ITEMID: 001-87411
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TOKIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1934 and lives in Lukavac.
6. On 16 August 1999 the local police searched the applicant and found a hand grenade on him. The police acted on a tip-off because the applicant had a history of violent outbursts, including the killing of his first wife.
7. On 24 January 2000 he was charged with possessing a prohibited weapon.
8. On 14 November 2001 the Gračanica Municipal Court found the applicant not guilty by reason of insanity (paranoid schizophrenia) and imposed a hospital order on him under Article 63 of the Criminal Code of the Federation of Bosnia and Herzegovina 1998 (“old Criminal Code”). The decision entered into force on 28 January 2002.
9. On 28 June 2002 he was placed in Zenica Prison Forensic Psychiatric Annex.
10. On 4 July 2003 the Gračanica Municipal Court reviewed the necessity of the applicant’s continued confinement pursuant to Article 480 § 1 of the Code of Criminal Procedure of the Federation of Bosnia and Herzegovina 1998 (“old Code of Criminal Procedure”). It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex that the applicant’s condition did not allow for his discharge.
11. On 11 November 2003 the applicant lodged a complaint with the Human Rights Chamber concerning the lawfulness of his detention.
12. On 3 March 2004 the Gračanica Municipal Court relinquished jurisdiction in favour of the Social Work Centre in Gračanica pursuant to Article 420 of the Criminal Code of the Federation of Bosnia and Herzegovina 2003 (“new Criminal Code”).
13. On 23 November 2004 the Social Work Centre in Gračanica established that the applicant’s mental disorder no longer warranted his confinement and ordered his conditional discharge. He was released from Zenica Prison Forensic Psychiatric Annex on 8 December 2004.
14. In the light of the applicant’s release, on 26 June 2007 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), the legal successor of the Human Rights Chamber, held that it was no longer justified to continue the examination of the applicant’s case.
15. The applicant was born in 1971 and lives in a care home in Fojnica.
16. On 31 March 1999 he threatened Z.B. with a knife on the premises of the Social Work Centre in Goražde.
17. On 16 April 1999 he was charged with threatening behaviour.
18. On 17 June 1999 the Goražde Municipal Court found the applicant not guilty by reason of insanity (schizophrenia) and imposed a hospital order on him under Article 63 of the old Criminal Code. The decision entered into force immediately.
19. On 21 June 1999 the applicant was placed in Zenica Prison Forensic Psychiatric Annex.
20. On 26 November 2001 the Goražde Municipal Court established that the applicant’s mental disorder no longer warranted his confinement and ordered his conditional discharge. He was released on 9 January 2002.
21. On 17 January 2002 the Goražde Municipal Court recalled the applicant to Zenica Prison Forensic Psychiatric Annex, after he had been found to be abnormally aggressive by Sarajevo Psychiatric Hospital.
22. On 21 January 2003 the applicant complained of the unfairness and outcome of the criminal proceedings (which had ended on 17 June 1999) to the Human Rights Chamber.
23. On 20 January 2004 the Goražde Municipal Court relinquished jurisdiction in favour of the Social Work Centre in Goražde pursuant to Article 420 of the new Criminal Code.
24. Relying on section 22 of the Mental Health Act of the Federation of Bosnia and Herzegovina 2001 (“Mental Health Act”), on 18 February 2004 the Social Work Centre in Goražde reviewed the necessity of the applicant’s continued confinement. It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex that the applicant’s condition did not allow for his discharge. The applicant appealed to the Cantonal Ministry for Social Affairs in Goražde pursuant to the instructions of the social work centre.
25. On 10 May 2004 the Cantonal Ministry for Social Affairs in Goražde declined jurisdiction and, since it was unable to determine the competent body to which to transfer the file, dismissed the appeal. The applicant lodged a further appeal with the Goražde Cantonal Court.
26. On 9 July 2004 the Goražde Cantonal Court dismissed the appeal because the applicant had not appealed to the competent second-instance body. The Goražde Cantonal Court was silent regarding which body was competent at second instance.
27. On 22 November 2004 the applicant complained of the unlawfulness of his detention to special chambers which had been created within the Constitutional Court on 1 January 2004 with a mandate to decide on cases received by the former Human Rights Chamber (namely, the Human Rights Commission within the Constitutional Court).
28. On 13 June 2006 the Social Work Centre in Goražde established that the applicant’s mental disorder no longer warranted his confinement and ordered his unconditional discharge. It relied on section 25(2) of the Mental Health Act. The applicant was released from Zenica Prison Forensic Psychiatric Annex on 16 June 2006.
29. On 26 June 2007 the Constitutional Court, the legal successor of the Human Rights Chamber, dismissed the applicant’s complaint of 21 January 2003 as out of time and that of 22 November 2004 as incompatible ratione temporis: the Constitutional Court had jurisdiction to deal only with those unresolved cases of the former Human Rights Chamber which had been introduced by 31 December 2003.
30. The applicant was born in 1966. He is still in Zenica Prison Forensic Psychiatric Annex.
31. On 12 July 1999 the applicant killed his parents under the delusion that they were trying to kill him. On the same day, having surrendered himself to the police, the applicant was remanded in custody.
32. On 21 September 1999 he was charged with two counts of murder.
33. On 9 November 1999 the Mostar Cantonal Court found the applicant not guilty by reason of insanity (schizophrenia) and imposed a hospital order on him under Article 63 of the old Criminal Code. The decision entered into force on 22 November 1999.
34. On 28 November 2000 the applicant was transferred from the remand section of Mostar Prison to Zenica Prison Forensic Psychiatric Annex.
35. On 20 December 2002 and 22 October 2003 the Mostar Cantonal Court reviewed the necessity of the applicant’s continued confinement pursuant to Article 480 § 1 of the old Code of Criminal Procedure (notwithstanding the fact that the Code was in force only until 31 July 2003). It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex that the applicant’s condition did not allow for his discharge.
36. On or around 23 March 2004 the Mostar Cantonal Court relinquished jurisdiction in favour of the Social Work Centre in Mostar pursuant to Article 420 of the new Criminal Code.
37. On 7 November 2005 the applicant complained to the Constitutional Court of the unlawfulness of his detention. His application and a number of other similar applications were subsequently joined.
38. On 21 December 2006 the Constitutional Court found that the applicant (like others in a similar situation) had found himself in a legal vacuum following the 2003 reform of the criminal legislation. Furthermore, it held that Zenica Prison Forensic Psychiatric Annex was not an appropriate institution for the detention of mental health patients. As a result, the Constitutional Court found breaches of Article 5 §§ 1 and 4 of the European Convention on Human Rights and ordered the competent authorities to undertake such legislative and other measures as might be necessary within three months of delivery of the decision. The decision was delivered on 7 February 2007. It would appear that the applicant and the other complainants did not seek any compensation.
39. The applicant was born in 1982 and lives in Sarajevo.
40. On 19 January 2003 he entered a tram and stabbed I.D. for no apparent reason. I.D. survived the attack.
41. On 21 January 2003 the applicant killed E.G. under the delusion that he was persecuting his mother. He was remanded in custody the same evening.
42. On 17 March 2003 the applicant was charged with murder.
43. On 20 March 2003 he was transferred from the remand section of Sarajevo Prison to Zenica Prison Forensic Psychiatric Annex
44. On 9 April 2003 the Sarajevo Cantonal Court found the applicant not guilty by reason of insanity (hebephrenic schizophrenia) and imposed a hospital order on him under Article 63 of the old Criminal Code. The decision entered into force on 24 April 2003.
