ITEMID: 001-57502
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF H. v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: J.A. Carrillo Salcedo;N. Valticos
TEXT: 7. Mr H., a French citizen born in 1937, lives at Vandoeuvre (Meurthe-et-Moselle). In 1957 he entered the teaching profession as a primary-school supply teacher and worked continuously until 1961.
8. In May 1961 Mr H. went to Strasbourg Hospital, taking with him a letter of introduction from his general practitioner to Professor Thiébaut, the head of the neurological clinic. As Professor Thiébaut did not hold a surgery on the day in question, Mr H. was examined in the neurological clinic by Dr Ebtinger, the doctor in charge of "Department 58" of the psychiatric clinic. Dr Ebtinger allegedly assured him that his problems were "not very serious" but apparently advised him to enter hospital for "a fortnight at most" in order for the doctor to get to know him better.
The general practitioner’s letter and the report of this first examination are said to have disappeared from Mr H.’s hospital file.
9. On 25 May 1961, on Dr Ebtinger’s recommendation but without having been ordered by him to stop work, Mr H., who was unaccompanied, reported to the neurological clinic at Strasbourg Hospital for observation, thinking that he would be in hospital for a fortnight and of his own free will. He allegedly waited for a house physician for two or three hours and was then placed in "Department 58". The admission notes read as follows:
"Presented himself alone at 8 p.m. Being treated by Dr Zarenski ofSarralbe and seen by Dr Ebtinger. ‘I don’t feel right, I don’t know what’s wrong with me. I’m depressed.’ has been for five years. asthenia, difficulties with work. no interest in anything. (Limited answers, difficulties expressing himself.) Has worked withouta break until today. unmarried. lives with his parents at Holving. Referred to 58B."
The applicant claims that the comments on an interview of 27 May have been antedated and that the pages of his file covering the period from 11 August to 15 September 1961 have vanished.
10. On 12 June 1961 Professor Kammerer, the head of the psychiatric clinic, diagnosed the applicant as suffering from schizophrenia with developing symptoms of catatonia (a state of motor and mental inertia) and prescribed narcoanalysis, i.e. an investigation of the subject’s unconscious after he has been put into a sleeplike state. This was allegedly the only occasion on which he examined Mr H. - for ten minutes before a large group of students, at a time when Mr H. was already being treated with neuroleptic drugs.
11. On 13 June 1961 a house physician, Dr Schneider, instead of carrying out the narcoanalysis prescribed the previous day, gave Mr H. an intravenous injection of an unspecified dose of "Maxiton" dexamphetamine, which caused "amphetamine shock".
In so doing, he acted, so the applicant alleges, without either a prior examination or Mr H.’s consent, on a purely experimental basis, in public and without the knowledge even of the two persons primarily responsible for "Department 58", Drs Kammerer and Ebtinger.
The injection allegedly brought about something akin to a myocardial infarction together with violent muscular contractions and hysterical fits, of which the applicant immediately complained, as appears from the medical file.
12. Mr H. further claims that Dr Ebtinger, who was on leave at the time, had promised him that no treatment would be given him without his (Mr H.’s) consent; the doctor is said not to have learned what had happened until he returned.
In an article entitled "Methods of inducing shock (other than ECT and Sakel’s method)", published in May 1965 in the Encyclopédie médico-chirurgicale, Drs Ebtinger and Fétique wrote, under the heading "Amphetamine shock":
"...
This treatment should not be given to patients with weak cardiovascular systems or to those suffering from hypertension, coronary disease or atheroma.
...
Catatonic symptoms are generally worsened in certain schizophrenics, and may even make their first appearance after amphetamine shock.
...
There is lasting therapeutic benefit in comparatively few cases.
..."
13. After spending more than three and a half months in "Department 58", Mr H. left hospital on 15 September 1961. He claims to have resumed work as a primary-school teacher the very next day - although it was only with the greatest difficulty that he managed to remain up - in order that the holidays should not be counted as sick leave and for fear of being transferred to "another institution".
14. On 16 November 1961 he received a letter from a school doctor requesting him to undergo a medical examination on the 23rd. The doctor decided that Mr H.’s condition made it necessary for him to go on sick leave, and this began the next day. On 28 January 1963 a Ministry of Education medical board studied his file and took a "decision to remove", which was upheld on appeal on 23 March 1963.
Mr H.’s name was subsequently taken off the list of supply teachers in the département, with effect from 28 January 1963.
15. On 8 August 1964 the Regional Social Security Office of the départements of Haut-Rhin, Bas-Rhin and Moselle informed the applicant that he had been registered with effect from 25 May 1964 as a Category 1 disabled person ("capable of performing paid work" - 66% disablement). After a further medical examination on 15 September 1965, he was registered as a Category 2 disabled person ("wholly unable to perform any work" - 100% disablement), and remained in that category until 1969, his registration being renewed in 1967.
From 1 June 1969 until 1971 he did not receive his pension, as a medical examination on 5 March 1969 had shown that the extent of his disablement had dropped to below 50%. Since 1972 he has again been receiving a Category 2 pension.
16. Mr H. allegedly learned from a letter of 4 November 1970 written by Professor Kammerer that the drug injected by the house physician in 1961 was not a "powerful tonic", as he had been told at the time, but an amphetamine. He claims that in 1970 he asked Strasbourg Hospital to disclose his medical file and that his request was refused.
17. On 29 May 1973 he applied to the appropriate office of the Strasbourg Administrative Court for legal aid. He was granted this on 16 October 1973, on the grounds that legal representation was compulsory in the Administrative Court and that that court would probably order investigative measures. The sum ordered to be paid out of public funds for the expenses and fees of the lawyer appointed was 600 FF.
18. On 9 May 1974, at the request of his lawyer, Mr F., Mr H. obtained a medical certificate from Dr Rayel, the general practitioner who had been treating him since 1970. It read as follows:
"I, the undersigned, certify that Mr H..., aged 36, a graduate in Natural Sciences (Radio Geology), has been treated by me for several years for the following complaints: Extreme liability to physical and mental fatigue with major dystonic consequences, feelings of loss of concentration and of speech disturbances associated with feelings of paralysis on the left side of the body.
These complaints are reflected objectively in electroencephalographic disturbances, which were clearly shown up in 1971:
‘Irregular electrical activity combining a moderate number of unstable alpha waves with numerous irregular theta-delta potentials and with anterior and posterior bilateral spikes, aspects increased by hyperpn÷a with strong photic stimulation.’ Dr Hay, Nancy.
At times, complete physical prostration with depressive ideas, weariness of life, painful sensations of mental blankness with pressing need to be alone and even to take to his bed.
These various complaints currently make any gainful activity impossible.
Mr H...’s extreme tendency to physical and mental fatigue makes it impossible for him to work to any regular pattern or to be at all productive, he very quickly feels rejected by any working teams he tries to be part of, and he feels such rejection very keenly.
The problems reportedly go back to about 1955, but Mr H... claims that they grew markedly worse in 1961 while he was in Strasbourg University psychiatric clinic and Mr H. attributes this worsening to the pernicious effect of an intravenous amphetamine injection he received during his stay in that clinic.
This certificate has been given to [Mr H.] in person and at his request, for the appropriate legal purposes.
This certificate may not be used in court proceedings."
Although intended solely for the lawyer, this document was nonetheless given by the latter to the Administrative Court.
19. On 14 June 1974 Mr F. took out a writ against the hospital, returnable at the Strasbourg Administrative Court, with a view to having the hospital declared liable for the harmful consequences of the intravenous amphetamine injection. He asked the court:
"Before giving judgment: [to] appoint a specialist doctor [as] an expert with instructions to examine the plaintiff, obtain all documents, interview all persons able to give information, give an opinion on the physical damage sustained by the plaintiff and generally carry out the instructions given him by the court."
On 19 June the court served the writ and statement of claim on the hospital.
20. The hospital instructed a lawyer on 17 July and filed two pages of defence pleadings on 8 August. It conceded that Mr H. had indeed been given an amphetamine injection in 1961 but resisted the claim on the ground that it was time-barred under the special statutory limitation period of four years for actions against public bodies and further argued that "the complaints regarding the treatment received [were] quite absurd and manifestly due to an insufficiently stable mental state".
The court served the pleadings on Mr F. on 9 August 1974.
21. After two reminders from the court - dated 29 January and 14 March 1975 -, Mr F. produced his pleadings in reply on 8 April 1975. He sought a determination of "the hospital’s negligence", "the disablement suffered by the plaintiff" and "the causal link between the hospital’s negligence and this disablement", and to that end he earnestly requested that the court should appoint an expert.
22. Mr H. moved house in December 1974 and again in April 1975, after obtaining a council flat. On each occasion he informed his lawyer.
23. On 17 May 1975 the court asked Mr F. to advise it of Mr H.’s social-security number and of the office with which he was registered. Mr F. replied two months later, on 23 July, after a reminder dated 16 July. He had notified Mr H. of the request on 10 July and again on the 17th, and Mr H. had given him the requisite information.
On 8 September 1976 the court asked Mr F. for this information again. According to the Government, this was a mistake on the part of the registry, which had probably lost or misfiled the letter of 23 July 1975; moreover, when telephoned by the court, Mr F. had allegedly said that he did not have the information in question and was not able to provide it straightaway because his client was refusing to give it to him. It is not clear from the evidence at what juncture the court registry realised that it was pointless to persist in asking for information it already had.
