained in the Military Code. On 26 June 1979, that is subsequent to the detention of Mr. de Jong and Mr. Baljet (see paragraphs 22-25 below), the Minister of Justice made an "interim provision" declaring Articles 89 and following applicable by analogy to military criminal procedure, subject to a limitation period of three months.
Before the Commission, the Government submitted that, quite apart from this, a claim in respect of matters allegedly contrary to the Convention could always be brought against the military authorities under Article 1401 of the Civil Code, which provides:
"Any unlawful act (onrechtmatige daad)as a result of which damage has been inflicted on another person makes the person by whose fault (door wiens schuld) the damage was caused liable to pay compensation."
Before the Court, the Government stated that compensation could only be recovered under Article 1401 for material loss suffered, but they referred to the additional possibility of seeking from the civil courts a declaratory judgment against the authorities that a period of detention had been unlawful. On the basis of such a judgment, the Minister of Defence would "in all likelihood", on request by the person concerned, grant compensation for non-material damage.
The Government further explained that Article 1401 did not merely allow a litigant to sue for compensation: according to well-established case-law, the victim of an unlawful and continuing act may apply to the civil courts on the basis of Article 1401 for an injunction; in circumstances of urgency, immediate interim relief may be sought in summary proceedings before the President of a District Court (Articles 289 and following of the Code of Civil Procedure). In cases of allegedly unlawful detention, recourse has been had to Article 1401 in summary proceedings so as to obtain a provisional court order for immediate release.
There is, however, no known case in which a serviceman held in custody on remand has relied on Article 1401 to bring either an ordinary claim for financial reparation or an application under the summary procedure for a provisional order of immediate release.
22. In 1978, these two applicants were drafted as conscript soldiers in an infantry battalion, Mr. de Jong as from 5 July and Mr. Baljet as from 3 May. This battalion was designated in January 1979 to leave on mission within two months as part of the United Nations Peace Corps in the Lebanon. Fearing that they might be forced to use violence against other human beings, the applicants, on 17 and 18 January 1979 respectively, lodged applications with the Minister of Defence to be recognised as conscientious objectors (see paragraph 13 above). Pending examination of their requests, the applicants at first continued to perform their normal military duties. However, the Minister not having in the meantime relieved them from service by granting them leave under the Ministerial Decree of 31 July 1970 (ibid.), Mr. de Jong on 29 January and Mr. Baljet on 25 January refused to obey orders to participate in a military exercise.
23. Each applicant was thereupon placed under arrest by his commanding officer (Article 7 of the Military Code - see paragraph 15 above), accused of the offence of insubordination contrary to Article 114 of the Military Penal Code. The ground invoked for their arrest was the need to maintain discipline amongst other servicemen, having regard to their battalion’s imminent mission in the Lebanon.
On 30 January, they both appeared before the auditeur-militair. On 5 February, in accordance with the advice of the auditeur-militair, the commanding general referred the applicants for trial before the Military Court and at the same time ordered their release (Articles 11 and 14 of the Military Code - see paragraph 16 above), criminal proceedings having been stayed as a result of the Advisory Board on Conscientious Objectors having commenced its enquiries into their requests to be recognised as conscientious objectors (section 4 sub-section 3 of the Conscientious Objection to Military Service Act - see paragraph 13 above).
24. On 7 February, they appeared before the Advisory Board on Conscientious Objectors (ibid.). On the same day, the Minister of Defence granted them the status of conscientious objectors and they were discharged from military service.
25. On 8 February, each of the applicants lodged a complaint with the divisional commander alleging unfair treatment by the commanding officer who had ordered the arrest. They submitted that the decisions taken against them under Article 7 of the Military Code were in breach of Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention. The divisional commander dismissed both complaints on 1 March.
On 7 May, the applicants addressed a request for compensation to the Minister of Defence, relying on Article 5 para. 5 (art. 5-5) of the Convention. On 25 July, the Under Secretary of State for Defence rejected their request on the ground that there was no basis for compensation since none of the provisions of Article 5 (art. 5) of the Convention had been violated in the circumstances.
26. Mr. van den Brink was forcibly drafted as a conscript soldier on 20 November 1979 upon his failure to register in due time. On his arrival at a training centre, he was ordered by his commanding officer to take receipt of and put on a military uniform, but he persistently refused to do so. Being a "total objector" ("totaalweigeraar"), he never submitted any request to be granted the status of conscientious objector (see paragraph 13 above).