45. On five occasions (28 November 2003, 9 June 2004, 11 March 2005, 10 April 2006 and 16 November 2006), the Sarajevo Cantonal Court reviewed the necessity of the applicant’s continued confinement pursuant to Article 480 § 1 of the old Code of Criminal Procedure (although the Code was no longer in force). It decided on the basis of reports prepared by Zenica Prison Forensic Psychiatric Annex and Sarajevo Psychiatric Hospital that the applicant’s condition did not allow for his discharge.
46. On 17 May 2005, 23 May 2006 and 8 February 2007 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the decisions of 11 March 2005, 10 April 2006 and 16 November 2006 respectively.
47. On 21 December 2006 the Constitutional Court examined a number of joined applications (including that of Mr Hadžić) and found breaches of Article 5 §§ 1 and 4 of the European Convention on Human Rights (see paragraphs 37-38 above).
48. On 25 June 2007 the Sarajevo Cantonal Court established that the applicant’s mental disorder no longer warranted his confinement and ordered his conditional discharge. It relied on Article 480 § 2 of the old Code of Criminal Procedure (although the Code was no longer in force). The applicant was released from Zenica Prison Forensic Psychiatric Annex on 10 July 2007.
49. There are two legal regimes applicable to psychiatric detention.
50. First of all, the competent civil court can order compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm (see sections 22(1), 29(1) and 31(1) of the Mental Health Act of the Federation of Bosnia and Herzegovina 2001; Zakon o zaštiti osoba sa duševnim smetnjama; published in the Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 37/01 of 15 August 2001; amendments published in OG FBH no. 40/02 of 21 August 2002; “Mental Health Act”). The patient concerned must be summoned by the court, where this is possible, and must be examined in person by a psychiatrist (see sections 30(3) and 31(2) of the Mental Health Act). Proceedings must be concluded within seven days and a court decision must be issued within next three days (see sections 45(2) and 53(1) of the Non-Contentious Proceedings Act of the Federation of Bosnia and Herzegovina 1998; Zakon o vanparničnom postupku; published in OG FBH no. 2/98 of 20 January 1998; amendments published in OG FBH nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005). A court decision ordering civil psychiatric detention must always indicate the duration of such detention; that period cannot be longer than one year, but is renewable (see sections 33-35 of the Mental Health Act). The patient concerned, among other authorised persons and bodies, has the right to appeal within eight days (see section 37 of the Mental Health Act). The competent second-instance court must give a decision within three days (ibid.). A civil psychiatric detainee has the right to seek judicial review of his or her detention at any time (see section 40 of the Mental Health Act).
51. Secondly, the competent criminal court can impose a hospital order (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi) on an offender who at the time of committing a criminal offence was suffering from a mental disorder affecting his or her mental responsibility, if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence. However, there is an important difference in this regard between the old and new criminal legislation (the latter entered into force on 1 August 2003). While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility, it can no longer be imposed against those who have been found not guilty by reason of insanity (see Article 74 § 1 of the Criminal Code of the Federation of Bosnia and Herzegovina 2003; Krivični zakon Federacije Bosne i Hercegovine; published in OG FBH no. 36/03 of 29 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 21/04 of 17 April 2004, 69/04 of 7 December 2004 and 18/05 of 23 March 2005).
52. Accordingly, as from 1 August 2003 an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm (see paragraph 50 above). Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure (see Article 410 § 1 of the Code of Criminal Procedure of the Federation of Bosnia and Herzegovina 2003; Zakon o krivičnom postupku Federacije Bosne i Hercegovine; published in OG FBH no. 35/03 of 28 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004, 28/05 of 11 May 2005, 55/06 of 20 September 2006, 27/07 of 18 April 2007 and 53/07 of 8 August 2007).
53. The relevant authorities had until 1 September 2003 to verify the status of all those who had been acquitted on the grounds of insanity pursuant to the old criminal legislation, to terminate the application of any hospital orders which were still pending and to initiate the procedure in which the competent civil court would decide whether to prolong the detention of any such mental health patient (see Article 420 of the Criminal Code 2003 and the instructions of the Ministry of Justice of the Federation of Bosnia and Herzegovina no. 03-02-3132/03 of 22 December 2003).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-5701
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: A.W. AND F.W. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Finnish citizens, born in 1966 and 1954 respectively and resident in Tervajoki. Before the Court they are represented by Mr. Christian Holmsten, a lawyer and member of the Bar practising in Vaasa. The respondent Government are represented by Mr Holger Rotkirch, Director General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are married and the parents of T.E., born in 1989, and S., born in 1991. The applicant mother has a third child, T.T., born in 1986, who also lived with the applicants at the beginning of the events of relevance to the application.
On 1 November 1993 the first applicant was apparently informally told by a social welfare official that public care orders regarding the children were being prepared. On 8 November 1993 T.T.’s father was formally heard in respect of the proposed public care of her. At a meeting on 18 November 1993 the applicants were formally notified that the Social Section (sosiaalijaosto, socialsektionen) of the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Vaasa would, on 2 December 1993, consider a proposal that the children should be placed in public care. The applicants opposed the proposal. They allegedly obtained the material which was to form the basis for the proposal only on Monday, 29 November 1993. According to the Government, the material was at the applicants’ disposal in the Social Welfare Office from Friday, 26 November 1993 onwards. The material contained various expert opinions and affidavits and totalled about 100 pages.
In their submissions of 30 November 1993 the applicants, represented by their current counsel, opposed the proposed public care, invoking, inter alia, an opinion submitted by Dr P.T., a general practitioner, according to whom the children were normally developed physically. A further opinion of 2 December 1993 was issued by Dr O.N., Acting Head of the Department for Child Diseases at the Central Hospital of Vaasa, who had been examining T.E. during several years. Dr O.N. stated in essence that the delay in T.E.'s mental development was being successfully followed up by various support measures. This opinion was submitted to the members of the Social Section on the same day.
Having heard the applicants and the leading social welfare official at its meeting on 2 December 1993, the Social Section placed the children in public care, considering that the applicants were incapable of ensuring their basic care and education, that their home was lacking incentives and that the applicants had shown indifference in regard to the children's overall well-being. The support measures provided by the Board had proved to be insufficient. The children were to be placed in a local children’s home pending their placement in a foster family. According to the care orders, the public care was expected to last until the children had reached the age of majority. The children’s right to maintain regular contact with their parents and with each other would be ensured. They could receive visits in the children’s home during visiting hours. The Social Section relied on section 16 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). The children were fetched from the applicants' home on 2 December 1993 around 8 p.m.
On 14 December 1993 the applicants appealed to the County Administrative Court (lääninoikeus, länsrätten) of Vaasa, requesting an oral hearing for the purpose of hearing Drs P.T. and O.N. as experts concerning the children’s health as well as various other persons as witnesses in regard to the conditions in the applicants' home. The applicants considered it unfair that the care orders had been based on the written reports of various public officials and experts consulted by the social authorities without the applicants’ having been able to question them orally. The applicants conceded that they had had financial problems but contended that they had always provided their children with satisfactory care.
In February 1994 the Social Welfare Board responded to the applicants’ appeals and the applicants submitted a rejoinder alleging that the children had expressed a strong wish to return home. On 23 March 1994 the County Administrative Court rejected the appeals, having found an oral hearing unnecessary. The County Administrative Court’s reasoning read in extenso as follows:
(translation from Finnish)
“According to the evidence transpiring from the documentation on file, the shortcomings in the children’s care and the other conditions in their home seriously jeopardise the children’s development. The open-care assistance has proved to be insufficient and substitute care has been deemed to be in the children’s best interests. The Social Welfare Board has therefore been under an obligation to place [the children] in the care of [the Board].”
The County Administrative Court relied on section 16, subsection 1, of the Child Welfare Act and on sections 16-17 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983).