24. On 5 August 1975 the Nancy Health Insurance Office informed the Administrative Court that it did not intend to intervene in the case.
25. On 13 April 1978 the court summoned the parties to a hearing on 25 April.
26. Five days before the hearing, on 20 April, the hospital submitted their final pleadings. They were not served either on Mr F. or on Mr H. As Mr F. considered that his presence was unnecessary since the proceedings were in written form, he did not appear and was therefore unable to reply to these pleadings, whereas Mr L. appeared for the defendant.
27. On the actual day of the hearing, the Nancy Health Insurance Office asked the court for Mr H.’s address, notwithstanding that according to Mr H. - it had been paying him his disablement pension since 1973 and that he had not changed address since 1975.
28. The Administrative Court dismissed the action on 9 May 1978, for the following reasons:
"Even supposing that a worsening of Mr H...’s condition was observed in 1969, the evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in 1961; consequently, in the absence of any causal link between the injection complained of and the alleged damage, and seeing that such a link cannot in this instance be presumed, Mr H... has no grounds for seeking to establish the hospital’s liability; ... it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed."
29. On 23 May 1978 the court served the judgment on the applicant by registered letter with recorded delivery, but the Post Office returned the letter marked "not known at this address".
On 31 May the court asked Mr F. to give it Mr H.’s new address. The lawyer replied on 8 June that he did not know it. On 13 June, the court attempted to serve the judgment on the applicant through a court bailiff.
30. Concerned at the length of the proceedings, Mr H. telephoned the Administrative Court registry on 18 August 1978. He learned that the court had given judgment on 9 May and he immediately gave his address; he received a copy of the judgment on 18 September 1978.
31. On 22 September 1978 Mr H. wrote to the leader of the Strasbourg Bar, to complain of the shortcomings on the part of the lawyer who had been assigned to him by the Legal Aid Office. In particular, he blamed Mr F. for always losing his address, for not having informed him of the date of the hearing and for not having appeared in court on 25 April 1978.
After interviewing Mr F., the leader of the Bar disposed of the complaint in a letter dated 9 October, in which he endorsed Mr F.’s explanation, namely that he had seen no point in appearing at the hearing because the proceedings were essentially in written form and were designed, in the first instance, to secure the appointment of an expert on the basis of "medical certificates which [had] been submitted to the court".
32. Mr H. appealed to the Conseil d’État on 10 November 1978 by lodging pleadings and a file. He asked whether he could argue his own case and, if not, what he should do to secure the assistance of a lawyer and the appointment of a medical expert, which he maintained was essential.
33. On 20 November 1978 the Secretary of the Judicial Division of the Conseil d’État acknowledged receipt of the appeal, which had been registered in the registry on 10 November.
On 12 December he again wrote to Mr H., to tell him that an application such as his was not exempt from the requirement that he should be represented by a lawyer, and that he had a month in which to apply for legal aid.
On 26 December Mr H. made an application for legal aid, requesting the assignment of a lawyer who was genuinely willing to represent him; this was so that he could be sure that his interests would be defended conscientiously.
34. By a decision of 21 February 1979, notified on 13 March, the Legal Aid Office at the Conseil d’État granted Mr H. legal aid, setting the amount to be paid to the lawyer at 1,080 FF.
The lawyer, Mr G., was appointed by the leader of the Bar on 16 March and contacted Mr H. on the 20th.
35. The applicant forwarded to the Conseil d’État a certificate issued by Dr Rayel on 7 November 1978, which read as follows:
"I, the undersigned Dr Louis Rayel, hereby certify that I have been treating Mr H... for many years and that on 9.5.74 I gave him a medical certificate for his lawyer, purely for information purposes and in confidence.
This certificate bore the words: ‘THIS CERTIFICATE MAY NOT BE USED IN COURT PROCEEDINGS’, followed by my signature
Despite being formally so marked, the certificate was made use of by the Strasbourg Administrative Court, and moreover as evidence against Mr H...
The use made of the certificate is clearly indicated in the report of the judgment, which states:
‘The evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in 1961’ ...
... ‘it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed’ ...
Accordingly, it seems to me that Mr H... is fully entitled to appeal against a judgment based largely on a medical certificate which was not officially admissible.
I, the undersigned, hereby certify that on 9.5.74, a medical opinion was indeed essential, as it still is today, in order to study the course of Mr H...’s illness before and after the treatment given him by Strasbourg Hospital.
In support of my certificate, I would cite a letter sent to Mr H... on 4.XI.70 by Professor Kammerer, the doctor in charge of the department in which Mr H... was treated.
In that letter Professor Kammerer wrote:
‘The hospital’s regulations do not allow me to send you your medical file. But if a doctor or an expert wishes to inspect it, we will make it available to him in its entirety.’
Mr H... has shown me this letter and is willing to make it available to the Conseil d’État.
Lastly, I, the undersigned, hereby certify that the reason why in 1974 I did not give Mr H... a certificate which could be used in legal proceedings was that I thought that under the legal-aid scheme and without a judgment of the court it was possible for Mr H...’s lawyer to request an expert medical opinion on his own initiative which would be paid for direct by the legal-aid fund, in view of his client’s financial difficulties at the time.
It appears that this was not possible, but I, the undersigned, hereby certify that I was not informed of this before the Strasbourg court’s judgment. Otherwise I would obviously have advised Mr H... to try to finance for himself an authoritative expert medical opinion which he could have submitted to the Strasbourg court with his file.
Steps must therefore be taken to ensure that a similar situation does not arise again and I have therefore advised Mr H. to ask the Conseil d’État for the list of medical experts from which he could choose an expert who might agree to draw up an opinion in defence of Mr H...’s medical interests before the Conseil d’État, provided that the fees of these experts remain within limits compatible with Mr H...’s current resources if he is required to pay these fees himself.
I shall be able to give this expert all the medical information known to me in connection with this case, medical information which it is impossible for me to set out and discuss here, even in summary form, as part of this certificate.
Lastly, I certify that Mr H...’s current position is much the same as in 1974 as regards both his state of health and his financial resources, and that consequently it will be only with the greatest difficulty that he will be able to take the measures necessary for the preparation of the file for his appeal to the Conseil d’État.
Nancy, 7.XI.78
This certificate has been given to [Mr H.] for the appropriate legal purposes.
THIS CERTIFICATE MAY BE USED IN COURT PROCEEDINGS."
36. After unsuccessfully asking several doctors to go through his medical file at Strasbourg Hospital, Mr H. approached Dr Roujansky, a radiologist in Schiltigheim, who agreed and was appointed for the purpose on 11 May 1979. Professor Kammerer consented to the inspection, stating that the file would be made available between 11 a.m. and noon and from 3 p.m. to 6 p.m.
The applicant claims that on 25 May 1979 Dr Roujansky was given access only to a "falsified and truncated" file (see paragraphs 8 and 9 in fine above) and was allowed to photocopy only 21 pages of it.
On 16 October 1979 Dr Roujansky drew up a ten-page report with several appendices. In it he concluded inter alia:
"It can be stated that had Mr H... been treated less drastically, without the use of this highly dangerous drug, which destroys the physiology of the brain, he would have stood a good chance of leading a normal life, of being able to work and to earn his living instead of leading the life of an invalid.
Strasbourg Hospital should therefore be required to compensate him."
Mr H. produced this report to the Conseil d’État. He states that it did not have the status of a medical opinion by a court expert as Dr Roujansky had not personally examined him and had only been able to study the file made available by the hospital.
37. On 26 July 1979 Mr G. filed supplementary pleadings seeking the appointment of an expert who would assess the extent of the damage suffered and, if necessary, would establish the causal link between the injection complained of and the state of Mr H.’s health.
On 25 September 1979 the presiding judge of the Fifth Section of the Judicial Division ordered that these pleadings should be served on the hospital and the Strasbourg Regional Health Insurance Office.
On 4 April 1980 the hospital produced its defence pleadings, in which it relied in particular on the special four-year limitation period for actions against public bodies. The Directorate-General of Administration of Staff and Budget of the Ministry of Health filed pleadings on 5 September in which it expressed the following opinion:
"As is pointed out in Strasbourg Hospital’s defence pleadings of 4 April 1980, the decisions on the presumption of imputability associated with a presumption of negligence constitute an exception and they all relate to cases in which the consequences of a given treatment are so incommensurate with what would normally be foreseeable that they suggest professional negligence.
This is not so in the instant case. The treatment given in 1961 was carried out in accordance with proper practice and it is difficult to suppose that an injection administered in 1961 could have had consequences that did not become apparent until 1969, seeing that the patient had had problems as far back as 1955, even though in 1963 he did have to be struck off the list of supply teachers in the département after an opinion had been given by a medical board. As the Strasbourg Administrative Court rightly recognised, the causal link between the injection and the damage relied on is wholly unsubstantiated.
..."
Mr G. replied in writing on 5 December 1980, asking the Conseil d’État to "order an expert to be appointed to assess the extent of the damage suffered and possibly establish the causal link between the intravenous injection administered in 1961 and the state of Mr H...’s health".
38. The applicant asserts that in 1980 he again (see paragraph 16 above) asked the hospital for access to his medical file, and that this was refused.
