ITEMID: 001-59025
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF BARFUSS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 19 May 1994 the applicant was charged with fraud under Article 250 §§ 1 and 4 of the Criminal Code, it being alleged that in November 1991 and January 1992, he had deceived the Czech Commercial Bank (Česká komerční banka) and the Pragobank (Pragobanka) by concluding two loan contracts for CZK 5,000,000 and CZK 57,000,000, without informing the banks that he had previously incurred debts of CZK 4,900,000, CZK 21,217,000 and CZK 15,000,000. On the same day, the applicant was arrested.
9. On 20 May 1994 the Karlovy Vary District Court (okresní soud) (“the District Court”) ordered the applicant’s detention on remand under Article 67 of the Code of Criminal Procedure, with effect from 19 May 1994, stating that the applicant could influence witnesses who had not been heard by the police. At the same time, the court refused to release the applicant on bail or on oath. The applicant challenged the order claiming that he was prepared to satisfy his creditors and did not intend to abscond or influence the witnesses. He repeated his request to be released, invoking his health problems.
10. On 17 June 1994 the Plzeň Regional Court (krajský soud) (“the Regional Court”), referring to Article 67(a) of the Code of Criminal Procedure, noted that the applicant was under threat of a heavy prison sentence which justified the concern of the court that he would abscond and evade the criminal proceedings. It further noted that the applicant had already been prosecuted, had abused alcohol in recent years and would probably not be able to compensate for the damage he had caused to the banks immediately. The court refused to release the applicant on bail.
11. On 26 October 1994 the applicant was charged with ten further acts of fraud, pursuant to Article 250 §§ 1 and 4 of the Criminal Code, which he had allegedly committed between 12 July 1991 and 9 September 1992. The damage was estimated at CZK 185,000,000.
12. On 19 September 1995 the Plzeň Regional Prosecutor (krajský státní zástupce) formally indicted the applicant before the Regional Court. A preliminary hearing was held on 11 April 1996. The court decided to send the case back to the Regional Prosecutor for further investigations and the taking of evidence. On 18 July 1996 the High Court (Vrchní soud) quashed this decision and ordered the Regional Court to deal with the case.
13. On 19 August 1996 the President of the Chamber (předseda senátu) of the Regional Court informed the applicant’s representative that it would be impossible to deal with the case before March 1997, because of the overwhelming workload of the court and the chamber dealing with the case.
14. On 27 August 1996 the Vice-President of the Regional Court (místopředseda soudu) transferred the applicant’s case to another chamber which would be able to deal with it without delay. On 2 September 1996 the Plzeň Regional Court decided to transfer the case to the Prague Regional Court, pursuant to Articles 18 § 1 and 188 § 1(a) of the Code of Criminal Procedure, as it appeared from the primary evidence and witness statements that the offences had been committed in Prague. On 4 October 1996 the Prague Regional Court refused to deal with the case on the grounds that the indictment had been lodged with the Plzeň Regional Court which had already held the preliminary hearing, and that one of the banks concerned had its seat in the Plzeň region. On 30 October 1996 the High Court decided that the Plzeň Regional Court was competent to deal with the case.
15. On 30 January 1997 the Regional Court scheduled substantive hearings for 12-13 March, 1-4 April, 7-10 April and 21-24 April 1997. The hearing held on 24 April 1997 was adjourned (no new date being fixed) as the court considered it necessary to hear further witnesses and to obtain further documentary evidence. On 11 September 1997 the substantive hearing continued and was adjourned until 7 November 1997 because of the applicant’s request to take further evidence.
16. On 7 November 1997 the Regional Court convicted the applicant of fraud under Article 250 §§ 1 and 4 of the Criminal Code and sentenced him, inter alia, to nine years' imprisonment. On 26 March 1998 the High Court, after a public hearing on 9 December 1997, upheld this judgment.
17. On 4 November 1994 the District Court extended the applicant’s detention on remand until 19 February 1995. The court held that the detention was necessary, within the meaning of Article 67(a) of the Code of Criminal Procedure, as there was a danger that the applicant would abscond. It stated that the extension of the charges against the applicant would necessitate further investigation, including the hearing of employees of the banks concerned and the gathering of further documentary evidence.
18. On 6 February 1995 the District Court, at the District Prosecutor’s request, extended the applicant’s detention on remand until 19 June 1995, having regard to the further investigations and the risk that the applicant would abscond.
19. On 8 June 1995 the District Court, at the District Prosecutor’s request, extended the applicant’s detention on remand until 19 September 1995. The District Prosecutor submitted that the investigating authorities had not been provided with an accounting expert’s report or with the statements of two witnesses living in Germany. The court found that the applicant’s release would frustrate or impede the purpose of the criminal proceedings. The applicant appealed against this decision, claiming that his company, “Georgia”, had begun to meet its outstanding debts. On 10 July 1995 the Regional Court dismissed the applicant’s complaint and upheld the findings of the District Court.
20. On 11 April 1996, at the end of the preliminary hearing, the Regional Court decided, under Section 192 of the Code of Criminal Procedure, to keep the applicant in custody on the grounds that the reasons for his original detention continued to apply. On 18 July 1996 the High Court upheld this decision.
21. On 30 April 1996 the President of the Chamber of the Regional Court requested the High Court to grant an extension of the applicant’s detention on remand until 30 November 1996, stating that the indictment had only been preferred on 19 September 1995 and that the court had repeatedly had to deal with the applicant’s requests for release. He noted that the consideration of the case-file had been concluded on 11 April 1996, when his court had decided to send the case back to the prosecutor for further investigations and to keep the applicant in detention. He further noted that, in view of the nature and extent of the further investigations, and in the event that the court’s decision were to be upheld, the examination of further evidence would take several months. He also stated that the chamber was overburdened with work until the end of 1996.
22. On 17 May 1996 the High Court granted the request and extended the applicant’s detention on remand until 30 November 1996, pursuant to Article 71 § 3 of the Code of Criminal Procedure. It referred to the complex character of the case and the necessity to examine further evidence. The court stated inter alia that, given the legal classification of the applicant’s offence, he was likely to be sentenced to a lengthy term of imprisonment if convicted. It also noted that, having numerous contacts abroad and being in debt, the applicant might abscond. It considered, therefore, that the applicant’s detention was necessary within the meaning of Article 67(a) of the Code of Criminal Procedure. On 12 June 1996 the Supreme Court (Nejvyšší soud) upheld this extension and found that the applicant’s alleged health problems were not sufficient to convince the court that the applicant would not abscond.
23. On 19 November 1996 the High Court, at the request of the President of the Chamber of the Regional Court, extended the applicant's detention on remand until 15 May 1997, pursuant to Article 71 § 3 of the Code of Criminal Procedure. The reasons given for the extension were similar to those given for the previous extension. The court noted that the length of the proceedings was due to the length of the investigation and the complexity of the case.
24. On 26 November 1996 the applicant lodged a complaint against this decision with the Supreme Court. He contested the High Court’s arguments and noted that his detention had lasted 16 months, that the indictment had been presented 14 months ago and that no substantive hearing had been held so far. On 19 December 1996 the Supreme Court rejected the complaint, upholding the findings of the High Court.
25. On 23 April 1997 the President of the Chamber of the Regional Court requested the High Court to extend the applicant’s detention on remand until 30 October 1997, pursuant to Article 71 § 3 of the Code of Criminal Procedure. He stated that during the substantive hearing the applicant had changed his defence strategy and that this had required a hearing of further witnesses living in Germany, who would not appear before the court but would be heard by the German authorities in May 1997. He noted that the applicant had acknowledged that he had voluntarily suppressed certain facts upon the advice of his legal representative. The President of the Chamber further stated that the fear of the applicant’s absconding was reinforced by the fact that, if he left the country for Germany, he could acquire German citizenship, which would prevent the Czech authorities from seeking his extradition.
26. On 12 May 1997 the High Court granted the request. On 6 June 1997 the Supreme Court rejected the applicant’s complaint against this decision and upheld the High Court’s findings that the nature of the offence with which the applicant had been charged, and his contacts abroad, substantiated the reasons for his detention under Article 67(a) of the Code of Criminal Procedure.
