ITEMID: 001-98760
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PLEPI v. ALBANIA AND GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Giovanni Bonello;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Vezir Plepi, Mrs Fersilet Plepi and Ms Miaftoni Zeka are Albanian nationals who were born in 1957, 1962 and 1969 respectively and are currently serving prison sentences in Greece. The first and second applicants are married and the third applicant is the sister of the second applicant. The couple's children have lived in Albania since the applicants were arrested in Greece. The applicants are represented before the Court by Ms A. Stavri, a lawyer practising in Athens.
The Albanian Government were represented by their then Agent, Ms S. Meneri. The Greek Government were represented by their Agent, Mr K. Bakalis, President of the Legal Council of the State.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date in 1998 the applicants were arrested in Greece.
On 8 September 1998 the applicants were charged by the Greek authorities with illegally entering Greek territory, setting up and participating in a criminal organisation and drug trafficking.
On 9 December 1999 the Athens Court of Appeal, sitting as a first-instance court with a bench of three judges, found the applicants guilty and sentenced them to life imprisonment and to the payment of a fine that amounted to 10 million drachmas.
On an unspecified date in 2000, since their minor children and family were living in Albania, the applicants lodged a request with the Greek Ministry of Justice pursuant to a 1993 Bilateral Agreement between Albania and Greece on the transfer of sentenced persons (“the Bilateral Agreement”), seeking to serve their prison sentence in an Albanian prison. According to the applicants, in order to fulfil the requirements for their transfer to Albania they waived their right to appeal against the judgment that had led to their conviction.
On 7 April and 4 May 2000 the Greek Ministry of Justice requested the Albanian authorities to initiate proceedings for the transfer of the applicants to Albania. The standard text of the requests, in so far as relevant, read as follows:
“I. We hereby inform you that [the name of the applicant], an Albanian national serving a sentence in [the name of prison], has requested to be transferred to Albania to serve the remainder of the sentence.
II. The Greek Party has no objection to the transfer of the sentenced person.
III. The following documents have been annexed for your information:
The application form of the sentenced person requesting the transfer.
Copies of the minutes and judgment of the Athens Court of Appeal of 9 December 1999.
Copies of the applicant's waiver of the right to appeal against the above-mentioned judgment.
...”
On an unspecified date, the Greek Ministry of Justice requested the Albanian Ministry of Justice, under Article 6 of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention”), to provide them with information about the legal consequences of the transfer of sentenced persons under that country's criminal law.
Pursuant to the procedure provided for by the Transfer Convention and the Bilateral Agreement, it would appear that on 24 October 2000 the Albanian General Prosecutor initiated proceedings in the Lushnjë District Court for the validation and enforcement in Albania of the judgment given by the Athens Court of Appeal.
On 15 November 2000 the Lushnjë District Court, relying on the Transfer Convention and the Bilateral Agreement, considered that the sentences imposed by the Greek court were compatible with Albanian criminal law and found that the applicants should serve the following sentences in Albania: twenty years' imprisonment for the first applicant and eighteen years' imprisonment for the second and third applicants, in accordance with Articles 283 and 297 of the Criminal Code. Lastly, the court ordered that the applicants should pay the costs of the proceedings. The judgment became final on 27 November 2000.
It appears that on 6 April 2001 the Albanian Ministry of Justice informed its Greek counterparts that there existed the possibility of conditional release for the applicants after serving half of their sentence, provided that they had displayed good behaviour in prison. Consequently, on 8 June 2001 the Greek Ministry of Justice informed the applicants and the Albanian Ministry of Justice of its refusal to transfer the applicants on the ground that the sentences commuted by the Albanian court were inferior to those imposed by the Greek court and thus incompatible with the gravity of their offence and with the short time they had spent in Greek prisons.
In 2003 and 2004 the applicants unsuccessfully requested that the Greek authorities transfer them to Albania in accordance with the transfer procedure.
It would appear that on 25 February 2003 the second and third applicants sought leave to appeal out of time against the sentence of 9 December 1999. On 8 June 2005 the Court of Cassation (Areios Pagos) dismissed the appeals against the judgment that had led to their conviction as being time-barred.
On unspecified dates the applicants requested that the Albanian Ministry of Justice enforce the judgment of the Lushnjë District Court that had converted their Greek sentence and proceed with their transfer to Albania.
On 29 December 2005 the Albanian Ministry of Justice informed the applicants' family, without giving reasons, that the procedure for their transfer to Albania had been stayed.
On 3 February 2006 the prosecutor at the Lushnjë District Court informed the applicants' family of the refusal of the Greek Ministry of Justice to transfer the applicants to Albania.
It appears that in 2009 the applicants unsuccessfully requested that the Greek authorities transfer them to Albania in accordance with the transfer procedure.
Article 5 of the Constitution provides that the Republic of Albania applies international law that is binding upon it.
Article 64, as in force at the material time, stated that a prisoner could be conditionally released after serving half of the sentence, provided that his good behaviour and work had achieved the goal of educating him.
Article 283, as in force at the material time, provided that the organisation and initiation of narcotics trafficking was punishable by a maximum sentence of twenty years' imprisonment.
Article 297, as in force at the material time, provided that unlawful crossing of the border was punishable by a maximum sentence of two years' imprisonment.
Article 105 of the Greek Criminal Code provides for the conditional release of a life prisoner, after having served at least 20 years' imprisonment.
The 1993 Bilateral Agreement was adopted at a time when Albania was not a Contracting Party to the Transfer Convention and in many parts reflects the content of that instrument. It entered into force in respect of Albania on 29 October 1993. The preamble to the Agreement reads “the Republic of Albania and the Hellenic Republic, desirous of further developing cooperation in the field of criminal law, have agreed to conclude an Agreement for the Transfer of Sentenced Persons (...).”
Article 2 states that “both countries undertake to mutually assist with the transfer of sentenced persons in accordance with the provisions of this Agreement.” Quite unlike the Transfer Convention, Article 3 of the 1993 Bilateral Agreement provides that the sentenced person may also request his transfer, in addition to the sentencing State or the administering State.
Under Articles 4 and 8, a sentenced person may be transferred if the following conditions are met: (a) the criminal offence is punishable by the criminal law of the sentencing and the administering State; (b) the sentencing judgment is final; (c) the sentenced person is of sound mind; (d) the sentenced person still has at least one year of the sentence to serve; and (e) the sentenced person has given his consent to the transfer.
Articles 6 and 7 provide for the grounds on which the transfer may be refused, for example if the sentenced person has not satisfied his obligations in terms of cash, fees, expenses or other penalties to which he is liable, and, if the maximum punishment imposed by the administering State is much lower than the one imposed by the sentencing State.
The Transfer Convention entered into force in respect of Albania on 1 August 2000 and in respect of Greece on 1 April 1988. The Additional Protocol has not been signed or ratified to date by Albania and has been in force in respect of Greece from 1 January 2006.
The Preamble to the Transfer Convention, in so far as relevant, reads:
“...Desirous of further developing international co-operation in the field of criminal law;
Considering that such co-operation should further the ends of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; ...”
The relevant provisions of the Transfer Convention read as follows:
“A sentenced person may be transferred under this Convention only on the following conditions:
a. if that person is a national of the administering State;
b. if the judgment is final;
c. if, at the time of receipt of the request for transfer, the sentenced person still has at least six months of the sentence to serve or if the sentence is indeterminate;
d. if the transfer is consented to by the sentenced person or, where in view of his age or his physical or mental condition one of the two States considers it necessary, by the sentenced person's legal representative;
e. if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and
f. if the sentencing and administering States agree to the transfer.”
“...
2. If a transfer is requested, the sentencing State shall provide the following documents to the administering State, unless either State has already indicated that it will not agree to the transfer:
a. a certified copy of the judgment and the law on which it is based;
b. a statement indicating how much of the sentence has already been served, including information on any pre-trial detention, remission, and any other factor relevant to the enforcement of the sentence;
c. a declaration containing the consent to the transfer as referred to in Article 3.1.d; and
d. whenever appropriate, any medical or social reports on the sentenced person, information about his treatment in the sentencing State, and any recommendation for his further treatment in the administering State.”
“1. The competent authorities of the administering State shall:
a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
c. shall deduct the full period of deprivation of liberty served by the sentenced person; and
d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
“...
2. If two or more Parties have already concluded an agreement or treaty on the transfer of sentenced persons or otherwise have established their relations in this matter, or should they in future do so, they shall be entitled to apply that agreement or treaty or to regulate those relations accordingly, in lieu of the present Convention.”
“The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of its application.”
Paragraph 10 of its explanatory report states that “the Convention confines itself to providing the procedural framework for transfers. It does not contain an obligation on Contracting States to comply with a request for transfer; for that reason, it was not necessary to list any grounds for refusal, or to require the requested State to give reasons for its refusal to agree to a requested transfer”.