The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that the case be referred back to the County Administrative Court for an oral hearing of experts and witnesses. The applicants again argued that they had only had two working days at their disposal for preparing for the decisive meeting on 2 December 1993. In addition, the preparation of their subsequent appeals had been hampered by the impossibility of having the children, then already removed from the applicants’ home, examined by experts of the applicants’ choosing.
On 18 November 1994 the Supreme Administrative Court rejected the applicants' request and appeal as a whole by upholding the lower court’s decision.
According to the information available to the Court, T.E. is still staying at a children's home in Vaasa. S. and T.T. are staying in foster families at Jalasjärvi, some 150 kilometres from Vaasa. According to the applicants, they met T.E. in the children’s home once every other month up to 1997 but were allegedly able to meet S. and T.T. only in December
1994 and June 1995. During 1997 the applicants and the children met twice.
The relevant legislation is outlined in the Court’s judgment in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97). Those provisions of particular relevance to the present case are described below.
According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2).
If a child is in imminent danger or otherwise in need of an immediate care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts.
The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
According to section 47 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once.
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.


ITEMID: 001-103061
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PTICAR v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Krešimir Ptičar, is a Croatian national who was born in 1939 and lives in Zagreb. He was represented before the Court by Ms S. Bezbradica, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a house in Zagreb. During 1974 and 1975 his neighbours, V.B. and J.Ž., built a house and a garage on the adjacent plot of land, which in his opinion destabilized the foundations of his house.
On 10 May 1975 the applicant instituted administrative proceedings before the first instance administrative authority competent for building inspection (hereafter - “the Building Inspectorate”) arguing that: (1) his neighbours had significantly departed from building regulations for row houses in that: (a) their house was not leaning against his, there was a gap between the walls, (b) they had not isolated the foundations of the two houses, and (c) their house was one metre lower than his; and (2) that they had departed from the building permit granted to them on 10 November 1972 by building an underground garage.
It appears that the case-file was lost.
Therefore, on 18 September 1996 the applicant re-submitted his request.
As the Building Inspectorate did not render a decision on his request within the statutory time-limit of sixty days, on 16 January 1997 the applicant lodged an appeal for failure to respond (žalba zbog šutnje administracije) with the competent Ministry.
On 20 February 1997 the Building Inspectorate issued a decision ordering the applicant’s neighbours to make the necessary modifications in order to comply with the building permit or, otherwise, to apply for a new building permit. This decision was not served on the applicant.
Given that the Ministry also failed to decide on the applicant’s appeal for failure to respond within the statutory time-limit of sixty days, on 2 April 1997 the applicant brought an action for failure to respond (tužba zbog šutnje administracije) against the Ministry in the Administrative Court (Upravni sud Republike Hrvatske).
On 10 July 1997 the Ministry issued a decision discontinuing the appellate proceedings because it found that the Building Inspectorate had in the meantime decided on the applicant’s request of 18 September 1996.
On 28 July 1997, the applicant modified his administrative action of 2 April 1997 and challenged the Ministry’s decision of 10 July 1997.
On 4 November 1998 the Administrative Court adopted a judgment whereby it quashed the Ministry’s decision of 10 July 1997. It held that since the Building Inspectorate’s decision of 20 February 1997 had not been served on the applicant, the Ministry could not have dismissed his appeal of 16 January 1997.
Since, following the judgment of the Administrative Court, the Ministry failed to issue a new decision on his appeal of 16 January 1997 within the statutory time-limit of sixty days, on 12 April 1999 the applicant requested the Administrative Court to decide on his appeal, that is to say, act as a court of full jurisdiction and issue its own decision replacing that of the Ministry, in accordance with the relevant provisions of the Administrative Disputes Act.
On 30 April 1999 the Ministry issued a decision ordering the Building Inspectorate to issue a new decision on the applicant’s request of 18 September 1996 and serve it on him.
On 2 October 2000 the Building Inspectorate issued a decision ordering the applicant’s neighbours to demolish the garage and certain parts of the house erected on their land which had been built outside the limits of the building permit. The decision was served on the applicant who did not appeal against it. According to the Construction Act, that decision was immediately enforceable.
On 7 February 2001 the Administrative Court dismissed the applicant’s request of 12 April 1999, finding that the Ministry had in the meantime (on 30 April 1999) issued the decision sought. On 26 March 2001 the applicant lodged a constitutional complaint against the Administrative Court’s decision, which the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed on 11 October 2001.
On 20 July 2002 the competent Ministry issued a decision dismissing an appeal by the applicant’s neighbours and upheld the first-instance decision, which thereby became definitive (konačna). Shortly afterwards, the applicant’s neighbours brought an action in the Administrative Court contesting the Ministry’s decision.
On 4 May 2006 the Administrative Court issued a judgment dismissing the action of the applicant’s neighbours. The first-instance decision of 2 October 2000 thereby became final (pravomoćna). The Administrative Court’s judgment also was served on the applicant as a third (interested) party (zainteresirana strana).
It appears that to date no measures have been taken to enforce the first-instance decision of 2 October 2000.
On 23 October 2000, following the Building Inspectorate’s decision of 20 October 2000, the applicant filed a petition for reopening of the above administrative proceedings, arguing that he had not been heard by the building inspector in those proceedings.
On 25 April 2001 the Building Inspectorate declared inadmissible the applicant’s petition for reopening. On 8 May 2001 the applicant appealed against that decision to the Ministry.
On 14 February 2003 the Ministry allowed the applicant’s appeal of 8 May 2001, quashed the first instance decision of 25 April 2001 and remitted the case to the Building Inspectorate.
On 6 November 2009 the Building Inspectorate again declared the applicant’s petition inadmissible.
Following an appeal by the applicant, on 23 November 2009 the Ministry issued a decision whereby it first quashed the first-instance decision for lack of jurisdiction and then, having found that it was the competent authority to decide on the applicant’s petition for reopening, itself declared that petition inadmissible. The Ministry held that the applicant was not a party to the administrative proceedings and was thus not entitled to lodge a petition for their reopening.
On 7 December 2009 the applicant brought an action in the Administrative Court challenging the Ministry’s decision. It would appear that the proceedings are currently pending before that court.
On 25 February 2009 the applicant lodged a request for the protection of the right to a hearing within a reasonable time under the Courts Act with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining about the length of the proceedings concerning his petition to reopen the administrative proceedings.
On 12 November 2009 the Supreme Court declared the applicant’s request inadmissible on the ground that, under the case-law of the European Court of Human Rights, the guarantees of Article 6 § 1 of the Convention, including the right to a hearing within a reasonable time, did not apply to proceedings concerning a petition for reopening of a case.
On 10 December 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision.
It would appear that the proceedings are currently pending before the Constitutional Court.
On 3 December 2001 the applicant lodged his first application (no. 4016/02) with the Court. He complained under Article 6 § 1 of the Convention about the unfairness of the administrative proceedings concerning the alleged illegal construction. He also complained under Article 13 of the Convention claiming that the Administrative Court’s decision of 7 February 2001 and the Constitutional Court’s decision of 11 October 2001 deprived him of an effective remedy for the protection of his rights. On 8 November 2002 the Court, sitting in a Committee of three Judges, adopted a decision declaring that application inadmissible as manifestly ill-founded.
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991) provide as follows:
Section 49 defines a party to administrative proceedings as a person at whose request the proceedings have been instituted, a person against whom the proceedings have been brought or any other person who is entitled to participate in the proceedings in order to protect his or her rights or interests.
Section 278(1) provides that the authority in charge of administrative enforcement shall, of its own motion or at the request of a party, issue an enforcement order. Such an order shall declare that the decision to be enforced has become enforceable and determine the method of the enforcement.
Section 278(2) provides, inter alia, that the authority in charge of administrative enforcement shall issue an enforcement order with a view to enforcing a decision rendered of its own motion without delay and at the latest within 30 days after such a decision became enforceable.