27. On 21 October 1997 the High Court, at the request of the President of the Chamber of the Regional Court, ordered the applicant's continued detention on remand until 31 December 1997, for reasons similar to those given for the previous extension. On 26 November 1997 the Supreme Court dismissed the applicant’s challenge to this extension.
28. On 15 December 1997 the High Court extended the applicant’s detention on remand until 19 May 1998. The court stated that it could not deal with the applicant’s appeal against conviction until 31 December 1997. It further stated that, having regard to the extent of the applicant’s criminal activities, the damage caused by him, the length of the sentence of imprisonment which the applicant faced if his conviction were upheld and the danger of his absconding, there was the risk that, if released, he would impede or frustrate the purpose of the criminal proceedings. The court did not find any particular delay in the proceedings.
29. On 14 January 1998 the Supreme Court upheld the High Court’s decision. It found that the reasons invoked by the High Court were relevant and sufficient within the meaning of Article 71 § 3 of the Code of Criminal Procedure. The court noted that the judgment of the Regional Court, by which the applicant had been sentenced to nine years’ imprisonment, had not yet come into effect and held that the applicant’s detention was necessary in order to prevent his absconding. The decision to extend it until 19 May 1998 was therefore justified under Article 67(a) of the Code of Criminal Procedure.
30. On 19 July 1994 the District Court rejected the applicant’s request for release, finding that the evidence taken during the investigation created a reasonable suspicion that he had committed the offences. It therefore considered his detention necessary within the meaning of Article 67(a) of the Code of Criminal Procedure. On 15 August 1994 the Regional Court dismissed the applicant’s complaint against this decision, referring to its findings of 17 June 1994 (see paragraph 10 above) and stating that the reasons for the applicant’s detention continued to apply.
31. On 14 September 1994 the applicant lodged a further request for release. He submitted inter alia that his detention prevented him from taking any steps to compensate for the losses he had caused. On 17 September 1994 the District Court rejected the request. On 17 October 1994 the Regional Court rejected the applicant’s complaint against this decision.
32. On 28 November 1994 the applicant lodged his third request for release, denying that he had committed the offences. On 15 December 1994 the District Court rejected his request, referring to the establishment of the facts of the case and the state of the investigation, and found that the applicant’s detention on remand was justified under Article 67(a) of the Code of Criminal Procedure. On 20 January 1995 the Regional Court dismissed the applicant’s complaint against this decision.
33. On 27 February 1995 the District Court rejected the applicant’s request for release of 14 February 1995, in which the applicant referred to his aggravated health problems and complained about unjustified delays in the investigation. The court stated that the reasons for the applicant’s detention continued to apply and that his health problems did not allay the court’s concern that he would abscond or evade the criminal proceedings. It further noted that his detention on remand did not endanger the applicant’s health or life.
34. The applicant lodged a complaint against the District Court’s decision. He submitted that he had not concluded the loan contracts with any fraudulent intention and that he was taking steps to compensate for the damage caused. He therefore contested the court’s reasoning that he would abscond or evade the criminal proceedings. On 6 April 1995 the Plzeň Regional Court rejected the complaint, upholding the applicant’s detention on remand pursuant to Article 67(a) of the Code of Criminal Procedure. The court noted that the applicant had been convicted in the past, risked a heavy prison sentence, had allegedly profited from his criminal acts (CZK 260,000,000), had personal and business contacts abroad and was an alcoholic.
35. On 12 May 1995 the applicant lodged a new request for release, maintaining his innocence and offering as guarantor a Georgian national. On 15 May 1995 the District Court dismissed his request, stating that, having regard to the seriousness of the criminal offence with which the applicant had been charged, any surety proposed by him was unacceptable. On 26 June 1995 the Regional Court upheld this decision.
36. On 3 October 1995 the Regional Court dismissed the applicant’s further request for release.
37. On 7 November 1995 the Regional Court rejected the applicant’s request for release of 24 October 1995. The court referred to its previous decisions relating to the applicant’s detention and added that his health problems did not, in themselves, constitute a reason for his release when one of the reasons for his detention still applied. The applicant lodged a complaint against this decision, contending that the threat of a lengthy prison sentence and his contacts abroad could not in themselves justify the fear that he would abscond, in particular since his passport had been seized by the authorities. He stressed that, before the criminal prosecution had officially been brought, he had not shown any intention to abscond or evade the proceedings. On 24 January 1996 the High Court rejected the applicant’s complaint.
38. On 30 April 1996 the Regional Court dismissed the applicant’s request for release submitted on 16 April 1996. On 18 July 1996 the High Court upheld the Regional Court’s dismissal.
39. On 8 November 1996 the Regional Court dismissed the applicant’s further request for release referring to the reasons given in its previous decisions. On 25 November 1996 the High Court dismissed the applicant’s complaint against this decision. As to his claim that the Regional Court had not considered the reasons for his detention on remand but had just referred to its previous decisions, it emphasised that the Regional Court was not required to repeat the facts which had already been sufficiently elaborated in its previous decisions, when the applicant’s arguments and the reasons for his detention remained unchanged.
40. On 22 January 1997 the applicant submitted another request for release, claiming that his health problems were incompatible with his continued detention and excluded any risk of his absconding. On 6 February 1997 the Regional Court dismissed the request, stating that the reasons for the applicant’s detention remained unchanged and that the applicant’s health was not jeopardised by his remand in custody, as confirmed by the report of the prison health centre (zdravotní středisko věznice) of 30 January 1997.
41. On 9 July 1997 the applicant’s further request for release was dismissed by the Regional Court.
42. On 29 September 1997 the Regional Court dismissed the applicant’s last request for release. On 21 October 1997 the High Court rejected his complaint against this decision.
43. On 27 June 1996 the applicant lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the Supreme Court’s decision of 12 June 1996, by which his detention on remand had been extended until 30 November 1996. He complained in particular that his continued detention on remand was not justified and that the Supreme Court had not dealt with the case properly when examining the existence of reasons for extending his detention. He invoked Article 8 § 5 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).
44. On 11 October 1996 the Constitutional Court rejected the applicant’s appeal. The court accepted that the risk of a lengthy prison sentence could not constitute the sole ground for detention on remand. It stated, however, that in the applicant’s case there were other facts justifying the fear of his absconding, and held that the applicant’s state of health did not exclude this possibility. It referred to two medical reports of 17 May and 10 September 1996.
45. On 7 February 1997 the applicant introduced a second constitutional appeal, this time against the decision of the Supreme Court of 19 December 1996 (see paragraph 23 above) upholding the decision to extend his detention on remand until 15 May 1997. He alleged violations of Article 5 §§ 1(c) and 3 and Article 6 § 1 of the Convention, in that the reasons for his detention invoked by the courts were not sufficient or relevant. He claimed inter alia that the decisions extending the detention were not based on the real facts of his case and that there was no justification for extending his detention beyond two years. He also claimed that the excessive workload of the court dealing with his case, the insufficient number of judges and administrative difficulties could not justify the delays in the proceedings.
46. On 10 September 1997 the Constitutional Court dismissed the applicant’s second constitutional appeal as being manifestly ill-founded. However, it found that the Plzeň Regional Court and Prague Regional Court had infringed the principle of the economy of proceedings in that they had been unable to resolve the question of their geographical jurisdiction. It also considered that, in general, the delays in the proceedings could not be justified by the applicant’s regular requests for release. The court stated, nevertheless, that in the present case not all of the applicant’s requests had been reasonable. It held that the case was particularly complex and that the reasons for the applicant’s detention continued to apply. The court noted that the decisions extending the applicant’s detention beyond two years had been taken in accordance with Article 71 § 3 of the Code of Criminal Procedure and that it was clear from the evidence available that these decisions had been taken on the basis of the facts established at the material time. The court concluded that the length of the applicant’s detention on remand, extended until 15 May 1997, could not be considered unreasonable within the meaning of Articles 5 § 3 and 6 § 1 of the Convention.
