ITEMID: 001-92372
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MOSKOVETS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1-c;No violation of Art. 5-1-c;Violation of Art. 5-3;Violations of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1977 and is currently serving a prison sentence.
5. On 25 December 1999 the applicant was arrested on suspicion of several counts of aggravated murder and taken to a police station. The police officers allegedly intimidated the applicant and forced him to confess. The applicant’s representative was present when the applicant made his confession.
6. On 26 December 1999 a medical examination was conducted on the applicant. The expert recorded a bruise on the left side of the applicant’s chest and three abrasions on the backs of his hands, which did not cause harm to the applicant’s health. The above injuries were caused in the period from one to three days prior to the examination. The applicant stated that on the night of 24 December 1999 he had tried to stop a fight, and that as a result he had scratched his hand and been punched in the chest.
7. The applicant sought to have criminal proceedings instituted against the police officers, however his allegations were found to be unsubstantiated.
8. On 28 December 1999 the applicant was detained in custody.
9. On 3 January 2000 the applicant was charged with murder under Article 105 of the Criminal Code.
10. On 9 February, 27 March, 6 April and 19 December 2000 the applicant’s detention pending investigation was extended until 18 June, 25 June, 25 September 2000 and 25 February 2001 respectively. The extension orders referred to the particular gravity of the charges against the applicant, the fact that he had no permanent place of residence and that he had previously absconded, thus breaching the preventive measure applied to him in connection with another criminal case.
11. On 23 February 2001 the investigation was completed, and the case file was submitted to the St. Petersburg City Court for trial.
12. On 25 April 2001 the St. Petersburg City Court referred the case back to the prosecution authorities for additional investigation on account of serious breaches of procedure. The court held that the preventive measure applied to the applicant “should remain unchanged”.
13. On 25 May, 18 June and 11 September 2001 the applicant’s detention pending investigation was extended until 24 June, 26 September 2001 and 26 March 2002 respectively, for the reasons set out above.
14. On 25 December 2001 the additional investigation was completed and the case was resubmitted to St. Petersburg City Court for trial.
15. On 8 January 2002 the St. Petersburg City Court accepted the case for trial and held that the preventive measure applied to the applicant “should remain unchanged”.
16. Starting from 1 July 2002 the St. Petersburg City Court extended the applicant’s detention every three months. In particular, on 1 July 2002 it extended the applicant’s detention from 1 July 2002 until 1 October 2002; on 24 September 2002 from 30 September until 30 December 2002; on 15 December 2002 from 30 December 2002 until 30 March 2003; on 11 March 2003 from 30 March to 30 June 2003; on 13 May 2003 from 30 June to 30 September 2003; on 4 July 2003 from 30 September to 30 December 2003; on 28 November 2003 from 30 December 2003 until 30 March 2004, and on 26 February 2004 from 30 March 2004 until 20 June 2004.
17. The above extension orders concerned the applicant and five other co-defendants. All of the extension orders referred to the gravity of the charges against the applicant and his co-defendants and the risk of their absconding, without providing any further detail. The extension order of 28 November 2003 was more elaborate and, in so far as it concerned the applicant, read as follows:
“[The applicant] is charged with particularly serious crimes, including several counts of aggravated murder, committed while under a written undertaking not to leave applied in the framework of another criminal case on the charges of, inter alia, several aggravated murders and other serious and particularly serious crimes ... Even after being detained in custody [the applicant] had committed a crime for which on 26 November 2001 he had been sentenced by St Petersburg Dzerzhinskiy (Tsentralniy) District Court to one year and six months’ imprisonment.”
18. The applicant appealed to the Supreme Court of Russia against these extension orders. The extension orders of 1 July and 24 September 2002 were found to be unlawful, on 11 November and 2 December 2002 respectively, because in the first case neither the applicant nor his representative were given proper notice of the hearing and, as a consequence, were absent, and in the second case the hearing took place in the absence of the applicant’s representative. The remaining extension orders of 15 December 2002, 11 March, 13 May, 4 July and 28 November 2003, and 26 February 2004, were upheld on appeal by the Supreme Court on 27 March, 4 June, 11 August and 22 September 2003 and on 18 February and 11 May 2004 respectively.
19. On 11 March 2003 the St Petersburg City Court ex post facto authorised the applicant’s detention from 1 July to 30 December 2002.
20. On 26 November 2001 the Dzerzhinskiy (Tsentralniy) District Court of St Petersburg convicted the applicant of stealing and destruction of official documents and attempted forgery of documents and sentenced him to two years’ imprisonment starting from 26 November 2001. The court further held that the applicant’s detention from 27 September 2000 to 19 July 2001 in the above case should be counted toward the applicant’s prison term.
21. On 28 February 2002 the St Petersburg City Court commuted the applicant’s sentence to one year and six months’ imprisonment.
22. It appears that the applicant completed his sentence in August 2002.
23. Having studied the case file before the completion of the preliminary investigation, in November 2001 the applicant requested that his case be dealt with by one professional and two lay judges.
24. On 8 January 2002 St Petersburg City Court scheduled the first hearing for 5 August 2002.
25. On 5 August 2002, however, the proceedings were suspended in view of the necessity to search for Zh. – one of the applicant’s co-defendants.
26. On 15 December 2002 the proceedings were resumed despite the failure to find Zh. Starting from that date the court was composed of a professional judge, Mr Kurguzov, and two lay judges, Ms D. and Mr S. Prior to that, on 27 September 2002 in accordance with Section 6 of the Lay Judges Act the acting president of the St Petersburg City Court selected 102 lay judges, including Ms D. and Mr S., to sit at the examination of the cases by the St Peterburg City Court; and on 11 November 2002 Judge Kurguzov, to whom the case had been assigned, drew lots between six unidentified lay judges (their names did not appear in the relevant decision) and determined that lay judges Ms D. and Mr S. should sit with him on the bench.
27. The applicant challenged the composition of the bench. He alleged a breach of rules on the appointment of lay judges in that lay judges Ms D. and Mr S. had not been drawn by lot, contrary to the requirements of the Federal Law on Lay Judges of the Federal Courts of General Jurisdiction (Федеральный Закон «О народных заседателях федеральных судов общей юрисдикции в Российской Федерации», “the Lay Judges Act”). However, the applicant’s challenge was dismissed by the court. No breach of the rules governing the calling of lay judges was established.
28. Of thirty-one hearings scheduled between 15 December 2002 and 19 April 2004 twenty-two were adjourned for various reasons: five due to the submission by the applicant of requests and the prosecution’s need to study the case file, three due to the failure of the guard unit to deliver the applicant and his co-defendants to the court, nine because the lawyers were either sick or absent, three due to the necessity to summon witnesses, and two on the court’s initiative, on the first occasion because the applicant’s co-defendants had agreed to testify at the forthcoming court hearing, and on the second because the applicant had refused to testify.
29. On 19 April 2004 the applicant again challenged the composition of the bench, without success.
30. On 30 April 2004 the St. Petersburg City Court convicted the applicant of aggravated murder, theft and fraud and sentenced him to life imprisonment.
31. On 30 September 2004 the Supreme Court of Russia modified the qualification of the applicant’s crime and left the sentence unchanged.
32. At the applicant’s request, on 24 April 2008 the Supreme Court of Russia by way of supervisory review modified the qualification of the charges against the applicant and left the sentence unchanged.
33. For a summary of domestic law provisions on pre-trial detention and time-limits for trial see Khudoyorov v. Russia (no. 6847/02, §§ 76-96, ECHR 2005X (extracts)).
34. The Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”) provided that hearings in first-instance courts dealing with criminal cases were to be conducted, subject to certain exceptions, by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges (Article 15).
35. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”) does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the appointment of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1).
36. The Federal Law on enactment of the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows:
Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction becomes ineffective as from 1 January 2004.
Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, becomes effective as from 1 January 2004. Before that date serious crimes should be dealt with by a single professional judge or by one professional and two lay judges if an accused has made such a request prior to the appointment of a trial hearing.
37. On 10 January 2000, the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. Under Section 1 § 2 of the Act, lay judges were persons authorised to sit in civil and criminal cases as non-professional judges.
38. Section 2 of the Act provided that lists of lay judges had to be compiled for every district court by local self-government bodies, such lists being subject to validation by the regional legislature.