27. In view of his persistent refusal, the applicant was placed under arrest on 20 November by his commanding officer (Article 7 of the Military Code - see paragraph 15 above), accused of the offence of insubordination contrary to Article 114 of the Military Penal Code. The ground for his arrest was the need to maintain discipline amongst other servicemen, a repetition of the offence being feared. The decision to arrest him also took into account the fact that he did not wish to have recourse to the Conscientious Objection to Military Service Act.
On 22 November, Mr. van den Brink appeared before the auditeur-militair. On 26 November, in accordance with the advice of the auditeur-militair, the competent senior officer referred him for trial before the Military Court, while deciding that he should be kept in custody on the same ground as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 16 above).
28. On 28 November, the applicant was heard by the officier-commissaris (Article 33 of the Military Code - see paragraph 17 above). Acceding to a request made two days later by the auditeur-militair, the Military Court on 6 December prolonged the detention for another thirty days (Article 31 of the Military Code - ibid.). The Court rejected the applicant’s counter-arguments for immediate release grounded on Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention.
Subsequently, his detention on remand was regularly prolonged by the Military Court.
29. The trial took place before the Military Court on 6 February 1980. By judgment of 20 February, the Military Court convicted Mr. van den Brink and sentenced him to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom.
He thereupon appealed to the Supreme Military Court.
At a hearing on 7 May, he requested his release, relying on Article 5 paras. 1 (c), 3 and 4 and Article 13 (art. 5-1-c, art. 5-3, art. 5-4, art. 13) of the Convention. The Supreme Military Court rejected the request; it held, inter alia, that Article 5 para. 1 (c) (art. 5-1-c) had been complied with and that the lapse of time between his arrest on 20 November 1979 and his appearance before the officier-commissaris on 28 November 1979 came close to but did not exceed the limit drawn by Article 5 para. 3 (art. 5-3).
On 19 May, the applicant was convicted and sentenced to eighteen months’ imprisonment by the Supreme Military Court.
Mr. van den Brink then entered an appeal on points of law with the Supreme Court.
By a separate application to that Court on 4 July 1980, he once more requested his release. He alleged a violation of the same Articles (art. 5-1-c, art. 5-3, art. 5-4, art. 13) of the Convention as in the court below. The Supreme Court dismissed the request on 15 August 1980 (Nederlandse Jurisprudentie, 1981, no. 228).
30. Mr. van den Brink was released on 12 November 1980, after having served two-thirds of his sentence.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 14
5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-88521
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LEBEDEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Aleksandr Sergeyevich Lebedev, is a Ukrainian national who was born in 1975 and is currently serving his sentence in the Perekrestovka, the Romenska Correctional Colony no. 56 of the Sumy Region.
The applicant was apprehended on 9 December 1999 and held in detention on suspicion of being involved in murder and theft of private property.
In October 2000 the investigator remitted the case-file to the Cherkassy Regional Court, which on 2 October 2000 remitted the case for additional investigation to the Cherkassy Regional prosecutor.
On 25 December 2001 the Cherkassy Regional Court of Appeal, in the presence of the applicant and his representative, following examination of a wide range of documentary and oral evidence, sentenced the applicant to life imprisonment and confiscation of all of his personal property following his conviction for murder and theft of private property committed as a member of an organised criminal group.
On 16 July 2002 the Supreme Court, sitting in a chamber composed of three judges and in the presence of the applicant and his two representatives, rejected the cassation appeals lodged against the judgment of 25 December 2001 as they were unsubstantiated. It confirmed the applicant’s conviction, having examined a wide range of documentary and oral evidence.
On 16 October 2002, 7 July and 24 October 2003 the Supreme Court refused to re-examine the applicant’s case in the course of extraordinary review proceedings, finding no grounds for it.
Following the applicant’s conviction, in 2002-2004, he unsuccessfully complained to the General Prosecutor’s Office and the Regional Prosecutor’s Office, various other state institutions, about the unlawfulness of his conviction and various procedural irregularities that from his point of view occurred in the course of examination of his case.
According to a letter of 21 March 2003 from the Cherkassy Regional Court of Appeal, on 2 October 2000 the applicant requested the Cherkassy Regional Court, which was examining his criminal case, to allow him to marry K.O.G. However, this request was not examined and no answer was given to the applicant as on the same date the Cherkassy Regional Court remitted the case for additional investigation and the applicant did not repeat his request for permission to marry K.O.G. The letter also stated that the applicant’s passport had remained with the prosecutor’s office throughout the proceedings, including the period when the case-file had been remitted for additional investigation, and after the applicant’s conviction became final it was sent to the court for enforcement of the sentence imposed on the applicant.