47. On 25 July 1997 the applicant introduced a third constitutional appeal against the decision of the High Court of 12 May 1997, as confirmed by the Supreme Court on 6 June 1997 (see paragraph 26 above), by which his detention had been extended until 30 October 1997. He alleged violations of Articles 5 § 3 and 6 § 1 of the Convention.
48. On 17 February 1998 the applicant lodged a fourth constitutional appeal, this time against the decision of the Supreme Court of 14 January 1998, claiming that there was no reason to extend his detention on remand beyond two years, in violation of his rights guaranteed by Article 5 §§ 1(c) and 3 and Article 6 § 1 of the Convention. He submitted that his criminal case was not complex, that the delays in the proceedings could not be explained by the overwhelming workload of the courts or by the fact that he had used his right to request release. Rather the courts had conducted the proceedings in an inappropriate manner, including their dispute over territorial competence.
49. On 17 March 1999 the Constitutional Court dismissed the applicant’s appeal. It recalled its findings in its previous decisions and considered that, even though the court of first instance had not proceeded in accordance with the principle of the economy of proceedings after the applicant’s indictment, it could not be said that the applicant’s constitutional rights and freedoms had been breached.
50. On the same day, the Constitutional Court also rejected, as manifestly ill-founded, the applicant’s third constitutional appeal. The court found that it was similar to his previous constitutional appeals and did not contain any new arguments supporting his allegations of a violation of his constitutional rights and freedoms.
51. The relevant provisions of the Code of Criminal Procedure read as follows:
Article 67
“An accused person may be remanded in custody only if there exist specific grounds to believe that he
a) will abscond in order to evade prosecution or punishment, in particular if his identity cannot be immediately established, if he has no permanent residence or if he is under the threat of a heavy punishment; … .”
52
53. Pursuant to Article 71 § 1, the competent authorities shall give priority to cases involving a person’s detention on remand and deal with them as speedily as possible.
54. Under Article 72 § 2, an accused person is entitled to request his release at any time. Decisions on such requests are to be taken without delay. In case of dismissal, a request for release may be re-introduced 14 days after the relevant decision has become binding if it is based on the same reasons.
55. Article 71 § 3 provides that an accused person’s detention on remand shall not exceed two years. If it is not possible, because of the complexity of the matter or for other serious reasons, to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings, the High Court may extend the detention for the necessary period.
56. Under Article 71 § 4, a person’s detention on remand shall not exceed three years. In cases of particularly serious offences, within the meaning of Article 41 § 2 of the Criminal Code, the maximum period of detention on remand is four years.
57. Article 167 provides that the accused person and the victim have the right to request the public prosecutor at any time during the investigation to eliminate delays or any defect in the investigation procedure. The public prosecutor must deal with the request immediately.
58. Article 18 provides for criminal proceedings to be brought before the court in the region where the offence was committed.
59. Article 188 § 1(a) provides that, after a preliminary hearing, a court should transfer the case to another court if it is not competent to deal with the case itself.
60. Under Article 192, if the accused person is remanded in custody, the court holding a preliminary hearing must also decide on the person’s continued detention.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-69493
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GLEN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jan Gleń, is a Polish national who was born in 1934 and lives in Bielsko-Biała, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date the applicant sued a certain B.K. before the Bielsko-Biała Regional Court (Sąd Wojewódzki), seeking payment.
On 29 December 1992 the court granted the applicant's claim.
On 27 January 1994 the applicant asked the Bailiff of the Bielsko-Biała District Court (Komornik Sądowy przy Sądzie Rejonowym w Bielsku-Białej) to institute enforcement proceedings
The proceedings are pending.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-57892
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF KARAKAYA v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 7. Mr Mustafa Karakaya, a Turkish national born in 1956, has lived for many years in France, where he worked as a mechanic until 1990, when he was made redundant.
8. Since then he has been unemployed, and in December 1991 he was registered as 80% disabled owing to the effects of illness on his joints.
Mr Karakaya is a haemophiliac and has had numerous blood transfusions. He was infected with the human immunodeficiency virus (HIV) between 16 August and 29 October 1984, the latter date having been determined only during proceedings in the Paris Administrative Court (see paragraph 17 below). In April 1992 he was classified as having reached stage III of infection - the last but one stage - on the scale of the Atlanta Center for Disease Control.
9. On 29 December 1989 the applicant submitted a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection, in accordance with Article R.102 of the Administrative Courts and Administrative Courts of Appeal Code (see paragraph 21 below). He sought 2,500,000 French francs (FRF), maintaining that he had been infected with HIV as a result of the Minister’s negligent delay in implementing appropriate rules for the supply of blood products.
Six hundred and forty-nine similar claims were submitted to the Minister; at that time one thousand two hundred and fifty haemophiliacs had been infected.
10. On 30 March 1990, one month before the expiry of the statutory four-month time-limit (see paragraph 21 below), the Director-General for Health rejected the applicant’s claim.
11. On 23 May 1990 Mr Karakaya lodged an application with the Versailles Administrative Court, seeking to have the ministerial decision quashed and to be awarded compensation from the State in the amount of FRF 2,500,000 plus statutory interest. On 18 October he filed supplementary pleadings.
The Minister filed his defence pleadings on 22 April 1991. In them he called on the court to dismiss the applicant’s claim but added:
"However, in the event of the court’s accepting the principle of negligence on the part of the State, I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence."
12. By an order of 1 July 1991 made under Article R.82 of the Administrative Courts and Administrative Courts of Appeal Code, the case was referred to the Conseil d’Etat, which assigned it to the Paris Administrative Court, the court designated to deal with all the applications lodged against the State by infected haemophiliacs.
13. The case was set down for hearing on 8 April 1992. On 22 April the court delivered an interlocutory judgment, worded as follows:
"... the State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985."
It also ordered the applicant to produce a statement of any indemnities he might have received in compensation for the damage set out in the application.
The judgment was served on Mr Karakaya on 25 August 1992. On 27 August he sent the court a copy of the offers made by the Compensation Fund (see paragraph 18 below).
14. A hearing took place on 3 February 1993. On 14 April the court delivered a second interlocutory judgment, in which it appointed an expert to determine as far as possible, inter alia, whether the applicant had received any blood derivatives during the period of the State’s liability determined earlier and to give an opinion on the likelihood of there being a causal link between the administration of blood derivatives during that period and infection by HIV.
The judgment was served on Mr Karakaya on 13 September 1993.
15. On 24 September 1993 Mr Karakaya appealed to the Paris Administrative Court of Appeal against the two interlocutory judgments of 22 April 1992 and 14 April 1993 in order to have them set aside and to have the case decided at once by the appellate court without any expert being appointed to give an opinion.
16. In a judgment of 31 March 1994 the Court of Appeal dismissed the appeal, holding that the submissions challenging the first judgment of the court below were inadmissible and that the expert opinion called for in the lower court’s second judgment was useful.
17. On 10 December 1993 the expert filed his report at the Paris Administrative Court. It included the following passage:
"... I am convinced that in all probability Mr Karakaya was originally infected by HIV as a result of injections of antihaemophilic blood derivatives that were administered between 16 August 1984 and 29 October 1984."
The case was set down for hearing on 16 February 1994. On 2 March the Administrative Court delivered the following judgment:
"The expert’s report has shown that a causal link between the applicant’s infection with the human immunodeficiency virus and the administration of blood derivatives during the period of the State’s liability - as determined in a judgment of 22 April 1992 - between 12 March and 1 October 1985 cannot be regarded as having been established. The expert indicates that Mr Karakaya was shown to be HIV positive on a sample taken on 13 November 1984. It follows that Mr Karakaya’s application for an order that the State should compensate for the damage sustained as a result of this infection must be refused;
..."
The judgment was served on Mr Karakaya on 5 April 1994; he did not appeal within the two-month period allowed.
18. On 17 April 1992 Mr Karakaya submitted a claim to the Compensation Fund set up by the Act of 31 December 1991 (see paragraph 19 below).