39. Section 5 of the Act determined the procedure for the selection of lay judges for the examination of cases by district courts. It provided that the president of a district court had to draw at random from the list a certain number of lay judges to be called to the competent district court. The number of lay judges assigned to every professional judge had to be at least three times the number of persons needed for a hearing.
40. Section 6 of the Act provided that the selection of the lay judges for the examination of cases by regional (city) courts was carried out by the president of the relevant court in accordance with the rules set out by Section 5 of the Act on the basis of the general lists of lay judges of the district courts situated on the territory of the relevant region (city). It further provided that the selection of lay judges for examination of a particular case in a regional (city) court was carried out by the judge to whom the case in question had been assigned in accordance with the rules set out by Section 5 of the Act.
41. In accordance with Section 9, lay judges were to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called more than once a year.
42. On 18 September 2002 the St Petersburg City Legislature validated the general list of lay judges assigned to the Krasnogvardeyskiy District Court of St Petersburg. The addendum to the above regulation contained the general list of 514 lay judges.
43. On 14 January 2000 the Presidium of the Supreme Court of Russia on the basis of Section 5 of the Lay Judges Act issued a regulation on the procedure for selection of lay judges. The regulation provided that the president of a district court should draw at random from the general list of lay judges 156 names for each judge. The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned.
44. The new CCrP provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
6-1
VIOLATED_BULLETPOINTS: 5-1-c
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-72126
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: FERNIE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr D. Fernie, is a United Kingdom national who was born in 1966 and lives in Lincoln. He is represented before the Court by Tuckers Solicitors, practising in London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a second-hand car dealer in Lincoln. In 1996 he became a self-employed trade buyer for Deans of Nottingham, a specialist dealer in high performance cars.
On 29 September 1997 the applicant was arrested on suspicion of theft of money from Deans of Nottingham and he was later charged with false accounting. The prosecution’s case was that the applicant had created fictitious invoices which showed purchases of non-existent cars for which he paid himself with cheques drawn on Dean’s bank account, and pocketed the proceeds. When the applicant was first arrested, he was bailed but not charged. He had not denied that the invoices were false but claimed that everything had been done with the knowledge of Nigel Dean. On 15 December, the applicant was interviewed again. On 5 April 1998 the applicant was again bailed. On 21 September 1998 he had further interviews with the police but he was still not charged. On 22 March 1999 he was interviewed.
On 27 April 1999 the applicant was finally formally charged with fourteen counts of false accounting and one of theft of £370,000.
On 8 June 1999 the applicant appeared at the magistrates’ court. The matter was adjourned for the defence to consider advance disclosure.
On 14 September 1999, the prosecution applied for a six week adjournment to prepare the committal bundles. On 2 and 30 November 1999, they requested further adjournments. The court directed that the papers should be served by 14 December 1999. They were in fact served at 5 pm the day before a court hearing on 5 January 2000. The defence applied for three weeks to consider the papers.
On 27 January 2000, the applicant was committed for trial.
On 3 July 2000, the applicant was arrested and charged inter alia with fraudulent dealings with Mr Burton, a local farmer who gave the applicant two cheques to purchase some shares in a named company.
On 9 March 2001 the committals were joined.
In September 2001, the applicant stood trial charged with 19 offences. At the outset of the trial, the trial judge informed counsel that although he had never met Mr Dean some twenty years before he had been acquainted with a former partner of Mr Dean but had not seen him since. He also informed counsel that he lived in the neighbouring village to Mr Burton; he had not met him or spoken to him but was aware that the farmer had property interests in his own village. Counsel made no objection to his continuing the trial.
The trial judge started his summing up late in the afternoon of 1 October 2001. That evening, trial counsel and the judge went out for dinner together. The applicant alleges that they all drank ‘copious amounts of red wine and port’ and as a result in court the next day both the judge and the barristers appeared to be unable to function adequately. The judge made over 30 inaccuracies during his summing up as well as making approximately 30 misnaming errors, where he confused the names of the various witnesses and the defendant. During the same summing up, the applicant’s leading counsel wrote ‘cobblers’ on a piece of paper which he held up to show one of the courtroom ushers, causing her to laugh so uncontrollably that she had to leave the courtroom. This disturbed one member of the jury who during a short adjournment complained about the barrister’s conduct, describing it as a ‘mockery.’ The barrister concerned apologised to the court and jury after the judge drew it to his attention. Later, following the applicant’s complaints about his defence counsel, on 12 January 2004, the Professional Conduct and Complaints Committee of the General Council of the Bar decided to bring charges against leading and junior counsel representing the applicant at trial.
On 3 October 2001, the applicant was convicted on all counts (seven counts of false accounting, two counts of theft and one count of obtaining a money transfer by deception) and was sentenced to eight years’ imprisonment.
On 17 October 2001, the applicant lodged a preliminary appeal against his conviction inter alia on grounds of the errors, misnaming and misstatements of evidence contained within the summing up. He also appealed against his sentence considering it to be manifestly excessive.
The applicant disposed of the services of his defence counsel and submitted the final grounds of appeal himself on 11 January 2002.
On 17 April 2002, the single judge gave leave to appeal against sentence but refused leave to appeal against conviction.
On 24 August 2002 the applicant submitted new grounds of appeal against his conviction concerning a missing personal organiser and tapes of telephone conversations.
On 10 October 2002, the Court of Appeal allowed the applicant’s appeal against sentence, reducing the total prison term to six years as more appropriate to the offences. It referred to the delay of four years between arrest and trial but noted that although some of the delay was not his fault he could have avoided a substantial part by pleading guilty. It did not make any reduction for delay.
On 12 December 2002, the Court of Appeal considered the applicant’s renewed application for permission to appeal against conviction. They granted leave to appeal concerning the defects in the summing up and on the unused banking documents and jury bundle.
On 24-25 June 2003, the Court of Appeal held a hearing on the above grounds. The applicant appeared in person. In its judgment of 25 June 2003, the court rejected the grounds concerning the jury bundle and unused banking documents. As concerned the defects in the summing, it held:
“In a well-prepared and carefully delivered summing up mis-statements of the evidence and mis-naming errors should not occur. We all know, however, particularly those of us who are getting older, how easy it is to transpose names. That said, however, this summing up contained far too many errors. But what we have to consider is whether the cumulative effect of these errors casts doubt on the safety of the appellant’s conviction. The question is: are the errors such as to make it reasonably probable that the jury would not have returned their verdicts of guilty if there had been no errors...So far as mis-statements of the evidence are concerned none of them go to the central issues in the case. Had they done so, we would expect alert defence counsel to have asked the judge to correct them. No such application was made. This was, after all, not a long trial and the issues which the jury had to decide were not complicated. So far as mis-naming is concerned, in almost every case the context makes it clear that the judge has transposed the names. It is not as if this was a case in which there was a cast of thousands. Most of the transpositions are between Mr. Dean and Mr. Fernie who were the two principal witnesses on counts 1 to 5. It cannot be said that the jury were confused. They asked no questions and returned swift verdicts. For these reasons, unfortunate though the judge’s errors were, we do not think that they affected or might have affected the outcome of this trial.”
On 1 July 2003, the applicant, acting in person, applied to the Court of Appeal for leave to appeal to the House of Lords. On 30 July 2003 the court refused leave or to certify a point of law of general public importance. A notification was sent to the applicant on 31 July 2003.
The applicant then applied to the House of Lords. By letter dated 15 October 2003, the Judicial Clerk to the House of Lords acknowledged receipt of his undated letter and pointed out that as his appeal was a criminal matter and the Court of Appeal had not certified that it raised a point of law of general public importance the House of Lords could not entertain any appeal. The clerk concluded:
“In these circumstances there is nothing further you need to do to satisfy the requirement, laid down by Article 26 of the ECHR , that all domestic remedies must be exhausted before an appeal can by made to the ECHR. This letter will be accepted by the Court as establishing your compliance with the domestic remedies rule in respect of the jurisdiction of the House of Lords in this litigation.”
In subsequent correspondence with the Department for Constitutional Affairs, the applicant complained that the trial judge had been acquainted with Mr Burton, who was a considerable landowner in the village where the judge lived and that they had both attended certain social functions. He also complained that the judge had been acquainted with another complainant, Mr Dean, as he had shown knowledge of Mr Dean and his partner’s business in Nottingham where he had practised in chambers. He further repeated his allegations concerning the consumption of alcohol by the judge and counsel. An inquiry appears to have been carried out. The trial judge wrote a letter dated 16 August 2003 to the Department setting out his response. He pointed out that through an abundance of caution he himself had drawn attention of counsel to his knowledge of two prosecution witnesses and that they had not made any representations concerning his continued involvement in the case. He also stated that the night before the summing-up he had drunk three glasses of wine during dinner with counsel and retired at about 11.30 p.m. : he denied being the worse for drink then or the next day.