39. At the Conseil d’État hearing on 2 November 1981, Mr Dutheillet de Lamothe, a Government Commissioner (commissaire du Gouvernement), made the following submissions:
"Mr H..., who was born in 1937 and at the material time was a primary-school teacher, was admitted on 25 May 1961 to the psychiatric clinic of Strasbourg Hospital suffering from depression. On 13 June 1961 ‘amphetamine shock’ treatment was administered. This consists in an injection of amphetamine - in this instance ‘Maxiton’ [dexamphetamine] - designed to overcome the patient’s emotional and affective inhibitions, thereby facilitating analysis of his psychological problems. In Mr H...’s case this procedure caused what the doctors described as an ‘aggressive and anxious’ reaction, and Mr H... complained of various problems. He left hospital on 13 September 1961, however, and apparently went back to work. He was again placed on sick leave from the end of 1961 onwards and then on 28 January 1963 his name was removed from the list of primary-school teachers for the département.
In 1974 - 13 years after his stay in hospital - Mr H... asked Strasbourg Hospital to compensate him for the harmful consequences of the amphetamine injection he had been given in 1961, consequences which he alleged had not become apparent until 1969. When the hospital refused, [Mr H.] brought an action in the Strasbourg Administrative Court to have the hospital declared liable and an expert appointed in order to assess the extent of the damage caused. In a judgment of [9] May 1978 the court dismissed the action, [pointing out] that there was no causal link between the amphetamine injection complained of and the alleged deterioration in Mr H...’s health in 1969. Mr H... is appealing against that judgment.
1. I consider that the Administrative Court was right in finding that a causal link had not been established. Admittedly, the very scanty evidence on which its decision was based has been supplemented, on appeal, by the medical file opened by the hospital in 1961 and by a very well researched report. But it does not enable a real causal link to be established. The evidence shows that:
(a) the appellant’s psychological problems date back to before his admission to hospital in 1961;
(b) while he complained of real problems after the injection administered on 13 June 1961, the hospital carried out the necessary tests (electrocardiogram, biological tests);
(c) when he left hospital on 13 September 1961, his state of health had improved, since he wished to return to work;
(d) his state of health seems to have worsened more particularly in 1963, as he was removed from the list of primary-school teachers and again admitted to hospital;
(e) in 1969, however, the Strasbourg Regional Health Insurance Office found him less than 50% incapacitated for work and discontinued payment of his disablement pension, which was restored in 1972.
Dr Olievenstein, who was consulted by the applicant’s medical adviser, wrote: ‘A single dose of amphetamine, however large, can only decompensate but not cause psychological disturbance. No one can say whether in any case your patient’s psychosis [would] not [have] been decompensated at a later date.’
In these circumstances, I do not consider that a causal link has been established or that the presumptions relied on are sufficient to justify ordering the expert opinion applied for.
2. Contrary to the appellant’s submission, a causal link cannot be presumed. Admittedly, in our case-law negligence in the organisation or functioning of a hospital is presumed where a common, mild form of treatment - in particular an injection - has caused particularly serious health problems (23 February 1962, Maïer, page 122, and a great many decisions: 19 March 1969, Assistance Publique de Paris v. Bey, page 165; 19 May 1976, CHR de Poitiers, page 266; 22 December 1976, Assistance Publique de Paris v. Dame Derridj, page 576; 13 May 1977, Rémy-Waris, T., page 961; 9 January 1980, Mortins, page 4). But in all these decisions it was noted at the outset that there was a direct relation of cause and effect between the treatment complained of and the damage relied on: it is the negligence which is presumed and not the imputability of the damage.
3. I believe that accordingly you cannot but dismiss Mr H...’s appeal and affirm the Administrative Court’s judgment, without needing, it seems to me, to express a view either on the negligence alleged against the hospital or on the four-year limitation period on which the hospital relies.
(1) As regards the first of those points, I do not think it possible to say that the use of the ‘amphetamine shock’ technique amounted, in 1961, to gross negligence, even though that technique has apparently now been superseded. Nor would it seem that special tests should have been carried out before it was used. On the other hand, I think that such a technique could not be used, even in the case of psychiatric treatment, without the patient’s consent (J., 7 February 1979, M. Barek, page 87; 9 January 1970, Carteron, page 17). The appellant, however, states - and it was not denied - that he was not told about the treatment.
(2) As to the four-year limitation period, the hospital could in any event only rely on it in respect of part of Mr H...’s claim, since the alleged damage is continuing damage and the date on which it stabilised has not been determined (J., 10 November 1967, Auguste, page 422).
For these reasons I submit that Mr H...’s appeal must be dismissed."
40. On 18 November 1981 the Conseil d’État gave the following judgment:
"The Conseil d’État, sitting in its judicial capacity, (Judicial Division, 3rd and 5th sections combined),
...
It is unnecessary to express a view on the hospital’s objection that the action is time-barred under the four-year limitation period.
Mr H... was admitted to the psychiatric clinic of Strasbourg Hospital in 1961; he claims that treatment received on that occasion - and, in particular, an intravenous amphetamine injection administered on 13 June 1961 - caused a deterioration in the state of his health and led to a permanent disruption of his life.
It appears from the preliminary examination of the case and the evidence before us that there is no direct relation of cause and effect between the alleged deterioration in the appellant’s health and the treatment he underwent at Strasbourg Hospital in 1961.
The court below was accordingly right in dismissing the appellant’s action against the hospital and his application for an expert to be appointed both to establish the links between the treatment and the alleged damage and to assess the latter’s extent.
DECIDES AS FOLLOWS:
1. Mr H...’s appeal is dismissed.
2. This decision shall be served on Mr H..., Strasbourg Hospital and the Ministry of Health."
The judgment was served on 19 January 1982.
41. On 29 November 1981 Mr H. wrote to the leader of the Bar of avocats practising at the Conseil d’État and the Court of Cassation to complain that he had been badly represented. In particular, he criticised Mr G. for having never allowed him to speak to him directly before the hearing, for having avoided any dialogue "because he [was] legally aided and it would be detrimental to [his] case", and for having refused to tell him of the date of the hearing and to send him the file, thereby preventing him from adding to it.
In a letter of 2 December the leader of the Bar replied that he did not intend taking up each of his complaints, as they mostly showed his "ignorance of administrative procedure and its characteristic features".
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84935
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF RAMANAUSKAS v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award
JUDGES: András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Stanislav Pavlovschi
TEXT: 9. The applicant is a Lithuanian national who was born in 1966 and lives in Kaišiadorys.
10. He formerly worked as a prosecutor in the Kaišiadorys region.
11. The applicant submitted that in late 1998 and early 1999 he had been approached by AZ, a person previously unknown to him, through VS, a private acquaintance. AZ had asked him to secure the acquittal of a third person and had offered him a bribe of 3,000 United States dollars (USD) in return. The applicant had initially refused but had later agreed after AZ had reiterated the offer a number of times.
12. The Government submitted that VS and AZ had approached the applicant and negotiated the bribe with him on their own private initiative, without having first informed the authorities. They alleged that AZ had suspected the applicant of having accepted bribes in the past.
13. On an unspecified date AZ, who was in fact an officer of a special anti-corruption police unit of the Ministry of the Interior (Specialiųjų tyrimų tarnyba – “the STT”), informed his employers that the applicant had agreed to accept a bribe.
14. On 26 January 1999 the STT applied to the Deputy Prosecutor General, requesting authorisation to use a criminal conduct simulation model (“the model” – see paragraph 32 below). The request stated:
“Senior Commissioner [GM], Head of the Operational Activities Division of the [STT], having had access to information concerning [the applicant’s] criminal conduct, has established that [the applicant] takes bribes since he has agreed to assist a defendant, [MN], in return for payment.
In implementing the criminal conduct simulation model, which is intended to establish, record and put an end to [the applicant’s] unlawful acts, an STT official [AZ] will hand over 12,000 litai, or the equivalent in foreign currency if required.
Implementation of [the model] will require [AZ] to simulate criminal acts punishable under Articles 284 and 329 of the [Criminal Code].
With reference to section 11 of the Operational Activities Act ..., the undersigned requests the Deputy Prosecutor General to authorise the criminal conduct simulation model for a period of one year.
This request is based on the information obtained during the preliminary inquiry.”
15. On 26 January 1999 the STT sent a letter to the Deputy Prosecutor General outlining the model as follows:
“[STT] officials have collected operational information attesting that [the applicant] takes bribes.
In implementing the criminal conduct simulation model, which is intended to establish, record and put an end to [the applicant’s] unlawful acts, an STT official [AZ] will simulate the offences of offering a bribe and breaching currency and securities regulations.
In view of the above, and in accordance with section 11 of the Operational Activities Act, I hereby request you to authorise the criminal conduct simulation model and thus to exempt [AZ] from criminal responsibility for the offences under Articles 284 and 329 of the [Criminal Code] which are intended to be simulated.
[The model] will be implemented by STT officials on the basis of a separate operational action plan.
Implementation of [the model] will be financed by STT resources.”
16. On 27 January 1999 the Deputy Prosecutor General gave the required authorisation by countersigning and placing his official seal on the letter in question. This document constituted the final version of the model.
17. On 28 January 1999 the applicant accepted USD 1,500 from AZ.
18. On 11 February 1999 AZ gave the applicant a further USD 1,000.
19. On the same date the Prosecutor General instituted a criminal investigation in respect of the applicant for accepting a bribe, an offence punishable under Article 282 of the Criminal Code in force at that time.