On 13 May 1992 the Fund offered him as "HIV-infection compensation" a sum of FRF 1,234,500 payable in three instalments over a period of two years, from which FRF 100,000 paid out by the private haemophiliacs’ solidarity fund was to be deducted. In addition, the applicant was to receive a sum of FRF 411,500 as soon he developed AIDS (acquired immunodeficiency syndrome).
Following acceptance of the offer by the applicant, the Fund sent him an initial instalment of FRF 378,170 on 1 June 1992.
On 9 December 1992 the applicant requested the Fund to pay him the remainder of the HIV-infection compensation immediately; he referred it to the Paris Court of Appeal’s judgments of 27 November 1992, in which the court had held that such compensation could not be paid in instalments unless the persons receiving it agreed.
On 18 February 1993 the Fund sent him the requested sum of FRF 756,330.
19. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides:
"I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below.
II. ...
III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board.
...
IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the information in their possession.
Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy.
...
V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage ...
...
VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court.
X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat.
XI. ...
XII. The Compensation Fund’s sources of revenue shall be specified in a subsequent Act.
XIII. ...
XIV. ..."
20. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985.
21. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions:
"Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision.
Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint.
..."
"The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security."
"Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur.
Under the authority of the president of the court or division to which he belongs, the rapporteur He may request the parties to supply any evidence or documents relevant to the resolution of the dispute, which shall be added to the file so as to be accessible to all the parties."
"Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this code, the president of the court or division shall issue a formal notice to comply.
In the event of force majeure, a final extension of time may be granted.
If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment."
"Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one."
"A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter’s president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter."
22. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 19 above):
"Part II
Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991
Article 15
In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
Article 16
The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991.
Article 17
Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings.
Where the victim has accepted an offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court.
The registry shall notify the parties of the information communicated by the Fund.
Article 18
The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened.
Article 19
...
Article 20
The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree ..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23680
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: A. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant A. is a Finnish national, who was born in 1946. He is a lawyer and a member of the Finnish Bar Association. He is not represented before the Court. The respondent Government are represented by their Agent, Mr A. Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
As from 1994 onwards the applicant represented his clients together with Professor E., a professor of law, in criminal proceedings in which the applicant’s clients were complainants. On 19 March 1997 the District Court (käräjäoikeus, tingsrätten) of Helsinki rejected the claims submitted on behalf of the applicant’s clients. The applicant and E. submitted a lengthy (151 pages) notice of appeal to the Court of Appeal (hovioikeus, hovrätten) of Helsinki on behalf of their clients, criticising the District Court’s decision and related procedural matters.
The Finnish Bar Association (Suomen Asianajajaliitto, Finlands Advokatförbund) sent a letter to the applicant on 2 October 1997, informing him that the presiding judge in the above-mentioned proceedings, J., had complained to the Bar Association about the allegedly defamatory language used by the applicant in the notice of appeal. The language was described by J. as being below acceptable standards and inappropriate for a member of the Bar Association. She also stated her dissatisfaction with the way the applicant had belittled her reasoning. In her opinion it was alleged several times that she had judged the case arbitrarily. The applicant was invited to submit his observations.
The applicant submitted his response to the complaint to the Bar Association on 6 October 1997, denying all the allegations and arguing also that the complaints were unspecified.
On 14 November 1997 the Board of Directors of the Bar Association decided to transfer the complaint to the Bar Association Disciplinary Board (kurinpitolautakunta, disciplinnämnden). The decision was communicated to the applicant by sending him a copy of the relevant part of the minutes of the meeting from which it appeared that the Board of Directors had drafted a list of the allegedly defamatory statements included in the notice of appeal. The list was three pages long, consisting of some 30 references to the notice of appeal.
On 13 January 1998 the applicant submitted his further comments to the Disciplinary Board, insisting that J. be told to particularise her complaints.
On 16 January 1998 the observations were communicated to J., who was informed that the correspondence had been terminated and that the Disciplinary Board would examine the matter in its meeting on 13 February 1998 and that she would be informed of the decision. A copy of the letter was also sent to the applicant.
According to the Government, the Disciplinary Board examined the case in two meetings. On 13 February 1998, the examination of the case was postponed and a copy of the minutes was served upon the applicant on 23 March 1998. The Disciplinary Board resumed its examination and decided the case on 30 March 1998. A copy of the record was served upon the applicant on 11 June 1998. When deciding the case, the Disciplinary Board also decided that an abstract of the case, which did not disclose the applicant’s identity, be published in Defensor Legis, the Bar Association’s journal. The wording of the abstract was approved in the Disciplinary Board’s meeting on 13 May 1998 and it was published the same year. The Government admit that some of the information provided to the applicant concerning the proceedings was incorrect.
According to the applicant, he was informed, after inquiry about the state of the proceedings, that the examination of his case had been adjourned until 30 March 1998. After that meeting he was informed that the case was adjourned until the meeting of 13 May 1998. Contrary to the above information however the applicant received, on 12 June 1998, a copy of the Disciplinary Board’s decision, stating that the Board had decided on 30 March 1998 to give him a warning. On 17 June 1998 the applicant was informed by the Bar Association that his case had been decided by the Disciplinary Board on 13 May 1998. Regardless of his inquiries addressed to the Bar Association, the applicant claims that he is still unaware of the date on which the decision was actually made.
The Disciplinary Board’s decision of 30 March 1998 reads:
“The Disciplinary Board of the Finnish Bar Association has examined a complaint made by J. to the Board of Directors concerning attorney A and noted the following:
A has in an appeal to the Court of Appeal together with another person named and criticised the presiding judge J. A has submitted that the reason for his criticism was the fact that the decision which dismissed his claims by one vote turned on the opinion of the presiding judge. In the lengthy notice of appeal the presiding judge was criticised in, inter alia, the following terms:
J. defends the accused.
J.’s conduct seems goal-directed.
J. began her decision with an unintelligent statement.
J.’s presentation is prejudiced and one-sided.
J. dismissed the charge on artificial grounds and made up one of the grounds all by herself.
J. based her judgment on a fairytale.
J.’s fumblings are naive.
J. manages to deal with one point by changing the contents of the accused’s statement.
J. falsifies the facts.
J. made up grounds for dismissing the charges and the grounds can be described as nit-picking.
J.’s findings are groundless.
J. has at some point of the trial made a predetermined decision to dismiss all the charges and twisted the facts accordingly.
According to the attorney’s code of conduct an attorney is, when appealing against a judgment, not allowed to use belittling expressions of the court or in any other manner subject the court’s work or its decisions to impertinent criticism.
The Disciplinary Board notes that apart from the expressions given as examples above, the notice of appeal as a whole contains belittling and impertinent criticism aimed personally at the presiding judge of the court. In some of the statements cited above J. is referred to as being guilty of lack of judgment, prejudice, falsification of facts and partiality in one party’s favour. If this were to be proven correct, it would mean that J. has abused her office. A has not submitted that he has taken any legal steps in that regard. The Disciplinary Board finds that A has acted in violation of the attorney’s code of conduct.
The Disciplinary Board issues a warning.”
The Finnish Bar Association is a registered entity and its duties are set out in legislation. Apart from protecting the interests of its members, it has certain public duties by virtue of the Advocates Act (laki asianajajista, lagen om advokater 495/1958).
According to section 3 (1) of the Advocates Act, a member of the Association shall, inter alia, be at least 25 years old, have full legal capacity and be honest and suitable for acting as attorney.
Section 6 imposes a duty upon the Board of Directors of the Bar Association to ensure that the attorneys comply with their obligations. By virtue of section 6a (1) disciplinary powers are vested in the Bar Association Disciplinary Board. This body is independent, but any decision to expel a member must, however, be submitted to the Board of Directors for approval. By virtue of section 6 (2) the members of the Board of Directors must act judicially when deciding disciplinary matters against an attorney, as must the members of the Disciplinary Board by virtue of section 6a (3).