In May 2003 the applicant requested the Cherkassy Regional Prosecutor’s Office to provide him with his passport so that he could marry. On 26 May 2003 the Prosecutor’s Office replied that his passport was at the court of appeal and thus he had to address his request to that court.
On 30 October 2003 the Cherkassy Regional Court of Appeal informed the applicant that his request lodged with the court on 2 October 2000 to allow him to marry K.O.G. had not been examined by that court because the case had been remitted for additional investigation to the prosecutor’s office. Thus, he should have addressed the prosecutor office as it was from then on responsible for processing his criminal case. Also, when the case arrived at the court in 2001 he had not requested anew permission to marry.
On 10 December 2003 the Cherkassy Regional Prosecutor’s Office informed the applicant that his passport was part of his personal file and had been archived at the penitentiary institution where he was serving his sentence. They also informed him that it was being exchanged for a new Ukrainian ordinary citizen’s passport (in exchange for the invalid Soviet passport he had).
On 20 January 2004 the applicant received an internal Ukrainian passport in exchange for the Soviet passport issued to him in 1991.
On 4 February 2004 the applicant requested the Cherkassy City Department of Registration of Civil Status to inform him about the procedure for registration of marriages. On 27 February 2004 the applicant received detailed explanations as to how registration of marriages for convicts could be effectuated.
In accordance with Article 8 of the Code, convicted persons had the same rights and duties as other citizens of Ukraine, with restrictions provided by the law, resulting from the judgments of the court and the regime of serving their sentence, as provided by these judgments.
Marriages are registered in accordance with the general rules of Articles 173 – 178 of the Code on Marriage and Family. According to Article 177 of the Code the presence of the couple is obligatory for registration of marriages. However, if a person is unable to attend registration of marriage at the civil acts registration department, marriage can be registered at other premises. Article 17 of the Code established a limited list of circumstances that would preclude a person from getting married, however, conviction of a person or his detention were not seen as an obstacle for registration of a marriage.
By virtue of Rule 4.17-4.18 registration of marriage with convicts shall be conducted on the general grounds referred to in the Code on Marriage and Family. A marriage can be registered on the basis of a request from a person who is not serving the sentence as well as a convict himself. The completed documents are then sent to the penitentiary for transfer to the convict (Rule 4.19), who is to fill out his part of the application for marriage and after that the documents and the convict’s signature are certified and sent to the appropriate civil acts registration department (Rule 4.20).
If a convict is the person who initiates the marriage, then he requests the relevant documents from the penitentiary (including a special application form), fill them out and send them to the person he intends to marry, who shall then also fill them out. The completed documents are then transferred to the civil acts registration department (Rules 4.21 and 4.22).
The persons concerned are then informed (the respective penitentiary institution shall inform the convict) by the civil acts registration department of the date and time of the marriage (Rule 4.23). The registration of marriage takes place in the premises designated by the penitentiary institution (Rule 4.24). The relevant remarks as to registration of marriage are put into the ordinary national passport of the married couple (Rule 4.25). Registration of marriage for persons who are detained pending trial is conducted by the relevant civil acts registration departments at the Pre-Trial Detention Centres (SIZO or prisons), only upon written permission of the body, which is responsible for the case, in accordance with the procedure and rules established for the penitentiary institutions.


ITEMID: 001-22136
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: M.M. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a United Kingdom national, who was born in March 1987 and lives in Northern Ireland. He is represented before the Court by Ms T. Caul, a lawyer practising in Belfast. The applicant has requested anonymity and the Court has granted this request, under Rule 33 § 3 of the Rules of Court.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 June 1999 the applicant and his cousin were arrested on suspicion of car theft and damage and, at 5 p.m., taken to Antrim police station, where they were detained for questioning.
The custody record shows that the applicant was given a meal at 6 p.m. He spoke with two of his sisters on the telephone, but transport difficulties prevented any member of his family from attending. He was interviewed in the presence of a social worker and a solicitor, both of whom advised the police that they did not consider that the applicant should be detained overnight because he had threatened to harm himself. The responsible police officer, however, decided that unless an appropriate adult could be found to ensure that the applicant would appear in court the following day, it would not be possible to release him. No adult could be found to provide the required surety.