The other relevant provisions of the Administrative Procedure Act, in particular those governing an appeal for failure to respond (žalba zbog šutnje administracije), are set out in Rauš and Rauš-Radovanović v. Croatia (dec.), no. 43603/05, 2 October 2008.
In its judgment no. Us-3746/1997 of 11 November 1998 the Administrative Court held that the owner of a neighbouring plot of land who filed a report with the Building Inspectorate had a status of a party in the inspection proceedings within the meaning of section 49 of the Administrative Procedure Act and could, for example, lodge an appeal for failure to respond in accordance with the same Act.
The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) governing an action for failure to respond, tužba zbog šutnje administracije) are set out in Rauš and Rauš-Radovanović, cited above.
The relevant provisions of the same Act governing an “action against an unlawful act” (tužba za zaštitu od nezakonite radnje) are set out in Hackbarth v. Croatia (dec.), no. 27897/02, 3 November 2005.
In its judgment no. Us-772/81 of 11 November 1981 the Administrative Court held that “a failure to respond” (šutnja administracije) existed in the administrative enforcement proceedings when the competent administrative authority, following an application by the party, did not issue an enforcement order within the statutory time-limit.
In its judgment Us-2387/1995 of 7 May 1998 the Administrative Court held that a party could rely on the relevant provisions of the Administrative Disputes Act governing an action for failure to respond, in case the competent administrative authority did not issue an enforcement order within the statutory time-limit.
In its judgments nos. Us-1865/1979 of 28 November 1979 and Us-2099/89 of 21 September 1989 the Administrative Court held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful factual act” within the meaning of the Administrative Disputes Act against which the aggrieved party could bring an “action against an unlawful act”. In its decision no. Gž-9/1993 of 6 April 1993 the Supreme Court reached the same conclusion.
The Construction Act (Zakon o gradnji, Official Gazette nos. 52/1999, 75/1999, 117/2001 and 47/2003), which was in force at the material time, provided as follows:
Section 85 provided that when a building inspector found a breach of the relevant regulations, it could issue a decision even without hearing the parties.
Section 96(7) provided that an appeal lodged against a decision of a building inspector did not postpone its enforcement.
Section 99(1) provided that a decision of a building inspector could not be enforced ten years after it had become definitive.
The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), which entered into force on 29 December 2005, governing a request for the protection of the right to a hearing within a reasonable time are set out in Pavić v. Croatia, no. 21846/08, § 16, 28 January 2010.


ITEMID: 001-67350
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MAGLODI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 7. The applicant was born in 1970 and lives in Budapest. At present, he is detained at Budapest Prison.
8. On 10 June 1999 the applicant was arrested and interrogated on a charge of murder. He was charged with having murdered a man in 1997. The man's corpse had been found in the garden of a co-accused. The victim's identity was not yet known. On the next day the Budapest Regional Public Prosecutor's Office dismissed the applicant's complaint in respect of his arrest. In the ensuing proceedings he was assisted by a defence counsel of his choice.
9. On 10 and 24 June, 9 September, 3 November 1999 and 2 May 2000 the applicant was interrogated, but he refused to answers the questions put to him. His co-accused was interrogated on 21 and 23 June, 8 September 1999 and 3 May 2000. Witnesses were heard on 10 and 23 June, 10 and 16 July, 2, 3, 6 and 9 August, 10 and 29 September, 3 November 1999, 17 February, 1 and 13 March 2000 and 10 July 2001.
10. Meanwhile, on 12 June 1999 the Pest Central District Court, as confirmed by the Budapest Regional Court on 18 June 1999, ordered the applicant's detention on remand until 12 July 1999. The District Court considered that – given the seriousness of the charges against him – there was a risk of the applicant's collusion and absconding.
11. On 14 June 1999 a forensic pathologist was appointed. He submitted his final opinion on 19 October 1999.
12. On 8 July 1999 the Buda Central District Court, as confirmed by the Regional Court on 26 July 1999, prolonged the applicant's detention until 12 September 1999 for the same reasons given by the Pest Central District Court.
13. On 7 September and 2 December 1999 the Regional Court, as confirmed by an appeal panel of the same court on 23 September and 22 December 1999, prolonged, for the same reasons, the applicant's detention until 12 December 1999 and 12 April 2000, respectively.
14. On 10 April, 4 July and 6 October 2000 the Supreme Court prolonged the applicant's detention until 12 July, 12 October 2000 and 20 January 2001, respectively. It referred to the danger of the applicant's absconding, noting that a DNA-analysis was being carried out with a view to confirming the victim's identity. An expert in haemogenetics, who had been appointed to this end on 16 August 1999, submitted his final opinion on 17 October 2001.
15. On 6 November 2000 the Regional Court, as confirmed by an appeal panel of the same court on 15 December 2000, dismissed the applicant's request for release.
16. On 17 January 2001 the Supreme Court prolonged the applicant's detention until 20 April 2001 and dismissed his request for release. It invoked the danger that the applicant would abscond if released.
17. On 6 March 2001 the Regional Court dismissed the applicant's request for release.
18. On 19 April 2001 the Supreme Court prolonged the applicant's detention until 20 July 2001 on the ground that he might abscond.
19. On 2 May 2001 the investigation was closed and the case-file was made available to the defendants. On 22 May 2001 the Public Prosecutor's Office reopened the investigation with a view to completion of the case against the defendants. These proceedings ended on 20 June 2001.
20. Meanwhile, on 5 June 2001 the Regional Court, as confirmed by an appeal panel of the same court on 27 June 2001, dismissed the applicant's request for release.
21. On 13 July 2001 the Public Prosecutor's Office preferred a bill of indictment, accusing the applicant and two others of murder. The indictment listed several witnesses and two forensic medical experts.
22. On 17 July 2001 and 29 April 2002 the Regional Court, as confirmed by the Supreme Court on 16 August 2001 and 11 June 2002 respectively, upheld the applicant's detention on remand until the delivery of the first-instance judgment. The courts invoked the danger of the applicant's absconding.
23. On 8 July 2002 the applicant filed a request for release in which he referred to domestic jurisprudence and the Court's case-law concerning pre-trial detention. He argued, inter alia, that his absconding was unlikely in view of his close ties with his sick mother and paralysed father, his siblings and his 11-year old son, and of the fact that he had been living with his common-law wife for five years and that they had carried out a major renovation of their flat.
24. On 23 July 2002 the presiding judge refused, under section 95 § 4 of the Code of Criminal Procedure, to take a formal decision on the applicant's renewed request for release on the ground that it referred to no new circumstances. On 10 and 15 October 2002 the Regional Court held hearings. On 25 October 2002 a forensic psychiatrist was appointed to examine the defendants. He submitted his opinion on 17 January 2003.
25. On 8 January 2003 the Regional Court held a hearing and refused to release the applicant. On 3 February 2003 the Supreme Court dismissed his appeal, relying on the danger of absconding.
26. On 4 and 20 March 2003 the Regional Court held hearings and refused to release the applicant.
27. Further hearings took place on 16 April, 12 May, 3 and 11 June 2003. On the latter date the Regional Court delivered a judgment. In its 34page judgment the Regional Court convicted the applicant of murder and imposed a life sentence.
28. On 7 August 2003 the applicant appealed. On 27 October 2003 he completed his appeal.
29. On 5 May 2004 the Budapest Court of Appeal held a hearing.
The court quashed the first-instance judgment, remitted the case to the Regional Court and prolonged the applicant's pre-trial detention. The applicant has been detained ever since.