Under section 7, the Bar Association has an obligation to take, when necessary, disciplinary measures. Such measures must be taken, if the member has intentionally acted in a wrongful or dishonest manner, neglected his, or her, obligations as an attorney, acted in violation of the attorney’s code of conduct or committed an act which may be harmful to the reputation of the legal profession. The disciplinary measures consist of expulsion, issuing a public warning, a non-public warning or an admonition.
For instance, if the member has acted in violation of the attorney’s code of conduct, he must be issued with an admonition or a warning, or, if the circumstances are grave, be expelled from the Bar Association.
An attorney, who has been expelled or given a public warning, has under section 10 (1) of the Advocates Act the right to appeal against the decision to the Court of Appeal of Helsinki, which has full jurisdiction in the case. Under subsection 2, the Chancellor of Justice has the right to appeal against any decisions on disciplinary matters. Thus, the attorney concerned has no appeal against a written warning given by the Disciplinary Board, unless the Board has decided to make the warning public.
The provisions in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) concerning the right to an oral hearing before the Court of Appeal were amended by an act (165/1998) which entered into force on 1 May 1998, i.e. after the Disciplinary Board gave its decision in the present case, but before it was served upon the applicant. By virtue of the entry into force and the transitional provisions the new provisions apply to a case that after their entry into force become pending before the Court of Appeal as the court of first instance.
According to the new provisions in the Code of Judicial Procedure, inter alia, chapter 26, section 14, an oral hearing shall be held in the Court of Appeal, if a party to a civil case or the injured party or the defendant in a criminal case so requests. However, such a hearing need not be held for the reasons mentioned above if, inter alia, the holding of a hearing is manifestly unnecessary.
Under the previous law the Court of Appeal could hold an oral hearing if it considered it necessary. The reservation made by Finland in accordance with Article 64 (now 57) of the Convention, according to which Finland cannot guarantee a right to an oral hearing insofar as the Finnish laws do not provide for such a right, concerned the courts of appeal until the entry into force of the amendment of 1 May 1998.


ITEMID: 001-59475
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF FRANZ FISCHER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (victim);Violation of P7-4
JUDGES: Nicolas Bratza
TEXT: 7. On 6 June 1996, the applicant, whilst driving under the influence of drink, knocked down a cyclist who was fatally injured. After hitting the cyclist, the applicant drove off without stopping to give assistance and only gave himself up to the police later that night.
8. On 13 December 1996, the St. Pölten District Administrative Authority (Bezirkshauptmannschaft), finding the applicant guilty of a number of road traffic offences, ordered him to pay a fine of 22,010 Austrian schillings (ATS) with twenty days’ imprisonment in default. This sentence included a fine of ATS 9,000 with nine days’ imprisonment in default imposed for driving under the influence of drink, contrary to sections 5 (1) and 99 (1)(a) of the Road Traffic Act 1960 (Straßenverkehrsordnung).
9. On 18 March 1997 the St. Pölten Regional Court (Landesgericht) convicted the applicant under Article 81 § 2 of the Criminal Code (Strafgesetzbuch) of causing death by negligence “after allowing himself ... to become intoxicated ... through the consumption of alcohol, but not to an extent which exclude[d] his responsibility ...”, and sentenced him to six months’ imprisonment.
10. The applicant’s appeal against conviction and sentence was dismissed by the Vienna Court of Appeal (Oberlandesgericht) on 24 June 1997. The applicant argued that, in the light of the Court’s Gradinger v. Austria judgment (23 October 1995, Series A no. 328-C), the decision of the Regional Court should be quashed. The Court of Appeal recognised that the double conviction violated Article 4 of Protocol No. 7 to the Convention. However, it found that, in spite of the Gradinger case, Austrian law remained unchanged. It distinguished the Gradinger judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings, whereas in the present case, the order was reversed. The Court of Appeal explained that the double punishment was possible because there was no provision of Austrian law which provided for a principle of “subsidiarity” between the administrative and the criminal proceedings in the present circumstances. It concluded that this could not hinder the criminal proceedings which had a much wider scope. The applicant’s conviction was therefore upheld.
11. On 19 May 1999 the sentence of six months’ imprisonment imposed on the applicant was reduced to five months by virtue of the Federal President’s prerogative of pardons.
12. Section 5 (1) of the Road Traffic Act 1960 provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively.
13. Section 99 of the 1960 Act, so far as relevant, provided at the material time, that:
“(1) It shall be an administrative offence (Verwaltungsűbertretung), punishable with a fine of not less than ATS 8,000 and not more than ATS 50,000 or, in default of payment with one to six weeks’ imprisonment, for any person:
(a) to drive a vehicle when under the influence of drink ...
(6) An administrative offence is not committed where: ...
(c) facts constituting an offence under sub-sections (2), (2a), (2b), (3) or (4) also constitute an offence falling within the jurisdiction of the [ordinary] courts ... .”
14. In its judgment of 5 December 1996 the Constitutional Court had to examine the constitutionality of section 99 subsection (6)(c) of the Road Traffic Act, by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts.
The Constitutional Court noted that it was not contrary to Article 4 of Protocol No. 7 if a single act constituted more than one offence. This was a feature common to the criminal law of many European countries. However, it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute more than one offence, whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment. Thus, Article 4 of Protocol No. 7 prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other. Where, as in the present case, the law explicitly provided that one offence was not subsidiary to another, it had to be guided by Article 4 of Protocol No. 7. The Court’s Gradinger judgment of 23 October 1995 had shown that there was a breach of this Article if an essential aspect of an offence, which had already been tried by the courts, was tried again by the administrative authorities.
Section 99 subsections (1)(a) and (6)(c) of the Road Traffic Act, taken together, meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent. According to the criminal courts’ constant case-law under section 81 § 2 of the Criminal Code (cited below), drunken driving was also an essential aspect of certain offences tried by these courts. Insofar as section 99 (6)(c) of the Road Traffic Act limited the subsidiarity of administrative offences to those enumerated in subsections (2) to (4) of section 99, thus excluding subsidiarity for the offence of drunken driving contained in section 99 (1)(a), it violated Article 4 of Protocol No. 7.
15. Under Article 80 of the Criminal Code, it is an offence, punishable by up to one year’s imprisonment, to cause death by negligence. Where the special circumstances of Article 81 § 2 apply, the maximum possible sentence is increased to up to three years’ imprisonment.
16. Article 81 § 2 applies where a person commits the offence
“after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state”.
By virtue of an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be “intoxicated” for the purposes of Article 81 § 2.


ITEMID: 001-100893
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF KRAMARZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki
TEXT: 6. The applicant was born in 1953 and lives in Dębica.
7. The applicant was a party to civil proceedings concerning division of co-ownership of a certain plot of land. The proceedings were instituted in 2001. On 12 February 2003 the Lwówek Slaski District Court awarded the plot to a certain M.K. and ordered that a certain amount should be paid to the applicant.
8. On 9 October 2003 the Jelenia Góra Regional Court partly amended the firstinstance decision increasing the amount awarded to the applicant and dismissed the remainder of his appeal.
9. On 14 October 2003 the applicant requested to be served with written grounds to that judgment. On 12 December 2003 the court served him with them and the thirtyday timelimit for lodging of a cassation appeal started to run.
10. By a letter of 12 December 2003, served on the court on 18 December 2003, the applicant requested that a legalaid lawyer be assigned to the case to prepare a cassation complaint. On the same day the court requested the applicant to submit a statement of his financial situation in order to be able to examine his request.
11. On 6 January 2004 the Jelenia Góra Regional Court granted the applicant's request for legal aid. On 13 January 2004 the Wałbrzych Bar Association assigned a legalaid lawyer to the case.
12. On 16 and 20 January 2004 the applicant and the lawyer had a telephone conversation. In a letter to the lawyer dated 20 January 2004 the applicant explained in a detailed manner the legal context of the case and the reasons for which he was of the view that a cassation complaint offered prospects of success.
13. In a letter to the court dated 22 January 2004 the lawyer explained in detail why she saw no grounds on which to prepare a cassation complaint in the applicant's case.
14. On 3 March 2004 the legal-aid lawyer sent a copy of his opinion to the applicant. It was served on the applicant on 8 March 2004. On 8 March 2004 also the court sent the lawyer's opinion to the applicant.