ITEMID: 001-108216
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF BURYAK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: André Potocki;Ganna Yudkivska;Mark Villiger
TEXT: 4. The applicant was born in 1982 and lives in the Kyiv Region.
5. On 14 July 1999, in the presence of others, the applicant shot Mr P. who eventually died in a hospital.
6. On 15 July 1999 the police started criminal investigations into the event.
7. On 19 July 1999 the applicant was accused of inflicting bodily injuries; on the same day he gave an undertaking not to abscond.
8. On 15 October 1999 the police also instituted criminal proceedings against the applicant on suspicion of unlawful possession of arms.
9. On 20 October 1999 the police changed the legal qualification of the applicant’s actions and accused him of murder.
10. On 24 October 1999 the police accused the applicant of murder and unlawful possession of arms.
11. On 29 October 1999 the police submitted the criminal case to the Kyevo-Svyatoshynskyy District Court for trial.
12. On 29 February 2000 the court convicted the applicant of premeditated murder committed in the state of extreme emotional disturbance and sentenced him to three years and six months’ imprisonment.
13. On 12 April 2000 the Kyiv Regional Court upheld that judgment, which thus became final.
14. On 6 September 2000 the prosecutor lodged a protest against the decisions in the case. On 12 October 2000 the Presidium of the Kyiv Regional Court rejected the protest.
15. On 6 January 2001 the Deputy Prosecutor General lodged a new protest.
16. On 25 January 2001 the Supreme Court found that the lower court had not duly established the motive of the crime, quashed the decisions in the case and remitted it to the prosecutors for additional investigations.
17. On 12 July 2001 the investigations were completed and on 19 July 2001 the case was submitted to the Kyevo-Svyatoshynskyy Court for trial.
18. On 12 December 2001 the court convicted the applicant of premeditated murder and sentenced him to seven years’ imprisonment.
19. On 10 April 2002 the Kyiv Regional Court of Appeal changed that judgment. On 17 September 2002 the Supreme Court found that the court of appeal had not duly established the motive of the crime and remitted the case to that court for fresh consideration.
20. On 6 November 2002 the Court of Appeal, in the applicant’s absence, upheld the judgment of 12 December 2001 with some minor modifications.
21. On 10 June 2003 the Supreme Court quashed the decision of 6 November 2002 as it had been taken in the applicant’s absence and remitted the case to the Court of Appeal for fresh consideration.
22. On 13 August 2003 the Court of Appeal changed the judgment of 12 December 2001 and sentenced the applicant to four years’ imprisonment for murder committed in the state of extreme disturbance. By the same judgment the court amnestied the applicant.
23. On 1 April 2004 the Supreme Court found that the Court of Appeal had not duly established the motive of the crime, quashed this decision and remitted the case for fresh consideration on appeal.
24. On 1 October 2004 the Court of Appeal sentenced the applicant to four years’ imprisonment and changed the judgment of 12 December 2001.
25. On 17 November 2005 the Supreme Court found that the severity of the applicant’s sentence did not correspond to the gravity of the crime, quashed the decision of 1 October 2004 and remitted the case for fresh consideration to the Court of Appeal.
26. On 6 February 2006 the Court of Appeal upheld the judgement of 12 December 2001 with minor modifications.
27. On 6 April 2007 the Supreme Court rejected the appeal in cassation lodged by the applicant’s lawyer.
28. In the course of the proceedings nine forensic examinations were ordered. Four times the applicant was placed in detention after conviction. Subsequently, he was released twice following the annulment of the convictions and twice on specific conditions. There were seven witnesses and a number of experts heard by the courts. The applicant and his lawyer lodged four procedural requests and four appeals against the courts’ judgments and decisions.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111522
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF COMMUNIST PARTY OF RUSSIA AND OTHERS v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. On 3 September 2003 the President of Russia decided that election of members to the State Duma, the lower chamber of the Russian federal parliament, would take place on 7 December 2003. During this election campaign, 23 electoral associations - political parties and electoral blocs - were registered as standing for election in the federal contest. The pro-government forces in the 2003 elections were represented essentially by the United Russia party. The electoral list of United Russia included many high-ranking federal officials and regional governors.
6. The Communist Party and the Yabloko party put forward their lists of candidates. The third applicant ran on the Yabloko ticket. The sixth applicant ran as an independent candidate in a single-mandate electoral district. The eighth applicant ran on the ticket of the political party Soyuz Pravykh Sil (SPS). She also ran in a single-mandate electoral district. All the individual applicants also participated in the 2003 electoral campaign as voters. Although the political platforms of the applicants who participated in the 2003 elections were different, all of them positioned themselves as opposition parties and candidates.
7. The electoral process was administered by the Central Election Commission (the CEC). Similar commissions were created at regional level. The CEC’s role was, inter alia, to examine complaints of candidates or voters about breaches of electoral law, and take the necessary measures to prevent or put an end to such breaches. The CEC was also responsible for counting the votes on election day and announcing the official results of the elections. In September 2003 the CEC created a Working Group on Information Disputes, an advisory body which was supposed to assist in overseeing compliance with the rules on allocation of free airtime, publication of opinion polls and illegal campaigning.
8. The voting was held by secret ballot on 7 December 2003. On 19 December 2003 the CEC officially confirmed the election results by Decree No. 72/620-4. According to the official statistics, 60,712,000 persons voted in the elections. Thus, the level of participation was 55.75 per cent of the registered number of voters. The United Russia party obtained a majority of votes (over 37 per cent) and formed the biggest grouping in Parliament with 224 seats. In the aftermath of the elections 37 Members of Parliament elected on behalf of United Russia renounced their mandates, whilst keeping their official positions, and transferred their seats in the Duma to other candidates on the United Russia list (who otherwise would not have been elected). On 24 December 2003 the CEC approved the forfeiture of 37 mandates obtained by the United Russia candidates in favour of other members of that party.
9. The Communist Party won 12.6 per cent of votes and obtained 52 seats, and accordingly formed the second biggest grouping in the Duma. Yabloko obtained 4.3 per cent of votes. Since this was less than the statutory five per cent minimum threshold, Yabloko did not obtain any seats in parliament. Mr Ryzhkov (the sixth applicant) obtained 35.1 per cent of votes in his district and was elected as an individual MP to the Duma. Mr Ivanenko and Ms Khakamada (the third and eighth applicants) were individual candidates, supported by the Yabloko party and SPS party respectively; they failed to be elected.
10. All the major TV companies in Russia covered the elections. Amongst them were five main nationwide broadcasting companies: Channel One, VGTRK (All-Russia State Television and Radio Broadcasting Company), TV Centre, NTV and REN TV. The first three companies were directly controlled by the State. Thus, the State held more than 50 per cent of shares in Channel One; VGTRK was a federal State unitary enterprise; the Moscow City Administration held ninety per cent of shares in TV Centre. The other two channels (NTV and REN TV) were incorporated as limited companies not owned directly by the State; however, amongst their major shareholders were corporations affiliated with the State.
11. The above five channels had a very large audience and covered all geographical zones. Thus, Channel One covered almost all the territory of Russia, VGTRK 97.4 per cent of the territory, and TV Centre over 70 per cent. The outreach of NTV amounted to 91 per cent coverage of Russian territory. The outreach of REN TV at the relevant time was not specified by the applicants.
12. During the electoral campaign the parties participating in it received a certain amount of free airtime on TV channels for “electoral campaigning”, that is, direct political advertisement. Thus, each State broadcasting company was required to provide the competing candidate parties with one hour of free airtime per working day on each TV or radio channel they controlled. In total, the parties received 160 hours of airtime. Each of them thus received 7.5 hours of free airtime. The time schedule for distribution of free airtime time amongst parties and candidates was defined by the drawing of lots on 4 November 2003. The candidates were supposed to use half that time for “joint campaigning events” (such as debates, for example). They could use the other half as they wished. All the parties used the free airtime provided to them by the broadcasting companies.
13. In addition, parties and candidates could buy a certain amount of paid airtime for campaigning on an equal footing with the others. Broadcasting companies were required to reserve paid airtime for political broadcasting of the candidates. However, the law provided that the amount of time for paid political advertising should not be more than 200 per cent of the amount of free airtime. Furthermore, at regional level all the State-owned regional broadcasting companies also provided free and paid airtime to the candidates according to the same principles as at federal level.
14. According to the Government, the Communist Party of Russia did not buy airtime from the federal broadcasting companies, although it had sufficient financial resources to do so. At the regional level the Communist Party bought airtime only occasionally, in some of the regions. The political party Yabloko bought time from Channel One to show two video clips, each lasting one minute. All parties and candidates also bought printed space in some of the federal print media.