30. Section 95 of the Code of Criminal Procedure, as in force in the relevant period, reads as follows:
(1) Detention on remand, when ordered prior to the indictment, may last until the decision of the court in the preliminary proceedings before trial, up to a maximum of one month. Detention on remand can be prolonged by the District Court on one occasion, for two months at the most. After three months, detention on remand can be prolonged by a single judge of the Regional Court, on up to two occasions, but may not continue beyond one year after the remand order. Thereafter, the duration of detention on remand can only be extended by the Supreme Court.
(2) Detention on remand, when ordered or upheld by the first-instance court after the indictment, may last until the first-instance judgment is pronounced...
(3) When the length of the detention on remand ordered or upheld after the indictment
a) exceeds six months and the first-instance court has not delivered a judgment, the first-instance court,
b) exceeds one year, the Supreme Court
shall review the reasonableness of the detention on remand.
(4) The court ... may dispense with delivering a [formal] decision if ... a repeated request for release from pre-trial detention refers to no new circumstances.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-85139
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SULTANA v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Victor Sultana, is a Maltese national who was born in Xaghra, Gozo, and lives in Malta. He was represented before the Court by Mr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a surgeon employed by the Government.
An official advertisement for a post of consultant surgeon with an interest in vascular surgery in a public hospital was published in the Government Gazette of 19 January 1999.
The applicant applied for the post, considering that he satisfied all the conditions laid down in the advertisement. The Government qualified this statement to read that the applicant satisfied the conditions necessary to apply for the post of consultant surgeon.
According to paragraph 6 (c) of the call for applications, applicants were required to have the following qualifications:
“be in possession of a recognised higher postgraduate qualification in surgery (FRCS or equivalent qualification recognised as such in the European Union or the USA) and at least six years post registration experience in vascular surgery of which at least three years must be at Senior Registrar or Higher Surgical Trainee equivalent level.”
The applicant alleged that he was the only person eligible for the post but that other persons, not having the required qualifications, were interviewed. Eventually X, another surgeon, was appointed by the Prime Minister on the recommendations of the Public Service Commission (“PSC”). Under Maltese law, this body is immune from legal proceedings.
The Government contested the allegation that the other persons interviewed for the post did not possess the required qualifications. According to the Government, the applicant argued that the other candidates did not possess the experience required, since the period to be taken into consideration should have been calculated from the date when the candidates had officially been appointed to the post of Senior Registrar and not from a prior date when they had de facto started performing such duties.
The Government explained that there were three applicants for the said post. After having interviewed all the applicants, the Selection Board (appointed by the PSC), made up of four senior members of the public medical service and a senior official from the management and personnel office, found that all the candidates interviewed possessed both the academic qualifications and the experience required. However, they found the applicant to be unsuitable for the post whilst finding the other two candidates suitable. The PSC recommended the candidate with the highest mark as decided by the Selection Board.
On 15 July 1999, two days after the said interview, the applicant complained about the decision and the composition of the Selection Board to the PSC Chairman.
On 3 January 2000 the PSC informed the applicant that on examining the selection process, the eligibility of the applicants as determined by the Selection Board had been correct and that none of his other allegations had been well-founded.
On 13 January 2000 the applicant reiterated his position to the PSC. On 3 March 2000 the PSC informed the applicant that given that the selection process had been completed and the appointment made, representations to the PSC had to be made in accordance with the provisions of the Estacode (“code of management of the public service”) which provided for the right to file a petition with the Prime Minister (“PM”) in respect of a selection process.
On 14 March 2000 the applicant petitioned the PM. This petition was suspended since in the meantime the applicant had lodged judicial proceedings and proceedings before the Permanent Commission against Corruption, which had the power to investigate allegations of corruption.
On 29 May 2000 the applicant lodged a judicial protest against the PM and the Chairman of the PSC.
On 9 June 2000 the applicant requested the Civil Court (First Hall) to issue an injunction against the above authorities to restrain them from proceeding with the appointment of the selected candidate. On 13 June 2000 the Civil Court refused this request.
On 28 June 2000 the applicant filed a claim with the Civil Court (First Hall) against the PM. He alleged a violation of Article 110 of the Constitution of Malta by reason of the fact that in selecting the candidates for the post of consultant surgeon, the PM had failed to adhere to the notice announcing the call for applications. The applicant furthermore considered that, in setting up the board for the interviews, there had been a breach of the Estacode rules, which regulated the civil service and the manner in which applicants to it were recruited.
The applicant requested that the appointment of X be declared null and void and that his own application be considered the only one valid for the post.
The PM objected, stating that the applicant’s action was incompatible with Article 115 of the Constitution, since the action was intended to inquire into the interpretation of a call for applications made by the PSC, whereas the conduct of the PSC in such matters could not be questioned.
In a preliminary judgment of 14 February 2002 the Civil Court dismissed the PM’s objection and ordered that the case be continued. It observed that the PSC was not a defendant in the case and that it was too early to come to the conclusion that the applicant’s claims might amount to an investigation into the actions of the PSC. The applicant should know that if his action pursued such a line it would be dismissed. However, it was still open to the applicant to prove his complaint without questioning the workings of the Commission.
The applicant’s action had rightly been introduced against the PM who was not obliged to act according to the recommendation made to him by the PSC. Moreover, when the PM was taking a decision relating to the appointment of a civil servant, he was not merely giving formal effect to the wishes of the PSC. Although the Civil Court’s role was not to inquire whether the PM had acted or not on the recommendation, its task was to determine whether his actions were in conformity with the law.
The Government challenged the Civil Court’s preliminary judgment, before both the Constitutional Court and the Court of Appeal. On 17 February 2003 the appeal to the Constitutional Court was withdrawn by agreement of both parties. It was agreed that the merits of the appeal should be examined by the Court of Appeal.
In a judgment of 27 June 2003, the Court of Appeal found against the applicant. It accepted the Government’s plea of immunity and dismissed the applicant’s action.
The Court of Appeal held that the PM’s actions “in many fields” could be examined by the domestic tribunals. However, according to Article 86(3) of the Constitution and the Constitutional Court’s case-law, when the PM was required to perform any function in accordance with the recommendation of any person or authority, judicial examination was excluded, unless there was an allegation of a violation of fundamental human rights.
Furthermore, it resulted from Article 86(1) and (2) of the Constitution that when the PM was required to exercise any function after consultation with any person or authority, he was not obliged to follow the advice given to him, although when the functions were exercised on the recommendation of any person or authority, he should act in accordance with that recommendation. Therefore, when the PSC made a recommendation on an appointment to a post within the public service, the PM was bound to appoint the person indicated. What were referred to in the Constitution as recommendations were in fact binding decisions and the only possibility enjoyed by the PM was to use his power to refer the recommendation back, once, for reconsideration.
In the present case, the only allegation against the PM was that he had acted in accordance with the decision of the PSC. In the Court of Appeal’s opinion, the applicant was trying to circumvent Article 115 of the Constitution, which granted immunity to the PSC.
Article 110(1) of the Constitution of Malta states:
“Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices shall vest in the Prime Minister, acting on the recommendation of the Public Service Commission ...”
The functions of the PM in this regard are regulated according to Article 86 of the Constitution of Malta, which, in so far as relevant, reads as follows:
“(1) Where by this Constitution the Prime Minister is required to exercise any function on the recommendation of any person or authority he shall exercise that function in accordance with such recommendation:
Provided that –
(a) before he acts in accordance therewith he may once refer that recommendation back for reconsideration by the person or authority concerned; and
(b) if that person or authority, having reconsidered the original recommendation under the preceding paragraph, substitutes therefor a different recommendation, the provisions of this sub-article shall apply to that different recommendation as they apply to the original recommendation.
(2) Where by this Constitution the Prime Minister is required to perform any function after consultation with any person or authority, he shall not be obliged to perform that function in accordance with the advice of that person or authority.