15. On 30 August 2007 the applicant requested the Lwówek Slaski District Court to exempt him from costs of making copies of documents in the case-file. On 6 September 2007 the Lwówek Slaski District Court dismissed the applicant's request as unfounded. The court established that the applicant owned property of 4,16 ha and the proceedings had ended in 2003 so he had enough time to collect founds for that purpose. On 12 October 2007 the Jelenia Góra Regional Court dismissed the applicant's interlocutory appeal.
16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court's judgments in the cases of Siałkowska v. Poland, no. 8932/05, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 March 2007; Smyk v. Poland, no. 8958/04, 28 July 2009; Zapadka v. Poland, no. 2619/05, 15 December 2009; Bąkowska v. Poland, no. 33539/02, 12 January 2010.
17. In particular, the Supreme Court has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within a period of thirty days counted from the day of service of the judgment on the party. The parties waiting for legal-aid services cannot be held at fault for shortcomings in the system. A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it. A request to appeal out of time should therefore be submitted within seven days from the date on which the legal-aid lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local Bar Association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01;
18. In a resolution adopted by a bench of seven judges of the Supreme Court on 17 February 2009 (III CZP 117/08) that court acknowledged that there had been discrepancies in the manner in which the beginning of the seven-day time limit for submitting an application for leave to appeal out of time by legally-assisted parties had been determined. The court was of the view that applications for leave served the purpose of making access to the Supreme Court for legally-aided parties genuine and effective. Hence, the beginning of the time-limit could not be determined in a mechanical manner in all cases. The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93730
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF IGARIENE AND PETRAUSKIENE v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1938 and 1968 respectively and live in Kaunas.
5. On 17 November 1992 the Kaunas City Board restored the applicants’ property rights to part of a building in Kaunas. In particular, it restored in kind the applicants’ property rights to the flats in which they lived. The property restitution decision specified that the property rights to the uninhabited part of the building (hereafter “the disputed premises”) would be restored in accordance with the procedure and terms fixed by the Government.
6. On 15 October 1993 the Kaunas City deputy mayor and the applicants signed a statement of transfer acceptance (priėmimo-perdavimo aktas), by which the disputed premises were transferred to the applicants. On 21 December 1993 the applicants registered their title to the premises.
7. By a decision of 21 March 1994, the Kaunas City mayor declared the statement of transfer acceptance unlawful and consequently null and void. By a decision of 31 May 1994 the Kaunas City Board supplemented the decision of 17 November 1992 with a clause which specified the form in which the property rights were to be restored. Therein it was decided to pay compensation for the disputed premises, at that time occupied by a pharmacy, after the Government had determined the means and the procedure by which compensation was to be paid.
8. By a decision of 14 June 1994, the Kaunas City Board transferred the disputed premises from the balance sheet of one State-run company to the balance sheet of the State-run company of Kaunas area pharmacies. Subsequently, by a decision of the Kaunas City Board of 14 June 1996, the disputed premises were transferred into the private ownership of the closed-stock company, Šlamučio vaistinė.
9. On 3 June 1994 the applicants, together with other persons in a similar situation, brought a civil claim, challenging the local authorities’ decisions of 21 March 1994 and 31 May 1994. It was dismissed as unsubstantiated by the Kaunas City District Court on 4 July 1994.
10. On 22 August 1994 the Supreme Court quashed the lower court’s decision and remitted the case for a fresh examination. The Supreme Court noted that the lower court had not examined all the relevant circumstances. In particular, it had not taken account of the fact that, at the time of the adoption of the impugned decisions, the applicants had already been recognised as the owners of the entire building. The Supreme Court observed that only a court and not a local authority could have annulled the applicants’ ownership rights.
11. On 7 October 1994 the Kaunas City District Court decided to suspend the civil proceedings further to a request by V.A., one of the plaintiffs in the case, on account of the illness of one of his relatives, who also was a plaintiff in that case. The court ordered V.A. to inform it when his relative’s state of health would allow her to participate in the proceedings.
12. On 1 July 1999 the Kaunas City District Court of its own motion resumed the civil proceedings.
13. On 9 September 1999 the Kaunas City District Court granted the applicants’ claim. It declared the local authority’s decisions of 21 March 1994 and 31 May 1994 null and void, restoring the applicants’ title to the premises occupied by the pharmacy.
14. On 28 February 2000 the Kaunas Regional Court upheld that decision.
15. On 12 September 2000 the Supreme Court quashed the lower courts’ decisions and returned the case to the Kaunas City District Court for an examination de novo. The Supreme Court considered that the lower courts had again failed to assess all the relevant circumstances – even those to which attention had been drawn in its decision of 22 August 1994 – and that they had erred in law.
16. On 18 February 2004 the Kaunas City District Court dismissed the applicants’ action. The court observed that the law had not provided for restitution in kind of immovable property if it had been occupied by public-interest institutions, such as a pharmacy. The court further interpreted the decision of 17 November 1992, noting that it could not have been read as guaranteeing restitution in kind of the entire building, but only of the unoccupied part. The court annulled the ambiguous phrasing of the decision, leaving it to the local authorities to determine how to remedy the situation, either by pecuniary compensation or by the transfer of an equivalent property.
17. On 23 September 2004 the Kaunas Regional Court upheld the decision of the first-instance court.
18. On 26 January 2005 the Supreme Court dismissed a cassation appeal by the applicants.
19. On 25 May 2005 certain parties to the case, including the applicants, submitted a request to the Kaunas City District Court to interpret its decision of 18 February 2004. Their request was dismissed on 21 June 2005.
20. On 3 April 2006 V.A. instituted civil proceedings challenging the initial proportions of the applicants’ and other interested parties’ property rights, as set in the decision of 17 November 1992. By a final decision of 5 September 2007 the Kaunas City District Court left V.A.’s request unexamined because V.A., although having been duly informed about the hearing, failed to appear in court.
21. On 11 December 2008 the head of the Kaunas City Municipality issued an order to pay the applicants pecuniary compensation for the disputed premises. The compensation was to be paid in three instalments and on 29 December 2008 the applicants received the first payment due. The two remaining instalments are to be paid in 2009 and 2010.
22. The relevant domestic law and practice concerning the domestic remedies with regard to length of proceedings complaints have been summarised in the judgment of Četvertakas and Others v. Lithuania (no. 16013/02, §§ 19-22, 20 January 2009). In addition, Article 484 of the Civil Code, in force until 1 July 2001, provided that an organisation was to compensate for any damage which its employees had caused while performing their professional duties.
23. The Law on the procedure and conditions for thr restoration of ownership rights to existing real property (Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų), enacted on 18 June 1991 and amended on numerous occasions, provided for two forms of restitution – the return of the property in kind or compensation for it if its physical return was not possible. Pursuant to Article 14 of the Law, if a house had been converted into non-residential premises which had been given to a medical institution or used for medical purposes, those premises were to be bought out by the State. The local authorities were competent to decide on the method of compensation.
24. On 27 May 1994 the Constitutional Court examined the issue of the compatibility of the Constitution with the domestic laws on the restoration of property rights. In its decision the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be treated as “property under the de facto control of the State”. The Constitutional Court stated:
“The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property. In such a situation the legal effect of a decision by a competent authority to return the property or to provide compensation is such that only from that moment does the former owner obtain property rights to a specific property.”
The Constitutional Court also held that fair compensation for property which could not be returned in kind was compatible with the principle of the protection of property.
25. On 20 June 1995 the Constitutional Court affirmed that the choice by Parliament of the partial reparation principle was influenced by the difficult political and social conditions, in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”.
26. The Law on the restoration of citizens’ ownership rights to existing real property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas), which was enacted on 1 July 1997 and which repealed the Law on the procedure and conditions for the restoration of ownership rights to existing real property, at the material time read as follows:
“1. Ownership rights to residential houses, portions thereof and flats shall be restored to persons specified in Article 2 of this Law by returning them in kind, except for residential houses, portions thereof and flats which are subject to a State buyout pursuant to Article 15 of this Law...”