15. Besides “campaigning”, all channels were involved in reporting on the elections in various news items, analytical programmes, talk shows and so on (hereinafter “media coverage”). The applicants maintained that media coverage of the electoral campaign of 2003 by the five TV channels was unfair to opposition parties and candidates, and that in the guise of media coverage these TV channels in fact campaigned for the ruling party, i.e. the United Russia.
16. Before the Court the applicants produced detailed data on the content of major information spots, programmes and shows on the five above-mentioned TV channels during the period of the 2003 electoral campaign. According to the applicants, the airtime spent by the five TV companies was allocated amongst the candidates unevenly. Thus, the Communist Party received 316 minutes and 58 seconds of the airtime. The total amount of airtime allocated to the Yabloko was 197 minutes and 21 second. In contrast, the reporting on the activities and personalities associated with United Russia amounted to 642 minutes and 37 seconds.
17. The applicants also argued that the information disseminated through newscasts and informational and analytical programmes was not neutral for the most part. The amount of “positive” media coverage received by the Communist Party during the election campaign did not exceed 7 minutes and 13 seconds. In addition, some positive coverage was provided through the Communist Party senior members’ participation in the talk shows aired by NTV, which lasted 74 minutes and 45 seconds. In toto positive coverage of the Communist Party amounted to 81 minutes and 58 seconds. Negative coverage of the Communist Party amounted to 331 minutes and 22 seconds; most of such coverage was in the information spots. In contrast, positive media coverage of United Russia amounted to 529 minutes and 9 seconds, whereas “negative” coverage of that party amounted to 6 minutes and 2 seconds. Positive coverage of Yabloko amounted to 209 minutes and 40 seconds. Negative coverage of that party amounted to 8 minutes and 53 seconds. The applicants specified that the two private nationwide channels not directly controlled by the State (NTV and REN TV) provided a more balanced media coverage than the three channels directly controlled by the State (such as Channel One, VGTRK, and TV Centre).
18. The applicants also referred to various episodes of tacit electoral campaigning for United Russia by various high-level Government officials, notably the then President Putin. Thus, on 19 September 2003 Mr Putin attended the congress of United Russia, which was covered by Channel One, VGTRK and NTV. Mr Putin delivered a speech to the delegates of the congress, saying, in particular, the following:
‘‘Your meeting is taking place at a moment which is important for our country, for the electoral campaign has just started. I am not going to hide the fact that I voted for your party four years ago. I believe I was right to do so’’.
19. On 7 December 2003 – election day – when no campaigning is permitted, Channel One, VGTRK, TV Centre, and REN TV broadcast a short interview given by the then President of Russia, Mr Putin, at a voting station:
“Journalist: Who did you vote for?
Mr Putin: I think my answer may be regarded as additional campaigning, so I’d better keep silent. But I think my preferences are well known.”
That phrase was broadcast eight times during the day; the general airtime allocated to showing that interview amounted to 14 minutes and 15 seconds. In addition, all channels disseminated information about the participation of the United Russia leaders in the voting which on that day was broadcast 14 times, the aggregate length amounting to 16 minutes and 38 seconds.
20. After the elections, several international organisations and NGOs made public statements and issued reports in which they criticised the 2003 parliamentary elections for unequal access of the candidates to the media. Thus, on 27 January 2004 the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-Operation in Europe (“OSCE/ODIHR”) published its election observation mission final report, where it noted that “the main countrywide State broadcasters displayed favouritism towards United Russia and, in doing so, failed to meet their legal obligation to provide equal treatment to electoral participants, also a fundamental principle of democratic elections”. The report contained the following passages:
“The State TV channels fully complied with legal provisions on allocation of free airtime for all contestants. All three State-controlled televisions aired regular debates among political parties and blocs, a positive development that helped voters to form opinions of the candidates ... However, outside of the free airtime, the State broadcasters monitored by the [OSCE/ODIHR election observation mission] openly promoted United Russia ... State-funded broadcasters also produced a number of prime time news discrediting [the first applicant political party] ... In comparison, the private broadcasters ... provided more balanced coverage of the campaign with a greater diversity of views ... The print media provided a plurality of views but mainly supported specific political parties or blocs. As such, voters could form an objective view of the campaign only if they read several publications. State-funded newspapers met the legal requirements in regard to free space for each party or bloc, but were biased in the political and campaign coverage in favour of United Russia and against [the first applicant political party]”.
21. In 2004 a Moscow-based research affiliate of international NGO Transparency International published its report on “the abuse of administrative resources” during the 2003 electoral campaign in which it identified 518 instances of such abuse. That report, which was based on independently conducted media monitoring, concluded that “media resources had been systematically misused throughout the campaign on behalf of United Russia”, and that “the monitoring had clearly documented bias in favour of United Russia in terms of the number of biased individual news items broadcast”.
22. On 10 September 2003 Mr Mitrokhin, the then deputy chairperson of the second applicant political party (Yabloko), wrote a complaint to the chairman of the CEC about unfair media coverage of the campaign. In his reply of 29 September 2003 the CEC chairman acknowledged that several television broadcasts and press reports contained elements of unlawful electoral campaigning against that political party.
23. On 23 September 2003 Mr Zyuganov (the leader of the first applicant, the Communist Party) complained to the CEC about Mr Putin’s speech of 19 September 2003 (see paragraph 18 above). On 26 September 2003 the CEC Working Group on Information Disputes examined that complaint and prepared a report; based on that report on 29 September 2003 the CEC chairman wrote a letter to Mr Zyuganov in which he explained that there had been nothing unlawful in that speech. The chairman explained that mass media could report on official statements of public officials and that such media coverage could not be considered as “campaigning”. The position of the CEC chairman was later confirmed by the Supreme Court of Russia in judgments of 16 December 2004 and 7 February 2005. A similar complaint to the prosecuting authorities also failed: on 10 October 2003 the Tverskoy District Prosecutor of Moscow refused to initiate administrative proceedings, referring to the CEC’s conclusion that Mr Putin’s speech had not violated any electoral regulations. The District Prosecutor’s decision was upheld by the Moscow Deputy Prosecutor on 24 November 2003 and by the Deputy Prosecutor General on 11 December 2003.
24. On 16 October 2003 Mr Solovyev (the seventh applicant, in 2003 a non-voting member of the CEC) complained to the CEC and to the Moscow Prosecutor’s Office about a television report by Channel One of 12 October 2003 which had stated that United Russia was “leading [in the elections] having left its competitors far behind” and that the Communist Party was “losing the voters’ support”. In Mr Solovyev’s submission, that report constituted illegal electoral campaigning. On 31 October 2003 the Ostankino District Prosecutor of Moscow refused to institute administrative proceedings in that regard. That decision was upheld by the Moscow Deputy Prosecutor on 28 November 2003.
25. On 22 October 2003 Mr Solovyev complained to the CEC about television programmes broadcast on 7 October 2003 featuring a friendly meeting between the United Russia leader and a well-known singer. The CEC found no elements of electoral campaigning in that broadcast, and the seventh applicant was informed accordingly by a letter from a CEC member dated 5 November 2003.
26. On an unspecified date Mr Zyuganov, Mr Solovyev and several other members of the Communist Party complained about the media coverage of the elections by Channel One and VGTRK period to the Working Group on Information Disputes. On 31 October 2003 the Working Group issued a report noting that VGTRK “had displayed a tendency towards deliberate and systematic dissemination of neutral or positive, or even complimentary, information about the events related to the activities of the United Russia party, while providing mainly negative coverage of the activities of the Communist Party”. As regards Channel One, it found that “Channel One displayed a tendency towards deliberate and systematic dissemination of neutral or positive information about the events related to the activities of United Russia, while providing mainly negative coverage - or news items accompanied by negative comments - of the activities of the Communist Party”. The Working Group called on Channel One and VGTRK to comply with the provisions of the Duma Elections Act, in particular the principle of fair and impartial coverage of the electoral campaign. It also indicated that violations of the election coverage rules established by the Duma Elections Act were punishable under Article 5 § 5 of the Code of Administrative Offences.
27. On 6 November 2003 the CEC sent a letter to Channel One, VGTRK, Ren TV and TV Centre indicating that some of the material broadcast on Channel One and VGTRK displayed a tendency towards dissemination of predominantly positive or, on the contrary, predominantly negative information about the activities of “certain political parties and electoral blocs” standing for election to the Duma, and indicated that the directors of the State broadcasting companies must comply with the provisions of the Duma Elections Act governing election coverage, as interpreted by the Constitutional Court.