20. On 17 March 1999 the Prosecutor General dismissed the applicant from his post as a prosecutor on grounds relating to corruption. Referring to the relevant provisions of the Prosecuting Authorities Act, the Prosecutor General stated that the applicant had been dismissed for a disciplinary offence and for activities discrediting the prosecuting authorities.
21. On an unspecified date the pre-trial investigation was concluded and the case was referred to the Kaunas Regional Court. During the trial the applicant pleaded guilty but alleged that he had succumbed to undue pressure from AZ in committing the offence.
22. On 18 July 2000 the Deputy Prosecutor General authorised a judge of the Kaunas Regional Court to disclose the details of how the model had been implemented “provided that this [did] not harm the interests” of the individuals and authorities involved in the operation.
23. On 29 August 2000 the Kaunas Regional Court convicted the applicant of accepting a bribe of USD 2,500 from AZ, in breach of Article 282 of the Criminal Code then in force, and sentenced him to nineteen months and six days’ imprisonment. The court also ordered the confiscation of his property in the amount of 625 Lithuanian litai (LTL). It found it established, firstly, that AZ had given the applicant the bribe during their meetings on 28 January and 11 February 1999, in return for a promise that the applicant would intervene favourably in a criminal case against a third person and, secondly, that AZ had entered into contact and negotiated with the applicant through VS.
24. The court’s conclusions were mainly based on the evidence given by AZ and on secret recordings of his conversations with the applicant. The court had also examined AP, a prosecutor working in the same regional office as the applicant, whose evidence had not gone beyond confirmation that the applicant had dealt with the criminal case against the third person (MN) indicated by AZ. VS was not summoned to appear at the trial as his place of residence was unknown, but a statement by him, which had been recorded by the pre-trial investigators, was read out in court. However, the Kaunas Regional Court did not take it into account in determining the applicant’s guilt. The court’s judgment did not contain any discussion of the authorisation and implementation of the model.
25. On 26 October 2000 the Court of Appeal upheld the judgment on an appeal by the applicant, finding that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit the offence.
26. On 23 November 2000 the applicant lodged a cassation appeal. Relying in particular on the Constitutional Court’s decision of 8 May 2000 (see paragraph 34 below), he argued that there were no statutory provisions allowing the authorities to incite or provoke a person to commit an offence. In that connection, he submitted that on several occasions he had unsuccessfully requested the first-instance and appeal courts to consider the influence exerted by AZ and VS on his predisposition to commit the offence. He further complained that the lower courts had not taken into account the fact that AZ was a police officer and not a private individual. He argued that AZ had incited him to accept the bribe. Furthermore, he stated that the authorities had had no valid reason to initiate an undercover operation in his case and that they had overstepped the limits of their ordinary investigative powers by inducing him to commit an offence. He also submitted that VS had not been examined during the trial.
27. On 27 February 2001 the Supreme Court dismissed the applicant’s cassation appeal in a decision which included the following passages:
“There is no evidence in the case file that [the applicant’s] free will was denied or otherwise constrained in such a way that he could not avoid acting illegally. [AZ] neither ordered [the applicant] to intervene in favour of the person offering the bribe, nor did he threaten him. He asked him orally for help in securing the discontinuation of proceedings [against the third person] ... K. Ramanauskas understood that the request was unlawful ... [and] the Regional Court was therefore correct in finding him guilty ...
[The applicant] contests the lawfulness of [the model] ..., stating that the case discloses a manifest example of incitement (kurstymas) by the officers of the special services to accept the bribe ... [He submits that, by law], authorisation to simulate a criminal act cannot be given in the absence of evidence of the preparation or commission of an offence. Therefore, in his view, such a procedure cannot pursue the aim of inciting a person or persons to commit a crime. If the model were used for that purpose, it would be unlawful [and] the information thereby obtained could not be admitted in evidence ... [The] model cannot be authorised and implemented unless a person has planned or started to commit an offence, evidence of which should be submitted to a prosecutor ... It appears from the case file that [the authorities] were contacted by [VS] and [AZ] after [their initial] meetings with K. Ramanauskas, during which he had agreed in principle that he would perform the requested actions for USD 3,000 ... Accordingly, in authorising the use of the model, [the authorities] merely joined a criminal act which was already in progress.
...
The case file contains no evidence that [VS] is an employee of the special services ... [AZ] works at the STT as a police driver ... but this does not mean that he is prohibited from acting in a private capacity. There is no evidence that [VS] and [AZ] negotiated with K. Ramanauskas on police instructions. It has, however, been established that [VS] and [AZ] handed money to him on the police’s orders.
The court considers that provocation (provokacija) to commit a crime is similar but not equivalent to incitement (kurstymas) ... Provocation is a form of incitement consisting in encouraging a person to commit an offence ... entailing his criminal responsibility so that he can then be prosecuted on that account. While such conduct is morally reprehensible, the term ‘provocation’ is not used either in criminal or procedural law or in the Operational Activities Act of 22 May 1997 ... From a legal standpoint, provocation does not constitute a factor exempting from criminal responsibility a person who has thereby been induced to commit an offence ...
Since the case file contains contradictory evidence as to the conduct of [VS] and [AZ] before the criminal conduct simulation model was authorised, it is difficult to establish who was the instigator (iniciatorius) of giving and accepting the bribe, or, in other words, who incited whom to give or accept the bribe. [VS] ... stated that, after he had contacted K. Ramanauskas to ask him to intervene in securing the discontinuation of the criminal case [against the third person], K. Ramanauskas had been the first to say that he could settle the matter for USD 3,000. For his part, [AZ] ... stated that K. Ramanauskas had said that the discontinuation of the case would cost USD 3,000. In his testimony K. Ramanauskas alleged that [VS] had asked him if USD 3,000 would be enough to ensure that the case was discontinued. In these circumstances, it cannot be said with any certainty who was the instigator of the bribery, nor can it be inferred that [VS] and [AZ] incited K. Ramanauskas to accept the bribe. Furthermore, there is no reason to conclude that [VS] and [AZ] provoked the offence committed by K. Ramanauskas in accepting the bribe. It can only be said unequivocally that the initiative (iniciatyva) to apply to K. Ramanauskas in order to have the case [against the third person] discontinued came from [AZ].
However, the court considers that the answer to the question whether a person has actually induced (palenkė) or otherwise incited (sukurstė) another to offer or accept a bribe is of no consequence as far as the legal classification of [the applicant’s] conduct is concerned. Incitement (kurstymas) to commit an offence is one of the various forms of complicity. Under the branch of criminal law dealing with complicity, incitement is a form of conspiracy. A person who commits an offence after having being incited to do so incurs the same criminal responsibility as a person who acts of his own volition ... Even assuming that K. Ramanauskas was incited by [VS] and [AZ] to accept a bribe, it must be emphasised that the incitement took the form of an offer, and not of threats or blackmail. He was therefore able to decline (and ought to have declined) the illegal offer ... It follows from the testimony of K. Ramanauskas that he understood the nature of the acts he was being asked to carry out, and accepted [the bribe] of his own free will ...
At the same time it must be noted that it is a specific feature of bribery as an offence that one side is necessarily the instigator (kurstytojas). A State official soliciting a bribe is an instigator within the meaning of Article 284 [of the Criminal Code then in force – ‘the CC’] in that he incites (kursto) another to pay him a bribe, in breach of that Article. [A person] offering a bribe to a State official is necessarily an instigator within the meaning of Article 282 of the CC since, by making the offer, he incites the official to accept a bribe, that is, to commit the offence provided for in that Article ... Both the person giving and the person accepting a bribe exercise their free will ... and may therefore choose between possible forms of conduct. A person who intentionally chooses the criminal option while having the possibility of resisting the incitement rightly incurs criminal responsibility, regardless of the outside factors that may have influenced his choice ...”
28. On 27 March 2001 the applicant began serving his prison sentence. He remained in prison until 29 January 2002, when he was released on licence.
29. Furthermore, the prohibition on his working in the legal service was lifted in July 2002. In January 2003 his conviction was expunged.
30. The Criminal Code applicable at the material time punished the acts of accepting a bribe (Article 282), offering a bribe (Article 284) and breaching currency and securities regulations (Article 329).
31. Article 18 of the Criminal Code in force at the time and Article 24 of the present Criminal Code (in force since 1 May 2003) provide that incitement is one of the possible forms of complicity in an offence and is punishable alongside other forms of assistance (aiding and abetting, organising, executing) in the commission of an offence. These provisions define an instigator (kurstytojas) as a person who induces (palenkė) another to commit an offence. The term kurstymas (which can also be translated as “incitement” or “instigation”) is normally used in domestic legal doctrine to define the notion of complicity.
32. The Operational Activities Act (Operatyvinės veiklos įstatymas) was enacted in 1997 and remained in force until 27 June 2002. Section 2(12) of the Act defined a “criminal conduct simulation model” (Nusikalstamos veikos imitacijos elgesio modelis) as a set of actions entailing the elements of an offence, authorised with a view to protecting the best interests of the State, society or the individual.