“Residential houses, portions thereof and flats shall be bought out by the State from the citizens specified in Article 2 of this Law, who shall be compensated in accordance with Article 16 of this Law, provided that such residential houses, portions thereof or flats:
(1) have been converted into premises unfit for human occupancy and used for educational, health care protection, cultural or scientific purposes, or by communal care residences. The list of such premises shall be approved by the Government...”
“1. The State shall compensate citizens for existing real property which is bought out by the State, as well as for real property which existed prior to 1 August 1991 but subsequently ceased to exist as a result of decisions adopted by the State or local authorities.
2. When the State compensates citizens for real property which, in accordance with this Law, is not returned in kind, the principle of equal value shall be applied to both the property that is not returned and other property which is transferred instead of it as compensation for the property bought out by the State. ...
7. Compensation for buildings used for economic and commercial purposes, residential houses, portions thereof and flats which are not returned pursuant to this Law shall be established in accordance with the methods approved by the Government. ...”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-5526
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BLOKKER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1943 and living in Haarlem. He is represented before the Court by Mr J. Koekoek, a lawyer practising in Haarlem.
A.
On 7 April 1997, while driving a car, the applicant was stopped by the police for an alcohol test. A breath test taken from him disclosed an alcohol level of 655 μg/l. As this was higher than 220 μg/l, the statutory maximum level, the police confiscated (invordering) his driving licence.
On 10 April 1997, the applicant was informed by the public prosecutor at the Haarlem Regional Court (Arrondissementsrechtbank) that his driving licence would remain confiscated for a period of nine months. On 21 April 1997, the applicant filed an objection (bezwaarschrift) with the Haarlem Regional Court against the public prosecutor’s decision to confiscate his driving licence. In this objection, the applicant mentioned having paid a fine in 1995 for drunken driving and explained that he needed his driving licence for professional reasons. He further explained that, on 7 April 1997, he had consumed more alcohol than legally allowed for driving as he had been under a great emotional stress caused by private circumstances. In his opinion, to deprive him of his driving licence for such a lengthy period was disproportionate in that it would not only affect his own professional activities, but also those of the persons working for him.
By summons of 22 April 1997, the applicant was ordered to appear on 21 May 1997 before the Magistrate (politierechter) of the Haarlem Regional Court on charges of drunken driving. On 21 May 1997, the Magistrate convicted the applicant of drunken driving. The applicant was sentenced to payment of a fine of NLG. 2,500 and disqualification for driving for a period of six months (ontzegging rijbevoegdheid). The disqualification for driving was suspended pending a probation period of two years. The applicant did not file an appeal against this judgment.
Also on 21 May 1997, the Haarlem Regional Court determined the applicant’s objection of 21 April 1997. It held that, although the public prosecutor’s decision of 10 April 1997 could not be regarded as unreasonable, the applicant’s written and oral submissions disclosed reasons for ordering that the confiscated driving licence be returned to the applicant and, consequently, issued an order to this effect.
By letter of 27 May 1997 the applicant was informed that, following information provided by the police on 7 April 1997, the Minister of Transport, Public Works and Water Management (Minister van Verkeer en Waterstaat; hereinafter “the Minister”) had decided that the applicant should be subjected to an Educational Measure Alcohol and Traffic (Educatieve Maatregel Alcohol en Verkeer; hereinafter “EMA”). He was further informed that the costs of this measure, i.e. NLG. 500, were to be paid by himself. He was warned that a failure to co-operate in respect of the EMA would result in declaring his driving licence invalid.
The applicant’s objection (bezwaar) against the decision of 27 May 1997 was rejected by the Minister. The applicant was informed of this by letter of 15 October 1997. The applicant filed an appeal against this rejection with the Haarlem Regional Court, which was rejected by the President of this court by judgment of 27 January 1998.
The applicant filed an appeal against the judgment of 27 January 1998 with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). Relying on Article 6 of the Convention under its criminal head, he argued that the imposition of the EMA constituted a double punishment or punitive measure since the criminal court had already dealt with his case. He further complained that, as his driving licence had already been returned to him, the imposition of the EMA constituted undue hardship. He further complained of unequal treatment as persons in whom a higher alcohol percentage is found are not subject to an EMA imposition, but are subjected to a medical examination.
In its decision of 29 April 1998, the President of the Administrative Jurisdiction Division rejected the applicant’s appeal. Insofar as relevant, the President of the Administrative Jurisdiction Division held:
<Translation>
“The President [of the Regional Court] has justly considered that, with the fact that the appellant was found to have an alcohol level of 655 μg/l, the requirements set out in the relevant rules for imposing the Educational Measure have been fulfilled.
The circumstance that the criminal court, at the time of the imposition of the Educational Measure, had already taken a decision as to the confiscation of the appellant’s driving licence does not alter this, as the confiscation under criminal law of the driving licence on grounds of Article 164 of the 1994 Road and Traffic Act (Wegenverkeerswet) concerns a wholly different procedure than the administrative law measure of imposing the obligation to comply with an Educational Measure. The legislator does not exclude that, in addition to dealing with an offence involving alcohol under criminal law, an administrative law measure is imposed like the obligation to comply with an Educational Measure. ... A connection between the criminal and administrative procedures in the Road and Traffic Act, as the appellant apparently wants to make, has not been intended by the legislator. The circumstance that the criminal procedure apparently has ended prior to the administrative law procedure, therefore, has no consequences for the imposition of the Educational Measure.
The President shares the opinion of the president <of the Regional Court> that imposing on the appellant the obligation to subject himself to an Educational Measure cannot be regarded as a “criminal charge” within the meaning of Article 6 of the Convention. The qualification given by the legislator to the measure, the aim the measure pursues, the nature and seriousness of the measure and the lacking of a punitive character of the measure make that it does not concern a punishment or sanction as argued by the appellant.
As to the appellant’s argument that the regulation results in an unequal treatment of motorised vehicle drivers having consumed alcohol, the President subscribes in the first place to the finding of the president <of the Regional Court> that it does not concern similar cases. Motorised vehicle drivers, with whom at the time when they are stopped <by the police> a breath alcohol level higher than 915 μg/l is found are not in a similar situation that drivers with whom an alcohol level between 570 μg/l and 915 μg/l is found. Like the president <of the Regional Court>, the President finds no basis for the correctness of the appellant’s contention that persons having driven a car with a considerable higher alcohol percentage receive a less severe treatment that persons like him. In this connection, the President points to the possibility, as mentioned by the president [of the Regional Court], of suspending the validity of the driving licence of persons falling in the “heavier category”. Furthermore, unlike persons falling in the “heavier category”, the applicant will not be confronted with an examination of his driving ability or suitability with, as a possible result, a declaration of invalidity of his driving licence.”
B. Relevant domestic law and practice
Where suspicion arises as to the driving ability or the physical or mental suitability to drive of a holder of a driving licence, the police or other public officials as designated by an Order in Council (Algemene Maatregel van Bestuur) are obliged, under Article 130 § 1 of the 1994 Road and Traffic Act (Wegenverkeerswet), to report this in writing to the Minister of Transport, Public Works and Water Management (“the Minister”).
Under Article 131 § 1 of the 1994 Roads and Traffic Act, the Minister may order, in case the information transmitted gives reason for doing so, that the driving licence holder concerned must be subjected to an investigation of his or her driving ability or suitability. In case the results of such an investigation are unsatisfactory, the Minister may declare the driving licence of the person concerned invalid.
Under Article 131 § 5 of the 1994 Road and Traffic Act, the Minister may decide, where the Minister finds that the information transmitted does not disclose a need for an investigation of the driving ability or suitability, to subject the driving licence holder concerned to an Educational Measure.
Pursuant to Article 132 § 1 of the Road and Traffic Act, the person in respect of whom it has been decided to impose an Educational Measure is obliged to co-operate in the execution of the Educational Measure. According to Article 132 § 2 of the Road and Traffic Act the Minister, in case of failure of co-operation of the person concerned, shall immediately decide to declare invalid (ongeldigheidsverklaring) the driving licence held by that person.