28. On an unspecified date Mr Zyuganov complained to the Moscow City Prosecutor’s Office about unfair media coverage. On 14 November 2003 the Moscow Deputy City Prosecutor wrote back informing Mr Zyuganov that the management of the leading nationwide television channel had been reprimanded on account of irregularities committed in the course of publication of the results of the public opinion poll.
29. On 17 November 2003 the seventh applicant lodged a further complaint with the CEC. He relied on the transcripts of programmes broadcast on the leading nationwide television channels between 3 October and 9 November 2003. In response, on 28 November 2003 a CEC member advised the seventh applicant in writing to lodge a claim on grounds of defamation if he so wished. On 1 December 2003 the seventh applicant lodged complaints with the Supreme Court against that letter and the failure of the CEC to take action regarding his complaint of 17 November 2003. Those complaints were ruled inadmissible on 3 and 2 December 2003 respectively. The Supreme Court declined jurisdiction to examine the merits of those complaints.
30. On 25 November 2003 Mr Zyuganov and the seventh applicant again complained to the Working Group about biased media coverage. Having examined transcripts of TV programmes, the Working Group issued on the next day a report in which it noted that the situation had slightly improved since October 2003. After having received the report by the Working Group, the CEC sent a letter to the Ministry of Mass Media. In that letter the CEC noted that the facts revealed by the Working Group did not require any action by way of administrative proceedings; however, the Ministry was asked to start monitoring the content of major information programmes of the five nationwide TV channels.
31. On 2 December 2003 Mr Zyuganov attempted to contact the directors of two leading nationwide television channels directly, but they denied any wrongdoing on their part. He then brought the matter to the attention of the CEC.
32. On 28 September 2004 the applicants lodged a claim with the Supreme Court for invalidation of the results of the 2003 electoral campaign as certified by the CEC’s decision of 19 December 2003 (see paragraph 8 above). The CEC participated in the proceedings as the defendant.
33. In their voluminous submissions, the applicants relied on the results of the monitoring of five nationwide television channels in September – December 2003 which revealed that opposition parties and candidates received much less coverage than United Russia. They further referred to the unlawful electoral campaigning for United Russia by the President. They also complained that the five main nationwide television channels had waged a wave of negative publicity against the first applicant political party. The applicants submitted to the Supreme Court transcripts of all the television programmes, as well as video recordings, numbering 190 videocassettes.
34. The case was tried by the Supreme Court Justice Zaytsev, sitting in a single-judge formation. The first hearing was held on 16 December 2004. Before the start of the trial and at the first several hearings the applicants lodged a number of procedural motions, seeking discovery of new evidence, summoning of additional witnesses and experts, obtaining examination of certain written materials, video recordings etc. According to the applicants, nearly all motions lodged by them were refused by the judge without good reason and/or in breach of the domestic procedural rules. The Government contested that; they stressed that the same judge granted a number of motions introduced by the applicants. Furthermore, according to the applicants, at the first hearing the judge said that by lodging so many motions the applicants tried to protract the proceedings. On four occasions the applicants challenged the judge, but he refused to withdraw from the case.
35. On 16 December 2004 the Supreme Court dismissed the claim. The Supreme Court found no violations of electoral law capable of undermining the genuine will of the voters. The Supreme Court noted, in particular, the following:
“The court is not in a position to accept the arguments of [the applicants] that the information coverage of [the 2003 electoral campaign] was conducted with such egregious violations of electoral law, namely, preferential media coverage of one political party and the candidates put forward by it, that it was not possible to ascertain the genuine will of the voters.
First, electoral law does not provide for any limitations on the number of election-related events organised by the political parties in the course of the electoral campaign; the number of such events depends on the political parties themselves. The only exception is the maximum amount of expenditure, which is the same for all political parties taking part in the electoral campaign and stipulated by law. However, the scope of media coverage of the election-related events of the political parties depends on the number of those events.
Second, [the applicants] do not take into account that the coverage in question was conducted not only by five television channels but also by other mass media, in particular, radio stations and the printed mass media.
Third, according to the [judgment of the Constitutional Court of the Russian Federation of 30 October 2003, see applicable domestic law below], [the constitutional right to seek, receive, transmit, produce and disseminate information freely] shall not be unnecessarily interfered with.
Fourth, the applicants’ arguments that there is an objective link between the amount of information about a political party disseminated by the television channels and the number of voters who voted for this party in the election are based on assumptions and are refuted by their own evidence.
Fifth, having examined the transcripts [submitted by the applicants], the court concludes that the applicants classified the stories [related by the journalists on TV] as information about a certain political party on the basis of their own subjective perceptions, in particular on the basis of their wrongful assumption that all voters undoubtedly know that persons whose activities those stories covered belonged to a particular political party ... The Constitutional Court of the Russian Federation, in its judgment of 30 October 2003, explained that a condition sine qua non of electoral campaigning was dolus specialis, that is, a special intention to persuade the voters to support or undermine a certain candidate or political party ... The Constitutional Court noted that media coverage without that dolus specialis did not constitute electoral campaigning ... The court has examined the transcripts of news and analytical programmes broadcast by five television channels over 13 days within the time-period from 3 September to 7 December 2003. Examination of those materials shows that it is not possible to accept the applicants’ contention that the television channels disseminated materials about candidates and political parties capable of being classified as electoral campaigning in the course of the electoral campaign ... There are likewise no objective data confirming that the television channels had a specific intention to persuade the voters to vote for United Russia while covering the pre-electoral trips of the leaders of that party. The same is true in respect of the television coverage of the speech of President Putin at the [United Russia general meeting in Moscow in September 2009]. The court also considers it necessary to note that, pursuant to section 6 of the State Media Coverage of the Activities of State Bodies Act, State audio-visual media shall include in their daily informational programmes information about statements, communications and press conferences of the President of the Russian Federation as well as other facts about the activities of the federal state bodies which are of public significance. The court disagrees with the applicants’ contention that the President of the Russian Federation conducted unlawful electoral campaigning in support of United Russia.
It follows that there have been no violations of electoral law which would prevent the genuine will of the voters from being ascertained ... [The OSCE/ODIHR election observation mission report] likewise does not contain [information about] those violations ... The applicants’ action for invalidation of the election results cannot therefore be allowed”.
In respect of the episode of 7 December 2003 (reporting on Mr Putin’s voting, see paragraph 19 above) the Supreme Court held as follows:
“... The Supreme Court cannot accept the applicants’ contention that there was unlawful electoral campaigning for United Russia on the part of the President of Russia on election day.
Thus, having examined during the hearing a video recording of the Channel One items reporting on Mr Putin casting his vote in the Duma elections, the Supreme Court has established that the President of Russia refused to tell the journalist who he voted for. He did not mention any political party, which could have been classified as campaigning.
It follows that there have been no violations of electoral law which would prevent the genuine will of the voters in the elections from being ascertained ... and could be a ground for invalidating the CEC’s decision approving the outcome of the ballot ...”
36. The applicants appealed. They argued that the first-instance court had examined only a minor part of the evidence adduced by them, in particular around 5 per cent of transcripts and less than 1.5 per cent of video recordings. According to the applicants, that approach violated the principle of direct examination of evidence. The applicants further disagreed with other findings of the first-instance court.
37. On 7 February 2005 the Supreme Court, sitting as a court of appeal, composed of Justices Fedin, Potapenko and Tolcheyev, dismissed their appeal. The Supreme Court observed, most notably, the following:
“The arguments contained in the grounds of appeal are unpersuasive.
Having examined transcripts for four days (3 and 5 to 7 September 2009) and having heard the parties’ representatives, the [first-instance] court made a decision on the basis of its examination of the evidence adduced. It decided to examine transcripts for the days proposed by the parties [to the proceedings] within the limits defined by the court. This method of examination of evidence did not violate the principle of equality of the parties. It allowed each of them to propose for examination their main transcripts capable of proving clearly, in their view, the violations of electoral law or absence thereof. The court accordingly proceeded to examine transcripts for eight days proposed by the applicants (20 September, 5, 20 and 31 October, 4, 18 and 28 November and 5 December) and for two days proposed by the CEC representatives (27 September and 3 December). Additionally, the court examined the transcript and the videotape of election day, that is, 7 December 2003. Overall, the court examined recordings of five main television channels for 14 days, that is, 13.4 per cent of those submitted.
[Factual] circumstances as established by [the first-instance court] refute the allegations of inequality of the political parties and clear preference for one of them in so far as access to the mass media is concerned”.
The appellate court also agreed with the other findings of the first-instance court.
38. The State Duma is composed of 450 members. At the material time 225 members of the State Duma were elected from the lists of candidates put forward nationwide by the political parties. Those seats were distributed in proportion to the percentage of votes obtained by those political parties which had cleared a threshold of 5 per cent of votes. The remaining 225 seats were contested in “single mandate electoral districts” (one-seat constituencies), on a majority basis in two rounds, with candidates being put forward by the political parties or independently.