Section 4(2) of the Act authorised the initiation of “operational activities” within the meaning of the Act where:
(a) the authorities did not know the identity of an individual who was preparing to commit or had committed a serious offence;
(b) the authorities had obtained “verified preliminary information” about a criminal act;
(c) the authorities had obtained “verified preliminary information” about a person’s membership of a criminal organisation;
(d) the authorities suspected activities by foreign secret services; or
(e) an accused, defendant or convicted person had absconded.
Section 7(2)(3) of the Act provided that the authorities could have recourse to a model only in one of the above scenarios, and then only on condition that the requirements of sections 10 and 11 of the Act were satisfied.
Sections 10 and 11 of the Act empowered the Prosecutor General or his deputy to authorise the use of a criminal conduct simulation model on an application by the police or the investigative authorities. The application for authorisation had to include, among other things, a reference to the limits of the conduct intended to be simulated (that is, the legal characterisation under a specific provision of the Criminal Code of the actions to be taken) and the purpose of the operation, including its interim and ultimate aims.
Section 8(1)(3) of the Act required the authorities to protect persons from active pressure to commit an offence against their own will.
Section 13(3) of the Act afforded the right to contest the lawfulness of evidence obtained by means of special techniques.
33. In the proceedings which gave rise to the case of Pacevičius and Bagdonas v. Lithuania (no. 57190/00, struck out of the Court’s list of cases on 23 October 2003), the Court of Appeal gave judgment on 29 April 1999, holding, inter alia:
“Section 2 of the Operational Activities Act defines [the criminal conduct simulation model] as a set of actions entailing the elements of an offence, authorised with a view to protecting the best interests of the State, society or the individual. ... The model may be authorised only for operations by [the police] and does not apply to individuals who commit offences.
The request [by the police for authorisation of the model in this case] referred to the aim of the intended operation, namely identification of all persons involved in a [human] trafficking network.
Of course, the [police] officers could not foresee who would take part in this crime ... One of the aims of [the prosecution] in authorising the model was to establish the identities of members of a criminal organisation.”
In a judgment of 12 October 1999 in the same case, the Supreme Court held as follows regarding the use of police undercover agents:
“[The applicants] were not aware of the ongoing operation at the time they committed the offence. They were convinced that they were trafficking persons who had illegally crossed the Lithuanian border. As Article 82-1 of the Criminal Code provides that the offence in question is committed where direct intent has been established, [the applicants’] error as to the nature of the act they were committing is of no relevance to the legal classification of their conduct. Since they were convinced that they were trafficking [human beings], their acts fell objectively within the scope of the offence defined in Article 82-1 ... Their conduct was therefore rightly classified as a completed offence. The authorisation given to the authorities [to use the model] served the sole purpose of legitimising the actions of the police officers taking part in the trafficking.”
34. On 8 May 2000 the Constitutional Court ruled that the Operational Activities Act was generally compatible with the Constitution. It held in particular that the model constituted a specific form of operational activity using intelligence and other secret measures in order to investigate organised and other serious crime. It emphasised that the use of clandestine measures, as such, was not contrary to the European Convention on Human Rights, or indeed the Constitution, as long as such measures were based on legislation that was clear and foreseeable in effect and were proportionate to the legitimate aims pursued. The Constitutional Court found that the Act provided a clear definition of the scope and procedure for the use of various forms of operational activities, including the model.
Referring in particular to the Teixeira de Castro v. Portugal case (9 June 1998, Reports of Judgments and Decisions 1998-IV), the Constitutional Court emphasised that a criminal conduct simulation model could not be used for the purpose of incitement (kurstoma) or provocation (provokuojama) to commit an offence that had not already been initiated. It further held that this investigative technique did not allow officials to incite the commission of an offence by a person who had abandoned plans to commit the offence. It added that, by authorising and implementing the model, the investigative authorities and their undercover agents were restricted to “joining criminal acts that [had] been initiated but not yet completed”. The Constitutional Court emphasised that it was for the courts of ordinary jurisdiction dealing with allegations of incitement or of other forms of abuse of the model to establish in each particular case whether the investigating authorities had gone beyond the limits of the legal framework within which the model had been authorised.
The Constitutional Court also stated that authorisation of the model did not amount to a licence for a police officer or third person acting as an undercover agent to commit a crime but simply legitimised – from the point of view of domestic law – the acts which the agent might be required to carry out in simulating an offence. The main aim of operational activities, including the model, was to facilitate criminal investigations, and on that account they came within the sphere of competence of both the prosecuting authorities and the courts. Accordingly, the model did not require judicial authorisation but simply authorisation by a prosecutor. The Constitutional Court further noted that secret audio and video recordings of conversations taking place in the context of operational activities under the Act were not subject to judicial authorisation and that this was compatible with the Constitution. Under section 10(1) of the Act, only wiretapping and surveillance techniques using stationary devices required a court order.
35. The Council of Europe’s Criminal Law Convention on Corruption (ETS no. 173, 27 January 1999) provides in Article 23 that each party is to adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, to enable it to facilitate the gathering of evidence in this sphere.
The explanatory report on the Convention further specifies that “special investigative techniques” may include the use of undercover agents, wiretapping, interception of telecommunications and access to computer systems.
Article 35 states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters.
36. The Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141, 8 November 1990) provides, in Article 4, that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto.
37. The use of special investigative techniques, such as controlled deliveries in the context of illicit trafficking in narcotic drugs, is also provided for in Article 73 of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at the common borders, signed in Schengen on 19 June 1990.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85627
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PORTER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Brian Porter, is a British national who was born in 1947 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 15 September 1998. In December 2000 the applicant applied for widows’ benefits. On 7 December 2000 the applicant was informed that his claim had been disallowed as he was not a woman. He made a second application to the benefits agency in May 2001. On 17 May 2001 he was informed that he was not entitled to benefits as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-69903
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MEZOTUR-TISZAZUGI VIZGAZDALKODASI TARSULAT v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length of proceedings);Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant is a water management association founded under Act no. 57 of 1995 on Water Management, with its seat in Mezőtúr, Hungary.
5. On 18 December 1996 the applicant requested the Szolnok District Court to issue an order for payment against a limited liability company. On 27 March 1997 the respondent objected to the order and brought a counter-claim against the applicant. The proceedings continued as civil litigation.
6. The District Court held hearings on 20 February, 8 April and 16 September 1998. In the meantime, on 10 July 1998 the District Court imposed a fine on the applicant’s legal representative for having failed to submit some requested documents.
7. On 22 October 1998 the District Court appointed an expert architect. The expert submitted his opinion on 14 May 1999. The parties submitted their observations on 28 June and 23 September 1999.
8. At the hearing of 24 September 1999, the applicant’s legal representative failed to appear. The court imposed a fine on him and invited him to make a statement in writing. He submitted his statement on 29 October 1999.
9. The District Court held hearings on 13 December 1999 and 27 March 2000.
10. On 31 May 2000 the court heard the parties’ representatives, the expert and some witnesses.
11. On 8 June 2000 the District Court dismissed the applicant’s action and partly accepted the respondent’s counter-claim.
12. On 23 November 2000 the Jász-Nagykun-Szolnok County Regional Court dismissed the applicant’s appeal. It filed a petition for review.
13. On 17 April 2003 the Supreme Court dismissed the petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71430
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PARAMSOTHY v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Prasanthan Paramsothy, is a Sri Lankan national, who was born in 1980 and is currently staying in Etten-Leur with the family of a cousin. He is represented before the Court by Mr M.R. van der Linde, a lawyer practising in Zaandam. The respondent Government are represented by Mrs J. Schukking of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 November 1996 the applicant arrived in the Netherlands, where, on 20 November 1996, he applied for asylum or, alternatively, a residence permit on compelling humanitarian grounds. In support of his claim for asylum he submitted the following:
He belonged to the Tamil population group and used to live in Karaveddy, a village situated on the Jaffna peninsula. This area was controlled by the Tamil Tigers (the “LTTE”), a Tamil terrorist organisation, engaged in an armed struggle for independence. He had been involved with the LTTE since early 1995, putting up posters of Tamil Tigers who had died. In July 1996 he had been summoned to report at the local LTTE camp, where he had been forced to stay. Apart from undergoing military training, his activities had consisted of putting up posters, cooking and digging trenches.
On 13 October 1996 the Sri Lankan army surrounded part of the village and searched 20 houses, including that of the applicant’s parents. During this search, photographs showing the applicant together with LTTE members putting up posters and hoisting the LTTE flag were confiscated. The applicant managed to escape from the LTTE camp on 15 October 1996, taking advantage of the fact that the LTTE members in the camp were too preoccupied with the advancing Sri Lankan army.
The applicant submitted that he was wanted both by the Sri Lankan army, because of his LTTE involvement, and by the LTTE, because he had escaped from their camp.
The applicant’s request was rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie) on 5 February 1997 as it was held that he had no well-founded reasons to fear persecution, inter alia because the Sri Lankan army had recaptured the Jaffna peninsula already in May 1996 – it was thus deemed unlikely that the army would only have come to Karaveddy village in October of that year. Neither was the applicant considered eligible for a residence permit on compelling humanitarian grounds.
The applicant lodged an objection (bezwaar) against the Deputy Minister’s decision, which was dismissed by the latter on 4 April 1997. The applicant’s subsequent appeal to the Regional Court (arrondissementsrechtbank) of The Hague was rejected on 9 February 1999.