Article 8 §§ 1 and 2 of the Regulation measures driving ability and suitability (Regeling maatregelen rijvaardigheid en geschiktheid), published in the Official Gazette (Staatscourant) 1996, nr. 183, provides that the Minister shall impose an Educational Measure Alcohol and Traffic (“EMA”) where:
- it has been found that the person concerned had a breath or blood alcohol level higher than, respectively, 570 μg/l or 1.3‰ and not higher than, respectively, 915 μg/l or 2.1‰; or
- it has been found that the person concerned had a breath or blood alcohol level higher than, respectively, 350 μg/l or 0.8‰ whereas the person concerned, within a previous period of five years has been stopped <by the police> on suspicion of driving under the influence of alcohol or another substance of which the person concerns knows or should know that it affects the ability to drive.
According to Article 10 of the Regulation measures driving ability and aptitude, the costs of an Educational Measure are to be borne by the person concerned.
An EMA consists of teaching sessions, given by a teacher of the Centre for Alcohol and Drugs, about the risks of driving under influence. The total duration of an EMA is three full days (one day per week) and it is finished by an individual evaluation lasting about 1½ hours on the fourth day. The teacher will transmit a report to the Minister on his or her findings as to the participation of the person concerned in the EMA. On the basis of these findings, the Minister will decide whether or not the driving licence of the person concerned is to be declared invalid.
A person subjected to an Educational Measure may file an objection with the Minister against that decision. An appeal against the Minister’s decision on such an objection lies with the Administrative Jurisdiction Division of the Council of State.
Only the Minister is competent to order the imposition of an EMA. Consequently, it cannot be imposed by a criminal court judge as part of a sentence in cases where a person has been convicted of a traffic offence. Under Article 179 of the Road and Traffic Act, a criminal court may - after having convicted a driver of, inter alia, drunken driving - impose as a secondary penalty (bijkomende straf) disqualification for driving for a maximum period of five years. In case the conviction of, inter alia, drunken driving is the second one during a period of five years, the disqualification can be ordered for a maximum period of ten years.


ITEMID: 001-68328
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DENISOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Aleksandr Nikolayevich Denisov, is a Ukrainian national, who was born in 1973 and lives in Dimitrov, the Donetsk Region.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 February 2001 the Dimitrov City Court ordered the Stakhanov State-owned mine to make an extraordinary grant to the applicant in the amount of UAH 19,745.42 by way of compensation for an occupational disability.
On 1 March 2001 the Dimitrov City Baillifs initiated the enforcement proceedings in the case.
On 11 March 2002 the Dimitrov City Department of Justice (відділ Державної виконавчої служби Димитровського міського управління юстиції) informed the applicant that it had received a writ of execution (виконавчий лист), dated 6 February 2001, on 2 March 2001 and that the total compensation received by the applicant to date had been UAH 8,500.
On 8 May 2002 the Dimitrov City Department of Justice informed the applicant that, in accordance with section 44 of the Law of Ukraine “on execution proceedings” (Про виконавче провадження), extraordinary grants should be paid as a matter of priority, applying the coefficients stipulated in the said Law. It further stated that the total compensation received by the applicant to date had been UAH 9,203.42.
The judgment was fully enforced in October 2002 and the enforcement proceedings were discontinued.
On 17 June 2003 the Dimitrov City Bailiffs sent the applicant the schedule of payments which had been made. It mentioned that, as from 6 February 2001, the applicant had been paid the whole amount of UAH 19,745.42 in 18 instalments (at least once a month).
On 19 July 2003 the applicant informed the Court that the full amount awarded by the judgment of 6 February 2001 had indeed been paid to him.
On 6 April 2004 the applicant, in response to a strike-out warning letter from the Registry requesting him to submit comments on the Government's observations, informed the Court, without giving any details that he wished to pursue his application.


ITEMID: 001-86861
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TASE v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1957 and lives in Ploieşti.
5. The Ploieşti police started an investigation into allegations that the applicant had stolen petroleum products from his employer, an oil company.
6. On 6 June 2002, the applicant was apprehended by the police.
On 7 June 2002 the prosecutor attached to the Prahova County Court issued an arrest warrant against the applicant for thirty days, until 6 July 2002. The prosecutor’s order gave the following reasons for seeking the applicant’s arrest:
“the offence is punishable by more than two years’ detention, and [the applicant’s] continued liberty represents a threat to ordre public.”
7. On 4 July 2002 the applicant was brought before the County Court in order to have the lawfulness of his committal for trial and of his pre-trial detention verified. The applicant’s lawyer requested that the detention order be set aside and the applicant released, arguing, in particular, that the arrest warrant was unlawful and that the measure of placing the applicant in pretrial detention had been taken automatically and too easily, as there was no evidence that he had committed the offence in question.
8. On 4 July 2002 the Prahova County Court, considering that the reasons justifying the initial measure remained unchanged, ordered the applicant’s detention in custody for thirty more days, namely until 5 August 2002. It noted that its decision was subject to appeal at the same time as the judgment on the merits of the case.
9. Four more hearings took place before the County Court. Each time the applicant’s pre-trial detention was extended for similar reasons to those of 4 July 2002, until the judgment on the merits was delivered. No further grounds were given by the County Court.
10. On 9 October 2002 the Prahova County Court convicted the applicant of aggravated theft and imposed a one-year suspended sentence.
11. The applicant was released from custody on 10 October 2002.
12. The Supreme Court of Justice dismissed an appeal lodged by the applicant and upheld the County Court’s judgment in a final decision of 7 July 2003.
13. Meanwhile, on 8 August 2002, the applicant was dismissed from his job in application of the Labour Code, as his detention had exceeded sixty days. He found a new job on 12 December 2004.
14. The procedure for lodging complaints against preventive measures, including pre-trial detention, is described in Article 1401 of the Code of Criminal Procedure (see Anghelescu v. Romania (dec.), no. 46430/99, 2 December 2003).
15. Under Article 141 of the Code of Criminal Procedure, only the decision whereby the court takes, sets aside, replaces or ends a preventive measure can be appealed against independently from the judgment on the merits of the case, and this must be done within three days of the date of the interlocutory judgment.
16. Persons who have been unlawfully detained can avail themselves of two actions for damages described in the Code of Criminal Procedure and in the Civil Code respectively.
17. The relevant Article of the Code of Criminal Procedure provides:
“Anyone who has been convicted by a final decision is entitled to compensation from the State for any loss or damage sustained where, after a retrial, it is held in a judgment against which no appeal lies that he did not commit the offence in question or that no offence was committed.
Anyone against whom a preventive measure has been taken, and in whose favour a decision to discontinue proceedings or acquit has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for damage sustained...”
18. In a decision of 10 March 1998, published on 18 May 1998 in the Official Journal, the Constitutional Court, to which an objection had been submitted alleging that the first paragraph of Article 504 of the Code of Criminal Procedure was unconstitutional, ruled as follows:
“Under Article 48 of the Constitution, the State is liable for damage caused by miscarriages of justice committed in criminal proceedings. It follows that the principle of the State’s liability towards victims of a miscarriage of justice in a criminal trial must be applied to all victims of such a miscarriage. ... The Court notes that the legislature has not brought the provisions of Article 504 of the Code of Criminal Procedure into conformity with those of Article 48 § 3 of the Constitution. ... Consequently, bearing in mind that Article 504 of the Code of Criminal Procedure provides for only two cases in which the State’s responsibility for miscarriages of justice committed in criminal proceedings may be engaged, it follows that this restriction is unconstitutional, since Article 48 § 3 of the Constitution does not allow for any such limitation.”
Article 504 has been modified by Law no. 281/2003. Its new version reflects the Constitutional Court’s decision above.
19. The relevant Articles of the Civil Code provide:
“Anyone who, through his own fault, causes damage to another shall be liable to make reparation for it.”
“Anyone who causes damage as a result of his own action, his failure to act or his negligence shall be liable for that damage.”
VIOLATED_ARTICLES: 5