Shortly after midnight the applicant was charged with theft, taking and driving away a car and criminal damage. The police did not seek the applicant’s consent to take fingerprint and DNA samples, due to his “age and tearful condition”.
At 1 a.m. the applicant and his cousin were taken to Lisnevin Juvenile Justice Centre, which is situated in Millisle, County Down, some 45 miles (72 kilometres) from Antrim police station.
On arrival, at 2.30 a.m., the applicant was searched and told to undress and take a shower. He was given pyjamas to wear and placed in a small cell with no furnishings in the Scrabo Unit, used at Lisnevin Juvenile Justice centre for isolation and punishment. There was a plastic mattress on the floor, a blanket and a pillow. The floor was uncovered and there was one small window above head height. The applicant was frightened and did not know how long he would be held in the cell.
Later that morning, around 10.30 a.m., the applicant was taken to Magistrates’ Court, where he was released on bail.
Pursuant to Article 39 of the Police and Criminal Evidence (Northern Ireland) Order 1989, as amended by the Criminal Justice (Children) (Northern Ireland) Order 1998, the police are empowered to send a juvenile offender to a place of safety, which is defined as any juvenile justice centre, hospital, surgery or other suitable place. Articles 7 and 8 of the 1998 Order provide that children under 14 arrested without warrant for an offence other than homicide should be taken to a juvenile justice centre only on suspicion of committing a serious arrestable offence.
The Human Rights Act 1998 came into effect in Northern Ireland on 2 October 2000.
In 1999 the Social Services Inspectorate (“SSI”) inspected Lisnevin Juvenile Justice Centre as part of a programme covering all such institutions in Northern Ireland (“Report on the inspection of Lisnevin Juvenile Justice Centre 1999”). The SSI recommended, inter alia, the immediate suspension of the use of the Scrabo Unit.
In a report published in March 2000, the Criminal Justice Review Group, composed of four senior civil servants and five independent assessors, expressed the view that Lisnevin Juvenile Justice Centre was not suitable for holding juveniles, and recommended that it should close (“Review of the Criminal Justice System in Northern Ireland”, HMSO).
This treaty (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.
Article 3(1) of the UN Convention states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative, authoritative, or legislative bodies, the best interest of the child shall be a primary consideration.”
Article 37 provides:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision of any such action.”
Article 40(1) provides:
“States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society.”
The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. Rule 13 provides, inter alia, that detention pending trial should be used as a measure of last resort for juveniles, and for the shortest possible period of time. Whenever possible, detention pending trial should be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.


ITEMID: 001-90541
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SOKOLOWSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1944 and lives in Warsaw.
5. The applicant lived in a long-term relationship (cohabitation) with J.L., who died in 1984. On 18 July 1984 she lodged a civil action with the Warsaw District Court against his sons, R. and D., for recognition of her ownership rights to the property she had possessed and maintained during her cohabitation with J.L.
6. At its first hearing on 13 November 1984 the court heard the parties.
7. On 23 February 1985 the Warsaw District Court stayed the proceedings, as the applicant’s counsel had failed to submit some important documents concerning the ownership of the disputed property. The applicant appealed and on 10 May 1985 the Warsaw Regional Court quashed that decision.
8. Subsequent hearings in the case were held on 28 January and 19 February 1987. The court questioned the applicant and two witnesses. Further, it asked counsel to define precisely the subject matter of the claim.
9. The hearing scheduled for 16 November 1987 was postponed due to the applicant’s non-appearance.
10. The hearing of 25 July 1988 was adjourned at the parties’ request, in connection with their wish to reach a friendly settlement.
11. On 27 September and 18 October 1988 the court heard three witnesses.
12. Following a request by counsel, on 9 December 1988 the court appointed an expert to prepare a valuation of the property. The expert submitted his opinion on 5 September 1989.
13. At the hearing of 20 April 1990 counsel contested the findings contained in the expert’s report. The hearing was subsequently adjourned as the parties again expressed their wish to reach a friendly settlement of the case.
14. On 1 October 1990 counsel informed the Warsaw District Court about the parties’ failure to reach an agreement.
15. Hearings in the case were held on 12 November 1990 and 10 January, 18 February, 21 March, 29 April and 16 May 1991. The parties were again examined, as well as eleven witnesses.
16. On 16 May 1991 the court requested the expert to supplement his opinion. In this connection the defendants were asked to deliver additional documents. They failed, however, to comply with this request. Hence, the expert was not able to supplement his opinion and in October 1993 he returned the case file to the court.