Following this decision, an expulsion order was issued to the Aliens Police (vreemdelingendienst) in the applicant’s place of residence on 28 April 1997. However, the applicant did not leave the country and neither was he forcibly expelled.
On 11 February 2000 the applicant lodged a new request for asylum. During his interview with the immigration authorities, he stated, inter alia, that his general practitioner had referred him to the Regional Institute for Outpatient Mental Health Care (Regionale Instelling voor Ambulante Geestelijke Gezondheidszorg – “RIAGG”) as he was sleeping badly, was suffering from nightmares and was very forgetful.
The Deputy Minister dismissed the second request for asylum on 13 February 2000, considering that the applicant did not have well-founded reasons to fear persecution in Sri Lanka and that it had not appeared that there existed a real risk of the applicant being subjected to treatment in breach of Article 3 of the Convention if he was to return to that country. As regards the applicant’s alleged psychological problems, it was held that, pursuant to a policy change which had entered into force on 1 July 1998, this was an issue which could not be examined in the framework of a request for asylum. The applicant could lodge a request for a residence permit for the purposes of receiving medical treatment if he wished to stay in the Netherlands for that reason. Also on 13 February 2000, the Deputy Minister issued an expulsion order.
In his objection to the Deputy Minister’s decision, the applicant argued that the fact that he had been referred to the RIAGG implied that his psychological problems were serious. For this reason, he requested the Deputy Minister to seek the advice of the Medical Advice Bureau (Bureau Medische Advisering) of the Ministry of Justice. He further submitted that his medical complaints were related to the reasons for his flight and that they ought, therefore, to be examined in the course of his request for asylum. The applicant further requested the Regional Court of The Hague to issue a provisional measure allowing him to await the outcome of the proceedings on his objection in the Netherlands.
By a decision of 29 February 2000, the Acting President of the Regional Court rejected the applicant’s objection and also refused to issue a provisional measure. No further appeal lay against this decision. Nevertheless, the applicant did not leave the country and neither was he forcibly expelled.
On 18 April 2000 the applicant’s lawyer wrote to the Deputy Minister, suggesting that the expulsion of the applicant ought not to be carried out in view of the applicant’s state of health. The lawyer enclosed a number of letters from medical practitioners, including one – dated 5 April 2000 – from a RIAGG psychiatrist to the applicant’s general practitioner in which the applicant was diagnosed as suffering from a post-traumatic stress disorder. The applicant was prescribed medication for insomnia. The lawyer also enclosed a letter, dated 12 April 2000, from a counsellor in which the latter stated that the applicant had recently told her that his asylum account was not complete. He had been put under pressure by the “travel agent” not to tell the true reason for his flight.
By a letter of 31 May 2000 the Deputy Minister informed the applicant’s lawyer that, in accordance with Article 25 of the Aliens Act 1965 (Vreemdelingenwet 1965), he intended to have the medical situation of the applicant examined by the Medical Advice Bureau in order to see whether his state of health militated against expulsion. The applicant’s lawyer subsequently wrote to the Deputy Minister, stating that, given the applicant’s intention to submit a new asylum application, it was assumed – if nothing was heard to the contrary – that the examination by the Medical Advice Bureau would also extend to the applicant’s eligibility for a residence permit pursuant to the leniency policy for traumatised asylum seekers (traumatabeleid).
The applicant lodged a third request for asylum on 24 July 2000. In support of this application he submitted, inter alia, a letter from a RIAGG psychiatrist of 18 April 2000 to his general practitioner. According to the psychiatrist, the applicant was suffering from a post-traumatic stress disorder, combined with symptoms of a reactive depressive nature. In view of these symptoms, which occasionally included the applicant entertaining thoughts of suicide, the psychiatrist had decided that the applicant should receive counselling from the RIAGG. The applicant also submitted a letter, dated 19 July 2000, from the social-psychiatric nurse who was his counsellor at the RIAGG. She wrote that the applicant was suffering from serious complaints of depression involving anxiety, the reliving of experiences and nightmares which affected his life to such an extent that he hardly dared be alone, was no longer able to concentrate, was prone to losing his emotional balance and continually saw pictures in his head of past experiences. He was again diagnosed as suffering from a post-traumatic stress disorder.
On 26 July 2000 the medical service at the asylum application centre where the applicant had lodged his new request wrote to the immigration authorities at that centre, informing them that the applicant had medical problems and that there was an acute need, which could not be postponed, for further diagnostics and/or therapy.
Also on 26 July 2000 the applicant was interviewed by an immigration official about the reasons for his request for asylum. He submitted that he had not previously related the following events, because his travel agent had told him that if he mentioned them, he would be returned to Sri Lanka and it would also cause problems for his parents.
He had stayed in an LTTE camp from February until May 1996 where he had received military training. After this training he had returned home, albeit that he continued doing small jobs for the LTTE. In May 1996, as he was putting up posters for the LTTE with another boy and two adults, he was arrested by the Sri Lankan army, as were the others. They were taken to an army camp where the two adults were severely ill-treated in front of his eyes. After four to five hours, they were released and the applicant went home. A few days later he witnessed Sri Lankan soldiers severely ill-treating his neighbours and raping the neighbours’ daughter.
In July 1996 the LTTE billeted him in a library. After six weeks, the Sri Lankan army surrounded the library and arrested the applicant and the six other persons present. They were held for seven days at the army camp during which time the applicant was interrogated and forced to admit that he was a Tamil Tiger. He was hit with the butt of a rifle, which caused him to faint, and an electric coil was held against his leg. The detainees were made to dig trenches and clean toilets. On the seventh day he witnessed the adult detainees being tortured. The applicant’s parents, assisted by the head of the village, eventually managed to obtain his release. Upon his release he returned to the library. Some time later he heard that the army had searched his parent’s house, ill-treating his parents in the process, and that they had found a picture of the applicant together with other Tamil Tigers. After hearing this news, all seven people in the library decided to flee.
The immigration official further asked the applicant whether he had been in touch with his parents after he had left Sri Lanka. The applicant replied that, although he had not had any contact with his parents, he had learned that they were living in the Vanni, a region in northern Sri Lanka.
The Deputy Minister dismissed the new asylum application on 20 October 2000. The Deputy Minister had serious doubts as to the veracity of the applicant’s new account and found no convincing excuse for his failure to inform the immigration authorities earlier about his two alleged arrests by the Sri Lankan army. Moreover, the applicant’s statements did not lead to the conclusion that as a result of traumatic experiences it could not reasonably be expected of him to return to his country of origin. As there was no connection between what the applicant had experienced in Sri Lanka and his current psychological problems, and bearing in mind that the applicant’s statements were subject to doubt, the Deputy Minister perceived no cause to seek the advice of the Medical Advice Bureau. It had been the Deputy Minister’s intention to seek such advice pursuant to Article 25 of the Aliens Act 1965 in relation to the question whether the applicant’s medical situation stood in the way of his expulsion, but now that the applicant had lodged a new request for asylum this no longer applied. In so far as the applicant had claimed that he required medical treatment in the Netherlands, it was held that this matter could not be examined in the framework of a request for asylum and that the applicant could apply for a residence permit for the purposes of receiving medical treatment.
The applicant lodged an objection against this decision, inter alia expressing his amazement at, and dissatisfaction with, the Deputy Minister’s refusal to seek advice from the Medical Advice Bureau. The objection was dismissed on 9 November 2001, against which decision the applicant filed an appeal with the Regional Court of The Hague sitting in Almelo. In these proceedings the applicant submitted a letter of 27 March 2003 to his lawyer from a psychiatrist and a social-psychiatric nurse, in which it was once again stated that the applicant was suffering from a post-traumatic stress disorder. He was described as being troubled by the reliving of traumatic events, sleeping badly and often having nightmares. He suffered from headaches, worried a lot and had difficulties concentrating. In February 2002 the applicant had attempted to commit suicide. His treatment consisted of medication and therapy. The authors of the letter expressed as their opinion that in view of the nature of the applicant’s problems, treatment would require a considerable amount of time. The fear and uncertainty about his status in the Netherlands took a heavy toll on the applicant’s energy which hindered the therapeutic process.
On 15 April 2003 the Regional Court rejected the appeal, holding as follows:
“The court’s scope for review in the present case is determined by Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht – “AWB”), ... Pursuant to Article 4:6 paragraph 1 AWB, an applicant is obliged to report new facts or altered circumstances if a fresh application is made after a decision dismissing all or part of an application. Pursuant to the second paragraph the administrative authority may ... dismiss the application by referring to its earlier decision, if no such facts or circumstances are reported. ...
If an administrative authority, upon receiving a request to reconsider a decision which has become final and conclusive, reaches the conclusion that there are no grounds for so doing, the lodging of an appeal against the latter decision cannot lead to that appeal being examined by the court as if it were directed against the original decision. The appeal lodged by the applicant is therefore limited to the examination whether the Minister was correct in finding that no new facts or altered circumstances, justifying reconsideration, had occurred after the earlier final and conclusive decisions by which the applicant was refused admittance.