39. On 12 June 2002 the Law on basic principles of elections and referendums was enacted (Law no. 67-FZ, the Basic Guarantees Act). It was amended on 27 September 2002 and 23 June 2003. Further, the 2003 elections were governed by the Duma Elections Act of 20 December 2002, amended on 23 June 2003 (Law no. 175-FZ, the Duma Elections Act). Media coverage of elections was also regulated by the Coverage by the State Media of the Activities of State Bodies Act (Federal Law No. 7-FZ of 13 January 1995, the Media Coverage Act). Certain provisions of the law on media coverage of elections were developed in the documents of the CEC, in particular in Decree no. 38/354-4, and interpreted by the Constitutional Court of Russia in its judgment of 30 October 2003 no. 15-P (for more details, see below).
40. Pursuant to section 6 of the Media Coverage Act, the State-owned audio-visual mass media were obliged to disseminate information about the activities of State bodies and officials, in particular reporting on the decisions and acts of the President of the Russian Federation provided for by the Constitution, his declarations and announcements, press conferences and other activities “which are of public significance”.
41. Sections 59 and 60 of the Duma Elections Act proclaimed the principle of equal access of candidates to the media, including the audio-visual media. The law distinguished between “informing” the population in the course of the electoral campaign and “electoral campaigning” (or “agitation”, agitatsiya).
42. “Electoral campaigning” was an activity undertaken with the aim of encouraging voters to vote for or against a certain candidate. Electoral campaigning on television was permissible as from the twenty-eighth day before election day and was to be ceased on the eve of election day.
43. Holders of certain higher public offices (including that of the President of the Russian Federation) and journalists were not allowed to engage in electoral campaigning unless they were formally registered as candidates. In any event it was illegal for them to do so while using the advantages of their official status on pain of administrative fines. The maximum amounts of expenditure were prescribed by law. The fact that an item of information - an article, a video clip and so on - was political campaigning was to be mentioned in the publication, and the source of funding should be indicated.
44. The law enumerated situations which could be characterised as campaigning. They included, inter alia, dissemination of materials in which information about a particular candidate is prevalent and accompanied by positive or negative comments, analysis of the consequences of electing this or that candidate, information about activities of a candidate which were not related to the performance of his official duties, and so on. The law also established a number of requirements of and limitations on the campaigning.
45. The law at the time provided that all candidates and parties had an equal opportunity to obtain a certain amount of free and paid airtime or printed space for their electoral campaigning. The conditions for obtaining airtime were identical for all candidates, and concerned both public and private mass media. Political parties registered at the federal level had a right of equal access to the national mass media, including State TV and radio-broadcasting stations. Individual candidates (affiliated or not to a political party) had similar rights in respect of access to the regional mass media.
46. “Electoral campaigning” was distinguished in the law from “informing”. Informing was mainly the task of the “State authorities, municipal authorities, electoral commissions, media companies, legal entities and individuals” (section 54(1) of the Duma Elections Act, section 45(1) of the Basic Guarantees Act). It had to be objective, factually accurate and should not show preference for any candidate. Informing should consist of giving a neutral account of the progress of the electoral campaign, of the candidates’ profiles, platforms and so on, within the “information slots” (airtime or printed space dedicated to informing). Those “information slots” should not be aligned with the position of any candidate and should not contain comments or value judgments. The mass media had to separate objective information from statements of opinion. At the same time the mass media were free in their editorial policy (section 45(4) of the Basic Guarantees Act) and were allowed to comment on political events and personalities outside the “information slots”.
47. The Constitutional Court of the Russian Federation has ruled that professional journalists are regarded as involved in electoral campaigning only if they do so with special intent to campaign in favour of or against one or more candidates (judgment of 30 October 2003, no. 15-P). Thus, in order to distinguish between campaigning and informing (that is, normal journalistic activity) the courts have to establish whether or not the journalist pursued a specific aim of influencing the voting, dolus specialis. Where there is no such specific aim (the existence of which should be established by the courts), the materials, articles and so on must be considered as “informing”. The Constitutional Court further stressed that, whilst the law required that information slots on TV and radio be neutral, the mass media were not prohibited from expressing their own opinion about candidates or giving comments outside the scope of the information slots.
48. Under the Basic Guarantees Act, the CEC was the central body responsible for organising and overseeing the electoral campaign at the federal level. It was also empowered to consider complaints about breaches of electoral law (section 20 of the Basic Guarantees Act). The CEC was entitled to refer such complaints to the law-enforcement and other official bodies for further consideration and reaction. Decisions of the CEC, taken within its competence, were binding on the lower electoral commissions, federal and regional State bodies, public officials, local authorities, candidates, parties, organisations, and voters. State broadcasting companies were required by law to provide free airtime to the candidates and parties during the elections and were required to give replies to the requests of the electoral commissions within five days of receipt.
49. Section 75 of the Basic Guarantees Act provided that unlawful acts and omissions of the public authorities and officials were amenable to judicial review. It further established rules of jurisdiction on applications for judicial review of acts and omissions of the CEC and regional commissions. The Basic Guarantees Act also provided for an appeal to a higher electoral commission against decisions of the lower electoral commissions. The Supreme Court of the Russian Federation had power to invalidate the results of the federal elections if the violations committed did not permit the genuine will of the voters to be ascertained (sections 75 and 77 of the Basic Guarantees Act).
50. The Code of Administrative Offences (CAO) of 30 December 2001 established sanctions for certain breaches of electoral law, such as the failure by the mass media to comply with the rules of press coverage of the electoral campaign (Article 5 § 5 of the Code), or unlawful electoral campaigning through audio-visual and printed mass media by a candidate (Article 5 § 8). Article 5 § 11 established sanctions for electoral campaigning by persons who, by virtue of their position, were precluded from participating in electoral campaigning. Article 5 § 12 of the Code established sanctions for the unlawful production and dissemination of campaigning materials. Offences provided by the above mentioned provisions of the Code were punishable by fines ranging from 3,000 to 600,000 roubles (RUB), depending on the status of the offender and the seriousness of the violation.
51. The European Commission for Democracy through Law (Venice Commission), at its 51st (Guidelines) and 52nd (Report) sessions on 5-6 July and 18-19 October 2002 adopted the “Code of Good Practice in Electoral Matters”. The Venice Commission distinguished two particular obligations of the authorities in relation to the media coverage of electoral campaigns: on the one hand to arrange for the candidates and/or parties to be accorded a sufficiently balanced amount of airtime and/or advertising space including on state television channels (“the access to the media obligation”) and on the other hand to ensure a “neutral attitude” by state authorities, in particular with regard to the election campaign and coverage by the media, by the publicly owned media (“the neutrality of attitude obligation”) (Explanatory Report to the Code of Good Practice on Electoral Matters, § 2.3). The Venice Commission’s Code of Good Practice in Electoral Matters also recommended the creation of an effective system of electoral appeals, among other things, to complain about non-compliance with the rules of access to the media (§ 3.3).
52. The standards relating to public service broadcasting were further developed by the Committee of Ministers of the Council of Europe in the Appendix to Recommendation no. R (96) 10 on “The Guarantee of the Independence of Public Service Broadcasting” (1996). The Committee of Ministers recommended that “the legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy”. Furthermore, “the legal framework governing public service broadcasting organisations should clearly stipulate that they shall ensure that news programmes fairly present facts and events and encourage the free formation of opinions. The cases in which public service broadcasting organisations may be compelled to broadcast official messages, declarations or communications, or to report on the acts or decisions of public authorities, or to grant airtime to such authorities, should be confined to exceptional circumstances expressly laid down in laws or regulations ...”. Finally, in the Appendix to Recommendation Rec(2000)23 on “The Independence and Functions of Regulatory Authorities for the Broadcasting Sector”, the Committee of Ministers again stressed the importance for States to adopt detailed rules covering the membership and functioning of such regulatory authorities so as to protect against political interference and influence.
53. Recommendation no. R (99) 15 of Committee of Ministers of the Council of Europe on measures concerning media coverage of election campaigns provided that regulatory frameworks in Member States should provide for the obligation of TV broadcasters (both private and public) to cover electoral campaigns in a fair, balanced and impartial manner, in particular, in their news and current affairs programmes, including discussion programmes such as interviews or debates. The Committee of Ministers also recommended the States to examine the advisability of including in their regulatory frameworks provisions whereby free airtime is made available to candidates on public broadcasting services in electoral time, “in a fair and non-discriminatory manner”, and “on the basis of transparent and objective criteria”.