17. On 29 June 1994 the Warsaw District Court appointed another expert, T.K., who submitted his opinion on 24 April 1995.
18. On 25 May 1995 the applicant decided to withdraw her claim for transfer of ownership and submitted a claim for compensation instead.
19. The expert, as well as the defendants, was summoned for a hearing scheduled for 13 September 1996, but they all failed to comply with the summons and did not appear at the trial.
20. By the decision of 13 September 1996 the Warsaw District Court exempted the applicant from court fees for lodging her new claim.
21. On the same day the Warsaw District Court decided that it lacked jurisdiction ratione materiae (due to the high value of the transformed claim) and transferred the case to the Warsaw Regional Court.
22. On 31 January 1997 the Warsaw Regional Court again summoned expert T.K. and adjourned the hearing until 25 April 1997. The expert again failed to attend that hearing.
23. On 26 April 1997 the court found that it lacked jurisdiction ratione loci and materiae and on 22 May 1997 transferred the case to the Nowy Dwór Mazowiecki District Court. No hearing was scheduled until 15 April 1999.
24. The hearing of 15 April 1999 had to be adjourned since neither the applicant nor her counsel had appeared.
25. The subsequent hearings scheduled for 17 June and 9 September 1999 were adjourned due to the defendants’ absence.
26. The hearings scheduled for 7 October, 4 November and 2 December 1999 were also adjourned, due to the non-appearance of the applicant and her counsel (although they had both been summoned correctly).
27. On 28 April 2000 the court appointed another expert, who submitted her opinion five months later.
28. The hearing of 7 December 2000 was adjourned due to the defendants’ failure to appear.
29. Neither the applicant, nor her counsel appeared at the hearings scheduled for 22 February, 12 April, 19 June, 17 July, 8 November and 6 December 2001 and 8 May 2002. In consequence all these hearings had to be adjourned.
30. On 24 July 2002 the Nowy Dwór Mazowiecki District Court delivered a decision in the applicant’s favour, awarding her 101,000 Polish zlotys (PLN).
31. On 12 August 2002 D. (one of the defendants) requested from the court the written grounds of that decision. His request was rejected on 8 October 2002 for having been lodged out of time.
32. On 28 October 2002 R. (the other defendant) appealed against the decision of 24 July 2002, whereas D. appealed against the decision of 8 October 2002.
33. On 19 November 2002 the court summoned R. to remedy the formal shortcomings in his appeal.
34. On 29 November 2002 the court granted D. leave to lodge an appeal out of time and quashed the decision of 8 October 2002.
35. On 9 December 2002 R.’s counsel remedied the shortcomings in his appeal against the decision of 24 July 2002. On the same day the court summoned R.’s counsel to pay the appeal fee of PLN 720. On 23 December 2002 R. requested the court to exempt him from the fee. On 21 January 2003 the court summoned him to provide relevant documents in support of his request (inter alia on his current financial standing).
36. On 30 December 2002 D. lodged his appeal against the decision of 24 July 2002. On 21 January 2003 the court summoned D. to rectify the formal shortcomings of his appeal, which he did on 31 January. On 3 February 2003 the court summoned D. to pay the appeal fee of PLN 370. On 12 February D. asked the court for exemption from the fee. On 13 February the court summoned him to provide relevant documents supporting his request.
37. R. and D. submitted relevant documents on 27 February and 7 March 2003.
38. On 11 April 2003 the court rejected both requests for exemption from the appeal fee. On 8 May 2003 R. appealed against this decision.
39. On 29 May 2003 the court summoned D. to pay the appeal fee. On 16 June 2003 he again requested to be exempted from the fee. The court considered his letter as an appeal and a request to be granted leave to appeal out of time against the decision of 11 April 2003. It scheduled a hearing for 27 August 2003 to examine this request.
40. On 27 August and 4 September 2003 the court heard D. and adjourned the hearing until 17 September 2003, having summoned D. to submit certain documents. On 17 September D. informed the court that he could not attend the hearing and asked for an adjournment.
41. On 10 October 2003 the court dismissed the applicant’s request to be granted leave to appeal out of time against the decision of 11 April 2003. On 20 October 2003 D. asked to be served with written grounds for this decision. On 24 October 2003 the court dismissed his request.
42. On 9 January 2004 the court dismissed D’s appeal against the decision of 11 April 2003 as having been lodged out of time.