... The court is of the opinion that what has been submitted by the applicant in his third request for asylum forms a supplement to the account given by him in the proceedings on his previous requests. The alleged facts and circumstances submitted by the applicant in support of his third request cannot be considered “new facts”, given that these facts and circumstances were already known, or could have been known, at the time of the first request. The applicant has further claimed that he is traumatised as a result of the ill-treatment to which he was a witness and to which he was subjected during his detentions. The court concludes that although this claim and the supporting documents are new, they are nevertheless not “new facts” within the meaning of Article 4:6 AWB. In this context the court considers that, having qualified the applicant’s alleged detentions as not constituting “new facts”, it must come to the conclusion that trauma resulting from those detentions and supporting medical documents can similarly not be classified as “new facts”. It was not unreasonable to require the applicant to make some reference – no matter how summarily – to this trauma, and to its background or causes, in the proceedings on his first request. ...
In so far as the applicant has submitted that special circumstances exist which prompt a derogation from Article 4:6 AWB, the court notes that, according to the case-law of the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), procedural rules, including Article 4:6 AWB, which are designed to enable the national authorities to process requests for a residence permit in an orderly manner – even in cases of expulsion to a country where there is an alleged risk of ill-treatment contrary to Article 3 of the Convention –, must be complied with. Only where special facts and circumstances exist, relating to the individual case, there may be cause for not holding these rules against an applicant (see Bahaddar v. the Netherlands, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I). In a case of a repeat-application, where it is alleged that there is a risk of treatment in breach of Article 3 of the Convention, it is thus not in all circumstances excluded that the judicial examination goes beyond the aforementioned scope of review.
The applicant has, however, not made plausible that such special facts or circumstances exist, given that, for example, no medical information has been submitted from which it appears that the applicant was unable to talk about his detentions and torture at an earlier stage. ...”


ITEMID: 001-126915
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF HORVATIĆ v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1941 and lives in Garešnica, Croatia.
6. On 8 February 1996, at around 6.55 p.m., a bank robbery was committed in Garešnica. The bank robber was disguised, wearing an improvised mask made of a winter cap and a winter scarf, a skirt over his trousers, an overcoat, and rubber gloves on his hands. Using a handgun the bank robber forced the bank employees to put money in a crate, after which he fled the scene.
7. Police Station no. 4 of the Bjelovarsko-bilogorska Police Department in Garešnica (Policijska uprava Bjelovarsko-bilogorska, IV Policijska postaja Garešnica – “the police”) was immediately informed of the incident. Police officers were sent to secure the scene and at 8.10 p.m. an in situ inspection was carried out. No evidence was found inside the bank, but there were a number of footprints in the snow outside the bank.
8. On the same day a number of persons, including the applicant, were brought in for questioning by the police. The applicant was released from the police station after denying any involvement in the crime.
9. In the meantime, in the basement of a residential building in Garešnica the police found clothes which they suspected had been worn and then discarded by the bank robber.
10. On 9 February 1996, at 12.50 p.m., the police carried out an on-site inspection of the basement, where they found and seized a stack of money, an improvised mask made from a blue winter cap, a green winter scarf, a crate with 500 Croatian kunas inside it, a pair of green rubber gloves, a blue overcoat and a purple skirt. A police dog was used in the inspection of the scene.
11. On the same day the applicant was again taken to the police station for questioning. In the course of the applicant’s stay at the police station the police dog was shown the applicant and, according to the police report, the dog’s behaviour associated the applicant with the objects found in the basement.
12. At 4.00 p.m. the applicant was arrested on suspicion of having committed the bank robbery.
13. The applicant was asked to take off his trousers and t-shirt. He complied with the request and signed a seizure record. The seizure record only indicates that the trousers and t-shirt were taken from the applicant. The police also took samples from the applicant’s hair, body hair and nails. There is no specific record in this regard.
14. According to the applicant, he was then removed from the room while the police officers packed up the clothes and the samples taken from him. According to the Government, the clothes and the samples were packed by a forensic technician in the presence of a police officer and the applicant, and the police officer simultaneously drafted the seizure record in respect of the applicant’s clothes, which the applicant then signed.
15. In course of the further investigation the police interviewed a number of persons and searched the applicant’s flat. No objects connected with the bank robbery were found.
16. On 10 February 1996 employees of the bank identified items found and seized in the basement of the residential building (see paragraphs 9 and 10) as the clothes worn by the bank robber.
17. On the same day the police sent the items from the basement, together with the applicant’s clothes and samples of his hair and nails, to the Ministry of the Interior’s Centre for Forensic Analysis in Zagreb (Ministarstvo unutarnjih poslova, Centar za kriminalistička vještačenja – “the Forensic Centre”) and commissioned a forensic report. In their request the police indicated that the samples had been taken and packed using gloves and that a new pair of gloves had been used each time a different item had been packed.
18. A preliminary forensic report was drawn up by the Forensic Centre on the same day. The Forensic Centre found strands of the applicant’s hair on the blue overcoat and winter cap worn by the bank robber. It also found fibres from the skirt worn by the bank robber on the applicant’s t-shirt and fibres from the winter scarf on his trousers.
19. On 11 February 1996 the applicant was brought before the investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru) for questioning, but he decided to remain silent because his defence lawyer was not present. On the same day the investigating judge ordered the applicant’s pre-trial detention.
20. The investigating judge questioned the applicant again on 12 February 1996 in the presence of his defence lawyer, but the applicant remained silent.
21. On 14 February 1996 the police forwarded to the investigating judge two forensic reports drawn up on 11 and 13 February 1996 by the Forensic Centre.
22. According to the Forensic Centre’s report of 11 February 1996 strands of the applicant’s hair had been found on the winter cap, the scarf and the overcoat worn by the bank robber; the report of 13 February 1996 indicated that fibres from the applicant’s t-shirt and trousers had been found on the crate, the skirt and the overcoat used by the bank robber. The latter report also indicated that fibres from the overcoat, the skirt and the scarf had been found on the applicant’s trousers and t-shirt.
23. On 14 February 1996 the Bjelovar County State Attorney’s Office (Županijsko državno odvjetništvo u Bjelovaru) asked the investigating judge at the Bjelovar County Court to open an investigation in respect of the applicant on suspicion that he had committed the bank robbery.
24. The investigating judge opened the investigation on the same day. During the investigation, the investigating judge questioned bank employees Z.S., M.Kol. and M.Kom., and a witness, M.S. The bank employees Z.S. and M.Kol. testified that they had seen the applicant before and that his physical appearance resembled that of the bank robber.
25. On 4 March 1996 the applicant gave his oral evidence. He denied that he had committed the bank robbery and complained that he had been ill-treated at the police station and pressured to confess to the charges. The police had also shown him a blue winter cap and a green scarf and asked him to confirm that they belonged to him. As to the manner in which the police had taken and packed the samples of his hair, nails and clothes, the applicant stated:
“When I was taken to the police station for the second time for questioning, the police took my trousers and shirt and [samples of] my hair for forensic analysis. I pulled out a couple of locks of hair myself. I was not present while they packed my clothes and hair for analysis.
They also cut my nails and pulled some hair from my arm and sent them for analysis.
...
... The items that were taken from me, namely the clothes and the samples of hair, were taken in a separate room, not the room were I was held waiting for questioning. ... Every sample was taken in another room and the sample which I gave in each room remained in that room. I don’t know where my clothes and the samples of my hair were then taken.”
26. On 5 March 1996 the Bjelovar County State Attorney’s Office indicted the applicant in the Bjelovar County Court on charges of armed robbery.
27. At a hearing on 3 April 1996 the applicant denied all the charges against him. He reiterated his allegations of ill-treatment by the police and complained that the manner in which the samples had been taken and packed for the forensic analysis had allowed for the possibility of tampering with the evidence. The applicant also explained that the samples of his hair had been first taken in one room by police officer T.L. and another police officer whose name he did not know, and then again in another room by police officers T.H., Z.N. and M.
28. At the same hearing the bank employees Z.S., M.Kol. and M.Kom. gave their oral evidence.
29. Z.S. testified that she knew the applicant and that the applicant’s voice was not similar to that of the bank robber. M.Kol. testified that she had seen the skin on a small part of the bank robber’s face and that it had been skin of a younger person; in any event younger and different from the applicant’s facial skin, although the part of the face which she had seen through the mask could have been the applicant’s. She also stated that she had seen some of the bank robber’s hair, which had been similar to the applicant’s. The witness M.Kom. testified that the applicant’s physical appearance was similar to the bank robber’s.
30. The applicant contended before the trial court that the records of the on-site inspection and the taking of the samples were not complete in that not all the actions had been documented. He therefore requested that the police be ordered to provide the names of all the forensic technicians involved and that they be summoned as witnesses. The applicant also requested that the forensic experts who had drafted the forensic reports be called to give evidence about the possibility of contamination between one seized item and another. Furthermore, he asked the trial court to order a reconstruction of the events so that an identification could be made in the setting in which the event had taken place, and that his alibi be verified. Finally, the applicant asked that the rubber gloves used by the bank robber be inspected at the hearing.
31. The trial court refused the applicant’s requests regarding the taking of evidence as irrelevant, and concluded the hearing.