By letter dated 30 September 2003, the Department replied to the applicant, inter alia referring to the Court of Appeal’s assessment of the case and noting that the applicant’s counsel had confirmed that the judge had not been under the influence of alcohol. They concluded that there was no issue of the judge’s personal conduct that required further investigation.
By letter dated 15 January 2004, the Professional Conduct and Complaints Committee of the Bar Council informed the applicant that it had decided that his complaints about counsels’ conduct at his trial should form the subject of an investigation. After a summary procedure hearing on 9 December 2004, the disciplinary proceedings were dismissed.


ITEMID: 001-90965
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ECONOMOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1943 and lives in Nicosia.
8. The applicant first stated that he was the owner of a fully furnished house in the District of Kyrenia. However, in his observations of 27 October 1999 he listed his properties as follows:
(a) Ayios Amvrosios, registration no. 13094, plot no. 33/2, sheet/plan XIII/31.E.1, field with various trees, area: 15,340 sq. m;
(b) Ayios Amvrosios, registration no. 8648, plot no. 512, sheet/plan XIII/27.E.1&E.2 and XIII/28.W.1&W.2, inaccessible hilly field, area: 19,735 sq. m;
(c) Ayios Amvrosios, registration no. 4923, plot no. 135, sheet/plan XIII/22.W.1, inaccessible field with olive trees, area: 3,345 sq. m;
(d) Ayios Amvrosios, registration no. 8277, plot no. 343, sheet/plan XII/27.E.1, field with small former farmhouse and stables, area: 370 sq. m;
(e) Ayios Amvrosios, registration no. 13131, plot nos. 400 and 401/1, sheet/plan XIII/27.E.1, inaccessible field with nine olive trees, area: 1,254 sq. m.
9. An expert appointed by the applicant conducted researches in the Famagusta lands registers and obtained the above registration numbers and references. In support of his claim of ownership, the applicant submitted a survey map on which his properties were marked in yellow.
10. Moreover, in an affidavit of 22 October 1999 the applicant stated that from the time he was born he had lived with his parents in their home in Ayios Amvrosios. When he got married in July 1973 he moved to his wife’s house in Aglandja, a village which had never been occupied by Turkish military forces. After his marriage, the applicant used to spend weekends and holidays in Ayios Amvrosios.
11. As a result of the 1974 Turkish military intervention the applicant had been deprived of his property rights, his properties being located in the area which was under the occupation and overall control of the Turkish military authorities. The latter had prevented him from having access to and using his property and his parents’ house located in Ayios Amvrosios. Moreover, the applicant stated that his house had been occupied by officers and/or other members of the Turkish military forces.
12. On 9 December 1990 the applicant made an attempt to return to his property in Ayios Amvrosios by participating in a convoy of cars of fellow refugees from the same district wishing to return home during a peaceful march towards their villages.
13. The applicant and his fellow refugees, who had informed the Commander of the United Nations (UN) forces in Cyprus of their intention, stopped at the checkpoint in the “buffer zone”, on the main road linking Nicosia with Ayios Amvrosios and Kyrenia. There, they asked the UN officer on duty to be allowed to return to their homes, property and villages. They requested the officer to transmit to the Turkish military authorities their demand to return to their homes. The officer announced to them that the Turkish military authorities had refused their request.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-96018
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SEYIDZADE v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violation of P1-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1949 and lives in Baku.
6. The applicant held positions as head of the education department of the Caucasus Muslims Board (Qafqaz Müsəlmanlar İdarəsi, the official governing body of Muslim religious organisations in Azerbaijan), member of the Qazi (Islamic Judges') Council (Qazılar Şurası) of the Caucasus Muslims Board, and director of the Sumgayit branch of Baku Islamic University. He was also a founder and editor-in-chief of a journal called Kelam, published since 2002 and printing various articles with an Islamic religious content.
7. On an unspecified date, the applicant lodged an application with the Constituency Electoral Commission (“the ConEC”) for the single-seat Massalli Village Electoral Constituency No. 71 for registration as a candidate in the upcoming elections to the Milli Majlis (Parliament) on 6 November 2005. Together with the application, he submitted a written undertaking to terminate any professional activities incompatible with the office of member of parliament.
8. According to the minutes of the joint meeting of the Qazi Council and Religious Science Council of the Caucasus Muslims Board held on 14 July 2005, the applicant's membership of the Qazi Council was terminated on the basis of his own resignation letter. It was noted that the resignation was accepted in view of the applicant's having nominated himself as a candidate for the parliamentary elections.
9. According to an order issued by the chairman of the Caucasus Muslims Board on 15 August 2005, the applicant was relieved of his positions as head of the Board's education department and director of the Sumgayit branch of Baku Islamic University.
10. On 25 August 2005 the ConEC refused to register the applicant as a candidate because he “was continuing his activities as a professional clergyman (peşəkar din xadimi)”, which were incompatible with the requirements of Article 14.2.4 of the Electoral Code.
11. The applicant complained about this decision to the Central Electoral Commission (“the CEC”). On 27 August 2005 the CEC rejected the applicant's complaint. The entire CEC decision consisted of the following:
“[The CEC], having examined the complaint of Miraziz Mirasgar oglu Seyidzade, who has nominated himself for election to the Milli Majlis ..., in accordance with Articles 19.4, 19.14, 28.4 and 112.9 of the Electoral Code and Articles 3.5 and 3.6 of the Law of 27 May 2003 on the approval and entry into force of the Electoral Code, decides:
To reject the complaint of Miraziz Mirasgar oglu Seyidzade as unsubstantiated.”
12. The applicant lodged an appeal against this decision with the Court of Appeal, complaining that his candidacy had been terminated unlawfully as he had resigned from all positions involving “professional religious activity” and was no longer engaged in any religious activities. On 1 September 2005 the Court of Appeal rejected his appeal, finding that the CEC's decision was lawful. Specifically, the Court of Appeal noted:
“According to the materials in the case file, Miraziz Mirasgar oglu Seyidzade, who has nominated himself for election to the Milli Majlis, is a clergyman.
According to Article 56 of the Constitution of the Republic of Azerbaijan, the right of clergymen ... to participate in elections may be restricted.
According to the requirements of Article 14.2.4 of the Electoral Code of the Republic of Azerbaijan, clergymen may not serve as members of the Milli Majlis while they are engaged in professional religious activity.
The applicant's arguments that he had been relieved of his positions with the Caucasus Muslims Board and Baku Islamic University cannot be considered as a ground for upholding his claim.
Specifically, the fact that [the applicant] has been relieved of the above-mentioned positions does not rule out his engaging in professional religious activity.
On the other hand, according to Article 85 of the Constitution of the Republic of Azerbaijan, a clergyman may not be elected as a member of the Milli Majlis.
Accordingly, given that the decision of the Central Electoral Commission was in compliance with the requirements of the Constitution and the Electoral Code of the Republic of Azerbaijan, the arguments advanced in the applicant's appeal cannot be considered as a basis for quashing this decision.”
13. The applicant lodged a cassation appeal against this judgment with the Supreme Court. On 8 September 2005 the Supreme Court dismissed the appeal using the same reasoning.
14. The applicant attempted to have the proceedings reopened and the case reviewed by the Plenum of the Supreme Court, by lodging an additional cassation appeal with the Supreme Court's President. On 20 September 2005 the Supreme Court's President rejected his request, finding no grounds for reopening the proceedings.
15. Lastly, the applicant lodged a constitutional complaint. By an inadmissibility decision of 26 October 2005, the Constitutional Court refused to admit the complaint for examination on the merits, finding that the applicant had essentially disputed the factual findings of the courts of general jurisdiction (specifically, on the question whether the applicant was actually engaged in any “professional religious activity”). The Constitutional Court noted that it had no competence to review the correctness of the It also stated the following with regard to the restriction of clergymen's right to stand for election in general:
“According to Article 7 (I) of the Constitution, the Republic of Azerbaijan is a democratic, secular, unitary republic governed by the rule of law. Article 18 (I) of the Constitution provides that religion shall be separate from the State. In this context, the above provisions must inevitably be taken into account in the constitutional rules on formation of the supreme elected government body.