54. The Inter-Parliamentary Council (a body of the Inter-Parliamentary Union based in Geneva), at its 154th session in Paris, on 26 March 1994 adopted the “Declaration on Criteria for Free and Fair Elections”. Pursuant to that Declaration every candidate must have an equal opportunity of access to the media, particularly the mass communications media, in order to put forward their political views (Article 3 § 4). Everyone must have the right to campaign on an equal basis with other political parties, including the party forming the existing government; and to seek, receive and impart information and make an informed choice (Article 3 § 3). The States must ensure non-partisan coverage in State and public-service media and equality of access to such media (Article 4).
NON_VIOLATED_ARTICLES: 13
P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-68922
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF I.D. v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1948 and lives in Rouse.
10. In 1976 the applicant started working for the Cargo Railway Station in Rouse and until 1989 she formally occupied the positions of dormitories supervisor and facilities and social activities coordinator. In fact, throughout this period the applicant was working – under the instructions of her manager – as a typist at the local section of the Bulgarian Communist Party. This scheme had apparently been devised because the staff tables did not provide for a typist position.
11. Accordingly, the applicant's employment agreements and job descriptions did not mention her actual duties, which included mostly typewriting. This arrangement was apparently never called into question by the applicant or her employer.
12. Between 1989 and 1996 the applicant worked as an inspector at the human resources department of the Station.
13. In late December 1995 or in early January 1996 the applicant's employer, acting pursuant to a medical recommendation on the nature of work she was fit to perform, moved her to a different position – internal mail carrier.
14. In 1979 the applicant started experiencing pain in her hands and arms. Initially she was losing the sensitivity in her fingers and could not hold objects. With the passage of time the pain got stronger and her hands started to swell and tremble, especially after long periods of typing.
15. In December 1994 the applicant was examined by the Diagnostic Expert Commission (“the DEC”) at the Rouse Regional Hospital. In a decision of 15 December 1994 the DEC found that the applicant was suffering from vegetative polyneuropathy of the upper limbs, a disease which features on the Table of Occupational Diseases. However, the DEC, relying solely on the applicant's job descriptions, concluded that the positions she had occupied (dormitories supervisor, facilities and social activities coordinator) did not entail increased strain on her upper limbs. Accordingly, it qualified her disease as non-occupational, finding no causal link between the conditions of work and the disease. Apparently the DEC refused to examine evidence (including affidavits) submitted by the applicant to prove her actual duties.
16. The applicant appealed to the Central Diagnostic Expert Commission (“the CDEC”), arguing that her de facto duties were different from the ones enumerated in her job descriptions. As no witness testimony was admissible, she again submitted affidavits from her managers to the effect that she had actually worked as a typist. On 15 March 1995 the CDEC dismissed the appeal, fully endorsing the reasons of the DEC. Apparently it refused to take into account any other evidence purporting to establish the actual duties of the applicant.
17. In October 1995 the applicant was admitted for treatment at the Medical Institute for Transport Workers in Sofia. On 19 December 1995 the DEC at the Institute examined the applicant and found that she suffered from osteohondrosis cervicalis. It also reached the conclusion that the disease was not an occupational one, being unrelated to the duties of the applicant as set out in her job descriptions.
18. The applicant appealed against this decision to the CDEC. By a decision of 13 February 1996 it upheld the ruling as to the non-occupational character of the applicant's disease and fully endorsed the DEC's reasons.
19. On 19 March 1996 the applicant brought an action against her employer under Article 200 of the Labour Code of 1986. She alleged that the disease of her hands had developed as a result of her work. In fact, between 1976 and 1989 she had worked as a typist, even though her job descriptions did not reflect that. The rulings of the DEC and the CDEC that her disease was not workrelated were based solely on these job descriptions; the commissions had not inquired into the reality of the situation. She requested the court to summon witnesses to testify about her real duties and to appoint an expert to establish the occupational character of her disease.
20. Two witnesses – former managers of the applicant – testified during the trial. They stated that the applicant had in fact worked as a typist, in accordance with the orders of her employer, and provided details about her workload.
21. Two expert witnesses were appointed by the court to give conclusions about the applicant's state of health and about the occupational or nonoccupational character of her disease. The first expert concluded that the applicant was suffering from vegetative neuropathy of the hands. The second expert submitted a report in which she stated that the cause for the applicant's disease could be her conditions of work, as described by her managers. Both experts confirmed their conclusions at a public hearing on 23 October 1996.
22. The Rouse District Court gave judgment on 30 October 1996, dismissing the applicant's action. It stated, inter alia:
“... the court considers the action to be ill-founded. The prerequisites for finding the employer liable under Article 200 of the Labour Code ... are a valid employment agreement and a convincingly established occupational disease. The occupational character of the disease is determined by the special medical commissions ... The existence of a finding [made by the DEC and ascertaining the occupational character of the disease] is an absolute precondition for holding the employer liable under Article 200 of the Labour Code. The specific character of the [subjectmatter of the inquiry] has led the legislature to establish specialised medical bodies to give a conclusion as to the type [of the disease] and as to the causal link between the conditions of work and the disease. In the case at hand the [DEC and the CDEC] have concluded that the [applicant's] disease was not occupational and was not related to her conditions of work ... [T]he court examining the dispute under Article 200 of the Labour Code may rule as to the occupational character of the disease only if no medical documents have been issued by the [DEC].”
23. The applicant appealed to the Rouse Regional Court. On 27 December 1996 that court upheld the lower court's judgment in the following terms:
“The [District Court's] judgment is well-founded. After assessing the collected and relevant evidence, the District Court correctly concluded that the occupational character of the [applicant's] disease, ... which is one of the prerequisites for holding her employer liable under Article 200 of the Labour Code, has not been convincingly established. The firstinstance court has correctly decided that the occupational character of the disease may be established by the court only if no documents have been issued by the specialised medical bodies ... The District Court has taken into account that in the case at hand these bodies have reached the categorical conclusion ... that the disease of the [applicant] was not related to her working conditions and was thus not occupational.”
24. The applicant lodged a petition for review with the Supreme Court. That court dismissed the petition in a final judgment of 18 November 1997. It held:
“The acts issued by the specialised medical bodies indicate that [the applicant's] disease was not occupational, i.e. no causal link was found between the disease and the working conditions. The expert witnesses' conclusions do not alter this finding. The [first expert] concluded that the disease “vegetative polyneuropathy of the hands” features on the table of occupational diseases. This fact is not at issue, but the [employer's] liability under Article 200 of the Labour Code presupposes not only the existence of the respective disease, but also the establishment of a causal link between the disease and the conditions of work. This causal link has not been established by the [second] expert either. In her report she found that activities related to type-writing are a prerequisite for the development of vegetative polyneuropathy. However, the fact that typewriting is in general a prerequisite for this disease does not prove the existence of a causal link between the [applicant's] conditions of work and [her] disease.
...The specialised medical bodies are the administrative organs empowered by law to ascertain the existence of an occupational disease and the causal link between the disease and the [conditions of] work. The [lower] courts correctly held that the circumstances that [these organs] are authorised to examine may be examined by the court having cognisance of the action under Article 200 of the Labour Code only in the absence of findings made by these organs. The [applicant] has not established before the specialised medical bodies the existence of a causal link between [her] disease and the conditions of work as a typist ... Therefore the conclusions of the [lower] courts that her action is unfounded are correct.”
25. Article 200 of the Labour Code of 1986, which regulates the liability of the employer toward the employee for damage which has occurred as a result of an occupational accident or disease, reads as follows:
“1. The employer shall be liable for damage [resulting from] an occupational accident or disease which has caused a temporary or permanent disability or death of the employee, irrespective of whether it has been brought about through fault [of the employer] or of another employee.
...
3. The employer shall owe compensation amounting to the difference between the quantum of the damage – pecuniary and nonpecuniary, including lost profits, – and the [amount of the] benefits and/or pension [provided to the employee] by the social security.”
26. At the relevant time occupational diseases were defined by Regulation No. 23 of the Minister of Health (State Gazette (“SG”), issue 5 of 1985, amended, SG, issues 34 and 87 of 1994) and by the Table of Occupational Diseases (SG, issue 5 of 1958, amended, SG, issue 18 of 1964 and issue 61 of 1974). The Regulation defined occupational diseases as “impairments of the health arising exclusively or predominantly from the harmful factors of the conditions of work or of the work process and which have been listed in the Table of Occupational Diseases” (section 1(1)). The Table listed the diseases, the conditions of work causing them, and the types of work in the performance of which they could occur. For a disease to be regarded as occupational, it had to (a) be listed in the Table; (b) stem from the exposure to certain dangerous conditions of work (e.g. noise, vibrations, radiation), exhaustively enumerated in the Table; and (c) the types of work (e.g. typist, miner, driver) involving exposure to these conditions had to be enumerated in the Table, the enumeration not being exhaustive.