(3) Where by this Constitution the Prime Minister is required to perform any function in accordance with the recommendation of, or after consultation with, any person or authority, the question whether he has in any case received, or acted in accordance with such recommendation or whether he has consulted with such person or authority shall not be inquired into in any court.”
The PSC is immune from proceedings regarding its functions pursuant to Article 115 of the Constitution. This provision reads as follows:
“The question whether -
(a) the Public Service Commission has validly performed any function vested in it by or under this Constitution;
(b) any member of the Public Service Commission or any public officer or other authority has validly performed any function delegated to such member, public officer or authority in pursuance of the provisions of subarticle (1) of Article 110 of this Constitution; or
(c) any member of the Public Service Commission or any public officer or other authority has validly performed any other function in relation to the work of the Commission or in relation to any such function as is referred to in the preceding paragraph, shall not be inquired into in any court.”
In so far as relevant, Article 469A of the Code of Organisation and Civil Procedure (“COCP”) relating to Judicial Review of Administrative Actions, reads as follows:
“(1) Save as is otherwise provided by law, the courts of justice of civil jurisdiction may inquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases:
(a) where the administrative act is in violation of the Constitution;
(b) when the administrative act is ultra vires on any of the following grounds:
(i) when such act emanates from a public authority that is not authorised to perform it; or
(ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or
(iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or
(iv) when the administrative act is otherwise contrary to law.”


ITEMID: 001-60495
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF OLIVIEIRA v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: No violation of P4-2;No separate issue under Art. 8
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 10. On 6 November 1992 the Burgomaster (Burgemeester) of Amsterdam, relying on section 219 of the Municipality Act (Gemeentewet) as in force at the relevant time, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed to enter a particular area, the so-called emergency area, of the city centre for fourteen days. The following events were referred to in the Burgomaster's decision as having led to this order being issued.
(i) It transpired from police reports that on 21 July (twice), 29 July, 12 August, 26 August and 10 September 1992 the applicant had either overtly used hard drugs or had had hard drugs in his possession in streets situated in the emergency area and that on each of those occasions he had been ordered to leave the area for eight hours.
(ii) On 5 November 1992 the applicant had been heard by the police about his conduct and he had been told that he would either have to desist from such acts, which disturbed public order (openbare orde), or stay away from the area. The applicant had further been informed that, if he committed such acts again in the near future, the Burgomaster would be requested to impose a fourteen-day prohibition order on him. The applicant had told the police that, as well as preparing and using drugs in the area concerned, he also met his friends there.
(iii) On 5 November 1992 the applicant had nevertheless overtly used hard drugs on one of the streets in the emergency area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a fourteen-day prohibition order on the applicant.
11. In the opinion of the Burgomaster, the applicant would again commit acts disturbing public order in the near future. In this context, the Burgomaster took account of the kind of conduct involved, namely acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant's home nor his place of work were situated in the area concerned.
12. The applicant lodged an objection (bezwaarschrift) against the Burgomaster's prohibition order. He submitted, inter alia, that the Burgomaster ought only to make use of the emergency powers granted him by section 219 of the Municipality Act in exceptional situations. As the Burgomaster had been issuing eight-hour prohibition orders since 1983 and fourteen-day ones since 1989, it could no longer be argued that an exceptional situation prevailed. Moreover, the Burgomaster had had sufficient time to ensure that the emergency measures were enacted in a general municipal by-law (Algemene Politie Verordening).
13. The applicant also stated that the prohibition order, which in his opinion constituted a criminal sanction, interfered with his right to liberty of movement and violated the principle of proportionality. In this connection, he argued that he had always complied with the prohibition orders imposed on him for a duration of eight hours and that he therefore failed to understand why a prohibition order for fourteen days had been called for all of a sudden.
14. On 14 January 1993 a hearing took place before an advisory committee. At this hearing the representative of the Burgomaster stated that, in 1992, 3,300 eight-hour prohibition orders (compared with 2,130 in 1991) and 204 fourteen-day prohibition orders (compared with 111 in 1991) had been issued against people dealing in or using drugs or committing acts related to those activities. The representative further stated that it was intended to enact the power to issue prohibition orders in a general municipal by-law.
15. On 8 March 1993 the committee advised the Burgomaster to dismiss the objection and to maintain the prohibition order. It considered, inter alia, that the disruption of public order in the area concerned was still such as to constitute an exceptional situation within the meaning of section 219 of the Municipality Act. In view of the seriousness and scale of the problems involved, the committee found it unlikely that public order could be adequately maintained by normal methods and that for that reason the Burgomaster was entitled to use the powers granted him under section 219.
16. Having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disturbed public order and that the eight-hour prohibition orders which had been issued had not prevented him from doing so, the committee further found that the imposition of a prohibition order for a duration of fourteen days had not been unreasonable. It did not agree with the applicant that the impugned measure constituted a penalty, as it had been taken in order to maintain public order. The committee finally found that the interference with the applicant's right to liberty of movement had been justified.
17. By a decision of 11 March 1993 the Burgomaster dismissed the applicant's objection, adopting as his own the reasoning applied by the advisory committee.
18. The applicant lodged an appeal against the Burgomaster's decision with the Judicial Division (Afdeling rechtspraak) of the Raad van State on 19 March 1993. In his appeal, which he detailed in a letter of 17 May 1993, he raised the same complaints as he had before the Burgomaster. In his written observations of 14 March 1994 the Burgomaster referred to the report drawn up by the advisory committee. A hearing took place before the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak), the successor to the Judicial Division, on 23 January 1996.
19. On 14 May 1996 the Administrative Jurisdiction Division dismissed the applicant's appeal. Its reasoning included the following:
“Article 12 of the International Covenant on Civil and Political Rights provides that everyone lawfully within the territory of a State shall have the right to liberty of movement and freedom to choose his residence. According to the third paragraph of that provision, this right shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in that Covenant. An almost identical provision is contained in Article 2 of Protocol No. 4 to the Convention.
Section 219, first paragraph, of the Municipality Act confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof.
Contrary to what the party seeking review has argued, the issuing of orders in the situations set out in section 219 of the Municipality Act does not run counter to the above-mentioned treaty provisions, since the latter provide for the possibility of restricting the rights concerned by 'law' – a term which includes an order issued by the Burgomaster pursuant to the law – for the protection of public order.
Section 219 of the Municipality Act is a legal provision intended for situations where ordinary means are insufficient for restoring and maintaining public order.
In the opinion of the Division these ordinary means may be considered insufficient in the present case and there was, at the time of the decision appealed against, an exceptional situation. It is relevant in this context that at the time of the decision appealed against it was not possible to solve the problem in question through a municipal regulation. There was not at that time – and there is not now – any relevant provision in a municipal by-law, nor is any other sufficient legal means available.
On the basis of the case file and the submissions made at the hearing, in addition to the number of eight-hour and fourteen-day orders that have been issued in the area concerned, the Division finds that the appropriate staff and means available to the defendant were inadequate to counter the difficult situation arising from breaches of public order resulting from the behaviour of drug addicts as described in the decision of 13 November 1989. This leads the Division to hold that it cannot be stated that the defendant could not reasonably make use of the powers granted him by section 219 of the Municipality Act.
The Division would, however, express the following reservations.