The restriction on the election of clergymen to government bodies, which is based on the demands of the public interest, has the primary aim of separating religion from the State. The restriction serves the purposes of removing matters inherent in the State's functioning from the sphere of influence of religious communities, clerics and religious figures, and keeping such influence to a minimum.
Another aim of the restriction is to separate religious voters from the clergy in the context of the election process, as a means to ensure that voters form their opinions and make their choice free from any undue interference.
It must be noted that the legal systems of a number of other States also provide for restrictions on the right of clergymen to stand for election. ...
Article 14.2.4 of the Electoral Code provides that clergymen cannot be members of the Milli Majlis, President of the Republic, or members of municipalities while they are engaged in professional religious activity. As such, the legislator applied the “religious-based eligibility requirement” restricting clergymen's right to serve as members of parliament only to periods when the latter are engaged in professional religious activity.”
16. At the material time, the relevant provisions of the Constitution provided as follows:
“I. The Azerbaijani State is a democratic, secular, unitary republic governed by the rule of law. ...”
“I. Religion is separated from the State in the Republic of Azerbaijan. All religious faiths shall be equal before the law.
II. The spreading and proselytising of religions which undermine human dignity and contradict the principles of humanism shall be prohibited.
III. The State education system shall be secular.”
“I. Citizens of the Republic of Azerbaijan shall have the right to elect and be elected to the institutions of government, and to participate in referendums.
II. Persons whose legal incapacity has been determined by a court decision shall not have the right to participate in elections and referendums.
III. Members of the armed forces, judges, State officials, clergymen (din xadimləri), persons imprisoned pursuant to a final court judgment, and other persons specified in this Constitution and in legislation may be subject by law to restrictions on their right to participate in elections.”
“I. Every citizen of the Republic of Azerbaijan not younger than 25 years of age may be elected as a member of the Milli Majlis ... in a manner stipulated by law.
II. Persons who have dual citizenship, those who have obligations vis-à-vis other States, those who work within the system of the executive or judicial power and those who carry out any other types of remunerated activity except scientific, pedagogical or creative activities, clergymen (din xadimləri), persons whose legal incapacity has been determined by a court decision, those who have been convicted of serious crimes and those who are serving prison sentences pursuant to a conviction under a final judgment, cannot be elected as members of the Milli Majlis ...”
17. At the material time, the relevant provisions of the Electoral Code provided as follows:
“13.1. Except for the cases stipulated in Article 56 of the Constitution of the Republic of Azerbaijan and in this Code, every citizen who has active electoral rights shall also have passive electoral rights, that is, he or she shall have the right to form a referendum campaign group and to be elected as a member of the Milli Majlis, as President or as a member of a municipality, provided he or she meets the candidacy requirements laid down by the Constitution of the Republic of Azerbaijan for these offices.
13.2. Restrictions on passive electoral rights shall be established by Articles 56, 85, and 100 of the Constitution of the Republic of Azerbaijan and by this Code.
13.3. Pursuant to Articles 56 (III), 85 and 100 of the Constitution of the Republic of Azerbaijan, the following persons shall not have passive electoral rights, that is, they shall not have the right to be elected as a member of the Milli Majlis, as President or as a member of a municipality:
13.3.1. persons serving prison sentences pursuant to a conviction under a final judgment;
13.3.2. persons convicted of the crimes under Articles 15.4-15.5 of the Criminal Code of the Republic of Azerbaijan;
13.3.3. citizens of the Republic of Azerbaijan with dual citizenship (until their second citizenship expires); and
13.3.4. citizens of the Republic of Azerbaijan who have obligations vis-à-vis foreign States (until such obligations are terminated) ...”
“14.1. Cases of incompatibility of positions shall be established by Articles 56, 85 and 100 of the Constitution and by this Code.
14.2. Pursuant to Article 56 (III) of the Constitution of the Republic of Azerbaijan, the following persons shall not have the right to serve as members of the Milli Majlis, as President or as members of municipalities, by virtue of the positions they occupy:
14.2.1. Members of the armed forces (while in military service);
14.2.2. Judges (while in office);
14.2.3. Civil servants (while in State service); and
14.2.4. Clergymen (din xadimləri) (while engaged in professional religious activity (peşəkar dini fəaliyyət ilə məsğul olduqları müddətdə)).”
“...
53.3. An application containing a written undertaking by the candidate to terminate any activities incompatible with a post in an elected State or municipal body shall be submitted together with the notification mentioned in Article 53.2 of the Code. This application shall contain information on the candidate ([including] his or her official workplace (or type of activity, if not working) ...”
“69.1. All the registered candidates and referendum campaign groups shall have equal rights and responsibilities, taking into account their status.
69.2. Registered candidates and authorised representatives of referendum campaign groups who are in State or municipal service or who work in the mass media under an employment or civil contract shall be released from performing their official duties during the period of their participation in the election (referendum) campaign (this rule shall not apply to the [current] President of the Republic of Azerbaijan, [current] members of the Milli Majlis or [current] members of municipalities). The approved copy of the relevant order [on release from performing official duties] shall be submitted to the electoral commission registering the above-mentioned candidates or authorised representatives within 3 days, at the latest, from the day of registration. Such candidates or authorised representatives shall not abuse their official authority or positions in order to gain privileges or advantages.”
“125 members shall be elected to the Milli Majlis from single-seat constituencies (one member per constituency).”
“The citizens of the Republic of Azerbaijan indicated in Article 85 of the Constitution of the Republic of Azerbaijan may be elected as members of the Milli Majlis ...”
18. At the material time, the Law on Freedom of Religion provided as follows:
“In the Republic of Azerbaijan, religion and religious institutions (dini qurumlar) shall be separate from the State.
The State shall not delegate any of its functions to religious institutions and shall not interfere with their activities.
All religions and religious institutions shall be equal before the law. ...
Religious institutions shall not participate in the activities of political parties and shall not provide them with financial assistance.
In the event of the election or appointment of clergymen (din xadimləri) to positions in the institutions of government, their activities as clergymen (onların din xadimi kimi fəaliyyəti) shall be suspended for the period during which they occupy the relevant position.”
19. The case of Agayev v. Azerbaijan (no. 7607/06, declared inadmissible by the Court in a Committee decision of 9 September 2009) contained the following facts relevant to the present case regarding the eligibility requirements laid down by Article 14 of the Electoral Code. The applicant in that case was a candidate in the elections of 6 November 2005 for the single-seat Saatli-Sabirabad-Kurdamir Electoral Constituency No. 65. One of his opponents, G.A., was the Head of the Saatli Regional Executive Authority (“the SREA”). Heads of regional executive authorities were appointed and removed from their posts by the President of the Republic. Following his formal registration as a candidate, G.A. was temporarily relieved of his official duties, without pay, until 16 November 2005, pursuant to an SREA decision of 5 September 2005 signed by G.A. himself. This decision was duly notified to the electoral authorities and the President's Office. G.A. also submitted an undertaking to terminate any activities incompatible with the office of member of parliament, if elected as such. The applicant challenged the lawfulness of the election process in the constituency before the domestic authorities, arguing that G.A. should have been definitively removed from his post by a presidential order prior to his formal registration as a candidate. The electoral authorities and courts dismissed the applicant's claims, noting that G.A. had been temporarily relieved of his duties in full compliance with Article 69.2 of the Electoral Code and that, therefore, he was not in a position to unduly influence the electoral process in his capacity as a high-ranking civil servant. For these reasons, G.A. was allowed to stand as a candidate. Subsequently, G.A. won the election in the constituency. On 2 December 2005 G.A. was definitively removed from his post by a presidential order.


ITEMID: 001-80436
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SOBELIN AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 and P1-1
JUDGES: Christos Rozakis
TEXT: 8. The applicants live in the town of Bataysk of the Rostov Region.
9. In 1986 the applicants took part in the emergency operation at the Chernobyl nuclear plant. As a result they suffered from extensive exposure to radioactive emissions. The applicants underwent medical examinations which established the link between their poor health and their involvement in the Chernobyl events. Each applicant was consequently granted status of a disabled person and awarded a monthly pension and a special “food allowance” from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума).
10. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of the pensions and “food allowances” due to the applicants in connection with their disabilities. Instead, they started to receive their pensions in a fixed amount (2,800 Russian roubles (RUR) per person), which was less than they expected. Presuming that that practice was illegal, the applicants brought proceedings against the regional social security office (“the defendant”) claiming the increase of the pensions and the “food allowances” in line with the increase of the minimum subsistence amount during the relevant period.
11. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the pension and the “food allowance” due to Mr Vasilenko, one of the applicants. In re-calculating the amounts to be paid the court applied the multiplier of 1.92 reflecting the increase of the minimal subsistence amount in the Rostov Region and based on the data provided by the regional committee on statistics. As a result, the amounts to be received by Mr Vasilenko on the monthly basis from the social security office increased to RUR 5,376: RUR 4,800 on account of the disability pension plus RUR 576 on account of the “food allowance”. The court ordered the defendant to pay the applicant the recalculated amounts as from 1 January 2002, less the sums already paid.
12. On 22 January 2003 the Town Court rendered a similar judgment ordering the increase of the pensions and “food allowances” in respect of other applicants.
13. The defendant appealed against the judgments of 21 and 22 January 2003 challenging, among other things, the multiplier of 1.92 applied by the first-instance court. They also claimed that the law only provided for the increase of the disability pension in line with the cost of living, but not the “food allowance”.
14. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgments of 21 and 22 January 2003 in full, dismissing the arguments of the defendant. The enforcement proceedings were opened.
15. On 23 April 2003 the President of the Bataysk Town Court wrote a letter to the Ministry of Labour and Social Development of the Rostov Region requesting statistical information about the cost of living index in the Rostov Region at the relevant period of time.
16. On 21 July 2003, upon the request of the defendant, the Bataysk Town Court rectified its own judgment of 22 January 2003 as regards Mr Velichko, one of the applicants. The court held that since Mr Velichko belonged to the “third category of disability” (the mildest form of disability, according to the Russian classification), the amount of his monthly pensions for 2002 should be RUR 2,112. The court held that in 2003 the applicant's pension should amount to RUR 2,661.12 per month.
17. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgments of 21 and 22 January 2003, as upheld on 16 Aril 2003.
18. On 14 May 2003 the Ministry of Labour and Social Development of the Rostov Region replied to the letter of the President of the Bataysk Town Court of 23 April 2003. According to the Ministry, the cost of living index in the Rostov Region was 1.25 for 2002 and 1.26 for 2003.
19. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).
20. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgments of 21 and 22 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal.
21. The defendant argued, in particular, that the multiplier 1.92 applied by the courts at two instances was inappropriate, since it only reflected the growth of the cost of living in one of the towns of the Rostov Region. The defendant insisted that the right multiplier, reflecting situation in the whole Rostov Region, was 1.25. Furthermore, the statistical information referred to by the courts had not been properly examined at the hearing. They also indicated that the law did not provide for a recalculation of the amount of the “food allowance”.
22. On 6 August 2003 the judge rapporteur of the Regional Court requested two case files (concerning the judgments of 21 and 22 January 2003) from the Bataysk Town Court.
23. On 19 September 2003 Judge Tkachev, the President of the Regional Court, initiated the review of the judgment of 22 January 2003, as upheld on 16 April 2003. The President's decision of 19 September 2003 referred to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The President only indicated that the multiplier 1.92 applied by the courts at two instances had not been supported by references to the appropriate legislation. As a result, the case was transferred to the Presidium for an examination on the merits.
24. On 24 October 2003 the judge of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of the judge was almost identical to the decision of the President of the Regional Court of 19 September 2003.
25. On 4 November 2003 the applicants were informed about the date and venue of the hearing of their cases by the Presidium.
26. On 13 November 2003 the Presidium quashed the judgment of 22 January 2003, as upheld on appeal, stating that the first and second instance courts' calculation of the minimum subsistence amount based on the multiplier 1.92 had been insufficiently supported by evidence. The Presidium noted that in support of its findings the lower courts referred to a letter of the Deputy Minister of Labour; however, the original of that letter was missing and the court had only a photocopy of it. The Presidium further noted that the lower courts had not verified the authenticity of that letter, and, therefore, their findings had been based on inadmissible evidence. The Presidium also held that the law entitled Chernobyl pensioners to the increase of their pensions, but not the “food allowance”. The case was remitted to the first instance court for a fresh examination.
27. On 4 December 2003 the Presidium, headed by the Judge Tkachev, quashed the judgment of 21 January 2003, as upheld on appeal, remitting the case to the first instance court for a fresh examination. The grounds for quashing were the same as in the decision of 13 November 2003.
28. On 25 December 2003 the Bataysk Town Court examined the cases of all the applicants, except for Mr Nuzhdov. In the course of the proceedings the court established that the disability pension should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicants maintained that they had to accept that multiplier.
29. As a result, the court held that the amount due to the applicants for 2002 was RUR 3,125 per month and per person. Starting from March 2003 the pension should have amounted to RUR 3,937.50 per month, except for Mr Velichko, whose pension was RUR 1,732.50. The court ordered the social security authorities to compensate the applicants for previous underpayments and, starting from 2004, pay them RUR 3,937.50 (RUR 1,732.50 as regards Mr Velichko) monthly, with subsequent indexation.
30. On 14 January 2004 the Bataysk Town Court examined the case of Mr Nuzhdov. The judgment in his case was identical to the judgment in the case of other applicants of 25 December 2003. On the same day the Bataysk Regional Court rectified its judgment on 25 December 2003 correcting an arithmetic error in the calculation of the outstanding amounts awarded to the applicants.
31. The judgments of 25 December 2003 and 14 February 2004 were not appealed against and became final. On 28 January 2004 the social security authorities transferred to the applicants' accounts the amounts awarded by the town court for previous underpayments.
32. It appears that in the following years some of the applicants were involved in other civil proceedings concerning the recalculation of their pensions and benefits in line with the cost of living.
33. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review.
34. CCivP, in the relevant parts, provides as follows:
1. The judgment can be quashed by the court of appeal (v kassatsionnom poryadke) on the following grounds:
1) Incorrect establishment of facts relevant for the case;
2) Lack of evidentiary support for the facts, established by the first instance court and relevant for the case;
3) Inconsistency between the facts, relied by the court, and its conclusions;
4) Breach or incorrect application of the material or procedural law. ...
The material law was breached if:
The court did not apply the law which had to be applied;
The court applied the law which had not to be applied;
The court misinterpreted the law.
1. Breach or incorrect application of procedural law may lead to the quashing of the judgment if that breach or misapplication led or could have led to incorrect determination of the case.
2. The judgment should be quashed irrespectively of the arguments [of the appellant] in the following instances:
1) Unlawful composition of the court which determined the case;
2) The case was examined in absence of a party to the proceedings, which had not been informed about the venue and the time of the hearing;
3) The rules concerning the language of the proceedings were breached;
4) The court determined rights and obligations of persons which had not been invited to take part in the proceedings;
5) The judgment was not signed by the judge ...
6) The judgment was rendered by judges other than those who had heard the case;
7) The hearing record was missing;
8) The secrecy of judge's deliberations was breached.
“1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.”
“2. Having examined an application for supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.
...
6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”
“2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on –
– refusing to remit the case for examination on the merits by the supervisory review court;
– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.”
“2. The President of the ... regional ... court ... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.”
“The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws.”
35. On 5 February 2007 the Constitutional Court of the Russian Federation adopted Ruling no. 2-П, giving constitutional interpretation of the relevant provisions of the CCivP. The position of the Constitutional Court, in so far as relevant in the context of the facts of the present case, may be summarised as follows.
36. Supervisory review of a judicial decision which entered in force is permitted only “in exceptional circumstances, when, as a result of a judicial error, committed at an earlier stage of the proceedings, which was decisive for the outcome of the case, the rights and judicially protected lawful interests of the participants of the proceedings were significantly affected, and they cannot be restored without quashing the judicial decision”.
37. It is primarily for the courts of appeal to oversee the lawfulness and reasonableness of the lower courts' decisions. The supervisory review may be used only if all “normal” legal avenues have been exhausted by the initiator of the review. The Constitutional Court referred in this respect to the case of Nelyubin v. Russia, decided by this Court (no. 14502/04, 2 November 2006).
38. Under Article 387 of the CCivP supervisory review is possible when there are “serious violations of the substantive and procedural laws” by the lower courts. The wording used by the CCivP is not very precise, but the notion of “serious violation” is not susceptible to any clear definition and cannot be reduced to a limited number of instances where the review is possible. The courts should have a certain margin of appreciation in interpreting that provision, to the extent that their case-law is uniform.