27. The DECs and the CDEC were established by the abovementioned Regulation No. 23 under the authority of the Minister of Health.
The DECs were responsible for determining the occupational character of a disease (section 9(1) of the Regulation). Their members were appointed by the medical directors of the respective hospitals (section 9(5) of the Regulation).
The CDEC heard appeals against decisions of the DECs; its members were appointed by the Minister of Health (section 13a(2) of the Regulation). The findings of the CDEC in respect of the occupational character of the disease were binding on other medical bodies dealing with occupational expertise issues (section 14(3) of the Regulation), but the Regulation did not provide that they were binding on the courts.
28. The members of the commissions – who were exclusively medical professionals – were remunerated under privatelaw service contracts with the Ministry of Health (sections 9(3), 13a(1) and (4) of the Regulation).
29. There were no detailed rules regulating the procedure before the commissions. The Regulation provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents (section 12 of the Regulation), making no provision for witness testimony or other evidence. No hearings were held.
30. Article 120 of the Constitution provides:
“1. The courts shall review the lawfulness of the administration's acts and decisions.
2. Physical and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save in the cases expressly specified by statute.”
31. The Administrative Procedure Act (“the APA”) governs the procedure for issuing “administrative acts” and for judicial review of such acts. Section 2(1) of the Act defines “individual administrative acts” as “acts issued [by public authorities], which create rights or obligations for, or affect rights or legitimate interests of, individuals or legal entities, as well as the refusals to issue such acts”. By sections 33 and 34 of the Act, all “administrative acts”, save those relating to the security of the country or specifically enumerated by statute, are subject to judicial review. The application for judicial review must be lodged within a specified timelimit, which varies depending on whether the “administrative act” was an express act or a tacit refusal and on whether before being appealed against before a court it was appealed against before a higher administrative authority (section 37(1), read in conjunction with sections 22, 29 and 31 of the Act). Only if it is alleged that the “administrative act” is null and void, the application for judicial review is not limited by time (section 37(2) of the Act).
32. In its interpretative judgment no. 21 of 26 October 1995 in constitutional case no. 18/1995 (SG, issue 99 of 1995) the Constitutional Court gave a binding interpretation of Article 120 § 2 of the Constitution. It held, inter alia, that that Article's provision encompassed all administrative acts regardless of their character or theoretical qualification. The exclusion of a given administrative act from judicial review could only be done by statute. “All administrative acts” meant “without exception”. Only internal acts which did not affect in any way physical or legal persons outside the respective administration were not covered by the constitutional provision.
33. The former Supreme Court has held that the decisions of the special medical commissions were not “administrative acts” within the meaning of the APA, which could be appealed against before a court, but rulings of special bodies subject only to a hierarchical appeal within the respective administration (опред. № 304 от 1 юли 1992 г., ВС, III г.о.).
34. In a series of decisions and judgments starting with a reported decision of 4 February 1999 in which it quashed a decision of the Sofia City Court declaring an appeal against the decision of a special medical commission inadmissible, the Supreme Administrative Court, which succeeded the Supreme Court after the reform of 1997, started allowing judicial appeals against the decisions of special medical commissions. In contrast with the holding of the former Supreme Court, it held that the commissions' decisions were affecting the rights of the persons examined and were therefore “administrative acts” within the meaning of the APA. The general rule under Article 120 § 2 of the Constitution being that administrative acts were subject to judicial review unless otherwise provided by statute, the commissions' decisions were appealable before a court. In a number of those decisions and judgments the court also relied on Article 6 of the Convention and, in particular, its “access to a court” requirement (опред. № 1580 от 4 февруари 1999 г. по адм. д. № 4869/1998 г., ВАС, І о.; опред. № 4491 от 6 август 1999 г. по адм. д. № 937/1999 г., ВАС, І о.; опред. № 446 от 1 февруари 2000 г. по адм. д. № 3513/1999 г., ВАС, І о.; опред. № 3450 от 30 май 2000 г. по адм. д. № 7347/1999 г, ВАС, І о.; реш. № 351 от 25 януари 2001 г. по адм. д. № 5358/2000 г., ВАС, І о.; реш. № 6475 от 3 юли 2002 г. по адм. д. № 2611/2002 г., ВАС, петчленен състав).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95447
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TROSHKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1968 and lives in Chelyabinsk.
6. In 1995 the applicant's vehicle was damaged in a road traffic accident. On 25 June 1997 he sued a private company in charge of road maintenance for damages. He alleged that the accident had been caused by its failure to clean up the road. The examination of the matter was stayed pending the payment of the court fee by the applicant. The proceedings were resumed on 13 October 1997.
7. On 29 October 1997 the Sovetskiy District Court of Chelyabinsk granted a request by the respondent company to adjourn the proceedings pending the criminal investigation into the road traffic accident. The proceedings were resumed on 27 April 1998.
8. On 25 May 1998 the representative of the respondent company failed to appear and the hearing was adjourned.
9. On 4 and 16 June and 5 October 1998 the District Court adjourned the court hearing as the applicant modified his claims.
10. On 9 October 1998 the District Court granted a request by the respondent company for an expert report to determine the value of the applicant's vehicle and stayed the proceedings. The respondent company failed to pay the expert's fee and the case file was returned to the court.
11. On 27 January and 11 March 1999 the District Court adjourned the hearing, granting the respondent company's requests to study the case file.
12. Between 4 November 1999 and 13 April 2000 the proceedings were adjourned pending the criminal investigation further to requests by the respondent company and the applicant.
13. On 1 December 2000 the District Court adjourned the hearing further to a request by the respondent company to summon new witnesses.
14. On 20 March 2001 the applicant asked the court to adjourn the hearing pending the criminal investigation.
15. On 27 September 2001 the District Court granted the applicant's claims in part. On 15 November 2001 the Chelyabinsk Regional Court quashed that judgment and remitted the case to the District Court for a fresh examination. The Regional Court noted that the District Court had failed to properly establish the circumstances of the road traffic accident and to determine the responsibility of all the parties involved.
16. On 4 February 2002 the District Court adjourned the preparatory hearing owing to the parties' failure to appear. The preparatory hearing was subsequently held on 13 March 2002.
17. On 27 May and 6 November 2002 the District Court granted the applicant's request and adjourned the hearing pending the criminal investigation.
18. On 2 February 2004 the applicant asked the court to resume the hearing of the matter. On 2 March 2004 the District Court annulled its own decision of 6 November 2002 and resumed the proceedings.
19. On 19 March 2004 the applicant asked the court to adjourn the hearing in order to modify his claims.
20. On 13 May 2004 the applicant submitted the modified claims and asked the court to summon certain witnesses.
21. On 17 June 2004 the District Court dismissed the applicant's claims in full. On 9 December 2004 the Regional Court quashed that judgment and granted the applicant's claim in part. The court based its findings, inter alia, on the materials in the criminal investigation file, such as the crime-scene investigation and forensic expert reports.
VIOLATED_ARTICLES: 6


ITEMID: 001-97180
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ZUBCZEWSKI v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 1. The applicant, Mr Andrzej Zubczewski, is a Swedish national who was born in 1939 and lives in Spain. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. When the applicant retired, he obtained a retirement pension (ålderspension). It appears that he was entitled only to the so-called supplementary pension, one part of which depends on the retired person's civil status.
4. In 2002, at the age of sixty-three, the applicant married.
5. Consequently, in accordance with the Earnings-related Old Age Pension Act (Lagen om inkomstgrundad ålderspension, 1998:674 – hereafter “the 1998 Act”), on 27 June 2003 the Social Insurance Office (försäkrings-kassan) in Gotland decided to reduce the applicant's pension. It appears that the applicant received 9,136 Swedish kronor (SEK) per month thereafter instead of the previous SEK 9,648 per month, thus a reduction of SEK 512 per month (approximately 50 euros).
6. The applicant complained against the decision. He stated that, after the marriage, his pension was lower than it had been when he was single, although now he had to support two persons as his wife did not have any income. The Social Insurance Office dismissed the complaint upon review on 10 November 2003.
7. The applicant brought the dispute before the County Administrative Court (länsrätten) in Gotland claiming that the 1998 Act was discriminatory and illogical and contrary to legal principles and human rights.
8. By a judgment of 31 March 2004 the County Administrative Court found against the applicant, inter alia, stating as follows:
“[The applicant] has questioned the [1998] Act per se, as it distinguishes between married and unmarried pensioners and he states that the Act thereby violates, inter alia, human rights. The County Administrative Court notes however that marriage is an institution regulated by law which carries with it certain other rights and obligations than those concerning unmarried individuals. Having regard thereto and to [the applicant's] observations, the County Administrative Court cannot find that the [1998] Act, as challenged, manifestly runs counter to any rule of fundamental law or other superior statute or find that the adoption of the Act significantly disregarded established regulation. Thus, the County Administrative Court must apply the said law. Since [the applicant] is married, the Social Insurance Office calculated his pension fairly as for a married pensioner. Therefore the appeal shall be rejected.”