It cannot see why, if the situation described above should continue, the possibility of issuing fourteen-day prohibition orders should not be provided for in a by-law enacted by the Local Council. From the point of view of legal certainty and legitimacy of action by public authority, a regulation provided by a municipal by-law seems preferable to a measure based on the defendant's emergency powers. It appears from the case file that the defendant had already prepared the draft of an appropriate provision, which, however, was never incorporated into the General Municipal By-Law because the method used at present, which was decided on in consultation between the defendant, the police and the prosecuting authorities [verweerder, politie en justitie] with regard to the fourteen-day prohibition orders, was considered extraordinarily effective. The Division is, however, of the opinion that the presumed effectiveness of an emergency measure coupled with the prosecuting policy of the prosecution authorities [Openbaar Ministerie] do not constitute a reason not to make appropriate provision at the municipal level. The Division considers that the defendant, in assessing whether there is an exceptional situation within the meaning of section 219 of the Municipality Act (now section 175 of the Municipality Act), may, in principle, no longer rely on the lack of an appropriate provision in a municipal by-law, in view of the length of time this drugs-related nuisance [drugsoverlast] has already prevailed, causing it to display structural aspects, if the possibility of issuing fourteen-day prohibition orders is not now provided for in a by-law enacted by the Local Council within a reasonable time.”
This decision was published, with a learned comment, in Jurisprudentie Bestuursrecht (Administrative Law Jurisprudence) 1996, no. 169.
20. Apart from the proceedings described above, the applicant was convicted by a single-judge Chamber (politierechter) of the Regional Court (arrondissementsrechtbank) of Amsterdam on 8 December 1992 of having intentionally failed to comply on 20 November 1992 with the prohibition order imposed by the Burgomaster on 6 November 1992. Under Article 184 of the Criminal Code (Wetboek van Strafrecht), this failure constituted a criminal offence. He was sentenced to four weeks' imprisonment. Following an appeal to the Amsterdam Court of Appeal (gerechtshof), which also convicted the applicant, an appeal on points of law was lodged with the Supreme Court (Hoge Raad). The Supreme Court dismissed the applicant's appeal on 8 December 1998.
21. The criminal proceedings against the applicant do not form part of the case before the Court.
22. At the material time section 219 of the Municipality Act (Gemeentewet) provided as follows:
“1. In case of a riotous movement, gathering or other disturbance of public order or of serious calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger.
...”
23. Article 184 of the Criminal Code (Wetboek van Strafrecht), in its relevant parts, reads:
“1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a secondcategory fine.
...
4. If the offender commits the indictable offence within two years of a previous conviction for such an offence having become final, the term of imprisonment may be increased by one-third.”
24. In the Netherlands, the Burgomaster of a town or city is appointed by the Queen (section 65 of the former Municipality Act). Municipal regulations, such as general municipal by-laws, are adopted by the Municipal Council (section 168 of the former Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution).
25. By a letter of 4 July 1983 the Burgomaster of Amsterdam informed the Chief Superintendent (Hoofdcommissaris) of the Amsterdam police that, in view of the situation in the city centre, the Chief Superintendent and police officers acting on the Burgomaster's behalf would be able to issue orders, based on section 219 of the Municipality Act as in force at the time, for people to leave a particular area within the city centre and not to return to it for eight hours.
26. The Burgomaster extended the area of the city centre where these orders could be issued by a letter of 25 July 1988. Subsequently, by a letter of 8 March 1989, the Burgomaster also empowered the Chief Superintendent and his officers to order people to leave the designated area for fourteen days.
27. By a letter of 17 October 1989 the Burgomaster amended this instruction, replacing the discretion of the police officers to issue eight-hour prohibition orders by a strict order to do so in specified circumstances. This letter contains the following passage:
“In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to, and/or dealing in, hard drugs. The attendant behaviour disrupts public order, causes considerable nuisance and constitutes an incessant threat to public life. In these circumstances [in dit verband], I judge the situation to constitute an exceptional situation within the meaning of section 219 of the Municipality Act.”
28. The Burgomaster's instructions were further amended by a letter of 13 November 1989 under the terms of which fourteen-day prohibition orders could no longer be issued by the police on behalf of the Burgomaster but only by the Burgomaster himself.
29. A fourteen-day prohibition order could be imposed on a person if in the preceding six months five procès-verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order, such as, inter alia:
(i) the possession and use on the public highway of addictive substances appearing in Annex 1 to the Opium Act (Opiumwet; concerns hard drugs);
(ii) dealing on the public highway in addictive substances appearing in Annex 1 to the Opium Act;
(iii) overt possession of knives or other banned objects in so far as this constituted a criminal offence under the General Municipal By-Law or the Arms and Ammunition Act (Wet Wapens en Munitie);
(iv) committing the offence defined in Article 184 of the Criminal Code where the order not complied with was an eight-hour prohibition order;
(v) acts of violence, thefts from cars on or along the public highway, overt selling of stolen goods on or along the public highway, in so far as there was a connection between these offences and hard drugs.
30. On the occasion of a fourth procès-verbal being drawn up against him, the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his (continued) presence in the emergency area. The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order, the police would request the Burgomaster to impose a fourteen-day prohibition order.
31. It is undisputed that the aforementioned Burgomaster's letters were neither published nor laid open to public inspection and that the Burgomaster's instructions were not otherwise made public.
32. In a decision of 11 January 1989 (Administratiefrechtelijke Beslissingen (Administrative Law Reports) 1989, no. 424), the President of the Judicial Division of the Raad van State held as follows:
“As the Judicial Division has held in previous decisions, section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus, provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order.
It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section 219, first paragraph.
In so doing, we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the (old) city centre of Amsterdam:
'The old city centre of Amsterdam is known internationally and nationally as a centre for the trade in hard drugs. It continues to attract large numbers of addicts. The doings and dealings of addicts and dealers generally cause serious nuisance: overt use and dealing, intimidating group behaviour, threats to passers-by (frequently with knives), shouting, raving, fights, robberies (frequently with knives), thefts, receiving stolen property, etc. The old city centre has many functions; an important one is that of being a residential and commercial area. However, the situation threatens all the time to become unbearable.
The extent to which matters have deteriorated for the residents is again apparent from the desperate protests which took place at the beginning of November last year. These protests ended, for the time being, at a meeting of the Police Affairs Committee which was attended by a crowd of people.
The Damstraat, Oude Doelenstraat, Nieuwe and Oude Hoogstraat are part of the crisis area. The Damstraat (the Oude Doelenstraat, the Nieuwe and Oude Hoogstraat are the prolongation of the Damstraat) constitutes the entrance to the old city centre. In this part of the town, all manner of soft drugs, but especially hard drugs, are for sale, in small or large amounts: hashish, cocaine, amphetamines, LSD, heroin and other mindaltering substances. In this area especially, street dealers go about more than elsewhere in the city centre peddling fake hard drugs.
The presence of the dealers and large numbers of addicts, with the attendant criminality, seriously affect the area.
As a result, among other things, of the strong protests of local residents, a special project team of the police was active in the Damstraat area for six weeks from 14 November 1988 onwards. Its actions were directed in particular towards the bridge between the Oude Doelenstraat and the Oude Hoogstraat, the so-called pills bridge. This bridge was occupied by representatives of a new phenomenon, namely, multiple drugs use.
The project team set itself the primary task of restoring public order. During the action, there were 600! arrests, hundreds of knives were seized and hundreds of prohibition orders were issued.'
Noting all this, we are of the provisional opinion that an emergency situation of the kind referred to in section 219, first paragraph, of the Municipality Act was rightly found to exist. The respondent was therefore entitled to issue the disputed orders.”
Similarly, in a decision of 31 July 1989 (Kort Geding (Summary Proceedings Law Reports) 1989, no. 314), the President of the Judicial Division held:
“As the Judicial Division has held in previous decisions, section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order.
It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section 219, first paragraph.
As was held in the decision of 11 January 1989 ... in relation to the situation in the (old) city centre, the respondent rightly found that an emergency situation of the kind referred to in section 219, first paragraph, of the Municipality Act existed.”