39. Articles 363 and 364 of the CCivP (see above) give certain guidelines for defining what kind of judicial errors may trigger the supervisory review. However, given the role of the supervisory review instance, it should not substitute the review by the court of appeal. Referring to the case-law of the European Court, the Constitutional Court noted that the supervisory review should not be an appeal in disguise and that the mere existence of two opposite views on the subject of a civil dispute was not a good reason for reviewing the final judgment.
40. The power of the judge to initiate the review without hearing the parties is not contrary to the Constitution. However, the decision not to proceed with the case may be challenged in an appeal to the President of the court, who can reverse it. The Constitutional Court held that such a complaint may be lodged with the President only within the one-year time-limits provided by Article 376 of the CCivP.
41. In addition, the supervisory review complaint can be brought before a higher instance. In paragraph 9.1 of the Ruling the Constitutional Court noted that the existing provisions of the CCivP allowed bringing three consecutive supervisory review complaints. Furthermore, the time spent by the supervisory review instances on examining these complaints is not included in the one-year time-limit provided by Article 376. As a result, the overall duration of the proceedings may be indefinitely long, up to several years.
42. The Constitutional Court recognised that in certain circumstances the current system of supervisory review could be in breach of the legal certainty principle. However, the Constitutional Court explicitly refrained from declaring the provisions of the CCivP unconstitutional. Instead, the Constitutional Court recommended the legislator to amend the relevant provision so to exclude possible breaches of the legal certainty principle.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60662
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF GOCER v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 9. The applicants were born in 1952 and 1956 respectively. They are a married couple and live in Karaman (Turkey).
10. In 1974, the first applicant moved from Turkey to the Netherlands where he was employed as a dockworker until 24 September 1984, when he stopped working on account of certain mental problems apparently related to his difficulties in coping with the death of his first wife in 1981.
11. After having received sickness benefits for the maximum period, he was granted combined disability benefits as from 21 September 1985 under the General Labour Disablement Benefits Act (Algemene Arbeids-ongeschiktheidswet; “AAW”) and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering; “WAO”) in a decision of 23 September 1985 and on the basis of a finding of being 80-100% incapacitated for work.
12. At an unspecified date in 1986, the applicants and their family returned permanently to Turkey, retaining the first applicant's right to AAW/WAO benefits.
13. In its decision of 3 November 1993, on the basis of medical examinations of the first applicant carried out on 3 August 1993 by an orthopaedic surgeon, and on 4 August 1993 by a social insurance medical specialist and a psychiatrist, the National Institute for Social Insurance (Landelijk instituut sociale verzekeringen; “LISV”) withdrew the first applicant's AAW/WAO benefits as from 14 April 1994, on the basis of a finding that his incapacity for work had diminished to less than 25% for the purposes of the AAW and to less than 15% for the purposes of the WAO.
14. On 30 November 1993, the first applicant filed an appeal against this decision with the Hague Regional Court (arrondissementsrechtbank). On 23 December 1994, the Regional Court requested the first applicant to submit updated information about his medical condition and the names of the doctors who were treating him.
15. Following a hearing held on 12 July 1995, the Hague Regional Court rejected this appeal on 16 August 1995. The first applicant filed a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep).
16. The first applicant's lawyer submitted the written grounds for appeal to the Central Appeals Tribunal on 22 September 1995. On 2 October 1995 the Central Appeals Tribunal confirmed receipt of the appeal and, on 14 November 1995, informed the first applicant's lawyer that, due to its heavy workload, it would take some time before the first applicant's appeal could be heard. The LISV submitted its response to the first applicant's grounds of appeal on 13 December 1995.
17. On 8 April 1996, the first applicant's case was added to the Central Appeal Tribunal's list of cases awaiting preparation for a hearing. On 12 June 1997, it was submitted to the presiding judge of the relevant section of the Central Appeals Tribunal for entry on the case-list. On 16 October 1997, the parties were informed that a hearing had been scheduled for 26 November 1997.
18. On 26 November 1997, a hearing was held before the Central Appeals Tribunal. At the beginning of this hearing the first applicant's lawyer, referring to the conclusion reached by the European Commission of Human Rights that there had been a violation of Article 6 § 1 of the Convention on account of the duration of similar proceedings in the case of Düman v. the Netherlands (application no. 18266/91, Commission's report of 5 April 1995, unreported), stated to find it incomprehensible that it should take more than four years before the first applicant's case was examined before the Appeals Tribunal. After having noted the parties' submissions and in accordance with a request of the first applicant's lawyer to this effect, the Tribunal suspended the hearing and ordered a reopening of the investigation into the first applicant's capacity for work, finding that this investigation had been incomplete.
19. By letters of 10 and 17 February 1998, the President of the Central Appeals Tribunal put a number of questions to the psychiatrist Dr A.K. who had examined the first applicant on 4 August 1993 upon the request of the former Joint Medical Examination Service (Gemeenschappelijke Medische Dienst). Dr A.K. submitted his reply in the form of a report on 5 March 1998. Both the LISV and the first applicant availed themselves of the opportunity to submit comments on this report. The LISV submitted comments on 6 April 1998 and the first applicant on 14 April 1998.
20. By letter of 13 May 1998, the Central Appeals Tribunal put additional questions to Dr A.K., who replied on 7 July 1998.
21. On 14 October 1998, the Central Appeals Tribunal informed the parties that a second hearing had been scheduled for 18 November 1998. The first applicant's lawyer filed further written submissions to the Central Appeals Tribunal on 4 November 1998.
22. On 18 November 1998, a second hearing was held before the Central Appeals Tribunal in the course of which the first applicant complained that, given the duration of the proceedings, the reasonable time requirement under Article 6 § 1 of the Convention had not been respected.
23. In its decision of 16 December 1998, the Central Appeals Tribunal rejected the first applicant's appeal and upheld the decision of 16 August 1995. It agreed with the LISV and the Regional Court that, as regards the first applicant, there were no somatic limitations such that he should be considered as being unfit to resume his work of dock worker, i.e. the work that he had done before he was declared incapacitated. As to the question whether there were limitations of a psychiatric nature, the Central Appeals Tribunal accepted that the first applicant was suffering from a psychiatric disorder entailing mainly minor limitations in his social functioning. However, given the nature of the first applicant's work, it held that this disorder was not of such nature or gravity that, on that ground, he should be regarded as being unfit for that kind of work.
24. As to the first applicant's complaint that his rights under Article 6 § 1 of the Convention had been disrespected in that the proceedings before the Central Appeals Tribunal had exceeded a reasonable time, the Central Appeals Tribunal held that a failure to respect the reasonable time requirement under this provision cannot result in granting social security claims that are not in accordance with the applicable statutory rules and that a claim for compensation for alleged damages suffered as a result of a failure to respect this requirement under Article 6 § 1 of the Convention should be filed with the civil judge.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85634
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GALLACHER 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 Edward Gallacher, is a British national who was born in 1939 and lives in Bedfordshire. 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 13 May 2000. They had no children from the marriage. On 8 July 2000 the applicant applied for widows’ benefits. On 17 July 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant contacted the Benefits Agency on 23 July and was told that he would receive no further correspondence on the matter. 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 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: 001-97259
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MARCHITAN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Mr Georghe Marchitan and Mrs Anastasia Marchitan, are Moldovan nationals who were born in 1948 and 1950 respectively and live in Coscalia. They are represented before the Court by Mr V. Iordachi, a lawyer practising in Chisinau.
The applicants’ son Eugen Marchitan was born in 1983. On 23 March 2004 he was remanded in custody by the Aschaffenburg Police on the suspicion of burglary. He was transferred to the Aschaffenburg prison where he was placed in a single cell. The next morning, at 6.18 a.m., he was found dead in his cell, strangled with his shoelaces.
Following a police investigation, in which neither the applicants nor apparently the Moldovan consular authorities were involved, the German authorities concluded on the basis of a post-mortem that the applicants’ son had committed suicide and discontinued the criminal investigation into his death. On 26 May 2004 the German authorities informed the Moldovan consular authorities in a note verbale about the outcome of the proceedings.
On 11 July 2005 counsel for the applicants requested that the criminal investigation into their son’s death be reopened.
On 22 September 2005 the Aschaffenburg Public Prosecutor refused on the grounds that the applicants had not identified a specific suspect responsible for their son’s death.