32. On the same day the Bjelovar County Court found the applicant guilty of the bank robbery and sentenced him to five years’ imprisonment, imposing a confiscation order on him in the amounts of 8,410 Croatian kunas, 1,000 Austrian schillings, 3,490 German marks, 100 Australian dollars, 100,000 Italian liras, 12 Canadian dollars, and 20 Swedish kronas. The relevant part of the judgment reads:
“The accused stated that ... on the critical occasion he had ... arrived at the Nazaret bar in Garešnica at 9.30 p.m., and there he had heard that a bank in Garešnica had been robbed that same night. Soon afterwards the police had arrived and asked him to come with them. He had been kept in a police station that whole night and had been released at 5 a.m. the next morning. At about 2 p.m. the next day he had again been asked to come to the police station, and the police officers had asked him to confess that he had robbed the bank. He had been ill-treated, they had beaten him, but he could not confess to something he had not done. His clothes had then been taken from him, as well as samples of his hair, but he had not been present when the samples had been taken from the clothes and when they had been packed and sent for analysis. He argued that the fibres [from his clothes] had been transferred to the other clothes by the items being rubbed against each other ... so the evidence thus obtained had been planted by the police.
...
The request by the defence to obtain from the Garešnica Police Station the names of the officers who carried out the on-site inspection and took the samples, and for them to be heard as witnesses ... was refused because the case file contains written records on the on-site inspection and written reports on all steps carried out at the preliminary stage of these proceedings, so that there is no need to hear the officers who carried out those acts.
The request by the defence for forensic experts D.K. and J.K. to be heard concerning the possibility that there was a transmission of fibres from one item to another was also refused because it is well known that such traces can be transmitted through various means such as by rubbing etc., so it was not necessary to hear expert witnesses on this. The court also took into account the fact that there had been no objection to the forensic reports.
...
Witnesses Z.S., M.Kol. and M. Kom., the bank employees, gave identical descriptions of the conduct of the disguised person who had entered the bank at the relevant time, shortly before 7.00 p.m., and [they gave identical descriptions of] the clothes he had been wearing. They stated that the person at issue had been disguised, wearing an improvised mask made from a cap. Around his neck he had had a winter scarf, and he had been wearing a dark women’s overcoat. Underneath the overcoat he had been wearing a purple skirt and trousers. This person had pointed a gun and started shouting that this was a bank robbery; he had demanded money and threatened to kill [the bank employees]. He had then put a crate on the counter and asked for the money. M.Kol. had given him the money, putting it in the crate, after which the disguised person had left the bank. The said witnesses also testified that the person in question resembled the accused in his physical appearance, but that they had not recognised him as the accused, although the accused was known to them. Moreover, the witness M.Kol. testified that she had momentarily seen a part of the disguised person’s face but she thought that that person was younger than the accused.
...
In view of the evidence given by the witnesses as to what the disguised bank robber had been wearing when he entered the bank, and the Forensic Centre’s report concerning the fibres and strands of hair found on the items and clothes seized from the accused, there is no doubt that the accused is the disguised person who entered the bank at the time of the events, and that he was disguised in the clothes which were found during the on-site investigation in a nearby residential building.
...
This court cannot accept the applicant’s argument that this evidence was planted by the police, because the relevant laws prescribe in detail the procedure in such situations as regards the taking of samples, packing them and sending them for forensic analysis, and there are written records on all the steps taken, so that any doubt as to whether, intentionally or unintentionally, fabric fibres or hairs were transferred from one set of clothes to another is excluded, and this court considers that there is no reason to question the authenticity of this evidence.
...”
33. On 3 May 1996 the applicant lodged an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating his previous arguments regarding the evidence in issue. He contended that although when the samples of his hair and clothes were packed for the analysis he was detained at the police station, the police had not allowed him to be present during the packing of the samples and therefore the relevant evidence could have been planted and otherwise tampered with.
34. On 7 January 1998 the Supreme Court dismissed the applicant’s appeal, endorsing the findings of the first-instance court.
35. On 9 February 1998 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous arguments about the manner in which the evidence had been gathered by the trial court. In his constitutional complaint the applicant gave his address in Garešnica but stated that he was detained in Bjelovar Prison (Zatvor u Bjelovaru).
36. On 11 February 1998 the applicant began a five-year prison sentence to which he had been sentenced in another set of criminal proceedings. He was transferred from Bjelovar Prison to Zagreb Prison (Zatvor u Zagrebu). He was detained in Zagreb Prison until 6 March 1998, when he was transferred to Lepoglava State Prison (Kaznionica u Lepoglavi).
37. On 9 March 1998 the applicant lodged a request for the extraordinary mitigation of his sentence (zahtjev za izvanredno ublažavanje kazne) and a request for extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude).
38. In course of the Bjelovar County Court’s examination of the circumstances surrounding the applicant’s request for the extraordinary mitigation of his sentence, on 13 March 1998 Lepoglava State Prison informed the Bjelovar County Court that the applicant was detained in that prison.
39. On 16 March 1998 the Constitutional Court informed the Bjelovar County Court that the applicant had lodged a constitutional complaint and asked for the case file to be forwarded to it.
40. On 19 March 1998 the Bjelovar County Court declared the applicant’s request for extraordinary review of a final judgment inadmissible since it had been lodged against the judgment of the Supreme Court, which was not possible under the relevant domestic law.
41. On 2 April 1998 the Bjelovar County Court forwarded the case file to the Supreme Court in connection with the applicant’s request for the extraordinary mitigation of his sentence and recommended that the request be dismissed as ill-founded.
42. A copy of the entire case file was also sent to the Constitutional Court on 3 April 1998.
43. On 17 June 1998 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts.
44. The decision of the Constitutional Court was sent to the applicant’s address in Garešnica on 6 July 1998 but it was returned to the Constitutional Court with a note that it had not been possible to serve it since the applicant was not at that address.
45. On 12 August 1998 the Supreme Court dismissed the applicant’s request for the extraordinary mitigation of his sentence as ill-founded.
46. On 4 and 17 September 1998 the Constitutional Court again attempted to serve its decision of 17 June 1998 on the applicant at his address in Garešnica. Each time the correspondence was returned, with a note that the applicant was not at that address.
47. The Constitutional Court placed the decision on its public notice board on 22 September 1998, where it remained until 30 September 1998.
48. On 19 January 1999 the Garešnica Municipal Court (Općinski sud u Garešnici) instituted enforcement proceedings in respect of an order for the confiscation of the proceeds of crime. However, on 24 June 1999 the enforcement proceedings were discontinued since it had been impossible to enforce the order on account of the applicant’s lack of any financial means.
49. On 26 September 2001 the applicant was released from Lepoglava State Prison on parole.
50. Since he had not received any decision from it, on 19 September 2002 the applicant urged the Constitutional Court to decide on his constitutional complaint
51. On 20 March 2009 the applicant’s lawyer requested the Constitutional Court to inform him as to the status of the applicant’s constitutional complaint.
52. On 27 March 2009 the Constitutional Court served its decision of 17 June 1998 on the applicant’s representative.
53. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows:
“(1) Everyone suspected of or charged with a criminal offence shall have the right to:
- a fair hearing before the competent court established by law;
...
(2) Evidence unlawfully obtained cannot be used in court proceedings.”
54. The relevant provision of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:
“(1) The Constitutional Court shall serve a certified copy of its decision on the parties to the proceedings.
(2) When a decision or other act of the Constitutional Court, for any reason whatsoever, cannot be served on the parties, it shall be put on the public notice board of the Constitutional Court.
(3) It shall be considered that the decision has been served after it has been displayed on the Constitutional Court’s public notice board for eight days.
...”
55. The relevant provision of the Criminal Code of the Republic of Croatia (Krivični zakon Republike Hrvatske, Official Gazette nos. 32/1993, and 98/1993) provides:
“(1) Whoever by the use of force against another person or by the threat of the use of direct force against life or limb, takes another’s movable property with the intent of keeping it for himself or of acquiring pecuniary gain for another, shall be punished by imprisonment for one to twelve years.
... ”
56. The relevant provisions of the Code of Criminal Procedure (Zakon o krivičnom postupku, Official Gazette nos. 53/1991, 91/1992, 34/1993, 38/1993, and 28/1996) provide:
“(1) A simultaneous record shall be drafted in respect of every action taken in the course of criminal proceedings, while the action is taking place, or, if that is not feasible, then immediately after.
... ”
“(1) The record shall state the name of the state authority taking the action, the place of the action, the day and time when the action begins and ends, the first and last names of all the persons present, and the capacity in which they are participating in the action, as well as an indication of the criminal case in respect of which the action is being taken.
(2) The record has to contain all necessary information on the progress and the subject matter of the action. ... If in the course of the action certain objects or files have been seized, it shall be noted on the record, and the seized items shall be appended to the record or it shall be noted where these items are stored.
(3) In the course of an action such as on-site inspection, the search of a flat or a person, or a line-up (Article 223), shall be recorded on the record all information which is important for such action or for the identification of the objects (description, the measurements of the objects or traces, markings on the objects, etc.), and any sketches, drawings, plans, photographs, video recordings, etc. made shall be noted on the record and appended to it.”
“(1) The defendant, persons participating in the action, parties, defence counsel and the victim, if they are present, shall have the right to read the record or to have it read to them. ... “
“(1) The court’s judgment shall be based only on the facts and the evidence taken during the hearing.
... ”
57. The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide:
Article 502
“...
(2) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final courts’ decision in connection with the final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found.
(3) The request for reopening of the proceedings in connection with the final judgment of the European Court of Human Rights can be lodged within a thirty-day time limit starting from the moment of the finality of the judgment of the European Court of Human Rights.”
Article 574
“...
(2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [in which the decision was adopted], ..., the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code.
(3) Articles 497-508 of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1