9. The applicant's request for leave to appeal against the judgment was refused by the Administrative Court of Appeal (kammarrätten) in Stockholm on 18 January 2005 and by the Supreme Administrative Court (Regeringsrätten) on 18 October 2007.
10. Under the 1998 Act, persons born between 1938 and 1953 are, subject to certain criteria being met, entitled to two types of pension upon retirement, income pension (“inkomstpension”), regulated by Chapter 5 of the Act, and supplementary pension (“tilläggspension”), governed by Chapter 6.
11. Income pension, to which the applicant was apparently not entitled, is based on how much a person has set aside for his or her pension while working and the life expectancy for persons born in a specific year.
12. Supplementary pension, which is at issue in the present case, consists of two parts, defined in Chapter 6, section 2 of the 1998 Act:
“Unless otherwise indicated in sections 3-7, the annual supplementary pension amounts to the total of
1. 60% of the product of the price base amount [prisbasbeloppet] for the year in question under the Social Insurance Act [Lagen om allmän försäkring, 1962:381] and the average pension points earned by the person entitled to the pension or, if pension points have been earned for more than 15 years, the average of the 15 highest points, and
2. 96% of the price base amount for the year in question under the Social Insurance Act or, if the person is married, 78.5% of this base amount.”


ITEMID: 001-69260
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DANILYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Zoya Nikolayevna Danilyuk, is a Ukrainian national, who was born in 1955 and lives in Simferopol, Ukraine.
In 1990, as a result of the Chernobyl nuclear plant disaster, the applicant and her family had to move from Korosten, which is situated 100 km from Chernobyl (a so-called “third zone of radioactive pollution”). The applicant settled in Simferopol, the Crimea. The applicant's apartment in Korosten (which she had leased from the State) is currently occupied by her son's family
In 1996 the Simferpol City Executive Committee provided the applicant with an apartment in a co-operative house. The applicant paid part of the price. The applicant alleges that the apartment was in an unfit state and that she had to spend money to have it repaired.
On 18 October 1999 the applicant applied to the Executive Committee for the reimbursement of the expenses incurred in acquiring the apartment, to which she was entitled as a victim of the Chernobyl disaster.
By September 2000 the applicant had received, in three instalments, a total of UAH 12,629 (approximately EUR 2,000) by way of reimbursement of the cost of purchasing the apartment. In January 1999 the applicant instituted proceedings against the Ministry of Chernobyl Affairs, alleging that the sum received did not cover the amount that she had had to spend on the repair of the apartment and took no account of the effects of inflation.
On 19 October 2000 the Tsentralny District Court of Simferopol rejected the applicant's claim. On 16 May 2001 the Supreme Court of the Crimea upheld this judgment. The court stated, inter alia, that the case was not a civil but a public law dispute. Therefore, the sum to be reimbursed could not be based on the actual expenses and losses of the applicant but had to be determined by the local authorities on the basis of the Law of 27 February 1991 (see the “Relevant law” below) and relevant governmental regulations. The court further indicated that, in the applicant's case, the amount of the reimbursement had been determined by the Council of Ministers of the Crimea on the basis of the method established by the Ministry of Chernobyl Affairs in accordance with the 1991 Law. The sum was calculated with reference to the value of the apartment on the date of purchase, the time of the payment of the reimbursement and other criteria. Since the applicant's costs had been reimbursed in full, the applicant had no right under domestic legislation to receive any further sum from the State.
According to Articles 1 and 4 of the Law “On the Status and Social Security of the Victims of the Chernobyl Nuclear Plant Disaster” of 28 February 1991 (“the 1991 Law”), the zones of radioactive pollution are determined depending on their level of pollution. Persons living in the third zone of radioactive pollution are entitled to “guaranteed voluntary resettlement”. This means that the citizens who live in this zone are entitled to receive objective information about the level of pollution, sufficient to enable them to decide whether to continue living in this territory. If they decide to leave the area, then the authorities are obliged to create the necessary conditions for resettlement.
Article 32 §§ 2 and 3 of the Law provides that persons who moved from the third zone of radioactive pollution are entitled to receive free housing with at least two options to apply for it. First, they can apply to the local authorities to obtain free municipal housing. In this case:
“[the persons] are put by the organisations they work in or by executive committees of the local councils on a separate waiting list for attribution of municipal housing on the priority basis”
Or second:
“the executive committee of the local council, the citizens' employer as well as the citizens themselves can buy ... homes and apartments from private persons for a market price ... as well as vacant public homes or apartments for residual value”
In case if persons resettling from the Chernobyl zone opt for acquiring the housing on their own (either by buying or building it) they are entitled to have their costs and expenses reimbursed to them by the State. The amount of and procedure for reimbursement are determined by the councils, based on the Law and relevant governmental regulations.


ITEMID: 001-89034
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF YERKIMBAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1962 and lives in Moscow.
5. The applicant and his wife obtained an occupation certificate for a municipal flat where another family, (“Family X”), lived at the material time. Family X had, in turn, received an occupation certificate for another flat. As the flat offered to Family X did not meet their expectations, the family refused to move out of the old flat.
6. On 15 October 1998 the applicant instituted proceedings in the Lyublinskiy District Court of Moscow seeking the eviction of Family X.
7. On 12 November 1998 the Municipal Housing Department of Moscow, who owned the flat at the material time, also lodged a claim for the eviction of Family X.
8. On 22 December 1998 the Lyublinskiy District Court in the absence of the defendants passed judgment in default, granting the applicant’s request and ordering the eviction of Family X. However, the latter appealed against the above judgment which was annulled as a result on 8 February 1999.
9. On 10 March 1999 the defendants lodged a counter claim, requesting, inter alia, that the applicant’s occupation certificate be declared void.
10. Meanwhile, in April 1999 the applicant and his wife privatised the flat in dispute and registered their property right in the State’s Register.
11. As regards the twelve hearings fixed between 18 May 1999 and 26 May 2000, two were adjourned following requests by the defendants and four were adjourned because the representative of the Municipal Housing Department of Moscow failed to attend. The remaining six hearings were adjourned in view of the non-attendance of the Ministry of Finance, which was responsible for the allocation of municipal housing to the defendants and whose attendance was required to verify the issue of the lawfulness of the provision to the defendants’ family of new housing and the taking away of the flat in dispute. It was not until the District Court imposed a fine on the Ministry amounting to 3,000 Russian roubles for non-attendance at the hearings that a representative of the Ministry finally appeared before the court.
12. On 26 May 2000 the Lyublinskiy District Court of Moscow granted the applicant’s claim and dismissed that of the defendant.
13. On 26 October 2000 the judgment was upheld on appeal by the Moscow City Court and entered into force.
14. On 14 December 2000 the bailiffs opened enforcement proceedings.
15. On 20 December 2000 and 15 May 2001 the enforcement proceedings were suspended until 9 April 2001 and 13 July 2001 respectively, pending the examination of the request filed by the defendants for supervisory review of the judgment of 26 May 2000, as upheld on appeal on 26 October 2000.
16. On 17 August 2001 the enforcement proceedings were again suspended following the subsequent request from the defendants for supervisory review of the above judgment.
17. On 19 April 2002 the Deputy President of the Supreme Court of Russia brought an application for supervisory review of the judgment to the Presidium of the Moscow City Court.
18. On 13 June 2002 the Presidium of the Moscow City Court quashed the judgment by way of supervisory review and remitted the case for fresh examination by a differently composed bench.
19. On 4 November 2002 the Lyublinskiy District Court granted the defendants’ counter claim and declared the occupation certificate issued to the applicant void. The court further obliged the Municipal Housing Department of Moscow to provide the applicant and his family with another flat.
20. Following the appeal lodged against the above judgment by the Municipal Housing Department of Moscow, on 18 March 2003 the Moscow City Court quashed the above judgment on appeal and remitted the case for fresh examination.
21. As regards the six hearings fixed between 14 May 2003 and 8 October 2003, one was adjourned because the judge was involved in another case, two were adjourned because of the non-attendance of the defendants and on their request, and three were adjourned because of the non-attendance of the Municipal Housing Department of Moscow.
22. On 8 October 2003 the Lyublinskiy District Court granted the applicant’s claim and dismissed that of the defendants.
23. On 26 February 2004 the Moscow City Court upheld the judgment on appeal.
24. On 23 March 2004 the bailiffs opened the enforcement proceedings.
25. On 29 June 2004 the defendants were evicted. The applicant and his family moved into the flat.
VIOLATED_ARTICLES: 6