Upon counsel’s motion for reconsideration the criminal proceedings against an unidentified suspect were reopened and, on 12 January 2006, again discontinued.
On 28 April 2006 the Bamberg Prosecutor General refused the applicants’ request to order that the investigation be reopened.
On 14 August 2006 the Bamberg Court of Appeal dismissed as inadmissible the applicants’ request for a decision concerning the discontinuance of the criminal investigation into their son’s death. The Court of Appeal held that the applicants had failed to name an individual suspect in respect of the alleged manslaughter as required by the relevant provisions of the Code of Criminal Procedure and noted as “merely supplementary” that the applicants had failed to provide all the facts and pieces of evidence as required by law (compare “Relevant domestic law and practice” below). The decision was served on the applicants’ German counsel on 21 November 2006.
If a criminal investigation offers sufficient reasons for preferring public charges, the Public Prosecutor shall prefer them by submitting a bill of indictment to the competent court (Article 170(1) of the Code of Criminal Procedure). In all other cases the Public Prosecutor shall terminate the proceedings (Article 170(2) of the Code of Criminal Procedure).
An aggrieved party may not prefer public charges concerning felonies and serious misdemeanours. If the Public Prosecutor orders a criminal investigation to be discontinued the aggrieved party may, however, complain to the Prosecutor General within two weeks (Article 172(1) of the Code of Criminal Procedure). If the Prosecutor General dismisses the complaint, the aggrieved party may apply for a decision of the Court of Appeal ordering the Public Prosecutor to prefer charges (Article 175 of the Code of Criminal Procedure) by a bill of indictment that must include the indicted person, the criminal offence with which the person is charged, the time and place of its commission, its elements of crime and the statutory elements which are to applied (Article 200(1) of the Code of Criminal Procedure). The application for such a decision by the Court of Appeal must contain all the information in a comprehensive manner needed by the Court of Appeal to assess whether criminal charges ought to be preferred. The Court of Appeal decides on the basis of the application without consulting the investigation file.
According to the case-law of the Courts of Appeal an application that the Public Prosecutor be ordered to prefer public charges must contain the name of a specific suspect. Only exceptionally may the Public Prosecutor be ordered to open criminal proceedings against unknown persons (see Zweibrücken Court of Appeal, no. 1 Ws 424/79, 5 February 1980).
Article 1 § 1 of the Basic Law reads as follows:
“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
Article 2(2), in so far as relevant, provides that every person shall have the right to life and physical integrity.
The Federal Constitutional Court has, inter alia, jurisdiction to hear constitutional complaints, which may be filed by any person alleging that one of his basic rights has been infringed by a public authority (Article 93(1) (4a) of the Basic Law, and Article 90(1) of the Act on the Federal Constitutional Court).
A constitutional complaint is, as far as relevant here, only admissible after the exhaustion of all other legal remedies (Article 90(2) of the Federal Constitutional Court Act). The complaints before the Federal Constitutional Court must therefore have been presented – at least in substance – to the relevant courts in conformity with the applicable formal requirements.
The Federal Constitutional Court has on several occasions quashed decisions of Courts of Appeal dismissing applications that criminal proceedings be continued on the grounds that a too formalistic handling of the admissibility criteria had resulted in a violation of the applicants’ right of access to a court (see Federal Constitutional Court, no. 2 BvR 877/89, decision of 16 April 1992; no. 2 BvR 1201/98, decision of 18 February 1999; no. 2 BvR 1339/98, decision of 29 November 1999; no. 2 BvR 1659/01, decision of 6 June 2003; no. 2 BvR 967/07, decision of 4 September 2008).


ITEMID: 001-23650
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: STEWART v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Andrew A. Stewart, is a United Kingdom national, who was born in 1939 and is currently detained in HM Prison Garth. He was represented before the Court by Mr G. Rushton, a lawyer practising in Manchester.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 December 1979, the applicant was convicted of murder, a premeditated offence described by the trial judge as “brutal and savage”. The applicant had a number of previous convictions including assault, actual bodily harm and grievous bodily harm. He was sentenced to a mandatory term of life imprisonment. The pre-trial medical report found that his traits fitted into the definition of psychopathic disorder and that he thus had a serious personality disorder. In view of his age, then 40, it was not considered that the applicant require, or would benefit from, any medical treatment. The trial judge advised the Home Secretary that “the applicant is and will be for a long time dangerous, if at large” and recommended a tariff (the minimum period of detention needed to satisfy the requirements of retribution and deterrence) of twenty years, having regard inter alia to his history of violence, the premeditated, if random, nature of the murder, the brutal character of the murder and the applicant’s lack of remorse. The Home Secretary accepted the recommendation and fixed the tariff to expire on 25 July 1999.
Whilst in prison, the applicant received 31 adverse adjudications including one assault of a prison officer, two assaults on other prisoners, four instances of abusive conduct and seven drug offences.
The release review procedure commenced three years before the expiry of the applicant’s tariff. The Parole Board decided against any move to open conditions for release preparation and recommended a review in two years’ time. By letter dated 6 January 1997, the Secretary of State informed the applicant that the Parole Board had not recommended his release for the following reasons:
“...Until [the applicant] changes his attitude to his offending behaviour he will remain as a high risk to the public. The Panel is concerned by his continued lack of remorse for any of the victims of his violent offences and by the fact that at present he has made no positive effort to understand the causes and consequences of his violent offending. Consequently there has been no progress in his doing so. The Panel notes that he now admits that his personality and his attitudes are problem areas and that he has shown his willingness to address these. In particular he needs to do work on violence and anger control and his attitudes to women, so as to reduce the risk of his re-offending. ...”
The next Parole Board review was set to begin in December 1998.
On 26 March 1999, the Parole Board reviewed the applicant’s case and recommended that the applicant was “clearly unsuitable” for release or move to open prison. By letter dated 22 April 1999, the applicant was informed by the Home Secretary of the reasons:
“...[the applicant’s] index offence, past criminal record taken in conjunction with his current attitude to offending, lack of empathy, refusal to participate in relevant offending behaviour courses and a recent positive mandatory drug test makes him clearly unsuitable for release or open conditions. Unless [the applicant] participates in and successfully completes the relevant courses to understand the causes and consequences of his offending and shows sustained improvement in his attitude and behaviour, he cannot be considered as an acceptable risk for the progressive move to open conditions. [The applicant’s] co-operation with Psychologist and Psychiatrist is essential in terms of assessing his future risk. The extensive range of work required to reduce his risk will take time, hence his next review should be scheduled for two years.”
On 15 March 2002, the Parole Board conducted its third review of the applicant’s case. It again concluded that the applicant was not ready for release or move to open conditions, recommending that he remain in closed conditions and that his case be reviewed two years later. By letter dated 4 April 2002, the Home Secretary accepted the recommendation:
“Until relatively recently [the applicant] has refused to participate in any offending behaviour programmes. However reports prepared in January of last year indicated that he was willing to attend anger management, an R & R course and courses in relationships and personal development but he has not yet participated in such courses and subsequently refused to be interviewed by the prison psychologist. Throughout his sentence [the applicant] has demonstrated no remorse for the index and previous offences, and the panel therefore considers his risk is not yet low enough for open conditions.”
The next review was set for March 2004.
On 7 June 2002, the Sentence Planning Board met to review the applicant’s progress in sentence planning targets over the past twelve months and to agree targets for the next twelve months. It noted that the applicant had indicated a willingness to participate in an anger management course but had not embarked on one because no such course was then being offered at his prison. It also stated that he had also indicated a willingness to participate in a Reasoning and Rehabilitation course but was still awaiting assessment for entry onto the course. It also further noted that in April 2001 he had completed courses in assertiveness and decision making, relationships and money management. Prison and probation officers both reported good behaviour and the Board stated that during the last reporting period, there had been no displays of any of the risk factors earlier identified as obstacles to the release of the applicant.
The Government stated that the Board’s report was not wholly accurate. In early 2001, the applicant had in fact attended classes in two elements of “Social and Life Skills” course, including elements of improving assertiveness and decision-making and healthy living. He did not attend any classes in relationships. Meanwhile, they explained that in November 2001, the applicant’s prison offered the Reasoning and Rehabilitation course for the first time. The applicant did not apply. The course ran again in February 2002 but the prisoners who had previously applied unsuccessfully were given priority. The applicant was referred by his personal prison officer for the course in September 2002 but rejected the opportunity, stating at the assessment interview that he had no interest in, or need for, such a course. When he was nonetheless allocated a place on the course, he missed the first session due to a family visit and then, according to the Government, failed to respond to repeated invitations to start the course on 17 February 2003. The applicant stated that he could not attend this course due to illness but that he started this course in August 2003.