43. On 26 February 2004 the court dismissed on formal grounds D’s appeal of 30 December 2002 against the decision of 24 July 2002. D. appealed and his appeal was dismissed on 1 April 2004 as having been lodged out of time. He appealed again. On 21 May 2004 the court summoned him to pay a fee for this appeal.
44. On 6 September 2004 the Nowy Dwór Mazowiecki District Court referred the case to the Warsaw Regional Court.
45. On 5 November 2004 the Warsaw Regional Court dismissed D.’s appeal against the decision of 1 April 2004 and R.’s appeal against the decision of 11 April 2003.
46. On 20 January 2005 the Nowy Dwór Mazowiecki District Court summoned R. to pay an appeal fee for his appeal against the decision of 24 July 2002.
47. On 7 March 2005 the court held a hearing to examine another of D.’s requests to be granted leave to appeal out of time against the decision of 26 February 2004. The court dismissed his request and consequently dismissed his appeal on 20 April 2005.
48. On 20 April 2005 the court again summoned R. to pay an appeal fee.
49. On 13 October 2005 the Nowy Dwór Mazowiecki District Court dismissed R.’ appeal against the decision of 24 July 2002 on formal grounds (for his failure to pay a court fee). R. appealed against this decision.
50. On 26 September 2005 the applicant asked the Nowy Dwór Mazowiecki District Court to issue an enforcement order for the judgment of 24 July 2002, submitting that the defendants, by lodging successive procedural motions and subsequently appealing against all decisions, were aiming solely at prolonging the proceedings and avoiding the execution of the judgment. She was informed that the decision was not yet final and could not be enforced, because various appeals lodged by the defendants were pending at that time.
51. On 13 October 2005 R.’s appeal was rejected by the Nowy Dwór Mazowiecki District Court.
52. On 15 May 2006 the Nowy Dwór Mazowiecki District Court made an enforcement order on the decision of 24 July 2002 and it became final.
53. On 25 January 2005 the applicant lodged with the Nowy Dwór Mazowiecki District Court a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) alleging the excessive length of pending civil proceedings. At the same time she asked the court to have her complaint transferred to the Warsaw Regional Court, which was competent to examine it. She described in two pages the delays in the proceedings, and submitted that: “for these reasons I lodge a complaint about the excessive length of the proceedings”. She also asked the court to instruct the lower court to terminate the proceedings without further delay.
54. The Nowy Dwór Mazowiecki District Court transferred the case file to the Warsaw Regional Court only in March 2005, after the applicant had intervened requesting that her excessive length complaint be dealt with.
55. On 31 March 2005 the Warsaw Regional Court rejected her complaint on formal grounds. It considered that it was tainted with a formal shortcoming, namely that it did not contain an express request to find that there had been an unreasonable delay in the proceedings.
56. On 14 April 2005 the applicant lodged a fresh complaint of excessive length of proceedings. In the title of her application she referred in direct terms (by providing the case’s exact register number) to the currently pending appeal proceedings, as required by the relevant law. In the substance of her complaint she described in detail the proceedings in their entirety as pending from 1984. She also indicated the different register numbers with which the case was designated throughout the entire period of its examination. She concluded her complaint by requesting the court to immediately terminate the proceedings in her case, which had been pending as of 1984. It transpires that she complied with all the formal requirements of a complaint as provided by the 2004 Act.
57. On 5 July 2005 the Warsaw Regional Court rejected her complaint as unfounded. The court considered only the length of the appeal proceedings, the applicant had referred to in her complaint’s title, namely after the decision of 24 July 2002 had been given, and found that there were no unreasonable delays in the examination of the numerous requests made by the defendants after that date. They were considered speedily. On several occasions the defendants had to be summoned to rectify formal shortcomings in their requests. In this connection the court observed that the time-limits given had been complied with. Hence, no evidence was found in support of the conclusion that unreasonable delays had occurred in the case. The court concluded that nothing in the case file could suggest that the length of proceedings was excessive.
58. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.
Article 6 § 2 provides that a complaint must include:
1) a request to find that there was an unreasonable delay in the impugned proceedings;
2) an indication of circumstances that would justify the request.
According to Article 9 of the Act, when a complaint does not meet the requirements of Article 6 of the Act, it must be rejected without a prior request to the plaintiff to remedy the shortcomings in the complaint.
59. For further references concerning the relevant domestic law and practice in respect of remedies available for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, see the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6