33. In a judgment of 23 April 1996 (Nederlandse Jurisprudentie 1996, no. 514), which related to a criminal prosecution under Article 184 of the Criminal Code for failure to comply with an eight-hour prohibition order, the Supreme Court (Hoge Raad) accepted that the Burgomaster's powers under section 219 of the former Municipality Act were intended only for exceptional situations. It held, however, that the mere fact that two and a half years had passed since the Burgomaster had declared an emergency situation – the case related to the Burgomaster's instruction of 17 October 1989 – was not sufficient per se to justify the conclusion that an exceptional situation no longer existed. It also held, in the same judgment, that Article 6 of the Convention did not apply to eight-hour prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order. Nor did such orders violate Article 2 of Protocol No. 4 to the Convention, since they were “in accordance with law” and “necessary in a democratic society” for “the maintenance of ordre public”. The judgment of the Supreme Court upheld a judgment of the Amsterdam Court of Appeal sentencing the defendant in that case to two weeks' imprisonment.
34. Section 7 of the Act on Administrative Jurisdiction as to Decisions of the Administration (Wet administrative rechtspraak overheidsbeschikkingen – “the AROB Act”) provided that a person directly affected by an administrative decision (certain categories of decisions, not relevant to the present case, excepted) could submit an objection to the administrative body that had taken the decision. The objector was entitled to be heard; the administrative body could delegate the hearing to an advisory committee (section 14(1)).
35. An appeal against the decision of the administrative body lay to the Judicial Division of the Raad van State, an administrative tribunal (section 8 of the AROB Act).
36. The AROB Act was repealed on 1 January 1994 when the General Administrative Law Act (Algemene wet bestuursrecht) came into force.
37. Also as of 1 January 1994 the Judicial Division of the Raad van State was replaced by the Administrative Jurisdiction Division (sections 26 et seq. of the Raad van State Act (Wet op de Raad van State), as amended). The new Division took over the undecided appeals still pending before the Judicial Division.


ITEMID: 001-58043
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF GIULIA MANZONI v. ITALY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-1-c
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. On 25 September 1991 at about 11 p.m. Mrs Manzoni was arrested in Rome for insulting, threatening and assaulting two municipal police officers in the execution of their duty and taken into police custody.
8. The Rome public prosecutor’s office, which was immediately informed by telephone, confirmed the police custody and the applicant was taken to Rebibbia Prison.
9. On 26 September 1991 the police forwarded the report on the arrest to the public prosecutor’s office, which that same day arranged a hearing for the following morning in the Rome District Court, seeking to have the arrest confirmed (convalida dell’arresto).
10. On 27 September 1991 at 11 a.m. the public prosecutor’s office also applied for Mrs Manzoni to be detained at her home pending trial (Article 284 of the New Code of Criminal Procedure).
11. After satisfying itself that the relevant statutory formalities in respect of arrest had been complied with (including bringing the applicant before the public prosecutor’s office within twenty-four hours of her arrest, drawing up and sending on the police report within the same period and requesting the public prosecutor’s office to confirm the arrest within forty-eight hours), the court confirmed the arrest. However, it did not consider it necessary to detain Mrs Manzoni pending trial and ordered that she be released immediately.
12. At the end of proceedings known as "patteggiamento" (a shortened form of procedure whereby, at the request of the public prosecutor’s office or, as in the present case, of the defendant, the court imposes a sentence agreed on by the public prosecutor’s office and the defendant) the court sentenced the applicant to three months and eleven days’ imprisonment, suspended.
13. The hearing ended at 11.45 a.m. At about 1.30 p.m. the police escorted Mrs Manzoni to Rebibbia Prison. At 3.10 p.m. the record of the hearing was served on her by the prison management. That afternoon the prison authorities completed the statutory formalities (accounts, return of effects, notification of release to the police, entry in the prison register). At 6.30 p.m. the applicant gave the prison management her address for notification purposes, and at 6.45 p.m. she left the prison.
14. The New Code of Criminal Procedure has several provisions that are applicable in the instant case, as set out below:
"1. Police officers who have effected an arrest ... shall immediately inform the public prosecutor’s office of this ...
3. ... the police officers shall place the person arrested ... at the disposal of the public prosecutor’s office within twenty-four hours of the arrest ... They shall send the police report to the public prosecutor’s office within twenty-four hours unless the latter grants an extension of time."
"1. Within forty-eight hours of the arrest ..., if the public prosecutor’s office does not consider it necessary to release the defendant immediately, it shall ask the judge responsible for the preliminary inquiry to confirm the arrest...
2. The judge shall hold the hearing to confirm the arrest as soon as possible, and in any event not more than forty-eight hours after the request for confirmation ..."
"If the arrest is lawful and the time-limits laid down in Articles 386 para. 3 and 390 para. 1 have been observed, the judge shall confirm the arrest in an order. An appeal on points of law shall lie against that decision ..."
"... the public prosecutor’s office shall order in a reasoned decision the immediate release of the person arrested ... where it does not envisage applying [to the judge] for a preventive measure."
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-93147
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: TOSHEVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mrs Lilyana Veselinova Tosheva, is a Bulgarian national who was born in 1943 and lives in Lesidren. She is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) are represented by their Agents, Mrs M. Dimova and Mrs N. Nikolova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 August 1990 Mrs R.A. brought an action against the applicant and her husband seeking a declaration that a contract whereby they had acquired the title of an apartment was null and void.
On 23 December 1991 the Sofia District Court rescinded the contract. In a judgment of 3 January 1994 the Sofia City Court quashed the lower court’s judgment and remitted the case for fresh examination.
Between May 1994 and April 2000 the Sofia District Court held at least twenty-one hearings, eight of which were adjourned because the applicant and her husband had not been duly summoned. On 14 April 2000 the domestic court rescinded the impugned contract.
The applicant and her husband appealed. In a judgment of 12 November 2001 the Sofia City Court quashed the lower court’s judgment in respect of half of the real estate and upheld it in respect of the other half.
The applicant’s husband lodged a cassation appeal. The applicant did not file such an appeal and did not participate in the cassation proceedings.
In a judgment of 10 March 2003 the Supreme Court of Cassation annulled the lower court’s judgment and terminated the proceedings, holding that the plaintiff had had no standing to bring the action.


ITEMID: 001-95990
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: OTTO v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Holger Hajo Otto, is a German national who was born in 1943 and lives in Essen. He was represented before the Court first by Ms Sandra Rakovic, a lawyer practising in Düsseldorf, then by Mr Marc Decker, a lawyer practising in Krefeld.
In April 1997, following a complaint lodged in March 1996 and the ensuing police investigations, of which the applicant was aware, the Düsseldorf public prosecutor’s office started a judicial investigation into the activities of the applicant and other persons suspected of fraud and misappropriation of funds. On 23 September 1998 the applicant’s home was searched. On 10 January 2000 the applicant was arrested and remanded in custody. On 23 February 2001 the prosecutor’s office sent the indictment to the Düsseldorf Regional Court, which opened the main proceedings on 26 June 2001. On 8 March 2004, after having held 194 hearings, the Regional Court sentenced the applicant to five years and ten months’ imprisonment for 497 instances of fraud and misappropriation of funds committed between 1991 and 1996. In its reasoning it noted, inter alia, that there had been no unlawful delays in the proceedings, that the investigation had been complex and that the applicant, by his conduct, had been the cause of the delays in the main proceedings.
On 26 July 2005 the Federal Court of Justice declared an appeal on points of law inadmissible in so far as alleged procedural irregularities were concerned, and the remainder of the appeal ill-founded.
On 17 November 2005 a bench of three judges of the Federal Constitutional Court rejected a constitutional appeal lodged by the applicant (no. 2 BvR 1627/05) without giving reasons. The applicant received the decision on 27 November 2005.