In April 2003, the prison psychologist explained to the applicant that he was no longer considered suitable to attend the anger management course as he did not meet the assessment criteria (namely, recent angry or aggressive behaviour). The applicant states that this course nonetheless remains on his sentence plan.
The legislation which governed sentencing and release on licence at the time when the applicant was sentenced was the Criminal Justice Act 1991 (“the 1991 Act”). The provisions of this Act were subsequently replaced by the Crime (Sentences) Act 1997 from 1 October 1997.
At the relevant time, the 1991 Act provided in section 35(2):
“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the tariff (see, for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 WLR 135; R. v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AER 576).
Once the tariff period has expired, periodic reviews are conducted by the Parole Board to determine whether the prisoner meets the criteria for a recommendation of release on life licence to be made to the Secretary of State. According to section 29(1) of the 1997 Act, the final decision on release rests with the Secretary of State. If release is not recommended, the Parole Board sets the date for the next review. It is open to the Secretary of State to bring forward the date of the next review where a prisoner shows unexpectedly rapid progress. However, a prisoner cannot himself apply for a review during the interval set by the Parole Board.
Section 6(1) of the Act provides:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”


ITEMID: 001-61423
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF GANCI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 9. The applicant is an Italian national who was born in 1958. He was in Spoleto Prison when he lodged his application.
Among other measures, he was held in pre-trial detention for his involvement in the murder of Judge Falcone and his escort on 26 September 1997. He was subsequently sentenced to life imprisonment by the Caltanissetta Assize Court. On 12 November 1997 he was given a second life sentence, on other charges, by the Palermo Assize Court. That sentence became final on 26 November 1999.
10. After his arrest on 4 June 1993 the applicant was placed under the special prison regime provided for in section 41 bis of the Prison Administration Act, which derogates from the conditions for ordinary detention laid down in the Act.
Between 13 November 1996 and 31 December 2000 the Minister of Justice issued nine decrees, each introducing restrictions for the following six-month periods: 13 November 1996 to 13 May 1997 (decree no. 1); 13 May 1997 to 13 November 1997 (decree no. 2); 14 November 1997 to 14 May 1998 (decree no. 3); 15 May 1998 to 15 November 1998 (decree no. 4); 12 November 1998 to 12 May 1999 (decree no. 5); 11 May 1999 to 11 November 1999 (decree no. 6); 8 November 1999 to 31 December 1999 (decree no. 7); 28 December 1999 to 28 June 2000 (decree no. 8); and 23 June 2000 to 31 December 2000 (decree no. 9).
The applicant indicated that he had remained under the same regime for the period following 31 December 2000, but did not provide any precise details.
11. Decrees nos. 2 to 9 were not formal extensions of the previous decree, but fresh decisions that nonetheless reiterated the earlier decision.
12. By virtue of the nine decrees, the following restrictions were imposed on the applicant:
(a) limits on visits by family members, with a maximum of one visit for one hour per month;
(b) no meetings with third parties;
(c) prohibition on using the telephone, except for one call – to be recorded – per month to members of the family if the applicant had not had a visit;
(d) prohibition on receiving or sending out sums of money in excess of a specified amount, except for defence costs or fines;
(e) no more than two parcels of laundry per month;
(f) no organisation of cultural, recreational or sports activities;
(g) no right to vote in elections for prisoners' representatives or to be elected as a representative;
(h) no handicrafts;
(i) no more than two hours per day to be spent outdoors.
13. The applicant appealed against those decrees to the court responsible for the execution of sentences. The parties submitted the factual information set out below.
Decree no. 1 – The applicant appealed on 2 January 1997. The Palermo court responsible for the execution of sentences held a hearing on 11 March 1997. In an order of 11 March 1997, deposited with the registry on 15 March 1997, the court declared the appeal inadmissible in accordance with the restrictive case-law followed at the time to the effect that the court hearing the case did not have power to examine the merits of the restrictions imposed.
Decree no. 2 – In an order of 29 July 1997, deposited with the registry on 31 July 1997, the Florence court responsible for the execution of sentences declared inoperative the restrictions referred to in (a), (e) and (f) of the above list.
Decree no. 3 – On an unknown date the applicant appealed to the Bologna court responsible for the execution of sentences. The court held a hearing on 27 January 1998 and dismissed the appeal in an order of the same day, which was deposited with the registry on 30 January 1998.
Decree no. 4 – The applicant appealed on 19 May 1998. On 10 October 1998 the Perugia court responsible for the execution of sentences set the case down for hearing on 12 November 1998. On 30 March 1999 the President of the court declared the appeal inadmissible. He noted that the period of validity of the decree had expired and that the applicant accordingly no longer had any interest in having it examined.
Decree no. 5 – The applicant did not appeal against this decree.
Decree no. 6 – The applicant appealed on 14 May 1999. On 9 June 1999 the rehabilitation unit of Spoleto Prison confirmed a report that had previously been made in connection with another appeal. In a request of 21 September 1999 sent to the Perugia court responsible for the execution of sentences, the applicant's lawyer asked for the appeal to be heard. On 4 December 1999 the President of the court declared the appeal inadmissible. He noted that the period of validity of the decree had expired and that the applicant accordingly no longer had any interest in having it examined.
Decree no. 7 – The applicant appealed on 12 November 1999. On 12 February 2000 the President of the Perugia court responsible for the execution of sentences declared the appeal inadmissible. He noted that the period of validity of the decree had expired and that the applicant accordingly no longer had any interest in having it examined.
Decree no. 8 – On 28 March 2000 the President of the Perugia court responsible for the execution of sentences granted the applicant legal aid. On 10 April 2000 he set the case down for hearing on 4 May 2000. In an order of the same date, deposited with the registry on 8 May, the court allowed the appeal regarding the restriction on the applicant's right to receive parcels and dismissed the remainder.
Decree no. 9 – The applicant appealed on 28 June 2000. On 8 January 2001 the President of the Perugia court responsible for the execution of sentences declared it inadmissible on the ground that the applicant no longer had any interest in having it examined since the period of validity of the decree had expired on 31 December 2000.
14. Section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975), as amended by Law no. 356 of 7 August 1992, gives the Minister of Justice the power to suspend application of the ordinary prison regime as laid down in Law no. 354 of 1975 in whole or in part, by means of a reasoned decision that is subject to judicial review, on grounds of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements.
Such a measure can only be applied to prisoners charged with, or sentenced for, the offences mentioned in section 4 bis of the Act, which includes offences relating to Mafia activities.
15. Section 41 bis was enacted as a temporary provision. Its applicability was extended several times, until 31 December 2002 (Law no. 4 of 19 January 2001). Law no. 279 of 23 December 2002 made it into a permanent provision.
16. Section 41 bis does not contain a list of the restrictions that may be imposed. These must be determined by the Minister of Justice.
17. Under section 14 ter of the Prison Administration Act, an appeal (reclamo) lies to the court responsible for the execution of sentences against a decree of the Minister of Justice imposing the special regime. The appeal must be lodged within ten days from the date on which the person concerned has been served with the decree. It does not have suspensive effect. Paragraph 2 bis of section 41 bis, introduced by Law no. 11 of 7 January 1998, lays down the rules regarding territorial jurisdiction. It provides:
“The court responsible for the execution of sentences that has jurisdiction for the prison in which the prisoner, detainee or defendant is being held has power to adjudicate appeals against decrees of the Minister of Justice issued under paragraph 2. That power shall not change, even in the event of removal for one of the reasons listed in section 42.”
The court must make a decision within ten days. An appeal to the Court of Cassation lies against the decision of the court responsible for the execution of sentences.
18. Section 35 of the aforementioned Act (Law no. 354 of 1975) governs the right of appeal of prisoners.
In judgment no. 26 of 11 February 1999, the Constitutional Court found that, regarding restrictions on rights guaranteed by the Constitution, this section was unconstitutional in so far as it did not provide for judicial protection against the restrictions imposed on prisoners. Since it could not indicate which legal avenue was available to prisoners, the Constitutional Court asked the legislature to remedy the situation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1